The law makes special provisions regarding rates and discriminations therein with respect to transportation in interstate traffic, affecting both private and State railways. Unreasonable or unjust rates are prohibited. State railways may not make rates which unjustly discriminate against any State. In interpreting the law the commission may consider the financial responsibilities of the railways and the necessities of development of their territory. The act contains the following prohibition also:

No common carrier or State Authority, other than.a State Railway Authority, shall, in respect of interstate commerce, or so as to affect such commerce-(a) make or give any undue or unreasonable preference or advantage to any particular person, State, locality, or description of traffic; or (b) subject any particular person, State, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage.

Where such discrimination is made, the burden of proving its reasonableness rests on the carrier or State authority making it. The commission is given authority to decide the matter.

The commission is given judicial power as a court of record, as follows:

The Commission shall have jurisdiction to hear and determine any complaint, dispute, or question, and to adjudicate upon any matter arising as to (a) any preference, advantage, prejudice, disadvantage, or discrimination given or made by any State or by any State Authority or by any common carrier in contravention of this Act, or of the provisions of the Constitution relating to trade and commerce or any law made thereunder; (b) the justice or reasonableness of any rate in respect of interstate commerce, or affecting such commerce; (c) anything done or omitted to be done by any State or by any State Authority or by any common carrier or by any person in contravention of this Act or of the provisions of the Consititution relating to trade or commerce or any law made thereunder.

"Commerce" is defined in this act to include "trade and traffic of all descriptions by land or water." "Traffic" is defined to include "the transportation of passengers and of goods." "Trade" is not defined, and it does not appear from the context whether it is substantially synonymous with traffic or includes other kinds of commerce than transportation. Nothing specifically appears in the act to show that these judicial powers cover other matters than transportation.

The commission is given broad powers of relief; among other things, it may (1) award damages; (2) order that a party be restrained by injunction; (3) declare a regulation, or any part thereof, void; (4) name a maximum rate for any service; (5) name both a maximum and a minimum rate; (6) name a maximum or minimum of difference between two rates; (7) determine the division of a joint rate; (8) require amendments of traffic rules and regulations; (9) fix pecuniary penalties for disobedience of its orders.

The commission has full jurisdiction to hear and determine all matters, whether of law or of fact, with the powers of a high court.

It may review, rescind, or vary any order. Appeal may be taken as follows:

No appeal shall lie from the Commission except an appeal to the High Court on questions of law only.

Pending appeal the orders of the commission are not suspended unless otherwise ordered by the commission or the High Court.

The commission shall make annual reports and reports of investigations and publish such information regarding matters investigated as it thinks fit. The chief commissioner may summon witnesses and compel the production of books and papers, but evidence given by a witness shall not be used against him, "except in proceedings for an offence against this Act," in any court. Extensive provisions are made regarding witnesses, evidence, contempt of the commission, etc., which it is not necessary to describe here.

The first annual report of this commission was made on October 6, 1914.

The first investigation and report made with respect to an industrial combination related to printers, paper merchants, etc., and was published in 1914.1 This report was made pursuant to the authority of the commission to investigate tariff questions, the trades affected by the combination being protected by tariff duties with respect to certain commodities. The commission found that a combination existed among most of the printers in the State of Victoria with respect to prices to be charged for printing; that they had made a contract with paper merchants and other suppliers of printers' materials whereby the members of the printers' combination should purchase exclusively of such merchants, and the latter should charge prices to noncombination printers 25 per cent higher than to the combination printers; that prices had been unduly advanced to the consumer in consequence, and that noncombination printers had been oppressively treated. The commission held that this combination was probably not subject to the prohibitions of the Australian Industries Preservation Act, because it was not an interstate combination, but that it had frustrated the intentions of Parliament with respect to tariff legislation by compelling noncombination printers to purchase supplies from abroad. The commission held further that under the constitution the problem could only be dealt with by State legislation, although the chief commissioner took the view that appropriate legislation by the Australian Parliament with respect to the tariff could provide for remitting protective duties. in such cases.

1 Report by the Interstate Commission upon a combination (known as Typothetae) between master printers, paper merchants and suppliers of printers' materials in the State of Victoria. May 6, 1914, Melbourne, Australia.

In this connection it may be noted that it was not the Interstate Commission but a temporary "Royal Commission" that in 1914 was intrusted with the duty of inquiring into and reporting on "the operations of any person, combination, or trust tending to create any restraint of trade or monopoly in connection with the export trade of meat from Australia." In pursuance thereof a report of the Royal Commission on the meat trade was issued on November 14, 1914.

Section 5. New Zealand.

Several laws have been enacted in New Zealand which are of interest in this connection, the two most important being the Monopoly Prevention Act of 1908, which embodied some previous legislation, and the Commercial Trusts Act of 1910.

THE MONOPOLY PREVENTION ACT, 1908.-The Monopoly Prevention Act substantially combined two previous acts, namely, the Agricultural Implement, Manufacture, Importation, and Sale Act, 1905, and the Flour and Other Products Monopoly Prevention Act, 1907. The law is divided into two parts, corresponding to the two acts mentioned above. Inasmuch as the first part of this act is chiefly of interest in connection with the question of unfair competition and is considered in Chapter X (see p. 551), it is unnecessary to consider it here. The second part of the act gives to the governor, on recommendation of a certain court, the power to issue an order in council to remit the customs duty on flour. Such order may be revoked after a period of three months. It is provided that the court may from time to time, at the direction of the governor, make inquiry into the wholesale market price of flour, and if it finds that such price is unreasonably high, to recommend action by the governor, as stated above. The act declares that the price of flour is unreasonably high under the following circumstances:

(a) If the average price of flour in New Zealand is, relatively to the price of wheat in New Zealand, higher than the average price of flour in Australia relatively to the average price of wheat in Australia, unless in the opinion of the Court the additional price in New Zealand is justified by additional cost of production; or

(b) If the average price of wheat in New Zealand has, by reason of any combination among the holders of stocks of wheat, or by reason of any complete or partial monopoly established by any such holder, been raised above the price which would be determined by unrestricted competition.

The provisions as to the power of the governor to remit duties and of the court to inquire into the reasonableness of prices apply also to wheat and potatoes, and the act lays down the following rules in respect thereto:

*

*

*

the price of wheat shall be deemed to be unreasonably high if the average wholesale price in New Zealand has, by reason of any combination among the holders

of stocks, or by reason of any complete or partial monopoly established by any such holder, been raised above the price which would be determined by unrestricted competition.

* the price of potatoes shall be deemed to be unreasonably high-(a) If the average wholesale price in New Zealand exceeds seven pounds per ton; or (b) If the average wholesale price in New Zealand has, by reason of any combination among the holders of stocks of potatoes, or by reason of any complete or partial monopoly established by any such holder, been raised above the price which would be determined by unrestricted competition.

The act specifies seven places in New Zealand and three places in Australia for which the market prices shall be ascertained in order to determine the respective average prices. To aid the court in determining the facts a special member for this purpose is added to the court to be named by certain agricultural societies, or failing such nomination, to be appointed by the governor. The court is authorized to use the powers conferred by the Commissions of Inquiry Act, 1908.

THE COMMERCIAL TRUSTS ACT, 1910.-The Commercial Trusts Act, enacted on November 21, 1910, was partly modeled on the Australian Industries Preservation Act, 1906-1910. The application of the law is limited to matters affecting the trade in the following commodities only: Agricultural implements, coal, meat, fish, flour, oatmeal (or other products of wheat and oats), petroleum (or other products of mineral oil), sugar, and tobacco (including cigars and cigarettes).

The offenses are substantially as follows:

(a) Every person commits an offense who gives a rebate or discount, etc., in connection with the sale of goods, on the express or implied condition that the person receiving the same will deal exclusively with the vendor for such goods, or generally, or will not deal with others, or will become a member of a commercial trust (see p. 252) or act in obedience to directions from such trust. (Sec. 3.)

(b) Every person commits an offense who refuses to sell or to supply another person either absolutely or on relatively disadvantageous conditions, because he will not deal exclusively with such vendor in that article, or generally, or will not become a member of a commercial trust or follow the directions of the same in respect to the sale, purchase, or supply of goods. (Sec. 4.)

(c) Any person who conspires to monopolize wholly or partially the demand or supply of goods in New Zealand, or any part thereof, is guilty of an offense if such monopoly is contrary to the public interest. (Sec. 5.)

(d) Every person commits an offense who sells, supplies, or offers goods at an unreasonably high price if the price is directly or indirectly controlled or influenced by a commercial trust with which he is or has been connected. It is also an offense if he commits the same

act at the suggestion or direction of a commercial trust, even though he is not connected therewith, and the price is not controlled by such trust. (Sec. 6.)

(e) If a commercial trust sells, supplies, or offers any goods at a price which is unreasonably high, every person who is a member thereof (for definition of member see below), or if it is a corporation, the corporation, also, commits an offense. (Sec. 7.)

(f) Every person who aids, counsels, or procures the commission of an offense under this act, or the doing of an act outside of New Zealand which if done in New Zealand would be such an offense, is to be deemed to have committed such offense. (Sec. 9.)

A commercial trust is defined substantially as follows:

Any association having as one of its objects controlling or influencing the supply or demand or price of any goods in New Zealand or any part thereof, or elsewhere, or creating or maintaining a monopoly, whether complete or partial, in the supply or demand of any goods. An association includes the union of any number of persons under any agreement or trust, whether temporary or permanent, and whether legally valid or not, and whether including any scheme of organization or common management or control or not. Member of such trust includes any constituent person or agent, and in case the agent is a corporation, firm, or association, every member thereof. The term "unreasonably high price" is defined as follows:

For the purposes of this Act the price of any goods shall be deemed to be unreasonably high if it produces or is calculated to produce more than a fair and reasonable rate of commercial profit to the person selling or supplying, or offering to sell or supply, those goods, or to his principal, or to any commercial trust of which that person or his principal is a member, or to any member of any such commercial trust.

The offenses described above are punishable by a fine of £500 sterling, or such part thereof as the court thinks fit. The fine is made a debt to the King and can be recovered in civil action, together with costs.

In addition to the penalty of fine the Supreme Court may grant an injunction against the continuance or repetition of the offense.

The first case decided under this law, and the only one which has been noted, was Merchants' Association of New Zealand v. the King.1

The Merchants' Association of New Zealand fixed rules regarding the trading methods of its members with respect to various commodities, and in particular sugar. The Colonial Sugar Co. (Ltd.) was the only refiner of sugar in New Zealand, and produced practically all the refined sugar consumed there. After the passage of the Commercial Trusts Act in 1910 the sugar company established a scale of discounts which allowed higher discounts for larger quan

1 Merchants' Association of New Zealand (Inc.) et al. v. H. M. the King, Court of Appeal, 32 New Zealand Law Rept. 1233 (1913).