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the Commission or Board under either section shall exercise an essentially judicial function, because it would be unconstitutional to delegate to the Circuit Court of Appeals authority other than judicial in its nature."
The findings of the Commission or Board as to the facts, if supported by the testimony, shall be conclusive. Upon cause shown to the Court it may order the taking of additional evidence but such evidence must be taken before the Commission or Board and be brought before the Court in such manner as the Court may provide. The Commission or Board is authorized to modify its findings or make new findings by reason of the additional evidence and to file such modified or new findings which, if supported by testimony, shall be conclusive. The Commission or Board is also authorized to recommend the modification or setting aside of its original order upon the return of such additional evidence, if it shall see fit. These provisions probably mean that no testimony can be taken in the Circuit Court of Appeals in a proceeding to review orders entered under either of these sections. It is probable the Court may hear evidence to determine whether or not proper cause exists for the taking of additional testimony before the Commission or Board.
Any defendant subject to an order entered under either of these sections may obtain a review in the Circuit Court of Appeals by filing a written petition praying that the order be set aside, and copy of the petition shall be forthwith served upon the Commission or Board which is thereupon required to serve and file in the Court a transcript of the record in the same way as if the Commission or Board itself were
7.-Note to Hayburn's Case, 2 Dallas 409; United States vs. Yale Todd, 13 Howard 52, note.
the petitioning party. The jurisdiction of the Court to review the Commission's or Board's order upon such application is the same as in suits instituted by the Commission or Board seeking enforcement of its order. The jurisdiction of the Circuit Court of Appeals to enforce, set aside or modify orders of the Commission or Board entered under either of these two sections is exclusive and review of the judgments of the Court may be obtained in the Supreme Court upon certiorari as provided in section 240 of the Judicial Code. It is to be noted that both statutes would make such review applicable only to judgments entered by the Circuit Court of Appeals in suits instituted therein by the Commission or Board, and that review in the Supreme Court would seem not to be authorized in cases instituted in the Circuit Court of Appeals by a party seeking to set aside an order of the Commission or Board. It is true, how
ever, that review could be obtained by certiorari under the Judicial Code without express authority in these sections, unless the law be interpreted to mean that Congress intended that the ruling of the Circuit Court of Appeals should be final in cases instituted therein by corporations or persons.
Both sections provide that proceedings in the Circuit Court of Appeals shall be given precedence and in every way expedited, and also provide that no order of the Commission or Board, or judgment of the Court to enforce the same "shall in any wise relieve or absolve any person, partnership or corporation from any liability under the Anti-trust acts." This provision is found in both sections.
Both sections provide the manner in which service of orders or other processes of the Commission or Board may be made, either (a) by delivering copy to the defendant or member of the partnership, if such,
or the president, secretary or other executive officer or director of a corporation; (b) by leaving copy at the principal office or place of business of any partnership or corporation; or (c) by sending a copy by registered mail to such principal office. Verified return by the person serving or leaving the same, or the registered postoffice receipt shall be proof of such service.
We have discussed substantially all of the provisions of the laws concerning banks under the heading "Inhibitions of the Clayton law." General provisions concerning the power of the Federal Reserve Board to enforce compliance with the Trade Commission and Clayton laws are also discussed under the heading "Commission Procedure," etc. However, we think it proper briefly to repeat here that the prohibitions of sections 2 and 3 against price discrimination and tying clause contracts do not apply to the normal operations of banks, and that the only provisions of the Clayton law which specifically apply to banks are those against unlawful stock ownership and interlocking directors, officers or employees.
It is to be noted that the provisions against interlocking apply to a national bank as one party in each case, which indicates that Congress had in mind in making these enactments not only its powers under the commerce clause of the constitution but also its powers to establish and regulate national banks.
While unfair methods of competition are declared unlawful without limitation as to persons or corpora
8.—Are banks engaged in commerce? See Nathan vs. Louisiana, 8 Howard 73; New York Life Insurance Company vs. Deer Lodge County, 231 U. S. 495.
tions against whom the rule shall operate, there is no provision in the Trade Commission law for the enforcement of this rule as against banks or common carriers. Even if it be conceded that banks are engaged in commerce within the meaning of that word as used in the law, it would seem by reason of the failure to provide for the enforcement of this rule against banks that there was serious doubt as to whether Congress intended the rule to apply to the banking business.
Banks are not subject to investigation concerning their organization, business, conduct, practices, management or relation to other corporations, individuals, associations or partnerships, nor can they be required to file reports with the Trade Commission. If incorporated banks are involved in any proceeding under the Anti-trust acts or in any alleged violations thereof, they are subject to investigation in those particulars.
The two laws contain several quite unrelated provisions affecting common carriers but it has seemed best to collect and discuss them all under one title.
1. Under the Trade Commission Law.
The rule against unfair methods of competition does not apply to common carriers as they are specially excepted therefrom. The only manner in which this law applies to common carriers is in the operation of the Commission's inquisitorial powers. Illegal combinations may be investigated. The Commission may also investigate the manner in which decrees rendered in suits by the government for viola
tions of the Anti-trust laws have been or are being enforced. Upon application of the Attorney General the Commission is given the power to investigate alleged violations of the Anti-trust laws and recommend the readjustment of the business of any corporation violating such laws.
Common carriers are not subject to investigation concerning their organization, business, conduct, practices, management or relation to other corporations, individuals, associations or partnerships, nor can they be required to file reports with the Trade Commission.
2. Under the Clayton Law.
In discussing price discrimination and tying contracts, we have already stated that we do not believe either section applies to common carriers or at least to the normal operations of common carriers. The intention of these sections is plainly to regulate merchandising, using that word in its ordinary sense. The commodities clause of the commerce act forbids any common carrier from transporting, except timber and the manufactured products thereof, any article or commodity manufactured, mined or produced by it or under its authority, or in which it may have any interest, except those intended for its use in the conduct of its transportation business. This provision generally operates to prevent common carriers from engaging in any business except that of transportation. The Act to Regulate Commerce as amended names the kinds of carriers subject thereto. There are carriers not subject to that act, and such carriers might therefore be subject to the provisions
9.-Act to Regulate Commerce as amended, section 1.