« ForrigeFortsett »
Section 4 defines commerce as “ Commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or fors eign nation, or between the District of Columbia and any State or Territory or foreign nation.”
Sec. 5. That unfair methods of competition in commerce are hereby declared onlawful. The commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks, and common carriers subject to the acts to regulate commerce, from using unfair methods of competition in commerce. Whenever the commission shall have reason to believe that any such person, partnership, or corporation has been or is using any unfair method of competition in commerce, and if it shall appear to the commission that a proceeding by it in respect thereof would be to the interest of the public, it shall issue and serve upon such person, partnership, or corporation & complaint stating its charges in that respect, and containing a notice of a bearing upon a day and at a place therein fixed at least 30 days after the service of said complaint. The person, partnership, or corporation so complained of shall have the right to appear at the place and time so fixed and show cause why an order should not be entered by the commission requiring such person, partnership, or corporation to cease and desist from the violation of the law so charged in said complaint.
If upon such hearing the commission shall be of the opinion that the method of competition in question is prohibited (423) by this act, it shall make a report in writing in which it shall state its findings as to the facts, and shall issue and cause to be served on such person, partnership, or corporation an order requiring such person, partnership, or corporation to cease and desist from using such method of competition.
Section 5 further provides that the commission may apply to the designated Circuit Court of Appeals to enforce an order, "And shall certify and file with its application a transcript of the entire record in the proceeding, including all the testimony taken and the report and order of the commission. Upon such filing of the application and transcript the court shall cause notice thereof to be served upon such person, partnership, or corporation and thereupon shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to make and enter upon the pleadings, testimony, and proceedings set forth in such transcript a decree affirming, modi. fying, or setting aside the order of the commission. The findings of the commission as to the facts, if supported by testimony, shall be conclusive.
* The judgment and decree of the court shall be final, except that the same shall be subject to review by the Supreme Court upon certiorari as provided in section 240 of the Judicial Code. Any party required by such order of the commission to cease and desíst from using such method of competition may obtain a review of such order in said Circuit Court of Appeals by filing in the court a written petition praying that the order of the commission be set aside. A copy of such petition shall be forth with served upon the commission, and thereupon the commission forthwith shall certify and file in the court a transcript of the record as hereinbefore provided. Upon the filing of the transcript the court shall have the same jurisdiction to affirm, set aside, or modify the order of the commission as in the case of an application by the commission for an  enforcement of its order, and the findings of the commission as to the facts, if supported by testimony, shall in like manner be conclusive."
Sections 6 and 7 empower the commission to require reports and compile information concerning corporations; to inquire concerning execution of the decrees restraining violations of the antitrust acts; to investigate alleged violations of such acts; to recommend readjustments of corporate business; to publish information and make reports to Congress; to classify corporations and make rules and regufations; to investigate trade conditions; to act, under orders of the court, as a master in chancery in certain designated circumstances, etc.
Undertaking to proceed under section 5, June 4, 1917, the commission issued a complaint containing two counts against respondents. The first related to unfair methods of competition, and the second charged violation of section 3 of the Clayton Act, approved October 15, 1914 (c. 323, 38 Stat. 730, Comp. St. par. 88350). Respondents denied both charges. After taking much testimony the commission held there was no evidence to support the second count; but it ruled that respondents had practiced unfair competition and ordered that they—“their officers and agents, cease and desist from requiring purchasers of cotton ties to also buy or agree to buy, a proportionate amount of American Manufacturing Co.'s bagging, and further that the respondents cease and desist from refusing to sell cotton ties unless the purchasers buy or agree to buy from them corresponding amounts of American Manufacturing Co.'s bagging, or any amount of cotton bagging of any kind.”
Upon respondents' petition the Circuit Court of Appeals, Second Circuit, annulled the commission's order, 258 Fed. 314. It said, "We think there is no evidence to support any general practice of the respondents to refuse to sell ties unless the purchaser bought at the same time the necessary amount of the American Manufacturing  Co.'s bagging, and that the commission has no jurisdiction to determine the merits of specific individual grievances.'
The challenged order is based solely upon the first count of the complaint, which follows: Federal Trade Commission v. Anderson Gratz and Benjamin Gratz, copartners, doing business under the firm name and style of Warren, Jones & Gratz; P. P. Willams, W. H. Fitzhugh, and Alex. Fitzhugh, copartners. doing business under the Armr name and style of P. P. Williams & Co.; and Charles 0. Elmer.
The Federal Trade Commission having reason to believe, from a preliminary Investigation made by it, that Anderson Gratz and Benjamin Gratz, copartners, doing business under the firm name and style of Warren, Jones & Gratz; P. P. Williams, W. H. Fitzhugh, and Alex. Fitzhugh, copartners, doing business under the firm name and style of P. P. Williams & Co.; and Charles 0. Elmer, all of whom are hereinafter referred to as respondents, have been, and are, using unfair methods of competition in interstate commerce in violation of the provisions of section 5 of the act of Congress approved September 26, 1914, entitled "An act to create a Federal Trade Commission, to define its powers and duties, and for other purposes,” and it appearing that a proceeding by It in respect thereof would be to the interest of the public, issues this complaint, stating its charges in that respect, on information and belief, as follows:
Par. 1. That the respondents, Anderson Gratz and Benjamin Gratz, are copartners, doing business under the firm name and style of Warren, Jones & Gratz, having their principal office and place of business  in the city of St. Louis and State of Missouri, and are engaged in the business of selling in interstate commerce, either directly to the trade or through the respondents hereinafter named, steel ties made and used for binding bales of cotton, and which steel ties are manufactured by the Carnegie Steel Co., of Pittsburgh, Pa., and also selling, in the same manner, jute bagging, used to wrap bales of cotton,
and which jute bagging is manufactured by the American Manufacturing Co., of St. Louis, Mo.
PAR. 2. That the respondents, P. P. Williams, W. H. Fitzhugh, and Alex. Mitzhugh, are copartners, doing business under the firm name and style of P. P. Williams & Co., having their principal office and place of business in the city of Vicksburg and State of Mississippi, and the said last-named respondents and the said respondent Charles 0. Elmer, who is located and doing business at the city of New Orleans and State of Louisiana, are the selling and distributing agents of the said firm of Warren, Jones & Gratz, and sell and distribute the ties and bagging, manufactured as aforesaid, in interstate commerce, principally to jobbers and dealers, who resell the same to retailers, cotton ginners, and farmers.
PAR. 3. That with the purpose, intent, and effect of discouraging and stilling competition in interstate commerce in the sale of such bagging, all of the respondents do now refuse, and for more than a year last past have refused, to sell any of such ties unless the prospective purchaser thereof would also buy from them bagging to be used with the number of ties proposed to be bought; that is to say, for each six of such ties proposed to be bought from the respondents the prospective purchaser is required to buy 6 yards of such bagging.
It is unnecessary now to discuss conflicting views concerning validity and meaning of the act creating the commission and effect of the evidence presented. The  judgment below must be affirmed, since, in our opinion, the first count of the complaint is wholly insufficient to charge respondents with practicing a unfair methods of competition in commerce" within the fair intendment of those words. We go no further and confine this opinion to the point specified.
When proceeding under section 5, it is essential, first, that, having reason to believe a person, partnership, or corporation has used an unfair method of competition in commerce, the commission shall conclude a proceeding" in respect thereof would be to the interest of the public”; next, that it formulate and serve a complaint stating the charges " in that respect " and give opportunity to the accused to show why an order should not issue directing him to “cease and desist from the violation of the law so charged in said complaint.” If after a hearing the commission shall deem "the method of competition in question is prohibited by this act,” it shall issue an order requiring the accused" to cease and desist from using such method of competition."
If, when liberally construed, the complaint is plainly insufficient to show unfair competition within the proper meaning of these words there is no foundation for an order to desist-the thing which may be prohibited is the method of competition specified in the complaint. Such an order should follow the complaint; otherwise it is improvident and, when challenged, will be annulled by the court.
The words “ unfair methods of competition " are not defined by the statute, and their exact meaning is in dispute. It is for the courts, not the commission, ultimately to determine as matter of law what they include. They are clearly inapplicable to practices never heretofore regarded as opposed to good morals because characterized by deception, bad faith, fraud or oppression, or as against public policy because of their dangerous tendency unduly to hinder competition or create monopoly. The act was  certainly not intended to fetter free and fair competition as commonly understood and practiced by bonorable opponents in trade.
Count one alleges in effect, that Warren, Jones & Gratz are enaged in selling, either directly to the trade or through their co-respondents, cotton ties produced by the Carnegie Steel Co., and also
jute bagging manufactured by the American Manufacturing Co. That P. P. Williams & Co., of Vicksburg, and Charles 0. Elmer, of New Orleans, are the selling and distributing agents of Warren, Jones & Gratz, and as such sell and distribute their ties and bagging to jobbers and dealers, who resell them to retailers, ginners, and farmers. That with the purpose and effect of discouraging and stifling competition in the sale of such bagging all the respondents for more than a year have refused to sell any of such ties unless the purchaser would buy from them a corresponding amount of bagging—6 yards with as
The complaint contains no intimation that Warren, Jones & Gratz did not properly obtain their ties and bagging as merchants usually do; the amount controlled by them is not stated; nor is it alleged that they held a monopoly of either ties or bagging or had ability, purpose, or intent to acquire one. So far as appears, acting independently, they undertook to sell their lawfully acquired property in the ordinary course, without deception, misrepresentation, or oppression, and at fair prices, to purchasers willing to take it upon terms openly announced.
Nothing is alleged which would justify the conclusion that the public suffered injury or that competitors had reasonable ground for complaint. All question of monopoly or combination being out of the way, a private merchant, acting with entire good faith, may properly refuse to sell, except in conjunction, such closely associated articles as ties and bagging. If real competition is to continue, the right of the individual to exercise reasonable discretion  in respect of his own business methods must be preserved." United States v. Colgate & Co., 250 U. S. 300; United States v. A. Schrader's Son, Inc. (Mar. 1, 1920), 252 U. S. 85.
The first count of the complaint fails to show any unfair method of competition practiced by respondents and the order based thereon was improvident.
The judgment of the court below is affirmed.
Mr. Justice BRANDEIS dissenting, with whom Mr. Justice CLARKE concurs:
First. The court disposes of the case on a question of pleading. This, under the circumstances, is contrary to established practice. The circumstances are these :
The pleading held defective is not one in this suit. It is the pleading by which was originated the proceeding before the Federal Trade Commission, an administrative tribunal, whose order this suit was brought to set aside. No suggestion was made in the proceeding before the commission that the complaint was defective. No such objection was raised in this suit in the court below. It was not made here by counsel. The objection is taken now for the first time and by the court.
This suit, begun in the Circuit Court of Appeals for the Second Circuit, was brought to set aside an order of the Federal Trade Commission. Before the latter the matter involved was thoroughly tried on the merits. There was a complaint and answers. Thirty-five witnesses were examined and cross-examined. A report of proposed
findings as to facts was submitted by the examiner and exceptions were filed thereto. Then, the case was heard before the commission, which made a finding of facts, stated its conclusions as to the law, and ultimately issued the order in question. The proceedings occupied more  than 16 months. The report of them fills 400 pages of the printed record. In my opinion, it is our duty to determine whether the facts found by the commission are sufficient in law to support the order; and also, if it is questioned, whether the evidence was sufficient to support the findings of fact.
Second. If the sufficiency of the complaint is held to be open for consideration here, we should, in my opinion, hold it to be sufficient. The complaint was filed under section 5 of the Federal Trade Commission Act, which declares unlawful “unfair methods of competition in commerce"; empowers the commission to prevent their use; and directs it to issue and serve “a complaint stating its charges in that respect " whenever it has reason to believe that a concern " has been or is using” such methods. The function of the complaint is solely to advise the respondent of the charges made so that he may have due notice and full opportunity for a hearing thereon. It does not purport to set out the elements of a crime like an indictment or information, nor the elements of a cause of action like a declaration at law or a bill in equity. All that is requisite in a complaint before the commission is that there be a plain statement of the thing claimed to be wrong so that the respondent may be put upon his defense. The practice of the Federal Trade Commission in this respect, as in many others, is modeled on that which has been pursued by the Interstate Commerce Commission for a generation and has been sanctioned by this as well as the lower Federal courts. (United States Leather Co. v. Southern Ry. Co., 21 I. C. C. 323, 324; Clinton Sugar Refining Co. v. C. & N. W. Ry. Co., 28 I. C. C. 364, 367; Stuarts Draft Mitling Co. v. Southern Ry. Co., 31 I. C. C. 623, 624; New York Central, etc., R. R. Co. v. Interstate Commerce Commission, 168 Fed. 131, 138-139; Dickerson v. Louisville & Nashville R.R. CO., 187 Fed. 874, 878; Texas & Pacific Ry. v. Interstate Commerce Commission, 162  U. S. 197, 215; Cincinnati, Hamilton & Dayton Ry. Co. v. Interstate Commerce Commission, 206 U. S. 142, 149.)
The complaint here under consideration stated clearly that an unfair method of competition had been used by respondents, and specified what it was, namely, refusing to sell cotton ties unless the customer would purchase with each six ties also 6 yards of bagging. The complaint did not set out the circumstances which rendered this tying of bagging to ties an unfair practice. But this was not necessary. The complaint was similar in form to those filed with the Interstate Commerce Commission on complaints to enforce the prohibition of " unjust and unreasonable charges” or of “undue or unreasonable preference or advantage” which the act to regulate commerce imposes. It is unnecessary to set forth why the rate specified was unjust or why the preference specified is undue or unreasonable, because these are matters not of law but of fact to be established by the evidence. Pennsylvania Co. v. United States (236 U. S. 351, 361). So far as appears neither this nor any other court has ever held that an order entered by the Interstatě Com