exercise by the Commission of its investigative power, in order to be lawful, must be confined to developing facts the ascertainment of which will tend to assist the Commission in accomplishing one or more of the three primary ends for which it received regulative and advisory powers. It will always be open to any person called upon by the Commission to furnish information to refuse it, if he can show that the information sought does not relate to the particular matter under investigation, or to any matter which the Commission is entitled under the Trade Law or Clayton Law to investigate.176 Even with that limitation, however, the investigative power of the Commission is probably to be regarded as quite comprehensive,177 particularly since apparently it is not essential that the information which the Commission may seek, in any given instance should, in every particular, bear directly and immediately upon the advisory or regulative end for which it may be sought, but it is enough that the bearing of such information upon such end should be appreciable although remote.178

§ 43. As limited by method of exercise: In addition to the general limitation upon the Commission's investigative power noted in the preceding section, the power appears to be subject to certain special limitations depending upon the method by which it may be sought to be exercised. The Trade Law provides four methods whereby the Commission may exercise its investigative power.179 Those methods are (1) by requiring a report from any corporation, except a bank or an interstate common carrier; (2) by examining and copying any

176 Int. Com. Com. v. Brimson (1894) 154 U. S. 447, 479, s. C. 155 U. S. 3.

177 See, however, Sec. 48, infra. 178 Int. Com. Com. v. Goodrich

Transit Co. (1912) 224 U. S. 194, 215.

179 Trade Law, Secs. 6 (b), 8, 9; Secs. 44 to 47, infra.

documentary evidence of any corporation being investigated or proceeded against; (3) by requiring by subpœna the attendance and testimony of witnesses, and the production of any documentary evidence relating to any matter under investigation, and by taking depositions in any proceeding or investigation; and (4) by obtaining information from other departments of the government. The employment of one of the four investigative methods thus provided does not necessarily exclude the use of any of the others in the same investigation. Circumstances may exist whereunder all four methods may be used together. But the matters in respect of which the Commission may inquire, and the sources from which it may obtain information, are different in some particulars under each of the different investigative methods.

§ 44. Requiring reports:180 The general grant of investigative power in the Trade Law181 starts with an enumeration of certain particular matters in respect of which the Commission is expressly authorized to investigate all corporations, except banks and interstate common carriers, which, for the most part, are not subject to the jurisdiction of the Commission. That enumeration might perhaps be construed as depriving the Commission of power to investigate any corporation as to any matter not specially enumerated, and hence as a general limitation upon the Commission's investigative

power.

As against that view, however, it is to be observed that the Trade Law apparently contemplates that all corporations, including even banks and interstate com

180Cf. Trade Law, Sec. 6, and 4 U. S. Comp. Stat. (1913) Tit. 56A, Ch. A, Sec. 8592, p. 3872, authorizing the Interstate Commerce

Commission to require interstate common carriers to make reports to it.

181 Trade Law, Sec. 6, (a).

mon carriers,182 shall be subject to investigation by the Commission in some manner in respect of certain particular matters, as, for instance, alleged violations of the antitrust laws, which are not mentioned in express terms in the specific enumeration of matters for investigation contained in the clause of general grant of investigative power. Further, in the same connection, it is to be noted that the same subjects for investigation which are enumerated in the clause of general grant of investigative power, are also enumerated in that clause of the Trade Law183 which authorizes the Commission to require the filing of reports by corporations, and that banks and interstate common carriers are excepted in the clause conferring authority upon the Commission to require corporations to file reports as well as in the clause of general grant of investigative power to the Commission. Those circumstances suggest that whatsoever implied limitation upon the Commission's investigative power may properly be deduced from the enumeration, in the general grant of investigative power, of certain special subjects for investigation, should perhaps be confined to investigations conducted by the Commission's requiring corporations, other than banks and interstate common carriers, to file reports with it.

In this view, every exercise of investigative power by the Commission's compelling a corporation subject to the requirement to file a report, must be restricted not only to obtaining facts bearing upon a matter lying within the Commission's advisory or regulative powers,184 but in addition must be confined to inquiries as to the corporation's "organization, business, conduct, practices, and management," and "its relation" to other corpo

182 Secs. 35 and 36, supra. 183 Trade Law, Sec. 6, (b).

184 Sec. 42, supra.

rations, and to individuals, associations, and partnerships, those being the subjects for investigation specially enumerated in the clauses of the Trade Law under consideration.185

The power of the Commission to investigate by requiring the filing of reports, is limited further in that the terms of the Trade Law do not purport to make that method of investigation applicable to natural persons, any more than to banks or interstate common carriers.

The Commission is given wide discretion in respect of reports.186 Thus the Commission may from time to time classify such corporations as are bound to render reports, and may require any class, or any one of any class, of such corporations to report, without making a like requirement of others. It may require annual reports, or special reports, or both. It may require reports either by general orders, or by special orders. It may determine what questions shall be propounded to the corporations, what shall be the form of the reports, whether the reports shall be under oath or otherwise, when the reports shall be filed, and generally may make rules and regulations for the purpose of carrying out the provisions of the Trade Law relating to the filing of reports.

It is perhaps not unlikely that this grant of discretionary authority to the Commission may be attacked as a delegation of legislative power repugnant to the Constitution. But the line which separates exactly the exercise of legislative and administrative power is not easy to define,187 and the success of such attacks, if made, would appear doubtful, to say the least.188

185 Trade Law, Sec. 6, (a), (b). 186 Trade Law, Sec. 6, (b), (g). 187 Mutual Film Corp. v. Ohio

Indus'l Comm. (1915) 236 U. S. 230, 245.

188 Buttfield v. Stranahan (1904)

The

§ 45. Examining and copying documents:189 Commission's power to investigate by means of examining and copying documents is limited, by the terms of the Trade Law, to "any documentary evidence of any corporation being investigated or proceeded against."190 The phrase "documentary evidence" may perhaps be narrowly construed so as to exclude, for instance, the corporate records of a corporation.191 And, in order to be subject to being examined and copied, the documentary evidence must, it would seem, bear upon some 'matter in respect of which the Commission is charged with a regulative or advisory function.192

Examining and copying documents, as a method of investigation, is restricted to the documentary evidence of corporations. The Trade Law does not purport to extend that method of investigation to the papers of natural persons. And it is only when a corporation is "being investigated or proceeded against," that its documentary evidence may be examined and copied by the Commission. The Trade Law, however, authorizes the examination of the documents of "any corporation," if the corporation is "being investigated or proceeded against." That would seem to include banks and interstate common carriers, as well as other corporations. It would seem that the Commission, acting upon its

192 U. S. 470, 496; St. L. I. M.

S. R. R. v. Taylor (1908) 210 U. S. 281, 287; United States v. Grimaud (1911) 220 U. S. 506, 516.

189Cf. Trade Law, Sec. 9, and 4 U. S. Comp. Stat. (1913) Tit. 56A, Ch. A, Sec. 8592, (5), p. 3873, and Sec. 8591, (8), p. 3869, giving the Interstate Commerce Commission access to the accounts and records of interstate common

carriers.

190The phrase "documentary evidence" as used in the Trade Law "means all documents, papers, and correspondence in existence at and after the passage" of the Trade Law on September 26, 1914. Trade Law, Sec. 4.

191 United States V. Louis. & Nash. R. R. (1915) 236 U. S. 318, 334.

192 Sec. 42, supra.