sue for and have injunctive relief" against threatened damage from a violation of the prohibitions of the act. These sections are entirely independent of Section 13, and it is apparently contemplated that both the Attorney General and the Federal Trade Commission could if they were so minded bring simultaneous proceedings against the same party on the same charges. Aside from its connection with the enforcement of Section 5 of the Federal Trade Commission Act and of Sections 2, 3, 7, and 8 of the Clayton Act, the Commission was given other powers and duties. They fall mainly into two categories: duties of investigation and inquiry, and duties of an advisory character in connection with the administration of the anti-trust laws. The Commission was authorized to "gather and compile information concerning" corporations engaged in commerce, and their relations to other corporations and to individuals, associations, and partnerships. Upon the direction of the President or of either House of Congress, it was authorized to investigate and report upon any alleged violations of the anti-trust acts by any corporation. And it could investigate, from time to time, trade conditions in foreign countries, "where associations, combinations, or practices of manufacturers, merchants or traders, or other conditions, may affect the foreign trade of the United States." In general, these were analogous to the powers of the old Bureau of Corporations; they were an aid to legislation and to the formation of public opinion, but had no direct relation to the enforcement of the law. More directly concerned with the anti-trust laws were certain advisory powers conferred upon the Commission. Upon application by the Attorney General, the Commission was authorized to investigate and make recommendations "for the readjustment of the business of any corporation alleged to be violating the anti-trust acts in order that the corporation may thereafter maintain its organization, management, and conduct of business in accordance with law." On its own initiative, or upon application of the Attorney General, the Commission could investigate the manner in which any final decree in an anti-trust suit was being carried out, and to report its findings and recommendations to the Attorney General. And it was provided that in any suit brought by the Attorney General under the anti-trust laws, the court, if satisfied that the Government was entitled to relief, could refer the suit to the Commission "as a master in chancery," to ascertain and report an appropriate form of decree. The report was advisory only, however; "the court may adopt or reject such report, in whole or in part, and enter such decree as the nature of the case may in its judgment require." Finally there was an apparently sweeping power, the precise scope of which will be considered in a later chapter, to require corporations (other than banks or common carriers) to file annual or special reports or answers to questions, "furnishing to the Commission such information as it may require as to the organization, business, conduct, practices, management and relation to other corporations, partnerships, and individuals" of the corporation in question. The reports must be in the form prescribed by the Commission, and may be required to be under oath. A "civil" penalty of $100 a day was imposed for failure to file such a report, and a heavy criminal penalty for the making of a false report. In two subsequent statutes the powers of the Federal Trade Commission have been in one case expanded, in the other case restricted. The Webb Export Act, approved April 10, 1918, applied to any "association" (i.e., "any corporation or combination, by contract or otherwise, of two or more persons, partnerships, or corporations") engaged solely in export trade. It was provided that nothing contained in the Sherman Law should be construed as rendering illegal such an association, or any agreement made or act done by it in the course of export trade, "provided such association, agreement, or act is not in restraint of trade within the United States, or is not in restraint of the export trade of any domestic competitor of such association," and that the association does not enter into any agreement or conspiracy to "artificially or intentionally" enhance or depress prices, or substantially lessen competition in the United States. It was also provided that Section 7 of the Clayton Act should not be construed to forbid the acquisition by a corporation of stock in corporations engaged exclusively in the export trade, "unless the effect of such acquisition or ownership may be to restrain or substantially lessen competition within the United States." To obtain the benefit of these exemptions, export associations were required to file their articles of incorporation or association with the Federal Trade Commission, and make periodic statements, and to furnish such additional information as might be called for. If the Commission believes that an association is operating in restraint of trade within the United States, or in restraint of the export trade of a domestic competitor, or that it is artificially or intentionally enhancing or depressing prices or substantially lessening competition in the United States, it can make an investigation, and "if it shall conclude that the law has been violated, it may make to such association recommendations for the readjustment of its business, in order that it may thereafter maintain its organization and management and conduct its business in accordance with law." If the recommendations are not complied with, they may be referred to the Attorney General for such action as he may deem proper. In addition, the law provides that the prohibition against "unfair methods of competition," and the remedies provided in the Federal Trade Commission Act shall extend to unfair methods "used in export trade against competitors engaged in export trade, even though the acts constituting such unfair methods are done without the territorial jurisdiction of the United States." Finally, on August 15, 1921, the Packers and Stockyards Act became law, in which wide powers were given to the Secretary of Agriculture over the operation and practices of meat packers, stockyards, and livestock commission houses. Section 406 (b) takes away from the Federal Trade Commission all power or jurisdiction so far as it relates to any matter over which jurisdiction is conferred by the Act on the Secretary of Agriculture. It will be apparent from this review of the legislation of 1914, that in so far as the proponents of supplemental anti-trust legislation had hoped to clarify the law of restraints and monopolies by substituting specific rules of conduct for general principles, they had largely failed. The draftsmen of the Federal Trade Commission Act avowedly chose a phrase embodying a general principle, while the unlawfulness of the practices somewhat inaptly described in the Clayton Act is made to depend upon the construction of a phrase at least as indefinite as the standard of the Sherman Law under the rule of reason. Both statutes were rather a victory for those who doubted the efficacy of legislative codification, and placed their reliance instead upon the development of rules and precedents by the gradual process of interpretation and decision of controversies by administrative and judicial tribunals. CHAPTER II THE COMMISSION'S PROCEDURE LL formal proceedings before the Federal Trade A issued by the Commission, and served on the person complained of, embodying the Commission's charges and setting a day for a hearing.1 No one else can initiate a complaint. An individual aggrieved by an act of unfair competition or by a practice condemned in the Clayton Act may of course bring the matter to the Commission's attention and request that a complaint issue, but he does not thereby become a formal party to the proceeding. He has no remedy if the Commission refuses to issue a complaint, and no control over the prosecution of the case if a complaint is issued. The Federal Trade Commission is authorized to file a complaint only when it "shall have reason to believe" that Section 5 of the Trade Commission Act or Section 2, 3, 7, or 8 of the Clayton Act has been or is being violated. The phrase seems to imply, not necessarily a firm conviction, but at least a provisional belief, and it is necessary to consider in the first place how this belief is to be acquired. So far as the statute is concerned, there seems to be no limitation upon the means by which the Commission may acquire "reason to believe" that the law has been violated. The information might, it would seem, be acquired by personal observation of the commissioners or from the daily press. Indeed, there seems to be no procedure by which the sufficiency of the Commission's "reason to believe" can be put in issue, either upon the adequacy of 1 Federal Trade Commission Act, Sec. 5. |