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tribute the periodicals of other publishers. And that in these ways the most efficient established channels of distribution have been closed to competitors, competition lessened, and a tendency to monopoly established.
The present record clearly discloses the development of respondent's business, how it originated, the plan of selling through school boys, the necessity for exclusive agents to train and superintend these boys and to devote their time and attention to promoting sales, and also contracts with 1,535 such agents. The Commission's report suggests no objection as to 1,088 of these representatives who, prior to their contracts, had not been engaged in selling and distributing newspapers or periodicals for other publishers. There is no sufficient evidence to show that respondent intended to practice unfair methods or unduly to suppress competition or to acquire monopoly, unless this reasonably may be inferred from making and enforcing the second or substituted agreement with many important wholesale dealers throughout the country.
Judged by its terms, we thing this contract is one of agency, not of sale upon condition, and the record reveals no surrounding circumstances sufficient to give it a different character. This, of course, disposes of the charges under the Clayton Act.
The engagement of competent agents obligated to devote their time and attention to developing the principal's business, to the exclusion of all others, where nothing else appears, has long been recognized as proper and unobjectionable practice. The evidence clearly shows that respondent's agency contracts were made without unlawful motive and in the orderly course of an expanding business. It does not necessarily follow because many agents had been general distributors, that their appointment and limitation amounted to unfair trade practice. And such practice can not reasonably be in ferred from the other disclosed circumstances. Having regard to the undisputed facts, the reasons advanced to vindicate the general plan are sufficient.
Effective competition requires that traders have large freedom of action when conducting their own affairs. Success alone does not show reprehensible methods, although it may increase or render insuperable the difficulties which rivals must face. The mere selection of competent, successful, and exclusive representatives in the orderly course of development can give no just cause for complaint, and, when standing alone, certainly affords no ground for condemnation under the statute.
In the present cause the Commission has not found all the material facts, but considering those which it has found and the necessary effect of the evidence, the order to desist is clearly wrong and should be set aside without further delay.
Mr. Chief Justice Taft, doubting.
The sentence in the majority opinion, which makes me express doubt, is that discussing the duty of the court in reviewing the action of the Federal Trade Commission when it finds that there are material facts not reported by the Commission. The opinion says:
“ If there be substantial evidence relating to such facts from which different conclusions reasonably may be drawn, the matter may be and ordinarily, we think, should be remanded to the Commission—the primary fact-finding body-with directions to make additional findings, but if from all the circumstances, it clearly appears that in the interest of justice the controversy should be decided without delay, the court has full power under the statute so to do.”
If this means that where it clearly appears that there is no substantial evidence to support additional findings necessary to justify the order of the Commission complained of, the court need not remand the case for further findings, I concur in it. It is because it may bear the construction that the court has discretion to sum up the evidence pro and con on issues undecided by the. Commission and make itself the fact-finding body, that I venture with deference to question its wisdom and correct
I agree that in the further discussion of the evidence, the reasoning of the opinion of the court would seem to justify the view that it does not find in the evidence sufficient to support additional findings by the Commission justifying its order. I only register this doubt because I think it of high importance that we should scrupulously comply with the evident intention of Congress that the Federal Trade Commission be made the fact-finding body and that the court should in its rulings preserve the board's character as such and not interject its views of the facts where there is any conflict in the evidence.
I am authorized to say that Mr. Justice Brandeis concurs with me in this.
RULES OF PRACTICE BEFORE THE COMMISSION.
(Adopted June 17, 1915. As amended to Jan. 14, 1924.)
The principal office of the Commission at Washington, Principal office. D. C., is open each business day from 9 a. m. to 4.30 p. m. The Commission may meet and exercise all its powers
at any other place, and may, by one or more of its members, power elsewhere. or by such examiners as it may designate, prosecute any inquiry necessary to its duties in any part of the United States.
Sessions of the Commission for hearing contested pro- de Hecarings as orceedings will be held as ordered by the Commission.
Sessions of the Commission for the purpose of making de sessions for her orders and for the transaction of other business, unless business. otherwise ordered, will be held at the office of the Commission at Washington, D. C., on each business day at 10.30 a. m.
Three members of the Commission shall Quorum. constitute a quorum for the transaction of business.
. All orders of the Commission shall be signed by the Orders signed
by Secretary. Secretary.
II. COMPLAINTS. Any person, partnership, corporation, or association Who may ask
complaint. may apply to the Commission to institute a proceeding in respect to any violation of law over which the Commission has jurisdiction.
Such application shall be in writing, signed by or in a Form of applibehalf of the applicant, and shall contain a short and simple statement of the facts constituting the alleged violation of law and the name and address of the applicant and of the party complained of. The Commission shall investigate the matters com
to investigate. plained of in such application, and if upon investigation the Commission shall have reason to believe that there is a violation of law over which the Commission has jurisdiction, the Commission shall issue and serve upon Issuance and the party complained of a complaint stating its charges plaint. and containing a notice of a hearing upon a day and at
a place therein fixed, at least 40 days after the service of said complaint.
Time allowed for answer.
Within 30 days from the service of the complaint, unless such time be extended by order of the Commission,
the defendant shall file with the Commission an answer an- to the complaint. Such answer shall contain a short and
simple statement of the facts which constitute the ground of defense. It shall specifically admit or deny or explain each of the facts alleged in the complaint, unless the defendant is without knowledge, in which case he shall so state, such statement operating as a denial. Answers in typewriting must be on one side of the paper only, on paper not more than 81 inches wide and not more than 11 inches long, and weighing not less than 16 pounds to the ream, folio base, 17 by 22 inches, with left-hand margin not less than 11 inches wide, or they may be printed in 10 or 12 point type on good unglazed paper 8 inches wide by 101 inches long, with inside margins not less than 1 inch wide. Three copies of such answers must be furnished.
Size of paper, margin, etc.
Complaints, orders, and other processes of the Commission may be served by anyone duly authorized by the Commission, either (a) by delivering a copy thereof to the person to be served, or to a member of the partnership to be served, or to the president, secretary, or other execu
tive officer, or a director, of the corporation or associaBy leaving tion to be served; or (b) by leaving a copy thereof at the
principal office or place of business of such person, partBy registered nership, corporation, or association; or (c) by registering
and mailing a copy thereof addressed to such person, partnership, corporation, or association at his or its principal office or place of business. The verified return by the person so serving said complaint, order, or other process, setting forth the manner of said service, shall be proof of the same, and the return post-office receipt for said complaint, order, or other process, registered and mailed as aforesaid, shall be proof of the service of the