With respect to the third reason in support of the demurrer, little need be said. The act itself authorizes a petition for mandamus in aid of the commission.

Mandamus issues where, and only where, there is a right to demand, and a corresponding duty to perform, the act required. (19 Standard Encyclopedia of Procedure, 128.)

It was never intended that the extent of a free man's duty to perform should be determined by those who demand performance.

The demurer must be overruled, and the petition for a writ of mandamus must be refused.

THE MAYNARD COAL CO. v. FEDERAL TRADE COMMISSION.*

(Supreme Court of District of Columbia. April 19,

1920.)

COMMERCE-POWER OF CONGRESS TO DEMAND INFORMATION AS TO THE INTRASTATE COMMERCE OR PRODUCTION OF CORPORATIONS ENGAGED IN INTERSTATE COMMERCE.

That there is a radical distinction between production and commerce is clear, and where a corporation is not an instrumentality of interstate commerce, the visitorial power of Congress over corporations engaged in interstate commerce does not embrace the power to demand information, either as to their intrastate commerce or their production, not demanded for its bearing upon a possible violation of law.

FEDERAL TRADE COMMISSION--POWER UNDER SECTION 6 OF FEDERAL TRADE COMMISSION ACT TO DEMAND INFORMATION AS TO THE INTRASTATE COMMERCE OR PRODUCTION OF CORPORATIONS ENGAGED IN INTERSTATE COMMERCE.

The Federal Trade Commission has no power under section 6 of the Federal Trade Commission Act to demand information as to the intrastate commerce or the production of corporations engaged in interstate commerce, not demanded for its bearing upon a possible violation of law, since the corporations referred to in the act are, by its terms, limited to those engaged in interstate and foreign commerce, and all the powers vested in the Commission should be construed in the light of such limitation.

BAILEY, Judge.

This is an application for an injunction to restrain the Federal Trade Commission from taking steps to collect a penalty for failure on the part of the plaintiff, the Maynard Coal Co., to make certain reports called for by the Commission. The bill is supported by several affi

*The case, following the granting of a preliminary injunction as set forth in the opinion and decision herein printed, is pending trial as of this writing (Oct. 15, 1921) in the Supreme Court of the District of Columbia. The same court similarly restrained the Commission from enforcing a request made under sec. 6 in the case of Claire Furnace Co. et al. v. Federal Trade Commission (June 19, 1920, no opinion), which case is also awaiting trial.

davits of expert accountants. The defendant Commission has filed its answer, but on account of insufficient verification, it can not be treated as an affidavit. It has also filed with its answer several affidavits, which will be noticed hereafter.

The plaintiff is a corporation engaged in the mining, production, and sale of bituminous coal. It owns and operates mines in Kentucky and Ohio. Practically all of the coal mined in Kentucky and about one-half of the coal mined in Ohio is shipped to points without those States, and the remainder of that mined in Ohio to points in that State. On January 31, 1920, the defendant Commission served upon a large number of coal-mining corporations, including the plaintiff, an order requiring them to report "monthly costs of production and other data," as set out in specification accompanying the order, for each calendar month of. the year 1920 and until further notice. The information and reports required are very full and detailed as to production, sales, management, financial condition, depreciation, etc., and all to be calculated as prescribed in the specifications. The plaintiff claims, and from the affidavits filed such appears to be the fact, these reports can not be made without a large change in the plaintiff's method of bookkeeping and accounting, and at a very considerable expense.

The Commission claims that it may require these reports under the authority placed in it by the act of Congress creating the Commission, approved September 26, 1914, and that Congress has the authority to so empower the defendant under the clause known as the Commerce Clause of the Constitution of the United States.

Congress shall have power * * * to regulate commerce with foreign nations and among the several States with the Indian Tribes.

The parts of the Federal Trade Commission Act pertinent to this inquiry are substantially as follows:

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Commerce is defined, section 4, as commerce among the several States or with foreign nations, or in any Territory of the United States or with foreign nations, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation."

Section 5 provides that unfair methods of competition in commerce shall be unlawful, and empowers the Commission to take steps to prevent such unfair methods and prescribes the procedure for carrying out such purpose.

Section 6 of the act provides that the Commission shall have power

(a) To gather and compile information concerning, and to investigate from time to time the organization, business, conduct, practices, and management of any corporation engaged in com

merce, excepting banks and common carriers subject to the act to regulate commerce, and its relations to other corporations and to individuals, associations, and partnerships.

(b) To require, by general or special orders, corporations engaged in commerce, excepting banks and common carriers subject to the act to regulate commerce, or any class of them, or any of them, respectively, to file with the Commission in such form as the Commission may prescribe, annual or special, or both annual and special, reports or answers in writing to specific 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 respective corporations filing such reports or answers in writing. Such reports and answers shall be made under oath, or otherwise, as the Commission may prescribe, and shall be filed with the Commission within such reasonable time as the Commission may prescribe, unless additional time be granted in any case by the Commission.

Subsection c authorizes the Commission, when a final decree has been entered against a corporation under the antitrust acts, to investigate the manner in which the decree is being carried out.

Subsection d authorizes the Commission, upon direction of the President or either House of Congress, to investigate alleged violation of the antitrust acts.

(f) To make public from time to time such portions of the information obtained by it hereunder, except trade secrets and names of customers, as it shall deem expedient in the public interest; and to make annual and special reports to the Congress and to submit therewith recommendations for additional legislation; and to provide for the publication of its reports and decisions in such form and manner as may be best for public information and use.

(g) From time to time to classify corporations and to make rules and regulations for the purpose of carrying out the provisions of this act.

(h) To investigate, from time to time, trade conditions in and with foreign countries where associations, combinations, or practices of manufacturers, merchants, or traders, or other conditions may affect the foreign trade of the United States, and to report to Congress thereon, with such recommendations as it deems advisable.

The defendant in its answer admits "that no complaint had been filed by or before it charging the plaintiff with unfair methods of competition or with the violation of the Federal Trade Commission Act or the antitrust acts, and admits that the information sought to be secured from the plaintiff may not throw any light or have any bearing upon any possible violation of any of the acts aforesaid, but asserts that such information is sought for a lawful purpose within the scope of the powers conferred upon the defendant by section 6 of the said commission act."

The authority of Congress to enact this legislation is claimed under the power to regulate commerce above set out. The reports demanded of the plaintiff are not limited to questions connected with the shipment of coal in interstate commerce or the contracts in reference to, or the prices of coal so shipped, but relate almost entirely

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to the mining of coal and the price at which it is sold, and the financial condition and operations of the company, and all without any attempt to limit the inquiry to matters pertaining to the coal shipped in interstate commerce. In fact the Commission in its answer denies that the plaintiff has the right to segregate its business and to say that part of its business is interstate and part is intrastate, but in order to ascertain if defendant is engaged in commerce the courts will look to the entire business transactions of the plaintiff, and if any part of its business is intrastate and a part interstate and the whole business is conducted under one organization as is set forth and admitted in the plaintiff's bill, then the defendant insists that the plaintiff, considering its business as a whole, is [engaged in] interstate commerce, and the defendant has the right to ask the information sought."

And the information sought in this case is such as would apply as well to a corporation whose business was wholly intrastate as to the plaintiff. The defendant unquestionably is demanding information as to intrastate commerce and as to coal production, and frankly asserts the right to do so.

That there is a radical distinction between production and commerce is clear.

In Kidd v. Pearson, 128 U. S. 1, Mr. Justice Lamar said (p. 20):

Manufacture is transformation-the fashioning of raw materials into a change of form for use. The functions of commerce are different. The buying and selling and the transportation incidental thereto constitute commerce; and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation. The legal definition of the term, as given by this court in County of Mobile v. Kimball, 102 U. S. 691, 702. is as follows: "Commerce with foreign countries and among the States, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as purchase, sale, and exchange of commodities." If it be held that the term includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufactures, but also agriculture, horticulture, stock raising, domestic fisheries, mining-in short, every branch of human industry. For is there one of them that does not contemplate, more or less clearly, an interstate or foreign market? Does not the wheat grower of the Northwest, and the cotton planter of the South, plant, cultivate, and harvest his crop with an eye on the prices at Liverpool, New York, and Chicago? The power being vested in Congress and denied to the States, it would follow as an inevitable result that the duty would devolve on Congress to regulate all of these delicate, multiform, and-vital interests-interests which in their nature are and must be local In all the details of their successful management.

In United States v. Knight, 156 U. S. 1, page 12, Mr. Chief Justice Fuller said:

Doubtless the power to control the manufacture of a given thing involves in a certain sense the control of its disposition, but

this is a secondary and not the primary sense; and although the exercise of that power may result in bringing the operation of commerce into play, it does not control it and affects it only incidentally and indirectly. Commerce succeeds to manufacture and is not a part of it.

In Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, which involves the Antitrust Act of July 2, 1890, Mr. Justice Peckham, after holding that Congress under the power to regulate interstate commerce could regulate any agreement or combination that operated upon the sale, transportation, and delivery of an article of interstate commerce, on page 27, said:

Although the jurisdiction of Congress over commerce among the States is full and complete, it is not questioned that it has none over that which is wholly within a State, and therefore none over combinations or agreements so far as they relate to a restraint of such trade or commerce. It does not acquire any jurisdiction over that part of a combination or agreement which relates to commerce wholly within a State, by reason of the fact that the combination also covers and regulates commerce which is interstate. The latter it can regulate, while the former is sub ject alone to the jurisdiction of the State. The combination herein described covers both commerce which is wholly within a State, and also that which is interstate.

In regard to such of these defendants as might reside and carry on business in the same State where the pipe provided for in any particular contract was to be delivered, the sale, transportation, and delivery of the pipe by them under that contract would be a transaction wholly within the State, and the statute would not be applicable to them in that case. They might make any combination they chose with reference to the proposed contract, although it should happen that some nonresident of the State eventually obtained it.

In Delaware, Lackawanna & Western Railroad Co. v. Yurkonis, 238 U. S. 439, a case involving the Federal Employers' Liability Act, Mr. Justice Day, page 444, said:

The averments of the complaint as to the manner of the receiving of the injury by plaintiff showed conclusively that it did not occur in interstate commerce. The mere fact that the coal might be or was intended to be used in the conduct of interstate commerce after the same was mined and transported did not make the injury one received by the plaintiff while he was engaged in interstate commerce. The injury happening when the plaintiff was preparing to mine the coal was not an injury happening in interstate commerce, and the defendant was not then carrying on interstate commerce-facts essential to recovery under the Employers' Liability Act.

In Coe v. Errol, 116 U. S. 517, it was held that logs cut in New Hampshire and hauled to Errol, N. H., to be transported to Maine were not in interstate commerce. Mr. Justice Bradley, page 525, said:

When the products of the farms or forest are collected and brought in from the surrounding country to a town or station serving as an entrepôt for that particular region, whether on a river or a line of railroad, such products are not yet exports, nor are they in process of exportation, nor is exportation begun until they are committed to the common carrier for transportation out of the State to the State of their destination, or have started on their ultimate passage to that State. Until then it is reasonable to regard them as not only within the State of their origin, but