and in the Federal Trade Commission where applicable to all other character of commerce. If respondent had jurisdiction, it was by virtue of this section. [1] The contract here involved covered the arrangements made by common carriers for moving the Georgia fruit crop during the season which was to begin 23 days after entry of the order to cease and desist. The previous year the crop amounted to 7,600 cars of peaches, and it had to be, and was, moved within a few weeks. To the action here complained of, and in which the contract was in part held to be illegal, the carriers were not parties. The carrier's consideration for the contract consisted of two promises, viz, first, that it would take all its requirements of refrigerator cars from petitioner; and second, that it would pay icing charges and also three-fourths of 1 cent per mile run on the lines of the carrier, which was the usual charge (50 I. C. C. R., p. 666). Inasmuch as the exclusive clause covered the only agreement in the contract to use any cars, the destruction of that clause destroyed the mutuality of the contract and it could not be enforced. Dorsey v. Packwood, 53 U. S. 126; Tweedie Trading Co. v. Parlin & Orendorff Co., 204 Fed. 50; Dennis v. Slyfield, 117 Fed. 474; American Cotton Oil Co. v. Kirk, 68 Fed. 791, 794. Such being the effect of the finding and order, the carriers were necessary parties. U. S. v. U. S. Shoe Machinery Co., 247 U. S. 32, 60. [2] The words "where applicable to common carriers" in section 11 of the Clayton Act must mean that where the facts involve common carriers, or the business of common carriers, then the jurisdiction is solely in the Interstate Commerce Commission. The action complained of involved common carriers and tended to very greatly affect their business. Respondent was therefore without jurisdiction. The order to cease and désist is annulled and set aside. RULES OF PRACTICE BEFORE THE COMMISSION. [Adopted June 27, 1915. Amended as shown by footnotes.] may exercise else 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 Commission any other place, and may, by one or more of its members, power or by such examiners as it may designate, prosecute any inquiry necessary to its duties in any part of the United States. dered. Sessions of the Commission for hearing contested pro- Hearings as orceedings will be held as ordered by the Commission. ders and other Sessions of the Commission for the purpose of making Sessions for or 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 constitute a quorum for the transaction of business. All orders of the Commission shall be signed by the Secretary. II. COMPLAINTS. Quorum. Orders signed by Secretary. complaint. Any person, partnership, corporation, or association Who may ask may apply to the Commission to institute a proceeding in respect to any violation of law over which the Com mission has jurisdiction. cation. Such application shall be in writing, signed by or in 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 complained 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 Commission to investigate. Issuance and jurisdiction, the Commission shall issue and serve upon service of comthe party complained of a complaint stating its charges plaint. 193 Notice. Time allowed for answer. swer. 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.1 III. ANSWERS. 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 Form of 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 Size of paper, paper not more than 8 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 1 inches wide, or they may be printed in 10 or 12 point type on good unglazed paper 8 inches wide by 10 inches long, with inside margins not less than 1 inch wide. Three copies of such answer must be filed.2 margin, etc. Personal, or IV. SERVICE. 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 executive 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 prin copy, or mail. 1 The third paragraph of Rule II originally read as follows: "The Commission shall investigate the matters complained of in such application, and if upon investigation it shall appear to the Commission that there is a violation of law over which the Commission has jurisdiction, the Commission shall issue and serve upon the party complained of a complaint stating its charges 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." It was amended to its present form on Oct. 29, 1915. 2 Resolution passed by the Commission Oct. 19, 1920, calls for the filing of three copies of the answer. cipal office or place of business. The verified return by Return. same. V. INTERVENTION. cation. Any person, partnership, corporation, or association de- Form of appli siring to intervene in a contested proceeding shall make application in writing, setting out the grounds on which he or it claims to be interested. The Commission may, by order, permit intervention by counsel or in person to such extent and upon such terms as it shall deem just. Permitted by order. Size of paper, margin, etc., used Applications to intervene must be on one side of the paper only, on paper not more than 8 inches wide and on application. 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 1 inches wide, or they may be printed in 10 or 12 point type on good unglazed paper 8 inches wide by 10 inches long, with inside margins not less than 1 inch wide. VI. CONTINUANCES AND EXTENSIONS OF TIME. Commission. Continuances and extensions of time will be granted In discretion of at the discretion of the Commission. VII. WITNESSES AND SUBPOENAS. ordinarily oral. Witnesses shall be examined orally, except that for Examination good and exceptional cause for departing from the general rule the Commission may permit their testimony to be taken by deposition. Subpoenas requiring the attendance of witnesses from any place in the United States at any designated place of hearing may be issued by any member of the Commission. Subpoenas for the production of documentary evidence (unless directed to issue by a Commissioner upon his own motion) will issue only upon application in writing, which must be verified and must specify, as near as may be, the documents desired and the facts to be proved by them. Subpoenas for witnesses. Subpoenas for documentary evi production of dence. Witness fees and mileage. Examination of witnesses to pro as ceed practicable. sel. Witnesses summoned before the Commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like services in the courts of the United States. Witness fees shall be paid by the party at whose instance the witnesses appear.3 VIII. TIME FOR TAKING TESTIMONY." Upon the joining of issue in a proceeding by the Comfast as mission the examination of witnesses therein shall proceed with all reasonable diligence and with the least Notice to coun- practicable delay. Not less than five days' notice shall be given by the Commission to counsel or parties of the time and place of examination of witnesses before the Commission, a commissioner, or an examiner.5 To state grounds of objection, etc. To briefly state nature of order IX. OBJECTIONS TO EVIDENCE. Objections to the evidence before the Commission, a commissioner, or an examiner shall, in any proceeding, be in short form, stating the grounds of objections relied upon, and no transcript filed shall include argument or debate. X. MOTIONS. A motion in a proceeding by the Commission shall applied for, etc. briefly state the nature of the order applied for, and all affidavits, records, and other papers upon which the same is founded, except such as have been previously filed or served in the same proceeding, shall be filed with such motion and plainly referred to therein. By single com. missioner. XI. HEARINGS ON INVESTIGATIONS. When a matter for investigation is referred to a single commissioner for examination or report, such commissioner may conduct or hold conferences or hearings thereon, either alone or with other commissioners who may sit with him, and reasonable notice of the time and place of such hearings shall be given to parties in interest and posted. 3 This sentence added pursuant to resolution passed by the Commission Nov. 19, 1920. Rules VIII, IX, X, and XI were not a part of the original rules. They were adopted on Apr. 25, 1917. The rules now numbered XIII, XIV, XV, and XVI were originally numbered VIII, IX, X, and XI. 5 The sentence originally read: "Not less than five nor more than ten days' notice," etc. It was amended to its present form by resolution passed by the Commission Dec. 9, 1921. |