(40 Sup.Ct.) A third witness, Manuel Ortin, a retired | petitioner wrote the Commissioner that Mibusiness man, gave similar testimony, but it is not so definite and circumstantial as that of the others and need not be detailed. The government inspector to whom the case in this preliminary stage was referred, wrote the Commissioner of Immigration at San Francisco that the testimony of petitioner, of his alleged brother, his mother and three credible white witnesses had been taken; that the petitioner gave his testimony mostly in English, presented a good appearance, and "tells his story in a straightforward manner in a way to convince one that he is telling the truth," and that "the three white witnesses are representative men of this town and would have no motive in misstating the facts." He concluded with the statement that in his mind there was no doubt that the Chinaman named Kwock Tuck Lee (claimed by applicant to be his father) had lived in Pacific Grove (the Chinatown of Monterey), and was a registered voter there; that he was married and had several children and that the testimony seemed to prove that the petitioner was a member of his family. He added that a sister of the boy lived at a given number in Chicago and suggested that her testimony should be taken. This sister's testimony was taken, as recommended, and then the inspector reported to the Commissioner of Immigration that her testimony did not vary in the main from that of the mother or brother of the petitioner; that "the white witnesses, Judge Michaelis, and chief of the fire department and Wells Fargo agent, and retired grocer, Mr. Ortin, are men of standing in this town" and that he had no reason to doubt their testimony. He added that, tak chaelis, Pugh, and Ortin had told him that when they were examined at San Francisco they were confronted with the petitioner and that they recognized him, that he recognized them, and that the examining inspector was present and asked a number of questions, which were answered, and calls this to the attention of the Commissioner "as it may have been an oversight on the part of the official stenographer in recording everything said and done at the hearing of the case." On the same date affidavits by Michaelis, Pugh and Ortin were filed, in each of which, after referring to his examination at San Francisco, the affiant says in substance, as Michaelis does in form, that "after being questioned by the inspector the afliant was confronted with Kwock Jan Fat who met him while the inspector was present and that said inspector *heard everything said between affiant and Kwock Jan Fat;" and that affiant then told the inspector that the petitioner was the son of Tuck Lee, that he had known him from infancy, and that he was a native of Monterey. $463 To this letter of counsel for petitioner an Acting Commissioner replied, saying: "With regard to the identification of the applicant by Messrs. Michaelis, Pugh and Ortin, you are advised that these witnesses were confronted with the applicant with the result that said witnesses mutually recognized and identihad known as Kwock Jan Fat, and the applified the applicant as the person whom they cant was equally prompt in recognizing said witnesses. While I was advised of this incident and gave it full consideration in arriving at my decision, it was not made of record in connection with the statements taken from the ing the testimony as a whole, "he *believed witnesses. A copy of this letter will be placed the applicant made a good showing and with the record as evidence to the fact that recommended favorable action." On this there was mutual recognition between said witrecord the application was approved and the available for the consideration of the Secrenesses and the applicant which will thus be young man went to China. *462 tary on appeal." portant witnesses and their examination in his presence by the inspector was placed before the Secretary of Labor, and apparently there was no record whatever of either before the Commissioner of Immigration when he decided the case. When the petitioner returned from China This excerpt from the letter of an Acting and the investigation was renewed Michaelis, Commissioner (the decision was rendered by Ortin, and another important white witness, the Commissioner personally) is the only form Pugh, were examined at San Francisco by an in which the facts and circumstances of the inspector. Michaelis and Ortin testified sub-recognition of the petitioner by these imstantially as they had done a year before, and Pugh, also a business man of Monterey, gave similar testimony and definitely identified the petitioner as the son of Kwock Tuck Lee. The examination of these witnesses, by question and answer, was taken down and is in the record, but no reference whatever was made to the fact that the petitioner was brought into their presence to test their recognition of him and his recognition of them, or of any examination in his presence. The testimony was in this form when it was sent to the Commissioner of Immigration for his consideration and decision, and, acting upon it, on September 6, 1917, he denied the petitioner admission to the country. After certainly as dependable as any who were this decision, on September 12th, counsel for called. All they had said with respect to the [3] Comment cannot add to the impression which this plain statement of facts should make upon every candid mind. Here was testimony being taken which was to become the basis for decision by men who must depend wholly upon the report of what was said and done by the witnesses. The men examined were important, intelligent and very *464 United States, within Act July 1, 1862, § 2, granting a right of way to a railroad where it passed over public lands. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Public Land.] identity and nativity of the petitioner when, agreed to grant possession and title to specified his photograph was exhibited to them was land, and the treaty of 1861, providing for alcarefully reported, but when their knowledge lotments in severalty to members of the tribe, where allotments had not been made until after of him and their acquaintance with him was put to the final test of having him brought 1862, such lands were "public lands" of the before them (he had then been in China for a year), nothing whatever was recorded of what they said and did. Very certainly this must be regarded as such an important part of the testimony of these most important witnesses that it may well have been of such character as to prove sufficient to determine the result in a case even much stronger against a claim of United States citizenship than was made in this record against the claim of petitioner, and a report which suppressed or omitted it was not a fair report and a hearing based upon it was not a fair hearing within the definition of the cases cited. [4] The acts of Congress give great power to the Secretary of Labor over Chinese immigrants and persons of Chinese descent. It is a power to be administered, not arbitrarily and secretly, but fairly and openly, under the restraints of the tradition and principles of free government applicable where the fundamental rights of men are involved, regardless of their origin or race. It is the province of the courts, in proceedings for review, within the limits amply defined in the cases cited, to prevent abuse of this extraordinary power, and this is possible only when a full record is preserved of the essentials on which the executive officers proceed to judgment. For failure to preserve such a record for the information, not less of the Commissioner of Immigration and of the Secretary of Labor than for the courts, the judgment in this case must be reversed. It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country. #465 *The practice indicated in Chin Yow v. United States, 208 U. S. 8, 28 Sup. Ct. 201, 52 L. Ed. 369, is approved and adopted, the judgment of the Circuit Court of Appeals is reversed, and the cause is remanded to the District Court for trial of the merits. Judgment reversed. Writ of habeas corpus to issue. (253 U. S. 442) NADEAU et al. v. UNION PAC. R. CO. (Argued Jan. 9 and 12, 1920. Decided June 7, 1920.) No. 119. 1. PUBLIC LANDS 92-INDIAN LANDS HELD "PUBLIC LANDS" WITHIN ACT GRANTING RAILROAD RIGHT OF WAY. Under the treaty of 1846 with the Pottawatomie Indians, by which the United States 2. PUBLIC LANDS 92—Grant oF RAILROAD RIGHT OF WAY TO RECEIVE LIBERAL CON- A grant of a right of way through the public lands to a railroad company stands upon a different footing from private grants, and is not to be regarded as bestowing a bounty on the railroad, and should receive a liberal construction. 3. INDIANS 10-LANDS GRANTED TO TRIBE UNTIL ALLOTTED HELD UNDER ORDINARY INDIAN CLAIM. Under the treaty of 1846 with the Pot- LEGISLATE RESPECTING LANDS HELD UNDER Congress, as guardian for the Indians, has power to legislate in respect of lands held by an Indian tribe under the ordinary Indian right of possession and occupancy, with the fee in the United States. 5. PUBLIC LANDS 92-Grant of righT OF WAY EFFECTIVE AS OF DATE OF ACT. The grant by Act July 1, 1862, § 2, of a railroad right of way through the public lands was present and absolute, and upon identification of the route took effect as of the date of the act, and all thereafter acquiring public lands took subject to such granted right. Mr. Justice Clarke dissenting. In Error to the District Court of the United States for the District of Kansas. Action by the Union Pacific Railroad Company against Joseph E. Nadeau and others. Judgment for plaintiff, and defendants bring error. Affirmed. *443 *Mr. A. E. Crane, of Topeka, Kan., for plaintiffs in error. Messrs. R. W. Blair, of Topeka, Kan., and N. H. Loomis, of Omaha, Neb., for defendant in error. Mr. Justice MCREYNOLDS delivered the opinion of the Court. Defendant in error brought this action to obtain possession of certain lands, formerly For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) part of the Pottawatomie Indian Reserva- [ the Pottawatomie Reservation-so far as aption and now in Pottawatomie county, Kan., pears, without protest or objection. which lie in the margins of the 400-foot strip claimed by it as legal successor to the original grantee. Counsel for plaintiffs in error well say but one question is presented for our determination: "Were the lands involved in this action 'public lands' within the meaning of the acts of Congress dated July 1, 1862, and July 2, 1864, granting a right of way to the Leavenworth, Pawnee and Western Railroad Company and its successors." The cause was tried by the court below upon pleadings and agreed statement of facts; and a memorandum states the reasons for judgment favorable to the railroad. [1] By the act of July 1, 1862 (12 Stat. 489, c. 120, § 2), Congress granted a right of way "two hundred feet in width on each side of said railroad where it may pass over the public lands" (Stuart v. Union Pacific Railroad Company, 227 U. S. 342, 345, 33 Sup. Ct. 338, 57 L. Ed. 535), and declared: "The United States shall extinguish as rapidly as may be the Indian titles to all lands falling under the operation of this act and required for the said right of way and grants hereinafter made." *444 Some amendments added by the act of July 3, 1866 (14 Stat. 79) are not specially important here. It is said that under treaties of 1846 and 1861 with the United States (9 Stat. 853; 12 Stat. 1191) the Pottawatomie Reservation was no part of the "public lands"; moreover that Congress lacked power to grant rights therein to a railroad company. By the treaty of 1846 (article 4) the United States agreed to grant to the Pottawatomie Indians possession and title to a district 30 miles square, on the Kansas river, and to guarantee full and complete possession thereof "as their land and home forever." 9 Stat. 854. *445 In 1861 the same parties entered into another treaty *which stipulated (articles 1 and 2) that land within the reservation designated by the treaty of 1846 should be allotted thereafter in severalty to tribal members who had acquired customs of the whites, and desired separate tracts; that the United States' agent should take an accurate census showing those desiring to hold in severalty and those desiring to hold in common, and "thereupon there shall be assigned, under the direction of the Commissioner of Indian Affairs," specified amounts of land "to include, in every case, as far as practicable, to each family their improvements and a reasonable portion of timber, to be selected according to the legal subdivision of survey." "When such assignments shall have been completed, certificates shall be issued by the Commissioner of Indian Affairs for the tracts assigned in severalty, specifying the names of the individuals to whom they have been assigned, respectively, and that said tracts are set apart for the perpetual and exclusive use and benefit of such assignees and their heirs." Article 5, treaty of 1861, offered certain privileges to the railroad company which were never accepted; the road was not constructed as provided by the treaty, but under the act of Congress. [2] In Kindred v. Union Pacific Railroad Co., 225 U. S. 582, 596, 32 Sup. Ct. 780, 56 Subsequent to July 1, 1862, a census was L. Ed. 1216, lands in the Delaware Diminish- duly taken; commissioners, appointed Janed Indian Reservation-east of the Pottawat-uary 16, 1863, made allotments, and in Noomies were declared "public lands" within vember, 1863, submitted their report. The the intendment of the right of way clause, Secretary of the Interior, December 12, 1864, act of 1862, although then actually occupied approved allotments for the lands now inby individual members of the Tribe under volved to tribal members having improveassignments executed as provided by treaty.ments thereon before the treaty of 1861, and That case renders clear the definite purpose of Congress to treat Indian Reservations, subject to its control, as public lands within the right of way provision. This provision is not to be regarded as bestowing bounty on the railroad; it stands upon a somewhat different footing from private grants, and should receive liberal construction favorable to the purposes in view. United States v. Denver & Rio Grande Railway Co., 150 U. S. 1, 8, 14, 14 Sup. Ct. 11, 37 L. Ed. 975. Whether Congress had power to make grants in respect of the lands here involved must be determined upon a consideration of their history. November 14, 1862, the railroad company accepted the act of 1862, and during 1865 and 1866 duly constructed its road through who had continued to live there. Patents thereto issued at different dates, the earliest being June 14, 1867, without expressly reserving a right of way for the railroad. Plaintiffs in error claim through mesne conveyances from those who received such allotments and patents. [3, 4] It seems plain that, at least, until *446 actually allotted in severalty (1864) the lands were but part of the domain held by the tribe under the ordinary Indian claim-the right of possession and occupancy-with fee in the United States. Beecher v. Wetherby, 95 U. S. 517, 525, 24 L. Ed. 440. The power of Congress, as guardian for the Indians, to legislate in respect of such lands is settled. Cherokee Nation v. Southern Kansas Rail . way Co., 135 U. S. 641, 653, 10 Sup. Ct.od of competition, under Act Sept. 26, 1914, § 965, 34 L. Ed. 295; United States v. Rowell 5 (Comp. St. § 8836e), should follow the comet al., 243 U. S. 464, 468, 37 Sup. Ct. 425, plaint; otherwise it is improvident, and, when 61 L. Ed. 848; United States v. Chase, 245 challenged, will be annulled by the court. U. S. 89, 38 Sup. Ct. 24, 62 L. Ed. 168. 3. TRADE-MARKS AND TRADE-NAMES 801⁄2, New, vol. 8A Key-No. Series-WHAT CONSTITUTES UNFAIR METHODS OF COMPETITION A QUESTION FOR THE COURT. [5] The grant of the right of way in 1862, was present and absolute and upon identification of the route, took effect as of the date of the act. All who thereafter acquired public lands took subject to such granted right. Railroad Co. v. Baldwin, 103 U. S. 426, 430, 26 L. Ed. 578. Although parties to the treaty of 1861 contemplated future allotments, it made none. No individual tion. title to any portion of the land arose until al-4. TRADE-MARKS AND TRADE-NAMES lotted, and none was allotted until after 1862. Under Act Sept. 26, 1914, § 5 (Comp. St. $8836e), declaring unfair methods of competition in commerce unlawful, it is for the courts, and not for the Federal Trade Commission, ultimately to determine as matter of law what constitutes unfair methods of competi Any claim by plaintiffs in error based upon adverse occupancy or possession is precluded by Northern Pacific Railroad Co. v. Smith, 171 U. S. 260, 18 Sup. Ct. 794, 43 L. Ed. 157; Northern Pacific Railroad Co. v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. Ed. 1044; Northern Pacific Railroad Co. v. Ely, 197 U. S. 1, 25 Sup. Ct. 302, 49 L. Ed. €39; Kindred v. Union Pacific Railroad Co., supra, 597 of 225 U. S., 32 Sup. Ct. 780, 56 L. Ed. 1216. 68 "UNFAIR METHODS OF COMPETITION" DO NOT INCLUDE PRACTICES NOT HERETOFORE CONDEMNED. Act Sept. 26, 1914, § 5 (Comp. St. § 8836e), declaring "unfair methods of competition" unlawful, does not apply to practices never heretofore regarded as opposed to good morals, because characterized by deception, bad faith, fraud, or oppression, or as against public policy, because of their dangerous tendency unduly to hinder competition or create monopoly. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Unfair We find no error in the judgment below, Competition.] and it is affirmed. Mr. Justice CLARKE dissents. Mr. Justice HOLMES, Mr. Justice PITNEY, and Mr. Justice BRANDEIS did not participate in consideration or decision of this case. (253 U. S. 421) 5. TRADE-MARKS AND TRADE-NAMES 80%, A complaint filed by the Federal Trade Commission under Act Sept. 26, 1914, § 5 (Comp. St. § 8836e), charging that sellers of cotton ties and bagging and their selling and distributing agents, with the purpose and ef FEDERAL TRADE COMMISSION v. GRATZ fect of discouraging and stifling competition in et al. (Argued April 20 and 21, 1920. Decided June 7, 1920.) No. 492. 1. TRADE-MARKS AND TRADE-NAMES 802, UNFAIR COMPETITION MUST BE BASED ON the sale of such bagging, had refused to sell ties, unless the purchaser would buy from them a corresponding amount of bagging, was insufficient to support an order to desist from such practice, where it did not intimate that they did not properly obtain their ties and bagging, or state the amount controlled by them, or allege that they held a monopoly of either ties or bagging, or had ability, purpose, or intent to acquire one, or allege anything justifying the conclusion that the public suffered injury, or that competitors had reasonable ground for complaint. 68 Under Act Sept. 26, 1914, § 5 (Comp. St. § 8836e), providing that, when the Federal Trade Commission has reason to believe that a 6. TRADE-MARKS AND TRADE-NAMES person, etc., has used an unfair method of MERCHANT MAY REFUSE TO SELL COTTON TIES competition, it shall formulate and serve a comAND BAGGING, EXCEPT IN CONJUNCTION. plaint, stating the charges, and after a hearing, All questions of monopoly or combination if it deems the method of competition in ques- being out of the way, a private merchant, acttion prohibited thereby, shall issue an order re-ing with entire good faith, may properly requiring the accused to cease and desist from using such method, if the complaint is plainly insufficient to show unfair competition, there is no foundation for an order to desist. 2. TRADE-MARKS AND TRADE-NAMES 802, fuse to sell, except in conjunction, such closely associated articles as steel ties used for binding bales of cotton, and jute bagging used to wrap such bales. Mr. Justice Brandeis and Mr. Justice Clarke dissenting. On Writ of Certiorari to the United States An order of the Federal Trade Commission Circuit Court of Appeals for the Second Cirto cease and desist from using a specified meth-cuit. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes N (40 Sup.Ct.) Section 5 further provides that the commission may apply to the designated Circuit Court of Appeals to enforce an order Proceeding by Anderson Gratz and anoth- poration to cease and desist from using such er, doing business as Warren, Jones & Gratz, method of competition." and others, against the Federal Trade Commission, to set aside an order of the Commission. The order was annulled by the Circuit Court of Appeals for the Second Circuit (258 Fed. 314, 169 C. C. A. 330), and the Commission brings certiorari. Affirmed. See, also, 250 U. S. 657, 40 Sup. Ct. 13, 63 L. Ed. 1193. Messrs. Huston Thompson, of Washington, D. C., Alexander C. King, of Atlanta, Ga., and Claude R. Porter, of Washington, D. C., for petitioner. "and shall certify and file with its application a transcript of the entire record in the proceeding, including all the testimony taken and the report and order of the commission. Upon such filing of the application and transcript the court shall cause notice thereof to be servtion and thereupon shall have jurisdiction of ed upon such person, partnership, or corporathe proceeding and the question determined therein, and shall have power to make and Mr. Thomas F. Magner, of Brooklyn, N. Y., enter upon the pleadings, testimony, and profor respondents. #422 *Mr. Justice McREYNOLDS delivered the opinion of the Court. By an act approved September 26, 1914 (chapter 311, 38 Stat. 717 [Comp. St. 88 8836a-8836k]), Congress made provision for the Federal Trade Commission and declared its powers. Section 4 (section 8836d) defines commerce as: ceedings set forth in such transcript a decree * * * cept that the same shall be subject to review by the Supreme Court upon certiorari as provided by section 240 of the Judicial Code. Any party required by such order of the commission to cease and desist from using such method of competition may obtain a review of such order in said Circuit Court of Appeals by filing "Commerce among the several states or with in the court a written petition praying that foreign nations, or in any territory of the the order of the commission be set aside. A United States or in the District of Columbia, copy of such petition shall be forthwith served or between any such territory and another, or upon the commission, and thereupon the combetween any such territory and any state or mission forthwith shall certify and file in the foreign nation or between the District of Co-court a transcript of the record as hereinbefore lumbia and any state or territory or foreign nation." Section 5 (section 8836e): provided. Upon the filing of the transcript the court shall have the same jurisdiction to affirm, set aside, or modify the order of the commission as in the case of an application by the commission for an *enforcement of its order, and the findings of the commission as to the facts, if supported by testimony, shall in like manner be conclusive." #424 "That unfair methods of competition in commerce are hereby declared unlawful. The commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks, and common carriers subject to the acts to regulate commerce, from using unfair methods of competition in comSections 6 and 7 (sections 8836f, 8836g) emmerce. Whenever the commission shall have power the commission to require reports and reason to believe that any such person, part- compile information concerning corporations; nership, or corporation, has been or is using to inquire concerning execution of decrees reany unfair method of competition in commerce, straining violations of the anti-trust acts; and if it shall appear to the commission that to investigate alleged violations of such acts; a proceeding by it in respect thereof would be to recommend readjustments of corporate to the interest of the public, it shall issue and business; to publish information and make serve upon such person, partnership, or corporation a complaint stating its charges in that reports to Congress; to classify corporations respect, and containing a notice of a hearing and make rules and regulations; to investiupon a day and at a place therein fixed at least gate trade conditions; to act, under orders thirty days after the service of said complaint. of the court, as a master in chancery in cerThe person, partnership, or corporation so com-tain designated circumstances, etc. plained of shall have the right to appear at the Undertaking to proceed under section 5, place and time so fixed and show cause why June 4, 1917, the commission issued a coman order should not be entered by the complaint containing two counts against respondmission requiring such person, partnership, or corporation to cease and desist from the viola- ents. The first related to unfair methods of tion of the law so charged in said complaint. competition, and the second charged violation If upon such hearing the commission of section 3 of the Clayton Act, approved Ocshall be of the opinion that the method of com- tober 15, 1914 (chapter 323, 38 Stat. 730 [Comp. St. § 8835c]). Respondents denied both charges. After taking much testimony the commission held there was no evidence to support the second count; but it ruled that respondents had practiced unfair competition and ordered that they *423 petition in question is prohibited by this act, it shall make a report in writing in which it shall state its findings as to the facts, and shall issue and cause to be served on such person, partnership, or corporation an order requiring such person, partnership, or cor |