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(40 Sup.Ct.)

The authoritative dictionaries, general and law, and the decided cases, agree, that "concurrent" means "joint and equal authority," "running together, having the same authority," and therefore the grant of concurrent power to the Congress and the states should

it was applied with emphasis in 1840 in [tracts and agreements between states, which Holmes v. Jennison, 14 Pet. 540, 570, 10 L. without it would be unconstitutional and The Wilson Act of 1890 (Comp. St. Ed. 579; and in the recent case of Knowlton void. v. Moore, 178 U. S. 41, 20 Sup. Ct. 747, 44 L. § 8738), the Webb-Kenyon Act of 1913 (Comp. Ed. 969, it is referred to as an elementary St. § 8739), and the Reed Amendment of canon of constitutional construction. 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 8739a, 10387a-10387c), are familiar examples of co-operative legislation on the Other insubject of intoxicating liquors. stances could readily be supplied. When to this we add that the Volstead Act is obviously in very large part a compilation from the prohibition codes of various states and is supposed to contain what is best in each of them, there is every reason to believe that if concurrent legislation were insisted upon, the act would be promptly approved by the Legislatures of many of the states and would thereby become the concurrent law of the state and nation throughout a large part of the Union.

*408

give to each equal, the same, *authority to
enforce the Amendment by appropriate legis-
lation. But the conclusions of the Court
from which I dissent, by rendering the Vol-
stead Act of Congress paramount to state
laws, necessarily deprive the states of all
power to enact legislation in conflict with
it, and construe the Amendment precisely
as if the word "concurrent" were not in it.
The power of Congress is rendered as su-
preme as if the grant to enforce the Amend-be
ment had been to it alone, as it is in the
Thirteenth, Fourteenth and Fifteenth Amend-
ments and as it was in one proposed form
of the Eighteenth Amendment which was

rejected by Congress (Cong. Rec. July 30,
1917, p. 5548, and December 17, 1917, P.
469).

Such a construction should not be given the Amendment if it can reasonably be avoided, as it very clearly may be, I think, with a resultant giving of a large and beneficent effect to the grant, as it is written. Giving

to the word "concurrent" its usual and authoritative meaning would result in congressional legislation under this grant of power being effective within the boundaries of any state only when concurred in by action of Congress and of such state, which, however, could readily be accomplished by the approval by either of the legislation of the other or by the adoption of identical legislation by both. Such legislation would be concurrent in fact and in law, and could be enforced by the courts and officers of either the nation or the state, thereby insuring a more general and satisfactory observance of it than could possibly be obtained by the federal authorities alone. It would, to a great extent, relieve Congress of the burden and the general government of the odium to be derived from the antagonism which would certainly spring from enforcing within states federal laws which must touch the daily life of the people very intimately and often very irritatingly.

*409

*Such co-operation in legislation is not unfamiliar to our Constitution or in our practical experience.

By section 10 of article 1 of the Constitution of the United States the states are deprived of power to do many things without the consent of Congress, and that consent has frequently been given, especially to con

Under this construction, which I think should be given the Amendment, there would large scope also for its operation even in states which might refuse to concur in congressional legislation for its enforcement. In nry judgment the law in such a state would be as if no special grant of concurrent power for the enforcement of the first section had been made in the second section, but, nevertheless, the first section, prohibiting the manufacture, sale, transportation, importation or exportation, of intoxicating liquors for beverage purposes, would be the supreme law of the land within the nonconcurring states and they would be powerless to license, tax, or otherwise recognize as lawful anything violating that section, so that any state law in form attempting such recognition would be unconstitutional and void. Congress would have full power under the interstate com

*410

merce clause, and it would be its duty, to
prevent the movement of such liquor for bev-
erage purposes into or out of such a state
and the plenary police power over the sub-
ject, so firmly established in the states before
the Eighteenth Amendment was adopted,
would continue for use in the restricted field
which the first section of the Amendment
the presumption
leaves unoccupied-and
must always be indulged that a state will
observe and not defy the requirements of
the national Constitution.

Doubtless such a construction as I am pro-
posing would not satisfy the views of extreme
advocates of prohibition or of its opponents,
but in my judgment it is required by the
salutary rule of constitutional construction
referred to, the importance of which cannot
It is intended to prevent
be overstated.
courts from rewriting the Constitution in
a form in which judges think it should have
been written instead of giving effect to the
language actually used in it, and very cer-
tainly departures from it will return to
It does not re-
plague the authors of them.

quire the eye of a seer to see contention at | Fourteenth Amendment which would have the bar of this Court against liberal, para- radically changed the whole constitutional mount, congressional definition of intoxicat- theory of the relations of our state and ing liquors as strenuous and determined as federal governments by transferring to the that which we have witnessed over the strict general government that police power, definition of the Volstead Act. through the exercise of which the people of the various states theretofore regulated their local affairs in conformity with the widely differing standards of life, of conduct and of duty which must necessarily prevail in a country of so great extent as ours, with its varieties of climate, of industry and of habits of the people. But this Court, resisting the pressure of the passing hour, maintained the integrity of state control over local affairs to the extent that it had not been deliberately and clearly surrendered to the general government, in a number of decisions which came to command the confidence even of the generation active when they were rendered and which have been regarded by our succeeding generation as sound and wise and highly fortunate for our country.

With respect to the eleventh conclusion of the Court, it is enough to say that it approves as valid a definition of liquor as intoxicating which is expressly admitted not to be intoxicating in each of the cases in which it is considered. This is deemed warranted, I suppose, as legislation appropriate to the enforcement of the first section and precedent is found for it in prohibition legislation by states. But I cannot agree that the prohibition of the manufacture, sale, etc., of intoxicating liquors in the first section of the Eighteenth Amendment gives that plenary power over the subject which the Legislatures of the states derive from the people or which may be derived from the war

*411

powers of the Constitution. Believing, as I do, that the scope of the first section cannot

constitutionally be enlarged by the language contained in the second section, I dissent

from this conclusion of the Court.

In the Slaughterhouse Cases, 16 Wall 36, 21 L. Ed. 394, and other cases, this Court was urged to give a construction to the

The cases now before us seem to me to

again present questions of like character to, and of not less importance than, those which were presented in those great cases, and I regret profoundly that I cannot share in the disposition which the majority of my Associates think should be made of them.

END OF CASES IN VOL. 40.

CASES CITED

Page

Page

Abbott Bros. v. U. S., 242 Fed. 751, 155 C. C. A. 339

292

Abraham v. Ordway, 158 U. S. 416, 420, 15 Sup.
Ct. 894, 39 L. Ed. 1036..
Abrams v. U. S., 250 U. S. 616, 619, 40 Sup. Ct.
17, 63 L. Ed. 1173...

127

.211, 263

Adair v. U. S., 208 U. S. 161, 28 Sup. Ct. 277,
52 L. Ed. 436, 13 Ann. Cas. 764.
Adams v. Baker, 24 Nev. 375, 55 Pac. 362..
Adams v. Milwaukee, 228 U. S. 572, 584, 33 Sup.
Ct. 610, 57 L. Ed. 971..

478

325

151

Atchison, etc., R. Co. v. O'Connor, 223 U. S. 280, 286, 287, 32 Sup. Ct. 216, 56 L. Ed. 436, Ann. Cas. 1913C, 1050...

.341, 422

Atchison, T. & S. F. R. Co. v. Sowers, 213 U.
S. 55, 29 Sup. Ct. 397, 53 L. Ed. 695.
Atchison, T. & S. F. R. Co. v. Spiller, 246 Fed.
1, 23, 158 C. C. A. 227; 249 Fed. 677, 161 C. C.
A. 587...
.468, 472
Atchison, T. & S. F. R. Co. v. U. S., 225 U. S.
Ed.
640, 649, 650, 32 Sup. Ct. 702, 56 L.
1236

372

Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575..

183

Adams v. Tanner, 244 U. S. 590, 37 Sup. Ct. 662,
61 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas.
1917D, 973...
Adams Exp. Co. v. Croninger, 226 U. S.
Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A.
257

478

491, 33

(N. S.)

.68, 163, 166 348 Atlantic Coast Line R. Co. v. Georgia, 234 U. S. 37 280, 34 Sup. Ct. 829, 58 L. Ed. 1312.. Atlantic Coast Line R. Co. v. Mims, 242 U. S. 532, 37 Sup. Ct. 188, 61 L. Ed. 476.. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 59, 61, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157.

254

65

.70, 505

Adams Exp. Co. v. Ohio, 165 U. S. 194,
Sup. Ct. 305, 41 L. Ed. 683; 166 U. S.
Sup. Ct. 604, 41 L. Ed. 965.
Addyston Pipe Co. v. U. S., 175 U. S. 211, 238, 20
Sup. Ct. 96, 44 L. Ed. 136...

227, 17

[blocks in formation]

185, 17

560

Auffmordt v. Hedden, 137 U. S. 310, 11 Sup. Ct. 103, 34 L. Ed. 674..

376

302

Aultman & Taylor Co. v. Syme, 79 Fed. 238,
C. C. A. 539..

24

404

Adirondack R. Co. v. New York, 176 U. S. 335,
349, 20 Sup. Ct. 460, 44 L. Ed. 492..
Etna Life Ins. Co. v. Ward, 140 U. S. 76, 91, 11
Sup. Ct. 720, 35 L. Ed. 371...
Aktieselskabet Korn-Og Foderstof Kompagniet
v. Rederiaktiebolaget Atlanten, D. C., 232 Fed.
403; 250 Fed. 935, 163 C. C. A. 185, Ann. Cas.
1918E, 491..

63

Austin v. The Aldermen, 7 Wall. 694, 699, 19 L.
Ed. 224..

554

87

Ayres, In re, 123 U. S. 443, 506, 8 Sup. Ct. 164, 31 L. Ed. 216..

370

333

Alabama Great Southern R. Co. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147....

[blocks in formation]

255

Alaska Pac. Fisheries v. Alaska, 249 U. S. 53, 61,
39 Sup. Ct. 208, 63 L. Ed. 474.
Alaska S. S. Co. v. U. S. (D. C.) 259 Fed. 713...
Allen v. St. Louis, I. M. & S. R. Co., 230 U. S.
553, 33 Sup. Ct. 1030, 57 L. Ed. 1625.
.40, 73
Allgeyer v. Louisiana, 165 U. S. 578, 591, 17 Sup.
Ct. 427, 41 L. Ed. 832.

[blocks in formation]

Backus v. Fort Street Union Depot Co., 169 U.
S. 557, 568, 569, 18 Sup. Ct. 445, 42 L. Ed.
853.
..63, 64, 304
Bacon v. Texas, 163 U. S. 207, 216, 16 Sup. Ct.
1023, 41 L. Ed. 132.

583
Badger v. Badger, 2 Wall. 87, 95, 17 L. Ed. 836... 127
Baer v. U. S., 249 U. S. 47, 39 Sup. Ct. 247, 63
L. Ed. 470..

366

American Diamond Drill Co. v. Sullivan Mach.
Co. (C. C.) 32 Fed. 552; 131 U. S. 428, 9 Sup.
Ct. 794, 33 L. Ed. 217..
American Exp. Co. v. Caldwell, 244 U. S. 617, 37
Sup. Ct. 656, 61 L. Ed. 1352..
American Mfg. Co. v. St. Louis, 250 U. S. 459,
463, 39 Sup. Ct. 522, 63 L. Ed. 1084..
American School of Magnetic Healing v. Mc-
Annulty, 187 U. S. 94, 104, 23 Sup. Ct. 33, 37,
47 L. Ed. 90.
American Security & Trust Co. v. District of Co-
lumbia, 224 U. S. 491, 32 Sup. Ct. 553, 56 L. Ed.
856

.18, 21
Baer Bros. Mercantile Co. v. Denver & R. G.
R. Co., 233 U. S. 479, 34 Sup. Ct. 641, 58 L.
Ed. 1055..

548

513 Baez, Ex parte, 177 U. S. 378, 20 Sup. Ct. 673, 44 539 L. Ed. 813.

150

.225, 226

Bagdon v. Philadelphia & Reading Coal & Iron Co., 217 N. Y. 432, 111 N. E. 1075, L. R. A. 1916F, 407, Ann. Cas. 1918A, 389.

173

Bailey v. Railroad Co., 22 Wall. 604, 22 L. Ed. 840

203

215

Bailey v. Western Union Tel. Co., 97 Kan. 619,

156 Pac. 716...

71

518

Baker v. Baker, Eccles & Co., 242 U. S. 394, 401, 37 Sup. Ct. 152, 61 L. Ed. 386..

7

[blocks in formation]

Balbas v. U. S., 257 Fed. 17, 168 C. C. A. 229.. Baldwin v. Franks, 120 U. S. 678, 683, 7 Sup. Ct. 656, 657, 32 L. Ed. 766..

266

384

Amy v. Watertown No. 1, 130 U. S. 301, 9 Sup.
Ct. 530, 32 L. Ed. 946..

443

Andrews v. Andrews, 188 U. S. 14, 33, 23 Sup.
Ct. 237, 47 L. Ed. 366...

Ball v. Halsell, 161 U. S. 72, 82, 84, 16 Sup. Ct.
554, 40 L. Ed. 622..
.475, 476, 478
Ball v. Wm. Hunt & Sons, Ltd. [1912] App. Cas.
496

46

383

Anheuser-Busch Ass'n v. U. S., 207 U. S. 556, 28
Sup. Ct. 204, 52 L. Ed. 336..

286

Anhlo-American Provision Co. v. Davis Provision
Co., No. 1, 191 U. S. 373, 24 Sup. Ct. 92, 48 L.
Ed. 225.

Ball Engineering Co. v. J. G. White & Co., 250
U. S. 46, 54-57, 39 Sup. Ct. 393, 63 L. Ed.
835..
.172, 520

371

Ballew v. U. S., 160 U. S. 187, 197, 16 Sup. Ct. 263, 40 L. Ed. 388..

446

Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419...... 330
Antoni v. Greenhow, 107 U. S. 769, 774, 2 Sup. Ct.
91, 27 L. Ed. 468.
Appleby v. Buffalo, 221 U. S. 524, 529, 31 Sup.. Ct.
699, 55 L. Ed. 838..
Arizona Employers' Liability Cases, 250 U. S.
400, 429, 39 Sup. Ct. 553, 559, 63 L.
1058..
.45, 46, 68, 218
Arkansas v. Tennessee, 246 U. S. 158, 38 Sup. Ct.
319
301, 62 L. Ed. 638, L. R. A. 1918D, 258...
Armour Packing Co. v. U. S., 209 U. S. 56, 28
Sup. Ct. 428, 52 L. Ed. 681..
Armour & Co. v. Virginia, 246 U. S. 1, 6, 38 Sup.
Ct. 267, 62 L. Ed. 547...

404

Ballou, In re (D. C.) 215 Fed. 810, 813, 814..
Baltimore, The, 8 Wall. 390, 391, 19 L. Ed. 463..548
Baltimore & P. R. Co. v. Hopkins, 130 U. S. 210,
9 Sup. Ct. 503, 32 L. Ed. 908..

537

256

332

Bank v. Trust Co., 168 N. C. 606, 85 S. E.
R. A. 1915D, 1138.

L.

363

Ed.

Bank of Augusta v. Earle, 13 Pet. 579, 589-591,
10 L. Ed. 274; 191 U. S. 375, 24 Sup. Ct. 92, 48
L. Ed. 225..
..371, 559
Bank of England v. Vagliano Bros. (1891) L. R.
363
App. Cas. 107..

.25, 26

225

Aspen Mining & Smelting Co. v. Billings, 150
U. S. 31, 37, 14 Sup. Ct. 4, 37 L. Ed. 986...
Associated Oil Co. v. Railroad Commission, 176
Cal. 518, 523, 526, 169 Pac. 62, L. R. A.
1918C, 849.

Bank of Newport v. Cook, 60 Ark. 288, 30 S. W.
35, 29 L. R. A. 761, 46 Am. St. Rep. 171..
Bank of United States v. Bank of Georgia, 10
Wheat. 333, 348, 6 L. Ed. 334.

60

363

343

Bank of United States v. Johnson, 3 Cranch, C.
C. 228, Fed. Cas. No. 919...

545

132

Barbour v. Georgia, 249 U. S. 454, 459, 39 Sup.
Ct. 316, 63 L. Ed. 704....

...109, 150

40 SUP.CT.

(591)

$436

$437

*(2) Instead of undertaking to define what practices should be deemed unfair, as had been done in earlier legislation, the act left the determination to the commission. Experience with existing laws had taught that definition, being necessarily rigid, would prove embarrassing and, if rigorously applied, might involve great hardship. Methods of competition which would be unfair in one industry, under certain circumstances, might, when adopted in another industry, or even in the same industry under different circumstances, be entirely unobjectionable.8 *Furthermore, an enumeration, however comprehensive, of existing methods of unfair competition must necessarily soon prove incomplete, as with new conditions constantly arising novel unfair methods would be devised and developed. In leaving to the commission the determination of the question whether the method of competition pursued in a particular case was unfair, Congress followed the precedent which it had set a quarter of century earlier, when by the act to regulate commerce it conferred upon the Interstate Commerce Commission power to determine whether a preference or advantage given to a shipper or locality fell within the prohibition of an undue or unreasonable preference or advantage. See Pennsylvania Co. v. United States, supra, 236 U. S. 361, 35 Sup. Ct. 370, 59 L. Ed. 616; Texas & Pacific Railway v. Interstate Commerce Commission, 162 U. S. 197, 219, 220, 16 Sup. Ct. 666, 40 L. Ed. 940. Recognizing that the question whether a method of competitive practice was unfair would ordinarily depend upon special facts, Congress imposed upon the commission the duty of finding the facts,

taken as final.

and it declared that findings of fact so made (if duly supported by evidence) were to be method of competition pursued could, on The question whether the those facts, reasonably be held by the commission to constitute an unfair method of necessarily left open to review by the court. competition, being a question of law, was Compare Interstate Commerce Commission v. Diffenbaugh, 222 U. S. 42, 32 Sup. Ct. 22, 56 L. Ed. 83; Interstate Commerce Commission v. Baltimore & Ohio R. R., 145 U. S. 263, 12 Sup. Ct. 844, 36 L. Ed. 699.

Third. Such a question of law is presented to us for decision, and it is this: Can the refusal by a manufacturer to sell his product to a jobber or retailer, except upon condition that the purchaser will buy from him also

*438

his *trade requirements in another article or sion to be an unfair method of competition articles, reasonably be found by the commisunder the circumstances set forth in the findings of fact? If we were called upon to consider the sufficiency of the complaint, and that merely, the question for our decision would be, whether the particular practice

could, under any circumstances, reasonably

be deemed an unfair method of competition. But as this suit to set aside the order of the commission brings before us its findings of fact, we must determine whethere these are sufficient to support their conclusion of law that the practice constituted"under the circumstances therein set forth, unfair methods of competition in interstate comdistributors in the material known as sugar-bag merce against other manufacturers, dealers and cloth, and against manufacurers, dealers and distributors of the bagging known as rewoven bagging and second-hand bagging in violation of" the statute.

1 See Report Senate Committee on Interstate Commerce, June 13, 1914, Sixty-Third Congress, Second Session, No. 597, p. 13: "The committee gave care- It is obvious that the imposition of such a ful consideration to the question as to whether it condition is not necessarily and universally would attempt to define the many and variable unfair practices which prevail in commerce and to an unfair method; but that it may be such forbid their continuance or whether it would, by a under some circumstances seems equally general declaration condemning unfair practices, clear. Under the usual conditions of competleave it to the commission to determine what prac-itive trade the practice might be wholly unobSee also "Unfair | jectionable. But the history of combinations Competition," by W. H. S. Stevens (University of has shown that what one may do with imChicago Press, 1916) pp. 1, 2. For laws prohibiting punity, may have intolerable results when

tices were unfair. It concluded that the latter course would be the better.

specific acts of unfair competition, see "Trust Laws and Unfair Competition" (Federal) Bureau of Corporations (March 15, 1915) pp. 184, 199.

8

* Report of (Federal) Bureau of Corporations on the International Harvester Co., March 3, 1913, p. 30: "In discussing the competitive methods of the company it should be recognized that some practices which might be regarded with indifference if there were a number of competitors of substantially equal size and power may become objectionable when one competitor far outranks not only its nearest rival, but practically all rivals combined, as is true of the International Harvester Company, so far as several of its most important lines are concerned."

The Australian Industries Preservation Act, 19081910, expressly declares that "unfair competition

done by several in co-operation. Similarly what approximately equal individual traders may do in honorable rivalry may result in grave injustice and public injury, if done by a great corporation in a particular field of business which it is able to dominate. In other words, a method of competition fair among equals may be very unfair if applied where there is inequality of resources.10 Without providing for those cases where the method of competition here involved would

$439

means competition which is unfair in the circum- be unobjectionable, *Massachusetts legislated stances.' "Trust Laws and Unfair Competition" against the practice, as early as 1901, by a (Federal) Bureau of Corporations (March 15, 1915) pp. 552, 747.

See note 1, supra.

10 See "The Morals of Monopoly and Competition," by H. B. Reed (1916) pp. 120-122.

(40 Sup.Ct.)

statute (chapter 478) of general application. [ sugar-bag cloth. Warren, Jones & Gratz, of Its highest court, in applying the law which St. Louis, are the Carnegie Company's sole it held to be constitutional, described the pro- agents for selling and distributing steel ties. hibited method as "unfair competition." They are also the American Manufacturing Commonwealth v. Strauss, 188 Mass. 229, 74 Company's sole agents for selling and distribN. E. 308; Id., 191 Mass. 545, 78 N. E. 136,uting jute bagging in the cotton-growing sec11 L. R. A. (N. S.) 968, 6 Ann. Cas. 842. Com- tion west of the Mississippi. By virtue of pare People v. Duke, 19 Misc. Rep. 292, 44 their selling agency for the Carnegie Company, N. Y. Supp. 336. The (Federal) Bureau of Warren, Jones & Gratz held a dominating Corporations held the practice, which it de- and controlling position in the sale and disN scribed as "full-line forcing" to be highly rep-tribution of cotton ties in the entire cottonrehensible.11 Congress, by section 3 of the growing section of the country, and thereby it Clayton Act, specifically prohibited the prac- was in a position to force would-be purchastice in a limited field under certain circum-ers of ties to also buy from them bagging stances. An injunction against the practice manufactured by the American Manufacturhas been included in several decrees in favoring Company. A great many merchants, jobof the government entered in cases under the bers, and dealers in bagging and ties throughSherman Law.12 In the decree by which the out the cotton-growing states were many American Tobacco Company was disintegrat- times unable to procure ties from any other ed pursuant to the mandate of this court, firm than Warren, Jones & Gratz. In many each of the fourteen companies was enjoined instances Warren, Jones & Gratz refused to from "refusing to sell to any jobber any sell ties unless the purchaser would also buy brand of any tobacco product manufactured from them a corresponding amount of bagby it, except upon condition that such jobber ging, and such purchasers were oftentimes shall purchase from the vendor some other compelled to buy from them bagging manubrand or product also manufactured and sold factured by the American Manufacturing by it. * United States v. American Company in order to procure a sufficient supTobacco Co. (C. C.) 191 Fed. 371, 429. The ply of steel ties. practice here in question is merely one form of the so-called "tying clauses" or "conditional requirements" which have been declared in a discerning study of the whole subject to be "perhaps the most interesting of any of the methods of unfair competition."18

*

The following facts found by the commission, and which the Circuit Court of Appeals held were supported by sufficient evidence,

*440

#441

*These are conditions closely resembling those under which "full-line forcing," "exclusive-dealing requirements" or "shutting off materials, supplies or machines from competitors"-well-known methods of competition, have been held to be unfair, when practiced by concerne holding a preponderant position in the trade.14

"adopted and practiced the policy of refusing

to sell steel ties to those merchants and dealers who wished to buy from them unless such merchants and dealers would also buy from them a corresponding amount of jute bagging."

Fourth. The Circuit Court of Appeals set show that the conditions in the *cotton tie and aside the order of the commission solely on bagging trade were in 1918 such that the Fed- the ground that it was without authority to eral Trade Commission could reasonably find determine the merits of specific individual that the tying clause here in question was an grievances, and that the evidence did not unfair method of competition: Cotton, Amer-support its finding that Warren, Jones & ica's chief staple, is marketed in bales. To Gratz hadbale cotton, steel ties and jute bagging are essential. The Carnegie Steel Company, a subsidiary of the United States Steel Corporation, manufactures so large a propertion of all such steel ties that it dominates the cotton tie situation in the United States and is able to fix and control the price of such ties The reason assigned by the Circuit Court of throughout the country. The American Man- Appeals for so holding was that the evidence ufacturing Company manufactures about 45 failed to show that the practice complained of per cent. of all bagging used for cotton bal-(although acted on in individual cases by reing; one other company about 20 per cent.; spondents) had become their "general pracBut the power of the Trade Commisand the remaining 35 per cent. is made up of tice." second hand bagging and a material called sion to prohibit an unfair method of competition found to have been used is not limited to cases where the practice had become general. What section 5 declares unlawful is not unfair competition. That had been unlawful before. What that section made unlawful were "unfair methods of competition"; that is, the method or means by which an unfair

"Report of the (Federal) Bureau of Corporations on the International Harvester Company (March 3, 1913) p. 308.

12 See "Unfair Methods of Competition and their Prevention" by W. H. S. Stevens, Annals, American Academy of Political and Social Science (1916) pp. 42, 43. "Trust Laws and Unfair Competition" (Federal) Bureau of Corporations (March 15, 1915) pp. 484-486, 493.

See "Trust Laws and Unfair Competition" (Fed18 "Unfair Competition," by W. H. S. Stevens (1916) eral) Bureau of Corporations (March 15, 1915) pp. D. 54. 319-323, 328.

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