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(40 Sup.Ct.) 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 Ed. 579; and in the recent case of Knowlton void. The Wilson Act of 1890 (Comp. St. v. Moore, 178 U. S. 41, 20 Sup. Ct. 747, 44 L. 8 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. The authoritative dictionaries, general and 1919, $$ 8739a, 10387a-10387c), are familiar law, and the decided cases, agree, that "con- examples of co-operative legislation on the current" means "joint and equal authority," subject of intoxicating liquors. Other in“running together, having the same author- stances could readily be supplied. When to ity," and therefore the grant of concurrent this we add that the Volstead Act is obviouspower to the Congress and the states should ly in very large part a compilation from the

prohibition codes of various states and is give to each equal, the same, *authority to supposed to contain what is best in each of enforce the Amendment by appropriate legis. them, there is every reason to believe that if lation. But the conclusions of the Court from which I dissent, by rendering the Vol- act would be promptly approved by the Legis

concurrent legislation were insisted upon, the stead Act of Congress paramount to state latures of many of the states and would laws, necessarily deprive the states of all thereby become the concurrent law of the power to enact legislation in conflict with state and nation throughout a large part it, and construe the Amendment precisely of the Union. as if the word "concurrent" were not in it.

Under this construction, which I think The power of Congress is rendered as su- should be given the Amendment, there would preme as if the grant to enforce the Amend. be large scope also for its operation even in ment had been to it alone, as it is in the states which might refuse to concur in conThirteenth, Fourteenth and Fifteenth Amend

gressional legislation for its enforcement. In ments and as it was in one proposed form my judgment the law in such a state would be of the Eighteenth Amendment which was rejected by Congress (Cong. Rec. July 30, as if no special grant of concurrent power for 1917, p. 5348, and December 17, 1917, p. made in the second section, but, neverthe

the enforcement of the first section had been 469). Such a construction should not be given facture, sale, transportation, importation or

less, the first section, prohibiting the manuthe Amendment if it can reasonably be avoid exportation, of intoxicating liquors for beved, as it very clearly may be, I think, with a resultant giving of a large and beneficent of the land within the nonconcurring states

erage purposes, would be the supreme law effect to the grant, as it is written. Giving and they would be powerless to license, tax, to the word "concurrent" its usual and au

or otherwise recognize as lawful anything thoritative meaning would result in congressional legislation under this grant of power violating that section, so that any state law being effective within the boundaries of any in form attempting such recognition would state only when concurred in by action of be unconstitutional and void. Congress would Congress and of such state, which, however, have full power under the interstate comcould readily be accomplished by the ap

*410 proval by either of the legislation of the merce clause, *and it would be its duty, to other or by the adoption of identical legis- prevent the movement of such liquor for beylation by both. Such legislation would be erage purposes into or out of such a state concurrent in fact and in law, and could and the plenary police power over the subbe enforced by the courts and officers of either ject, so firmly established in the states before the nation or the state, thereby insuring a the Eighteenth Amendment was adopted, more general and satisfactory observance of would continue for use in the restricted field it than could possibly be obtained by the which the first section of the Amendment federal authorities alone. It would, to a leaves unoccupied—and the presumption great extent, relieve Congress of the burden must always be indulged that a state will and the general government of the odium to observe and not defy the requirements of be derived from the antagonism which would the national Constitution. certainly spring from enforcing within states

Doubtless such a construction as I am profederal laws which must touch the daily posing would not satisfy the views of extreme life of the people very intimately and often advocates of prohibition or of its opponents, very irritatingly.

but in my judgment it is required by the

salutary rule of constitutional construction *Such co-operation in legislation is not un referred to, the importance of which cannot familiar to our Constitution or in our practi- be overstated. It is intended to prevent cal experience.

courts from rewriting the Constitution in By section 10 of article 1 of the Constitu- a form in which judges think it should have tion of the United States the states are de- been written instead of giving effect to the prived of power to do many things without language actually used in it, and very certhe consent of Congress, and that consent' tainly departures from it will return to has frequently been given, especially to con-' plague the authors of them. It does not re

*409

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 With respect to the eleventh conclusion of the various states theretofore regulated their the Court, it is enough to say that it ap local affairs in conformity with the widely proves as valid a definition of liquor as in- differing standards of life, of conduct and of toxicating which is expressly admitted not duty which must necessarily prevail in a counto be intoxicating in each of the cases in try of so great extent as ours, with its varie which it is considered. This is deemed war- ties of climate, of industry and of habits of ranted, I suppose, as legislation appropriate the people. But this Court, resisting the to the enforcement of the first section and pressure of the passing hour, maintained the precedent is found for it in prohibition legis- integrity of state control over local affairs lation by states. But I cannot agree that to the extent that it had not been deliberate the prohibition of the manufacture, sale, etc., ly and clearly surrendered to the general govof intoxicating liquors in the first section of ernment, in a number of decisions which came the Eighteenth Amendment gives that ple to command the confidence even of the gennary power over the subject which the Legis- eration active when they were rendered and latures of the states derive from the people which have been regarded by our succeeding or · which may be derived from the war generation as sound and wise and highly for

tunate for our country. powers *of the Constitution. Believing, as I do, that the scope of the first section cannot

The cases now before us seem to me to constitutionally be enlarged by the language again present questions of like character to, contained in the second section, I dissent and of not less importance than, those which from this conclusion of the Court.

were presented in those great cases, and I In the Slaughterhouse Cases, 16 Wall 36, regret profoundly that I cannot share in the 21 L. Ed. 394, and other cases, this Court disposition which the majority of my Aswas urged to give a construction to the sociates think should be made of them.

*411

END OF CASES IN VOL. 40.

CASES CITED

..18, 21

Page

Page Abbott Bros. v. U. S., 242 Fed. 751, 155 C. C. A. Atchison, etc., R. Co. v. O'Connor, 223 U. S. 280, 339

292 286, 287, 32 Sup. Ct. 216, 56 L.Ed. 436, Ann. Abraham v. Ordway, 158 U. S. 416, 420, 15 Sup. Cas. 1913C, 1050.

.341, 422 Ct. 891, 39 L. Ed. 1036..

127 Atchison, T. & S. F. R. Co. v. Sowers, 213 U. Abrams v. U. S., 250 U. S. 616, 619, 40 Sup. Ct. S. 55, 29 Sup. Ct. 397, 53 L. Ed. 695.

372 17, 63 L. Ed. 1173..

..211, 263 Atchison, T. & S. F. R. Co. v. Spiller, 246 Fed. Adair v. U. S., 208 U. S. 161, 28 Sup. Ct. 277, 1, 23, 158 C. C. A. 227; 249 Fed. 677, 161 C. C. 52 L. Ed. 436, 13 Ann. Cas. 764. 478 A. 587...

.468, 472 Adams v. Baker, 24 Nev. 375, 55 Pac. 362.. 325 Atchison, T. & S. F. R. Co. v. U. S., 225 U. S. Adams v. Milwaukee, 228 U. S. 572, 584, 33 Sup. 640, 649, 650, 32 Sup. Ct. 702, 56 L. Ed. Ct. 610, 57 L. Ed. 971.

151 1236 Adams v. New York, 192 U. S. 585, 24 Sup. Ct.

..68, 163, 166 348

Atlantic Coast Line R. Co. v. Georgia, 234 U. S. 372, 48 L. Ed. 575...

183
280, 34 Sup. Ct. 829, 58 L. Ed. 1312...

37 Adams v. Tanner, 244 U. S. 590, 37 Sup. Ct. 662, Atlantic Coast Line R. Co. v. Mims, 242 U. S. 61 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas. 532, 37 Sup. Ct. 188, 61 L. Ed. 476.

254 1917D, 973..

478 Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, Adams Exp. Co. v. Croninger, 226 U. S. 491, 33 59, 61, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) A. (N. S.) 1157.

65 257

.70, 505

Atlantic & G. W. R. Co. v. Koblentz, 21 Ohio Adams Exp. Co. v. Ohio, 165 U. S. 194, 227, 17 St. 334, 338..

521 Sup. Ct. 305, 41 L. Ed. 683; 166 U. $. 185, 17 Auffmordt v. Hedden, 137 U. S. 310, 11 Sup. Ct. Sup. Ct. 604, 41 L. Ed. 965..

560
103, 34 L. Ed. 674..

376 Addyston Pipe Co. v. U. S., 175 U. S. 211, 238, 20 Aultman & Taylor Co. v. Syme, 79 Fed. 238, 24 Sup. Ct. 96, 44 L. Ed. 136..

302
C. C. A. 539.

404 Adirondack R. Co. v. New York, 176 U. S. 335, Austin v. The Aldermen, 7 Wall. 694, 699, 19 L. 349, 20 Sup. Ct. 460, 44 L. Ed. 492.

63
Ed. 224.

554 Ætna Life Ins. Co. v. Ward, 140 U. S. 76, 91, 11

Ayres, In re, 123 U. S. 443, 506, 8 Sup. Ct. 164, Sup. Ct. 720, 35 L. Ed. 371...

87
31 L. Ed. 216..

370 Aktieselskabet Korn-Og Foderstof Kompagniet

v. Rederiaktiebolaget Atlanten, D. C., 232 Fed. Babbitt v. Dutcher, 216 U. S. 102, 113, 30 Sup. Ct. 403; 250 Fed. 935, 163 C. C. A. 185, Ann. Cas. 372, 54 L. Ed. 402, 17 Ann. Cas. 969..

536 1918E, 491....

333 Baccus v. Louisiana, 232 U. S. 334, 34 Sup. ct. Alabama Great Southern R. Co. v. Thompson, 439, 58 L. Ed. 627.

94 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, Backus v. Fort Street Union Depot Co., 169 U. Ann. Cas. 1147....

255

S. 557, 568, 569, 18 Sup. Ct. 445, 42 L. Ed. Alaska Pac. Fisheries v. Alaska, 249 U. S. 53, 61,

853.

..63, 64, 304 39 Sup. Ct. 208, 63 L. Ed. 474.

485

Bacon v. Texas, 163 U. $. 207, Alaska S. S. Co. v. U. S. (D. C.) 259 Fed. 713... 448

216, 16 Sup. Ct. 1023, 41 L. Ed. 132.

583 Allen v. St. Louis, I. M. & S. R. Co., 230 V. S. Badger v. Badger, 2 Wall. 87, 95, 17 L. Ed. 836... 127 553, 33 Sup. Ct. 1030, 57 L. Ed. 1625.

.40, 73

Baer v. U. S., 249 U. S. 47, 39 Sup. Ct. 247, 63 Allgeyer v. Louisiana, 165 U. S. 578, 591, 17 Sup.

L. Ed. 470.. Ct. 427, 41 L. Ed. 832..

366 Baer Bros. Mercantile Co. v. Denver & R. G. American Diamond Drill Co. v. Sullivan Mach. R. Co., 233 U. S. 479, 34 Sup. Ct. 641, 58 L. Co. (C. C.) 32 Fed. 552; 131 U. S. 428, 9 Sup.

Ed. 1055..

513 Ct. 794, 33 L. Ed. 217..

548 Baez, Ex parte, 177 U. S. 378, 20 Sup. Ct. 673, 44 American Exp. Co. v. Caldwell, 244 U. S. 617, 37

L. Ed. 813.

539 Sup. Ct. 656, 61 L. Ed. 1352.

150 Bagdon v. Philadelphia & Reading Coal & Iron American Mfg. Co. v. St. Louis, 250 U. S. 459, Co., 217 N. Y. 432, 111 N. E. 1075, L. R. A. 463, 39 Sup. Ct. 522, 63 L. Ed. 1084.. .225, 226

1916F, 407, Ann. Cas. 1918A, 389.

173 American School of Magnetic Healing v. Mc- Bailey y. Railroad Co., 22 Wall. 604, 22 L. Ed. Annulty, 187 U. S. 94, 104, 23 Sup. Ct. 33, 37,

840

203 47 L. Ed. 90.....

215 American Security & Trust Co. v. District of Co

Bailey v. Western Union Tel. Co., 97 Kan. 619, 156 Pac. 716....

71 lumbia, 224 U. S. 491, 32 Sup. Ct. 553, 56 L. Ed. 856

Baker v. Baker, Eccles & Co., 242 U. S. 394, 401, 518 37 Sup. Ct. 152, 61 L. Ed. 386..

7 American Tobacco Co. v. U. S., 221 U. S. 106, 31 Sup. Ct. 632, 55 L. Ed. 663.

577

Balbas v. U. S., 257 Fed. 17, 168 C. C. A. 229... 266 Amoskeag Sav. Bank v. Purdy, 231 U. S. 373,

Baldwin v. Franks, 120 U. S. 678, 683, 7 Sup. Ct. 393-394, 34 Sup. Ct. 114, 58 L. Ed. 274.

232
656, 657, 32 L. Ed. 766..

384 Amy v. Watertown No. 1, 130 U. S. 301, 9 Sup.

Ball v. Halsell, 161 U. S. 72, 82, 84, 16 Sup. Ct. Ct. 530, 32 L. Ed. 946..

443
554, 40 L. Ed. 622..

..475, 476, 478 Andrews v. Andrews, 188 U. S. 14, 33, 23 Sup.

Ball v. Wm. Hunt & Sons, Ltd. [1912] App. Cas.

496

383 Ct. 237, 47 L. Ed. 366...

46 Anheuser-Busch Ass'n v. U. S., 207 U. S. 556, 28

Ball Engineering Co. v. J. G. White & Co., 250 Sup. Ct. 204, 52 L. Ed. 336..

286

U. S. 46, 54-57, 39 Sup. Ct. 393, 63 L. Ed. Anhlo-American Provision Co. v. Davis Provision

835.

.172, 520 Co., No. 1, 191 U. S. 373, 24 Sup. Ct. 92, 48 L.

Ballew v. U. S., 160 U. S. 187, 197, 16 Sup. Ct. Ed. 225.. 371 263, 40 L. Ed. 388.

446 Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419.. 330 | Ballou, In re (D. C.) 215 Fed. 810, 813, 814. 537 Antoni v. Greenhow, 107 U. S. 769, 774, 2 Sup. Ct.

Baltimore, The, 8 Wall. 390, 391, 19 L. Ed. 463..548 91, 27 L. Ed. 468.

404 Baltimore & P. R. Co. v. Hopkins, 130 U. S. 210, Appleby v. Buffalo, 221 U. S. 524, 529, 31 Sup. Ct.

9 Sup. Ct. 503, 32 L. Ed. 908.

256 699, 55 L. Ed. 838..

332 Bank v. Trust Co., 168 N. C. 606, 85 S. E. 5, L. Arizona Employers' Liability Cases, 250 U._S.

R. A. 1915D, 1138..

363 400, 429, 39 Sup. Ct. 553, 559, 63 L. Ed.

Bank of Augusta v. Earle, 13 Pet. 579,589-591, 1058.

. 45, 46, 68, 218

10 L. Ed. 274; 191 U. S. 375, 24 Sup. Ćt. 92, 48 Arkansas v. Tennessee, 246 U. S. 158, 38 Sup. Ct.

L. Ed. 225.

..371, 559 301, 62 L. Ed. 638, L. R. A. 1918D, 258.

319 Bank of England v. Vagliano Bros. (1891) L. R. Armour Packing Co. v. U. S., 209 U. S. 56, 28 App. Cas. 107..

363 Sup. Ct. 428, 52 L. Ed. 681..

..25, 26

Bank of Newport v. Cook, 60 Ark. 288, 30 S. W. Armour & Co. v. Virginia, 246 U. S. 1, 6, 38 Sup.

35, 29 L. R. A. 761, 46 Am. St. Rep. 171

60 Ct. 267, 62 L. Ed. 547.

225 Bank of United States v. Bank of Georgia, 10 Aspen Mining & Smelting Co. v. Billings, 150 Wheat. 333, 348, 6 L. Ed. 334....

363 Ú. S. 31, 37, 14 Sup. Ct. 4, 37 L. Ed. 986. 343 Bank of United States v. Johnson, 3 Cranch, C. Associated Oil Co. v. Railroad Commission, 176 C. 228, Fed. Cas. No. 919...

645 Cal. 518, 523, 526, 169 Pac. 62, L. R. A. Barbour v. Georgia, 249 U. S. 454, 459, 39 Sup. 1918C, 849..

132 Ct. 316, 63 L. Ed. 704...

.....109, 150 40 SUP.OT.

(591)

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*437

*438

and it declared that findings of fact so made *(2) Instead of undertaking to define what (if duly supported by evidence) were to be practices should be deemed unfair, as had been

taken as final. done in earlier legislation, the act left the de- method of competition pursued could, on

The question whether the termination to the commission. Experience those facts, reasonably be held by the comwith existing laws had taught that definition, mission to constitute an unfair method of being necessarily rigid, would prove embarrassing and, if rigorously applied, might in- competition, being a question of law, was volve great hardship. Methods of competi- Compare Interstate Commerce Commission v.

necessarily left open to review by the court. tion which would be unfair in one industry, Diffenbaugh, 222 U. S. 42, 32 Sup. Ct. 22, 56 under certain circumstances, might, when L. Ed. 83; Interstate Commerce Commission adopted in another industry, or even in the

v. Baltimore & Ohio R. R., 145 U. S. 263, 12 same industry under different circumstances,

Sup. Ct. 844, 36 L. Ed. 699. be entirely unobjectionable.8 *Furthermore, Third. Such a question of law is presented an enumeration, however comprehensive, of to us for decision, and it is this: Can the existing methods of unfair competition must refusal by a manufacturer to sell his product necessarily soon prove incomplete, as with to a jobber or retailer, except upon condition new conditions constantly arising novel unfair that the purchaser will buy from him also methods would be devised and developed. In

his *trade requirements in another article or leaving to the commission the determination of the question whether the method of compe- sion to be an unfair method of competition

articles, reasonably be found by the commistition pursued in a particular case was unfair, Congress followed the precedent which under the circumstances set forth in the findit had set a quarter of century earlier, when ings of fact? If we were called upon to conby the act to regulate commerce it conferred sider the sufficiency of the complaint, and upon the Interstate Commerce Commission that merely, the question for our decision

would be, whether the particular practice power to determine whether a preference or advantage given to a shipper or locality fell could, under any circumstances, reasonably

be deemed an unfair method of competition, within the prohibition of an undue or unreasonable preference or advantage.9 See Penn. But as this suit to set aside the order of the sylvania Co. v. United States, supra, 236 U. commission brings before us its findings of S. 361, 35 Sup. Ct. 370, 59 L. Ed. 616; Texas fact, we must determine whethere these are

sufficient to support their conclusion of law & Pacific Railway v. Interstate Commerce

that the practice constitutedCommission, 162 U. S. 197, 219, 220, 16 Sup. Ct. 666, 40 L. Ed. 940. Recognizing that the “under the circumstances therein set forth, unquestion whether a method of competitive fair methods of competition in interstate compractice was unfair would ordinarily depend distributors in the material known as sugar-bag

merce against other manufacturers, dealers and upon special facts, Congress imposed upon cloth, and against manufacurers, dealers and the commission the duty of finding the facts, distributors of the bagging known as rewoven

bagging and second-hand bagging in violation ? See Report Senate Committee on Interstate Com- of the statute. merce, 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 unobwould be the better.

See 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 probibiting specific acts of unfair competition, see "Trust Laws punity, may have intolerable results when and Unfair Competition" (Federal) Bureau of Cor- done by several in co-operation. Similarly porations (March 15, 1915) pp. 184, 199.

what approximately equal individual traders 8 Report of (Federal) Bureau of Corporations on may do in honorable rivalry may result in the International Harvester Co., March 3, 1913, p. grave injustice and public injury, if done by a

In discussing the competitive methods of the company it should be recognized that some prac- great corporation in a particular field of tices which might be regarded with indifference it business which it is able to dominate. In there were a number of competitors of substantially other words, a method of competition fair equal size and power may become objectionable when one competitor far outranks not only its Dearest among equals may be very unfair if applied rival, but practically all rivals combined, as is true where there is inequality of resources.10 of the International Harvester Company, so far as Without providing for those cases where the several of its most important lines are concerned." method of competition here involved would

The Australian Industries Preservation Act, 19081910, expressly declares that “unfair competition means competition which is unfair in the circum- be unobjectionable, *Massachusetts legislated

Unfair Competition” against the practice, as early as 1901, by a (Federal) Bureau of Corporations (March 15, 1915) pp. 552, 747.

Iv See "The Morals of Monopoly and Competition," . See note 1, supra.

by H. B. Reed (1916) pp. 120-122.

tices were unfair. It concluded that the latter course

30 :

*439

stances."

“Trust Laws and

as

*441

(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 “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 disscribed 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 favor ing 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 bag. by 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 "condition- *These are conditions closely resembling al requirements” which have been declared in those under which "full-line forcing," "exa discerning study of the whole subject to be clusive-dealing requirements” or “shutting off “perhaps the most interesting of any of the materials, supplies or machines from com methods of unfair competition."18

petitors”—well-known methods of competiThe following facts found by the commis- tion, have been held to be unfair, when pracsion, and which the Circuit Court of Appeals ticed by concerni holding a preponderant posiheld were supported by sufficient evidence, tion in the trade.14 *440

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 badbale cotton, steel ties and jute bagging are essential. The Carnegie Steel Company, a sub-adopted and practiced the policy of refusing

to sell steel ties to those merchants and dealsidiary of the United States Steel Corporation, ers who wished to buy from them unless such manufactures so large a propertion of all merchants and dealers would also buy from such steel ties that it dominates the cotton them a corresponding amount of jute bagging." 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 pracand the remaining 35 per cent is made up of tice.” But the power of the Trade Commissecond hand bagging and a material called sion to prohibit an unfair method of competi

tion found to have been used is not limited to 1 Report of the (Federal) Bureau of Corporations cases where the practice had become general. on the International Harvester Company (March 3, What section 5 declares unlawful is not un1913) p. 308.

12 See "Unfair Methods of Competition and their fair competition.' That had been unlawful Prevention" by W. H. S. Stevens, Annals, Ameri- before. What that section made unlawful can Academy of Political and Social Science (1916) were "unfair methods of competition"; that PP. 42, 43.

"Trust Laws and Unfair Competition” is, the method or means by which an unfair (Federal) Bureau of Corporations (March 15, 1915) pp. 484-486, 493.

14 See “Trust Laws and Unfair Competition” (Fed15 "Unfair Competition," by W. H. S. Stevens (1916) eral) Bureau of Corporations (March 15, 1915) pp.

319-323, 328.

D. 54,

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