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not lawfully contract granting the exclusive right to a single tug to dock and undock vessels thereat.1o While such a contract might not be illegal under the provisions of the Act to Regulate Commerce prohibiting undue discrimination, the anti-trust statutes and such provisions have as one common object the requirement that no undue or unjust preference shall be accorded. This rule was not applied to a contract by which a long distance telephone company made an agreement for the interchange of messages with a local company to the exclusion of all other like companies."
Transportation Act 1920, post 352, relieves carriers from the operation of the anti-trust laws so far as to permit car riers to consolidate.
§ 328. The Clayton Anti-Trust Law.-The purpose of the anti-trust statute approved Oct. 15, 1914," was to make more definite the provisions of the Sherman Act, and to provide more effective means for enforcing the former Act. Section 11 of the Clayton Act gives authority to the Interstate Commerce Commission to enforce the provisions of designated sections of the Act, and section 10 is a regulation of interstate carriers with reference to certain contracts therein specified. This Act and the Sherman Anti-Trust Act are contained in chapter 11 of this book.
§ 329. Federal Trade Commission Law.-The Act to create a Federal Trade Commission, approved September 26, 19141
10. Baker-Whitley Coal Co. v. Baltimore & O. R. Co., 188 Fed. 405. 110 C. C. A. 234, reversing same styled case 176 Fed. 632, and citing and discussing cases, distinguishing Weems Steamboat Co. v. Peoples Co., 214 U. S. 345, 53 L. Ed. 1024, 29 Sup. Ct. 661, and Louisville & N. R. R. Co. v. West Coast Naval Stores Co., 198 U. S. 483, 49 L. Ed. 1135, 25 Sup. Ct. 745.
11. Pacific Telephone & Tel. Co. v. Anderson, 196 Fed. 699, citing and discussing State V. Cadwaller, 172 Ind. 619, 87 N. E. 644, 89 N. E. 319; Home Tel. Co. v. Sarcoxie Light & Tel. Co., 236 Mo. 114, 139 S. W. 108; Home
Tel. Co. v. Peoples Tel. Co., 125
12. See Secs. 495, et seq., post. Charleston & Norfolk Steamship Co. 47 I. C. C. 365, 368.
13. Appendix A. Provisions re
gives the commission so created certain regulatory powers over corporations, firms and partnerships engaged in interstate commerce other than those subject to regulation by the Interstate Commerce Commission. The Act, Sec. 4, defines certain words, among which are:
"Commerce means commerce among the several states or with foreign nations, or in any territory of the United States, or in the District of Columbia, 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.
"Acts to regulate commerce means the act entitled 'An Act to Regulate Commerce' approved February 14th, 1887, and all acts amendatory thereof and supplementary thereto."
Sec. 11 provides: "Nothing contained in this act shall be construed to prevent or interfere with the enforcement of the provisions of the anti-trust acts, or the acts to regulate commerce, nor shall anything contained in this act be construed to alter, modify or repeal the said anti-trust acts, or the acts to regulate commerce, or any part or parts thereof."
lating to the Bureau of Corpora- and create monopolies in violations and the Anti-Dumping Act tion of the Ant-Trust Acts." Howare also included in this ap ever, he said that "unfair methpendix. The words "unfair meth- ods" are "not restricted to such ods of competition" in section 5 of as violate the Anti-Trust Acts. the Federal Trade Commission Act Federal Trade Commission V. are indefinite; and the contention Gratz, 258 Fed. 314, 317. The that they are too vague to au- Federal Trade Commission was thorize an administrative findestablished in the exercise of the ing of their violation, is plausible, constitutional power of Congress probably sound. Circuit Judge to regulate interstate and forBaker finds an analogy between eign commerce, and that Commisthe words and other legislative sion has no power to demand acterms. Sears Roebuck & Co. v. cess to the books of a patentee Federal Trade Commission, 258 for the purpose of obtaining inFed. 307. Circuit Judge Ward formation for the Navy Departholds that "Section 5 is intended ment. United States v. Basic Proto provide a method of preventing ducts Co., 260 Fed. 472. Citing practices unfair to the general and relying on United States v. public and very particularly such Colgate & Co., 250 U. S. 300, 63 as if not prevented will grow so L. Ed. - 39 Sup. Ct. Cirlarge as to lessen competition cuit Judge Ward with indicated
§ 329 A. Merchant Marine.-The Shipping Act, Appendix 0, post, contains regulatory provisions relating to water carriers, and is to an extent supplementary to the Interstate Commerce Act. Section 33 provided: "That this act shall not be construed to affect the power or jurisdiction of the Interstate Commerce Commission, nor to confer upon the board concurrent power or jurisdiction over any matter within the power or jurisdiction of such commission; nor shall this act be construed to apply to intrastate commerce."
§ 330. Safety Appliance Law. Under the title Safety Appliance Acts may be included the Automatic Coupler Act (Appendix B), of March 2, 1893; as amended April 1, 1896; a supplement to the Automatic Coupler Act passed March 2, 1903, (Appendix C); the supplement to the Automatic Coupler Act approved April 14, 1910, and March 4, 1911, (Appendix D); the act requiring reports of accidents, approved May 6, 1910, (Appendix E); the Medals of Honor Act, approved Feb. 23, 1905, (Appendix F); the Hours of Service Act (Appendix G), approved March 4, 1907; the Ash Pan Act approved May 30, 1908, (Appendix H); the Explosive Acts, approved March 4, 1909, (Appendix I); the Boiler Inspection Act approved Feb. 17, 1911, (Appendix J).
These acts may not all be logically classed as safety appliance acts, yet they all relate to the safety of interstate transportation and may properly be considered together.
These acts rest upon the right of Congress to regulate commerce with foreign nations and among the several states. The primary object of all of these acts was to promote the public welfare by securing the safety of employees and travelers; the acts are, therefore, remedial and should be so construed as not to defeat the obvious intention of Congress.
By the Sundry Civil Appropriation Act of June 28, 1902. the Commission is given authority to employ "inspectors to execute and enforce the requirements of the Safety Appliance Acts."
§ 331. Hours of Service Law.-The Hours of Service Act limits the time for which railroads may require or permit
reluctance holds that it is lawful to refuse to sell and says.
obvious purpose of the respondent is to prevent any competi
employees subject to the Act to be or remain on duty, gives the Commission power "after full hearing in a particular case and for good cause shown to extend" the time within which the carriers included in the Act shall comply with the proviso of section 2, and provides for penalties for violations of the Act."
The Commission has held that this Act applies to street car lines which are interstate carriers; that it does not apply to employees deadheading on passenger trains not engaged in the performance of any service," nor to a ferry owned by a railroad not used as a car ferry," nor to a trainman occasionally using the telegraph or telephone to meet an emergency. The Commission by conference rulings 88 and 287 has interpreted the Act. A separate penalty is incurred for each employee remaining on duty in violation of the Act, and the statute relates to employees on duty, although they may be inactive.20
§ 332. Employers' Liability Law. The first Employers' Liability Act, that of June 11, 1906, chap. 3073, 34 Stat. L., 232, was declared by the Supreme Court of the United States to be unconstitutional, because, as construed, it applied not only to the employees of carriers engaged in interstate, but also to carriers while engaged in intrastate commerce. Whether the Act violated the 14th Amendment was not decided, but reference was made to decisions of the court holding valid state
tion as to the resale price, bettween purchasers of its products." Beach-Nut Packing Co. V. Federal Trade Commission,
Fed. -. See in this connection United States v. Schrader, 251 U. S., 64 L. Ed. 40 Sup. Ct. 1; Federal Trade Commission v. Anderson Gratz and Benjamin Gratz, 252 U. S. 64 L. Ed., 40 Sup. Ct. —.
14. Schweig v. Chicago, M. & St. P. Ry. Co., 205 Fed. 96. See for a full discussion of these acts Kent's Digest of Decisions under Safety Appliance Acts.
15. Conf. Rul. 56.
16. Conf. Rul. 74; South Cov
ington R. Co. v. Covington, 235 U. S. 537, 59 L. Ed. 350, 35 Sup. Ct. 158.
17. Conf. Rul. 108.
18. Conf. Rul. 342; Ante, End Volume One.
19. See post end this chapter Conference Rulings. See also Adamson Eight Hour Law, Comp. Stat. sections 1916, 8680a to 8680d and Transportation Act 1920, Title III, both Appendix two. Adamson Law Valid, Wilson v. New, 243 U. S. 332, 61 L. Ed. 755, 37 Sup. Ct. 298.
20. Mo., Kan. & Tex. Ry. Co. v. U. S., 231 U. S. 112, 58 L. Ed. 144, 34 Sup. Ct. 26.
laws making a special regulation as to a carrier's liability to its employees."
The present Act (Appendix K) was approved April 22, 1908, and its validity has been sustained by the Supreme Court. Differences of opinion having arisen as to the jurisdiction of the state courts, the Act was amended in 1910, by providing that state and Federal courts should have concurrent jurisdiction in suits brought under the Act and also providing for the survivorship of causes of action."
§ 333. Arbitration and Labor Laws.-The Act of June 1, 1898, known as the Arbitration Act, or the Erdman Act, had as its purpose the settlement of controversies between carriers and their employees. This statute is persuasive and does not attempt to be compulsory. Arbitrators under the Act are essentially common law arbitrators and rights of the parties thereto rest upon the contract of arbitration, which contract must be construed in accordance with the rules governing contracts. In an arbitration had in accordance with the terms of the Act, Judge Van Fleet speaks of the "very commendable object aimed at by the act" and says: "The evident purpose of the law was to afford a ready, summary, and speedy method of amicably adjusting
21. Employers' Liability Cases, Howard v. Ill. Cent. R. Co., 207 U. S. 463, 52 L. Ed. 297, 28 Sup. Ct. 141; Missouri, P. R. Co. v. Mackey, 127 U. S. 205, 32 L. Ed. 107, 8 Sup. Ct. 1161; Minneapolis & St. L. P. Co. v. Herrick, 127 U. S. 210, 32 L. Ed. 109, 9 Sup. Ct. 1176; Chicago K. & W. R. Co. v. Pontius, 157 U. S. 209, 39 L. Ed., 675, 15 Sup. Ct. 585.
22. 35 Stat. 65, ch. 149, U. S. Comp. Stat. Supp. 1911, p. 1322; Fed. Stat. Ann. 1909 Supp., p. 584, 1912 Supp., p. 1735.
23. Mondou v. New York, N. H. & H. R. Co., (Second Employers' Liability Act), 223 U. S. 1, 56 L. Ed. 327, 32 Sup. Ct. 169,
38 L. R. A., N. S., 44; Phila delphia B. & W. R. Co. v. Schu bert, 224 U. S. 603, 56 L. Ed. 911, 32 Sup. Ct. 589.
24. Act Apr. 5. 1910, C. 143, 36 Stat. 391. U. S. Comp. Stat. 1916, Vol. 8 Section 8657 et seq. Fed. Stat. Ann. 1912, Supp. p. 335. See proviso to Sec. 28 Judicial Code. Barnett v. Spokane P. & S. Ry. Co., 210 Fed. 94.
25. Arbitration Act, also called Erdman Act, approved June 1, 1898, chap. 370, 30 Stat. L. 524, et seq., 4 Fed. Stat. Ann. 784, U. S. Comp. Stat. 1901, p. 3205.
26. Re Southern Pacific Co., 155 Fed. 1001.