Full opinion text
STONE, Circuit Judge. This is an original statutory proceeding to review a “cease and desist” order of the Federal Trade Commission. I. The Pleadings. The pleadings consisted of (1) the complaint, (2) motions and answer of the Chamber of Commerce and the named directors, officers and members, (3) motions and answer of the Manager Publishing Company and John F. Fleming, (4) motions and answer of John H. Adams, and (5) application'for dismissal by all of' the respondents. (1) The Complaint. The complaint was in two counts. The substance thereof may be stated as follows: It was against “the Chamber of Commerce of Minneapolis; the officers, board of directors, and members of the Chamber of Commerce of Minneapolis, Manager Publishing Company; John H. Adams; and John F. Fleming, all hereinafter referred to and named as respondents herein.” It named, as respondents, fourteen individuals alleging they were officers or directors of said Chamber of Commerce and thirteen of them to be members thereof, and that “said respondent members constitute a class so numerous as to make it impractical to name them all as parties respondent herein, but those designated herein are fairly representative of the whole.” It alleged that the Chamber of Commerce (hereinafter called Chamber) was a “non-stock or membership corporation organized and existing for the profit of its members” and conducting a grain market for the exclusive use of its members wherein approximately 200,000,000 bushels of grain was dealt in annually by them, and that it dealt in “valuable business and commercial information consisting chiefly of priee quotations of various kinds of grain and other market news.” That much of the grain so dealt in by the members on the floor of the Chamber was interstate commerce grain and that the market quotations and news was sent and received through interstate commerce instrumentalities to and from other states. That the members were governed in their dealings by rules and regulations of the Chamber so that their interstate grain transactions were controlled thereby. That the grain market furnished by the Chamber for the exclusive use of its members served six states and held a monopoly of such business. That'the respondent, Manager Publishing Company, is a corporation publishing a grain trade paper (The Co-operative Manager & Farmer) which circulates in the trade territory tributory to Minneapolis and respondents John H. Adams and John F. Fleming are stockholders therein and editors thereof. That the Equity Co-operative Exchange (hereinafter called Equity) is a co-operative association or corporation with offices in various states and having a membership of about seven thousand grain raisers, shippers and dealers living in various states of the Northwest. That such association is the receiving and selling agent for grain shipped to it by its members, much of which is interstate shipments. That it operates terminal and country elevators in various states. That it deals, also; in grain consigned to it in interstate commerce by nonmembers and on its own account. That it is engaged, also, in disseminating market information. That it conducts its business on the basis of paying “patronage dividends,” which moans division of net profits among its patrons in proportion to patronage. That being barred from the Chamber and other regular markets because of its “patronage dividend” character, the Equity established (with others) the St. Paul Grain Exchange (hereinafter called Exchange) at St. Paul in 1914 and became a member thereof. That the St. Paul Grain Exchange is a non-stock or membership corporation conducting a grain market and permitting its members to allow patronage dividends. That its members are engaged in dealing in various grains. That the members of the Equity and of the Exchange are in business competition with the members of the Chamber. That a great portion of the grain dealt in by the various members of each is interstate commerce grain. That respondents are and for more than three years have been in a conspiracy to destroy the Exchange and the business of the Equity and its members for the purpose of perpetuating the monopoly of the Chamber and its members. That this conspiracy has been and is being carried out by a campaign of defamation, false litigation, oppression and boycott. The defamation consisting (1) of publication, in the above trade paper and other publications, and circulation among patrons and prospective patrons, of the Equity and of the Exchange, of false statements concerning the financial responsibility and business methods of the Equity and of the Exchange; and (2) similar false statements by the traveling solicitors, agents and employees of many of the respondent members of the Chamber. The false litigation consisting of instigating and carrying on, in 1914 and 1915, three designated actions against the Equity and other members of the Exchange, these actions being one brought in the United States District Court for Minnesota by J. Emerson Greenfield and Samuel Crumpton (partners as Greenfield & Crumpton); another in a state court of North Dakota, by Fred Schmidt, J. Emerson Greenfield and Samuel Crumpton; and another, in the same state court, by the State of North Dakota ex rel. Henry J. Linde, Attorney General. The oppression consisting in refusing the Exchange and its members the daily market quotations of the Chamber, which it disseminates to nonmembers of the Chamber, and in inducing other terminal markets to refuse their like quotations. The boycott consisting in members of the Chamber refusing, under compulsion of certain rules adopted by the Chamber for that purpose, to buy grain from'the Equity. That said conspiracy is further being executed under compulsion and by means of certain rules, regulations and customs of the Chamber and its members, which discriminate against nonmembers; depress prices paid for grain bought from producers; impose arbitrary and unearned charges on “on track” grain at country points; discriminate in favor of grain shipped from certain other terminal markets; establish unreasonably high commission rates; and prevent the members of the Chamber from transacting business on a true .competitive basis or a “patronage dividend” basis. That such conspiracy is being further executed through contracts binding country shippers to ship all of their grain to members of the Chamber who finance such shippers. (2) Motions and Answer of the Chamber et al. These motions were to dismiss, to strike and for orders that no issue of fact be joined as to certain parts of the complaint. The motion to dismiss was (1) to dismiss the complaint generally, (2) to dismiss generally as to John B. Gilfillan, Jr., and Asher Howard, and (3) to dismiss as to the Chamber and the individuals named as secretary and “as officers and directors thereof.” The motion to strike was divided into three paragraphs aimed at designated portions of the complaint as follows: (1) Those touching market quotations, the boycott charge and the charge as to certain rules of the Chamber which, in general, the petition alleged as preventing competition and being discriminatory; (2) those charging contracts for exclusive shipment from shippers financed by members of the Chamber; (3) those charging defamation by publications and by solicitors, agents and employees of members of the Chamber. The motion for orders that no issue of fact be joined or evidence received was in three paragraphs and related to the same matters as the motion to strike. The bases of the motions were (1) that the filing of, the hearing and order on, the complaint denied due process under the Fifth Amendment to the Constitution; (2) that the Federal Trade Commission is not a fair and impartial tribunal to hear and determine the matters covered in its complaint which was based on ex parte information; (3) that the Commission is without jurisdiction to make orders concerning the methods of business of the Chamber because (a) the Chamber is not organized to carry on business for the profit of itself or its members, (b) it does not deal in grain nor is it engaged in commerce but merely furnishes a market place for its members and does not affect interstate commerce in any way, (e) dissemination 'of market quotations and reports is not interstate commerce and withholding same from the Exchange, located in Minnesota also, does not involve nor interfere with interstate commerce, (d) the Chamber exists in accordance with Minnesota statutes authorizing its organization and expressly endowing it with control over, adoption and enforcement of rules governing the admission, control and discipline (even to expulsion) of its members; that all of the rules covered by the complaint are authorized by the state statute and are not within the control of the Commission and Congress has not given such control to the Commission; (4) the complaint fails to state a cause of action under the act creating the Commission, either generally or in the particulars following: (a) In so far as it relates to the organization, existence, functions, rules and resolutions of the Chamber, especially as to charges respecting market quotations, boycott and rules which prevent competition and discrimination, (b) the practice of members of the Chamber advancing money to grain shippers and contracting, in connection therewith, for shipment of grain by those shippers to them, such practices not constituting unfair competition, (c) the acts complained of as constituting unfair competition are against only one “so-called” competitor, hence are not of a “public interest” within the meaning of the act creating the Commission, (d) the rules complained of are in aid of the expressed public policy of the state, have long been maintained'by the Chamber and similar organizations throughout the United States, do not constitute unfair competition and constitute no cause of action under the act creating the Commission. The Answer. The allegations of the answer are, in substance, as follows: Organization of Chamber, under state statutes, with control over membership; furnishes- a market place for its members; no profit to it; market dealings are matters of profit between the members engaging therein and Chamber has no share therein; such dealings in the Chamber regulated by rales of the Chamber to secure fairness and integrity; “patronage dividends” from commissions by members to customers prohibited by rale fixing minimum commission; denies monopoly bnt alleges that favorable trade conditions in the Chamber arising from its enforcement of fair dealing has induced a large number of producers, shippers and dealers in grain to nse that market voluntarily; the creation and voluntary nse of such favorable conditions and facilities for trading does not constitute monopoly; does not bny, sell or exchange market quotations and news but permits telegraph companies to secure same on its trading floor and to send out same during market day “in a limited manner and for a limited use” and makes such available for public use at end of market day; membership open and made up of individuals, many of whom deal, for themselves or others, in interstate commerce grain on the trading floor. Of the respondents named, John G. McHugh is secretary of the Chamber but not a member thereof, those named as officers are not and were not snch at time complaint was filed, some of others are not directors, some are directors, Asher Howard and J. B. Gilfillan are not members; respondents Andrews and Dalrymple are grain dealers on the Chamber floor on their own account and for others; McLeod is a member of a commission firm trading for others on the floor; other of the respondents are executive officers of corporations trading on the floor. There are 593 members of the Chamber, some of whom are residents of states other than Minnesota. Members not regulated as to any business except that transacted on trading floor. Relationship of individual respondents to the Chamber is the same but there is no similarity as to relationship with each other in business methods or practices which latter are independent and competitive. Manager Publishing Company publishes a trade paper, The Co-operative Manager & Farmer, which circulates generally among farmers and grain dealers in Northwestern States. John H. Adams is a stockholder in the above company but has not been connected in any way with the publication of the above paper since 1916. John F. Fleming is such a stockholder and has been manager of such company and editor of snch paper since 1916. The Equity is consignee at St. Paul of considerable quantities of grain which is sold by it and immediately shipped out of Minnesota. From 1907 to 1917, the principal business of the Equity was commission merchant but now it is principally engaged in operation of a line of country elevators, owned by it, and the larger part of the grain shipped to it at St. Paul is that from its lino elevators. In securing consignments of grain, the Equity competes with members of the Chamber just as such members compete among themselves. There is no business nor business competition in distribution of market news. Patronage dividends not paid by Equity until after 8% dividends to stockholders therein. Membership in Chamber not denied to those allowing patronage dividends on earnings other than commissions for handling grain. Chamber admits members who pay ordinary corporate dividends to their own stockholders on entire earnings from all sources, including commissions for handling grain; such members may he incorporated Farmers’ Selling Agencies or Fanners’ Cooperative Elevator Companies organized by producers at a country station. The Equity has never applied for membership in the Chamber. Prior to 1912, the Equity sought by publications to discredit the Chamber and claimed to have established an independent grain exchange but no such exchange was established until 1914, when the Equity, with others, established and became a member of the Exchange. Deny that respondents have at any time harrassed or attempted to destroy either the Equity or the Exchange. The Exchange is a grain market with membership limited to producers of grain and farm producís and does not permit its members to allow “patronage dividends” but prohibits same under a minimum commission rule such as the Chamber and other grain exchanges employ. Some of the members of the Exchange deal in grain in competition with members of the Chamber. A large portion of the grain dealt in by members of the Exchange and of the Chamber is interstate commerce grain. Deny any conspiracy to harass or destroy the Exchange or the business of any of its members, including the Equity. Deny any conspiracy of defamation of the Exchange or any of its members or any defamation of such by traveling solicitors or others. During 1914, the Chamber, at tbe request of J. H. Adams, editor of the Co-operative Manager & Farmer, guaranteed to him expenses for employment of counsel for Fred Schmidt in action by Schmidt, a stockholder of the Equity, to examine the books of the Equity. This it did to vindicate this stockholder’s rights and not to injure the Equity and if the Equity was injured thereby it was because of its wrongful refusal of inspection of its books by such stockholder. This suit resulted in an order permitting examination which was affirmed by the State Supreme Court. During the above litigation, the Equity removed its books from North Dakota and as a result the action) State ex rel. Linde, Attorney General, was brought. ‘ This second action was not instigated by the Chamber but was brought to the attention of the State Attorney General by one Engerud, attorney for Schmidt, wholly of his (Engerud’s) own motion. Respondents had no knowledge of the suit brought in the United States court for Minnesota until after it was brought and have never agreed to nor contributed to the expense thereof. The market quotations of sales on the Chamber floor are property of the Chamber. It assembles such primarily for the use of its' members for use on its floor in the same market day and permits no other use except to telegraph companies to be sent by them to such persons or associations as are approved by the Chamber and only to them for limited use, it being the policy of the Chamber to limit use thereof to promote and as an incident of trading in the Chamber by or through its members. That no publication or public use thereof is permitted during the market day on which they are made. At the end of the market day, they are open to public use. It exchanges such quotations with other markets only where such other quotations are desired by its members and when it appears that such will facilitate business between the members of the respective markets. No futuré trading or continuous market quotations are made-by the Exchange and it can furnish no market information of value to members of the Chamber in exchange for the quotations of the Chamber. Men expelled from the Chamber are members of the Exchange and to permit the Exchange to have the quotations of the Chamber would be to give such discredited persons the benefit of use of this property of the Chamber. To furnish such quotations to the Exchange would be a gift of the property of the Chamber without any basis therefor or limitation thereon and would amount to a publication thereof and a consequent deprivation to the Chamber of its property rights therein and control over the use thereof. Such quotations are refused the Exchange but not from any purpose to embarrass the Exchange, its members or patrons or to prevent its growth as a grain market. Deny any conspiracy to boycott the Equity for the purpose of embarrassing or destroying the Exchange or its members. The members of the Chamber are at liberty to deal with the Equity and buy grain therefrom. Admits two resolutions of the Chamber forbidding its members from selling on its floor grain purchased by or consigned to them when such member has reason to believe that the original shipper was induced to consign . or ship same by a misrepresentation as to the place where or the terms and conditions, under which the grain would be marketed and where the sale thereof on the floor of the Chamber would aid in carrying out such plan to deceive such shipper. Such resolutions were passed to protect shippers to the Minneapolis. market and to prevent frauds as to all grain handled on said floor. Admits uniform and minimum commission rule, and alleges that such rule was applied to “track sales” made with intent and for the purpose of reselling on floor of Chamber because necessary to make above rule effective. Such rule does not establish or maintain monopoly nor restrain trade in grain. Such rules have long been in general operation in grain exchanges throughout the United States. Such rule does not tend to destroy the business of the Exchange or of its members, but the Exchange has a like rule which, in like maimer, prevents “patronage dividends” or rebates as to commissions. Such rules are necessary to secure the equality, fairness and integrity of transactions on a grain exchange where grain is consigned by a great number of people over a wide territory. Such a rule prevents discrimination and protects shippers who have no terminal offices nor special knowledge as to outlets for and purchasers of grain. That the rates established by such rules are fair and reasonable and precisely the same required by the rules of the Exchange. No limit on opportunity to form grain market on different plan and much advertisement that such had been done but great bulk of grain sent to this market is consigned for sale on floor of Chamber, including 95-99% of grain shipped to such market by Earmers’ Co-operative Elevator Companies. Members of the Chamber, as individual dealers, unassisted and in competition, often loan money to elevator companies and frequently it is agreed that such company shall ship certain portions of its grain to such member for sale on the floor of the Chamber or some other terminal market. Such arrangements are individual, are highly beneficial to the elevator companies and are not designed to injure the Exchange or its members. The same practice is followed by the Equity and by other members of the Exchange. (3) Motions and Answer of Manager Publishing Company and John F. Eleming. The Motions. The prayers of these motions are that the complaint he dismissed as to these respondents, that the paragraphs of the complaint charging defamation by publication be stricken out and that an order bo made denying issue of fact and evidence as to matters in such paragraphs. The bases of the motions are as follows: (1) That the filing of and tho hearing and order on the complaint denied due process under the Fifth Amendment to the Constitution; (2) that the Commission is not a fair and impartial tribunal to hear the matters covered by the complaint; (3) that the Commission has no jurisdiction because the publication and circulation of the Co-operative Manager & Farmer is not interstate commerce and does not direetly affect it. The Answer. The allegations of the answer are, in substance, as follows: The Manager Publisher Company (hereinafter called Publisher) is a corporation owning and publishing, at Minneapolis, a gxain trade paper, the Co-operative Manager & Farmer (hereinafter called Publication) which circulates among farmer elevator companies and independent grain dealers in the northwestern and other states. Fleming is a stockholder and officer of the Publisher and has been editor of the Publication since October, 1916. John H. Adams is such stockholder and was such editor prior to October, 1916. Deny any conspiracy to embarrass or destroy the business of the Exchange, or the Equity or of any member of either for the purpose of securing a monopoly of tho grain trade to members of the Chamber. Deny publication of defamatory, false, misleading or unfair statements concerning the Exchange, its officers or members or the Equity, its officers and stockholders, or concerning their financial responsibility or business methods. For years ending early in 1917, the Publication contained many statements concerning the Exchange. The Publication is devoted to the interests of the grain movement and its success depends largely upon the growth and stability of the farmer elevator movement. The above statements in the Publication were published with an honest belief in the truth thereof after investigation and there was a continual offer and readiness to correct any inaccuracies therein, but no inaccuracies have ever been called to their attention and respondent Fleming now states ho believes every such statement to be true. No such statements wore made for tho purpose of injuring the Exchange or the Equity but solely in the interest of the farmers, grain dealers and the farmer co-operative grain movement. The Publisher and its then editor, J. H. Adams, aided Schmidt in his suit, as a stockholder of the Equity, for an examination of the books, records and documents of the Equity, by securing money to employ counsel and by information. It aided this investigation because the Equity was widely soliciting grain consignments, on the basis of co-operative dividends, and stock subscriptions; there was much conflicting public discussion in the press as to the financial condition and business methods of the Equity; the Publisher and its editor were frequently asked for information thereabout; that the publie was entitled to know the facts and that such investigation would reveal the facts and be of public value aud interest. The Publication contained such portions of the evidence therein as were deemed of legitimate public interest or value. None of such acts were purposed to injure or unfairly treat tho Equity or its officers; deny all eonneetion with the other suits. Until the sales manager of tho Equity died, in 1916, he had conducted a campaign ofc‘ misrepresentation against the Chamber and its members and the manner of handling grain in the Chamber. In about the above year, the character of the business of the Equity largely changed from a commission business to that of owner and operator of a large line of country elevators. Thereafter, the commission business of the Equity declined and its campaign of misrepresentation ceased. Therefore, it was no longer important to inform farmers and others as to the actual condition surrounding grain handling at the Minneapolis terminal by members of the Chamber or others. Hence, statements in the Publication concerning the Equity entirely ceased more than four years before this complaint was filed and there is no intention in the future of publishing statements as to the manner the Equity handled grain consignments in the past. There is no longer any newspaper controversy concerning the manner of handling grain either in or outside of the Chamber. Deny any unfair methods of competition within the meaning of section 5 of the act creating the Commission. (4) Motions and Answer of John H. Adams. The motions were the same as those by the Publisher and J. F. Fleming above. The answer is, in general outline and substance, the same as that-of the Publisher and J. F. Fleming above. He had no control or management of the Publication after October, 1916. His connection with statements in, the Publication, prior to October, 1916, concerning the Equity was similar to that of Fleming during a part of 1916 as revealed in the above answer and his aid to Schmidt was securing and furnishing information for use in the suit brought by Schmidt. (5) Application for Dismissal. After denial of the above motions, the respondents filed an Application for Dismissal of Proceeding. This Application called to the attention of the Commission certain matters occurring after filing of the above motions and answers and the submission of such motions. Those new matters were as follows: (a) Passage of the Future Trading Act (Aug. 24,1921, 42 Stat. L. 187), and designation of the Chamber as a “contract market” by the Secretary of Agriculture under authority of that act. The inconsistency of the supervision given the Secretary of Agriculture under that act with the exercise of the powers of the Commission over such matters as are covered by this complaint. The voluntary admission to membership in the Chamber of representatives of co-operative associations of producers who may rebate commissions to bona fide members of such associations. The pendency of a suit in the Supreme Court (Hill v. Wallace) to test the validity of such act. Respondents suggested suspension of further proceedings herein until determination of that litigation. (b) The attention of the Commission was called to an act of the Minnesota Legislature (March 18, 1921, e. 99) declaring exchanges like the Chamber to be public markets and regulating memberships and membership rights therein. Also to chapter 314 of the Laws of Minnesota 1921, placing such markets under the supervision of the State Railroad and Warehouse Commission. Also to rules regulating such markets promulgated by that Commission under authority of said chapter 314. Respondents contended that unless the Future Trading Act be held to put such regulation within the exclusive control of the Secretary of Agriculture, that the above state acts were valid exercises of the police power of the state and controlling. In passing it may be noted that the suit— Hill v. Wallace, 259 U. S. 44, 42 S. Ct. 453, 66 L. Ed. 822—was decided May 15, 1922, and the act was held invalid. This Application was deferred, on July 1, 1922, until the complaint should be presented on its merits. Hearing under the complaint began September 5, 1922. II. Findings, Conclusion and Order of Commission. Hearings were begun on this complaint September 5,1922. Findings and conclusions and the “cease and desist” order, here involved, were made by the Commission on December 28,1923. Finding of Fact. The respondents named as directors, officers and members of the Chamber were such and were fairly representative of the entire membership, as a class, which was so numerous that all could not be made parties “without manifest inconvenience and oppressive delay.” The Chamber was a non-stock or membership corporation conducting a grain exchange for the exclusive use and profit of its members, who were governed and bound by the charter, rules, regulations, usages and customs thereof. It was the largest wheat market in the United States and its members dealt, therein, in a large amount of grain, much of which was in interstate commerce. It dealt, also, in its own and other market quotations. About 90% of the grain received at Minneapolis was shipped to and dealt in by sueh members. The Equity was a corporation with a large number of stockholders residing in several states and practically all of whom were raisers of grain which was shipped to the Equity as sales agent or to be bought and sold on its own account. Also, it owned about seventy-five country line elevators and a large terminal elevator in St. Paul. Much of the grain so dealt in by it was in interstate commerce. Since August, 1914, its principal business office has been in St. Paul with other offices in North Dakota, Wisconsin and Montana. In August, 1914, the Exchange was organized by the Equity and others as a non-stock or membership grain exchange. Its rules did not prohibit “patronage dividends,” as did the rules of the Chamber. Tho members of the Chamber are in competition in dealing in intei-state commerce grain with the-Equity and its stockholders and with the members of the Exchange. The respondents Adams and Fleming were stockholders in the Publisher, the former being editor until October, 1916, and the latter thereafter. The policy of the Publication was dominated and controlled by the secretary of tho Chamber, who furnished the data and material for a great number of the articles hereinafter described. The “Uniform Commission Rule” of the Chamber, as applied to purchases of grain in car lots “on track” at country points, had a tendency to depress grain prices by limiting the price to that of similar shipments to the Minneapolis market. Members were prohibited from rebating eommissions or paying “patronage dividends” and membership was refused to co-operative associations, like the Equity, which allowed sueh dividends. This action of the Chamber hindered and suppressed competition from co-operative terminal marketing of grain and proteeted the members of tho Chamber from the competition of sueh marketing. The Chamber permits market quotations of sales on its trading floor to be transmitted therefrom by telegraph companies in “continuous” (less than ten-minute) or “periodical” (more than ten-minute) services. This transmission is to other exchanges and nonmembcrs which are approved by the Chamber with the right in the Chamber to prohibit such services to any one at its pleasure. It exercises compíete control over the selection of those to whom such services are sent. Knowledge of such quotations are necessary to any one dealing in car lot grain. After July, 1914, the Equity and the Exchange applied for sueh services but were refused sueh by the Chamber, although each of them was ready, able and willing to pay therefor and to abide by and agree to all of the rules and regulations required of applicants and subscribers by the Chamber and nothing in the conduct of the business of either of them prevented sueh compliance. The Chamber and its members conspired among themselves and with others to boycott and refuse to deal with tho Equity, its stockholders or the members of the Exchange and to induce others to so refuse. For more than ten years, respondents have been engaged in a conspiracy to embarrass and destroy the business of the Equity and its stockholders and of the Exchange and its members, with the purpose of maintaining a monopoly in the grain trade. Such monopoly has been so maintained and has unduly hindered and restrained competition in interstate commerce between the members of the Chamber on the one hand and the Equity, its stockholders and members of the Exchange on the other, Acts in pursuance of the above conspiracy were as follows: (a) A resolution (No. 405) passed by the Chamber in October, 1912, falsely charging that nonmembers, in many cases, obtained members to sell grain which was shipped because of false statements and forbidding members from handling grain for nonmembers who solicited grain shipments from farmers or country shippers by false statements concerning the dealings in the Chamber or concerning the right of grain shippers with respect thereto or “unless the person so solieiting such shipment can show a written statement of the shipper to the effect that he real-izes that the person receiving such shipment is not a member of the Chamber and cannot advantages out of the Chamber which he c°nld not himself get.” The purpose and efthis resolution was to cause expense, delay and loss of business to such eompeti^orS- (b) A second resolution (No. 634), in January, 1916, which was interpreted by the Chamber as forbidding its members to act in any manner for the Equity or its stoekholders and was so enforced, (e) Between May, .1912, and May, 3917, publication of false and misleading statements concerning the financial responsibility, and business methods of rthe Equity, the Exchange, their officers and members. These publications and reprints thereof were eirculated among patrons and prospective patrons of the above. Certain of these publications attacked the Equity, tho Exchange, editors who commented favorably on the Equity and country elevators shipping to the Equity; advised directors of country elevators not to interfero with the managers of such in ehoosing persons and places to which grain should he shipped; pretended to offer expert advice on co-operative marketing while conducting a campaign against co-operative terminal marketing. (d) Subsidized tho former official organ of an association of farmers (American Society of Equity), which had been affiliated with the Equity, and circulated copies thereof containing articles defamatory to the Eq~ uity and in praise of the Chamber — such publication carrying the false legend that it was still such official organ. (e) Publication of false statements concerning “double commissions” charged by Equity, refused to retract same and thereafter reiterated them. (f) Espionage of the Exchange and its' transactions. Sent letters to banljs, farmers, customers of the Equity and others designed to injure the credit and standing of the Equity with such persons. False or misleading ■ statements concerning loss of profits and double commissions as to grain handled by the Equity. Although these false, unfair and misleading publications ceased in 1917, the matter so circulated has been and is still being used by farmers, bankers, shippers and country elevator officials to the financial injury of the Equity. (g) For the purpose of destroying the Equity, by having it declared insolvent and a receiver appointed, they instigated and financed the Schmidt suit and induced about fifty members of the Chamber to make affidavits to aid in the Linde suit, which was dismissed because the Equity was solvent. Instigated and financed the suit in the United States court in bad faith and for the purpose of hindering and obstructing the business of the Equity and of injuring its credit and reputation. (h) Inquiries and investigations at banks and other financial backers of the Equity and its stockholders for the purpose of creating suspicion concerning them and injury thereto. ' These actions caused substantial expense to the Equity; injured its credit and standing with grain shippers and the public and the same result followed the allegations of unfair and' dishonest conduct made and published in connection therewith. Conclusion. “That by reason of the facts set forth above, the respondents and all of them, have committed acts to the prejudice of the public and competitors of respondent Chamber and competitors of the members of respondent Chamber, and which acts constitute unfair methods of competition in commerce within the intent and meaning of section 5 of an Act of Congress (Comp. St. § 8836e), entitled, ‘An act to create a Federal Trade Commission, to define its powers'and duties, and for other purposes/ approved September 26, 1914.” Order of Commission. ' The order was divided into three divisions. The first was directed to all of the respondents and forbade conspiracy for the publication or circulation of any false or misleading statements concerning the financial standing, business or business methods of the Equity, its officers or stockholders, or of the Exchange, its officers or members; and for institution of vexatious or unfounded suits against the Equity with the purpose of hindering or obstructing its business or of injuring its credit or reputation. The second division of the order was directed at the Chamber, its directors, officers, members and representatives and forbade the acts and things following: “(1) Combining and conspiring among themselves or with others directly or indirectly to induce, persuade or compel and from inducing, persuading or compelling any 'of the members of said Chamber, their agents or employees, to refuse to buy from, sell to, or otherwise deal with the St. Paul Grain Exchange or its members or the Equity Co-operative Exchange, or its stockholders, or the customers of any of them, because of thé patronage dividend plan of doing business adopted by the said Equity Co-operative Exchange, or by any of the members of the said St. Paul Grain Exchange, as more particularly set forth in paragraph (’4) infra of this order. “(2) Hindering, obstructing or preventing any telegraph company or other distributing agent from furnishing continuous or periodical price quotations of grains to the St. Paul Grain Exchange, or its members, or to the Equity Co-operative Exchange or its stockholders. ■ “(3) Passing or enforcing any rule or regulations, or enforcing any usage or custom, that prohibits or prevents members of the respondent Chamber from conducting their business of dealing in grain according to the co-operative method of marketing grain or according to the patronage dividend plan, like or similar to the method or plan adopted' by the Equity Co-operative Exchange. “(4) Denying to any duly accredited representatives of any organization or association of farmer grain growers or shippers admission to membership in said respondent Chamber, with full and equal privileges enjoyed by any or all of its members or by any or all concerns represented by membership in said respondent Chamber of Commerce, because of the plan or purpose on the part of such organization or association to pay or propose to pay patronage dividends or to operate or propose to operate according to tho co-operative plan of marketing grain, namely, tho plan of returning any portion or all of its earnings or surplus to its patrons or members on the basis of patronage, whether such earnings or surplus is derived from charging patrons ox members commissions or otherwise. “(5) Passing or enforcing any rale or regulation or enforcing a,ny usage or custom, that compels shippers of grain to Minneapolis, Minnesota, from country points or from St. Paul, Minnesota, to pay commission or other charges, unless and until like commissions and charges are paid by shippers of grain to Minneapolis from Omaha, Nebraska, or from Kansas City, Missouri, or other such favored markets. “(6) Passing or enforcing any rule or regulation, or enforcing any usage or custom, that prohibits members of the respondent Chamber, when buying grain on track at country points from paying therefor more than the market price of similar grain prevailing at tha,t time in the Exchange Room of the respondent Chamber, less freight, commissions and other charges. “(7) Promulgating, interpreting or enforcing any rule, custom, regulation or usage in such manner as to require any member of respondent Chamber to pay to the farmer, or country shipper or other person, a price for grain limited to a price equivalent to or identical with the Minneapolis market price, or otherwise limit the exercise of free will and individual independent .judgment of any such member as to the price which he shall pay, or which he desires to pay farmers, country shippers, or other for grain on track at country points.” The third division of the order required respondents to report in detail in writing to the Commission, within sixty days of service of the order upon them, the way in which they had complied with the order. III. The Issues. The issues presented in this proceeding to review the action and order of the Commission are numerous hut may be divided generally into three classes: A. Those which challenge the jurisdiction of the Commission. B. Those which question the sufficiency of tho findings upon which the Conclusion and the Order of the Commission axe based. C. That the order is so indefinite that it cannot be followed or enforced. A. Jurisdictional Issues. There are three jurisdictional issues as follows: (1) That there is no jurisdiction over members of tho Chamber who are not named in the complaint and upon whom it was not solved; (2) That there is no jurisdiction over the Chamber; (3) that there is no jurisdiction over tho publications of which complaint is made. 1. Jurisdiction over Members. It is manifest, and petitioners concede, that the Commission intended and endeavored to include all of the members of the Chamber by designating certain of them as representatives of a class in accordance with the principle expressed in Equity Rule No. 38. That rule is as follows : “When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.” The Federal Trade Commission is no part of the judicial system of the United States. It does not exereise judicial powers. It is an administrative body created by statute. It has only such duties and powers, as are given it, by expression or fair implication therefrom, by statute. Its granted powers of citing parties, summoning witness and holding hearings are merely means proper to enable it to determine matters of fact upon which depend the operation of tho statute against unfair competition in interstate commerce. When “cease and desist” orders come before a Court of Appeals, the proceedings in such court are of an equitable nature. However, the proceedings before the Commission are not judicial and are, therefore, not amenable to a rule designed to control only equitable proceedings before a body exercising judicial power. But the fact that Equity Rule 38 is not controlling does not determine the point raised here. While hearings before administrative bodies need not have all of the formality of judicial procedure but may be informal and, if suited to the matter involved, rather summary (Davidson v. New Orleans, 96 U. S. 104, 107, 24 L. Ed. 616; Hagar v. Reclamation Dist., 111 U. S. 701, 708, 709, 4 S. Ct. 663, 28 L. Ed. 569; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 118, 17 S. Ct. 56, 41 L. Ed. 369), yet there are certain elements of fair play required by the Constitution which are necessary in any character of hearing affecting personal or property rights. In respect to hearings before administrative bodies (as well as judicial tribunals) those elements include (1) a reasonable time and place for hearing where interested parties may attend with reasonable effort (Bellingham Bay & British Columbia R. Co. v. New Whatcom, 172 U. S. 314, 319, 19 S. Ct. 205, 43 L. Ed. 460); (2) reasonable notice to interested parties (Londoner v. Denver, 210 U. S. 373, 385, 28 S. Ct. 708, 52 L. Ed. 1103; English v. Arizona, 214 U. S. 359, 29 S. Ct. 658, 53 L. Ed. 1030; Bellingham Bay & British Columbia R. Co. v. New Whatcom, 172 U. S. 314, 19 S. Ct. 205, 43 L. Ed. 460; Bauman v. Ross, 167 U. S. 548, 17 S. Ct. 966, 42 L. Ed. 270; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 S. Ct. 56, 41 L. Ed. 369; Paulsen v. Portland, 149 U. S. 30, 13 S. Ct. 750, 37 L. Ed. 637; Lent v. Tillson, 140 U. S. 316, 11 S. Ct. 825, 35 L. Ed. 419); and (3) a reasonable opportunity for presentation of such evidence and argument as are appropriate to the proceeding (Londoner v. Denver, 210 U. S. 373, 385, 386, 28 S. Ct. 708, 52 L. Ed. 1103). As this order of the Commission is, in part, directed at the entire membership of the Chamber and as only 13 of the total membership of 590 were made respondents and served with notiee of the complaint, obviously, the unserved members are not parties to the proceeding nor bound by the order unless they can be proceeded against as a class. When procedure against a class is proper in judicial proceedings, there would seem no reason why the same thing should not be done in less formal hearings, sueh as this, provided always that the conditions are such as to make the class representation rule applicable. Sueh practice has been recognized, in hearings before this Commission. Southern Hdwe. Jobbers’ Ass’n v. Comm. (C. C. A.) 290 F. 773, Fifth Circuit. These necessary conditions are (1) a common or general interest and (2) sueh number of individuals as to make it impracticable to bring all of them before the court. Penny v. C. C. & C. Co., 138 F. 769, 773, 71 C. C. A. 135, 8th Cir.; Am. Steel & Wire Co. v. Unions (C. C.) 90 F. 598, 606; McIntosh v. Pittsburg (C. C.) 112 F. 705, 707; 30 Cyc. 135. There would seem to be nó room for doubt that the interest of eaeh member of the Chamber in this controversy and order is, in every substantial outline or particular, the same as that of any other member. It is equally clear that 590 members are an impracticable number to be brought into the hearing. Nor is there any question that the particular members served are not fairly representative of all the membership. Therefore, it would seem that this contention should be denied. 2. Jurisdiction over Chamber. Any jurisdiction of the Commission over the Chamber is denied on several grounds. The first ground is that the Chamber is not organized for profit.- This is true. But it is a legal entity which can and does act and it is legally responsible for its acts and entirely amenable to lawful control. It is capable of entering into a combination or conspiracy or of being an effective instrumentality to execute the purposes of a combination or conspiracy formed by others. A second ground is that the Chamber is not engaged in interstate commerce. The Federal Trade Commission Act (Comp. St. § 8836a, et seq.) was enacted under the power of Congress to regulate interstate and foreign commerce and by its express terms (Section 4) deals only with such commerce. Although the Chamber is not itself engaged in any commerce in the sense of being a trader or shipper, yet it is an instrumentality in the current of interstate commerce which directly affects sueh commerce and is within the regulatory power of Congress. Board of Trade of Chicago v. Olsen, 262 U. S. 1, 43 S. Ct. 470, 67 L. Ed. 839; and see Stafford v. Wallace, 258 U. S. 495, 517, 42 S. Ct. 397, 66 L. Ed. 735, 23 A. L. R. 229; Hill v. Wallace, 259 U. S. 44, 69, 42 S. Ct. 453, 66 L. Ed. 822; U. S. v. Coffee Exchange, 263 U. S. 611, 621, 44 S. Ct. 225, 68 L. Ed. 475; United Leather Workers v. Herkert, 265 U. S. 457, 469, 44 S. Ct. 623, 68 L. Ed. 1104, 33 A. L. R. 566. A third ground is that any effect of the rules of the Chamber upon interstate commerce is indirect, therefore, regulation of sueh Chamber is a matter for state action in the absence of congressional regulation. This may be true as a broad general statement. Hill v. Wallace, 259 U. S. 44, 68, 42 S. Ct. 453, 66 L. Ed. 822, and citations in that opinion. But Congress, in the Federal Trade Commission Act, has assumed to legislate concerning “unfair methods of competition” affecting interstate commerce and if any action by or any rule or regulation of the Chamber has that effect it is certainly subject to that act, no matter what the state has or has not authorized or permitted in that respect. Any action by the state Legislature or any decision of the state courts falls .blunted if it strikes at this power which Congress vested and had constitutional authority to vest in the Commission. Northern Pac. Ry. v. Washington, 222 U. S. 370, 378, 32 S. Ct. 160, 56 L. Ed. 237. A fourth ground is that Congress has exercised its regulatory power over such hoards of trade in the Grain Futures Act (Sept. 21, 1922, 42 Stat. 998 [Comp. St. Ann. Supp. 1923, §§ 8747% to 8747%k]) and that the provisions of that act are exclusive of all other regulation, either national or state. The above act was passed after this complaint was filed but before the order was made herein. As the orders of tho Commission are purely remedial -and preventative, tho effect thereof is entirely in the future. Therefore, the jurisdiction of the Commission should, in this respect, be measured as of the time of the order rather than as of the filing of tho complaint or as of tho hearing thereon. The above act was passed in pursuance of the commerce power of Congress (Board of Trade v. Olsen, 262 U. S. 1, 43 S. Ct. 470, 67 L. Ed. 839) and would necessarily supersede and displace all existing statutes which conflict therewith. Wherein is there conflict between this act and the act creating tho Trade Commission? The prime purpose of the Grain Futures Act was to prevent gambling in grain futures. Chicago Board of Trade v. Olsen, 262 U. S. 1, 43 S. Ct. 470, 67 L. Ed. 839. The plan thereof was to prohibit grain future transactions except in “contract markets” (section 4); to require certain conditions in a market before it could become sucb “contract market” (section 5) and supervision to see that those conditions were lived up to (sections 6 and 8). These prerequisite market conditions were (1) reports of sales; (2) provision for prevention of dissemination, by the board or any member, of false, misleading or known inaccurate reports “concerning crop or market information or conditions that affect or tend to affect the price of grain in interstate commerce”; (3) provision for prevention of price manipulation or “cornering” on its floor; (4) no exclusion from membership of “any ■duly authorized representative of any lawfully formed and conducted co-operative association of producers having adequate financial responsibility which is engaged in cash grain business, if such association has complied, and agrees to comply, with such terms and conditions as are or may he imposed lawfully on other members of such board: Provided, that no rule of a contract market shall forbid or be construed to forbid the return of a patronage basis by such co-operative association to its bona fide members of moneys collected in excess of the expense of conducting such business.” Section 5. It is conceded that the Chamber is sucb a “contract market.” Whether such fraudulent reports, price manipulations or “corners” have, by the above act, been withdrawn from "the jurisdiction of the Commission, oven though they might constitute “unfair methods of: competition,” need not be determined as such character of acts are not involved in this proceeding. The provision as to “profit sharing” membership would seem directly concerned here. It seems clear that Congress intended to and did settle this much contraverted economic matter by requiring “contract markets” to admit representatives of có-operative associations which paid “patronage dividends” to its own members winch, by fair implication, means that such market is not required to admit any other kind of cooperative association — such, for example, as pays patronage dividends to all customers, whether members of such association or not. We think this provision of the act is a legislative definition and withdrawal of all other regulatory control over who shall constitute the membership of “contract markets.” Therefore, there was no jurisdiction in tho Commission to enter those portions of its order, contained in the seeond division thereof, which forbade: “(3) Passing or enforcing any rule or regulation, or enforcing any usage or custom, that prohibits or prevents members of the respondent Chamber from conducting their business of dealing in grain according to the co-operative method of marketing grain or according to tho patronage dividend plan, like or similar to the method or plan adopted by the Equity Co-operative Exchange. “(4) Denying to any duly accredited representatives of any organization or association of farmer grain growers or shippers admission to membership in said respondent Chamber, with full and equal privileges enjoyed by any or all of its member's or by any or all concerns represented by membership in said respondent Chamber' of Commerce, because of the plan or purpose on the part of such organization or association to pay or propose to pay patronage dividends or to operate or propose to operate according to the co-operative plan of marketing grain, namely, the plan of returning any portion or all of its earnings or surplus to its patrons or members on the basis of patronage, whether such earnings or surplus is derived from charging patrons or members commissions vr otherwise.” Except as just set forth, the jurisdiction of the Commission existed as to the Chamber. 3. Jurisdiction over Publications. It is contended that there was no jurisdiction to' prevent the publications in the Cooperative Farmer & Manager for three reasons : That it would be an interference with the liberty of the press; that it would be enjoining a libel; that such publication is not interstate commerce. The liberty of the press is not an unrestricted license and the abuse of that right is subject to criminal prosecution and to civil liability. It is true that there was ho jurisdiction in equity to enjoin publication of a libel (Francis v. Flinn, 118 U. S. 385, 6 S. Ct. 1148, 30 L. Ed. 165), but this was not because of constitutional reasons and such jurisdiction might be conferred by statute (Am. Malting Co. v. Keitel, 209 F. 351, 126 C. C. A. 277, where the-federal cases are cited and discussed). Also, publications might be restrained .where they were instruments in carrying out a boycott or a conspiracy. Gompers v. Buck’s Stove & Range Co., 221 U. S. 418, 437, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Loewe v. Lawlor, 208 U. S. 274, 28 S. Ct. 301, 52 L. Ed. 488, 13 Ann. Cas. 815. As said in Aikens v. Wisconsin, 195 U. S. 194, 206, 25 S. Ct. 3, 49 L. Ed. 154, “the most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law.” Here the elements of boycott and of conspiracy are present. Also the act creating -the Commission provides that its orders shall be enforced by the Courts of Appeals and it is clear that such enforcement must be in the nature of an injunction. The contention that such publications are not interstate commerce is answered by the situation that these publications are found by the Commission to have circulated in interstate commerce and the objectionable statements therein to have been part of a conspiracy to restrain competition in interstate commerce. ■ Loewe v. Lawlor, supra. Therefore, the-necessary jurisdiction exists in •the Commission and to effectively enforce the valid orders of the Commission is conferred upon this court by the act. B. Sufficiency of the Evidence and Findings. If there is substantial evidence to support the findings of facts, such findings are made conclusive by the act (section 5). While there is sharp dispute in the evidence upon every material issue of fact, there is substantial support for some of the findings of the Commission. The subject-matter of the order falls logically into the classifications following: Misleading publications and statements, instigation of vexatious litigation, boycott, denial of “patronage dividend” membership, refusal of daily market -quotations and the “on track” purchase rule. Publications, Statements and Litigation. There can be no dispute that the Chamber furnished an exclusive market for its members nor that such market had for years had a monopoly of the terminal marketing of grain for a large territory which extended around Minneapolis and into several states other than Minnesota. The evidence is clear that it and its members combined and acted in concert in opposing 'the Equity, because they disapproved of its basic idea of “patronage dividends,” and the Exchange, because it was an attempt to establish a rival market. The evidence supports the findings as to misleading publications and statements, and as to instigation of vexatious litigation. The conclusion that such actions constituted “unfair methods of competition” was a proper legal conclusion from such findings. It is contended that the entire controversy was precipitated by the Equity and the Exchange and their members who bitterly assailed the petitioners and compelled them to defend their market. This statement seems broadly true. Where a man or association of men are attacked, they have a legal right to give battle, but this must be done in a lawful way., It may be that the Equity and others sought to destroy the market built up by petitioners and it may be that, as charged, false and misleading propaganda was employed in such assault. The use of such means is not justifiable nor can its use, in turn, justify a return fire of like character. Respondents have a right to publish and speak the truth but they cannot legally go further no matter how great the provocation. It is contended that the objectionable publications ceased four years before the complaint issued and there is no intention to renew them, therefore, there was no basis for the order . as to such. It may be that the immediate inciting cause for the publications has vanished or is inactive. However, this is not of itself sufficient to vacate that part of the order although it might be reason for refusing, without prejudice, an application for the enforcement thereof at this time. Boycott. Also, the evidence supports the findings of a boycott by the members of the Chamber in refusing to deal with the Equity or its stockholders or with the Exchange or its members. Such conduct is in violation of the act where, as here, it is the result of concerted action and for the purpose of hindering competition in interstate commerce. The evidence clearly establishes that the Exchange is .not really a market and the respondents are not, of course, required to regard it as sueh. But the Equity and its stockholders are producers, shippers or handlers of grain and any concert of action by respondents to treat it or them any differently than other nonmembers of the Chamber are treated is unfair, subjeet to the order of the Commission, covered thereby and is sustained. The Chamber issued two circulars (No. 405 and No. 634) each of which contained resolutions passed by the board of directors thereof on October 8, 1912, and January 11, 1916, respectively. The gist of such resolutions is as follows: “That members of the Chamber of Commerce are hereby forbidden to act in any manner as the agent or representative of any individuals, firms or corporations, in the cities of Minneapolis, St. Paul, or elsewhere, not members of the Chamber of Commerce, who are soliciting shipments of grain from the farmers or country shippers i