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About The commoner. (Lincoln, Neb.) 1901-1923 | View Entire Issue (Nov. 1, 1914)
JJWfW M' D The Commoner NOVEMBER, 1914 11 the other: And provided further, That nothing ' cohfairiedriit-thig sections shall'forbidx a- director.-. of class A of. a- fqderaL. reserve bank-, as. defined., in the federal reserve act, from being an officer or director or both an officer and director in one member bank. That from and after two years from the date of the approval of this act no person at the same time shall be a director in any two or more cor porations, any one of which has capital, surplus, and undivided profits aggregating more than $1,000,000, engaged in whole or in part in com merce, other than banks, banking associations, trust companies, and common carriers subject to the act to regulate commerce, approved Feb ruary fourth, eighteen hundred and eighty-seven, if such corporations are or shall have been there tofore, by virtue of their business and location of operation, competitors, so that the elimina tion of competition" by agreement between them would constitute a violation of any of the pro , -visions of any of the antitrust laws. The eligi bility of a director under the foregoing pro visions shall be determined by the aggregate amount of capital, surplus, and undivided prof its, exclusive of dividends declared but -not paid to stockholders, at the end of the fiscal year of said corporation next preceding the election of directors, and when a director has been elected in accordance with the provisions of this act it shall be lawful for him to continue as such for ono year thereafter. When .any person elected or chosen as a di rector or officer or selected as an employee of any bank or other corporation subject to the pro visions of this act is eligible at the time of his election or selection to act for such bank or other corporation in such capacity, his eligibility to act in such capacity shall not be affected and he shall not become or be deemed amenable to any 6f the provisions . hereof by reason of any change in the affairs of such bank or other cor poration from whatsoever cause, whether spe cifically excepted by any of the provisions hereof or not, until the expiration of one year from the date of hfs election or employment. Sec. 9. Every president, director, officer or manager of any firm, association or corporation engaged in commerce as a common carrier, who embezzles, steals, abstracts or willfully misap- "plies, or willfully permits to be misapplied, any of the moneys, funds, credits, securities, prop erty or assets of such firm, association or cor poration, arising or accruing from or used in such commerce, in whole or in part, or willfully or knowingly converts the same to his own use or to the use of another shall be deemed quilty of a felony and upon conviction shall be fined not less than $500 or confined in the penitentiary not less than one year nor more than ten years, or both, in the discretion of the court. . Prosecutions hereunder may be in the district court of tho United States for the district where in the offense may have been committed. That nothing in this section shall bo held to tako away or impair tho jurisdiction of the courts of the several states under the laws there of; and a judgment of conviction or acquittal on the merits under the laws of any state shall be a bar to any prosecution hereunder for the same act or acts. Sec. 10. That after two years from the ap proval of this act no common carrier engaged in commerce, shall have any dealings in securi ties, supplies or other articles of commerce, or shall make or have any contracts for construc tion or maintenance of any kind, to the amount of more than $50,000, in the aggregate, in any one year, with another corporation, firm, part nership, or association when the said common carrier shall have upon its board of directors or as its president, manager or as its purchasing or selling officer, or agent in tho particular trans action, any person who is at the same time a di rector, manager, or purchasing or selling officer of or who has any substantial interest in, such other corporation, firm, partnership or associa tion unless and except such purchases shall be made from, or such dealings shall be with, the bidder whose bid is the most favorable to such common carrier, to be ascertained by competitive bidding under regulations to be prescribed by rule or otherwise by the interstate commerce commission. No bid shall bo received unless the name and address of the bidder or the names And addresses of the officers, directors, and gen eral managers thereof, if the bidder be a cor poration, or of the members, if it be a partner ship or firm, be given with the bid. Any person who shall, directly or indirectly, do or attempt to do anything to prevent anyone from bidding or shall do any act to prevent free and fair competition among the bidders or those desiring to bid shall be puuished as prescribed inthis section in thocase of an offlcbror-di- rector. - . Every such common carrier having any such transactions or making any such purchases shall within thirty days after making the same file with tho interstate commerco commission a full and detailed statement of the transaction show ing tho manner of tho competitive bidding, who were tho bidders, and tho names and addresses of the directors and officers of tho corporations and the members of the firm or partnership bid ding; and whenever tho said commission shall, after investigation or hearing, have reason to be lieve that tho law has been violated in and about the said purchases or transactions It shall trans mit all papers and documents and Its own vlowa or findings regarding the transaction to the at torney general. If any common carrier shall violate this sec tion, it shall bo fined not exceeding $25,000; and every such director, aent, manager or officer thereof who shall havo knowingly voted for ov direoted -the act constituting such vio lation or who shall have aided or abetted in t such violation shall be deemed guilty of a mis ' demeanor and shall be fined not exceeding $5,000, or. confined In jail not excoodlng ono year, or both, in tho discretion of the court. Sec. 11. That authority to enforce compli ance with 'sections two, throe, seven and eight of this act by the persons respectively Subject thereto is hereby vested in the interstate com merce commission whoro applloablo to common carriers, in the federal reserve board where ap plicable to banks, banking associations, and trust companies, and in tho federal trado com mission where applicable to all other character of commerce, to be exercised as follows: Whenever the. commission or board vestod with jurisdiction thereof shalL have reason to believe -that any person is violating or has vio lated any of tho provisions of sections two, three, seven and eight of this act it shall issue. and serve upon such person a complaint stating its charges in that respect and containing a notice of a hearing upon a day and at a place therein fixed at least thirty days after the service of said complaint. The person so complained of shall have the right to appear at the place and time so fixed and show cause why an order should not be en tered by the commission or board requiring such person to cease and desist from the violation of the law so charged in said complaint. Any person may make application, and upon good cause shown may be allowed by the com mission or board, to intervene and appear in said proceeding by counsel or in person. Tho testimony in any such proceeding shall be re duced to writing and filed in tho office of tho commission or board. If upon such hearing the commission or board, as the case may bo, shall be of the opinion that any of the provisions of said sections have been or are being violated, it shall make a report in writing in which it shall state its findings as to the facts, and shall issue and cause to bo served on such person an order requiring such person to cease and desist from such violations, and divest itself of the stock hold or rid itself of the directors chosen contrary to the provisions of sections seven and eight of this act, if any there be, in the manner and within the time fixed by said order. Until a transcript of the record in such hearing shall have been filed in a circuit court of appeals of the United States, as here inafter provided, tho commission or board may at any time, upon such notice and in such man ner as it shall deem proper, modify or set aside, in whole or in part, any report or any order made or issued by it under this section. If such person fails or neglects to obey such order of the commission or board while the same is in effect, tho commission or board may apply -to the circuit court of appeals of the United States, within any circuit where tho violation complained of was or is being committed, or where such person resides or carries on business, for the enforcement of its order, and shall cer tify and file with its application a transcript of the entire record in the proceeding, including all tho testimony taken and the report and order of tho commission or board. Upon such filing of the application and transcript the court shall cause notice thereof to bo served upon such per son and thereupon shall havo jurisdiction of the proceeding and of tho question determined there in, and shall have power to make and enter upon the pleadings, testimony, and proceedings set forth in such transcript a decree affirming, mod ifying, or setting asido the order of tho com mission -or board. - Tho findings of tho commis sion or-board'afl' to' tho facts, if supported y testimony, shall bo conclusive. If either party shall apply to tho court for loavo to adduco ad ditional evidence, and shall show to tho satis factlon of the court that such additional evidence In matorial and that thero wero reasonable grounds for tho fnlluro to adduco such evidence In tho proceeding boforo tho commission or board, tho court may order such additional evl denco to bo taken boforo tho commission or board and to bo adduced upon tho hearing In such manner and upon such terms and condi tions as to tho court may oeom prop or. The commission or board may modify its findings as to tho facts, or mako now findings, by reason of the additional evidence so taken, and It shall lilo such modified or new findings, which, if sup ported by tpstlmony, shall bo concluslvo, and ltd rocomtnondutiou, If any, for tho modification or sotting aside of its original order, with tho re turn of such additional evidence. The judgment und docreo of the court shall bo final, except that tho samo shall bo subject to review by the su premo court upon certiorari, as provided in sec tion two hundred and forty of the judicial code. Any party required by such order of the com mission or board to cease and deslBt from a vio lation charged may obtain a review of such order in said circuit court of appeals by filing in the court a written petition praying that tho order of tho commission or board bo set asldo. A copy of such petition shall bo forthwith sorved Upon the commission or board, and thereupon tho commis sion or board forthwith shall certify and file in the court a transcript of the record as hereinbe fore provided. Upon tho filing of tho transcript the court shall havo tho samo jurisdiction to affirm, set aside, or modify the order of the commission or board as in the case of an application by the commission or board for tho enforcement of its order, and the findings of the commission or board as to the factB, if supported by testimony, shall in like mannor bo conclusive. Tho jurisdiction of tho circuit court of ap peals of tho United States to enforce, set aside, or modify orders of tho commission or board shall bo exclusive. Such proceedings in tho circuit court of ap peals shall bo given precedence over other cases ponding therein, and shall bo in every way ex pedited. No order of the commission or board or tho judgrnont of the court to enforce the same shall in any wise relievo or absolve any porson from any liability under tho antitrust acts. Complaints, orders, and other processes of the commission or board under this section may be served by anyone duly authorized by tho com mission or board, either (a) by delivering a copy Uiereof to tho person to bo served, or to a mem ber of tho partnership to bo served, or to the president, secretary, or other exocutlvo officer or a director of tho corporation to bo served; or (b) by leaving a copy thereof at the principal office or place of business of such person; or (c) by registering and mailing a copy thereof addressed to such person at his principal office or place of business. Tho verified return by tho person so serving said complaint, order, or other process setting forth the manner of said service shall be proof of tho same, and tho return post office receipt for tho said complaint, order, or other process registered and mailed as aforesaid shall bo proof of tho service of tho samo. Sec. 12. That any suit, action, or proceeding under the antitrust laws against a corporation may bo brought not only In the judicial district whereof it is an inhabitant, but also in any dis trict wherein it may be found or transacts bus iness; and all process in such cases may be served in the district of which it is an inhabitant, or y wherever it may bo found. Sec. 13. That in any suit, action, or pro ceeding brought by or xn behalf of tho United States subpoenas for witnesses who are required to attend the court of tho United States In any judicial district in any case, civil or criminal, arising under the anti trust laws may run Into any other district: Provided, That in civil cases no writ of subpoena shall issue for witnesses living out of the district in which the court is held at a greater distance than one hundred miles from the place of hold ing the same without the permission of the trial court being first had upon proper application and cause shown. Sec. 14. That whenever a corporation shall violate any of the penal provisions of tho anti trust laws, such violation shall be deemed to be also that of tho individual directors, officers or agents of such corporation who shall have (Continued on Page 20)