number of applications that are received, is approximately one-third as against one-fourth, and that comes from two reasons: Prospective complainants, if we can call them that, feeling hardship, may look over the cases that the commission has passed on and find that they have no remedy for their case-that is, if they have their attention called to the absence of the interstate-commerce feature of the case, or something of that sort-and so they do not make their application. Secondly, as rulings are made and cases are decided, a business concern and in the main, business is ever alert to adapt itself to lawful practices-having seen a decision on a practice that it, itself, is indulging in, tends to eliminate it itself. I often feel that in the decision of one case perhaps 50 or 100 or an indefinite number may have been decided and the remedy brought to business concerns of which we will never know.

Mr. DYER. Mr. Commissioner, may I ask you a question? How long has this been the policy of the commission to have the complaints kept in secrecy? That is, a man makes a complaint against somebody charging unfairness and it is the policy of the commission, as I understand it, to keep that matter a secret and refuse to divulge the name of the man who made the complaint. How long has that existed, and what is the reason for it?

Mr. COLVER. I would like to meet that question and meet it squarely and without the slightest criticism of the question. I divide it in replying. The question is, How long has it been the custom of the commission to keep these matters a secret and to refuse to divulge the name of the complainant? It has never been and is not now the custom of the commission to keep these complaints a secret. It has always been and is now the custom of the commission not to disclose the name of the complainant.

Mr. DYER. Is that an order of the commission or one of the rules that you have adopted?

Mr. COLVER. I can not say whether it is a written rule, but it is very clearly known.

Mr. DYER. I was told by the attorney, when I asked the name of a party who had complained against a constituent of mine, that it was absolutely forbidden by order of the commission to give that information even to a Member of Congress.

Mr. COLVER. As to the identity of the complainant?

Mr. DYER. Yes, sir.

Mr. COLVER. Yes; I think that is true.

Mr. DYER. What is the reason for that? The matter goes into court, and the party complained against, if the complaint is issued, has a right to take it to court and get the commission's ruling reversed. Then there is no way to prevent it.

Mr. COLVER. Every way in the world. The complainant is not a party to the suit. The commission is.

Mr. DYER. Do you mean to say that the commissioners, or whoever are put on the witness stand, would be privileged to decline to answer who made this complaint?

Mr. COLVER. Well, it has never been asked in court yet. If I were called to the witness stand and called upon to disclose the name of the complainant in the case, I would decline to do so except under the direct order of the court, and I would ask my counsel to combat such an order being made.

Mr. DYER. What is the reason for that?

Mr. COLVER. The reason for it is this: When a business concern is suffering in unfair competition which is either going to cripple him or kill him commercially, and when the law says that that thing shall be done, not in his interest but in the interest of society, in the interest of the business world as a whole, then the United States and not the complainant is the injured party. The complainant often comes to the commission and says, "I would like to complain, but I do not dare because before you can save me they will kill me commercially, and I will be subject to devious attacks, and what I am getting now will not be a marker to what I will get if I am known to be the complainant in this case;" and when big men as well as little men are in terror of their more powerful competitors or of their several equally powerful comeptitors banded together, there is good reason to conceal their identity. It is not a question of the man himself who complained, it is society, it is the Government of the United States which complains because its laws are being violated.

Mr. MORGAN. What percentage of the cases that are brought against business men after the notice has been served agree to discontinue those unlawful practices without any formal trial? Mr. COLVER. A very large number.

Mr. MORGAN. What percentage would you say?

Mr. MURDOCK. Mr. Colver, will you insert in the record an answer that I have had prepared that answers the question, and shows that a large number were disposed of.

Mr. COLVER. Thank you. [Reading:]

There have been 1,401 applications for complaints before the commission since the foundation of the commission. Of these, after ex parte examination, 673 were dismissed without public notice or knowledge. That is, without anything in the public prints whatever. 392 are not in process of such examination With respect to the remaining 336 applications for complaint, the formal complaint of the commission issued, and of the 336 adversary proceedings, formal complaint proceedings, 176 have been disposed of, while 160 are pending. Of the 176 disposed of, 23 were dismissed, the respondents having made sufficient showing of defense. In the remaining 153 cases, the order to cease and desist was issued, and in 134 of these instances, that order to cease and desist was issued by and with the consent of the respondent. In the remaining 19 cases, the action went through trial and argument, and resulted in an order to cease and desist. Out of the whole number only in six cases has the respondent been moved to avail himself of his right of appeal against the findings of the commission to the Circuit Court of Appeals of the United States. In one of these cases the commission's order was affirmed and in another it was reversed. A petition for certiorari to the Supreme Court of the United States has been filed in the latter case. Decisions have not as yet been rendered in the other

our cases.

Mr. BOIES. May not the commission act on its own initiative in the first instance without any formal complaint filed?

Mr. COLVER. The commission might act, but it does so only in a relatively small percentage of the cases.

Mr. BOIES. They why may not a man come before you if there is danger of destroying his privileges, and apply to you orally? Mr. COLVER. Oh, yes; that can be done.

Mr. STEELE. Then would not the commission issue a complaint on its own motion?

Mr. COLVER. Sometimes the commission substitutes its own name for the name of the complainant, if it thinks that he would be destroyed.

Mr. STEELE. But the commission would not undertake to enter the final judgment without the usual procedure in that case? Mr. COLVER. Oh, certainly not.

Mr. BOIES. Then I suppose the reason the commission keeps the name of the complainant a secret is due somewhat to the fact that the complainant might be bribed to fall out and fail to carry on the proceedings, so far as he is concerned, or refuse to give evidence?

Mr. COLVER. I have never been conscious of that feeling myself. I have only been conscious of the feeling that when a man comes in and sits at my desk and says, "I want the redress that the law offers me, but I am afraid to ask for it, because I would be crushed and ruined if I were known to have done it, but if I can get this redress, if it is lawful that I should have it, and if it can be given to me without my identity being disclosed, I would like to have it, but as between that and having them know that I asked for it, I would rather take my chances." When a business man says that to me, in the absence of any direction to the contrary in the law, I am inclined to doubt whether any harm has been done in keeping his

name a secret.

Mr. GARD. Would not this fear to make known his identity warrant an assumption on the part of the commission that that in itself is the result of the illegal practice which should be remedied? In other words, somebody on the outside was attempting to coerce and to crush him because he wanted the right thing done?

Mr. COLVER. Yes. If a business man is suffering either slow strangulation or murderous assault, one of the symptoms would be an evidence of fear on his part.

Mr. GOODYKOONTZ. Could not you put it in the same category as the hearing before the grand jury where the party who is indicted has no concern about who goes before the grand jury, because that is an initial proceeding that does not concern him in the least?

Mr. COLVER. Quite true. That is an exact statement.

Mr. MORGAN. Are the facts generally such that the party complained of would have a suspicion as to who was making this complaint? Is it your view that ordinarily a man who is called before the commission has a suspicion and knows pretty well who is the complainant, although he is not disposed to name him, or is the injury done to so many business men that he does not have any really good ground for suspecting the right one? How is that?

Mr. COLVER. Yes; they sometimes do suspect and sometimes the person complained against comes and makes just as earnest a plea for the disclosure of the identity of the informant as the informant has made for the concealment of his identity. In some cases where a man in that situation reflects bona fides in his action, I have said, "Whom do you suspect? I may answer you and I may not; but who is it?" He would name somebody and if it was not the complainant I would say, "Well, you are wrong; that is not the man. They sometimes think that perhaps it is a business competitor trying to use the processes of the commission to really make an unfair attack and in that case we are glad to tell him who is not the complainant, but we do refuse, and I think properly, to disclose the identity of the complainant if the complainant requests it.

Mr. IGOE. When the formal complaint is filed, the respondent has an opportunity to appear?

Mr. COLVER. Yes, sir.

Mr. IGOE. Are the witnesses who appear in support of the complainant then made known to the respondent?

Mr. COLVER. They are made known to the respondent, and he is privileged to meet them face to face and cross-examine them after the formal complaint and answer-after the issues are made up. Mr. STEELE. At the time of the trial?

Mr. COLVER. Yes, Sir. Now, let us take the sort of procedure that is requested by our critics and see how it works. Naturally, if you are going to have a proceeding held in a Government department it can not be anything but an open, public hearing, because no star-chamber proceeding would be tolerated

Mr. STEELE. Is private counsel permitted to appear in support of the complainant?

Mr. COLVER. Oh, no; not in support of the complaint; only to the extent that a party in interest may ask to be allowed to intervene, and, having intervened, he is made what the lawyers would call a party defendant, not because he is guilty of the acts charged, but because he wants to get into court in the case. Those applications for intervention are very rare.

As to participation of private counsel for the complainant, that is discouraged. The commission carries forward the matter in its own name and with its own counsel. If it receives assistance from private counsel, adversary to the respondent, that private counsel must work in the open and he and his client must be known to the adversary.

Let us return to the procedure that has been suggested by our critics. Suppose, on the application for complaint, witnesses were called and examinations were had, all in public. Under those circumstances a man could file a complaint filled with all the most outrageous charges in the world and you would have the spectacle of a business concern dragged into a public hearing to meet the most outlandish charges in public, and you would have it printed from one end of the country to the other.

True, the case might fall in the end, and it would fall in the end,. but that would not prevent its being written into the record and being printed in the papers all over the country, and a thousand times more harm would be done than under the present methods.

Under the present method the complaint is taken and sifted down to at least a reasonable statement of facts, and the wild stuff, the guesses that the complainant makes about his competitor and his suspicions about him, are all winnowed out and when the case comes into the daylight we have trimmed away and cut away any blackmail and slander, if there was any in there, and cut it down to plain cold allegation of fact. We have narrowed down to a complaint which may be sustained or dismissed.

But the thing that we are most frequently asked is this: Constantly a concern having knowledge, by reason of the visits of the commission's investigator to it, that it is being investigated upon application for complaint, comes to the Commission in person or by attorney and says, "Do not issue a complaint against us. If there is anything wrong we will correct our practice." Often they say: "Nothing that we do is wrong, but if there is anything that you think is wrong, if there is anything you would like to have us do, we will do it."

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Of course, that second course is unthinkable. It is unthinkable that a Government official should let a man come in and say, "I am doing no wrong; I am conducting my business in a proper, decent, and legitimate way, but if you do not like it, you indicate anything you would like to have me do and I will do it." That is unthinkable. The Government official who would do a thing like that would be a super-Czar, imposing his own will on an innocent It can not be done. So that has to go by the board on the

man.

face of it.

Mr. MORGAN. Without interrupting you, I have wondered what is the class of business men or corporations against whom these complaints are generally made. That is to say, are they large corporations, corporations controlling a very large proportion of the business in their line, or are they generally small corporations that have no particular element of monopoly? What is the general character of your respondents?

Mr. COLVER. They range all the way from the small manufacturer of an electric curling iron to the Standard Oil Co. and the United States Steel Corporation.

Mr. MORGAN. That is, the dominant number is the large corporation?

Mr. COLVER. I would not think so. The large corporations are not in competition. The large corporations are in the enjoyment of substantial monopoly. I would say that the greatest majority of the cases that come to the commission are that body of medium-sized business concerns of about equal strength who are now engaged in the remnants of the pleasant art of competition in this country.

Mr. MORGAN. Now, if it is along that line, I would like to know if you classify these complaints. What is the general character of these complaints, what are the acts complained of, what are the wrong acts generally complained of, if that has not been already gone over? Mr. COLVER. It is so difficult to estimate or to attempt a summary that if you will permit me I will insert in the record a complete list taken from the annual report, but if you want it as a basis for ques

tions

Mr. MORGAN (interposing). I would like to know generally what the wrongs are that are complained of. I would be glad to have that list from your annual report in the record.

Mr. COLVER. Then as a basis for questions I will give you something that I will not pretend to call an exact or complete schedule. You ask for the general character of the complaints that are made. There is espionage, enticement of employees, securing business secrets, secret discounts, tying contracts-tying one sort of merchandise to another false advertising, misrepresentation of competitors' goods, derogation of competitors' goods, derogation of competitors' business methods with especial reference to his credit in such transactions as require the sale of goods for future delivery at a considerable distance in time. It is not at all conducive to keen competition to be told that "if you buy from that fellow he will probably be out of business before delivery day comes because he is unsound in his credits." Another complaint is simulation of names, where one concern has built up through honest dealing and good practices a valuable name, a name that has good will, and then to have some one