such result is attained, whether directly or indirectly, by use of common directors, officers, or stockholders, a holding or investment company or companies, a voting trust or trusts, or in any other manner whatsoever. It shall be unlawful to continue to maintain control or management accomplished or effectuated after the enactment of this amendatory paragraph and in violation of its provisions. As used in this paragraph and paragraph (5), the words "control or management" shall be construed to include the power to exercise control or management. (5) For the purposes of this section, but not in anywise limiting the application of the provisions thereof, any transaction shall be deemed to accomplish or effectuate the control or management in a common interest of two carriers Sec. 5 Continuance in future unlawful. "Control or management" construed. 54 Stat. L. 907. sidered as accomplishing Matters con common control or management. (a) if such transaction is by a carrier, and if the by carrier. effect of such transaction is to place such carrier and persons affiliated with it, taken together, in control of another carrier; affiliated with carrier. (b) if such transaction is by a person affiliated with a by person carrier, and if the effect of such transaction is to place such carrier and persons affiliated with it, taken together, in control of another carrier; (c) if such transaction is by two or more persons acting together, one of whom is a carrier or is affiliated with a carrier, and if the effect of such transaction is to place such persons and carriers and persons affiliated with any one of them and persons affiliated with any such affiliated carrier, taken together, in control of another carrier. (6) For the purposes of this section a person shall be held to be affiliated with a carrier if, by reason of the relationship of such person to such carrier (whether by reason of the method of, or circumstances surrounding organization or operation, or whether established through common directors, officers, or stockholders, a voting trust or trusts, a holding or investment company or companies, or any other direct or indirect means), it is reasonable to believe that the affairs of any carrier of which control may be acquired by such person will be managed in the interest of such other carrier. by persons acting together, one carrier or a affiliate. 54 Stat. L. 908. Affiliate construed. Sec. 5 54 Stat. L. 908. Investigation as -order preventing continuance of violation. Provisions of paragraph additional to other penalties and remedies. 54 Stat. L. 908. Injunction to restrain violation or compel obedience. 54 Stat. L. 908. Supplemental orders. 54 Stat. L. 908. Approval un (7) The Commission is hereby authorized, upon complaint or upon its own initiative without complaint, but after notice and hearing, to investigate and determine whether any person is violating the provisions of paragraph (4). If the Commission finds after such investigation that such person is violating the provisions of such paragraph, it shall by order require such person to take such action as may be necessary, in the opinion of the Commission, to prevent continuance of such violation. The provisions of this paragraph shall be in addition to, and not in substitution for, any other enforcement provisions contained in this part; and with respect to any violation of paragraphs (2) to (12), inclusive, of this section, any penalty provision applying to such a violation by a common carrier subject to this part shall apply to such a violation by any other person. (8) The district courts of the United States shall have jurisdiction upon the complaint of the Commission, alleging a violation of any of the provisions of this section or disobedience of any order issued by the Commission thereunder by any person, to issue such writs of injunction or other proper process, mandatory or otherwise, as may be necessary to restrain such person from violation of such provision or to compel obedience to such order. (9) The Commission may from time to time, for good cause shown, make such orders, supplemental to any order made under paragraph (1), (2), or (7), as it may deem necessary or appropriate. (10) Nothing in this section shall be construed to require the approval or authorization of the Commission in exceeding twenty the case of a transaction within the scope of paragraph necessary, not motor vehicles involved. 54 Stat. L. 908. Authority exclusive and plenary. (2) where the only parties to the transaction are motor carriers subject to part II (but not including a motor carrier controlled by or affiliated with a carrier as defined in section 1 (3)), and where the aggregate number of motor vehicles owned, leased, controlled, or operated by such parties, for purposes of transportation subject to part II, does not exceed twenty. (11) The authority conferred by this section shall be exclusive and plenary, and any carrier or corporation participating in or resulting from any transaction approved by the Commission thereunder, shall have full power (with the assent, in the case of a purchase and Carrier may authorized Sec. 5 carry into effect transaction. -State authori sary. sale, a lease, a corporate consolidation, or a corporate merger, of a majority, unless a different vote is required under applicable State law, in which case the number so required shall assent, of the votes of the holders of the shares entitled to vote of the capital stock of such corporation at a regular meeting of such stockholders, the notice of such meeting to include such purpose, or at a special meeting thereof called for such purpose) to carry such transaction into effect and to own and operate any properties and exercise any control or franchises acquired through said transaction without invoking any approval under State authority; and any carriers or other corporations, and their officers and zation unnecesemployees and any other persons, participating in a transaction approved or authorized under the provisions of this section shall be and they are hereby relieved from the operation of the antitrust laws and of all other restraints, limitations, and prohibitions of law, Federal, State, or municipal, insofar as may be necessary to enable them to carry into effect the transaction so approved or provided for in accordance with the terms and conditions, if any, imposed by the Commission, and to hold, maintain, and operate any properties and exercise any control or franchises acquired through such transaction. Nothing in this section shall be construed to create or provide for the creation, directly or indirectly, of a Federal corporation, but any power granted by this section to any carrier or other corporation shall be deemed to be in addition to and in modification of its powers under its corporate charter or under the laws under State of any State. (12) If any provision of the foregoing paragraphs of this section, or the application thereof to any person or circumstances, is held invalid, the other provisions of such paragraphs, and the application of such provision to any other person or circumstances, shall not be affected thereby. -relief from operation of Federal or State laws. Federal corporacreated. tions not thereby -powers additional to those charter or laws. 54 Stat. L. 909. Separability clause. defined. (13) As used in paragraphs (2) to (12), inclusive, 54 Stat. L. 909. the term "carrier" means a carrier by railroad and an ex- "Carrier' press company, subject to this part; a motor carrier subject to part II; and a water carrier subject to part III. Sec. 5 37 Stat. L. 566. 54 Stat. L. 909. Prohibited carrier interest in common carrier by water. -competition for traffic. Each day separate offense. 37 Stat. L. 568. (14) Notwithstanding the provisions of paragraph (2), from and after the 1st day of July 1914, it shall be unlawful for any carrier, as defined in section 1 (3), or (after the date of the enactment of this amendatory section) any person controlling, controlled by, or under common control with, such a carrier to own, lease, operate, control, or have any interest whatsoever (by stock ownership or otherwise, either directly, indirectly, through any holding company, or by stockholders or directors in common, or in any other manner) in any common carrier by water operated through the Panama Canal or elsewhere with which such carrier aforesaid does or may compete for traffic or any vessel carrying freight or passengers upon said water route or elsewhere with which said railroad or other carrier aforesaid does or may compete for traffic; and in case of the violation of this provision each day in which such violation continues shall be deemed a separate offense. NOTE. The second paragraph of sec. 11 (d) of the Panama Canal Orders to be made Act of Aug. 24, 1912 (U. S. Code, title 49, sec. 51), reads as follows: only after hearing. Enforcement of orders; penalties. 37 Stat. L. 566. 54 Stat. L. 909. Determination of fact of competition. -application. -prayer for order. "The orders of the Interstate Commerce Commission relating to this section shall only be made upon formal complaint or in proceedings instituted by the Commission of its own motion and after full hearing. The orders provided for in the two amendments to the Act to regulate commerce enacted in this section [the amendments are now contained in section 5, (14), (15), and (16), and in section 6 (11) (a) and (b) and section 6 (12)] shall be served in the same manner and enforced by the same penalties and proceedings as are the orders of the Commission made under the provisions of section fifteen of the Act to regulate commerce, as amended June eighteenth, nineteen hundred and ten, and they may be conditioned for the payment of any sum or the giving of security for the payment of any sum or the discharge of any obligation which may be required by the terms of said order." (15) Jurisdiction is hereby conferred on the Commission to determine questions of fact, arising under paragraph (14), as to the competition or possibility of competition, after full hearing, on the application of any railroad company or other carrier. Such application may be filed for the purpose of determining whether any existing service is in violation of such paragraph and may pray for an order permitting the continuance of any vessel or vessels already in operation, or may pray for an order under the provisions of paragraph (16). The Commission may on its own motion or the appli Secs. 5-6 operation when made. cation of any shipper institute proceedings to inquire Inquiry into into the operation of any vessel in use by any railroad application not or other carrier which has not applied to the Commission and had the question of competition or the possibility of competition determined as herein provided. In all such cases the order of said Commission shall be final. Finality of NOTE.-See note to par. (14), this section, supra. order. 54 Stat. L. 909. Authorization of operation, or ownership, lease, control. Findings, effect upon operation in public interest. (16) Notwithstanding the provisions of paragraph (14), the Commission shall have authority, upon application of any carrier, as defined in section 1 (3), and after hearing, by order to authorize such carrier to own or acquire ownership of, to lease or operate, to have or acquire control of, or to have or acquire an interest in, a common carrier by water or vessel, not operated through the Panama Canal, with which the applicant does or may compete for traffic, if the Commission shall find that the continuance or acquisition of such ownership, lease, operation, control, or interest will not prevent such common carrier by water or vessel from being operated in the interest of the public and with advantage to the convenience and commerce of the people, and that it will not exclude, prevent, or reduce competition on the route by effect on comwater under consideration: Provided, That if the transaction or interest sought to be entered into, continued, or acquired is within the scope of paragraph (2) (a), the provisions of paragraph (2) shall be applicable sec. 5 (2). thereto in addition to the provisions of this paragraph: And provided further, That no such authorization shall be necessary if the carrier having the ownership, lease, operation, control, or interest has, prior to the date this section as amended becomes effective, obtained an order of extension under the provisions of paragraph (21) of this section, as in effect prior to such date, and such order is still in effect. NOTE.-See note to par. (14), this section, supra. SCHEDULES AND STATEMENTS OF RATES, ETC., JOINT RAIL AND SEC. 6. [Amended March 2, 1889. Following section substituted June 29, 1906. Amended June 18, 1910, August 24, 1912, August 29, 1916, February 28, 1920, August 9, 1935, and September 18, 1940.] [U. S. Code, petition on water route. Applicability of Saving clause, extension when order of obtained. 24 Stat. L. 379. 25 Stat. L. 855. 34 Stat. L. 584. 41 Stat. L. 483. 54 Stat. L. 910. 37 Stat. L. 568. 49 Stat. L. 543. |