Sec. 5 plan. modifications as it shall find to be just and reasonable, the proposed consolidation, merger, purchase, lease, operating contract, or acquisition of control will be in harmony with and in furtherance of the plan for the harmony with consolidation of railway properties established pursuant to paragraph (3), and will promote the public interest, -public interest it may enter an order approving and authorizing such consolidation, merger, purchase, lease, operating contract, Order of approval or acquisition of control, upon the terms and conditions and with the modifications so found to be just and reasonable. promoted. by Commission. Noncarrier owner considered as for certain purposes. 48 Stat. L. 217. (5) Whenever a corporation which is not a carrier is common carrier authorized, by an order entered under paragraph (4), to acquire control of any carrier or of two or more carriers, such corporation thereafter shall, to the extent provided by the Commission, for the purposes of paragraphs (1) to (10), inclusive, of section 20 (relating to reports, accounts, and so forth, of carriers), including the penalties applicable in the case of violations of such paragraphs, be considered as a common carrier subject to the provisions of this part, and for the purposes of paragraphs (2) to (11), inclusive, of section 20a (relating to issues of securities and assumptions of liability of carriers), including the penalties applicable in the case of violations of such paragraphs, be considered as a "carrier" as such term is defined in paragraph (1) of such section, and be treated Securities of non- as such by the Commission in the administration of the subject to Act as paragraphs specified. In the application of such provisions of section 20a in the case of any such corporation the Commission shall authorize the issue or assumption applied for only if it finds that such issue or assumption Findings of Com- is consistent with the proper performance by each carrier uisite to author- which is under the control of such corporation of its service to the public as a common carrier, will not impair the ability of any such carrier to perform such service, and is otherwise compatible with the public interest. carrier-owner carrier. mission prereq ization. Control or man agement unlaw 5 (6) It shall be unlawful for any person, except as pro ful except as provided in paragraph (4), to accomplish or effectuate, or 48 Stat. L. 218. to participate in accomplishing or effectuating, the con vided by par. (4). trol or management in a common interest of any two or more carriers, however such result is attained, whether Similar provision as to persons controlling motor carriers, sec. 213 (a) (2), post. 'Similar provision, Motor Carrier Act, 1935, sec. 213 (b) (1), post. Sec. 5 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 (7), the words "control or manage- "Control or ment" shall be construed to include the power to exercise control or management. management." (7) For the purposes of paragraphs (6) and (11), but 48 Stat. L. 218. not in anywise limiting the application thereof, any transaction shall be deemed to accomplish or effectuate the Means of effectcontrol or management in a common interest of two management carriers ing control or specified. (a) If such transaction is by a carrier, and if the effect of such transaction is to place such carrier and persons by carrier. affiliated with it, taken together, in control of another carrier. ated with carrier. (b) If such transaction is by a person affiliated with a by person afflicarrier, and if the effect of such transaction is to place such carrier and persons affiliated with it, taken together, in control of another carrier. carrier or affiliate. (c) If such transaction is by two or more persons acting by two or more together, one of whom is a carrier or is affiliated with a persons, one 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. tion with carrier 48 Stat. L. 218. (8) For the purposes of paragraph (7) a person shall person's affiliabe held to be affiliated with a carrier if, by reason of the defined. 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. (9) For the purposes of paragraphs (6), (7), (8), and 48 Stat. L. 218. (11), wherever reference is made to control it is imma- or indirect. Control, direct 6 post. Similar provision in Motor Carrier Act, 1935, sec. 213 (b) (3), Sec. 5 -control construed. 48 Stat. L. 218. determine whether par. (6) violated. As used terial whether such control is direct or indirect. (10) The Commission is hereby authorized, upon complaint or upon its own initiative without complaint, but Investigation to after notice and hearing, to investigate and determine whether any person is violating the provisions of paragraph (6). 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. -prevention of continued viola tion. 48 Stat. L. 219. (11) For the proper protection and in furtherance of the plan for the consolidation of railway properties established pursuant to paragraph (3) and the regulation of interstate commerce in accordance therewith, the Commission is hereby authorized, upon complaint or upon its own initiative without complaint, but after notice and hearing, to investigate and determine whether the holding Holding stock or by any person of stock or other share capital of any share capital sub-carrier (unless acquired with the approval of the Commisor hindering con- sion) has the effect (a) of subjecting such carrier to the solidation plans. control of another carrier or to common control with jecting to trol, preventing Restriction of voting power. Suspension of proceedings. another carrier, and (b) of preventing or hindering the carrying out of any part of such plan or of impairing the independence, one of another, of the systems provided for in such plan. If the Commission finds after such investigation that such holding has the effects described, it shall by order provide for restricting the exercise of the voting power of such person with respect to such stock or other share capital (by requiring the deposit thereof with a trustee, or by other appropriate means) to the extent necessary to prevent such holding from continuing to have such effects. (12) If in the course of any proceeding under this sec48 Stat. L. 219. tion before the Commission, or of any proceeding before a court in enforcement of an order entered by the Commission under this section, it appears that since the beginning of such proceeding the plan for consolidation has been reopened under paragraph (3) for changes or modifications with respect to the allocation of the properties of 'Similar provision in Motor Carrier Act, 1935, sec. 213 (b) (2), post any carrier involved in such proceeding, then such proceeding may be suspended. Sec. 5 to restrain viola (13) The district courts of the United States shall Injunction, etc., have jurisdiction upon the application of the Commission, tion or compel obedience. alleging a violation of any of the provisions of this sec- 48 Stat. L. 219. tion 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. (14) The Commission may from time to time, for Supplemental good cause shown, make such orders, supplemental to any 48 Stat. L. 219. order made under paragraph (1), (4), (10), or (11), as it may deem necessary or appropriate. or other laws pre (15) 10 The carriers and any corporation affected by any order made under the foregoing provisions of this section shall be, and they are hereby, relieved from the operation of the antitrust laws as designated in section 1 of the Act Relief from operaentitled "An Act to supplement existing laws against tion of antitrust unlawful restraints and monopolies, and for other pur- venting conformposes ", approved October 15, 1914, and of all other restraints or prohibitions by or imposed under authority of law, State of Federal, in so far as may be necessary to enable them to do anything authorized or required by such order. ity. of Act, effect. (16) If any provision of the foregoing paragraphs of Partial invalidity this section, or the application thereof to any person or 48 Stat. L. 219. 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. "carrier." (17) As used in paragraphs (4) to (16), inclusive, the "Person" and term "person" includes an individual, partnership, association, joint-stock company, or corporation, and the term "carrier " means a carrier by railroad subject to this part. (18) [This paragraph, which related to acquisition or consolidation of telephone properties, repealed by Act of June 19, 1934 (48 Stat. L. 1080), which vested jurisdiction post. 9 post. 10 post. Identical provision in Motor Carrier Act, 1935, sec. 213 (c), Similar provision in Motor Carrier Act, 1935, sec. 213 (d), Sec. 5 37 Stat. L. 566. 48 Stat. L. 220. own competing water carriers. over the subject matter in the Federal Communications Commission. See U. S. Code, title 47, § 221.] (19) From and after the first day of July, nineteen Railroads not to hundred and fourteen, it shall be unlawful for any railroad company or other common carrier subject to the Act to regulate commerce 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 said railroad or other 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 comtion a separate pete for traffic; and in case of the violation of this provision each day in which such violation continues shall be deemed a separate offense. Each day's viola offense. Commission to (20)11 Jurisdiction is hereby conferred on the Interstate Commerce Commission to determine questions of 18 Stat. L. 220. fact 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 this section and pray for an order permitting the continuance of any vessel or vessels already in operation, or for the purpose of asking an order to install new service not in conflict with the provisions of this paragraph. The Commission may on its own motion or the application of any shipper institute proceedings to inquire into the operation of any vessel in use by any railroad 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. (21) 12 If the Interstate Commerce Commission shall be 48 Stat. L. 220. of the opinion that any such existing specified service by permit continu- water other than through the Panama Canal is being operation by rail- operated in the interest of the public and is of advantage to the convenience and commerce of the people, and that such extension will neither exclude, prevent, nor Order to be final. 37 Stat. L. 567. Commission may ance of water-line roads. "Orders hereunder shall be made only in formal proceedings and after hearing, Panama Canal Act, sec. 11 (d) [U. S. Code, title 49, sec. 51], post. 12 See footnote to par. (20), this section, ante. |