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In the opinions of the Attorney General of the United States, 23 Op. Atty. Gen. 635, it is said that the Philippine Islands are not "completely organized territories," within the provisions of the trade-mark laws, but this opinion was rendered before the Philippine Islands were formally ceded to the United States by Spain. In 25 Op. Atty. Gen. 179 (July 6, 1904), it is held that the copyright laws do not apply to the Philippine Islands, but the Attorney General bases his opinion on that of his predecessor and his whole opinion is so mixed up and illogical that it would not seem to have much weight as authority.

In a more recent and better opinion of the Attorney General, 30 Op. Atty. Gen. 462 (Oct. 28, 1915), it is held that:

"While, like Porto Rico, the Philippine Islands are not incorporated into the United States, they clearly are territory of the United States, and to the extent that Congress has assumed to legislate for them, they have been granted a form of territorial government, and to this extent are a territory. Though their form of government is not identical with that of Porto Rico, the reasoning of the opinions in the cases supra holding that, for certain purposes, Porto Rico is to be deemed a territory, as that word is used in various Federal statutes, is clearly applicable to the Philippine Islands. R. S. Sec. 5546, draws no distinction between an organized' or 'unorganized,' 'incorporated' or 'unincorporated' territory. Considering the purpose for which it was enacted and the convenience of administration of the present laws which it was intended to promote, I see no reason why the term 'territory' should not be given a broad construction in order to effectuate the evident needs of the statute."

Presumably Webb Law Not Applicable to Philippine Islands.

As far as the Webb-Pomerene Law and the Sherman Antitrust Law are concerned the Philippine Islands are as much a "territory" as Porto Rico, and as stated above, the courts have held that the Sherman Anti-trust Law is in force in Porto Rico. But, let us examine the Philippine Act of August 29, 1916, ch. 416, Sec. 5 of which expressly provides that:

"The statutory laws of the United States, hereafter enacted shall not apply to the Philippine Islands, except when

ever so specifically provided, or it is so provided in this Act," and Sec. 10 of which provides:

"While this Act provides that the Philippine government shall have the authority to enact a tariff, the trade relations between the Islands and the United States shall continue to be governed exclusively by the Congress of the United States."

Does the Webb-Pomerene Law specifically provide that it shall apply to the Philippine Islands, in compliance with Section 5 of the Philippine Act? Not unless this is done by use of the word "territory." It is extremely doubtful whether any court would hold that by using the term "territory," the Webb-Pomerene Law is made to apply specifically to the Philippine Islands.

It would seem, therefore, that the Philippine Islands do not come within the terms of the Webb-Pomerene Law in any way -that associations may not export goods from the mainland to the Philippine Islands, and that associations may not be formed in the Philippine Islands to export to foreign countries.

The Panama Canal Zone

Canal Zone "A Part of the United States."

The Panama Canal Zone is a part of the United States1 to which Webb Law associations may not export goods. It was contended in Wilson v. Shaw, 204 U. S. 24 (Jan. 7, 1907), that the Canal Zone was not "a part of the United States," but Justice Brewer in his opinion held:

"It is hypercritical to contend that the title of the United States is imperfect, and that the territory described does not belong to this nation, because of the omission of some of the technical terms used in ordinary conveyances of real estate."

The fact that the United States treats the Canal Zone as a foreign country in matters of tariff, etc., is beside the question. We have discussed this matter at length on pages 190 to 191

1Treaty between the United States and the Republic of Panama, Feb. 18, 1903 (33 Stat. 2234).

2See David Kaufman & Sons Co. v. Smith, 175 Fed. 887 (Jan. 13, 1909).

above, in connection with the Porto Rican case of Downes v. Bidwell.

Canal Zone Not a "Territory."

But the Panama Canal Zone does not come within the description of "territory" as defined in In re Lane,' and associations may be formed in the Canal Zone to export goods to foreign countries.

Guam, Tutuila, Guano Islands, etc.

Webb Law Not Applicable.

Webb Law associations may not export goods to Guam, Tutuila (American Samoa), the Virgin Islands, Guano Islands and our more or less uninhabited islands such as Wake Island, Baker Island, Howland Island, Midway Islands, etc., all of which are possessions of the United States, and not "foreign countries." It is not at all likely that an association would want to ship goods from these islands to foreign countries, but if such a question should arise, it seems quite clear that they could not form export associations there, since none of these possessions are "territories" of the United States.

JURISDICTION OF EXPORT TRADE LAW SUMMARIZED.

To sum up the various decisions discussed above, it would seem, first, that Webb Law associations may not ship goods to Hawaii, Alaska, Porto Rico, the Philippine Islands, the Panama Canal Zone or any other part of the United States, but that they may export goods to Cuba and the Isle of Pines; and, second, that Webb Law associations may be formed in Hawaii, Alaska and Porto Rico, but not in the Philippine Islands, the Panama Canal Zone, Guam, Tutuila, the Guano Islands, the Virgin Islands, etc.

Power to Amend Webb-Pomerene Law.

Congress may, under its power to legislate for the territories, 1See above, p. 188

amend the Webb-Pomerene Law so as to allow Webb Law associations to ship goods from the mainland of the United States to its territories and possessions. But it would seem hardly fair to the territories of the United States, including Hawaii, Alaska, Porto Rico and the Philippine Islands (all of which are subject to the provisions of the Sherman Anti-trust Act), to allow export associations to ship goods to them, without equalizing the commercial situation by exempting those jurisdictions from the trade-restraining provisions of the Sherman Anti-trust Act.

ASSOCIATIONS.

MEANING OF THE TERM "EXPORT ASSOCIATION."

In paragraph 3 of Section 1 of the Act the term "association" is defined as follows:

"That the word 'association' wherever used in this Act means any corporation or combination, by contract or otherwise, of two or more persons, partnerships or corporations." We note that Congress plainly employed the term "corporation" in its associated sense, that is, as meaning a coming or joining together of separate entities (competitors, non-competitors, or both) in one common enterprise, or joint venture. It is apparent the words "corporation or combination" are used as corresponding terms; and this being so, the "corporation" is equivalent to the "combination" for export purposes. While this employment of the word "corporation" is correct in a dictionary sense, it is not the usual meaning; but where the term "corporation" appears at the end of the sentence, it is obvious that the bill-draftsman referred to incorporated bodies, operating under state-granted charters.

In Section 2 such an association, organized and actually engaged solely in export trade, is exempt from the Sherman Antitrust Act under certain conditions. Regarding the question of whether or not every simple corporation which might happen to be engaged solely in export trade comes within the definition of

the term "association," when it is not violating the Sherman Law, and not in actual association or combination with others, see page 250.

Wide Latitude When Forming Export Association.

Under the definition of the term "association," various forms of combinations of two or more persons, partnerships or corporations are sanctioned. In actual practice, we find, first, combinations whose constituent members are linked together by contract and who operate under articles of association and by-laws filed with the Federal Trade Commission. Such unincorporated "associations" may embrace in their membership individuals, partnerships or corporations who outside of the export association, that is in domestic trade, are competitors. Or the constituent members may in domestic trade be engaged in related. but non-competing lines. Then again, the membership of an export "association" may be composed of competitors and noncompetitors.

The second form of combination consists in an incorporated association, of which the constituent members are stockholders. Export associations of this class operate under state charters and by-laws filed with the Federal Trade Commission.

THE EXPORT ASSOCIATION AND THE FEDERAL CONSTITUTION.

There exists a two-fold question which has peculiar interest for us here:

First: What is this "association" which Congress has seen fit to provide as the medium by which American manufacturers and exporters are to conquer foreign trade?

Second: What are the constitutional boundaries beyond which Congress may not go, when providing this vehicle for export commerce?

Taking up these natural and necessary divisions of our theme in their order, we will first briefly discuss

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