on questions of law are defined in sections 354 and 356 of the Revised Statutes. (U. S. C., Title 5, secs. 303, 304,) These statutes are:

The Attorney General shall give his advice and opinion upon questions of law whenever required by the President.

The head of any executive department may require the opinion of the Attorney General on any questions of law arising in the administration of his department.

These statutes, in substantially this form, have been in effect since 1789. They do not authorize, empower, or require the Attorney General to give opinions to committees of Congress or to either House. For more than 100 years there has been an unbroken line of authority to that effect. As early as 1818 Attorney General Wirt held that under these statutes Attorneys General are not authorized go give official opinions on questions of law except upon call of the President or at the request of one of the heads of the executive departments to enable him to decide a question pending in his own department for action.

In the following instances the Attorneys General have, for reasons stated, declined to give official opinions on questions of law or on the constitutionality or construction of legislation either pending or enacted to committees of the House or to committees of the Senate or in response to resolutions or requests from the Senate itself or from the House of Representatives: 1 Ops. Atty. Gen. 335; 5 Ops. Atty. Gen. 561; 10 Ops. Atty. Gen. 164; 12 Ops. Atty. Gen. 544; 14 Ops. Atty. Gen. 17; 14 Ops. Atty. Gen. 177; 17 Ops. Atty. Gen. 357; 18 Ops. Atty. Gen. 87; 18 Ops. Atty. Gen. 107.

Under date of January 28, 1820, the House of Representatives entered an order requesting the opinion of Attorney General Wirt respecting a matter in which the House was interested. In declining to give the opinion the Attorney General, among other things, said:

The Attorney General is sworn to discharge the duties of his office according to law. To be instrumental in enlarging the sphere of his official duties beyond that which is prescribed by law would, in my opinion, be a violation of his oath.

That opinion has stood unquestioned for 112 years and has been repeatedly followed in later rulings. Under date of December 17, 1884, Attorney General Brewster felt obliged to decline compliance with a resolution passed by the House of Representatives requesting his opinion on the application of a section of the Revised Statutes. (18 Ops. Atty. Gen. 87.) Having failed to obtain the opinion by direct request, the House of Representatives passed another resolution requesting the Postmaster General to ask for the Attorney General's opinion, and the Postmaster General transmitted the request to the Attorney General who again refused to give the opinion on the ground that he had no authority to give it to the House of Representatives and the Postmaster General did not need it on any question pending in his department.

Under date of February 14, 1929, my immediate predecessor declined the request of the House Committee on Expenditures in the Executive Departments for an opinion, and on June 3, 1930, I felt obliged to decline an opinion requested by the Judiciary Committee of the Senate.

Congress has accepted this long standing interpretation of the law and has never attempted by law to enlarge the powers or duties of the Attorney General so as to require him to give opinions to either House of Congress or to committees thereof. Having in mind the

constitutional separation of the functions of the legislative, executive, and judicial branches of the Government, there has always been a serious question whether the principle of that separation would be violated by a statute attempting to make the Attorney General a legal adviser of the legislative branch, and as a matter of governmental policy the wisdom of constituting as legal adviser of either House of Congress an official of the executive department, who sits. in the President's Cabinet and acts as his legal adviser, has always been open to doubt.

When pending legislation affecting the Department of Justice has been referred to Attorneys General for comment or suggestion, it has been their practice to suggest such legal points as are pertinent and which ought to receive consideration by committees, but that practice has never properly involved any formal legal opinions from Attorneys General and has no resemblance to a request for an opinion as to the effect of an existing statute.

With the utmost deference for the request of the Senate, I am* obliged to decline to give an opinion in this case.

By the third division of the resolution I am requested to inform the Senate what steps, if any, have been taken or are contemplated by the Department of Justice for the enforcement of the antitrust laws so far as they may relate to the subject matter of the resolution. Prior to the receipt of this resolution, no complaints or transactions have been brought to my attention involving acquisitions of common carriers in which it was suggested that such acquisitions were in violation of the act of Congress of July 2, 1890, as amended, commonly called the Sherman Act, with the exception of one stock acquisition which will be discussed in a subsequent paragraph hereof.

No acquisition by one carrier of an interest in another, other than by means of stock purchase has come to the attention of this department, nor, as I am informed, to the attention of the commission. In connection with an acquisition of stock in one carrier by a competing carrier or by holding companies, you will note that section 7 of the act of October 15, 1914, as amended, commonly called the Clayton Act, reads as follows:

SEC. 7. That no corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of another corporation engaged also in commerce, where the effect of such acquisition may be to substantially lessen competition between the corporation whose stock is so acquired and the corporation making the acquisition, or to restrain such commerce in any section or community, or tend to create a monopoly of any line of

commerce.

No corporation shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of two or more corporations engaged in commerce where the effect of such acquisition, or the use of such stock by the voting or granting of proxies or otherwise, may be to substantially lessen competition between such corporations, or any of them, whose stock or other share capital is so acquired, or to restrain such commerce in any section or community, or tend to create a monopoly of any line of commerce.

This section shall not apply to corporations purchasing such stock solely for investment and not using the same by voting or otherwise to bring about, or in attempting to bring about, the substantial lessening of competition.

Nor shall anything contained in this section prevent a corporation engaged in commerce from causing the formation of subsidiary corporations for the actual carrying on of their immediate lawful business, or the natural and legitimate branches or extensions thereof, or from owning and holding all or a part of the stock of such subsidiary corporations, when the effect of such formation is not to substantially lessen competition.

SEC. 11. That authority to enforce compliance with sections 2, 3, 7, and 8 of this act by the persons respectively subject thereto is hereby vested in the Interstate Commerce Commission where applicable to common carriers. * * *

That commission has exercised the power thus reposed in it by instituting legal proceedings in connection with alleged violations of section 7 of the Clayton Act (38 Stat. L. 734) in the cases of I. C. C. v. Baltimore & Ohio Railroad Co. et al., 152 I. C. C. 721; I. C. C. v. Kunsas City Southern Railway Co., 156 I. C. C. 359; I. C. C. v. Baltimore & Ohio Railroad Co., 160 I. C. C. 785; and I. C. C. v. Pennsylvania Railroad Co. and Pennsylvania Co., 169 I. C. C. 618. The last mentioned of these cases involved the acquisition of stock of the Lehigh Valley Railroad Co. and the Wabash Railway Co. by the Pennsylvania Railroad Co. and the Pennsylvania Co., a holding corporation. The commission found, upon evidence adduced at public hearings, that the stock acquisitions by the two Pennsylvania companies was in violation of section 7 of the act, and by its order required both the Pennsylvania Railroad Co. and the Pennsylvania Co. (the holding corporation) to cease and desist the violations of law found and described in the report, and further required in this connection that those two companies divest themselves of all capital stock owned by them in the Lehigh Valley and the Wabash Railroad companies within six months from the date of the order. The two Pennsylvania companies brought suit in the Circuit Court of Appeals for the Third Circuit against the commission under section 11 of the Clayton Act to review the case and desist order, and the suit is now pending in that court.

Inasmuch as the acquisitions mentioned above were by means of stock purchases, and the commission, in the exercise of its jurisdiction under section 7 of that act in the proceedings mentioned above required the carriers and the holding company involved to divest themselves of the acquired stocks, this department has taken no action, excepting that hereinafter described, under either the Sherman Act or the Clayton Act with respect to any recent acquisition by common carriers or other carriers through holding companies or otherwise. With the commission's order in those cases accomplishing the divestment of the stock acquisitions involved, the combinations between the carriers came to an end.

This department has taken the following described action in connection with transactions involving recent acquisitions of stock of railroads by either common carriers or holding companies:

In the first case mentioned above, I. C. Č. v. Baltimore & Ohio Railroad Co., et al., 152 I. C. C. 721, the commission on March 11, 1929, issued its report finding each of the three carriers which had acquired stock of the Wheeling & Lake Erie Railway Co. to be in violation of the Clayton Act, and issued its order requiring them to divest themselves of such stock within 90 days from the date of the order. During the 90-day period two of the defendants, the New York Central Railroad Co. and the Baltimore & Ohio Railroad Co., filed reports with the commission to the effect that they had sold their respective blocks of Wheeling & Lake Erie stock to the Allegheny Corporation, a holding company, whose officers and directors were also officers and directors of the New York, Chicago & St. Louis Railroad Co., which still held the stock acquired by it in the Wheeling & Lake Erie. To protect the public interest by preventing the

Wheeling stock held by the interlocked Allegheny Corporation and the New York, Chicago & St. Louis Railroad from being voted until it could make such investigation as was necessary to determine whether the new status of the Wheeling stock ownership was in violation of the act, the commission brought the matter to the attention of this department with the suggestion that an injunction be sought requiring the then owners of the stock to refrain from voting it or from making any further sale or transfer thereof. When this department had prepared and was ready to file a petition seeking an injunction to accomplish the desired purpose, counsel for the Allegheny Corporation and other owners of the stock voluntarily came in and agreed not to vote or dispose of the stock pending the commission's final disposition of its proceeding. Since this agreement accomplished all that the injunction sought, it was accepted, with the approval of the commission, and voting or disposing of the stock was prevented. Subsequently the owners of the stock submitted to the commission a proposed trust agreement for placing the stock in the hands of a disinterested trustee for voting and other purposes. The commission approved this trust agreement (156 I. C. C. 607) as fully complying with its order requiring the railroads to divest themselves of the stock.

The transactions involved in I. C. C. v. Kansas City Southern Ry. Co., supra, were made the subject of a complaint under both the Clayton and the Sherman Acts direct to this department by certain minority stock owners of the St. Louis Southwestern Railroad Co., after the same parties had also made their written complaint to the commission requesting its action under the Clayton Act. This department drafted a petition with a view to obtaining an injunction under the Clayton Act requiring the Kansas City Southern to divest itself of capital stock of the St. Louis Southwestern Railroad Co. and the Missouri-Kansas-Texas Railroad Co. Meantime the commission issued its complaint under section 11 and began its own detailed investigation of the matter. In view of that action by the commission, this department held the matter in abeyance. Before the commission was ready to render its decision the Kansas City Southern sold the stock of the other two carriers and the commission being satisfied that the sale was bona fide, entered its order approving the sale of the stock and discontinued its proceeding. (156 I. C. C. 359.)

In I. C. C. v. Pennsylvania Railroad Co. and the Pennsylvania Co., supra, the commission made a request upon this department to institute injunction proceedings with a view to preventing the Pennsylvania companies from voting or disposing of the stock there acquired until the commission could complete its investigation and render its decision to determine whether the facts established a violation of the Clayton Act. Shortly after making the request the commission withdrew it, stating that counsel for the Pennsylvania companies had voluntarily entered into an agreement with the commission not to vote or dispose of the acquired stock until the commission could complete its investigation and render its decision.

Not only has Congress reposed in the commission primary jurisdiction to enforce the Clayton Act where applicable to common carriers, but it has also given the commission investigatorial powers with respect to common carriers, of much broader scope and character and more direct and effective than those possessed by this depart

ment with respect to railroads. Section 12 (1) of the interstate commerce act provides in part as follows:

SEC. 12. (1) That the commission hereby created shall have authority to inquire into the management of the business of all common carriers subject to the provisions of this act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such common carriers full and complete information necessary to enable the commission to perform the duties and carry out the objects for which it was created; and the commission is hereby authorized and required to execute and enforce the provisions of this act; and, upon the request of the commission, it shall be the duty of any district attorney of the United States to whom the commission may apply to institute in the proper court and to prosecute under the direction of the Attorney General of the United States all necessary proceedings for the enforcement of the provisions of this act and for the punishment of all violations thereof. * * *

Section 16 (11) provides that:

SEC. 16 (11). The commission may employ such attorneys as it finds necessary for proper legal aid and service of the commission or its members in the conduct of their work, or for proper representation of the public interests in investigations made by it or cases or proceedings pending before it, whether at the commission's own instance or upon complaint, or to appear for or represent the commission in any case in court; and the expenses of such employment shall be paid out of the appropriation for the commission.

Section 20 (5) provides in part that:

* *

The commission shall at all times have access to all accounts, records, and memoranda, including all documents, papers, and correspondence now or hereafter existing, and kept or required to be kept by carriers subject to this act, and the provisions of this section respecting the preservation and destruction of books, papers, and documents shall apply thereto and it may employ special agents or examiners, who shall have authority under the order of the commission to inspect and examine any and all accounts, records, and memoranda, including all documents, papers, and correspondence now or hereafter existing, and kept or required to be kept by such carriers.

Section 20 (9) ana (10) provides:

SEC. 20 (9). That the circuit and district courts of the United States shall have jurisdiction, upon the application of the Attorney General of the United States at the request of the commission, alleging a failure to comply with or a violation of any of the provisions of said act to regulate commerce or of any act supplementary thereto or amendatory thereof by any common carrier, to issue a writ or writs of mandamus commanding such common carrier to comply with the provisions of said acts, or any of them.

(10) And to carry out and give effect to the provisions of said acts, or any of them, the commission is hereby authorized to employ special agents or examiners who shall have power to administer oaths, examine witnesses, and receive evidence.

By the provisions of section 5 of that act, Congress has expressly authorized the commission to approve of the control of one carrier by another, through lease, stock purchase, or any other manner not involving consolidation of such carriers into a single system. That section also directs the commission to submit a plan for the consolidation of the railway properties of the carriers into a limited number of systems, and further provides that the Clayton Act and the Sherman Act shall be inoperative as to any carrier affected by any order issued by the commission under that section of the act. The pertinent language of that section is as follows:

SEC. 5 (2). Whenever the commission is of opinion, after hearing, upon application of any carrier or carriers engaged in the transportation of passengers or property subject to this act, that the acquisition, to the extent indicated by the commission, by one of such carriers of the control of any other such carrier or