280 F. 45 | 8th Cir. | 1922
This is a suit filed originally in this court. The pleading is entitled “Petition for Writ of Certiorari to the Federal Trade Commission, and for Order Setting. Aside Order of Federal Trade Commission Denying Motions.” On or about December 7, 1920, the commission filed a complaint against the Minneapolis Chamber of Commerce, its officers and board of directors, tfie Manager Publishing Company, John H. Adams, and John F. Flem-ming, who are the petitioners herein, alleging that the commission had reason to believe, from a preliminary investigation made by it, that these petitioners were using unfair methods of competition in interstate commerce, in violation of the provisions of the act creating the Federal Trade Commission (Comp. St. §§ 8836a-8836k), and defining its powers and duties. In due time petitioners made and submitted a number of motion's which, upon hearing before the commission, were denied by interlocutory order duly made and entered.
The preliminary motions referred to contained numerous specifications which, upon analysis, raise the following matters of substance: (1) The commission is without jurisdiction both of parties and of subject-matter. (2) The' complaint states no cause of action. (3) The commission is biased and prejudiced against the petitioners. (4) The complaint is indefinite and uncertain in certain paragraphs. (5) The Federal Trade Commission Act is unconstitutional. Accordingly petitioners prayed that no issue of fact be joined or evidence received as to the allegations contained in certain paragraphs of the complaint and that the entire proceeding be dismissed. As an incident to this review they seek the issuance of a writ of certiorari requiring respondents to certify to this court, for review and determination, the preliminary order of which they complain.
What is really sought by petitioners is that this court should halt inquiry at the threshold, exercising, in effect, the powers of a court of original jurisdiction, in which a cause is pending, to rule in limine upon the propriety of the hction and whether it should proceed further. The procedure invoked is similar, in effect, to that prevailing in a court of original jurisdiction, which has control of the 'successive steps of pleading, practice, trial, and final judgment or decree. But it must be remembered that this court has no original jurisdiction of this nature. Its functions, under the act before us, are confined to a review of certain acts of the Federal Trade Commission, which are specifically defined by the Congress. This act creates powers not otherwise conferred upon Circuit Courts of Appeals, and such courts are limited strictly to the powers thus specified. It was not intended that the Circuit Courts of Appeals should be drawn into original conduct of these investigations. If this court is to exercise plenary power and control in determining at the outset what party shall be dealt with, what investigation shall be made, and what recommendation submitted, then it lias, in effect, been constituted an original trial tribunal of controversies of this nature. This was in no wise contemplated, nor would it comport with the legitimate practical functions of a court of this nature.
“The jurisdiction of the Circuit Court of Appeals of the United States to enforce, set aside, or modify orders of the Commission shall be exclusive.”
Manifestly this refers to the specific powers just previously recited, and this is made still more apparent by the clause which next follows, wherein it is said:
“Such proceedings in the Circuit Court of Appeals shall be given precedence over other eases pending therein, and shall be in every way expedited.”
This provision is made still more obvious by subsequent provisions of the act, because in them it clearly appears that not all orders of the commission are within the exclusive jurisdiction of the Circuit Courts of Appeals. In section 9 the District Court is given authority to enforce obedience to subpoenas, and it is further provided that:
“Upon the application of the Attorney General of the United States, at the request of the commission, the District Courts of the United States shall have*48 .jurisdiction to Issue writs of mandamus commanding any person or corporation to comply with, the provisions of this act or any order of the commission made in pursuance thereof.”
The real gist of the complaint here is that it is claimed, and with plausibility, that the chief petitioner is not subject to the jurisdiction of the Federal Trade Commission; that the commission is proceeding erroneously and in excess of its powers; that the taking of the testimony before a final order can be made will be very expensive; and that a grievous burden is being inflicted upon petitioners, for which an ultimate setting aside of any order that may be made will not adequately compensate them. This is true in some degree of any order of the commission which may finally be set aside. The law does not contemplate that commissions of this nature will act arbitrarily nor without probable cause. It is, of course, conceivable that they may do ’so; but such a possibility cannot justify this court in exceeding its statutory
The conclusion we have reached renders it both inappropriate and unnecessary to consider the other questions raised by petitioners. The petition must be dismissed for want of jurisdiction in this court to entertain it; and it is accordingly so ordered.