268 F. 705 | 6th Cir. | 1920
Original petition under section 5 of the Federal Trade Commission Act (Act Sept. 26, 1914, c. 311, U. S. Comp. Stat. § 8836a et seq.) to review an order of the commission requiring petitioner and its co-respondents to cease and desist from certain alleged unfair methods of competition in interstate’ commerce. The proceeding was brought against both petitioner, the National Harness Manufacturers’ 'Association of the United States of America (hereinafter called .the Harness Manufacturers’ Association, or the petitioner), its officers and the members of its executive committee by name, as well as about 20 local associations composing the membership of the Harness Manufacturers’ Association, and the Wholesale Saddlery Association of the United States (hereinafter called the Saddlery Association), its officers and the members of its executive committee by name, and a large number of named persons, firms, or corpora-
The petitioner here assails that order on the grounds, Erst, that the Federal Trade Commission Act is unconstitutional; second, that the commision had no jurisdiction in this particular case; and, third, that the order to cease and desist is not supported by the evidence.
“to combine legislative, executive, and judicial powers and functions, and to confer them upon one and the same administrative body, contrary to articles I, II, and III of the Constitution, and because it assumes to authorize the commission, which is ostensibly an administrative body, to deprive persons of their property without due process of law, contrary to the Fifth Amendment of the Constitution.”
This proposition is to our minds without merit. Congress plainly has power to declare unfair methods of competition unlawful and to require that their practice cease. This Congress has done by the act in question. It with equal clearness has the power to authorize an administrative commission to determine (a) the question what methods of competition the given trader employs, and (b) provisionally the mixed question of law and fact whether such methods are unfair. These questions being determined against the trader, the administrative requirement to cease and desist, prescribed by Congress, follows as matter of course, but only provisionally. The commission’s determination of these questions is not final. Not only does the statute give a right of review thereon, upon application by an aggrieved trader, to a Circuit Court of Appeals of the United States, but the commission’s order is not enforceable by the commission, but only by order of court. “It is for the courts, not the commission, ultimately to determine as matter of law” what the words “unfair methods of competition” include. Federal Trade Commission v. Gratz, 253 U. S. 421, 40 Sup. Ct. 572, 575, 64 L. Ed. 993.
Throughout the proceedings, not only before the commission, but before the court, the trader is given the right and opportunity to be heard. The act delegates to the commission no judicial powers, nor does it, in our opinion, confer invalid executive or administrative authority. Buttfield v. Stranahan, 192 U. S. 470, 24 Sup. Ct. 349, 48 L. Ed. 525; Union Bridge Co. v. United States, 204 U. S. 364, 27 Sup. Ct. 367, 51 L. Ed. 523; Pennsylvania Railroad v. International Coal Co., 230 U. S. 184, 33 Sup. Ct. 893, 57 L. Ed. 1446, Ann. Cas. 1915A, 315; Coopersville Co. v. Lemon (C. C. A. 6) 163 Fed. 145, 147, et seq., 89 C. C. A. 595; National Pole Co. v. C. & N. W. Ry. Co. (C. C. A. 7) 211 Fed. 65, 127 C. C. A. 561. The criticism that the statute makes the commission both judge and prosecutor is too unsubstantial to justify discussion. The constitutionality of the act, against objections similar to those presented here, has recently been sustained by the Circuit Court of Appeals of the Seventh Circuit in a considered and persuasive opinion. Sears, Roebuck & Co. v. Federal Trade Commission, 258 Fed. 307, 169 C. C. A. 323, 6 A. L. R. 358. None of the petitioner’s citations contain, in our opinion, anything necessarily op
Of this criticism it is enough to say that the provisions in question of sections 9 and 10 are not before this court. The commission has not attempted to exercise them. Section 9 otherwise contains complete provision for enforcing, by subpoena, the attendance and testimony of witnesses and the production of all documentary evidence relating to any matter under investigation. Beyond this the commission has not gone. That one attacking a statute as unconstitutional must show that the alleged unconstitutional feature injures him is settled by a long line of authorities, among which are Tyler v. Judges, 179 U. S. 405, 409, 21 Sup. Ct. 206, 45 L. Ed. 252; Turpin v. Lemon, 187 U. S. 51, 60, 61, 23 Sup. Ct. 20, 47 L. Ed. 70; Hooker v. Burr, 194 U. S. 415, 419, 24 Sup. Ct. 706, 48 L. Ed. 1046.
. 3. The harness and saddlery trade consists broadly of three divisions: (a) Manufacturers of saddlery hardware, harness goods and horse furnishing goods; (b) wholesalers and jobbers, who buy the last-mentioned • classes of goods from the manufacturers and, themselves manufacture harness in wholesale quantities, selling both classes of products to the retailer; (c) retail harness dealers, who sell saddlery goods at retail and to a small extent manufacture harness.
The commission’s findings of fact, so far as now important, may be thus summarized: Prior to the organization of the Saddlery Association, it was the general custom for accessory manufacturers to sell direct to retailers, and in large and important sections of the United States the wholesale and retail saddlery business has long been
The -commission further found that the officers, committees, and members of the Harness Manufacturers’ Association and of the Saddlery Association have actively co-operated to establish the principle that a combined and closely affiliated wholesale and retail business was not a legitimate wholesale business;
Both the Saddlery and Harness Manufacturers’ Association, its officers, committees, and members of its subsidiary and affiliated associations, were ordered to cease and desist from conspiring or combining between themselves to induce, coerce, and compel accessory manufacturers to refuse to recognize as legitimate jobbers, entitled to buy from manufacturers at jobbers’ prices and terms, individuals and concerns doing or endeavoring to do a combined and closely affiliated wholesale and retail business, and from carrying on between themselves communications having the purpose, tendency, and effect of so inducing, coercing, and compelling accessory manufacturers in the respect above referred to.
The Harness Manufacturers’ Asociation, its officers, committees, and members of its subsidiary and affiliated associations were ordered to cease and desist from (a) conspiring or combining among themselves to induce, coerce, and compel manufacturers and jobbers to refuse to sell any of the competitors of retail harness manufacturers; (b) using any scheme whereby the active membership of the Harness Manufacturers’ Association concerted to favor with or confine their patronage to manufacturers and jobbers comprising the associate membership of that association or who had not complied with its active membership by selling to certain competitors thereof; (c) using or continuing any system of credentials or other indication of manufacturers and jobbers sales policies with regard to certain competitors and consumers, and from encouraging and urging retailers to confine their patronage to or to patronize manufacturers and jobbers whose sales policy is in harmony with the Harness Man
The order of the commission, so far as it relates to the Harness Manufacturers’ Association, its officers, committees, and the members of its subsidiary and affiliated associations, is affirmed.
See the discussion in Buttfield v. Stranahan, supra, 192 U. S. at page 494 et seq., 24 Sup. Ct. 349, 48 L. Ed. 525; also in Union Bridge Co. v. United States, supra, 204 U. S. at pages 377-387, 27 Sup. Ct. 367, 51 L. Ed. 523; also in Coopersville Co. v. Lemon, supra, 163 Fed. at page 147 et seq., 89 C. C. A.. 595.
It is to be noted that one of the objects of the Harness Manufacturers’ Association, as stated in its constitution and by-laws, is “to protect the harness dealers from the unjust sale of goods by wholesale dealers direct to consumers.”