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filed by any person or corporation, but only by the Commission itself when it has reason to believe that the law has been violated. This applies to proceedings under both the Trade Commission law and the Clayton law.
There is a further limitation upon the power of the Commission which only applies to the filing of complaints by it against the use of unfair methods of competition. Such complaints may be filed only when the Commission believes that the proceeding "would be to the interest of the public.” The clear intention of Congress in imposing this limitation was that strictly private controversies and matters of purely personal importance to the parties concerned should not be made the subject of complaint by the Commission. The action of the Commission in the matter of holding hearings and entering orders in pursuance thereof may only be invoked when the rights involved rise above the merely personal or selfish interests that may be affected and become of such importance and so far-reaching in their nature as to make them in fact of interest to the public.
The legal questions involved in the grant of power to hold hearings and enter orders are different from any that have been presented under the provisions of the Acts to Regulate Commerce conferring like power upon the Interstate Commerce Commission. These questions will not be discussed here, but this phase of the subject can be dismissed with the suggestion that in order to uphold the grant of such power to the Trade Commission it is doubtful whether that body can be held to be a department of the legislative branch of the government, but rather that the Trade Commission in exercising such power must be held to be acting as a judicial body.
The Commission may also act as a master in chancery to report an appropriate form of decree in any suit in equity brought by the Attorney General under the Anti-trust laws.
COMMISSION PROCEDURE UNDER SECTION 5 OF THE TRADE COMMISSION LAW AND AS DEFINED IN THE CLAYTON LAW FOR THE ENFORCEMENT OF SECTIONS 2, 3, 7 AND 8 THEREOF.
Section 5 of the Trade Commission law and section 11 of the Clayton law lay down the manner in which the Trade Commission, and also the Interstate Commerce Commission and Federal Reserve Board as to the Clayton law, may enforce the various specific rules of law elsewhere defined in the two laws. These two sections are uniform in their provisions except as to the words in italics in the following excerpt from section 5 of the Trade Commission law:
“That when the Commission shall have reason to believe that any person, partnership or corporation has been or is using any unfair method of competition, and it shall appear to the Commission that a proceeding by it in respect thereof would be to the interest of the public, the Commission shall issue and serve upon the person, partnership or corporation a complaint stating the charges and containing the notice of hearing.”
This provision as to the necessity of the public interest appearing is not found in section 11 of the Clayton law. The Clayton law therefore throws upon the Commission or Board the duty of acting if the Commission or Board has reason to believe a violation of the law has occurred. As elsewhere indicated in the discussion, this probably shows that Congress conclusively decided that violations of the Clayton law were matters affecting the public interest, while it did not conclusively decide that violations of the rule against unfair methods of competition were necessarily matters of public interest. As we explain elsewhere, the Trade Commission under section 5, or either the Trade Commission, Interstate Commerce Commission or Federal Reserve Board under section 11, in enforcing the provisions of those sections and conducting hearings, exercises functions essentially judicial in their nature. This provision as to the public interest in section 5 of the Trade Commission law gives to the Trade Commission some measure of discretion not given by the other law. This discretion may not be exercised in an arbitrary manner. Mandamus would lie against the Commission if it arbitrarily refused to assume jurisdiction in a proper case. Since, however, section 5 expressly fails to provide for the filing of complaints by others than the Commission and leaves to the Commission to determine the manner in which it obtains information as to any alleged violation of law, it is difficult to understand how it could be made to appear that it was the duty of the Trade Commission to act in any given case. Under the power given to it by section 6 of the Trade Commission law to make rules and regulations, the Commission undoubtedly will promulgate rules as to the manner in which it may obtain information to serve as the basis of action by the Commission under this section.
Both sections 5 and 11 provide that proceedings shall be instituted by the filing of a complaint which shall be issued by the Commission or Board and served on the defendant and shall contain notice of hearing not less than 30 days after service. The defendant shall then have the right to appear and show cause why an order should not be entered requiring it to cease and desist from the violation of law charged in the complaint. This provision of the statute must comprehend a hearing judicial in its nature with all the attendant requirements of due process. Intervention by any person or corporation is expressly permitted upon cause shown. Obviously, where the principal issue is the lessening or restraint of competition or the effect of improper competition, there must always be other parties interested in the issue than the particular defendant or defendants to the Commission's or Board's complaint. The testimony must be reduced to writing and filed in the office of the Commission or Board and if it is of opinion the law has been violated it shall make a report in writing stating its findings as to the facts, which findings are conclusive, if supported by evidence, in the Court reviewing the Commission's or Board's orders.
6.—Interstate Commerce Commission vs. Humboldt Steamship Company, 224 U. S. 474 at page 484.
If a violation of law is found on such hearing, section 5 of the Trade Commission law provides that an order shall be entered requiring the defendant to "cease and desist from using such method of competition.” It is to be observed that the Commission is not given definite authority to determine the time or manner in which the order is to be carried out. Section 11 of the Clayton law provides that if on the hearing violations are found an order shall be entered requiring the defendant to "cease and desist from such violations and divest itself of the stock held or rid itself of the directors chosen contrary to the provisions of sections 7 and 8 of this act, if any there be, in the manner and within the time fixed by said order.” It is thus seen that there is a difference as to the kind of order comprehended by the two sections. However, in actual practice the functions of the Commission, because its power is essentially judicial under both sections, will probably be exercised to about the same extent in one case as in the other.
The Commission or Board has the power upon such notice and in such manner as it may deem proper either under section 5 or section 11, to modify or set aside in whole or in part any report or order issued under either of the sections, until a transcript of the record before the Commission or Board shall have been filed in the Circuit Court of Appeals of the United States. The filing of such record, together with a petition by the Commission or Board or bill for relief by a party to the Commission's or Board's order, is the beginning of proceedings in the Circuit Court of Appeals of the United States to enforce or review such order. If the defendant in proceedings before the Commission or Board fails or neglects to obey its order while in effect, the Commission or Board is given the power to apply to the Circuit Court of Appeals for the enforcement of its order and is required to certify and file a transcript of the entire record, including all the testimony taken and its report and order. The Court shall thereupon cause notice to be served upon the defendant and shall have jurisdiction of the proceedings and power to make and enter on the pleadings, testimony and proceedings set forth in such transcript a decree “affirming, modifying or setting aside the order.” This provision is the same in both sections. Obviously, the Circuit Court of Appeals is expressly permitted to place itself in the position of a reviewing Commission or Board and is authorized to act in exactly the same way as the Commission or Board, although to act only upon the proceedings before the Commission or Board. This definition of the authority of the Circuit Court of Appeals therefore must mean that