These probable, is not

ve mode and does not substanta

'stion of (303) lessen

Taman Mamerce within the intent of the Clayton 1 57 1 712saction as a violation of law, as this mut Sites v. U. S. Steel Corp. 251 U. S. 417, 1 stempered view of phase and result." ▼. United States, 245 Fet. 91. 33-94. nder each of the two foregoing heads ent below must be

The Commission are a vilation of § 7 of stened. Under § 11, 35 Stat. 78 U.S. C., s of the Commission supported by ces which it may reasonably draw from

are conclusive upon us. See Federal - Paper Ass'n, 273 C. S. 52. Congress sbstitution of the judgment of courts for where it is founded upon evidence. Con

I cannot say that its conclusions here Even without such statutory limitaset aside the findings of an administrative d. as in the present case, by the reviewing Record establishes that clear and unmis

mitted. Cincinnati, &e. Ry. Co. v. n. 206 U. S. 142, 154; Cincinnati, N. 0. merce Comm., 162 U. S. 154, 194; Illinois Commerce Comm., 206 U. S. 441, 466.

and the general testimony of petitioner's ses that there was no competition between Cited [304] States v. Trenton Potteries o proceed on the assumption that manumarketing a product comparable in price action of the same need, do not compete if same distributors.

detail, there appears to me to be abundant petitive products, made by two of the largest the world, reached the same local communi

cies of distribution; the one, of petitioner, o retailers throughout the United States; Swain Company, through sales in thirty-eight sers located in cities, who in turn sold to detailed evidence of this type the Comit reasonably might, the inference that arh local retailers, made their appeal to the So were competitive. From a comparative ss of sales, the Commission might also, I think. nd that the McEwain Company was successsecuring by far the larger proportion of the save, its gross sales of dress shoes in 1920 being

and in 1921 more than $15,000,000, as com ers sales of its similar dress shoes of approxi

No useful purpose would be served by reviewing the evidence at length. To refer to only two of the many items which support the findings of the Commission, the fact relied upon, that petitioner, in the year ending May 31, 1921, sold only 52-5/12 dozen pairs of the competing shoes to dealers patronizing the McElwain Company, would seen to be without significance in the light of other evidence that in one state, Missouri, where petitioner sold its product to 4,801 of the 5,150 retail shoe dealers in the state, the McElwain Company sold in the same [305] year, chiefly through wholesalers and independent jobbers, 25,669 dozen pairs of the competing product. It appears that in 1921 petitioner sold its shoes to every retailer in Kentucky, Tennessee, and Texas. In that year, when the value of the gross sales of the McElwain Company had been cut in half by business depression, it sold in those states 8,791 dozen pairs of its competing product, chiefly through independent jobbers, in addition to its sales in that territory through wholesale houses at Columbus, Ohio, and Chicago.

Apart from the more general testimony that both companies sold extensively in the same states and in the same cities, the inference from this evidence seems irresistible that in these states, as was the case in others,' the competing products were not only offered through different systems of distribution to the same retailers, but were by them offered and sold to the ultimate consumers in their communities. Both products being made and suitable for the same use, the fact that each presented some minor advantages over the other, it might reasonably be inferred, would tend to increase, rather than diminish the competition. In fact, the chairman of petitioner's board of directors testified that its 500 salesmen were unsuccessful in their efforts to increase the sales of its Patriot Brand of dress shoes (the alleged competitive product) above about 3,000 pairs a day because they were unable to convince retailers of the superiority of petitioner's more serviceable dress shoes over the better [306] looking dress shoes of the type manufactured by the McElwain Company.

Nor am I able to say that the McElwain Company, for the stock of which petitioner gave its own stock having a market value of $9,460,000, was then in such financial straits as to preclude the reasonable inference by the Commission that its business, conducted either through a receivership or a reorganized company, would probably continue to compete with that of petitioner. See Standard Fashion Co. v. Magrane-Houston Co., 258 U. S. 346, 356, 357. It plainly had large value as a going concern, there was no evidence that it would have been worth more or as much if dismantled, and there was evidence that the depression in the shoe trade in 1920-1921 was then a passing phase of the business. For these reasons and others stated at length in the opinion of the court below, I think the judgment should be affirmed.

Mr. Justice HOLMES and Mr. Justice BRANDEIS Concur in this opinion.

1 The petitioner sold to three retail dealers in every four in Illinois. The McElwain Company sold 9,5 7 dozen pairs of competing shoes to independent jobbers and retailers in that state. In addition, an affiliated wholesale house located in Chicago sold about 18,000 dozen pairs. In California, where the International Shoe Company sold to seven retail dealers in every ten, the McElwain Company sold 1,586 dozen pairs to retailers and independent jobbers; and an affiliated wholesaler located at San Francisco sold, almost wholly within the state, about 10,000 dozen pairs of the competing shoes. [Justice's note.]

110600°-30-75

MACFADDEN PUBLICATIONS, INC. v. FEDERAL TRADE COMMISSION AND ITS MEMBERS'

(Court of Appeals of the District of Columbia. January 6, 1930.) No. 5024.

(SYLLABUS BY THE COMPILER)

Court of Appeals of District of Columbia has jurisdiction similar to that of United States Circuit Court of Appeals to review orders to cease and dess entered by the Commission under section 5 of the Federal Trade Commission Act The statute provides plain, adequate and exclusive method of judicial review for the correction of any error which the Commission may commit in such a proceeding, hence mandamus can not be granted as an alternative or additional remedy, the writ not issuing where there is any other adequate legal remedy.

Mandamus can not be made to perform the office of an appeal of writ of error, or used as a substitute for either.

Judgment of lower court refusing to issue the writ, affirmed.

Mandamus to compel Federal Trade Commission to issue subpoenas duces tecum under section 5 of the Federal Trade Commission Act (p. 1 herein) in proceedings by the Commission against appellant for alleged unfair methods of competition. Writ refused.

Appeal from the Supreme Court of the District of Columbia.

Before MARTIN, Chief Justice, and ROBв and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice.

An appeal from a judgment of the lower court refusing to issue a writ of mandamus to compel the Federal Trade Commission to issue certain subpoenas duces tecum in a proceeding pending before it.

The record discloses that on April 30, 1929, a written compla as filed with the Federal Trade Commission charging that appella:: was using certain unfair methods of competition in interstate com merce in violation of the provisions of Section 5 of the Act [823] of Congress approved September 26, 1914, entitled "An Act to create a Federal Trade Commission to define its powers and duties, and for other purposes," 38 Stat. 717. The complaint charged that sppellant was engaged in the business of publishing and distributing magazines, periodicals, and newspapers, and that it had adopted s practice of soliciting subscriptions therefor at prices which it faisey represented to be less than the regular subscription prices, whereas in fact the prices thus solicited were not less than such regular prices. Appellant as respondent answered denying the charge, and the issue stood for trial.

Thereupon appellant made formal application to the Commission for the issuance of certain subpoenas duces tecum, to be used at the trial, and the same were issued. But afterwards the Commission or the petition of some of the witnesses so subpœnæd vacated the duces tecum clause requiring the production of the papers and documents

1 Reported in 37 F. (2d) 822. For report of case below see p. 704, herein.

therein specified. The respondent objected to this order and moved that the subpoenas be reissued. But this motion was overruled by the Commission.

The respondent as plaintiff then filed a petition against the Commission and the various members thereof in the Supreme Court of the District of Columbia, setting out the foregoing facts, and praying that a writ of mandamus should issue, commanding the Commission to issue the writs of subpoena duces tecum, which the Commission had refused to issue as aforesaid. The case was heard by the lower court upon petition and answer, and judgment was entered against the petitioner. This appeal was then taken.

In our opinion the judgment of the lower court was correct. Section 5 of the Federal Trade Commission Act reads in part as follows (38 Stat. 720):

Any party required by such order of the commission to cease and desist from using such method of competition may obtain a review of such order in said circuit court of appeals by filing in the court a written petition praying that the order of the commission be set aside. A copy of such petition shall be forthwith served upon the commission, and thereupon the commission forthwith shall certify and file in the court a transcript of the record as hereinbefore provided. Upon the filing of the transcript the court shall have the same jurisdiction to affirm, set aside, or modify the order of the commission as in the case of an application by the commission for the enforcement of its order, and the findings of the commission as to the facts, if supported by testimony, shall in like manner be conclusive.

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.

It may be noted that similar jurisdiction is vested in this court. Federal Trade Commission v. Klesner, 280 U. S. 19.

It thus appears that the statute provides a plain, adequate, and exclusive method by judicial review for the correction of any error which the Commission may commit in such a proceeding. This being the case it follows that mandamus can not be granted as an alternative or additional remedy, for it is well settled that the writ will not issue where there is any other adéquate legal remedy. Nor can the writ be made to perform the office of an appeal or writ of error or be used as a substitute for either. See 38 C. J. 558, Sec. 31, with citations. Therefore, without passing upon the merits of the case we affirm the judgment of the lower court refusing to issue a writ of mandamus upon the petition.

Judgment affirmed with costs.