[CH. II. not, as he ́shall see fit, but a failure to appear, if he should desire ever at any time to seek to make a defense, would be prejudicial.112 If he shall appear at the hearing before the Commission, the statutes provide merely that "he may show cause why an order should not be entered by the Commission requiring" him to "cease and desist from the violation of law" charged against him in the complaint.113

(5) No default. If the accused shall not appear, the Commission cannot, it would seem, enter his default and take the complaint against him as confessed, because the statutes clearly contemplate that, in every proceeding whatsoever before the Commission, whether the accused shall appear or not, testimony shall be taken, reduced to writing, and preserved as well for the use of the accused, as for the use of the Commission, in possible subsequent court proceedings.

(6) Report and order by Commission. After a hearing upon any complaint shall have been had, the Commission, if of opinion that a violation of law has occurred as charged in the complaint, shall make a report in writing in which it shall state its findings upon the facts, and shall then issue and cause to be served upon the accused an order requiring him to cease and desist from the violation of law in question. The order of the Commission may be served in the same manner, above noted, as the complaint. The Commission may require the accused to cease and desist from violations of the Clayton Law

112Sec. 32, infra.

113 The rules of the Commission provide for the filing of an answer by the accused, within thirty days after the service upon the accused of the Commission's complaint. See Rules of Practice, No. III, in appendix. The accused

will not be heard orally in argument before the Commission, unless the Commission shall so order, but the accused may file a brief with the Commission at the close of the testimony. See Rules of Practice, No. X, in appendix.

"within the time fixed" by the order. There is no provision in the Trade Law which expressly authorizes the Commission to fix the time within which the accused shall cease and desist from practising an "unfair method of competition." The only order which the Commission may issue is one to "cease and desist." It cannot command affirmatively, or prescribe a rule of conduct for the accused in the future.114 Its orders are not selfenforcing, and no penalty attaches for disobedience of its orders.115 Neither the statutes, nor the Commission's rules of practice provide what shall become of a complaint if, after issuing it, the Commission shall decide not to prosecute it, or if after hearing the Commission shall be of opinion that no violation of law has occurred. Perhaps Congress intended that, in such contingencies, no order at all should be entered by the Commission, whether of dismissal of the complaint or otherwise, lest an order of dismissal, if entered, might be taken as permissive, or as a construction of the law by the Commission, and be distorted into a precedent.

(7) Enforcing and overthrowing and overthrowing Commission's orders. If a person accused shall fail to obey the Commission's order to "cease and desist," the Commission by itself cannot overcome such contumacy. It has no power or process to enforce its own orders, and to obtain enforcement thereof must apply to the United States Circuit Court of Appeals either in the circuit wherein the

114 See Sec. 8, supra, and compare 4 U. S. Comp. Stat. (1913) Tit. 56A, Ch. A, Sec. 8583, (3), (4), pp. 3852-3854, conferring upon the Interstate Commerce Commission not only power to make orders to "cease and desist," but power to make various affirmative orders as well.

115Cf., 4 U. S. Comp. Stat. (1913) Tit. 56A, Ch. A, Sec. 8584, (6), (7), p. 3858, declaring it to be the duty of common carriers to obey the orders of the Interstate Commerce Commission made under its regulative power, and imposing a heavy penalty for disobedience of such orders.

violation of law against which the order is directed occurred, or in the circuit wherein the person against whom the order is issued resides or carries on business. With its application to the court, the Commission must file a certified transcript of the entire record of its proceedings, containing the complaint, all testimony taken, the report and findings of fact made by the Commission, and the order the enforcement of which is sought. The court is then required to notify the accused of the filing of the Commission's application for enforcement of its order and of the filing of the transcript, and thereupon the court shall have jurisdiction of the proceedings and of the question determined therein, and may proceed, upon the transcript of the record of the proceedings before the Commission, to affirm, modify, or set aside the Commission's order.

If any person against whom an order to cease and desist shall have been entered by the Commission, shall not wish merely to ignore the order, as safely he may, and to await application by the Commission to the court for the enforcement thereof, such person may file in the proper court of appeals a written petition praying that the order of the Commission be set aside. A copy of such petition shall forthwith be served upon the Commission, and thereupon the Commission shall certify and file in the court a complete transcript of the entire record of its proceedings. Thereafter the court may proceed, upon the transcript of the record of the proceedings before the Commission, to affirm, modify, or set aside the Commission's order.

No order of the Commission, or judgment or decree of the court of appeals enforcing the Commission's order, shall in any way relieve any person proceeded against by the Commission from liability or prosecution under the antitrust laws.

(8) Commission's control over its own orders. Until a transcript of the record of a proceeding before the Commission shall have been filed in the proper court of appeals, the Commission may at any time, upon such notice to the accused and in such manner as the Commission may deem proper, modify, or set aside, in whole or in part, the report and order involved in such proceeding.

(9) Court not bound absolutely by Commission's record. The findings of the Commission as to the facts, if supported by testimony, are by the statutes made conclusive upon the circuit court of appeals.116 The court, after acquiring jurisdiction, may however order additional evidence to be taken before the Commission, and adduced upon the hearing before the court, if either the Commission or the accused shall apply for leave therefor and shall show, to the satisfaction of the court, that such additional evidence is material and that there were reasonable grounds for failing to adduce the evidence before the Commission in the first instance. Such additional evidence may be taken upon such terms and conditions as to the court may seem proper. With the return to the court of such additional evidence, the Commission may make and file modified or new findings as to the facts, and its recommendations, if any, for the modification or setting aside of its original order. Such new or modified findings by the Commission as to the facts, if supported by testimony, shall be conclusive upon the court.

(10) Jurisdiction of court of appeals exclusive. Jurisdiction to enforce, set aside, or modify orders made by the Commission under its regulative power is vested

116 See Sec. 33, infra.

exclusively in the circuit court of appeals,117 and proceedings in that court to enforce, modify, or set aside the Commission's orders shall be given precedence over all other cases pending therein, and shall be in every way expedited. The judgment and decree of the court of appeals affirming, modifying, or setting aside any order of the Commission, shall be final, subject only to review by the Supreme Court of the United States upon certiorari.118

(11) Procedural rules. Under the power conferred upon it to make rules and regulations,119 the Commission. has adopted certain rules of practice120 which supplement in some degree the procedural provisions of the statutes. § 30. Commission not a court: The statutory proceeding just reviewed, leading to a decree by a court of appeals, is the only proceeding which the Trade Commission is authorized to institute to prevent "unfair methods of competition in commerce", or a violation of section two, three, seven or eight of the Clayton Law. And it seems entirely clear from the nature of the statutory proceeding that the Commission, in thus discharging its regulative function, cannot properly be regarded as a

order of the Commission made in pursuance" of the Trade Law, is probably to be understood as applying only to orders made by the Commission otherwise than in the course of the exercise of its regulative power, that is, under its investigative power. Cf., Sec. 56, infra.

118 The Judicial Code, Sec. 240; 1 U. S. Comp. Stat. (1913) Tit. 12C, Ch. 10, Sec. 1217, p. 511. 119 Trade Law, Sec. 6 (g). 120 See appendix.