to support it. Both section five of the Trade Law and section eleven of the Clayton Law are explicit in providing for a "hearing" before the Commission, for the reduction to writing and filing of the "testimony" adduced before the Commission, and for the inclusion of such "testimony" in the transcript of the record of the Commission's proceedings filed in a court of appeals. The findings of the Commission, so far as supported by "testimony" are declared by the statutes to be conclusive on the court but, except as so supported, inferentially they amount to nothing. The orders of the Commission are not self-enforcing, and a court could not enter a valid decree to enforce them without some testimony to support the decree. Those considerations would seem to require that unless the Commission shall wish to incur the risk of having a proceeding instituted by it made farcical by the failure of the accused to appear, or having appeared to give evidence of his guilt, the Commission must be prepared in advance in every case to adduce testimony prima facie sufficient to sustain an order to cease and desist.

To the acquisition by the Commission of the substantial "reason to believe" which Congress thus appears to have intended the Commission should possess before instituting proceedings, it is obviously essential that the Commission, acting ex parte before issuing any complaint, should first investigate and ascertain with at least a degree of certainty the facts bearing upon the supposed violation of law, and should reach a conclusion at least tentatively that those facts constitute an offense and establish the guilt of the person to be accused.

The conclusion forced by the considerations noted that the Commission is not in any sense a court, cannot be regarded as weakened by the circumstance that the Commission is to conduct hearings, take testimony, make con

clusive findings from the evidence taken as to the ultimate facts, and issue orders to cease and desist from "unfair methods of competition" and violations of sections two, three, seven and eight of the Clayton Law. Those acts do not amount to the exercise of judicial power, within the sense and meaning of the Constitution. The character of an inquiry by a governmental agency, as to whether it is executive, legislative, or judicial, is determined not by the conclusiveness, but by the nature, of the final act of the agency.122 The final act of the Commission, in the exercise of its regulative power, is to be the issuance of an order to cease and desist, which, after all, amounts to nothing but a mere executive admonition or recommendation. It is not a judgment.123 It is not conclusive upon the courts, as are the Commission's findings of facts, and cannot be enforced against the accused without the aid of the courts. The order of the Commission to cease and desist, if supported by a transcript of the record of the proceedings before the Commission, may be made a basis of conclusive action by a United States Circuit Court of Appeals. Until and unless acted upon approvingly and given force by the judicial power acting through an established and regularly constituted court, the order of the Commission is nugatory. The accused may disregard it with impunity. The Commission after having issued a complaint, is to act somewhat like a master in chancery in conducting a hearing, taking testimony, reaching conclusions as to the facts and reporting its conclusions to the court.124 What the Commission is to do, in the exercise of its regulative powers, is not to ex

122 Louis. & Nash. R. R. Co. v. Garrett (1913) 231 U. S. 298, 307, 308; Prentis v. Atlantic Coast Line (1908) 211 U. S. 210, 227.

123 In re Sanborn (1893) 148 U.

S. 222, 226; Gordon v. United
States (1864) 117 U. S. 697, 702.

124Oregon R. R. & N. Co. v. Fairchild (1912) 224 U. S. 510, 527.

ercise judicial power, but merely to perform certain acts preliminary to judicial action.

§ 31. Jurisdiction of court of appeals original, not appellate: Prior to the enactment of the Trade Law and the Clayton Law the jurisdiction of the United States circuit courts of appeals was exclusively appellate.125 Conceivably it might be argued that section five of the Trade Law and section eleven of the Clayton Law authorize an appeal from the Trade Commission to a court of appeals. And in support of that contention, it might be urged that those sections provide for the same procedure which is usually adopted to remove a cause from a trial court to a reviewing court, that is, for a filing of a transcript of the record of the proceedings before the Commission in a court of appeals, and provide also in terms that the court may "affirm, set aside or modify" the Commission's orders upon the record.

In view, however, of the considerations noted in the preceding section, the Commission must be taken to be merely an administrative body, without any power of a judicial nature. Under the separation of governmental powers provided for in the Constitution, a court, the repository of judicial power, cannot lawfully be called upon to exercise executive or legislative power, whether by way of reviewing and enforcing the orders of an administrative body or otherwise.126 To construe the Trade Law and the Clayton Law as requiring a court of appeals to exercise an appellate jurisdiction, as a reviewing court, in respect of the orders entered by the Commission as an administrative body would, therefore, be

125 United States V. Mayer (1914) 235 U. S. 55, 65.

126 Hayburn's Case (1792) 2 U. S. (2 Dall.) 408, 410-413; United States v. Ferreira (1851) 54 U. S. (13 How.) 40, 51-53; Gordon v.

United States (1864) 117 U. S. 697, 702, 703; In re Sanborn (1893) 148 U. S. 222; In re Pacific Ry. Com. (1887) 32 Fed. 241, 254-259.

to raise doubtful constitutional questions as to those laws. And, so far as statutes may fairly be construed in such a way as to avoid doubtful constitutional questions, they should be so construed.127

The sound construction of section five of the Trade Law and section eleven of the Clayton Law would seem to be that they confer an original jurisdiction upon courts of appeals in addition to the appellate jurisdiction previously possessed. The proceedings authorized in the courts of appeals in respect of the Trade Commission's orders to 'cease and desist' appear clearly to be a mere adaptation of the proceedings originally devised and authorized by Congress to enable the Interstate Commerce Commission to obtain the aid of federal trial courts to overcome by process for contempt of court any resistance to a lawful exercise of the Interstate Commerce Commission's investigative power. Such proceedings present a controversy for original judicial cognizance between the government, asserting a given right, and a citizen, denying that such right exists.128

A proceeding in a court of appeals under the Trade Law and the Clayton Law will be in effect an original proceeding between the government, represented by the Trade Commission, as plaintiff, and a citizen accused of an unlawful industrial practice, as defendant. The government will assert a right to have the citizen proceeded against compelled by the court to cease and desist from a given trade practice as constituting either an “unfair method of competition" or a violation of section two, three, seven or eight of the Clayton Law. The citizen will deny that the government has any such right in respect of the practice which may be in controversy. The

127 Fox v. Washington (1915) 236

U. S. 273, 277.

128 Int. Com. Com. v. Brimson

(1894) 154 U. S. 447, 477, s. c. 155 U. S. 3.

court will determine the issue thus raised by reference to the laws of the United States and the ultimate facts which may be presented in the particular case, and in determining the issue will exercise a jurisdiction strictly original, and not in any sense appellate.

That view finds additional support in the provisions of section five of the Trade Law and section eleven of the Clayton Law which authorize a court of appeals, under the circumstances specified in those sections, to cause the Commission to take and return for the consideration of the court, evidence and findings in addition to those contained in the transcript of the record of the original proceedings before the Commission as first filed in the court. That circumstance, that the record as originally made up by the Commission and first filed in court, may subsequently be supplemented or modified by the introduction therein of new matter, would seem to exclude a conclusion that a court of appeals, in dealing with an order of the Commission to cease and desist, is to act strictly as a court of review and nothing else, confined to and bound by the record made before the Commission in the first instance.

§ 32. Court of appeals not to proceed de novo: From the fact that the jurisdiction of a United States Circuit Court of Appeals in respect of an order of the Trade Commission to cease and desist, is original and not appellate, it does not follow however that, when called upon to determine whether or not an order by the Commission shall be enforced, the court is to proceed and determine de novo, without regard to the proceedings before the Commission, whether or not a violation of law has occurred.

The intention of Congress appears to have been that in any proceeding instituted by the Commission, all the facts of the case shall be disclosed before the Commis