Menzies v. Federal Trade Commission, 7352.

• Decision Date: 07 March 1957
• Docket Number: No. 7352.,7352.
• Citation: 242 F.2d 81
• Parties: John T. MENZIES, President of The Crosse & Blackwell Company; Charles P. McCormick, President of McCormick & Company, Inc., and Samuel H. Hoffberger, President of Pompeian Olive Oil Corporation, Appellants, v. FEDERAL TRADE COMMISSION, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

242 F.2d 81 (1957)

John T. MENZIES, President of The Crosse & Blackwell Company; Charles P. McCormick, President of McCormick & Company, Inc., and Samuel H. Hoffberger, President of Pompeian Olive Oil Corporation, Appellants, v. FEDERAL TRADE COMMISSION, Appellee.

No. 7352.

United States Court of Appeals Fourth Circuit.

Argued January 23, 1957.

Decided March 7, 1957.

Writ of Certiorari Denied May 13, 1957.

G. C. A. Anderson, Baltimore, Md., and James W. Cassedy, Washington, D. C. (A. Adgate Duer, Niles, Barton, Yost & Dankmeyer, Anderson Barnes & Coe, Baltimore, Md., and Morton J. Hollander, Washington, D. C., on brief), for appellants.

Robert B. Dawkins, Asst. Gen. Counsel, Federal Trade Commission, Washington, D. C., (Earl W. Kintner, Gen. Counsel, and John T. Loughlin, Atty., Federal Trade Commission, Washington, D. C., on brief), for appellee.

Before PARKER, Chief Judge, and HARRY E. WATKINS and GILLIAM, District Judges.

Writ of Certiorari Denied May 13, 1957. See 77 S.Ct. 863.

PARKER, Chief Judge.

These are appeals from an order enforcing subpoenas duces tecum issued by the Federal Trade Commission pursuant to section 9 of the Federal Trade Commission Act, 15 U.S.C.A. § 49. The subpoenas were issued in proceedings before the Commission in which three corporations were charged with violation of section 2(d) of the Clayton Act as amended by the Robinson-Patman Act. 15 U.S.C.A. § 13(d). The contentions on appeal are that the subpoenas are invalid on the ground that the Commission does not have power to issue subpoenas under section 9 of the Federal Trade Commission Act in proceedings had before it for enforcement of the Clayton Act and that, even if this power exists, the subpoenas are violative of the provisions of the Fourth Amendment to the Constitution of the United States.

The facts are fully stated and the applicable statutory provisions are accurately set forth and analyzed in the opinion of the District Judge. See Federal Trade Commission v. Menzies, 145 F.Supp. 164. We note that like action was taken in the case of Federal Trade Commission against Reed in the Northern District of Illinois, not yet reported, although not followed in Federal Trade Commission v. Rubin, D.C.S.D. N.Y., 145 F.Supp. 171. With due respect to the opinion of the judge in the case last mentioned, which we have carefully read and considered, we entertain no doubt as to the correctness of decision of the District Judge in this case and feel that little need be added to his opinion.

It is not without significance that for more than forty years the Federal Trade Commission, in proceedings had before it under the Clayton Act, has issued subpoenas such as it issued here and has issued many thousands of such subpoenas. While we agree that this is not conclusive as to its power to issue them, it is not reasonable to suppose that the power would have gone unchallenged for so long a period in such a sensitive field of the law, if there were any real doubt as to its existence.

The Federal Trade Commission Act, 15 U.S.C.A. § 41 et seq., and the Clayton Act, 15 U.S.C.A. § 12 et seq. were before Congress at the same time and were in pari materia, dealing with the same general subject matter, restraints of trade and unfair competition. The Clayton Act, 38 Stat. 730, laid down substantive rules of law and provided for their enforcement by courts and administrative agencies. The Federal Trade Commission Act created the Commission as an administrative agency and conferred certain powers upon it, among others the power to enter cease and desist orders upon a finding of unfair competition and to conduct investigations as to "the organization, business, conduct, practices, and management of any corporation engaged in commerce, excepting banks and common carriers * * * and its relation to other corporations and to individuals, associations and partnerships". 38 Stat. 717-724, 15 U.S.C.A. § 46. Authority to enforce compliance with the provisions of the Clayton Act, except as to banks and common carriers, was conferred by section 11 of that act on the Federal Trade Commission; and this could mean nothing else than that, in carrying out this provision, the Commission should exercise the powers with respect to investigations and hearing vested in it by the act of its creation. Among such powers, was the power to examine documents and witnesses and issue subpoenas. This was provided in section 9 of the Act, the pertinent portion of which is as follows:

"Sec. 9. That for the purposes of this Act the commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any corporation being investigated or proceeded against; and the commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. Any member of the commission may sign subpoenas, and members and examiners of the commission may administer oaths and affirmations, examine witnesses, and receive evidence. * * *."

Contention is made that the language "for the purposes of this Act" limits the power of examining witnesses and issuing subpoenas to proceedings and investigations authorized by the act creating the Commission and that the power may not be exercised in an enforcement provision which the Commission is authorized by the Clayton Act to conduct. This, we think, is an unreasonable and forced construction of the language used, the manifest purpose of which was to give the Commission the power of subpoena and examination in connection with any investigation or proceeding which it was authorized by law...