Algoma Lumber Co. v. Federal Trade Commission

• Decision Date: 07 March 1932
• Docket Number: No. 6716.,6716.
• Citation: 56 F.2d 774
• Parties: ALGOMA LUMBER CO. et al. v. FEDERAL TRADE COMMISSION.
• Court: U.S. Court of Appeals — Ninth Circuit

56 F.2d 774 (1932)

ALGOMA LUMBER CO. et al. v. FEDERAL TRADE COMMISSION.

No. 6716.

Circuit Court of Appeals, Ninth Circuit.

March 7, 1932.

Warren Olney, Allan P. Matthew, Carl I. Wheat, and McCutchen, Olney, Mannon & Greene, all of San Francisco, Cal., for petitioners.

Robert E. Healy, Martin A. Morrison, Asst. Chief Counsel, and Eugene W. Burr, all of Washington, D. C., for respondent.

Before WILBUR and SAWTELLE, Circuit Judges.

WILBUR, Circuit Judge.

An ex parte order was made in this matter for the inclusion in the record to be certified by the Federal Trade Commission of a copy of the trial examiner's report upon the facts, and motion is made to amend the order by striking out the requirement that the report of the examiner should be included in the transcript. The statute upon the subject is in general terms (38 Stat. pp. 717, 720, § 5, 15 USCA § 45), and provides that the Commission shall file with the court "a transcript of the entire record in the proceeding, including all the testimony taken and the report and order of the commission." The statute also provides that the Commission after its hearing "shall make a report in writing in which it shall state its findings as to the facts," and further provides that the findings of the Commission as to the facts, if supported by the testimony, shall be conclusive, but either party may apply to the court for leave to adduce additional evidence. The Commission states in its application that its uniform practice has been to omit from its transcripts of proceedings the findings of the examiner, and that out of a total of 148 petitions to the various Circuit Courts of Appeals in only three have the examiner's reports been accepted by the Circuit Courts. The Commission contends that the findings of the examiner are no proper part of the record, and states, "In the present case the examiner's findings comprise 58 pages of mimeographed material and the exceptions thereto by the present petitioners cover 105 printed pages, while those by counsel for the Commission occupy 20 (mimeographic) pages." The petitioners who seek to review the order of the Commission maintain that the question as to whether or not the report of the examiner and proceedings with relation thereto shall be included in the record to be certified to the court by the Commission is a matter resting in the sound discretion of the court. This we think is correct and in accordance with the rulings of the various courts. The petitioners...