Chamber of Commerce of Minneapolis v. Federal Trade Com'n of the United States

• Decision Date: 27 March 1922
• Docket Number: 222.
• Citation: 280 F. 45
• Parties: CHAMBER OF COMMERCE OF MINNEAPOLIS et al. v. FEDERAL TRADE COMMISSION OF THE UNITED STATES et al.
• Court: U.S. Court of Appeals — Eighth Circuit

280 F. 45

CHAMBER OF COMMERCE OF MINNEAPOLIS et al. v. FEDERAL TRADE COMMISSION OF THE UNITED STATES et al.

No. 222.

United States Court of Appeals, Eighth Circuit.

March 27, 1922

David F. Simpson, of Minneapolis, Minn. (William A. Lancaster, John Junell, James E. Dorsey, Harold G. Simpson, and Leavitt R Barker, all of Minneapolis, Minn., on the brief), for petitioners.

Adrien F. Busick and M. Markham Flannery, both of Washington, D.C (W. H. Fuller, of Washington, D.C., on the brief), for respondents.

Before SANBORN and LEWIS, Circuit Judges, and VAN VALKENBURGH District judge.

VAN VALKENBURGH, District Judge.

This is a suit filed originally in this court. The pleading is entitled 'Petition for Writ of Certiorari to the Federal Trade Commission, and for Order Setting Aside Order of Federal Trade Commission Denying Motions. ' On or about December 7, 1920, the commission filed a complaint against the Minneapolis Chamber of Commerce, its officers and board of directors, the Manager Publishing Company, John H. Adams and John F. Flemming, who are the petitioners herein alleging that the commission had reason to believe, from a preliminary investigation made by it, that these petitioners were using unfair methods of competition in interstate commerce, in violation of the provisions of the act creating the Federal Trade Commission (Comp. St. Secs. 8836a-8836k), and defining its powers and duties. In due time petitioners made and submitted a number of motions which, upon hearing before the commission, were denied by interlocutory order duly made and entered.

The preliminary motions referred to contained numerous specifications which, upon analysis, raise the following matters of substance: (1) The commission is without jurisdiction both of parties and of subject-matter. (2) The complaint states no cause of action. (3) The commission is biased and prejudiced against the petitioners. (4) The complaint is indefinite and uncertain in certain paragraphs. (5) The Federal Trade Commission Act is unconstitutional. Accordingly petitioners prayed that no issue of fact be joined or evidence received as to the allegations contained in certain paragraphs of the complaint and that the entire proceeding be dismissed. As an incident to this review they seek the issuance of a writ of certiorari requiring respondents to certify to this court, for review and determination, the preliminary order of which they complain.

In our judgment certiorari, as such, will not lie, because this court has no power to issue the writ as original process, and because, further, we have not here presented a case where the writ is desired, as in the nature of an auxiliary process in aid of jurisdiction acquired; nor is it necessary for the protection of appellate jurisdiction before such jurisdiction is actually obtained, which otherwise might be defeated, nor to make the jurisdiction effectual, nor because of the absence of any other remedy. The writ, as asked, partakes largely of the nature of a writ of prohibition, but such is not justified by the circumstances in this case under any power conferred by statute upon Circuit Courts of Appeals.

What is really sought by petitioners is that this court should halt inquiry at the threshold, exercising, in effect, the powers of a court of original jurisdiction, in which a cause is pending, to rule in limine upon the propriety of the action and whether it should proceed further. The procedure invoked is similar, in effect, to that prevailing in a court of original jurisdiction, which has control of the successive steps of pleading, practice, trial, and final judgment or decree. But it must be remembered that this court has no original jurisdiction of this nature. Its functions, under the act before us, are confined to a review of certain acts of the Federal Trade Commission, which are specifically defined by the Congress. This act creates powers not otherwise conferred upon Circuit Courts of Appeals, and such courts are limited strictly to the powers thus specified. It was not intended that the Circuit Courts of Appeals should be drawn into original conduct of these investigations. If this court is to exercise plenary power and control in determining at the outset what party shall be dealt with, what investigation shall be made, and what recommendation submitted, then it has, in effect, been constituted an original trial tribunal of controversies of this nature. This was in no wise contemplated, nor would it comport with...