L.B. Silver Co. v. Federal Trade Commission
| Decision Date | 16 October 1923 |
| Docket Number | 3648. |
| Citation | 292 F. 752 |
| Parties | L. B. SILVER CO. v. FEDERAL TRADE COMMISSION. |
| Court | U.S. Court of Appeals — Sixth Circuit |
For former opinion, see 289 F. 985.
In due time after the filing of the opinion herein, a mandate was sent to the Commission, in the usual form of mandates which go to District Courts. We directed a modification of the Commission's order in certain respects, and in other respects affirmed it. The Commission now asks that this mandate be recalled, and that this court enter its decree enjoining the Silver Company from further continuing those practices as to which we had affirmed the Commission's order. The ground of this application is that there must be an order of this court before there can be any enforcement of the Commission's order through punishment for violation that if the application in this matter had been by the Commission for enforcement, instead of by the Silver Company for vacation, the court would have entered such an injunction order; and that, to avoid unnecessary forms and proceedings such an order should likewise be entered when a petition for vacation is denied. It is said that this practice was pursued by the Circuit Court of Appeals of the Second Circuit in the Beech Nut Case, when the court entered its decree, pursuant to the mandate from the Supreme Court (257 U.S. 441, 42 S.Ct 150, 66 L.Ed. 307, 19 A.L.R. 882), sustaining the Commission's order in the essential particulars, but modifying it somewhat.
It does not necessarily follow that the court should take the same action upon a petition by a respondent to set aside the Commission's order as upon a petition of the Commission to enforce; but, even if not, it would have been entirely proper for the Commission to couple with its answer in this case a cross-petition asking enforcement, and thus to present the question with all formality; and, if it were necessary we would be inclined to permit, now, an amendment of the pleadings for that purpose.
Upon its merits, the question of the form which our order should take depends upon whether our jurisdiction is appellate or original. If the former, under our established practice we would affirm or reverse and remand, and in either case the judgment or decree to be enforced would continue to be that of the court below. If the latter, we would naturally enter our own decree, fixing the rights of the parties and in such form that it would...
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