United States Alkali Export Ass v. United States California Alkali Export Ass v. Same

• Decision Date: 21 May 1945
• Docket Number: 1017,Nos. 1016,s. 1016
• Citation: 65 S.Ct. 1120,325 U.S. 196,89 L.Ed. 1554
• Parties: UNITED STATES ALKALI EXPORT ASS'N, Inc., et al. v. UNITED STATES. CALIFORNIA ALKALI EXPORT ASS'N et al. v. SAME
• Court: U.S. Supreme Court

325 U.S. 196

65 S.Ct. 1120

89 L.Ed. 1554

UNITED STATES ALKALI EXPORT ASS'N, Inc., et al.

v UNITED STATES.

CALIFORNIA ALKALI EXPORT ASS'N et al.

v. SAME.

Nos. 1016, 1017.

Argued May 1, 2, 1945.

Decided May 21, 1945.

Mr. Wm. Dwight Whitney, of New York City, for petitioners.

Mr. Wendell Berge, Asst. Atty. Gen., for respondent.

Mr. Chief Justice STONE delivered the opinion of the Court.

This is a suit in the District Court for Southern New York, brought by the United States under § 4 of the Sher- man Anti-Trust Act, 15 U.S.C. § 4, 15 U.S.C.A. § 4, to restrain violations of the Act. The defendants, who are petitioners here, are two incorporated export associations, thirteen domestic members of one or the other, and a British corporation and its American subsidiary, all of which are producers of alkalies. The bill of complaint alleges that petitioners are engaged in a conspiracy to eliminate exports of alkalies to the United States by the foreign members of the conspiracy; to restrict or eliminate exports of alkalies by domestic producers from the United States to many world markets; to prevent independent domestic producers from competing with petitioners, in the export of alkalies; to restrict their production of alkalies in the United States; and to fix prices of caustic soda in the United States, all in violation of § 1 of the Sherman Act, 15 U.S.C. § 1, 15 U.S.C.A. § 1.

The district court denied, 58 F.Supp. 785, petitioners' motion to dismiss the complaint, made on the ground that exclusive jurisdiction of the matters charged in the complaint is vested in the first instance in the Federal Trade Commission, under §§ 1, 2, and 5 of the Webb-Pomerene Act of April 10, 1918, c. 50, 40 Stat. 516, 15 U.S.C. §§ 61, 62, 65, 15 U.S.C.A. §§ 61, 62, 65. Petitioners then filed here petitions for certiorari under § 262 of the Judicial Code, 28 U.S.C. § 377, 28 U.S.C.A. § 377, seeking review of the order of the district court denying the motion to dismiss.

The questions for decision are (1) whether the order of the district court, denying petitioners' motion to dismiss the complaint, may appropriately be reviewed here by writ of certiorari issued under § 262 of the Judicial Code and, if so, (2) whether §§ 1, 2 and 5 of the Webb-Pomerene Act confer primary jurisdiction on the Federal Trade Commission, exclusive of that of the District Court, to pass upon alleged violations of the Sherman Act by export associations.

Section 4 of the Sherman Act invests the several district courts with jurisdiction to restrain violations of the Act and it imposes on district attorneys of the United States, under the direction of the Attorney General, the duty to institute suits in equity in their respective districts, to restrain such violations. But § 2 of the Webb-Pomerene Act exempts from the prohibitions of the Sherman Act, associations 'entered into for the sole purpose of engaging in export trade and actually engaged solely in such export trade' and also any 'agreement made or act done in the course of export trade by such association, provided such association, agreement, or act is not in restraint of trade within the United States, and is not in restraint of the export trade of any domestic competitor of such association.' To this is added a second proviso 'that such association does not, either in the United States or elsewhere, enter into any agreement, understanding, or conspiracy, or do any act which artificially or intentionally enhances or depresses prices within the United States of commodities of the class exported by such association, or which substantially lessens competition within the United States or otherwise restrains trade therein.'

The first paragraph of § 5 of the Webb-Pomerene Act requires each association engaged solely in export trade to file with the Federal Trade Commission a statement giving information concerning its officers and stockholders or members, and its place of business, and a copy of its articles of incorporation or its contract of association; the association is required to refile annually such statements with suitable corrections, and to furnish such further specified information as the Commission may from time to time request. Section 5 further provides in its second paragraph that whenever the Commission shall have reason to believe that an export association is violating the Sherman Act in the ways excepted by the provisos of § 2 from its exemptions, the Commission shall conduct an investigation into the alleged violations. If 'it shall conclude that the law has been violated, it may make to such association recommendations for the readjustment of its business, in order that it may thereafter maintain its organization and management and conduct its business in accordance with law.' If the association fails to comply with the recommendations of the Commission, it 'shall refer its findings and recommendations to the Attorney General of the United States for such action thereon as he may deem proper.'¹

Petitioners do not question the district court's rulings, in denying their motion, that the complaint alleges violations of the Sherman Act, and that under its allegations petitioners are not within any immunity from the Sherman Act secured by § 2 of the Webb-Pomerene Act. Their sole contention on the merits is that § 5 of the latter Act, by authorizing the proceedings before the Federal Trade Commission, deprives the district courts of jurisdiction in Sherman Act cases until the Commission has made its investigation and recommendations, the associations have failed to comply with them, and the Commission has referred its findings and recommendations to the Attorney General.

I.

Petitioners argue that this Court may appropriately review the order of the district court by writ of certiorari, issued under § 262 of the Judicial Code. They point out that § 2 of the Expediting Act of February 11, 1903, as amended, 15 U.S.C. § 29, 15 U.S.C.A. § 29, governing appeals in Sherman Act cases, makes no provision for appeals from interlocutory orders or judgments, and provides that 'an appeal from the final decree of the district court will lie only to the Supreme Court.' See United States v. California Coop. Canneries, 279 U.S. 553, 49 S.Ct. 423, 73 L.Ed. 838. But it is urged that the district court is deprived of its jurisdiction by § 5 of the Webb-Pomerene Act, until the Trade Commission has made the investigation and followed the further procedure outlined by § 5; that the assertion by the district court of its jurisdiction, without awaiting an investigation by the Commission, will entail protracted litigation and impose on the parties great expense before the error can be corrected on appeal from the final judgment to this Court. All this will be avoided, it is said, by awaiting action by the Commission. Hence petitioners insist that the case is appropriate for the exercise by this Court of its extraordinary power to review the order of the district court by writ of certiorari.

Section 262 of the Judicial Code provides that the Supreme Court, circuit courts of appeals and the district courts, 'shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.' Under § 262, this Court has power, in aid of its appellate jurisdiction, to review judgments and orders of the district courts by resort to the common law writs of certiorari, mandamus and prohibition. Whitney v. Dick, 202 U.S. 132, 26 S.Ct. 584, 50 L.Ed. 963; McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762, and cases cited; In re 620 Church Street Building Corporation, 299 U.S. 24, 26, 57 S.Ct. 88, 89, 81 L.Ed. 16, and cases cited; Ex parte Republic of Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014, an cases cited; House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, and cases cited; compare Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185. These writs are granted or withheld in the sound discretion of the Court. See Roche v. Evaporated Milk Ass'n, supra, 319 U.S. at page 25, 63 S.Ct. at page 941, 87 L.Ed. 1185, and cases cited. In the usual case this Court will decline to issue a writ prior to review in the Circuit Court of Appeals, whether by ordinary appeal, In re Tampa Suburban R. Co., 168 U.S. 583, 588, 18 S.Ct. 177, 179, 42 L.Ed. 589, or by an extraordinary remedy, see Ex parte Peru, supra, 318 U.S. 584, 63 S.Ct. 797, 87 L.Ed. 1185. But where, as here, sole appellate jurisdiction lies in this Court, application for a common law writ in aid of appellate jurisdiction must be to this Court.

The traditional use of such writs both at common law and in the federal courts has been, in appropriate cases, to confine inferior courts to the exercise of their prescribed jurisdiction or to compel them to exercise their authority when it is their duty to do so. In re Chetwood, 165 U.S. 443, 462, 17 S.Ct. 385, 392, 41 L.Ed. 782 (citing Tidd's Prac. *398, and Bac. Ab., Certiorari); Whitney v. Dick, supra, 202 U.S. 139, 140, 26 S.Ct. 587, 50 L.Ed. 963; Ex parte Peru, supra, 318 U.S. 583, 63 S.Ct. 796, 87 L.Ed. 1014, and cases cited.² It is evident that hardship is imposed on parties who are compelled to await the correction of an alleged error at an interlocutory stage by an appeal from a final judgment. But such hardship does not necessarily justify resort to certiorari or other of the extraordinary writs as a means of review. In such cases appellate courts are reluctant to interfere with decisions of lower courts, even on jurisdictional questions, which they are competent to decide and which are reviewable in the regular course of appeal. In re Tampa Suburban R. Co., supra; Ex parte Harding, 219 U.S. 363, 369, 31 S.Ct. 324, 325, 55 L.Ed. 252, 37 L.R.A.,N.S., 392; Roche v. Evaporated Milk Ass'n, supra, 319 U.S. 30, 31, 63 S.Ct. 943, 944, 87 L.Ed. 1185, and cases cited; cf. Stoll...