Zitserman v. Federal Trade Commission
| Decision Date | 18 December 1952 |
| Docket Number | No. 14533.,14533. |
| Citation | 200 F.2d 519 |
| Parties | ZITSERMAN v. FEDERAL TRADE COMMISSION. |
| Court | U.S. Court of Appeals — Eighth Circuit |
F. W. James, Evanston, Ill., for petitioner.
John W. Carter, Jr., Atty. for Federal Trade Commission, Washington, D. C., (W. T. Kelley, Gen. Counsel, and Robert B. Dawkins, Asst. Gen. Counsel, Washington, D. C., on the brief), for respondent.
Before GARDNER, Chief Judge, and WOODROUGH and COLLET, Circuit Judges.
This is a petition to review a cease and desist order entered against petitioner by the Federal Trade Commission. The order was entered after hearing on complaint which alleged in substance that petitioner manufactured push cards and punchboards, selling and distributing them in interstate commerce to manufacturers of and dealers in various other articles of merchandise and that such push cards and punchboards are so prepared and arranged that when used in selling merchandise a game of chance, gift enterprise or lottery scheme is involved; that many persons, firms and corporations who distribute and sell merchandise in interstate commerce purchase petitioner's push cards and punchboards and pack and assemble assortments of merchandise with said push cards and punchboards; that retail dealers who purchase such assortments expose such assortments to the purchasing public and sell merchandise by means of petitioner's push cards and punchboards; that because of the element of chance involved, members of the purchasing public are induced to buy from such retail dealers and as a result many retail dealers have been induced to deal with manufacturers, wholesale dealers and jobbers who distribute merchandise together with petitioner's devices; that the sale of merchandise to the public by the use of such push cards and punchboards involved a game of chance to procure merchandise at less than normal retail prices; that the sale of merchandise by this method and means teaches and encourages gambling among members of the public, all to the injury of the public; that the sale of merchandise by chance or lottery is a practice which is contrary to the established public policy of the Government of the United States and constitutes unfair acts and practices in commerce; that by the sale of petitioner's push cards and punchboards petitioner supplies to and places in the hands of others the means of conducting lotteries, games of chance or gift enterprises in the sale or distribution of merchandise; that petitioner thus provides others with the means of and instrumentalities for engaging in unfair acts and practices in commerce in the sale of merchandise. The complaint also charged that said acts and practices of petitioner are all to the prejudice and injury of the public and constitute unfair acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act, 15 U.S.C.A. § 41 et seq.
By answer petitioner put in issue all the allegations of the complaint.
Although the printed record contains no evidence, nor even a recital that evidence was introduced in support of the allegations of the complaint, it is admitted by counsel for petitioner in his brief that "after issues were joined the Commission held hearings." Neither does the printed record contain any evidence introduced or offered by the petitioner. The hearing examiner filed his initial decision which included findings of fact and conclusions of law and an order to cease and desist. The findings which are set out in detail in the printed record sustained all the substantial allegations of the complaint and concluded that the petitioner's acts and practices as found constituted unfair acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. An order was entered which directed petitioner to cease and desist from "selling or distributing in commerce as `commerce' is defined in the Federal Trade Commission Act, punchboards, push cards, or other lottery devices which are to be used, or which may be used, in the sale and distribution of merchandise to the public by means of a game of chance, gift enterprise or lottery scheme." Petitioner appealed to the Commission from the decision of the trial examiner and on hearing the decision of the trial examiner was affirmed and adopted as the decision of the Commission.
By her petition for review in this court petitioner asks that we review "the findings and order of the Federal Trade Commission in said cause and enter a decree in this honorable court setting aside the order of the Federal Trade Commission * * *." In support of her petition she urges: (1) that the hearing granted her did not comply with the due process clause of the Constitution nor with the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., in that the trial examiner refused to grant the petitioner adequate hearings; (2) the Commission does not have jurisdiction to restrain the interstate shipment of push cards and punchboards; (3) the order issued is too broad; (4) the proceeding is not in the interest of the public as required by the Federal Trade Commission Act.
Although petitioner seeks a review of the findings of the Commission, she has not included in the printed record any of the evidence confessedly introduced in support of the allegations of the complaint. In this situation the findings and conclusions are presumed to be sustained by the evidence and may not be reviewed here.
The contention that petitioner was not granted a fair hearing is bottomed on certain alleged rulings of the trial examiner rejecting petitioner's proffered evidence. The evidence is not in the printed record and Rule 10(b) of this court among other things provides that, "If the appellant or petitioner in his brief challenges rulings upon evidence, such evidence, the objections interposed thereto, and the rulings questioned shall be quoted in the printed record, and if the question of the sufficiency of the evidence to support a finding, ruling, order, verdict or judgment of the court or board is raised by the appellant to petitioner, he shall include in the printed record (in narrative form) all evidence received upon the trial or hearing pertinent to that question." See Loughran v. Federal Trade Commission, 8 Cir., 143 F.2d 431. It is, however, urged by the petitioner that the record sufficiently reflects the ruling of the court on the admission of evidence because there is printed in the record, under the heading "Ruling," the following: "The Commission on appeal from the Trial Examiner's initial decision in upholding the Examiner's ruling that petitioner could not have hearings for the purpose of introducing evidence on the intrastate use of punch boards, ruled `The Commission is of the opinion that the distribution in commerce of devices which aid and encourage merchandising by gambling is contrary to the interest of the public.'" As there is nothing in this ruling which reflects the circumstances under which the ruling of the examiner was made nor what, if any, evidence was offered, this record leaves much to conjecture and speculation. In the final analysis, however, we think the contention is substantially embodied in petitioner's argument to the effect that the Federal Trade Commission Act does not confer jurisdiction on the Commission to restrain transportation of the devices here in question in...
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