for special appeal on which the case was heard in the court of appeals the court below holding that sections 6 and 9 of the Federal Trade Commission act did not confer any jurisdiction upon the commisison to employ subpoenas in any investigation made under section 6 of the act, but that the statute conferred power upon the commission to employ subpoenas only in adversary proceedings conducted under authority of section 5. The petition for rehearing was denied on January 21, 1928. The commission filed answer to the amended bill of complaint on February 14. On March 23 the court granted the motion of the federation for leave to file supplemental bill of complaint, in which it was claimed that final decree should issue against the commission, on the ground that its investigation had been completed, final report made to the Senate, and its authority thereby exhausted. The commission's answer to this supplemental bill was filed on April 4. At the close of the fiscal year negotiations were being conducted looking to a stipulation of the facts, in lieu of taking testimony in the suit for permanent injunction, in the Supreme Court of the District of Columbia. Royal Baking Powder case-Violation of section 5 of the Federal Trade Commission act.-This company was charged, on complaint of the commission, with publishing false statements about the products of competitors, among which were (1) that competitors' baking powders contained alum and were therefore unfit for use in food; (2) that the alum contained in such powders is the astringent commonly sold in drug stores under the name of alum and chemically known as potassium aluminum sulphate; (3) that competitors' baking powders are poisonous, that they are made of ground-up cooking utensils, that they do not come within the pure food laws, that they pucker up the stomach in the same manner that lump alum puckers up the mouth, and that they are made of the same substance used as a styptic after shaving. It was further charged that respondent had advertised anonymously to the same effect. Answer was filed, testimony taken, and briefs and oral argument presented to the commission. Thereafter, on March 23, 1926, the commission issued its order dismissing the proceeding. On the same day counsel for the commission filed a petition for reargument of the case before the commission, which petition was on said day granted. Notices of such dismissal and the granting of the petition for reargument were served upon the baking powder company simultaneously. Thereafter the case was reargued before the commission, upon which it vacated its order of dismissal entered March 23, 1926, and directed the reopening of the case solely for the taking of further testimony with respect to misleading advertising, anonymous advertising, and the circulation of erroneous extracts from the book A Collation of Cakes. The order expressly provided that no evidence be taken with respect to statements by the respondent relative to the deleteriousness of alum baking powder, and also confirmed the previous dismissal with respect to the use by respondent of the slogan "No alum-no bitter taste," since the commission was of opinion that its use as before them in this case was not an unfair method of competition. Thereupon, on October 22, 1926, the Royal Baking Powder Co. filed in the Supreme Court of the District of Columbia a petition for a writ of certiorari which the court caused to be issued and served upon the commission, commanding it to certify and transmit to that court the record and papers in the case before the commission, it being the contention of the company that the commission lost jurisdiction of the proceedings before it upon its entering the order of dismissal of March 23, 1926. On October 30, 1926, the commission moved the court to dismiss the petition and to quash the writ of certiorari, and on November 13, 1926, in addition to its motion to quash the writ of certiorari, the commission also filed a demurrer to the petition. Thereafter the matter was argued, briefs were filed, and on June 21, 1927, the court rendered its decision sustaining the commission's motion to quash the writ of certiorari on the ground of lack of jurisdiction in the court. (Not reported). The court declined to pass upon the demurrer to the petition, offering at the election of the petitioner to transfer the matter to the equity side of the court. This was done, and the equity court, on November 7, 1927, granted the commission's motion to dismiss the bill, saying (decision not reported): "From an examination of the decided cases bearing upon the questions presented herein the court is of opinion that, by the entry of the order of dismissal, on March 23, 1926, the commission did not exhaust its jurisdiction over the case pending before it; that its order reopening the case, as well its subsequent orders in relation thereto, were administrative and procedural in character; and that the same are not subject to review by this court." Final decree was signed November 15, 1927, the court at the time taking occasion to discuss allowance of writ of supersedeas, applied for by the company. It said: "It is not here necessary to decide whether this court, because of the limitations of the equity rule, supra, is or is not vested with discretion to grant a supersedeas which shall operate as an injunction against the Federal Trade Commission pending the appeal; but in view of the fact that this court reached the conclusion herein that the several orders complained of were administrative and procedural, and, as such not here properly subject to review, it is of opinion that it should not thus do indirectly that which it has directly held it had no right or jurisdiction to do." The company noted an appeal to the Court of Appeals of the District of Columbia, and on March 22, 1928, filed the tran script of record with this court. The commission, on April 7, 1928, filed a motion to dismiss the appeal, on the ground that the transcript had not been filed within the time provided by the new rules of the court of appeals, effective December 1, 1927. The motion, however, was denied. The printed transcript of record was filed on June 28 last; the next steps are the filing of briefs and argument. The case will not be reached before the fall term. Royal Baking Powder Co.-Mandamus to compel commission to pass upon affidavits of prejudice against member of commission.— In connection with a proceeding then pending before the commission against the company referred to, and before decision by the commission on a motion to dismiss the said complaint filed by the respondent company, the latter, on May 31 and June 4, 1928, filed in said cause certain petitions in the form of affidavits, in which it was charged that one of the members of the commission was so biased and prejudiced against the company as to be unable to give fair and impartial consideration to matters affecting said company, and in which suggestion was made that this commissioner would, on consideration of the facts, admit the impropriety of his continuing to' sit in judgment in matters concerning the Royal Baking Powder Co. The petitions prayed that the commission take action to prevent further participation by this commissioner in deliberations or decisions in matters and proceedings coming before the commission in which the company was a party or had an interest. On June 11, 1928, the commission entered an order overruling the motion to dismiss, and on June 28, 1928, a further order was entered postponing consideration of the petitions (in the form of affidavits of prejudice) until the final hearing of the case. The company thereupon, on June 30, 1928, filed with the Supreme Court of the District of Columbia its petition praying that a rule issue requiring the commission to show cause why a writ of mandamus should not issue against it, requiring it, before any other or further action is taken in connection with the pending proceeding (Doc. 1499) or in any other matter in which the company is a party or has an interest, to pass upon and announce decision on the prayers in the petition in the form of affidavits of prejudice referred to. On July 16 the court granted the company's motion to strike the commission's answer, with leave to the commission to file an amended answer. This was done on July 25. The next development will be a hearing on the motion of the company to strike the amended answer. |