original record. (c) Where the Circuit Court of Appeals requires further testimony, it can return the matter to the Commission, or Board, and said body may make recommendation as to the form of the findings which it thinks proper after taking such additional evidence. (d) As a final precaution and safeguard, the judgment and decree of the Circuit Court of Appeals is by special provision made subject to review by the Supreme Court upon certiorari, as provided in Sec. 240 of the Judicial Code.3

It must be apparent that the legislative bodies have devoted exceptional thought and care to the preparation of these statutes, seeking to throw about the business affairs of the country an atmosphere of conservatism that would allay and remove any just occasion for fear or alarm. Certainly an abundant opportunity is provided for discussion and review before the order or decree of the supervising commission, board or court becomes effective and binding.

5. COMMENDATORY RULINGS NOT PART OF LEGISLATIVE PLAN.

No Commendatory Ruling Authorized.-One other feature was taken up in the debates upon this measure and while it is not incorporated in the statute, some mention thereof may be useful as well as interesting in this connection and at this time. We refer to the proposal to make it lawful for the Commission or Board to enter an order approving the conduct of a given individual, partnership or corporation, in the premises, thereby fixing a standard and setting its official seal of approbation upon good behavior in contradistinction to issuing mandates to restrain evil doing. While it would no doubt be sufficient to say that this provision was not retained in the final draft of the organic statutes creating this new departure and new department in Federal affairs, still it seems to us that the elimination of this power to approve contains a somewhat deeper significance than attaches to the removal of any other proposed change.

The words of the President's message delivered before Congress January 20, 1914, wherein he dealt with trusts and monopolies and urged legislation to create a trade commission,-contained the expression, "the opinion of the country would instantly approve such a commission." The whole tenor of this

3 See Code provisions contained in Appendix I, pages 291-293.

message shows he intended and expected that the commission should have advisory and commendatory powers, in addition to its administrative and judicial functions; and that the firstnamed powers would receive public approbation.

The Committee on Interstate Commerce, in its report on the proposed Trade Relations Bill (one of the five measures comprised in substance in the terms of the Federal Trade Commission Act and the Clayton Law), set forth the committee's views on this important topic in the following words: "There ought to be a way in which men in such a venture could submit their plan to the government and inquiry made as to the legality of such a transaction; and, if the government was of the opinion that competitive conditions would not be substantially impaired, there should be an approval, and in so far as the lawfulness of the exact thing proposed is concerned there should be a decision, and if favorable to the proposal there should be an end to that particular controversy for all time.”

It is an old saying that republics are ungrateful; and certainly where political pressure has not fortified the claims of the petitioning party, history records much to be regretted in that respect. The unpaid French spoliation claims, dating back more than a century, constitute a case in point. But this conduct is due as we believe, more to defects in political viewpoint and scheme of government, than to delinquency in morals. In brief, republics do not lend themselves readily to commendatory legislation, and bureaucratic ideas are permitted to obscure the essential equities of the case. That this is a defect may readily be shown by argument or by reflection.

Monarchial institutions on the contrary, in this particular, provide a more elastic means for administering things political. There an actual person and not an intangible ideal entity-the public-rules the state; and human needs, limitations and likewise their demerits or rights to receive rewards can all be brought forward, urged and passed upon in an atmosphere of practical requirements and human sympathy. The eye of the master is ever present in theory at least; it scans the patient labors in the inventor's laboratory; attends the explorer upon his adventures; marks with approval the results of the painter's brush, or the engraver's tool; and it commends the merchant who through years of fair dealing has established a reputation which is a standard of honesty throughout the seven seas. Upon the latter knighthood

or higher titles are conferred and the state marks him by public acts and in effect says: "Thus shall it be done to the man whom the king delighteth to honor."

Nothing of this nature is practical, hardly possible, in a republic. It is true the "Legion of Honor" has been established in France; and the "Thanks of Congress" confer some mild form of favor for those who have done deeds of exceptional patriotism or prowess. This attempt at conferring distinction where merit exists is some evidence that the people of the United States recognize the existence of a plane of equity which statutes and court decisions do not attain unto. They indicate that the citizens of the American Republic realize the defects of their qualities and are ready and willing to supplement and build up the weak places in the scheme of government we inherit from our forefathers. Perhaps at some future time, and in some effectual way the two schemes of government may be winnowed over, and the best combined in one. Certainly, there could be no harm and much good in permitting the Commission, Board or Court to mark with approval a record of business affairs where the competition has been fair and the rewards won have been gained without fear or favor. Such commendation could and should be confined to the particular matter in hand and relate solely to the past. Future acts would call for future scrutiny. Perhaps this digression may seem to some uncalled for; to others we trust "the right to commend" will seem to be a useful adjunct to a governing Commission, Board or Court.

Procedures under these Statutes Stated and Compared.-In concluding this chapter upon enforcement it may be well briefly to point out again the classes of cases to which the procedure applies. In Section 5 of the Federal Trade Commission Act the statute empowers the Commission to prevent unfair methods of competition in commerce; and to effectuate that purpose, directs said body to issue and serve a summons with a notice of a hearing upon any such person, partnership or corporation whenever it shall have reason to believe said individual, firm or corporation has been engaged in said unlawful practices. It is apparent that a considerable degree of latitude and discretion is lodged in the Commission, since the statute further provides that such process shall be issued and served only when "it shall appear to the Commission that a proceeding by it in respect thereof would be to the

interest of the public"; but as we have dwelt upon that qualification quite fully in the preceding pages of this chapter, that particular phase of the subject will not be treated of further in this place.

By reference to Section 11 of the Clayton Law, two points of difference will be noticed: (1) the fact that the item of public interest is presumed; (2) the violation of Sections 2, 3, 7, and 8 of that law constitute the occasion for issuing and serving the complaint and notice. Referring to the provisions of the Clayton Law, it there appears that Section 2 relates to price discrimination; Section 3 to conditional or tying contracts; Section 7 to corporate stock ownership in a competing corporation or holding company, and Section 8 to interlocking directorates.

These four sections taken together comprise all the formative features of the Clayton Law and the procedure for their enforcement vitalizes the entire statute. Consequently, it is extremely necessary to those brought into those proceedings or practicing before that body that the subject should be thoroughly understood. The plan is simple and direct, and careful reading of the statute in conjunction with these comments and suggestions should and we believe will remove any existing doubts or uncertainties.

No Express Provision to Review Court Ruling as to Resubmission.-Returning to the express provisions of these statutes, it should be noted that Congress has not in terms provided for any review in cases where the party has applied for and has been refused the right to have the matter returned to the Commission or Board for further testimony. It may be that the legislative intent was that the decision of the Circuit Court of Appeals should be final; but it is to be noted that this phase of these litigations was left for the final consideration of the Supreme Court on application to review the judgment obtained, as provided in Section 240 of the Judicial Code, under express permission conferred by the Federal Trade Commission Act, Section 5, paragraph 4.

In corresponding Sections 5 and 11 of the respective statutes it is directed that the Circuit Court of Appeals shall expedite these proceedings by giving them preference over other cases; also, that no order of the Commission or judgment of the court to enforce the same shall in any wise relieve or absolve any person,

4 See Appendix I, pages 291-293.

partnership, or corporation from any liability under the Anti

trust acts.

6. SERVICE OF PROCESS.

Method of Service. It is also provided in what manner orders or other process of the Commission or Board shall be served. Such service may be made by any one duly authorized by the Commission, as follows: (1) by delivering a copy thereof to the person to be served, or to a member of the partnership to be served, or to the president, secretary or other executive officer or a director of the corporation to be served; or (2) by leaving a copy thereof at the principal office or place of business of such person, partnership, or corporation; or (3) by registering and mailing a copy thereof addressed to such person, partnership, or corporation at his or its principal place of business. The means of proof of such service are also specified in the statute, (Federal Trade Commission Act, Sec. 5, page 252, post; Clayton Law, Sec. II, pages 270, 271, post.