« AnteriorContinuar »
tion or an unlimited right of access to books and papers of private parties not engaged in any public service or a search without basis of some facts tending to establish a charge of wrongdoing:
It is now well established that a corporation is entitled to invoke the guarantees of the Fourth Amendment against unreasonable searches and seizures in as full a measure as would a person or partnership. Silverthorne Lumber Co. vs. United States, 251 U. S. 385; Coastwise Lumber Co. vs. United States, 259 Fed. 847.
In the papers submitted on this application there is no showing of the existence of probable cause. The relief prayed for is in general terms and includes all papers and telegrams received by each respondent from its jobber customers located in different points throughout the United States and copies of all letters and telegrams sent by each_respondent to such jobbers during the period from January 1, 1921, to December 31, 1921, inclusive. Such general demands made in other warrants of law, such as a subpoena duces tecum, have been condemned as not giving a reasonably accurate description of the papers wanted, either by date, title, substance, or subject to which they relate. Ex Parte Brown, 72 Mo. 83; Carson vs. Hawley, 82 Minn. 204.
In Boyd vs. United States, 116 U. S. 616, the court quoted with approval Judge Camden's language in Èntick v. Carrington and Three Other King's Messengers, 19 Howell's State Trials, 1029, wherein he said:
“Papers are the owner's goods and chattels; they are his dearest property; and are so far from enduring a seizure that they will hardly bear an inspection; and though the eye can not by the laws of England be guilty of a trespass, yet where private papers are removed and carried away the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and, therefore, it is too much for us, without such authority, to pronounce a practice legal which would be subversive of all the comforts of society."
To grant the relief prayed for by the petitioner would be to permit an unreasonable search and seizure of papers in violation of the Fourth Amendment. It was not the intention of Congress to grant such unlimited examination and inspection by the legislation in question, nor, indeed, did Congress have authority to do so under the commerce clause of the Constitution. It would be unreasonable and unjust to accede to the demands of the petitioner, and the application for the peremptory writ of mandamus against the respondents American Tobacco Company and P. Lorillard Company is denied.
GUARANTEE VETERINARY CO. ET AL. v. FED
ERAL TRADE COMMISSION.
(Circuit Court of Appeals, Second Circuit. November
1. TRADE-MARKS AND TRADE NAMES AND UNFAIR COMPETITION KEY
No. 801, New, VOL. 8A KEY-No. SERIES—THREE ANALYSES
DID Not CONTAIN ADVERTISED INGREDIENTS. Where three analyses of samples of a product, one of which was furnished by the seller and the other two purchased in the open market, all showed that the product lacked 10 of the 16 ingredients stated in the advertisements thereof, and there was no evidence to the contrary, nor offer to submit other samples for further analysis, the finding of the Commission that the product, some of which was admittedly shipped in interstate commerce, did not contain the advertised ingredients, was sustained by the presumption that the samples analyzed were fair samples, so as to be conclusive under Federal Trade Commission
act, par. 5 (Comp. St., par. 8836e). 2. TBADE-MARKS AND TRADE NAMES AND UNFAIR COMPETITION
KEY No. 801, NEW, VOL. 8A KEY-No. SERIES—EVIDENCE HELD
SUSTAIN FINDING ADVERTISEMENT GOVERNMENT HAD ADOPTED PRODUCT WAS FALSE. The Federal Trade Commission's finding that an advertisement that the Government had adopted the product advertised was false was sustained by proof that the only purchase of the product by the Government was permission given by the Govern. ment to the manufacturer of the product to substitute some of it for the manufacturer's own product, marketed under another
name, which had been sold to the Government. 3. TRADE-MARKS AND TRADE NAMES AND UNFAIR COMPETITION KEY
No. 801, New, vol. 8A KEY-No. SERIES-VOLUNTARY DISCON-
FROM ISSUING ORDER. The fact that the company had discontinued the publication of a false advertisement that the Government had adopted its product before the complaint was filed against it before the Federal Trade Commission, does not deprive the Commission of authority to command the company to desist from such advertisement, since it is not obliged to assume that the false
publication would not be resumed. 4. TRADE-MARKS AND TRADE NAMES AND UNFAIR COMPETITION
KEY No. 801, New, VOL. 8A KEY-No. SERIES—COMMISSION
FALSE ADVERTISEMENT. Where the testimony showed conclusively that a company had published advertising matter containing false and misleading
statements, which it circulated in several states, and that it sold its product in interstate commerce, it was a proper exercise of the Commission's discretion to command the company to desist
from publishing such advertisement. 5. TBADE-MARKS AND TRADE NAMES AND UNFAIR COMPETITION
KEY No. 801, NEW, VOL. 8A KEY-No. SERIES-MANAGER OF
PARTY. Even though the manager of a common-law trust, which was engaged in unfair competition in interstate commerce, was not individually engaged in such commerce, and was not a necessary party to proceedings against the company before the Federal Trade Commission, he can not complain that he was made a party.
(The syllabus is taken from 285 Fed. 853.)
Petition to Review Order of the Federal Trade Commission.
Proceeding under the Federal Trade Commission against the Guarantee Veterinary Company and George L. Owens. On petition by the company to revise an order of the Commission commanding it to desist from certain advertising. Order affirmed.
Will H. Krause, of Washington, D. C., for petitioners.
W. H. Fuller and I. E. Lambert, both of Washington, D. C., for respondent.
Before Rogers and Manton, Circuit Judges, and Augustus N. Hand, District Judge.
ROGERS, Circuit Judge:
This proceeding brings before us for review an order entered by the Federal Trade Commission directing the petitioners to desist from certain unfair methods of competition.
The Guarantee Veterinary Company is an association in the form of a common-law trust, and has its principal office and place of business in the city of Chicago in the State of Illinois. George L. Owens is the controlling and managing trustee. They are engaged in the sale of salt in the form of blocks for the use of live stock under the brand name “ Sal-Tonik” in the several States of the United States.
It appears that the Federal Trade Commission, proceeding under the act of September 26, 1914, commonly known as the Federal Trade Commission act (38 Stat. 717, c. 311), on September 2, 1919, issued a complaint against the petitioners in which it averred that they are engaged in interstate commerce in the sale of salt in the
form of blocks for the use of live stock under the brand of “ Sal-Tonik” in direct competition with other persons, copartnerships, and corporations also engaged in the sale of block salt for the use of live stock; that in connection with the sale of said “Sal-Tonik blocks they had been publishing and distributing advertising matter containing false and misleading statements concerning the said®“ Sal-Tonik” blocks. And the complaint alleged that among the false and misleading statements which the petitioners put forth in their advertising matter were representations and implications to the effect that the 6 Sal-Tonik” blocks contained certain medicinal ingredients; that they operated a number of factories in various parts of the United States, the total product of one of which was purchased and thereby indorsed by the Quartermaster's Department of the United States Army, and that the petitioners owned and operated certain large and expensive machinery necessary for the manufacture of the said “Sal-Tonik” blocks; and that all of this was designed to and did mislead the purchasing public into the belief that the petitioners' product possessed certain unique and beneficial characteristics and tended to secure for the product an undue preference over the product of competitors.
The complaint was duly served upon the petitioners, who filed their answer thereto on October 11, 1919.
Notice of the taking of testimony was given, and testimony was taken on September 9, 1920, and on December 15, 1920. On June 8, 1921, the Commission filed its findings as to facts and conclusion and on the same day entered the order to cease and desist.
On July 18, 1921, the petitioners filed their exceptions and on December 13, 1921, the Commission filed modified findings and a modified order.
The Commission has made the following findings of fact:
“ One. That the respondent, the Guarantee Veterinary Company, is an association in the form of a trust, having its principal office and place of business in the city of Chicago, State of Illinois, of which the respondent, George L. Owens, is the controlling and managing trustee, and that the respondents are now and for more than two years last past have been engaged in the sale of salt in the form of blocks, for the use of live stock, under the brand name “Sal-Tonik,' in and among the several States of the United States and the District of Columbia, in direct competition with other persons, copartnerships, and corporations also engaged in the sale of block salt for the use of live stock.
“ Two. That during the years 1918 and 1919 the respondents printed and caused to be circulated, in and throughout the various States of the United States, circulars in which it stated that its product, Sal-Tonik, contained the following ingredients: Sulphate of iron (redried), carbonized peat, charcoal, tobacco, quassia, sulphur, gentian, pure salt, chloride of magnesia, Epsom salts, Glauber's salts, bicarbonate of soda, oxide of iron, mineralized humoides, American wormseed, Levant wormseed, capsicum (red pepper); when in truth and in fact respondent's product, Sal-Tonik, did not contain all of said ingredients, and did not contain carbonized peat, charcoal, tobacco, quassia, sulphur, gentian, mineralized humoides, American wormseed, Levant wormseed, or capsicum (red pepper).
“ Three. That prior to the organization of the respondent, Guarantee Veterinary Company, in the year 1918, the respondent, George L. Owens, caused to be organized the Guarantee Swine Veterinary Company, a corporation organized under the laws of South Dakota, and the Guarantee Serum Company, a corporation organized under the laws of Iowa, in both of which corporations the respondent, George L. Owens, was the largest stockholder, and of which he was the controlling manager and president.
"Four. That said Guarantee Serum Company was owned and operated by said Guarantee Swine Veterinary Company; that later the word 'Swine' was dropped from the corporate name and the owning and operating company became the Guarantee Veterinary Company, Incorporated; that said Guarantee Veterinary Company, Incorporated, succeeded to all property, assets, and rights of both the said Guarantee Serum Company and the said Guarantee Swine Veterinary Company, and that later the assets and rights of the said Guarantee Veterinary Company, Incorporated, were assigned or surrendered to the Guarantee Veterinary Company, a common-law trust; that George L. Owens was the principal stockholder and president of the Guarantee Serum Company, the Guarantee Swine Veterinary Company, and the Guarantee Veterinary Company, Incorporated, and is the controlling and managing trustee of the Guarantee Veterinary Company, a common-law trust; and that all of these corporations and the trust and George L. Owens, first as president and later as trustee, caused to be manufactured and sold, and are now causing to be manufactured and sold, in interstate commerce the article known and designated Sal-Tonik.
“Five. That during all the time of the existence of the said Guarantee Serum Company, the said Guarantee Swine Veterinary Company, the said Guarantee Veterinary Company, Incorporated, the said Guarantee Veterinary Company, a common-law trust, George L. Owens,