set aside, or modify orders of the Commission is exclusive. In all of the proceedings, whether before the Commission or the court, the amplest provision is made for notice. to and full hearing of all parties interested, and for this court, for any of the reasons urged, to anticipate by injunction the action of the Commission and the judgment of the court charged under the law with the review thereof, would be clearly an usurpation of authority.

Counsel urgently insist that injunctive relief be afforded to prevent the seizure and inspection of the complainant's private papers, books, and records showing their business transactions, relating to the subject under investigation. While undoubtedly the relief sought may sometimes be afforded by injunction, still it does not seem to the court the proper remedy here, where the enforcement of the order sought to be enjoined is exclusively within the jurisdiction of the circuit court of appeals. Wilson v. Lambert, 168 U. S. 611, 618. From this court's action, as well in refusing as granting an injunction (Judicial Code, sec. 129), an appeal lies direct to that court, and it, or a judge thereof, would doubtless stay proceedings sought to be enjoined, where the appeal was from an order refusing an injunction, if in the judgment of the court such action should be necessary to meet the ends of justice.

For the reasons stated, and the court being further of opinion that the Commission acted entirely within its rights, of and concerning a matter liable to injuriously affect commerce, doth decline to grant the injunction prayed for.

NATIONAL HARNESS MFRS. ASSN. v. FEDERAL TRADE COMMISSION ET AL.3

(Circuit Court of Appeals, Sixth Circuit, December 7,

1920.) No. 3289.

1. COMMERCE KEY No. 3-CONGRESS CAN PREVENT UNFAIR COMPETITION IN INTERSTATE COMMERCE.

Congress has the power to declare, as it did by the Federal Trade Commission Act (Comp. St., pars. 8836a-8836k), that unfair methods of competition in interstate commerce are unlawful, and to require that their practice cease.

2. CONSTITUTIONAL LAW No. 80 (2)-TRADE-MARKS AND TRADE NAMES KEY NO. 801, NEW, VOL. 8A KEY NO. SERIES-FEDERAL TRADE COMMISSION NOT GIVEN JUDICIAL POWERS OR INVALID EXECUTIVE POWERS.

The authority given the Federal Trade Commission to determine what methods of competition a given trader employs, and, pro

3 Reviewing order of the Commission in Federal Trade Commission v. The Wholesale Saddlery Assn. et al., 1 F. T C. 335.

visionally, to determine whether such methods are unfair, subject to right of review by the courts, does not confer on the Commission judicial powers or invalid executive or administrative authority, contrary to Constitution, Articles 1, 2, 3, in view of the fact that the Commission's determination is not only subject to review, but is enforceable only by the courts.

3. CONSTITUTIONAL LAW KEY No. 42-PARTY CAN NOT COMPLAIN OF INVALID SECTIONS NOT INVOKED AGAINST HIM.

A petitioner, seeking review of an order by the Federal Trade Commission requiring petitioner to desist from certain practices, can not raise the question that the inquisitorial features of Federal Trade Commission Act, paragraphs 9, 10 (Comp. St., pars. 88361, 8836j), violate constitutional amendment 4, which protects against unreasonable searches and seizures, where the Commission did not attempt to exercise against petitioner the powers given by those sections.

4. TRADE-MARKS AND TRADE NAMES KEY No. 80, New, Vol. 8a, KEY NO. SERIES-TRADE COMMISSION HAS JURISDICTION OVER INCORPORATED ASSOCIATION OF MANUFACTURERS; "CORPORATION."

Under Federal Trade Commission Act, paragraph 5 (Comp. St., par. 8836e), giving the Commission jurisdiction when it has reason to believe that any person, partnership, or corporation is guilty of unfair competition, the Commission has jurisdiction over methods of an association of manufacturers in a certain line, though the association is unincorporated, in view of section 4 of the act (sec. 8836d), defining a corporation as any company or association, incorporated or unincorporated, organized to carry on business for its own profit or that of its members.

(ED. NOTE. For other definitions, see Words and Phrases, First and Second Series, Corporation.)

5. ASSOCIATIONS KEY NO. 20 (4)-BROUGHT INTO COURT BY SERVICE ON OFFICERS AND ACCESSIBLE MEMBERS.

A voluntary association having many members may be brought into court by service on its officers and on such of its members as are known and can be conveniently reached, sufficient being served to represent all the diverse interests.

6. TRADE-MARKS AND TRADE-NAMES KEY No. 801, New, VOL. 8A KEY-NO. SERIES-ASSOCIATION WHOSE MEMBERS ARE ENGAGED IN INTERSTATE COMMERCE IS SUBJECT TO JURISDICTION OF TRADE COMMISSION.

An unincorporated association of manufacturers in a certain line of business is subject to the jurisdiction of the Federal Trade Commission, if its members are engaged in interstate commerce, and interstate commerce is directly affected by the alleged unfair methods of competition.

7. TRADE-MARKS AND TRADE-NAMES KEY No. 80, NEW, VOL. 8A KEY-NO. SERIES-METHODS OF COMPETITION WHICH SUBSTANTIALLY AFFECT CONDITIONS IN HARNESS TRADE HAVE PUBLIC INTEREST.

The activities of an association of harness manufacturers, which substantially affect conditions in the harness and saddlery trade, are such that proceedings by the Federal Trade Commission would be to the interest of the public, so that the Commission has jurisdiction thereof, under section 5 of the Federal Trade Commission Act (Comp. St., par. 8836e).

8. TRADE-MARKS AND TRADE-NAMES KEY NO. 68-TRADE COMMISSION CAN PREVENT COERCION TO SEPARATE JOBBING AND RETAIL BUSINESS.

Attempts by an association of harness manufacturers and by a saddle maker's association to coerce the separation of the wholesale and retail harness dealers, by refusing to recognize those who engage both in the wholesale and retail trade as authorized jobbers, and to prevent the sale by manufacturers of accessories to such persons, are unlawful, and may be restricted by order of the Federal Trade Commission.

9. TRADE-MARKS AND TRADE-NAMES KEY No. 80, NEW, VOL. 8A KEY-NO. SERIES-TRADE COMMISSION ACT IS PREVENTIVE. The Federal Trade Commission Act (Comp. St., pars. 8836a8836k) is intended to afford a preventive remedy, not a compensatory one, so that the suggestion that no damage has been shown by the practices complained of is no defense to proceedings before the Federal Trade Commission.

(The syllabus is taken from 268 Fed. 705).

Petition to Set Aside Order of the Federal Trade Commission.

Original petition by the National Harness Manufac turers' Association against the Federal Trade Commission and others, to review an order of the Commission requiring petitioner and its corespondents to cease certain. alleged unfair methods of competition in interstate commerce. Order of Commission affirmed.

See, also, 261 Fed. 170.

Leonard Garver, jr., of Cincinnati, Ohio (Lorbach & Garver, of Cincinnati, Ohio, on the brief), for petitioner. Marvin Farrington, of Washington, D. C. (Claude R. Porter and Marvin Farrington, both of Washington, D. C., and Walter B. Wooden, of Chicago, Ill., on the brief), for respondents.

Before Knappen, Denison, and Donahue, circuit judges.

KNAPPEN, Circuit Judge:

Original petition under section 5 of the Federal Trade Commission Act (Sept. 26, 1914, C. 311; U. S. Comp. Stat. 1916, secs. 8836a, et seq.) to review an order of the Com

mission requiring petitioner and its corespondents to cease and desist from certain alleged unfair methods of competition in interstate commerce.

The proceeding was brought against both petitioner, The National Harness Manufacturers' Association of the United States of America (hereinafter called the Harness Manufacturers' Association or the petitioner), its officers and the members of its executive committee by name, as well as about 20 local associations composing the membership of the Harness Manufacturers' Association, and the Wholesale Saddlery Association of the United States (hereinafter called the Saddlery Association), its officers and the members of its executive committee by name, and a large number of named persons, firms, or corporations composing the membership of that association. The order to cease and desist included both associations. The Saddlery Association asks no review of the Commission's order.

The petitioner here assails that order on the grounds, first, that the Federal Trade Commission Act is unconstitutional; second, that the Commission had no jurisdiction in this particular case; and, third, that the order to. cease and desist is not supported by the evidence.

1. The constitutionality of the act is assailed, first, as assuming

to combine legislative, executive, and judicial powers and functions and to confer them upon one and the same administrative body, contrary to Articles I, II, and III of the Constitution, and because it assumes to authorize the Commission, which is ostensibly an administrative body, to deprive persons of their property without due process of law, contrary to the fifth amendment of the Constitution.

This proposition is to our minds without merit. Congress plainly has power to declare unfair methods of competition unlawful and to require that their practice cease. This Congress has done by the act in question. It with equal clearness has the power to authorize an administrative commission to determine (a) the question what methods of competition the given trader employs, and (b) provisionally, the mixed question of law and fact whether such methods are unfair. These questions being determined against the trader, the administrative requirement to cease and desist, prescribed by Congress, follows, as matter of course, but only provisionally. The Commission's determination of these questions is not final. Not only does the statute give a right of review thereon upon application by an aggrieved trader, to a Circuit Court of Appeals of the United States, but the Commission's order is not enforceable by the Commission but only by order of court. "It is for the courts, not the Commission, ultimately to determine as matter of law" what the words "unfair methods of competition" include. Federal Trade Commission v. Gratz, 253 U. S. 421, 40 Sup. Ct. Rep. 572, 575.

Throughout the proceedings, not only before the Commission but before the court, the trader is given the right and opportunity to be heard. The act delegates to the Commission no judicial powers, nor does it, in our opinion, confer invalid executive or administrative authority. Buttfield v. Stranahan, 192 U. S. 470; Union Bridge Co. v. United States, 204 U. S. 364; Pennsylvania Railroad v. International Coal Co., 230 U. S. 184; Coopersville Co. v. Lemon-C. C. A. 6-163 Fed. 145, 147, et seq.; National Coal Co. v. C. & N. W. Ry. Co.-C. C. A. 7-211 Fed. 65. The criticism that the statute makes the Commission both judge and prosecutor is too unsubstantial to justify discussion. The constitutionality of the act, against objections similar to those presented here, has recently been sustained by the Circuit Court of Appeals of the seventh circuit in a considered and persuasive opinion. Sears, Roebuck & Co. v. Federal Trade Commission, 258 Fed. 307. None of the petitioner's citations contain, in our opinion, anything necessarily opposed thereto. Upon this record, we have no occasion to consider the construction or effect of the provision of the act which makes conclusive, if supported by testimony, the Commission's findings as to facts as distinguished from conclusions of law, or of mixed fact and law. In saying so, however, we must not be understood to intimate that the provision referred to is invalid.4

The act is also assailed as violating the fourth amendment to the Federal Constitution, which protects against "unreasonable searches and seizures," which petitioner asserts are provided for by the so-called inquisitorial feature of section 9, in the declaration that "for the purposes of this act the Commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any corporation being investigated or proceeded against"; a provision whose enforcement is provided for by section 10, which subjects any person to fine or imprisonment, or both, "who shall willfully refuse to submit to the Commission or to any of its authorized agents, for the purpose of inspection and taking copies, any documentary evidence of such corporation in his possession or within his control."

Of this criticism it is enough to say that the provisions in question of sections 9 and 10 are not before this court. The Commission has not attempted to exercise them. Section 9 otherwise contains complete provision for enforcing, by subpoena, the attendance and testimony of witnesses and the production of all documentary evidence relating to any matter under investigation. Beyond this the Commission has not gone. That one attacking a

4 See the discussion in Buttfield v. Stranahan, supra, at pp. 494 et seq.; also in Union Bridge Co. v. United States, supra, at pp. 377-387; also in Coopersville Co. v. Lemon, supra, at pp. 147 et seq.