St. Regis Paper Company v. United States

PETITIONER:St. Regis Paper Company
RESPONDENT:United States
LOCATION:Herricks School District

DOCKET NO.: 47
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 368 US 208 (1961)
ARGUED: Nov 09, 1961
DECIDED: Dec 11, 1961

Facts of the case

Question

Audio Transcription for Oral Argument – November 09, 1961 in St. Regis Paper Company v. United States

Earl Warren:

Number 47, St.Regis Paper Company, Petitioner, versus United States.

Mr. Lamb.

Horace R. Lamb:

If Your Honors please.

This is a review which involves additional questions of administrative agency acts, notably the Federal Trade Commission.

It involves questions that arise under the Administrative Procedure Act, some of which, I think, have never previously been determined by the Court, and also, questions under the Federal Trade Commission Act which that the District Court below indicated were noble questions.

The petition for certiorari raised or requested review on six separate questions in the Court’s order, however, granting review, which is in the record at page 237.

Certiorari was allowed on March 27, 1961, limited to four questions designated by the same numbers that we had used in our petition, namely, numbers 2, 3, 5 and 6.

Now, I have to point out, Your Honor, that in the brief for the United States, served only a few days ago, under which we have replied by a brief filed today, there has been injected improperly, we believe, an additional question.

You will recall that the question on which you will allow review, numbered 5 on page 237 reads as follows, “Our petitioners retained and filed copies of — of confidential reports to the Bureau of Census for the Census of Manufacture subject to the investigative process of the Commission.

Now, on that very question, which was presented to this Court in Federal Trade Commission against Dilger, decision from the Seventh Circuit, this Court denied certiorari.

And at that time, on the petition for certiorari, the then Solicitor General did not sign the petition but he added at the foot of the petition, his statement of the difference of views in the Government Departments that the Federal Trade Commission and the Antitrust Division of the Department of Justice felt there should be no confidential of treatment accorded these retained copies of census reports, whereas the Department of Commerce, Bureau of Census, Bureau of the Budget are quite the contrary that it would destroy the whole policy and the purpose of reporting census —

Earl Warren:

We’ll recess now —

Horace R. Lamb:

— opinion.

Earl Warren:

Mr. — we’ll recess now.

Horace R. Lamb:

Before the lunch and adjournment, I had referred to the questions on which certiorari was allowed and referred to the confidential treatment of the census, and I was mentioning the new issue, new question which, for the first time, had been raised here in the reply brief of the Solicitor General, namely, that we had waived our right to the confidential treatment of — of the census reports.

Now, on the main question, I read from the brief of the Solicitor General that he is in accord with our position, and I understand his position to be the same as his predecessor in regard to the petition for certiorari in the Dilger case to which I had referred briefly before the adjournment.

But on this waiver question, which a large part of the Government’s brief attempts to discuss, I think, I must, at the outset, state that our position is that that’s an improper additional question to raise here.

First, we say that it’s in violation of Rule 40, subparagraph (1), small (d) (2) of the rules of this Court, which we have quoted in our reply brief.

And that — under that rule, we believe this Court will disregard and will not consider this additional question of waiver.

And we further point out that under all of the appellate decisions, it is universally held that it’s unfair to an adversary to raise in the court of last resort for the first time, a issue never previously raised in any of these proceedings.

And I think the decisions support our position on that point.

But even in fact, we say that the Solicitor General has overlooked the fact that during the entire course of this investigation by the Federal Trade Commission, it has consistently been our position that census reports should be accorded confidential treatment.

It’s his position that because in the informal proceedings before a representative of the staff of the Commission, we did allow inspection of certain census reports of some companies.

And because in the further proceedings to which I’ll refer on a subpoena duces tecum issued by the — the Commission, we did produce certain copies of the reports, filed reports and in fact, we had obtained photocopies because we couldn’t locate some of the filed copies of the reports of the Census of Manufacture.

And we refer to the positions expressly stated on this point, long before answer, the disposition of the Solicitor General but only in our answer did we raise it for the first time.

But as I point out in the reply brief, we raised it not only in the answer but prior to that, in a letter written as long ago as August 18th, 1959 to the Commission’s Secretary, which is quoted in part at page 6 of the reply brief of the petitioner where I made the point that among a number of items in which information was requested by the Commission, they were of a confidential nature and in our view, cannot properly — the Commission cannot properly require that such information be furnished.

And I said this, “We refer particularly to request for copies of reports for the Census of Manufacture which have been held confidential,” citing cases.

Was that before that letter, Mr. Lamb?

Was that before you furnished any of these reports that are now relied on as your waiver?

Horace R. Lamb:

That was not before we had given an opportunity to inspect certain reports, and I think it was after certain reports had been furnished under the subpoena duces tecum which is — as I recall, it was in the year 1958.

Horace R. Lamb:

I will review in a moment, Your Honor, the chronology of these investigations.

But I merely want to deal with this question, if I may, at the outset but then, I’m not going to argue it much further, unless the Court feels that we should because we think both in law and in fact, the Solicitor is in error confessing that point and that it should not be considered now at this late date.

I think it’s the general rule that where there is an effective waiver, it’s usually, of course, in an adversary proceeding and there must be one in intent on the part of the person waiving the privilege that he intends to waive it or there must be an advantage to be gained by the waiver.

Now, neither of those tests, you say, applicable here.

I think it would — I — I should say one further thing and I think I, in part, said it before luncheon, but on question number 5, I don’t think that we need to argue that at great length because question number 5, I understand the Commission agrees with our position and he has stated at page 10 of his brief, the Solicitor General is of view that if the Court reaches the question, which, of course, the — I assume the Court will reach because it — it’s one of the questions that said, “It would review number 5.”

The statutory privilege should — should extend to the retained copies of reports to the Census of Manufacture but not to the underlying data in the company’s books and records upon which the reports are based.

(Inaudible)

Horace R. Lamb:

Yes, sir.

The brief for the United States, sir, page 10 at the bottom of the last paragraph.

The paragraph starting, “Instead of burdening the Court with briefs,” the attempt to give set forth the competing arguments.

He goes to the length of — of setting forth a competing arguments but makes it quite clear, and I hope I’m accurate about this, that this Solicitor General has his predecessor agrees that they should be accorded confidential treatment.

Now, I think it would be interesting to review briefly how these questions come before the Court.

This proceeding has had a rather long history.

My client, as early as 1951, exchanged it shares of its stock for shares, all of the outstanding shares, I may say, of a number of small converting companies in the manufacture of converted products such as boxes, various kinds of containers and other materials.

Charles E. Whittaker:

Paper products?

Horace R. Lamb:

All paper products, Your Honor, all paper products.

My client is a — what’s called an integrated paper manufacturer, that is from the timber, fibres right straight through to various grades of paper and is a large producer of craft paper and has probably one of the largest craft paper mills, I believe, in the world at Jacksonville, Florida, erected in the early 1950s.

Charles E. Whittaker:

And it also makes board?

Horace R. Lamb:

It makes board, a line of board there, Your Honor.

As a matter of fact, if I may amplify on that a moment, the announcement that the St. Regis Paper Company intended to go into the manufacture of linerboard in a large way at this large plant announced in the early 1950s.

Following the scarcity of that commodity, the end of the Korean War, was, we believe, the direct stimulus for the inquiries that came initiated by, I may say, these small mostly family hold — held corporations to join St. Regis by an exchange of shares and thereby secure their converting operations as permanent supply of linerboard.

Well, that mill came into production in — it was announced in the late — in early 1950s.

It’s about 1955, it got into production.

These acquisitions, which the Commission inquires about, started with a letter from the Commission that was issued under date of September 1956 from the first inquiry from the Commission appears in the record at page 88.

I may say, Your Honor, I’m going to review here a number of the exhibits in the District Court proceedings.

I could say that — perhaps, I should say here that the history of the proceedings starting with this letter go through long periods of submission of great many documents, voluntarily in accordance with the Commission’s established policy and proceeds a year later by the issuance on December 13th, 1957 or prior — prior to that date as a matter of fact, in September of 1957 of a subpoena duces tecum which appears in the record specifications attached to it.

It starts on page 109 and it’s dated September 16, 1957, addressed to the secretary of the petitioner and to which there are annexed specifications of the various documents that are to be produced.

To return to the letter of September 7th of record 88 and 89, I direct the Court’s attention that on page 89, the request that was made to our client read as follows, “It is therefore requested that you furnish this office with full and complete answers to each of the questions set out below and with copies of specified documentary material.”

And then, there follows a good many questions to be answered and documents to be produced.

Charles E. Whittaker:

On page 96, is that right?

Horace R. Lamb:

Yes, sir, right straight through at page 96.

And I think, Your Honor, perhaps even extending further with the attachments to that exhibit which give certain forms that are to be completed.

You’ll note on 97, there are forms that they require.

And on page 100, they identify a great deal of the various kinds of products by reference to, in the right hand column, census product code.

And in below that column, you will find a whole series of — rather a long numbers which are the code numbers assigned by the Department of Commerce to these various commodities.

The proceedings in the Federal Trade Commission on its subpoena were concluded by a statement made by the hearing attorney and Mr. Sideman which appears in our answer at page 64.

And it says, “Mr. Sideman” this is under dated December 13, 1957, and I quote, “It’s now appearing that the exception of census reports which will when received be furnish by mail that the witness has fully responded to all specifications of the subpoena to the extent that the papers, documents and records requested were in his control, the secretary of St. Regis Paper Company, this hearing is terminated.”

Charles E. Whittaker:

Page — page 64?

Horace R. Lamb:

64, sir.

Charles E. Whittaker:

64.

Horace R. Lamb:

I beg your pardon?

Charles E. Whittaker:

Of your brief?

Horace R. Lamb:

No, that’s 64 of the record.

Charles E. Whittaker:

64?

Horace R. Lamb:

64 of the 10 covered transcript of record.

That’s it, sir.

At page 64, subparagraph (d) in one of the affirmative defenses of our answer, there is this statement quoted by Mr. Sideman.

And it was following that end of the proceeding in December 1957 that in the following year of June, the further letter of June 30, 1958, which is mentioned just below the — what I’ve quoted, was received from Mr. Stroud, an attorney in the Federal Trade Commission’s Office in New York.

Now, it would take quite a long time to go through this entire record, and I’ll endeavor to summarize it, but I think that it can be demonstrated that my client has furnished and did furnish in response to this request a very large volume of documents.

As a matter of fact, before the Hearing Examiner Sideman, I think there were 213 separately numbered exhibits, and some of those exhibits included quite a number of documents on a particular subject.

What following the letter on which raised questions that we tried our level best, I think it’s fair to say to resolve by pointing out that in response to the original letter of 1956 and in the subpoena duces tecum proceedings, the Commission already had received and had in its file the answers to a great many of the questions that it continued to ask of, that they answer it.

I think that we have any serious difficulty with the Commission.

It dealt larger with a request that the Commission made in its letter asking that we give the names of the 10 largest customers in various product lines.

And that raised very great difficulties.

It was our position that under the rules of the Commission, names of customers are confidential.

It’s also an exceedingly difficult matter to arrive for any particular time and the determination of who is your customer that maybe included in such a group.

And we proposed two things.

First, let us not give you the actual names, let us give you designation by symbols, and we will give you the figures from our books.

If you wish to verify from our books, you may come and do so.

But we were reluctant to give them to the Commission unless we could have assurance from the Commission that they would not make further verification and the belief that a verification among customers would be prejudicial and we’re really in the nature of trade secrets and trade information.

Horace R. Lamb:

We come finally to the fact that apart from the letters and the subpoena proceedings, the Commission itself began to take a formal action, which it did in its resolution that was adopted in — it’s next to the answer of January 1959.

That resolution, Your Honors, appears at page 7 of the transcript as Exhibit A to the complaint.

And that’s the resolution directing an investigation of the acquisition by St. Regis of the stock or assets or both the stock and assets of other corporations, reciting it has reasonable grounds to believe that those acquisitions may be in violation of Section 7 of the Clayton Act.

And it’s in the public interest to investigate.

And they asserted, we believe, for the first time that it’s ever been attempted by the Commission that it have authority under Section 6 (a) and (b) of the Federal Trade Commission Act to investigate, to determine whether one of the antitrust laws has been violated.

Now, I appreciate that on that question, the District Court held against us and certiorari was not granted, so we accept here, as we must, that it settled and there’s no use arguing on the power of the Commission.

We did undertake to respond to the nine different letters which are exhibits beginning B on page 9.

And I point out that Exhibit B is addressed to the petitioner and that Exhibit, I believe it’s J are the two letters that are addressed to the petitioner.

All of the other letters are addressed to others than the petitioner.

Exhibit J appears at page 44.

You’ll note they are entitled orders requiring filing of special report.

But as you read the text, they are actually, in our view, requests in large part for answers and writing the specific questions.

But they are very much like subpoenas, and I think there were so treated by the District Court.

Now, a great deal of the information requested was furnished.

There are some of it that was not.

Without going into the details, we show in a summary form in the graphs, which the Government itself prepared, annex to our brief at — as Appendix B, a number of figures.

And I direct your attention particularly to Appendix B, Figure 3 which refers to orders numbered 1 and 7.

This is the annex to the petitioner’s brief, where the circular graph shows the results in the District Court.

I come to the opinion of the District Court just a moment.

But in short, the District Court found that according to their own estimate, 14% of the total number of questions were unenforceable on the ground that they were vague, indefinite and incapable of being answered.

And as to 49%, while holding them that they were enforceable but there was no necessity for enforcing because we had furnished, in response to the Court’s own request in answer to the Government’s comments of defaults, the place is square, we had previously furnished a great deal of the requested information, and that applies to that 49%.

So that part of the pie which totals 63% of these requests were not enforced by the District Court.

And as to the other 37%, 3% of them related to the reports to the Census of Manufactures, leaving only 34% or approximately one-third as to which the District Court’s order required enforcement.

Now, the District Court’s order, and I say first, I think I pointed out that this case was tried on stipulated facts.

And the stipulation appears in this record at page 69, stipulation of facts and pre-trial order.

And there is the resumé and the chronological development to which I previously referred regarding the receipt of the September 19, 1956 letter.

I might call that I made on September 7th on the Bureau of Investigation of the Commission in order to see if we could not present on an informal basis, all of the data that they wanted and at which time, I did exhibit documents, the most important of which were copies of registrations statement.

All of these of exchanges and shares, of course, were subject to the requirement of a formal registration statement and prospectus which contained a whole mind of information regarding the lines of commerce on which our client and the propose to collect corporation were engaged.

There is reference also on page 72, paragraph (10) to the inspection of certain reports of the Census of Manufactures.

Now, you can see that it goes on into hundreds and hundreds of documents that are requested.And —

Charles E. Whittaker:

And where does that placed?

Horace R. Lamb:

The — the last preference I referred to was on page 72 —

Charles E. Whittaker:

All right.

Horace R. Lamb:

— and the stipulation continues for a great many pages and includes, Your Honor, particularly in the exhibits that are in the form of letters exchanged with the Commission which begin at the Exhibit 31 on page 124.

A series of exchange of correspondents which endeavor to point out the burden of the additional request made to our client extend to which we had furnished documents and also related to a motion to the administrative agency to vacate, to set aside its orders requiring these reports or to modify them so that they would be less onerous and could be responded to.

That went on for sometime as you will see from the extent of the letters, extending clear through a number of exhibits that go on to — right down to Exhibit 113 on page 200.

I call your attention, Your Honor, to that letter particularly.

That letter followed after the Commission had issued its notice of alleged default on the part of the respondent — the petitioner to answer questions and claiming forfeitures at the rate of $200 a day.

And I had written the Commission under day of August 31, 1959 requesting a conference to discuss this whole subject and raising with the Commission a question whether or not, if we couldn’t resolve it by conference, the Commission would submit itself to the jurisdiction of the District Court for the Southern District of New York in an action for declaratory judgment or similarly to be instituted by this petitioner.

Where is that letter placed?

Horace R. Lamb:

That letter, unfortunately, is not in terms set out in the exhibits but it is a letter of August 31st, Your Honor, referred to in the first paragraph on page 200.

And the significant text of that letter, I have that 113, the letter that I wrote to Commission did raise the question that I have just described.

But in this preparation of this record, we didn’t include every single document.

Actually, my letter was Exhibit 108.

Is that part of the unprinted record before (Inaudible)

Horace R. Lamb:

It’s a part of the unprinted letter here, Your Honor, but it is a part of the record in the District Court.

Not here though.

Horace R. Lamb:

But you get — a sufficient, I think, of what I’m saying in the third paragraph wherein — it’s at page — page 200 of the record, Exhibit 113, Your Honor, I thought I made that clear, where the answer by the general counsel of the Federal Trade Commission said this, and I quote, “In the event that such suit should be filed, you are advised that we would be compelled to note the probable lack of jurisdiction in the Court upon the authority of Federal Trade Commission that grants clear furnished code,” 274 U.S. 160 decided in 1927.

And another, the Federal Trade Commission against Maynard, a Circuit Court, in 1927, decision.

And your request for conference has been noted and expressed the doubt whether it could serve any useful purpose but proposed a certain date September 11.

And as the stipulation further shows, I was not able to make that date but ask if we do it within the next 10 days.

And during that next 10 days, the complaint in this action was served in the District Court.

You — you never brought the suit.

Horace R. Lamb:

We never brought the suit.

They speak abruptly.

They beat us to it.

We were contemplating a suit.

But on the 15th of September, it appears from the complaint, page 1 of the record, the United States commenced action in the United States District Court.

And I’d like now to turn to that complaint for a moment.

Note that the complaint is in two counts.

Horace R. Lamb:

Count 1 is an action by the Government for relief in the nature of mandamus to compel the petitioner here to make answer to the various — the two commission orders, so-called, by letters dated January 6, 1959 made — and — and the six orders also issued on January 9th, 1959 to petitioners and certain other companies.

And it anne1xes to the complaint, not only the resolution to which I’ve earlier referred but the various so-called orders.

And the relief asked for as to count 1, appears on page 6 wherefore plaintiff demands one that the Court issue a mandatory injunction demanding defendant, its agent, attorneys and assigns to file with the Federal Trade Commission all the special reports required by the Commission’s several orders dated January 9, 1959 and June 8, 1959.

And on the second count, demanding forfeitures in the amount of $100 a day for two alleged defaults, our answer, it begins on page 7 — I beg your pardon, those are the annexes to the complaint.

Our answer is to be found on page 58 where we answered the affirmance of count 1 and of count 2 and set up on page 61 our affirmative defenses, several in number.

After the case was tried on stipulated facts, to which I’ve referred, and the opinion of the District Court is printed in the record at page 204.

The case was assigned by the Chief Judge to himself, Justice — Chief Judge Sylvester Ryan.

And he tried the case over several days.

He examines in detail all of the various documents and records, which I’ve rather heard or referred to, refers to the orders.

And you’ll note at the top of page 206, the Court says, “This is the first time a Section 6 (b) order had ever been used by the Commission prior to the filing of a complaint.”

I think that’s the true statement but never previously, in an effort to investigate whether Section 7, the Clayton Act, had been violated as the Commission ever resorted to powers under Section 6 (b) of the Federal Trade Commission Act.

It’s not directly a material to our point, Your Honor, only that I do make the point that having asked for a mandatory injunction.

I’m pointing out that the Court reached the conclusion that based on the dicta of this Court in the Morton Salt case, he believed there was power and that the orders were validly issued, as he says at the bottom of page 207.

But then, it turns to the subject matter of the orders and he states that if the Commissioner were — on page 29, if the Commissioner is going to make use of this Section 6 (b), it must realize at the outset that the outmost care in comparing these orders is necessary.

The character of the process itself requires certain limits to be placed upon the kind of the orders to protect those to whom they are directed.

And it goes on and discusses statistical information that’s requested, and then stated its conclusions that when Section 6 (b) is read in conjunction with Section 9 of the Federal Trade Commission Act which is the provision of the Act giving the Commission right to issue subpoenas, it was designed as a means of convenience to businessmen on the Commission.

And he found that we were justified because he reviews the orders that he found that we should answer and those that should not answer and made his own order pursuant to Section 6 (c) of the Administrative Procedure Act.

Now, we say that having made a new order, and the judgment is at page 213, under the Administrative Procedure Act, the Court’s order completely superseded the Commission’s action.

There had been no default as — no default whatsoever in compliance with the Court’s order.

You will note that the Court’s order by arrangement between counsel was divided into different parts.

You read those paragraphs, there are certain sorts of documents that would be supplied in 30 days and certain parts in 60 days.

We promptly complied with all of the requirements of the 30-day clause in the judgment.

And to our surprise, on the 60th day, the Government served notice of appeal.

We immediately cross-appealed.

The Government appealed, may I point out, Your Honor, the only problem, the dismissal of count 2 which was the denial of the forfeiture.

The Government did not appeal from any of the determinations holding the Commission’s orders substantially defective.

We did appeal in our cross-appeal to raise the question of the power of the Commission.

And in the Court of Appeals, the opinion appears at 219.

The Court holds and agrees with the Court that it had the power to issue the orders but to our great surprise, it made a very unusual holding, and it held that — on page 232, that the investigative orders, obliged by the Act, may not satisfy the statutory definition of an order, since it may not be a final disposition.

However, the order amounts to a sanction because of the forfeiture.

Horace R. Lamb:

And then says the availability of this relief although — also mitigates the dilemma,” which our decision here imposed upon district judges.

And this is the significant thing, Your Honors.

This, to my mind, is the basic error of the — of the Court of Appeals.

It’s this, and I quote, “Although modification of an agency’s order under 6 (c) of the Administrative Procedure Act is the most efficient treatment of partially void order — of a partially void order, it carries with it the imposition of penalties for prior noncompliance.”

Now, we say, Your Honors, that that’s contrary to the provisions of Section 6 (c) of the Administrative Procedure Act which carries its own penalty for contumacious failure to comply with the Court’s order and it’s contrary to the clear intention of the Congress in the legislative history of Section 6 (c), which we have quoted at page 16 of our brief.

And I would briefly point out the extracts that we quote from the House Report.

It’s this.

“The Section 6 (c) expressly recognizes the rights — the right of parties subject to administrative subpoenas to contest their validity in the courts prior to subjection to any form of penalty for noncompliance and in the Senate Judiciary Committee.”

Charles E. Whittaker:

(Inaudible)

Horace R. Lamb:

Page 16, sir, of our brief, petitioner’s brief.

The Senate Committee said, “Section 6 — Section (c) is designed to recognize that a private party may contest the validity of an administrative subpoena issued against him prior to incurring penalties for disobedience since otherwise, parties may, in effect, be deprived of all opportunity to contest the search and seizure involved.”

The haphazard and often unfair methods or visions of administrative subpoenas were recognized in the final report of the Attorney General’s Committee, citing the pages.

Now, Your Honor, I would like to — our main point on the Forfeiture Clause is summed up in our objection to the finding of the Court of Appeals in disregard of that legislative history and of the precise provisions of Section (c) of the Act.

We think, therefore, that the Court of Appeals erred in reversing the District Court and that the District Court was correct and that there should be no liability for forfeiture.

I would like to reserve the remainder of my time to reply, if I may, Your Honor.

Earl Warren:

Mr. Cox.

Archibald Cox:

Mr. Chief Justice, may it please the Court.

This is a very important case involving the administration of the antitrust laws and specifically, the Federal Trade Commission Act.

The petitioner, the St. Regis Paper Company, is the second largest manufacture in the country of paper and paper products.

During the 1950s, St. Regis began acquiring a number of related companies, some apparently competitors and some vertical integrations.

The Federal Trade Commission was concerned as to whether this violated Section 7, the due amendment Section 7 of the Clayton Act.

And accordingly, it sought to acquire information about the petitioner and about its place in the industry.

After a long period of trying to get the information voluntarily, the Commission resorted to Section 6 of the Federal Trade Commission Act, which appears on page 72 of our brief.”

Section 6 provides that the Commission shall have power,” then I skipped down towards the very bottom of the page, “to require by general or special orders, corporations engaged in commerce,” skipping a little, “to file with the Commission in such form as the Commission may prescribe annual or special or both annual and special reports or answers in writing the specific questions furnishing the — to the Commission such information as it may require as the organization, business, conduct, practices and management in relation to other corporations”.

And then the final sentence says that the report shall be filed within such time as the Commission may prescribe.

The Commission’s orders directed to St. Regis came after a long period of trying to get this information otherwise.

And I may say that the District Judge pointed out that this was the first time the question had arisen in the Court because this was the first time in more than 400 cases that the Commission had not been able to get this information voluntarily and that those questions all related to perspective Section 7 investigations.

The orders to file the reports were served on St. Regis and its subsidiaries, some on June 8th, 1959 and some earlier in January 8th, 1959.

Charles E. Whittaker:

You say, Mr. Solicitor, that you filed the reports.

I take it by that you mean to comply with the request that it may be an argument about whether the reports or request for answer to question.

Archibald Cox:

There is — there is indeed.

And what I said reports, I was referring — I didn’t mean to beg the question, I was simply referring to the formal heading which the Commission put on.

I shall deal with that along with the other questions.

It might be helpful to summarize the essential facts firstly and in relation to the statute.

There was a motion to quash or to modify the order for the filing of the special reports.

That led to some delay but no report was filed, no information to speak of was filed after the order for the special report.

And therefore, in — in June 18 and in July 22nd, 1959, the Commission served the petitioner with the notice of default.

This is provided for, as I’ll show in a moment, in the statute.

The 30-day period following the notice of default went by and the Commission then commenced this action which is brought under Sections 9 and 10 of the Federal Trade Commission Act.

The relevant paragraph of Section 9 has to do with the enforcement of the order for the special report.

And you’ll see that on page 73 in our brief, Section 9 of the Federal Trade Commission Act next to the last paragraph, provides that on application of the Attorney General of the United States, the District Courts of the United States shall have jurisdiction to issue writs of mandamus commanding any person or corporation to comply with the provisions, these referred to sections of the Code.

The original says the provisions of this Act.

Under Section 10, relevant portion of which appears over on page 75, the Commission included a count seeking penalties.

At the bottom of the page, Section 10 provides, “If any corporation required by this Act to file any annual or special report shall fail to do so within the time fixed by the Commission and after notice of default,” and so forth, “if then fails to comply, the corporation shall forfeit to the United States, the sum of $100 for each and everyday of the continuance of such failure.”

Now, as the case comes here, it falls into two parts which correspond to the sections of Section 9 and Section 10 that I’ve just read.

One part relates to the question whether the Commission shall be ordered to comply — excuse me, the corporation shall be ordered to comply with certain portions of the special report.

And this relates, as the issue has now been known, solely to the question of certain retained copies of the census reports.

The other part of the case relates to our right to recover the penalties for failure to comply with the order for the special report.

Now, I would like to deal first with the question of the penalties and then to come second with the legal questions surrounding the retained copies of the census reports.

With respect to —

(Inaudible)

Archibald Cox:

On the question of penalties, there are three questions, which the petitioner presents, as I understand.

First, as Justice Whittaker suggested a moment ago, the petitioner says that this was not an order for a special report.

It was an order to answer questions and that there is no penalty for failure to answer questions.

Charles E. Whittaker:

Do you agree that that proposition of the law was a correct one that Section 10 does not — if penalties do not apply to a request for answers to special questions under 6 (b)?

Archibald Cox:

No, I — I think the answer is no.

Let me — if I might hold it just —

Charles E. Whittaker:

Yes, you may.

Archibald Cox:

— for a minute until I state the other issues —

Charles E. Whittaker:

Yes.

Archibald Cox:

— then I’m going to deal with it next.

Charles E. Whittaker:

All right.

Archibald Cox:

The second question that the petitioner presents in relation to the penalties is that he says that the statute, because it provides penalties of $100 a day, is unconstitutional.

And therefore, we’re not entitled to the penalty.

And the third question that he raises in relation to the penalties is that he says there were certain portions of the order which weren’t entitled to have answer, as the District Court held in its writ of mandamus conceive.

And therefore, he wasn’t obliged to file any part of the report.

And we —

Charles E. Whittaker:

Relying on the Bowman case that he’s under no obligation to call out the good and the bad which is upon you to make them good if you’re going to insist upon the penalties to default.

Archibald Cox:

That his argument and I hope, in the course of mine, to distinguish the Bowman case.

But those are the three questions, and I’d like to take them up, if I may, in the order in which I stated them.

To be a little more precise about his argument with respect to the question, it’s helpful, I think, to refer back to the exact language of Section 6 and then of Section 10.

Section 6 speaks of an order to file with the Commission in such form as the Commission may prescribe annual or special or both annual and special reports or answers in writing the specific questions furnishing such information as the Commission may require about certain things.

As I understand Mr. Lamb’s argument, it is that the words “special reports and answers in writing to specific questions” are mutually exclusive, that answers in writing to specific question cannot be comprehended within the term “special reports”.

And then he says, if you turn over to Section 10 dealing with penalties, that it prescribes a penalty only for a failure to file an annual or special report.

Now, we simply disagree with it.

We think that the words “annual” or “special report” or “answers in questions to writing” are not mutually exclusive.

And we think that the word “annual” or “special reports”, as used in Section 10, covers a failure to answer questions.

Charles E. Whittaker:

May I ask you, Mr. Solicitor?

Is there not a difference in latitude, however, in the answering as one over the other?

In the special report, you follow the form but you used your own substance, but in answering special questions, you answer the question or your in fault, isn’t that right?

Archibald Cox:

Well, I think that’s true.

It — this would depend, of course, on the specificity of the report.

For example, I take it that it is perfectly plain here that if the word “answers to specific questions” were not included that no one would suggest that this was not a report which the Commission had it ordered, merely, because he told them to answer certain things.

Many of the reports, I would guess, most of the reports we file in life do answer various kinds of specific questions.

The notion that because you can’t read loud of it, it’s not a report, it seems to me to be unsound and would defeat the very purpose of the statute.

Now, I — based on the position that I’ve just stated upon the internal evidence in the statute, the legislative history and with deference, Justice Whittaker, on what seems to me the policy and common sense of the matter.

Charles E. Whittaker:

(Inaudible)

Archibald Cox:

I think the words in Section 6 were not used with such precision, as I think I can show in a moment.

I —

(Inaudible)

Archibald Cox:

Yes, but at —

(Inaudible)

Archibald Cox:

Well, I was — I can’t answer because I don’t think the words in Section 6 were used with great precision.

And I think —

(Inaudible)

Archibald Cox:

I think they were — I think there was evidence that they were plainly used in the latter section with this — I — to covering everything in the form.

Now —

Could I —

Archibald Cox:

Well, let me produce —

(Voice Overlap) —

Archibald Cox:

— the evidence, Your Honor, before you —

[Laughs]

(Inaudible)[Laughter]

Just —

Archibald Cox:

I —

— could I put one question, just to make sure I understand your argument?

If the Commission had issued a document called special report, passed a special report under Section 6 (b), you started out saying, “You are hereby requested to furnish a special report answering the following questions,” and then, as to the hundred questions, that would be a special report (Voice Overlap) —

Archibald Cox:

And that is what it did.

Charles E. Whittaker:

Well, now —

Archibald Cox:

That’s exactly what it did.

Charles E. Whittaker:

Well, now, that may be your presumption but I find it (Inaudible)[Laughter]

Archibald Cox:

Well, let’s look — let —

Charles E. Whittaker:

Not when the statute says there are two statutes, they may have requested a special report, would you get up in your own substance or it may request you to answer specific questions?

Now, if it does that, it does that.

Archibald Cox:

Your Honor, let me call attention to the language of the various bills that were incorporated into the Federal Trade Commission Act and then I think that it will become apparent that the Congress was not focusing on annual or special report as if this was some exact thing, a word of art with the precise content.

The — both bills, I thought the House and Senate bills contained provisions relating to the furnishing of information.

The House bill, which is — the report is cited in our brief, contained provisions requiring every corporation of a certain size to submit annual reports, then the Commission might require annual reports from others, and it provided these corporations shall furnish to the Commission such information, statements and records of its organization, bondholders and stockholders and financial condition and also such information, statements and records of its relation to other corporation and its business and practices while engaged in commerce as the Commission shall require.

Now, you will note in stating that the information to be required, the word “report” wasn’t used at all.

It said, “It should furnish certain information relating to certain subject as the Commission shall require it.

Then the statute went on and to enable it — “That the better to carry out the purposes of this Act, the Commission may prescribe as near as may be a uniform system of annual report.”

Archibald Cox:

The said annual report shall contain all the required information.

Now, I think the word “report” was simply used, as this shows the way it runs along, to sum up any information that the Commission might require.

And certainly, in requiring information, you could require information in answer to specific question.

Then the last —

(Inaudible)

Archibald Cox:

I think not.

(Inaudible)

Archibald Cox:

I don’t think that it was in the relation dealing with the Bureau of — the earlier statutes dealing with the Bureau of Corporation.

And then it went on, the last sentence —

(Inaudible)

Archibald Cox:

Well, perhaps my — perhaps my recollection is at fault.

(Inaudible)

Archibald Cox:

I’m afraid I’m not sufficiently informed to make a categorical statement.

The point I was seeking, and I might not read the last sentence, “The Commission may also require such special reports as it may be inadvisable.”

Now, as I see it, in the passage I read, the really enacting part, laying the duty on the corporation set forth the kind of information the Commission might require but without referring to reports, then as a convenient shorthand, referred to annual and special report in the latter part and showing that those words, if I may say so, were not intended to be words of art, they were intended to incorporate in shorthand form what it preceded.

Now, this evidence is also very clear in the Senate bill.

In fact, it becomes even clearer in the Senate bill.

And this — the Senate bill in the subsequent history explains the reason, I may have seem somewhat uncertain or evasive in answer to Justice Frankfurter’s question about whether reports meant just the same thing in Section 6 and Section 10.

Charles E. Whittaker:

And by the same thought and the question would be whether or not specific question as used Section 6 means something different than reports as used in Section 10.

Archibald Cox:

That’s correct.

Yes.

Now, in the Senate bill which came after the House bill, the Senate amended the House bill.

The powers of the Commission were dealt within Section 3.

Section 3 gave the Commission power among other things to investigate from time to time and as often as the Commission may deem advisable, the organization business, financial condition, conduct and so forth, of the corporation as the same general recital of the kinds of information, again without using the word “report”.

Section 6 of that bill which became in almost the very same words, Section 10 which is the critical penalty section of this case said that, “If any corporation subject to this Act shall fail to file any annual or special reports as provided in subdivision (b) of Section 3.”

That’s the very one I read a moment ago.

And in subdivision (b) of Section 3, the word “report” is not used.

Now, it’s —

(Inaudible)

Archibald Cox:

No, that was the —

(Inaudible)

Archibald Cox:

Section 6 but that’s the penalty section.

That — that’s my point, Your Honor

Potter Stewart:

What did Section 3 say again about that?

Archibald Cox:

Section 3 didn’t speak of report.

Potter Stewart:

But what did it say?

Archibald Cox:

Section 3 said —

Charles E. Whittaker:

10 is the — 10 is the penalty section, that’s it.

Archibald Cox:

No, these are in the bill.

Charles E. Whittaker:

Oh, oh, I beg your pardon?

Archibald Cox:

The sections had been renumbered.

Charles E. Whittaker:

I thought you talked about statutes.

I think —

Archibald Cox:

6 is now Section 10 with no material change.

I — I don’t think I’m arguing what I said.

I think that’s a fact that there’s no —

(Inaudible)

Archibald Cox:

Yet, Section 6 which became Section 10 refers to this 3 (b) speaking of reports and imposes the penalty for failure to file a report.

Potter Stewart:

What did 3 (b) —

Archibald Cox:

And —

Potter Stewart:

— say?

Archibald Cox:

3 (b) said —

Potter Stewart:

That is (Voice Overlap) —

Archibald Cox:

“The Commission shall empower among others to require any corporation subject to the provisions of this Act,” which the Commission may designate and so forth, “to furnish to the Commission from time to time information, statements and records concerning its organization, business, financial condition, conduct, practices, management in relation to other corporations.”

Those recitals are just about the recitals that appear in the present Section 6 after the words “reports, or questions and rights”.

William J. Brennan, Jr.:

Are you going to tell us how reports got into special present facts of the same type?

Archibald Cox:

Well, this — I’m afraid there are some guesswork in there.

I should tell you —

William J. Brennan, Jr.:

Well —

Archibald Cox:

— one thing more.

William J. Brennan, Jr.:

— I think that’s rather important.

Archibald Cox:

Yes.

Well, I should tell you one thing more which may throw light on that, Mr. Justice, because I haven’t fully explained the Senate bill.

Felix Frankfurter:

May ask you from the provision, did the (Inaudible)

Archibald Cox:

No.

That phrase was not —

Felix Frankfurter:

(Voice Overlap)

Archibald Cox:

— in either the House or the Senate bill.

Felix Frankfurter:

(Inaudible)

Archibald Cox:

That’s correct.

It didn’t — it didn’t have either.

I referred to Section 3 (b) of the Senate bill and to Section 6 which punished failures to comply with Section 3 (b).

Now, Section 3 (c) also seems to be relevant.

I think it’s obviously very relevant.

I didn’t mean to play it down.

Section 3 (c) gave the Commission power to prescribe as near as may be a uniform system of annual reports from such corporations or classes of corporations subject to provision of this Act or to require a special report and so forth.

Now, the difference, as I see it, between the — well, there are two ways you can explain Section 6 of the Senate bill.

One could say, I think that “Oh, well, the reference to 3 (b) must be a misprint, it meant 3 (c).”

That is certainly possible.

On the other hand, it said 3 (b).

The other explanation would be the one that I suggested in connection with the House bill.

You’ll note that the Senate bill if you read (b) and (c) together refers to the subjects on which the Commission may require information.

And then in a sort of procedural way, it says the Commission may say you do this annually or may say you do it specially, and again, used the word “report” to cover all the information you might ask upon the specific subject.

Now, it would seem to me how the word answers the questions got in, Mr. Justice Brennan, I have not been able to discover.

The only other place that I know that this word appears is in one of the sections of the Interstate Commerce Act.

I suppose —

William J. Brennan, Jr.:

Well, may I ask, Mr. Solicitor?

Did — did the final result come out of conference?

Archibald Cox:

The final result came out of conference.

What happened was that Section 6, as it now stands, came out of conference.

Archibald Cox:

I could find no explanation that was worth anything.

What was — what very little it said is that there was simply verbal changes and that the notion of required annual reports have been drawn, but there’s no specific comment on this.

Then the conferees simply carried forward what had been 6 into 10 without making any change.

Now, the inference I withdraw is that when they — they had used 6 to cover everything that you might have to report and when they — they simply carried it forward or forgetting, I expect, the fact that the word “or questions” had been put in Section 6.

But it seems to me that a report against this background are clearly maybe something including answers to specific questions.

The real thing is information relating to certain subjects whether it’s a report or questions as long it’s information relating to this subject, that would seem to me to be the (Inaudible)

Charles E. Whittaker:

(Inaudible) — you mean the facts of business claims would cost (Inaudible)

And, on the other hand, for failure to answer certain specific questions that maybe privilege.

Archibald Cox:

Well, I would think that the — in terms of fairness or that the greater fairness was in the failure — was in punishing the man who was told exactly what you wanted him to do and then he fails to do it.

Whereas if you simply say, “Go make me a report”, it subjects him to all kinds of uncertainty as to what he is suppose to give.

The questions, get over all the requirements of vagueness as to what they commanded.

Second, it would seem to me, that the interpretation that we advocate are — is far more likely to make this an effective instrument in carrying out the policies of the Federal Trade Commission Act.

Mr. Lamb says that, well, for a report, you don’t really have to give them what they want, that a report leaves you quite a lot of latitude to move around it.

I, and this of course, means in effect that a company that doesn’t want to give the Commission information is able to move around.

Whereas if the Commission can’t ask specific questions, then it is in a position, better position, to get the information that Congress wanted it to have.

Felix Frankfurter:

(Inaudible)

Archibald Cox:

Some — yes.

Felix Frankfurter:

(Inaudible)

Archibald Cox:

With — with one exception, I think.

I would agree with Judge Lumbard in the court below, that that maybe that there are some questions that might be asked which were so specific and covered so small a subject that they could not be regarded as reports.

But I would take there was a very substantial overlap between the two and with that possible exception then I would think that Your Honor said —

Felix Frankfurter:

All the words that I say (Inaudible) of questions, they are the questions.

Archibald Cox:

With the exception that I noted —

Felix Frankfurter:

Yes.

Archibald Cox:

— that’s what it would come to —

Felix Frankfurter:

Well, that —

Archibald Cox:

— yes.

Felix Frankfurter:

— that’s — is a vague (Inaudible) show something so as to carry it just to call it as a report, everything else is a (Inaudible)

Archibald Cox:

Well, I think — I think Your Honor that you would have equally nice questions if you were to say that in order for a report can’t specify in detail what the information to be given is and that would be the effect to of saying that anything that asked questions can’t be a report.

Felix Frankfurter:

No.

Felix Frankfurter:

Because it’s — whether it’s one or the other is within the power of the Commission.

Archibald Cox:

Oh, whether —

Felix Frankfurter:

All it said, the Commission can do it.

And arguably those (Inaudible) corporations get — require an annual report, getting (Inaudible) or trying to give by entity or by (Inaudible) you file a report regarding your reserves (Inaudible)

Archibald Cox:

Or especially you filed a report — or especially you filed a report.

Felix Frankfurter:

That would be — that would be a special report, it doesn’t have to be (Inaudible) and they say, which you give, a biannual report on those (Inaudible) that it is what you report.

Whereas the (Inaudible)

Suppose the Court has required an annual or biannual report and the report (Inaudible) appropriate questions for the Commission to say this is (Inaudible) further questions elucidate what’s in the report.

Now, would that be part of the report or is that —

Archibald Cox:

Well,

Felix Frankfurter:

— the very (Inaudible)

Archibald Cox:

I would think it would be and would have to be.

That was the difficulty with the petitioner’s interpretation.

Felix Frankfurter:

I do have — I do have covered my (Inaudible)

Archibald Cox:

Well, I’d —

Felix Frankfurter:

Isn’t that the words in your statutes?

Archibald Cox:

Well, I’d — I would have to agree of course, that that is troublesome.

On the other hand, I’ve observed words put in the statutes which clearly got there redundantly or out of an abundance of caution.

I would — here, I presume, that someone said when they were writing Section 6, well, you better put in our answers to questions.

Somebody may think that a report does cover an answer to a question —

Potter Stewart:

Mr. Solicitor General —

Archibald Cox:

— which is a gesture —

Potter Stewart:

— may I display my ignorance by asking you whether — whether the Commission does regularly require annual reports from some businesses or types of businesses?

Archibald Cox:

I — but they would be comparatively few.

It’s not done on a large scale.

I believe it’s very few.

William J. Brennan, Jr.:

Is it only in connection with matters under inquiry, (Inaudible)

I mean, the —

Archibald Cox:

Well, I’ll — I’ll try to get the answer and then maybe they’ll write it for me.

William J. Brennan, Jr.:

All right.

Archibald Cox:

And I’ll enlighten you specifically later.

It’s not done in the way it is with the (Voice Overlap) —

Potter Stewart:

(Voice Overlap)

Archibald Cox:

— carriers or the FCC —

Potter Stewart:

Oh, the FCC, (Voice Overlap) —

Archibald Cox:

— anything like that.

There maybe some special categories but I know there are no pecuniary reports.

Charles E. Whittaker:

But you’ve started in connection with the investigation.

Archibald Cox:

This was done in connection with a formal investigation.

The initial efforts to get information had been informal but then before this order was entered, they had formally instituted an investigation against St. Regis.

There is one other or two points I would like to emphasize here.

Charles E. Whittaker:

Mr. Solicitor, may I ask you (Inaudible) is there any other way the reports (Inaudible)

Archibald Cox:

It would seem to me that there’s none that I have thought of.

It would seem to me that to get a penalty, we would have to show that this was within the word report as used in the Section 10 because that’s what the penalty is — is for.

Now, there were two points I wanted to emphasize.

One is that so far as anything that the Commission might do could make it clear.

The Commission did everything possible to make it claim that this was in its judgment a special report.

William J. Brennan, Jr.:

Well, I correctly understood you to answer my Brother Harlan earlier that at least as applied to this case, what was asked for was a special report in the form of answers to the following questions.

Archibald Cox:

Oh, yes.

It’s on page 9 of the record.

The — they all followed the same form.

It was entitled, “Order requiring filing of special report”.

And then in the first paragraph, it said, “You are required to submit a special report to the Commission within 30 days containing the information and documents specified in the following question.”

So the questions were simply a way of specifying what the report should cover.

William J. Brennan, Jr.:

But I — I suppose as to my Brother Stewart just observed, quoting it so that it makes it solely for the purpose of this.

Archibald Cox:

No, no.

No.

But to the extent that what the Commission labeled it might be important and so far as any question as to whether the petitioner was mislead is concerned and to — on those points, I think it is important thus —

(Inaudible)

Archibald Cox:

Well, there are some advantages in administrative practice to the Commission.

Archibald Cox:

In filing an order for a report, it — if you use the subpoena process, then of course you may only subpoena documents that already exist.

And if —

Charles E. Whittaker:

Or — or when you — a witness, he may decline to answer.

Archibald Cox:

But I think that would — that would — if my memory is right that would have to await the beginning of an adversary proceeding, whereas the purpose of this was to determine whether an adversary proceeding should be done.

Charles E. Whittaker:

(Inaudible)

Archibald Cox:

No.

(Inaudible)

Archibald Cox:

I — I understand.

I was mistaken on that.

There’s one bit of internal evidence —

Charles E. Whittaker:

(Inaudible)

I argue that these are special reports.

What I meant to say, Mr. Justice Whittaker was that as I read the statute dealing with penalties, that the penalties are due only if there was a failure to file an annual or special report.

And I can’t think of any other way to get the penalties unless this is an annual or special report within that length.

I — if I could, I’d be glad to rely on it but I don’t see what —

Charles E. Whittaker:

(Inaudible)

Archibald Cox:

Oh, no.

Oh, I — I’ve — I meant to insist throughout that this was a special report.

Now, there’s one other that —

Felix Frankfurter:

Suppose that’s maybe.

Archibald Cox:

Whatever they hand maybe.

And I think that the key to that is the kinds of information that the Commission is authorize to obtain.

I would direct the Court’s attention before I pass on to one other provision in Section 10 which is headed in offenses and — or penalty.

The paragraph above the one relating to the penalties for failure to file a special report deals with another — other — a number of other offenses.

It reads, “Any person who shall willfully make or cause to be made any false entry or statement of fact in any report required to be made under this Act”, and then goes on and impose the penalty.

Now unless the word report as used in Section 10 covers answers to questions at least in circumstances substantially like this, that would mean, there’s no penalty for giving a false answer to questions at all.

Because you cannot find any other penalty in the Act that covers any other provision of the Act that covers false answers to question.

And again this suggest to me when you see in Section 10 that they’ve tried to impose penalties for every kind of violation that the word report was used inclusively to cover all of these things and that there had been no thought in adding the words in answers to questions in writing, that they were something separate and distinct.

Felix Frankfurter:

That was — your argument would be (Inaudible)

Archibald Cox:

Well, I take it that —

Felix Frankfurter:

For getting that report.

Archibald Cox:

— if one goes —

Felix Frankfurter:

Do you think it (Inaudible)

Archibald Cox:

Yes.

But I think if you go back, Mr. Justice, to the — to the earlier language of the bill that annual was meant to be something that you were required to do periodically once a year and that special simply covered what you are required to do any other time.

And that would cover all the furnishings of information that I could think of.

Charles E. Whittaker:

Well, if they stopped there —

Felix Frankfurter:

(Voice Overlap) —

Charles E. Whittaker:

— we wouldn’t have this question.

Archibald Cox:

Well, that’s true, certainly.

I would like now, if I might, to deal very briefly with the two other objections that petitioner raises to our claim with the penalties and then to spend the remainder on — of my time on the very difficult question of the retained copies of the Senate Report.

Potter Stewart:

I’ve got two briefs on this two because these are not easy to me.

Archibald Cox:

And I’ll be — I’ll be guided by the Court.

These — there are difficult questions here to, I think.

Petitioner’s second argument is that Section 6 and 10 taken together, the penalty section, are unconstitutional because a — an accruing penalty of $100 a day is imposed without any explicit provision for prior judicial review.

Our answer to that is that we think that if the penalties are heavy, so burdensome, that it would be unfair to require the petitioner to wait and take his chance in the action to recover the penalties if they are that burdensome.

Then he has the right under Section 10 of the Administrative Procedure Act to seek review of the Commission’s order without waiting.

On the other hand, if the penalties are not burdensome enough to justify equitable intervention, then we think a fortiori, they’re not unconstitutional.

I should point out to the Court that in the Clark Steamship case, Judge Augustus Hand held in the Second Circuit that penalties of $500 a day were not so heavy as to be unconstitutional that this was a question on which a corporation that chose to disobey an order might be required to take its chance.

Our view here is that there is relief available under Section 10 of the Administrative Procedure Act —

Potter Stewart:

What about the Claire — Claire Furnace?

Archibald Cox:

Well, I would say again two things about the Claire Furnace case.

First, Claire Furnace case precedes the enactment of the Administrative Procedure Act and that therefore assuming it to have been proper then, the Administrative Procedure Act has changed the law in that.

Second, I would point out that the Claire Furnace case, in addition to being one which had given the Court very obvious trouble in view of having been argued twice, a long time it was on the docket.

That’s — a suit there was brought against the Federal Trade Commission whereas the action for penalties could be brought only by the Attorney General.

And the case therefore it seems to me only to hold that the action could not be brought against Federal Trade Commission, not that no action for relief in equity would lie.

And I’m confirmed in Justice Stewart, by the fact that Chief Justice Hughes in a case not cited in our brief, California against Latimer, California v. Latimer – 305 U.S. 255, I don’t know whether to say — explain or strongly hinted that the Claire Furnace case should be put on this ground.

In any event, he clearly indicated that that was the ground on which he thought it would be read.

Now, with the problem here about which party you name would have been cured by the Administrative Procedure Act and we think that the action could have been brought under that Section.

Potter Stewart:

That’s of course the Federal — the record shows that the Federal Trade Commission gave notice that it was going to rely on that case to contest —

Archibald Cox:

Yes.

The Federal Trade — the Federal Trade Commission did say that, and I guess that’s just one of the burdens I have to carry.

I — I ought to point out however that when the Federal Trade Commission said that, it was only 10 days before this action for the penalties had been brought.

It was after there had not only been a failure to comply with the order.

It was after the notice of default and was right on the very suit.

Furthermore, when the action for the penalties had been filed at that time it would seem to me that it would have been appropriate for the petitioner, he was entitled to that relief, to go in an ask for a stay of the order.

The case was already in Court.

And this of course is a request that they finally made when it got to this Court and which this Court granted in its answer — in its order on the petition for certiorari.

The other argument that petitioner makes with respect to the penalties is that since certain portions of the required — since certain portions of the order for the required report sought information to which the Commission was not entitled.

Therefore, it didn’t — the petitioner didn’t need to comply with any part of the report.

I think on that, it’s worth calling attention very briefly —

Charles E. Whittaker:

That is, he needs to comply with any part of the order to (Inaudible) —

Archibald Cox:

That’s right.

Charles E. Whittaker:

— (Inaudible), that isn’t to say he didn’t have to answer?

Archibald Cox:

It seems to me that that is logically included.

Charles E. Whittaker:

Under the procedures on interrogatories, commonly practiced in federal courts, one maybe hold in for failure to answer and subjected to pertinent sanctions, but he surely can’t be made to answer the whole batch if some were bad.

Archibald Cox:

Oh, well, if some were bad, he can’t be required to answer the whole batch.

And I take it that — I guess I didn’t grasp your point.

I take it, if they had answered the parts that were clearly proper and it said as to the others that they contended that they were improper and then we had sued for the penalties, we would lose.

But they didn’t answer any.

It would be as if the litigant didn’t answer any of the interrogatories.

Charles E. Whittaker:

I understood that here, the District Court held and the Court of Appeals affirmed that 12% were bad.

Archibald Cox:

Here, there were — here, there was no appeal taken so that that’s what it amounted to.

Here 12% were held to be bad.

That means there were 88% that were good and that petitioner didn’t answer any of them directly.

He did at the time of the trial point out that he had somewhere in the material he had earlier given the Commission the answers could be found.

And that covered a substantial part.

But 88% or 83% or 84% depending on the census question were good.

Felix Frankfurter:

(Inaudible)

Archibald Cox:

No.

Archibald Cox:

I think the test was properly stated by Circuit Judge Friendly.

The question is whether the bad part is — he said such extensive invalidity, there is no longer an intelligible requirement for an annual or special report.

(Inaudible)

Archibald Cox:

I —

(Inaudible)

Archibald Cox:

I — I know the one you referred to but not the name to.

(Inaudible)

Archibald Cox:

You have to file in time of the —

Felix Frankfurter:

(Inaudible) requiring to hand out they’re inquiring about.

Archibald Cox:

You have to say, you had to file and claim the privilege.

Felix Frankfurter:

The privilege.

Archibald Cox:

Yes.

And here we would say that he had to file as to the good part and as to the rest, he could have said that it was bad.

Furthermore, remember that under the suggestion in the Morton Salt case in Section 10 of the Administrative Procedure Act, he could have gone into Court and get relief.

I would also like to emphasize one thing which I passed over because of the shortage of time.

The Commission had been trying to get information out of the petitioner since September, 1956.

And everytime, there was some objection in the conference to be held, and there are more objections, they did get finally by subpoena substantial amounts of information.

But — then when they came to try to bring the information up to date and to get information pertaining to the new acquisition, then they had to go through this all over again.

As Judge Lumbard said, “This is a case of a company which made an innocent mistake or omitted something in good faith.”

This had been tussle to get information all along and/or during that time, the petitioner had been buying up more corporations in the paper and paper products industry.

So that I think Judge Lumbard’s description is direct.

Charles E. Whittaker:

Why — that was an abuse of a legal right?

Archibald Cox:

No.

I — I didn’t mean to imply that there was any abuse of legal right but I didn’t mean to imply that there wasn’t any cooperation and that there was an effort to delay.

William J. Brennan, Jr.:

Well, you don’t — you don’t rely on any of these however as supporting the Government’s claim for penalty, do you?

Archibald Cox:

I suppose penalties are due under the statute whether these —

William J. Brennan, Jr.:

And without regard as to —

Archibald Cox:

Yes.

William J. Brennan, Jr.:

— to make it hard —

Archibald Cox:

That’s the —

William J. Brennan, Jr.:

— for the Government to get this information.

Archibald Cox:

This isn’t discretionary.

The statute says that.

William J. Brennan, Jr.:

May I ask you one thing, Mr. Solicitor?

Do you suggest that — do you like Judge Friendly’s case, that is — if he — he has to succeed at the trial and demonstrating such extensive invalidity that there’s no longer an intelligible requirement.

Well, doesn’t that get us under this 50% or 40% or 87% here?

Archibald Cox:

Well, at some point, there would be a question of degree —

William J. Brennan, Jr.:

Well, how do —

Archibald Cox:

— inevitably.

William J. Brennan, Jr.:

How do you — how do you apply that test, extensive invalidity?

Archibald Cox:

Well, I think one would — I think one would be concerned with how many questions there were.

How much the information in the — how many questions were bad.

How much the information was wrapped up together into one bundle or how severable the unanswerable questions were?

I thought answerable was the wrong word, questions that were improper questions.

I — I would think those were the two major considerations.

William J. Brennan, Jr.:

Well, as I — am I — do I correctly understand here that even as to the — I’m looking at that chart that Mr. Lamb referred us to, 3B of his brief, enforceability and enforcement granted as to 37%, was there some question about whether the Government was entitled to have the answer?

Archibald Cox:

No.

There were — there were — well, there was — one, there was — there were the — taking our chart which covers all nine orders instead of just orders —

William J. Brennan, Jr.:

(Voice Overlap)

Archibald Cox:

— one and seven, at the back of our brief.

Those — the chart you had related only two orders.

I don’t think it makes any real difference but this covers all nine.

Starting at 12 o’clock, the Court denied enforcement of 12% as too broad.

Amongst those related questions of this kind explained how the assets acquired from one of the companies you’ve bought up are to be merged into the affairs of St. Regis Paper Company.

That there were a number of those rebating the different corporations and that was most of what the District Court held improper.

Then they had complied with 15% before a default in terms of answering those specifically.

Then there was a rather large category running from three o’clock to seven o’clock where St. Regis as to the trial or at or after the trial filed papers saying, “You’ve already got this.

If you’ll look at the prospective we gave you in answer to the subpoena,” I’m not using an actual illustration to this kind of thing.

“If you’ll look at the answers we gave you and answer to the subpoena two years ago, you will find that you already have this.”

But they hadn’t given even that kind of answer as to these two shaded parts.

William J. Brennan, Jr.:

Well, if that’s all that were involved, would that be a defense for claim of penalty?

Archibald Cox:

I should think clearly not.

That was all that was involved.

William J. Brennan, Jr.:

Even though they in fact (Voice Overlap) —

Archibald Cox:

Oh, I think that that —

William J. Brennan, Jr.:

— they had given you the information.

Archibald Cox:

It’s quite the fact that is after all the — the statute reads in such form as the Commission may prescribe.

They haven’t complied when they say, “Well, you’ve got it somewhere in your files, you’re suppose to do it the way the Commission prescribes.”

Now, there might come a point, I should presume in theory where the Commission could be harrassing them to such a point that the Court wouldn’t award penalties, but it doesn’t seem to me that that can be made out here.

Then one finds, the black part, 38% where there hadn’t been any form of compliance and the Court ordered the — ordered the petitioner to comply.

William J. Brennan, Jr.:

Well, my question as to those was, was there any debatable questions where they should or shouldn’t be compliant, finally resolved against them?

Archibald Cox:

Well, I suppose Mr. Lamb and I would differ as to whether they were debatable.

Potter Stewart:

They’re all challenged.

William J. Brennan, Jr.:

They were all — they were — most of them challenged.

In fact, he challenged all of them because he said you can’t have any information for the purposes of determining whether we’re violating Section 7.

So they were all challenged.

And its merits would give rise to a difference in opinion.

I should say just a word about the Bowman Dairy case.

It seems to us that the Bowman Dairy case is distinguishable from this one on several grounds.

In the first place, in the Bowman Dairy case, the Government employee who’ve been served with the subpoena was put in a dilemma that I think call for some exercise of clemency by the Court, he either had to disobey the Attorney General or disobey the subpoena.

In the second place, in the Bowman Dairy case, the Government and the individual served with the subpoena had done everything they could to challenge the subpoena short with non-compliance.

And in this case, we say that there was a remedy under Section 10 of the Administrative Procedure Act that the petitioner did not invoke.

Third, in the Bowman Dairy case, the Court was dealing not with a money penalty, but with an individual’s liberty.

And it seems to me that there are — there’s an occasion for a more liberal role in that connection that there is in dealing simply with the penal (Inaudible).

Now, I think there’s one further reason of we’re not extending the Bowman Dairy case.

The Bowman Dairy case cited no authority and so far as my researches go which I’m not sure they are complete.

The Bowman Dairy case is contra to the whole tenor of authority in other courts on a similar problem.

And adding those together, we think that’s clearly sufficient ground for not extending the Bowman Dairy case to cover this situation.

What is the aggregate of the penalties up to February 7, 1961?

Archibald Cox:

I haven’t added them up, Mr. Justice Harlan, I’m sorry.

Archibald Cox:

It’s now about $60,000.

The other part of the case, I can only refer to very briefly I’m afraid, that concerns the right of the Commission to obtain the copies of the — their census reports which were retained by these — by St. Regis and its subsidiaries when they made required reports to the Bureau of the Census.

The courts below both held that the retained copies were subject to subpoena and that no privilege extended here.

When the case came to this Court, we discovered that the Government was sharply divided.

The Federal Trade Commission which of course had sought to obtain the reports had subpoenaed them in one instance and they had made them the subject of this order for a special report here.

I believe that they were not entitled to any privilege.

The Antitrust Division and the Justice Department shares that review.

On the other hand the Bureau of the Census, Department of Commerce, and the Bureau of Budget, all feel very strongly that these reports are frivolous.

And each agency believes that its interpretation is essential to enable it to carry out its statutory functions.

Felix Frankfurter:

The Bureau of the Budget has a —

Archibald Cox:

The Bureau of the Budget has a general interdepartmental responsibility for trying to coordinate the statistical activities of the Government in order to prevent unnecessary duplication.

And most report forms before they’re set out have to be approve by the Bureau of the Budget.

Felix Frankfurter:

(Inaudible)

Archibald Cox:

Well, that was —

Felix Frankfurter:

(Inaudible)

Archibald Cox:

I wanted the position of these various agencies to be cleared of court.

This puts the Solicitor General in a somewhat difficult position and it had been by hope to present both sides of the question as fairly as I could and to — we have sought to do that in some detail in our brief.

My own personal opinion which I though I should give the Court is that the courts below are wrong and that these retained copies, where there are copies of required reports should be and are under the statute, entitled to the privilege.

Felix Frankfurter:

Purely a question of statutory construction.

Archibald Cox:

It’s purely a question of statutory construction.

And I think that one can put it briefly perhaps this way.

First place, I think it is plain that those who say there is no privilege have the better of it on the words the statute.

Now, the statute says neither the Secretary nor any other officer or employee of the Department of Commerce or bureau or agency thereof, except as provided in another Section shall give out this information.

As Circuit Judge Lumbard said, “The Acts, in plain terms, applies to the Department of Commerce.”

Those who say there is no privilege of the analogy of the law with respect to retained copies of income tax returns the point because there it is held that in private or public litigation, if the taxpayer keeps a copy of his income tax return, it maybe subpoenaed.

Potter Stewart:

But the statute, it doesn’t have the same words, is it?

Archibald Cox:

No.

The statute — the statute suggest the broader coverage here.

Potter Stewart:

Yes.

Archibald Cox:

Because in the income tax case, there’s an exception that could be made by the president.

Archibald Cox:

A further point I think which the Federal Trade Commission and others, frankly, a considerable course, is that when the Congress did wish to give such a privilege, it apparently knew how to do it because with respect to some of the reports which must be made in the Interstate Commerce Commission dealing with accidents which might be brought in question and litigation.

The statute expressly says that they are not to be subject to subpoena.

And I — I think to, I want to make it quite clear that there’s an entirely — an entirely intelligible view of policy behind the Commission’s interpretation.

I say intelligible, not necessarily right.

The Commission’s view is that the policy behind this statute is one of preventing indiscriminate publicity, preventing the employees of the Census Bureau from giving this out for private advantage or as a matter of favor or just plain carelessness.

But they say, once this information becomes material in an administrative or judicial proceeding, then it is a strong public policy that we almost recognize in favor of having that information available so that the case maybe decided on the best possible evidence.

And this is a matter again, I think it must be conceded, of very great importance in the administration of the antitrust laws, after all to get a picture of the market structure.

The Bureau of the Census’ universe figures and the breakdown among the several companies is the best way to get a picture of the market.

Now, why do I disagree if I may take a minute on that?

I think that the words are not so clear.

Well, my view has the worst of it on the words, are not so clear as to forbid us to look farther.

For example, to some cases that the words don’t seem to cover which I — where I think the information is clearly frivolous.

Suppose that a company has signed its census report, but hasn’t gotten to mail yet.

It’s incredible that it should be subject to subpoena under those circumstances.

Or suppose it’s returned to the company to make a correction.

I would think it’s plain that the privilege attached to it then.

It would seem to me that the policy underlying Section 9 of the census is broader than the one that I suggest it could be attributed to it that its policy in — might I take just a minute Your Honor to develop that?

That its policy is — well, the colloquial way to put it is to make sure that the statistical activities of the Government leave those who cooperate neither better off or worse off than they would be if the statistical activities weren’t engaged in.

To put it more specifically, I think that the policy is to remove the objections or otherwise, it would be to the census, the public objection arising from a sense of unfairness.

If the Government gathered this information, I’ve got you to cooperate and then ride away from it.

On the other hand, the second purpose is to secure the cooperation of those reports.

These retained copies are in the operations of the Census Bureau of very, very great importance in order to get accurate figures for reasons spelled out in our brief at greater length.

There must be consultations between the Census experts and the company, economist, and statistician, and unless the company has a copy available, the consultations can be carried out only under very great difficulty if at all.

And therefore, it would seem to me that the policy of Section 9 is one that says that this information gathered by the Government for statistical purposes shall be used only for statistical purposes.

And there’s evidence in that — of that in presidential proclamations and committee reports cited in our brief.

And that would bring this case down to the question whether these retained copies fall within the category of information requested by the Government for statistical purposes.

One can argue at great length as to whether the companies would keep the copies even so the Government didn’t ask them to.

But the fact is that the Commerce Department does ask them to.

And in my judgment, where the Commerce Department says, “Keep this for our purposes.”

And then it does not lie in the Government’s mouth to say, “Oh, you would have kept it anyway, and this isn’t something that was done.”

Archibald Cox:

For the Government’s purposes, you would have kept it for your own use, maybe so, often so.

But I think that where the Government has said, “Keep it,” the Government must acknowledge that it was kept because it wanted to.

Felix Frankfurter:

(Inaudible)

Archibald Cox:

Well, in this instance, I should say that the various agencies agreed with me and hope that it would be convenient to the Court that we should speak with one mouth here, and that I should try to explain all views.

Felix Frankfurter:

(Inaudible)

Archibald Cox:

Well, if it were only — no, I don’t think that’s quite the situation.

If were only the antitrust division, Your Honor, I think we could take care of that.

Felix Frankfurter:

But — but (Inaudible)[Laughter] you have to take good care of it because (Inaudible) important expressions of legal authority.

(Inaudible)

Archibald Cox:

That’s — the answer is yes and no, Your Honor.

Our position and one which we — which I should have made clearer and that sought to emphasize in the brief is that, certainly, the underlying information, this information underlying a census report is not a privilege just because somebody has made a report of that.

Indeed, if you will look at the original request for information here, you will see that they asked for the same kinds of information that was given to the Census Bureau even referred to the Census Code numbers to show what they wanted and then the company came back and said, “Well, here are the retained copies of our reports.

Why make us do it all over again?”

Now, there is this difference.

While much of the information could be obtained, it would be a slower and in some ways more difficult process.

Some of the information given to the Census Bureau contains estimates.

There are estimates where you could give a number of figures and sometimes honestly and haven’t come out quite different.

When the Federal Trade Commission sought to get it, of course, counsel would screen it.

When it goes to Bureau of the Census, it is more candid and they go to more work to put it together.

So that there would be — there would be in my judgment, this again as a matter of argument, there would be in my judgment a considerable hampering of the Federal Trade Commission’s processes.

On the other hand, I think there would be a considerable hampering of the statistical processes if you held that there was no privilege.

That’s why there are these different views.

Now, if I might say just one sentence or two if I may, one is that although I did not take time to deal with the problem of waiver because I thought I should get to the merits of this question.

We do insist that the voluntary furnishing of copies of census report had destroyed the privilege of confidentiality.

Felix Frankfurter:

They do not – (Voice Overlap)

Archibald Cox:

We think — we think it is because we are the respondent here and that it is open to us to seek to defend the judgment below on any ground.

Thank you.

Earl Warren:

Mr. Lamb.

Horace R. Lamb:

Your Honor, thank you.

I don’t intend to argue census matter.

Horace R. Lamb:

I assume that the senior law officer of the United States Government has taken the position which is in accord with ours as I stated.

Now, I could amplify from a business point of view that the confidential statement from a corporation’s point of view is exceedingly important.

In the first place, these census reports are merely testaments.

They’re not evidence of what was manufactured, and sold, and shipped in commerce.

The Commerce Department knows that.

They’re only estimates, but they are helpful estimates to the Government.

And it seems to me that when you’re told by a forum which the Secretary has the power to proscribe, “Keep this copy in your file, it is confidential,” that should be respected.

Now Your Honor on the broad question of the attitude of the Commission about whether you can answer a part of these questions or and reject thoroughly.

Let me point out one exhibit in this record.

Before the District Court, Number 109, a letter dated August 21, 1959 from the Federal Trade Commission to me in which it was said, in response to my letter —

Potter Stewart:

Where are you in your record?

Horace R. Lamb:

It’s not in the transcript, sir.

Potter Stewart:

All right.

Horace R. Lamb:

It’s a part of the Court Exhibit 1A.

Your letter of August 18th has been received, has caught the attention of the Commission.

The Commission notes that you state you are willing to permit the representative of the Commission to examine those portions of your client’s files which are not of a confidential nature and readily available.

As the Commission understands your offer, this would be in lieu of filing the reports which have been directed by the Commission.

This would not be satisfactory.

The Commission needs the information and documents in the form directed by the Commission’s orders and nothing short of this will be satisfactory.

They therefore had no alternative.

That was the statement of the Commission delivered to us and you couldn’t pick out parts that might be answered in those that we thought were (Inaudible), because they don’t add it to it.

Let me also throw Your Honors attention to the fact that this very question of what is the difference between a request for an answer in writing to a specific question or report was considered by our District Court in the Southern District of New York by an able District Judge Woolsey.

In United States against National Biscuit Co., decided in 1938, and there the Commission tried to make the same argument that they had asked for a report, but Judge Woolsey held, “Would you look at what they ask for, these are requests for answers in writing to question.”

And he so held the Government took no appeal.

Can you cite that page?

Horace R. Lamb:

Yes, sir.

I cite it at page 26 of our brief, sir.

There was no appeal.

Judge Lumbard suggest that had he been sitting as a District — as a Court of Appeals judge, he would have doubtlessly disagreed.

Judge Lumbard was then not a judicial officer when that was decided.

What’s the reference of the citation to that case you have?

Horace R. Lamb:

25, F.Supp. 329, it’s at page 26, Your Honor of our brief.

Now, I think I’ve made it clear that there was no latitude allowed us here but I’d like also to answer the Chief Justice’s question.

There is no doubt, Your Honor that the same information so far as the call for documents would have been called for by a subpoena duces tecum.

And if you will recall in the opinion of the District Judge Ryan, he so regarded these, the substantial equivalent of a subpoena.

Now, I think the law is perfectly clear that the administrative agency has no power of its own to attempt to enforce a subpoena duces tecum.

It must go to a court.

I hope Your Honor sincerely that on this review, this Court will give consideration to a provision of the law that has not received in my humble opinion adequate attainment in the appellate courts and that is provisions of Section 6 of the Administrative Procedure Act passed in 1946.

And that deals with the power to issue subpoenas, it does, the Federal Trade Commission Act.

Now, there’s a very vast distinction however that if a subpoena is issued and it disobeyed, there is a very limited liability.

But punishable as the Court, it must be after a Court determination.

The Commission here wants to arrogate to itself the power to determined that it shall be the final arbiter of usual paid penalties to this corporation for not answering our particular questions.

Now, the extent of the questions, the learned Solicitor General read from his draft and I’m sure he was innocent and didn’t mean to attempt to point out that these were addressed in his Appendix D, the St. Regis Paper Company.

He refers to (Inaudible) orders, only two orders were directed to the petitioner here.

The seven other orders with other corporations, they were not named defendants in the action, only St. Regis Paper Company.

And only penalties and forfeitures were claimed against St. Regis Paper Company, no one else.

I’d submit to you that our glass at the end of our brief deals and shows the fairer picture and they’re taken right from the Government’s own total figures but we deal only with orders one and seven.

And I therefore suggest that the Court not be mislead by this extent of one enforceability which was as shown on page 3B of our appendix to our brief, the correct situation.

Now, those that were unenforceable were the determination of the Court.

The Court found that it wasn’t necessary to order a compliance.

They were just as able as was my client to find that information in their own file.

They have copies of all the data that was available to our client.

It’s expensive to a corporation to have to make these searches and file all this information.

And we have it and they shouldn’t be duplicated.

Now, I think the Court could take judicial notice of one more fact, and that is that in the Congress 1958, if I’m not wrong, 1959 as well as 1960, bills have been introduced entitled the premerger notification bill.

The Commission has supported those bills vigorously.

They have not been reported out and not have enacted into law.

They would require a corporation to give notice to the Commission of any proposed merger or acquisition of stock and you couldn’t act for 90 days, a few satisfied certain amounts as to the assets to be acquired before competing.

That would be a very serious interference with the exercise of a lawful right and it’s never been made into law.

Now, at this proposal that the Commission asserts here and I believe it’s the first time that it’s ever been brought before a District Court, that it may have this answer — these answers in writing, all of these specific question under the penalty of these forfeitures, there won’t be any necessity or any premerger bill of the law.

Horace R. Lamb:

They’ll have something more better and more powerful.

And I say that the policy that’s behind this should not be disregarded.

I think Your Honor there’s only one more point to make and that is that the District Court could not order obedience to the Commission’s entire order.

It could not grant mandamus.

That was a determination by the learned district judge.

And he had very good reasons as he stated in his opinion and the Government did not appeal.

It seems to me therefore that the District Courts having applied all the fair cast as to whether or not there should have been forfeitures, the District Court’s determination should be fully respected.

(Inaudible)

Horace R. Lamb:

Yes, sir?

(Inaudible) in this case, mandamus was not available (Inaudible)?

Horace R. Lamb:

Well, you know Your Honor the — as I —

(Inaudible)

Horace R. Lamb:

Well, the (Inaudible) mandamus has been abolished by rules as I understand it but we’re now allowed in equity reliefs in the nature of mandamus.

So that when I use the term mandamus, I —

Felix Frankfurter:

Do you think that’s all they introduced here as to that?

Horace R. Lamb:

No, sir.

Felix Frankfurter:

They also had a more generalized form of (Inaudible)

Horace R. Lamb:

No, sir.

Felix Frankfurter:

How the Court should do the (Inaudible) that should be done and the Court — suppose, I (Inaudible) got up here?

Horace R. Lamb:

No, sir, no, no.

I — I don’t go that far.

Felix Frankfurter:

(Inaudible) establishes a mandamus (Inaudible)

Horace R. Lamb:

I said it wasn’t granted, sir.

Felix Frankfurter:

Wasn’t granted?

Horace R. Lamb:

Wasn’t granted.

Felix Frankfurter:

(Inaudible)

Horace R. Lamb:

Oh, there’s a jurisdiction, there’s no question about that.

Now, my — my only appeal was, Your Honor, that whatever test you apply, if they can’t satisfy a District Court that they’re entitled to mandamus, that should be persuasive and compelling.

That’s what happened in our case.

Felix Frankfurter:

(Inaudible)

Horace R. Lamb:

That’s right.

That’s right, sir.

I say it’s — so far as I’m aware, it’s the only case I’ve been able to find where a so-called report which had request for answers in writing were held to be just exactly that, request or answers in writing to specific questions and I think the whole answer to all the argument about the legislative history Your Honor, simply sums up that nothing more than Congress said what it meant in Section 10, it did not impose any forfeiture or failures to furnish answers in writing to specific questions.

In — well, I — well, Your Honor, I endeavored to give the answer to that a moment ago that the test must be — the ability to satisfy a district judge whether or not the questions as presented are capable of enforcement by a Court order of mandamus on the whole of the questions that are presented.

It’s very difficult.

I agree that to draw a line whether it’s 34% it’s in our case or some other percentage.

But I think that’s the only fair answer that you have to leave it to the District Court.

And to the exercise of their sense of fairness under all the circumstances which I’m confident as Judge Ryan did here.

Well, I think that you have to go to the substance.

I think that the questions of Justice Whittaker, you can’t designate something, this is a special report and then actually set forth questions.

My — my suggestion is that where the Commission, did file as they did here, such a number of particular requests that — and in answers to questions, some called them questions, that is a request for answers in writing to a specific question.

Now, if they want to report, I think that they could say, “Furnish a report as to your organization.”

Every business would know what that means and it does give the corporation a certain latitude.

Well, you may as Justice — as Judge Lumbard pointed out, maybe very hard to draw a line.

But I think a line can be drawn.

The question is whether or not, it seems to me, the Commission is really trying to do by request for answers in writing to a specific questions, what really ought to be asked by a subpoena duces tecum.

That would certainly be one test.

And it seems to me when you look at the questions here, special papers, that’s right, sir.

When you get down to asking for reasons why you did something, you may ask that.

One other questions for example, tell us how you fit it in the acquisition of these companies.

Judge Ryan said, nobody could answer that.

(Inaudible)

Horace R. Lamb:

They do in large parts, sir, copies of our annual reports for example.

They also ask questions actually Your Honor, we have answered everything as I said earlier.

(Inaudible)

Horace R. Lamb:

Yes.

But from — from our point of view, I could say to you Your Honor in the utmost frankness, we have answered every requirement in the order of the District Court saving and accepting only the copies of reports to the census of manufacture.

I have done it in order to show that so far as we’re concerned, there is no serious question under Section 7 of the Clayton Act and we didn’t want to delay the Commission but we didn’t want to make our appeal moot either.

And I think we have held into the case, sufficient so that it is not moot, and that the real issues are — I hope to be decided by this Court.

Thank you.