Circuit Court of Appeals, Second Circuit.
June 13, 1938.
Proceeding by the Federal Trade Commission against the Standard Education Society and others for enforcement of an order of the commission to cease and desist from certain unfair methods of competition. The decree of the Circuit Court of Appeals, 86 F.2d 692, was reversed in part by the Supreme Court, 302 U.S. 112, 58 S.Ct. 113, 82 L.Ed. ___, and the cause remanded with instructions. On proceedings conforming to mandate of the Supreme Court.
Petitioner’s order signed and respondents’ motion for resettlement denied.
Henry Ward Beer, of New York City, for respondents.
W.T. Kelley, Chief Counsel, Federal Trade Commission, of Washington, D.C., for petitioner.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
The respondents insist that the paragraph of our order should be left unchanged, and that by enjoining the individual respondents in respect of the conduct there forbidden we have added to the mandate of the Supreme Court, We acknowledge that verbally this may be true; the Solicitor-General withdrew the appeal from our modification of the tenth paragraph of the Commission’s order and the opinion of the Supreme Court declared that it would for this reason not be touched. However, not to enjoin the individual respondents so far as the corporation is enjoined would falsify the whole theory of the Supreme Court, which reversed us for not including them pari passu with the corporation. By abandoning the appeal from the tenth paragraph all that was meant was that the conduct therein specified which we had absolved might remain absolved; not that the general appeal from our release of the individual respondents should except that part of the corporation’s conduct which both the Commission and we had condemned in that paragraph. It is true that a lower court must not undertake to change by one jot the decision of the court above; but for that very reason it should try to understand it, and to adhere to a purely verbal construction which will defeat its obvious intent is not a way to do so. For these reasons we have signed the Commission’s order, and denied the respondents’ motion for resettlement.