Schnackenberg, Castle and Swygert, Circuit Judges.
Order Federal Trade Commission, petitioner herein, filed its petition in this court on December 30, 1965 praying for a preliminary injunction, a temporary restraining order and other relief in aid of the jurisdiction of this court, under 15 U.S.C. §§ 21(c) and 45(c), to review final orders of the Federal Trade Commission, and therein represented to this court that the question presented was "whether this Court should exercise its discretion to grant equitable relief to preserve the status quo pendente lite, where the respondents will imminently consummate a merger (1) which will probably violate the antitrust laws, and (2) against which the Commission's ability to enter an effective order will probably be seriously impaired, unless the respondents are appropriately restrained by this court."
According to petitioner, the statutes involved are: the All Writs Act, 28 U.S.C. § 1651(a); the Clayton Act, §§ 18 § 7 and 21(c) § 11(c), 15 U.S.C.; and the Federal Trade Commission Act, § 45(a)(1) § 5(a)(1), and (c) § 5(c), 15 U.S.C.
This court entered on January 4, 1966, a temporary restraining order herein pursuant to the petition therefor filed by the Commission, in which it was charged that a complaint had been filed by the Commission against the respondents Dean and Bowman, instituting the administrative proceeding now pending before the Commission, in respect to their agreement for the sale of Bowman to Dean and charging that such agreement and acquisition are in violation of § 7 of the Clayton Act and § 5 of the Federal Trade Commission Act, 15 U.S.C. §§ 18 and 45(a)(1).
Said restraining order is still in full force and effect according to its terms and provisions, inasmuch as an emergency petition for preliminary injunction filed by said Commission is pending and unadjudicated at this date.
Dean Foods Company and Bowman Dairy Company, respondents, having filed herein on January 5, 1966 their brief challenging the authority of the Commission to obtain a preliminary injunction against a supposed violation of § 7 of the Clayton Act or § 5 of the Federal Trade Commission Act and asserting that the sole grant of enforcement authority of the Commission is contained in § 11 of the Clayton Act (15 U.S.C. § 21), which section provides only for the issuance of cease and desist orders after a full administrative hearing with review by a court of appeals and the Supreme Court before such orders become final; the court has considered the briefs and arguments of counsel, as well as various references to the records and proceedings in the Congress of the United States, which reveal that in the 84th Congress and in the 89th Congress bills sponsored by the said Commission were introduced, which bills if enacted into law would have conferred upon the Commission such authority as it is attempting to exercise in the case now before this court, but that said measures were not enacted into law and Congress has not provided otherwise for bestowing this authority upon said Commission.
Inasmuch as no cease and desist order has been entered by the Commission relative to the subject matter in the case at bar and inasmuch as we now hold that the Commission did not have authority to institute this proceeding in this court, it is hereby ordered that the temporary restraining order issued herein is dissolved and the petition filed herein and this proceeding are dismissed.