prosecuting functions from adjudicating functions.' Id., 339 U.S. 46, 70 S. Ct. 452. 'The Administrative Procedure Act, § 5, establishes a number of formal requirements to be applicable. 'In every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing' * * *.' Id., 339 U.S. 48, 70 S. Ct. 453. That requirement is not applicable to an investigation as to compliance with an order of the Commission. Cf. United States v. Morton Salt Co., supra, 338 U.S. at page 648, 70 S. Ct. at page 366.
Over the years the Federal Trade Commission has separated these functions and pursuant to § 6, Id. § 46, adopted rules of practice and procedure observing the requirements of the Administrative Procedure Act. See United States v. Morton Salt Co., supra, 338 U.S. at page 644, 70 S. Ct. 364. See Procedure and Rules of Practice for the Federal Trade Commission, published as revised on May 6, 1955, 20 F.R. 3055, effective May 21, 1955, and amended May 14, 1955, 20 F.R. 3303, effective May 21, 1955, Parts 1, 2 and 3 refer to Code of Federal Regulations, Title 16, Commercial Practices, Federal Trade Commission, 15 U.S.C.A. following § 45. Part I, General Procedures -- Subpart D, Investigations, 1.31 to 1.42; Part 2, Rule Making Procedures, Subpart D, Rules of Practice and Procedure § 2.41; Part 3, Rules of Practice for Adjudicative Proceedings; Subparts A to G, as to hearings, see Subpart E at Id., 15 U.S.C.A.
In many respects the practice under the Federal Trade Commission Act was modeled after that of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., see F.T.C. v. Gratz, 1920, 253 U.S. 421, 40 S. Ct. 572, 64 L. Ed. 993, dissenting opinion by Mr. Justice Brandeis, 253 U.S. at page 430, 40 S. Ct. at page 575, citing cases. Section 20 of the latter Act, 49 U.S.C.A. § 20, Par. (10), provides, '* * * to carry out and give effect to the provisions of this chapter, * * * the commission is authorized to employ special agents or examiners who shall have power to administer oaths, examine witnesses, and receive evidence.'
Section 3 of the F.T.C. '* * * the commission may, by one or more of its members, or by such examiner as it may designate, prosecute any inquiry necessary to its duties * * *.'
Section 5 was a novelty. See F.T.C. v. Gratz, supra, 253 U.S. at page 432, 40 S. Ct. at page 576. Section 9 provides that inquiries may be conducted by the commission or duly authorized agent and that members and examiners may administer oaths, examine witnesses and receive evidence. While the distinction between a hearing under § 5 and an investigation under § 6 and § 9 has been maintained over the years 'examiner' has on occasion been used to describe the person conducting the § 5 proceeding, see e.g., California Lumbermen's Council v. F.T.C., 9 Cir., 1940, 115 F.2d 178, at page 183, but see Arrow-Hart & Hegeman Elec. Co. v. F.T.C., 2 Cir., 1933, 63 F.2d 108, at page 109.
To remove any misunderstanding after passage of the Administrative Procedure Act, the commission changed its rules so that a person conducting an examination would be designated as representative rather than examiner. See and cf. 15 U.S.C.A. following § 45, Rule 1, Sessions, '* * * or by such examiners * * *' with § 1.8 '* * * or by such representatives as it may designate * * *' In the 1951 rules, supra, 3(b), investigational hearings are to be held before a 'duly designated representative'. Similarly in the rules adopted in 1955, supra, § 1.32, § 1.34(b), § 1.35.
The construction of this chapter presents a unique problem in which words derive vitality from the aim and nature of specific legislation. F.T.C. v. Bunte Bros., Inc., 1941, 312 U.S. 349, 61 S. Ct. 580, 85 L. Ed. 881. In view of the long practice under the Act, see E. Griffiths Hughes, Inc., v. F.T.C., 1933, 61 App.D.C. 386, 63 F.2d 362, 363; United States v. Public Utility Comm. of Cal., 1953, 345 U.S. 295, 73 S. Ct. 706, 97 L. Ed. 1020; Sterrett v. United States, 9 Cir., 1954, 216 F.2d 659, and a study of the statute itself, see F.T.C. v. Smith, D.C.S.D.N.Y.1929, 34 F.2d 323, at page 325, we find the subpoena properly returnable before a duly designated representative.
While a proceeding must be before one who is unbiased and independent, see N.L.R.B. v. National Paper Co., 5 Cir., 1954, 216 F.2d 859, at page 868, there is nothing here to indicate any such situation. Cf. United States ex rel. De Luca v. O'Rourke, 8 Cir., 1954, 213 F.2d 759, at page 763.
We find no merit in defendant's claim of unreasonableness because the subpoena was returnable the day before the corporation and its principal officer were to appear in the District Court for sentence in a criminal proceeding. See and cf. N.L.R.B. v. Kingston Trap Rock Co., supra, 222 F.2d at page 302; F.T.C. v. Cement Institute, 1948, 333 U.S. 683, at pages 692-695, 68 S. Ct. 793, 92 L. Ed. 1010. The documents could be produced by another agent, officer or representative.
There is a similar lack of merit in the claim that the subpoena was invalid because it was addressed to a party not to a witness, citing United States v. Minker, 1956, 350 U.S. 179, 76 S. Ct. 281, 100 L. Ed. 185, an investigation which was in effect a final step toward possible denaturalization, a proceeding calling for strict construction and in which the government carries a heavy burden. By contrast the present statute is aimed at requiring production of corporate records. The district court is authorized to require the 'corporation or other person' to comply. As we have pointed out, supra, the corporation was amenable to service. It could only appear through agents or witnesses. Comparing the comparable powers of subpoena, see United States v. Minker, 3 Cir., 1955, 217 F.2d 350, at page 351, we find no analogy between the two situations.
In view of the foregoing, we have no alternative, see Bowles v. Baer, supra, 142 F.2d at page 789, but to order compliance.