(dissenting).
I would affirm the order under attack. Admittedly, the District Court was vested with a discretion as to the allowance or denial of the injunction and, in my view, it cannot be said that there was a manifest abuse of such discretion. The statute which authorizes the Commission to apply for an injunction contains a limitation not found, so fa.r as I am aware, in any statutory provision relating to other administrative agencies. Under § 13(a) IS U.S.C.A. § S3, two conditions are attached: first, the Commission is entitled to seek an injunction only when it “has reason to believe”, and second, it is entitled to the issuance of an injunction only upon a “proper showing.” Compliance with the first condition seems to be jurisdictional because in its absence th.e Commission is not entitled to assert its claim to an injunction. The court in the instant case evidently recognized that the Commission had complied with this condition because it took jurisdiction of the cause and had a hearing upon the complaint for an injunction and defendants’ answer thereto.
As pointed out in the majority opinion, we are in the dark as to what is meant by a “proper showing,” but evidently the terminology vests in the court a discretion subject to review only for manifest abuse. In the exercise of that discretion the court had a right to take into consideration that admittedly the involved product had no harmful or deleterious effect on those who used it. Also, there was pending before the Commission a proceeding under § S of the Federal Trade Commission Act, wherein the contentions of the respective parties after a full hearing could be decided on their merits. In fact, this hearing had progressed to the point where a decision by the Commission could be made at an early date. As the District Court stated, “The Commission has concluded its case and the court is advised that in a matter of six weeks, the case will be concluded. ' It appears therefore, that if diligently prosecuted, there will be an early determination of the merits.” Furthermore, at the time of argument of the instant matter in this court, the hearing before the Commission had been concluded. Thus, the matter on its merits awaits a decision by the Commission. The complaint in the instant matter was not filed until almost two years after the proceeding was instituted before the Commission. I have serious doubt if the statute contemplates the issuance of an injunction under such circumstances and, in any event, the long delay in making application for an injunction and the fact that a decision by the Commission on the merits could shortly be expected, were matters which the District Court might properly and evidently did take into consideration in the exercise of its discretion to deny the same.