The question for decision is whether Gilligan, Will & Co. and its partners, James Gilligan and William Will, were underwriters with respect to the distribution of Crowell-Collier Publishing Company securities and as such wilfully violated the Securities Act of 1933, as amended, § 15 U.S.C.A. 77a et seq., by acquiring and distributing debentures and common stock which were not registered.  For reasons which are discussed below, this question turns on whether the issue was a ‘public offering’ as those words are used in the Act, § 15 U.S.C.A. 77d.

本案的争议焦点是，Gilligan Will公司及其合伙人James Gilligan和William Will是否属于Crowell-Collier出版公司发行证券行为中的承销商。若属于承销商，其通过购买并分销未注册的公司债券和普通股，是否违反了《1933年证券法》（《美国法典》第15章第77a条及以下条款）。根据如下论述的理由，为解决该焦点问题，需要判断案涉证券发行是否属于《美国法典》第15章第77d条所描述的“公开发行”。

For their activities with respect to these debentures and stock the Securities & Exchange Commission, pursuant to § 15 of the Securities Exchange Act of 1934, instituted a proceeding to determine whether the petitioners had violated the 1933 Act and whether Gilligan, Will & Co.’s registration as a broker-dealer under the 1934 Act should be revoked.  The facts were stipulated, a hearing was waived, and the Commission heard oral argument.  It thereafter ordered that Gilligan, Will & Co. be suspended from membership in the National Association of Securities Dealers, Inc. for five days, and found that James Gilligan and William Will were each a cause of the order.

就其在这些公司债券与股票交易中的行为，证监会依据《1934年证券交易法》第15条提起程序，以决定复核申请人是否违反《1933年证券法》，以及是否应当撤销Gilligan Will公司依照《1934年证券交易法》所取得的注册券商资格。相关事实已由书面确认，申请人放弃听证，证监会听取口头陈述。证监会其后作出命令，决定暂停Gilligan Will 公司作为国家券商组织的成员资格五日，并认定James Gilligan与William Will对该结果有原因力。

The partnership and the partners petition for a review of the Commission’s order claiming that its action was arbitrary and capricious in four respects: (1) that its finding that petitioners were underwriters with respect to 1955 and 1956 transactions in Crowell-Collier debentures and stock was not supported by substantial evidence; (2) that the findings of wilful violation of the registration provision was unsupported by substantial evidence; (3) that the suspension of Gilligan, Will & Co. was arbitrary, capricious and an abuse of discretion; and (4) that they were denied an impartial hearing because the Commission had predetermined the matter by a press release issued before the hearing.

Gilligan Will公司及其合伙人申请对证监会的命令提起复核，主张证监会的行为因如下四个理由，属于任意且武断的：（1）证监会认为，申请人就1955年与1956年Crowell-Collier出版公司债券与股票交易构成承销商的结论，缺乏充分证据支持；（2）关于其故意违反证券登记条款的结论，亦无充分证据支持；（3）证监会吊销Gilligan Will 公司的券商资格是否过于武断任性，并滥用了自由裁量权；（4）由于证监会在听证前即预先发布新闻稿公布决定，致使申请人未能获得无偏私的听证程序。

We hold that there was substantial evidence to justify the findings and conclusions of the Commission that the issue was a public offering and that petitioners were underwriters, and we agree that the registrant’s suspension for wilful violation was proper. As the petitioners proceeded to trial without claiming prejudice from the Commission’s press release, applying for an adjournment of the hearing and determination, or otherwise presenting their claims of pre-judgment to the Commission, they are foreclosed from complaining of this now. Accordingly, we affirm the Commission’s order.

本院认为，有充分证据支持证监会关于本次发行属于“公开发行”、且申请人在交易中充当承销商的事实认定与法律结论，并同意证监会就故意违反证券监管相关义务而对注册人作出暂停券商资格的处分并无不当。鉴于申请人在进入庭审程序前并未就证监会新闻稿主张受到不公正的影响，从而申请延期听证及裁决，或以其他方式向证监会提出其所谓“预先裁定”的主张，申请人现在无权对此提出异议。据此，本院维持证监会的命令。

The principal and essential purpose of the 1933 Act is to protect investors by requiring registration with the Commission of certain information concerning securities offered for sale. For reasons which will be developed, the crucial provisions of law in this case are § 5 of the 1933 Act, which makes it unlawful for anyone, by any interstate communication or use of the mails, to sell or deliver any security unless a registration statement is in effect; and § 4(1), which exempts from this prohibition “transactions by any person other than issuer, underwriter, or dealer” and “transactions by an issuer not involving any public offering.”

《1933年证券法》的主要及根本宗旨在于，通过要求发行人向证监会登记与发行证券有关的信息，来保护投资者。基于下文讨论的理由，解决本案争议最关键的条款为：《1933年证券法》第5条，该条规定：任何人不得通过任何州际通信方式或使用邮政出售或交付任何证券，除非该证券有相应的生效登记声明；以及第4条第1款的豁免前述禁止性规定的情形，包括：“任何非发行人、非承销商、或券商所作的交易”，以及“不涉及任何公开发行的发行人交易”。

Since the Commission’s proceeding was had on stipulated facts the only question is whether it was justified in drawing from them the inferences and conclusions of which the petitioners complain, principally that the petitioners were underwriters and that the issue was a public offering. To examine these inferences and conclusions we must state in some detail the facts concerning the issuance of the unregistered debentures and common stock of Crowell-Collier Publishing Company.

鉴于证监会的程序系以各方均认可的事实为基础进行，故本案唯一的争议焦点在于：证监会能否合情合理地从既定事实中推断出那些申请人予以反驳的结论，尤其是能否合理地推测出申请人构成承销商、案涉发行属于“公开发行”。为审查上述推论与结论，本院有必要较为详尽地陈述Crowell-Collier 出版公司发行未登记的公司债券与普通股的相关事实。

On July 6, 1955, Elliott & Company agreed with Crowell-Collier to try to sell privately, without registration, $ 3,000,000 of Crowell-Collier 5% debentures, convertible at any time into common stock at $ 5 a share, and Elliott firm received an option on an additional $ 1,000,000 of debentures. Edward L. Elliott, a partner in Elliott & Company, advised Gilligan, one of the two partners of the registrant, Gilligan, Will & Co., of this agreement.  He told Gilligan that Gilligan could purchase, but only for investment, as much of the $ 3,000,000 as he wished, with the exception of $ 500,000 which Elliott's wife was taking, and that the debentures not taken by Gilligan would be offered to certain friends of Elliott.  Gilligan was told by Elliott that Crowell-Collier had ‘turned the corner’ and was then operating on a profitable basis.  Elliott also said that the attorneys for Crowell-collier and his lawyers had stated that the placement was an exempt transaction.  Gilligan agreed to purchase $ 100,000 of debentures for his own account.  It does not appear that Gilligan had any information regarding Crowell-Collier and the debenture issue other than what Elliott told him as summarized above.

1955年7月6日，Elliott公司与Crowell-Collier出版公司达成协议，约定在不办理登记的情况下，尝试私下出售总额3,000,000美元、代表Crowell-Collier公司5%的公司债券。该债券可在任何时候按每股5美元的价格转换为普通股。此外，Elliott 公司有权额外获得价值1,000,000美元的公司债券。Edward L. Elliott（Elliott公司的合伙人）对注册人Gilligan Will公司的两名合伙人之一James Gilligan给出建议。他告诉Gilligan，Gilligan可以自行决定购买该公司债券3,000,000美元额度中的任意部分，但仅可用作投资目的，但排除Elliott妻子已认购的50,000美元；此外，未由Gilligan认购的公司债券将向Elliott的朋友出售。Elliott还告诉Gilligan，Crowell-Collier 出版公司已“渡过难关”，目前正处于盈利状态。Elliott亦表示，Crowell-Collier 出版公司的律师和Elliott本人的律师均认为该私募安排属于受豁免的交易情形。Gilligan同意为他自己的账户购买100,000美元的公司债券。现无证据显示，除Elliott上述的概括性陈述外， Gilligan获得了Crowell-Collier 出版公司及该公司债券发行相关的其他信息。

On August 10, 1955 the $ 100,000 debentures were delivered to Gilligan, Will & Co., which sent a letter to Crowell-Collier stating: ‘that said debentures are being purchased for investment and that the undersigned has no present intention of distributing the same.’

1955年8月10日，上述100,000美元公司债券交付给了Gilligan Will公司。Gilligan Will公司随即致函Crowell-Collier 出版公司，载明：“上述公司债券系为投资目的而购买，且署名人目前无意对其进行分销。”

Nevertheless, by August 10, 1955, almost half of the $ 100,000 of debentures had already been resold.  Either on July 6 or July 7, 1955, Louis Alter, a member of the American Stock Exchange, agreed to buy $ 45,000 of the debentures. Gilligan also offered $ 10,000 to a friend and when this was not accepted he sold $ 5,000 to Michael D. Mooney, who had previously requested that amount of debentures and had been told that none were available; the remaining $ 5,000 debentures were placed in the registrant’s trading account.  In early September, when the securities were distributed, Gilligan, Alter and Mooney each signed a statement reading: “I hereby confirm to you that said debentures are being purchased for investment and that I have no present intention of distributing the same.”

然而，截至1955年8月10日，上述100,000美元公司债券中近半数已被二次销售。1955年7月6日或7日，Louis Alter（美国证券交易所成员）同意购买其中45,000美元的公司债券。Gilligan亦曾向他的一个朋友提出出售10,000美元公司债券的要约；该要约未获接受后，其又向Michael D. Mooney出售5,000美元公司债券。此前，Michael D. Mooney曾请求购买同等金额的债券，并遭到Gilligan拒绝。其余5,000美元债券则记入登记公司的交易账户。至9月初该等证券完成发售时，Gilligan、Alter与Mooney各自签署一份声明写道：“兹向贵方确认，上述公司债券系为投资目的而购买，且本人目前无意对其进行分销。”

In May 1956, after Gilligan noticed that the advertising in Crowell-Collier magazines was not increasing, he decided to convert his debentures into common stock and to sell the stock. He advised Alter of his plans and on May 15, 1956 the registrant, Gilligan and Alter converted their debentures into common stock. Later in May they sold the stock at a profit on the American Stock Exchange.  The stock had been listed on that Exchange since October 1955, and Gilligan became the specialist in the stock.

1956年5月，Gilligan注意到Crowell-Collier 出版公司旗下杂志的广告投放并未增加后，决定将其所持公司债券转换为普通股并出售。他将计划告知Alter。在1956年5月15日，登记人Gilligan Will 公司、Gilligan与Alter将所持公司债券转换为普通股。五月下旬，三人在美国证券交易所以足以盈利的价格出售股票。该股票自1955年10月起即在交易所挂牌，Gilligan是该股票的专家经纪人。

In May 1956 Gilligan, Will & Co. also purchased and participated in the sale of additional debentures by Crowell-Collier.  Elliott told Gilligan that he was surrendering to Crowell-Collier his option on the remaining $ 1,000,000 of debentures, and that these debentures were to be sold at 160% of par, based on the stock’s price at that time of $ 8 per share.  The proceeds of the sale, Elliott stated, were to be used by Crowell-Collier in the acquisition of certain television stations which would show a profit of $ 4,000,000 annually.  Elliott also told Gilligan that Crowell-Collier would sell him, Elliott, 100,000 stock purchase warrants at 1 cents each, exercisable at $ 10 per share for five years.  Gilligan agreed to take $ 150,000 face amount debentures and said he would see whether Alter was interested in taking any.  After Alter indicated that he wanted $ 50,000 face amount, Gilligan advised Elliott that the total subscription would be $ 200,000. Gilligan did not inform Elliott of his and Alter’s sales of stock obtained from the conversion of the debentures purchased in 1955.

1956年5月，Gilligan Will公司亦购买并参与Crowell-Collier 出版公司追加发行公司债券的交易。Elliott告知Gilligan，其将放弃对剩余1,000,000美元公司债券的选择权并将这部分公司债券还给Crowell-Collier出版公司；债券拟按票面金额的160%出售，该定价基于当时该公司每股8美元普通股的市场价格。Elliott称，出售所得将用于Crowell-Collier出版公司收购若干电视台，这些电视台预计每年可产生4,000,000美元利润。Elliott还告知Gilligan说，Crowell-Collier 出版公司将以每份1美分的价格向他出售100,000份股票认股权证，该权证可在五年内按每股10美元出售。Gilligan同意认购面值150,000美元的公司债券，并表示将询问Alter是否有意认购任意部分。在Alter表示欲认购面值50,000美元的债券后，Gilligan将合计认购金额为200,000美元的估值告知Elliott。Gilligan并未向Elliott披露其本人及Alter于1955年购买公司债券并转换为股票后已出售这些股票的事实。

On May 29, 1956 the registrant subscribed to $ 200,000 face amount debentures and issued to Alter a confirmation for $ 50,000 debentures which stated: ‘we have this day subscribed for your account and risk; over the counter as agents.’ Alter immediately converted his debentures into stock. On the same day the registrant similarly confirmed $ 150,000 face amount debentures to a joint specialist’s account maintained by it and one Lloyd E. Howard, which debentures were immediately converted into common stock.

1956年5月29日，注册人Gilligan Will公司认购了面值200,000美元的公司债券，并向Alter出具面值50,000美元债券确认书，确认书载明：“我方于今日认购您方账户及相应风险，我方作为代理人通过场外交易方式完成该笔认购。”Alter随即将其债券转换为股票。同日，注册人也向其与Lloyd E. Howard共同专家经纪人账户确认了面值150,000美元的公司债券，这些债券即刻转换成普通股。

In addition, on May 29, the registrant sent Crowell-Collier a letter signed by Will, confirming that $ 200,000 of debentures were purchased for investment with no present intention to distribute. Howard and Alter made similar representations on copies of the confirmations issued to them by the registrant.

不仅如此，5月29日，注册人向Crowell-Collier出版公司发送一封由Will署名的信函，确认所购面值200,000美元公司债券系为投资目的而购买，且目前无意进行分销。Howard和Alter也在注册人向他们发送的确认书复印件中作出了类似表述。

Late in May 1956, Elliott informed Gilligan that $ 200,000 of debentures were still unsold, that it was necessary to sell these debentures to one party, and that if Gilligan could find a purchaser, Elliott would sell him 50,000 stock warrants at 1 cents each.  Gilligan contacted Harry Harris and told him that he would split his warrants with him if he, Harris, could find a purchaser for the debentures. Harris interested Value Line Special Fund, Inc., and Gilligan told Harris to contact Elliott.  On May 29, 1956, the Fund’s representatives met with Crowell-Collier’s president, Paul Smith, and Harris and Elliott, and the Fund later agreed to purchase $ 200,000 face amount debentures and 15,000 warrants.  To accommodate Elliott, Gilligan, Will & Co. as principal sent a confirmation, signed by Will, covering the sale of the debentures to the Fund.

1956年5月下旬， Elliott告知Gilligan，仍有面值200,000美元的公司债券未售出，并且有必要将这些债券销一次性销售给单一买方；如果Gillgan可以找到买方，Elliott将以每份1美分的价格向其出售50,000分股权认购凭证。Gilligan联系Harris，并表示若其能够找到债券购买人，Gilligan愿意与其一同分配出售权证所得收益。Harris遂尽力使Value Line专项基金公司对购买债券产生兴趣；Gilligan还叫Harris与Elliott联系。1956年5月29日，该基金代表与Crowell-Collier出版公司总裁Paul Smith以及Harris、Elliott见面。随后，该基金同意购买面值200,000美元公司债券及15,000份权证。为满足Elliott的需求，Gilligan Will公司以自营身份向基金会发送了一张Will署名的确认函，函中包括向基金出售公司债券。

Gilligan, Will & Co. received 50,000 warrants from Elliott, some of which were sold to the Fund and some of which were given to nominees of Harris and others, the 20,000 warrants given to others being subsequently returned to Elliott at his request. Gilligan, Will & Co. sent Crowell-Collier two investment intention letters, in the usual form, one covering the Fund's purchase of debentures and the other covering the 50,000 warrants received by registrant. The Fund, at the request of Gilligan, Will & Co. signed letters of investment intent covering the debentures and the warrants.

Gilligan Will公司从Elliott处取得50,000份权证，其中一部分出售给基金，还有一部分交给Harris及其他人员的提名者。向其他人员分配的20,000份权证，后依Elliott的请求返还。Gilligan Will公司向Crowell-Collier出版公司发送两份普通形式的投资意向书，一份囊括该基金购买公司债券的事项，另一份涵盖注册人取得的50,000份权证。应Gilligan Will的要求，该基金亦分别就公司债券与权证签署投资意向书。

Petitioners assert that they were not ‘underwriters’ within the meaning of the exemption provided by the first clause of § 4(1). Since § 2(11) defines an ‘underwriter’ as ‘any person who has purchased from an issuer with a view to the distribution of any security’ and since a ‘distribution’ requires a ‘public offering,’ the question is whether there was a ‘public offering.’ Petitioners, disclaiming any reliance on the exemption of the second clause of § 4(1) for ‘transactions by an issuer not involving any public offering,’ assert that whether there was a ‘distribution’ must be judged solely by their own acts and intention, and not by the acts or intention of the issuer or others.  In other words they claim that whether the total offering was in fact public, their purchases and resales may be found to be exempt on the ground that they were not underwriters if their own resales did not amount to a public offering.

申请人主张，就《1933年证券法》第4条第1款第一项所设豁免而言，其并不属于该条所称“承销商”。鉴于《1933年证券法》第2条第11款将“承销商”定义为“任何自发行人处购买证券并意在分销之人”，且“分销”以“公开发行”为前提，本案的焦点在于：案涉行为是否构成“公开发行”。申请人不同意适用第4条第1款第二项关于“发行人进行的不涉及任何公开发行之交易”的豁免，而主张是否存在“分销”应仅根据其自身行为与目的加以判断，而非以发行人或他人之行为或意图为断。换言之，其认为无论整体发行是否在事实上属于公开的，只要其自身的转售行为未达到公开发行之程度，仍可因不构成承销商而主张适用豁免。

In the view we take of this case we need not decide whether, if the petitioners had purchased with a view to only such resales as would not amount to a distribution or public offering, their acts would be exempt even though the issue was in fact a public offering. We find that the resales contemplated and executed by petitioners were themselves a distribution or public offering as the latter term has been defined by the Supreme Court, and we therefore find that petitioners were underwriters and that their transactions were not exempt under § 4(1).

鉴于本院对本案所持之观点，本院无须判断以下这个问题：如果申请人在购买时仅有进行不构成分销或公开发行之转售的目的，即便整体发行在事实层面属于公开发行，其行为是否仍可获得豁免。本院认为，申请人所预期并执行的转售本身即构成分销或公开发行，因为“公开发行”一词有最高法院的定义。本院据此认定，申请人属于承销商，其相关交易不适用《1933年证券法》第4条第1款的豁免情形。

In S.E.C. v. Ralston Purina Co., 1953, 346 U.S. 119, 73 S.Ct. 981, 97 L.Ed. 1494, the Supreme Court considered the exemptions provided by § 4(1). Two of its holdings are significant here.  First, it held that an issuer who claims the benefit of an exemption from § 5 for the sale of an unregistered security has the burden of proving entitlement to it. The rationale of this result applies as well to a broker-dealer who claims the benefit of a similar exemption. We therefore find that the burden was upon the petitioners to establish that they were not underwriters within the meaning of § 4(1).

在 S.E.C. v. Ralston Purina Co.中，最高法院对第4条第1款所规定的豁免情形作出阐释。其中的两个法院认定对本案判决十分重要。其一，最高法院裁定，当发行人主张未登记证券之出售情形适用第5条的豁免，该发行人应负举证责任。该结论的论证同样适用于主张类似豁免情形的券商。故本院认定，申请人负有证明其不构成第4条第1款下的承销商的举证责任。

The Court also defined the standard to be applied in determining whether an issue is a public offering. It held that the governing fact is whether the persons to whom the offering is made are in such a position with respect to the issuer that they either actually have such information as a registration would have disclosed, or have access to such information. The stipulation of facts here expressly states that the purchasers ‘were not supplied with material information of the scope and character contemplated by the Securities Act nor were the purchasers in such a relation to the issuer as to have access to such information concerning the company and its affairs.’ Such a stipulation, which from the additional stipulated facts, appears equally applicable to Gilligan, the registrant, Alter, Mooney and Mrs. Elliott, concedes the very proposition of which the petitioners had to establish the negative in order to prevail, and we therefore think it dispositive of the question whether petitioners ‘purchased with a view to distribution.’

最高法院也定义了判断某次发行是否属于公开发行的适用标准。判断是否属于公开发行的关键事实在于，被要约人相对于发行人是否处在这样一种地位，使被邀约人或实际掌握登记披露的信息，或能接触并取得这些信息。本案双方确认的事实表明，购买人“没有被提供《1934年证券法》所规定的性质与范畴以内的重大信息，且购买人相较于发行人，并不存在使其能够接触并取得证券发行公司及公司事务的信息的关系”。结合其他已确立的事实，该事实显然同样适用于Gilligan、注册人、Alter、Mooney及Elliott夫人。这些事实都导向了这样的结论，即若申请人想胜诉，就必须成功反驳该结论。故本院认为，上述事实足以判断“申请人是否系以分销为目的而购买证券”这一问题。

Petitioners argue, however, that the definition of the Ralston Purina case is not exclusive, and that there is an exception to the standard there announced for cases in which the number of offerees or purchasers is small.  In reliance on such a standard they assert that the stipulation discloses the existence of only four specific purchasers, and that therefore the Commission was bound to determine on this record that the petitioners’ transactions were exempt because the issue was not public.  We do not agree.

然而，申请人主张，Ralston Purina 案所确立的定义并非排他性标准，并称在受要约人或购买人数量较少时，应存在相应的例外情形。基于此标准，申请人认为既定事实仅披露了四名特定的购买人，因而证监会必须认定申请人的交易获得豁免，因为该交易并非公开发行。本院对此观点不予认可。

First, we think that the Ralston Purina case clearly rejected a quantity limit on the construction of the statutory term, and adopted instead the test set out above under which this issue was a public offering. It stated that 'the statute would seem to apply to a ‘public offering’ whether to few or many,’ 346 U.S. at page 125, 73 S.Ct. at page 984, and cited with approval the dictum that ‘anything from two to infinity may serve: perhaps even one’ 346 U.S. 125, 73 S.Ct. 985 and note 11.  Second, even were this not the case, and if a numerical exemption existed despite an admitted violation of the Purina standard, the stipulation adequately discloses that Gilligan well knew that the sales to Elliott’s wife and to and through the registrant were not the only sales that were contemplated. It is stipulated that ‘Elliott advised Gilligan that Elliott was going to sell as much as was left to certain of his friends’ after Gilligan took what he wanted of the $ 2,500,000 remaining after Elliott’s wife took $ 500,000.

首先，本院认为， Ralston Purina 案已明确否定以数量限制来解释原法条的解释方法，而是采用上述测试规则来判断一次交易是否属于公开发行。该案指出，“无论受要约人有多少，法条都适用于‘公开发行’”并支持如下附带论述：“从二人至无穷皆可成立，甚至只有一人也可成立”。其次，即便不按照上述理解，如果在已承认违反 Purina 标准的情况下仍存在某种数量上的豁免，本案事实也充分表明Gilligan明知向Elliott夫人以及通过注册人所为之出售并非计划中的全部出售。事实确认，在Elliott夫人认购500,000美元、且Gilligan可从剩余2,500,000美元中认购其欲求部分后，“Elliott告知Gilligan，其将把剩余部分尽可能出售给一些朋友”。

Thus these petitioners, who now assert an exemption based on the small number of resales that they contemplated and made, were admittedly aware that the actual placement involved many others.  At the least, to establish entitlement to any numerical exemption in such circumstances, the petitioners would have to establish a reasonable and bona fide belief that the total number involved in the placement would remain within the exemption. Otherwise although a general public placement could be effected by a series of transfers to small numbers of buyers, each distributor would be entitled to an exemption on the ground that it transferred to only a small number of buyers. The stipulation reveals that without any knowledge of the actual number of sales then consummated or contemplated the petitioners effected what they now claim to be a harmless number of resales. Such a record does not require and would not justify a finding that the petitioners had sustained their burden of proving entitlement to an exemption based on the size of the contemplated distribution.

因此，申请人如今以将要进行的转售数量较小为由主张豁免，但其显然知晓实际上还有许多其他的转售。至少，在此情形下，要想通过数量来主张豁免，申请人必须证明其合理、善意地相信，全部证券销售都处在豁免范围之内。否则，即使一整个公开发行将受到一系列地转让给少数买家的影响，每一个单独的分销者均可单纯因为买家数量较少而分别主张豁免。既定事实显示，申请人在不知晓当时实际已完成或计划完成的出售数量的情况下，实施了所谓的无害的少量转售。这些事实不足以支撑这样的结论：申请人实现了基于计划分销的数量而取得豁免的举证责任。

The petitioners separately attack the finding that the registrant was an underwriter on the ground that the stipulation reveals that Gilligan agreed with Elliott that Gilligan would take the $ 100,000 for his own account and thus it requires the conclusion that the registrant did not participate. But the stipulation also reveals that Will received the debentures on behalf of the registrant and also on its behalf issued an investment intention letter, and that $ 5,000 were placed in the firm trading account. On such facts the Commission was justified in concluding that the registrant participated in the acquisition and distribution of the unregistered issue.

申请人还对证监会关于注册人构成承销商的认定提出异议，因为事实表明Gilligan与Elliott协商同意，由Gilligan用他的个人账户购买100,000美元公司债券。申请人据此得出此次交易没有注册人参与。然而，事实同样表明，Will以注册人名义接收债券、出具投资意向函，且其中的5,000美元债券被记入公司交易账户。基于上述事实，证监会认定注册人参与了未登记证券的认购与分销，并无不当。

The Commission also found that ‘The sales by Gilligan and registrant of the underlying common stock on the American Stock Exchange in May 1956, clearly constituted a public distribution.’ Petitioners contest this conclusion on the ground that since the conversion and sales occurred more than ten months after the purchase of the debentures the Commission was bound to find that the debentures so converted had been held for investment, and that the sales were therefore exempt under § 4(1) since made by a person other than an issuer, underwriter or dealer. Petitioners concede that if such sales were intended at the time of purchase, the debentures would not then have been held as investments; but it argues that the stipulation reveals that the sales were undertaken only after a change of the issuer’s circumstances as a result of which petitioners, acting as prudent investors, thought it wise to sell. The catalytic circumstances were the failure, noted by Gilligan, of Crowell-Collier to increase its advertising space as he had anticipated that it would.

证监会还认为：“Gilligan和注册人在1956年5月在美国证券交易所作出的普通股交易行为，明显构成公开分销。”申请人对此结论提出异议，因为公司债券的转换、销售发生在购买债券的10月之后，证监会必须认定上述债券系投资目的而持有，且相关交易并没有发行人、承销商、券商经手，因此应当适用第4条第1款的豁免情形。申请人承认，如果对外销售意图在购买债券时就存在，那么这些债券便不是因投资而持；但申请人主张，事实已经证明，该出售系因发行人情况变化后才决定作出——申请人作为谨慎的投资者，认为出售是明智的决定。促使这一决定的原因：Gilligan注意到， Crowell-Collier没能如预期那样增加广告版面。

We agree with the Commission that in the circumstances here presented the intention to retain the debentures only if Crowell-Collier continued to operate profitably was equivalent to a ‘purchased with a view to distribution’ within the statutory definition of underwriters in § 2(11). To hold otherwise would be to permit a dealer who speculatively purchases an unregistered security in the hope that the financially weak issuer had, as is stipulated here, ‘turned the corner,’ to unload on the unadvised public what he later determines to be an unsound investment without the disclosure sought by the securities laws, although it is in precisely such circumstances that disclosure is most necessary and desirable. The Commission was within its discretion in finding on this stipulation that petitioners bought 'with a view to distribution' despite the ten months of holding.

本院同意证监会观点，即在本案情形下，“仅当发行人持续盈利时才保留债券”的持有意图，等同于《1933年证券法》第2条第11款的“以分销为目的而购买”。如果不这样理解，将导致交易者可以投机地购买未登记证券，祈祷财务薄弱的发行人“度过难关”（如本案既定事实所说的那样）。其后，如果发现这项投资并不能带来稳定收益，交易者便可以在不告知公众、不做证券法下的公开披露的情况下，将这一不明智的投资的风险转嫁给不知情的大众——即使恰是在这样的情形下，披露是最有必要、最有价值的。故，证监会依据事实认定申请人“以分销为目的而购买公司债券”，仍属其裁量范围之内——即使二者中间有十个月的窗口期。

It is unnecessary, in the light of our decision sustaining the findings of the Commission as to violations with regard to the 1955 debentures, separately to consider the violations of § 5 found by the Commission as to the issue in 1956. Finally, on the stipulation there is no doubt either that the Commission was justified in finding that the petitioners’ acts were ‘wilful’ within the meaning of § 15(b) of the Securities Exchange Act of 1934 or that the penalty imposed was within the Commission’s discretion.

鉴于本院已维持证监会就1955年公司债券相关违法行为所作的认定，无须再就证监会针对1956年发行所认定的第5条违反行为另行审查。最后，就既定事实而言，毫无疑问，证监会有合理的理由认定申请人行为构成《1934年证券交易法》第15条第b款意义上的“故意”，也即证监会所实施的处罚处于其自由裁量范围之内。

The petitioners raise the additional objection that they were denied the kind of hearing which they are guaranteed by the due process clause of the Fifth Amendment and § 5 of the Administrative Procedure Act, § 5 U.S.C.A. 1004, in that Commission prejudged their guilt in advance of the hearing.  It is undisputed that the Commission issued a press release on August 12, 1957, three days after its order commencing these proceedings was issued, in which it stated that the brokers-dealers involved in the distribution of the unregistered Crowell-Collier debentures and stock had violated § 5 of the Securities Act of 1933. While the petitioners were not mentioned by name in the release, it is undisputed that it referred to them, among others.

申请人还提出了一项异议，称其未能获得宪法第五修正案正当程序条款及《行政程序法》第5条保障的听证类型，因为证监会在听证前已预先断定其有罪。确无争议的是，证监会于1957年8月12日在作出命令之后的三日发布新闻稿，其中声明，参与分销未登记的Crowell-Collier 出版公司之债券与股票的券商违反了《1933年证券法》第5条。尽管新闻稿未点名申请人，但显然所涉对象包含申请人及其他相关人员。

We agree with the Commission that the failure of petitioners to assert the defect of prejudgment before the Commission once the release was available to them amounted to a waiver of the objection under § 25(a) of the 1934 Act, § 15 U.S.C. 78y, which provides that no objection to the Commission’s orders shall be considered by an appellate court ‘unless such objection shall have been urged before the Commission’ or unless there were ‘reasonable grounds’ for failure to do so.  No reason is given by the petitioners for their failure to object during the proceedings below.

本院同意证监会的观点，即申请人在知晓新闻稿的情况后，未向证监会主张“预先裁断”这一程序瑕疵异议，即构成对该项异议权的放弃；依据《1934年证券交易法》第25条第a款，上诉法院不得审理任何针对证监会命令的异议，除非该异议“已在证监会程序中提出”，或未能及时提出异议是因为某些“合理理由”。申请人并未就其在下级程序中未提出异议给出任何合理解释。

The petitioners have relied here on the refusal of Commissioner Sargent to participate in the proceedings on the ground, which he stated in a separate opinion, that he had reached ‘a definitive conclusion of law upon findings of fact on August 12, 1957, which antedated the institution of these proceedings,’ as a result of his participation in the release.  While we of course express no opinion on the correctness of Commissioner Sargent’s assertion that 5 of the Administrative Procedure Act does not permit such participation as occurred here by the Commission itself in both the release and subsequent proceedings, we think it appropriate to express our doubts whether such participation was either necessary or desirable.

申请人此次主张依据了这样的事实：Sargent委员拒绝参与本案程序，因其在单独意见中称，由于其参与上述新闻稿发布，其已于1957年8月12日（早于这些程序启动之日）“在事实认定的基础上得出了明确的法律结论”。本院当然不会就其所引述的《行政程序法》第5条（是否允许证监会既参与发布新闻稿、又参与后续程序）的观点予以评价，但本院依旧认为，有必要表达本院之疑虑——这种行为是否必要、是否可取。

Apart from § 5 and the restrictions it may impose, the Commission’s reputation for objectivity and impartiality is opened to challenge by the adoption of a procedure from which a disinterested observer may conclude that it has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.  There would appear to be no such conflict between the Commission’s duty to inform the public and its duty to prosecute as would necessitate the use of press releases of the kind here questioned.

抛开第5条及其可能施加的限制不谈，如果证监会采取一种程序，使得无利害关系的旁观者可以合理推断出，证监会在听证之前已在一定程度上预先判定了某一特定案件的事实与法律依据，那么证监会以客观公正著称的名誉将受到一系列的挑战。目前看来，证监会向公众告知的义务与其作出命令以执法的义务之间，并不存在必须借助本案涉及的这种新闻稿才能解决的矛盾。

The order of the Commission is affirmed.

本院支持证监会对当事人作出的命令。