*1 Carpet Company Sweeper v. Shane Bissell

Company, Inc. Rehearing 29,327. May denied Filed [No. September 17, 1957.] *2 Landman, Jr., Feibleman, Bernard B. Bam- Charles (of counsel), berger Indianapolis, & Feibleman all of appellant. for

Rockford, Indianapolis, Rockford, for Blackwell & appellee. Rothwell, Melvin, Gary,

Richard S. A. Thomas Chicago, (of counsel), Illinois American Fair Trade Council, Inc., Manufacturing Corp., Indiana Hamilton Assn., Company, Retail Hardware Bend Bait South Magnavox Company, Company and The Anderson Company, Inc., Pinex Amici Curiae. Lawton, Dierberger, Stanley Wesley H.

R. A. Alan Lobley Ross, McCord, (of counsel), Miller Ice & Company, Indianapolis, all of for General Electric Amicus Curiae. judgment appeal is an J. This

Emmert, plead entered for appellant failure of to amend and over after a demurrer had been sustained to com- its plaint.

Appellant, Michigan alleged corporation, its complaint it carpet sweepers, manufactured which had *3 thereon its Carpet Sweeper trade-mark “Bissell Com- pany,” competition which were open sold in in Indiana “with general merchandise the produced same class by others”; appellee engaged that was in the retail city business in Indianapolis; the of appellant that had entered voluntary into contracts with certain re- including Co., tailers pursuant H. P. Wasson & to the Indiana Fair Trade Act which established minimum prices throughout carpet sweepers for its state; the appellee that the did any not execute “such contract to establish such prices,” minimum resale but prior filing to the complaint appellant gave of the writ- ten appellee notice that such contracts were in existence, appellee wilfully but knowingly offered for sale carpet sweepers and did sell the at less than the minimum by established appellant’s contract, and that any sale did not come within exceptions provided for in of the Fair Trade Act. §5 The demurrer questioned for want of facts the consti- powers tutional Assembly of the prohibit General appellee selling Carpet Sweepers Bissell at less than price by appellant established with its retailers. Act,

The Fair Trade (§66-301 ch. 17 1937 Acts §66-309, Burns’ Replacement), limited to using commodities a trade-mark, name, or brand producer distributor, open and sold in free and competition with general commodities of the same class produced or by 66-302, distributed others. Section Burns’ Replacement, declares valid contracts be- tween a buyer, seller and a or a of contracts series between buyers successive sellers and for sale at whole- retail, sale requiring the ultimate retailer to contract not to sell the commodities at less than the fair trade price original established seller. A could sell to contracting B Bwith he would not sell at retail below price by A, contracting fixed B or with that if he sold require to retailer C he would aC contract sell A, retail below the fixed ifor C sold to resale, D require for provision he would of D a similar A, for the benefit who minimnni would fix the retail price. Thus, required fair trade of the ulti- mate retailer by contract, could be established or a subsequent series contracts benefit of the establishing first price. seller the fair trade The ulti- mate contract, retailer would be bound because his and not because a he statute said should be bound when he did not consent. *4 price fixing

The by authorized this section is some what similar to the factual situation in Dr. Miles Medi Co. v. Park cal & Sons Co. 220 U. S. Court, by 55 L. opinion

S. Ct. Ed. 502. The in an saying by Hughes, Mr. Justice the contracts summarized by interlocking they provided system restrictions “a complainant merely the to not seeks control prices agents at may products, which its sell its but the retail, by for all sales all dealers at wholesale or purchasers sub-purchasers, whether to or and thus fix eliminating pay, the amount which the consumer shall competition.” (220 399.) all at The held U. S. Court the contracts were an of trade both invalid restraint Act Anti-Trust common law and under the Sherman July 2,

It is Assembly within to General change Indiana, except the common rule in law fixing price by

fair trade contracts between buyers provisions from the sellers various the restraint of trade acts of this state. Miller-Tydings (15 §1) Act of 1937 U. A. S. C. amended the Sherman Anti-Trust Act and the Federal fixing price Trade Act make lawful Commission they commerce if lawful in contracts interstate were Schwegmann intrastate commerce. In Bros. Calvert Corp. (1951), Distillers 341 U. S. 71 S. Ct. fixing by compulsion price Ed. held 95 L. was clearly by noted the Act. Court not validated was language: following by the the distinction If and one or more retailers “. . . a distributor agree, combine, conspire or to fix mini- want to price, they permits. can so if mum Their do state law combination, conspiracy contract, —hither- illegal They made can minimum lawful. fix —is agreement prices pursuant contract or their seek, however, they impose impunity. price When fixing persons on who have not contracted or the situation agreed scheme, vastly to the dif- is fixing ferent. That not is agreement; compulsion. that is That following path agreement; of consensual *5 (341 at resort to coercion.” U. is 1045.)1 L. at Ed. appellant action on its cause of §6 Bissell bases Act,

of the Fair Trade which states: “Wilfully advertising, offering knowingly and selling any for commodity sale or at than the less price stipulated any pur- contract entered into suant to provisions of this act [§§66-301— 66-309], person advertising, offering whether the so selling for sale or party is not to or is such contract, competition is unfair actionable at is any person damaged thereby.” suit Section 66-306, Replacement Burns’ 1951 ch. [Acts p. §6, 53]. complaint alleges specifically appellee Shane party was not a any to price. contract fix the retail allege It fails to from whom purchased Shane sweepers they purchased. when were For all that alleged, was purchased Shane could have them in Michi gan price fixing illegal. where fair trade is Shakes peare Lippman’s Shop Sporting Co. Tool Co. Goods (1952), 268; Argus 334 Mich. 54 N. 2dW. Cameras (1955), v. Distributors 343 Mich. N. 72 W. 2d 152. position

Appellant’s wilfully knowingly is that selling offering sweepers for sale Bissell’s by fixed less than Bissell after notice of contracts Supp.) (15 A., §45, McGuire of 1952 U. S. C. 1. The Act trade made in interstate commerce state fair fix- lawful persons parties ing imposed law state on if the be under Resale Price restriction valid state law. See Chicago (1954), Maintenance Rev. 175-211. For review tionality Carl H. Fulda 21 U. of Law Bates, state decisions see Constitu- State Fair Trade Acts 32 Ind. L. J. 127-149. party Bissell entitled not a Shane was relief.2 judgment liberty

We are not at our substitute Assembly that of the General as to whether good of the state. or bad for the economic life Conceivably, depression the in a time of benefits might disadvantages, outweigh while may prosperity inflation. converse be true in a time of *6 separation powers But the Indiana Constitution on vesting right and the of the enact laws in the to General meaning Assembly may the same whatever have be or economic conditions State. business right utility rate, to fix a which is ex rel. Evans legislative State service, for the a is act. Rawlings (1951), 552, ville etc. 99 Lines v. 229 Ind. 597, N. E. cited. After 2d and authorities therein Legislature just be has enacted that the rates delegate reasonable, it can to an com administrative finding charge duty a would mission fact what just reasonable, be does not but the commission operates on the facts found make a law. The law a proper and after the commission under standards legislative hearing. The rate in character is because future, and binds both the util makes a rule for they ity and the whether consent users its services (1908), 211 Line v. Atlantic Coast Co. Prentis not. 150; Chicago, etc. R. 67, 210, 29 Ct. 53 L. Ed. U. S. 643, 630, (1911), Ind. 95 Comm. 175 v. Railroad Co. Tel. Co. (1930), Indiana Northwestern 364; In re N. E. provided: signed by H. P. & Co. 2. “We will Wasson bearing sweepers Bissell’s trade-marked not sell applicable the of such sales. Pair Trade minimum model at less than names (See prices other retail the time side prices present price subject Pair minimum retail are list. Such Trade election.) (This change by paragraph Bissell at its agreements apply any place where Pair Trade are not does not law.) permitted by

195 Legislature 201 Ind. E. 65. Both the 171 N. sovereign power the commission exercise a government. fortiori, §66-306, Replacement,

A 1951 Burns’ legislative enough power fix broad to vest a says private persons. But the Constitution Legislative authority “The be of the State shall Assembly in the ...” Article vested General legislate power Section 1. The or to exercise legislative delegated a non function cannot be governmental agency person. Tucker State v. (1941), Nor 614, 697, 698, 218 Ind. E. 2d 270.3 35 N. Legislature law-making delegate can the its governmental officer, board, bureau or commission. Langenberg (1892), 471, 479, v. Decker 131 Ind. 31 108; (1900), E. Beach 155 N. L. R. A. Blue v. 64; Sarlls, 121, 133, Ind. A. Clerk 56 N. E. 50 L. R. 88, 110, 166 (1929), Ind. v. State ex rel. Trimble Housing 718; Au Edwards v. N. E. 67 A. L. R. 330, 339, thority City (1939), 215 Ind. Muncie 741; Cory. N. E. 2d Aid Financial v. Wallace 114, 120, 472; Hollingsworth Ind. 23 N. E. 2d *7 373, (1940), Board Barber Examiners Ind. State 217 64; 377, Kirklin v. Everman 28 N. E. 2d Town of 693, not (1940), 683, 29 E. 2d 206. are Ind. N. We 217 upon places an official concerned with a statute which Legislature, by or duty made to execute a law a rate, price fair a reasonable the law fixes where agency governmental charge delegates to a and fair fact what is reasonable power to find as a “ may Legislature . . but it unthinkable that have 3. . part sovereign power agency in some discretion outside the vest up by government, as set established Consti (1941), 614, 697, tution.” Tucker v. State 270. 218 Ind. 35 N. E. 2d

196 proper

under Milk standards. See Albert v. Control (1936), 283, 300, Board 210 E. Ind. Ind. 200 N. goes 66-306, Replacement, far Section 1951 Burns’ beyond competition codes of fair authorized (15 703). In National Industrial Act of 1933 U. S. C. Corp. 495, (1935), Schechter v. United States 295 U. S. 837, S. Ct. L. Ed. 97 A. L. R. Code Competition Poultry Industry of Fair for the Live Metropolitan Area of York held unconsti- New was Congress tutional because could not abdicate its law- making power to a trade association or to the President. prescribed any trade, No industry standards were for activity. It laid no down rules for administrative finding. fact Mr. Justice Cardozo noted was “dele- this gation running riot.” Trade Act Section of the Fair requirement governmental by any any has no action public binding officer to price establish a coercive on any seller covered the act. Seagram Corp.

The decision in Old Dearborn Co. 299 U. 81 L. Ed. 57 S. Ct. A. L. R. has been cited in other states for the legis proposition attempt that fair trade do not acts fixing by private persons. lative 1 of the Section Act was similar to of the Indiana Act and Illinois §2 parties to contract for vertical authorized original to the ultimate retailer. seller Con cerning part of the Illinois Act the court said: this “ attempt section . . It is clear this does . delegate prices, nor does it such

to fix private persons. persons designated permits private It respect It to contract with thereto. con legalizes compulsion simply no element of but tains their leaving acts, them free enter into the au they may thorized contract or not as see fit. Thus

197 open objection; far, plainly the is not act 192.)4 (299 U. made.” at none to be S. seems carefully supra, Case, the court In the Dearborn validity the Illinois the any excluded determination a case in Amendment Fourteenth under the statute ignorance of goods in purchased the the where retailer 5 an the From examination of fair contract. the trade by opinion and the opinion, in this as stated facts Corp. Seagram v. Old in of Illinois Supreme Court 940, the 610, 2 E. 2d N. (1936), Ill. 363 Co. Dearborn whiskey Co., purchased the retailer, Dearborn Old required was knowing the wholesaler a wholesaler prop- recognized general owner oí rule the 4. The court accept. price right erty it he will has the to sell at respect clause, process In “First. of the due con law law, price-fixing that is a tended of the-statute which has effect denying property right the owner of for determine Appellants himself the will sell. at he invoke general principle right well-settled the owner of property an fix the which he will sell it is inherent property itself, pro attribute of the such is within the Tyson & tection Brother v. the Fifth and Fourteenth Amendments. Banton, 418, 429; 273 U. Co. v. Industrial S. Wolff 537; 350; Court, 522, McBride, 262 U. Ribnik v. 277 U. S. S. Co., 235; v. Williams Standard Oil 278 U. S. New State Ice Co. Liebmann, that, 285 U. cases with certain These hold exceptions, owner cannot be denied and referred to deal right forth, not this which need now be set legislative prices enactment compelling such owner But the decisions to adhere to them. They only price fixing. legislative consti authority holding respect tute no goods of ‘identified’ may legislative fixed under between not be leave parties. infringe the The Illinois Fair Trade Act does Seagram Corp. doctrine of cases.” Old Dearborn Co. v. these (1936), 183, 191, 192, L. Ed. 106 U. S. 57 S. Ct. A. L. R. 1476. upon 5. “We are not called to determine the case of one who purchase ignorance has made his of the contractual restric- upon price. selling Seagram tion . . .” Old Dearborn Co. v. Corp. 299 U. S. 57 S. Ct. 81 L. Ed. A. L. R. 1476. *9 to obtain fair trade contracts for its sales to retailers.6 said, Supreme “Here, restriction, already Court the imposed knowledge appellants, with the ran with acquisition (299 194.) the and conditioned it.” U. atS. Although opinion it, the did not take note the Old committing inducing by a Dearborn Co. in fact tort was Seagram Corp. a a breach of distributor’s contract Restatement, Prosser, also Handbook Torts See §766. of the Law Torts Ch. §104. Legislature It is within the to declare such inducement a competi breach contract unfair §66-806,

tion and actionable. In far so as Burns’ Replacement, this, it authorizes is constitu- duty tional. The breached was one created by legislative fixing parties the act of a two contract binding goods upon every retailer the whether inducing or not he he the knew was a breach of con- goods tract, purchased or whether or not he obligation require a fair trade one under no contract particular facts contract from the retailer. Under case the court held the Old in the Dearborn Co. Old complain the Fourteenth that Dearborn Co. could not injunction prohibited it. Amendment appeal complaint But in the at and the con bar anything attempted fail to show more than tracts Seagram pro- 6. The contracts between and its distributors require “Third. Distributor will vided: from each Retailer may any beverages agreement, whom he sell such a written upon by [Seagram], forms furnished the Owner that such Re- resell, advertise, tailer in turn will not or offer for sale the beverages prices stipulated said time below minimum from time to Record, Owner resale thereof to Consumers.” Printed Sup. S., pp. Ct. of U. 18-19. “Appellant party was also a to breaches of other fair trade appellee Ibid, contracts between and certain distributors. . . .” 299 U. S. 187. legislative by a contract between manufacturer and various retailers in the State Indiana, allegation appellee with no that Shane sweepers ever entered into a contract to sell the prices, fair trade or that induced breach party, contract between that Bissell and another goods state, acquire Shane did not in some such Michigan, are held in where fair trade contracts such restraint of trade complaint and void. The upon rests proposition private parties by naked binding upon everyone can make law who retails goods urged manufactured It Bissell. give the Fair Trade Act no more than does an additional *10 right property in a trade-mark. if But this is to be done, accomplished pursuant it must be to the Indiana right Assembly Constitution. The General has no legislative private power persons, nor abdicate its delegate governmental agency could it the even to a might price a without find what be reasonable safeguards proper process.8 procedural due and might necessary It not here to decide what be subjects legislative fixing proper for under reasoning in of the Indiana Constitution. And view unnecessary opinion, to determine it this becomes Act of the Fair Trade whether construction §6 expansion regula- 8. “The vast of this field of administrative response pressure tion in under our possible to the of social needs is made by system principles adherence to the basic legislature ministrative appropriately shall determine the standards of ad- proceedings action and that in administrative of a quasi-judicial liberty property character and of the citizen protected by rudimentary requirements play. shall be These of fair open hearing,’ demand ‘a fair and alike —essential legal validity regulation of the administrative and to the mainte- public nance of confidence in the value and soundness of this important governmental process. hearing a Such has been de- ” safeguard.’ Hughes scribed as an ‘inexorable Morgan 773, 775, Chief Justice 1, 14, 15, v. United States 304 U. S. 58 S. Ct. 1129, 1130, 82 L. Ed. urged (§66-306, Replacement) Burns’ Bissell Act,9 title therefore would be without Constit under of Article 4 of Indiana void §19 uton.1 Assembly Act, By has the General Fair Trade law, acts as well as common removed the ban of the monopolies concerning of trade restraints agree- fixing by prohibited vertical sellers, buyers and ments contract between advantage of the Fair Trade he take but who seeks to con- a action on breach his Act will have his base benefit, tract, made his or a breach contract. a of such of breach on tortious inducement was the demurrer complaint do, and did not This the properly sustained.

Judgment affirmed. separate opinion J., Bobbitt, specially concurs with J., Arterburn, Achor, J., concur. C. in which J., opinion. Landis, dissents

Concurring Opinion Judge J. I the result Emmert’s concur Bobbitt, reasoning pertains to the opinion and with his buyers and sellers contract between parties to are such contracts. who reasoning pertain- However, I do concur in his *11 owners, protect is: “An act trade-mark 9. The title general public injurious producers, and the distributors competitive practices in the distribution of com- and uneconomic trade-mark, distinguishing name, bearing a brand or modities through voluntary establishing use of contracts the minimum providing prices for and refusal to sell unless such mini- resale prices are mum resale observed.” subject act, any 10. “. . . But if shall be embraced in an title, expressed in such be which shall not be the act shall void expressed only much as shall not in the as to so thereof be title.” Art. Indiana. Constitution Section ing provisions to certain Section of the Fair Trade Act. following appears Judge statement Emmert’s

opinion: Assembly right “The General has no to abdicate legislative power private its persons, nor could delegate governmental

it even to a agency power the to proper safeguards might find what price be a reasonable without procedural process.” and due I do not want to be understood concurring in, lending any support to, the inference must, my opinion, necessarily be drawn from language, this Legislature the power has the delegate to a Agency, State Board or Commission authority to fix of carpet sweepers any commodity other of trade or open commerce on the market. my

In opinion Legislature does not have power to fix carpet at which sweepers may be Indiana, sold in and it must follow that it cannot lawfully delegate authority governmental such to agency, “safeguards even proper procedural and process.” Dept. due Holt, Financial Institutions etc. 303-304, Ind. 108 N. E. 2d 629. is, course, true, It as stated opinion, in the utility legislative of a rate act; and that Legislature can, does, delegate to an adminis- authority trative commission the public utility fix rates within bounds certain standards set Legislature. However, it does not follow that the source power authority such also furnishes the to fix stand- delegate for, to, ards an administrative commission general authority fix commodities of trade and commerce. Legislature regulate to fix derives its

utility fact are rates from the such businesses property public and their is affected with interest public power inherent in the is devoted use. Such having sovereignty, its of and is an attribute State origin police power. in the regulation supervision public and of utilities Legislature designed missing supply is ele competition protects public of

ment charges competitive Public excessive businesses. Indiana, Telephone Bell Co. Commission Service (1955), E. 2d 481. reason 285 Ind. 130 N. Such regulation fixing) supervision (price is not and open competition in a business present where there is carpet sweepers. and sale of as the manufacture such right engage of an individual to in a lawful busi- disposes to fix the at ness and which he his own right “liberty property part of his inalienable guaranteed by pursuit happiness,” and is and Federal both our State and Constitutions.1 power Legislature The lack constitutional delegate be, to fix law or such must distinguished right case, Legis- from the in this of the contracting powers lature to broaden the of individuals permitting corporations, them to enter into thus agreements prices. multiple to fix At common law such they public policy because were contracts were monopolistic and in of trade. The restraint considered policy State, Legislature public determines the statute, power may, by exercise of this in the enlarge change law and modify the rule common powers of individuals and cor- scope contractual porations. 2, p. 127, Vol. No. Ind. L. J. for a See com- Constitutionality

prehensive discussion of the of State Pair Trade Acts. judgment I affirm the of the trial court. would Achor, J., Arterburn, J., concur. C. Opinion

Dissenting agree opinion J. I cannot Landis, *13 by Emmert, J., the Fair holds court written delegation Trade an unconstitutional Law of Indiana is infringement process legislative of due of an and 1, of 4, the Article in violation of and §12 Article §1 Indiana Constitution. view, opinion, my means that we have one

theory powers separation process of and due under of and different and distinct the Federal Constitution process powers due under separation of of and doctrine the Indiana Constitution. language employed in two the constitutional purposes, is identical for our the Constitu

documents providing of the United and of Indiana tions States legislative powers: separation of respectively toas congress,”1 legislative powers . . . shall be vested “All authority Legislative . . . shall be “The nd a 3and Assembly.”2 (Emphasis in the General vested expressions process of Similarly, “due added.) “due course and the U. S. under Constitution4 law” been con have Constitution5 the Indiana under law” interchangeably.6 import and used of like sidered of Constitution of the Article Article United States. §1 1. of Indiana. Constitution §1 2. “power” between the There is no distinction words 3. provisions “authority,” pur- constitutional for our two entirely synonymous. poses here are Webster’s New Interna- Edition) Dictionary Unabridged, p. 1936, (Second defines tional general, authority, capacity, “power” as “Law. In follows: authority right right; esp., . to do or . . forbear derived person another . . . .” one Amendments, Fifth and 4. Fourteenth Constitution of the United States. 1, §12, 5. 6. Constitution Article of Indiana. (1936), v. See: Albert Milk Control Board Ind. 210 Ind. 200 N. E. 688. 204 opinion

To consider the cited in authorities court, places we note the court first reliance on the 1911 decision of Dr. Park Miles Medical Co. & Sons Co. 31 L. U. S. Ct. Ed. which held the contracts there involved restrictive illegal be an trade the common law restraint under Everyone and the Sherman Anti-Trust Act of early concedes conflict between Fair Trade and trade, similarly everyone restraint of now concedes Miller-Tydings conflict that such was removed (at contract-signers) Act of 19377 as to least as to in interstate commerce. The Indiana Fair matters 8 similarly Trade Act the Indiana amended Act of so as to remove conflict Anti-Trust with restraint of trade within state. supra,

Any case, application Dr. Miles by statute. us therefore been removed case before has opinion of the court *14 upon case in the next relied similarly inapplicable has been rendered ineffective and subsequent Schwegmann It a Bros. statute. v. Corp. 745, 384, Calvert U. S. Ct. 95 341 S. 71 (hereinafter L. Ed. 1035 referred to as the first Schwegmann case), decided which that Fair Trade non-signer provisions contracts in were violation laws, Miller-Tydings of federal since the anti-trust Act providing exemption of from 1937 anti-trust laws did non-signer apply to provisions. not This statu- tory deficiency Miller-Tydings shortly of the Act was afterwards remedied the McGuire Act of 195210 A., 15 S. C. 7. U. §1. Statutes, seq., 8. Burns’ Indiana Replace- §66-301 et 1951

ment, 17, being Acts eh. §§1-10. Statutes, §23-101, Replacement, Burns’ Indiana being 104, §1, p. 159, seq. Acts of eh. et A., §45, Supplement. 10. 15 S. U. C. specifically agreements exempting from Fair Trade signers non- federal anti-trust laws both and as to signers, the case opinion the court in at bar of considering a In in footnote.11 first concedes this Schwegmann case, supra, be noted it should also any specifically constitutional discuss such case did not questions.12 unquestioned landmark case in the federal courts constitutionality the Fair Trade is Old Dear

on Seagram Corp. (1936), 299 U. S. S. Co. born L. R. 81 Ed. 106 A. involved L. Ct. of Illinois. Fair Trade Act appellee Seagram, corpora- In that a Delaware case beverages in tion, in alcoholic was wholesale dealer liquor in stores Appellant operated four retail Illinois. whiskey any purchase Chicago, but did not powers controversy appellee. Appellant’s charter and retail. both included sales at wholesale challenge In the Old Dearborn was directed case provided act which wil- Illinois §2 advertising, offering knowingly sale, fully any selling any commodity stipulated in than at less person doing act, whether under the contract made contract, constitute party shall or is so is right competition, giving of action in rise to a unfair damaged anyone thereby. In Old Dearborn favor liability part was no contractual on there shown Supreme appellant, and the U. Court a unani- opinion 1 of in case at footnote court bar. 11. See Appeals opinion Court to this effect in: 12. See: Circuit *15 Lilly Schwegmann Super Mkts. v. & Bros. Giant Eli Co. 788, (cert. Cir., den.) A. 5th 205 F. 2d 346 U. S. C. Ct. 74 S. 369, (reh. den.) 346 U. 98 L. S. 74 S. Ct. Ed. Schwegmann (hereinafter L. Ed. 404 to as the second referred case). opinion by upheld mous Mr. Justice Sutherland constitutionality Act, Trade as the Illinois Fair process contentions that Act due violated delegation legislative power. was an unlawful majority opinion attempts

The in the us case before distinguish to of Old from the facts Dearborn case at bar. in evidence Old Dearborn indicated Old purchased Company whiskey in

Dearborn some of the controversy persons from under Trade Fair contract others, whiskey persons from purchased also signatories Any not attempted such contracts.13 dis- point tinction case at bar on this incon- appear us, it did not clusive as in the case before where appellee question. Shane obtained the merchandise majority observation of the in the case us before although that, Supreme the U. “did S. Court not take it,” note of committing Old Dearborn in fact “was by inducing tort a breach of a contract distributor’s Seagram Corporation” attempted is an limitation upon Old sufficiently Dearborn a basis that did impress Supreme express U. S. Court for it- subject. only self on the procure did Not Old Dearborn signers whiskey non-signers, from contract so as preclude any possibility of induced an breach latter, but as even to the former we arbitrarily say cannot there was a tort committed parte can ex Old Dearborn. Before we conclude inducing Old committed torts breaches Dearborn case, note contract not issue in that we should many may where a defendant there are situations be Court, Supreme Record, Abstract U. 13. See: Printed 1, pp. Vol. Part *16 207 legally privileged a induce breach contract and thus not be answerable in tort.14 majority’s attempted limitation Old Dearborn inducing liability a cases contractual tort is entirely

strained construction of case and unwar- ranted.

The N. R. A. Schechter case15 relied on the ma- jority opinion, and decided Supreme the U. S. Court prior Dearborn, to the Old did not involve Fair Trade inapplicable question delegation pow- and is to the ers under the before facts us this case.

The next case in involving the federal courts Fair Trade after Schwegmann Old Dearborn Bros. v. Corp., supra (the Schwegmann Calvert case), first previously which has superseded been treated. It was passed (excepting the McGuire Act in 1952 Fair agreements Trade anti-trust as to federal laws signers non-signers), both and thereafter sec- example, 14. present, existing For a if defendant has eco protect, ownership nomic interest property, in such as the or condition of prior own, or a contract of his or a financial interest person persuaded, privileged prevent the affairs of the he is performance of the contract of another which threatens it. See: (1929), Harr., v. 207, 291; Diver Miller 4 W. W. 34 Del. 148 A. Telegraph (1911), 598, O’Brien v. Western Union Co. 62 Wash. 441; University Bldg. 114 P. Winters v. Dist. & Loan Assn. (1932), App. 147; 268 Ill. (1940), Meason v. Ralston Purina Co. 291, 224; Soc., 56 Ariz. Aplnt. 107 P. 2d T. B. W. & T. v. Dougherty (1940), 286, 147; et al. 337 Pa. 11 A. 2d Owen v. (1948), 356, 318, Williams 322 Mass. 77 N. E. 2d 9 A. L. R. 2d 223; Corporation (1927), Tidal Western Oil v. Tex. Shackelford App., 279; (1937), App. Civ. 297 S. v. W. Williams Adams 250 603, 86, 653; Quinlivan Div. 295 Y.N. S. 275 N. Y. v. Brown (1934), 147, 374; Oil Co. et al. Cas. Co. v. Ins. Ex. 96 Mont. P. 29 2d Millers Mut. Bldg. Corp. (1920), 12; App. et al. 218 Ill. (1919), 634, White Marble Lime Co. v. Lumber Co. 205 Mich. 603; (1942), Cir., 172 N. 129 F. 2d Ford E. W. v. C. Wilson & Co. C. A. 2d 614; Knapp (1932), v. 143 Misc. 256 N. Penfield 41; Kinney (1929), Y. Co. v. 105 N. J. L. A. Aalfo 715; (1937), App. 16, 774; Petit v. Cuneo 290 Ill. E. 2d N. Morgan (1895), v. Andrews 107 Mich. 64 N. W. 869. Schechter United States 295 U. S. 55 S. Ct. L. Ed. 1570. validity Schwegmann upheld Mc- ond case16 non-signer Trade Act with Act and the Fair Guire they contentions that violated provisions delegated legislative power unlawfully process and due private individuals. Schwegmann pp. case stated in second As 205 F. 2d: 792 of weakening effect on Dearborn Old “Whatever *17 Schwegmann’s by

may have caused [the been Schwegmann frank characterization case’s] first involving price fair trade statutes of State off-set, non-signers fixing against is more than weakening us, by of the broad the also it seems against validity legislative price concept the of fixing For ‘the well- in Old Dearborn. assumed right the owner general principle the of that settled it at he will sell price which property of is as to fix the itself, property the of an inherent attribute of the Fifth and protection the such is within [Citing Dearborn Old Amendment.’ Fourteenth Supreme cases.]” and other S. Court U. illegal an In connection the test whether with of fixing occurred, the the court cited case of had 539, 502, p. (1934), 291 U. at of Nebbia v. New York S. p. at L. Ed. p. at Ct. p. where the court A. R. at said: L. control, any “. . like of . Price other form only regulation, arbitrary, unconstitutional if is discriminatory, demonstrably the or irrelevant legislature policy an adopt, the free to and hence unnecessary and unwarranted interference with liberty.” individual determining arbitrary, In there was an whether dis- price fixing criminatory, and unlawful or control question, the in the under the Fair Trade Act in court Lilly Schwegmann Super Mkts. v. Eli & Co. Bros. Giant (1953), supra. Schwegmann second p. case at concluded 792 of 205 F. 2d: legislature particu- “The . . . defined with has larity type commodity respect the of to which prices may enforced;

fair trade be established and namely, commodity bears, ‘a which or label or bears, mark, brand, container trade producer commodity name of open competition which is in fair with com- general produced by the same class modities think, was, province others.’ It we within legislature that to assume economic laws con- stitute arbitrary price out Brandéis, sufficient capricious restraint pointed producer. As ago long (later Louis D. Justice) Mr. producer ‘establishes his peril peril his if he high, it too sets —the buy or, either the consumer will not is, nevertheless, popular, if the article high profits will in- agree competition.’ vite even more learned District We with the Judge that Old Dearborn still and, further, that, overruled, controls if tois be only by Supreme can be done Court.” I do not place believe this is the prolonged for a dis- cussion appears good whether Fair Trade to us to be or bad for the economic or social life the state.

Briefly stated, however, proponents the of Fair Trade although might contend that it appear at first blush price cutting by that a retailer is not harmful to a manufacturer, respectable opinion there to con- the trary the margin maintenance of a fair profit of —that encourages the to product retailer offer a standard of good quality public the rather than to endeavor sub-standard, product substitute a or inferior in an price-cutting competition; this, effort to meet in time, public. the affects opponents say

The Fair Trade that while in the might days bleak there 1930’s have been some 210 totally

justification Trade, it is unneces- for the Fair sary of the later 1940’s prosperous in inflation price-cutting 1950’s, and that and unrestrained general of the competing is to benefit retailers thought subject on the public. The two schools through controversy developed keen thus into have views, cleavage fact, sharp de- years. A has government. departments of the U. S. veloped within Commission, example, al- has Trade The Federal maintenance, while legedly opposed resale it, apparently Department has favored of Commerce against theo- concluding Trade is more “the Fair case Congress have sub- retical than real.” Committees matter, divergent reports pro con on the mitted going appears on. still be debate including Trade, opponents text of Fair some however, contributors, ask, journal law writers and argument decide of economics and enter we light present-day wis- conditions in the legislation, it hold uncon- and thus dom of Fair Trade However, I do not believe we can have one stitutional. entirely an in fair weather and different constitution super- court does not sit in foul. This as constitution legislation, legislature weigh propriety of nor expressly public wel- offends to decide whether legis- limits, legislative power but state fare. has techniques experiment with new have latures public so welfare own standard use their prohibitions long specific constitutional are not violated.17 legislative policy, we should note that while as to

And changes Congressional made have been numerous Lighting Day-Brite v. Missouri 342 U. S. 17. See: (reh. den.) L. Ed. U. S. S. Ct. 674, 96 L. Ed. 1334. S. Ct.

211 legislation years affecting in Trade, recent Fair in In- diana, however, single no amendment to the Fair Trade twenty Act been has made since it was enacted some years ago, legislation but the exactly remains in passed form in which it was at that time. stated As in a p. recent case18 at 211 of 106 A. 2d: question “The us before is not the wisdom of legislation;

this it is whether pre- situation necessity a sents protection reasonable for the public welfare, and whether the means bear sought. reasonable relation the end . . . And questions if fairly these debatable, legis- are judgment lative must control.” concluding Before opinion this I think we should also observe that the U. S. Court for the District Southern District of recently Indiana has held the Fair Trade non-signer Act of Indiana provisions is valid and constitutional as the contentions violates process delegation due legislative is an unlawful powers,19 and under the Indiana decisions de- highly persuasive termination is upon this court.20 only And not is it the law the federal courts that the Fair Trade violating Acts are not invalid as due process being delegation legislative an unlawful restricting prices, but the rule is followed in majority of state courts.21 Electric General Co. v. Klein (1954), Del, 18. A. 2d 206. 106 Bargain Barn, 19. Sherwin Williams v. Inc. (1954), 1954 67,697. Cases, CCH Trade No. Corp. 20. Midwestern Bet. v. State Board Tax Com. (1934), 688, 882, 206 Ind. 187 N. E. N. E. 191 Mfg. Skaggs, Drug Co. 21. Scovill etc. Stores (1955), v. 45 Co., Applnt. Burche 881, 936; Elec. General Cal. 2d 291 P. 2d v. 370, 361; Co. (1955), General Elec. Co. 382 Pa. A. 2d 115 v. Masters, Inc. (1954), 802; Lionel 307 Y.N. 120 N. E. 2d Corp. Grayson-Robinson (1954), Stores N. J. 104 A. Lilly & Co. v. Saunders 304; (1939), 2d 2d 216 N. C. 4 S. E. Corporation 1308; Triner v. McNeil 125 A. L. R. 2d Ill. N. E. 104 A. L. R. 1435. *20 law, any certainty I If do we are have according principles should bend constitutional believe adversity, we prosperity nor should winds of a dif- engraft Constitution attempt into Indiana powers separation of process concept of ferent due inter- have principles been those identical what of the United the Constitution preted to mean under States. judgment.

I reverse would 415. Reported 143 N. E. 2d Note. — of Indiana. Wedmore State Rehearing 29,377. denied Filed June [No. September 1957.]