*2 SANBORN, Before JOHNSEN RIDDICK, Judges. Circuit Judge. JOHNSEN, Circuit Act, Clayton under The The action is one by amended the Robinson-Patman damages claimed for threefold section a violation of been sustained 1527, 15 U.S.C.A. 2(d) (e), § 49 Stat. jury, without 13(d) (e). On a trial judgment against the court entered fee, attorney’s $3,030 pellant for an appealed. from which it statutory referred subsections provide :1 person "(d) unlawful for It shall be pay contract engaged in commerce to or or anything value to for the per- customer for the benefit com- such commerce as son in course of any serv- pensation or in for consideration through by or facilities furnished or ices proc- with the connection such customer in sale, handling, for offering or sale essing, any products commodities manufac- or of tured, sold, by such offered for sale or payment or consider- person, unless such proportionally on is available ation competing all terms to customers products com- of such the distribution modities. person “(e) shall unlawful for It purchaser favor of one to discriminate in purchaser purchasers against another resale, commodity bought with aof by processing, fur- contracting to without furnishing, contributing nish of, any furnishing or facilities services handling, processing, with the connected sale, for sale such com- offering ac- purchased modity so terms not purchasers proportionally on corded to all equal terms.” corporation, was Appellant, Delaware corporation of distributing and sales Arden, Inc., a manufacturer Elizabeth Appellee, preparations. and toilet cosmetic corporation, was owner Arkansas an department store operator of Arkansas, Rock, which had a toilet- Barron, Rock, Little (J. Ark. W. of Little J. department. August, In Carter, goods City, New York Howard Arden on the Elizabeth line pellee took brief), appellant. corpora Clayton Act, to include Under 38 Stat. U.S.C.A. purposes “person”, tions. the word store, resale, products of agreement appellant oral modities under an from the defendant part contributing which contracting to furnish or designate clerks one of the facili- services and appellee’s department toilet-goods offering an ties connected with the sale and *3 Elizabeth Arden was for sale of purchased “demonstrator” and such so commodities pay defendant, appellee to or from reimburse for one-half the discrimination such regular salary. consisting salary of her payment This of the of entire $20-a-week the push demonstrator of supposed representative the to defendant’s in the of it M. products, sale Elizabeth' M. Cohn Company Arden when store and one-half every fairly possible so, but, salary like the representative to do to defendant’s plaintiff’s store”; department, other the clerk the was her it that “had the de- duty paid generally to wait on fendant plaintiff the trade the or allowed the plaintiff any sell toilet item or article store credit salary that the for the entire of its arrangement partial pay- The demonstrator tiff’s representative carried. for or plain- salary, during ment or store period reimbursement of clerk’s’ of 101 weeks * * * partial or furnishing for demonstrator- operation of a cost of of the services, plaintiff’s might clerk’s department whichever one cosmetic during that it, period choose to call remained in effect of time would have been reduced at approximately years, two end rate week, at the of of per $10.00 ag- an or appellant gregate $1,010.00”; which time decided to discon- plain- and that “the tiff has selling prod- accordingly tinue ucts Co., further Elizabeth Arden been damaged to the appellee $1,010.00 extent give and to M. Cohn M. on account of in- department another creased in Little cost operation store of the cos- its Rock, department metic repre-' local exclusive as a result of the dis- sentation. crimination.” appears The trial court thus years previously Cohn Co. had for some comparative treated arrangements with handling been the Elizabeth line Arden appellee constituting Cohn and with Co. as and continued during to do so time an against appellee by unlawful appellant discrimination appellee selling products. also was 2(e) under section of the This fact knew and had under- Act, Clayton by as amended the Robinson- Appellant stood at the time. form did in- Act, “by Patman 13(e), U.S.C.A. it, however, § arrangement contributing of, any furnishing to the existed which pellant between Cohn Co. and services or facilities connected with the during all time was that * ** sale, handling, offering or pellant, paying reimbursing instead of or commodity sale of such purchased upon so Cohn salary Co. for half a clerk’s or terms not purchasers accorded all on furnishing services, half of clerk’s proportionally equal terms.” The situation making an Cohn allowance to Co. of $20 probably might alternatively have been week, providing words was regarded as discriminatory payment of salary the entire clerk services of a as compensation by appellant special a so-called demonstrator. clerk’s services or by facilities furnished purpose The action was by appellee Cohn Co. and demonstrating to recover threefold the difference be- tween the amount of the allowances made or the value of the services furnished to appellant’s products, pushing sale as a of clerk’s serv- instead of ices or and by appellant facilities Cohn Co. Co. and Cohn those made or furnished to appellee, and so to constitute a vio- purchased appellee during period„that it Act, 2(d) Clayton lation as amended section theory products, appellant’s and sold the Robinson-Patman pay had failed to 13(d), payment 15 U.S.C.A. as “the salary services or furnish clerk’s to it on * * * compensation or in consider- Co., proportionally terms with Cohn facilities ation services or fur- pecuniarily damaged been that it had through such nished customer in discriminatory such treatment * * * with handling, connection difference in extent of the these amounts sale, offering any products for sale or values. * ** unless such or consid- trial court found that proportionally equal “the defend- available on eration is [appellant] ant discriminated favor to all other customers competing terms Company against plaintiff products M. Cohn M. the distribution of or com- bought both of [appellee], whom com- modities.” law, or pect to find on the face were con situation But whether the nature, regu- is a that it its essential under subsection strued aas nations, foreign with lation commerce (d) of sec- (e) or one under subsection States, among several im- or seem tion would to be of limited, is in ex- it tribes. If not might Indian portance here, except there If Congress. power cess of the sub- merit contention regulation purpose main be to establish '(e) attack unconstitutional —an section trade, at all applicable to commerce all made on subsection has not been points, especially apparent it be (d). if proceeding Before examine wholly designed govern commerce question, may generally be remarked *4 Stare, is course, it court, citizens the same between that it was for the trial obviously power con- the exercise of a not nature to determine from the facts the statute, Congress.” fided to the discrimination under the interpretation and that the which it Cases opinion in Trade-Mark the The present the a made of situation sound was 214, Reese, 92 U.S. States v. cites United may proper and one on the It evidence. analogously 563, L.Ed. where it was 23 passing further be in observed that criminal which made it a that a statute held has, Federal Trade Commission in a cease threats, any person by intimi offense for against appellant’s and desist order issued qual dation, etc., from prevent a citizen to sales-practices, arrangements involving lim voting, from without ifying to vote case existing in such as those de application the statute to iting the thereof, similarly and some variations race, color, previous account of nials on a scheme as branded Fifteenth condition of servitude under the Clayton 2(e) of section of the violation Amendment, in invalid. The court Act, Robinson-Patman amended as said, 92 219 pages case U.S. and that 220, at Arden, Act. In the Matter of Elizabeth statute, penal 23 563: L.Ed. “This is a Corporation, Inc., Elizabeth Arden Sales strictly; must and be construed not Lewis, No. N. Doc. and Florence F.T.C. indeed, strictly, clear in to defeat the 12,- 3133, Reg. 3 Serv. No. C.C.H. Trade Congress, tention of but em the words ployed sense must in understood * * * If, they obviously were used. contends, Appellant have indi- as we ap taking together, the whole statute is it cated, 2(e) that section is unconstitutional. parent it the intention argument its is basis that subsec- Congress operation to thus limit “any (e) imposes prohibition tion *** act, give we cannot it that effect. person”, “engaged without the limitation legislature bjr If the undertakes to define commerce”,2 specifically incor- such as is offence, provide statute a new and its porated (a), (c), (d) in subsections punishment, express it its should will 2 (f) portions of section and in other language that need com not deceive the Act, and unlike the rest of Every mon mind. man should be able Act, it therefore must be held have been certainty committing know with when ishe persons engaged intended to cover in ei- a crime.” ther intrastate or interstate commerce and 127, Bowman, 190 placed is void. U.S. hence Reliance is on the v. James Cases, 979, principle Trade-Mark 678, applied United States v. 47 L.Ed. Stef- fens, holding etc., 96, cases, 82, 97, 100 25 Reese U.S. L.Ed. the Steffens 550, where, statute, prosecutions in some criminal it crim- made invalid an- one to intimidate inal offense for a statute which the fraudu- under right of fran- in the exercise of his use, counterfeiting of lent sale and trade- person was whom pursuant chise, one to where registered to the marks laws offense, guaranteed Fifteenth punishable States a the United Amendment, language because its application limiting the without congressional presidential limited trademarks used statute to interstate commerce, “When, foreign nothing the court said: and there was show elections therefore, Congress did Congress undertakes not intend it to enact law, only regula- be valid elections of state plication which can and local commerce, well. it reasonable ex- tion of officers Clayton among States”, 2 or commerce the several 1 15 U.S. Section 12, provides etc. term “com C.A. “means as used trade merce” 992 44, 2287, 42 Wallace, Report S.Ct. of 259 U.S. section 3. See House No. Hill v. Representatives 822, for an of 453, a suit 66 L.Ed. which was Committee on Judi- Trading ciary, Sess., injunction, Report Future Cong., 74th No. declared the 2d 1502, 187, num- Judiciary, invalid on a Senate 74th Stat. Committee on Act Cong., discussing contrary, its va- grounds 2d On ber of Sess. the dis- clause, cussions on lidity Congress commerce relation to the floors of several 69, 42 pages specifically at S.Ct. times U.S. refer to the fact that the ques- Act applicable only “We come was and L.Ed. could be said: regulations example, of boards interstate tion then: Can these commerce. As an under was Congress purpose stated in trade the Senate sustained that the of the bill Constitution? Commerce clause of the was to deal with some of * * * practices the act There is not a word in had been resorted to evading Clayton Act; gathered which it can be that there were “ways operation of evading Clayton confined in interstate com- Act which perhaps by Congress”; merce. The words ‘interstate commerce’ cannot be reached any part things are not to be found in of the act only “We can reach those closing from the title section. to the relate to interstate commerce or have * * * *5 a [Congress] It bearing did not direct com- interstate power exercise of its merce.” under the commerce See Remarks Logan, of Senator mind, 80 in Cong.Rec., part 6, clause and introduce so did not page 6281. certainly into the act the limitations which Reading the 2 as subsections of section accompany and mark an exercise a pro- whole and with also the criminal the _power under the latter clause.” 3, viewing visions section the Rob- unity inson-Patman inAct its in its however, decisions, These not do Clayton Act, interrelation to the not we do opinion compel in our in the conclusion possible any see how doubt can that exist Congress case because Congress (e), intended that subsection “engaged words has failed to include the equally with the other subsections of sec- specific in commerce” or other similar ex 2, apply only engaged tion should to those 2, pression (e) in subsection of section commerce, in interstate omis- and that the that subsection must declared un be to be expression “engaged sion of the limitative place, In constitutional. the first neither language in commerce” from the sub- portion (e) any subsection nor inadvertent, patently but (e) section provision, 2 is section a criminal and the implication are that the words sound which, degree of strictness oftentimes with in inherent its and sectional con- perhaps, ap some arbitrariness has been 498, Gibson, Kennedy text. v. 8 Cf. Wall. plied in the construction criminal of a 506, 507, 498, 506, 507, 19 75 U.S. L.Ed. is, controlling. statute not The criminal Indeed, 476. language even within the provisions Act the Robinson-Patman appellant cases on which relies and 3, are contained in section 15 U.S.C.A. § hardly quoted, from which we have it can 13a, complete which in is in itself and said, case, here be as in Steffens appear which the limitative words law, nothing there is “on the face of or appellant insists should also have been nature”, from its essential to show that the expressed 2(e). in section The cases on Robinson-Patman intended Act was with relies thus would be ply only commerce, or, to interstate inas in application proceeding out insti case, that, “taking the Reese whole against criminal violation tuted it for a apparent together, it is that it Again, pre the Robinson-Patman Act. Congress limit intention of thus to indicated, viously ‘‘engaged the limitation act”, or, operation as in Hill appears directly commerce” also in sub in case, a act that “There is not word 2, (a), (f) (c), (d) sections of section gathered which it can be is all of are co-ordinate enumerations operation confined its com- interstate (e) of trade with subsection practices the various merce”, and “The words ‘interstate com- prohibited. intended to And any part merce’ not to be are found reports nothing in there is the committee closing the act from the title to the sec- expressions on Con floors of tion.” suggest (e) that subsection gress to question, The as in case of meant to have exten designed more construction, soundly statutory is sive reach than other subsections one of tolerantly provisions seeking effectuating 2 than the criminal convine-
section
993
recognizedly
appellate
court
v. ered. An
States
United
legislative intention.
ing
50,
necessary,
correct
may,
Lines,
when
sustain
315 U.S.
Truck
N. E. Rosenblum
than
judgment
ground
In
on a different
448,
445,
L.Ed.
53,
86
62 S.Ct.
_
court,
intention,
where such
adopted by the trial
congressional
discovery of
power to
ground
is within
is one
controlling. United
rule is
no invariable
Associations,
Exchange Com
formulate. Securities
Trucking
American
States v.
Chenery Corporation,
U.S.
318
mission
1059, 84 L.
v.
542-544,
534,
60 S.Ct.
310 U.S.
626;
88,
80,
454, 459,
L.Ed.
is, of
63 S.Ct.
language
an act
Ed. 1345.
course,
In
Riley
E.
Inv. Co. v. Commissioner
legisla
guide to
the fundamental
J.
ternal
95,
59,
Revenue,
55,
311 U.S.
meaning
purpose, but
tive
States,
36;
United
85 L.Ed.
v.
Chaires
as whole
language of the act
618,
611, 618,
611,
11 L.Ed.
3 How.
U.S.
of a section
be read and
the words
merely
one
749. Here the matter
isolation,
con
for “courts will
provision in
statutory
legal
conformity
of what
determination
an
act
strue the details
applied to
properly
subsections
will
general purpose,
dominating
with its
findings
court or
made
trial
will
light
of context and
read text
evidence,
aspect
which on
involved
meaning
interpret
the text so far as the
undisputed.
carry was
fairly permits
of the words
ex
particular
generally
out
cases the
Appellant contends, however, that wheth-
pressed legislative policy.”
Securities
(e)
(d)
er subsection
were
subsection
Exchange Commission
C.
v.
M. Joiner plied
illegal
there
no
350,
Corporation,
344,
320 U.S.
Leasing
subsection,
under either
because on the
And
L.Ed. 88.
S.Ct.
purchases
basis of
re-
had
so,
cau
should be
while
are and
courts
salary “on
ceived clerk’s
services
adding words
tious about
as such
proportionally equal
Co.
terms”
Cohn
*6
they
not
generally,
hesitate
/will
Appellant
by
hypothesizes
the situation
pro
read
of
into
sense
some section or
products pur-
of
taking the total amount
expres
qualifying
expanding
vision
period
by
over
chased
Cohn
the entire
Co.
plainly implied by
general
sion
of the
context
involved,
$18,593.40,
of
in the sum
and
act,
palpably
omit
which
been
purchased
appellee, in the
by
amount
total
prevent
necessary
ted
which is
and
$11,250.35,
deducting
sum of
then
legislative purpose
failing in
of
from
one
$2,463.04,
goods, in the
of
amount of
sum
Statutes,
aspects.
Am.Jur.,
its
material
appellee’s hands
which
Co. took off
Cohn
235;
Gibson,
Kennedy
compare
v.
by
purchase
given the
after it was
direct
498, 506,
8 Wall.
75 U.S.
finally
representation,
exclusive Arden
507,
995 discrimina- damages for of a alternative, refusal the amount failure or Act tory under that rebate or concession which serv- upon proportionalize the terms an- equivalent granting make would be so as to granted, facilities are ices or concession, pur- it other rebate or competing reasonably possible for very altogether purpose serv- the Act avail themselves chasers so, Because, therefore, prohibit. has carrier do they if desire facilities ices or act, Congress did illegal committed one such serv- to accord a failure constitutes compelled or intend that it should upon proportionally ices or facilities permitted to commit another. terms.” Pennsylvania R. pointed As out relates Appellant’s final contention Co., Co. v. Min. 230 U. International Coal argues question damages. It 184, 202, 898, 893, S. 33 57 L.Ed. S.Ct. an unlawful guilty of even if it has been 1446, Ann.Cas.1915A, 315, il “Making an prove discrimination, failed to appellee has legal undercharge shipper to one did found, trial court damage. The legal license the carrier to make a similar under out, de-' previously “had the set charge shippers, if, having to other paid plaintiff allowed fendant paid a 25 rebate of cus cents a ton to one salary the entire plaintiff credit for tomer, carrier, escape in order to representative demonstrator suit, undercharge had made a similar 101 period of plaintiff’s during the store * * * plaintiff, rebate to the it would have been operation weeks the cost of the criminally liable, though may even have plaintiff’s department dur- cosmetic been equalize done in order the two been ing period have of time would companies.” Or, as was said & Texas week, or per rate of $10.00 reduced at the Co., Pac. R. Co. v. Abilene Cotton Oil $1,010.00”, “the and that aggregate of an 426, 445, 350, 357, U.S. 51 L.Ed. accordingly damaged plaintiff been 553, “In Ann.Cas. view of the bind $1,010.00 on account the extent of ing effect established rates operation cosmetic of its increased cost * * * both the shipper, carrier and the department of the discrimina- as a result made, adopted, contention now if tion.” necessitate the holding that a cause of ac by appellant is that point urged tion favor shipper of a arose from the serv failure agree carrier to make an paying clerk’s cannot ices or salaries ment, when, agreement if the had been - legal damage but itself constitute made, both the carrier shipper and the injury special prove must some guilty been of a criminal of under to its business. The decisions sec agreement fense and the would have been Act, 24 tion Interstate Commerce absolutely impossible void as relied Stat. U.S.C.A. are enforcement.” support Parsons this contention. See *8 447, Co., so, & R. 167 U.S. Chicago v. N. W. And from nature the inherent 231; 887, Pennsylvania purpose 17 42 L.Ed. and S.Ct. of the Interstate Commerce Act, Co., 230 granting International the prohibited R. Co. v. Coal Min. of a rebate 184, 893, 1446, Ann. other carrier, 33 S.Ct. 57 L.Ed. U.S. concession re a while 315; Cas.1915A, Valley Lehigh sulting Meeker in the v. acquiring improper of an Co., 412, 328, gain by 35 59 L. shipper, R. 236 U.S. S.Ct. one se per not 691; Ann.Cas.1916B, 644, to Ed. Davis v. amount the suffering of legal damage 403, Co., 264 U.S. S.Ct. another. Portland Seed But these considerations 762; 380, 68 Interstate Commerce deterrents in L.Ed. relation to the Interstate Camp rel. hardly United 714, ex Commerce Act can Commission v. States be said re to 524, quire bell, L.Ed. every damage S.Ct. that 289 U.S. statute for com decisions, discriminations, But effect of these mercial though the in couched interpret correctly language, rationale their similar if we must be construed aas simply special damage, to inher policy, only. is hold that the damage A prohibi general statute of of the commands and terms ent nature should be read provisions in relation to the pre policy Interstate Commerce Act the tions of of legal any recognition part. to the of which of a act it is a Mr. vents Justice Act, pointed out, Cardozo damages discussing under in general that the recover damage question any recovery under therefore neces the Interstate Com that Act, in special merce Interstate Com damages limited Commerce sarily must be to recovery Campbell, permit general v. United States ex rel. To of mission only. 611, dam- any general 77 L. 607, agent, his no customer or 289 U.S. the damages exist, age right probably for rule of would the “how much Ed. distinctions, pre re- controlling how as to same reason is that is beset delicate up Inter- call under eminently is a bates or other concessions the applying it there in judicially, various these act state Commerce Act. But judge think and to on import- no possible special are judgment and discretion.” situations use damages general ance in relation to Robinson-Patman The subsections rightfully under subsec- can exist pro- involved, unlike here that Act are Certainly (e) (d). tions the result Act, Commerce Interstate hibitions present case discrimination prevent the designed to are not expense appellee with a burden to leave of clerk’s services or products handling customer, pur- any their but salaries to required that bear. Cohn Co. require and as- contrary pose on the is unequal expense-burden which This salaries, in what- sure such services pellee there bear if would not have had to they may be furnished amount ever clearly a had been no customer, be made avail- paid any shall multiplica- business-damage, direct and the every competing customer able to damage, tion al- of the which the statute proportionally equal What the sell- terms. recovery, lows when there is in permitted and commanded er is thus both penalty having nature of occasioned under do, we can reason see no sound injury. policy language or of the statute by an Appellant out, him do action compelling points further how damages ever, damages, general where such bill which became the Robin plainly meas- directly Act, are been suffered and introduced originally son-Patman case, Thus, in the. provision urable. Congress, contained a had “ n themeasure found, obvious, trial court damages as the violation any in “the pellee shall, direct loss sustained a this section where the fact operation of its cos- shown, increased cost of the damage is absence of and in the department”, extent proof metic to the greater damage, presumed allowances, which were difference in the equivalent pecuniary amount or arbitrarily propor- without made and prohibited discrimination, payment, relieve grant violation”, tionalized basis standard. To involved obligation equalize such provision the seller of the this But, bill. stricken through readily a discrimination determin- general damages if to be are entitled damages, special general hold, able where no under we recovered claimed, damages exist or are situations where amount of the dis effectiveness of properly weaken the the statute can con crimination be said to compelling damage, obedience to its commands. legal stitute direct and present case, provision the stricken imply, We do not mean not, enacted, even if have had course, every situation under significance except in relation to situ those subject gen Robinson-Patman to a Act is special only ations consequential where damage right. ob eral Discriminations possibly damages exist, can effect viously possible, are from whose nature simply require omission would be to damages there can be no direct or spe that the amount damages of such must special damages. only consequential or but *9 cifically proved. discriminatory example, allowance For judgment is affirmed. customer, by him be used of funds ato advertising promoting business solely in RIDDICK, (dissenting). Judge Circuit goods, perhaps not seller’s I agree with majority opinion. do not damages, since a basis furnish amI unable find in the record competitor probably would either injury any proof damage clear claim or ad to the upon the results which the depend property business or of Blass. The Act produced, and hence vertising funds under which brought is suit authorizes difference treatment damages only recovery damage consequential. busi- direct but not be property ness or pro- victim of (c), 15 under subsection U.S.C.A. Again, discrimination; and, granting ma- hibited as the prohibits which 13(c)," shows, jority opinion Congress brokerage expressly a seller to commission Cohn, bene- it, former ficiary ficiary, meas- while for the the rule to sanction refused victim; and certain is now the adopted by the court damages ure damages Blass proof Arden reimburses case, is there even where this it never sus- property which business or property damage to the business actual case, which, in tained. complainant, this is none. there theory opinion, the As I understand Robinson-Patman underlying requires the only permits, but Act not commerce, makes who seller interstate in- character payments to retailers of the case, to make them volved terms; equal proportionately KITHCART v. METROPOLITAN LIFE prohibited discrim- victim of a where the CO. INS. prove damage ination is unable to his business or No. proximate property as re- him, against he sult of a discrimination should, nevertheless, re- permitted Eighth Appeals, Circuit. Circuit Court cover, damages, guise under the July 31, 1945. paid to difference between amount made him and such amount as would have proportionately his in terms competitor. to that his made to Thus simple court damages action for substitutes proceed- authorized the Act a among ing equality to restore terms competitors where it had been denied and penalty, recover a since three times the necessary sum equality to restore is re- covered. are, me, There in- seems to several superable objections interpretation to this requires the statute. One is that it court to provisions read into the Act Congress expressly refused to include it. damages Another is that can certainty established with reasonable are not recoverable. And still another is that, if the action for damages authorized
by the Act was intended as a means of es-
tablishing proportionate equality where
discrimination had competi- among existed past, provision tors in the for three- recovery only prevents fold re- sult, but makes of the Act an instrument creating the discrimination which Con-
gress sought prevent. Obviously, interpretation under the the Act which opinion, majority illegal the victim of an discrim- may permitted ination not be to recover more than a place sum sufficient him *10 proportionate
on terms of equality with his competitor. The result such a recovery would be to substitute one violation of the Act for another. And re- such is the Blass, sult of the decision.
supposed illegal victim of an discrimina- tion, very now becomes the definite bene-