*1 651 238, 20 439, Co., it was Pac. R. 112 Mo. S.W. INC., Corporation, DAIRIES, a FOREMOST case was made not held that submissible Dairy Corporation, Products National charge the men in withstanding “[n]one Respondents, Corporation, plaintiff the train was at knew v. it, he over or that attempting time to cross Agricul THOMASON, Don Commissioner it, 20 danger,” wise was about Missouri, Eagleton, ture of and Thomas F. Missouri, S.W., Thompson c. v. 1. 440. In Attorney Missouri, Appellants. General Co., Mo.App. Ry. K. & T. 93 67 S.W. in to refuse an held not error was NATIONAL DAIRY PRODUCTS CORPO- de jury that struction told RATION, Respondent, Corporation, charge the train employees in fendant’s v. plain give the obligation to no were under Agricul- THOMASON, Don pass cars two (attempting to tiff Missouri, Eagleton, ture and Thomas F. blocking a freight train while it was Attorney Missouri, Appellants. General of they public any warning unless street) No. 50046. Am. perilous condition. 44 knew his 744, it is stated that p. Railroads Supreme Jur. Court of Missouri. a railroad blocks such a (where “In case En Banc. the law longer time than crossing Dec. question permits), it becomes a for the negligence jury whether or not it
company’s the train with to move servants warning their inten timely giving
out so, do and it is immaterial
tion to particular that some
did not have notice position danger in a
person was And supplied.) and italics
(Parentheses Co., Ry. F.2d
see Stratton Southern No 1951), A.L.R.2d 363. (4th Cir. plaintiff’s train presence
tice of case, plaintiff’s his an element of
not required
theory, and its omission verdict-directing in
findings of fact in the error. To did constitute
struction R. & F. v. St. Louis S. Cherry
extent that
Co., [4], Mo.App. 145 S.W. principle here an
militates not to be followed.
nounced affirmed. judgment CC., HIGGINS, concur.
WELBORN
PER CURIAM. HOUSER, opinion by C.,
The foregoing adopted as the court. concur. Judges
All of the
Kuraner, Kuraner, Oberlander Freeman, Lamkin, Lamkin, Jr., & F. Charles City, Wayne Hudson, Kansas General D. Counsel, Dairies, Inc., Foremost San Fran- Cal., counsel, cisco, for Foremost Dairies, Inc.
Morrison, Heclcer, & Cozad Morrison Purcell, and Martin City, Kansas Rich- J. Johnston, Ill., counsel, L. Chicago, ard Dairy for National Products. Rozier, Carson, Monaco, Nacy Inglish, & Inglish, City, W. counsel John Jefferson respondents. for both Atty. Gen., Eagleton, Thomas F. H. John Denman, Gen., Atty. City, Asst. Jefferson for appellants. Chesterfield, Riddle, Gray Dorsey, L. Malden, Newberry, O’Herin & amici curias. products,
HOLMAN, ucts at combined Judge. with other aggregate than is less Dairies, respondents, Inc., Foremost *3 sale, prices for which is offered each for Corporation, Dairy Products National are when with intent or done declaratory instituted this action a for effect above mentioned. validity rules judgment determine the of by appellant, primarily Don Thom- The promulgated sections the Act involv- of ason, provide, ed Agriculture part, herein Commissioner of as follows: Missouri, under the Unfair Milk Sales Section processor 416.420. “1. No or 416.410-416.560,1 Act, Practices §§ with shall, the intent with or for validity, a determination of the unfairly diverting the effect of trade from a Act, systems products milk for competitor, injuring or of a otherwise by employed proposed employed to he or competitor, destroying competition, or of respondents. the rules The trial court held discriminate in in the sale of milk any injunction invalid issued an product plant furnished from the same their The enforcement. between any towns, cities, munici- General, Agriculture Attorney who and the palities state; except or counties of this cause, appealed party was also a have that no violation results from different judgment. from such prices reflect, pro- which in the case of a cessor, transportation the actual cost from appellate jurisdiction have because We point point and, of processing sale, officers, such, parties. state are Mo. the case of a actual distributor, trans- V, (1945), Const. Art. V.A.M.S. portation point purchase cost from appeal originally The in Divi- was heard point of resale.” opinion prepared but sion An One. Section processor 416.440. “1. milk No adoption was trans- failed of and the case shall, or distributor with the intent or with briefs ferred to Court en Banc. Additional unfairly effect of diverting trade from reargued and were filed and the cause was competitor, or of injuring otherwise resubmitted. of the aforemention- Portions competitor, competition, or of destroying adopted use ed are here without the or of creating monopoly, give offer or quotation marks. give any product purchaser milk any re- The Unfair Milk Sales Practices Act bate, discount, services, free service or prohibits products milk the sale of or milk allowance, advertising pay advertising for by at less than cost various handlers space donation, used jointly, free merchan- system milk distribution “with the intent or dise, space rent on retailer unfairly with the diverting effect of trade storing displaying processor’s the milk * * * competitor, destroy- or of merchandise, aid, or distributor’s financial ing monopo- creating or of competition, equipment, any other free of val- thing ly.” 416.415, 416.425, and 416.430. Dis- §§ ;ue except coop- the bona return fide prices any crimination in erative association on a members cities, towns, municipalities or counties patronage savings basis of the realized distributors, by processors the state products sold and distributed to the mem- effect, in intent or sale of similar patrons. bers or product plant milk furnished from the same giving “2. Proof of the or offer to prohibited. prices Differences anything prima of value evidence facie transportation reflect differences costs of a violation of section. prohibition. are violation 416.420. Combination sales of milk prod- [******]
1. All section citations refer to sections RSMo V.A.M.S. unreasonable, regulations prevent capricious, a dis- are does not “6. This section payment discretion, beyond powers abuse of or less count of two cent and, therefore, the commissioner void. The on or a certain date.” before petition charged that, further if the Act required are Licenses construed to regulations, authorize such manufacturers, processors and distributors. (for specifically alleged) therein reasons issued the Commissioner licenses is to that extent unconstitutional. Act is Agriculture and violation charge that, also regulations insofar by the commissioner for action basis Act, would be authorized the Missouri *4 suspend 416.490. such licenses. revoke or the Missouri law in conflict addition, authorized In the commissioner (15 13) Act and Robinson-Patman U.S.C. § against violations. injunctive to obtain relief is to that extent Rule 12 attacked void. was by violation person injured 416.450. A unreasonable, arbitrary, capricious as and enjoin the sue to of the Act is authorized to beyond the authority of the commissioner. for right action given violator and is Respondents are licensed under the triple damages. processors products. litiga- as milk This the Commis- authorizes 416.460 Section primarily upon tion is based operation their rules' promulgate Agriculture sioner of in vicinity. Respondents’ the Kansas City purposes of carry regulations to out the and evidence operations showed that their authority Pursuant the Act. various methods of distribution of milk and here rules promulgated the commissioner products employed. They milk sell are as follows: challenged. They products directly such to consumers on home delivery routes. deliver processor determining “10. In cost products grocery on wholesale routes to stops sales, all retail for retail or distributor stores, restaurants, and similar customers com- be given area should and routes in purchase who for resale. wholesale Some a uniform averaged to obtain bined and purchase products respond- customers at area. cost such plants provide ents’ and their distri- own processor determining “In cost to system. bution Some wholesale customers sales, whole- for wholesale purchase “drop shipment” on a where- basis should given routes in a stops sale purchase the customers reduced on a a uni- averaged obtain combined and delivery frequent with deliveries less basis such area. form cost than to other customers. The size of purchase may customer’s vary from one “11. Volume a discount quart single of milk customer retail price and results a discrimination quarts by to hundreds of wholesale cus- localities and is therefore tomers. prohibited Act. under the passage Prior to the Milk the Unfair districts, agencies “12. Public school similarly respondents Law Sales and others institutions of the State Missouri engaged products milk and milk at sold political are not subdivisions prices according which varied to the volume purview of Sections 416.410 purchased delivery. The method of 1959, RSMo of milk sales 29, 1959. August law became effective on regulated them Milk are not the Unfair Williamson, On Mr. October S. J. Sales Practices Act.” Agriculture, issued a then proc- concerned, to all Insofar as Rules 10 and 11 are communication addressed Missouri, respondents’ essentially essing plants distributing milk in petition charges respondents. was regulations prevented from which received them differentials; that, the commissioner establishing this communication prohibited pricing is applied pricing practice, to such those stated: “Volume
Q55 quart charge and on savings was three provided it actual reflects the quarts per quart. lj£0 less efficiencies relation to other volumes.” proposed February Subsequently, January 31, 1962, Sealtest on place “drop delivery” present Agriculture, in effect a wholesale Mr. Commissioner of plan Thomason, under which customers would bulletin he issued a in which * * * “drop savings delivery changes interpretation receive stated that purchases on each deliv- expressed “might be based dollar October “savings” policy ery.” proper present at The schedule of time.” The expressed by Mr. follows: commissioner was Thomason as follows: PER “DOLLAR PURCHASE CENT PER DELIVERY SAVINGS
“4. Volume is not provided a discount it is not 14.99 None $ savings reflects the actual or efficiencies — 21.99 15.00 3% — relation other volumes. 22.00 36.99 4% —37.00 59.99 5% *5 stops given “5. All in a retail and routes — 60.00 89.99 6% averaged area should be combined —Over 90.00 7%” obtain a area. uniform retail for such cost All stops given Agriculture wholesale and routes The Commissioner notified that, system averaged area this opinion, should be combined Sealtest his obtain a direct- “savings” uniform wholesale cost for conflicted with the plan area.” dis- was ed its discontinuance. The continued. 1961, National, operating November 3, pro- through April commissioner its Sealtest Division in Kansas On involved, City, placed system mulgated here pricing in effect a Rules 10 and April 13, on 1962. sales its home milk which became on delivery effective routes May Sealtest resubmitted to under which would customers drop delivery charged products. proposed the same commissioner its However, also alter- charge added, savings a service schedule and an was de- pending upon the volume under which of the customer’s nate schedule purchase, per upon delivery. product vary, depending purchase On the of the would equivalent more, cash quarts purchased of six of milk or the number cases charge. equi- delivery. example there no An service schedule On quarts, proposed valent of four or five service follows: Inc., Dairies, Rules 10 has a similar On the basis of Foremost At approve pro- system for its deliveries. commissioner declined to home they whole- posed hearing action the time of the had no schedule and threatened to take placed prices, previously their in effect. if it was sale Sealtest graduated prices given a produced liti- had wholesale Such threatened action gation. pur- “savings,” depending
chased, to a maximum of
reduction
per
serves
one unit to
unit for
$.0627
7%
price.
in list
serves of ten units.
presented
study
Sealtest
evidence of a
According
respondents’
evidence their
delivery
its retail
eighteen
costs based on
delivery
sales of milk on
home
routes
days’ study
route
City.
in Kansas
It showed
City
the Kansas
have declined con-
1,512
6,395
total cost for
deliveries of
prior
siderably
years.
years
in recent
Five
per
units of
unit. The
$754.56
$.1180
to this action Foremost had
home de-
delivery
per
per
cost
delivery
unit
varied
livery
City.
routes Kansas
At the time
per
from
delivery
unit for
one
$.2606
hearing they
of the
had 44. Reduction
to three
units to
unit for de-
$.0621
volume of
sales was
estimated 60%.
livery of
six units
over. Sealtest
Sealtest
had
At
78 retail routes.
presented
study
also
evidence
aof
of whole-
time
hearing
had
delivery
sale
ending
costs for the week
a volume
loss
40%.
December
study
showed an
allocation of delivery costs to “Volume
Respondents attributed
reduction in
Delivery”
Per
percentage
brackets and a
delivery
change
the home
business to the
ranging
sales
from
on dollar
buying
habits which had
diverted
30.19%
sales from
on dollar
0-$14.99
large
purchases
super-
volume of
6.33%
sales
per delivery.
$90-Over
markets.
also attributed the reduction
to the increased volume handled
inde-
Clarke, Jr.,
Dr. David A.
Professor of
pendent
purchased prod-
who
distributors
University
Agricultural Economics at the
processors
ucts from other
and distributed
California,
had made extensive
who
*6
through
them
non-union
with em-
drivers
products,,
marketing
dairy
studies of the
of
phasis
larger
purchasers
on sales to
volume
Based,
respondents.
testified on behalf of
only. According to
both
witnesses for
study
delivery
his
the cost of milk
of
respondents,
sys-
a retail
differential
at wholesale and
retail
the State of
preservation
tem was essential
of
problems
and the
California
of volume
delivery
their retail home
routes.
expressed
pricing,
opinion
he
uni-
that
milk,
pricing per
form
unit of
at whole-
respondents
Witnesses for the
testified
sale and
regardless,
retail to the customer
companies
each
that
of
had made de-
purchased,
only-
of the volume
is “not
tailed studies of distribution
in the
costs
standpoint,
unreal from the economic
but
City
study
Kansas
area. Foremost
amade
presents
problems
important
of
some
of retail distribution costs for the months
“fiat,
equity.”
opinion
He stated his
May 1962, which, according
March and
of
pricing under conditions of differential'
them,
typical
to
were
months. Costs were
cost,
pressures,
leads
substantial
allocated either to the route or on a unit
operation
tend to distort
the normal
of
basis. Costs allocated to the former in-
system.”
it.
marketing
He stated that
operation
cluded all direct costs of the
produce
integration,”'
tended to
“vertical
expenses,
routes
as truck
driver’s
system
stores, par-
a
under which retail
salary, supervisor’s salary, etc. Unit costs
ticularly
stores,
chain
milk
have their own
things
included such
advertising,
ad-
removes,
processing
system
facilities. Such
expenses,
ministrative
and other
items
larger
customers from the
market
which could
directly
not be attributed
remaining
leaves the
smaller customers
operation.
basis,
the route
On such
by regular
to be served
distributors at in-
figure
cost
per
serve
customer
$.3993
creased
pricing,
cost. He also stated that flat
stop
per
unit was arrived at.
$.0228
practices,,
encourage
tends to
unfair trade
Using
figures,
these
Foremost demonstrated
such as secret rebates and free financial'
average
delivery and sales cost
distinguished
aid. Doctor Clarke
per
ranged
unit
from
unit
earned
and unearned discounts.
the-
$.4221
of,
intent
and do
have
category
discounts
duced with the
not
he included
former
volume,
of, unfairly diverting
trade
related
effect
and discounts
cash
rebate,
competitor,
injuring a
or of
under-the-
otherwise
latter “a secret
in the
competition,
deals,
kind, designed
competitor,
destroying
things of this
counter
competitive advantage,
creating monopoly within the mean-
primarily
gain
or of
opinion
ing
his
of 416.420 or 416.440.
market situation.”
industry
dairy
pricing in the
volume
cost-justified
systems
“3.
volume
improves
competition,
injurious
not
pricing
in evidence and used
shown
competition.
plaintiffs
giving
do not constitute the
or the
‘discount’ within
offer
Saunders,
Pro-
B.
Associate
Dr. Charles
meaning
legislative
of 416.440. It was the
at the
Administration
fessor
Business
Act,
purpose
passing
term
Kansas,
University
volume
testified that
section
‘discount’ as used in that
should
accepted business
pricing is a common and
special
discriminatory
con-
connote
practice throughout
world.
business
customers, concessions
cessions to individual
expressed
that the
He
system
given pursuant
which are
to a
not
differences in
to reflect
cost-justified price
differentials avail-
delivery,
processing, sale
re-
cost of
able to all customers.
delivery
sulting from different
methods
sold,
quantities
“economically sound
cost-justified
systems
“4. Such
and would
lead to
and defensible”
not
not constitute
do
discriminations
destroying competition
unfairly diverting
cities,
towns,
'between
competitors.
trade from
municipalities,
or counties
this state’
meaning
sec-
That
appellants.
No evidence was offered
application
pric-
tion is
without
respond-
The trial court found that the
ing systems which are the same in each
systems
ents’ volume
were
re-
town,
county sup-
city, municipality and
competitive
and that the
sult
conditions
plied
plant.
differentials which
afforded
legis-
“5.
It was
the intent
“fully
justified
were
differences
*7
require
lature
would
that
that
416.440
§
plaintiffs’
serving
customers,
costs of
such
purchasers
products
all
of milk
from a
only
make
and
due allowance for differences
processor
is,
pay
price,
that
the same
that
processing,
delivery
in
of
the cost
sale and
to
the
who has milk delivered
housewife
resulting
differing
from the
methods or
pay
the
her door
the same
as
would
quantities
products
such
are sold
which
product
picks up
at
distributor who
the
systems
pricing
and delivered. These
are
the dock.
applicable throughout
the
area
entire
of
plaintiffs’
of
the State Missouri served from
416.440,
and
“6. 416.420
if construed
plants,
locality
and do not differ from
cost-justified
prohibit
pricing,
volume
locality.” The court further
found that
reason
would
unconstitutional
for the
be
pricing
injure competition
flat
would
and
special
law
that
would constitute
“no adverse effects
the
com-
ap-
general
where
could be made
law
petitive
prod-
situation
the
of
sale
plaintiffs
plicable,
deny
the
and would
* * *
ucts have
from
intro-
resulted
law,
equal protection of the
and would
respondents’
duction” of
volume
deprive
property
of
without
them
their
schedules.
law,
process
in violation
the
due
all
of
provisions
and 10 of Article
of Sections
following
The court
the
conclusions
stated
I,
Article
the
40(30)
and
III of
Section
law:
Missouri,
14th
and
the
Constitution
the
systems
volume Amendment
to the Constitution
cost-justified
“2. The
by plaintiffs
not intro- United States.
used
were
416.440,
“7. 416.420
and
if construed to
wars
which milk had sold for as
prohibit cost-justified
pricing,
eight
volume
would
little as
cents
gallon
half
in some
namely,
Congress,
conflict with
Act of
areas. The committee
legis-
concluded that
U.S.C.,
the
(15
Robinson-Patman Act
Sec.
lation providing
marketing regulations
13),
be
extent
unconstitutional was
being
essential for the well
of the
dairy
void.
industry, particularly
pro-
for the
tection of the small
the
Commissioner,
“8. Rule 11
preservation
dairy
of the small
herds
Rule
prohibits
the
extent
primary
this state.
purpose
of the Act
systems
cost-justified
pricing,
prevent
was to
the sale of milk
beyond
powers
are
the
of the Commissioner
less
pro-
than
It
cost.
also contains
void,
under
Act
and are
for the reasons
prohibiting
visions
discrimination
hereinabove stated.
rebates, discounts, allowances,
well
as
as
In general,
Rule
etc.
order
Commissioner
to constitute a
“9.
beyond
violation,
powers
practices prohibited
all of the
under
be
the Act and
void.”
must
shown
to have been done with the
intent or
unfairly
effect of
diverting trade
Thomason,
Company
In Borden
Mo.
competitor
destroying
com-
Sup.,
constitutionality
353 S.W.2d
petition
creating monopoly.
or of
of the Unfair
Milk Sales Practices
upheld against
an attack on numerous
hereinafter
will
For reasons which
grounds.
prac-
constitutional
While the
concluded that
the word
appear, we have
tice of volume
pricing mentioned
“discount,”
was not
case,
Borden
did
the court
not determine
legislature
include volume
intended
therein whether volume pricing
a “dis-
quantity discounts
are
pricing or
meaning
count”
within
cost-justified price
available to
differences
pric-
At the time of that decision volume
fore
customers.
It follows from
ing
prohibited by
was not
inter-
official
power
no
had
going that the commissioner
pretation then in effect.
promulgate Rule
Act to
therefore
it is
void.
Upon
appeal
primary
it is the
con-
stated conclusion will
In view of our
appellants
plain
tention of
considera-
unnecessary
further
unambiguous language
pro-
416.440
alternative contentions
tion to certain other
hibits
discounts and that volume
presented
decided
which were
to and
quantity
(even
though cost-
discounts
question
fact
(1)
court.
trial
are,
fact,
there-
justified)
discounts and
cost-justified to whether
encompassed
meaning
fore are
*8
pricing practices
by respondents
used
were
of the word “discount” as used in said
of, or had the
introduced
the intent
Respondents,
contrary,
section.
on the
as-
trade, etc., (2)
unfairly diverting
effect
prohibition
only
sert
that
the
was aimed
question
416.420 and
the
of whether
usually
§§
granted arbitrarily,
at discounts
416.440,
prohibit cost-justi-
if construed to
deals,
secret
“under-the-table”
and was
pricing,
unconstitu-
fied volume
would be
prohibit uniform, cost-justified
intended to
for
stated in the conclusions
tional
reasons
prices according
quantity
differential
court,
question as
(3)
of the trial
the
purchased which
cus-
are available
all
sections, if construed to
to whether said
tomers.
prohibit cost-justified
pricing, would
volume
history
purposes
The
of the Unfair
in
be to that
void
conflict
extent
because
in
Milk Sales
Act are
Practices
discussed
with the Robinson-Patman Act.
Borden, supra.
It
the
was enacted
legislative
recommendation
interim
of an
Rule 11 reads as
“Vol
follows:
following
committee
a series
destructive
ume
is a discount
in
question
the
We
next discuss
in
between
will
in discrimination
results
prohibited
pricing is
as to whether
prohibited
volume
is therefore
localities and
meaning
of a
interpret
as an
Where
that rule
the Act.” We
§
clear there is no occasion for
volume
statute is
commissioner to make
effort
apply it
and the courts will
the sections
construction
pricing a
of both of
violation
However,
is
meaning
when the
provided that volume written.
He
under discussion.
duty
the courts
doubtful it
price,
in
could
becomes
pricing is a
which
discount
elementary
It
that
that
to construe it.
be a violation
§
primary
applied
rule
in
construc
in
in
to be
a discrimination
“results
give
localities,”
ascertain and
prohibited by 416.420.
tion
a statute
§
Taney
legislative
effect
intent.
the commission-
that
We are
Empire
Co.,
formulating
County
Mo.
v.
District Electric
clearly in
in
er
error
Sup.,
that 416.420 § pricing. Statutes prohibit volume strued stated, appellants that As contend in one locality discrimination prohibiting in meaning word “discount” in effect have been form or another unambiguous. 416.440 is clear and Missouri general time. considerable discounts, including say that means orig- 416.120, was subject, statute quantity con discounts. That contention is 1907, p. 234). (Laws in 1907 inally enacted siderably weakened the fact that two number of in a are in effect acts Similar difficulty obviously had great commissioners A.L.R. See Annotations other states. arriving meaning. in at that Co. Lumber 1124. Central 163 A.L.R. cost-justified Williamson ruled 157, 33 (1912), 226 U.S. Dakota v. South prohibited by was not the Act. object general 164. The L.Ed. S.Ct. Subsequently, Commissioner re Thomason prevent large seller statutes is ruling phrase, affirmed that but added the number of localities in a doing business “provided price.” it is anot discount in We temporarily lowering prices his a state from proviso doubt changed that the added area, reimbursing himself one ruling. original Two months later the com higher profits incurred out loss promulgated missioner Rule which stated locality, he until prices received another pricing. the Act all volume competi- or smaller had driven out his local Ordinarily, statutes, interpretation monopoly busi- and obtained a tors give courts will consideration to the admin in which reported decision find no ness. We interpretation England istrative thereof. that these suggestion been has advanced Eckley, Mo.Sup., Here, 330 S.W.2d practice prohibit widely statutes however, en view the difficulties Can Juices, American (see Inc. v. Bruce’s commissioner, countered we can 91 L.Ed. Co., 67 S.Ct. 330 U.S. weight interpretation no to his final of the' sys- Under quantity discounts. 1219) of Act as embodied Rule 11. We con have purchaser would pricing the tem of cluded that when the word “discount” quantity pur- price for the pay the same 416.440 is considered in connection with the assume area. If we each chased *9 history purposes Act, and the of and City in both Kansas sells light of the facts and exist circumstances per quart 21 cents Liberty price a of at and case, ing in this its meaning ambiguous is cents, not think we do quarts for 40 or two duty and that it becomes our to construe intended, by legislature § that said section. price guilty is of provide that he Appellants contend that the con- purchaser Kan- also because a discrimination apply the paid 416.440 we should quarts less struction of bought City § two who sas Liberty Expressio est exclusio alterius maxim unius purchaser in who a per quart than thing the exclusion (expression of one is quart. one purchased only 660 another). They point
of processor’s out subsection the milk or distributor’s mer- permits aid, 6 of chandise, that section a discount of equipment, financial free or 2% payment or less on thing or before a certain Disregarding other of value.” argued specific “discount,” date. It is that since one for the moment the word it will exempted discount is it be inferred should be noted that the other words and clauses carry that all other discounts included the connotation or donation provisions prohibitory discriminatory gift. The the section. The words indicate the quoted maxim, however, merely part purchase return “is an aux- of a or the iliary statutory construction, giving something rule of be induce- value * * * applied great caution; buy is not ment to seller’s thus and application, competitor, universal or as to to divert trade conclusive from a etc. meaning statute; sociisj of a it Applying does not the maximum noscitur a considering constitute a formula for to be construction the meaning of “discount” applied.” arbitrarily 82 connection with Statutes the related words and C.J.S. 333b, (1953). clauses, weight When to be ac- would indicate it refers to an question arbitrary, corded predatory the rule in is balanced reduction in against history a consideration of the and which is made in order obtain business purposes Act, as well as certain other thus divert competitor. trade from a used, discussed, rules of In the construction hereinafter manner sug- the word does not gest any prohibit we cannot intent decisive effect. the use of volume pricing policies which do no than more as to the support of their contention In reflect varying costs, distribution sometimes 416.440, respond- interpretation of proper characterized as discounts, earned rely the maxim noscitur strongly ents are available to all customers of the dis- “The associates). known (it sociis In tributor. purchasing larger quantity at the mean- is to effect that rule or maxim a lower buyer receiving is not may ascertained be ing a doubtful word something for nothing, return for a as- meaning words by reference to the larger order is receiving saving an earned rule nos- with it. Under this sociated the distributor is able to achieve reason words, sociis, general specific citur of the quantity sold. meaning, capable analogous when other, we each so Another rule of construction consider together, take color from applicable is that general restricted to a sense the law “favors construc- words are reason, mean- analogous general, tions which harmonize with the less absurd, may enlarged unjust, tend to un- ing of restrained which avoid a word be results, object confiscatory op- reasonable or whole reference pp. pression.” City used.” 66 Laclede Gas v. of St. clause in which Co. C.J.S. Louis, 832, ap- maxim has been 363 Mo. 835. (1950). S.W.2d state, “in the plied in in this that connection we have said that a number of cases Hyde, 213, 248 clear including v. 297 Mo. construction statutes which are not State consequences Mo.App., 130 in [3], Hagen, meaning the results and S.W. 920 State v. any proposed [1], interpretation State ex rel. Crutcher of the statute S.W.2d 250 may properly Koeln, guide v. 332 Mo. considered as S.W.2d [9]. probable applies well intent of the lawmaker from The rule related clauses as supra. language City Special Hagen, Bragg used.” as related words. State Johnson, Road prohibition Dist. v. 323 Mo. 416.440(1), 20 S.W. 22, rebate, discount, 2d If any purchaser “any A.L.R. we giving assume services, prohibited by that volume advertising free service allow- *10 ance, pay advertising space jointly, Act, used respondents required for then will be to donation, merchandise, space charge rent on price per quart free the same of milk for displaying 1,000 large the or storing single delivery quarts used retailer for to a
661 specifically Very 10' little is said in they charge for supermarket would as validity grocer. concerning any of the the neighborhood briefs ato quarts delivered “In deter and Rule which reads as follows: entirely unrealistic is practice Such mining processor is It cost to the distributor results. unfortunate lead to would sales, stops large retail retail routes the for and clearly a discrimination it given in a combined testified that should be Dr. Clarke purchaser. averaged integration,” which obtain a cost for such to uniform to “vertical lead would processor determining area. the large retail and cost to applied when the term sales, proces- wholesale all whole obtain their own outlets chain store stops in given re- sale routes area should Another sing distribution facilities. averaged large be combined and obtain a uni many distributors to be that sult would small-quantity form cost for such area.” The trial court selling to discontinue would rule, large-quantity concluded that said to the extent to purchasers and would sell prohibits cost-justified purchasers pricing, only. The small volume purchasers beyond power required buy from dis- the of the commissioner un to small be would only is, extent, them der the Act and void. who would sell tributors pay higher price undoubtedly That likely than conclusion is correct. would system of Since we have ruled that the Act charged volume does not would be prohibit cost-justified volume pricing it pricing. necessarily
would follow that the commis authority mind that volume sioner have in would not have the also to make We practice pro a rule quantity is a the effect of which would discounts be to pricing practice. in this nation hibit that widely readily We can visual has been which economy. application It ize that history provisions our the throughout the might economically is not considered Rule result sound and the establishment of “Quan competitive practice. figure an cost as unfair an artificial which would be oldest, tity among the most higher are the the distributor would discounts than purchaser of dis employed charge large and best known widely volume under a They system retail practices. cost-justified pricing count are common volume based delivery. trade, trade, wholesale and manufacturer- In that actual cost jobber reg processor common relations. the distributor or would situation unregulated using ulated well as struc be the volume Juices, system provision Inc. American tures.” Bruce’s because of the Co., 743, 745, prohibits Can U.S. S.Ct. the sale of milk which 91 L.Ed. less than cost. there No doubt are other ways in Rule would interfere with which legis- We are reluctant attribute to operation system of a volume pricing (in using an word “dis- lature intent foregoing but the is sufficient to serve practice 416.440) prohibit count” example. may It be that some sort of satis cost-justified volume view factory process deter could devised to widespread approval practice of that product average (see mine cost of. economy damaging (cid:127)our results Borden, supra), should not be one flow from its elimination. would prohibit opera the reasonable which would stated, Under circumstances heretofore cost-justified sys tion of legislature, it had in- we think that the if stated, approve ruling tem. As we prohibit cost-justified tended in regard the trial Rule 10. court expressly have pricing, would so stated (cid:127)the statute. Rule reads as follows: “Public districts, indicated, agencies rule that the Act did not school and institutions of
As
we
political
and its
sub
promulgate
the commissioner
State of Missouri
.authorize
purview
rule
divisions
void.
are not
Rule
therefore
*11
416.560,
purpose
injuring competition
Sections 416.410to
RSMo
uals for the
regu-
unlawful,
destroying competition
sales of milk
to them are not
are
lated
the Unfair Milk
Practices
Sales
then such sales to the
for thei
state
same
agree
Act.”
purpose
any
We
with the conclusion of
are likewise unlawful —absent
trial court that said rule is not authorized
express exception in
selling
favor
those
beyond
authority
and is
of the commis-
to the state.”
General Monday, May pp. HENLEY, JJ., concur. 1089, 1091). appellants, upon by rule relied The LEEDY, J., concurs in result. e., are not agencies and its i. that the state purview unless an of a statute clearly manifest include them is intention to EAGER, J., sepa- C. concurs result City, (Hayes v. 362 Mo. Kansas rate filed Pri- 888) applicable here. is not S.W.2d marily, prohibitions of the Milk Act are product, of the not the directed to seller EAGER, (concurring Chief Justice
purchaser. applies to the Insofar as result). seller, prohibitory the law is not of acts principal opinion The unnecessary not finds it the state or its instrumentalities and is constitutionality consider the By limiting of Sections a limitation the state. question- 416.420 and may do, although what the seller the state or its was raised in political may incidentally practical As a subdivisions case. matter, make, purchases would affected seem to assume the con require stitutionality application whole, that fact though does not Act as a appellants. necessarily rule contended See 416.420 and 416.440. §§ Company Borden al., Mo., Helena Automobile Dealers Ass’n v. Ander- v. Thomason et son, 110 P.2d recognize principle Mont. that case S.W.2d 735. I Supreme questions the Montana held that ordinarily Court constitutional ; state’s “Unfair Act” not decided necessary Practices unless it is to do so holding, mind, sales below cost to the state. In so with that in I merely wish to reaffirm stated, my previous views, expressed court “As before the state my said: dis Borden, is not mentioned in the supra, Act. Whether the sent in at a time when the apply Act would seller constitutionality state as a we of the whole Act was need directly question. not now determine. It re- My does not view then and now legitimate strict the state or affect in- its was and is that the Act is unconstitutional buyer. purpose entirety, terests as a to be consequently that accomplished by Chapter can as well be promulgated Rules thereunder would neces sarily defeated sales to the state as to others. fall. I have depart seen no reason to If sales below cost when made to individ- from those views as previously expressed.