*1 Corporation Company, General Electric Dandy Appliance Corporation Company, Inc., A. 841)
(CC April 1958. January Submitted 1958. Decided Chambers, O’Farrell, Jackson, Paul Kelly, Holt & F. *2 for plaintiff. Walker, for defendant.
Charles M. Judge:
Ducker, Ka- Circuit Court by certified the This is case in Court and which its motion County on own nawha complaint below, filed its bill plaintiff the appellant, de- appellee, an to restrain injunction for praying selling below, knowingly and wilfully fendant from trademark, plaintiff’s bearing electrical appliances prices retail the minimum sale at less below prices plaintiff’s with agreements under plaintiff by fixed defendant Virginia, in dealers West authorized any a signer dealer or an authorized being such viola- upon alleged based the suit is one and agreement, Virginia. Act” of West “Fair Trade tion of so-called it that alleges: complaint, in bill of its plaintiff, The to do business authorized corporation is New York in the business engaged that Virginia; and sell- appliances portable electrical manufacturing bear appliances that said Virginia; in West the same ing Electric” and (G.E.) “General trademark plaintiff’s appliances with open competition fair and are in others; has by plaintiff that class made general same a million excess of money, large sums expended advertising appliances said and dollars, promoting reputation good and will a valuable and has established trademark; pursuant for and appliances said (Chapter Virginia, Act” of West to the “Fair Trade Session; Chapter 1937, Regular the Legislature, Acts of amended), Virginia, as 11 of the Code of West 47, Article form, all in same agreements, into entered plaintiff minimum retail resale plaintiff stipulated under which and that said contracts now appliances for said prices notified effect; duly de- plaintiff in full force agreements “Fair Trade” of its the existence fendant of and of the minimum retail resale prices stipulated by plaintiff for such appliances; that defendant at various times after such notice wilfully and knowingly sold such appliances at prices lower than those stipulated plaintiff and not under an exception provision of such contract; that by reason of such price-cutting and other violations of the defendant, Fair Act on part plaintiff’s trademark and good being jeopardized will are and the value thereof plaintiff debased and will suffer great loss and irreparable and other injury, retailers will not be able to sell said at retail appliances established prices may refuse to handle said and that appliances; plaintiff has adequate remedy no to the law. Exhibits bill contain the form of contract made with others than defendant, lists, and price sup- well as affidavits port alleged. facts
The defendant demurred to the on plaintiff’s bill (1) following grounds: allega- that has made no plaintiff tion that any agreement defendant entered into with plaintiff stipulating minimum retail resale for prices appliances plaintiff; (2) manufactured to make the “Fair of Virginia Act” West applicable Trade defendant, who did not into contract any enter with plaintiff for providing for minimum retail resale prices is a or exercise of the appliances, proper legitimate not state, police power of the and an is invasion property of this defendant rights process without due law; (3) Fair Act hav- Virginia West Trade ing been enacted in 1937 void as of the date of was its enactment because it was Federal Statute contrary Act, is, and known as Sherman Anti-Trust there- fore, effect; and, (4) void and of no legal still that Sec- tion 6 Fair Trade Act Virginia of the West is void as violative of Section Article VI of the Constitution of State of West Virginia, because Section 6 of the West Fair Trade Act an into Virginia brings object the Act Act, is in the title of the there- expressed which fore, Section 6 of the Act is void as to a non-signer said price agreement a minimum retail resale such as this defendant. Legislature, Acts of the Chapter
Section 6 Session, Regular reads as follows: offer- advertising, “Wilfully knowingly than commodity at less ing the selling any sale into contract entered price stipulated any act, pursuant provisions to the of this whether selling so for sale or person advertising, offering contract, is or is not a party to is unfair com- petition and is at the of any per- actionable suit damaged son thereby.” We consider it unnecessary, view the recital issues, to quote the other sections of the statute.
The Circuit Court overruled the defendant’s demurrer as to its first grounds three sustained on the fourth ground, holding that the Fair Trade Act void because it violates Section Article VI of Constitu- tion of Virginia, in that the title to the act is not sufficient to express purpose its of bringing its within scope of Fair non-signer Trade and the agreements; Court certified to following Court questions, this though which substantially speci- are the same those demurrer, fied in the exactly and expressly these: (1) provision Is or is not the “Fair the West Act” (Acts the Legislature, Regular Ses- sion, Code, amended, Ch. W. Va. Ch. Article 6), Sec. which the defendant to maintain requires prices certain minimum retail resale for appliances, even though any the defendant did not enter into contract providing with the for such minimum retail plaintiff, *4 resale of the of prices, proper police power exercise the State of Virginia? West
(2) or is not the of the West “Fair provision Virginia Is Act”, 1937, 123; (Acts Code, Trade of Ch. W. Va. as amended, 47, 11, 6), Ch. Art. Sec. which requires to maintain certain minimum defendant retail resale though for even the defendant prices appliances, did not enter into contract with the any plaintiff providing prices, minimum retail resale an for such invasion of rights process of this without due property defendant of law?
(3) Act”, Is is “Fair or not the West Trade Virginia (Acts 11, 1937, Code, amended, 47, of Art. 123, Oh. Ch. 6), Sec. in legal void of no effect because enacted 1937, contrary to a known the Sher- Federal Statute man Anti-Trust Act?
(4) or Virginia does not Section the West Does 6 of “Fair Act”, (Acts Code, 1937, of Ch. W. Va. as amended, so relates 6), Ch. Art. Sec. far as it in to rights against non-signers, object embrace an expressed title of said Act as to be rendered so void as violative of Section of Con- Article VI stitution of the State West Virginia?
The first second questions may certified well together considered because it first must be determined whether the Fair Trade Act proper is exercise police not, of the power state, if it then it necessarily is follows that it is process not due as to but non-signers, if the state, Act within police is of the power question of whether it process violates the due provision Virginia the West may Constitution still con- require sideration and determination. great
Although placed by reliance is the plaintiff upon the case Old Distributing Seagram Dearborn Co. v. Distillers Corp., U. S. S. Ct. 81 L.Ed. decided and which involved a similar Fair Trade statute Illinois, enacted in and that case au- remains as thority for the Virginia of the validity West Act so far as validity its under due process clause concerned, Federal Constitution is authority is not upon conclusive this Court in determining whether such an Act the police power is within this State violative due process provision of the law Constitution, though even the provisions of both Federal and State Constitutions are practically However, identical in our conclusion language. that the Act in is not a exercise of the question proper police power *5 holding any necessity eliminate this will
of state Federal not violate may the Aot valid 'because determina- that the opinion We of Constitution. police power limitations of of extent and tion sovereignty of the prerogative a of this state remains there- constitutionality of any question and this state is determinable the Constitution of West of under in- was The converse which proposition Court. by this Company case Distributing Dearborn in Old volved here before the case applicable to necessarily is not for decision. us Fair Trade Laws first enactment these
Since the of the states determin- many there have been decisions earlier decisions invalidity, and the validity their ing of the validity, to their but as mostly favorable were more or the decisions are appears time it present authority such respectable With equally less divided. defendant, and plaintiff both positions in favor posi- to substantiate either too difficult it would necessary police to define the tion, but here it becomes not ap- far as the same is or is of this state so power here, according- issue in this case and decide the plicable ly- Ohio, States, and have namely, New Mexico
Two Pair an decisions declared Trade Acts very recent their state, and police power improper exercise process provisions due law accordingly, violative Center, Drug Corporation a Skaggs constitutions. of their Company, Corporation, P. 2nd Electric v. General Bargain Fair, Inc., Corp. & Carbon v. Carbide 967; Union 481. 182, 147 N. E. 2d 167 O. S. et al. Electric Center General Skaggs Drug
The case of many of complete review of al., quite contains supra, et thereto, and addition subject, this the cases on annotations contained the extensive has cited court 2d cases 19 A. L. R. which L. R. 1335 and 125 A. refer, in order elimi- herein annotations we now in detail citing discussing necessity nate the Such a discussion subject. on this and decisions opinions in a of the authorities with- only repetition will result *6 However, out additional reason information. affording or in the following paragraph quoted because the pertinent reasoning, insert Skaggs expressive case is so of our we here, the as follows: approval same with in Cox Georgia “The Court of Supreme in comment- Company, supra, General Electric as to the upon the of other states ing fair trade statement decisions acts, following very pertinent the made 286, 85 S. E. 2d Ga. 519]: [211 “ that a number of the earnestly argued ‘It is validity of their supreme have the upheld courts almost, if Acts, Fair tirely, not en- which were Georgia identical the statute under with to a consideration, and our attention is called number the United that a upheld upon Court of Supreme of decisions of the fact States. We are aware of Supreme number the State Courts have acts, these passed number have them, and others have held them invalid. are also familiar the conflicting We with de- cisions on this question by the Supreme Court States, of the United concurring pointed out in the special opinion Chief Justice Duckworth Duncan, [208 Harris v. supra Ga. 67 S. E. 692], here, however, 2d areWe dealing with the statutes of this State and with question whether or not they violate the Constitution of the State of Georgia. What the courts of other States have decided not controlling, and this is one of the powers few left to States to decide for regardless themselves of what the Supreme Court of the may may United or States not have decided. areWe also familiar with the modem trend to allow the government to encroach more and more upon the individual liberties and free- doms. So far as are concerned, we we will not strike down Constitution of our State for this purpose; neither will we follow the crowd. The scheme described in petition now under con- sideration permits a manufacturer, under guise of protecting his property rights in a trade name trademark, to control the price of his product down through the channels of trade into hands the ultimate consumer, and into con- he has no persons with whom hands clearly This statute tractual relation whatever. process due clause provisions violates ” Georgia.’ of the Constitution of State of further, the Court page
And concluded: above, it be determined “In view of the will §2, of 1937 Chapter (§49- of the Laws 2-2, 1953) and void N.M.S.A. is unconstitutional an arbitrary and unreasonable exercise rela- police power any the tion fare insofar without substantial health, to the public safety, general wel- concerns as it who are not persons §1, parties provided to contracts Chapter (§49-2-1, 1953).” Laws N.M.S.A. *7 Bargain Fair, Inc., In Union Carbide & Carbon Corp. Court, Fair supra, holding the the Trade Act police exercise of the and power was an unauthorized of the “due the Ohio process” provision contravened Rights, Bill said: of present- of more criti- and in years light “In recent the have conditions, courts day become acts and have invalidated cal of the fair trade them increasing frequency. of with
parts the “Basically, approving those cases acts producer that a of proceeded theory toto on the expended money a and specified selling to who has product, trademarked market a establishing effort in on the ought to be price, subjected not entail; injury the cut-rate would which sales and goodwill that the is of a trademark ownership right a which the law should property protect against pro- and is ducer’s only damaging all who sell the assertable cutting and is not products; price and goodwill to the of business a has deleterious effect on producer the public but the into the brought equation as well. Also acts, the fair philosophy is the economic of trade it is said and substantial re- which lationship bear real welfare, the public
to the and proposi- legis- tion that their enactment is a matter for in the lative determination exercise the police inter- not courts should which the power, with fere. hand, by taken “On the the position other the fair other courts is that the real effect rather fixing trade is anticompetitive price acts than the the of trade- protection goodwill marked be measured products. Goodwill should can a com- by price goods command in petitive market allowing and not manufac- turer to at a price sell retail he pegged which times, himself selects. In normal the inflexible price arrangements acts which the sanction opposed to our concepts traditional of free com- petition for the public, benefit of the consuming and clause binding those who do no.t enter into price-fixing contract with manufactur- er offends Hence, such concepts. the nonsigner clause interferes with right constitutional the owner of property of it dispose as he pleases represents the exercise of police power for a private opposed to as a public pur- pose.” While much is said right owners trade- marks brands to have their rights property pro- tected, and certainly rights should be protected to such extent may compatible with constitu- rights tional of the public, we do think that the pro- tection which Act in question purports to' give reasonably public morals, related to the health or wel- and, fare, Court this has the case of recently State *8 v. Memorial Development Gardens 143 Corp., W. Va. 425, S. 101 E. 2d said: legislation power “All the must police under
be within v. Milkint the constitutional inhibitions. McNeeley, 804,169 113W. Va. S. E. Eubank City Richmond, 226 33 U. S. S. Ct. L. Ed. 156.” it Though great plaintiff is of to the to advantage have additional in protection provision the making to or unlawful sell trademark brand the articles below manufacturer, fixed the the prices by nevertheless manu- or distributor facturer is of his to deprived rights the to regard others make reasonable contracts with he sold, and merchandise shall price which such damages. for enforcement suits protect by can himself to rights or distributor’s manufacturer’s To extend such improper exercise another public generally is but warranted, opinion and not in our police power void, of Section as in violation being and such is Virginia, which of West of Article III of the Constitution that: provides life, liberty, or person deprived “No shall be law, and the without due process property,
judgment peers.” of his are of the and so foregoing opinion, So from we Act”, hold, Chapter “Fair Trade the so-called Session, Regular Chapter Acts of Legislature, Virginia, Article Section 6 of Code West amended, power is not a of the proper police exercise unconstitutional, and the to of the state and is answer and the negative certified is in the question first in the affirma- to the certified question answer second tive. certified the question there us is not before
As “Fair Trade Act” is within the subject whether so-called to the herein is restricted our decision police power, should con- act in This Court legislative question. specific by been as have decided only questions sider such Kidd, here. Means v. 136 W. it certified trial court 2d 514, 67 S. E. 740. Va. is, certified, there questions third and fourth
As to the invalidity to foregoing of the conclusion in view these two Act, necessity determining hardly any as the Circuit Court certified, inasmuch but questions being so questions upon points, these passed pending the case remains Court while certified this limited Court, questions discuss such we will extent. Act is the Fair is whether question
The third
Sher-
as the
Federal Statute known
void because
*9
man
Act,
Anti-Trust
Fair
Act
inasmuch as the
Trade
was
enacted before the Federal Statutes known as the Miller-
Act and the
Tydings
Act,
McGuire
and there was there-
after no re-enactment of the
Virginia
West
Fair Trade Act.
These Federal Statutes
the Fair
made
Trade Acts of states
to
exceptions
the Sherman
Act,
Anti-Trust
and effective
in interstate
It
commerce.
is
held that
generally
where
act
legislative
void,
is totally
not in
enforce-
any degree
enactment,
able
the time of its
it cannot be converted
into a valid statute by the removal of the cause of its
invalidity as
could be
this
done
only by re-enactment of
the statute after removal of the cause of the invalidity.
Miller,
State v.
66 W. Va.
The remaining question is whether or not Fair Act, because of Section 6 thereof providing for rights against non-signers contracts made the man- retailers, their ufacturers with distributors is void the reason that the title to the Act does not meet the requirements of Section Article of the Constitution VI Virginia. The Circuit Court held that the Act was failure in regard. void because its this Article pertinent provision, namely, The Constitutional of Section follows: VI more shall embrace passed, “No act hereafter object, expressed
than one and that shall *10 502 in be embraced any object shall But if the title. act the shall expressed, not so an act which is not be so thereof, as shall as to so much only void revised, or amend- shall be and no law expressed, law the only; but ed, to its title by reference inserted amended, shall be
revived, or the section * * act at the new large, the 123,Acts of Act, Chapter to the Fair The title Session, as follows: 1937,Regular Legislature, owners, pro- trade-mark the to protect “An act against public ducers, general distributors in the dis- practices and uneconomic injurious bearing commodities competitive tribution of distinguishing name, trade-mark, brand establish- voluntary contracts through the use of providing prices minimum resale ing minimum resale prices to sell unless refusal are observed.” recent General act involved case This was Dis- 621, 151 in which the Wender, Supp. F. Electric Co. v. District of trict of the United States for Southern Court Act held title to the was Virginia, that West provision, constitutional under the aforesaid sufficient the United to appeal on pending this case is now although Circuit. In the Fourth for the Appeals States Court said: Moore Judge opinion, District Court’s Supreme many times “It held has been ‘the that Appeals Court of legislature of the of an act of the title’ language comprehensive in its most be construed ‘should and act;’ tents act be declared of the validity to liberal sense favorable con- ‘manifest only it is where the title’ should the of the act are not within invalid; ‘all doubt will be and that of the constitutionality of the resolved in favor It has said that test suf- statute.’ been convey persons whether the title ‘will ficiency is matter subject enough interested information to the actual act,’ reading of the provoke fairly ‘the long and that so title reflects act, purpose necessary it was not to descend Mines, in the title.’ See State particulars v.
503 1893, 125, 38 470; Wheeling W. Va. 18 S. E. City ex Co., 1948, rel. Carter v. American 131 Casualty 584, 404, Shaffer, W. Va. S. E. 2d Sypolt 130 W. 235, 239; 43 S. E. 2d State ex Va. rel. Hallanan v. Thompson, 1917,80 W. Va. S. E. 810.
“On
hand,
.the other
it has been made equally
clear by decisions of the same court that in cases
where the act itself flatly contradicts what its title
imports it must be stricken down under
con-
stitutional mandate.
In the
case
Stewart v.
Tennant, 1903,52
W. Va.
page
S. E.
at page
one of the greatest of West Vir-
*11
ginia Judges, Brannon, in discussing the constitu-
provision
legislature
tional
clear
concerning
titling of acts
of
the
says:
“ ‘The purpose of this provision, as declared by
courts,
the
is to
the
prevent
laws,
enactment of
in
a
manner,
clandestine and stealthy
by compelling
a statement
in the title of
act,
of its aim and
purpose, to the end that
the public, as well as
members of the legislature may conveniently and
certainly know the character of pending legisla-
tion. But for this provision, omnibus bills could
put through
be
the legislature, carrying all kinds
measures,
of
forms,
concealed in all
and neither
legislator nor
public could,
any
with
of
degree
* * *
certainty,
their
fully know
contents.
“ ‘Although the courts construe
provision,
this
in cases not within the mischiefs
sought
be
it,
by
remedied
so as to sustain legislation,
they
rigidly enforce it in
falling
all cases
within those
mischiefs, and it
no difference how
makes
meritor-
may
ious the act
If
be.
the constitutional provi-
sion
been disregarded
has
it,
the passage of
it
”
cannot be sustained.’
And as was said by
Hudson,
this Court in Elliott v.
W. Va.
“The a purpose of such constitutional provision both the protection legislators is of and the the outset, it public. At the is advisable that in a pending legislature, title of bill all persons thereby reasonably shall be informed of its purport legislator may order that he —the proposition of the the nature initially advised and oppose; or support upon he is called which to ad- opportunity have may the citizen that he To sub- enactment. proposed
vocate resist of an body important proposition an merge thereto, if act reference wholly inadequate with of the title, only is subversive any, in the persons all interested discussed that principle just fairly pending should be informed of the import destructive of the American legislation, but open consideration concept necessity to- Such concealment legislative matters. tends And, then, act, the passage after of an deception. importance, title is of sufficiency primary its might advantage both as to those who claim provisions, persons against its will not vision of the whom reasons, For operate. these does title which a ‘pointer’ furnish at least to a challenged pro- act is insufficient.” The title to the Fair Trade Act so enacted by Leg- not sufficiently islature does indicate that non-signers of for the contracts sale merchandise at prices fixed by the manufacturers or distributors included within its * * * and the “to terms words protect general public against injurious uneconomic in the practices distribu- * * *” of competitive tion commodities do not in our opinion apprise public they may pecun- become *12 iarily liable provisions specified for violation of its as Section 6 of the Act. stated,
For reasons the opinion to, we and so hold, Act”, that “Fair Trade Chapter so-called Legislature, Regular Session, Acts of the not a exercise of the proper police power and is unconstitutional process as the due violating provisions, void law and as not title containing sufficiently expressing its Virginia. the Constitution of West purpose, required in part. reversed part;
Affirmed Given, Judge, dissenting: the title to Act decides that majority
Since that insufficient, necessarily follows was question
505 Act was void from supposed its beginning. That being true, the Act force, was never of any and could not have actually violated affected any constitutional or other right any person. Nevertheless, the majority proceeds, in violation of universally recognized rules to the relating duties of in regard courts to adjudging solemn Acts of Legislatures void, to decide constitutional The questions. sufficiency iof the title to the Act was logically the first question to have been considered by the Court.
My understanding the majority opinion, itas relates to the constitutionality of Fair Act, is that the power of the Legislature in the passage of the Act in question was so arbitrarily exercised as to render the Act itself and, unconstitutional impliedly, least, that passage of a Fair Trade Act is within legitimate reaches of the legislative branch of the State Government. I agree legislation such is within the police power of the State, and that such power must not be arbitrarily or capriciously I exercised. can not believe that the power of the Legislature the Act here involved was arbitrarily exercised.
The only for the basis holding power was arbi- exercised trarily rests on inclusion in the Act of the provisions relating to non-signers contracts, it being contended that provisions constitute arbitrary inter- ference rights with the of freedom of contract, amounting to denial of due process, and not within the meaning of the general provision. welfare
All pertinent authority, think, I is to the effect that rights “Private contract must yield to the public welfare”. 9, Syllabus, Part Point Mill Creek Coal & Coke Co. v. Commission, Service W. Va. 100 S. E. Public A. L. R. 1081. See Public Service Commission West Harpers Ferry and Potomac Bridge Co., 291, 171 Va. S. E. Certiorari W. denied 292 U. S. 54 S. Ct. 78 L. ed. 1479. In Chicago, Burlington & McGuire, Quincy 549, 567, Railroad Co. v. 219U. S. 31 S. Ct. *13 259, 328, 262, 55 L. ed. Hughes, Mr. Justice speaking for a * * “* Court, full said: But it recognized was in the cases a
cited,
others, that freedom of contract
is
in. many
absolute,
There is no absolute
right.
and not an
qualified,
to
wills or to contract as one chooses.
freedom do
one
from
guaranty
liberty
legislative
The
does not withdraw
activity which con-
supervision
department
that wide
contracts,
deny
sists of the
or
making
government
power
provide
safeguards. Liberty implies
restrictive
restraint, not
arbitrary
immunity
the absence of
from
in the
regulations
imposed
reasonable
and prohibitions
Christensen, 137
community. Crowley
interests of the
v.
89,
13,
620];
U.
S. Ct.
34 L. Ed.
Jacobson
page
S. [86]
[11
11,
Massachusetts, 197U. S.
S. Ct.
v. Commonwealth of
[25
power of
643],
49 L. Ed.
is within the undoubted
‘It
all
from
con-
to restrain some individuals
government
from
contracts
tracts,
individuals
some
as well as all
* * *’
the more modern
Court has followed
”. This
provision
welfare
holding
general
that the
doctrine
“
the “contract”
limited;
‘Neither
narrowly
that
not to be
(of
clause
Federal
State
process”
nor the “due
clause
power
Constitutions)
overriding
effect of
has the
reasonably
are
all
regulations
the State to establish
comfort,
order,
health, safety, good
necessary to secure
Coast Line
community.’ Atlantic
or
general welfare
721”. Point
Goldsboro,
58 L. Ed.
v.
232 U. S.
a
Virginia,
Public
Commission
Syllabus,
Service
Bridge
Potomac
Com-
Harpers Ferry
v.
Corporation
Fair Trade
questions
That
Corporation, supra.
pany,
I
concern,
can not doubt.
welfare,
public
of general
have
except three
of the Union
that all
fact
states
The
proof
conclusive
is, my opinion,
legislation
enacted such
interest and welfare.
general
of such
held
have
of the states
the courts of
few
It is true
reason,
other
or, for some
unconstitutional
Acts
such
generally
Acts have been
ineffective,
but
invalid
of attack.
point
every
seemingly
possible
upheld, against
P. 2d
Kunsman, 5
2d
Cal.
Co.
Factor & v.
See Max
Stores, 45
Pay
Drug
Less
Skaggs
v.
Mfg. Co.
177; Scovill
Co. v.
&
Burroughs Wellcome
2d
291 P.
2d
Cal.
2d
596, 24 A.
12 Conn.
Co.,
Wholesale
Johnson
Perfume
Co., Del. Ch.
Cooker
Pressure
National
841;Klein
*14
507
106 206; A. 2d Seagram-Distillers Corp. v. Old Dearborn Co., Dist. 363 610, Ill. 2 N. 2d 940; Joseph Triner Corp. v. E. McNeil, 363 559, Ill. 2 N. 929, 104 E. 2d Barron 1435; A. L. R. Motor, May’s Inc. v. Drug Stores, 1344, 227 Iowa 291 N. W. 152; Iowa Pharmaceutical Ass’n. v. May’s Drug Stores, 229 554, Iowa 294 Goldsmith 756; N. W. Co., v. Mead Johnson & 176 682, Md. 7 Home Utilities Co. v. Revere 176; A. 2d Copper Brass, & 610, 209 Md. General 109; 122 A. 2d Electric Co. Jewelers, v. Kimball 333 665, Mass. 132 N. E. 2d 652; W. A. Pen Barrett, Co. v. 1, 209 45 Miss. Sheaffer Johnson & Johnson v. Weissbard, 121 838; So. 2d Eq. N. J. 585, 191 General Electric Co. v. Packard Bamberger 873; A. & Co., 14 209, N. Lionel 18; J. Corp. Grayson- 102 A. 2d v. Stores,
Robinson Inc., 191, 15 N. J. 104 Bourjois 304; A. 2d Sales Corp. Dorfman, 273 N. Y. v. 167, 30, 7 N. E. 2d 110 A. Masters, General Electric 1411; L. R. Co. v. 229, N. 307 Y. 120 N. Ely Lilly Saunders, & Co. v. 802; E. 2d 163, 216 N. C. 4 528, S. E. 2d Union Carbide Carbon 125 & 1308; A. L. R. Corp. Fair, v. Bargain 145, 255; O. E. 58.Ohio 130 N. 2d Burche Co. v. General Co., Electric 370, 382 Pa. 115 A. 2d 361; Miles Co., Laboratories v. Oral Drug 523, 67 D. 295 S. N. 292;W. Liberto, Corp. Distillers 478, v. 190 Tenn. Frankfort Seagram 971; 230 S. 2d Corenswet, Distillers Co. v. W. 198 644, Sears v. Western 657; Tenn. 281 S. 2dW. Stores Thrift Olympia, 10 2d 372, 116 P. 2d Weco Products 756; Wash. Co., Co. v. Reed Drug Bulova 474, 426; 225 274 Wis. N. W. Anderson, Watch Co. v. Union 21, 243; 270 Wis. 70 N. W. 2d Carbide and Corp. Carbon Distrib., White River v. 224 Ark. Olin Mathieson Chemical 558, 455; 275 S. W. 2d Corp. v. Francis, 160, 134 Bristol-Myers 139; Colo. 301 P. v. Co. 2d Webb’s Cut Drug, Rate 508, Liquor 91; 137 Fla. 188 So. Stores, Distilling Inc. v. Continental Corp. (Fla.), 40 So. 371; Seagram Greene, Distillers v. Ben Corp. Inc. 2d (Fla.), Miles Laboratories Eckerd 235; 54 v. (Fla.), So. 2d 73 So. Stores, Oneida, Grayson-Robinson Inc. v. 680; 2d 209 Ga. Sweeper Bissell Co. v. Shane 161; Carpet 613, 75 S. E. 2d Dr. G. H. Tichenor Co.,_Ind._, 143 415; N. E. 2d Bros., Co. v. Antiseptic Schwegmann 231 La. 90 So. Shakespeare 343; 2d v. Lippman’s Shop Sporting Co. Tool 508 Co.,
Goods 334 Electric 268; Mich. 54 N. 2d McGraw W. Co., Co. 2d Drug v. Lewis & 159 68 W. Smith Neb. N. 608; Wahle, P. 2d General Electric Co. Ore. 296 v. Inc., 2d 635; Thrifty Sales, Electric Co. Utah General v. Kirsch, 2d Co. 198 Va. 741; 301 P. Benrus Watch v. Center, a Corporation Gen- 384; Skaggs 92 S. 2d Drug E. (N. M.), 2d Union eral 315 P. Company Electric al., Fair, Inc., et Bargain Corp. v. Carbide & Carbon been Acts have 2d 481. Such Ohio St. 147 N. E. *15 States. See United Supreme held Court valid Corp. Distillers Seagram Distributing Co. v. Old Dearborn 139, 81 ed. 109. L. (1936), 299 U. S. 57 S. Ct. my confirmed said here to indicate Sufficient has been discussed to have been Every appears question views. could be purpose useful case cited. No re-discussed Being dissent. in this by any further discussion served indicated, I dissent. respectfully views Secondary Commission, Activities School al. et Judge, et al. F. Morton Wagner, 10939) (No. 11, 1958. April 1958. Decided January
Submitted