Grayson-Robinson Stores Inc. v. Oneida Ltd.
75 S.E.2d 161
Ga.
1953
Check Treatment

*1 sustaining Brannens, and the order judicata ad filed res it, “is, as to dismiss the motion of Waters to case, determination this construed, as a and final full defendants, dismissed” as to all of is, therefore, this case was error. except Atkinson, concur,

Judgment reversed. All the Justices participating. P. J., LTD. INC. v. ONEIDA

GRAYSON-ROBINSON STORES Argued February No. 18091. January 1953 Decided Philip Thomas and Foster, Sibley Miller, & James E. Alston, H. Jr., plaintiff Alston in error. Kelley, Spalding,

Robert B. Troutman & Troutman, Sibley, Halliday, Meadow, Nims, Martin, M. K. Sibley, James W. Cummings, Whitman & Orville contra. Williamson and Gambrell, Barwick, and Robt. Harlan, Russell Swift record. party interest not Richardson, party action brought Justice. Ltd. this Oneida Candler, Georgia’s Fair Trade Act Grayson-Robinson Stores Inc. under (Ga. particularly under 1937, p. of 1937 knowingly “Wilfully act, as follows: which reads offering any commodity at less advertising, selling pursuant entered price stipulated in into than the advertising, person of this whether the contract, party to such offering selling is or is not a for sale competition suit is unfair and is actionable at the alleges: The in substance damaged thereby.” sells manufactures corporation, York plaintiff, New trade trade-mark commerce silverware under interstate en- name “Community.” products sold name of Its associated good will is joy plaintiff’s reputation, *2 contracts entered into plaintiff with the trade-mark. The has re- establishing prices products with minimum retail of its sale plaintiff Georgia. of are made tailers the Sales State and contracts, minimum operating to retailers under -retail-sales retail the “Community” silverware advertised and sold to is operates a retail trade at defendant the The fixed.. for and Atlanta, Georgia, advertises, and store offers purchases from sources “Community” products, which it sells prices fixed manufacturer, prices than less the other the at than plaintiff the The defendant by under its “fair trade contracts." disregard utter fixed conducts activities in of the retail these sales-price plaintiff by' wilfully issued the schedules knowingly “Community” at bearing the name sells merchandise than so fixed. These the are less defendant the sales adequate The plaintiff remedy leader” sales. “loss has no injury dealers, with the to its will and relations incurring by is reason the sales below defendant’s plaintiff’s prices. signed schedule fixed The defendant has provisions plaintiff Georgia’s no Act, but Fair Trade is known in the vernacular as a “non- signer” agreement contemplated act. of the trade The prayers process, general injunction, relief. generally stating

The was demurred to no cause Georgia’s action, upon ground Fair Trade Act of no was, 1937 has force and effect and null because and void approved 4, contrary when enacted and 1937, on March provisions inconsistent with the of the Act, Sherman which Con- gress passed July 2, upon ground 1890; further Georgia 1937, the General Assembly, reasons enumerated the Georgia offended stated hearing, After a the court overruled all grounds general demurrer. excepted. defendant The argued by contended defendant its coun approved Fair sel which Assembly General since the 1937, void, ab initio 4, March taken. well position is enact it. This power pro 6, clause by article United States Constitution of the United States the laws Constitution, “This vides: made, treaties thereof; and all pursuance made in shall be of the United authority made, under or which shall be Judges in and the land; States, shall be supreme,law Constitu Thing thereby, any every bound State shall be notwithstanding.” contrary tion or laws well as that Code, 1-602. And our Constitution 2-8501; Code Code, provides the same. Ry. Co. v. Atlanta See, connection, in this Southern Gainey v. Supply Co., Sand 135 Ga. 877); Ford v. Lone Thomasville, Bank And Cement Star the Federal 3, of article subsection with for regulate Commerce power Congress has exclusive “To *3 the Indian and with eign Nations, among the several States Congress on power, Exercising Code, Tribes.” § 15 U. S. C. 209, Stat. July 2, 1890, passed the Sherman Act combination in the illegal “every contract, 1), which declared § of trade in restraint conspiracy, trust or otherwise, form of or foreign among or with Nations.” the several States or commerce passed originally Act, as Under the Sherman price-mainte- price-fixing and resale by Congress, interstate prohibited; otherwise, were arrangements, by contract or nance per illegal se. trade,” “in and therefore they were restraint of Park 220 Company Medical v. John D. & Sons Dr. Miles Soc- L. ed. United States v. Sup. Ct. 376, U. S. 373 55 (60 Sup. 811, 84 L. ed. ony Co., 310 U. S. 150 Ct. Vacuum Oil Seagram 340 U. S. Joseph Sons, Co. v. 1129); Kiefer-Stewart August Congress (71 Sup. 259, L. ed. But 211 Ct. 95 C. Miller-Tydings Act Stat. 15 U. S. 1937, passed the 1 Sherman and that 1), Act, an amendment to of the herein “nothing that con- part material amendment agreements prescribing or illegal, tained render contracts shall specified when prices resale” commodities minimum description ap- lawful agreements “contracts or (cid:127) law. intrastate transactions” under local plied to Schwegmann States in Bros. Supreme Court the United (71 Sup. Corp., Ct. Calvert Distillers 341 U. S. Miller-Tydings Amendment to 1035), ed. agreements” pre or excepted the Sherman “contracts Act com scribing trade-marked minimum resale of agreements valid where such contracts or were modities signed a statute, and that a retailer who had not subjected maintenance was to to schedule Corp. price-maintenance plan. See also Sunbeam Went 2d, Georgia’s ling, 903; However, 185 Fed. c. 192 Fed. s. legislature prior the Miller Fair Trade Act to Tydings amendment to the Sherman Act. argued by

But counsel for the defendant error longer Fair Act offends the Sherman prohibitive entirely provi it was removed from since Congress July 14, passed sions McGuire Act “it part recites: Stat. U. S. C. which in isriihe purpose rights protect of this States under the Act to regulate United States internal Constitution their affairs to adopt particularly poli more and to laws, enact statutes and to agreements prescribing authorize mini cies, which contracts stipulated mum or to prices for the of commodities and resale stipulated prices prescribed by such con extend minimum or agreements parties persons tracts and to are not thereto. who permit statutes, further purpose is the of this Act laws, public apply contracts, policies commodities, agreements, affecting foreign interstate activities commerce”; provides: “Nothing and which section 3 also contained this Act or Antitrust Acts render right right unlawful the exercise or the enforcement of *4 policy by any statute, public action created or law, or now any State, Territory hereafter effect or the District of Columbia, wilfully which in that substance and know ingly offering selling any advertising, commodity agree prices prescribed than the in such contracts or less offering for sale or advertising, whether the ments agreement, selling party is or is not a a contract competition any person unfair is actionable suit of at the damaged thereby.”

617 Georgia’s Fair agree accordingly that So amended Sherman Act as prohibited Act Trade but we Act; do by McGuire Miller-Tydings Act valid; became that act agree contention with the n without amended. Act thus re-enactment, after the Sherman inconsistent contrary to and Georgia’s Fair Act was Since amended terms the Sherman Act before was offended the^ Act Miller-Tydings the McGuire clause of the Federal the commerce supremacy clause as well as by article Constitution of 1945 our legislative acts which violate the 1, declares 4, paragraph judiciary the United States are void and time with them. so declare Code be constitutionality an act is to de- reference to which (Jones enacting body passage by date of is the termined E. unconsti- McCaskill, 724); 37 S. if it is v. Moreland, v. 203 it is forever void. Christian then, tutional 201). (45 unconstitu- general S. “The rule is that an 20 though having statute, law, the form and name of is in tional legal contemplation wholly void, reality law, but is inoperative passed. if it never been Such a statute had is as just purports that it as it would question leaves to settle Jur., not been enacted.” 11 Am. Constitutional statute Virginia in State Supreme 148. The Court of West Law, Miller, (66 E. 19 Ann. Cas. 66 W. Va. 436 “A be made effective void statute can re-enact- authority Georgia ruling for its cited ment,” McCaskill, supra, Tufly, and the cases of State v. 20 Jones (22 374); 427 19 Am. Comstock Mill Pac. St. Nev. 434); 21 Allen, City Co. v. Nev. 325 Pac. of Erie v. &c. Brady, 641); Mining Osmun, Pa. 462 Atl. Seneca Co. Smith, Mich. N. R. A. Banaz v. W. Congress cannot, Pac. “It is 133 Cal. clear give slightest ratification effect by authorization or to a state which is conflict with the Constitution law or Constitution Congress validate an act of can of the United States. Whether previously invalid because inconsistent which were statutes state been decided. legislation uniformly has not One with Federal unconstitutional be- states that a state view statute *5 Congress over power of violation cause amounted to a of Congress deal- by interstate commerce is not validated an act of applica- render a later ing subject matter would with the Congress. supplemental act of merely to the tion of state act removal theory that the of consti- holding This results from vali- objections statute does not tutional to an unconstitutional Jur., Law, it.” 11 Am. Constitutional date or revive among other view, the author support cites, 151. In this ruling follows our cases, Miller, supra, cites and Mayor supra. in Jones v. This court in Wilkins McCaskill, full- 42), followed the Savannah, &c. 152 Ca. 638 S. E. “By ruling McCaskill, page and at 643 said: bench in Jones v. August city 1919, the is authorized [legislature’s] charge repaving entire cost thereof to its streets the special passed when abutting-property owners. This act force, in general law in section 870 of Code was embraced provision clearly in conflict and seems to us passage of this State which forbids the existing provision by had been an special for which made act August infirmity of general law. constitutional the act This by fact that of the Code 18, 1919, not cured this section providing August 19, 1919, that ‘where was amended on change any city having made in modification the charter of 65,000 100,000, of not less than and not more than population regard paving, by the method an amendment to may for the charter, provision be made such amendment repairing any existing pavement pro- under the renewal p. remedy such amendment.’ Ga. L. visions of This August malady fatal came too late to save the act Reynolds Again, Brosnan, 1919.” City unanimously zoning for the statute ,of legislature Albany, which, Constitution did become a .unauthorized valid adoption subsequent of a amendment to the Con- statute authorizing See, it. connection and to the stitution same effect, City, Norris v. Town Union Ga. 283 S. McCaskill, supra; Express Jones v. Atkinson v. Southern (N. S.) 94 C. 444 48 L. A. page opinion, last cited and the case court said: statute, that objections to a constitutional removal of the “The give operation void, null and does rendered it stat- subsequent be made valid can it effect, force nor *6 con- overlooked, failed to nor this, have not ute.” As to we (Wilkinson Rahrer), 140 U. S. 545 In Re Rahrer sider, upon by strongly relied 572),"cited and 865, 35 L. ed. Sup. Ct. con- we see no However, in error. the defendant for counsel not statute involved was here, There, unlike the state flict. subject— with a legislature. dealt when enacted void not have exclusive Congress did intoxicating liquors, over in that the Federal regulating power under enacted in “This the case a law is not case the said: court exclusively confided to power exercise a the unauthorized competent for the Congress, but of a law which it was upon operate [imported articles pass, but which could passage of the occupying certain situation until the liquors] obstacle, and removed the Congress. The act in terms a re-enact- adequate ground adjudging perceive have required before it could the ment the state upon upon imported always which it had domestic effect general de- Accordingly, subject to property.” the murrer.

Moreover, Duncan, Harris v. and for the reasons stated in 2d, 692), Fair Trade Act Ga. 1, paragraph our Constitution 1937 offends article deprived of “No shall be except by Code property process due law.” life, liberty, or null and 2-103. And for that reason act is void. preceding divisions, judgment in For the reasons stated complained of is erroneous.

Judgment except All reversed. the Justices concur Atkinson> participating. J., Head, J., specially. P. concurs Justice, specially. Our concurring (Code, statutes Head, 106-99) be- Chapter not draw distinction do 37-712 name.” In many a “trade-mark” and a tween “trade country alleging courts actions unfair decisions legal regard given competition, technical dis- little either name,, between trade-mark and a trade since in tinction infringement most common form of imitation instance deceive the is the use another a manner calculated to au- public. competition, however, according many Unfair may present In the thorities, exist various other forms. competition alleged unfair sole violation of contracts minimum retail based resale established Oneida Ltd., under provisions Act,” known as the “Fair Trade the act 1937, pp. seq.). Supp., 800-804 Ann. 106-401 et (Code, petitioner any alleged Since the did not seek relief acts of deceiving, confusing the defendant misleading, public, capitalizing reputation good peti- will tioner, judgment I concur in reversal. (cited v. Duncan, 692)

Harris applicable division 3 of the opinion), would not be in an action seeking deceiving, misleading, relief defendant confusing capitalizing on the public, will and petitioner an unauthorized use of its trade reputation of *7 connection, Kay Jewelry name. see trade Co. mark or 2d, and Kapiloff, Gordy v. Dun wody Ga. 627. et al.

Brown Brown an man no children 1. Where unmarried who left Justice. Hawkins, intestate, leaving surviving him his mother six died brothers and law, only his heirs at the mother and the brothers and sisters sisters realty an one-seventh interest inherited undivided owned each death, they intestate at the time his became tenants realty. Code, 113-903; Mandeville, to such Harris v. common 23). Stonecypher Coleman, See also Ga. (131 S. E. person, Where, following death of such a his heirs at law enter into whereby brothel’s, agreement defendant, one of the an who is the partner deceased, charge in business with is to take who was properties period manage the business and the deceased for discharge any years, outstanding in order to seven indebtedness estate, protect the estate for the benefit of himself and re- heirs, plaintiffs, maining who are the such brother is not a tenant his mother and other brothers and in common sisters as to the realty belonging death, agent to the intestate at the time of his but is purposes agreement; and, others because relationship principal agent plaintiffs existing between the defendant, plaintiffs right expect had a full revelation of