414 Pa. 95 | Pa. | 1964
Lead Opinion
Opinion by
The single question presented for determination by this appeal is the constitutionality of the Pennsylvania Fair Trade Act of June 5, 1935, P. L. 266, as amended, 73 P.S. §7 et seq., as applied to the nonsigners of “Fair Trade” price maintenance contracts.
Section 2 of the statute provides: “Wilfully and knowingly advertising, offering for sale, or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provisions of section one of this act, whether the person so advertising, offering for sale, or selling is, or is not, a party to such contract, is unfair competition and is actionable at the suit of such vendor, buyer or purchaser of such commodity.”
Fair trade legislation precludes the cutting of the established price of any commodity identified by the trade-mark or brand of the producer: Bristol-Myers Co. v. Lit Bros., Inc., 336 Pa. 81, 6 A. 2d 843 (1939). Those who support such legislation strenuously urge that it protects the manufacturer, retailer and consumer from varied harmful consequences which allegedly would result from cutthroat competition. They submit that it is, therefore, a reasonable exercise of the police power and is designed to protect the convenience, prosperity, health, morals, safety and welfare of the public generally.
Whether or not such legislation does in fact protect the best interests of the buying public has long been the subject of serious dispute. Many recent statistical studies by competent authority have concluded that,
Our inquiry is necessarily restricted to the legal aspects involved. It is not for us to enunciate public policy. That responsibility rests with the legislature and is for that body alone to resolve.
This Court previously sustained the constitutionality of the Pennsylvania Fair Trade Act as applied to nonsigners of retail price maintenance agreements in Burche Co. v. General Elec. Co., 382 Pa. 370, 115 A. 2d 361 (1955). Our careful review of that decision now leads to the conviction that it was in error.
Burche relying largely on Old Dearborn D. Co. v. Seagram-Distillers Corp., 299 U.S. 183, 57 S. Ct. 139 (1936), ruled, inter alia, that the Pennsylvania statute was not an unlawful delegation of legislative power. With this, we do not agree.
Old Dearborn, as a careful study will bear out, is not precedent for the proposition that the nonsigner clause in a state price fixing statute, delegating legislative power to private individuals, does not violate the state constitution. See, 1 Davis, Administrative Law Treatise, Section 2.14 (1958); Notes, Fair Trade and the State Constitution- — -A New Trend, 10 Vand. L. Rev. 415 (1957), and Conant, Resale Price Maintenance: Constitutionality of Nonsigner Clauses, 109 U. of Pa. L. Rev. 539 (1961). Further, it is our considered conclusion that the nonsigner clause in the Pennsylvania Fair Trade Act is clearly violative of Art. II, §1, of the Pennsylvania Constitution.
Price regulatory power vests only in the elected legislative body. It may in limited ways be delegated to other responsible governmental agencies, such as public service or utility commissions: Pennsylvania
Moreover, where price regulation is delegated to a governmental agency, constitutional procedures are mandatory. The agency’s action is legislative in character and is subject to the same tests and standards as a legislative enactment: Prentis v. Atlantic Coast Line, 211 U.S. 210 (1908). Once the basic law is established by statute, the legislature may delegate the agency to make detailed rules for the statute’s operation. However, these rules must conform to statutory standards, be adopted after hearing, may not be arbitrary, and are always subject to judicial review. See, Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S. Ct. 241 (1935); Morgan v. United States, 304 U.S. 1, 58 S. Ct. 773 (1938), and Los Angeles Gas & Elec. Corp. v. Railroad Com’n, 289 U.S. 287, 53 S. Ct. 637 (1933).
In the Pennsylvania Fair Trade Act, these protective processes are completely absent. Fair hearing and judicial review are not available, even though the fixed price is grossly unfair or completely arbitrary. The retailer and the buyer have no recourse. The producer enjoys the unbridled power to stipulate the price he pleases and at that price the retailer must sell and the
It is no answer to the above to say that the retailer and the buyer, having notice of the prices fixed, are under no obligation to sell or buy the particular commodity. Under the statute, both come under the coercive price control of private persons not directly in contract with them. As noted before, compulsory price regulation is a legislative function. It belongs only to elected government.
The Pennsylvania Fair Trade Act, as applied to nonsigners of price maintenance contracts, is, therefore, unconstitutional.
It may be advanced that despite the above conclusion, we should permit the ruling in Burche (supra)
While it is true that great consideration should always be accorded precedent, especially one of long standing and general acceptance, it doesn’t necessarily follow that a rule merely established by precedent is ihfallible. Moreover, the courts should not perpetrate error solely for the reason that a previous decision, although erroneous, has been rendered on a given question. This is particularly true where no fixed rights of property are involved or where great injustice or injury will result by following the previous erroneous decision. If it is wrong it should not be continued. Judicial honesty dictates corrective action. As stated by this court in Commonwealth ex rel. Margiotti v. Lawrence, 326 Pa. 526, 193 A. 46 (1937), at 530 and 531, quoting Cooley, Constitutional Limitations (8th Ed. 1927), Vol. 1, page 121, "'. . . when a question in
Decree reversed. Each party to pay own costs.
Burche is the only instance wherein the constitutionality of the Pennsylvania Pair Trade Act was heretofore considered by this court.
Dissenting Opinion
Dissenting Opinion by
This Court, as recently as 1955, specifically and unanimously decided in Burche Co. v. General Electric Co., 382 Pa. 370, 115 A. 2d 361, that Pennsylvania’s Fair Trade Act was constitutional. In the instant case, this Court adopts all the theories, all the contentions, and all the arguments which were made and carefully considered and rejected in Burche as well as in prior cases, and then expressly overrules Burche, supra. Furthermore this Court has by clear and necessary implication sustained the constitutionality of this Act — even as to non-signers — in Olin Mathieson Chemical Corp. v. L. & H. Stores, Inc., 392 Pa. 225, 139 A. 2d 897; Lentheric, Inc. v. F. W. Woolworth Co., 338 Pa. 523, 13 A. 2d 12; Gillette Company v. Master, 408 Pa. 202, 213, 182 A. 2d 734; Gulf Oil Corp. v. Mays, 401 Pa. 413, 416, 164 A. 2d 656; Sinclair Refining Co. v.
In prior decisions of this Court, I have stated my opposition to the Pennsylvania Pair Trade Act but added — what the majority opinion even now strangely admits — that it is for the Legislature and not the Courts to legislate and to enunciate public policy in this field. Nevertheless, today, this Court once again treats the principle of stare decisis as virtually obsolete. The frequency, and the ofttimes strained reasoning, with which Supreme Courts are now overruling prior well-settled law — with no justifiable reason except that Judges think they are improving the public weal — is alarming.
The majority has expressly overruled Burche Co. v. General Electric Co., 382 Pa., supra, but, we repeat, has overlooked or ignored the undoubted fact that it also has impliedly overruled the six decisions of this Court which are hereinabove cited. Ever since Lord Coke, Chief Justice of England, enunciated (circa 1600) the famous and until recently the time-honored maxim of the law: “The knowne certaintie of the law is the safetie of all,” Stare Decisis has been one of the bed-rocks upon which the House of Law has been erected and maintained. This famous maxim has been a beacon light for Anglo-American Courts, for text authorities and for law-abiding Americans ever since the foundation of our Country.
In Brown v. Allen, 344 U.S. 443 (1953), Mr. Justice Jackson (in a concurring opinion on the abuse of the writ of habeas corpus) aptly and pertinently said (page 535) : “Rightly or wrongly, the belief is widely held by the practicing profession that this Court no longer respects impersonal rules of law but is guided in these matters by personal impressions which from
Mr. Justice Frankfurter, in his concurring opinion in Green v. United States, 356 U.S. 165, 192 (1958) said (page 192) : “To be sure, it is never too late for this Court to correct a misconception in an occasional decision, even on a rare occasion to change a rule of law that may have long persisted but also have long been questioned and only fluctuatingly applied. . . . The admonition of Mr. Justice Brandéis that we are not a third branch of the Legislature should never be disregarded.”
I repeat what I said in my concurring opinion in Michael v. Hahnemann M. C. & Hospital, 404 Pa. 424, 172 A. 2d 769 (pages 437, 438, 439) : “In a Constitutional Republican form of Government such as ours, which is based upon law and order, Certainty and Stability are essential. Unless the Courts establish and maintain certainty and stability in the law, businessmen cannot safely and wisely make contracts with their employees or with each other; the meaning of wills, bonds, contracts, deeds and leases will fluctuate and change with each change in the personnel of a Court; property interests will be jeopardized and frequently lost or changed; Government cannot adequately protect law-abiding persons or communities against criminals; private citizens will not know their rights and obligations; and public officials will not know from week to week or month to month the powers and limitations of Government. This has been recognized for centuries by English-speaking peoples. . . .
This is not an isolated instance of overruling just one case, as the majority Opinion indicates.- Notwithstanding the lip service which from time to time some Justices pay to stare decisis, every Judge and every
For these reasons, I very strongly dissent.
Italics throughout, ours.
This Court, from 1957 to date, has expressly overruled, or by radically changing the law, has by necessary implication overruled 30 prior decisions of the Court. A few outstanding examples are: Smith v. Bell Telephone Co., 397 Pa. 134, 137, 153 A. 2d 477 (where the Court expressly overruled 18 of its recent decisions) ; Westbury Realty Corporation v. Lancaster Shopping Center, Inc., 396 Pa. 383, 387, 389, 152 A. 2d 669 (where the Court said, “This situation requires a new approach” and thereby by implication overruled more than 20 prior decisions) ; Commonwealth v. Redline, 391 Pa. 486, 515-516, 137 A. 2d 472 (where the Court expressly overruled one very recent decision and undoubtedly overruled four additional recent decisions and repudiated all the basic reasons and fundamental principles upon which the prior decisions of this Court in felony murder eases were predicated) ; Catherwood Trust, 405 Pa. 61, 81-83, 173 A. 2d 86 (where the Court expressly overruled three of its recent decisions and impliedly but clearly overruled three additional decisions of this Court) ; Commonwealth ex rel. Johnson v. Myers, 402 Pa. 451, 454, 461, 167 A. 2d 295 (where the Court by dictum changed the presumption in felonious murder which had existed from Coke and Blackstone, and had been reiterated a myriad times by this Court in prior decisions) ; Bell v. Yellow Cab Co., 399 Pa. 332, 343-347, 160 A. 2d 437 (where the Court adopted a test for a new trial which ignored S3 prior decisions of this Court which had established an entirely different standard) ; Bilbar Construction Company v. Easttown Township Board of Adjustment, 393 Pa. 62, 77, 78, 141 A. 2d 851 (where the Court established a new and different standard for zoning and repudiated and by necessary implication overruled a myriad prior decisions of this Court).
The words of the learned Justice Owen J. Roberts, in Smith v. Allwright, 321 U.S. 649, at page 669, are apt: “The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that the opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the subject.”
Dissenting Opinion
Dissenting Opinion by
We are now asked to declare invalid the Fair Trade Act. The reasons assigned are economic in nature. Appeal for invalidation of this statute on such grounds should be addressed to the legislature, not this court.
I believe that the rationale of Burche Co. v. General Electric Co., 382 Pa. 370, 115 A. 2d 361, is sound and that Burche controls the case at bar.