author:
Mr. JUSTICE DOUGLAS Mr. JUSTICE JACKSON, whom Mr. JUSTICE MINTON joins,
      Mr. JUSTICE FRANKFURTER, whom Mr. JUSTICE BLACK and Mr. JUSTICE BURTON join,

text:
    SCHWEGMANN BROS., et al., v. CALVERT DISTILLERS CORP. SCHWEGMANN BROS., et al., v. SEAGRAM DISTILLERS CORP.
    Supreme Court of the United States.
    Nos. 442, 443.
    Decided May 21, 1951.
    Saul Stone, John Minor Wisdom and Paul O. H. Pigman, for petitioners.
    Monte M. Lemann, Ezra. Cornell, Thomas' Kiernan, Edgar E. Barton, J. Blanc Monroe and Walter J. Suthon, Jr., for respondents.
    Herbert A. Bergson on behalf of American Booksellers Assn., Inc., et al., as amici curiae. .
    Harry F. Stambaugh.and Robert E. Woodside, attorney general, on behalf of the Commonwealth of Pennsylvania as amicus curiae.
    C. Ellis Henican, Philip E. James and Murray F. Cleveland on behalf of Louisiana State Pharmaceutical Assn, as amicus curiae.

      Samuel I. Rosenman, Godfrey Goldmark, Herman S. Waller and Robert Lowenstein on behalf of the National Assn, of Retail Druggists et al. as amici curiae.
    Philip B. Pearlman, solicitor general, H. G. Morison, assistant attorney general, Robert L. Stern, Charles H. Weston, J. Roger Wollenberg and Joe F. Nowlin on behalf of the United States as amicus curiae.
   Mr. JUSTICE DOUGLAS

delivered the opinion of the court.

Respondents, Maryland and Delaware corporations, are distributors of gin and whiskey. They sell their products to wholesalers in Louisiana, who in turn sell to retailers. Respondents have a price-fixing scheme whereby they try to maintain uniform retail prices for their products. They endeavor to make retailers sign price-fixing contracts under which the buyers promise to sell at not less than the prices stated in respondents’ schedules. They have indeed succeeded in getting over one hundred Louisiana retailers to sign these agreements. Petitioner, a retailer in New Orleans,' refused to agree to the price-fixing, scheme and sold respondents’ products at a cut-rate price. Respondents thereupon brought this suit in the District Court by reason of diversity of citizenship to enjoin petitioner from selling the products at less than the minimum prices fixed by their schedules.

It is clear from our decisions under the Sherman Act (26 Stat. 209) that this interstate marketing arrangement would be illegal, that it would be enjoined, that it would draw civil and criminal penalties, and that no court would enforce it. Fixing minimum prices, like other types of price fixing, is illegal per se. United States v. Socony-Vacuum Oil Co., 310 U. S. 150; Kiefer-Stewart Co. v. Seagram & Sons, 340 U. S. 211. Resale price maintenance was indeed struck down in Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373. The fact that a state authorizes the price fixing does not, of course, give immunity to the scheme, absent approval by Congress.

Respondents, however, seek to find legality for this marketing arrangement in the Miller-Tydings Act enacted in 1937 as an amendment to Section 1 of the Sherman Act. 50 Stat. 693, 15 I). S. C. Section 1. That amendment provides in material part that “nothing herein contained shall render illegal, contracts or agreements prescribing minimum prices for the resale” of specified commodities when “contracts or agreements of that description are lawful as applied to intrastate transactions” under local law. (Emphasis added.)

Louisiana has such a law. La. Gen. Stat. Sections 9809.1 et seq. It permits a “contract” for the sale or resale of a commodity to provide that the buyer will not resell “except at the price stipulated by [the] vendor.” The Louisiana statute goes further. It not only allows a distributor and retailer to make a “contract” fixing the resale price; but once there is a price-fixing “contract,” known to a seller, with any retailer in the state, it also condemns as -unfair competition a sale at less than the price stipulated even though the seller is not a party to the “contract.” In other words, the Louisiana statute enforces price fixing not only against parties to a “contract” but also against nonsigners. So far as Louisiana law is concerned, price fixing can be enforced against all retailers once any single retailer agrees with a distributor on the resale price. And the argument is that the Miller-Tydings Act permits the same range of price fixing.

The argument is phrased as follows: the present action is outlawed by the Sherman Act — the Miller-Tydings Act apart —only if it is a contract, combination, or conspiracy in restraint of trade. But if a contract or agreement is the vice, then by the terms of the Miller-Tydings Act that contract or agreement is immunized, provided it is immunized by state law. The same is true if the vice is a conspiracy, since a conspiracy presupposes an agreement. That was in essence the view of the Court of Appeals, which affirmed by a divided vote a judgment of a district court enjoining petitioner from price cutting. 184 F. 2d 11.

The argument at first blush has appeal. But we think it, offends the statutory scheme.

We note to begin with that there are critical differences between Louisiana’s law and the Miller-Tydings Act. The latter exempts only “contracts or agreements prescribing minimum prices for the resale.” On the other hand, the Louisiana law sanctions the fixing of maximum as well as minimum prices, for it exempts any provision that the buyer will not resell “at the price stipulated by the vendor.” We start then with a federal act which does not, as respondents suggest, turn over to the states the handling of the whole problem of resale price maintenance on this type of commodity. What is granted is a limited immunity — a limitation that is further emphasized by the inclusion in the state law and the exclusion from the federal law of the nonsigner provision. The omission of the nonsigner provision from the federal law is fatal to respondents’ position unless we are to perform a distinct legislative function by reading into the Act a provision that was meticulously omitted from it.

A refusal to read the nonsigner provision in to the MillerTydings Act makes sense if we are to take the words of the statute in their normal and customary meaning. The Act sanctions only “contracts or agreements.” If a distributor and one or more retailers want to agree, combine, or conspire to fix a minimum price, they can do so if state law permits. Their contract, combination, or conspiracy — hitherto illegal — is made lawful. They can fix minimum prices pursuant to their contract or agreement with impunity. When they seek, however, to impose price fixing on persons who have not contracted or agreed to the scheme, the situation is vastly different. That is not price fixing by contract or agreement; that is price fixing by compulsion. That is not following the path of consensual agreement; that is resort to coercion.

Much argument is made to import into the contracts which respondents make with retailers a, provision that the parties may force nonsigners into line. It is said that state law attaches that condition to every such contract and that therefore the Miller-Tydings Act exempts it from the Sherman Act. Such a condition, if implied, creates an agreement respecting not sales made under the contract but other sales. . Yet all that are exempted by the Miller-Tydings Act are “contracts or agreements prescribing minimum prices for the resale”of the articles purchased, not “contracts or agreements” respecting the practices of noncontracting competitors of the contracting retailers.

It should be noted in this connection that the Miller-Tydings Act expressly continues the prohibitions of the Sherman Act against “horizontal” price fixing by those in competition with each other at the same functional level. Therefore, when a state compels retailers to follow a parallel price policy, it demands private conduct which the Sherman Act forbids. See Parker v. Brown, 317 U. S. 341, 350. Elimination of price competition at the retail level may, of course, lawfully result if a distributor successfully negotiates individual “vertical” agreements with all his retailers. But when retailers are forced to abandon price competition, they are driven into a compact in violation of the spirit of the proviso which forbids “horizontal” price fixing. A real sanction can be given the prohibitions of the proviso only if the price maintenance power granted a distributor is limited to voluntary engagements. Otherwise, the exception swallows the proviso and destroys its practical effectiveness.

The contrary conclusion would have a vast and devastating effect on Sherman Act policies. If it were adopted, once a distributor executed a contract with a single retailer setting the minimum resale price for a commodity in the state, all other retailers could be forced into line. Had Congress desired to eliminate the consensual element from the arrangement and to permit blanketing a state with resale price fixing if only one retailer wanted it,'we feel that different measures would have been adopted — either a nonsigner provision would have been included or resale price fixing would have been authorized without more. Certainly the words used connote a voluntary scheme. Contracts or agreements convey the idea of a cooperative arrangement, not a program whereby recalcitrants are dragged in by the heels and compelled to submit to price fixing.

The history of the Act supports this construction. The efforts to override the rule of Dr. Miles Medical Co. v. Park & Sons Co., supra, were long and persistent. Many bills had been introduced on this subject before Senator Tydings introduced his. Thus in 1929, in the Seventy-First Congress, the Capper-Kelly fair trade bill was offered. It had no non-signer provision. It merely permitted resale price maintenance as respects specified classes of commodities by declaring that no such “contract relating to the sale or resale” shall be unlawful. As stated in the House Report that bill merely legalized an agreement' “that the vendee will not resell the commodity specified in the contract except' at a stipulated price.” That bill became the model for the California act passed in 1931 — the first state act permitting resale price maintenance. The California act contained no nonsigner clause. Neither did the Capper-Kelly bill that was introduced in the Seventy-Second Congress. So far as material here it was identical with its predecessor.

The Capper-Kelly bill did not pass. And by the time the next bill was introduced — three years later — the California act had been changed by the addition of the nonsigner provision. That was in 1933. Yet when in 1936 Senator Tydings introduced his first bill in the Seventy-Fourth Congress he followed substantially the Capper-Kelly bills and wrote no nonsigner provision into it. His bill merely legalized “contracts or agreements prescribing minimum prices or other conditions for the resale” of a commodity. By this date several additional states had resale price maintenance laws with nonsigner provisions. Even though the state laws were the models for the federal bills, the nonsigner provision was never added. That was true of the bill introduced in the Seventy-Fifth Congress as well as the subsequent one. They all followed in this respect the pattern of the CapperKelly bill as it appeared before the first nonsigner provision was written into state law. The “contract” concept utilized by Capper-Kelly before there was a nonsigner provision in state law was thus continued even after the 'nonsigner provision appeared. The inference, therefore, is strong that there was continuity between the first Tydings bill and the preceding Capper-Kelly bills. The Tydings bills built on the same foundation; they were no more concerned with nonsigner provisions than were their predecessors. In view of this history we can only conclude that if the draftsman intended that the nonsigning retailer was to be coerced, it was strange indeed that he omitted the one clear provision that would have accomplished that result.

An argument is made from the reports and debates to the effect that “contracts or agreements” nevertheless includes the nonsigner provisions of state law. The Senate Report on the first Tydings bill, after stating that the California law authorized a distributor “to make a contract that the purchaser will not resell” except at the'stipulated price said that the proposed federal law “does no more than to remove Federal obstacles to the enforcement of contracts which the States themselves have declared lawful.” The Senate Report on the second Tydings bill, which was introduced in the Seventy-Fifth Congress, did little more than reprint the earlier report. The House Report, heavily relied on here, gave a more extended analysis.

The House Report referred to the state fair trade acts as authorizing the maintenance of resale prices by contract and as providing that “third persons with notice are bound by the terms of such a contract regardless of whether they are parties to it”; and the Report also stated that the objective of the Act was to permit the public policy of the states having such acts to operate with respect to interstate contracts for the sale of goods. This Report is the strongest statement for respondents’ position which is found in the legislative history. The bill which that Report endorsed, however, did not pass. The bill which became the law was attached by the Senate Committee on the District of Columbia as a rider to the District of Columbia revenue bill. In that form it was debated and passed.

It is true that the House Report quoted above was referred to when the Senate amendment to the revenue measure was before the House. And one Congressman in the debate said that the nonsigner provision of state laws was validated by the federal law.

But we do not take these remarks at face value. In the first place, the House Report, while referring to the nonsigner provisión when describing a typical state Fair Trade act, is so drafted that the voluntary contract is the core of the argument for the bill. Hence, the General Statement in the Report states that the sole objective of the Act was "to permit the public policy of States having ‘fair trade acts’ to operate with respect to interstate contracts for resale of goods”; and the fair-trade acts are referred to as legalizing “the maintenance, by contract, of resale prices of branded or trademarked goods.” [Emphasis added.]

In the second place, the remarks relied on were not only about a bill on which no vote was taken; they were about a bill which sanctioned “contracts or agreements” prescribing not only “minimum prices” but “other conditions” as well. The words “other conditions” were dropped from the amendments. Why they were deleted does not appear. It is said that they have no relevance to the present problem, since we are dealing here with “minimum prices” not with “other conditions.” But that answer does not quite hold. The question is the amount of state law embraced in the words “contracts or agreements.” It might well be argued that one of the “conditions” attaching to a contract fixing a minimum price would be the liability of a nonsigner. We do no more than stir the doubt, for the doubt alone is enough to make us skeptical of the full implications of the old report as applied to a new and different bill.

We look for more definite clues; and we find the following statement made on the floor by Senator Tydings: “What does the amendment do? It permits a man who manufactures an article to state the minimum resale- price of the article in a contract with the man who buys it for ultimate resale to the public * * *" Not once did Senator Tydings refer to the nonsigner provisions of state law. Not once did he suggest that the amendment would affect anyone but the retailer who signs the contract. We search the words of the sponsors for a clear indication that coercive as well as voluntary schemes or arrangements are permissible. We find none. What we do find is the expression of fear in the minority report of the Senate Committee that the nonsigner provisions of the state laws would be made effective if the law passed. These fears were presented in the Senate debate by Senator King in opposition to the amendment. But the Senate Report emphasizes the “permissive” nature of the state laws, not once pointing to their coercive features.

The fears and doubts of the opposition are no authoritative guide to the construction of legislation. It is the sponsors that we look to when the meaning of the statutory words is in doubt. And when we read what the sponsors wrote and said about the amendment we cannot find that the distributors were to have the right to use not only a contract to .fix retail prices but a club as well. The words they used — “contracts or agreements” — suggest just the contrary.

It should be remembered that it was the state laws that the federal law was designed to accommodate. Federal regulation was to give way to state regulation. When state regulation provided for resale price maintenance by both those who contracted and those who did not, and the federal regulation was relaxed only as respects “contracts or agreements,” the inference is strong that Congress left the noncontracting group to be governed by preexisting law. In other words, since Congress was writing a law to meet the specifications o.f state law, it would seem that if the nonsigner provision as well as the “contract” provision of state law were to be written into federal law, the pattern of the legislation would have been different.

We could conclude that Congress carved out the vast exception from the Sherman Act now claimed only if we were willing to assume that it took a devious route and yet failed to make its purpose plain.

Reversed.

Mr. JUSTICE JACKSON, whom Mr. JUSTICE MINTON joins,

concurring.

I agree with the Court’s judgment and with its opinion insofar as it rests upon the language of the Miller-Tydings Act. But it does not appear that there is either necessity or propriety in going back of it into legislative history.

Resort to legislative history is only justified where the face of the Act is inescapably ambiguous, and then I think we should not go beyond Committee reports, which presumably are well considered and carefully prepared. I cannot deny that I have sometimes offended against that rule. But to select casual statements from floor debates, not always distinguished for candor or accuracy, as a basis for making up our minds what law Congress intended to enact is to substitute ourselves for the Congress in one of its important functions. The Constitution, in requiring three readings of an Act in each House before final enactment, intended, I take it, to make sure that Congress knew what it was passing and passed what it wanted, and that what it enacted was formally reduced to writing. It is the business of Congress to sum up its own debates in its legislation. Moreover, it is only the words of the bill that haVe presidential approval, where that approval is given. It is not to be supposed that in signing a bill the President endorses the whole Congressional Record. For us to undertake to reconstruct an enactment from legislative history is merely to involve the Court in political controversies which are quite proper in the enactment of a bill but should have no place in its interpretation.

Moreover, there are practical reasons why we should accept whenever possible the meaning which an enactment reveals on its face. Laws are intended for all of our people to live by; and the people go to law offices to learn what their rights under those laws are. Here is a. controversy which affects every little merchant in many States. Aside from a few offices in the larger cities, the materials of legislative history are not available to the lawyer who can afford neither the cost of acquisition, the cost of housing, or the cost of repeatedly examining the whole congressional history. Moreover, if he could, he would not know any way of anticipating what would impress enough members of the Court to be controlling. To accept legislative debates to modify statutory provisions is to make the law inaccessible to a large part of the country.

By and large, I think our function was well stated by Mr. Justice Holmes: “We do not inquire what the legislator meant; we ask only what the statute means.” Holmes, Collected Legal Papers, 207. See also Soon Hing v. Crowley, 113 U. S. 703, 710-711. And I think of no better- example of legislative history that is unedifying and unilluminating than that of the Act before us.

Mr. JUSTICE FRANKFURTER, whom Mr. JUSTICE BLACK and Mr. JUSTICE BURTON join,

dissenting.

In 1890, Congress passed the Sherman Law, which declared illegal “Lelvery contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” Act of July 2, 1890, Section 1, 26 Stat. 209, 15 U. S. C. Section 1. In 1937, Congress passed the Miller-Tydings Amendment. This excepted from the Sherman Law “contracts or agreements” prescribing minimum prices for the resale of trade-marked commodities where such contracts or agreements were valid under State statute or policy. Act of Aug. 17, 1937, Title VIII, 50 Stat. 673, 693, 15 U. S. C. Section 1. It would appear that insofar as the Sherman Law made maintenance of minimum resale prices illegal, the - Miller-Tydings Amendment made it legal to the extent that State law legalized it. “Contracts or agreements” immunized by the Miller-Tydings Amendment surely cannot have a narrower scope than “contract, combination * * * or conspiracy” in the Sherman Law. The Miller-Tydings Amendment is an amendment to Section 1 of the Sherman Law. The category of contract cannot be given different content in the very same section of the same act, and every combination or conspiracy implies an agreement.

■ The setting of the Miller-Tydings Amendment and its legislative history remove any lingering doubts. The depression following 1929 gave impetus to the movement for legislation which would allow the fixing of minimum resale prices. In 1931, California passed a statute allowing a manufacturer to establish resale prices binding only upon, retailers who voluntarily entered into a contract with him. This proved completely ineffective, and in 1933 California amended her statute to provide that such a contract established a minimum price binding upon any person who had notice of the contract. Grether, Experience in California with Fair Trade Legislation Restricting Price Cutting, 24 Calif. L. Rev. 640, 644 (1936). This amendment was the so-called “non-signer” clause which, in effect, allowed a manufacturer or wholesaler to fix a minimum resale price for his product. Every “fair trade” law thereafter passed, by any State contained this “non->signer” clause. By the close of 1936, 14 States had passed such laws. In 1937, 28 more States passed them. Today, 45 out of 48 States have “fair trade” laws. See F. T. C., Report on Resale Price Maintenance (Dec. 15, 1945), XXVII.

A substantial obstacle remained in the path of the “fair trade” movement. In 1911, we had decided Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373. There, in a suit brought against a “non-signer,” we. held that an agreement to maintain resale prices was a “contract * * * in restraint of trade” which was contrary to the Sherman Act. To remove this block, the Miller-Tydings Amendment was enacted. It is said, however, that thereby Congress meant only to remove the bar of the Sherman Act from agreements between the manufacturer and retailer, that Congress did not mean to make valid the “non-signer” clause which formed an integral part of each of the 42 State statutes in effect when the Amendment was passed.

The Miller-Tydings Amendment was passed as a rider to a Revenue Bill for the District of Columbia. The Senate Committee which attached the rider referred the Senate to S. Rep. No. 2053, 74th Cong., 2d Sess. The House Conference Report (H. R. Rep. No. 1413, 75th Cong., 1st Sess.), contains only, five lines concerning the rider. But the rider was not a new measure. It came as no surprise to the House, which already had before it practically the same language in the Miller Bill, reported favorably by the Committee on the Judiciary. H. R. Rep. No. 382, 75th Cong., 1st Sess. Both the House and Senate, therefore, had before them reports dealing with the substance of the Miller-Tydings Amendment. These reports speak for themselves, and I attach them as appendices to this opinion. Every State act referred to in these reports contained a “non-signer” provision. I cannot see how, in view of these reports, we can conclude that Congress meant the “non-signer” provisions to be invalid under the Sherman Act — unless, that is, we are to depart from the respect we have accorded authoritative legislative history in scores of cases during the last decade. See cases collected in Commissioner v. Estate of Church, 335 U. S. 632, 687, Appendix A. In many of these cases the purpose of Congress was far less clearly revealed than here. It has never been questioned in this Court that committee reports, as well as statements by those in charge of a bill, are authoritative elucidations of the scope of a measure.

It is suggested that we go to the words of the sponsors of the Miller-Tydings Amendment. We have done so. Their words confirm the plain meaning of the words of the statute and of the congressional reports. Senator Tydings made the following statements: “What vve have attempted to do is What 42 States have already written on their statute books. It is simply to back up those acts, that is all; to have a code of fair trade practices written not by a national board such as the N. R. A. but by each State, so that the people may go to the State legislature and correct Immediately any abuses that may develop.” 81 Cong. Rec. 7496.

Representative Dirksen made a statement to the House as a member of its Conference. Committee. He referred to the case of Old Dearborn Co. v. Seagram Corp., 299 U. S. 183, 7 O. O. 146, in which this Court had held that the “nonsigner” provision of the Illinois “fair trade” statute did not violate the Due Process Clause. Mr. Dirksen continued: “A question then arose as to whether or not the maintenance of such resale prices under a State fair trade act might not be in violation of the Sherman Anti-Trust Act of 1890 insofar as these transactions sprang from a contract in interstate commerce. This question was presented to the House Judiciary Committee and there determined by the reporting of the Miller bill. It was essentially nothing more than an enabling act which placed the stamp of approval upon price maintenance transactions under State acts, notwithstanding the Sherman Act of 1890.” 81 Cong. Rec. 8138.

Every one of the 42 State acts which the Miller-Tydings Amendment was to “back up” — the acts on which the Miller-Tydings Amendment was to place a “stamp of approval” —contained a “non-signer” provision. As demonstrated by experience in California, the State acts would have been futile without the “non-signer” clause. The Court now holds that the Miller-Tydings Amendment does not cover these “non-signer” provisions. Not only is the view of the Court contrary to the words of the statute and to the legislative history. It is also in conflict with the interpretation given the Miller-Tydings Act by the Federal Trade Commission, by the Department of Justice, and by practically all persons adversely affected by the “fair trade” laws. The “fair trade” laws may well be unsound as a matter of economics. Perhaps Congress should not pass an important measure dealing With an extraneous subject'as<-an rider, to a revenue bill, with the coercive influence it exerts in avoiding a veto; perhaps it should restrict legislation to a single relevant subject, as required by the constitutions of three-fourths of the States. These are matters beyond the Court’s concern. Where both the words of a statute and its legislative history clearly indicate the purpose of Congress, it should be respected. We should not substitute our own notion of what Congress should have done.

Appendix.

House Report No. 382, 75th Cong., 1st Sess.

The Committee on the Judiciary, to whom was referred the bill (H. R. 1611) to amend the act entitled “An act to protect trade and commerce against unlawful restraints and monopolies,” approved July 2, 1890, after consideration, report the same favorably to the House with an amendment with the recommendation that as amended the bill do pass.

The committee amendment is as follows: Strike out all after the enacting clause and insert in lieu thereof the following:

That section 1 of the Act entitled "An act to protect trade and commerce against unlawful restraints and monopolies,” approved July 2, 1890 (U. S. Code, title 15, séc. 1), be amended to read as follows:

“Section 1. Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding $5,000, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. Nothing herein contained shall render illegal, contracts or agreements prescribing minimum prices or other conditions for the resale of a commodity which bears, or the label or container of which bears, the trade mark, brand, or name of the producer or distributor of such commodity and which is in free and open competition with commodities of the same general class produced or distributed by others, when such contracts or agreements are lawful as applied to intrastate transactions, under any statute, law, or public policy now or hereafter in effect in any State, Territory, or the District of Columbia in which such resale is made, or to which the commodity is to be transported for such resale, and the making of such contracts or agreements shall not be an unfair method of competition under Section 5, as amended and supplemented, of the Act entitled ‘An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes,' approved September 26, 1914 (U. S. Code, title 15, sec. 45).”

General Statement

The sole objective of this proposed legislation is to permit the public policy of States having “fair trade acts” to operate with respect to interstate contracts for the resale of goods within those States. The fair-trade acts referred to legalize the maintenance by contract, of resale prices of branded or trade-marked goods which are in free competition with other goods of the same general class.

To accomplish this end, the reported bill amends section 1 of the Sherman Anti-trust Act which declares every contract in restraint of trade illegal. The amendment adds a sentence to the section, in the nature of a limitation, to the effect, in substance, that nothing therein contained shall render illegal contracts prescribing minimum prices or other conditions for resale of branded or trade-marked goods when such contracts are lawful as to intrastate transactions under the State law of the State in which the resale is to be made; and that the making of such contracts shall not be an unfair method of competition under section 5 of the Federal Trade Commission Act.

In view- of the decision of the Supreme Court in Dr. Miles Medical Co. v. Park & Sons Co. (220 U. S. 373), and other cases, it ,is doubtful, at least, that such contracts are now valid in interstate commerce.

State Fair Trade Acts

State fair trade acts typically provide, first, that contracts may lawfully be made which provide for maintenance by contract of resale prices of branded or trade-marked competitive goods. Second, that third parties with notice are bound by the terms of such a contract regardless of whether they are parties to -it.

The pertinent provisions of the Illinois act, recently held constitutional by the Supreme Court in the case of Old Dear-. bom Distributing Co. v. Seagram-Distillers Corporation (decided Dec. 7, 1936) read as follows:

. Section 1. No contract relating to the sale or resale of a commodity which bears or the label or content of which bears, the trade - mark, brand, or name of the producer or owner of such commodity and which is in fair and open competition with commodities of the same general class produced by others shall be deemed in violation of any law of the State of Illinois by reason of any of the following provisions which may be contained in such contract:

(1) That the buyer will not resell such commcpdity except at the price stipulated by the vendor.

(2) That the producer or vendee of a commodity require upon the sale of such commodity to another that such purchaser agree that he will not, in turn, resell except at the price stipulated by such producer or vendee.

Sucfi provisions in ariy contract shall be deemed to contain or imply conditions that such commodity may be resold without reference to such agreement in the following cases:

(1) In closing out the owner’s stock for the purpose of discontinuing delivery of any such commodity: Provided however, That such stock is first offered to the manufacturer of such stock at the original invoice price, at least ten (10) days before such stock shall be offered for sale to the public.

(2) When the goods are damaged or deteriorated in quality, and notice is given to the public thereof.

(3) By any officer acting under the orders of any court.

Section 2. 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 1 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 any person damaged thereby.

The following States, the committee is advised, have adopted fair trade acts: California, Washington, Oregon, Montana, Wyoming, Arizona, New Mexico, Utah, North Dakota, South Dakota, Kansas, Louisiana, Arkansas, Iowa, Wisconsin, Illinois, Kentucky, Tennessee, Indiana, Ohio, Georgia, Virginia, West Virginia, Pennsylvania, Maryland, New York, New Jersey, and Rhode Island.

The committee is advised that in addition one house of each of the following States have passed a fair trade bill: South Carolina, North Carolina, Idaho, Colorado, and Oklahoma.

The committee is further advised that bills are pending in the Legislatures of Nevada, Michigan, Minnesota, Texas, Mississippi, Delaware, Missouri, Connecticut, Massachusetts, New Hampshire, and Maine; and that only one State, Vermont, has definitely rejected legislation of this character.

Economic Aspects

The anticipated economic effects of the legislation here proposed were presented both by proponents and opponents of the bill in the hearings held by the subcommittee of the Committee on the Judiciary in charge of the bill. On the one hand it is urged that predatory price cutting is a weapon of monopolistic large distributors to crush small businessmen. On the other hand, it is contended that price-maintenance legislation tends unduly to enhance the price of goods to the consumer. To this argument it is answered that the free play of competition between products of different manufacturers of the same general class will prevent such a result. .

However, in the opinion of the committee, those arguments are more properly addressed to the State legislatures considering the enactment of fair trade acts. It is the legislature’s responsibility to fix the public policy of the State. This legislation merely seeks to help effectuate a public policy so fixed in a State. It has no application to any State which does not see fit to enact a fair trade act.

In this connection the committee invites attention to the following paragraph of the opinion of the Supreme Court, heretofore referred to, upholding the constitutionality of the Illinois act, the Court speaking through Mr. Justice Sutherland:

There is a great body of fact and opinion tending to show that price cutting by retail dealers is not only injurious to the goodwill and business of the producer and distributor of identified goods, but injurious to the general public as well. The evidence to that effect is voluminous; but it would serve no useful purpose to review the evidence or to enlarge further upon the subject. True, there is evidence, opinion, and argument to the contrary; but it does not concern us to determine where the weight lies. We need say no more than that the question may be regarded as fairly open to differences of opinion. The legislation here in question proceeds upon the former and not the latter view; and the legislative determination in that respect, in the circumstances here disclosed, is conclusive so far as this court is concerned. Where the question of what the facts establish is a fairly debatable one we accept and carry into effect the opinion of the legislature. Radice v. New York (264 U. S. 292, 294); Zahn v. Board of Public Works (274 U. S. 325, 328, and cases cited).

Effectuation of State Public Policy

Your committee respectfully submit that sound public policy • on the part of the Federal Government lies in the direction of lending assistance to the States to effectuate their own public policy with regard to their internal affairs. It is submitted that this is especially true where such assistance, as in this instance, consists of removing a handicap resulting from the surrender of the power over interstate commerce by the States to the Federal Government.

* * * *

Senate Report No. 2053, 74th Cong., 2d Sess.

The Committee on the Judiciary, having had under consideration the bill (S. 3822) to amend the act entitled “An act to protect trade and commerce against unlawful restraints and monopolies,” approved July 2, 1890, report the same back with the recommendation that the bill do pass.

In 1933 a law was enacted by the State of California authorizing a manufacturer or producer of a commodity which bears his trade mark, brand, or name, and which is sold in free and open competition with commodities of the same general class produced by others, to make a contract that the purchaser will not resell such commodity except at the price stipulated by the manufacturer or producer.

The purpose of the California act, as expressed in its title, was to protect trademark owners, distributors, and the general public against injurious and uneconomic practices in the distribution of articles of standard quality under a trade mark, brand, or name, and the particular practice against which it was directed was the so-called “loss-leader selling.”

Since the passage of the California act similar legislation has been enacted in 12 other States, namely, New York, Illinois, Pennsylvania, New Jersey, Oregon, Washington, Wisconsin. Iowa, Maryland, Ohio, "Virginia and Rhode Island (the last three since the introduction of the proposed bill).

In still other States contracts stipulating minimum resale prices are valid at common law.

In the States where such contracts are lawful it has been found that loss-leader selling of identified merchandise sold under competitive conditions operates as a fraud on the consumer destroys the producer’s goodwill in his trade mark, and is used by the large merchant to eliminate his small independent competitor.

In recommending the passage of S. 3822 the committee, while fully recognizing the evils of loss-leader selling, is not required to determine the effectiveness of the device adopted by the States to eliminate the same.

It is sufficient that this type of selling unquestionably has had a disastrous effect upon the small independent retailer, thereby tending to create monopoly, and that a large number of States have found that its evil effects can be mitigated, if not eliminated, by legalizing contracts stipulating -minimum resale prices. <

The Congress is not called upon to pass upon the effectiveness of the remedy, but it should not put obstacles in the way of efforts of the individual States to make the remedy effective.

Though there is no specific adjudication on the subject, it is believed that contracts stipulating minimum resale prices, even when they are made or are to be performed in a State where such contracts are lawful, may violate the Sherman Act whenever the goods sold under the contract move in interstate commerce.

Consequently, many manufacturers not domiciled in the state of the vendee are unwilling to run the risk of violating the Federal law, and the effectiveness of the State fair-trade laws is thereby seriously impaired.

S. 3822 removes the doubt as to the applicability of the Sherman Act by expressly legalizing such contracts where legal under the laws of the State where made,or where they are to be performed.

Moreover, the proposed bill declares such contracts shall not be an unfair method of competition under the Federal Trade Commission law.

The language of the bill, in describing the class of com- • modifies to which it is applicable, follows closely the language of the State acts, and the scope of the bill is therefore carefully limited to commodities “in free and open competition with commodities of the same general class produced by others.”

The State acts are in no sense general price-fixing acts. They merely authorize a manufacturer or producer to enter into contracts for the maintenance of his price, but they do' not compel him to do so. In other words, they are merely permissive.

They do not authorize horizontal contracts, that is to say, contracts or agreements between manufacturers, 'between producers, or between wholesalers, or between retailers as to the sale or resale price of any commodity.

They apply only to commodities which are in free and open competition with commodities of the same general class produced by others, and they therefore do not. in any sense restrain trade or competition. In fact, they legalize a device which is intended to increase competition and prevent monopoly.

But most, important, from the standpoint of the Congress, the proposed bill merely permits the individual States to function, without Federal restraint, within their proper sphere, and does not commit the Congress to a national policy on. the subject matter of the State laws.

In other words, the bill does no more than to remove Federal obstacles to the • enforcement of contracts which the States themselves have declared lawful.

      . Resale price maintenance is allowed only as respects commodities which bear, or the label or container of which bear, the trade mark, brand, or name of the producer or' distributor and which are in free and open competition with commodities of the same general class produced or distributed by others. Excluded are agreements between manufacturers, • between producers, between wholesalers, between brokers, between factors, between retailers or between persons, • firms or corporations in competition with each other.

      . The nonsigner clause in the Louisiana Act reads as follows: “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 provision of Section 1 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 any person damaged thereby.”

      . “Provided further, That the preceding proviso shall not make lawful any contract or agreement, providing for the establishment or maintenance of minimum resale prices on any commodity herein involved, between manufacturers, or between producers, or between wholesalers, * * * or between retailers, or between persons, firms, or corporations in competition with each other.” 15 U. S. C. Section 1.

      . S. 240, 71st Cong., 1st Sess.; H. R. 11, 71st Cong., 1st Sess. See H. R. Rep. No. 536, 71st Cong., 2d Sess.

      . H. R. Rep. No. 536, 71st Cong., 2d Sess., p. 2.

      . Cal. Stat. 1931, c. 278. The California Act was sometimes known as “the Junior Capper-Kelly.” See Grether, Price Control Under Fair Trade Legislation (1939) p. 54.

      . S. 97, 72d Cong., 1st Sess.; H. R. 11, 72d Cong., 1st Sess.

      . Cal. Stat. 1933, c. 260; The California law is now found in Business & Professions Code, Pt. 2, c. 3, Section 16904.

      . S. 3822, 74th Cong., 2d Sess., 80th Cong. Rec. 1007.

      . See Ill. Laws 1935, p. 1436; Iowa Laws 1935, c. 106; Md. Laws 1935, c. 212, Section 2; N. J. Laws 1935, c. 58, Section 2; N. Y. Laws 1935, c. 976, Section 2; Ore. Laws 1935, c. 295, Section 2; Pa. Laws 1935, No. 115, Section 2; Wash. Laws 1935, c. 177, Section 4; Wis. Laws 1935, c. 52.

      . S. Rep. No. 2053, 74th Cong., 2d Sess. 2.

      . S. Rep. No. 257, 75th Cong., 1st Sess.

      . H. R. Rep. No. 382, 75th Cong., 1st Sess.

      . Id., p. 2.

      . Id.

      . See, e. g., the statement of Rep. Dirksen, a House conferee in 81 Cong. Rec. 8138.

      . H. R. Rep. No. 382, supra, note 13.

      . 81 Cong. Rec. 7495.

      . H. R. Rep. No. 1413, 75th Cong., 1st Sess. 10 (the Conference Report of the House) merely stated: “This amendment provides for an amendment to the antitrust laws under which contracts and agreements stipulating minimum resale prices of certain commodities, and which are similar to contracts and agreements which are lawful as applied to intrastate commerce, are not to be regarded as being illegal under the antitrust laws.”

      . S. Rep. No. 879, 75th Cong., 1st Sess.

      . 81 Cong. Rec. 7491. And see S. Rep. No. 879, Part 2, 75th Cong., 1st. Sess.

      . S. Rep. No. 879, supra, note 20, p. 6.

      . The Senate Report on the District of Columbia Revenue Bill, S. Rep. No. 879, 75th Cong., 1st Sess., quoted S. Rep. No. 2053, 74th Cong., 2d Sess. See S. Rep. No. 257, 75th Cong., 1st Sess., which also quotes the text of the earlier report.

      . The intricate verbal arguments used to support the Court’s decision do not affect the clarity of the statute and its legislative history. (1) It is said that the proviso to the Miller-Tydings Amendment makes it inapplicable to “non-signer” clauses in State acts. But the proviso only made explicit that the Amendment applied only to vertical agreements and did not make legal horizontal agreements, for example, those between retailers or between manufacturers. See statements of Senator Tydings, 81 Cong. Rec. 7487, 7496. The wording of the proviso, in fact, follows closely a statement of what the Senate Committee thought was implicit in the State acts. See S. Rep. No. 2053, 74th Cong., 2d Sess. 2. (2) The fact that the 1931 California statute used wording similar to the Miller-Tydings Amendment and was later amended to refer to non-signers is beside the mark. The words of the 1933 amendment to the California statute make clear that it was not, like the Miller-Tydings Amendment, designed to remove the bar of an antitrust act. It was enacted to give an affirmative right to recover from non-signers, something the Miller-Tydings Amendment does not purport to do. In such a statute specific language referring to nonsigners would of course have to be used. (3) It is said that H. R. Rep. No. 382, 75th Cong., 1st Sess., refers to a bill containing the phrase “other conditions.” The words “other conditions” when used in conjunction with a phrase referring to minimum prices could scarcely mean anything except “conditions other than minimum prices.” We are here concerned with minimum prices. (4) “Permissive” was Used in the Senate Report not to refer to retailers but to manufacturers. “[The State acts] merely authorize a manufacturer or producer to enter into contracts for the maintenance of his price, but they do not compel him to do so. In other words, they are merely permissive-” S. Rep. No. 2053, 74th Cong., 2d Sess. 2.

      . See letter addressed to the. President by the Chairman of the Federal Trade Commission, S. Doc. No. 58, 75th Cong., 1st Sess., pp. 2-3. See also F. T. C., Report on Resale Price Maintenance (Dec. 13, 1945) LXII.

      . The Department of Justice appears to have instituted no prosecutions because of enforcement of “fair trade” acts against nonsigners. The Assistant Attorney General who played an important part in enforcement of the antitrust laws called for repeal of the Miller-Tydings Amendment because- it made legal the nonsigner provisions of the State “fair trade” acts. Statement of Mr. Thurman Arnold, T. N. ,E. C. Hearings, pp. 18162-18165.

      . The contention that the “non-signer” provisions are not within the Miller-Tydings Amendment appears to have been made in only two reported cases since the Amendment was passed in 1937. Calamia v. Goldsmith Bros., Inc., 299 N. Y. 636, 795; Pepsodent Co. v. Krauss Co. 56 F. Supp. 922. In both, the argument was rejected.


source: Caselaw Access Project

author: By WISEMAN, J:

license: Public Domain

text:
    DAYTON (City), Plaintiff-Appellant, v. SWARTZEL, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2084.
    Decided May 8, 1950.
    Herbert S. Beane, Maurice J. Gilbert, Cecil E. Edwards, City Attys., Dayton, for plaintiff-appellant.
    A. K. Meek, Dayton, for defendant-appellee.
   OPINION

By WISEMAN, J:

Submitted on motion of defendant-appellee to dismiss the appeal on six separate grounds. This is a criminal proceeding which originated in the Municipal Court of Dayton, where the defendant was found guilty of violating a health ordinance. An appeal was taken to the Court of Common Pleas of Montgomery County, Ohio, which reversed the judgment of the trial court. From that judgment an appeal was taken to this Court by the City of Dayton.

The first ground of the motion is that the notice of appeal is defective in that it does not state to what court the appeal is taken. The appeal could be taken to this Court and none other. In Capitol Loan and Savings Company v. Biery, 134 Oh St 333, 16 N. E. (2d) 450, the court held that a notice of appeal which stated that “defendant is hereby given notice of appeal” was sufficient. The court, on page 339, stated:

“There was only one judgment and only one court from which and to which an appeal could be taken.”

The first ground of the motion is overruled.

The second ground is that the appeal is from “the decision of the Common Pleas Court”; that the decision of the court is not a final order from which an appeal could be taken. The written decision of the court was filed with the judgment entry. The appeal should be from the judgment rather than the decision. However, this error can be cured by amendment, on authority of Mosey v. Hiestand, 138 Oh St 249, 34 N. E. (2d) 210; Couk v. Ocean Accident and Guarantee Corporation, 138 Oh St 110, 33 N. E. (2d) 9; Williams v. Martin, 82 Oh Ap 395, 81 N. E. (2d) 806; State ex rel. England v. Trustees, 79 Oh Ap 476, 74 N. E. (2d) 402; Bank of Elmore Company v. Damschroder, 69 Oh Ap 15, 42 N. E. (2d) 781; Loftus v. Palmer, 37 Oh Ap 177, 174 N. E. 363; Martin v. Coffman, 56 Abs 152; Fifty West Broad, Inc. v. Poulson, 41 Abs 212, 57 N. E. (2d) 685; Manhattan Terrazzo Brass Strip Co., Inc., v. Benzing, 35 Abs 492, 41 N. E. (2d) 736. See also §12223-5 GC. The second ground of the motion is overruled.

The third ground of the motion is that the notice of appeal was not filed within time. The record does not support this contention. The notice of appeal was filed within thirty days of the date of the judgment. This ground of the motion is overruled.

The fourth ground of the motion raises the question as to whether the transcript of the docket and journal entries was filed within time. The judgment was filed May 19, 1949 and the transcript on June 28, 1949. Sec. 13459-3 GC, does not fix a time within which the transcript shall be filed in the appellate court. The statute merely provides that “upon filing the notice of appeal there shall be filed in the appellate court the transcript prepared by the clerk and any original papers received by him.” The statute does not require the transcript to be filed in the appellate court at the same instant the notice of appeal is filed. Until the notice of appeal is filed the clerk is not advised that a transcript will be required. Obviously, some time must elapse between the date on which the notice of appeal is filed and the date the clerk files the transcript in the appellate court. The filing of the transcript is the administrative duty of the clerk and not counsel. State v. Jarcho, 65 Oh Ap 417, 420, 30 N. E. (2d) 444. The clerk should discharge this duty promptly. The fact that forty days elapsed between the date of filing the notice of appeal and the date the clerk filed the transcript is not fatal. Any delay on the part of the clerk is not chargeable to the appellant. This ground of the motion will be overruled.

The fifth and sixth grounds of the motion, respectively, are that no assignments of error or briefs have been filed in this Court. The record shows that the transcript of the docket and journal entries and original papers contained one copy of the brief of appellant and one copy of the brief of appellee which were filed in the consideration of the appeal in the Common Pleas Court. The transcript was filed in this Court on June 28, 1949. The briefs which were filed in the Common Pleas Court were stamped as filed in the Court of Appeals on the same day that the transcript was filed. Counsel for appellant in this Court (City of Dayton) states in his brief opposing the motion to dismiss that it was orally agreed between counsel that the briefs which were used in the hearing of the appeal in the Common Pleas Court should be filed and considered as the briefs in this Court. Counsel for appellee (the defendant herein) in his brief in support of the motion to dismiss, states that no such agreement was made. No affidavits have been filed by either counsel on this factual matter. Assuming that counsel had made such an agreement, there still would remain the question as to whether there had been a sufficient compliance with the provisions of §13459-3 GC, which in part provides:

“The brief of the appellant shall be filed with the transcript and shall contain the assignments of error relied on in such appeal.”

The brief of appellant, which was made-a part of the transcript, does not contain assignments of error. Manifestly the brief used in the Common Pleas Court and filed with the transcript in this Court could not contain assignments of error as the appellant in this Court was the appellee in the Common Pleas Court. The brief which this Court is requested to consider as the appellant’s opening brief in this Court was the answer brief in the Common Pleas Court. Likewise, the brief which appellant here contends this Court should consider as the appellee’s answer brief in this Court was the opening brief of appellant in the Common Pleas Court and contained his assignments of error. Obviously the assignments of error filed by the appellant (the defendant) in the Common Pleas Court are substantially different than the assignments of error filed by the appellant (The City of Dayton) in this Court. The briefs, therefore, which this Court is requested to consider as properly filed in this Court do not brief the questions raised by the assignments of error of the appellant in this Court. An examination of the assignments of error and briefs supports this conclusion.

The fact is that the City of Dayton, the appellant herein, has never filed assignments of error in this Court. The record shows that a separate paper, designated as “Assignments of Error” was filed in the Common Pleas Court on July 6, 1949, being eight days after the date of filing of the transcript. This paper is captioned as follows:

"IN THE COMMON PLEAS COURT OP MONTGOMERY COUNTY, OHIO.
City of Dayton,
Plaintiff, Case No. 99758
-vs-
ASSIGNMENT OP ERRORS”
Winter Zero Swartzel,
Defendant.

Appellate claims the assignments of error were inadvertently captioned but were filed with the papers in the Court of Appeals. The record does not support this claim. On the contrary the record shows that the assignments of error were stamped as filed in the Common Pleas Court and docketed under Case No. 99758 of the Common Pleas Court. The paper does not show it to be filed in the Court of Appeals; the docket in the Court of Appeals in Case No. 2064 does not show it to be filed and it was not found among the papers in this case in the Court of Appeals.

This Court has many times held that the provision in §13459-3 GC, requiring the briefs and assignments of error to be filed with the transcript is mandatory, and a motion to dismiss the appeal will be sustained for the failure to comply with this requirement. State, ex rel. Merrill, v. Moore, 84 Oh Ap 49, 82 N. E. (2d) 765; State v. Moore, 84 Oh Ap 91, 85 N. E. (2d) 595; State v. Trimmer, 80 Oh Ap 545, 547, 76 N. E. (2d) 896; State v. Jarcho, 65 Oh Ap 417, 421, 30 N. E. (2d) 444; State v. Davis, 47 Abs 415, 69 N. E. (2d) 532; State v. Barber, 44 Abs 381, 65 N. E. (2d) 669; Columbus v. Balzan, 38 Abs 141, 49 N. E. (2d) 592; State v. Jones, 33 Abs 330; State v. Smith, 33 Abs 612; State v. Link, 28 Abs 101. See also State v. Parnell, 56 Oh Ap 77, 10 N. E. 18 (Ct. of App. of 6th District); State v. Bell, 52 Oh Ap 11, 2 N. E. (2d) 786 (Ct. of App. of 5th District).

This Court has never held, and does not now hold, that the provision requiring briefs and assignments of error to be filed with the transcript goes to the jurisdiction of the Court, The determination of this question falls within the field of judicial discretion. This Court has consistently held that in the exercise of a sound judicial discretion it will require a compliance with the statutory provisions. We realize that other courts have exercised their discretion differently. See State v. Brunswick, 69 Oh Ap 407, 44 N. E. (2d) 116; and State v. Brunswick, 71 Oh Ap 101, 47 N. E. (2d) 916; Cincinnati v. Hawkins, 81 Oh Ap 459, 78 N. E. (2d) 61.

This Court has held that Rule VII of the rules of this Court prescribing the time within which assignments of error and briefs are required to be filed applies only to civil cases and has no application to criminal cases. State v. Moore, supra; State v. Jarcho, supra.

We find no reported case deciding this precise question. If the appellant in this Court had been the appellant in the Common Pleas Court we might be disposed to treat the filing in this Court of the briefs prepared and filed in the Common Pleas Court as a sufficient compliance with the provisions of the statute. In that event in all probability the same questions would be raised in the assignments of error, and also briefed. However, that is not the situation here. In this appeal the appellant was the appellee in the Common Pleas Court, and the appellee here was the appellant in the Common Pleas Court. The question raised in the assignments of error are different. The answer brief filed in the Common Pleas Court as appellee does not properly treat the questions raised in the assignments of error filed by the appellant herein, which we have examined and which were filed in the Common Pleas Court instead of in the Court of Appeals.

The failure to file the assignments of error in this Court, with the brief and transcript, falls squarely within the rule laid down by this Court in the numerous cases cited above. The statutory requirement relative to the filing of briefs and assignments of error have not been met and the motion to dismiss the appeal on the fifth and sixth grounds will be sustained.

In State v. Jarcho, súpra, Judge Hornbeck very convincingly sets forth the reasons for this strict enforcement of the provisions of §13459-3 GC on page 421 as follows:

“This provision as to the time of filing appellant’s brief is mandatory. It is not controlled by a rule of the appellate court. We have without exception enforced the rule as to the time within which briefs shall be filed by the appellant in civil cases (Rule VII, Courts of Appeals), and there is every reason and more why a specific provision of statute shall be enforced. We find no sufficient reason appearing in the affidavits which would cause us to relax the mandatory provisions of the section as to the filing of appellant’s brief. The section gives precedence in reviewing courts to the hearing of cases involving criminal appeals. This, no doubt, is done to expedite the final determination of the rights of defendants and the state in criminal eases and to avoid unnecessary delay. To ignore or relax the specific provisions of the section as to the time within which briefs should be filed will open the way for delays, in judgments in criminal cases which should be kept at a minimum. State v. Parnell, 56 Oh Ap, 77, 10 N. E. (2d), 18.”

In order to remove any possibility of doing an injustice by dismissing the appeal in the exercise of sound judicial discretion for failure to comply with the provisions of §13459-3 GC, we have examined the entire record in this case to determine whether there was prejudicial error committed in the judgment from which this appeal is taken.

We have considered' all errors assigned which were erroneously filed in the Common Pleas Court by the appellant herein. The Common Pleas Court found that the prosecution failed to comply with the provisions of the health ordinances of the City of Dayton which formed the predicate for the prosecution. We are of the opinion that the judgment of the Common Pleas Court was correct. Therefore, upon an examination of the whole record, we do not find that the Common Pleas Court committed prejudicial error in reversing the judgment of the Municipal Court of Dayton.

An entry may be drawn on the motion in conformity herewith.

MILLER, PJ, and HORNBECK, J, concur.


author: By RUTHERFORD, J.

text:
    HILBERG, Plaintiff, v. DECKEBACH (DEKEBACH) et, Defendants.
    Common Pleas Court, Franklin County.
    No. 179890.
    Decided March 31, 1951.
    Dargusch, Caren, Greek & King, John M. Caren, Joseph O’Meara, Jr., David A. Johnston, Jr., Columbus, for plaintiff. David M. Postlewaite, Columbus, for defendant.
   OPINION

By RUTHERFORD, J.

This is an action seeking a declaratory judgment.

• A trust agreement was entered into by Amalia A. Deckebach on May 7, 1930. On this date her family consisted of Henry E. Deckebach, her husband, Nicholas E. Deckebach, her son, Margaret D. Hilberg, her daughter. Nicholas E. Deckebach, age 29 years, was married but had no living children. Margaret D. Hilberg was married and had three living children, Henry S. Hilberg, John Hilberg and Margaret Anna Jean Heekin. Henry E. Deckebach, her husband, died on March 13, 1934. Nicholas E. Deckebach, her. son, died without issue on-October 21, 1949. The trust agreement is in evidence and it is from the terms of this agreement that the Court has determined the intent of the settlor. The trust corpus consisted of one hundred thousand dollars, ($100,000.00) invested in municipal and school bonds, subject to the right of re-investment by the trustee in accordance with the provisions of the trust agreement.

As to the disposition of the corpus of this trust fund, the agreement provides as follows:

ARTICLE I.

(c) All of the trusts created or arising hereunder shall cease and determine upon the expiration of the period of ten years next following the death of the survivor of the said Henry E. Deckebach, Nicholas E. Deckebach and Margaret D. Hilberg — said ten year period to commence with the death of the last one of said three named persons to die — and upon the expiration of said ten year period, the trustee shall transfer, assign and convey the entire Trust Fund then in its hands to the heirs of the body of the said Nicholas E. Deckebach and Margaret D. Hilberg in equal shares, per stirpes and not per capita, to be his, hers or theirs absolutely and in fee simple.

From this provision it is clear and the Court finds that Amalia A. Deckebach intended the corpus of the trust to be distributed to the heirs of the body of Nichols E. Deckebach and Margaret D. Hilberg as a class, each to take per stirpes; by the use of the words “his, hers or theirs” she has recognized that the class might consist of one, two or more. She has chosen to designate them as a class and not to name them, recognizing the uncertainties of life and the fact that the determination of which persons will qualify as members of the class cannot be made until ten years after the death of the last survivor of the three persons named. Henry E. Deckebach and Nicholas E. Deckebach being since deceased and Nicholas E. Deckebach having left no heirs of the body, it is now known that the only heirs of the body of Nicholas E. Deckebach and Margaret D. Hilberg will be those of Margaret D. Hilberg. Such heirs of her body when determined will take per stirpes, her children taking equal shares, but grandchildren if their parent be deceased, to take only such share as the parent would take if living, etc.

This class is definite in that it can easily be determined as provided for by the trust agreement at the time fixed therein for determination, which is ten years after the death of Margaret D. Hilberg who is now the last survivor of the three persons named.

The more difficult question arises as to the disposition of the income of the trust which under the terms of the trust instrument is treated separate from the corpus. While it is apparent that the donor intended to preserve the corpus for distribution to a class ten years after the death of the last survivor of the three named persons, it further appears that she did not intend to accumulate the income to increment the corpus.

In regard to the income of the trust the donor first provided that the Trustee:

ARTICLE I.

(a) Pay the entire net income of said trust fund to Henry E. Deckebaeh, her husband, for and during the term of his-natural life—

This provision was carried out until Henry E. Deckebaeh died on March 13, 1934.

In regard to subsequent payment of income, the donor provided in Article II of the trust agreement as follows:

“The Trustee at all times shall bear in mind and be guided by the fact that the object of this trust is to provide further funds for the care, benefit and maintenance of the grantor’s two children and their heirs of the body following the death of the said Henry E. Deckebaeh as herein set, forth and provided.”

Prom this stated objective, it appears that the donor was looking to the care, benefit and maintenance of her two children and the heirs of their body as a class qualified however by the manner thereinbefore set forth and provided, which provisions are:

ARTICLE I.

(b) Following the death of the said Henry E. Deckebaeh, the Trustee shall pay the entire net income of the said trust fund in equal portions to Nicholas E. Deckebaeh and Margaret E. Hilberg, son and daughter of the grantor, so long as they shall live respectively.

Following the death of either the said Nicholas E. Deckebaeh or the said Margaret D. Hilberg, the share of net income of such deceased one shall be paid to his or her heirs of the body for their care, support, maintenance and education until the termination of the trusts as hereinafter provided.”

Nicholas E. Deckebaeh was entitled to one-half of the income from March 13, 1934 to the date of his death ob October 21, 1949 from which date this income under the provisions of Article I (b), would become payable to the heirs of the body, had he been survived by heirs of his body, which he was not.

If Article I Section (b) was the sole provision in the said trust instrument governing distribution of this share of the income, the trust insofar as this portion of the income is concerned, would fail for want of a cestui qui trust, or'this portion of the income would have to accumulate as an increment to the corpus. However, the specific provision as to the object of the trust as contained in Article II, together with the provisions of Article 7, which declare that the Trust Agreement shall at all times be irrevocable, make either of these assumptions seem contrary to the objective of the donor.

It is the Court’s finding that while a trust cannot be implied from any of the provisions of Article I Section (b) the instrument itself under the provisions of Article II disposes of the share of the income which until October 21, 1949 was paid to Nicholas E. Dekebach.

Under the objective provisions of Article II (hereinbefore quoted) the Court finds it to be the intent of the donor that since October 21, 1949, the share of income which before that date was paid to Nicholas E. Dekebach, should now be paid to Margaret D. Hilberg during her lifetime and thereafter to the heirs of her body per stirpes until the date of the distribution of the corpus. The objective clause makes the income payable to “the grantor’s two children and the heirs of their body following the death of .the said Henry E. Dekebach as hereinbefore set forth and provided.”

Prom this provision itself it can be determined that she was looking as her objective to provide further income for the care, benefit, maintenance and support of her two children and the heirs of their body as a class, that being her guiding purpose, the only qualification being as to the order of time at which they would take as hereinbefore set forth and that they take per stirpes, by, which provisions so long as Nicholas E. Dekebach or Margaret D. Hilberg should live, he or she would receive precedence over his or her children, and that upon the death of either, his or her children, if any, as members of the class, take his or her share, or in other words, that distribution to members of. the class be made per stirpes.

The survivors of the class at this date consist of Margaret D. Hilberg and her children, with the expressed intent of the donor being that Margaret D. Hilberg, so long as she shall live receive precedence over her children.

Therefore it is the-Court’s finding that because of the objective clause contained in Article II, the trust does not fail as to any part of the income, but that the entire income from October 21, 1949, shall, as long as she shall live, be payable to Margaret D. Hilberg, and that after her death the entire income for the ten year period and termination of the trust shall become payable to the then living heirs of the body of Margaret D. Hilberg per stirpes. They will constitute the survivors of the class, being the heirs of the body of the grantor’s two children as referred to in Article II. -

Accordingly, a journal' entry may be submitted providing that the trustee pay the entire net income of the trust to Margaret D. Hilberg for the period commencing with October 21, 1949 and continuing as long as she shall live, and that thereafter for a period of ten years pending termination of the trust, the trustee pay the entire net income of the trust to the heirs of the body of Nicholas E. Dekebach and Margaret D. Hilberg, which class it is now determined can only consist of the then living heirs of the body of Margaret D. Hilberg, Nicholas E. Dekebach having died leaving no heirs of his body. Payment is to be made per stirpes in the event that any of the children of Margaret D. Hilberg die leaving grandchildren.

That ten years after the death of Margaret D. Hilberg the corpus of the trust estate shall be distributed to the heirs of the body of Nicholas E. Dekebach and Margaret D. Hilberg, which class it is now determined will consist of the then, living heirs of the body of Margaret D. Hilberg, Nicholas E. Dekebach having died leaving no heirs of the body. Distribution shall be made to said heirs of the body of Margaret D. Hilberg.per stirpes and not per capita.

Costs in this case are to be paid by the Trustee out.of the income from the trust fund.


author: By STEVENS, PJ.

text:
    STATE ex KAY, Relator, v. FUERST et, Respondent.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22077.
    Decided February 13, 1951.
    Richard Kay, Cleveland, for relator.
    Frank T. Cullitan, County Prosecutor, Cleveland, 'for respondent.
    (STEVENS, PJ, HUNSICKER, J, DOYLE, J, of the 9th District sitting by designation in the 8th District.)
   By STEVENS, PJ.

This is an action in mandamus, originally filed in this court. The issuance of a writ of mandamus is sought by the plaintiff,' a taxpayer, to compel the Clerk of Courts to collect certain unpaid and delinquent court costs, alleged to be owing in cases pending in the common pleas court of Cuyahoga County, Ohio.

In the petition there is a list of more than three hundred case numbers in which cases it is asserted that defendants are bound by law to collect the costs owing therein and that they have failed to do so.

Answers' were filed by the defendants wherein the allegations of the petition are generally denied. The sufficiency of the petition and the right of the plaintiff to maintain the action is also challenged.

The law relative to writs of mandamus requires the showing of a clear right to the issuance of the writ before a court may properly issue the same.

There .is in this case no showing of a clear right to the issuance of the writ.

The prayer of the petition is denied with exceptions to the relator.

HUNSICKER, J, DOYLE, J, concur.


author: By MIDDLETON, J.

text:
    SIBERT, Estate of, In re.
    Ohio Appeals, Third District, Allen County.
    No. 995.
    Decided June 29, 1950.
    Rodgers & Rodgers, Light & Siferd, Lima, for appellant. Lippincott.& Lippincott, Lima, for appellees.
   OPINION

By MIDDLETON, J.

This is an appeal on questions of law, from a finding and judgment of the Probate Court on a complaint filed by the ancillary administrator, Willis S. Siferd, charging the defendants Floe Mumaugh and Grace Loescher with concealing and conveying away the property of' the estate of Mildred Sibert, deceased, in fraud of the rights of the complainant and others interested in the estate.

A schedule of the property charged as having been concealed or conveyed away is attached to the complaint, as an exhibit.

On trial before the Probate Judge, without the intervention of a jury, the court found against the complainant, and dismissed the action. The judgment was journalized, as follows:

“This cause came on to be heard and was heard by the court upon the complaint of Willis S. Siferd as ancillary administrator of the estate of Mildred Sibert, deceased, alleging that Flo Mumaugh and Grace Loescher were withholding assets belonging to the estate of the decedent.
“And after the testimony of all the'witnesses and the argu- - ments and briefs of counsel, the court took the case under advisement.
"And on this 16th day of September, 1949 the court finds that said complaint and citation wa.s not well taken and should be dismissed.
"And that the several items of personal property given and delivered by the said decedent, Mildred Sibert, in her life time to the said Flo Mumaugh and Grace Loescher and still retained by them are the property respectively of the said Flo Mumaugh and Grace Loescher.
“It is therefore ordered, adjudged and decreed that the citation and complaint herein be and the same is hereby dismissed. It is further ordered, adjudged and decreed that the said Flo Mumaugh and Grace Loescher have and keep as their respective property all the personal property given and delivered. to them by the said Mildred Sibert, now. deceased in her life time and be and remain the property of the said Flo Mumaugh and Grace Loescher respectively, including United States Postal Certificate No. 2593 for five hundred ($500.00) Dollars, dated July'5, 1945, payable to Mildred Sibert; United States Postal Savings Certificate 2594 for five hundred ($500.00) Dollars dated July 5, 1945, payable to Mildred Sibert; United States Postal Savings Certificate No. 2592 for five hundred ($500.00) dollars, dated August 1, 1945, and payable to Mildred Sibert and United States Postal Savings Certificate No. 2595 for five hundred ($500.00) dollars, dated August 1, 1945, and payable to Mildred Sibert and that the Administrator of the estate of said Mildred Sibert deceased do any and all necessary and needful things and- endorse each of said certificates in the manner and form so that they can be paid to their respective owners. Complainant to pay the costs. Exceptions allowed.”

From this judgment the administrator appeals to this court, and sets forth six assignments of error.

1. That'the finding and judgment is against the weight of the evidence.

2. That the finding and judgment is contrary to law.

3. That the court erred in the admission of evidence over the objection and exception of appellant.

4. The court erred in the exclusion of evidence to which appellant objected and excepted.

5. The finding and judgment is not sustained by the evidence.

6. Other errors of law apparent of record.

The complainant did not argue orally or by brief, assignments of error Nos. 3, 4 and 6 and therefore these assignments will not be considered by the court.

This action is filed pursuant to the provisions of ,§10506-67 GC.

The evidence, as shown by the bill of exceptions, is that the decedent, a sister of the respondents, was ill with cancer for several years before her death and that she died from this illness on February 1, 1947.

During her lifetime she was the owner of the property set forth in the schedule attached to the complaint, and part of this property consisted of four Postal Savings Certificates, each certificate calling for $500.00.

The evidence further shows that at the time of the death of Mildred Sibert the respondent, Flo Mumaugh, had two of these certificates in her possession, and the respondent, Grace Loescher, had the other two in her possession.

The respondents testified that these certificates were given to them at the same time, the latter part of August, 1946, upon Mildred Sibert’s return from the hospital, and that at that time the deceased knew that she had a cancer and could not recover.

The evidence further shows that on one occasion when she was disposing of' property contained in the schedule, she stated: “I have a cancer and I can’t get well and I am going to give everything away that I got.”

The certificates given to the respondents were not signed or endorsed by the deceased.

While there is conflict in the evidence there is substantial and credible evidence to prove all the essential facts necessary to support the judgment of the court dismissing the complaint. The judgment, therefore, is not contrary to the evidence and is sustained by the evidence.

It is claimed by the appellant that the court was limited to the inquiry of whether the parties cited had in their possession, the articles mentioned in the complaint, and was without authority to determine ownership of the property.

Sec. 10506-73 GC provides, in part:

“The court shall have authority to cite into court all persons who claim any interest in the assets alleged to have been concealed, embezzled, conveyed or held in possession and at such hearing shall have authority to hear and determine questions of title relating to such assets.”

There .is nothing ambiguous in this provision of the Code and nothing that needs to be construed.

The authority is given to the court tp determine the title of the assets in dispute.

In this case, the ultimate fact to be determined is the title to. the property listed in the schedule attached to the complaint.

There is nothing in the holding of the court in the cases cited by the complainant which is in any way in conflict with this view.

In re Estate of Howard, 79 Oh Ap 203, at pages 216 and 217; Smith, Admr., v. Ross, 29 Abs, 553.

It is therefore the holding of the court that the Probate Court had the authority to determine the title to the property set forth in the complaint.

As has been stated, among the assets, claimed to have been ' concealed and conveyed away were four $500.00 postal certificates.

It is the claim of the administrator that title to these certificates did not and could not pass to the respondents, under the admitted facts in evidence. That these certificates are non-negotiable and non-transferable and could not be the subject of a gift by delivery only, during the lifetime of the decedent.

The certificates were not’offered in evidence nor have counsel furnished the court with any citations of the federal law or rules and regulations of the postoffice department governing the issuing of postal savings certificates.

Different types of federal obligations are governed by different regulations. Here, we are concerned only with regulations governing postal savings certificates.

The court has been unable to find where this question has been heretofore considered by the courts of Ohio. However, the question has been passed upon in the courts of other states.

The case of James J. Marshall, Executor, v. Elizabeth Felker, decided by the Supreme Court of Florida, 1945, and reported in 161 American Law Reports, 167, is a case in many'respects similar to the case at bar. The Florida court in this case found the law to be, as shown by the syllabus, as follows:

“1. United States postal savings certificates and war savings bonds may, notwithstanding statements therein that they are not negotiable and not transferable, be the subject of a gift by delivery which is valid as between the parties in the absence of express prohibition by the Federal statutes, rules, and regulations under which they are issued.
“2. That a gift of postal savings certificates is not prohibited by the regulations under which they are issued is indicated by a provision therein that if the rights and interests of a donee beneficiary have been adjudicated by a court of competent jurisdiction, payment will be made by the Post Office Department upon production of, a judgment or decree containing such adjudication. Such a prohibition cannot be inferred from the provision of the regulation governing the issuance of United States war savings bonds that no judicial proceedings will be recognized if they would give effect to an attempted voluntary transfer inter vivos of the bond.
“3. Generally, any species of personal property of which the legal or equitable title can pass by delivery, actual or constructive, may be the subject of a valid gift inter vivos or causa mortis.
“4. Gifts of securties are sufficiently established by uncontradicted and undiseredited testimony as to a declaration of the donor that he had made such gifts, together with the fact that the securities were found in the donee’s possession under claim of ownership.”

In discussing the rules and regulations of the Post Office Department governing postal savings certificates, the court says:

“The applicable rules and regulations of the Post Office Department are as follows: ‘Postal-savings deposits shall be evidenced by nontransferable’ and ‘non-negotiable certificates of deposit.’ Sec. 1608. ‘A depositor may not designate a beneficiary to receive payment except through the formality of a will, and payment shall be made only to the person or persons authorized. * *.’ Sec. 1620(3). ‘The final order, judgment, or decree of any court of competent jurisdiction adjudicating any right or interest in the credit of any sums deposited by any person with a postal savings depository * * shall, upon submission to the Postmaster General of a copy of the same, duly authenticated * * be accepted and pursued by the board of trustees as conclusive of the title, right, interestj or possession so adjudicated, and any payment of said sum in accordance with such order,' judgment, or decree shall operate as a full and complete discharge of the United States from the claim or demand of any person or persons to the same.’ ”

In the Florida case the appellant conceded that under the rules and regulations quoted, securities involved in the case are transferable causa mortis, but that such securities may not be the subject of an-action inter vivos.

The court goes on to state:

“It is the general rule that every species of personal property of which the legal or equitable title can pass by delivery, actual or constructive, may be the subject of a valid gift, either inter vivos or causa mortis. The rule applies to ‘nonnegotiable’ or ‘nontransferable’ postal savings certificates * * * issued by the federal government so long as the federal statutes, rules and regulations under which they are issued contain no express prohibition against the transfer of such instruments by gift.”
“We find nothing in any of the rules or regulations brought to our attention which will prevent an inter vivos gift of the securities in question. Indeed, section 1624 of the Postal Laws and Regulations seems to be clear to the effect that if the rights and interests of a donee beneficiary in postal savings certificates have been adjudicated by a court of competent jurisdiction payment will be made by the United States Post Office Department upon production of a judgment or decree containing such adjudication.”

We have quoted at length from the opinion in the above case, as the views expressed therein, applying to postal savings certificates, are in accord with our view of the law governing the case at bar.

The other cases cited by counsel involve the transfer of war savings bonds which are governed by different rules and regulations than govern postal savings certificates.

Holding, as we do, that the postal savings certificates were subjects of gift by delivery, the assignment of error that the judgment of the Probate Court is contrary to law is not well taken.

The court, in its entry of judgment, ordered the administrator of the estate of said Mildred Sibert, deceased, to “do any and all necessary and needful things and endorse each of said certificates in the manner and form so that they can be paid to their respective owners.”

The court was without authority to make this part of the order. Furthermore, if we are correct in our view of the law, heretofore stated, no action is necessary or required of the administrator to enable the respondents to obtain payment of the certificates.

The regulations of the Post Office Department, in conformity with Title 39, Chapter 20, Section 767 United States Code, provide, as hereinbefore set forth, that upon final judgment of the court adjudicating title to the certificates to be in the respondents, shall, upon the submission to the Postmaster General of a copy of the court’s judgment, duly authenticated, be accepted as conclusive of the title to the certificates.

The court being without authority to make such an order, the judgment of the court is modified by deleting that portion of the judgment, directing the administrator to “do any and all necessary or needful things and endorse each of said certificates in the manner and form so that they can be paid to their respective owners,” and, as deleted, the judgment is affirmed.

GUERNSEY, PJ, and JACKSON, J, concur.