F. & A. Ice Cream Co. v. Arden Farms Co.

• Decision Date: 04 June 1951
• Docket Number: No. 12406-BH.,12406-BH.
• Citation: 98 F. Supp. 180
• Court: U.S. District Court — Southern District of California
• Parties: F. & A. ICE CREAM CO. v. ARDEN FARMS CO. et al.

98 F. Supp. 180

F. & A. ICE CREAM CO. v. ARDEN FARMS CO. et al.

No. 12406-BH.

United States District Court, S. D. California, Central Division.

June 4, 1951.

COPYRIGHT MATERIAL OMITTED

Sheppard, Mullin, Richter & Balthis and Gordon F. Hampton, all of Los Angeles, Cal., for plaintiff.

Cosgrove, Cramer, Diether & Rindge, T. B. Cosgrove, J. D. Barnum, Jr., Morrow & Morrow, John C. Morrow, Gibson, Dunn & Crutcher, Henry F. Prince, and Julian O. von Kalinowski, all of Los Angeles, Cal., for defendants.

YANKWICH, District Judge.

Pending before the Court in the foregoing and related cases are the following motions:

1. Motion filed March 15, 1951, by all defendants (other than Roy E. Campbell and A-1 Ice Cream Company) to dismiss the 4th, 5th and 6th causes of action in Cases Nos. 12,744-WB and 12,776-WB.

2. Motion of defendant Roy E. Campbell only, filed March 16, 1951, to dismiss the 5th and 6th causes in Cases Nos. 12,434-Y and 12,524-BH; and to dismiss the 4th and 5th causes in all the remaining cases.

The Complaints in these cases, and especially in the causes of action under the Robinson-Patman Act to which these motions relate, are outlined in the Opinion filed in Balian Ice Cream Co., Inc. v. Arden Farms Co., et al.¹

There we determined that the Robinson-Patman Act² was an anti-trust law³ so as to permit a person injured by its violation to institute an action for threefold damages.⁴

The new grounds urged for a contrary ruling by some of the defendants who have not previously appeared have been considered. And we are satisfied with the correctness of the determination of these questions already made.

For the first time, however, both the defendants who have already appeared, and others, challenge the constitutionality of Section 3 of the Act.⁵ While the attack is directed at the entire section, we cannot entertain so broad a challenge. The causes of action under the Robinson-Patman Act with which we are concerned (Count 4 in 12744-WB and the similar counts in the other cases), are brought under the clause which prohibits the sale of goods "at unreasonably low prices for the purpose of destroying competition or eliminating a competitor". So our consideration of constitutionality must be limited to this clause. For it is not the province of courts to make abstract or theoretical declarations on the constitutionality of statutes or portions of statutes not before them.⁶

I The Power to Regulate Commerce

Another limitation stems from the fact that the Robinson-Patman Act was enacted under the broad power of the Congress "to prescribe the rule by which commerce is to be governed."⁷

In exercising this power, the Congress has few limitations. Mr. Justice Stone has stated the boundless nature of it in these words:

"The power `is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.' Gibbons v. Ogden, supra, 9 Wheat. 1, 196, 6 L.Ed. 23. Hence Congress is free to exclude from interstate commerce articles whose use in the states for which they are destined it may reasonably conceive to be injurious to the public health, morals, or welfare, Reid v. Colorado, supra 187 U.S. 137, 23 S.Ct. 92, 47 L.Ed. 108; Lottery Case Champion v. Ames, supra 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492; Hipolite Egg Co. v. United States, 220 U.S. 45, 31 S.Ct. 364, 55 L.Ed. 364; Hoke v. United States, supra 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523, or which contravene the policy of the state of their destination, Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U.S. 334 335, 57 S.Ct. 277, 81 L.Ed. 270. Such regulation is not a forbidden invasion of state power either because its motive or its consequence is to restrict the use of articles of commerce within the states of destination, and is not prohibited unless by the due process clause of the Fifth Amendment. And it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states."⁸

The limitations which ordinarily apply to legislative restrictions or prohibitions relating to contracts, and especially the due process clause of the Fifth Amendment, do not stand in the way of the exercise of this power. In Addyston Pipe & Steel Co. v. United States⁹, the Court said:

"In Gibbons v. Ogden (supra), the power was declared to be complete in itself, and to acknowledge no limitations other than are prescribed by the Constitution.

"Under this grant of power to Congress, that body, in our judgment, may enact such legislation as shall declare void and prohibit the performance of any contract between individuals or corporations where the natural and direct effect of such a contract will be, when carried out, to directly, and not as a mere incident to other and innocent purposes, regulate to any substantial extent interstate commerce. * * * We do not assent to the correctness of the proposition that the constitutional guaranty of liberty to the individual to enter into private contracts limits the power of Congress and prevents it from legislating upon the subject of contracts of the class mentioned."

Indeed, it has been intimated that the due process limitation of the Fifth Amendment does not apply to legislation under the commerce clause.¹⁰ This is, perhaps, too broad a statement. For the limitation of due process does apply to legislation under the commerce clause.¹¹ What is meant, however, is this: The power to exclude from interstate commerce being practically unlimited,¹² the norms by which it is determined whether due process has been violated are entirely different. For what may be entirely prohibited may be regulated almost limitlessly.¹³ And legislative prohibitions which would violate due process if unrelated to commerce, fulfill the standard when they concern interstate commerce. So we come to the specific problem.

II Certainty in Criminal Statutes

The first ground for attack on the clause under discussion is that it does not satisfy the test of definiteness required in a statute of this character. A criminal statute must be definite. The reason for this requirement has been stated by the Supreme Court:

"No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. The applicable rule is stated in Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322; `That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'"¹⁴

It is one of the requirements of due process that a statute making certain conduct criminal should designate with certainty and definiteness the act which it proscribes.¹⁵ This, in turn, stems from the fundamental principle in our law expressed in the Latin maxim, Nullum crimen, nulla poena sine lege. (No crime or punishment without law.) In effect, this means that no one shall be held criminally responsible for conduct which is not specifically forbidden by a statute. And a statute is definite when it "provides an adequate warning as to what conduct falls under its ban, and marks boundaries sufficiently distinct for judges and juries fairly to administer".¹⁶

It is argued that the clause under consideration does not meet this requirement, because no objective criterion exists by which to determine whether, in a specific instance, the price at which goods are sold is "unreasonably low."

III

"Reasonableness" as a Test

The standard of reasonableness as applied to conduct is an old one and long accepted in our law. It is based on the assumption that the actions of the reasonable, average person may be used as a standard by which to measure conduct, — whether it relates to care or absence of it, skill or other similar circumstances to which the test is applied.¹⁷ While it attempts to measure the subjective reaction of the assumed reasonable person in certain circumstances, the test is "external and objective."¹⁸

But whether we consider it subjective or objective,¹⁹ it uses, as the standard, the action of "the man who conforms to the common standards of society."²⁰ So reasonableness or unreasonableness has been recognized as consonant with due process under a great variety of circumstances other than those relating to care and negligence. Illustrative are: Cases sustaining such standards when applied to speed of motor vehicles²¹, rates or fees to be charged for services,²² and deductions to be made from income taxes.²³ In the realm of economic controls, a state statute which prohibited contracts "reasonably calculated" or which "tend" to fix prices has been upheld.²⁴

A provision of the Federal Food and Drug Act, 21 U.S.C.A. § 1 et seq., which permitted "reasonable variations" in weights or measures to be established by departmental rule was sustained against the attack of indefiniteness and delegation of legislative power.²⁵ The same conclusion was reached as to a state statute, Rev. Codes Idaho, § 6872, relating to "any cattle range previously * * * or * * * usually occupied by any cattle grower".²⁶ Even in the realm of freedom of expression, where courts are more likely to resist legislative intrusion, a municipal ordinance which forbade the use or operation on public streets of sound trucks or of any instrument which emitted "loud and raucous noises" was sustained.²⁷

So it is apparent that the test...