Avella v. Almac's Inc.

• Decision Date: 01 June 1971
• Docket Number: Nos. 1-6,s. 1-6
• Citation: 100 R.I. 95,211 A.2d 665
• Court: Rhode Island Supreme Court
• Parties: Serafino AVELLA v. ALMAC'S INC. Serafino AVELLA v. STOP & SHOP, INC., OF R. I. Serafino AVELLA v. The BIG G SUPERMARKETS, INC. Serafino AVELLA v. NYANZA MILLS OUTLET CO. Serafino AVELLA v. FIRST NATIONAL STORES, INC. Serafino AVELLA v. UNITED PUBLIC MARKETS, INC. C. Q

Page 665

211 A.2d 665

100 R.I. 95

Serafino AVELLA v. ALMAC'S INC.

Serafino AVELLA v. STOP & SHOP, INC., OF R. I.

Serafino AVELLA v. The BIG G SUPERMARKETS, INC.

Serafino AVELLA v. NYANZA MILLS OUTLET CO.

Serafino AVELLA v. FIRST NATIONAL STORES, INC.

Serafino AVELLA v. UNITED PUBLIC MARKETS, INC.

C. Q. Nos. 1-66-1-71.

Supreme Court of Rhode Island.

June 29, 1965.

Coleman B. Zimmerman, Sidney L. Rabinowitz, Martin L. Greenwald, Providence, for complaint

Armstrong, Gibbons & Lodge, Walter F. Gibbons, Joseph G. Kinder, Providence, for Almac's Inc.

Adelson & Chernick, Joseph E. Adelson, Melvin Chernick, Providence, Sherin & Lodgen, George Lodgen, Boston, Mass., for Stop & Shop, Inc. of R. I.

Alvin N. Biener, Providence, for The Big G Supermarkets, Inc.

Waldman & Waldman, Maxwell W. Waldman, Providence, for Nyanza Mills Outlet Co.

Coffey, Ward, McGovern & Novogroski, John G. Coffey, Charles J. McGovern, Providence, for First National Stores, Inc.

Graham, Reid, Ewing & Stapleton, Robert A. Mercer, Eustace T. Pliakas, Edward J. Regan, Providence, for United Public Markets, Inc.

William C. Hillman, Pawtucket, amicus curiae in support of complainant.

Edwards & Angell, James K. Edwards, Ronald R. Lagueux, Paul J. Choquette, Jr., Providence, amicus curiae in support of constitutionality of Unfair Sales Practices Act.

JOSLIN, Justice.

These six bills in equity are brought by the operator of an independent retail market selling food products to enjoin the respondents, each the owner and operator of two or more retail markets in this state, from advertising, offering to sell, or selling food products below cost in violation of G.L.1956, title 6, chap. 13, commonly known as the Unfair Sales Practices Act and hereinafter referred to as the Act. The causes were consolidated for trial, and at the hearing in the superior court on the complainant's prayer for a preliminary injunction the trial justice certified the causes to this court pursuant to § 9-24-26, when questions of law relating to the constitutionality of the Act were raised on the record which, in his opinion, were of such doubt and importance and so affected the merits of controversies as to require our immediate determination.

Statutes prohibiting selling below cost first made their appearance at the turn of the century and during the depression days of the 1930's were enacted in many states. 1 Callman, Unfair Competition and Trade-Marks (2d ed.) § 27.1, p. 520. Our own Act was adopted in 1939. While in their particulars the Unfair Sales Practices Acts of the various states may differ, in their essential provisions they are substantially similar. Our Act, or at least those portions as here may be relevant, provides in substance for criminal sanctions as well as injunctive relief against a wholesaler or retailer who, intending to injure competitors or destroy competition, advertises, offers to The decree for certification states the questions of law considered to be of doubt and importance and insofar as they relate to the federal constitution as follows:

sell or sells any item of merchandise at less than his cost as defined in the Act. Evidence of any such advertisement, sale or offer to sell is deemed prima facie evidence of the requisite intent. Among the acts exempted from both the civil and criminal provisions of the Act are isolated transactions; clearance, liquidation and judicial sales; sales of perishables to prevent deterioration; and sales of merchandise to any department of or institution maintained by the state or any political subdivision thereof, or for charitable purposes or to [100 R.I. 98] relief agencies. The term 'sales' is here used in a generic sense and includes advertising or offering for sale as well as actual sales.

'1. Is the Rhode Island Unfair Sales Practices Act, so-called, General Laws of Rhode Island, 1956, Section 6-13-1 through 6-13-8, as amended, repugnant to the due process provision, so-called, contained in Section 1 of Article XIV of articles in addition to, and amendment of, the Constitution of the United States of America, which provides as follows:

"Nor shall any state deprive any person of life, liberty or property without due process of law'

for the reason that said Act is not necessary for the protection of the health, welfare or safety of the inhabitants of the State of Rhode Island and is therefore an unwarranted exercise of the police powers of the State in violation of said provision of Section 1 of Article XIV of articles in addition to, and amendment of, the Constitution of the United States of America?

'2. Is Section 6-13-4, General Laws of Rhode Island, 1956, repugnant to the due process provision, so-called, contained in Section 1 of Article XIV of articles in addition to, and amendment of, the Constitution of the United States of America, which provides as follows:

"Nor shall any state deprive any person of life, liberty or property without due process of law'

in that said section creates a presumption of guilt and removes the presumptions of innocence of an accused person?

'3. Is the Rhode Island Unfair Sales Practices Act, so-called, General Laws of Rhode Island, 1956, Section 6-13-1 through 6-13-8, as amended, repugnant to the due process provision contained in Section 1 of Article XIV of articles in addition to, and amendment of, the Constitution of the United States of America, which provides as follows:

"Nor shall any state deprive any person of life, liberty or property without due process of law'

for the reason that the provisions contained in Section 6-13-1(d), viz.:

"(d) The terms 'cost to the retailer' and 'cost to the wholesaler' as defined in paragraphs (a) and (b) shall mean bona fide costs; and sales to consumers, retailers and wholesalers at prices which cannot be justified by existing market conditions within this state shall not be used as a basis for computing replacement costs with respect to sales by retailers and wholesalers,'

are so vague, general and indefinite that they fail to sufficiently set forth the activity prohibited and made punishable under said Unfair Sales Practices Act, so-called?'

THE STATE CONSTITUTION

It would add unduly to the length of this opinion and without useful purpose if we were specifically to set forth questions numbered The complainant argues that the application of the due process clause of our state constitution is confined to one accused of crime and that it is therefore without significance here inasmuch as the respondents have been proceeded against in equity rather than under the criminal provisions of the Act.

4, 5 and 6. It is sufficient to observe that in substantially identical form they present the same questions of repugnancy as do questions numbered 1, 2 and 3 but relate, however, to the due process of law portion of art. I, sec. 10, of our state constitution which provides that in all criminal prosecutions, the accused shall not 'be deprived of life, liberty, or property, unless by the judgment of his peers, or the law of the land.'

The respondents contend, however, that the constitutional provision applies in civil as well as in criminal proceedings and they point to the early case of Reynolds v. Randall, 12 R.I. 522, ¹ where in passing on the constitutionality of a legislative enactment relating to the claiming of title to an easement by adverse possession the court after holding the act unconstitutional under the due process clause of the fourteenth amendment to the federal constitution, also found it was a violation of art. I, sec. 10, of the state constitution notwithstanding that the provisions of that clause seemed grammatically 'to apply only in favor of persons accused of crime.'

In our opinion, the references in Reynolds and in the other cited cases to the inclusion of both the criminal and the civil as being within the ambit of our due process clause were at best passing and in no case essential to the ultimate holdings, for in each case the decision could have rested solely on the federal due process clause. In State v. Keeran, 5 R.I. 497, directly at issue, however, was the applicatity of our state constitution's due process of law clause to a statute outlawing or declaring a tippling house to be a common nuisance. In holding that the enactment was not repugnant to the state constitution, Chief Justice Ames, whose memory and outstanding contribution to our judicial history this year, the 100th since his untimely passing, we recognized at our Law Day ceremonies, speaking for the court and referring to our due process clause, said at page 505:

'Surely, if any clause in the constitution has a definite meaning, which should exclude all vagaries which would render courts the tyrants of the constitution, this clause, embodying, as it does, with improvements, the precious fruits of our English liberty, can claim to have, both from its history and long received interpretation. It is no vague declaration concerning the rights of property, which can be made to mean anything and everything; but an intensely practical, and somewhat minute provision, guarding the rights of persons accused of crime, at the various points at which they may be exposed, when pursued or on trial, to oppression from the state or its officials.'

Observing that the language of our due process of law clause had been borrowed from the Magna Charta which secured rights to all English freemen when prosecuted at the king's suit, the learned chief justice at page 507 continued:

'With us, it is [art. I, sec. 10] the constitutional shield of one accused of crime against the sovereign many who are prosecuting him; and not a sword to cut down the power of the many, legislatively expressed, to declare what shall constitute a crime, when in future done by any or all. It guards the suspected and accused, the prisoner and captive, who need its protection; and has no application to the honored and free, whose rights of property are guarded by other...