Jurisdictional Statement — Pep Boys, Manny, Moe & Jack of Cal., Inc. v. Pyroil Sales Co.

INDEX.

SuBJECT INDEX.

i i ih Si. Wd caweneeaueudcewathadehenaus

The statutory provisions which appellant contends sustain the

jurisdiction of this Court to review the sine in the

within cause upon appeal ............... LAkhesw ae eee Rakeren

The statute of the State of California the validity of which is

TE OVO TRIS BDDON oii ois i kcccwa why cee cna e es aeense wees

The case is within the jurisdic tional provisions on which appel-

Se SU: 5 gon snd bende nnenke ben Wax ckanek bawendasnanseeuen

The Federal question involved is a substantial one..... se eceees

The cases which appellant believes sustain the jurisdiction of

et CE cv acswabddeemudeenens AKC SRRAERE RRR Ra ee

TABLE OF CASES CITED.

Board of Commissioners, ete. v. Lucas, 93 U. S. 108, 23 L. Ed. 822..

Doubleday, Doran & Co., Ine. v. R. H. Macy & Co., Inc., 269 N. : a 272,

Dee Te” BA voici ns seeks wane ae eemeee eee ae

ca |

Milheim v. Moffat Tunnel smal Dist., 262 U. Ss. 710, 43 Sup. Ct. Rep.

TO6,- GF Ee BOR. DOG crise han cas cncenanecaunnssngussteuencesun

- Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Rock, 279 U.

430, 40 Sap. Ct. Rep. 368, 78 BL. Bid. TO sciaievetcacs ceenawenancas

Rio Grande Western Ry. Co. v. Stringham, 239 U. S. 44, 36 Sup. Ct.

ee ee? rere eee kame ancien

U. S. Fidelity & Guaranty Co. v. Oklahoma, 250 U. S. 111, 39 Sup. Ct.

Reap. SOD, GE Ne. TR. GP oa ccs cneanssccnscaeseahins. xeeseenvans

Williams v. Bruffy, 102 U. S. 248, 26 L.Ed. 185.............0cee0e

Zucht y. — 260 U. S. 174, 43 Sup. Ct. Rep. 24, 67 L. Ed. 14 .....

STATUTES CITED.

’ Act of January 31, 1928 (28 U., S. C. A. 861a) ; 45 Stats. 54, Chapter

14, Section 1 ......:.. deat dccecssesseeseeeeevessssaeeanaes see

Act of April 26, 1928 (28 U. S. C. A. 861b), 45 Stats. 54, Chapter

14, ‘Section 2, as amended by 45 Stats. 466, Chapter GG. os bcs des

California Fair Trade Act (Stats. of California, 1931, Chapter 278,

page 583, as amended by Stats. of California, 1933, Chapter 260,

“Ts SE nek cv endcavadekcdncdéhinewad ee caebes eee

Section 1% ........ POUT Te TCT TCT TTT. Pere meee y

K.P knee denancnndasawanes ese 4ecaneaencaueeue

NS PP kin ckicueddsnddndsndsenandeckeeseee

| Pere rete Ter TVerrrrer rye Serre ry erry ee

TET CTE TT Tee ee eet eee ree

Judicial Code, Section 237(a), as amended to February 13, 1925,

by 43 Stats., p. 937, Chapter 229, Section 1 (28 U. S. C. A. 344a)..

Rules of the Supreme a of the United States, Rule 12, Par. 1.

Rule 46, Par. 2.

—7834-C

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SUPREME COURT OF THE UNITED STATES

- OCTOBER TERM, 1935

No. 1063 —

CLARENCE G. KUNSMAN,

Appellant,

Vs.

MAX FACTOR & CO., a Conroration, anv SALES

BUILDERS, INC., a Corporation,

Appellees.

STATEMENT OF JURISDICTION OF THE SUPREME

COURT OF THE UNITED STATES.

Pursuant to the provisions of Section 1, of Rule 12, of the

‘Revised Rules of the Supreme Court of the United States,

Appellant respectfully submits herewith this statement of

the jusisdiction of said Supreme Court of the United States

in the above entitled cause, and respectfully shows:

I.

The Statutory Provisions Which Appellant Contends Sus.

tain “he Jurisdiction of This Court to Review the Judg-

ment in the Within Cause Upon Appeal.

That 45 Stats. 54, Chapter 14, Section 1, enacted January

31, 1928 (U.S. C, A., Title 28, Section 861a), provides that

—

2

the writ of error is abolished and that relief theretofore

obtainable by writ of error ghall thereafter be obtainable —

by appeal. .

That 45 Stats. 54, Chapter 14, Section 2, as amended

April 26, 1928, by 45 Stats. 466, Chapter 440 (U.S. C. A,

Title 28, Section 861b), provides that the statutes regulat-

ing the right to a writ of error shall be applicable to the

appeal which the statute hereinabove referred to, substi-

tutes for the writ of error.

_ That Rule 46, paragraph 2, of the Rules of the United

States Supreme Court provides that an appeal may be al-

lowed to this Court where the case is one permitting an ap-

peal by writ of error under the legislation in force when the

act abolishing the writ of error was adopted.

That under Judicial Cede, Section 237(a), as amended to

February 13, 1925, by 48 Stats. p,-937, Chapter 229, Section

1 (U.S. C. A., Title 28, Section 344(a)), said act being the

legislation in force governing the use of the writ of error

at the time said writ of error was abolished on January 31,

1928, a writ of error was: available for review of a final

judgment or deere\ in a suit in the highest court of the

State in which a décision in the suit could be had, where

there is drawn in question the validity of the statute of

any State on the ground that it is repugnant to the consti-

tution, treaties or laws of/the United States, and the deci-

sion is in favor of its validity, and that in such case the

writ shall have the same effect as if the judgment or ina

had been rendered or passed in a court of the United State

and the Supreme Court of the. United States may reverse,

modify or affirm the judgment or decree of such State court

and may, in its discretion, award execution or remand the

cause to the court from which it was removed by the writ. |

Il.

The Statute of the State of California, the Validity of

Which is Involved in This Appeal.

That your petitioner respectfully shows that the instant

case is one in which, under the legislation hereinabove re-

ferred to, a review could be had in the Supreme Court of

the United States as a matter of right, in that there is

drawn in question the validity of Section 1% of a statute

of the State of California known as the Fair Trade Act

(Stats. of California, 1931, Chapter 278, Page 583, as

amended by the addition of Section 14 thereto, Stats. of

California, 1933, Chapter 260, Page 793),.upon the ground

that said statute is repugnant to Section 1 of the Four-

teenth Amendment to the Constituticn of the United States.

The content of said act, together with said amendment, is

herewith set out verbatim:

‘‘An act to protect trademark owners, distributors

and the public against injurious and uneconomic prac-

tices in the distribution of articles of standard quality

under a distinguished trademark, brand or name.

(Approved May 8, 1931, Stats. 1931, p. 583. In

effect August 14, 1931.)

1. Certain sale contracts declared lawful.

2. Exception.

3. Definition.

4. Constitutionality.

5. Short title.

‘$1. Certain Sale Contracts Declared Lawful.—No

contract relating to the sale or resale of a commodity

which bears, or the label or content of which bears the

trademark, brand, or name of the producer or owner

of such commodity and which is in fair and open com-

petition with commodities of the same general class

produced by others shall be deemed in violation of any

4

law of the state of California by reason of any of the

following provisions which may be contained in such

contract:

1. That the buyer will not resell such commedity ex-

cept at the price stipulated by the vendor.

2. That the vendee or producer require in delivery

to whom he may resell such cammodity to agree that

he will not, in turn, resell except at the price stipulated

by such vendor or by such vendee.

Such provisions in any toptract shall be deemed to .

contain or imply conditions that such cor. -10dity may

be resold without reference te such agreement in the

following cases:

1. In closing’ out the owners’ stock for the purpose

of discontinuing delivering any such commodity.

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.

**2. Exception.—This act shall not apply to any con-

tract or agreement, between producers or between

wholesalers or between retailers as to sale or resale

prices.

**3. Definitions—The following terme, as .used in

this act, are hereby defined as follows:

‘Producer’ means grower, maker, baker, marufac-

turer or publisher.

‘Commodity’ means any subject of commerce.

‘**4. Constitutionality—If any provision of this act

is declared unconstitutivnal it is the intent of the legis-

lature that the remaining portions thereof shall not be

affected but that such rematning portions remain in

full force and effect.

**5. Short title—This act may be known and cited

as the ‘Fair Trade Act’.’’

5

Section 1% of said Fair Trade Act, being the provision

whose constitutionality is here involved, was added in 1933

(Stats. 1933, Chapter 260, page 793) and provides as fol-

lows:

‘*Sales below contract price.—Wilfully and know-

ingly advertising, offering for sale or selling any com-

modity 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.’’

Ill.

The Case is Within the Jurisdictional Provisions on Which

Appellant Relies.

The nature of the above entitled cause in the trial court,

was an action for an injunction instituted by the appellees

under Section 14% of said Fair Trade Act, to restrain ap-

pellant, a retail drug merchant, from knowingly selling cer-

tain trademarked commodities manufactured by appellee,

Max Factor & Co. at a price less than the price fixed by

appellees for-similar commodities, in contracts entered into

between appellees and third persons. Appellant was not

a party to such contracts. Appellant raised the objection .

that said Section 11% of the Fair Trade Act was unconsti-

tutional, by filing a general demurrer to appellees’ com-

plaint. A hearing on said demurrer was had and the trial

court thereupon made its order sustaining appellant’s de-

murrer, without leave to amend, on the ground that Section

1% of the Fair Trade. Act violated the Fourteenth Amend-

ment to the Constitution of the United States: Judgment

on said order was entered by the trial court on February 5,

1934. Appellees thereupon appealed from said judgment,

to the Supreme Court of the State of California, and on

. . ae = 4

Webruary 27, 1936, said Supreme Court of the State of

California rendered judgment reversing the judgment en-

tered by the trial court on the order-sustaining appellant’s

demurrer without leave to amend. Appellant thereupon

filed with said Supreme Court of the State of California, a ©

petition for rehearing of said cause. Said petition for re-

hearing was denied by said Supreme Court of the State of

Galifornia on the 26th day of March, 1936, at which time

said court modified its-opinion by ordering the trial court

to enter final judgment for the appellees by reason of ap-

pellant’s election to stand upon his demurrer. The Supreme

Court of the State of California, in reversing said judgment

of the trial.court, as aforesaid, ruled that Section 114 of

the Fair Trade Act was constitutional, and that it did not

deprive appellant of his liberty or property. without due

" process of law, in violation of Section 1‘ of the Fourteenth

Amendment to the Constitution of the United States. The

opinions of the Supreme Court of California are printed

as an appendix to the Statement as to jurisdiction in the

case of The Pep Boys, etc. v. Pyroil Sales Co. Inc., No.

1024, October Term, 1935, and in the interest of brevity are

not repeated here. ‘Phat the Supreme Court of the State of

California is the court of last resort in all causes heard in

the State of California, and that said court has heard and

rendered its final judgment in the within cause.

IV.

The Federal Question Involved is a Substantial One.

The Federal question involvéd herein is a substantial

one and is neither frivolous nor moot. Section 114 of the

Fair Trade Act which appellant alleges to be unconstitu-

tional, vitally affects the liberty and property rights of

almost every resident of the state, including manufacturers,

wholesalers, distributors, retailers and the consumer public.

aT

.

7

It raises the question of the right of ‘a person to sell his

own property at prices of his own choosing.

‘The New York Court of Appeals, in Doubleday, Doran &

Co., Inc., v. R. H. Macy & Co., Inc., 269 N. Y. 272, 199 N. E.

409, decided January 7, 1936, declared unconstitutional

‘under the Federal constitution, a statute of the State of

New York which is virtually identical with the statute in-

volved in the present case. The conflict of decisions on

this important Federal question by the highest courts of

these two states has tended to create uncertainty and con-

fusion among business men. and the consumer public

throughout the nation, and will tend'to give rise to a multi-

plicity of suits unless the Federal question involved is de-

" .eided by the highest court of the land.

V.

‘The Casés Which Appellant Believes Sustain the %-~i tic-

tion of This Court.

A. The United States Supreme Court has jurisdiction of

a cause wherein a real and substantial Federal question is

involved. —

U.S. Fidelity & ianeeite Co. v. Oklahoma, 250 U. S. -

111, 39 Sup. Ct. 399, 63 L. Ed. 876;

Zucht v. King, 260 U. S. 174, 43 Sup. Ct. 24, 67 L. Ed.

194;

‘Silt v. Moffat Tunnel Imp. Dist., 262 U, Ss. 710, 43

Sup. Ct. 694, 67 L. Ed. 1194.

B. Where the highest court of a State affirms or denies

the validity of a judgment of an inferior court over which it

exercises appellate authority, this Court has jurisdiction to

review such decision, if it involves a Federal question.

Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v.

Rock, 279 U. S. 410, 49 Sup. Ct. 363,.73 L. Ed. 766;

Williams v. Bruffy, 102 U. S. 248, 26 L. Ed. 135.

8

C. A judgment is final if it disposes of the whole case on

the merits, directs what judgment should be entered, and

leaves nothing to the judicial discretion of the trial court.

Rio Grande Western Ry. Co. v. Stringham, 239 U. S.

44, 36 Sup. Ct. 5, 60 L. Ed. 136;

. Board of Commissioners, etc., v. Lucas, 93 U.S. 108,

23 L. Ed. 822.

Respectfully submitted,

JuLEs C. GOLDSTONE,

Wituiam Bercer,

Attorneys for Appellant.

(7834-C)

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