# Jurisdictional Statement — Pep Boys, Manny, Moe & Jack of Cal., Inc. v. Pyroil Sales Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0082%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1936 - **Citation:** 299 U.S. 198 ## Text 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 -~1 -1 ? 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) * (Peet Nias Sod haar Aish Pela i i ind ew pe vra > | <> —. e ‘y Ree sah Desabaaisnrontaass a fac aah 9d a aaa as aS tart HAS ap ata : ‘ « Sikes ‘ 7] tak “4 , 2 Se 0a iP, Ly aa hit ea lala aane Sa ibstiind send: SS Baw Daly § ‘ ‘t ‘ oO Se --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0082%3A08. Public record. Not legal advice.