The Charlotte News

Saturday February 26, 1938

SIX EDITORIALS

Site Ed. Note: The 1936 cases to which "Price Maintenance Laws" refers are Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 US 183, and Pep Boys, Manny, Moe & Jack, of California v. Pyroil Sales Co., 299 US 198. The editorial below misstates the actual language of the laws at issue in these cases, though not their ultimate intent. The laws, rather than directly forbidding goods under trademark or brand name to be sold at less than their manufacturer's suggested retail price, merely express that contracts, requiring that trademarked or branded products be thusly sold at that price, are not illegal. It was in fact this distinction that enabled the legislation in question to withstand constitutional scrutiny in the cases, against a claim that legislative price-fixing violates Due Process by denying a property right of the vendee to set his own fair price on such goods.

Likewise, since the legislation specifically referred to only trademarked or branded products, it was not deemed so arbitrary, unfair or capricious as to violate Due Process. Also, since the legislation had a sufficient standard upon which to separate the commodity from other classes of products, that is that the product be "in fair and open competition with commodities of the same general class produced by others", the legislation was similarly deemed not to be violative of due process as being vague and indefinite. Finally, the Court said that the legislation did not violate Equal Protection by discriminating against vendees in classifying trademarked products as distinct from products without a trademark or brand name attached, since Equal Protection of the laws only requires that legislation which makes separate classifications "'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike'".

It should be noted, too, that the history of interpretation of the Equal Protection clause, whether in regard to economic legislation or the denial of rights to individuals guaranteed by the Constitution, is a long and twisting road, but basically boils down to, as a first test, whether the right being denied is "fundamental", that is a part of the Bill of Rights, and then, if so, whether the discrimination either in the words or the application of a statute or ordinance or other governmental action is invidious discrimination or a so-called "suspect classification" with respect to a distinction between persons based on immutable characteristics, such as skin color. If the legislation in issue fails both of those tests, the courts apply "strict scrutiny" and, in so doing, almost invariably declare the law in question, as worded or applied in practice, to be unconstitutional. That is not to say there are not other methods of reasoning by which laws are declared unconstitutional by denying Equal Protection, that is when the law makes a distinction which is either arbitrary or does not have a "fair and substantial relation to the object of the legislation". The so-called "strict scrutiny" test forms, however, the surest path to having such a law struck down on its face, making it then incumbent upon the state, to survive scrict scrutiny, to show that the law serves a "compelling state interest", a burden on the state virtually impossible in most instances to meet.

Anyway, we reckon from all this stuff that it is better to be a live lion, even in a cage, than to be the dead dog on which the hair of the rabbit fed ye.

Thank ye, thank ye very much.

The rest of the page is here. For more on skeeters, whether dogs or bugs, we don't know, as elucidated by Mr. O'Meara in the letters to the editor column, see "Air Attack", May 19, 1941. Thank ye, thank ye very much.

The mayor of Woburn, Mass., (population, 19,434) has a way, he thinks, to break up public drunkenness. He's going to borrow a lion's cage from a fellow he knows, light it up, put all that day's convicted drunks in it and tow them about Woburn's streets at night. "This," he opines, "will work, I'm sure."

Well, if it doesn't, something else he could try would be to put the wives and children of the drunks in the cage and haul them about for public humiliation. That might work. If it doesn't, he can leave the lion in the lion's cage and then put the drunks in. That would work, we'll guarantee.

Of course, if any of the drunks should hire a lawyer and confront the mayor with that clause in the United States Constitution forbidding "cruel and unusual punishments," that might work, too.

At first we decided not to hail with an editorial the entry of Roland F. Beasley, editor and co-publisher of the lively Monroe Journal, into the political ring. Our impulse was not to do it primarily because he is a fellow newspaper man, and newspaper men are too much prone to scratch each other's backs--in print, anyhow.

But we got to thinking about Mr. Beasley and the state of the Union and all that, and we came to the conclusion that it would be a mighty fine thing for the eighth district to send a man like Mr. Beasley to Congress, especially at this juncture. For the Monroe editor is, as he should be, well informed. He is deliberative both in his actions and his thinking, inclined, we'd say, rather more to make haste at leisure than to repent under any conditions. He is a business man himself, yet thoroughly at home on the soil. He is a life-long Democrat, which entitles him to enter the primary, but he is more than that. He is a great believer in democracy itself, and progressive democracy, even in liberal democracy; but not, if we know him, in social democracy, whatever that may be.

And of course he's honorable and upright and beholden to nobody but himself, molded in the best traditions of the small townsman and the newspaper trade. Indeed, now that we have summed him up, we could wish that the country had two or three hundred B. F. Beasley's to send to Congress.

When Hitler forced Austria into an alliance with him, Benito Mussolini, who in 1933 threw a huge army on the Austrian border to prevent exactly the same thing, said nothing--a silence which was generally taken to mean that, in return for military alliance and the promise of backing in African enterprises against Great Britain, he had agreed to let Adolf have a free hand in Central Europe. But Chancellor Schuschnigg's speech of Thursday night, in which he did not mention the name of Hitler and warmly praised Mussolini, is generally interpreted as meaning that Little Caesar has shifted again, that Mr. Chamberlain is insisting that some guarantee for the safety of Austria and Czechoslovakia is necessary to placate British public opinion, and that he has now agreed to block further moves by Hitler.

And if that is so, it might seem at first glance to argue well for the success of the Chamberlain policy, since it would accomplish what Eden had tried in vain to do. But there is one very great hole in it. This--that Central Europe will be safe only and certainly so long as Signor Mussolini chooses. And Signor Mussolini will continue so to choose, of course, just so long as England continues to meet his terms and no longer. The price will be very high at first, and afterward it is likely to grow steeper and steeper. In short, Mr. Chamberlain's agreement promises to be exactly what Lord Cranborne, resigned Under-Secretary for Foreign Affairs, called it in the House of Commons, a contract in blackmail.

Site Ed. Note: As we have mentioned previously, Fred Vinson, who befriended Harry Truman in Congress, was appointed by President Truman in 1946 to succeed Harlan Stone as Chief Justice of the Supreme Court, in which capacity he served until his death in 1953. President Eisenhower then appointed California Governor Earl Warren as his successor. Vinson's death may have been propitious insofar as the advancement of civil rights at the time, as many people, including lawyers involved in Brown v. Board of Education, believe the outcome of that case might have been different without the guiding diplomacy on the Court which Chief Justice Warren brought to the table.

Representative Vinson, (Dem., Ky.), who is the Ways and Means Committee's tax expert, says that the new tax bill will "relieve hardships and inequities" discovered in the old bill after two years' experience. With the modification of the undistributed profits tax,

And that's fine, and we await optimistically the stimulating effect of the revised measure. But not too optimistically.

For Mr. Vinson frankly states that the new bill is designed to raise just as much money as the old, and there is good ground for the belief that it is the amount of money the Federal Government collects from business, rather than the manner in which it is collected, that is the real incubus on business's vitality, the real deterrent to investment and expansion and re-employment. And there seems to be no hope at all that the amount is going to come down.

Site Ed. Note: For more on the Seminoles, see "A Long War", June 1, 1939, "Unconquered", October 7, 1940, and "Free Nation", October 13, 1940.

Down in the Everglades of Florida, the Seminole Indians have gone back to their tribal customs and executed one John Billy for being a general headache. The man who is charged with dispatching him--and who did it with a shot gun--is one of the six chiefs of the Seminole Nation, Osceola. And now the white man's law has stepped in and Osceola is under arrest for murder.

The Seminoles have always been a tough lot to tame. Originally a part of the Creek Confederation in Alabama and Georgia, they broke away in 1808 and removed to Florida, which is why they are called Seminoles, meaning "runaways," rather than, as originally, Muskhogeans. In 1917-18, at the instigation of two British traders, Arbuthnot and Ambrister, they raided white settlements in Georgia, and a certain Andrew Jackson from Tennessee added to his growing fame by putting them down and hanging the traders--to the great indignation of Mamma England.

Thereafter they were fairly quiet until in 1832 the United States negotiated with their chiefs the Treaty of Payne's Landing, which provided for their removal to Arkansas. Then arose a chief who bore the same name as the chief now under arrest, Osceola, and he didn't, he said, intend to go to Arkansas. To give point to his statement, he proceeded to massacre two companies of light infantry at Wahoo Swamp. Several expeditions were sent out against him but he whipped them all, until in 1837 General Jessup, with 8,000 troops, got the best of him. He was ready now, he said, to go to Arkansas, but he suddenly slipped away with his followers to take refuge in the impenetrable Everglades. Afterward, he was captured and imprisoned in Fort Moultrie, where he died in 1838. His followers, however, kept up the fight until 1842, when the United States tacitly decided that it would be just as well to let them stay where they were.

One of the most striking movements in recent years is one for laws forbidding retailers to sell trademarked goods at less than the price fixed by the manufacturer. The first such law was passed by California in 1931, and down until late 1936 fourteen others have followed suit. Then the Supreme Court upheld the validity of the California and Illinois acts, and in 1937 thirty-one states considered such laws, and 27, of which North Carolina was one, enacted them.

Most of the newer statutes, including our own, stipulate that a minimum price rather than an absolute one must be maintained, and that a dealer who plans to close out his stock must notify the manufacturer and give him a chance to repurchase his wares. Most of them contain, too, the so-called "third party clause," the constitutionality of which was upheld by the Supreme Court in the California case, and which extends the prohibition against price-cutting to dealers not contracting directly with the manufacturer or his agents. Fifteen states, however, allow price-cutting if the trademark is obliterated and not mentioned in advertising.

It all looks in the direction of that stabilized economy without sharp ups and downs, which we all want, and so probably it's a good thing. Nevertheless, it does inevitably mean, too, that retailing is made less and less competitive, and that the consumer pays higher prices.