Argued December 2, 1935
Decided January 7, 1936
Appeal from the Supreme Court of Westchester County.
Morris L. Ernst, Ambrose Doskow and Alexander Lindey for appellants. Hugh S. Williamson and George W. Morgan, Jr., for National Straight Whiskey Distributing Company, Inc., amicus curiae. Roy M. Sterne for New York State Pharmaceutical Association, Inc., et al., amici curiae. Charles Goldman and Harold Dublirer for Cooper Cooper, Inc., amicus curiae. Crichton Clarke for American Booksellers' Association, amicus curiae. Leon Lauterstein, Melbourne Bergerman and Emanuel Dannett for respondent. John C. Watson for John G. Myers Co., Inc., amicus curiae. Jay Leo Rothschild for Hearn Department Stores, Inc., amicus curiae.
An appeal taken directly to this court from a dismissal of the complaint by the Special Term of the Supreme Court, held in Westchester county, brings up for determination solely the constitutionality of chapter 976 of the Laws of 1935. The Special Term held it to be unconstitutional.
The action is brought to restrain R.H. Macy Co., Inc., from offering for sale three books at a less price than that fixed by the publisher. The complaint alleges that Doubleday, Doran Company, Inc., is a publisher and manufacturer of books, and that Doubleday, Doran Book Shops, Inc., is a seller and distributor of books at retail. All books sold by Doubleday, Doran Company, Inc., to Doubleday, Doran Book Shops, Inc., are sold under contracts between the parties with certain provisions that the buyer will not resell such books except at the prices stipulated by the vendor. The prices thus stipulated were for the book called "Some Day," $2 at retail; for "Vogue's Book of Etiquette," $3; and for "The Garden Notebook," $1.50. The complaint then sets forth that R.H. Macy Co., Inc., has purchased these books and is advertising them for sale at the respective prices of $1.76, $2.64 and $1.31 per volume. Macy Co. purchased the books for resale under no contract limiting the price, and none is alleged. The plaintiffs do not claim that Macy is bound by any agreement but that it is forced by the provisions of chapter 976 of the Laws of 1935 to conform to the price which they stipulated as the retail price in a contract between themselves, that is, a contract of sale between Doubleday, Doran Co., Inc., and Doubleday, Doran Book Shops, Inc. Although the publisher sold the books to Macy without any restrictions as to price, it now says the law prevents Macy from disposing of them at a lower figure than that fixed by the publisher with another. What is this law which has thus undertaken to supplant contracts? We give it in full:
"Section 1. Subdivision 1. No contract relating to the sale or resale of a commodity which bears, or the label or content of which bears, the trade mark, brand, or name of the producer or owner of such commodity and which is in fair and open competition with commodities of the same general class produced by others shall be deemed in violation of any law of the State of New York by reason of any of the following provisions which may be contained in such contract:
"(a) That the buyer will not resell such commodity except at the price stipulated by the vendor.
"(b) That the vendee or producer require in delivery to whom he may resell such commodity to agree that he will not, in turn, resell except at the price stipulated by such vendor or by such vendee.
"2. Such provisions in any contract shall be deemed to contain or imply conditions that such commodity may be resold without reference to such agreement in the following cases:
"(a) In closing out the owner's stock for the purpose of discontinuing delivering any such commodity.
"(b) When the goods are damaged or deteriorated in quality, and notice is given to the public thereof.
"(c) By any officer acting under the orders of any court.
"§ 2. Wilfully and knowingly advertising, offering for sale or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provision of section one 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.
"§ 3. This act shall not apply to any contract or agreement between producers or between wholesalers or between retailers as to sale or resale prices.
"§ 4. The following terms, as used in this act, are hereby defined as follows: `Producer' means grower, baker, maker, manufacturer or publisher. `Commodity' means any subject of commerce.
"§ 5. If any provision of this act is declared unconstitutional it is the intent of the legislature that the remaining portions thereof shall not be affected but that such remaining portions remain in full force and effect.
"§ 6. This act shall take effect immediately."
Section 2 is that part of the law which is questioned in this case. The interpretation given below to this section and by all the parties apparently is that it attempts to accomplish just what the plaintiffs claim for it, as stated in the complaint and as given above. But for this we would have grave doubts whether the Legislature ever intended to fix the price of books after they had been purchased in the open market under no agreement as to resale price. Thus it is possible to read section 2 as referring to the contract made under section 1, or as binding on those books like an equitable servitude which had been parted with under a contract as to resale price. However, for the purpose of this appeal we confine ourselves to the constitutionality of the statute as construed by the parties and the court below and treat this section 2 as allowing book price-fixing in the absence of contract made by the purchaser or his agents.
We agree with the Special Term that, if this be its meaning, the law is unconstitutional. That the States cannot fix the selling price of any and all commodities has been settled. ( Williams v. Standard Oil Co., 278 U.S. 235; Tyson Bro. v. Banton, 273 U.S. 418; Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522; Straus v. Victor Talking Machine Co., 243 U.S. 490.) Books, at least these books, are not "affected with a public interest" any more than theatre tickets; no emergency has yet arisen in literary publications, and the business is not such as comes within the class which must submit to rate-fixing. Circumstances which cannot be foreseen from one generation to another may arise which will require certain articles to submit to regulatory prices in order that the public may get them at all or get them in a pure and beneficial state. We cannot always express legislative power in exact formulas nor decide a case before it happens. Experience is the mother of teachers. Under the Nebbia case for instance ( Nebbia v. New York, 291 U.S. 502) no one would doubt now that New York State would have the power to get milk to the public somehow if any combination of forces threatened to shut off all supply or to deteriorate that which was supplied. The price might be an element to be considered with other things in such a case. So we thought in People v. Nebbia, 262 N.Y. 259. But to fix arbitrarily the price of books by legislation and not by agreement comes within the condemnation of the decisions which have heretofore dealt with like legislation. What the Legislature cannot do directly it cannot do indirectly nor does it cease to be a price fixed by the Legislature because that body has clothed the publisher with the power or authority to establish it. For a publisher to agree with its subsidiary or agent to the price of a book which shall thereafter bind all other parties who purchase like books from the publisher is in reality a method whereby the Legislature fixes the price; it is a species of delegated authority.
The plaintiff, Doubleday, Doran Company, Inc., the publisher, was not obliged to sell Macy Co. It could do so or not as it pleased and it could refuse to sell because Macy was cutting the price. ( United States v. Colgate Co., 250 U.S. 300.) Even this right, however, may have its limitations. ( Federal Trade Comm. v. Beech-Nut Packing Co., 257 U.S. 441.) The publisher made no such refusal; it sold Macy. Likewise the publisher could have bound Macy by contract not to sell below a fixed price even though the restriction might not extend further to one who subsequently purchased without restrictive stipulation. ( Dr. Miles Medical Co. v. Park Sons Co., 220 U.S. 373; Boston Store of Chicago v. American Graphophone Co., 246 U.S. 8; Bobbs-Merrill Co. v. Straus, 210 U.S. 339; Park Sons Co. v. National Wholesale Druggists' Assn., 175 N.Y. 1.) Macy bought from the publisher or someone these books without any agreement as to their resale price.
The license or agency agreements have no application to the facts here before us. ( United States v. General Electric Co., 272 U.S. 476.)
The judgment below, declaring section 2 of chapter 976 of the Laws of 1935 unconstitutional as applied to the facts set forth in the complaint, and dismissing the complaint, should be affirmed, with costs.
LEHMAN, O'BRIEN, HUBBS, CROUCH, LOUGHRAN and FINCH, JJ., concur.