State v. Sears , 4 Wash. 2d 200 ( 1940 )

The act under consideration is unconstitutional for three reasons. First, the regulation which it undertakes exceeds the police power of the state. Second, the act is so uncertain and indefinite that the meaning of its provisions cannot be ascertained. Third, it places an unreasonable, arbitrary, and unjust burden upon those made subject to its provisions.

It must be borne in mind that the act in question attempts to regulate the sale of all property in this state except as mentioned in section seven. It regulates the business of every person, firm, association, organization, partnership, business trust, company, corporation or municipal or other public corporation engaged in the production, manufacture, distribution or sale of all articles and products of general use or consumption.

In the following cases this court has had occasion to examine the limitations imposed upon legislative regulation supported by the police power of the state:

"The power of the legislature to make all needful rules and regulations for the health, comfort, and well-being of society cannot be questioned, but there are certain limits beyond which the legislature cannot go, without trenching upon liberty and property rights which are safeguarded by the state and Federal constitutions. As said by the court in In re Jacobs, 98 N.Y. 98, 50 Am. Rep. 636,

"`The limit of the power cannot be accurately defined, and the courts have not been able or willing definitely to circumscribe it. But the power, however broad and extensive, is not above the Constitution. . . . Generally it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded.'" State ex rel. Richey v. Smith, 42 Wash. 237,84 P. 851.

"The courts will go far in sustaining the exercise of the police power for the preservation of public health and safety, and in so doing private rights in conflict therewith are overridden; but on the other hand, the courts are equally concerned to see that, under the guise of protecting the public, private business — especially that carried on upon private property — is not arbitrarily restricted or interfered with. . . .

"True we have said, in effect, that if a state of facts can be assumed which will justify the legislation, the court must assume that such a state of facts exists; but we have never said that, in a case involving the carrying on of a business, not harmful in itself, upon private property; and that should not be the rule in such a case. Where such private rights exist, the court should review the legislative action and determine whether the legislative body has imposed unnecessary restrictions upon a lawful occupation or a lawful right. McQuillin on Municipal Corporations, vol. III, § 893; In re Jacobs, 98 N.Y. 98, 50 Am.Rep. 636; Ex parte Hayden, 147 Cal. 649, 82 P. 315, 109 Am. St. 183, 1 L.R.A. (N.S.) 184; State v. Wiggam, 187 Ind. 159,118 N.E. 684; In re Steube, 91 Ohio St. 135, 110 N.E. 250;City of Zion v. Behrens, 262 Ill. 510, 104 N.E. 836, Ann. Cas. 1915A 1057, 51 L.R.A. (N.S.) 562.

"And so, coming to the provisions of the ordinance in question, we find that it forbids hawking, not only in the streets, alleys and public places, but on all private property as well. Unquestionably the ordinance is good as to the streets and public places, as we will assume that conditions justify the action of the legislative body in that respect. It might be that if hawking on private property closely adjacent to the public streets was forbidden, we might see in such a provision a reasonable exercise of the police power as tending to prevent the collection of crowds upon the streets and sidewalks about the open door of the place where the hawking was going on, or some similar obstruction to traffic or interference with the public safety. But that is not the question now before us. Every one has a natural right tosell his own merchandise on his own private property, in his ownway, to all who come there to buy; and if his manner of sellingoffends, those so offended may stay away. Self-interest wouldseem to be the only regulation needed in such cases." (Italics mine.) Seattle v. Ford, 144 Wash. 107, 257 P. 243.

"The same court in the case of City of Aurora v. Burns,319 Ill. 84, 149 N.E. 784, uses this language:

"`The police power, however, has constitutional limits, and any measure enacted or adopted in its exercise, to be sustained, must bear some reasonable relation to the purposes for which the power may be exercised. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private rights. The legislative determination as to what is a proper exercise of the police power is not conclusive, but is subject to review by the courts. [Authorities.] If the means employed have no real, substantial relation to public objects within the state's power, or if those means are arbitrary and unreasonable, the judiciary will disregard mere forms and interfere for the protection of rights injuriously affected by such illegal action.'" Brown v. Seattle, 150 Wash. 203,272 P. 517.

If constitutional, legislation such as now before us presages extension of the police power which bids fair to take from our citizens all of the personal liberties and rights of private property hitherto considered to be guaranteed by our state and Federal constitutions.

"Liberty, in its broad sense as understood in this country, means the right, not only of freedom from actual servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation." In the Matter of Application ofPeter Jacobs, 98 N.Y. 98, 50 Am. Rep. 636.

1 Blackstone, Commentaries, 138, says that property "consists in the free use, enjoyment, and disposal of all his acquisitions."

In the following cases it is held that the right to use and possess is property: Missouri Pacific R. Co. v. Nebraska,164 U.S. 403, 41 L. Ed. 489, 17 S. Ct. 130; Dobbins v. Los Angeles,195 U.S. 223, 49 L. Ed. 169, 25 S. Ct. 18; Pennsylvania Coal Co.v. Mahon, 260 U.S. 393, 67 L. Ed. 322, 43 S. Ct. 158; Washington ex rel. SeattleTrust Co. v. Roberge, 278 U.S. 116, 73 L. Ed. 210, 49 S. Ct. 50;Commonwealth v. Clearview Coal Co., 256 Pa. 328, 100 A. 820, L.R.A. 1917E, 672.

The right to sell and dispose of property is a property right.Buchanan v. Warley, 245 U.S. 60, 62 L. Ed. 149, 38 S. Ct. 16;Duplex Printing Press Co. v. Deering, 254 U.S. 443,65 L. Ed. 349, 41 S. Ct. 172; Frost v. Corporation Commission,278 U.S. 515, 73 L. Ed. 483, 49 S. Ct. 235.

"The right of the owner to fix a price at which his property shall be sold or used is an inherent attribute of the property itself." Tyson Bros. v. Banton, 273 U.S. 418, 71 L. Ed. 718,47 S. Ct. 426.

The majority maintains that the act is not a price-fixing statute, relying upon the authority of Wholesale Tobacco DealersBureau v. National Candy Tobacco Co., 11 Cal. 2d 634,82 P.2d 3; State v. Langley, 53 Wyo. 332, 84 P.2d 767; andRust v. Griggs, 172 Tenn. 565, 113 S.W.2d 733. I do not find the reasoning of these cases to be persuasive in this respect. InRust v. Griggs, supra, the court does not attempt legal analysis of this issue, but satisfies itself with the flat holding that the Tennessee act is not an attempt to regulate prices. The California court, in the Wholesale Tobacco DealersBureau case, supra, adds little of substantive reasoning. It in effect meets the question merely by holding that, in any event, the act is a valid exercise of the police power. In Statev. Langley, supra, the court simply maintains that the legislative purpose was not to fix prices, but only to prevent certain practices considered detrimental to business, that the regulation selected was merely a means to an end.

It is no answer to the contention that certain regulation is price fixing in nature to say that control over price is not an end in itself, but is only incidental to an ultimate purpose of a somewhat different nature. Under constitutional limitations it is obvious that legislation of this character, based upon the police power, must always justify itself, not in its effect upon price, but in the protection which it affords to the interests of society. Conceding that price regulation is not invalid per se, it appears obvious to me that any legislation placing a direct limitation upon the price at which any article may be disposed of by its owner is properly denominated as price fixing in character.

It is true, of course, that the act before us does not attempt complete regulation of price. The act, generally speaking, will be effective only under competitive trade conditions; there are certain named exceptions to its application; it does not purport to establish more than a minimum price at which goods can be sold; and the price floor which it defines is individually controlled, to some extent, by each of those subject to its provisions. Nevertheless, the act provides a plain example of a direct and substantial invasion of the individual right to unrestricted determination of the price at which private property may be sold.

The constitutionality of state legislation undertaking the regulation of private enterprise has long been a source of the most difficult questions presented to the courts of this country. Perhaps the most vexatious of the problems in this general category have had to do with price control.

A long line of decisions of the supreme court of the United States, beginning with Munn v. Illinois, 94 U.S. 113,24 L. Ed. 77, has adhered to the test that only businesses "affected with a public interest" were subject to regulation under the police power of the states. Many of these holdings, including the landmark case just cited, have involved attempted regulation of prices. Notable among those in which price-fixing legislation was held to be inconsistent with due process areWolff Packing Co. v. Court of Industrial Relations,262 U.S. 522, 67 L. Ed. 1103, 43 S. Ct. 630; Tyson Bro. v. Banton,273 U.S. 418, 71 L. Ed. 718, 47 S. Ct. 426, 58 A.L.R. 1236; Ribnik v.McBride, 277 U.S. 350, 72 L. Ed. 913, 48 S. Ct. 545; Williams v.Standard Oil Co., 278 U.S. 235, 73 L. Ed. 287, 49 S. Ct. 115, 60 A.L.R. 596; New State Ice Co. v. Liebmann, 285 U.S. 262,76 L. Ed. 747, 52 S. Ct. 371.

It may be conceded that the area including those businesses "affected with a public interest" has been broadened to a remarkable degree since Sir Matthew Hale, in the seventeenth century, wrote that phrase into a treatise on "The Ports of the Sea," and since it was adopted by the supreme court of the United States as the basis for validating state regulation of charges made by grain elevator companies in Illinois. Munn v. Illinois,supra. Many attempts have been made to determine with a greater degree of accuracy what is meant by the phrase "affected with a public interest." It has been argued that in a recent case involving price control of the milk industry in the state of New York, Nebbia v. New York, 291 U.S. 502, 78 L. Ed. 940,54 S. Ct. 505, the supreme court abrogated the public interest doctrine. Close examination of the majority opinion in the Nebbia case, however, convinces me that the suggested conclusion does not necessarily follow. Surely it must be admitted that there are fundamental differences in the legislation there considered and in its factual context which distinguish it from the case at bar. The regulation in the Nebbia case was an emergency measure, limited in its application to a term of short duration, and confined to activity in a single business asserted by the legislature and conceded by the court to be of paramount importance to the people of the state. This court has already indicated that it considers the regulation in that case to be the most extreme exercise of the police power consistent with due process. Uhden, Inc. v. Greenough, 181 Wash. 412,43 P.2d 983.

In any event, it can safely be said that the supreme court of the United States has not, in the Nebbia case, or in subsequent decisions, overruled the line of pricecontrol cases cited on a previous page. In a case even more recent than Nebbia v. NewYork, supra, viz., Old Dearborn Distributing Co. v.Seagram-Distillers Corp., 299 U.S. 183, 81 L. Ed. 109,57 S. Ct. 139, the court, in distinguishing this group of cases concedes the established rule to be that price-fixing legislation is void except in unusual circumstances.

In one among this group of decisions, Wolff Packing Co. v.Court of Industrial Relations, supra, Chief Justice Taft stated:

"It has never been supposed, since the adoption of the Constitution, that the business of the butcher, or the baker, the tailor, the wood chopper, the mining operator or the miner was clothed with such a public interest that the price of his product or his wages could be fixed by State regulation. It is true that in the days of the early common law an omnipotent Parliament did regulate prices and wages as it chose, and occasionally a Colonial legislature sought to exercise the same power; but nowadays one does not devote one's property or business to the public use or clothe it with a public interest merely because one makes commodities for, and sells to, the public in the common callings of which those above mentioned are instances.

"An ordinary producer, manufacturer or shopkeeper may sell or not sell as he likes, United States v. Trans-Missouri FreightAssociation, 166 U.S. 290, 320; Terminal Taxicab Co. v.District of Columbia, 241 U.S. 252, 256, and while this feature does not necessarily exclude businesses from the class clothed with a public interest, German Alliance Insurance Co. v. Lewis,

233 U.S. 389, it usually distinguishes private from quasipublic occupations. . . .

"To say that a business is clothed with a public interest, is not to determine what regulation may be permissible in view of the private rights of the owner. The extent to which an inn or a cab system may be regulated may differ widely from that allowable as to a railroad or other common carrier. It is not a matter of legislative discretion solely. It depends on the nature of the business, on the feature which touches the public, and on the abuses reasonably to be feared. To say that a business is clothed with a public interest is not to import that the public may take over its entire management and run it at the expense of the owner. The extent to which regulation may reasonably go varies with different kinds of business. The regulation of rates to avoid monopoly is one thing. The regulation of wages is another. A business may be of such character that only the first is permissible, while another may involve such a possible danger of monopoly on the one hand, and such disaster from stoppage on the other, that both come within the public concern and power of regulation.

"If, as, in effect, contended by counsel for the State, the common callings are clothed with a public interest by a mere legislative declaration, which necessarily authorizes full and comprehensive regulation within legislative discretion, there must be a revolution in the relation of government to general business. This will be running the public interest argument into the ground, to use a phrase of Mr. Justice Bradley when characterizing a similarly extreme contention. Civil Rights Cases, 109 U.S. 3, 24. It will be impossible to reconcile such result with the freedom of contract and of labor secured by the Fourteenth Amendment."

It is also frequently said that legislative exercise of the police power is limited to regulation designed for the protection of the health, safety, morals and welfare of the public, the "public welfare" being a comparatively recent and obviously uncertain addition to this classification. The legislature is not omnipotent in its determination that certain regulation is necessary in the preservation of the stated interests of the public, nor is there any magic in the phrase "affected with a public interest." A business is not affected with a public interest simply because the lawmaking body so determines. Big Bend Auto Freight v.Ogers, 148 Wash. 521, 269 P. 802.

I fail to see how the public safety, health, morals, or welfare are concerned with, or that there can be said to be a public interest in, the sale of commodities ranging all the way from pins and needles to freight cars, or as Justice Field put it, "from calico gowns to city mansions." Nor does it appear that every such business in this state is attended with unusual or exceptional circumstances.

It is plainly apparent that the act in question constitutes a vital impairment of the firmly established right of the individual to dispose of his property at any price upon which he and his purchaser may agree (State v. Packard-Bamberger Co., 16 N.J. Misc. 479, 2 A.2d 599; Daniel Loughran Co. v. LordBaltimore Candy Tobacco Co., 12 A.2d (Md.) 201), and an unwarranted violation of the rights in private property guaranteed by fourteenth amendment due process.

If government may restrain the sale of all commodities at less than cost, then it may enforce a rule that property must be sold at a certain per cent of profit and it may raise the sale price until the merchant cannot make a sale. Such regulation destroys property rights to the same extent as it would by outright appropriation.

This act destroys the ideal of free enterprise which has been the dominant spirit of American progress. It is contrary to the wording and ideas contained in our state and National constitutions.

Conceding, however, for the sake of argument, that the legislature had the power to enact this law, it is my conclusion that the sections of the act prohibiting sales below cost are invalid because its terms are so vague and uncertain as to be unintelligible. As prefatory to a more general discussion of the uncertainty which I find to be implicit in these provisions, the effect on this problem of the purpose with which the sale is made will be analyzed.

The majority suggests that Hygrade Provision Co. v. Sherman,266 U.S. 497, 69 L. Ed. 402, 45 S. Ct. 141, and Omaechevarria v.Idaho, 246 U.S. 343, 62 L. Ed. 763, 38 S. Ct. 323, are authority for application of the principle that the requirement of intent adds definiteness to the provisions of a statute. For reasons which it seems advisable to point out in some detail, I do not find the analogy of the above cases to be persuasive in the case at bar.

The court in Hygrade Provision Co. v. Sherman, supra, in denying appellant's objection that the word "kosher" and the phrase "Orthodox Hebrew religious requirements" were so indefinite and uncertain as to render the statute unconstitutional for want of any ascertainable standard of guilt, relied to some extent upon the fact that liability under the statute was conditioned upon proof that the accused not only falsely represented the product to be kosher, but did so with intent to defraud. As a result, said the court, appellants were "not required to act at their peril, but only to exercise their judgment in good faith, in order to avoid coming into conflict with the statutes." Liability is provided for in the case at bar (§ 4 of the act) if any goods are sold below cost "for the purpose of injuring competitors or destroying competition." While it is obvious that a sale of goods in the ordinary course of business is not accompanied, at least need not be accompanied, with an intent to defraud, it is equally clear that any given sale by a retailer having one or more competitors for the sale of the particular article is commonly made with the purpose of advancing the vendor's own selfish interests and with the known effect of injuring his competitors to that extent.

This factor is intrinsic in our so-called competitive economy. The existence of an intent to injure competitors or destroy competition is a stable factor which, from the very nature of things, is implicit in practically every sale; its presence is as consistent with sales above cost as it is with sales at a loss.

In Wholesale Tobacco Dealers Bureau v. National Candy Co.,11 Cal. 2d 634, 82 P.2d 3, the supreme court said:

"It is one thing, from a legal standpoint, to prohibit sales below cost engaged in for the purpose of injuring competitors and destroying competition, and quite another to merely prohibit all such sales regardless of intent. It may well be that an absolute prohibition regardless of intent would be unreasonable. (SeeFairmont Creamery Co. v. Minnesota, 274 U.S. 1 [47 Sup. Ct. 506, 71 L. Ed. 893, 52 A.L.R. 163].)"

It is to be noted that the reasoning which I have employed does not tend to support the conclusion that the effect of the language used by the legislature is as if no proof of intent to inflict injury upon competitors or competition were required by the act, with the result that the act would be fatally defective for the reasons pointed out in the case cited above, FairmontCreamery Co. v. Minnesota. Rather, it goes merely to show that, under normal competitive conditions, it can always be shown that the specified purpose attended the making of the sale.

The analogy presented by the Hygrade Provision Co. case is inapposite in this respect. It cannot be said, as did the court in that case, that the question to be decided would relate solely to whether the putative violator of the act had exercised his judgment in good faith, or whether he had asserted an honest purpose to distinguish to the best of his judgment between what was and what was not the conduct prohibited by the statute. The difference, subjectively, in the conduct proscribed by the two statutes is plain. In the case at bar the purpose will normally be the same whether or not the sale is below cost. In the Hygrade Provision Co. case the state of mind denounced by the statute is the intent to defraud. Not only conceivably, but usually, the presence or absence of the fraudulent intent would be determinative of liability. This is so because an intent to defraud is considered wrongful in any situation, and is not reasonably to be assumed to be present under normal circumstances.

This analysis also tends to detract from the relevancy of the reasoning in Omaechevarria v. Idaho, 246 U.S. 343,62 L. Ed. 768, 38 S. Ct. 323, to which the majority refers. In any event it is to be noted the Omaechevarria case and the general rule that the requirement of intent adds definiteness to the provisions of a statute are not strictly in point with reference to the act now before us. As has already been pointed out, the intent which the act requires to be proved is simply that the purpose of the seller was to injure competitors or destroy competition, a purpose in itself not necessarily wrongful, a purpose entirely separate and distinct from an intent to violate the act itself, as e.g., by a wilful sale below cost.

In much quoted paragraphs from Connally v. General Const.Co., 269 U.S. 385, 70 L. Ed. 322, 46 S. Ct. 126, it was said:

"That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. International Harvester Co. v. Kentucky,234 U.S. 216, 221; Collins v. Kentucky, 234 U.S. 634, 638. . . .

"`. . . The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another. [United States v. Capital Traction Co., 34 App. D.C. 592]'"

This language was affirmed in a recent holding by the same court, Lanzetta v. New Jersey, 306 U.S. 451, 83 L. Ed. 888,59 S. Ct. 618. Further authority is to be found in United States v.Cohen Grocery Co., 255 U.S. 81, 65 L. Ed. 516, 41 S. Ct. 298;Cline v. Frink Dairy Co., 274 U.S. 445, 71 L. Ed. 1146,47 S. Ct. 681; Smith v. Cahoon, 283 U.S. 553, 75 L. Ed. 1264,51 S. Ct. 582; and Champlin Rfg. Co. v. Commission, 286 U.S. 210,76 L. Ed. 1062, 52 S. Ct. 559.

The logic of this reasoning is not confined to criminal cases. These principles are equally applicable to civil proceedings.Small Co. v. American Sugar Refining Co., 267 U.S. 233,69 L. Ed. 589, 45 S. Ct. 295.

In the majority opinion, it is said:

"If we had before us a proper factual background, we might more easily determine whether or not the terms `cost' and `cost of doing business,' as defined in chapter 221, are too uncertain and indefinite to reasonably be applied by any merchant, but we have in this case only the language of the statute, and we are not prepared to say at this time, judged by the language of the statute alone, that simple and proper accounting practices will not disclose the necessary information."

I cannot agree, as does the majority, that the reasoning of those decisions involving similar statutes in other jurisdictions which have reached a similar conclusion, i.e., People v. Kahn,19 Cal. App. 2d 758, 60 P.2d 596; Associated Merchants ofMontana v. Ormesher, 107 Mont. 530, 86 P.2d 1031; and Statev. Langley, 53 Wyo. 332, 84 P.2d 767, adequately satisfies the law in this respect as laid down by the court in Connally v.General Const. Co., supra.

The Montana court, in the Ormesher case, supra, relies to a large extent, in disposing of this problem, upon what is acknowledged by the writer of the opinion in State v. Langley,supra, to be dicta. It is there said that the standard set by the legislature is virtually reduced to one of "reasonableness," and that such a standard has been judicially determined to be sufficiently definite and certain.

It is said in People v. Kahn, supra, that the difficulty in determining the cost of an article would be factual rather than legal, and that a statute should not be declared void merely because of difficulties which might arise in the application of its provisions.

What has, to my mind, plainly been overlooked by these courts is the full import of the fact that the act, in defining "cost" and "cost of doing business," fails to make any provision for the manner in which the many items of expenditure which it requires to be included in computation of cost are to be apportioned among the various articles which the retailer offers for sale. Included (§ 1 of the act) are labor, rent, depreciation, selling cost, maintenance of equipment, delivery cost, credit losses, licenses, taxes, insurance, and advertising.

The almost infinite number of problems which readily suggest themselves under this phase of the act have been exhaustively briefed by appellant. The significance of the lack of a standard for apportionment may, however, be readily appreciated by reference to but a few of the uncertainties which arise therefrom. For example: Is rent to be apportioned upon a basis of floor space occupied? Is this factor affected by the length of time an article has been in the store before it is sold? When rent varies, as it does from time to time, are goods carried over from the prior rent level subject to apportionment on the basis of the new or the old rent charge? Does depreciation refer to buildings and fixtures, or to stock, or to both? Are articles of stock peculiarly subject to depreciation to bear the whole load of this item of cost, or is it to be spread over other articles not ordinarily subject to spoilage and deterioration? Are delivery costs to be allocated only among those articles actually delivered? Are advertising costs to be borne entirely by particular articles advertised? How are credit losses to be allocated? Is any distinction to be made in the apportionment of all of these items in general between articles which require comparatively great or comparatively slight effort to sell? Other similar questions suggest themselves in endless array. How then can it be said that the act is not, in this respect, intrinsically conjectural? The conclusion that the average retailer would be unable to resolve these questions with any reasonable degree of certainty, and that there would inevitably be wide variations in the results of individual computations, seems inescapable.

In two of the cited cases, People v. Kahn, and State v.Langley, the court refers to an article on cost accounting in Encyclopedia Brittanica (vol. 6, 14th ed.). Mention is made of the fact that cost accounting has been long established, and that modern systems of accounting have become very accurate. It does not appear from the suggested source, however, that a uniform system of cost accounting has yet been established, or that there has as yet been any serious attempt to set up a cost accounting system providing for apportionment of the various items of costto each individual article carried in stock by the retailer. The obvious magnitude and complexity of such a task is answer in itself to the question of why it has not yet been attempted.

It does not appear to me that these problems can be resolved by saying that the act establishes a standard of reasonableness, or that the legislature recognized that there would be a wide variation in the accounting formulas used by those subject to the act, and intended to require nothing more than that each should make a reasonable computation in good faith and not sell below that figure. Instead, it seems plain that the legislature simply failed to accord any consideration to the problem of apportionment, that no standard was in fact established, and that because there is no generally accepted formula commonly used by business men for this purpose the statute should be found to be invalid. To invest the act with a standard of conduct would, under these circumstances, be to indulge in judicial legislation.

As was said in State v. Northwest Poultry Egg Co.,203 Minn. 438, 281 N.W. 753:

"But where failure of expression rather than ambiguity of expression concerning the elements of the statutory standard is the vice of the enactment, courts are not free to substitute amendment for construction and thereby supply the omissions of the legislature."

The above cited case is also in point in that failure to provide a standard of apportionment served as one of the bases for holding unconstitutional the statute there under consideration.

Section 6 of the questioned act provides, in part:

". . . and in any civil or criminal proceeding under this act, where a particular trade or industry, of which the person, firm or corporation complained against is a member, has an established cost survey for the locality and vicinity in which the offense is committed, the said cost survey shall be deemed competent evidence to be used in proving the costs of the person, firm or corporation complained against within the provisions of this act."

That this section does not meet the standard of the necessary requirements of a statute is ably demonstrated in Great Atlantic Pacific Tea Co. v. Ervin, 23 F. Supp. 70, in which it is stated:

"While it seems probable that the Legislature in enacting this section had in mind some definite and understandable thing, we think that they failed to express it in plain language. What is a `cost survey,' and by whom or by what is it made? Does the section relate to surveys made by trade groups and associations of which an accused merchant is a member, or does it relate to anything which is denominated a `cost survey' no matter who makes it? . . . Apparently, under this section, if a cost survey of the fair and reasonable type is introduced upon the trial of a merchant for a violation of the act, the merchant is precluded from showing that the cost of his goods based on list price less published discounts, or on invoice cost, was less than the current replacement cost, whereas, if no cost survey was available, or, if available, was not introduced in evidence, he would at least be permitted to show that on the basis of list price less published discounts, or on the basis of invoice cost, he had paid less for the goods than their current replacement cost, and had actually sold his goods at a profit. This section of the statute we regard as so vague, indefinite, arbitrary, and discriminatory that it cannot be sustained."

As is stated in the quotation from Brown v. Seattle,150 Wash. 203, 272 P. 517, which appears earlier in this opinion, one of the questions properly to be discussed in measuring an exercise of the police power by the requirements of due process is whether the means employed are unreasonable and arbitrary.

The rule has been stated by the supreme court of the United States in this manner:

"To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts." Lawton v. Steele, 152 U.S. 133,38 L. Ed. 385, 14 S. Ct. 499.

It is my conviction that the legislation before us is further to be condemned upon this basis. Even if it be conceded that the means employed are effective to reach a proper end, compliance with the act will encumber the selling of goods with an unjustifiable and oppressive burden.

Assuming that an adequate standard for apportionment has been made available it can hardly be doubted that the task of allocating each of the various items of cost to only a few articles would involve a highly complex system of accounting. And it is common knowledge that in even the small single-unit retail enterprise the number of individual articles offered for sale will often run into the thousands. To keep current such a complex accounting project would be virtually impossible. At the very least it would substantially increase the "cost of doing business" of all retail enterprises. And it is safe to say that in many instances this requirement would be instrumental in driving the retailer out of business.

For the reasons given, I dissent.

MILLARD, STEINERT, and ROBINSON, JJ., concur with SIMPSON, J.