Safeway Stores, Inc. v. Oklahoma Retail Grocers Association, Inc.

PETITIONER: Safeway Stores, Inc.
RESPONDENT: Oklahoma Retail Grocers Association, Inc.
LOCATION: Fargo, North Dakota

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: Supreme Court of Oklahoma

CITATION: 360 US 334 (1959)
ARGUED: May 19, 1959
DECIDED: Jun 22, 1959

Facts of the case


Media for Safeway Stores, Inc. v. Oklahoma Retail Grocers Association, Inc.

Audio Transcription for Oral Argument - May 19, 1959 (Part 1) in Safeway Stores, Inc. v. Oklahoma Retail Grocers Association, Inc.

Audio Transcription for Oral Argument - May 19, 1959 (Part 2) in Safeway Stores, Inc. v. Oklahoma Retail Grocers Association, Inc.

Samuel M. Lane:

-- federal supremacy question had not been raised below on the -- it would not be available here.

In their reply brief, the -- appellant suggests that the federal supremacy question is a question of jurisdiction and since jurisdiction can never be waived, then this federal question of supremacy is always available.

I don't think it needs extended argument to indicate that this is not a jurisdictional question.

This is merely a federal question, the same as all the federal questions presented under the Fourteenth Amendment.

And therefore, not having been raised below, nor preserved here, need not be considered.

Feeling as strongly as I do about that, it doesn't seem to me that I should take much of any of the Court's time on arguing the merits of the federal supremacy question, which is sought to be raised, I think stated in a nutshell, the contention that is made on this ground by the appellant is that since the Federal Government has itself antitrust laws and other laws regulating business practices that the Federal Government has pre-empted the entire field.

If that was so, in the case of the antitrust laws, it occurs to me that the question would have been tested long since in such cases as the Waters-Pierce Oil Company against the Texas in 1909 or more recently in Tigner against Texas or in Parker against Brown.

But the state antitrust laws and the federal antitrust laws have existed side-by-side or I suppose now, nearly 70 years and it's apparent that the state antitrust laws and here, the state sales below cost laws seek the same objectives and supplement one another.

It seems to me that the -- among the recent cases in this Court, the one that provoked the -- the most -- the sharpest split in this Court was Rice against Santa Fe which had to do, as you will recall, on whether or not, the Warehouse Receipts Act has amended using the word, “exclusive” in the amendment was intended -- supplied all the state acts.

And there, there was -- you -- I realize a -- a split, but there has been no court -- no decisions cited for the proposition that the Federal Government, through its antitrust laws or through the Robinson-Patman Act, have pre-empted this entire field.

And since, there's nothing like the Interstate Commerce Commission regulation or pure food and drug law or anything of that kind that requires a central and uniform and exclusive administration from a practical point of view.

It seems to me that on the merits, there's nothing to this preemption question either and so I will draft it without more ado.

Now, having disposed of that question, I hoped satisfactorily on the federal supremacy, you might suppose that I would now come to the question of the possible or the alleged violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment that there is still another hurdle over which, I think, this appellant does not get.

There is a procedural obstacle to the appeal here which it seems to me, should cut off the consideration of any federal question before you arrive at it.

The state court -- the trial court, affirmed by the Supreme Court, held that the remedy in such a case is this, was to apply for an injunction and that remedy was speedy, inadequate and complete.

And under those circumstances, I think the law is well settled.

But since this judgment can rest upon a non-federal adequate basis, then this Court should not go into the federal question which is sought to be raised.

If Your Honors would look at pages 636 and 637 of the records, you will find the Supreme Court's discussion of the subject which is very pointed.

In considering Unfair Sales Practice Acts from a procedural viewpoint, commentators have observed the wisdom of the legislatures in providing the remedy by injunction and the increasing tendency of the courts to enjoin that the suit of competitors, repeated violations affecting the unfair conduct of business.

Availability of the injunction remedy and that of interlocutory decrees based on actions, therefore, precludes the practice endorsed in by many fair-minded competitors immediately to meet competition by resorting to the same practice itself.

Since actions for injunctions maybe filed by a trade association for the benefit of all its members, the practice of resorting to the same practices to meet competition is materially reduced.

That is the practice of meeting cut by cut in the marketplace is materially reduced.

Well the natural restraint against suing a competitor is less present in the seeking of immediate relief against threatened heretical price was.

And then the Court says specifically, “We are of the opinion that this injunction granted by the trial court against Safeway, was proper because under our statute, the appropriate remedy was by an injunction and not by retaliation or retaliatory action such as was practiced by Safeway."

In this respect, the judgment of the trial court is affirmed.

This Court so far as I know in an unbroken line of decisions of which one of the leading is Murdock against Memphis, decided in 1874 and coming on down through Fox Film against Muller, in 1935, has consistently held that where there was in fact, an adequate, independent, non-federal grounds upon which to base the judgment, this Court will not disturb it, because there was a federal question.

I would suppose that an exception to that would be whether the federal question was a controlling question.

Or -- but the rule is as I have -- I think, stated it and I take a certain delight in pointing out that in McCoy against Shaw, State Auditor, in 1928, the attorney who prevailed on this very issue was Mr. V. P. Crowe whose name leads all the rest on the appellant's brief in this Court here.

This then brings me, at last, to the question of the Fourteenth Amendment Due Process and Equal Protection.

It seems to us that if a state or reasons, which seem adequate to its legislature determined that there is a -- an economic vise in loss-leader merchandising, it is for that state alone, to decide that question of policy and not for this Court to disturb it.