Public Price Fixing and Due Process

AuthorCharles Bunn
Published date01 January 1938
Date01 January 1938
DOIhttp://doi.org/10.1177/000271623819500181
Subject MatterArticles
46
Public
Price
Fixing
and
Due
Process
By
CHARLES
BUNN
I N
WHAT
circumstances
may
gov-
ernment
directly
regulate
the
sell-
ing
price
of
goods
and
services?
If
you
had
asked
that
question
of
an
American
lawyer
at
the
end
of
1933,
his
answer
would
have been
quite
prompt.
The
business
must
be
af-
fected
with
a
public
interest.
If
you
had
asked
him
what
that
meant,
he
would
have
made
three
classes:
(1)
Businesses
which
enjoy
some
special
public
franchise,
like
the
right
to
occupy
the
streets,
in
return
for
which
they
are
obliged
to
serve
the
public,
are
called
public
utilities,
and
their
prices
may
be
regulated;
(2)
Businesses,
like
inns
and
cabs
and
money
lenders,
which
always
have
been
regulated
as
to
price
and
there-
fore
may
still
be;
and
(3)
&dquo;Businesses
which
though
not
public
at
their
inception
may
be
fairly
said
to
have
risen
to
be
such
and
have
become
subject
in
consequence
to
some
governmental
regulation.
They
have
come
to
hold
such
a
peculiar
rela-
tion
to
the
public
that
this
is
super-
imposed
upon
them.
In
the
language
of
the
cases,
the
owner
by
devoting
his
business
to
the
public
use,
in
effect
grants
the
public
an
interest
in
that
use
and
subjects
himself
to
public
reg-
ulation
to
the
extent
of
that
interest.&dquo;
1.
You
might
well
have
replied:
&dquo;I
think
that
I
understand
your
first
two
classes.
I
have
a
general
idea
of
what
a
public
utility
is,
and
I
recognize
the
force
of
history.
But
your
third
class
is
pretty
vague.
How
do
you
deter-
mine
when
an
owner
devotes
his
busi-
ness
to
a
public
use?
Does
that
hap-
pen
when
he
invites
the
public
to
patronize
him,
or
when
he
sells
some
commodity
that
the
public
greatly
needs,
or
what?&dquo;
At
this
point
your
conversation
would
have
degenerated.
Your
friend
would
have
had
to
say
that
he
did
not
know
exactly.
An
insurance
agent
was
affected
with
a
public
interest,
an
employment
agency
was
not;
grain
elevators
were,
but
gasoline
was
not.2
2
In
a
new
case
you
would
have
to
ask
the
court.
But
of
two
things
he
would
have
been
quite
sure.
The
question
you
must
ask
was,
&dquo;Is
the
business
af-
fected
with
a
public
interest?&dquo;
And
this
did
not
mean
merely
that
it
sold
goods
to
the
public
or
dealt
in
the
necessities
of
life.3
There
must
be
something
else,
but
what
that
some-
thing
else
was,
was
not
clear.
There
were
various
objections
to
1
Charles
Wolff
Packing
Co.
v.
Court
of
In-
dustrial
Relations,
522,
536
(1923);
Tyson
&
Bro.
v.
Banton,
418,
432
(1927).
2
O’Gorman
&
Young
v.
Hartford
Fire
Ins.
Co.,
(1931);
Ribnik
v.
McBride,
(1928);
Munn
v.
Illinois,
(1876);
Williams
v.
Standard
Oil
Company,
(1928).
3
"It
has
never
been
supposed,
since
the
adop-
tion of
the
Constitution
that
the
business
of
the
butcher,
or
the
baker,
the
tailor,
the
woodchop-
per,
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
ex-
ercise
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."
Charles
Wolff
Packing
Co.
v.
Court
of
Indus-
trial
Relations,
522,
537
(1923).
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