(concurring specially):
I am in full agreement with the Court’s result and with much of its opinion written by my distinguished Brother Hutche-son. With no purpose to prepare a polemic or tithe “mint, anise and cummin,” I would speak — “not as the scribes and Pharisees and the bureaucrats do,” cf. Thompson v. United States, 5 Cir., 1964, 332 F.2d 657 (dissenting opinion) — but as a special concurring Judge should, a few brief words to indicate the views which lead me to decision.
At the outset I am not troubled about the so-called undemonstrated deception. One thing clear is that Mary Carter’s paint is not really sold at any of the advertised prices. Thus, the price of $6.98 for the first gallon, the second one “free” is not the price at all for one gallon. Nor is it $3.49 (one-half of $6.98 for two gallons.) Rather, it is $4.50, represented by the cost of two-one quarts ($2.25), getting for each, another “free” quart. For those who read and buy paint while running, I would suppose that Government might deem it appropriate to demand that at least one of the advertised prices be the correct one.
But at issue here is something more fundamental than house paint, bargains, or the American habit of self-delusion on “free” articles.
Our complex society now demands administrative agencies. The variety of problems dealt with make absolute consistency, perfect symmetry, impossible. And the law reflects its good sense by not exacting it. But law does not permit an agency to grant to one person the right to do that which it denies to another similarly situated. There may not be a rule for Monday, another for Tuesday, a rule for general application, but denied outright in a specific case.
That is what the Commission has done here. The precise action done here is permitted by Black, 50 F.T.C. 225 (1953). And even more unequivocal is the “Free Rule” [50 F.T.C. 235-236] patterned on it, but which has the positiveness of a rule, not a judicial-like opinion expounding a principle. These offers meet fully, honestly, and in good faith the requirement of Paragraph (2) found in each. Although Mary Carter’s offer of the “free paint” is contingent on the purchase of a quart or a gallon, Mary Carter does not either (1) increase “the ordinary and usual price” or (2) reduce “the quality” ; or (3) reduce “the quantity or size of the article of merchandise” which the customer is required to purchase.
Nevertheless, the Commission now holds that Mary Carter may not do what the Commission’s two pronouncements clearly permit.
I am not arguing for Black in perpetuity. It may be bad or undesirable. The “Free Rule,” emphatic as it is, may be worse. If so, the Commission should so declare. But so long as that is the rule, the Commission may not nullify it by individual decision while ostensibly holding it out as the standard for others.
With Black and the “Free Rule” not yet repudiated, Mary Carter is the victim of individualized discrimination. So long as Black stands, so long as the “Free Rule” stands, paragraph (2) must be fairly applied.
As I did with the Interstate Commerce Commission in Yellow Transit Freight Lines, Inc. v. United States, N.D.Tex., 1963, (3-Judge), 221 F.Supp. 465, 469-471 (concurring opinion), I think the Federal Trade Commission has to make up its mind.