Walker Oil Company, Inc., and Big S Oil Company v. Hudson Oil Company of Missouri, Inc.

JOHN R. BROWN, Chief Judge

(concurring) :

I concur in the result and in most of the opinion. I think a few things bear emphasis.

First, the discrimination forbidden by § 2(a) is between purchasers from a common seller-supplier. Here the complainants are not automobile drivers who get one price from Hudson at the Mobile Bridge and another one a few miles beyond in Pensacola, Florida. The one complaining is a competitor of the Hudson retail outlets in Pensacola.

Next, there is too much emphasis in the opinion on “crossing state lines”. Granted that all would recognize that we have gone beyond the antediluvian stage of requiring a physical movement in interstate commerce to satisfy this notion, this repetition of an outworn test only adds to the problem.

Finally, the declarations of the Supreme Court in Walling v. Jacksonville Paper Co., 1943, 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460, are, of course, binding as statements of law. But I don’t think the Court undertook — and if it did I am at a loss to understand the source of such prescience — to declare what is in interstate commerce as a matter of economic fact. Surely business has changed since 1943. Indeed over 50% of today’s occupations were not in existence at that time. This statute deals with economic impacts in an economic atmosphere. Judges, I submit, should look to economic facts for their disclosed wisdom, not some doubtful, and now time-eroded pronouncement having a Delphic (but questionable) ring.