Owen J. Roberts

“ Independents who were in business when the statute was adopted would not have suffered a denial of a constitutional right or privilege if they had been refused a differential, though the refusal might have condemned them to a foreordained and hopeless struggle with advertised competitors stronger than themselves. For the same reason, independents starting afterwards must submit to the same chances unless their equities are as commanding as those of dealers on the scene before. ”

“ It is juggling with words to say that all the independents make up a single 'class,' and by reason of that fact must be subjected to a single rule. Whether the class is divisible into subclass § is the very question to be answered. There may be division and subdivision unless separation can be found to be so void of rationality as to be the expression of a whim rather than an exercise of judgment. 'We have no right,' it is now said, 'to conjure up possible situations which might justify the discrimination.' The court has taught a different doctrine in its earlier decisions. ”

“ To concede the differential to newcomers might mean an indefinite extension of an artificial preference, thereby aggravating the handicap, the factitious barrier to expansion, for owners of established brands. ”

“ A minimum price for fluid milk was fixed by law in April, 1933. At that time, 'independents' were underselling their competitors, the dealers in well-advertised brands, by approximately a cent a quart. There was reason to believe that unless that differential was preserved, they would be driven out of business. To give them an opportunity to survive, the lawmakers maintained the differential in the city of New York, the field of keenest competition. ”