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The second ground upon which the court relied is that of the unconstitutionality of Title XXIII as being class legislation and in conflict with the requirement of the state constitution that "all laws of a general nature shall have a uniform operation."18 The uniformity required is merely that of uniform operation upon all persons in the same category and upon rights and things in the same relation.1 A statute meets this condition if it applies alike to all persons or objects within a class founded upon some intrinsic distinction.18 Do the associations contemplated by Title XXIII properly constitute such a class? The California court holds that there is nothing. peculiar to the instant organization which distinguishes it from any commercial packing company. But co-operative marketing associations possess distinctive features which are fundamental and amply justify a classification to which a general law may uniformly apply. Aside from the conditions imposed by their articles of incorporation the law imposes peculiar regulations to which commercial packing companies are not subject.19 Realizing the economic necessity for

Wheat Growers' Ass'n. v. Schulte (1923) 216 Pac. 311 (Kan.); Oregon Growers' Co-op. Ass'n. v. Lentz (1923) 212 Pac. 811 (Ore.); Tobacco Growers' Co-op. Ass'n. v. Jones (1923) 117 S. E. 174 (N. C.); Hollingsworth v. Texas Hay Ass'n. (1922) 246 S. W. 1068 (Tex.). In Texas Farm Bureau Cotton Ass'n. v. Stovall (1923) 253 S. W. 1101, 1108 (Tex.) the court said, "It is insisted that this contract is unenforceable in equity at the suit of the association, because of lack of mutuality of remedy. The contract before us was authorized by the statute which gives the association the remedy of specific performance and injunction. The statute having authorized these remedies, whatever may have been the rule in equity, the statute will control."

16 Cal. Const., Art. I, § 11. It is also provided in the California Constitution that the legislature shall not pass local or special laws where a general law can be made applicable. Cal. Const., Art. IV, § 25 (33). Also, that no citizen or class of citizens, shall be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens. Cal. Const., Art. I, § 21.

17 People v. Henshaw (1888) 76 Cal. 436, 18 Pac. 413; Wigmore v. Buell (1898) 122 Cal. 144, 54 Pac. 600; Selowsky v. Superior Court of Napa County, supra, n. 11.

18 Solano County v. McCudden (1898) 120 Cal. 648, 53 Pac. 213; Vail v. San Diego County (1899) 126 Cal. 35, 58 Pac. 392; Ruperich v. Baehr (1904) 142 Cal. 190, 75 Pac. 782; Moore v. Indian Spring etc. Mining Co. (1918) 37 Cal. App. 370, 174 Pac. 378; Mordecai v. Board of Supervisors (1920) 183 Cal. 434, 192 Pac. 40.

19 It is provided that "no person, firm, corporation or association, hereafter organized or doing business in this state, shall be entitled to use the word "co-operative" as part of its corporate or other business name or title for producers' co-operative marketing activities, unless it has complied with the provisions of this act." Cal. Civ. Code, § 653ss. Also, the power of the association to handle the agricultural products of any non-member except for storage, unless empowered to do so by the articles of incorporation and then not to an amount greater in value than the value of such products as are dealt in or handled by it for its own members or stock holders, is denied. Cal. Civ. Code, § 653ff (a). Such associations are not organized to make profit for themselves, as such, or for their members, as such, but only for their members as producers. Cal. Civ. Code, § 653bb (d). The nature and amount of the dividends which may be declared are fixed by statute. Cal. Civ. Code, § 653jj (i).

co-operative marketing associations the Federal government has recognized them as a distinct class upon several occasions20 and the public policy of this state and others is definitely committed in favor of co-operative marketing." In every case in other jurisdictions statutes similar to that in California have been upheld as being a reasonable classification consistent with state and Federal constitutions.22

20 In listing the organizations which are exempt from taxation under the Federal Income Tax, it is provided that "(11) Farmers', fruit growers', or like associations, organized and operated as sales agents for the purpose of marketing the products of members and turning back to them the proceeds of sales, less the necessary selling expenses, on the basis of the quantity of produce furnished by them; or organized and operated as purchasing agents for the purpose of purchasing supplies and equipment for the use of members and turning over such supplies and equipment to such members at actual cost plus necessary expenses," are exempt. Act of Nov. 23, 1921, 42 U. S. Stats. at L. 253, U. S. Comp. Stats. (1923 Supp.) § 6336 1/8 o, Fed. Stats. Ann. (1921 Supp.) 150. Also, the Clayton Amendment of the Sherman Anti-Trust Act expressly exempts agricultural and horticultural organizations from anti-trust provisions when they are instituted for the purpose of mutual help, and have no capital stock and are not conducted for profit. An Act to Supplement Existing Laws Against Unlawful Restraints and Monopolies, etc., Act of Oct. 15, 1914, 38 U. S. Stats. at L. 731, U. S. Comp. Stats. (1918) § 8835f, 9 Fed. Stats. Ann (2d ed.) 737. And the Capper-Volstead Act, the latest federal enactment on this subject, provides that "persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common, and such associations and their members may make the necessary contracts and agreements to effect such purposes: Provided, however, That such associations are operated for the mutual benefit of the members thereof, as such producers," and conform to certain requirements as to dividends, voting of stock, and scope of activities, to which mere commercial packing companies are not subject. Capper-Volstead Act, § 1.

21 See supra, n. 4, for a list of states in which enabling statutes have been enacted; 8 Minnesota Law Review, 1, 8; in California the Cartwright Act exempts associations "the object and business of which are to conduct its operations at a reasonable profit or to market at a reasonable profit those products which cannot otherwise be so marketed, provided further, that it shall not be deemed to be unlawful,-for persons, firms, or corporations, engaged in the business of selling or manufacturing commodities of a similar or like character, to employ, form, organize or own any interest in any association, firm, or corporation, having as its object or purpose the transportation, marketing or delivering of such commodities." Cartwright Act, § 1 (5), Cal. Stats. 1909, p. 593.

22 Tobacco Growers' Co-op. Ass'n. v. Jones, supra, n. 15, where the statute was verbatim that of California; Hollingsworth v. Texas Hay Ass'n., supra, n. 15; Kansas Wheat Growers' Ass'n. v. Schulte, supra, n. 15; Owen County Burley Tobacco Society v. Brumback (1908) 128 Ky. 137, 107 S. W. 710; Brown v. Staple Cotton Co-op. Ass'n., supra, n. 15; Oregon Growers' Co-op. Ass'n. v. Lentz, supra, n. 15; Washington Cranberry Growers' Ass'n, v. Moore (1921) 117 Wash. 430, 201 Pac. 773; Pierce County Dairymen's Ass'n. v. Templin (1923) 215 Pac. 352 (Wash.); Wisconsin Tobacco Pool v. Bekkedal, Supreme Court of Wis., November 13, 1923; Potter v. Dark Tobacco Growers' Co-op. Ass'n., Court of Appeals of Ky., December 21, 1923.

An analogous situation has arisen before in California. A law which distinguished corporations from individuals and partnerships engaged in the same business, for the purpose of penalizing the former for failure to give certain service, was upheld and the classification sustained.23 In the words of a Kentucky court, which decided that such associations constitute a proper class and that an act similar to the California statute was not violative of state and federal constitutional inhibitions, "we believe the act, by enabling the farmers to market their crops co-operatively for the purpose, as declared in the act, of regulating distribution and stabilizing the prices of farm products, serves a pressing public need that justifies the classification of farmers as a distinct class and treats all of the class equally and fairly and not better, if that were important, than other distinctive productive classes are treated under the laws of the state and nation. It does not, therefore, in our estimation, offend either the federal or state constitution."24


23 Hansen v. Vallejo Electric Light Co. (1920) 182 Cal. 492, 188 Pac. 999. 24 Potter v. Dark Tobacco Growers' Co-op. Ass'n., supra, n. 22; see also 8 Minnesota Law Review, 1, 6.

Book Reviews


By Roscoe Pound. The

Macmillan Company, New York, 1923. pp. xv, 165.

In the author's words:

"The problem of compromise between the need of stability and the need of change becomes in one aspect a problem of adjustment between rule and discretion, between administering justice according to settled rule, or at most by rigid deduction from narrowly fixed premises, and administration of justice according to the more or less trained intuition of experienced magistrates. In one way or another almost all of the vexed questions of the science of law prove to be phases of this same problem."

"Attempts to unify or to reconcile stability and change, to make the legal order appear something fixed and settled and beyond question, while at the same time allowing adaptation to the pressure of infinite and variable human desires, have proceeded along three lines-authority, philosophy, and history." A distinguished critic, Sir Frederick Pollock, 39 Law Quarterly Review, 163, professes to be unable to see the facts that support the statement of the reign and influence of the historical school. Due weight, perhaps, is not given by the critic to the fact that lawyers may argue and judges decide cases with the major premise entirely concealed even from themselves. It is no answer to Dean Pound to say that lawyers and judges have never read or even heard of these historians and philosophers. The philosopher, himself, is a product of his age and expresses views more or less vaguely held by the many. In turn his own theories, filtering through, impregnate soil that knows nothing of the source of its fertilizing stream.

In matters of opinion on the conflict of ideas, the factors are too intricate for quantitative analysis, so the differences between the author and the critic must remain unsettled. Of this, however, we can be sure, philosophers and historians have written about the law; their writings have influence and their theories can be evaluated. In a treatment of the historical school Dean Pound has presented his mature views. Some of the material is not new, but in this volume his theories have been presented in definite form, with a wealth and aptness of illustration that will make the volume a classic.

To one looking at the march of events from a detached position, the picture appears to be that of an irresistible moving force; any effort to stop or divert it is foredoomed to failure. The highest wisdom is to discover its law of change and conform thereto. Dean Pound reveals the truth and the error in this position and in four interpretations of legal history which grew out of it: (1) ethical, idealistic and religious; (2) political; (3) positivist, in terms of biology and ethnology; and (4) economic. The contribution of each and the insufficiency of each as a final explanation are convincingly analyzed and supported by reference to legal rules with which every

lawyer is familiar. There is the political interpretation which the author finds in Maine's generalization "from status to contract," the idea of free individual self-assertion; the generalization and the idea have been carried in America quite beyond anything contemplated by the author. Especially forceful is the criticism of the economic interpretation from Karl Marx to Brooks Adams, and the refutation of the insufficiency of the evidence relied on by the latter to justify his theory of dominant class interest. The fellow servant rule may seem one of class selfishness, but how about the principle itself, to which the fellow servant rule is an exception-the principle that the employer must answer for the torts of his employee. Class interest influences judges and legislators, but that does not tell us what class, nor are class interests the only influential factors.

From the exposition and appraisement of other theories we turn eagerly to the author's constructive view. He has amply refuted the attempts of previous philosophers to find a single principle running through and explaining the course of legal development. His own theory, however, will not satisfy the idealists. It is not an internal immanent principle. On the contrary, it is thoroughly pragmatic. Rejecting the pessimistic conclusion of the historical school, that the march of history was inevitable and legislation futile, rejecting also the eighteenth century confidence in constitutions and statutes to bring about the millenium, the author offers what he calls "an engineering interpretation":

"Let us think of jurisprudence for a moment as a science of social engineering, having to do with that part of the whole field which may be achieved by the ordering of human relations. through the action of politically organized society."

""In seeking for a universal principle,' says William James, 'we inevitably are carried onward to the most inclusive principle, -that the essence of good is simply to satisfy demand'. 'Must not,' he adds, 'the guiding principle for ethical philosophy (since all demands conjointly cannot be satisfied in this poor world be simply to satisfy at all times as many demands as we can?' This seems to me a statement of the problem of the legal order. The task is one of satisfying human demands, of securing interests or satisfying claims or demands with the least of friction and the least of waste, whereby the means of satisfaction may be made to go as far as possible."

To those who reject a metaphysical solution this will be satisfactory so far as it goes. We will hope, however, that Dean Pound will continue his work, because, for such an engineering interpretation we must have more facts, and a better interpretation of past experience; we must know the limits at any time of effective legal action. Scarcely the beginning has been made in this work. At the present stage it would be a great contribution for Dean Pound to write the "organon" of legal investigation. The success of engineering depends upon science.

A word should be said in praise of the publisher for this and other legal works offered during the past three years. Law book

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