A FIXED MINIMUM PRICE BASED ON A FIXED VALUE.

We publish below an address of Hon. J. F. Merryman, a representative of N. K. Fairbank Company, delivered before the National Association of Retail Grocers, which recently met at Portland, Oregon.

We give space to the argument on the fixed minimum price system which has recently been adopted by the N. K. Fairbank Company on the Pacific slope for the reason of the interest which has been awakened by this departure of this wide-awake enterprising up-todate manufacturer.

This speech has been copied by every trade paper on the coast. The interest in it was much increased by

HON. J. F. MERRYMAN.

the attitude of the convention and of certain delegates in attendance.

During the recent session of the Illinois legislature, when net weight legislation was before the house committee on manufacturers, certain retail dealers from the city of Chicago appeared on numerous occasions and made a very severe attack upon the package system now prevailing in the selling of goods, and criticized severely the N. K. Fairbank Company and other producers of lard and cottolene.

Mr. Merryman, who was present representing the N. K. Fairbank Company, in his reply to the strictures of the same clique of retail dealers, severely castigated them in a manner that will not soon be forgotten by any one present and who heard it. Hence when

he delivered a speech at the invitation of the National Retail Dealers Association at Portland, these same gentlemen took occasion to get even, as they put it, and they consummated their purpose in the following

manner:

on

Immediately after the delivery of Mr. Merryman's speech and while the audience were their feet cheering, Mr. Greene of Cleveland, secretary of the association, sprang on the platform and offered a resolution of thanks for the masterly effort and for the manner in which the convention had been educated and entertained by the speaker. This resolution was vigorously opposed by the "bogey men" of the Chicago clique and they succeeded in voting down the resolution. The delegates from the Pacific slope, however, were very indignant and they prepared and passed a resolution thanking the speaker and inviting him to visit the coast, which he did, speaking in some sixteen different portions of Washington, Oregon and California, and meeting at all points with a most cordial and enthusiastic reception.

Suffice to say that the action of the "bogey men" has been the means of obtaining for the N. K. Fairbank Company the largest trade in its history as the retail dealers of the entire coast have unanimously endorsed this company and their representatives at the Portland convention.

The address is as follows:

Mr. President, gentlemen of the convention of the National Retail Grocers' Association of America, ladies and gentlemen: I sincerely thank you for the invitation you have extended me as a representative of The N. K. Fairbank company to address you on the subject of "A Fixed Minimum Price Based On a Fixed Value." I will enter immediately upon a discussion of the subject.

I will confess that the system which we have adopted on the Pacific slope is not only a new one, but a somewhat imperfect one. All new and untried experiments must stand the test of time and in our country must run the gauntlet of the courts. A hundred years ago we had not a single chapter in our law books devoted to the laws of railways, of telegraph or telephone systems; but now we have immense libraries full of law books on these subjects. I lay down as a basis of our discussion two propositions: First, from certain known facts unknown facts become known; secondly, from certain well known legal principles unknown legal principles can be elucidated, and in turn become precedents as time rolls on and business expands. To illustrate the first proposition: When Thomas Jefferson was our minister to France. during the framing of our constitution, no explorer had ever entered the mouth or traversed the source of this great river -the Columbia. No one had ever beheld its magnificent scenery, which the delegates to this convention witnessed on yesterday-its scenery which rivals the Hudson and surpasses the Rhine; but Mr. Jefferson, philosopher as he was, reasoning that if the snows of the mountains melt and the rivulets and the rain from the watersheds run together and form the Missouri east of the Rockies, that there certainly must be another river west of it, and so he endeavored to persuade Ledyard, the explorer, to enter Russia and to come down on what is now our western coast, and that he would find a great river. Ledyard was so impressed that he entered the Russian domain, but was arrested as a spy and compelled to give up the expedition, compelled to change his plans, and his young life went out in an attempt to explore the Nile. Mr. Jefferson, afterwards becoming president, fitted out the Lewis and Clark expedition, and as they called to pay their respects at the White House he said to them that when they had gone up the Missouri and that when they had crossed over the Rockies, over on the other side they would find a great river, which they did, and after they had crossed the mighty summits of our mighty mountains, lo and behold yonder rolled the Columbia.

So it is in great business principles, and with these great propositions that each age must contend with. A hundred years ago land was the basis of wealth. As we merged from the feudal system of England and the European countries we brought over certain of their laws, and to this day we have covenants running with the land, or contracts running

with the land. Some grantor living 75 or 100 years ago laid out certain lots, tracts or parcels of ground, and in executing his deeds to his grantees he specified that on this property certain houses for certain lines of business should not be erected. He may have been a temperance reformer and in his deed he may have stated that no liquor should ever be sold on the premises; no building should be erected in which a saloon was conducted, or like one of our modern grantors, he may have specified that no flats should be erected on the premises; or he may have agreed on a building line and fixed on 30 feet from the street as a building line. Now all these may have been done 75 or 100 years ago, and finally in time I buy the property, and I find that I must leave 30 feet of my ground vacant because, if I build one foot over the line or one inch over the line I am enjoined by my neighbors and a court in equity will fine me for contempt and put me in jail for contempt if I proceed with the building, because there is a covenant running with the land, which covenant may have been enacted 100 years ago, when our grandfathers were living. Now I must do all this because my neighbors have spent certain money on their property, and in consideration of their having built a house costing a certain amount of money and having built it on a certain building line, I must build mine on that building line.

Now, here is a package of goods, the Gold Dust Twins, on which more money has been expended by the N. K. Fairbank company than has been expended on any tract, lot or parcel of ground in the known world not even excepting Broadway and Wall street in New York city; and on which more money has been expended in advertising and in a sales force which, during a quarter of a century has belted the globe, than has been expended on any tract or parcel of ground in London or in Berlin. And yet you tell me that there can be no covenant running with this package. Then I say to you, if we haven't any law on the subject it is time we were making laws. Let us coin a phrase today. Let us make this convention historical. We have met on historical ground Our fathers won Oregon under the shibboleth of "54-40 or fight." Let us declare today for a covenant running with the package and bring the courts of this country to a respect for our rights. And I say to this convention, speaking for the N. K. Fairbanks company, that if you will stand behind us, we will cut and carve into every can of cottolene a certain fixed price based on a fixed value, and we will exterminate every price-cutter in this broad land, no matter how wealthy. how powerful or how influential he may be. Why should some one dealer be permitted, after we have canvassed a city and spent thousands of dollars in it in working up a trade upon Sunny Monday or Gold Dust-why, I say, should some one dealer be permitted to demoralize our trade by cutting the prices on these articles, which are favorites in every household and use them to toll customers into his establishment and sell these articles cheap and swindle them on something else? Equity and justice should say that we have as much right to a covenant running with the package as a citizen has to a covenant running with the land. Therefore we have adopted on the Pacific slope a certain fixed minimum price, which is based on our articles which have a certain fixed value, and this system includes a legal notice, which I will now read:

"To dealers, wholesale or retail:

"You shall not sell, or cause or permit to be sold, either directly or indirectly, by means of gratuities or otherwise, any of our products for less than the current retail prices established by the N. K. Fairbank company, which prices are now, and until further notice will be, as follows: "Cottolene

"One dozen packages

"The conditions herein named are for the express benefit of the N. K. Fairbank company, and in case of the breach of said conditions by you in connection with any purchase of such products from the undersigned, you shall pay to the N. K. Fairbank company for each and every such breach the sum of $50, as the damages which it is presumed and agreed would be suffered by the N. K. Fairbank company from every such breach, said sum to be construed as liquidated damages, and not as a penalty, it being recognized that any

such breach would result in material damages to the N. K. Fairbank company, the actual amount of which it would be extremely difficult or impracticable to fix. The N. K. Fairbank company may prosecute any action for any such breach in its own name."

A special label, printed in white letters on a bright red background, is attached to every box of the goods sold— thus reminding the distributor, whether wholesaler or retailer, of his individual agreement with the N. K. Fairbanks company. This label announced the lowest retail prices that may be accepted for the goods contained in the box to which it is affixed.

I know this convention will be interested in learning what progress we are making under this new system, and I am happy to inform you that both the retailers and the wholesalers on this coast nearly all of them are rallying to our support. We have word this morning from Pasadena that the retail dealers there are throwing out of their stores the goods of the manufacturers who will not adopt the minimum price system and putting ours in. Of course here and there we find a retail dealer who claims that his rights and liberties are being taken away. My rights have been taken away from me when I could not build on a certain piece of land as I wanted to build, and so his rights to ruin our trade, to demoralize our prices, to destroy the market value of our goods, have been taken away from him. Here and there we have found a retail dealer who publicly advertises that he has taken out the goods of the N. K. Fairbanks company on account of the contract system and that he is using in their place and stead the goods of our competitors, but he will come back. The public will soon begin to cry for Cottolene, and for the Gold Dust Twins, and before many moons wax and wane he will find he can't get along without them, and once more Sunny Monday will grace his shelves.

If you will pardon an anecdote, it reminds me of an incident that happened in the life of the late Senator George G. Vest of Missouri and a senator from Alabama. They were both members of the judiciary committee in the United States senate and on one occasion Chief Justice Fuller gave a dinner to the judiciary committee of the senate, and in the wee hours of the morning, after probably they had looked a little on the wine when it was red within the cup, they started home in a cab. Senator Vest was in a reminiscent mood, and turning to the Alabama senator, he said: "We ought indeed to be very grateful men. Here we are; we fought four years for the Confederacy and against the flag of our country and when we couldn't get out of the Union and were whipped back in, here we are members of the senate, the highest lawmaking body in the world, members of the judiciary committee, the greatest committee in the greatest law-making body in the world, and have been wined and dined by the chief justice."

The Alabama senator couldn't stand it any longer, and he exclaimed: "Vest, give us a rest. They can't run their d——— country without us!"

So I think some of these retail dealers will find they can't run their stores without Cottolene, and without Fairy soap. And I am here to say to this convention that we intend to maintain this fixed minimum price system, and I am not going to return home until I have employed lawyers to bring injunctions and damage suits against every price cutter on this coast, and I say again, we intend to exterminate the price cutter; if not through the courts, we at least have the right to refuse to sell him our goods. The court of last resort in the state of New York has recently so decided-that the manufacturer has a right to refuse to sell his goods to anyone. whomsoever he pleases, no matter if it is impossible for that dealer to get the goods from anyone else in the United States.

Now to the Pacific slope delegates in this convention I have one question to ask: If one of our competitors had inaugurated this system on this slope and we desired to break it down, the first thing we would do would be to cut the prices on all our goods and slaughter them and attempt to fill every store with them on this slope. This is now being attempted by certain manufacturers in order to break down the fixed minimum price system, and I ask you today, are you going to desert us in this fight in order to make a transitory profit? I contend that so long as the goods of the N. K. Fairbank company afford a profit that is defensible before the retail trade, they are deserving of unqualified and unlimited preference at the hands of the retailer who is in favor of the policy of protecting retail prices. If any retailer disregards the protected price policy and encourages the sale of an unprotected, competitive article simply because the latter offers temporarily a little better profit, he is blind to his

own best interests and is aiding in the defeat of the protected price policy.

In response to your demands we have adopted this policy. Again I ask, are you going to stand with us and stand by us? (Here a large number of the delegates, led by Mr. Newberry of Los Angeles, stood up and yelled that they would.) Gentlemen of the convention, it gives me pleasure to say that for 24 years I have been in the employ of a manufacturer who always recognized that there were three parties in our firm-first, ourselves as manufacturers; second, the wholesaler or the jobber; and third, the retail dealer.

Again I repeat, we have always stood by the wholesaler and the retail dealer. Though there have been times when it was a great temptation to us to imitate the many business enterprises which in the last two decades have grown up around us and are selling directly to the consumer.

These factory-to-family plan concerns go into a community and enlist the services of the women and form clubs, holding out as an inducement that buying from the retailer is expensive; that what you buy from a retailer must pass through several hands, and that they save you the profits of the middlemen, and that by buying from the factory-tofamily plan all profits of the retail dealer are eliminated. They even get up clubs in the churches; they even appeal to the ladies aid society in the churches, and to the missionary societies; and often the good sisters are induced to form these clubs in order to get a desk or a rocking chair for their dear pastor, forgetting that the deacon in their church may perhaps be in the furniture business, or in the hardware business, or in the stove business, and that all these schemes are injuring the church and sapping at its vitals and undermining its very foundations.

Every dollar sent out of a community to one of these factory-to-family concerns never returns. It is gone forever. It is like the snowflakes in the river, a moment white, then gone forever. But when we canvass a community our men urge that community to buy our goods at the retail store from the retail dealer. You in turn deposit your money with the local bank, and that money remains in the channels of trade, blessing your community. It is like the rain that falls into the rivulets, and the rivulets run into the rivers, and the rivers run to the seas, and the clouds drink it up again and bring it back, and again the rain falls and it enriches and twice blesses the land.

Now having said so many good things to you, I may be pardoned and permitted to say a few mean things. You do not always give us proper support when we are canvassing a neighborhood and endeavoring to exterminate the factory to family plan of doing business. You do not always allow your man to work with our regular order solicitor. Oftentimes you refuse to cooperate with us to the extent of allowing your order solicitors to work with our men. You sometimes regard us as enemies when we are your best friends, and I say without fear of contradiction that there is no other soap manufacturer in the country who is doing more today to educate the consumers to the fallacy of the factory to family plan than the N. K. Fairbank company through its work among the consumers on behalf of the legitimate retail distributers. Therefore we feel that we have a right to be heard on this subject, and that we have a claim on the good will and support of the retail trade.

Now allow me to say that there are strenuous days ahead of us, and it behooves us to hang together. It was an old patriot who, in the dark days of our country's history, when the clouds hung lowest, and when putting his signature to that immortal document the Declaration of Independence, which made him a traitor to King George, exclaimed, "We must all hang together, or we will all hang separately." It behooves us to hang together. I firmly believe that this fixed minimum price system based on a fixed value will solve our difficulties. There will be no necessity for gentlemanly agreements, and when we have perfected it, it will do away with all rebates. It will remove all fraud in the sale of goods, and there will be no necessity for net weights. Let us not be timid about it. Henry Ward Beecher tells us of a good man in New England who was so afraid of doing wrong that he spent all of his life without doing anything at all, and when he reached three score and ten he could only look back on a misspent life. We have all been so afraid of trusts and trust agreements that we have not been able to agree upon anything, and year after year we have seen our business cut to pieces and profit taken away from both manufacturer and retail dealer. Let us return to the old fashioned, the honest method of doing business, and do away with all schemes and prize package methods, and the demoralizing deals in which so many boxes are given away upon so many

being bought. All of this will go when we have adopted the straightforward method of a minimum fixed price.

I believe that on this coast the courts will yet decide that there is now as much necessity for a covenant running with the chattel as there was in the old time for a covenant running with the land; and that a business system will be established which will save this country from the demoralizing conditions which now prevail by an attempted maintenance of a card list and cut throat competition; but until this plan has been clearly demonstrated that it is a commercial success and the retail dealers thoroughly satisfy us that they will stand by us and by their support make up any loss we may sustain from the big and little cash and department stores, and until the courts have fully declared that our business is lawful and legitimate, we can never afford to extend its operations east of the Rocky mountains.

To the delegates east of the Rockies let me say, perfect your organization. Bring about a unity of sentiment on this question in your city and state organizations, suggest to us what you regard as a fixed price on our products which will give you more than a living profit and line up your organizations and show us that you have something to compensate us for the loss we will sustain and the hostility we will incur from the big catalog houses and similar organizations.

Call off the carping criticisms of your trade journals who declare that they do not want retail prices fixed by manufacturers because they do not care to have their business put on a slot machine basis, and at the same time exclaim, "Save me Cassius or I sink!"

Since its earliest organization the N. K. Fairbank company has stood by the retail dealers and will continue to stand by them to the end. The country storekeeper and our country's history dwell together in memory. We can see an Abraham Lincoln with his sad, sallow face, sitting in the country store with his eye piercing futurity, revolving plans whereby a nation may be saved.

No one is more deserving of a competency in old age than the retail dealer who rolls the boxes and the barrels of sugar from early morn until dewy eve, and therefore let me say in conclusion, may God grant that the retail dealer may survive all the wrecks and panics of our fickle and frai! business system, and that they

"Who danced our infancy upon their knee,

And told our marveling boyhood legends store,
Of their strange ventures happ'd by land or sea,"
Shall never be blotted from the things to be.

GROCERIES BY WEIGHT.

Chicago Official Frames Ordinance to Supersede the Old Measure.

Following a hard fight to put a law through the Illinois legislature, City Sealer Kjellander, of Chicago, has drafted an ordinance which, if passed by the city council, will do away with the old dry measure in selling grocery goods. Weight instead of measure will be the standard if the ordinance passes.

If the council takes a favorable stand and the ordinance finds its way into the code, the wholesale and retail grocers and commission men will have forced on them one of the most radical changes in their business they have ever made.

The old-time scoops, measures and containers which have come down through some centuries of use, will go the way of all ancient things, to be replaced by commercial scales of an accuracy that has been tested by the city sealer.

City Sealer Kjellander will have the measure drafted in readiness for action by the time the councilmen have returned from their vacations, and believes its passage can be secured, though there doubtless will be strong objections from dealers who feel more inclined to work with the easy and offhand scoop and measure than with the unfailing, accurate scales.

The new bill, under which the ordinance will be drafted, gives city or village councils the right to require all grain, flour, meal, hay, feed, seeds, fruits, nuts, vegetables and nonliquid animal products, fish, butter, cheese and other similar dairy products, dry groceries and all other similar articles of merchandise, in the absence of a contract or agreement in writing to the contrary, to be sold by standard avoirdupois weight or by numerical count, and was enacted through the persistent efforts of Representative Nelson.

Major William A. Graham, Commissioner of North Carolina, was born at Hillsboro, N. C., December 26th, 1839, and was educated at the schools of Hillsboro and Raleigh, N. C., and Washington, D. C. He entered the University of North Carolina in 1856 and went to Princeton, New Jersey, in 1859, graduating there in the class of 1860. He moved to Lincoln county in March, 1861, to engage in farming. During the Confederate war he served in the Orange county troops as first lieutenant and captain in Co. K, 2d North Carolina Cavalry. Being severely wounded at Gettysburg, he afterwards became assistant adjutant general of the state of No. Carolina and served as such until the close of the war, May, 1865, being the last man in the Confederate service in the state. In October, 1865, he returned to Lincoln county and resumed his work upon the farm and has been so engaged since. He owned the first cotton gin with a condenser west of the Catawba River and the first separator, thresher and reaper and binder in this county. He has given attention to improved strains of cotton and corn, also of horses, cattle, sheep and swine. He was elected to the State Senate in 1874 and 1878, receiving

He was

every vote cast in his district. He represented Lincoln county in the House of Representatives in the state in 1905. He has been very active in his devotion to measures for the advancement of the agricultural interest and many of the best laws upon the Statute books of the state were prepared and introduced by him. He has been a member of the Board of Agriculture since its reorganization in 1899, and was Chairman of the Board when he became Commissioner in September, 1908, upon the death of the former Commissioner, the Hon. S. L. Patterson. elected Commissioner for a term of four years, beginning January 1st, 1909. The North Carolina Department of Agriculture is one of the best organized in the Union. The different Departments relating to agricultural interests are combined under one head and rendered more effective than they could be if divided into many smaller divisions. The Pure Food work is committeed to this Department under the direction of the Commissioner, Dr. W. M. Allen being the Pure Food Chemist. In no state in the Union is it more efficiently enforced or is greater benefit received.

DR, D. HARVEY DILLON, President Louisiana State Board of Health.

DIRT IN POTATO SACKS.

An Offense Against Pure Food Law, Says Attorney General Jackson of Kansas.

Topeka, Kan., June 17, 1909. Dr. S. J. Crumbine, Chief Food and Drug Inspector, State House.

Dear Sir-In answer to your oral inquiry concerning a sale of potatoes, made on the 10th day of June, 1909, by Cope & Co., No. 134 Kansas avenue, Topeka, Kan., to one William Fieger, a groceryman, through D. K. Grimes, salesman, ticket No. 226, concerning which Mr. Fieger makes the following statement:

"Topeka, Kan., June 17, 1909.

"I hereby certify to Inspector Kleinhans that I bought and paid for 112 pounds of potatoes on June 10, 1909, from Cope & Co., Topeka, Kan., which potatoes did weigh 112 pounds gross weight.

"I also certify that in the above described potatoes I found 14 pounds of dirt, which dirt and sack I have today delivered to Inspector Kleinhans for prosecution.

"The sack weighed three-fourths of a pound, sale ticket attached.

"I also certify that I called the salesman for Cope & Co. attention to the dirt in the above described potatoes. He admitted it was not right, but said: 'That is the way they come to us.' I expressed myself to him that I did not think it right that I should have to pay for this large amount of dirt.

"WM. FIEGER."

In which you request an opinion as to whether or not this is a violation of Chapter 264 of the Session Laws of 1909, being "An act concerning weights and measures," I beg to say:

Section 8 of said act reads in part as follows: "Whenever any of the following articles shall be contracted for, or sold, or delivered and no special contract or

agreement shall be made to the contrary, said sale and all computation for payment or settlement therefor, shall be by weight. The net weight per barrel or bushel, or dividable merchantable quantities of a barrel or bushels, shall be as follows...... .of the following articles per bushel ..potatoes, 60 pounds.....

Section 9 of the act provides in substance:

"All contracts, sales, or purchases hereafter made for work to be done, for anything to be sold or delivered or done, by weight or measure within this state, shall be taken and construed in terms of and according to the standards of weights and measures adopted by this act, except where agreement is made otherwise."

Section 15 of the act reads in part as follows:

"A person, who by himself or by his servant or agent, or as the servant or agent of another... ....sells or exposes for sale less than the quantity which he represents, or sells or offers for sale commodities in a manner contrary to law, shall be deemed guilty of a misdemeanor.. He shall also be liable to the injured party in double the amount of property wrongfully taken or not given, and ten dollars in addition thereto, to be recovered in any court of competent jurisdiction. The selling and delivery of any commodity or article of merchandise shall be prima facie evidence of representations on the part of the vendor that the quantity sold and delivered was the quantity bought by the vendee. .a slight variation from the standard weight, measure, or quantity for individual packages is permissible, provided this variation is as often above as below the weight, measure or quantity stated."

I am of the opinion that under the state of facts above mentioned and in the light of the law quoted, the sale of potatoes as and for 112 pounds which in fact contained 14 pounds of dirt, is a violation of the statute quoted, and that a prosecution will lie there for.

I am not urmindful of the fact that in marketing potatoes and similar products some dirt or earth will adhere thereto, and it is hardly possible for the grower, commission merchant, or the dealer to take the trouble to wash each potato or other product clean of dirt or earth, but to permit a grower, commission merchant or dealer to sell as and for potatoes a quantity of dirt amounting to one-eighth, or 122 per cent of the product sold, is, in my judgment, a gross violation of the evil intended to be corrected by the enactment of this law. If the statement of facts given above is true, it seems the dealer called the attention of the agent of the commission merchant to the amount of dirt in this package and that said agent admitted that this was not right, but gave therefor the excuse, "That is the way they come to us.'

Under all the facts and circumstances in the case, I am of the opinion that the law has been violated, and that a prosecution will lie therefor. The Inspector, of course, has a certain amount of discretion in matters of individual cases and as to whether or not this individual case should be prosecuted, is a matter for the judgment of the inspector and his department. In my judgment the case should be prosecuted.

With kind regards, I am,

Very truly yours,

F. S. JACKSON, Attorney General.

PETROLEUM BUTTER.

The Standard Oil furnishes by-products from axle grease to Sunday school advice, and there is really no reason why it should not furnish the country with butter also. Petroleum is purer than slaughter house fats, and no animal diseases enter into it. If benzoate of soda, boracic acid and alum are kept out of the new Rockefeller butter, there is no reason in the world why consumers should not consume it. As a matter of fact they will have no choice in the matter, for whatever the Standard Oil puts out is sure to find a market. At first the farmers and the meat trust will object, but the oleomargarine of the latter and much of the butter made by the former are already under suspicion, and the new petroleum butter has an ample field and an assured sale. These are changeful times, and what seemed improbable a year ago may become wildly popular in the course of another year. A year ago no one expected to spread petroleum on his slices of mother's bread, but times change and people change with them, and so, it seems, does our butter. Make room, then, for the coming of Rockefeller butter. It is the latest development of twentieth century civilization and greed.-Birmingham, Ala., Age-Herald.