State Ex Rel. Edmisten v. J. C. Penney Co.

233 S.E.2d 895, 292 N.C. 311, 1977 N.C. LEXIS 1092
Supreme Court of North Carolina·Decided April 14, 1977·No. 75·Published·Cited by 46 cases

Opinions

COPELAND, Justice.

The question before the court on this appeal is whether the activities of merchants attempting to collect funds allegedly owed them were intended to be, and constitutionally can be, subject to G.S. 75-1.1.* The burden of proof on this issue falls upon the defendant who seeks to exempt himself from the statute’s embrace. G.S. 75-1.1 (d).

The statute, enacted by the legislature in 1969, provides in relevant part:

“Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” G.S. 75-1.1 (a). (Emphasis supplied.)

Initially, the most striking aspect of the statutory language is its resemblance to Section 5(a)(1) of the Federal Trade Commission Act (hereinafter FTC Act) which provides as follows:

“Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.” 15 USC § 45(a) (1). (Emphasis supplied.)

The similarity in language was apparently not accidental. See Aycock, Antitrust and Unfair Trade Practice Law in North Carolina — Federal Law Compared, 50 N.C. L. Rev. 199, 246 (1972) [hereinafter cited as Aycock] ; Morgan, The People’s Advocate in the Marketplace — The Role of the North Carolina Attorney General in the Field of Consumer Protection, 6 Wake Forest Intra. L. Rev. 1, 18 (1969) [hereinafter cited as Morgan] ; Comment, Consumer Protection and Unfair Competition [315] in North Carolina — The 1969 Legislation, 48 N.C. L. Rev. 896 (1970) [hereinafter cited as Comment]. Consequently, we have said that the federal decisions construing the FTC Act, may furnish some guidance to the meaning of G.S. 75-1.1. Hardy v. Toler, 288 N.C. 303, 218 S.E. 2d 342 (1975).

No protracted analysis of dictionary and judicial definitions is needed to arrive at the conclusion that at least one definition of the word “commerce,” which appears in both acts, is expansive enough to encompass all business activities, including the collection of debts. Indeed, the Federal Trade Commission (hereinafter FTC) and the federal courts construing the FTC Act have so held. See, e.g., Spiegel, Inc. v. FTC, 540 F. 2d 287 (7th Cir. 1976) ; Floersheim v. FTC, 411 F. 2d 874 (9th Cir. 1969), cert. denied, 396 U.S. 1002, 24 L.Ed. 2d 494, 90 S.Ct. 551; Slough v. FTC, 396 F. 2d 870 (5th Cir. 1968), cert. denied, 393 U.S. 980, 21 L.Ed. 2d 440, 89 S.Ct. 448; In re Floersheim, 316 F. 2d 423 (9th Cir. 1963); Mohr v. FTC, 272 F. 2d 401 (9th Cir. 1959), cert. denied, 362 U.S. 920, 4 L.Ed. 2d 739, 80 S.Ct. 672; William H. Wise Co. v. FTC, 246 F. 2d 702 (D.C. Cir. 1957), cert. denied, 355 U.S. 856, 2 L.Ed. 2d 64, 78 S.Ct. 84; Dejay Stores v. FTC, 200 F. 2d 865 (2d Cir. 1952); Bernstein v. FTC, 200 F. 2d 404 (9th Cir. 1952); Bennett v. FTC, 200 F. 2d 362 (D.C. Cir. 1952) ; Rothschild v. FTC, 200 F. 2d 39 (7th Cir. 1952), cert. denied, 345 U.S. 941, 97 L.Ed. 1367, 73 S.Ct. 832; Silverman v. FTC, 145 F. 2d 751 (9th Cir. 1944) (all of the cases cited involved abuses in the collection of credit accounts by creditors, collection agencies, or companies selling “skip tracing” forms to creditors or collection agents).

“Commerce” under federal decisions “is a term of the largest import. It comprehends intercourse for the purposes of trade in any and all its forms. . . .” Welton v. Missouri, 91 U.S. 275, 280, 23 L.Ed. 347, 349 (1876) ; accord, Adair v. United States, 208 U.S. 161, 177, 52 L.Ed. 436, 443, 28 S.Ct. 277, 281 (1908); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189-90, 6 L.Ed. 23, 68 (1824). The federal courts have properly assigned the broadest possible definition to the word “commerce,” since in defining the word, they define the limits of federal power to regulate activities under the commerce clause. U. S. Const, art. 1, § 8, cl. 3.

The federal court decisions, however, are not controlling in construing the North Carolina Act. See Horton v. Gulledge, [316] 277 N.C. 353, 177 S.E. 2d 885 (1970). Unlike other state trade regulation statutes, G.S. 75-1.1 does not require or direct reference to the FTC Act for its interpretation. See Ariz. Rev. Stat. Ann. § 44-1522B (West 1967) ; Conn. Gen. Stat. Ann. § 42-110b (b) and (c) (West Cum. Supp. 1977) ; Fla. Stat. Ann. § 501.204(2) (West Cum. Supp. 1977) ; Idaho Code § 48-604, -618 (Cum. Supp. 1976) ; Ill. Ann. Stat. ch. 121 1/2, § 262 (Smith-Hurd Cum. Supp. 1977); Me. Rev. Stat. Ann. tit. 5, § 207 (West Supp. 1973) ; Mass. Gen. Laws Ann. ch. 93A, § 2 (b) and (c) (West 1972); Mont. Rev. Codes Ann. § 85-403 (Cum. Supp. 1975); N.M. Stat. Ann. § 49-15-3 (Supp. 1975) ; S.C. Code § 66-71.1 (b) (Cum. Supp. 1975) ; Tex. Bus. & Com. Code Ann. tit. 2, §§ 17.46(c), 17.49(b) (Vernon Cum. Supp. 1976-77); Vt. Stat. Ann. tit. 9, § 2453 (b) and (c) (1970). Moreover, by modifying the language borrowed from the federal act, the North Carolina legislature must have intended to alter its meaning to some extent.

“[W]ords used in the statute must be given their natural or ordinary meaning.” Seminary, Inc. v. Wake County, 251 N.C. 775, 782, 112 S.E. 2d 528, 533 (1960). By inserting the word “trade” in G.S. 75-1.1, which has a narrower meaning than the word “commerce,” we believe the legislature signaled its intent to limit the otherwise broad definition of “commerce” obtained under federal decisions. Debt collection activities are “not trade in the ordinary sense” although they could be considered “a species of commerce.” Bernstein v. FTC, supra, 200 F. 2d at 405. The use of the word “trade” interchangeably with the word “commerce” indicates that a narrower definition of commerce which comprehends an exchange of some type was intended.

Just as in one sense the word “trade” has a limiting effect on the word “commerce,” in another sense the word “commerce” enlarges the meaning of the word “trade.” The two words, when used in conjunction, “include practically every business occupation carried on for subsistence or profit, and into which the elements of bargain and sale, barter, exchange, or traffic, enter.” Black’s Law Dictionary (4th Ed. 1968). Thus, a host of occupations would be covered by G.S. 75-1.1 that would not be subject to a statute which relied exclusively on the word “trade.” See Comment, supra, 48 N.C. L. Rev. at 905-6.

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State Ex Rel. Edmisten v. J. C. Penney Co., 233 S.E.2d 895, 292 N.C. 311, 1977 N.C. LEXIS 1092 (N.C. 1977).

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