JACKSON, J., dissenting. 346 U.S. find any indication that in these deliberations any decision was made to take a calculated risk of doing what was done, in the way it was done, on the chance that what did happen might not happen. Therefore, we are not deterred by fear that governmental liability in this case would make the discretion of executives and administrators timid and restrained. However, if decisions are being made at Cabinet levels as to the temperature of bagging explosive fertilizers, whether paper is suitable for bagging hot fertilizer, and how the bags should be labeled, perhaps an increased sense of caution and responsibility even at that height would be wholesome. The common sense of this matter is that a policy adopted in the exercise of an immune discretion was carried out carelessly by those in charge of detail. We cannot agree that all the way down the line there is immunity for every balancing of care against cost, of safety against production, of warning against silence. On the ground that the statutory language is not clear, the Government seeks to support its view by resort to selections from an inconclusive legislative history. We refer in the margin to appropriate excerpts which, in spite of the Court's reliance on them, we believe support our conclusion in this case.12 The Government also relies on the body of law developed in the field of municipal liability for torts which deal with discretionary, as opposed to ministerial, acts. 12 See n. 21 of the Court's opinion. We believe that this oftrepeated paragraph appearing in the House Reports shows quite plainly that what was meant is that type of discretion which government agencies exercise in regulating private individuals. The majority chooses instead to fix an amorphous, all-inclusive meaning to the word, and then to delimit the exception not by whether an act was discretionary but by who exercised the discretion. The statute itself contains not the vaguest intimation of such a test which leaves actionable only the misconduct of file clerks and truck drivers. 15 JACKSON, J., dissenting. Whatever the substantiality of this dichotomy, the cases which have interpreted it are in hopeless confusion; some have used "discretionary" and "ministerial" interchangeably with "proprietary" and "governmental," while others. have rather uncritically borrowed the same terminology from the law of mandamus.13 But even cases cited by the Government hold that, although the municipality may not be held for its decision to undertake a project, it is liable for negligent execution or upkeep." We think that the statutory language, the reliable legislative history, and the common-sense basis of the rule regarding municipalities, all point to a useful and proper distinction preserved by the statute other than that urged by the Government. When an official exerts governmental authority in a manner which legally binds one or many, he is acting in a way in which no private person could. Such activities do and are designed to affect, often deleteriously, the affairs of individuals, but courts have long recognized the public policy that such official shall be controlled solely by the statutory or administrative/mandate and not by the added threat of private damage suits. For example, the Attorney General will not be liable for false arrest in circumstances where a private person performing the same act would be liable,1 and such cases could be multiplied.16 The official's act 15 13 See Patterson, Ministerial and Discretionary Official Acts, 20 Mich. L. Rev. 848. 14 E. g., Keeley v. Portland, 100 Me. 260, 262, 61 A. 180, 181-182; Cumberland v. Turney, 177 Md. 297, 311, 9 A. 2d 561, 567; Gallagher v. Tipton, 133 Mo. App. 557, 113 S. W. 674. 15 Gregoire v. Biddle, 177 F. 2d 579. 16 Spalding v. Vilas, 161 U. S. 483 (Postmaster General); Wilkes v. Dinsman, 7 How. 89 (officer of Marine Corps); Otis v. Watkins, 9 Cranch 339 (Deputy Collector of Customs); Yaselli v. Goff, 12 F. 2d 396, aff'd 275 U. S. 503 (Special Assistant to the Attorney General). The overwhelming weight of authority in the states is to the same effect. See 42 Am. Jur. § 257. JACKSON, J., dissenting. 346 U.S. might inflict just as great an injury and might be just as wrong as that of the private person, but the official is not answerable. The exception clause of the Tort Claims Act protects the public treasury where the common law would protect the purse of the acting public official. But many acts of government officials deal only with the housekeeping side of federal activities. The Government, as landowner, as manufacturer, as shipper, as warehouseman, as shipowner and operator, is carrying on activities indistinguishable from those performed by private persons. In this area, there is no good reason to stretch the legislative text to immunize the Government or its officers from responsibility for their acts, if done without appropriate care for the safety of others. Many official decisions even in this area may involve a nice balancing of various considerations, but this is the same kind of balancing which citizens do at their peril and we think it is not within the exception of the statute. The Government's negligence here was not in policy decisions of a regulatory or governmental nature, but involved actions akin to those of a private manufacturer, contractor, or shipper. Reading the discretionary exception as we do, in a way both workable and faithful to legislative intent, we would hold that the Government was liable under these circumstances. Surely a statute so long debated was meant to embrace more than traffic accidents. If not, the ancient and discredited doctrine that "The King can do no wrong" has not been uprooted; it has merely been amended to read, "The King can do only little wrongs." Syllabus. AUTOMATIC CANTEEN COMPANY OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 89. Argued December 12, 15, 1952.-Decided June 8, 1953. Section 2 (f) of the Robinson-Patman Act makes it unlawful for anyone engaged in interstate commerce "knowingly to induce or receive a discrimination in price which is prohibited" by the Act, but the Act does not prohibit a price differential which makes only due allowance for cost differences. The Federal Trade Commission issued a complaint charging violation of § 2 (f) by petitioner, a large buyer of candy and confections for resale through automatic vending machines operated in many States. At the hearing, the Commission introduced evidence that petitioner received, and in some instances solicited, prices that petitioner knew were as much as 33% lower than the prices to other buyers. Petitioner's motion to dismiss the complaint on the ground that the Commission had not made a prima facie case was denied; and, on petitioner's failure to introduce evidence, the Commission entered a cease and desist order. Held: 1. A buyer does not violate § 2 (f) if the lower prices he induces are either within one of the seller's defenses, such as the cost justification, or not known by him not to be within one of those defenses. Pp. 69-74. 2. Proof that the buyer knew that the price he induced or received was lower than that offered other buyers is not sufficient to shift to the buyer the burden of introducing evidence to show justification. Pp. 74-81. 194 F.2d 433, reversed. In a proceeding against petitioner under § 2 (f) of the Robinson-Patman Act, 15 U. S. C. § 13, the Federal Trade Commission entered a cease and desist order. 46 F. T. C. 861. On a petition for review, the Court of Appeals affirmed. 194 F. 2d 433. This Court granted certiorari. 344 U. S. 809. Reversed and remanded, p. 82. Opinion of the Court. 346 U.S. Edward F. Howrey argued the cause for petitioner. With him on the brief were L. A. Gravelle, Emil N. Levin and Elmer M. Leesman. Robert B. Dawkins argued the cause for respondent. With him on the brief were Solicitor General Cummings, W. T. Kelley and James E. Corkey. MR. JUSTICE FRANKFURTER delivered the opinion of the Court. The Robinson-Patman Act, directed primarily against sellers who discriminate in favor of large buyers, includes a provision under which proceedings may be had against buyers who knowingly induce or receive discriminatory prices. That provision, § 2 (f) of the Act, is here for construction for the first time as a result of a complaint issued by the Federal Trade Commission against petitioner, a large buyer of candy and other confectionary products for resale through 230,000-odd automatic vending machines operated in 33 States and the District of Columbia. Petitioner, incorporated in 1931, has enjoyed rapid growth and has attained, so we are told, a dominant position in the sale of confectionary products through vending machines. The Commission introduced evidence that petitioner received, and in some instances solicited, prices it knew were as much as 33% lower than prices quoted other purchasers, but the Commission has not attempted to show that the price differentials exceeded any cost savings that sellers may have enjoyed in sales to petitioner. Petitioner moved to dismiss the complaint on the ground that the Commission had not made a prima facie case. This motion was denied; the Commission stated that a prima facie case of violation had been established by proof that the buyer received lower prices on like goods than other buyers, "well knowing that it was being favored over competing purchasers," under circumstances where the |