that the act of 1897 must be construed as intending that the contracts, etc., therein mentioned were unlawful and against public policy only when made with a view to lessen or which tend to lessen full and free competition to an unreasonable extent. It was here held inap. plicable to a contract of sale containing a provision that the seller sell exclusively to the buyer, and the buyer buy exclusively of the seller. See also, as to act of 1897, Packard v. Byrd, 73 S. C. 1; 51 S. E. 678; 6 L. R. A. N. S. 547 (1905).

The provisions of §§ 3, 5, below, which may be based on a misapprehension of the fundamental distinction between a combination to produce a private injury and a combination to produce a public injury seem directed against acts designed to injure a trade competitor, rather than against "trusts" or "monopolies" as ordinarily understood. As to boycott, see also under Ind. (§ 210); Mo. (§ 220); Ohio (§ 227).

"If any person, persons, company, partnership, association or corporation engaged in the manufacture or sale of any article of commerce or consumption from the raw material produced or mined in this State, shall with the intent or purpose of driving out competition or for the purpose of financially injuring competitors, sell at less than the cost of manufacture, or give away their manufactured products for the purpose of driving out competition or

financially injuring competitors engaged in the manufacture and refining of raw material in this State, said person, persons, company, partnership, association or corporation resorting to this method of securing a monopoly in the manufacture, refining and sale of the finished product produced or mined in this State, shall be deemed guilty of a conspiracy to form or secure a trust or monopoly in restraint of trade and on conviction shall be subject to the penalties of this act." § 3. To like effect Ark. L. 1905, c. 1, § 6.

By § 4 the penalty for a violation of the act is a forfeiture of not less than $200 or more than $5,000, each day of continuance of violation to be a separate offense.

By S5 it is a conspiracy within the penalties of the act "if any two or more persons or corporations who are engaged in buying or selling any article of commerce, manufacture, mechanism, merchandise, commodity, convenience, repair, any product of mining or any article or thing whatsoever, shall enter into any pool, trust, agreement, combination, confederation, association or understanding to control or limit the trade in any such article or thing; or to limit competition in such trade by refusing to buy from or sell to any other person or corporation any such article or thing aforesaid, for the reason that such other person or corporation is not a member of or a party to such pool, trust, agreement, combination, confederation, association or under

By § 773 the penalty for a violation of the preceding provisions is a fine of not less than $1,000 or more than $5,000, and upon conviction for a second offense, of not less than $5,000 or more than $10,000.

"Any combination, agreement or trust made, entered into or formed between persons, copartnerships, or corporations in this State, or by and between any persons, copartnerships or corporations within this State with any person, Copartnerships or corporations without this State, with intent and which shall in any manner tend to prevent a free, fair and full competition in the production, manufacture or sale of any article or commodity of domestic growth, use or manufacture, or that tends to advance the price to the user or customer of any article or commodity of domestic growth, use, production or manufacture beyond the reasonable cost of production or manufacture thereof, or that tends to advance the price to the user, purchaser or consumer of farm machinery, implements, tools, supplies and lumber, wood and coal, imported into this State from any other State, Territory or country, beyond the reasonable cost of production and sale or manufacture and sale of the same, or which tends to and does induce and accomplish a sale of wheat, corn, oats, barley, flax, cattle, sheep, hogs or other farm or agricultural products for less than such farm or agricultural

products are really worth at the time of sale, or for a less price than such farm or agricultural products would sell for in open market if such contraction, agreement or trust did not exist," is declared to be “against public policy and unlawful and void." § 776. For similar provisions, see under Ind. (§ 210); Kan. (§ 212); Mo. (§ 220); N. D. (§ 226); Tenn. (§ 231). There are also here special provisions as to such combinations affecting the rate of interest. The penalty is a fine not exceeding $1,G00, or imprisonment not exceeding three years or both.

By 777 the prohibition of § 776 is declared to apply to one selling as agent of a non-resident manufacturer or wholesale dealer, while such manufacturer or dealer refuses to sell at wholesale or manufacturers' prices to "responsible and reputable wholesale or retail dealers in this State." And by § 778 provision is made for injunctions against violations of the preceding provisions. As to duty of prosecuting officers, see § 779.

By § 780 an action may be maintained for damage suffered "by reason of the operation of any pool, trust or combination," so for the recovery back of property contributed to or invested in an industry becoming the property of or controlled by such pool, etc. For similar provisions, see under Cal. (§ 206); Kan. (§ 212); Mich. (§ 217); Miss. (§ 219); Mo. (§ 220); Neb. (§ 222); N. M. (§ 223); Ohio

(§ 227); Okla. (§ 228); Tenn. (§ 231); Utah (§ 233); Wis. (§ 235).

By § 781 the applicants for a corporate charter are required to make oath that it is not formed to enable avoidance of the preceding provision.

Const., art. 17, § 20, seems substantially identical with Wash. Const., art. 12, § 22, with, however, the following words added: "So as to prevent competition in such prices, production or transportation or to establish excessive prices therefor." See also under Wyom. (§ 236). It is also here provided that "the legislature shall pass laws for the enforcement of this section by adequate penalties, and in the case of incorporated companies, if necessary for that purpose may, as a penalty, declare a forfeiture of their franchises."

L. 1903, c. 158, relates to restriction upon competition in fire, etc., insurance business. In Hartford Fire Ins. Co. v. Perkins, 125 Fed. 502 (C. C. S. D., 1903), the court declined to pass on the question of the constitutionality of such act.

49 L. 1903, c. 140, § 1. For similar provisions, see under Kan. (§ 212); Mo. (§ 220); S. D. (§ 230). This act was sustained in State v. Witherspoon, 115 Tenn. 138; 90 S. W. 852 (1905; see as to sufficiency of indictment thereunder). So in Standard Oil Co. v. State,

117 Tenn. 618, 638; 100 S. W. 705, 709; 10 L. R. A. N. S. 1015, 1020 (1906), as not in conflict with the commerce clause of the Federal constitution; see (117 Tenn. 646; 100 S. W. 711; 10 L. R. A. N. S. 1022) as to application of State statute to articles that have been imported into State. This was followed in State ex rel. v. Standard Oil Co., 110 S. W. 565, 580 (Supm. Ct. Tenn., 1908), in holding the act inapplicable to a transaction covered by the commerce clause.

In Standard Oil Co. v. State, supra, § 1 was applied (117 Tenn. 654; 10 S. W. 714; 10 L. R. A. N. S. 1025) to methods of the Standard Oil Company employed to protect oil that had been imported into the State, from competition with that about to be imported and offered for sale by a competitor; in State ex rel. v. Standard Oil Co., supra, to arrangement by which purchasers from a competitor were induced to cancel their orders.

By 2 provision is made for the forfeiture of the charter of a domestic corporation violating any of the provisions of the act and a foreign corporation violating such provisions is prohibited from doing business in the State. In State ex rel. v. Standard Oil Co., supra, § 2 was sustained and applied against the objection that the transaction involved was a crime and should have been redressed by a criminal action. Here was allowed an in

§ 232.

junction against a foreign corporation doing business in the State. See as to whether it is competent to provide civil remedy against corporations while providing criminal remedy against natural persons; also as to period of limitations applicable.

As to respective liability of corporations and their officers or agents for criminal conspiracy, see Standard Oil Co. v. State, supra (117 Tenn. 662; 100 S. W. 716; 10 L. R. A. N. S. 1027).

By 3 such violation of the provisions of the act is "declared to be destructive of full and free competition and a conspiracy against trade." The penalty is a fine of not less than $100 or more than $5,000 or imprisonment for not less than one year or more than ten years or both such fine and imprisonment. This was held inapplicable to corporations, in Standard Oil Co. v. State, supra (117 Tenn. 648; 100 S. W. 712; 10 L. R. A. N. S. 1023); see also (117 Tenn. 667; 100 S. W. 767; 10 L. R. A. N. S. 1028), as to respective liability of corporations and their officers or agents for criminal conspiracy.

By 4 one damaged by such arrangement, etc., described in § 1 may recover from those operating it the full consideration paid for any goods the sale of which is controlled by such trust or combination. See also, under Ind. (§ 210); Kan. (§ 212); S. D. 230).

(§

The constitutionality of the former act of 1897 (c. 94) was sustained against various objections in State ex rel. v. Schlitz Brewing Co., 104 Tenn. 715; 59 S. W. 1033;

78 Am. St. Rep. 941 (1900). Here was held maintainable thereunder a proceeding for the forfeiture of the right of a foreign corporation to do business. The exception in such act of "agricultural products or live stock while in the possession of the producer or raiser" from the operation thereof, was here held not to contravene constitutional prohibitions against class legislation, but see § 181; also under Ga. (§ 207); Ill. (§ 209); Ind. (§ 210); La. (§ 214); Mich. (§ 217); Mont. (§ 221); N. C. (§ 225); N. D. (§ 226); Tex. (§ 232). As to criminal liability under act of 1897, see Post v. Railroad, 103 Tenn. 184, 230; 52 S. W. 301, 312; 55 L. R. A. 481, 493 (1899). See also the former provisions of Code (1896), §§ 3185-91, held in American Handle Co. v. Standard Handle Co., 59 S. W. 709, 718 (Tenn. Ch. App., 1900), to apply to an agreement between two manufacturing corporations by which, though "each was to run its own plant, and pay its own expenses up to the point of production," yet "they were to unite in all sales of products and to sell all of the products of each mill at precisely the same price." So held, though such agreement "had no appreciable effect upon the general market in raising or lowering prices, because the product of the two mills was too small, compared with the whole output of all the mills of the world to bring about such result, being only 10 per cent. of the whole." See also Code (1896), §§ 6622-5.

For an instance of a restriction held illegal under §§ 3185-91, 66225 as well as at common law, see Bailey v. Master Plumbers, 103