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"Intentionally, for the purpose of destroying the business of a competitor in any locality." (Michigan, Nebraska, North Dakota,

and South Carolina.)

"Intentionally, for the purpose of injuring or destroying the business of a competitor in any locality." (Louisiana.)

"With the intention of creating a monopoly or destroying the business of a competitor." (Minnesota; Utah, and Wisconsin--1909, subtantially same.)

"For the purpose of creating a monopoly or destroying competition in trade." (Oklahoma Constitution.)

"For the purpose of creating a monopoly or destroying the business of a competitor." (Wyoming-1915.)

"For the purpose of destroying the business of a competitor in any locality or creating a monopoly." (Iowa.)

"Maliciously, or for the purpose of destroying the business of a competitor and of creating a monopoly in any locality." (Massachusetts.)

"Intentionally, for the purpose of destroying the business of a competitor in any locality and creating or maintaining a monopoly." (Indiana.)

"Intentionally, or otherwise, for the purpose of destroying the business of a competitor, or creating a monopoly in any locality." (Minnesota-1907.)

"With intent and for the purpose of destroying competition by any regular, established dealer in such commodity or product." (South Dakota-1913.)

"Intentionally, for the purpose of destroying the competition of any regular, established dealer of/in such commodity, or to prevent the competition of any person, who in good faith intends and/or attempts to become such dealer." (Missouri, Oklahoma-1913, South Dakota1907, Wisconsin-1913, and Utah.) Montana is the same, but inserts "firm or corporation" between "person" and "who." California is substantially the same, but inserts "firm, private corporation or municipal or other public corporation," between "person" and "who." "With the intention of creating a monopoly, or of destroying the business of a competitor, or of any regular established dealer, or to prevent competition of any person who in good faith intends and attempts to become such a dealer." (North Dakota-1913.)

"With the intention of creating a monopoly, destroying the business of a competitor or restraining in any manner an open competition." (Oregon.)

Discrimination unlawful "if the effect or intent thereof is to establish or maintain a virtual monopoly, hindering competition, or restriction of trade." (New Jersey and Oklahoma-1908.)

No specific intent: Arkansas, Kansas, and Utah statutes respecting news service.

Allowances.-The statutes vary considerably in the provisions relating to the factors to be considered in determining whether there has been any unfair discrimination in the sale or purchase of a commodity. These may be divided into three broad classes:

(a) Those permitting the consideration of the difference, if any, in transportation charges. (Kansas, Minnesota-1913, Montana, North Dakota-1913, South Dakota-1907, Wisconsin-1909, Utah1913, chap. 41, and Wyoming-1911.)

(b) Those permitting the consideration of the difference, if any, in the grade or quality of the commodity as well as in transportation charges. (Iowa, Indiana, Louisiana, Massachusetts, Michigan, Minnesota-1907, Missouri, Nebraska, North Dakota-1907, Oregon, Utah, Wisconsin, and Wyoming—1915.)

(c) Those permitting the consideration of the above and any difference in quantity. (New Jersey, Oklahoma-1908, and South Carolina.)

California permits the consideration of differences "in the grade, quality or quantity, and for cost differences between such places due to distance from the point of production, manufacture or distribution and expense of distribution and operation."

Mississippi provides for the consideration of "differences of freight and other necessary expenses of sale and delivery" and "differences in the necessary expenses of carrying on the business."

North Carolina prohibits such discriminations "where there is not good and sufficient reason, on account of transportation or the expense of doing business."

With respect to discriminations in furnishing news service the statute of Arkansas is silent as to allowances, and that of Kansas requires the news to be furnished "upon the same terms as to every other newspaper for the same service without discrimination."

Exceptions. Six States (California, Iowa, Oklahoma, South Dakota—1913, Utah, and Wyoming-1915) permit prices to be made to meet competition. The statute of South Dakota, however,

requires "actual legitimate competition."

Another South Dakota statute, prohibiting discrimination in the purchase of commodities, provides that prices may be raised in any given section, "to but not above the prices paid" by others, "when necessary to meet actual legitimate competition in such section."

In California the act "is not intended to prohibit the meeting in good faith of a competitive rate, or to prevent a reasonable classification of service by public utilities for the purpose of establishing rates."

An Oklahoma statute provides that nothing therein contained shall prevent a combination, or any member thereof, "from meeting any price, made by any one not connected in any way with, or influenced by, any member thereof, at any point within this State without being required to make such price generally, so long as such outside party maintains such price in good faith, but no longer, if such point be within the immediate territory of a financially weaker competitor.'

Further exceptions are made in Wyoming where the law of 1911 does not apply to "any case where by reason of different railroad rates or other natural things in favor of any manufacturer or dealer of goods of this or another State such manufacturer or dealer sells at a different price than he does in another, in order to meet the competitive rates or other natural things in favor of such other manufacturer or dealer;" nor to "any case where any manufacturer of or dealer in goods manufactured or produced in this State sells products in one place cheaper than in another to meet upon the same or more favorable basis any competition from foreign States, or this State." It is also provided that the act shall not prevent sales at "proper commercial discount customary in the sale of such particular goods."

Evidence. For provisions relating to evidence necessary to establish a prima facie case under some of the antidiscrimination statutes, see Evidence, burden of proof, indictment, etc., page 208.

Court decisions.-Antidiscrimination statutes have been declared constitutional by courts in Iowa, Minnesota, Mississippi, Nebraska, and South Dakota, and the judgment of the court in the latter State has been affirmed by the Supreme Court of the United States.1

1 State v. Fairmont Creamery Co. of Nebraska, 153 Iowa, 702 (1912).—Defendant was indicted for a violation of Iowa Code Supplement, section 5028-b, as amended by chapter 222, acts thirty-third general assembly (superseded by Laws 1913, chap. 310), prohibiting discriminations in the purchase of milk, cream, or butter fat for manufacture, or of poultry, eggs, or grain for sale or storage. The statute was assailed as a violation of the State and Federal Constitutions. Section 6 of article 1 of the constitution of Iowa provides that "all laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen or class of citizens, privileges or immunities which upon the same terms shall not belong to all citizens." It was urged that the act was discriminatory and arbitrary in its classification, being limited in its application to specified lines of business, and further limited to particular methods of pursuing the same. Held, that the classification was reasonable and substantial, although the operation of the act is limited to a comparatively few people; and that it did not violate the provisions of the State constitution relating to uniformity of laws and special privileges or the fourteenth amendment of the Federal Constitution. (The law of 1913 applies to discrimination in sales and purchases of any commodity of commerce.)

State ex rel. Young v. Standard Oil Co., 111 Minn., 85 (1910).—Action by attorney general to adjudge defendant guilty of unfair discrimination under chapter 269, Laws 1907, and to cancel its license to do business in Minnesota. Among other grounds of demurrer it was urged that the statute was repugnant to section 1 of the fourteenth amendment of the Federal Constitution, and to sections 33 and 34 of article 4 of the State constitution. Demurrer sustained and State appealed. Held, that the legislature may impose special restrictions regulating the sale and distribution of one class of commodities, unless beyond doubt no substantial conditions or usages of trade differentiate that class from others; and that the statute was a valid police regulation. Order sustaining demurrer reversed.

State v. Bridgeman and Russell Co., 117 Minn., 186 (1912).-Defendant corporation was indicted for a violation of chapter 468, Laws 1909 (reenacted by chap. 230, Laws of 1913), prohibiting discrimination in the purchase of milk, cream, or butter fat. The question of the constitutionality of the statute was certified to the supreme court. Defendant urged that the act violated the equality clause of the fourteenth amendment of the Federal Constitution, the equality clause, section 2, article 1, and sections 33 and 34,

GENERAL PRICE CUTTING AND OTHER METHODS OF INJURING COMPETITORS. In addition to the statutes above noted may be mentioned those prohibiting general price cutting or selling below the cost of production for the purpose of injuring competitors.

Idaho penalizes every person, corporation, etc., engaged in business in the State (1) "who shall enter into any contract, combination or conspiracy, or who shall give any direction or authority to do any act, for the purpose of driving out of business any other person engaged therein," or (2) "who for such purpose shall in the course of such business sell any article or product at less than its fair market value, or at a less price than it is accustomed to demand or receive therefor in any other place under like conditions."1

article 4, prohibiting special legislation, of the constitution of Minnesota. Held, that classification was a matter of legislative policy and discretion, and it was only when a classification was manifestly arbitrary that the courts would declare a statute unconstitutional; that the classification in the act in question was not an arbitrary one; and that the statute did not violate the equality provisions of either the Federal or State Constitutions, or the provisions of the latter respecting special legislation.

Standard Oil Co. of Ky. v. State, 104 Miss., 886 (1913).—In an action by the attorney general, it was alleged that the Standard Oil Co. of Kentucky offered its products for sale in different places in the State on the same day at different prices, in violation of chapter 119, section 1, of the Laws of 1908. On appeal from an order overruling the company's demurrer, it was contended that the statute was unconstitutional, being in violation of the fourteenth amendment to the Federal Constitution in that it undertook to deny to the individual the right to sell property at such prices and on such considerations as he might choose. Held, that the statutes did not violate either the State or Federal Constitutions; that the purpose of the reduction of prices was the real test; and that the statute did not deny the right to show that the reduction of prices was made not to destroy competition and to create a monopoly, but was due to local conditions or was in furtherance of any other reasonable business policy. The court, however, held that the demurrer should have been sustained on account of failure to conform to the rules of pleading. Subsequently the bill was amended, an order overruling the company's demurrer thereto was affirmed on appeal, and the case remanded for trial, the court holding, as to the contention that the alleged transactions constituted interstate commerce and therefore were subject only to the Federal laws, that the sale and distribution of a commodity, though imported from other States, after being received into the State and becoming incorporated into the general mass of property therein, constituted intrastate commerce and were subject to the State laws (65 So., 468, 1914).

State v. Drayton, 82 Nebr., 254 (1908).-Defendant, agent of the Atlas Elevator Co., was charged with discriminating between different sections of the State by selling lumber, lime, plaster, cement, and brick at a lower rate in Orchard, Nebr., than was charged in Brunswick in the same State, contrary to chapter 157, Laws of 1907 (similar to Laws 1913, chap. 117), prohibiting such discrimination in the sale of any commodity in general use. Defendant moved to quash the information. Motion sustained and State appealed. Held, that the act did not prevent any person or corporation from engaging in any lawful business, prevent legitimate competition, interfere with the due management of any business, nor prevent the sale of any commodity at any price which the owner might fix or demand; that it was not class legislation within the constitutional prohibition; that the right to enter into lawful contracts was not abridged; and that the act was within the police power of the State. Exceptions of the State sustained.

Central Lumber Co. v. South Dakota, 226 U. S., 157 (1912).—Plaintiff in error was found guilty of unfair discrimination under the laws of South Dakota, 1907, chapter 131, and was sentenced to pay a fine of $20 and costs. It was objected that the statute conflicted with the Federal Constitution as denying the equal protection of the laws, because it affected the conduct of only a particular class--those selling goods in two places in the State--and was intended for the protection of only a particular class regular established dealers and also because it unreasonably infringed the liberty of contract. Held, that the fourteenth amendment did not prohibit legislation special in character; that if a class was deemed to present a conspicuous example of what the legislature sought to prevent, it might be dealt with although otherwise not distinguishable from others not embraced in the law; that the statute extended to those who intended to become regular established dealers, and if the same degree of protection was not granted to parties making a transitory incursion into the business, it was not objectionable; and that as to the statute depriving the plaintiff in error of its liberty because forbidding a certain class of dealings, it is enough to say that as the law does not otherwise encounter the fourteenth amendment it is not to be disturbed on this ground. See also orders of Oklahoma Corporation Commission, p. 203

1 Idaho, Laws 1911, chap. 215, sec. 4,

Two other States, Nebraska and South Carolina, have adopted substantially similar laws. The statute of the latter State, however, includes "giving away" as well as selling below cost of manufacture for the purpose of financially injuring competitors and is limited in its application to persons engaged in the manufacture or sale of any article of commerce or consumption from raw material produced or mined within the State. This provision is apparently further qualified by the following:

*

Said person or corporation resorting to this method of securing a monopoly in the manufacture, refining and sale of the finished products 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, etc.

Alabama, while not adopting this form of legislation, penalizes any person or corporation which shall destroy, or attempt to destroy, competition in the manufacture or sale of a commodity.2

Mississippi, like Alabama, penalizes individuals, corporations, etc., who shall destroy, or attempt to destroy, competition in the manufacture or sale of a commodity, but adds the words "by selling or offering same at a price below the normal cost of production." 3

Tennessee prohibits any person, firm, or corporation engaged in manufacturing from giving away or selling for a less price than the cost of manufacture any manufactured article in the State, with the intent and purpose of destroying honest competition.'

Texas penalizes any member, agent, employee, officer, director, or stockholder of any business, firm, corporation or association of persons who shall with the intent or purpose of driving out competition or for the purpose of financially injuring competitors sell within the State at less than cost of manufacture or production or sell in such a way or give away within the State products for the purpose of driving out competition or financially injuring competitors, or give secret rebates on such purchase for the purpose aforesaid."

Arkansas penalizes any person or corporation engaged in the manufacture or sale of any article of commerce or consumption produced, manufactured, or mined in the State, or elsewhere, who shall, with the intent and purpose of driving out competition, or for the purpose of financially injuring competitors, sell within the State, at less than cost of manufacture or production, or sell in such a way, or give away in the State, their productions for the purpose of driving out

1 Nebraska, Comp. Stats., sec. 6302f; South Carolina, Laws 1902, No. 574, sec. 3.
Alabama, Stats., sec. 7581.

* Mississippi, Code 1906, as amended by Laws 1908, chap. 119, sec. 1.

• Tennessee, Laws 1907, chap. 86, as amended by Laws 1907, chap. 360.
Texas, Rev. Crim. Stats., 1911, art. 1471.

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