Any sale made by the retail vendor at less than 10 percent above the manufacturer's published list price, less his published discounts, where the manufacturer publishes a list price, or in the absence of such a list price, at less than 10 percent above the actual current delivered invoice or replacement cost, for the purpose or with the effect of injuring competitors or destroying competition, shall be prima facie evidence of the violation of this act: Provided, however, That no prosecution shall be had or any action at law for damages or injunctive relief shall lie where the vendor sells at a price not less than 15 percent above the manufacturer's published list price, less his published discounts, where the manufacturer publishes a list price, or in the absence of such a list price, at not less than 15 percent above the current delivered invoice or replacement cost.

Any sale made by a wholesale vendor at less than 2 percent above the manufacturer's published list price, less his published discounts, where the manufacturer publishes a list price, or in the absence of such a list price, at less than 2 percent above the actual current delivered invoice or replacement cost, for the purpose or with the effect of injuring competitors or destroying competition, shall be prima facie evidence of the violation of this act. (Ibid.)

Sec. 3976-43. Bankrupt sales.-In establishing the cost of a given article, goods, wares, or merchandise to the vendor, the invoice cost of said article, goods, wares, or merchandise purchased at a forced, bankrupt, close-out sale, or other sale outside of the ordinary channels of trade may not be used as a basis for justifying a price lower than one based upon the replacement cost as of date of said sale of said article, goods, wares, or merchandise replaced through the ordinary channels of trade, unless said article, goods, wares, or merchandise is kept separate from goods purchased in the ordinary channels of trade and unless said article, goods, wares, or merchandise is advertised and sold as merchandise purchased at a forced, bankrupt, closeout sale, or by means other than through the ordinary channels of trade, and said advertising shall state the conditions under which said goods were so purchased, and the quantity of such merchandise to be sold or offered for sale. (L. 1937.)

Sec. 3976-44.2

Sec. 3976-45. Exceptions. The provisions of sections 3976-41, 3976-42, and 3976-43 of the 1938 Supplement to Mason's Minnesota Statutes of 1927, of this act shall not apply to any sale made:

(a) In closing out in good faith the owner's stock or any part thereof for the purpose of discontinuing his trade in any such stock or commodity, and in case of the sale of seasonal goods or merchan

*Repealed, L. 1939, c. 403, sec. 7.

dise where style is the paramount feature or to the bona fide sale of perishable goods to prevent loss to the vendor by spoilage or depreciation, provided notice is given to the public thereof—

(b) When the goods are damaged or deteriorated in quality, and notice is given to the public thereof

(c) By an officer acting under the orders of any court;

(d) In an endeavor made in good faith to meet the local prices of a competitor as herein defined selling the same commodity, articles, goods, wares, or merchandise in the same locality or trade area. (L. 1937, amended L. 1939.)

Sec. 3976-46. Penalties. Any person, firm, or corporation, whether as principal, agent, officer, or director for himself, or itself, or for another person, firm, or corporation, wilfully violating the provisions of sections 3976-41, 3976-42, or 3976-43 of the 1938 Supplement to Mason's Minnesota Statutes of 1927, shall, upon conviction thereof, be fined not less than $200, nor more than $1,000, for each offense; or, in default of the payment of such fine, by imprisonment in the county jail for not less than three months nor more than one

year.

Any person who either as director, officer, or agent of any firm or corporation or as agent of any person violating the provisions of sections 3976-41, 3976-42, and 3976-43 of the 1938 Supplement to Mason's Minnesota Statutes of 1927 knowingly assists or aids, directly or indirectly, in such violation shall be responsible therefor equally with the person, firm, or corporation for whom or which he acts. (L. 1937, amended L. 1939.)

Sec. 3976-47. Who may maintain action.-(a) In addition to the penalties provided in this act, the courts of this State are hereby vested with jurisdiction to prevent and restrain violations of this act. Any person, partnership, corporation, or association damaged or who is threatened with loss or injury by reason of a violation of this act shall be entitled to sue for and have injunctive relief in any court of competent jurisdiction against any damage or threatened loss or injury by reason of a violation of this act and for the amount of the actual damage to him if any. In order to obtain such injunctive relief it shall not be necessary to allege or prove that an adequate remedy at law does not exist.

(b) A party to the record of any civil action or proceeding, instituted or brought in pursuance of the provisions of this act, may be required to testify under the provisions of Mason's Minnesota Statutes of 1927, section 9816: Provided, however, That no information so obtained may be used against the party as the basis for a criminal prosecution under the provisions of this act or any other criminal statute. (L. 1937, amended L. 1939.)

210235°-40-vol. 2-15

Sec. 3976-48. Remedies cumulative.-Nothing in this act shall be construed as repealing any act other than Laws 1921, chapter 413, and such parts of Laws 1937, chapter 116, as amended by Laws 1937, chapter 456, as are inconsistent herewith, but the remedies herein provided shall be cumulative to all other remedies provided by law. (L. 1937, amended L. 1939.)

Sec. 3976-49. Severability.-The provisions of this act are hereby declared to be severable. If one provision hereof shall be found by the decision of a court of competent jurisdiction to be invalid such decision shall not affect the validity of the other provisions of this act. (L. 1937.)

C. ANTIDISCRIMINATION LEGISLATION

1. General Prohibitory Laws

Stat. (Mason., Supp., 1940)

Sec. 3976-37. Application of act.-The following sections of this act, constituting part 1 thereof shall apply only to the manufacture, production, or distribution of any commodity, article, goods, wares, or merchandise in general use or consumption. (Mar. 30, 1937, c. 116, pt. 1, sec. 1.)

Sec. 3976-38. Discrimination unlawful.-Any person, partnership, firm, or corporation, foreign or domestic, doing business in the State of Minnesota, and engaged in the production, manufacture, distribution of any printed or mimeographed matter, commodity, article, goods, wares, or merchandise in general use or consumption, that intentionally, for the purpose of destroying the competition of any regular established dealer in such commodity, article, goods, wares, or merchandise, or to prevent the competition of any person, firm, or corporation who or which, in good faith, intends and attempts to become such dealer, shall discriminate between different sections, communities, or cities of this State by selling or furnishing such commodity, article, goods, wares, or merchandise at a lower price or rate in one section, community, or city, or any portion thereof, than such person, firm, or corporation, foreign or domestic, charges for such commodity, article, goods, wares, or merchandise in another section, community, or city, or any portion thereof, after making allowance for difference, if any, in the grade, quality, or quantity, after equalizing the distance from the point of production, manu

'Section 3976-38 is constitutional. Since the statute requires the intent to destroy competition as an element of violation, it is reasonably designed to effectuate the purpose of the legislature to prevent monopolies. Great Atlantic & Pacific Tea Co. v. Ervin, 23 Fed. Supp. 70 (1938).

facture, or distribution and freight rates therefrom, shall be guilty of unfair discrimination: Provided, That this act shall not prevent any person, firm, or corporation from, in good faith, meeting local competition within any one section, community, village, or city. The inhibition hereof against locality discrimination shall embrace any scheme of special rebates, collateral contracts, or any device of any nature whereby such discrimination is, in substance or fact, effected in violation of the spirit and intent of this act, together with all amendments thereof. (Mar. 30, 1937, c. 116, pt. 1, sec. 2.)* Sec. 3976-39. Law repealed.-Chapter 413 of the Laws of 1921, being sections 10464-7, inclusive, of Mason's Minnesota Statutes, 1927, are hereby repealed (Mar. 30, 1937, c. 116, pt. 1, sec. 3).

2. Special Prohibitory Laws

Stat. (Mason, 1927)
Petroleum

Sec. 10474. Petroleum-Discrimination between different localities prohibited.”—Any person, firm, company, association, or corporation, foreign or domestic, doing business in the State of Minnesota and engaged in the production, manufacture, or distribution of petroleum or any of its products that shall intentionally, or otherwise, for the purpose of destroying the business of a competitor or creating a monopoly in any locality, discriminate between different sections, communities or cities of this State, by selling such commodity at a lower rate in one section, community, or city than is charged for such commodity by said party in another section, community, or city after making due allowance for the difference, if any, in the test or quality and in the actual cost of transportation from the point of production, if a raw product, or from the point of manufacture, if a manufactured product, shall be deemed guilty of unfair discrimination, which is hereby prohibited and declared to be unlawful. ('07, c. 269, sec. 1.) [8980.]

Sec. 10475. Penalty.-Any person, firm, company, association, or corporation, violating any of the provisions of the preceding section, and any officer, agent, or receiver of any firm, company, association, or corporation, or any member of the same, or any indi

'For procedural and penalty provisions, see Prohibitions of Sales Below Cost, supra.

Section 10474 is constitutional as a reasonable regulation of competitive practices. The court, after considering the peculiar conditions surrounding the distribution of petroleum, held that the selection of petroleum products for regulation establishes a reasonable classification. State v. Standard Oil Co., 111 Minn 85, 126 N. W. 527 (1910).

vidual found guilty of violation thereof, shall be guilty of a gross misdemeanor and shall be fined not more than five thousand dollars, or be imprisoned in the county jail not to exceed one year, or both. ('07, c. 269, sec. 2.) [8981.]

Sec. 10476. Contracts void-Recovery.-All contracts or agreements made in violation of any provisions of the two preceding sections shall be void and any money or property paid or transferred for any such commodity under any such agreement shall be paid back within ten days after demand therefor, and on failure to so repay, then the purchasers may recover back in a civil action any such money or property, together with reasonable attorneys' fees not less than twenty-five dollars. ('07, c. 269, sec. 3.) [8982.]

Sec. 10477. Duty of county attorney.-It shall be the duty of the county attorneys in their counties and the attorney general, to enforce the provisions of the preceding sections of this act by appropriate actions in courts of competent jurisdictions. (L., 1907, ch. 269, sec. 4.) (8983)

Sec. 10478. Duty of secretary of state.—If complaint shall be made to the secretary of state that any corporation authorized to do business in this State is guilty of unfair discrimination, within the terms of this act, it shall be the duty of the secretary of state to refer the matter to the attorney general, who may, if the facts justify it in his judgment, institute proceedings in the courts against such corporation. (L. 1907, ch. 269, sec 5.) (8984.)

Sec. 10479. Revocation of permit.-If any corporation, foreign or domestic, authorized to do business in this State, is found guilty of unfair discrimination, within the terms of this act, it shall be the duty of the secretary of state to immediately revoke the permit of such corporation to do business in this state. ('07 c. 269, sec. 6.) [8985.]

Sec. 10480. Continuance in business-Ouster.-If after the revocation of its permit, such corporation or any other corporation (not having a permit and found guilty of having violated any of the provisions of this act), shall continue or attempt to do business in this State, it shall be the duty of the attorney general, by a proper suit in the name of the State of Minnesota, to oust such corporation from all business of every kind and character in said State of Minnesota. ('07 c. 269, sec. 7.) [8986.]

Procedure for revocation of license not exclusive (111-85, 126+527). Sec. 10481. Remedies cumulative.-Nothing in this act shall be construed as repealing any other act, or part of an act, but the remedies herein provided shall be cumulative to all other remedies by law. (L. 1907, ch. 269, sec. 8.) [8987.]