of the person, company, corporation, or association damaged by such greater price, or refusal of, or failure to allow such rebate or discount, or in the name of the State at the relation of any prosecuting attorney in this State, the moneys thus collected to be paid to the person, company, corporation, or association bringing the suit; and when such suit shall be brought in the name of the State, the moneys collected shall be paid, one-fourth to the prosecuting attorney bring ing the suit and three-fourths to the permanent school fund. (Id. sec. 2.)

Sec. 14306. Venue and process.-Actions and suits under this act may be brought in any county in which the offense was committed, by action at law or suit in equity in the circuit court; and where the defendants are persons, companies, or associations, the service of summons upon such defendants in any county of this State shall be sufficient service; and where the defendant is a corporation, the service of summons upon any agent of such corporation in this State shall be a lawful service. Several offenses under this act may be joined in one action of suit. (Act April 29, 1903, sec. 3.)

Milk, Cream, and Butter

Sec. 14308. Discrimination in buying milk, cream, butter, butterfat, poultry, eggs, grain, or cottonseed.-Any person, firm, company, association, or corporation, foreign or domestic, doing business in the State of Arkansas and engaged in the business of buying milk, cream, butter, butterfat, poultry, eggs, grain, or cottonseed for the purpose of destroying or injuring the business of a competitor, shall discriminate between different sections, localities, communities, cities, or towns of this State by purchasing such commodity or commodities at a higher price or rate in one section, locality, community, city, or town than is paid for the same commodity by such person, firm, company, association, or corporation in another section, locality, community, city, or town, after making due allowance, if any, in the grade or quality of such commodity, and in the actual cost of transportation from the point of purchase to the point of manufacture, sale, or storage, shall be deemed guilty of unfair discrimination, which is hereby prohibited and declared to be unlawful, provided that the fact that any person, firm, company, association, or corporation purchases any of the above-mentioned commodities at a higher price or rate in the one section, locality, community, city, or town than is paid at the time for the same commodity by the same person, firm, company, association, or corporation in any other section, locality, community, city, or town, after making due allowance for the difference, if any, in the grade or quality and in the actual cost of

transportation from the point of purchase, sale, or storage, shall be prima facie evidence that such higher price or rate was paid for the purpose of destroying or injuring the business of a competitor, and that such person, firm, company, association, or corporation is guilty of unfair discrimination. (Sec. 1, Act 616, Acts of 1923, approved March 23, 1923.)

Sec. 14309. Penalty.-Any person, firm, company, association, or corporation who shall be convicted of unfair discrimination, as defined by this act, shall be fined for each offense not less than one thousand dollars nor more than ten thousand dollars, and in addition thereto, shall be enjoined upon the application of the State of Arkansas or any person, firm, or corporation injured by such discrimination from engaging directly or indirectly in the business of purchasing in any such commodities. (Id., Sec. 2.)

Sec. 14310. Duty of attorney general.—It is hereby made the duty of the attorney general of the State of Arkansas upon being informed that any person, firm, company, association, or corporation has been convicted of unfair discrimination as defined in this act, immediately to institute suit in the name of the State of Arkansas in any chancery court of this State where service may be had upon the defendant against such person, firm, company, association, or corporation, to enjoin such person, firm, company, association, or corporation from engaging directly or indirectly in the business of buying any such commodities, and upon proof that any such person, firm, company, association, or corporation has been convicted of unfair discrimination, the court shall issue such injunction. (Id., sec. 3.)

CALIFORNIA

REGULATION OF PRICE COMPETITION

A. RESALE PRICE MAINTENANCE

Gen. Laws (Deering, 1937), Act 8782

Sec. 1. Certain sale contracts declared lawful.-No contract relating to the sale or resale of a commodity which bears, or the label or content of which bears the trade-mark, brand, or name of the producer or owner of such commodity and which is in fair and open competition with commodities of the same general class produced by others shall be deemed in violation of any law of the state of California by reason of any of the following provisions which may be contained in such contract:

1. That the buyer will not resell such commodity except at the price stipulated by the vendor.

2. That the vendee or producer require in delivery to whom he may resell such commodity to agree that he will not, in turn, resell except at the price stipulated by such vendor or by such vendee.

Such provisions in any contract shall be deemed to contain or imply conditions that such commodity may be resold without reference to such agreement in the following cases:

1. In closing out the owners' stock for the purpose of discontinuing delivering any such commodity.

2. When the goods are damaged or deteriorated in quality, and notice is given to the public thereof.

3. By any officer acting under the orders of any court.

Sec. 12. Sales below contract price.-Wilfully and knowingly advertising, offering for sale or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provision of section 1 of this act, whether the person so advertising, offering for sale or selling is or is not a party to such contract, is unfair competition and is actionable at the suit of any person damaged thereby. (New section added by Stats. 1933, p. 793.)

Sec. 2. Exception.-This act shall not apply to any contract or agreement between producers or between wholesalers or between retailers as to sale or resale prices.

Sec. 3. Definitions.-The following terms, as used in this act, are hereby defined as follows:

"Producer" means grower, maker, baker, manufacturer, or publisher.

"Commodity" means any subject of commerce.

Sec. 4. Constitutionality.-If any provision of this act is declared unconstitutional it is the intent of the legislature that the remaining portions thereof shall not be affected but that such remaining portions remain in full force and effect.

Sec. 5. Short title.-This act may be known and cited as the "Fair trade act."

Sec. 6. Sales through vending machines.—All the provisions of this act shall extend to any commodity sold through vending equipment. If such vending equipment bears the trade-mark, brand, or name of the producer or owner of such commodity and if such commodity is in fair and open competition with commodities of the same general class produced by others. (New section added by Stats. 1937, p. 2364.)

NOTE.-Stats. 1937, ch. 843, adding the foregoing section, further provided as follows:

Sec. 2. Constitutionality.—It is hereby declared to be the intent of this Legis lature in adding section 6 to the Fair Trade Act that, if said section 6 should be held to be unconstitutional, the remainder of the act shall be unaffected thereby and shall continue in full force and effect. (Stats. 1937, p. 2364.)

Gen. Laws (Deering, 1937), Act 3796

Alcoholic Beverage Control Act

Sec. 55.5. Beverage contracts; price-fixing agreements authorized; operation of agreements; right of action for breach.-(a) No contract relating to the sale or resale of any alcoholic beverage which bears, or the label or content of which bears, the trade-mark, brand, or name of the producer or owner of such alcoholic beverage and which is in fair and open competition with alcoholic beverages of the same general class produced by others shall be deemed in violation of any law of this State by reason of any of the following provisions which may be contained in such contract:

(1) That the buyer will not resell such alcoholic beverage except at the price stipulated by the vendor;

(2) That the producer or vendee of the alcoholic beverage require, upon the sale thereof to another, that such purchaser agree that he will not, in turn, resell except at the price stipulated by such producer or vendee.

(b) Such provisions in any contract shall be deemed to contain or imply conditions that such alcoholic beverage may be resold without references to such agreement in the following cases:

(1) In closing out the owner's stock for the purpose of discontinuing delivery of any such alcoholic beverage; provided, however, that at the place of any such sale and upon the goods sold and in any advertisement in connection therewith public notice is given of the character of such sale as a "close out sale"; provided further, that such alcoholic beverage is first offered to the manufacturer or vendor thereof at the original invoice price at least ten days before it is offered for sale to the public;

(2) When the alcoholic beverage or container is damaged or deteriorated in quality, and notice is given to the public thereof at the place of any such sale and upon the goods sold and in any advertisement in connection therewith;

(3) By any officer acting under the orders of any court.

(c) Right of action for breach.-Wilfully and knowingly advertising, offering for sale, or selling any alcoholic beverage at less than the price stipulated in any contract entered into pursuant to the provisions of this section, whether the person so advertising, offering for sale, or selling is or is not a party to such contract, is unfair competition and is actionable at the suit of any person damaged thereby.

(d) This section shall not apply to any contract or agreement between producers or between wholesalers or between retailers as to sale or resale prices. (Added by Stats. 1937, p. 2173.) See also Administrative Price Control, infra.

Early History.

Judicial Decisions

Prior to the enactment of the Fair Trade Act, agreements fixing the resale price of a commodity were held enforceable against contracting retailers as reasonable restraints of trade. Grogan v. Chaffee, 156 Cal. 611, 105 Pac. 745 (1909); Ghirardelli Co. v. Hunsicker, 164 Cal. 355, 128 Pac. 1041 (1912). Such a contract is expressly permitted by the antitrust law provision permitting agreements to market commodities at a reasonable profit. Ghirardelli Co. v. Hunsicker, supra. In this case, it was held that a manufacturer could enforce a resale price agreement against a retailer who had contracted with a wholesaler to maintain the price restriction.