NORTH DAKOTA

REGULATION OF PRICE COMPETITION

A. RESALE PRICE MAINTENANCE

L. 1937, c. 126

Section 1. Contracts relating to sale of trade-marked articles. 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 North Dakota 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 references to such agreement in the following cases:

1. In closing out the owners' stock for the purpose of discontinuing delivery of 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.

4. When sold for taxes or other liens.

Sec. 2. Acts deemed a violation.-Willfully 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 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. Sec. 3. 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. 4. Definitions.-The following terms, as used in this act, are hereby defined as follows:

"Producer" means grower, baker, bottler, maker, packer, converter, processor, manufacturer, or publisher.

"Commodity" means any subject of commerce.

Sec. 5. 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. 6. Title. This act may be known and cited as the "Fair Trade Act."

B. PROHIBITION OF SALES BELOW COST

No provisions.

C. ANTIDISCRIMINATION LEGISLATION

1. General Prohibitory Laws

Comp. Laws Ann. (Supp., 1925)

Sec. 3048. Discrimination prohibited. Any person, firm, association, or corporation, foreign or domestic, doing business in the State of North Dakota, and engaged in the production, manufacture, or distribution of any commodity in general use, that shall intentionally for the purpose of destroying the business of a competitor in any locality, discriminate between different sections, communities, or cities of this State, by selling, buying, bartering, or exchanging such commodity at a lower rate in one section, community, or city, than is charged for said commodity by said party in another section, community, or city, after making due allowance for the difference, if any, in the grade and 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: Provided, however, That where the same person, persons, estate, association, or corporation own or control a majority of the stock in each of two or more corporations doing business in this State, they

shall come under and be subject to the provisions of this article. (1907, ch. 260, sec. 1, as amended 1919, ch. 112, sec. 1.)

Sec. 3049. 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 individual found guilty of a violation thereof, shall be fined not less than five hundred dollars, nor more than five thousand dollars, or be imprisoned in the county jail not to exceed one year, or suffer both penalties. (1907, ch. 260, sec. 2.)

Sec. 3050. Contracts void.-All contracts or agreements made in violation of any of the provisions of the two preceding sections shall be void. (1907, ch. 260, sec. 3.)

Sec. 3051. Duty of county attorney and attorney general.—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 article by appropriate actions in courts of competent jurisdiction. (1907, ch. 260, sec. 4.)

Sec. 3052. 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 article, 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. (1907, ch. 260, sec. 5.)

Sec. 3053. Charter and rights forfeited.-If any corporation, foreign or domestic, authorized to do business in this State, is found guilty of unfair discrimination, such findings shall cause a forfeiture of all the privileges and rights conferred by the laws of this State upon corporations and shall bar its right to do business in this State. (1907, ch. 260, sec. 6.)

Sec. 3054. Duty of attorney general.—If any corporation, having been found guilty of a violation of any of the provisions of this article, shall continue or attempt to do business in this State, it shall be the duty of the attorney general by a proper action in the name of the State of North Dakota to enjoin such corporation from transacting all business of every kind and character in said State of North Dakota. (1907, ch. 260, sec. 7.)

Sec. 3055. Remedies cumulative.-Nothing in this article shall be construed as repealing any other act, or part of act, but the remedies herein provided shall be cumulative to all other remedies provided by law. (1907, ch. 260, sec. 8.)

2. Special Prohibitory Laws

Comp. Laws Ann. (Supp., 1925)

Cream Stations

Sec. 2846. Annual report of cream station; price discrimination forbidden; dairy products.-The agent or person in charge of any cream station at which cream is purchased for shipment out of the state or for shipment from the place where purchased to a point within the state, shall on July 1st of each year or within thirty days thereafter report to the dairy commissioner the name, location, and business of his employer, amount of capital stock invested in business. property or assets, liabilities, and such other information pertaining to the business and conduct of the cream station of which such agent has charge, as shall be requested in writing by the dairy commissioner. Any person, partnership, firm, corporation, or association engaged in the business of buying milk, cream or butterfat, who shall discriminate between different sections, localities, communities, villages or cities of this state by purchasing such commodity at a different price or rate in one locality than is paid for the same commodity by said person, partnership, firm, corporation, or association in another locality or section of the state after making due allowance for the difference, if any, in the actual cost of transportation from the locality of purchase to the locality of manufacture, or place of destination, shall be deemed guilty of unfair discrimination and such acts are hereby declared to be unlawful, and upon conviction thereof, shall be punished by a fine of not less than one hundred dollars or thirty days' imprisonment in the county jail, or both, for conviction of first offense and not less than two hundred fifty dollars, or ninety days' imprisonment in the county jail, or both, for each additional or subsequent offense: Provided, however, That the purchase of such commodities at a different price or rate may be made at a particular section, locality, community, village or city, to meet legitimate competition in such section, locality, community, village or city, and legitimate competition as used herein is defined to be the meeting of a price or rate paid for the same commodity by a competitor located in the same section, locality, community, village or city and engaged in the same business under the same conditions. and circumstances and operating in the same manner as the person, partnership, firm, corporation or association meeting said price. The meeting of this competition as herein defined shall not be a violation of this act. (L. 1925, ch. 127; L. 1917, ch. 104, sec. 1.)

'CONSTITUTIONALITY.-For the reasons given in Fairmont Creamery Co. v. State of Minnesota, 274 U. S. 1, 47 Sup. Ct. 506, 71 L. Ed. 893 (1927) (See Antidiscrimination Legislation: Special Prohibitory Laws, Minnesota, supra), sec. 2846 is unconstitutional. State v. North American Creamery Co., 55 N. D. 489, 214 N. W. 503 (1927).

Trade Discrimination in Grain and Dairy Products

Sec. 3043. Unfair competition.-Any person, firm, or corporation, foreign or domestic, doing business in the State of North Dakota and engaged in the production, manufacture, distribution, purchase, or selling of milk, cream, butterfat, grain or any commodity in general use that shall, 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, discriminate between different sections, communities, towns, or cities, or portions thereof, in this State, by purchasing at a higher or selling at a lower rate or price in one section, community, town or city or portion thereof, in this State, than is paid or charged by such person, firm, or corporation for such milk, cream, butterfat, grain or commodity in general use in another section, community, town, or city, or portion thereof, in this State, after making due allowance for the difference, if any, in the actual cost of transportation of such commodities, shall be guilty of unfair discrimination. (1913, ch. 287, sec. 1; 1907, ch. 258, sec. 1.)

Sec. 3044. Forfeiture of charter.-If complaint shall be made to the attorney general that any person, firm, or corporation is guilty of unfair discrimination, as defined by this article, he shall investigate the matter complained of, and for that purpose may subpoena witnesses, administer oaths, take testimony and require the production of books or other documents belonging to such person, firm or corporation, and if, in his opinion, sufficient grounds exist therefor, he shall prosecute an action in the name of the State of North Dakota, in the proper court, to annul the charter or revoke the permit or license of such person, firm or corporation, as the case may be. (1913, ch. 287, sec. 2; 1907, ch. 258, sec. 2.)

Sec. 3045. Attorney general brings action, when.-If, after the revocation of such charter in the case of a domestic corporation, or of its permit if it be a foreign corporation, any such corporation shall continue or attempt to do business within this State, it shall be the duty of the attorney general of this State by a proper action commenced in the name of the State, to oust such corporation from any and all business of any kind or character within the State of North Dakota. (1907, ch. 258, sec. 3.)

Sec. 3046. Penalty.-Any person, firm, or corporation convicted of unfair discrimination shall be fined in any sum not less than two hundred dollars nor more than three thousand dollars. (1913, ch. 287, sec. 3; 1907, ch. 258, sec. 4.)

Sec. 3047. Cumulative remedies. Nothing in this article contained shall in any manner be construed as repealing or in any man