Sec. 94A-2-10. Establishing cost.-In establishing the cost of a given article, product, or commodity to the distributor and vendor, the invoice cost of said article, product, or commodity 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 the date of said sale of said article, product, or commodity replaced through the ordinary channels of trade, unless said article, product, or commodity is kept separate from goods purchased in the ordinary channels of trade and unless said article, product, or commodity is advertised and sold as merchandise purchased at a forced, bankrupt, close-out 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. Id. sec. 10.

94A-2-11. Proceedings-Local cost surveys as evidence.-In any injunction proceedings or in the prosecution of any person as officer, director or agent, it shall be sufficient to allege and prove the unlawful intent of the person, firm or corporation for whom or for which he acts. Where a particular trade or industry of which the person, firm or corporation complained against is a member, has an established cost survey for the locality and vicinity in which the offiense is committed, the said cost survey shall be deemed competent evidence to be used in proving the costs of the person, firm or corporation complained against within the provisions of this act. Id. sec. 11.

Sec. 94A-2-12. Exceptions. The provisions 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 the case of the sale of seasonal goods, or to the bona fide sale of perishable goods to prevent loss to the vendor by spoilage or depreciation, provided prior notice is given to the public thereof;

(b) When the goods are damaged or deteriorated in quality, and prior 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 legal prices of a competitor as herein defined selling the same article, product, or commodity in the same locality or trade area.

(e) By manufacturers, producers, brokers, or wholesale distributors meeting in good faith prices established by interstate competition regardless of cost provided such prices are available to all persons buying on like terms and conditions in the same locality and vicinity.

Any person who performs work upon, renovates, alters, or improves any personal property belonging to another person, except necessary repairs due to damage in transit, shall be construed to be a vendor within the meaning of this act. Id. sec. 12.

Sec. 94A-2-13. Contract in violation of act declared illegal.Any contract expressed or implied, made by any person in violation of any of the provisions of this act is declared to be an illegal contract and no recovery thereon shall be had. Id. sec. 13.

Sec. 94A-2-6. Directors, officers, agents.-Any person who, either as director, officer, or agent of any firm or corporation or as agent of any person, violating the provisions of this act, assist or aids, directly or indirectly, in such violation shall be responsible therefor equally with the person, firm, or corporation for whom or for which he acts. Id. sec. 6.

Sec. 94A-2-14. Injunctive relief.-Any person, municipal, or other public corporation or the State of Utah may maintain an action to enjoin a continuance of any act or acts in violation of this act, and, if injured thereby, for the recovery of damages. If, in such action, the court shall find that the defendant is violating or has violated any of the provisions of this act, it shall enjoin the defendant from a continuance thereof. It shall not be necessary that actual damages to the plaintiff be alleged or proved. In addition to such injunctive relief, the plaintiff in said action shall be entitled to recover from the defendant three times the amount of the actual damages, if any. sustained.

Any defendant in an action brought under the provisions of this section may be required to testify, and the books and records of any such defendant may be brought into court and introduced, by refer ence, into evidence: Provided, however, that no information so obtained may be used against the defendant as a basis for a misdemeanor prosecution under the provisions of this act. Id. sec. 14.

Sec. 94A-2-15. Penalties.-Any person, whether as principal, agent, officer, or director, for himself, or itself, or for another person. who shall violate any of the provisions of this act, is guilty of a misdemeanor for each single violation and upon conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than two hundred and ninety-nine dollars, or by imprisonment not exceeding six months or by both said fine and imprisonment, in the discretion of the court. Id. sec. 15.

Sec. 94A-2-16. Invalidity of part.-If any section, sentence, clause, or phrase of this act is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of the act. The legislature hereby declares that it would

have passed this act, and each section, sentence, clause, or phrase thereof; irrespective of the fact that any one or more other sections, sentences, clauses, or phrases be declared unconstitutional. Id. sec. 16. Sec. 94A-2-17. Purpose of act.-The legislature declared that the purpose of this act is to safeguard the public against the creation or perpetuation of monopolies and to foster and encourage competition, by prohibiting unfair and discriminatory practices by which fair and honest competition is destroyed or prevented. This act shall be liberally construed that its beneficial purposes may be subserved. Id. sec. 17.

Sec. 94A-2-18. Different activities of person considered separate entities. For the purposes of this act, manufacturing, jobbing, wholesaling, and retailing activities of a person shall be considered separate and distinct entities of business in establishing and determining cost of any article, product, or commodity. Id. sec. 18.

Sec. 94A-2-19. Inconsistent acts repealed. All other acts and parts of acts in conflict herewith are repealed. Id. sec. 19.

C. ANTIDISCRIMINATION LEGISLATION

1. General Prohibitory Laws

Rev. Stat. Ann. (Supp. 1939)

Sec. 94A-2-3. Price discrimination.-(a) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the State of Utah and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the different methods or quantities in which such commodities are to such purchasers sold or delivered, and Provided further, That nothing herein contained. shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide trans

For penal and procedural provisions see Unfair Practices Act: Prohibition of Sales Below Cost, supra.

actions and not in restraint of trade, and Provided further, That nothing herein contained shall prevent price changes from time to time where in response to changing conditions affecting the market for or the marketability of the goods concerned, such as, but not limited to, actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.

(b) Upon proof being made, at any suit on a complaint under this section, that there has been discrimination in price or services or facilities furnished or in payment for services or facilities to be rendered, the burden of rebutting the prima facie case thus made by showing justification shall be upon the person charged with a violation of this section: Provided, however, that nothing herein contained shall prevent a seller rebutting the prima facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.

(c) That it shall be unlawful for any person engaged in commerce in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for and not exceeding the actual cost of such services rendered in connection with the sale or purchase of goods, wares, or merchandise.

(d) That it shall be unlawful for any person engaged in commerce to pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products, or commodities manufactured, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities.

(e) That it shall be unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing, handling, sale or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms.

(f) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or re

ceive a discrimination in price which is prohibited by this section. (L. 1937, c. 21, sec. 3.)

Rev. Stat. Ann. (1933)

Sec. 103-55-2. Unfair Competition.-Every person, engaged in the production, manufacture, or distribution of any commodity in general use, who intentionally for the purpose of destroying the competition of any regular, established dealer in such commodity, or to prevent the competition of any person who in good faith intends and attempts to become such dealer, discriminates between different sections, communities, or cities of this State by selling such commodity at a lower rate in one section, community or city, or any portion thereof, than such person charges for such commodity in another section, community or city, after equalizing the distance from the point of production, manufacture or distribution, and freight rates therefrom, is guilty of unfair discrimination. (C. L. '17, sec. 8333.)

Sec. 103-55-3. Attorney general to prosecute.-If complaint is made to the attorney general that any corporation is guilty of unfair discrimination as defined by the preceding section, he shall investigate such complaint, and for that purpose he may subpoena witnesses, administer oaths, take testimony, and require the production of books or other documents, and, if in his opinion sufficient grounds exist therefor, he may prosecute an action in the name of the State in the proper court to annul the charter or revoke the license of such corporation, as the case may be, and to permanently enjoin such corporation from doing business in this State, and, if in such action the court shall find that such corporation is guilty of unfair discrimination as defined by the preceding section, such court shall annul the charter or revoke the license of such corporation, and may permanently enjoin it from transacting business in this State. (C. L. '17, sec. 8334.)

Sec. 103-55-4. Penalty.-Any person, firm, or corporation violating any of the foregoing provisions of this chapter shall be fined not less than $100, nor more than $3,000 for each offense. (C. L. '17, sec. 8335.)

2. Special Prohibitory Laws

Rev. Stat. Ann. (1933)
Milk

Sec. 103-55-5. Milk, cream, and butterfat.-Any person doing business in this State and engaged in the business of buying milk, cream, or butterfat for the purpose of sale or storage, who, for the purpose of creating a monopoly or destroying the business of a com