poration, joint-stock company, or other association engaged in the business of making sales both at retail and wholesale, such term shall be applied only to the wholesale portion of such business.

(c) The provisions of this act shall be applicable to all sales at retail made by a retailer as herein defined, and shall be applicable to any transfer for a valuable consideration made in the ordinary course of trade, or the usual prosecution of the retailer's business, of title to tangible personal property to the purchaser for consumption or use other than resale or further proceedings or manufacturing, and shall be applicable also to any transfer of such property where title is retained by the retailer as security for the payment of such purchase price.

(d) The provisions of this act shall be applicable to all sales at wholesale, and shall be applicable to any transfer for a valuable consideration made in the ordinary course of trade or in the usual prosecution of the wholesaler's business, of title to tangible personal property to the purchaser for purposes of resale or further proceedings or manufacturing, and shall be applicable also to any such transfer of property where title is retained by the seller as security for the payment of the purchase price.

Sec. 6. How cost determined.-(a) The term "cost" when applicable to the business of retailer shall mean bona fide cost and shall mean (1) the invoice cost of the article, product, or item of merchandise to the retailer or the replacement cost thereof to the retailer within thirty days prior to the date of sale, offer for sale or advertisement for sale, as the case may be, in the quantity last purchased, whichever is lower, from either of which there shall be deducted all trade discounts, except customary discounts for cash, and (2) to either of which there shall be added the following items of expense:

1. Freight charges not otherwise included in the cost of the article, product, or item of merchandise, but which freight charges shall not be construed as including cartage to retail outlet if done or paid for by the retailer;

2. A mark-up to cover, in part, the cost of doing business, which mark-up, in the absence of proof of a lesser cost, shall be seven percent of the aggregate of invoice cost or replacement cost (whichever is used), less trade discounts as aforesaid, and plus said freight charges.

(b) The term "cost" when applicable to the business of a wholesaler shall mean bona fide cost and shall mean (1) the invoice cost of the merchandise to the wholesaler, or the replacement cost of the merchandise to the wholesaler within thirty days prior to the date of sale, offer for sale, or advertisement for sale, as the case may be, in the quantity last purchased, whichever is lower, from either of which there shall be

deducted all trade discounts except customary discounts for cash and (2) to either of which there shall be added the following items of expense:

1. Freight charges not otherwise included in the cost of the article, product, or item of merchandise, but which freight charges shall not be construed as including cartage to the retail outlet if done or paid for by the wholesaler;

2. A mark-up to cover, in part, the cost of doing business, which mark-up in the absence of proof of a lesser cost, shall be two percent of the aggregate of invoice cost or replacement cost (whichever is used), less trade discounts as aforesaid, and plus said freight charges.

Sec. 7. Goods purchased at bankrupt, etc., sale.-In establishing the cost of a given article, product, or item of merchandise to the vendor, the invoice cost of any article, product, or item of 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 the date of said sale of said article, product, or item of merchandise replaced through the ordinary channels of trade, unless said article, product, or merchandise is kept separate from goods purchased in the ordinary channels of trade and unless said article, product, or item of 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.

Sec. 8. Sales exempt.-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;

(b) When the goods are damaged or deteriorated in quality or where merchandise is sold in bona fide clearance sales, and, in each case, merchandise is advertised, marked, and sold as such;

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

(d) In an endeavor in good faith to meet the legal prices of a competitor as herein defined selling the same article, product or item of merchandise, in the same locality or trade area;

(e) For charitable purposes or to relief agencies;

(f) Where merchandise is sold on contract to departments of the government or governmental institutions.

Sec. 4. Personal responsibility of director or agent.-Any per son who, either as director, officer, or agent of any firm or corporation, or as agent of any person violating the provisions of this act, assists or aids, directly or indirectly, in such violation shall be responsible there for equally with the person, firm, or corporation for whom or for which he acts.

Sec. 9. Injunctions and damage suits.-Any person, firm, partnership, corporation, joint-stock company, or trade association may maintain a proceeding to enjoin a continuance of any act or acts in violation of the provisions of this act and, if injured thereby, for the recovery of damages in the circuit court of the county wherein said act is alleged to have been or is being violated. If, in such proceeding, the court shall find that the defendant is violating or has violated any of the provisions of this act, it shall enjoin such 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.

Sec. 10. Certifications to and duty of attorney general; jurisdiction. Whenever any corporation or joint-stock company shall be convicted of, or shall be enjoined from violating any of the provisions of this act, it shall be the duty of the clerk of the court wherein said corporation or joint-stock company has been convicted or enjoined to certify said conviction or injunction decree, as the case may be, to the attorney general of this state. Upon the third conviction for the violation of this act by any corporation or jointstock company, or whenever any corporation or joint-stock company shall have been enjoined three times from violating this act, it shall be the duty of the attorney general to institute proper suits in any circuit court in this state for the forfeiture of its charter, rights, franchises, or privileges and powers exercised by such corporation or joint-stock company, and to enjoin permanently such violator from transacting business within this State; and if in such suit the court shall find that the party defendant is guilty of violating said act as aforesaid, it shall enjoin said party defendant from doing business in this state, permanently or for such time as the court, in its discretion, shall order, and if the order be for permanent injunction against the transaction of business, the court shall order the forfeiture of the charter, rights, franchises, or priveleges and powers exercised by such party defendant.

Jurisdiction is hereby vested in the circuit courts of this State to carry into effect the provisions of sections nine and ten hereof.

Sec. 11. Penalties.-Any person, firm, partnership, corporation, joint-stock company, or other association, whether as principal, agent, officer, or director, for himself, or itself, or for another person, or for any person, firm, partnership, corporation, joint-stock company, or other association, who or which 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 one thousand dollars, or by imprisonment not exceeding ninety days or by both said fine and imprisonment, in the discretion of the court.

Sec. 12. Illegal contracts.-Any contract, express or implied. made by any person, firm, partnership, corporation, joint-stock company, or other association, in violation of any of the provisions of this act, is hereby declared to be an illegal contract and no recovery thereon shall be had.

Sec. 13. Provisions severable.-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.

Sec. 14. Prima facie evidence of violation.-In any injunction proceeding or in any prosecution for a misdemeanor under the provisions of this act, proof of any advertisement, offer to sell, or sale of any merchandise by a retailer or wholesaler, at less than cost, or any advertisement of an intent to give, offer to give, or gift of any merchandise by a retailer or wholesaler, or any secret payment, allowance of rebates, refunds, commissions, or unearned discounts, whether in the form of money or otherwise, or secretly extending to certain purchasers special services or privileges not extended to all purchasers purchasing upon like terms and conditions, shall be prima facie evidence of a violation of this act, and proof of a violation of this act by any person as officer, director, or agent shall be sufficient proof of a violation of this act by the person, firm, or corporation for whom or for which he acts.

Sec. 15. Purpose and construction of act.-The Legislature declares 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.

C. ANTIDISCRIMINATION LEGISLATION

1. General Prohibitory Laws

No provisions.

2. Special Prohibitory Laws

No statutory provisions.1

'A former statute (Acts 1887, c. 63) which prohibited mining and manufacturing companies from selling merchandise to employees at a greater profit than is gained by selling to others is unconstitutional and void. The act being limited in scope is discriminatory and an unjust interference with the rights, privileges and property of both employer and employee. State v. Five Creek Coal & Coke Co., 33 W. Va. 188, 10 S. E. 288 (1889).