foreign or domestic, engaged in the business of selling gasoline within the state and who is selling such commodity in more than one (1) section, community, town, village or city of the state, who with the intent to suppress competition or create a monopoly, shall discriminate by direct or indirect methods betwen different sections, communities, towns, villages or cities of this state by selling gasoline at a lower rate in one section, community, town, village or city, or any portion thereof, then [than] such person, firm, company, association or corporation shall charge for the same in another section, community, town, village, or city, after making due allowance, if any, in the grade or quality and the cost of transportation from the refinery, shall be deemed guilty of unfair discrimination which hereby is prohibited and declared unlawful. (L. 1933, ch. 317, sec. 1, p. 491.)

Compiler's note: The bracketed word “than" was inserted by the secretary of

state.

Sec. 55-1710. Unfair discrimination between purchasers in same section of state prohibited. Any person, firm, company, association, or corporation, foreign or domestic, engaged in the business of selling gasoline who, with the intent to suppress competition or create a monopoly, shall discriminate by direct or indirect methods. in the sale of gasoline at wholesale as hereinafter defined between purchasers in any section, community, town, village, or city in this State, shall be deemed guilty of unfair discrimination which hereby is prohibited and declared unlawful; and provided, that the sale or consignment of gasoline in quantities of fifty (50) gallons or more at a time to a purchaser shall be deemed to be selling at wholesale. (L. 1933, ch. 317, sec. 2, p. 491.)

Sec. 55-1711. Unfair competition by price-fixing agreements.Any person, firm, company, association, or corporation, foreign or domestic, engaged in the business of selling gasoline within this State, who, with the intent to suppress competition or create a monopoly, makes or carries into effect any contract, understanding or agreement with any person, corporation, partnership, or association of persons in this State to fix prices with respect to the sale or distribution of gasoline so as to prevent or obstruct competition in the purchase, sale, or distribution of gasoline shall be deemed guilty of unfair discrimination, which is hereby prohibited and hereby is declared unlawful. (L. 1933, ch. 317, sec. 3, p. 491.)

Sec. 55-1712. Agreements void.-All contracts or agreements made in violation of any of the provisions of sections 55-1709 to 55-1713, inclusive, Oregon Code, 1935 Supplement, shall be void. (L. 1933, c. 317, sec. 4; as amended by L. 1939, c. 85.)

Sec. 55-1713. Penalty.-Any person, firm, company, association, or corporation, or any officer, agent or receiver thereof that shall vio

late any of the provisions of sections 55-1709 to 55-1713, inclusive, Oregon Code, 1935 Supplement, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500, nor more than $5,000, or be imprisoned in the county jail not exceeding one year or be punished by both such fine and imprisonment. (L. 1933, c. 317, sec. 5; as amended by L. 1939, c. 85.)

PENNSYLVANIA

REGULATION OF PRICE COMPETITION

A. RESALE PRICE MAINTENANCE

Stat. Ann. (Purdon, Supp. 1938), tit. 73

Sec. 7. Contracts for sale of goods bearing a trade-mark; exceptions. 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 the 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 Pennsylvania by reason of any of the following provisions which may be contained in such contract:

(a) That the buyer will not resell such commodity, except at the price stipulated by the vendor.

(b) 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 such vendee.

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

(a) In closing out the owner's stock for the purpose of discontinuing delivering any such commodity.

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

(c) By any officer acting under orders of any court or in the execution of any writ or distress. (1935, June 5, P. L. 266, sec. 1.)

Section 6 provided that the act should become effective immediately upon its final enactment.

Sec. 8. Unfair competition, defined.-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 provisions of section one of this act, whether the person so advertising, offering for sale, or selling is or is not a party to such con tract, is unfair competition and is actionable at the suit of any person damaged thereby. (1935, June 5, P. L. 266, sec. 2.)

Sec. 9. Parties excepted from provisions of the act.-This act shall not apply to any contract or agreement between wholesalers or between producers or between retailers as to sale or resale prices. (1935, June 5, P. L. 266, sec. 3.)

Sec. 10. Definitions.-The following terms as used in this act are defined as follows:

"Producer" means grower, baker, maker, manufacturer, or pub

lisher.

"Commodity" means any subject of commerce. (1935, June 5, P. L. 266, sec. 4.)

Sec. 11. Constitutional provision.-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 shall remain in full force and effect. (1935, June 5, P. L. 266, sec. 5.)

Judicial Decisions

Constitutionality of the Act.

The Fair Trade Act is constitutional. The classification of trademarked commodities as distinguished from unidentified products is reasonable. The primary purpose of the statute is to protect the goodwill of the producer, and as only vendees with notice of the restriction at time of purchase are bound, the act is not an unlawful delegation of power to private persons to control the property of another. Shryock v. Ass'n of United Fraternal Buyers, Inc. (Comm. Pleas, June 1, 1938), 3 CCH 25150; rev'd on other grounds, 135 Sup. Ct. 428, 5 Atl. (2d) 581 (1939).

Application of the Act.

Type of Price Established.

A producer may clearly adopt any price restriction, reasonable or not, as an appropriate means of protecting its goodwill. Where plaintiff established one price for perfume for one ounce or less,

1 Section 7, ante.

defendant, selling a lesser quantity for a lower price, is violating the statute. Lentheric, Inc., v. F. W. Woolworth Co. (Comm. Pleas. June 19, 1939), 3 CCH 25275.

Cooperatives.

In Shryock v. Ass'n of United Fraternal Buyers, Inc., supra, the defendant alleged that it is a corporation engaged in purchasing commodities at trade discounts, credits, and allowances and in selling these commodities at less than retail prices to its stockholders and affiliated fraternal organizations. The court found that the defendant had sold a price-fixed commodity at cut prices to a member of the general public and stated that the defendant would be bound. other factors being present.

Indirect Price Cutting.

The defendant in making sales, issued only on request, trading stamps redeemable in merchandise, one stamp for each 10-cent purchase. The trading stamps were not redeemable until a book of 990 stamps had been collected. A separate trading-stamp corporation under contract with defendant redeemed each book of stamps for an article priced at $1.75 at retail. The court held that the issuance of such stamps upon request in connection with the sale of commodities subject to a resale price restriction is not a violation of the Fair Trade Act. Bristol-Myers Co. v. Lit Bros., 335 Pa. 406, 6 Atl. (2d) 843 (1939), aff'g 33 D. & C. 52 (1938). The court stated that issuance of such trading stamps was not a price-cutting device but merely an additional benefit to the customer, given in order to induce further purchases. The court further stated that the added benefit to the customer was so minute, under the "de minimis" doctrine, a court of equity would not inflict severe penalties for a trifling infraction.

In Bristol-Myers Co. v. Soble et al., D. & C. (Comm. Pleas Jan. 7, 1938), 106 CCH, par. 25114, the court held that the issuance of profit-sharing coupons in connection with the sale of commodities at minimum prices established under a resale price contract, was a violation of the statute. The court distinguished the case of BristolMyers Co. v. Lit Bros., supra, in that in the latter case, the trading stamps constituted little, if any, value.

Defenses

It is not necessary for plaintiff to prosecute all violators simultaneously. Reasonable diligence to enforce the price restriction, in the absence of discrimination and bad faith is sufficient. Lentheric, Inc., v. F. W. Woolworth Co., supra.