NEW MEXICO I. TRUSTS, COMBINATIONS, AND MONOPOLIES A. GENERAL ANTITRUST LAWS CONSTITUTIONAL PROVISIONS Const. (1911) art. IV, sec. 38. The legislature shall enact laws to prevent trusts, monopolies, and combinations in restraint of trade. Const. (1911) art. IV, sec. 26. The legislature shall not grant to any corporation or person, any rights, franchises, privileges, immunities, or exemptions, which shall not, upon the same terms and under like conditions, inure equally to all persons or corporations; no exclusive right, franchise, privilege, or immunity shall be granted by the legislature or any municipality in this state. STATUTORY PROVISIONS Stat. Ann. (Courtright, 1929) Sec. 117-114.-Perpetuities and monopolies are contrary to the genius of a free government and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this state.1 Sec. 35-2901. Restraints of trade.-Every contract or combination between individuals, associations, or corporations, having for its object or which shall operate to restrict trade or commerce or control the quantity, price, or exchange of any article of manufacture or product of the soil or mine, is hereby declared to be illegal. Every person, whether as individual or agent or officer or stockholder of any corporation or association, who shall make any such contract or engage in any such combination, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding one thousand dollars nor less than one hundred dollars, and by imprisonment at hard labor not exceeding one year, or until such fine has been paid. (L. '91, ch. 10, sec. 1; C. L. '97, sec. 1292; Code '15, sec. 1685.) 1 'This section is a part of the real estate law, secs. 117-101 to 117-404. 210235°-40-vol. 1-36 481 Sec. 35-2902. Monopolies.-Every person who shall monopolize or attempt to monopolize, or combine or conspire with any other person. or persons to monopolize any part of the trade or commerce of this state, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding one thousand dollars or by imprisonment not exceeding one year, or by both said punishments in the discretion of the court. (L. '91, ch. 10, sec. 2; C. L. ‘97, sec. 1293; Code '15, sec. 1686.) Sec. 35-2903. Monopolies-Restraint of trade-Liability-Contracts void. All contracts and agreements in violation of the foregoing two sections shall be void, and the person or persons, corporation or corporations, association or associations who shall violate the provisions of either of said sections shall be civilly liable to the party injured for any and all damage occasioned by such violation, and any purchaser of any commodity from any individual, corporation, or association transacting business in violation of such sections shall not be liable for the payment for such commodity. (L. '07, ch. 18, sec. 1; Code '15, sec. 1687.) Sec. 35-2904. Organizations exempted. The labor of a human being is not a commodity or article of commerce. No law against monopolies or combinations in restraint of trade shall be held or construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for purposes of mutual help, and not having capital stock or conducted for profit to the organization, or to forbid or restrain individual members of such organizations from lawfully carrying out the objects thereof; nor shall such organizations or the members thereof be held or construed to be illegal combinations or conspiracies in restraint of trade under any law against monopolies or combinations in restraint of trade: Provided, however, That nothing herein contained shall be held or construed to justify any restraint of trade or restriction of competition except such as is incident to the protection and promotion of the interests of the members of such organizations, in view of their situation and circumstances; but such organizations and their objects, and the effectuation thereof, shall prima facie be presumed to be in reasonable restraint of trade or restriction of competition. (L. '23, ch. 37, sec. 1.) Judicial Decisions Application of Statutes. Plaintiff in an arrangement to secure an exclusive agency for the sale of ground corn from the producing farmers of one county entered into an agreement to sell the corn to the defendant for a stipulated price. Plaintiff and defendant also agreed to divide equally the difference between the moneys paid to the farmers and that received from the resale of such corn. The contract was held valid, and not in violation of sections 35–2901 and 35-2902 (Code of 1915, secs. 1685, 1686). "While such a price-fixing agreement is fraudulent, it does not restrain trade, and an indictment for violation of the antitrust law is demurrable. State v. Gurley, 25 N. M. 233, 180 Pac. 288 (1919). Letters from a wholesaler to his retail customer, advising him of retail prices, territory, and the like, even though acquiesced in by the retailer, do not modify the original contract between the parties, which provides that the retailer may sell at any price he likes and anywhere he likes, nor are they repugnant to the State antitrust laws. W. T. Rawleigh Co. v. Jones et al., 39 N. M. 381, 47 Pac. (2d) 906 (1935). B. EXCEPTIONS TO GENERAL ANTITRUST LAWS Stat. Ann. (Courtright, Supp. 1938) Resale Price Maintenance Sections 145-107 to 145-112 permit the fixing by contract of resale prices of branded commodities. Section 145-109 provides that this act shall not apply to contracts between producers, between wholesalers, or between retailers as to sale or resale prices. See Vol. State Price Control Legislation: Resale Price Maintenance. Cooperatives Section 31-218 provides that cooperative marketing associations organized under sections 31-101 to 31-106 shall not be deemed monopolies, or in restraint of trade or attempts to fix prices or to create combinations or pools in violation of the laws of the state. Such associations may disseminate market information and advise members as to market conditions and selling prices. See Tying Contracts and Exclusive Dealing Arrangements, infra. Stat. Ann. (Courtright, 1929) Agricultural Marketing Associations Section 32-601 provides that persons engaged in the production of agricultural products, may organize under sections 31-201 to 31-214 to act together in associations, corporate or otherwise, with or without capital stock. Such associations and contracts shall be presumed to be in reasonable restraint of trade. See Cooperatives in projected MARKETING LAWS SURVEY study. Labor and Agricultural Organizations Section 35-2904 provides that agricultural and horticultural organizations, labor organizations, instituted for mutual self help, not having capital stock, and not operated for profit, are exempt from the antitrust laws. See General Antitrust Laws, supra. See also Cooperatives in projected study. C. SPECIAL ANTITRUST LAWS 1. Special Industry Antitrust Acts Stat. Ann. (Courtright, Supp. 1938) Sections 35-2905 to 35-2927 provide that the intent of the act is to eliminate and prevent monopolies, restraint of trade, unfair combinations, favoritism, discrimination, overbuying, or preferences in the motion-picture industry; that any contract, combination, or monopoly which prevents any competitive exhibitor from acquiring his proportionate share of such products is illegal; that it shall be unlawful for any owner of any place where motion pictures are exhibited, where competition exists, to contract for, lease, license, rent, or buy more pictures than can or will be shown in the following 12 months, or for any motion picture to be bought or supplied for a theater in competition with others with the intent that the same will not be used; and that all motion pictures acquired for such a theater shall be used within six months after same are ready for showing; that any person selling, leasing, or supplying motion pictures to exhibitors competing with each other shall distribute them proportionately among such exhibitors, i. e., first-run pictures among those contracting for firstrun pictures, second-run pictures among those contracting for them; etc.; that if two or more exhibitors desire to acquire their proportionate share of the product of any producer or distributor, the allotment shall be made by permitting each competitor to select pictures alternately from the distributor in proportion to the number of theaters owned by them; that the State Corporation Commission shall have the power to determine whether a theater is a first- or second-run theater; that whenever a group or series of pictures is announced by a distributor or producer, said announcement shall be filed with the Corporation Commission and announced simultaneously to all competitive exhibitors; after one exhibitor has purchased part of a group, the remainder cannot be sold to a competitor at a less price for a period of six months or be sold under a different playing arrangement; that |