Sec. 144. Other laws not affected except as stated.-Nothing in the Act (secs. 141 to 145 of this title) shall be construed to in any way modify or amend Section 8235, Revised Laws of Oklahoma, 1910 (sec. 545, Corporation Commission Laws, 1917), (sec. 4 of title 79) or to any other law mentioned herein, except as stated herein, and as relates to questions of procedure, notice, enforcement of orders of Corporation Commission, or appeals. (Laws 1919, ch. 52, p. 87, sec. 4.) Sec. 145. Partial invalidity.-The invalidity of any section, subdivision, clause, or sentence of this Act (secs. 141 to 145 of this title) shall not in any manner effect the validity of the remaining portions thereof. (Laws 1919, ch. 52, p. 87, sec. 5.) Stat. Ann. (1937), tit. 21 Conspiracy Statutes Section 421 provides (in part) that it is illegal for two or more persons to conspire to commit any act injurious to trade or commerce. Judicial Decisions Application of the Common Law. Execution of a lease was enjoined where the lessor corporation and one allied with it controlled 52 compresses, and through such leasing arrangements were rapidly expanding their business in a number of cotton States. In considering whether a contract is in restraint of trade, it is immaterial whether it was entered into with any evil intent. The material consideration is its injurious tendency and the power thereby given to control prices. Anderson et al. v. Shawnee Compress Co. et al., 17 Okla. 231, 87 Pac. 315 (1906). In order to vitiate a contract, it is not essential that the result shall be a complete monopoly; it is sufficient if it really tends to that end and to deprive the public of the advantages derived from free competition. Id. Constitutionality of Statutes. The antitrust statute of the Territory of Oklahoma (Wilson's Statutes of 1903, c. 83) was held valid. Territory v. Long Bell Lumber Co. et al., 22 Okla. 890, 99 Pac. 911 (1908); Wagner v. Minnie Harvester Co., 25 Okla. 558, 106 Pac. 969 (1910). Title 79, sections 1 to 5 and 21 to 37 taken in connection with title 40, section 166, exempting labor from the provisions of the antitrust laws does not violate the "equal protection" or "due process clauses" of the Federal Constitution. State v. Coyle, 7 Okla. Cr. 50, 122 Pac. 243 (1912). Rehearing denied State v. Coyle, 8 Okla. Cr. 686, 130 Pac. 316 (1913). Title 79, sections 1 to 5 and 21 to 37 are not void for uncertainty, State v. Coyle, supra. The antitrust act does not embrace more than one subject in violation of Const. art. 5, sec. 57. Oklahoma Light & Power Co. v. Corporation Commission et al., 96 Okla. 19, 220 Pac. 54 (1923). Provisions for the enforcement of rates fixed by the Corporation Commission, pursuant to title 79, section 4, which as interpreted by the State courts could be tested only by disobeying the order and risking a penalty as high as $500 a day for contempt if the rate was upheld, are in violation of the Fourteenth Amendment to the Federal Constitution. Oklahoma Operating Co. v. Love, et al. (members of the corporation commission), 252 U. S. 331, 40 Sup. Ct. 338, 64 L. Ed. 596 (1920); Oklahoma Gin Co. v. Oklahoma, 252 U. S. 339, 40 Sup. Ct. 341, 64 L. Ed. 600 (1920), rev'g Oklahoma Gin Co. v. State, 63 Okla. 10, 158 Pac. 629 (1916). Article 10, section 87 (Comp. Stats. 1921), requiring accountants to hold themselves out as public accountants or auditors only after obtaining a certificate from the State was held unconstitutional (inter alia) as tending to create a monopoly. State ex rel. Short, Attorney General et al. v. Riedell et al., 109 Okla. 35, 233 Pac. 684 (1924). Application of Statutes. In General. When the territory of Oklahoma and other Indian Territories became transformed into the State of Oklahoma, section 3 of the Sherman Antitrust Act ceased to apply to commerce within the boundaries of the State. State v. Coyle, supra. The Antitrust Act of 1908 continued the Territorial Antitrust Act in force except as it conflicted with the Act of 1908. Id. In a suit to restrain defendants for maintaining a nuisance, a petition alleging that defendants became members of a combination to fix the price of lumber, coal, and grain and that defendants by controlling the distribution of such commodities in the territory thereby restricted competition, was upheld as proper grounds for relief. Territory v. Long Bell Lumber Co. et al., supra. In a suit on a note, defendant pleaded that before the machinery sold was contracted for, plaintiff had become a party to a combination in restraint of trade in farm implements and was transacting business contrary to the antitrust laws of the Territory. The plea was held good against demurrer under title 79, section 35. Wagner v. Minnie Harvester Co., supra. The mere fact that a company dealing in commodities in two similarly situated communities in this State makes a sale of such commodities at a lower price in one is not, in the absence of other evidence showing an unlawful intent, sufficient to establish a discriminatory intent to destroy competition in violation of title 79, section 81. The evident purpose of the legislature in enacting this section was twofold: (1) To prevent discrimination for the purpose of strangling or thwarting competition; (2) in the absence of competition or otherwise, to prevent discrimination in selling as between two similarly situated communities. Western Lumber Co. v. State, 17 Okla. Cr. 427, 189 Pac. 868 (1920). In stating a cause of action based on discrimination under title 79, the petition must allege acts which constitute unfair or unlawful discrimination as defined therein; the petition in this case was held not to fulfill that requirement. James et al. v. Oklahoma Natural Gas Co., 181 Okla. 54, 72 Pac. 2d 495 (1937). As to a Public Business. In a case involving an order issued by the corporation commission fixing rates to be charged by a gas company operating in a city, it was held that title 79, section 4, does not authorize the Commission to fix utility rates. Shawnee Gas & Electric Co. v. Corporation Commission of Oklahoma, 35 Okla. 454, 130 Pac. 127 (1913). This opinion, however, was criticized in narrowing the scope of section 4 in Oklahoma Light & Power Co. v. Corporation Commission et al., 96 Okla. 19 at 22 and 23, 220 Pac. 54 at 56 and 57 (1923). And, in a case involving rates fixed for a company supplying gas solely to industrial consumers, it was held that section 4 makes such an industry a public utility and subjects it to the jurisdiction and control of the corporation commission from which it cannot escape as long as it remains a public utility. Eagle-Picher Lead Co. et al. v. Henryetta Gas Co. et al., 112 Okla. 65, 239 Pac. 890 (1925). In a case involving the only ice plant in a city, the corporation commission was held to have jurisdiction to determine the necessity of regulating the price of ice. The extent of regulation under this section must be determined from the character of the business and the rights of the owner and consumers. Oklahoma Light & Power Co. v. Corporation Commission et al., supra. See also Quinton Relief Oil & Gas Co. v. Corporation Commission et al., 101 Okla. 164, 224 Pac. 156 (1924); Russell et al. v. Walker et al., 160 Okla. 145, 15 Pac. 2d 114 (1932). In determining whether a business comes within purview of title 79, section 4, consideration must be given to such factors as the character of the commodity, extent of use by the public, supply, demand, prices, etc. An ice manufacturing company was held to conform to this definition because it was the sole manufacturer and sold to all within the city. Consumers Light & Power Co. v. Phipps, 120 Okla. 223, 251 Pac. 63 (1926). Two companies were engaged in the manufacture of cement in Oklahoma. They were not charging unreasonable prices for their cement, and did not control the supply as they were in competition with 12 out-of-State manufacturers. It was held that title 79, sections 1 and 4 did not apply since the corporation commission was warranted in regulating the business of companies manufacturing products only when by reason of the nature and extent of such business, or the existence of a virtual monopoly therein, the public was forced to use commodities manufactured solely by such companies. Oklahoma Portland Cement Co. et al. v. State et al., 87 Okla. 282, 210 Pac. 1031 (1922). In a case involving a ginning monopoly, it was held that title 79, section 4, does not authorize the corporation commission to exact a fine of a corporation for violating the penal laws of the State. Planters' Cotton & Ginning Co. v. West Bros. et al., 82 Okla. 145, 198 Pac. 855 (1921). Enforcement. The power to enforce the civil provisions of the antitrust laws on behalf of the State lies entirely with the attorney general. Suits of this class cannot be brought by the county attorneys. State ex rel. Tankersley, County Attorney, v. Griffith et al., 171 Okla. 259, 42 Pac. 2d 861 (1935). In a suit brought by a minority stockholder to have a receiver appointed for a corporation in violation of Const. art. IX, sec. 41, the court held (inter alia) that under this section it had no such jurisdiction, as suits for violation of the section are enforceable only by the State and not by a private individual. Fehr. v. Black Petroleum Corporation et al., 103 Okla. 241, 229 Pac. 1048 (1924). See also State ex rel. Dabney et al. v. Carmeron & Co., Inc., 147 Okla. 1, 294 Pac. 104 (1930). B. EXCEPTIONS TO GENERAL ANTITRUST LAWS Stat. Ann. (1936), tit. 78 Sections 41 to 45, constituting the Fair Trade Act permitting the fixing by contract of resale prices of trade-marked commodities, expressly provides, section 42, that this act shall not apply to contracts or agreements between producers, between wholesalers, or between retailers. See State Price Control Legislation: Resale Price Maintenance, MARKETING LAWS SURVEY. Stat. Ann. (1936), tit. 2 Section 354 provides that no association organized under the Agricultural Cooperative Marketing Association Acts of 1917, sections 331 to 354, shall be deemed a conspiracy or combination in restraint of trade, an illegal monopoly, or an attempt to lessen competition or fix prices arbitrarily. To same effect see Stat. Ann. (Supp. 1939) tit. 2, sec. 361t, of the Agricultural Cooperative Marketing Association Act of 1937, sections 361 to 361y. See Tying Contracts and Exclusive Arrangements, infra. See also Cooperatives in projected study. Stat. Ann. (1936), tit. 40 Section 166 provides that no combination or contract agreement between two or more persons in contemplation of or in furtherance of a trade dispute shall be deemed criminal if such act committed by one person would not be punishable as a crime. Such agreement shall not be considered as in restraint of trade or commerce. Cooperatives. Judicial Decisions In a suit for damages and specific performance under title 2, sections 331 to 354 (L. 1917, c. 22, sec. 13), it was held that a cooperative marketing association cannot enforce the obligation of its members to sell through it, if it has denied them to right of withdrawing from the association. The statute having been violated, relief is denied. Oklahoma Cotton Growers Assn. v. Salyer, 114 Okla. 77, 243 Pac. 232 (1926). See also Hoover v. Oklahoma Cotton Growers Assn., 118 Okla. 238, 247 Pac. 39 (1926); Carmichael v. Oklahoma Cotton Growers Assn., 117 Okla. 24, 245 Pac. 598 (1926). 210235-40-vol. 1— 44 |