SOUTH DAKOTA

I. TRUSTS, COMBINATIONS, AND MONOPOLIES

A. GENERAL ANTITRUST LAWS

CONSTITUTIONAL PROVISIONS

Const. art. XVII. Sec. 20. Monopolies and trusts shall never be allowed in this state and no incorporated company, copartnership, or association of persons in this state shall directly or indirectly combine or make any contract with any incorporated company, foreign or domestic, through their stockholders or the trustees or assigns of such stockholders, or with any copartnership or association of persons, or in any manner whatever to fix the prices, limit the production, or regulate the transportation of any product or commodity so as to prevent competition in such prices, production, or transportation or to establish excessive prices therefor.

The legislature shall pass laws for the enforcement of this section by adequate penalties and in the case of incorporated companies, if necessary for that purpose, may, as a penalty, declare a forfeiture of their franchises.

STATUTORY PROVISIONS

S. D. Comp. Laws (1939)

Sec. 13.1801. Unlawful trust or monopoly-Defined. Within the meaning of this chapter a trust or monopoly is a combination of capital or skill by two or more persons or groups of persons: (1) To create or carry out restrictions in trade;

(2) To limit the production or to increase or reduce the price of commodities;

(3) To prevent competition in the manufacture, transportation, sale, or purchase of merchandise, produce, or commodities; or,

(4) To fix any standard or figure whereby the price to the public shall be in any manner established or controlled.

Source: Sec. 4352 Rev. Code 1919, revised in form only to remove redundancy.

Sec. 13.1802. Production, price, competition-Unlawful influence on by single persons or combinations; penalty; forfeiture corporate rights.-It shall be unlawful for any person acting alone or persons or groups of persons acting in combination, directly or indirectly, or in any manner whatsoever, whether within or without this State or partly within and partly without this State, directly. indirectly, or otherwise to fix prices, limit production, or regulate the transportation of any product or commodity so as to obstruct, delay, or prevent competition within this State of the production, sale, purchase, distribution, or transportation of such product or commodity, or to make any combination, contract, or agreement for the purpose of doing any of said things.

Every person and group of persons and every officer, agent, or employee of any of the same whether acting as part of a trust or monopoly or singly and alone, violating any provision of this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined for the first offense not more than five thousand dollars and for any subsequent offense not more than ten thousand dollars.

Any corporation organized under the law of this State which shall violate any provision of this section shall forfeit its charter or franchise to be a corporation, and any foreign corporation authorized to do business in this State violating any provision of this section shall forfeit its right to do business in this State.

Source: Secs. 4353, 4354, 4355, 4356, 4357, and parts of secs. 4359 and 4360 Rev. Code 1919, revised and combined to remove repetition and to unite cognate subject matter.

Sec. 13.1803. Discrimination in selling-Defined.-Any person doing business in this State, and 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, shall discriminate 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 or corporation 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, shall be deemed guilty of unfair discrimination.

Sec. 13.1804. Discrimination in buying-Defined.-Any person doing business in this State and engaged in the production, manufacture, or purchase of any commodity or product in general use, who, with intent and for the purpose of destroying competition by

any regular established dealer in such commodity or product, shall discriminate between different sections, communities, or cities of this State by paying for such commodity or product a higher price in one section, community, or city than such person or corporation is at the same time paying for such commodity or product in another section, community, or city within the State, after equalizing the distance from the point of purchase and transportation charges therefrom, and the grade and quality thereof, shall be deemed guilty of unfair discrimination: Provided, however, That any person or corporation buying such commodities in more than one section, community, locality, or city, may raise prices in any given section, community, locality, or city, to but not above the prices paid by other persons or corporations buying such commodities in such section, community, locality, or city, when necessary to meet actual legitimate competition in such section, community, locality, or city, without being held to have violated the provisions of this chapter.

Source: Sec. 4366 Rev. Code 1919, revised in form only.

Sec. 13.1805. Penalty for unlawful discrimination selling or buying. Any person violating the statutes against discrimination in buying or selling shall upon conviction be fined not less than two hundred dollars nor more than ten thousand dollars for each offense. Source: Sec. 4367 Rev. Code 1919, revised in form only.

Sec. 13.1806. Fraudulently influencing market price, misdemeanor. Every person who willfully makes or publishes any false statement, spreads any false rumor, or employs any false or fraudulent means or device, with intent to affect the market price of any kind of property, is guilty of a misdemeanor.

Sec. 13.1807. Prosecution-Rights and duties of private persons, state's attorneys, attorney general.-It shall be the special duty of the state's attorney, upon the affidavit of any person showing that any person has violated any provision of this chapter, or without such affidavit, when he has reason to believe that any provision of this chapter has been or is being violated, to make complaint and cause the arrest of such person and to prosecute such action in the court having jurisdiction thereof, and it shall be the duty of such state's attorney immediately upon making such complaint to notify the attorney general thereof and it shall thereupon be the duty of the attorney general to aid in such prosecution: Provided, That the provisions of this chapter shall not be construed to prevent any person from making complaint of any violation of the provisions of this chapter to any court of competent jurisdiction, and in such case the court shall issue a warrant and proceed the same as though the state's attorney had made the complaint, and the court may also permit

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any attorney and counselor at law of this State, whom the complainant may employ, to appear and prosecute such action at any stage of the proceedings therein: Provided further, That the provisions of this section shall not be construed in any manner to prevent the attorney general of this State from making a complaint in any court of competent jurisdiction for any violation of the provisions of this chapter and prosecuting the same in the same manner and with the same powers as herein provided for state's attorneys.

Source: Sec 4358 Rev. Code 1919, revised in form only to remove redundancy.

Sec. 13.1808. Corporations-Forfeiture rights; injunctions.— Whenever any corporation doing business in this State shall violate any of the provisions of this chapter, in addition to the criminal penalties provided, it shall forfeit its charter, franchise, or right to do business within this State as the case may be and it shall be the duty of the state's attorney of any county in which jurisdiction exists and of the attorney general to prosecute an action in the name of the state by quo warranto or other proper proceeding against such offending corporation to forfeit its corporate rights of existence or doing business within this State.

In addition to or independently of the criminal penalties and forfeiture of rights of corporations as herein provided, any person interested or any state's attorney or the attorney general, in behalf of the public, may invoke the remedy of injunction against any corporation violating any of the provisions of this chapter, and any judge of the circuit court or of the supreme court may in like manner enjoin and restrain any corporation organized under the laws of this State from carrying on any manufacturing or wholesale or retail business, being conducted or carried on in this State in violation of any provision of this chapter or its spirit and intent, and all final restraining orders may be perpetual or for such period and upon such terms and conditions as the court or judge thereof shall determine. All laws, rules, and regulations relative to applications for and granting of orders of injunction in force in this State shall apply to proceedings under the provisions of this chapter so far as the same are not in conflict with the provisions of this chapter.

The order of injunction mentioned herein may be issued upon affidavit showing to the satisfaction of the court or judge thereof that such corporation has violated some provision of this chapter and may be served in the manner now provided by law for service of such orders, and in absence of the defendant may be served on the authorized agent for service of process or upon any officer or managing agent of the corporation.