interest in the business of any person holding any class of retailer's license, bottler's license, wholesale dealer's license or druggist's permit. Section 23, as amended by L. 1935, Act 196, provides that it shall be unlawful for a person, unless specially authorized by the board. to hold more than one first- or second-class retailer license at the same time; or a second- and third-class retailer license contemporaneously; or a bottler's or wholesale dealer's license and a license of any other class at the same time; but a person may hold a bottler's and a wholesale dealer's license contemporaneously provided both license fees are paid. Section 27, as amended by L. 1935, Act 196, provides that no manufacturer, rectifier, bottler or wholesale dealer shall have any direct or indirect financial interest in the business of any person holding a first-, second-, or third-class retailer license or druggist's permit; nor shall holders of first-, second-, or third-class retailer licenses have any similar interest in the businesses of any of the first mentioned group. Section 71, as amended by L. 1935, H. B. 347, provides that whoever willfully violates a provision of this act for which other penalty is not prescribed, or any of the regulations adopted pursuant thereto, shall be imprisoned for not more than three months nor less than one month, or fined not more than $200 nor less than $50, or both. Section 72 provides that a sentence of imprisonment under this act, either cumulative or on failure to pay fine and costs, shall not exceed the term of three years. No provisions. 2. Public Contract Provisions 3. Anticoercive Financing Statutes No provisions. Judicial Decisions Application of Common Law. An agreement between a telephone company and its licensor whereby the former is bound not to provide service to any telegraph company without the express permission of the licensor is void as against public policy, and mandamus will lie to compel the telephone company to serve other telegraph companies where one is already being served. Commercial Union Telegraph Co. v. The New England Telegraph Co. 61 Vt. 241 (1888). II. CONTRACTS NOT TO COMPETE No statutory provisions. Judicial Decisions Application of Common Law. A contract for the sale of a medical practice, providing that the seller will not compete with the buyer in a particular locality for a certain period of time is valid. Butler v. Burleson, 16 Vt. 176 (1844); Blanchard v. Weeks, 34 Vt. 589 (1861). An agreement not to bid at a public auction for the sale of the right to support the paupers of Barre is against public policy and void. Noyes v. Day, 14 Vt. 384 (1842). III. TYING CONTRACTS AND EXCLUSIVE DEALING ARRANGEMENTS Rev. Pub. Laws (1933) Section 5930 provides that a cooperative marketing association and its members may make marketing contracts requiring members to sell all or any specified part of their products exclusively to or through the association for any period of time. Such marketing agreemei.is shall not be deemed to be in unlawful restraint of trade. See Exception to General Antitrust Laws, supra. See also Vol. Cooperatives in projected MARKETING LAWS SURVEY study. Judicial Decisions Application of Common Law. An agreement between a buyer and a seller whereby the latter in consideration of the purchase agrees not to sell his product to a competitor of the buyer in some particular locality is only in partial restraint of trade and valid. Clark v. Crosby, 37 Vt. 188 (1864). A statement contained in stock certificates issued by a cooperative association providing that their acceptance binds the stockholders to deliver produce only to it, is not ultra vires, in restraint of trade, or against public policy. Bessette v. St. Albans Cooperative Creamery Co., 107 Vt. 103, 176 Atl. 307 (1934). VIRGINIA I. TRUSTS, COMBINATIONS, AND MONOPOLIES A. GENERAL ANTITRUST LAWS CONSTITUTIONAL PROVISIONS Const. sec. 165. General assembly shall enact laws preventing all trusts, combinations, and monopolies inimical to the public welfare. The general assembly shall enact laws preventing all trusts, combinations, and monopolies, inimical to the public welfare. STATUTORY PROVISIONS Code Ann. (Michie and Sublett, 1936) Sec. 4722 (5). Definition of "person," "persons," "trust or monopoly"; a trust or monopoly unlawful and void. Whereas, section one hundred and sixty-five of the Constitution of Virginia provides that the general assembly shall enact laws preventing all trusts, combinations and monopolies inimical to the public welfare; therefore, Be it enacted by the general assembly of Virginia, That the word "person" or persons," as used in this act, includes corporations, partnerships and associations existing under or authorized by any State or territory of the United States or a foreign country. A trust or monopoly is a combination of capital, skill or acts by two or more persons, firms, partnerships, coporations or associations of persons, for any or all of the following purposes: (a) To create or carry out restrictions in trade or business. (b) To limit or reduce the production or increase of merchandise or commodities. (c) To prevent competition in manufacturing, making, transportation, sale or purchase of merchandise, produce or commodities. (d) To fix a standard or figure, whereby its price to the public or consumer is in any manner controlled or established, any article, thing, or commodity of merchandise, produce, business or commerce intended for sale, barter, use, enjoyment or consumption in this State. (e) To make, enter into, execute or carry out contracts, obligations or agreements of any kind or description by which they bind or have bound themselves not to sell, dispose of or transport any article or commodity, or an article of trade, use, merchandise, commerce or consumption below a common standard figure or fixed value, or by which they agree in any manner to keep the price of such article, commodity or transportation at a fixed or graduated figure, or by which they shall in any manner establish or settle the price of an article, commodity or transportation between them or themselves and others, so as directly or indirectly to preclude a free and unrestricted competition among themselves, purchasers or consumers in the sale or transportation of such article or commodity, or by which they agree to pool, combine or directly or indirectly unite any interests which they have connected with the sale or transportation of such article or commodity, that its price might in any manner be affected. Such trust, or monopoly, as is defined here is unlawful, against public policy and void. (1919, p. 82.) Sec. 4722 (6). Unlawful to issue or own trust certificates or to enter into a combination to limit or fix prices or lessen production or sale. It shall be unlawful for a person, partnership, association, or corporation, or any agent, to issue or own trust certificates, or for a person, partnership, association or corporation, or any agent, officer or employee thereof, or a director or stockholder of a corporation, to enter into a combination, contract or agreement with any person or persons, corporation or corporations or a stockholder or director thereof, the purpose and effect of which is to place the management or control of such combination or combinations or the manufactured product thereof, in the hands of a trustee or trustees, with the intent to limit or fix the price or lessen the production and sale of an article of commerce, use, enjoyment or consumption, or to prevent, restrict or diminish the manufacture or output of such article. A contract or agreement in violation of any provision of this act is void and not enforceable either at law or in equity. Id. Sec. 4722 (7). Foreign corporation violating provisions of act prohibited from doing business in State.-A foreign corporation or foreign association exercising any of the powers, franchises or functions of a corporation in this State violating any provision of this act shall not have the right of and shall be prohibited from doing any business in this State. Id. Sec. 4722 (8). Agreements in leases or sales which may substantially lessen competition or create a monopoly unlawful; what discriminations permitted. It shall be unlawful for any person engaged in business within this State, in the course of such business, to lease or make sale, or contract for sale, of goods, wares, merchandise, machinery, supplies, or other commodities for use, consumption or resale within this State, or to fix the price there for, or discount from, or rebate upon such prices on the agreement or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares or merchandise, machinery, supplies or other commodities of a competitor or competitors of the lessor or seller, where the effect of such lease, sale or contract for sale of such goods, wares or merchandise may be to substantially lessen competition, or to create a monopoly in any lines of business, but nothing contained in this act shall apply to discrimination in prices between purchasers of commodities on account of differences in grade, quality, or quantity (provided such differences shall be reasonable) of the commodity sold, or only to make allowance for differences in the cost of transportation or to discriminate in price in the sale of different commodities made in good faith to meet competition; nor shall it prevent persons selling goods as merchandise from selecting their own customers in bona fide transactions and not in restraint of trade. Id.2 Sec. 4722 (9). Damages and costs recoverable by person injured by reason of anything forbidden in act; limitation upon compensation of counsel.-Any person who shall be injured in his business or property by reason of anything forbidden in this act may sue therefor and recover threefold the damages by him sustained, and the costs of suit, including a reasonable fee to plaintiff's counsel, and said counsel shall in no case receive any other, further or additional compensation except that allowed by the court, and any contract to the contrary shall be null and void. Id. See note to sec. 4722 (21). Sec. 4722 (10). Final judgment or decree against defendant in prosecution or equitable proceeding by Commonwealth as evidence in suit by any other party; statute of limitations.-A final judgment or decree rendered in any criminal prosecution or proceeding in equity brought in behalf of the Commonwealth under this act to the effect that the defendant has violated the provisions of this act shall be prima facie evidence against such defendant in any suit or proceeding brought by any other party against such defendant under this act, as to the matters respecting which said judgment or decree would be an estoppel as between the parties thereto; but this 2 For further treatment of sec. 4722 (2) see Vol. State Price Control Legislation: Antidiscrimination Legislation. MARKETING LAWS SURVEY series. 210235°-40-vol. 1-54 |