they shall in any manner establish or settle the price of any article or commodity or transportation between them or themselves and others to preclude a free and unrestricted competition among themselves or others in the sale or transportation of any such article or commodity, or by which they shall agree to pool, combine, or unite any interest they may have in connection with the sale or transportation of any such article or commodity that its price might in any manner be affected.

Provided, however, That no agricultural or horticultural nonprofit cooperative association heretofore organized and incorporated or hereafter to be organized and incorporated under the laws of the State of Florida, nor the members, officers, agents, or employees thereof or any of them, as such, shall be deemed to be a trust or a combination in restraint of trade or an illegal monopoly or an attempt to lessen competition or fix prices arbitrarily, nor shall the marketing contracts or agreements between any such association and its members, or between any two or more of such associations, be deemed to be a trust, or be considered illegal or in restraint of trade. (Ch. 6933, Acts 1915, sec. 1; Ch. 10283, Acts 1925, sec. 1.)

Sec. 7945. Forfeiture of charter of domestic corporations for violations. Any corporation holding a charter under the laws of the State of Florida which shall violate any of the provisions of this Article shall thereby forfeit its charter and franchise, and its corporate existence shall cease and determine. (Ch. 6933, Acts 1915, sec. 2.)

Sec. 7946. Dissolution proceedings instituted by Attorney General, etc.-For a violation of any of the provisions of this Article by any corporation mentioned herein, it shall be the duty of the Attorney General or any State attorney, upon his own motion, and without leave or order of any court or judge, to institute suit or quo warranto proceedings for the dissolution of its corporate existence. (Id., sec. 3.)

Sec. 7947. Foreign corporation violating Article denied right to do business in State.-Every foreign corporation violating any of the provisions of this Article is hereby denied the right, and prohibited from doing any business within this State, and it shall be the duty of the Attorney General to enforce this provision by injunction, or other proper proceedings, in the name of the State of Florida. (Id., sec. 4.)

Sec. 7948. Combinations prohibited; penalty.-If any person shall be or may become engaged in any combination of capital skill, or acts by two or more persons, firms, corporations, or associations of persons, or of either two or more of them, for either, any or all of the following purposes:

1. To create or carry out restrictions in trade or commerce or aids to commerce, or to create or carry out restrictions in the full and free pursuit of any business authorized or permitted by the laws of this State.

2. To increase or reduce the price of merchandise, produce, or commodities.

3. To prevent competition in manufacture, making, transportation, sale, or purchase of merchandise, produce, or commodities, or to prevent competition in aids to commerce.

4. To fix at any standard or figure whereby its price to the public shall be in any manner controlled or established any article or commodity of merchandise, produce, or commerce intended for sale, use, or consumption in this State.

5. To make or enter into or execute or carry out any contract, obligation, or agreement of any kind or description by which they shall bind or have bound themselves not to sell, dispose of, or transport any article or commodity, or article of trade, use, merchandise, commerce, or consumption below a common standard figure, or by which they shall 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 any article or commodity or transportation between themselves and others in the sale or transportation of any such article or commodity or by which they shall agree to pool, combine, or unite any interest they may have in connection with the sale or transportation of any such article or commodity that its prices may in any manner be affected, or aid or advise in the creation or carrying out and others in the sale or transportation of any such article or commodity or by which they shall agree to pool, combine, or unite out any of the stipulations, purposes, prices, rates, directions, conditions, or orders of such combinations, shall be punished by a fine of not less than fifty dollars nor more than five thousand dollars, and by imprisonment in the penitentiary not less than one nor more than ten years, or by either such fine or imprisonment. Each day during a violation of this provision shall constitute a separate offense.

Provided, however, That no agricultural or horticultural nonprofit cooperative association heretofore organized and incorporated, or hereafter to be organized and incorporated under the laws of the State of Florida, nor the members, officers, agents, or employees thereof, or any of them, as such, shall be deemed to be a combination prohibited under the meaning of this section nor shall the marketing contracts or agreements between any such association and its members, or between any two or more of such associations, be deemed to have created a combination prohibited herein. (Ch. 6933, Acts 1915, sec. 5; Ch. 10283, Acts 1925, sec. 2.)

Sec. 7949. Sufficiency of indictment. In any indictment or information for an offense named in this Article it is sufficient to state the effects or purposes of the trust or combination, and that the accused was a member of, or acted with, or in pursuance of, it, without giving its name or description, or how, when, or where it was created. (Ch. 6933, Acts 1915, sec. 6.)

Sec. 7950. Rule of evidence.-In prosecutions under this Article it shall be sufficient to prove that a trust or combination as defined herein exists, and that the defendant or defendants belonged to it or acted for or in connection with it, without proving all members belonging to it, or providing, or producing any article of agreement or any written instrument on which it may have been based, or that it was evidenced by any written instrument at all. General reputation may be given in evidence in all prosecutions of alleged combinations under the provisions of this Article. (Id. sec. 7.)

Sec. 7951. Criminal liability of nonresident.-Persons out of the State may commit and be liable to indictment and conviction for committing any of the offenses enumerated in this Article, which do not in their commission necessarily require a personal presence in this State, the object being to reach and punish all persons offending against its provisions, whether within or without this State. (Id., sec. 8.)

Sec. 7952. Daily penalty for continued violations.-Each and every firm, person, corporation, or association of persons who shall in any manner violate any of the provisions of this Article, shall, for each and every day that such violation shall be committed or continued, forfeit and pay the sum of fifty dollars, which may be recovered in the name of the State of Florida in any county where the offense is committed, and it shall be the duty of the Attorney General and the State attorneys and county solicitors to prosecute for and recover the same. (Id., sec. 9.)

Sec. 7953. Contract in violation of Article void.-Any contract or agreement in violation of the provisions of this Article shall be absolutely void and not enforceable either in law or equity. (Id., sec. 10.)

Sec. 7954. Officers authorized to subpoena witnesses to testify as to violations; testimony of witnesses.-Any court, officer, or tribunal having jurisdiction of the offense defined in this Article, or the Attorney General or any State attorney or county solicitor or grand jury, may subpoena persons and compel their attendance as witnesses to testify as to the violation of any of the provisions of

the foregoing sections. Any person so summoned and examined shall not be liable to prosecution for any violation of said sections about which he may testify fully and without reservation. (Id., sec. 11.)

Comp. Gen. Laws Ann. (Skillman, 1927)

Discrimination

Sections 3939 to 3943 and 7871 provide that it shall be unlawful for any person selling products to discriminate as to price between different localities for the purpose of destroying the business of a competitor. See Vol. State Price Control Legislations: Antidiscrimination Legislation.

Judicial Decisions

GENERAL ANTITRUST LAWS

Application of the Common Law.

At common law the validity of an agreement in restraint of trade turns on the question of reasonableness; it is unreasonable if injurious to the public welfare. Thus in Stewart v. Stearns & Culver Lumber Co., 56 Fla. 570, 48 So. 19 (1908), a sawmill corporation employing a large number of persons leased a store, formerly used by it as a commissary for its employees, to the plaintiff, who agreed to maintain a general store and pay 5 percent of the gross receipts as rent. The lessor agreed to induce its employees to purchase from the lessee and to issue merchandise checks against employees' unpaid wages, redeemable at lessee's store. In an action for damages for breach of the agreement it was declared void as an unreasonable restraint of trade, since it gave the contracting parties power to control the available supply of commodities to a considerable portion of the local public. Monopoly or restraint need not be complete to be illegal.

Constitutionality of Statutes.

In Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934), the court stated that sections 7944 and 7954 sufficiently describe the offense, and are not so vague and indefinite as to violate the due process clause of the Fourteenth Amendment. The exemption of cooperatives does not deny equal protection of the law, since the classification is reasonable.

Application of Statutes.

In Ricon v. Crosland, 81 Fla. 574, 88 So. 380 (1921), two principal, competing fish dealers agreed to pool profits from their combined

operations. Each was to have the exclusive right to handle certain kinds of fish. Sale prices for the different kinds of fish were fixed, and in the pooling of profits, each party was allowed to deduct a fixed percentage for expenses incurred in handling. In an action for an accounting under this agreement, the defendant's demurrer was sustained. The contract was held in violation of the antitrust laws. Its obvious purpose was to lessen competition unreasonably to the injury of producers and consumers. See also Massari v. Salciccia, 102 Fla. 847, 136 So. 522 (1931), Contracts Not to Compete, infra. Sections 7944 to 7954 do not apply to fire-insurance contracts. Insurance is neither produced, consumed, manufactured, transported, nor sold within the terms of the statute. Brock v. Hardie, supra.

A warrant for the arrest of a person for violation of sections 7944 to 7954 is defective if it fails to allege that the restraint of trade was so unreasonable as to be injurious to the public welfare. Ibid.

The proper remedy to revoke the right of a foreign corporation to do business in the State because of violation of the antitrust laws is a proceeding upon an information in the nature of quo warranto, instituted by the attorney general. State ex rel. Landis v. S. H. Kress & Co., 115 Fla. 189, 155 So. 823 (1934).

B. EXCEPTIONS TO GENERAL ANTITRUST LAWS

Comp. Gen. Laws Ann. (Skillman, Supp. 1938)

Resale Price Maintenance

Sections 7100 (14) to 7100 (22) permit contracts fixing the resale price of branded commodities. The statute is expressly inapplicable to contracts between producers, between wholesalers, or between retailers. Sec. 7100 (21). See Vol. State Price Control Legislation: Resale Price Maintenance.

Comp. Gen. Laws Ann. (Skillman, 1927)
Cooperatives

Sections 7944 and 7948 provide that no agricultural or horticultural nonprofit cooperative association shall be deemed to be a combination in restraint of trade, a trust, an illegal monopoly, an attempt to lessen competition or fix prices arbitrarily, or a combination prohibited by section 7948. See General Antitrust Laws, supra.

Comp. Gen. Laws Ann. (Skillman, Supp. 1936)

Section 6489 provides that an agricultural cooperative marketing association organized under sections 6466 to 6494 or any similar association organized under any other law of this state or of any other state, shall not be deemed to be a conspiracy, a combination in un