demnity for the loss of property seems to be more general than concern with life insurance.

An examination of the statutes collected with emphasis upon chronology gives prominence to the interesting fact that legislation of a particular type seems to run its course in the period of about a decade. A few statutes are likely to be found before the critical period and a scattering few afterward, but nearly every type of statute has a fashionable era, and the length of that era is seldom more than 2 years away from 10 years on either side. This observation can be confirmed to a considerable degree by a comparison of the specific fields here outlined.

Irregular as is the pattern of antitrust legislation among the States, some fairly definite geographical tendencies appear. An examination of the cases would seem to indicate that Texas has been the most aggressive in the enforcement of antitrust policies, with Missouri and Illinois probably following in the order named. Legislators have been particularly active in about one-third of the States, and, roughly speaking, this activity centers in the States intersected by any of the meridians from the ninetieth to the one hundredth. This is related to the fact that among antitrust laws directed expressly at specific activity, livestock, grain, and more or less related farm products form probably the most prominent group of subjects. Although most of these laws are not recent, they partake in large part of one aspect of a modern trend-solicitude for the producer as against the organized distributor and to some extent the unorganized distributor against the more organized. During the period from 1913 to 1921, however, solicitude for the consumer due to the high cost of living was manifest. Statutes were accordingly passed, first chiefly against the destruction of food and then against the storing of food with a view to affecting prices. Several States accordingly provided for limiting the period which food might be stored and for administrative remedies in case of excessively long storage.

After the Ohio statute of 1867 forbidding railroads to hold interest in grain elevators which has already been mentioned, the States in the region from Illinois to Montana and from Kansas to Minnesota all enacted legislation with antitrust aspects, specifically relating in whole or in part to grain. In mass the unsystematic and fragmentary character of this legislation is its most prominent feature.

Illinois came out against future dealings and corners in 1874 by a law which was not amended so as to put transactions on the continually operating and growing board of trade clearly on a legal basis

47 Wis., Ill., Tenn., Miss., Minn., Iowa, Mo., Ark., La., N. Dak., S. Dak., Nebr., Kans., Okla., Tex. 48 Ante, p. LIII.

51

until 1913. 49 Nebraska directed its attention to pooling by dealers in 1887,50 and several other States have since specifically legislated against that practice. As has been previously mentioned, in 1890 South Dakota directed its fire against combination between railroads and warehousemen to consign grain to a public warehouse without the consent of the owner, and similar legislation was passed in Oklahoma and Wisconsin at intervals during the next 15 years. The latest concern, on the whole, has been with reference to discrimination in the operation or administration of exchanges, the legislative design being to keep the public markets open to all. While no State has anything like comprehensive legislation covering the majority of the points suggested by a perusal of the materials collected in this volume with the requisite attention to local dealers, elevators, transportation companies, and central markets, Nebraska seems to have made the most persistent efforts to deal with the more troublesome aspects. The antipooling legislation of 1887 was followed after 10 years by a law directed at combination between dealers and elevators boycotting nonmembers, and the subject of keeping exchanges open was attacked in 1919.53

52

This last date is of course close to the Federal Packers and Stockyards Act of 1921,54 thus supporting another illustration of the fairly consistent way in which Federal legislation finds earlier prototypes in the States. The closely related subject of livestock exchanges was dealt with in several other States about the same time. Oregon directed its attention to the preservation of competitive bidding in 1919.55 The Kansas Stock Yards Act was passed in 1920, and the following year Minnesota and South Dakota adopted legislation directed at keeping the exchanges open to all qualified persons without discrimination. For some reason not apparent from the bare record, Indiana got around to legislating against division of territory by buyers of livestock in 1935.56 A few early statutes specifically refer to livestock, but in the nineteenth century reliance was chiefly upon the general antitrust laws. Prominence was given to the meat packers in the debate leading to the enactment of the Sherman Act and the general antitrust laws so commonly enacted within a few years before or after that time, particularly in the cattle-raising sections of the

49

Ill. Rev. Stat. (Smith-Hurd), c. 38, sec. 328 (L. 1913, p. 256, amending L. 1874, sec. 130).

Neb. Comp. Stat. (1929), c. 28, art. 11 (d) (L. 1887, c. 114).

61 Ante, p. LIII.

52

Neb. Comp. Stat. (1929), c. 59, art. 2 (L. 1897, c. 80).

54

Neb. Comp. Stat. (1929), c. 59, art. 9 (L. 1919, c. 233).

42 Stat. 159 (1921) (7 U. S. C. A. (1939), secs. 181-183).

Ore. Code Ann. (1930), sec. 14-869 (L. 1919, c. 33).

14 Ind. Stat. Ann. (Burns, Supp. 1938), sec. 42-921 (Acts 1935, c. 203, sec. 12).

country, were doubtless relied upon to meet the problem of the packing

trust.

The modern dairy business, particularly in milk and cream as distinguished from butter and cheese, is primarily a development of the World War. The great demand for condensed milk built up volume of business, and improvement in refrigeration and transportation extended the so-called milk sheds. It is well known that during and since the bottom of the great depression, extensive regulation of milk production and distribution has been organized in several States. Much economic regimentation is carried on under the guise of health regulation, but also statutes frankly directed at economic regulation have been upheld and applied. From 1917 to 1925, however, the period of greatest activity in the field of antitrust laws affecting the dairy industry specifically, the greatest attention was paid to local price discrimination.

Local price discrimination tending toward monopoly is the subject matter of section 2 of the Federal Clayton Act of 1914. This had precursers in the States as early as 1902,57 but the Iowa law of 1909 58 was the only pre-war legislation specifically directed at dairy products. After 1925 the emphasis shifts from antimonopoly to legislation against "unfair" discrimination condemned in the Mississippi statute of 1928 59 or unfair competition in buying milk and cream in the Nebraska law of 1931.60

Legislation relating to farm products in general is, of course, not clearly to be differentiated from legislation affecting the more specific activities discussed. Statutes in several States relates to farm products in general. Idaho in 1917 61 and Louisiana in 1936 62 legislated against combinations in this field. These States are not, however, exceptions to the practically universal agreement that farmers' cooperatives are not combinations in violation of general or special antitrust laws and that exclusive dealing contracts by them shall not be regarded as violating the antitrust laws or other policies of the States. A larger number of States have been concerned with various aspects of price discrimination affecting farm products. The measures adopted vary

"S. C. Code (1932), sec. 6624 (S. C. Acts 1902, No. 574, sec. 3), relates to sales below cost, but seems closely related. The corresponding price discrimination statute is S. C. Code (1932). secs. 6626-6633 (S. C. Stat. (1909) XVI, No. 7). 58 L. 1909, c. 222 (Iowa Code (1935), c. 432, secs. 9885-9886). Grain was equally within the scope of this act.

59

Miss. Code Ann. (1930), secs. 4291-4293 (L. 1928, c. 296, sec. 16). This statute still refers, however, for tests of unfairness to the purpose of destroying the business of a competitor or creating a monopoly.

Neb. Comp. Stat. (Supp. 1937), c. 59, art. 10, sec. 59-1001 (L. 1931, c. 7). The test here relates to the tendency to injure those buying or manufacturing or to create a monopoly.

61 Idaho Code Ann. (1932) secs. 22-1201, 22-1206 (L. 1917. c. 23).

62

La. Gen. Stat. Ann. (1939) sec. 4957.1 (Acts 1936, No. 136).

64

from that of the Idaho Act of 1917 63 which prohibits local discrimination without the qualifying references to tendency or effect to be found in section 2 of the Clayton Act, to that of the Utah Act of 1939 which specifically undertook to guard agricultural producers against discrimination by buyers. In the meantime, Nebraska 65 and Missouri had passed statutes against discrimination in the membership or operation of exchanges for farm products in general analogous to the legislation previously mentioned concerning livestock or grain exchanges. In 1925 Tennessee provided, at least on paper, for administrative control against price enhancement."7

66

Overlapping the legislation relating to various types of farm products are the laws particularly directed at the necessities of life. The West Virginia act of 1917 against storing with a view to cornering the market was expressed in terms of necessities rather than in terms. of foodstuffs.68 Some of the provisions of the Federal war-time Lever Act 69 with a like orientation were, in substance, re-enacted in Maine in 1919.70 In the absence of a general antitrust law, Connecticut in 1911 passed a statute against combinations to increase the price or limit the production of coal, ice, or the necessities of life."1

Other specific references to the coal business seem to have been in the nineties. In 1893 Nebraska came out against pooling and pricefixing by coal and lumber dealers.72 In 1897 Tennessee expressed a particular policy against agreements to raise the price or limit the production of coal. A West Virginia statute of 1895 against railroads trading in coal seems 74 more closely related to the commodity clause of the next decade.

73

Legislation in several States directed against commission merchants seems to have been confined to a decade commencing in 1913. They were legislatively attacked for price fixing combinations rather than for discrimination.

While the petroleum business has frequently been specifically noticed, reliance has been apparently placed chiefly upon the general antitrust laws for such degree of restraint of concerted activities as

63 Idaho Code Ann. (1932), secs. 22-1201, 22-1206 (L. 1917, c. 23).

64 L. 1939, c. 10, sec. 6.

Neb. Comp. Stat. (1929) c. 59, art. 9 (L. 1919, c. 233).

Mo. Stat. Ann. (1932) c. 87, art. 26, secs. 12727-12728, pp. 525-526 (L. 1921, p. 580, secs. 3 and 4).

Tenn. Code Ann. (Michie, 1938), sec. 5891 (Pub. Acts 1925, c. 49).

"W. Va. Code Ann. (Michie and Sublett, 1937), sec. 6112 (Acts 2d Ex. Sess. 1917, c. 14).

Litigation centered around the drastic provisions of sec. 4. 40 Stat. 276, 277 (1917) (in force only during the World War).

TO Me. Rev. Stat. (1930), c. 138, sec. 31 (L. 1919, c. 256 (spec. sess.)).

"Conn. Gen. Stat. (1930), sec. 6352 (Pub. Acts 1911. c. 185).

72

Neb. Comp. Stat. (1929), c. 59, art. 4 (L. 1893, c. 49).

Tenn. Code Ann. (Michie, 1938), sec. 5888 (L. 1897, c. 93).

W. Va. Code Ann. (Michie and Sublett, 1937), sec. 3101 (L. 1895, c. 16).

75

has existed. A New Mexico statute in 1899 directed against the oil trust by an attempt to control dealers through licensing was declared unconstitutional because a license fee was held to be an undue burden on interstate commerce.76 The law was amended in 1905 to eliminate this objection." Three statutes against local price discrimination in petroleum products illustrate a trend in the development of formulas in that particular. The Iowa Act of 1906 78 prohibits price discrimination for the purposes of destroying the business of a competitor in any locality and creating a monopoly, the conjunctive form making the effect of the discrimination upon the market as a whole an indispensable element of the offense created by the act. The South Dakota Act of 1923 refers to the purpose of monopoly or of destroying the business of a competitor in the disjunctive, thus offering protection against individual injury where the market is unimpaired. This small variation in form might seem accidental, rather than significant, were it not reinforced by the general trend of price discrimination legislation shortly to be noticed. An Oregon statute of 1933 refers to "unfair" discrimination in the purchase or sale of gasoline, in accordance with the fashion of the time.80

82

79

The relations of pipe lines were also specifically touched in different aspects. An Oklahoma act of 1909 contains a qualified commodities clause prohibiting pipe lines to own the oil they transport unless they purchase all oil they reach without discrimination,81 and a California act of 1913 is directed against combinations between railroads and pipe lines.8: Some statutes in the current decade are limited to declarations that conservation laws with reference to petroleum are not to be taken in derogation of the antitrust laws. The Interstate Compact of 1935 enacted by several of the largest oil-producing states contains a recital that it is not for the purposes of price control.83 This seems on its face to be a disingenuous recital, a characteristic particularly prevalent in modern legislation. The most recent statutes that might be classified in the field of antitrust legislation are those providing for administrative control of production.

The subject of Government purchasing is to be covered in a projected volume of the Marketing Laws Survey. A few statutes intersecting that field are here included because of their direct relation to

75

"N. M. Stat. Ann. (Courtright, 1929), sec. 24-102 (L. 1899, c. 50).

76 In re B. G. Wilson, 10 N. Mex. 32, 60 Pac. 73 (1900).

77

N. M. Stat. Ann. (Courtright, 1929), sec. 24-109 (L. 1905, c. 125).

78 Iowa Code (1935), c. 432 (31 G. A., c. 169).

S. D. Comp. Laws (1929), secs. 7883A-7883D (L. 1923, c. 203).

Ore. Code Ann. (Supp. 1935), secs. 55-1709-55-1713 (L. 1933, c. 317).

But

reference is still made to intent to suppress competition or create a monopoly.

81

82

Okla. Stat. Ann. (1937) tit. 52, sec. 57 (L. 1909, c. 26, sec. 5).

Cal. Gen. Laws (Deering, 1937) art. 5634, sec. 1 (Stat. 1913, c. 285).

Okla. Stat. Ann. (1937) tit. 52, sec. 204, art. V (L. 1935, c. 59).