§ 210. Indiana.-"Every scheme, design, understanding, contract, combination in the form of a trust or otherwise, or conspiracy in restraint of trade or commerce, or to create or carry out restrictions in trade or commerce, or to deny or re prosecute such business was rare" and that it was "difficult for new parties, not familiar with it, to engage in it." The act of 1891 was, in Ford v. Chicago Milk Shippers' Assoc., supra, held to apply to a corporation formed before its passage. As to application of acts of 1891 and 1893 to foreign corporation, see Harding v. American Glucose Co., supra (182 Ill. 635; 55 N. E. 605; 64 L. R. A. 771). In Dunbar v. American Telephone, etc., Co., supra, it was held unnecessary to determine whether there was a violation of the act in case of purchase of stock of a corporation. By way of penalty for a violation of the act of 1891 by "a corporation or a company, firm or association," a fine of not less than $500 or more than $2,000 is prescribed by 3 for the first offense; so of not less than $2,000 or more than $5,000 for the second; not less than $5,000 or more than $10,000 for the third; of $15,000 for every subsequent offense, "provided that in all cases under this act either party shall have the right of trial by jury." By way of penalty for a violation of the act by an "officer or agent or receiver of any corporation, company, firm or association, or any member of any company, firm or association, or any individual," a fine of not less than $200 or more than $1,000 or imprisonment for not more than a year, or both, in the discretion of the court, is prescribed by § 4. "Any contract or agree ment in violation of any provision of the preceding sections of this act shall be absolutely void." § 5. In American Strawboard Co. v. Peoria Strawboard Co., 65 Ill. App. 502 (1896), was held not maintainable an action on a guaranty of rent due under a lease of a mill to a corporation, the whole object and design of the organization of which was to limit the production and enhance the price of the commodity in question. It appeared that such lease was a mere shift or device to evade the act; that it was not made in good faith, but was part of a device whereby, for the purpose of transferring possession under the form of a lease, the lessor was to receive under the name of a rent a bonus for permitting its plant to remain idle and to cease production. In Chicago Wall Paper Mills v. General Paper Co., 147 Fed. 491; 78 C. C. A. 607 (7th C., 1906), in an action for the price of goods sold, it was held no defense under § 5 that the seller was the exclusive sales agent of an illegal combination, it being said: "The contract thereby denounced (by § 5) as void is plainly one which directly contravenes the earlier sections; one in which the trust takes root, or by which the illicit scheme is organized. The defendant purchased the paper in the ordinary course of business. It was a stranger to the alleged unlawful combination. The sale of the merchandise had no direct relation to the prohibitions or §§ 1 and 2." Here were cited as fuse to any person or persons full participation, on equal terms with others, in any telegraphic service transmitting matter prepared or intended for public use, or to limit or reduce the production, or increase or reduce the price of merchandise or any drawing the same distinction under the Federal act, Hopkins v. U. S., 171 U. S. 578, 592; 19 Supm. 40, 45; 43 L. Ed. 290 (1898); Anderson v. U. S., 171 U. S. 604, 615; 19 Supm. 50, 54; 43 L. Ed. 300 (1898). "Any purchaser of any article or commodity from any individual, company or corporation transacting business contrary to any provision of the preceding sections of this act shall not be liable for the price or payment of such article or commodity, and may plead this act as a defense to any suit for such price or payment." § 6. For similar provisions, see under Ark. (§ 205); Iowa (§ 211); Ky. (§ 213); Mo. (§ 220); N. M. (§ 223); N. D. (§ 226). See also under Kan. (§ 212). This provision was applied in Ford v. Chicago Milk Shippers' Assoc., supra, holding not maintainable an action by a corporation composed of milk producers, to recover for milk sold. See, however, Wiley v. National Wall Paper Co., 70 Ill. App. 543 (1896). But in Lafayette Bridge Co. v. City of Streator, 105 Fed. 729 (C. C. Ill., 1900), such provision was held unavailable to a purchaser in the absence of adjudication by a competent tribunal, in a direct proceeding instituted for that purpose, determining that such seller is a trust or combination in the sense contemplated by the act, Ford v. Chicago Milk Shippers' Assoc., being distinguished on the ground that the point was not there raised. In Chicago Wall Paper Mills v. General Paper Co., 147 Fed. 491; 78 C. C. A. 607 (7th C., 1906), the provision was held unavailable where the acts constituting the illegal restriction were performed outside the State. See also as to application of § 6, Peoria Gas & Electric Co. v. Peoria, 200 U. S. 48; 26 Supm. 414; 50 L. Ed. 365 (1906). In Connolly v. Union Sewer Pipe Co., supra., such a defense under the act of 1893 was held unavailable by reason of the unconstitutionality of the statute. By 7 provision is made for the recovery of fines in an action of debt in the name of the people. In Chicago, Wilmington, etc., Coal Co. v. People, 214 Ill. 421, 447; 73 N. E. 770, 777 (1905), this was held not to preclude an indictment as a remedy against a corporation. By provisions added by L. 1893, p. 89; R. S. (Starr & Curtis' Ed., 1896), c. 38, § 107, any corporation doing business in the State is required to make oath in a prescribed form in answer to an inquiry from the secretary of State as to whether it "has all or any part of its business or interest in or with any trust, combination or association of persons or stockholders, as named in the preceding provisions of this act." For failure to comply the corporation becomes liable to a penalty of $50 a day after refusal or failure to make such oath, or to forfeiture of charter (in case of a foreign corporation, revocation of the right to do business). But no liability to any criminal commodity, natural or artificial, or to prevent competition in manufacturing, within or without this State, is hereby declared to be illegal." 11 "Every person who shall monopolize or at prosecution is to result "by reason of anything truthfully disclosed by the affidavit required by this act, or truthfully disclosed in any testimony elicited in the execution thereof." For similar provisions, see under Mo. (§ 220); Wis. (§ 235). In People ex rel. Akin v. Butler Street Foundry Co., 201 Ill. 236; 66 N. E. 349 (1903), the provisions added in 1893 were held constitutional as affording complete immunity to those required thereby to furnish evidence. Notwithstanding the general language of the requirement, the affiant is only required to take into consideration acts of the corporation while engaged in business wholly within the State, and if in connection with that business it has not been connected with any trust, etc., within the State, or otherwise violated the anti-trust legislation of Illinois, he may truthfully make the affidavit to that effect, though the corporation at the same time in its business outside the State has been connected with trusts, etc., in violation of the Federal act. Id. Nor are the provisions added in 1893 unconstitutional as an attempt on the part of the legislature to exercise judicial power, as singling out corporations as the only class upon which the act is to operate, and exempting individuals and partnerships, or because of the exemption of corporations organized under the building loan and homestead association laws. Id. Such provisions do not apply to corporations organized under such laws. See as amended by L. 1907, p. 216. By § 8 provision is made as to the duty and compensation of prosecuting officers and as to the disposition of fines. 11 Stat. (Burns' Ed., 1908), § 3866. There is here a saving of "powers, rights or privileges now existing or conferred by law." And "it shall be a good defense to any action growing out of any violation of the provisions of this act or any other act or common law relating to the subject-matter of this act, if the defendant shall plead, and by a fair preponderance of the evidence, prove that such violation is not in restraint of trade or commerce, or does not restrict trade or commerce, or limit or reduce the production, or increase or reduce the price of merchandise, or any commodity, natural or artificial, or prevent competition in manufacturing." The penalty for a violation of § 3866 or § 3867 is a fine not exceeding $5,000, to which may be added imprisonment not exceeding a year. §§ 3868, 3869 relate to restrictions upon "bidding for the letting of any contract for private. or public work." As to proceedings for violation of the act, see §§ 3870, 3873, 3874, as to obtaining evidence, §§ 3871, 3876. By § 3872 for injury to business or property by reason of doing anything forbidden or declared to be unlawful by the act, there may be recovered a penalty of threefold the damages with costs. For similar provisions, see under Cal. (§ 206); Kan. (§ tempt to monopolize, or combine or conspire with any other person or persons to monopolize any part of the trade or com 212); Mich. (§ 217); Minn. (§ 218); Miss. (§ 219); Mo. (§ 220); Neb. (§ 222); N. M. (§ 223); Ohio (§ 227); Okla. (§ 228); S. D. (§ 230); Utah (§ 233); Wis. (§ 235). As to application of word "person," see § 3875. By § 3877 the provisions of the act are cumulative. The former act (§§ 3878, et seq.) is probably unconstitutional because of the provision of § 3881 that the act "shall not apply to agricultural products or live stock while in the possession of the producer or rais er." See § 181, supra; also under Ill. (§ 209); La. (§ 214); Mich. (§ 217); Mont. (§ 221); N. C. (§ 225); N. D. (§ 226); Tenn. (§ 231); Tex. (§ 232). In Sterling Remedy Co. v. Wyckoff, 154 Ind. 437; 56 N. E. 911 (1900), the act was held not to apply to a contract entered into prior to its enactment. The act was applied in Over v. Byram Foundry Co., 37 Ind. App. 452; 77 N. E. 302; 117 Am. St. Rep. 327 (1906). By § 3889 "all arrangements, agreements, trusts or combinations, or any agreement or arrangements that are made whereby a party or corporation refuses to furnish any article or articles required to be used in the manufacture of any article or merchandise when the party or corporation can furnish the same, or by charging more than the regular and ordinary price for the same or doing or refusing to do any act or acts that would cause such party to cease to manufacture such article or hinder such person or corporation from so doing, and all arrangements, contracts or acts done or performed between any person or corporation made for the purpose of compelling any person or corporation engaged in the business of manufacturing any article of merchandise to cease manufacturing any such article, or compelling the same to close down or go out of business, is hereby declared to be against public policy, unlawful and void." Compare as to prohibitions against boycotts, under S. C. (§ 229); Tex. (§ 232). See also under Ohio (§ 227). By § 3890 provision is made for forfeiture of the charter of a domestic corporation for violation of any of the provisions of the act, and for denial to a foreign corporation of the right to do business for such violation. As to whether commencement of action is doing business, see Sterling Remedy Co. v. Wyckoff, supra. By § 3891 any violation of the provisions of the act "shall be deemed and is hereby declared to be destructive of full and free competition and a conspiracy against trade." The penalty is a fine of not less than $100 or more than $5,000, and imprisonment not less than one or more than ten years, or both such fine and imprisonment. By § 3892 any person damaged by a combination, etc., such as described in § 3889, may recover the full consideration or sum paid for any goods, etc., the sale of which is controlled by such combination. See under Kan. (§ 212); N. D. (§ 226); Okla. (§ 228); S. D. (§ 230); Tenn. (§ 231). For prohibition of restriction in express business, see §§ 3915-7. merce within this State. shall be deemed guilty of a misde § 211. Iowa.-"Any corporation organized under the laws of this or any other State or country for transacting or conducting any kind of business in this State, or any partnership, association or individual creating, entering into or becoming a member of or a party to any pool, trust, agreement, contract, combination, confederation or understanding with any other corporation, partnership, association or individual, to regulate or fix the price of any article of merchandise or commodity,13 or to fix or limit the amount or quantity of any article, commodity or merchandise to be manufactured, mined, produced or sold in this State, shall be guilty of a conspiracy.' 99 14 § 212. Kansas.-"A trust is a combination of capital, skill, or acts, by two or more persons, firms, corporations, or associations of persons, or either two or more of them, for either, 12 § 3867. 18 In Rohlf v. Kasemeier, 118 N. W. 276 (Supm. Ct. Iowa, 1908), held not to apply to a combination to fix the price of labor, in this case, of medical services. 14 Code (1897), § 5060. See Willson v. Morse, 117 Iowa, 581; 91 N. W. 823 (1902). For similar provisions, see under Ala. (§ 204); Ark. (§ 205); Ill. (§ 209); Ky. (§ 213); Minn. (§ 218); Miss. (§ 219); Mo. (§ 220); N. D. (§ 226); Okla. (§ 228); S. C. (§ 229); Utah (§ 233). §§ 5061, 5063, 5064 are to substantially the same effect as Ill. L. 1891, p. 206, §§ 2, 5, 6 respectively (§ 209). By § 5062 (as amended by L. 1907, c. 187), by way of penalty for a violation of § 5060 or § 5061, a corporation, company, firm or association shall be fined not less than $500 or more than $5,000; an officer or member thereof or an individual shall be so fined, or be imprisoned not more than a year, or both; by §§ 5065, 5066, provision is made for the forfeiture of the charter of a domestic corporation violating any of the preceding provisions; see § 5067 as to duties and compensation of prosecuting officers. As to constitutionality of §§ 5060, 5061, 5062, see Dorn v. Cooper, 117 N. W. 1 (Supm. Ct. Iowa, 1908). In Carroll v. Greenwich Ins. Co., 199 U. S. 401; 26 Supm. 66; 50 L. Ed. 246 (1905); reversing Greenwich Ins. Co. v. Carroll, 125 Fed. 121 (C. C. Iowa, 1903), was sustained § 1754 relating only to combinations affecting fire insurance. See Beechley v. Mulville, 102 Iowa, 602; 70 N. W. 107; 63 Am. St. Rep. 479 (1897), as to application of 5060 to combination to fix rates of insurance. By § 2127 pooling contracts among carriers are prohibited. L. 1907, c. 187, relates to "grain combinations." |