The opinion
Webber, J.,
Concurring
I concur in the result. In the interest primarily of emphasis, I would like to call particular attention to the tests which must be applied in determining the constitutionality of a prima facie presumption.
As the opinion of the court points out, the plaintiff here was unable to offer any direct evidence whatever of any in *408 tent on the part of the defendant to injure competitors or destroy competition. The evidence offered by the defendant that it was merely conducting an advertising sale to last not over three days remained uncontradicted and was the only evidence in the case on that issue. The plaintiff did show an advertisement to sell and sales below cost. To supply the missing but essential evidence of wrongful intent, the plaintiff relied entirely on the statutory presumption R. S., 1954, Chap. 184, Sec. 4, Subsec. Ill quoted in full in the opinion. If this presumption is valid, the plaintiff has put into the case some evidence of wrongful intent and raised a question of fact; if it is not valid, the plaintiff has failed to offer any evidence in proof of an essential element of his case.
The basic issue is then whether or not the statutory presumption survives the test of constitutionality. The test to be applied in such cases was well stated in 20 Am. Jur. 163 , Sec. 159 as follows: “A presumption cannot ordinarily be raised from some fact proved unless a rational connection exists between such fact and the ultimate fact presumed. The legislature cannot constitutionally declare one fact to be presumptive evidence of another unless this rational connection exists.” Mr. Justice Holmes in McFarland v. American Sugar Co., 241 U. S. 79 at 86 ; 36 S. Ct. 498 at 501 said: “As to the presumptions, of course the legislature may go a good way in raising one or in changing the burden of proof, but there are limits. It is ‘essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.’ ”
We are familiar with a number of prima facie presumptions created by our own statutes which upon examination will be found to pass the tests of reasonableness and to be founded on common knowledge and experience. The prima *409 facie effect of certain stated quantities of alcohol found in the blood as set forth in R. S., 1954, Chap. 22, Sec. 150 is firmly based on scientific and medical experience. In State v. Morin, 102 Me. 290 , the statute as it then existed provided in effect that payment of the United States special tax was prima facie evidence that the person paying the tax was a common seller of intoxicating liquors. The court applied the same test of reasonableness and said at page 291: “The process of reasoning, by which guilt may be inferred from this fact, is that it is probable, or, at least, more probable than otherwise, that a person would not pay a tax as a liquor dealer unless he intended to engage in that business, and that consequently it is a proper inference by induction from the fact of such payment that he is engaged in such business.” At page 292, the prima facie result is referred to as the inference which may “be ordinarily drawn therefrom.” Since the advent of state control of the sale of liquor under proper license, the provision has been altered to read as it now appears in R. S., 1954, Chap. 61, Sec. 84: “Notice of any kind in any place or resort, indicating that liquors are there unlawfully kept, sold or given away shall be held to be prima facie evidence that the person or persons displaying such notice are common sellers of liquors, and that the premises so kept by them are common nuisances.” Here again the assumed fact flows normally from the known fact and is in accord with rational probabilities and common knowledge and experience.
When, however, we apply these tests to the presumption under consideration, we are forced to a very different conclusion. One who offers for sale an item at less than cost does not ordinarily intend the destruction of competition. The mere fact that he may be engaged in vigorous but lawful competition is hardly the equivalent of a fixed purpose to create a monopoly. There are too many legitimate reasons which will explain most offerings of articles at less *410 than cost to permit the assumed wrongful intent as a probable and reasonable inference. It was exactly on this reasoning that the presumption under consideration was declared unconstitutional in Great Atlantic & Pacific Tea Co. v. Ervin, 23 Fed. Supp. 70. At page 80, the court said: “If all profitless sales of goods were always or were even usually made by merchants for the purpose of injuring their competitors so that it could truly be said that such sales had, in and of themselves, a sinister significance, we would not hesitate to say that the Legislature was within its rights in creating a presumption of sale below cost with wrongful intent. So far as we are aware, however, * * * such sales have not been regarded as indicating an intent to do evil. There are many reasons, aside from a desire to injure competitors, which might induce a merchant to make profitless sales of goods. The statute itself recognizes the right to meet local competition. A sudden necessity of paying claims of importunate creditors might furnish a reason for sales at less than cost * * *. Other similar illustrations are not wanting.” And at page 81 the court quoted McFarland v. American Sugar Co., supra when it stated: “ ‘The presumption created here has no relation in experience to general facts.’ ” Our own statutory presumption is practically identical with the one there disposed of as unconstitutional and upon the same reasoning must be held invalid.
In the case before us, the plaintiff, having failed to present any evidence whatever of wrongful intent and being deprived of any reliance upon the prima facie presumption, is not entitled to the injunctive relief which he seeks.