(dissenting in part).
I would sustain the injunction only insofar as it bars defendants from picketing and handbilling on plaintiff’s private property and adjacent shopping center property and from interference with customer ingress or egress.
I.Applicability of § 553.1, The Code. The majority opinion holds the injunction was justified because defendants’ activities violated § 553.1, The Code. I do not believe § 553.1 was violated by defendants.
By its terms that provision makes it a crime to combine or agree “to regulate or fix the price * * * or to fix or limit the amount or quantity of any article, commodity, or merchandise to be * * * sold in this state”. (Italics added). No claim is made that the defendants were attempting to fix prices. Instead the majority opinion finds defendants were attempting to induce plaintiff “to enter an unlawful agreement to limit the amount and quantity of lettuce and grapes sold in this state.” The record does not support this finding.
Rather than attempting to induce plaintiff to enter an agreement to limit the amount of lettuce and grapes sold in Iowa, defendants sought to persuade plaintiff to agree to sell only a particular brand of lettuce and grapes. The majority finding is premised upon the unwarranted assumption that an effort to limit the brand of lettuce and grapes sold by plaintiff is equivalent to a limitation on the amount of lettuce and grapes which could be sold. No attempt was made by defendants to limit the quantity of lettuce and grapes sold in Iowa. Instead their attempt was to assure that the quantities sold by plaintiff were Black Eagle products.
As a criminal statute, § 553.1 must be strictly construed. Rohlf v. Kasemeier, 140 Iowa 182, 185, 118 N.W. 276, 277 (1908). An agreement by a retailer to sell a particular brand of a commodity does not constitute a limitation on the amount of the commodity which can be sold by that retailer or its competitors in the state. Such an agreement does not violate § 553.1. Reeves v. Cooperative Society, 160 Iowa 194, 201, 140 N.W. 844, 847 (1913) (“a mere selling agency is not a monopoly”); see Tucson Federal Sav. & L. Ass’n v. Aetna Inv. Corp., 74 Ariz. 163, 245 P.2d 423 (1952).
The injunction in this case cannot be upheld on the ground of violation by defendants of § 553.1.
II. Applicability of the Sherman Act. The trial court held defendants’ activities constituted an unlawful restraint of trade. The parties agree this holding was in response to plaintiff’s allegation that defendants’ activities violated the Sherman AntiTrust Act, 15 U.S.C. § 1 et seq. The majority opinion does not reach this ground because its holding is premised on the asserted violation of Iowa Code § 553.1, but I would reach the Sherman Act ground because I do not believe § 553.1 was violated.
A state court has no jurisdiction of alleged Sherman Act violations. Jurisdiction to enforce the Sherman Act lies exclusively in the federal courts. 15 U.S.C. § 4; General Investment Co. v. Lake Shore & M. S. R. Co., 260 U.S. 261, 287, 43 S.Ct. 106, 117, 67 L.Ed. 244, 260 (1922) (“This suit was brought in a state court, and in so far as its purpose was to enjoin a violation of the Sherman Anti-Trust Act that court could not entertain it.”).
The trial court lacked jurisdiction of the Sherman Act issue. The injunction cannot be sustained on that ground.
. I do not suggest a Sherman Act violation could have been found if the court did have jurisdiction. See New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 58 S.Ct. 703, 82 L.Ed. 1012 (1938).
III. Applicability of the trespass law. Plaintiff alleged and the trial court held that defendants’ activities constituted a trespass under Iowa law. We interpreted the criminal trespass statute, § 729.1, The Code, in State v. Williams, 238 N.W.2d 302 (Iowa 1976). In that case a majority of the court held § 729.1 regulates only conduct and not speech, thus distinguishing it from the situation in Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). *926In Thornhill the Supreme Court held unconstitutional on First Amendment grounds a statute which prohibited loitering without just cause or excuse about a place of business with the intent to influence or induce others not to deal with that business. Under Williams the Iowa trespass statute purports to regulate only the non-speech elements of conduct.
The record contains evidence that on at least one occasion traffic was backed up at the entrance to plaintiff’s Ingersoll store because drivers were stopping at the entrance to the premises to accept leaflets and talk with defendants. Similar activity near the door made it “inconvenient” for customers to enter the store — “There wasn’t a direct line that people could walk to the door”.
At most this activity constituted “unduly interfering with the lawful use of the property by others”, contrary to § 729.1(2)(c), insofar as it showed an unreasonable interference with customer ingress. To that extent, and to that extent only, justification existed for a limited injunction under the trespass statute.
This record is devoid of any evidence of disturbance, intimidation, harassment, violence, or disorder of any kind. Except for evidence of interference with ingress, no evidence was presented to show defendants’ conduct infringed the trespass statute in any way. Expressed “annoyance” by plaintiff’s employees and a few customers was caused by defendants’ message, not by their conduct, except as it interfered with pedestrian and vehicular ingress. Furthermore, as held in the majority opinion, the injunction was invalid in its effort to ban such “annoyance”.
I would hold the injunction valid on the trespass theory only insofar as it barred defendants from interference with customer ingress or egress.
IV. The First Amendment defense. While I agree with Justice Rees that defendants did not plead their First Amendment defense as required by the rules of civil procedure, I also agree with the special concurrence that the issue was tried by consent and is before us for review.
Defendants included the issue in the statement of issues presented for review in their appellate brief. See rule 344(a)(2), Rules of Civil Procedure. Their statement of the issue is sufficient to merit its consideration in this appeal if it was presented to and ruled on by the trial court. Schnabel v. Display Sign Service, Inc., 219 N.W.2d 546, 548 (Iowa 1974); see 2 Vestal & Willson, Iowa Practice, § 59.09 at 436; Blackburn, The Appellate Rules Amendments — Suggested Forms and Timetables, 22 Drake L.Rev. 223, 237-238 (1973). Nelson v. Leaders, 258 Iowa 919, 140 N.W.2d 921 (1966), which might be read as supporting a contrary holding, was decided under a rule of appellate procedure which has been repealed.
An issue is presented to the trial court when it is tried by consent. In this case, apart from defendants’ motions based on the constitutional defense, much of the evidence bore on the constitutional question. Plaintiff introduced evidence that some defendants consulted the Chicago office of the AFL-CIO regarding their picketing and handbilling rights. They received copies of various court decisions delineating such rights, including Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), upon which they relied.
Much of the defendants’ evidence, received without objection, sought to establish public dedication of plaintiff’s premises. Moreover, much of plaintiff’s evidence sought to establish the contrary and to show, in addition, the picketing and hand-billing could have been as well limited to the public sidewalk or parking.
On cross-examination of a defense witness concerning picketing and handbilling in the parking lot near plaintiff’s Fleur Drive store, the following occurred:
Q. Have you asked anyone about permission to pass out leaflets at that location? A. No. I just figured that as citizens we have this right as guaranteed in the First Amendment.
*927Q. Do you feel that you have the right to pass out leaflets and picket in the thoroughfare in front of the Dahl’s store there? A. Very definitely, because, as I say, what I read is that no city, state or local ordinance can overrule the Supreme Court ruling that says we have a right to demonstrate in a peaceful manner.
Q. In a street? A. I am talking about a sidewalk. Excuse me. I am talking about the door.
Q. Right in front of the- door of the Dahl’s store there? A. Yes, and sidewalks, of course.
Although the pretrial motion to dissolve the preliminary injunction and the motion during trial to dismiss the action did not constitute pleadings of the First Amendment issue, they alerted plaintiff and the trial court to defendants’ First Amendment theory. When the evidence at trial is examined in this light, it is obvious the parties proceeded without objection to try the First Amendment issue. Indeed, a fair reading of the record indicates all other issues were subsidiary. Since the First Amendment issue was tried by consent, it is rightfully in the case. Peters v. Peters, 214 N.W.2d 151, 155 (Iowa 1974).
Furthermore, the trial court ruled on the issue. I do not find any trial court holding that the constitutional issue was not in the case, and I would not characterize the trial court’s ruling on the merits of the constitutional defense as gratuitous. The trial court obviously recognized the issue was presented by the record. It was what the trial was largely about. No one claimed the constitutional issue was not in the case until the appellee’s brief was filed in this court.
The issue having been tried by consent, and the trial court having ruled on it, defendants were entitled to predicate error on the trial court’s ruling in this court. They ought not to be barred from doing so for failing to anticipate that plaintiff would, in resisting this issue here, claim for the first time that it was not in the case.
Moreover, contrary to the view expressed in the special concurrence, I believe resolution of the First Amendment issue does affect the result.
It affects the result because defendants had and still have a viable right to engage in First Amendment activities on public property adjacent to plaintiff’s stores. Unlike the majority, I do not believe that right is barred by state anti-trust law, Code § 553.1. See Division I, supra. Nor is it barred by Hudgens v. National Labor Relations Board,-U.S.-, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976). In Hudgens the ' Supreme Court overruled Amalgamated Food Employees Union Local 590 v. Logan Valley, Inc., supra, which had authorized First Amendment activities in privately-owned shopping centers in certain circumstances. The overruling of Logan Valley does not affect the right to engage in First Amendment activities on public property.
On First Amendment grounds, the injunction cannot validly bar defendants altogether from picketing and handbilling on public property adjacent to plaintiff’s stores. Thus, I would sustain only those parts of the injunction which bar defendants from picketing and handbilling on plaintiff’s private property and adjacent shopping center property and from interference with customer ingress or egress.
MASON, RAWLINGS and UHLEN-HOPP, JJ., join this dissent.