(1,800,000) dollars lawful money of the United States, representing the par value of the capital stock of respondent company, was placed at the time said articles of association were filed with the secretary of state, to wit, on the 13th day of February, 1903. "And this information further states: That on or about and prior to the 13th day of February, 1903, there existed and were operated in the city of St. Louis seven certain corporations, organized under the laws of the state of Missouri, and particularly article IX, chapter 12, of the Revised Statutes of Missouri for 1889 and 1899, to wit, 'American Ice & Coal Company,' Muckermann Ice & Coal Company,' 'Union Ice Company,' Creve Coeur Lake Ice Company, Huse-Loomis Ice & Transportation Company,' 'Huse-Godell Ice Company,' and the 'Hygeia Ice Company,' hereinafterwards called and known as the 'seven companies.' That by virtue of the respective charters of the said seven companies, each was authorized to manufacture and buy and sell ice at wholesale and retail, and each of the said seven companies was, on or about the 13th day of February, 1903, and prior thereto, engaged in the manufacture, the purchase, and sale of ice at wholesale and retail in the city of St. Louis. Charles W. Whitelaw, Christopher Muckermann, Ignatius C. Muckermann, John C. Muckermann, and Herman E. Penning, in behalf of and as agents of the said 'seven companies' and as incorporators for them (the 'seven companies') subscribed for the stock of respondent companies under an agreement, whereby the stock and the assets of the said seven companies' were transferred and taken over by respondent company at fixed and grossly inflated valuations, in return for stock of respondent company, respectively issued to each of the said companies and their several stockholders and trustees; that in pursuance of such illegal consolidation or merger, the said Charles W. Whitelaw, Christopher Muckermann, Ignatius C. Muckermann, John C. Muckermann, and Herman E. Penning elected or selected themselves as directors of respondent company and at the same time they, or so many of them as was necessary to constitute a majority of the directors of each of the said 'seven companies' comprising the merger or consolidation, were elected directors thereof and became holders of all the stock in said corporations, and as such directors directed a conveyance and transfer of all the property of every kind and description, which the said several 'seven companies' held, to respondent, the 'Polar Wave Ice & Fuel Company,' and that since that time the said respondent company has under one management and control and in furtherance of the illegal combination, agreement, and understanding theretofore existing between the said 'seven companies,' carried on the business of manufacturing and buying and selling ice in the city of St. Louis, theretofore enjoyed, conducted, and maintained by the said 'seven companies' severally, and has thereby destroyed all competition as it once existed between the said 'seven companies' in the trade controlled and reached by them; that by reason of the premises, plaintiff states, the respondent company obtained its corporate charter and authority to do business under the laws of the state of Missouri by misrepresentation and fraud, and has since its incorporation misused and perverted the powers, rights, and privileges conferred upon it and is now misusing and perverting such powers, rights, and privileges, and has usurped and willfully and unlawfully exercised, and is now usurping and unlawfully and willfully exercising, powers, rights, privileges, and franchises not conferred upon it by law, to wit, the right, power, and franchise of acquiring for its stock, and holding and own"Plaintiff further states that at the time of ing the whole of the property of the said 'seven the organization of respondent corporation, and companies,' to wit, American Ice & Coal Comat the time of the execution of its said articles pany,' 'Muckermann Ice & Coal Company,' 'Unof association, the said Christopher Mucker-ion Ice Company,' Creve Coeur Lake Ice & Coal mann, John C. Muckermann, Charles W. White- Company,' 'Huse-Loomis Ice & Transportation law, Herman E. Penning and Ignatius C. Company,' 'Huse-Godell Ice Company," and the Muckermann were the agents, respectively, of 'Hygeia Ice Company,' and causing a nonuse the aforesaid 'seven companies,' and that Chris- of their franchises in such a manner as to put topher Muckermann was president and John said corporations and their properties and rights C. Muckermann treasurer of the said Mucker- under one management and control and destroy mann Ice & Coal Company; that Charles W. all separate and distinct control of said several Whitelaw was president and Herman E. Pen- companies and all competition among them. ning was secretary of the said Huse-Loomis Ice & Transportation Company; that Ignatius Muckermann was treasurer of the Hygeia Ice Company; and that said Charles W. Whitelaw was a large stockholder in the said Creve Coeur Lake Ice Company. "That prior and up to the 13th day of February, 1903, the said 'seven companies' so engaged in the manufacture and the purchase and sale of ice in the city of St. Louis were operating under an unlawful agreement, combination and understanding, by which they jointly fixed and maintained the prices to be charged by each of them, from time to time, for ice at wholesale and retail, in the city of St. Louis, and whereby they jointly and systematically sought to control the ice trade of the city of St. Louis, against all persons, firms, and corporations, who did not become and were not parties to their said agreement and understanding, and whereby they sought to prevent full and free compensation in said trade in the city of St. Louis. That the said 'seven companies' were in control of the largest portion of the ice business of the city of St. Louis, controlling over 50 per cent. of the ice product of the said city and the wholesale and retail trade therein, and where by reason of that fact and the said unlawful agreement, combination, and understanding between them enables to dictate, control, and fix the price of ice to consumers in said city and prevent and restrain full and free competition in such trade. "Plaintiff states that the said respondent corporation was not organized in good faith with a paid-up capital of one million eight hundred thousand (1,800,000) dollars, lawful money of the United States, and for the purpose set out in the articles of association, as aforesaid, but that said company was organized for the unlawful purpose of consolidating the said 'seven companies, and to more readily and easily carry out their unlawful combination, agreement and understanding to fix and maintain the price of ice and control the trade in same in the city of St. Louis, and that in pursuance of said design, the said subscribers to its capital stock, to wit "Plaintiff further states that said consolidation of said 'seven companies' in the manner hereinbefore set out was and is contrary to the laws of the state of Missouri, and was and is an arrangement and combination which tends to lessen full and free competition in the purchase and sale of ice in the city of St. Louis, and since the 13th day of February, 1903, has continued to be an arrangement and combination which has wholly destroyed competition between the said 'seven companies' in the purchase and sale of ice in the city of St. Louis; that said unlawful arrangement has continued from the 13th day of February, 1903, to the time of the bringing of this suit and was in full force and effect from the 1st day of August, 1904, until the time of the bringing of this action, to wit, for a period of seven hundred and twenty-one days; that by reason of the illegal acts, conduct, and arrangement on the part of respondent com pany, herein before set out, great injury, harm, and damage has come to the people of the city of St. Louis and the people of the state of Missouri, and defendant has forfeited its right and franchise to carry on business under the laws of the state of Missouri. "Wherefore plaintiff prays that the charter granted respondent, Polar Wave Ice & Fuel Company,' be held and declared to be null and void, and that judgment be rendered against respondent in favor of plaintiff for the sum of one hundred (100) dollars per day, from the 1st day of August, 1904, to the 21st day of July, 1906, in the total sum of seventy-two thousand one hundred (72,100) dollars, and for costs. "Arthur N. Sager, Circuit Attorney." To this information return was made in this language: "Now comes Polar Wave Ice & Fuel Company, respondent herein, and for its answer to the complaint says that it is true that this respondent is a corporation organized and existing under the laws of the state of Missouri, and partially under article IX of chapter 12 of the Revised Statutes of 1899; and that said respondent was organized on the 13th day of February, 1903, and was by its charter authorized and empowered to manufacture, buy, and sell ice at wholesale and retail, and to do all things and acts consistent with such right and authority. "And this respondent says that it is true that it was organized with a capital stock of one million eight hundred thousand dollars ($1,800,000), which was alleged in its said articles of incorporation to have been bona fide subscribed and paid in full in lawful money of the United States, and that the said sum had been placed at the time in the custody of the persons therein named as the first board of directors of respondent company; that the names of the several persons who subscribed to the capital stock aforesaid and the amount of the stock subscribed by each is as follows: The above are the pleadings. The facts furnish interesting reading. Prior to 1879 there was in St. Louis the firm of Muckermann Bros., engaged in the retail sale of ice and perhaps fuel. Their stock in trade was rather limited, but they covered (in business) the city, both north and south. The firm was composed of Chris and John Muckermann. In 1879 this firm was dissolved, but each partner remained in the ice business. Chris Muckermann took the South St. Louis business of the firm upon their division of property and territory and John took the North St. Louis territory. Thus early competition was stifled by dividing territory. Afterward competition grew up between these parties, but all to be allayed in the near future. It would appear that Chris Muckermann was the more alert and thrifty of the two. 1879, upon the division of the firm assets, Chris was left with an icehouse at 3725 North Fourteenth street, a small stable and dwelling and two ice selling routes in South St. Louis. In about 1889 Chris Muckermann incorporated his business under the name of Muckermann Ice & Coal Company. In In 1888 the Muckermanns (Chris and his sons) were doing business in the west end. In hot competition with them were four other dealers. Chris, however, conceived the plan of going into the corporation business as well as the ice business, and the result was the organization of the Polar Wave Ice Company, in which all these interests were combined, and in which Chris then held 25 per cent. of the stock. Business acumen gave "Charles W. Whitelaw, 1,200 shares preferred, With the birth and 2,400 shares of common stock; Christopher him larger interests later. Muckermann, 1,200 shares of preferred, and 2,- of this new corporation came an alignment 400 shares of common, stock; Ignatius C. Muck- of territory and the fixing of a dead line over ermann, 1,200 shares of preferred, and 2,400 shares of common, stock; John C. Muckermann, which neither should go. That dead line was 1,200 shares of preferred, and 2,400 shares of Jefferson avenue. To the west was Polar common, stock, and Herman E. Penning, 1,200 Wave territory, and to the east Muckermann shares of preferred stock and 2,400 shares of territory. In 1889 Chris incorporated his common stock, making the entire capital stock individual business as above indicated. In of said company; that the foregoing persons, to wit, Charles W. Whitelaw, Christopher Muck- 1891 Medanich, Schulte, and the Muckerermann, Ignatius C. Muckermann, John C. manns were all competitors in another disMuckermann and Herman E. Penning were nam-tinct portion of the city. The result was the ed in the said articles of incorporation as the directors of said corporation to act as such for the ensuing year, to wit, until February 13, 1904, and as the person in whose custody one million eight hundred thousand dollars ($1,800,000) lawful money of the United States, representing the par value of the capital stock of respondent company, was placed at the time said articles of association were filed with the secretary of state, to wit, on the 13th, day of February, 1903. "And, further answering, this respondent denies each and every other allegation in said complaint contained, and says that its organization and incorporation was properly and regularly had, as is in said complaint alleged and in this answer admitted; and this respondent denies that its said organization and incorporation can be dissolved at the instance of plaintiff herein upon the allegations which are in his said complaint contained, and says that the money value of the loss of the respondent, if its charter be forfeited as prayed in the petition, will exceed the sum of one hundred thousand dollars. "Wherefore, having fully answered, this respondent asks to be hence discharged with its costs." organization of another corporation, the Finally, and as fourth in line, Chris Muckermann and two of his sons and John Muckermann and two of his sons organized the Union Ice Company. It was well named, for it brought together that which had been severed in 1879 when Chris and John, the two brothers, had dissolved the firm of Muckermann Bros. But its name “Union” has even deeper significance than the mere uniting of property interests. It meant the union of strength in an effort to stifle competition. Thus steadily had Chris Muckermann grown from two small routes in South St. Louis in 1879 until he and his folks controlled four corporations covering the greater portion of the city. The great weight of the testimony shows that these four corporations did not compete with each other in the ice business. American Ice & Coal Company. By direction of the Muckermanns each stay- President. urer. Secretary. .Thos. Medanich, Union Ice Company. ....Chris Muckermann, ...Wm. Winkler, of ice from 35 cents per 100 to 50 cents per President. 100. Each corporation so raised it. Later Vice president and treasthe word was passed around to lower the price, and it was lowered. These four corporations can well be styled the "Muckermann Companies," for they were, in truth Before the birth of respondent the Polar and fact, Muckermann companies, domineer- Wave Ice Company changed its name to the ed and controlled by the Muckermanns. In Hygeia Ice Company; the name "Polar the retail ice business they did not compete Wave" was to be reserved in all its purity with each other. They stayed within fixed and bleakness for the anticipated newborn. territory agreed upon at the several dates Looking over the list of officers, the wholesale of organization. companies for convenience may well be called the "Whitelaw Companies," and the retail companies the "Muckermann Companies." It is apparent that Whitelaw as thoroughly dominated the one class as did the Muckermanns the other. For convenience we will so name the interests. In 1903 I. C. Muckermann, son of Chris Muckermann, seems to have been the leading spirit in the Muckermann interests, and Whitelaw occupied a like position with the wholesale companies. These two spirits got together having in view both a Capital. wholesale and retail ice business. The Muckermann companies did but little manufac$550,000.00 turing or harvesting of ice. The others were 50,000.00 50,000.00 practically solely engaged in manufacturing and harvesting ice. The result was the inCapital. corporation of the respondent, Polar Wave $75,000.00 Ice & Fuel Company, with a capital stock of 20,000.00 $1,800,000. The method was this: each of the seven separate corporations procured from their respective stockholders a writ Going now to the respondent in this case; 1. e., the Polar Wave Ice & Fuel Company. Besides the four corporations above described, there were doing business in St. Louis three wholesale ice companies; i. e., HuseLoomis Ice & Transportation Company, HuseGodell Ice Company, and Creve Coeur Lake Ice Company. The date of incorporation and capital stock of the seven companies at the formation of the respondent were as follows: Wholesale. Name. Retail. Name. 30,000.00 The companies were officered at the same ten agreement in this form: time as follows: "This agreement, made this day of January, 1903, by and between Luther Loomis, and all other persons holders of stock in the HuseLoomis Ice & Transportation Company, who may sign this contract, parties of the first part, and Charles W. Whitelaw, of the city of St. Louis, Missouri, party of the second part, and St. Louis Union Trust Company of St. Louis, trustee, party of the third part, witnesseth, that: "Whereas, it is proposed by certain stockholders in the existing corporations hereinafter named, to form a new corporation, to be known as the Polar Wave Ice & Fuel Company (or by some other name that may be selected); "And, whereas, it is proposed to so organize said corporation that it may purchase, hold and operate the assets and business at present owned and operated by the following corporations, all of St. Louis, Missouri, and all organized under the laws of the state of Missouri, to wit: Huse-Loomis Ice & Transportation Company, Creve Coeur Lake Ice Company, Huse-Godell Ice Company, Polar Wave Ice Company, American Ice & Coal Company, Muckermann Ice & Coal Company, and Union Ice Company; "And, whereas, it is proposed that the said new corporation shall have a full paid capital of $1,800,000, its capital stock consisting of $600,000 preferred, and $1,200,000 of common, stock, said preferred stock to be 6 per cent. cumulative stock, preferred as to both principal and income, and that said corporation, when organized, shall purchase all the assets, properties and business of all of said corporations at and for the price of $1,800,000, and after said purchase 169 S.W.-9 pany, herein before set out, great injury, harm, and damage has come to the people of the city of St. Louis and the people of the state of Missouri, and defendant has forfeited its right and franchise to carry on business under the laws of the state of Missouri. "Wherefore plaintiff prays that the charter granted respondent, Polar Wave Ice & Fuel Company,' be held and declared to be null and void, and that judgment be rendered against respondent in favor of plaintiff for the sum of one hundred (100) dollars per day, from the 1st day of August, 1904, to the 21st day of July, 1906, in the total sum of seventy-two thousand one hundred (72,100) dollars, and for costs. "Arthur N. Sager, Circuit Attorney." To this information return was made in this language: "Now comes Polar Wave Ice & Fuel Company, respondent herein, and for its answer to the complaint says that it is true that this respondent is a corporation organized and existing under the laws of the state of Missouri, and partially under article IX of chapter 12 of the Revised Statutes of 1899; and that said respondent was organized on the 13th day of February, 1903, and was by its charter authorized and empowered to manufacture, buy, and sell ice at wholesale and retail, and to do all things and acts consistent with such right and au thority. "And this respondent says that it is true that it was organized with a capital stock of one million eight hundred thousand dollars ($1,800,000), which was alleged in its said articles of incorporation to have been bona fide subscribed and paid in full in lawful money of the United States, and that the said sum had been placed at the time in the custody of the persons therein named as the first board of directors of respondent company; that the names of the several persons who subscribed to the capital stock aforesaid and the amount of the stock subscribed by each is as follows: The above are the pleadings. The facts furnish interesting reading. Prior to 1879 there was in St. Louis the firm of Muckermann Bros., engaged in the retail sale of ice and perhaps fuel. Their stock in trade was rather limited, but they covered (in business) the city, both north and south. The firm was composed of Chris and John Muckermann. In 1879 this firm was dissolved, but each partner remained in the ice business. Chris Muckermann took the South St. Louis business of the firm upon their division of property and territory and John took the North St. Louis territory. Thus early competition was stifled by dividing territory. Afterward competition grew up between these parties, but all to be allayed in the near future. It would appear that Chris Muckermann was the more alert and thrifty of the two. 1879, upon the division of the firm assets, Chris was left with an icehouse at 3725 North Fourteenth street, a small stable and dwelling and two ice selling routes in South St. Louis. In about 1889 Chris Muckermann incorporated his business under the name of Muckermann Ice & Coal Company. In In 1888 the Muckermanns (Chris and his sons) were doing business in the west end. In hot competition with them were four other dealers. Chris, however, conceived the plan of going into the corporation business as well as the ice business, and the result was the organization of the Polar Wave Ice Company, in which all these interests were combined, and in which Chris then held 25 per Business acumen gave "Charles W. Whitelaw, 1,200 shares preferred, cent. of the stock. and 2,400 shares of common stock; Christopher him larger interests later. With the birth Muckermann, 1,200 shares of preferred, and 2,- of this new corporation came an alignment 400 shares of common, stock; Ignatius C. Muck- of territory and the fixing of a dead line over ermann, 1,200 shares of preferred, and 2,400 which neither should go. That dead line was shares of common, stock; John C. Muckermann, 1,200 shares of preferred, and 2,400 shares of Jefferson avenue. To the west was Polar common, stock, and Herman E. Penning, 1,200 Wave territory, and to the east Muckermann shares of preferred stock and 2,400 shares of territory. In 1889 Chris incorporated his common stock, making the entire capital stock individual business as above indicated. In of said company; that the foregoing persons, to wit, Charles W. Whitelaw, Christopher Muck- 1891 Medanich, Schulte, and the Muckerermann, Ignatius C. Muckermann, John C manns were all competitors in another disMuckermann and Herman E. Penning were nam-tinct portion of the city. The result was the ed in the said articles of incorporation as the directors of said corporation to act as such for the ensuing year, to wit, until February 13, 1904, and as the person in whose custody one million eight hundred thousand dollars ($1,800,000) lawful money of the United States, representing the par value of the capital stock of respondent company, was placed at the time said articles of association were filed with the secretary of state, to wit, on the 13th, day of February, 1903. "And, further answering, this respondent denies each and every other allegation in said complaint contained, and says that its organization and incorporation was properly and regularly had, as is in said complaint alleged and in this answer admitted; and this respondent denies that its said organization and incorporation can be dissolved at the instance of plaintiff herein upon the allegations which are in his said complaint contained, and says that the money value of the loss of the respondent, if its charter be forfeited as prayed in the petition, will exceed the sum of one hundred thousand dollars. "Wherefore, having fully answered, this respondent asks to be hence discharged with its costs." organization of another corporation, the Finally, and as fourth in line, Chris Muckermann and two of his sons and John Muckermann and two of his sons organized the Union Ice Company. It was well named, for it brought together that which had been severed in 1879 when Chris and John, the two brothers, had dissolved the firm of Muckermann Bros. But its name "Union" has even deeper significance than the mere uniting of property interests. It meant the union of strength in an effort to stifle competition. Thus steadily had Chris Muckermann grown from two small routes in South St. Louis in 1879 until he and his folks controlled four corporations covering the greater portion of the city. The great weight of the testimony shows that these four corporations did not American Ice & Coal Company. Vice president. President. .Thos. Medanich, .Jos. Medanich, ...J. C. Sanders, Three Directors. Union Ice Company. Vice president and treas urer. Secretary. .....Wm. Winkler, compete with each other in the ice business. By direction of the Muckermanns each stay- President. ed within the fixed terminal lines. That the four operated as one and had one common advisor is shown by the fact that in 1901, the officers met and agreed to raise the price of ice from 35 cents per 100 to 50 cents per 100. Each corporation so raised it. Later the word was passed around to lower the price, and it was lowered. These four corporations can well be styled the "Muckermann Companies," for they were, in truth Before the birth of respondent the Polar and fact, Muckermann companies, domineer- Wave Ice Company changed its name to the ed and controlled by the Muckermanns. In Hygeia Ice Company; the name "Polar the retail ice business they did not compete Wave" was to be reserved in all its purity with each other. They stayed within fixed and bleakness for the anticipated newborn. territory agreed upon at the several dates Looking over the list of officers, the wholesale of organization. companies for convenience may well be called the "Whitelaw Companies," and the retail companies the "Muckermann Companies." It is apparent that Whitelaw as thoroughly dominated the one class as did the Muckermanns the other. For convenience we will so name the interests. In 1903 I. C. Muckermann, son of Chris Muckermann, seems to have been the leading spirit in the Muckermann interests, and Whitelaw occupied a like position with the wholesale companies. These two spirits got together having in view both a Capital. wholesale and retail ice business. The Muckermann companies did but little manufac$550,000.00 turing or harvesting of ice. The others were 50,000.00 50,000.00 practically solely engaged in manufacturing and harvesting ice. The result was the inCapital. corporation of the respondent, Polar Wave $75,000.00 Ice & Fuel Company, with a capital stock of 20,000.00 $1,800,000. The method was this: each of the seven separate corporations procured from their respective stockholders a written agreement in this form: Going now to the respondent in this case; 1. e., the Polar Wave Ice & Fuel Company. Besides the four corporations above described, there were doing business in St. Louis three wholesale ice companies; i. e., HuseLoomis Ice & Transportation Company, HuseGodell Ice Company, and Creve Coeur Lake Ice Company. The date of incorporation and capital stock of the seven companies at the formation of the respondent were as follows: Name. Wholesale. ..Jan. Date of Incorp. Huse-Loomis Ice and Transportation Co....... 10, 1882 Huse-Godell Ice Company..Dec. 28, 1887 Creve Cœur Lake Ice Co....Sept. 27, 1880 Name. Retail. Date of Incorp. Polar Wave Ice Co... .March 8, 1888 Muckermann Ice & Coal Co. Dec. 6, 1889 American Ice Company.....Feb. 7, 1891 Union Ice Company.........Dec. 15, 1892 30,000.00 The companies were officered at the same time as follows: Huse-Loomis Ice & Transportation Company. President.... Vice president. ..Chas. W. Whitelaw. ..H. E. Penning, Huse-Godell Ice Company. President.. Three Directors. "This agreement, made this day of January, 1903, by and between Luther Loomis, and all other persons holders of stock in the HuseLoomis Ice & Transportation Company, who may sign this contract, parties of the first part, and Charles W. Whitelaw, of the city of St. Louis, Missouri, party of the second part, and St. Louis Union Trust Company of St. Louis, trustee, party of the third part, witnesseth, that: "Whereas, it is proposed by certain stockholders in the existing corporations hereinafter named, to form a new corporation, to be known as the Polar Wave Ice & Fuel Company (or by some other name that may be selected); "And, whereas, it is proposed to so organize said corporation that it may purchase, hold and operate the assets and business at present owned and operated by the following corporations, all of St. Louis, Missouri, and all organized under the laws of the state of Missouri, to wit: Huse-Loomis Ice & Transportation Company, Creve Coeur Lake Ice Company, Huse-Godell Ice Company, Polar Wave Ice Company, American Ice & Coal Company, Muckermann Ice & Coal Company, and Union Ice Company; "And, whereas, it is proposed that the said new corporation shall have a full paid capital of $1,800,000, its capital stock consisting of $600,000 preferred, and $1,200,000 of common, stock, said preferred stock to be 6 per cent. cumulative stock, preferred as to both principal and income, and that said corporation, when organized, shall purchase all the assets, properties and business of all of said corporations at and for the price of $1,800,000, and after said purchase 169 S.W.-9 |