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ing true, then did the court err in telling | tion of his estate, then in determining the questhe jury what were the true relations that tions of whether or not he was of sound mind existed between the testator and his wife to consideration the fact of such unequal dis

and free from undue influence you may take inand what influence she had the legal righttribution, if you find it to be a fact, as it may to exercise over his mind in disposing of his tend to show, or throw light upon, the question property? This court has repeatedly held of his mental condition or freedom from undue

influence at the time the will was written; and that it was proper to so instruct the jury.

in this conection you are instructed that, in deCounsel for defendants thus state the law, termining whether there existed any reasonable wbich meets with our hearty approval: cause or reason for such unequal distribution

"In Defoe v. Defoe, 144 Mo. 458 [46 s. w. of bis estate, you may take into consideration, 433), the wife of testator was the principal ben

as may be shown by the evidence, the relations eficiary in his will. One of his sons and two that existed between him and the natural obminor grandchildren were the contestants. Un jects of his bounty, his feelings and affections due influence was alleged, and the evidence ad for them, their conduct and treatment of him, vanced in support of that allegation was that their condition and needs in life, together with the mother had often spoken to testator of the his knowledge of such condition and needs." bad habits of the son and referred to the sub

The numerous cases cited by counsel in ject in terms of harsh criticism; and evidence was given that another proponent, a son-in-law, support of the matters stated in this instrucbad kept the testator posted as to what Frank tion are in perfect harmony with the views (contestant) was doing, and had reported to him of this court as expressed in the case of whenever Frank drank or gambled. Referring Wendling v. Bowden, 252 Mo. 647, 161 S. W. to such evidence the court says: 'It would be a sad commentary on family privilege and duty 774, loc. cit. 786. There we held that an unto say that a jury would be authorized to find equal division of one's property by will that a mother had exercised an undue influence among his children was a proper subject to over the mind of her husband from the mere be shown and commented upon before the Daked fact alone that in the presence of one of their sons-in-law she had joined with her hus- jury. But that principle of law does not band in a word or warning to that son-in-law warrant the trial court to so instruct the to be cautious how he signed notes for what jury. Such an instruction would clearly be they thought a reckless son, on account of his drinking and gambling babit, or because, in dis- a comment upon the evidence, and thereby cussing the habits of that son, the mother, in give undue prominence to those facts in disthe presence of the father and the son-in-law, crimination of all others. While it is proper had criticized quite sharply the son's bad habits to show them, which was done in this case, of drinking and gambling.

If such flimsy stuff is to be held and treated as evi- and while they constitute legitimate grounds dence justifying a jury in defeating the will of for argument before the jury, yet, as just a testator, on the ground that he has been un

stated, it would be improper and erroneous duly influenced in its making against the interest of what the testator thought a profligate for the court to comment upon them in the son, then no will that was ever made could instructions. The reported cases show that withstand the assaults of a contest.'

such instructions have been quite frequently "lo Maddox v. Maddox, 114 Mo. loc. cit. 48, given, but, so far as I have been able to dis21 S. W. 502, 35 Am. St. Rep. 734, referring to the kindly visits of a son to his father's home, cover, no objections were lodged against the court says: "It would be a great reproach them. Independent of this, the other into the law, in its jealous watchfulness over the structions given fully cover the points. freedom of testamentary dispositions, if it There was no error in the action of the court should deprive age and infirmity of the kindly ministrations of affection or of the power of in refusing this instruction. rewarding those who bestow them.”

X. Counsel for contestants have presented We hope it will never be that the visits of a

one or two other minor points, but they are son to an aged and infirm parent will be looked upon with suspicion and attributed to selfish mo

so closely allied to and dependent upon the

propositions disposed of that they are thereby The same doctrine is announced by the au- necessarily relegated to the resting places of thorities regarding a son or daughter, but, their companions. as this instruction did not extend it to the Entertaining these views of the case, I am son, we will not discuss that question fur- of the opinion that the trial court committed ther. There is no merit in this contention. no error, and that the judgment thereof es

[16] IX. Counsel for contestants asked the tablishing the will should be affirmed; and following instruction which the court refus- it is so ordered. All concur in result. ed; and complaint is here made of that refusal :

"The court instructs the jury that, while STATE ex Inf. ATTORNEY GENERAL V. Jacob Linebaugh, if of sound and disposing mind ARKANSAS LUMBER CO. et al. and memory and free from undue influence, had

(No. 15146.) the rigbt to make such disposition of his estate among the patural objects of his bounty (Supreme Court of Missouri. Dec. 24, 1913. as to him seemed proper, yet you are further

On Motions to Modify Judgment, instructed that if you find from the evidence

July 2, 1914.) that by the proposed will be made an unequal 1. REFERENCE (8 47*)–AUTHORITY OF REFEREE distribution of his estate by giving substantially SUPREME COURT-COMMISSIONER—JURISall to some of his heirs and substantially nothing DICTION. to others, and if you further find from the evi A commissioner appointed by the Supreme dence that there was, in fact, no substantial Court proceeding to take testimony, hear and or reasonable cause for such unequal distribu-l determine objections to testimony, as the court •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

169 S.W.-10


might in a trial of a cause, and report the tes-y in the state, and have lessened lawful trade timony with his findings of fact and conclusions and free competition in the importation, manof law and all exceptions, has, in the absence ufacture, and sale in the state of lumber, and of any statute, only the authority of a special | are illegally fixing and maintaining the price commissioner to take depositions and return of lumber in the state and restraining free them into court, and his findings of fact and competition in the importation, manufacture, conclusions of law, though persuasive, are not and sale of lumber in the state, to the detribinding.

ment of the purchasing public, and that by rea[Ed. Note.- For other cases, see Reference, son thereof the corporations have unlawfully Cent. Dig. 88 74, 76, 78; Dec. Dig. $ 47.*] usurped their privileges and franchises, and 2. REFERENCE ($ 100*)-REPORT-EXCEPTIONS es and licenses, and for the imposition of a fine

which prays for a revocation of their franchis--SUPREME COURT COMMISSIONER JU.

for the misuse of franchises and licenses, RISDICTION. The Supreme Court, appointing a commis- unlawful, combination in violation of the anti

charges in general terms a conspiracy and an sioner in an original proceeding to take testi- | trust law, and is sufficient as against an obmony on the issues and make findings of facțjection raised for the first time to the admisand conclusions of law and state in his final sion of evidence. report exceptions to findings and conclusions, must pass on the evidence and the law, and

(Ed. Note.-For other cases, see Monopolies, so will not pass on the refusal by the com

Cent. Dig. 8 17; Dec. Dig. § 26.*] missioner of requested declarations of law or 7. PLEADING ($ 428*) -- INFORMATION IN QUO the giving of other declarations or the findings WARRANTO — - SUFFICIENCY OF PLEADING of fact and conclusions of law and the admis OBJECTIONS TO EVIDENCE. ssion of incompetent evidence.

Where, in quo warranto against corpora(Ed. Note.---For other cases, see Reference, tions to forfeit their franchises and licenses Cent. Dig. $$ 157-168; Dec. Dig. $ 100.*] for conspiring to control the yellow pine lum

ber trade, the corporations answered to the 3. JURY (8 25*)-RIGHT TO JURY TRIAL-DE

merits, and some of them presented amended MAND-TIME TO DEMAND.

answers before the commissioner, without atIn quo warranto to forfeit the franchises tacking the sufficiency of the information, the and licenses of corporations charged with vio

information stating a cause by pleading legal lating the anti-trust law, a request by the corporations for a jury trial made for the first be assailed by objections to the testimony,

conclusions, without stating the facts, could not time before the commissioner appointed by the though the information was uncertain and incourt on the case coming up before him for definite, and could have been made more defithe taking of testimony comes too late.

nite and certain on timely motion therefor. (Ed. Note.-For other cases, see Jury, Cent. [Ed. Note.-For other cases, see Pleading, Lig. $$ 154-173; Dec. Dig. 8 25.*]


A demurrer ore tenus does not reach mere That, in quo warranto to forfeit the fran; uncertainty or indefiniteness of averment or dechises and licenses of corporations charged fect of pleading legal conclusions. with violating the anti-trust law, the Attorney General dismissed the proceedings, as against Cent. Dig. $$ 472, 481; Dec. Dig. $ 211.*]

[Ed. Note.-For other cases, see Pleading, some of the corporations because of the insufficiency of the evidence as to them did not affect 9. LIMITATION OF ACTIONS (8 35*)-ACTIONS the proceeding against the remaining corpora


The provision of Rev. St. 1909, § 1890, [Ed. Note: -For other cases, see Monopolies, limiting to three years actions for a statutory Cent. Dig. § 17; Dec. Dig. $ 26.* ]

penalty or forfeiture, where the action is given

to the party aggrieved, or to the state, em. 5. Quo WARRANTO ($ 1*) INFORMATION TO bodied in article 9, is made applicable to an in

FORFEIT FRANCHISES AND LICENSES OF Cor- formation in quo warranto by the state to forPORATIONS-NATURE OF ACTION.

feit the franchises and licenses of corporations An information in the nature of quo war- for violating the anti-trust law, by section ranto to forfeit the franchises and licenses of 1914, declaring that the limitations prescribed corporations violating the anti-trust law is a in article 9 shall apply to actions in the name civil action.

of the state, and the state cannot rely on acts [Ed. Note. For other cases, see Quo War- committed three years before the institution of ranto, Cent. Dig. $$ 1, 3, 23, 28; Dec. Dig. 8 the action. 1.*]

[Ed. Note-For other cases, see Limitation 6. MONOPOLIES ($ 26*)— VIOLATION OF ANTIof Actions, Cent. Dig. 88 109, 158–167; Dec.


10. MONOPOLIES (8 12*)-COMBINATION-REMAn information in the nature of quo war EDY. ranto to forfeit the franchises and licenses of A suit in equity under Rev. St. 1909, $ foreign and domestic corporations engaging in 10303, to restrain violations of the statute manufacturing and selling at wholesale yellow against pools, trusts, and conspiracies will pine lumber, which alleges that the corpora: reach combinations of natural persons or parttions entered into a pool, combination, and un- nerships or corporations, as well as natural perderstanding among themselves, and with other

sons and corporations, and the penalties imposcorporations and persons to relator unknown, ed by section 10304 may be imposed on a findto regulate and fix the price to be paid by re-ing of guilt against a corporation pursuant to tail dealers in lumber and consumers of lum- the procedure set out in section 10302. ber in the state, to maintain the price when fixed, to regulate and limit the amount of lum-Cent. Dig. § 10; Dec. Dig. $ 12.*]

(Ed. Note.-For other cases, see Monopolies, ber manufactured and bought and sold, to limit the trade in lumber, and to limit competition 11. MONOPOLIES (8 24*)—COMBINATION-REMin the lumber trade in the state, and that the EDY. corporations, by means of the pool, combina

A natural person violating the anti-trust tion, and understanding, have regulated, fixed, law cannot be proceeded against by quo warand limited the amount of lumber manufactured ranto. and sold, have increased, fixed, and maintain [Ed. Note.-For other cases, see Monopolies, ed the market price of lumber bought and sold' Cent. Dig. & 17; Dec. Dig. $ 24.*] •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes



UTES-CONSTRUCTION. The right to proceed against corporations Under Rev. St. 1909, § 10299, declaring for conspiracies in restraint of trade in viola- that any person creating, entering into, betion of the anti-trust law is derived from the coming a member of, or participating in any common law, and the common-law method was pool or combination, in restraint of trade in. by information in the nature of quo warranto. the importation, manufacture, purchase, or sale

[Ed. Note: --For other cases, see Monopolies, of any commodity in the state, shall be guilty of Cent. Dig. & 17; Dec. Dig. § 26.*]

a conspiracy in restraint of trade, corporations

engaged in the manufacture and sale at whole13. MONOPOLIES (8 24*) · COMBINATIONS sale of pine lumber which conspire to limit the REMEDY.

output within the state violate the statute, and Violators of the anti-trust law may be it is immaterial whether the agreement is ever proceeded against by indictment or informa- carried out, and it is immaterial that some of tion as for a felony, if the offender is a natu the corporations have no mills in the state so ral person, or by bill in equity to prevent and long as some of them have mills and manurestrain violations under Rev. St. 1909, $facture lumber in the state, provided all con10303, or actions at common law by information spire to curtail the output in the state. in the nature of quo warranto, where all de [Ed. Note.-For other cases, see Monopolies, fendants are corporations.

Cent. Dig. $ 10; Dec. Dig. g 12.*] [Ed. Note.-For_other cases, see Monopolies, 19. MONOPOLIES ($ 13*)-CONSPIRACY IN RECent. Dig. $ 17; Dec. Dig. $ 24.*]


A voluntary association of manufacturers LAW. In proceedings in equity, or by informa- of 3312 per cent of the output until such time

tail the output and recommended a reduction tion in the nature of quo warranto against cor

as the demand should more nearly absorb the porations violating the anti-trust law, the cor-supply. At the next meeting of the associaporations are not entitled to a jury trial.

tion the president stated that the association (Ed. Note. For other cases, see Jury, Cent. had succeeded in securing the co-operation of Dig. $$ 104-133; Dec. Dig. § 19.*]

about 80 per cent. of such manufacturers, and 15. LIMITATION OF Actions ($ 59*) --ACTIONS in ten days after curtailment, and within thir

the downward tendency of prices was checked FOR PENALTIES COMPUTATION OF PERIOD

ty days a substantial advance in the price was OF LIMITATION.

made. The agreement to curtail the output The limitations prescribed for an informa

was renewed year by year, and subsequently tion in quo warranto to forfeit the franchises it was resolved to continue the curtailment in. and licenses of corporations guilty of conspir- definitely. During the periods of curtailment ing to limit the output and fix the price of an

of output, there were several advances in the article of commerce do not refer to the date of prices. Held, that the acts of curtailment of the entry into the illegal conspiracy, but to

the output were by agreement amounting to a the date of the last proven act under the con; conspiracy in violation of the anti-trust act spiracy, regardless of the date of the original (Rev. St. 1909, § 10299 et seq.). agreement.

[Ed. Note.-For other cases, see Monopolies, [Ed. Note.-For other cases, see Limitation Dec. Dig. & 13.*] of Actions, Cent. Dig. 88 329-332; Dec, Dig. 8 59.*]


RESTRAINT OF TRADE. 16. COMMERCE ($ 13*)-COMBINATIONS-IN Where a conspiracy in restraint of trade TERSTATE COMMERCE.

was formed by corporations more than three Foreign and domestic corporations engaged years before the beginning of a suit by the state in manufacturing and selling at wholesale lum- to forfeit their franchises and licenses, overt ber are, when forming a conspiracy to limit the acts committed within three years must be output and fix the price for lumber to be sold in shown to avoid the bar of limitations, and such the state, guilty of violating the state anti overt acts may be shown by circumstantial evitrust law, and they cannot defend on the grounddence. that their acts are governed by the interstate [Ed. Note.-For other cases, see Monopolies, commerce law.

Cent. Dig. $ 17; Dec. Dig. & 26.*] [Ed. Note. For other cases, see Commerce, 21. MONOPOLIES ($ 21*)–CONSPIRACIES–LIACent. Dig. $ 7; Dec. Dig. § 13.*]

BILITY OF PARTIES. 17. STATUTES ($ 126*)-TITLE-CLERICAL ER and sale at wholesale of yellow pine lumber

Corporations engaged in the manufacture BOR-EFFECT. The clerical error in the title of Laws the output and fix the price are not so far co

which formed a voluntary association to curtail 1907, p. 374, entitled "An act repealing sections $978, 8979, 8980, 8981, 8982 of article 2,

partners that unlawful conspiracies of the machapter 113 of the Revised Statutes of 1899,'

13 jority of the corporations will bind those not etc., and enacting in lieu thereof certain new actually participating therein, unless they carsections, instead of enumerating sections "8965- ry out the same by overt acts done in accord8977 of article 1, chapter 143,” and in the title

ance therewith. of Laws 1907, p. 377, entitled "An act to repeal

(Ed. Note.-For other cases, see Monopolies, sections 8965-8977 of article 1, chapter 143, Cent. Dig. § 15; Dec. Dig. $ 21.*] Revised Statutes of 1899, entitled 'Pools, trusts 22. MONOPOLIES ($ 12*)-CONSPIRACIES-LIAand conspiracies,' and to enact in lieu thereof

BILITY OF PARTIES. certain new sections to be known as sections

A corporation joining a voluntary associa8965-8977c," instead of the enumerated sec tion of manufacturers and wholesalers of yeltions in the first-named act, does not affect the low pine lumber organized for praiseworthy validity of the acts, notwithstanding Const. purposes is not, by the mere act of joining the art. 4, $ 28, providing that no bill shall con-, association, guilty of a conspiracy in restraint tain more than one subject, which shall be ex- of trade in violation of the anti-trust act, un. pressed in the title.

less it had knowledge of the unlawful con[Ed. Note.-For other cases, see Statutes, spiracy of the association, and of its unlawful Cent. Dig. 98 192-196; Dec. Dig. $ 126.*] acts, and notwithstanding that fact joined it so For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

as to become tainted with the guilt inhering to , made in the information instituting the proceedthose, taking part in the conspiracy at the in- ings. ception of the association.

[Ed. Note. For other cases, see Reference, [Ed. Note.-For other cases, see Monopolies, Cent. Dig. 88 157–168; Dec. Dig. $ 100.*] Cent. Dig. § 10; Dec. Dig. § 12.*]

Woodson and Faris, JJ., dissenting. 23. MONOPOLIES (8 21*)-CONSPIRACIES–LIABILITY OF PARTIES.

In Banc. Information in the nature of A corporation joining a voluntary associa- | quo warranto by the State, on information of tion of manufacturers and wholesalers of yellow | Elliott W. Maior. Attorney General, against pine lumber is not guilty of an unlawful conspiracy in restraint of trade committed by the the Arkansas Lumber Company and others. association, where it took no part in the con- Judgment for petitioner. spiracy or withdrew on obtaining knowledge. [Ed. Note.-For other cases, see Monopolies,

This is an original proceeding by inforCent. Dig. f 15; Dec. Dig. $ 21.*]

mation in the nature of quo warranto 24. MONOPOLIES (8 17*) – CONSPIRACIES IN

brought by the Attorney General to oust reRESTRAINT OF TRADE-FIXING OF PRICES.

spondents, all of which are corporations, Corporations engaged in manufacturing and from their franchises to do business in this selling at wholesale yellow pine lumber form

state, or to oust and fine them because of aled an association which at each annual meeting appointed a committee on values or on price |

leged violations of our statutes leveled list, and the committees made reports at the against pools, trusts, and conspiracies. meetings of the association recommending stat- / The information, which was filed in ed prices for each item of the several grades

icourt on the 30th July, 1908, is, caption omitand specifications of lumber manufactured and sold by the members of the association, and ted, as follows: such reports were adopted by the association "Comes now the state of Missouri, by Elliott as the prices to be charged for the items and W. Major, Attorney General, who, in this begrades of lumber. Subsequently the associa- | half, prosecutes for and in the name of the tion directed that the committee should not state of Missouri, and informs the court that make any recommendation as to prices by rea- respondent Chicago Lumber & Coal Company son of an investigation of the association by and respondent Freeman-Smith Lumber Compaa sister state. Thereafter a market report ny are corporations duly organized and existcommittee was created to prepare price lists; ing under and by virtue of the laws of the but the committee under advice of counsel fail- state of Iowa; that respondent Arkansas Lumed to do so. Thereafter the secretary of the ber Company and respondent Ozan Lumber association prepared price lists or market re

| Company are corporations duly organized and ports. The prices as fixed showed great in-existing under and by virtue of the laws of the creases from time to time. Members of the as- state of Arkansas; that respondent Detroit sociation did not always abide by the prices Timber & Lumber Company is a corporation shown by the price list. Held to show a viola-duly organized and existing under and by virtion of the anti-trust law in fixing prices, tue of the laws of the state of Michigan; that though a price list promulgated by a disinter

respondent Dierks Lumber & Coal Company is ested person fairly representing current prices

a corporation duly organized and existing unas based on actual sales or on actual offers to

der and by virtue of the laws of the state of buy and sell may not be illegal.

Nebraska; that respondent Glen Lumber Com[Ed. Note.-For other cases, see Monopolies, pany is a corporation duly organized and existCent. Dig. $ 13; Dec. Dig. & 17.*]

ing under and by virtue of the laws of the state 25. MONOPOLIES ($ 17*) – CONSPIRACIES IN

of Kansas; that respondent Sawyer & Austin

Lumber Company is a corporation duly orRESTRAINT OF TRADE-FIXING OF PRICES.

ganized and existing under and by virtue of Where corporations engaged in manufac

the laws of the state of Wisconsin; and that turing and selling at wholesale yellow pine lum

respondent W. R. Pickering Lumber Company ber conspired to fix the price, and did overt

is a corporation duly organized and existing acts pursuant to the conspiracy, and fixed pric

under and by virtue of the laws of the state of es from time to time, that the prices were rea

nos Louisiana; all of said corporations having been sonable, and such as in the nature of things

organized for the purpose of engaging in the might have eventuated, regardless of the acts

business of manufacturing lumber and buying of the corporations, does not relieve them from

and selling lumber, timber, and timber lands, liability for violations of the anti-trust law.

and all of said corporations were at all the [Ed. Note.-For other cases, see Monopolies,

times herein mentioned duly authorized and liCent. Dig. $ 13; Dec. Dig. $ 17.*]

censed to do business in the state of Missouri 26. MONOPOLIES (8 12*) – CONSPIRACIES IN as foreign corporations. RESTRAINT OF TRADE-LIABILITY.

"Relator further informs the court that reThat corpora

spondent Alf Bennett Lumber Company, Badger enga

facturing and selling at wholesale yellow pine lumber

Lumber Company, Bowman-Hicks Lumber Comformed for a good object an association did not pany, the Bradley Lumber Company, Barrrelieve the corporations from liability for vio- | Dubach Lumber Company, Crescent Furniture lating the anti-trust law based on evils growing

& Lumber Company, Colonial Lumber & Timup in the association amounting to conspira

ber Company, Central Coal & Coke Company, cies in restraint of trade, though unintentional.

Calcasieu Long Leaf Lumber Company, C. J. [Ed. Note.-For other cases, see Monopolies,

Carter Lumber Company, Clark & Bates LumCent. Dig. § 10; Dec. Dig. $ 12.*]

ber Company, Diamond Lumber Company,

Dierks & Sons Lumber Company, Dixie Lum27. REFERENCE ($ 100*)-REPORT-EXCEPTIONS ber Company, Fred B. Dubach Lumber Com

-SUPREME COURT—COMMISSIONER-REPORT pany, Frisco Lumber Company, Ferguson-Mc-REVIEW.

Daris Lumber Company, Foster Lumber ComThe Supreme Court, on reviewing the re- pany

son-McLeod Lumber Company, Geo. port of its commissioner, appointed in an origi-W. Miles Timber & Lumber Company, Geo. nal proceeding to take testimony and make find- Surmeyer Lumber Company, Hogg-Harris Lumings of fact and conclusions of law, will only ber Company, Ingram Lumber Company, Robt. determine whether there is enough competent Kamm Lumber Company, Long-Bell Lumber and admissible evidence to justify the charges Company, Leidigh & Havens Lumber Compa*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig, Key-No. Series & Rep'r Indexes

in man


ny, Louis Werner Saw Mill Company, Lufkin, them, to wit: Badger Lumber Company, Land & Lumber Company, Missouri Lumber & Clark & Bates Lumber Company, Diamond Mining Company, Missouri Lumber & Land

Lumber Company, Dierkes & Sons Lumber Exchange Company, Missouri Tie & Timber Company, National Lumber Company, and Van Company, George W. Surmeyer Lumber ComCleve Lumber Company are now and at all the pany, Missouri Tie & Timber Lumber Comtimes herein mentioned were each a corpora

pany, and the National Lumber Company, tion duly organized under and by virtue of the laws of the state of Missouri, for the purpose

Barr-Dubach Lumber Company, Fred B. Duof manufacturing lumber and buying and selling bach Lumber Company, Crescent Furniture lumber, timber, and timber lands, and that at

& Lumber Company, Frost-Trigg Lumber all times herein mentioned each was and is engaged in said business of manufacturing lum

Company, and Sawyer & Austin Lumber ber and buying and selling lumber, timber, and Company. timber lands in the state of Missouri.

The respondents remaining in the record "Relator further informs the court that respondents have created, entered into, become

made and filed on different days, but for the members of and participated in a pool, trust, most part on November 12, 1908, separate reagreement, combination, confederation, and un- turns and answers, admitting their respecderstanding among themselves, with each other,

tive incorporations, and denying generally and with other corporations and persons to relator unknown, with the purpose. design, and

that they had created, entered into, or had view to regulate, control, and fix the price to become members of, or had participated in, be paid by retail dealers in lumber and consum

any pool, trust, agreement, combination, coners of lumber in this state for lumber offered for sale and sold in this state, to maintain such

federation, or understanding with any other price when so regulated and fixed, to regulate, corporation or person for the purpose, defix, and limit the amount and quantity of lum- sign, or view to regulate, or control, or fix the ber manufactured and bought and sold, to con- price to be paid for Lumber by retail deal.

rol and limit the trade in lumber, and to limit competition in such lumber trade in the state

ers in lumber, or by consumers of lumber in of Missouri; that said respondents, by means Missouri, or to maintain such price when of said pool, trust, agreement, combination, so regulated or fixed, or to regulate, fix, or confederation, and understanding, have regulated, fixed, and limited the amount and quantity

limit the amount or quantity of lumber manof lumber manufactured and sold, have increas-ufactured or bought and sold, or to control ed, fixed, and maintained the market price of or limit the trade in lumber, or to limit the lumber bought and sold in this state, and have

competition in such lumber trade in the state lessened lawful trade and full and free competition in the importation, manufacture, and of Missouri, in such manner as to fully negasale in this state of lumber, and are now un- tive the allegations in the information in that lawfully and illegally fixing and maintaining

respect. the price of lumber in this state, and restraining full and free competition in the importation. The Missouri Lumber & Mining Company manufacture, and sale of lumber in this state; and Missouri Lunber & Land Exchange all to the great detriment and damage of the Company answered jointly and in addition purchasing public and the people of the state of Missouri.

to the other answers, and set up that the "Relator further states that by reason of the statutes under which the information was participation of said respondents in the pool, filed were violative of section 1, art. 14, of trust, agreement, combination, confederation, I the Constitution of the United States, and and understanding as herein stated, and by reason of the acts and things done by respondents are therefore unconstitutional and void. as herein set forth, said respondents have been On December 16, 1908, this court, sustainguilty of illegal, willful, and malicious perver- / ing the motion of the Attorney General in sion and abuse of the franchise, licenses, and authority severally granted to them by the state

this behalf, appointed a special commissioner of Missouri, and illegal and unlawful usurpa- to take testimony in this case, as by the be tion of privileges, franchises, and authorities low order (formal parts omitted) will more not granted to them by the state of Missouri. "Wherefore the Attorney General, prosecuting

clearly appear: in this bebalf for the state of Missouri, prays! “Now at this day, it appearing to the court, the consideration of the court in the premises, from the pleadings in the above-entitled cause, and that each respondent corporation may be that issues of fact are joined therein, thereexcluded from all corporate rights, privileges, fore, on motion of the Attorney General, that and franchises exercised or enjoyed by it un- a special commissioner be appointed by the der the laws of the state of Missouri, and that court to take the testimony upon the issues joinits franchise, license, and certificate to do busi- ed in said cause, it is ordered by the court that ness in this state be declared forfeited, and that Judge Theodore Brace, of Paris, Missouri, be all, or such portion of its property as the court and he is hereby appointed special commissioner may deem proper, be confiscated unto the state, to take the testimony upon the issues joined in or in lieu thereof, a fine be imposed upon it in said cause, with full power and authority to punishment of the perversion, usurpation, abuse, issue subpænas, compel the attendance of witand misuse of franchise as herein described." nesses and the production of papers, books, and

er documents, to issue attachments therefor. No service was ever had on the respond.

and to hear and determine all objections to tesent the Frisco Lumber Company, for the rea timony, and to admit or exclude the same in the son that it is beyond the jurisdiction of the same manner and to the same extent as this court, and no answer or return has been

court might in the trial of the case before the

court, and to report the testimony with his findmade by it in this cause.

ings of fact thereon, together with his findings • The following named respondents have as to the law upon each issue tendered to him been dismissed from this action by the Attor

by the respective parties, and to state his con

Iclusions of law in his final report, exceptions to ney General, for the alleged reason that no the findings of fact and law so made by said evidence is found in the record inculpating special commissioner, to be filed by either party

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