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 existed between the testator and his wife and what influence she had the legal right to exercise over his mind in disposing of his property? This court has repeatedly held that it was proper to so instruct the jury. Counsel for defendants thus state the law, which meets with our hearty approval: "In Defoe v. Defoe, 144 Mo. 458 [46 S. W. 4331, the wife of testator was the principal beneficiary in his will. One of his sons and two minor grandchildren were the contestants. due influence was alleged, and the evidence advanced in support of that allegation was that the mother had often spoken to testator of the Un bad habits of the son and referred to the sub- * * * "In Maddox v. Maddox, 114 Mo. loc. cit. 48, 21 S. W. 502, 35 Am. St. Rep. 734, referring to the kindly visits of a son to his father's home, the court says: "It would be a great reproach to the law, in its jealous watchfulness over the freedom of testamentary dispositions, if it should deprive age and infirmity of the kindly ministrations of affection or of the power of rewarding those who bestow them." We hope it will never be that the visits of a son to an aged and infirm parent will be looked upon with suspicion and attributed to selfish motives.'" * * The same doctrine is announced by the authorities regarding a son or daughter, but, as this instruction did not extend it to the son, we will not discuss that question further. There is no merit in this contention. [16] IX. Counsel for contestants asked the following instruction which the court refused; and complaint is here made of that refusal : "The court instructs the jury that, while Jacob Linebaugh, if of sound and disposing mind and memory and free from undue influence, had the right to make such disposition of his estate among the natural objects of his bounty as to him seemed proper, yet you are further instructed that if you find from the evidence that by the proposed will he made an unequal distribution of his estate by giving substantially all to some of his heirs and substantially nothing to others, and if you further find from the evidence that there was, in fact, no substantial or reasonable cause for such unequal distribu tions of whether or not he was of sound mind and free from undue influence you may take into consideration the fact of such unequal distribution, if you find it to be a fact, as it may tend to show, or throw light upon, the question of his mental condition or freedom from undue influence at the time the will was written; and in this conection you are instructed that, in determining whether there existed any reasonable cause or reason for such unequal distribution of his estate, you may take into consideration, that existed between him and the natural obas may be shown by the evidence, the relations jects of his bounty, his feelings and affections for them, their conduct and treatment of him, their condition and needs in life, together with his knowledge of such condition and needs." The numerous cases cited by counsel in support of the matters stated in this instruction are in perfect harmony with the views of this court as expressed in the case of Wendling v. Bowden, 252 Mo. 647, 161 S. W. 774, loc. cit. 786. There we held that an unequal division of one's property by will among his children was a proper subject to be shown and commented upon before the jury. But that principle of law does not warrant the trial court to so instruct the jury. Such an instruction would clearly be a comment upon the evidence, and thereby give undue prominence to those facts in discrimination of all others. While it is proper to show them, which was done in this case, and while they constitute legitimate grounds for argument before the jury, yet, as just stated, it would be improper and erroneous for the court to comment upon them in the instructions. The reported cases show that such instructions have been quite frequently given, but, so far as I have been able to discover, no objections were lodged against them. Independent of this, the other instructions given fully cover the points. There was no error in the action of the court in refusing this instruction. X. Counsel for contestants have presented one or two other minor points, but they are so closely allied to and dependent upon the propositions disposed of that they are thereby necessarily relegated to the resting places of their companions. Entertaining these views of the case, I am of the opinion that the trial court committed no error, and that the judgment thereof establishing the will should be affirmed; and it is so ordered. All concur in result. STATE ex Inf. ATTORNEY GENERAL V. 1. REFERENCE (§ 47*)-AUTHORITY OF REFEREE DICTION. A commissioner appointed by the Supreme Court proceeding to take testimony, hear and 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 testimony with his findings of fact and conclusions of law and all exceptions, has, in the absence of any statute, only the authority of a special commissioner to take depositions and return them into court, and his findings of fact and conclusions of law, though persuasive, are not binding. [Ed. Note.-For other cases, see Reference, Cent. Dig. §§ 74, 76, 78; Dec. Dig. § 47.*] in the state, and have lessened lawful trade and free competition in the importation, manufacture, and sale in the state of lumber, and are illegally fixing and maintaining the price of lumber in the state and restraining free competition in the importation, manufacture, and sale of lumber in the state, to the detriment of the purchasing public, and that by reason thereof the corporations have unlawfully usurped their privileges and franchises, and which prays for a revocation of their franchisfor the misuse of franchises and licenses, unlawful combination in violation of the anticharges in general terms a conspiracy and an trust law, and is sufficient as against an objection raised for the first time to the admission of evidence. 2. REFERENCE (§ 100*)-REPORT-EXCEPTIONS es and licenses, and for the imposition of a fine -SUPREME COURT COMMISSIONER BISDICTION. JU The Supreme Court, appointing a commissioner in an original proceeding to take testimony on the issues and make findings of fact and conclusions of law and state in his final report exceptions to findings and conclusions, must pass on the evidence and the law, and so will not pass on the refusal by the commissioner of requested declarations of law or the giving of other declarations or the findings of fact and conclusions of law and the admission of incompetent evidence. [Ed. Note.-For other cases, see Reference, Cent. Dig. §§ 157-168; Dec. Dig. § 100.*] 3. JURY (§ 25*)-RIGHT TO JURY TRIAL-DEMAND-TIME TO DEMAND. In quo warranto to forfeit the franchises and licenses of corporations charged with violating the anti-trust law, a request by the corporations for a jury trial made for the first time before the commissioner appointed by the court on the case coming up before him for the taking of testimony comes too late. [Ed. Note.-For other cases, see Jury, Cent. Lig. §§ 154-173; Dec. Dig. § 25.*] 4. MONOPOLIES (§ 26*)-COMBINATIONS-FORFEITURE OF FRANCHISE-PARTIES. That, in quo warranto to forfeit the franchises and licenses of corporations charged with violating the anti-trust law, the Attorney General dismissed the proceedings as against some of the corporations because of the insufficiency of the evidence as to them did not affect the proceeding against the remaining corporations. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 17; Dec. Dig. § 26.*] - 5. QUO WARRANTO (§ 1*) INFORMATION TO FORFEIT FRANCHISES AND LICENSES OF CORPORATIONS-NATURE OF ACTION. An information in the nature of quo warranto to forfeit the franchises and licenses of corporations violating the anti-trust law is a civil action. [Ed. Note. For other cases, see Quo Warranto, Cent. Dig. §§ 1, 3, 23, 28; Dec. Dig. 8 1.*] 6. MONOPOLIES ($ 26*)-VIOLATION OF ANTITRUST LAW-INFORMATION IN QUO WAR RANTO-SUFFICIENCY. An information in the nature of quo warranto to forfeit the franchises and licenses of foreign and domestic corporations engaging in manufacturing and selling at wholesale yellow pine lumber, which alleges that the corporations entered into a pool, combination, and understanding among themselves, and with other corporations and persons to relator unknown, to regulate and fix the price to be paid by retail dealers in lumber and consumers of lumber in the state, to maintain the price when fixed, to regulate and limit the amount of lumber manufactured and bought and sold, to limit the trade in lumber, and to limit competition in the lumber trade in the state, and that the corporations, by means of the pool, combination, and understanding, have regulated, fixed, and limited the amount of lumber manufactured and sold, have increased, fixed, and maintained the market price of lumber bought and sold Cent. Dig. § 17; Dec. Dig. § 26.*] [Ed. Note. For other cases, see Monopolies, 7. PLEADING (§ 428*) - INFORMATION IN QUO WARRANTO SUFFICIENCY OF PLEADING OBJECTIONS TO EVIDENCE. Where, in quo warranto against corporations to forfeit their franchises and licenses for conspiring to control the yellow pine lumber trade, the corporations answered to the merits, and some of them presented amended answers before the commissioner, without attacking the sufficiency of the information, the information stating a cause by pleading legal conclusions, without stating the facts, could not be assailed by objections to the testimony, though the information was uncertain and indefinite, and could have been made more definite and certain on timely motion therefor. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1433-1436; Dec. Dig. § 428.*] 8. PLEADING (§ 211*)-DEMURRER ORE TENUS. A demurrer ore tenus does not reach mere uncertainty or indefiniteness of averment or defect of pleading legal conclusions. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 472, 481; Dec. Dig. § 211.*] 9. LIMITATION OF ACTIONS (§ 35*)-ACTIONS FOR PENALTIES. The provision of Rev. St. 1909, § 1890, limiting to three years actions for a statutory penalty or forfeiture, where the action is given to the party aggrieved, or to the state, embodied in article 9, is made applicable to an information in quo warranto by the state to forfeit the franchises and licenses of corporations for violating the anti-trust law, by section 1914, declaring that the limitations prescribed in article 9 shall apply to actions in the name of the state, and the state cannot rely on acts committed three years before the institution of the action. [Ed. Note-For other cases, see Limitation of Actions, Cent. Dig. §§ 109, 158-167; Dec. Dig. § 35.*] 10. MONOPOLIES (§ 12*)-COMBINATION-REM EDY. A suit in equity under Rev. St. 1909, § 10303, to restrain violations of the statute against pools, trusts, and conspiracies will reach combinations of natural persons or partnerships or corporations, as well as natural persons and corporations, and the penalties imposed by section 10304 may be imposed on a finding of guilt against a corporation pursuant to the procedure set out in section 10302. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 13. MONOPOLIES (§ 24*) COMBINATIONS REMEDY. Violators of the anti-trust law may be proceeded against by indictment or information as for a felony, if the offender is a natural person, or by bill in equity to prevent and restrain violations under Rev. St. 1909, § 10303, or actions at common law by information in the nature of quo warranto, where all defendants are corporations. [Ed. Note. For other cases, see Monopolies, Cent. Dig. § 17; Dec. Dig. § 24.*] 14. JURY ( 19*)-RIGHT TO TRIAL BY JURYPROCEEDINGS FOR VIOLATION OF ANTI-TRUST LAW. In proceedings in equity, or by information in the nature of quo warranto against corporations violating the anti-trust law, the corporations are not entitled to a jury trial. [Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 104-133; Dec. Dig. § 19.*] 15. LIMITATION OF ACTIONS (§ 59*)-ACTIONS FOR PENALTIES COMPUTATION OF PERIOD OF LIMITATION. The limitations prescribed for an information in quo warranto to forfeit the franchises and licenses of corporations guilty of conspiring to limit the output and fix the price of an article of commerce do not refer to the date of the entry into the illegal conspiracy, but to the date of the last proven act under the conspiracy, regardless of the date of the original agreement. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 329-332; Dec. Dig. § 59.*] 16. COMMERCE (§ 13*)-COMBINATIONS-INTERSTATE COMMERCE. Foreign and domestic corporations engaged in manufacturing and selling at wholesale lumber are, when forming a conspiracy to limit the output and fix the price for lumber to be sold in the state, guilty of violating the state antitrust law, and they cannot defend on the ground that their acts are governed by the interstate commerce law. [Ed. Note. For other cases, see Commerce, Cent. Dig. § 7; Dec. Dig. § 13.*] 17. STATUTES (§ 126*)-TITLE-CLERICAL ERBOR-EFFECT. 18. MONOPOLIES (§ 12*)-CONSPIRACIES-STATUTES-CONSTRUCTION. Under Rev. St. 1909, § 10299, declaring that any person creating, entering into, becoming a member of, or participating in any pool or combination, in restraint of trade in. the importation, manufacture, purchase, or sale of any commodity in the state, shall be guilty of a conspiracy in restraint of trade, corporations engaged in the manufacture and sale at wholesale of pine lumber which conspire to limit the output within the state violate the statute, and it is immaterial whether the agreement is ever carried out, and it is immaterial that some of the corporations have no mills in the state so long as some of them have mills and manufacture lumber in the state, provided all conspire to curtail the output in the state. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*] 19. MONOPOLIES (§ 13*)-CONSPIRACY IN RESTRAINT OF TRADE- CURTAILMENT DENCE. - EVI A voluntary association of manufacturers and wholesalers of pine lumber agreed to curtail the output and recommended a reduction of 33 per cent. of the output until such time supply. At the next meeting of the associaas the demand should more nearly absorb the tion the president stated that the association had succeeded in securing the co-operation of about 80 per cent. of such manufacturers, and in ten days after curtailment, and within thirthe downward tendency of prices was checked ty days a substantial advance in the price was made. The agreement to curtail the output was renewed year by year, and subsequently it was resolved to continue the curtailment indefinitely. During the periods of curtailment of output, there were several advances in the prices. Held, that the acts of curtailment of the output were by agreement amounting to a conspiracy in violation of the anti-trust act (Rev. St. 1909, § 10299 et seq.). [Ed. Note. For other cases, see Monopolies, Dec. Dig. § 13.*] 20. MONOPOLIES (§ 26*) RESTRAINT OF TRADE. CONSPIRACIES IN Where a conspiracy in restraint of trade was formed by corporations more than three years before the beginning of a suit by the state to forfeit their franchises and licenses, overt acts committed within three years must be shown to avoid the bar of limitations, and such overt acts may be shown by circumstantial evidence. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. 17; Dec. Dig. § 26.*] 21. MONOPOLIES (§ 21*)-CONSPIRACIES-LIABILITY OF PARTIES. and sale at wholesale of yellow pine lumber Corporations engaged in the manufacture the output and fix the price are not so far cowhich formed a voluntary association to curtail jority of the corporations will bind those not partners that unlawful conspiracies of the maactually participating therein, unless they carout the same by overt acts done in accordance therewith. The clerical error in the title of Laws 1907, p. 374, entitled "An act repealing sections 8978, 8979, 8980, 8981, 8982 of article 2; chapter 143 of the Revised Statutes of 1899,' etc., and enacting in lieu thereof certain new sections, instead of enumerating sections "8965-ry 8977 of article 1, chapter 143," and in the title of Laws 1907, p. 377, entitled "An act to repeal sections 8965-8977 of article 1, chapter 143, Revised Statutes of 1899, entitled 'Pools, trusts and conspiracies,' and to enact in lieu thereof certain new sections to be known as sections 8965-8977c," instead of the enumerated sections in the first-named act, does not affect the validity of the acts, notwithstanding Const. art. 4, § 28, providing that no bill shall contain more than one subject, which shall be expressed in the title. [Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 192-196; Dec. Dig. § 126.*] [Ed. Note. For other cases, see Monopolies, Cent. Dig. § 15; Dec. Dig. § 21.*] 22. MONOPOLIES (§ 12*)-CONSPIRACIES-LIABILITY OF PARTIES. A corporation joining a voluntary association of manufacturers and wholesalers of yellow pine lumber organized for praiseworthy purposes is not, by the mere act of joining the association, guilty of a conspiracy in restraint of trade in violation of the anti-trust act, unless it had knowledge of the unlawful conspiracy of the association, and of its unlawful 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 those, taking part in the conspiracy at the inception of the association. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*] 23. MONOPOLIES (§ 21*)-CONSPIRACIES-LIABILITY OF PARTIES. A corporation joining a voluntary association of manufacturers and wholesalers of yellow pine lumber is not guilty of an unlawful conspiracy in restraint of trade committed by the association, where it took no part in the conspiracy or withdrew on obtaining knowledge. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 15; Dec. Dig. § 21.*] 24. MONOPOLIES (§ 17*) made in the information instituting the proceedings. [Ed. Note. For other cases, see Reference, Cent. Dig. §§ 157-168; Dec. Dig. § 100.*] Woodson and Faris, JJ., dissenting. In Banc. Information in the nature of quo warranto by the State, on information of Elliott W. Major, Attorney General, against the Arkansas Lumber Company and others. Judgment for petitioner. leged violations of our statutes leveled against pools, trusts, and conspiracies. The information, which was filed in this court on the 30th July, 1908, is, caption omitted, as follows: This is an original proceeding by information in the nature of quo warranto brought by the Attorney General to oust reCONSPIRACIES IN RESTRAINT 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 list, and the committees made reports at the meetings of the association recommending stated prices for each item of the several grades and specifications of lumber manufactured and sold by the members of the association, and 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 asstate 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*) of Kansas; that respondent Sawyer & Austin Lumber Company is a corporation duly orWhere corporations engaged in manufac-ganized and existing under and by virtue of turing and selling at wholesale yellow pine lum- the laws of the state of Wisconsin; and that ber conspired to fix the price, and did overt respondent W. R. Pickering Lumber Company acts pursuant to the conspiracy, and fixed pric- under and by virtue of the laws of the state of is a corporation duly organized and existing es from time to time, that the prices were reasonable, and such as in the nature of things Louisiana; all of said corporations having been might have eventuated, regardless of the acts organized for the purpose of engaging in the of the corporations, does not relieve them from business of manufacturing lumber and buying liability for violations of the anti-trust law. and selling lumber, timber, and timber lands, 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 as foreign corporations. CONSPIRACIES IN RESTRAINT OF TRADE-FIXING OF PRICES. 26. MONOPOLIES (§ 12*) CONSPIRACIES IN 27. REFERENCE (§ 100*)-REPORT-EXCEPTIONS "Relator further informs the court that respondent Alf Bennett Lumber Company, Badger Lumber Company, Bowman-Hicks Lumber Company, the Bradley Lumber Company, BarrDubach Lumber Company, Crescent Furniture & Lumber Company, Colonial Lumber & Timber Company, Central Coal & Coke Company, Calcasieu Long Leaf Lumber Company, C. J. ber Company, Diamond Lumber Company, Carter Lumber Company, Clark & Bates LumDierks & Sons Lumber Company, Dixie Lumber Company, Fred B. Dubach Lumber Company, Frisco Lumber Company, Ferguson-McDaris Lumber Company, Foster Lumber Company, Grayson-McLeod Lumber Company, Geo. W. Miles Timber & Lumber Company, Geo. Surmeyer Lumber Company, Hogg-Harris Lumber Company, Ingram Lumber Company, Robt. Kamm Lumber Company, Long-Bell Lumber Company, Leidigh & Havens Lumber Compa The Supreme Court, on reviewing the report of its commissioner, appointed in an original proceeding to take testimony and make findings of fact and conclusions of law, will only determine whether there is enough competent and admissible evidence to justify the charges For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig, Key-No. Series & Rep'r Indexes Company, George W. Surmeyer Lumber Company, Missouri Tie & Timber Lumber Company, and the National Lumber Company, Barr-Dubach Lumber Company, Fred B. Dubach Lumber Company, Crescent Furniture & Lumber Company, Frost-Trigg Lumber Company, and Sawyer & Austin Lumber Company. 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 Cleve Lumber Company are now and at all the times herein mentioned were each a corporation duly organized under and by virtue of the laws of the state of Missouri, for the purpose of manufacturing lumber and buying and selling lumber, timber, and timber lands, and that at all times herein mentioned each was and is engaged in said business of manufacturing lumber and buying and selling lumber, timber, and timber lands in the state of Missouri. The respondents remaining in the record "Relator further informs the court that re-made and filed on different days, but for the spondents have created, entered into, become 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 dealtrol 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 regulat- limit the amount or quantity of lumber maned, fixed, and limited the amount and quantity of 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 sale in this state of lumber, and are now unlawfully and illegally fixing and maintaining the price of lumber in this state, and restraining full and free competition in the importation, manufacture, and sale of lumber in this state; all to the great detriment and damage of the purchasing public and the people of the state of Missouri. "Relator further states that by reason of the participation of said respondents in the pool, trust, agreement, combination, confederation, and understanding as herein stated, and by reason of the acts and things done by respondents as herein set forth, said respondents have been guilty of illegal, willful, and malicious perver; sion and abuse of the franchise, licenses, and authority severally granted to them by the state of Missouri, and illegal and unlawful usurpation of privileges, franchises, and authorities not granted to them by the state of Missouri. "Wherefore the Attorney General, prosecuting in this behalf for the state of Missouri, prays the consideration of the court in the premises, and that each respondent corporation may be excluded from all corporate rights, privileges, and franchises exercised or enjoyed by it under the laws of the state of Missouri, and that its franchise, license, and certificate to do business in this state be declared forfeited, and that all, or such portion of its property as the court may deem proper, be confiscated unto the state, or in lieu thereof, a fine be imposed upon it in punishment of the perversion, usurpation, abuse, and misuse of franchise as herein described." No service was ever had on the respondent the Frisco Lumber Company, for the reason that it is beyond the jurisdiction of the court, and no answer or return has been made by it in this cause. The following named respondents have been dismissed from this action by the Attorney General, for the alleged reason that no evidence is found in the record inculpating of Missouri, in such manner as to fully negative the allegations in the information in that respect. The Missouri Lumber & Mining Company and Missouri Lumber & Land Exchange Company answered jointly and in addition to the other answers, and set up that the statutes under which the information was filed were violative of section 1, art. 14, of the Constitution of the United States, and are therefore unconstitutional and void. On December 16, 1908, this court, sustaining the motion of the Attorney General in this behalf, appointed a special commissioner to take testimony in this case, as by the below order (formal parts omitted) will more clearly appear: "Now at this day, it appearing to the court, from the pleadings in the above-entitled cause, that issues of fact are joined therein, therefore, on motion of the Attorney General, that a special commissioner be appointed by the court to take the testimony upon the issues joined in said cause, it is ordered by the court that Judge Theodore Brace, of Paris, Missouri, be and he is hereby appointed special commissioner to take the testimony upon the issues joined in said cause, with full power and authority to issue subpoenas, compel the attendance of witnesses and the production of papers, books, and other documents, to issue attachments therefor, and to hear and determine all objections to testimony, and to admit or exclude the same in the same manner and to the same extent as this court might in the trial of the case before the court, and to report the testimony with his findings of fact thereon, together with his findings as to the law upon each issue tendered to him by the respective parties, and to state his conclusions of law in his final report, exceptions to the findings of fact and law so made by said special commissioner, to be filed by either party |