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80 desiring within ten days after the filing of jected to the hearing and trial before the the special commissioner's report and findings." commissioner for the reasons assigned by

Afterwards various respondents filed their | them “that this proceeding was a suit, the separate amended answers, again admitting object and purpose of which was to confiscate their respective corporate capacities, denying under the statutes the whole of the properspecifically the other allegations of the infor- ty of each of the defendants or respondents, mation; the Missouri Lumber & Mining or such portion of respondents' property as Company and the Missouri Lumber & Land the court might deem proper, or to impose Exchange Company in addition setting up the a fine upon each of the respondents, and beplea of the three-year statute of limitations cause the Constitution of the state of Mis and likewise the plea of the five-year statute souri and the equality of rights guarantees of limitations, also that the Missouri statutes that the right of trial by jury, as heretofore upon which the information was grounded existing, shall not be denied,” and claimed were in conflict with the provisions of section that right to trial by jury of the issues 1, art. 14, of the amendments to the Consti- raised, and to that end invoked article 2 of tution of the United States, and therefore the Constitution of the state, guaranteeing unconstitutional and void, in that said act the right of a jury trial. They also invoked was alleged to abridge the privileges and the fourteenth amendment of the Constituimmunities of respondents, and to deprive tion of the United States, which guarantees them of their property without due process the right of all citizens to be deprived of of law, and denied to respondents equal pro- their property only by due process of law, tection of the law and other provisions there and equal protection of the law to all citi. of. The remaining respondents made similar zens. Respondents, furthermore, at this first answers, attacking the said statutes of Mis- meeting for the taking of proof, and before souri in question upon the additional grounds, any material evidence was put into the case, however, that they were in violation of the objected “to the introduction of any further Constitution of the state of Missouri in par- evidence under the allegations of the state's ticulars fully set out in said answers, among pleadings, for the reason that the informawhich parts alleged to be violated was sec- tion or writ, neither separately nor together, tion 28, art. 4, which provides that no bill shall states sufficient facts to constitute a cause of contain more than one subject, etc.; section action against the defendants, or either of 21 of article 2 provides that private property them.” shall not be taken or damaged for public use, At the close of the evidence offered in bewithout just compensation; section 53 of ar- half of the state, respondents made and filed ticle 4 provides that the General Assembly their separate demurrers, thereto, based upon shall not pass any local or special laws regu- the following propositions: First, that the lating the practice or jurisdiction by chang- evidence did not sustain the allegations of ing the rules of evidence in judicial proceed the information as to the demurring respondings, and other provisions of said Constitu- ents; second, the evidence did not sustain tions, and for such reasons said statutes are the allegation of the information as to any unconstitutional and void.

respondent; third, on the pleadings and eviAfterwards, and prior to the taking of any dence adduced relator is not entitled to the testimony in the case, Judge Brace tendered relief prayed for; fourth, from the pleadings his resignation as special commissioner, and, and evidence adduced, relator had no cause the same being formally accepted, Robert M. of action against the demurring respondent Reynolds, Esq., was, by this court on the 14th or any respondent; fifth, that there is a misof November, 1910, by an order then made, joinder of parties defendaut and likewise a appointed special commissioner to take evi- misjoinder of causes of action. Some of said dence. This order was similar in verbiage demurrers invoked section 22, art. 2, section in all material respects to that above set out | 28, art, 2, section 30, art. 2, section 28, art. in this behalf, and the same need not again 4, section 53, art. 4, of the Constitution of the use up space here. Special Commissioner state of Missouri, with which provisions the Reynolds, having duly qualified on the 22d of said statutes were alleged to be in conflict. May, 1911, began the taking of testimony in By agreement this motion and these demur. the case. The taking of this testimony rers were passed by the commissioner to be (which embraces approximately 3,000 printed heard upon the argument of this cause upon pages, and is accompanied by some 200 all the issues raised in this case, and for final pounds weight avoirdupois of exhibits) bav- determination with all the other issues in ing been completed, Commissioner Reynolds the case. has filed the same (with the exhibits) with The facts of this case, as contradistinus, together with his findings of fact and con- guished from a recital of the pleadings, steps clusions of law, in all things pursuant to the taken, and procedure, as we gather them terms of the order appointing him.

from this voluminous record of the evidence, The respondents, upon the hearing herein aided as we have been by the able, exhaustive, before Special Commissioner Reynolds, here- and painstaking labors of the learned cominafter for brevity styled simply "Commis- | missioner, are about as follows: sioner,” and before and at the time the first The yellow pine lumber industry in the evidence was offered herein by the state, ob- United States is extensive; a large amount

of capital is employed in its prosecution ; , wholesale associations are now represented but, so far as the manufacture and wholesale | in one common head or association in the thereof is concerned, the capital employed is! United States known as "National Lumber under the direction and control of compara- | Manufacturers' Association," which was ortively a small number.

ganized about the year 1902. About 12 dirThe dealers in the trade may be classified ferent associations, including that here comas manufacturers, wholesalers, and retailers. plained of, are affiliated in the National. Under the language of the trade a certain The respondents, except as to some of the “off-color" variety of those dealers are de- same as to which this proceeding has been nominated “poachers."

dismissed, were at the institution of this suit, The manufacturer, as the name implies, or recently before the same was begun, memcuts and saws the lumber from the tree or bers of the Yellow Pine Manufacturers' As"stum page." The wholesaler handles the sociation; their respective connection there manufactured product in large quantities with, their capital stock, their origin and domand markets the same, generally to the re-icile being as follows: tailer, but in some instances direct to the con Alf Bennett Lumber Company; incorporated sumer. In the latter instance he comes with in Missouri August 2, 1905 ; present capital, in the definition of “poacher.” The retailer $50,000; a member of the association from 1906

to the date of the commencement of this suit. sells directly to the consumer. In instances

Arkansas Lumber Company; incorporated in where he maintains a yard in a community Arkansas; authorized to do business in Miswhere he sells, carrying a certain stock, souri January 18, 1905; capitalization repremeeting the requirements of so-called ethical ber of the association from 1902 to date of com

sented by business in this state, $3.000; memassociation rules, hereinafter more fully ex

mencement of this suit. plained, he is known in the trade as a "regu Bowman-Hicks Lumber Company; incorpolar" and "legitimate retailer”; where he rated in Missouri June 27, 1900; present capsells in a community where he has and main-sociation in 1902, and remained such to the date

ital, $1,250,000; became a member of the astains no yard, but in which some other dealer of this suit. does maintain one, in trade parlance he

Bradley Lumber Company; incorporated in comes within the definition of a “poacher.” member of the association from 1903 to the date

Missouri June 14, 1901; capital, $350,000; a Some manufacturers and wholesalers are also of this suit. engaged as retailers.

Calcasieu Long Leaf Company; incorporated Various kinds of lumber are manufactured | in Missouri April 9, 1906; capital $1,200,000 ; and marketed in the various portions of the became a member of the association in 1908.

Central Coal & Coke Company; incorporated United States, such as white pine, fir, western in Missouri April 6, 1893; capital, $7,000,000, pine, cypress, hardwood, redwood, and yellow about one-half of which is employed in the coal pine. Dealers in this commodity seem to business; a member of the association from

1900 to 1907; was not a member at the date of have organized themselves into various bod- this suit. ies and associations for certain purposes, os Chicago Lumber & Coal Company; incorpotensibly by classes; but in all of which until rated in Iowa; authorized to do business in 1907 the manufacturers and wholesalers business in this state, $10,000; member of the

Missouri May 27, 1906; capital represented by were members and represented.

association from 1902 to the date of this suit; The yellow pine product sold and consumed never owned any mills, was never a manufacturin Missouri at the time of the institution of er, but merely a wholesaler. this suit equaled about 66 per cent. of the en- porated in Missouri August 29, 1902; present

Colonial Lumber & Timber Company; incortire lumber product bandled in Missouri. The capital, $250,000; a member of the association authorized capital by various corporations from 1903 to the date of the commencement of engaged in its manufacture and whole this suit.

C. J. Carter Lumber Company; incorporated sale in Missouri aggregates the sum of in Missouri March 23, 1896; capital $25,000 ; $16,359,000; but the number of such corpora- member of the association from 1902 to the date tions are limited, as well also the controlling of this suit. It never owned any mills, and was characters interested therein.

never engaged in the manufacture of lumber,

but was only a wholesaler. About the year 1890 certain manufacturers

Detroit Timber & Lumber Company; incorand wholesalers in Southern territory, and porated in Michigan; authorized to do business particularly in the yellow pine territory, or-in Missouri in 1900; capital represented by ganized the Southern Lumber Manufacturers' association from 1962 to 1905, but not there

business in Missouri, $5,000; a member of the Association, now, and at the time of the in- after. stitution of this suit, known as the Yellow The Dierkes Lumber & Coal Company; incorPine Manufacturers' Association. Originally porated in Nebraska; authorized to do business

in Missouri in 1902; capital represented by membership in the association embraced the business in this state, $30,000; a member of manufacturers of any variety of lumber, op- the association from 1903 to the date of this erating within the territory of the associa- suit. tion; but in 1906 membership was limited to souri July 19, 1901; present capital, $15,000 ;

Dixie Lumber Company; incorporated in Misyellow pine manufacturers and wholesale a member of the association from 1905 to the dealers, and at the same time the name was date of this suit. changed to correspond. Similar organiza

Ferguson-McDaris Lumber Company; incortions have been and are now in existence rep- $75,000; was a member of the association dur

porated in Missouri December 8, 1906; capital, resenting other varieties of manufactured ing the year 1907, but not afterwards.

Missouri December, 1895; capital $200,000; a nected with some of the respondents herein) member of the association from 1902 to the date seems to have been the first president, and of this suit.

Freeman-Smith Lumber Company; incorpo. George K. Smith its secretary. (George K. rated in Iowa; authorized to do business in Smith was also secretary of the National.) Missouri in 1901 ; capital represented by busi- The office of secretary has been held continuness in this state, $10,000; a member of the as-ously by the said George K. Smith since the sociation from 1903 to the date of this suit.

Geo. W. Miles Timber & Lumber Company; organization of the association, with the ex. incorporated in Missouri April, 1907; capital, ception of a period of two years, and he has $20,000; a member of the association from 1907 maintained his office, as well as that of the to the date of this suit.

Glen Lumber Company; incorporated in Kan-association, at all times in the city of St. sas; authorized to do business in Missouri Jan-Louis, Mo. A more concise statement of this uary 21, 1907; capital represented by business organization and its operations will be herein Missouri, $10,000; a member of the associa- inafter more fully set out. tion from 1906 to the date of this suit.

The Yellow Pine Association, as did its Grayson-McLeod Lumber Company; organized in Missouri June 5, 1873; capital, $1.000,- predecessor, the Southern Lumber Manufac000; member of the association from 1903 to turers' Association, which it succeeded in the date of the commencement of this suit.

1906, held regular annual and semiannual Hogg-Harris Lumber Company; organized in

meeting Missouri February 1, 1901; capital, $75,000;

It was a voluntary association, member of the association from 1905 to the date and had a written constitution and by-laws. of this suit.

It had a board of directors; its officers were Ingham Lumber Company; incorporated in president, first vice president, treasurer, and Missouri March 15, 1902; capital, $500,000; member of the association at the time of the secretary, assistant secretary, and a number commencement of this suit.

of additional vice presidents. Leidigh-Havens Lumber Company; incorpo The duties of these various officers and of rated in Missouri in 1896; capital, $200,000; the board of directors were in a general way member of the association from 1902 to the date of this suit.

provided in the constitution. The board of Long-Bell Lumber Company; incorporated in directors were given authority to originate Missouri in 1884; capital, $2,000,000;, mem- and execute such plans and measures as they ber of the association from 1892 to the date of deem proper to carry out the objects of the this suit.

Louis Werner Saw Mill Company; incorpo- organization, and authorized to command the rated in Missouri May, 1899; capital, $150,000; secretary as their administrative agent in member of the association from 1905 to the the execution of such plans; the board of didate of this suit.

Lufkin Land & Lumber Company; incorpo- rectors and the secretary were clothed with rated in Missouri June 14, 1905 ; capital, $8,- all the authority of the association, except 000; member of the association from 1966 toto amend the constitution. No definite obthe date of this suit. Missouri Lumber & Land Exchange Compa- stated in words in the constitution or by

ject of the association seems to have been ny; incorporated in Missouri December 31, 1897; capital, $6,000; member of the associa- laws prior to the year 1906, except that memtion from 1902 to the date of this suit. Its sole bers of the association should not be priv. business has been that of a selling agent for

eged to sell to consumers or nonresident three manufacturing companies.

Missouri Lumber & Mining Company; incor-dealers in towns where there is a member of porated in Missouri December 9, 1880; present a retail association doing business, and the capital, $500,000; member of the association object otherwise can only be ascertained from 1892 to the date of this suit.

The Ozan Lumber Company; incorporated in from the policies inaugurated, or sought to Missouri October, 1887; capital, $200,000 ; be inaugurated, and the works and acts flowmember of the association from the year 1905 ing therefrom. to the date of this suit.

The constitution provided a manner for Robt. Kamm Lumber Company; incorporated the amendment by the members of the asin Missouri February, 1907; capital, $25,000 ; member of the association from 1907 to the date sociation, and gave authority to the board of of this suit.

directors to make all by-laws deemed advisaVan Cleve Lumber Company, a corporation ble and expedient to carry out the work of under the laws of Missouri; became a member

the association. of the Yellow Pine Association prior to June 14,

A copy of the constitution 1904, and was present at the curtailment meet and by-laws of the association for the year ing, and thereafter remained a member of the 1902 and as they remained down until the association till subsequent to July 30, 1905.

W R. Pickering Lumber Company; incorpo- year 1906 was produced and identified by the rated in Iowa; authorized to do business in this secretary of the association, and introduced state in 1899; capital for business in this state, in evidence. In 1906 certain amendments $2,000; member of the association from 1902 to

were made. 1907, and not afterwards to the time of this eligibility was limited to manufacturers and

The name was changed, and suit.

wholesalers of yellow pine. A new section It would appear that the total amount of was added to the constitution, designated as yellow pine lumber cut per annum about the article 3, which is as follows: year 1907 or 1908 was 9,000,000,000 feet, and.

"The object of this association shall be to sethat the amount cut by mills represented in cure a full understanding of the conditions surthe association was 3,628,255,978 feet.

rounding the lumber market in the territory covOn the date of the filing of this suit the ered by this association, the shipment of uni

form grades for the inspection of lumber; to membership of the Yellow Pine Association promote uniform customs and usages among was about 300. Captain John B. White (con- manufacturers of lumber, to procure and fur

nish to these members such information as may | tion and the board of directors; to keep a rectend to protect them against unbusinesslike ord of all their doings; to keep a list of all the methods of those with whom they deal, and such members of the association; to collect all asother information as may be found for the bene- sessments and pay them over to the treasurer ; fit of the members of the association; and to to prepare under the direction of the board of propose and carry out such other measures as directors an annual report of their transactions may be deemed for the welfare and in the in- and the condition of the association; to preterest of the manufacturers of lumber who shall pare and cause to be published every three be members of this association."

months a list of all members of the association, The following amendment was added to the and shall mail the same to all manufacturers of

yellow pine lumber; and shall perform any and by-laws by the board of directors in the same all duties which shall be required of him by the year:

board of directors, and generally to devote his “A Committee of Thirty shall be appointed by best efforts to forward the interests of the asthe president, to be known as the market com

sociation." mittee, whose sole duty it shall be to ascertain

Article 10 provides that the board of difrom time to time and in such manner as they rectors shall have authority to make bydeem advisable, the prevailing quotations and market prices of various classes of yellow pine laws for the conduct of the business of the lumber, and the existing conditions as to supply board and of its meetings, and for the busiand demand for the same, and to cause the facts ness and meetings of the association, and for thus ascertained to be disseminated from time to time among the members of the association; the protection of all interests confined to its it shall be the duty of the secretary to aid said care. Article 11 provides for the amendment committee in the discharge of its said duty." of the constitution by a majority of the mem

As thus amended, the constitution and by- bers at any annual or semiannual meeting laws continued until the institution of this upon notice of such proposed amendment givsuit. The secretary, George K. Smith, was en by the secretary to each member 30 days custodian of all the files, records, documents, in advance of the meeting. Article 12 proand copies thereof of the Yellow Pine As-vides that the board of directors shall have sociation and its predecessor, the Southern the authority to employ a chief inspector, Lumber Manufacturers' Association, but was with one or inore assistants, the chief inspecunable to produce any of the same for use tor to be under the control of the board of in this hearing prior to the year 1906, except directors, and under the immediate control the constitution of 1902. He had destroyed of the secretary. all other records, as well as his letters, "as The by-laws provided generally for the orjunk.” An official copy of the constitution der of business of the association, including and by-laws, as amended in 1906, is found in committee reports, and that the board of dithe printed record. Article 1 thereof pro- rectors should make such additional by-laws vides the name of the association; article 2 from time to time and rules for the transacthe eligibility required for membership and tion of the business of the association as its the dues and membership fees required. Ar- development might require, for the investigaticle 3 provides the objects of the association, tion of claims of members, and also for the being the amendment hereinbefore stated, appointment of the Committee of Thirty, to which appeared for the first time in 1906, as be known as a “Market Committee.” we have seen. Articles 4 and 5 provide the

It appears, also, that the constitution and official duties. Article 6 provides:

by-laws, as early as 1892 and as late as 1900, "The board of directors shall have power to contained the following article: hold meetings at such times and places as they “The members of this association shall not may think proper; to appoint committees from be privileged to sell to consumers or nonresithe membership of the board of directors or the dent dealers in towns where there is a memassociation, and shall appoint from their number of a retail association doing business." ber three members who shall constitute a board of arbitration; employ a secretary, print and

The association maintains offices in St. circulate documents; raise funds and appropri- Louis, Mo., the secretary in charge. The ate the same--and to advise and to carry into chief inspector has his office with the secre effect such measures as they deem proper and tary, and his assistants report to him there. expedient to promote the objects of the association, and the secretary shall at all times be sub- The association is maintained from year to ject to their discretion."

year by dues collected from its members Article 7 provides when and how the offi- based upon the amount of lumber sold and cers and directors are to be chosen, and the manufactured; there being a minimum fee of respective lengths of terms of office of each. $10. At the time of the institution of this Article 8 provides for annual and semiannual suit some $75,000 was required annually for meetings of the association in January and the expenses of the association and raised in July of each year, upon specific dates to be the manner indicated. named by the board of directors upon written

The work of the association was such as notice of such date to each member of the had a direct bearing upon the lumber interassociation; also for special meetings to be ests and trade from the beginning. It adoptcalled by the president or a majority of the ed a system of classification, uniform grades, board of directors upon written notice to the and sizes into which yellow pine lumber was members. Article 9 provides certain duties to be made, and by which it was to be known for various officers; among other things, that: and bought and sold, and to which manufac

"It shall be the duty of the secretary to give turers were required to conform, and to low pine district. These classifications and recommending work to be inaugurated or ungrades were printed and widely circulated dertaken. throughout the trade.

The association had committees on In the clause last above are the commenda- “Grades," "Weights," "Values," "Good of the ble things which it did. It inaugurated the Association," “Resolutions," "Membership system of inspection about the year of 1898 and Revenue,” “Auditing of Accounts," which has been continuously followed since "Terms of Sale," "Price List," to which were such time, through inspectors appointed by referred appropriate matters for their conthe authority of the association and in its sideration and for report back to the associaemploy, by which the grading, size, and tion. These matters were usually provocaweight rules of the association were enforced tive of discussion by the various members. among manufacturers of yellow pine, and

Among those most prominent in conducting through which, also, the association and its the affairs and proceedings of the association officers and members were kept informed as

were found the largest producers of yellow to the actual amount of yellow pine in stock pine lumber in the country; persons interestby the various manufacturers thereof, and ed in various corporations controlling mills the weights and grades thereof. These in- of large production and output, and in varispectors made written reports of their find- ous wholesale and selling agencies of large ings in triplicate; one copy was sent to the business, and some of whom were also among manufacturer, the chief inspector, and the the largest retail dealers of the country with secretary of the association. Part of the extensive lines of retail yards. J. B. White, work of these inspectors was good and bore who claims to have originated the idea of the good results in the trade; part of it was evil. formation of the association, was its first

The chief inspector had an office with the president, punctual in attendance upon its secretary of the association in the city of St. meetings, a member of its board of directors Louis. Information as to the amount of lum

almost continuously since its organization, ber manufactured and of the output is fur- prominent in discussion of matters before the nished to the secretary of the association by association, active in committee service, bethe various mill managers of the respective

ing a member of the association's committee

on values until 1906, and appointed by the asmills; the amount of stock on hand by manu- sociation at that time as a member of the facturers and wholesalers was furnished by market committee, otherwise known as “Comthem to the secretary upon inquiry every 30 mittee of Thirty,” and likewise, upon the days. The association had about 18 inspec- abolition of the committee on values under tors at the time of this suit, 7 of whom are the direction of the board of directors, bealso employed in settling disputes between

came one of the correspondents of the secrewholesalers and retailers growing out of tary of the association, George K. Smith, adtransactions of lumber sales and purchases, vising with said Smith from time to time as and in such cases the decisions of the in- to prices to be quoted to the trade for yellow spectors prevail in 99 cases out of 100. The pine lumber. Mr. White has extensive intermills were inspected about every 30 days. ests in Missouri and Louisiana, and perhaps The secretary of the association thus acquired elsewhere. He was general manager of the information constantly of the amount of lum- Missouri Lumber & Mining Company, with ber being manufactured, and by whom, the an authorized stock for Missouri of $500,000, amount being sold, and by whom, and the and with an annual output of 54,000,000 or amount of stock remaining in the hands of 55,000,000 feet of lumber. He was also each respective manufacturer, together with manager of the Missouri Lumber & Land Ex. the grades and sizes thereof.

change Company, a selling corporation or The secretary also seemed to gather such agency, selling for the Missouri Lumber & information of the same nature and char- Mining Company, the Louisiana Long Leaf acter as possible from yellow pine mills and Company, the Louisiana Central Company, manufacturers not members of the associa- the Ozan Land & Lumber Company, with an tion. The association also inspected lumber aggregate output of about 165,000,000 feet through its inspectors for mills not members per annum. He also owned as late as 1904 of the association.

the controlling interest in nine lumber yards, In its annual and semiannual meetings, the and had a partner interested in many more. secretary made a report to the association He was also a member of the joint trades reimparting such information as he desired, lations committee, which brought about the touching on the part of the board of direc- trades relation agreement between the Southtors, of himself, or those under him, of the ern Manufacturers' Association and the alcondition of the affairs of the association, or lied retail lumber association of the country of the trade, of the amount of lumber being in which the retailers were members, and uncut and sold, and of such other matters as der which the Yellow Pine Association manuhe deemed advisable, and made such recom- facturers agreed to sell only to retail memmendations as he desired. The president of bers of the association, and in which the the association usually delivered an address retail members agreed to buy only of the Yeltouching matters of interest to the associa-' low Pine Manufacturers' Association memtion, reviewing the work accomplished, and bers.

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