so desiring within ten days after the filing of the special commissioner's report and findings." Afterwards various respondents filed their separate amended answers, again admitting their respective corporate capacities, denying specifically the other allegations of the information; the Missouri Lumber & Mining Company and the Missouri Lumber & Land Exchange Company in addition setting up the plea of the three-year statute of limitations and likewise the plea of the five-year statute of limitations, also that the Missouri statutes upon which the information was grounded were in conflict with the provisions of section 1, art. 14, of the amendments to the Constitution of the United States, and therefore unconstitutional and void, in that said act was alleged to abridge the privileges and immunities of respondents, and to deprive them of their property without due process of law, and denied to respondents equal protection of the law and other provisions thereof. The remaining respondents made similar answers, attacking the said statutes of Missouri in question upon the additional grounds, however, that they were in violation of the Constitution of the state of Missouri in particulars fully set out in said answers, among which parts alleged to be violated was section 28, art. 4, which provides that no bill shall contain more than one subject, etc.; section 21 of article 2 provides that private property shall not be taken or damaged for public use, without just compensation; section 53 of article 4 provides that the General Assembly shall not pass any local or special laws regulating the practice or jurisdiction by changing the rules of evidence in judicial proceedings, and other provisions of said Constitutions, and for such reasons said statutes are unconstitutional and void. Afterwards, and prior to the taking of any testimony in the case, Judge Brace tendered his resignation as special commissioner, and, the same being formally accepted, Robert M. Reynolds, Esq., was, by this court on the 14th of November, 1910, by an order then made, appointed special commissioner to take evidence. This order was similar in verbiage in all material respects to that above set out in this behalf, and the same need not again use up space here. Special Commissioner Reynolds, having duly qualified on the 22d of May, 1911, began the taking of testimony in the case. The taking of this testimony (which embraces approximately 3,000 printed pages, and is accompanied by some 200 pounds weight avoirdupois of exhibits) having been completed, Commissioner Reynolds has filed the same (with the exhibits) with us, together with his findings of fact and conclusions of law, in all things pursuant to the terms of the order appointing him. The respondents, upon the hearing herein before Special Commissioner Reynolds, hereinafter for brevity styled simply "Commissioner," and before and at the time the first evidence was offered herein by the state, ob jected to the hearing and trial before the commissioner for the reasons assigned by them "that this proceeding was a suit, the object and purpose of which was to confiscate under the statutes the whole of the property of each of the defendants or respondents, or such portion of respondents' property as the court might deem proper, or to impose a fine upon each of the respondents, and because the Constitution of the state of Missouri and the equality of rights guarantees that the right of trial by jury, as heretofore existing, shall not be denied," and claimed that right to trial by jury of the issues raised, and to that end invoked article 2 of the Constitution of the state, guaranteeing the right of a jury trial. They also invoked the fourteenth amendment of the Constitution of the United States, which guarantees the right of all citizens to be deprived of their property only by due process of law, and equal protection of the law to all citizens. Respondents, furthermore, at this first meeting for the taking of proof, and before any material evidence was put into the case, objected "to the introduction of any further evidence under the allegations of the state's pleadings, for the reason that the information or writ, neither separately nor together, states sufficient facts to constitute a cause of action against the defendants, or either of them." At the close of the evidence offered in behalf of the state, respondents made and filed their separate demurrers, thereto, based upon the following propositions: First, that the evidence did not sustain the allegations of the information as to the demurring respondents; second, the evidence did not sustain the allegation of the information as to any respondent; third, on the pleadings and evidence adduced relator is not entitled to the relief prayed for; fourth, from the pleadings and evidence adduced, relator had no cause of action against the demurring respondent or any respondent; fifth, that there is a misjoinder of parties defendaut and likewise a misjoinder of causes of action. Some of said demurrers invoked section 22, art. 2, section 28, art, 2, section 30, art. 2, section 28, art. 4, section 53, art. 4, of the Constitution of the state of Missouri, with which provisions the said statutes were alleged to be in conflict. By agreement this motion and these demurrers were passed by the commissioner to be heard upon the argument of this cause upon all the issues raised in this case, and for final determination with all the other issues in the case. The facts of this case, as contradistinguished from a recital of the pleadings, steps taken, and procedure, as we gather them from this voluminous record of the evidence, aided as we have been by the able, exhaustive, and painstaking labors of the learned commissioner, are about as follows: The yellow pine lumber industry in the 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. The dealers in the trade may be classified as manufacturers, wholesalers, and retailers. Under the language of the trade a certain "off-color" variety of those dealers are denominated "poachers." ganized about the year 1902. About 12 different associations, including that here complained of, are affiliated in the National. The respondents, except as to some of the same as to which this proceeding has been dismissed, were at the institution of this suit, or recently before the same was begun, members of the Yellow Pine Manufacturers' Association; their respective connection therewith, their capital stock, their origin and domicile being as follows: Alf Bennett Lumber Company; incorporated in Missouri August 2, 1905; present capital, $50,000; a member of the association from 1906 to the date of the commencement of this suit. Arkansas Lumber Company; incorporated in Arkansas; authorized to do business in Missouri January 18, 1905; capitalization represented by business in this state, $3.000; member of the association from 1902 to date of commencement of this suit. The manufacturer, as the name implies, cuts and saws the lumber from the tree or "stumpage." The wholesaler handles the manufactured product in large quantities and markets the same, generally to the retailer, but in some instances direct to the consumer. In the latter instance he comes within the definition of "poacher." The retailer sells directly to the consumer. In instances where he maintains a yard in a community where he sells, carrying a certain stock, meeting the requirements of so-called ethical association rules, hereinafter more fully explained, he is known in the trade as a "reguBowman-Hicks Lumber Company; incorpolar" and "legitimate retailer"; where he rated in Missouri June 27, 1900; present capital, $1,250,000; became a member of the assells in a community where he has and main-sociation in 1902, and remained such to the date tains no yard, but in which some other dealer does maintain one, in trade parlance he comes within the definition of a "poacher." Some manufacturers and wholesalers are also engaged as retailers. Various kinds of lumber are manufactured and marketed in the various portions of the United States, such as white pine, fir, western pine, cypress, hardwood, redwood, and yellow pine. Dealers in this commodity seem to have organized themselves into various bodies and associations for certain purposes, ostensibly by classes; but in all of which until 1907 the manufacturers and wholesalers were members and represented. of this suit. Bradley Lumber Company; incorporated in member of the association from 1903 to the date Missouri June 14, 1901; capital, $350,000; a of this suit. Calcasieu Long Leaf Company; incorporated in Missouri April 9, 1906; capital $1,200,000; became a member of the association in 1908. Central Coal & Coke Company; incorporated in Missouri April 6, 1893; capital, $7,000,000, about one-half of which is employed in the coal 1900 to 1907; was not a member at the date of business; a member of the association from this suit. Chicago Lumber & Coal Company; incorporated in Iowa; authorized to do business in Missouri May 27, 1906; capital represented by business in this state, $10,000; member of the association from 1902 to the date of this suit; never owned any mills, was never a manufacturer, but merely a wholesaler. Colonial Lumber & Timber Company; incor capital, $250,000; a member of the association from 1903 to the date of the commencement of this suit. The yellow pine product sold and consumed in Missouri at the time of the institution of this suit equaled about 66 per cent. of the en-porated in Missouri August 29, 1902; present tire lumber product handled in Missouri. The authorized capital by various corporations engaged in its manufacture and wholesale in Missouri aggregates the sum of $16,359,000; but the number of such corporations are limited, as well also the controlling characters interested therein. About the year 1890 certain manufacturers and wholesalers in Southern territory, and particularly in the yellow pine territory, organized the Southern Lumber Manufacturers' Association, now, and at the time of the institution of this suit, known as the Yellow Pine Manufacturers' Association. Originally membership in the association embraced the manufacturers of any variety of lumber, operating within the territory of the association; but in 1906 membership was limited to yellow pine manufacturers and wholesale dealers, and at the same time the name was changed to correspond. Similar organizations have been and are now in existence representing other varieties of manufactured lumber. These various manufacturing and C. J. Carter Lumber Company; incorporated in Missouri March 23, 1896; capital $25,000; member of the association from 1902 to the date of this suit. It never owned any mills, and was never engaged in the manufacture of lumber, but was only a wholesaler. Detroit Timber & Lumber Company; incorporated in Michigan; authorized to do business in Missouri in 1900; capital represented by business in Missouri, $5,000; a member of the association from 1902 to 1905, but not thereafter. The Dierkes Lumber & Coal Company; incorporated in Nebraska; authorized to do business in Missouri in 1902; capital represented by business in this state, $30,000; a member of the association from 1903 to the date of this suit. souri July 19, 1901; present capital, $75,000; Dixie Lumber Company; incorporated in Misa member of the association from 1905 to the date of this suit. Ferguson-McDaris Lumber Company; incor$75,000; was a member of the association dur porated in Missouri December 8, 1906; capital, ing the year 1907, but not afterwards. Foster Lumber Company; incorporated in 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; incorporated in Missouri April, 1907; capital, $20,000; a member of the association from 1907 to the date of this suit. Glen Lumber Company; incorporated in Kansas; authorized to do business in Missouri January 21, 1907; capital represented by business in Missouri, $10,000; a member of the association from 1906 to the date of this suit. Grayson-McLeod Lumber Company; organized in Missouri June 5, 1873; capital, $1.000,000; member of the association from 1903 to the date of the commencement of this suit. Hogg-Harris Lumber Company; organized in Missouri February 1, 1901; capital, $75,000; member of the association from 1905 to the date of this suit. Ingham Lumber Company; incorporated in Missouri March 15, 1902; capital, $500,000; member of the association at the time of the commencement of this suit. Leidigh-Havens Lumber Company; incorporated in Missouri in 1896; capital, $200,000; member of the association from 1902 to the date of this suit. Long-Bell Lumber Company; incorporated in Missouri in 1884; capital, $2,000,000; member of the association from 1892 to the date of this suit. Louis Werner Saw Mill Company; incorporated in Missouri May, 1899; capital, $150,000; member of the association from 1905 to the date of this suit. Lufkin Land & Lumber Company; incorporated in Missouri June 14, 1905; capital, $8,000; member of the association from 1906 to the date of this suit. Missouri Lumber & Land Exchange Company; incorporated in Missouri December 31, 1897; capital, $6,000; member of the association from 1902 to the date of this suit. Its sole business has been that of a selling agent for three manufacturing companies. Missouri Lumber & Mining Company; incorporated in Missouri December 9, 1880; present capital, $500,000; member of the association from 1892 to the date of this suit. The Ozan Lumber Company; incorporated in Missouri October, 1887; capital, $200,000; member of the association from the year 1905 to the date of this suit. Robt. Kamm Lumber Company; incorporated in Missouri February, 1907; capital, $25,000; member of the association from 1907 to the date of this suit. organization of the association, with the exception of a period of two years, and he has maintained his office, as well as that of the association, at all times in the city of St. Louis, Mo. A more concise statement of this organization and its operations will be hereinafter more fully set out. The Yellow Pine Association, as did its predecessor, the Southern Lumber Manufacturers' Association, which it succeeded in 1906, held regular annual and semiannual meetings. It was a voluntary association, and had a written constitution and by-laws. It had a board of directors; its officers were president, first vice president, treasurer, and secretary, assistant secretary, and a number of additional vice presidents. The duties of these various officers and of the board of directors were in a general way provided in the constitution. The board of directors were given authority to originate and execute such plans and measures as they deem proper to carry out the objects of the organization, and authorized to command the secretary as their administrative agent in the execution of such plans; the board of directors and the secretary were clothed with all the authority of the association, except to amend the constitution. No definite obIject of the association seems to have been stated in words in the constitution or bylaws prior to the year 1906, except that members of the association should not be privileged to sell to consumers or nonresident dealers in towns where there is a member of a retail association doing business, and the object otherwise can only be ascertained from the policies inaugurated, or sought to be inaugurated, and the works and acts flowing therefrom. The constitution provided a manner for the amendment by the members of the association, and gave authority to the board of directors to make all by-laws deemed advisable and expedient to carry out the work of the association. A copy of the constitution and by-laws of the association for the year 1902 and as they remained down until the Van Cleve Lumber Company, a corporation under the laws of Missouri; became a member of the Yellow Pine Association prior to June 14, 1904, and was present at the "curtailment meeting," and thereafter remained a member of 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 In 1906 certain amendments state in 1899; capital for business in this state, in evidence. $2,000; member of the association from 1902 to were made. The name was changed, and eligibility was limited to manufacturers and wholesalers of yellow pine. A new section was added to the constitution, designated as article 3, which is as follows: 1907, and not afterwards to the time of this suit. It would appear that the total amount of yellow pine lumber cut per annum about the year 1907 or 1908 was 9,000,000,000 feet, and. that the amount cut by mills represented in the association was 3,628,255,978 feet. On the date of the filing of this suit the membership of the Yellow Pine Association was about 300. Captain John B. White (con "The object of this association shall be to secure a full understanding of the conditions surrounding the lumber market in the territory covered by this association, the shipment of uniform grades for the inspection of lumber; to promote uniform customs and usages among 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 methods of those with whom they deal, and such other information as may be found for the benefit of the members of the association; and to propose and carry out such other measures as may be deemed for the welfare and in the interest of the manufacturers of lumber who shall be members of this association." The following amendment was added to the by-laws by the board of directors in the same year: "A Committee of Thirty shall be appointed by the president, to be known as the market committee, whose sole duty it shall be to ascertain from time to time and in such manner as they deem advisable, the prevailing quotations and market prices of various classes of yellow pine lumber, and the existing conditions as to supply and demand for the same, and to cause the facts thus ascertained to be disseminated from time to time among the members of the association; it shall be the duty of the secretary to aid said committee in the discharge of its said duty." As thus amended, the constitution and bylaws continued until the institution of this suit. The secretary, George K. Smith, was custodian of all the files, records, documents, and copies thereof of the Yellow Pine Association and its predecessor, the Southern Lumber Manufacturers' Association, but was unable to produce any of the same for use in this hearing prior to the year 1906, except the constitution of 1902. He had destroyed all other records, as well as his letters, "as junk." An official copy of the constitution and by-laws, as amended in 1906, is found in the printed record. Article 1 thereof provides the name of the association; article 2 the eligibility required for membership and the dues and membership fees required. Article 3 provides the objects of the association, being the amendment hereinbefore stated, which appeared for the first time in 1906, as we have seen. Articles 4 and 5 provide the official duties. Article 6 provides: ord of all their doings; to keep a list of all the members of the association; to collect all assessments and pay them over to the treasurer: to prepare under the direction of the board of directors an annual report of their transactions and the condition of the association; to prepare and cause to be published every three months a list of all members of the association, and shall mail the same to all manufacturers of yellow pine lumber; and shall perform any and all duties which shall be required of him by the board of directors, and generally to devote his best efforts to forward the interests of the association." Article 10 provides that the board of directors shall have authority to make bylaws for the conduct of the business of the board and of its meetings, and for the business and meetings of the association, and for the protection of all interests confined to its care. Article 11 provides for the amendment of the constitution by a majority of the members at any annual or semiannual meeting upon notice of such proposed amendment given by the secretary to each member 30 days in advance of the meeting. Article 12 provides that the board of directors shall have the authority to employ a chief inspector, with one or more assistants, the chief inspector to be under the control of the board of directors, and under the immediate control of the secretary. The by-laws provided generally for the order of business of the association, including committee reports, and that the board of directors should make such additional by-laws from time to time and rules for the transaction of the business of the association as its development might require, for the investigation of claims of members, and also for the appointment of the Committee of Thirty, to be known as a "Market Committee." It appears, also, that the constitution and by-laws, as early as 1892 and as late as 1900, contained the following article: "The board of directors shall have power to 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 num- ber 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. ate the same and to advise and to carry into chief inspector has his office with the secreeffect such measures as they deem proper and The expedient to promote the objects of the associa-tary, and his assistants report to him there. tion, and the secretary shall at all times be sub- The association is maintained from year to ject to their discretion." Article 7 provides when and how the officers and directors are to be chosen, and the respective lengths of terms of office of each. Article 8 provides for annual and semiannual meetings of the association in January and July of each year, upon specific dates to be named by the board of directors upon written notice of such date to each member of the association; also for special meetings to be called by the president or a majority of the board of directors upon written notice to the members. Article 9 provides certain duties for various officers; among other things, that: "It shall be the duty of the secretary to give notice of and attend all meetings of the associa year by dues collected from its members based upon the amount of lumber sold and manufactured; there being a minimum fee of $10. At the time of the institution of this suit some $75,000 was required annually for the expenses of the association and raised in the manner indicated. The work of the association was such as had a direct bearing upon the lumber interests and trade from the beginning. It adopted a system of classification, uniform grades, and sizes into which yellow pine lumber was to be made, and by which it was to be known and bought and sold, and to which manufacturers were required to conform, and to which they did conform throughout the yel 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 Association," "Resolutions," "Membership and Revenue," "Auditing of Accounts," "Terms of Sale," "Price List," to which were referred appropriate matters for their consideration and for report back to the association. These matters were usually provocative of discussion by the various members. In the clause last above are the commenda- “Grades,” “Weights,” “Values,” “Good of the ble things which it did. It inaugurated the system of inspection about the year of 1898 which has been continuously followed since such time, through inspectors appointed by the authority of the association and in its employ, by which the grading, size, and weight rules of the association were enforced among manufacturers of yellow pine, and through which, also, the association and its officers and members were kept informed as to the actual amount of yellow pine in stock by the various manufacturers thereof, and the weights and grades thereof. These inspectors made written reports of their findings in triplicate; one copy was sent to the manufacturer, the chief inspector, and the secretary of the association. Part of the work of these inspectors was good and bore good results in the trade; part of it was evil. The chief inspector had an office with the secretary of the association in the city of St. Louis. Information as to the amount of lum Among those most prominent in conducting the affairs and proceedings of the association were found the largest producers of yellow pine lumber in the country; persons interested in various corporations controlling mills of large production and output, and in various wholesale and selling agencies of large business, and some of whom were also among the largest retail dealers of the country with extensive lines of retail yards. J. B. White, who claims to have originated the idea of the formation of the association, was its first president, punctual in attendance upon its meetings, a member of its board of directors almost continuously since its organization, ber manufactured and of the output is fur- prominent in discussion of matters before the association, active in committee service, benished to the secretary of the association by ing a member of the association's committee the various mill managers of the respective mills; the amount of stock on hand by manu-sociation at that time as a member of the on values until 1906, and appointed by the asfacturers 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, be also 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 lumMissouri 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 Exthe grades and sizes thereof. change Company, a selling corporation or agency, selling for the Missouri Lumber & Mining Company, the Louisiana Long Leaf Company, the Louisiana Central Company, the Ozan Land & Lumber Company, with an aggregate output of about 165,000,000 feet per annum. He also owned as late as 1904 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. The secretary also seemed to gather such information of the same nature and character as possible from yellow pine mills and manufacturers not members of the association. The association also inspected lumber through its inspectors for mills not members of the association. |