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ous competition. Some of our members lose the January, 1905, association, calls atten. sight of the fact that reducing sales below the tion to the fact that 70 per cent of the outmarket, manipulating of grades, special terms, and special arrangements, all actuated by self", put had been curtailed 3343 per cent., and ish motives, while possibly of temporary ad- submitted the result of his clearing house vantage to the offender, always react, and are and other reports from members and manuthe direct cause of our product for the year facturers showing the amount of curtailment being sold below the values justified by the law of supply and demand."

by months beginning with July and ending Captain J. B. White, at this January meet- of curtailment during that period by states

with December, 1904, and also the amount ing, delivered an address before the associa: and the number of mills in each state curtailtion, entitled “Marketing of Yellow Pine,"

ing. in which, among other things, he said:

There was less stock cut during the year A certain large Eastern jobber of yellow pine, whom we all here well know, and who has of 1904 than had been cut during the year lately become a manufacturer, said to me the 1903, more shipped during the year 1904 than other day that he could name 15 men in the in 1903, and less stock on hand January 1, South who, if they could agree, could fix and maintain a uniform price for yellow pine in all 1905, than was on hand January 1, 1904. In the markets of the United States. I asked him less than 10 days from the 1st of July, after who they were. He wrote down the names, curtailment began, the downward tendency and I believe he is right. There is no wood that of prices had been stopped, and within 30 will take the place of yellow pine at anywhere near its present value. Let us think the sub- days a substantial advance had been made. ject over.

It is worthy of our prompt consid-On October 15th another notable advance eration. There are a great many here to-day was made in prices. The advances between at this meeting; but, when you come to look us all up and see who the men are who have the July 1st and October 1st was about $1.19 per large control of all these different interests, we M, while between October 1 and January 1, may be surprised to discover how large a part 1905, it was about $1.04 per M, or between of the manufacturing interests here represented July 1, 1904, and January 1, 1905, it was are really controlled by less than 15 men, and if this is true, as I believe it, how close we may the association committee on values again

about $2.23 per M. On January 10, 1905, be to the final curing of the ills with which we have been afflicted.'

advanced the prices. The result was that at its semiannual The profits of the Long-Bell Company for meeting in June, 1904, the association, in ex- the six months' period by reason of the curecutive meeting, adopted a resolution favor- tailment was $260,381. It was estimated for ing the curtailment of 3342 per cent. in the all lumber manufacturers in the district for amount of lumber being manufactured by the the same period there was an increase in various mills for a period of 90 days begin- profits of $6,298,500. To members of the asning with July 1, 1904. The meeting was sociation during the same period about $2,well attended; a list of those in attendance 210,000. President Long, in his annual adbeing found in the record.

dress to the association for the year 1905, George K. Smith, secretary, sent out to the reviewed the experiences of 1903 and the convarious members and others copies of the ditions of the first six months of 1904, and curtailment resolution, with the request that then took up the question of the curtailment he be advised of their intentions as to ob- matter and its results, and said in part as serving it. A great number of the members follows: acted in accordance with the resolution and resolution was passed looking to the reduction

"And so at our semiannual meeting in June a curtailed the amount of the product manu- of our output about 3343 per cent. Some claim factured. Secretary Smith's official report to that the operation of this association costs too the January meeting, 1905, and President much money, Doubtless it is true that many Long's address both show this indubitably. stay out of it because of the cost it will be to

them. I stated a few moments ago that this The secretary called for and received reports organization was organized in the year of 1892, from the mills as to facts showing whether or thirteen years ago. The total cost to operate they were complying or not, and received the same during its entire existence has been in reports about every 30 days, showing the tained from Secretary Smith's records.

round numbers $225,000; these figures are ob

The amount of lumber being cut and the stocks members of our association, when running reguon hand, etc. At the end of the first 90 days, lar time, manufacture about 250,000,000 feet a the second period of 90 days was recommend month. On two-thirds time would mean 166,

000,000 feet. According to these figures, we ed with like results.

shipped during the three months from July to The involuntary curtailment during the September, inclusive, 500,000,000, on which we period of 6 months from July 1, 1904, to received an advance of $1.17 per thousand, equal January 1, 1905, that is, curtailment by rea- feet, October to December, inclusive, on which

to $595,000. A like amount, viz., 500,000,000 son of accidents or other matters, which ren- we received an advance over July 1st, prices of dered it impossible to operate mills for cer- | $2.23 per thousand, making. $1,710,000. tain days or times, amounted to 186,429,828 bad not this curtail movement been effected,

“I believe it practically safe to calculate that, feet, while the voluntary curtailment for the prices would have receded at least 50 cents per same period of time amounted to 457,400,502 thousand below those prevailing July 1st. Mulfeet, making a total curtailment during the tiplying 1,000,000,000 feet by this amount, we

have $500,000. Added to the $1,710,000, we period of 643,850,330 feet.

have $2,210,000 saved to the members of our asSecretary Smith, in his official report to sociation in six months, or about ten times as


much as the entire expense of this organization 'Resolved, that there shall be a permanent since its inception.

committee on values appointed. In addition to “Again complete statistics show that the mills former work of said committee, it shall be their within the range of the territory covered by this duty to appoint from their own number, a select association manufacture about 8,500,000,000 committee of five, who shall be charged with feet of lumber annually. Reducing this one carefully studying all market conditions and third will give us 5,700,000,000 feet annually. conditions of stock, and who shall in event of One-fourth every three months would give 1,- apparent necessity, take such action to secure 425,000,000 feet. Multiplied by the advance further curtailment as they may deem needful.'' between July 1st to October 1st, we have about

This report was adopted. $1,695,750; a like amount shipped between October 1st and January 1st at $2.23 equal to $3,

Not only did prices advance during the 177,750, estimating that prices would have de- curtailment period, but they continued to clined at least 50 cents per thousand below those advance for some time afterwards. A new prevailing July 1st, would mean on 2,850,000,000 feet $1,425,000, or a total saving to the en- price list was issued the 10th of January, tire manufacturing fraternity in the district in 1905, and the association committee question $6,298,500.

values a few days afterwards reported that "Very unexpectedly, but true, we found that they would make no changes in the same, but one of our mills manufactured its lumber during this curtail movement at 17 cents per thousand reaffirm the same with a view of early accheaper than the first six months of the year tion towards an advance later on. They did under like conditions as to expenditures, etc. ; issue a new list in March, 1905, and again another $1.64. This mill, however, was a new in May, July, August, November, and Decemmill, and doubtless part of this saving is accounted for by the same being in smoother run- ber; each list showing an additional advance ning shape the last six months than during the over the last previous one. Four new ones first six months. Another produced its lumber were issued in 1906, nine in 1907, and three at 20 cents less under the curtail plan. Another, and the last, cost 33 cents more during the in 1908, to the time of the institution of this last six months than the first six.

suit. Prices advanced from August, 1904, to "I wish you would individually make a reck- May, 1908, on some items as high as $12 per oning of what this curtail movement means to

thousand. you, for by this means the illustration I think will be more forcible. Some two years ago, in

In the early part of 1905 continued curfiguring up and finding that the cost to tailment took place in the production of lumpany and its allied interests to operate this as-ber, being involuntary, however, on account sociation was about $2,500 per year (and I must of weather conditions. admit that I thought it looked large), yet in

The amount, howmaking my calculation as to the saving that this ever, was such as to render any voluntary curtail movement has effected to my company, curtailment unnecessary in order to give the and finding that we obtained about $145,081 association the proper grip on prices. The for our shipments between July 1st and January 1st than we would have obtained at prices amount of curtailment for the first six prevailing July 1st, and that our stock on hand months was over 33 per cent. again. Prices at our mills and in our retail yards was worth continued to hold and advance until in the about $115,000 more than it would have been latter part of 1907, when it appears that worth January 1st in the absence of this movement, making a total saving for this company of

there was

a great curtailment among the $260,380; the $2,500, of course, sinks into an mills. In the month of November for that insignificant pebble.

year a curtailment of 203,000,000 feet was “To me, our ability to bring so large a number of minds together to such an extent as to reported by 328 mills; while in the month work to the same end is of more satisfaction of December, from 420 mills reporting, in than the money thus far obtained by this ac- territory covered by the association memtion, for it overthrows the idea often expressed bership, there was found a curtailment that there are too many different interests in

In October a dirvolved to affect prices when the manufacturing of 309,000,000, feet. capacity or supply is in excess of the demands | cular letter had been issued to the manuof the trade.

facturers, calling attention to the condition "I believe that the working of this curtail of stocks, suggesting that it was time to “stop, movement will give us more confidence in ourselves, more confidence in each other, and should look, and listen.” By the middle of Novemwe, as we will, reach a condition some time in ber following a mass meeting of yellow pine the future where our supply will exceed the de- manufacturers was held at Memphis, and remand, this experience will prove of immense value, and just in this connection, preparatory ports as to the running times of various sawto such a condition, I would recommend that a mills were called for, and also as to the committee consisting of two from each district amount of lumber being produced, and the covered by this association be appointed and curtailment above referred to followed. In made a permanent committee on curtailment, in whose hands shall be lodged power to restrict | his January, 1908, report Secretary Smith the output when in their opinion conditions de said: mand."

"In closing my report one year ago this senThis address was referred to a committee

tence was used : 'Unless something unforeseen

happens to prevent, we should move forward for such recommendation as it might see fit during 1907 with increasing members and into make concerning it. In due time this com-creased benefits to every member.' As you all mittee reported back to the association as know, something, happened late in October

which put the brakes on suddenly, and the effect follows:

will be noted in our figures on production, as “We recommend to all our members a most well as in the curtail of the association and the careful study of all the suggestions so ably pre- income account Many will remember a circular sented. Recognizing the great victory gained by issued on October 3d, calling attention to condiour late efforts at curtailment, we offer the fol- tion of stocks at that time which would cause lowing:

manufacturers to 'stop, look, and listen.' Since that time, owing to financial stringency, there price when so regulated and fixed; to regulate, has been a marked reduction in production. fix, and limit the amount and quantity of lum

"At a mass meeting held in Memphis on No- ber manufactured and bought and sold in this vember 14th, a suggestion was made that the state; to control and limit the trade in lumrunning time of sawmills be secured with a ber, and to limit competition in such lumber statement as to any decrease or increase of pro- trade in Missouri, and that the respondents duction. From actual reports sent in, the re- and each and every one of them as members of duction in production during November among said association have, through said association, 328 mills was 203,000,000 feet, among 420 mills pool, arrangement, and undertaking, and by in December, 309,000,000 feet, and among 266 means of its practices and policies, regulated mills in January will be 273,000,000 feet. Us- and limited the amount and quantity of ļuming these figures as a basis, it is reasonable to ber manufactured and sold in Missouri; have count on a reduction in our output between increased, fixed, and maintained the market November 1, 1907, and January 1, 1908, of price of sumber bought and sold in this state; 1,000,000,000 feet, or 44 per cent. in the states have lessened lawful trade and full and free covered by our membership. The effect on competition in the manufacture, importation, stocks will be shown later. "Calls for running and sale of lumber in this state, and were at time of sawmills will be made monthly until the time of the institution of this suit unlaw. conditions change.”

fully and illegally fixing and maintaining the The downward tendency in prices starting full and free competition in the importation

price of lumber in the state, and restraining in about that time was arrested at once, and and manufacture and sale of lumber in this on some items immediate advances were state, and that by means thereof respondents made.

have violated the said statute law of the state

of Missouri upon which the information is Some of the respondents filed on June 10, based, and have incurred all the penalties 1912, a motion to require relator to elect up therefor as provided in said statutes." on which of three charges, to wit, member- Thereupon, and within the time provided ship in and alleged acts as members of the by the order, respondents filed with this Southwestern Lumbermen's Retail Associa- court 72 exceptions, and the case is before tion, membership in and alleged acts as mem- us for our ruling as to whether in the last bers of the Yellow Pine Association, and acts analysis—and for naught else of legal subin connection with the joint trade relations stance there is law and evidence in the agreement, the relator would proceed. whole case justifying us in granting the

The commissioner found guilty all of the prayer of the relator, or whether respondents respondents whose names, domicile, and con- should go hence acquit. So, since there is nections with the Yellow Pine Association no point to be subserved by a lengthy sepawe have set out above herein. Generally his rate review and discussion of the whole of findings are these :

these 72 exceptions, we shall not take them "In view of the record there could be no ques-up seriatim, but discuss and rule such vital tion but what it was for the purpose and in- points as may serve to elucidate the one questention by the use of the price list and by the curtailment processes and other methods and tion in the case. processes employed, singly and separately by We have drawn largely upon the most exeach, and also the one in connection with the cellent and scholarly report of 'the able comother, to fix, regulate, maintain, and advance missioner for the facts of this statement, and prices of yellow pine lumber upon the market in Missouri. Not only did the association and also for the language thereof, which for the its members pursue policies peculiar to the most part is verbatim. This acknowledgassociation for the purpose of affecting and ment is in lieu of quotation marks. controlling the prices of lumber, but it co-operated with the Southwestern Lumbermen's

Elliott W. Major, Atty. Gen., and John M. Association and with other associations of similar character, methods, and work, which | Atkinson, of Jefferson City, Special Counhad as a result the limiting of competition in sel, for relator. Botsford, Deatherage & the trade and the control of the trade, with all Creason, of Kansas City, for respondent Leithat that might mean. It entered into an

Arthur N. Sager agreement with the Lumber Secretaries Bureau digh-Havens Lumber Co. of Information in which was federated the and Walter H. Saunders, both of Kansas great retail lumber companies covering the City, for certain respondents. Johnson & territory of its operations, manufacturers, and Lucas, Holmes, Holmes & Page, W. R. Thurwholesalers, which was in its essence unlawful and tended to restrict trade and limit it to mond, and Scarritt, Scarritt, Jones & Miller, certain channels and give the control thereof all of Kansas City, for other respondents. into certain hands and thereby make it the easier to regulate the quantity or amount of lumber manufactured and sold and the price FARIS, J. (after stating the facts as to be bad and obtained therefor."

above). Many contentions have been lodged Specifically, and touching the provisions of with us by the many learned counsel who, our anti-trust statutes and the phases there- representing the different respondents, have of which the commissioner deemed to have filed briefs or made oral arguments in this been violated, he finds:

court. All of these cortentions, however, in "It is further found that the Yellow Pine the last analysis, we think may be fairly emAssociation is an unlawful pool, trust, agree-braced in the epitome thereof which we make ment, combination, confederation,

arrange- below: ment, and undertaking, created, entered into, and maintained by respondents and others

(a) That the petition filed by relator here with the unlawful design, purpose, and view of in does not state facts sufficient to constitute limiting, controlling, and fixing the price to be a cause of action against any of the respondpaid by retail dealers in lumber and consumers of lumber in the state for lumber offered ents; (b) that there is a misjoinder of causes for sale and sold herein, and to maintain such' of action, or alleged causes of action, against


the several respondents; (c), that respondents mony. The status of this commissioner, as are, by law, and by the constitutional guar- he has come to be named, as an arm of the anty, entitled to a jury trial; (d) that the court, has never been clearly and definiteiy three-year statute of limitations, as a ques-determined by any judicial holding. To an tion of law, applies under the facts to the extent, the duties of such a commissioner alleged acts of respondents, and that thus ap- seem to be sui generis. Usually and in subplying such statute respondents should go stance the orders made by this court appointacquit upon the evidence; and (e) that, upon ing such commissioners have been that: the law and the evidence as shown by the "Such commissioner shall have the power record, the finding of this court should be for and authority and be subject to the same durespondents and against the state. Thus far imposed upon officers authorized to take depo

ties and obligations as are by law conferred and in their contentions all of the respondents sitions, and, in addition to the power and auagree, and thus do they each contend. In thority aforesaid, said commissioner shall have addition, some of the respondents herein fur power and authority to hear and determine ali ther contend (1) that this court has no juris- clude the same in the same manner and to the

objections to testimony, and to admit or exdiction in this case, for the reason that the same extent as this court might in a trial of statutes under which the prosecution is had this cause before this court; all rulings of such are, and each of them is, violative of the in this court, at or before the final hearing, of

commissioner to be subject, however, to review Interstate Commerce Law, and that therefore this cause upon exceptions by either party." they infringe upon the rights given by the

The rule stated by Finkelnberg is as fol. Constitution of the United States to the Con

lows: gress; that (2) sections 10310, 10312, and

"It is usual to have the testimony taken by 10304, Revised Statutes of Mo, 1909, are, and a commissioner appointed for that purpose, each of them is, unconstitutional.

with power to rule on questions of evidence, Many other points are urged; but all of subject to review by the court itself.” Finkeln

berg on App. Prac. 194. them, in our view, can be included in the contention (e) above urged. Practically all of

Upon the latter rule, or upon the above the exceptions filed in this court to the report order, the apparently conclusive power conof the commissioner may be disposed of with-| ferred on the commissioner is, it is clear, a

naked and useless one. in the compass of this point. In order to reasonably preserve the logic of this discus

In the case at bar, our commissioner, by sion, we here shall make touching the case

an order of this court made in that behalf, some preliminary observations.

was empowered to It is clear that, if we should hold in the "take the testimony, upon the issues joined in end that under the law the duty of passing issue subpænas, compel the attendance of wit

said cause, with full power and authority to both upon the law and the evidence devolves nesses, and the production of papers, books, upon this court, then the question of the re- and other documents, to issue attachments fusal by the commissioner of certain declara- tions to' testimony, and to admit or exclude the

therefor, and to hear and determine all objections of law requested, the giving by the com- same in the same manner and to the same exmissioner of other declarations, the findings tent as this court might in the trial of the case of fact and the conclusions of law made by with his findings of fact thereon, together with

before the court, and to report the testimony the commissioner, and the alleged admission his findings as to the law upon each issue tenof incompetent evidence offered by the state, dered to him by the respective parties, and to all fall out of this case. Likewise, owing to state his conclusions of law in his final report, inherent limitations of conditions precedent exceptions to the findings of fact and law so

made by said special commissioner, to be filed to a review, hereafter to be noticed, errors by either party so desiring within ten days bottomed on the refusal to admit competent after the filing of the special commissioner's retestimony fall out of the case.

port and findings." [1] The Constitution has vested in this

There is no statute nor are there any concourt original jurisdiction for hearing and stitutional provisions defining the effect and determining proceedings by quo warranto, or, binding force of the findings of such commisas this court has construed the language of sioner upon the law or the facts. How far, the Constitution, "informations in the nature if at all, is this court bound by such findof quo warranto.” State ex inf. Walker v. ings? There are constitutional objections to Equitable Loan Association, 142 Mo. 325, 41 the power of this court to delegate any of S. W. 916. Whether originally there was in the duties conferred upon it by law or by the the minds of the makers of the Constitution Constitution. The practice of thus designatthe intention that questions of fact should ing some attorney to take the testimony in be heard in this court in matters wherein it an original proceeding and return the same has original jurisdiction, upon oral testimony, to this court, arises from the necessity of as in the courts nisi, we need not here dis- the case, without the protecting authority cuss. Whatever the intention may have been, of either Constitution or statute, except as to the practice is now well-settled in this court writs of prohibition, by a comparatively rethat, in original proceedings in which ques-cent statute. Laws 1895, § 6, p. 95. The tions of fact arise necessitating the introduc- power to pass upon the admission or nonadtion of evidence in proof or disproof thereof, mission of testimony as a finality would this court will appoint as an aid thereof some carry with it, to an extent at least, some apthority. The power of a trial court or as not excluded it. . In the last analysis, in no court of general jurisdiction-as, for exam- case and in no event, as we have seen, does ple, our circuit courts—to appoint referees the ruling of the commissioner conclude is especially conferred by statute. Such ref- either party or this court, since either party erees are recognized statutory arms of the may review his rulings by exceptions. So circuit court, to be used in certain cases and the commissioner does not in fact have the under certain conditions. No such authority power to "admit or to exclude testimony in to delegate any of its judicial powers as we the same manner and to the same extent as have seen, having been conferred upon this this court might in a trial before the court," court either by the organic law or by statute, the order to the contrary notwithstanding. and such delegation of the full power to bind Except in so far as it may stimulate counsel and loose being in our view unwarranted, we to plant objections and exceptions like dansee no escape from the conclusion that a ger signals thickly through the hearing, and commissioner appointed by this court to take to obviate the labor of reviewing all such not testimony in an original proceeding has but brought here by formal exceptions, such verthe bare authority of a special commissioner biage in an order serves no practical purpose. appointed to take depositions and return We find no fault with it, however, but are them into court. His findings upon the facts merely discussing it arguendo to determine, would be persuasive, and not binding on this if we may, its legal effect. court; his conclusions upon the law likewise If we consider the commissioner as occupy. might be persuasive, as might be the sugges- ing the status of a statutory referee and as tions of a friend to the court, but not bind- possessing all of the powers, duties, and pre ing. Any other view would eventually lead rogatives of such, we yet reach the identical us into conflict with the law and the Con- conclusion, though we come to it by a differstitution. This view, when compared with ent road. For in equity cases the court is the earlier forms of orders made in these not bound by the findings of a referee upon cases, seems to be in consonance therewith the facts. O'Neill v. Capelle, 62 Mo. 202. Latterly, the orders made in these cases would This is the rule likewise in all cases which seem, by their terms, to attempt to broad- are compulsorily referable under our statute. en the original power conferred upon such Utley v. Hill, 155 Mo. 232, 55 S. W. 1091, 49 commissioners. Such broadening cannot, in L. R. A. 323, 78 Am. St. Rep. 569; Reed v. our view, be upheld under the law or Young, 246 Mo. loc. cit. 618, 154 S. W. 766; under the organic law. Any other view in- Haas v. Garnett, 155 Mo. 568, 55 S. W. 1132. evitably leads us into logical closed lanes Likewise the rule as to the force and effect of and brings about impracticable, if not ab- the reports of masters in chancery, is in surd, situations in practice. If the commis- consonance with this view in such a case sioner, on a hearing had, err in refusing to as this. Where a case under the old equity admit evidence which is competent and vital- practice was referred to a master by consent, ly material, and which he ought to have then the findings of the latter were like speadmitted, so as to enable us to pass on the cial verdicts of a jury, or like the report of case legally, fairly, intelligently, what are a referee, would be in the same case; but we to do with the case when we convict him where the case was sent to the master, withof error? Clearly we may not do the useless out the consent of both parties, the master's thing of sending the case back to him, only findings of fact were advisory to the court that the error may be corrected. No good only. Hapgood v. Berry, 157 Fed. 807, 85 C. would be thus subserved, except to confer a C. A. 171; Kimberly v. Arms, 129 U. S. 512, debatable personal favor upon the commis- 9 Sup. Ct. 355, 32 L. Ed. 764. So whether sioner, in that we would confront him with we view the commissioner as an arm of this his own error, without perhaps convincing court sui generis, whose functions have arishim that he had erred. If he err by admit- en ex necessitate, or whether we weigh him ting evidence that he ought not to admit, the in the scales by which we weigh a referee, same thing is true. We have the matter be- or a master in chancery, we reach the same fore us and may correct this error. In nei- conclusion, as to our right here to review ther contingency does good accrue, nor is the his findings. case expedited by conferring upon the com- [2] Taking these views as to the powers missioner the power to bind and loose in his and duties of the commissioner, it will be rulings upon the facts or the law. If we seen that all of the rulings made by him may confer so thoroughgoing a power upon upon the law and the evidence, as also the a commissioner, there is left to us but the findings made by him upon the facts, are subclerical labor of entering the decrees of our ject to complete, full, and ample review by Frankenstein. Such a view contributes but this court upon exceptions timely filed there little to brevity of record or simplicity of to by either party. This being the case, the procedure, because in practice upon excep-contentions and exceptions urged by the retions made the case comes up to us with the spondents, other than those of cold law and offerings bodily in the record for our review, fact mentioned above, fall out of the case. just as if in all cases the commissioner had The case is here for our weighing upon the admitted it originally, or just as if he had law, and for our examination upon the evi

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