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nual meeting held in January, 1908, Secre- | member of this association is not to be held tary Smith, among other things, says: guilty, and is not bound by the admissions
"In closing my report one year ago, this sen- of a comember of the association, if, having tence was used: 'Unless something unforeseen taken no part, he withdraw on getting knowlhappens to prevent, we should move forward during 1907 with increasing numbers and in- edge, or if, without knowledge of the assocreased benefits to every member.' As you all ciation's conspiracy, he subsequently join, know, 'something happened late in October, but take no part in, the conspiracy, or, being which put the brakes on suddenly, and the ef- a member of the association at the time the fect will be noted in our figures on production, as well as in the growth of the association and conspiracy is made, neither be present at the the income account.
making thereof, nor have knowledge of it, "Many will remember a circular issued on nor take part in it, nor knowingly take profit October 3d, calling attention to condition of
from it. stocks at that time which should cause manufacturers to 'stop, look, and listen.' Since In passing this point, and in a way apropos that time, owing to the financial stringency, thereto, we note that learned counsel for rethere has been a marked reduction in produc- spondents complain strenuously, if not bittertion.
"At a mass meeting of manufacturers of yel- | ly, that the commissioner refused to declare low pine, held in Memphis on November 14th, a as a matter of law that: suggestion was made that the running time of
"The objects and purposes of the Yellow Pine sawmills be secured with a statement as to any Association as expressed in its constitution and increase or decrease in production. From ac- by-laws as they have existed since the month tual reports sent in, the reduction in production of January, 1902, are in all repects legal and during November among 328 mills was 203,000,- laudable.” 000 feet; among 420 mills in December 309,000,000 feet,' and among 206 mills in January In the view we take of the law, and which will be 273,000,000 feet. Using these figures we have expressed herein, the refusal of the as a basis, it is reasonable to count on a reduction in output between November 1, 1907, commissioner to so declare cuts no figure in and January 31, 1908, of 1,000,000,000 feet, the case. In the view we take of the facts, or 44 per cent., in the states covered by our this is also for a greater reason true. For if membership. The effect on stocks will be shown the record shows any one point conclusively later. Calls for running time of sawmills will be made monthly until conditions change.”
and beyond dispute, it is that neither the
Yellow Pine Association nor its predecessor [21-23] Members of the Yellow Pine Asso
ever had a by-law or a section in its consticiation are not so far copartners as that tution setting forth its objects or reasons for the unlawful agreements or conspiracies of existing till July, 1906. This, too, notwithcertain or a majority of the members will standing it had expended in its maintenance bind those not actually making or present more than $225,000 in all; that it paid its and participating in the making of such secretary for many years an annual stipend agreement, unless being members, but hav- of $8,000, and spent annually for upkeep ing no active part in the making of the agree from $60,000 to $70,000, and had been in exment, they yet carry out such agreement by istence for 16 long years! Having no publican overt act done in accordance therewith. ly expressed objects, how could its purposes In the case of State ex rel. v. Stock Ex- be divined, except by its overt acts? “Wherechange, 211 Mo. loc. cit. 191, 109 S. W. 675, fore, by their fruits ye shall know them.” 124 Am. St. Rep. 776, all members of the as- Matthew vii, 20. sociation conspired; but only a part of the Coming back to the legal effect, under our members acted. Here in the case at bar no statute, of the "curtailment” or limitation of overt general rule, resolution, or by-law of output of lumber growing out of the acts of the Yellow Pine Association expressed any the Yellow Pine Association, as the statement unlawful purpose or tendency, and only part eked out by this opinion shows them, there of the respondents were present at the meet- can be but one view we take it that such acts ing which passed, or at the indorsement of, were unlawful and fall within the purview the curtailment resolution; hence the dis- of the acts denounced by our law. State ex tinction. State ex rel. v. Stock Exchange, rel. v. People's Fuel Co., 246 Mo. 168, 151 S. 211 Mo. 181, 109 S. W. 675, 124 Am. St. Rep. W. 101 ; State ex rel. v. Firemen's Fund Ins. 776. Since some of the acts and purposes of Co., supra. the Yellow Pine Association were praise-  This brings us to a consideration of worthy, the merely becoming a member of it the proof upon the charge that respondents was not of itself so far a conspiracy as to fixed the prices to be charged for yellow pine cause an invocation of the rule that, a con- lumber in this state. The learned commisspiracy being shown, the acts and statements sioner finds that respondents are guilty also of any conspirator, dum fervet opus, will upon this charge. Practically from the orbind all. Yet if one knew of an unlawful ganization of the association of yellow pine conspiracy of an association and of its un- lumber manufacturers and dealers, this aslawful acts, and so having knowledge join it, sociation issued a price list. We need not such one becomes tainted with like guilt as go back in the discussion here further than inheres to him who took part in the conspir- the year 1902, however. At each annual acy at its inception. United States v. Lake meeting there was appointed by the Yellow thereof, and consisting of from 10 to 15 of "Sec. 5. A Committee of Thirty shall be apthe largest manufacturers and most promi- pointed by the president, to be known as the nent and aggressive members of the associa- be to ascertain from time to time and in such
Market Committee,' whose sole duty it shall tion. The record shows that R. A. Long of manner as they may deem advisable, the prethe Long-Bell Lumber & Coal Company, S. H. vailing market price of the various classes of Fullerton, of the Chicago Lumber & Coal yellow pine lumber and the existing conditions Company, C. S. Keith, of the Central Coal & as to supply and demand for the same, and to
cause the facts thus ascertained to be dissemiCoke Company, N. W. McLeod, of the Gray- nated from time to time among the members of son-McLeod Lumber Company, and J. B. the association; and it shall be the duty of the White, of the Missouri Lumber & Mining Ex- secretary, to aid said committee in the dischange Company, were usually found serving charge of its duty.” upon this committee, which was called in- The Committee of Thirty was appointed. terchangeably the “Committee on Values" The names on it are familiar names upon and again the "Committee on Price List.” | the record. By the advice of counsel they The persons named above were, when this never acted, but later the matter of getting suit was begun, and for years had been, pres-out a price list of lumber, or a “Yellow Pine ident or managing officers of the respective Price Current," was turned over to George respondents whose name follows theirs above K. Smith, the secretary of the Yellow Pine herein. We deal in no fulsome praise and Association, who selected a list of 63 corresrender honor only where honor is due when pondents, for the major part members of the we say that in the affairs of the Yellow Pine association, from whom he got monthly reAssociation throughout its career these 5 ports of the prices which they were asking persons were facile princeps, in "bad emi- for lumber of the several kinds, grades, and nence."
specifications adopted by the association. This committee on values was a standing From these reports, he says, as a basis he committee, which made report at the annual made up a flat rate sheet of delivered prices and semiannual meetings of the association upon a basis of a freight rate of 23 cents per recommending given and stated prices for hundred weight. We need not here go into each item of the several grades and specifica- the details of the printing, dissemination, tions of lumber manufactured and sold by and promulgation of this list. We have set the component members of the association. these out in the statement. Suffice it to say These reports of the committee on values that the prices shown by Secretary Smith's were adopted by the association as the prices compilation of the reports of his 63 correto be charged for the several items and spondents were unfair; they are styled by grades of lumber. The committee on values the learned commissioner "boosting" prices. also, if need arose, met in the interim be- If a great majority of the 63 reports showed tween the annual and the semiannual meet- no advance in the price of a given item, the ings of the association and promulgated new price list would yet, almost without a single price lists of yellow pine lumber, which lists exception, show an increase in the price of the committee transmitted to the secretary, this item. From time to time flat rate lists and the latter sent out to the members of the were made up; from these as a basis, bookassociation. In the year 1905 seven such lets were prepared, showing delivered prices price lists were gotten out. These conditions on the various kinds and grades of yellow subsisted till some time in the latter part pine lumber at freight rates from 10 cents of the year 1905 or the early part of the year to 45 cents. These booklets were issued by 1906, when legal investigations of the meth- the association, and so stated upon their title ods of the association, or of certain of its pages, till as late at least as December 27, component members, having been set on foot 1905. They were called "Yellow Pine Price in the state of Mississippi, the Yellow Pine Currents" till at least as late as July 18, Association, through its board of directors, 1906, and were afterwards styled “Market unanimously adopted a resolution on the 24th Reports on Yellow Pine Lumber.” Till De day of January, 1906, providing that the com-cember 27, 1905, they bore a date, stating mittee on values should no longer make any at what time the prices therein became effecreport other "than of existing conditions ap- tive, and this, too, whether they were gotplicable to the trade," and that such com- ten out, or purported to be, by the individual mittee should not make "any recommenda- members of the Yellow Pine Association or tion affecting prices to be charged for lumber by the secretary of the association. Some or the amount of the product or output there- 9,000 to 13,000 of these lists were printed for of.” This resolution, as well as the reasons each revision of prices and sent out by the for the adoption of the same, are set out in secretary. Sometimes a special cover, as for extenso in the statement of the case. No re- the Long-Bell Lumber Company, would be port of the committee on values was present used to inclose the flat list or the booklets ed to the following annual meeting. But at with the freight rates extended, in which the next meeting of the board of directors case the members of the association, rea new section was added to the by-laws of spondents and others, would give orders to the association. This section was adopted the secretary for whatever number of copies February 27, 1906, and is as follows:
of the flat list or the booklet were desired.
These would be fitted with the individual, fixed the price of yellow pine lumber purcover of the member, addressed upon the ad- suant to the adopted report of a committee dressograph of the secretary of the associa on values, and if Smith, the secretary of the tion, and by him sent out to retailers and association, pursuing the lawful methods customers of the members of the association. originated by him of obtaining reports from Thus in brief a recapitulation of the acts of correspondents of actual sales, had fairly the association upon the charge under dis- compiled and averaged such reports into a cussion.
list of current prices of yellow pine lumber, The learned commissioner finds that the we would not say that Smith's acts or the members of the association, including the re-acts of the association in this behalf were spondents, did not abide by the prices shown unlawful. In truth the name “prices curupon these price lists, either when the latter rent” explains itself in law as in diction. To were made by the committee on values, or pursue the matter further would be merely when made by the secretary. This, we think, to define common honesty, the rules of which is a correct finding.
in the last analysis are all the respondents But our statutes, recognizing as impossible in this matter are by law required to follow. and futile the legal tracing of the criminal (25, 26] That these prices were reasonable, act therein denounced from cause to effect, as they contend, and such as in the nature have wisely made the offense to consist in the of things might have eventuated regardless entering into of the conspiracy to fix prices. of the acts of respondents, does not help Here we see the respondents actually fixed them; they may not violate the law and the prices; but they did not faithfully fol- when caught red-handed say as a defense low and abide by them. The reason for that their acts, perhaps hurt no one, since this, and for the discrepancy seen in the the chances are the prices would have risen prices actually charged for lumber as be- anyway (Addyston Pipe & Steel Co. tween the several respondents, is not far to United States, 175 U. S. loc. cit. 237, 20 Sup. seek. The respondents were continually, as Ct. 96, 44 L. Ed. 136), nor does it avail them was natural, long on certain kinds, sizes, to urge that the real object of the Yellow and grades, and short on others; the first Pine Association was good, and that the ills condition dominated a cutting below the list which grew up in or grew with the associaprice as arbitrarily fixed by the committee on tion were unintentional (State ex rel. v. Firevalues or by the secretary as we have seen, men's Fund Ins. Co., supra). It is not necesand the second a “boosting” above that list sary for an agreement which restrains trade price. Again, advances of cash being made to be entered into for the purpose of so doto small millmen, and the loans falling due, ing; it is enough that the obvious and necesthe resultant desire to collect resulted in the sary effect of the agreement is to restrain placing of the lumber manufactured by trade. United States v. Freight Association, these small manufacturing nonmembers upon 166 U. S. 290, 17 Sup. Ct. 540, 41 L. Ed. 1007. the market continually at a price below the (27) Since we held that this court is not list. But one fact is accentuated; that is, concluded by the rulings of the learned comthat the price was constantly advancing. missioner in admitting or in excluding eviWhile a rigid adherence to the prices fixed dence, nor by his conclusions of law, but was in the nature of things well-nigh im- that we may from the evidence preserved in possible, yet the prices charged revolved the record make our own findings of fact, as about the prices fixed like planets in their well as our own conclusions of law, it folorbits revolve about the sun.
lows that we need not concern ourselves with We are not to be understood as declaring the exceptions taken by the respondents, nor as a matter of law, under our Missouri anti- need we pass upon any of the thousand or trust statutes, that dealers or manufacturers more objections and exceptions to the admisof any vendible commodity of sale or manu- sion of testimony. If we find facts enough facture may not issue a price current. But based upon competent and admissible evisuch a list or compilation of prices ought dence and law enough in the record to suseither to be compiled and promulgated by an tain one or more of the charges made, this indifferent or wholly disinterested person, or, is all that is necessary in order to make if compiled and promulgated by an interested proper a judgment of guilt against the reperson, it ought to be honestly and fairly spondents. compiled; it ought fairly to represent cur- Indubitably, since the Yellow Pine Manurent prices as based upon actual sales, or factures' Association is not sued herein, since upon actual offers to buy and actual offers no allegations are made in the information to sell, and not misrepresent such prices regarding it, and since no relief is asked as with a view of boosting any prices of any against it, we are without power in this acitem or items. If in the instant case there tion to give relief, except in so far as what . had been touching this price current matter is said herein may operate as rules of ethics no antecedent unlawful acts of the Yellow by which it may square its behavior, or as a Pine Association, if this association had not chart by which it may hereafter steer its for years promulgated as current prices lists course. The remedy afforded by section which falsely represented and arbitrarily 10303 might have reached it; but that is not
invoked (Hopkins v. United States, supra), , the unlawful acts, and from the active and and so the Yellow Pine Association is not aggressive or passive participation as the before us in the legal flesh.
case is of respondents' officers and agents in It follows that we find the following re- these acts, we do not find that the ends of spondents guilty as charged of (a) conspiracy justice would be subserved by meting out to to limit the output or amount of yellow pine each of the guilty respondents the same to be manufactured in Missouri, and (b) of punishment. fixing the prices to be charged in Missouri In our opinion judgments of forfeiture for such lumber, to wit: Alf Bennett Lum- should be entered as to each of the belowber Company; Arkansas Lumber Company; named respondents, dissolving and ousting Bowman-Hicks Lumber Company; Bradley them from all and singular their corporate Lumber Company; Calcasieu Long Leaf Lum- rights, privileges, and franchises, and in adber Company; Central Coal & Coke Com- | dition thereto a fine in the sum below nampany; Chicago Lumber & Coal Company; / ed should be imposed against them, respecColonial Lumber & Timber Company; C. J. tively, as set following their names, as a Carter Lumber Company; The Dierkes Lum. punishment for their and each of their violaber & Coal Company; Dixie Lumber Com- tions of the laws of this state, which sums pany; Foster Lumber Company; Freeman- shall be paid into the state treasury for the Smith Lumber Company; Geo. W. Miles Tim- use and benefit of the state of Missouri, withber & Lumber Company; Grayson-McLeod in 30 days from the date of the rendition of Lumber Company; Hogg-Harris Lumber this decision and of the judgment bottomed Company; Leidigh-Havens Lumber Company; thereon; that is to say: Alf Bennett LumLong-Bell Lumber Company; Louis Werner ber Company, ouster and a fine of $1,000. Saw Mill Company; Lufkin Land & Lumber Bowman-Hicks Lumber Company, ouster and Company; Missouri Lumber & Land Ex- a fine of $10,000. Bradley Lumber Company, change Company; Missouri Lumber & Min- ouster and a fine of $50,000. Calcasieu Long ing Company; The Ozan Lumber Company; Leaf Lumber Company, ouster and a fine of W. R. Pickering Lumber Company; Van $50,000. Central Coal & Coke Company, oustCleve Lumber Company.
er and a fine of $50,000. Colonial Lumber & We find the following respondents not Timber Company, ouster and a fine of $10,000. guilty, to wit: Detroit Timber & Lumber C. J. Carter Lumber Company, ouster and a Company, for the reason that, though it was fine of $5,000. Dixie Lumber Company, oustà member of the Yellow Pine Association er and a fine of $5,000. Foster Lumber Comfrom 1902 till some nebulous time in 1905, pany, ouster and a fine of $5,000. Geo. W. we are not able to say definitely from the Miles Timber & Lumber Company, ouster and proof whether it was a member on the 30th a fine of $1,000. Grayson-McLeod Lumber of July, 1905, or not; Ferguson-McDaris Company, ouster and a fine of $30,000. HoggLumber Company, for the reason that upon Harris Lumber Company, ouster and a fine the face of things, upon the letter of its con- of $5,000. Leidigh-Havens Lumber Company, stitution and its by-laws, the Yellow Pine ouster and a fine of $5,000. Long-Bell LumAssociation had reformed upon the surface ber Company, ouster and a fine of $50,000. when this respondent became a member there- Louis Werner Saw Mill Company, ouster and of in 1907, and there is no sufficient proof a fine of $5,000. Lufkin Land & Lumber in the record that this respondent had guilty Company, ouster and a fine of $8,000. Misknowledge of its past illegal acts (United souri Land & Lumber Exchange Company, States v. Lake Shore, etc., Ry., supra), or ouster and a fine of $6,000. Missouri Lumber knowledge of any illegal practices of the sec- & Mining Company, ouster and a fine of $50,retary in getting out the so-called market 000. The Ozan Lumber Company, ouster reports, since this respondent was a member and a fine of $5,000. Van Cleve Lumber for one year, the year 1907 only; Glen Lum- | Company, ouster and a fine of $5,000. ber Company, which became a member in Being of the opinion, however, that there 1906, for the same reasons last above set are, as stated, diverse degrees of guilt among out; Ingham Lumber Company, a member these respondents, and that upon the surface when suit was begun, for the reason that at least the Yellow Pine Association has there is no proof as to when it became a reformed some of the evils which it long, member, no proof of actual participation in openly, and flagrantly practiced, we the making of any illegal agreement, or any further of opinion that the ends of justice proof of knowledge that such were made, or will be subserved by granting a stay of erproof of any operations thereunder; and the ecution pending the further order of this Robert Kamm Lumber Company, which be-court of the decree of forfeiture and ouster came a.member of the Yellow Pine Associa- as to some of these respondents upon the pay. tion in 1907, but touching whose participa- ment by them of the fines severally assessed tion in or guilty knowledge of the illegal against them within 30 days, and upon such practices, there is no definite proof in the conditions of continuing good behavior as record.
may hereafter be annexed thereto by this From the facts as shown by the record, court by its decretal order; that is to say, from the length of time of participation in as to the following respondents: Alf Ben
nett Lumber Company; Colonial Lumber &, of by an order and judgment to be entered in Timber Company; C. J. Carter Lumber Com- the following form: pany; Dixie Lumber Company; Foster Lum "Now at this time the joint and several mober Company; Hogg-Harris Lumber Com- tions by respondents to modify our judgment pany; Dixie Lumber Company; Foster Lum- and to reduce the fines fixed by our judgment in
and to stay the issuance of our writ of ouster, The Ozan Lumber Company; Van Cleve this cause, coming on to be heard, are by the Lumber Company; and the Louis Werner court taken up, considered, and disposed of as Saw Mill Company.
"First. All such motions and all parts of such We are further of the opinion that the li- motions as go to the modification of our judgcenses to do business in Missouri heretofore ment heretofore rendered, so far as such moissued by the state of Missouri to the follow- tions ask for a reduction of fines imposed, are
overruled. ing named respondents, which are foreign
"Second. All such motions and parts of such corporations, should be revoked for violations motions, in so far as they ask and pray for a of law as stated herein, usurpation, and suspension of our writ of ouster upon the judgmisuser, that is to say, Arkansas Lumber ment beretofore entered, are sustained to the
following extent, and upon the following condiCompany, Chicago Lumber & Coal Company, tions: the Dierkes Lumber & Coal Company, and “(A) The writ of ouster from corporate Freeman-Smith Lumber Company, and that rights and franchises will be suspended as to in addition to the cancellation and revocation from this date, shall have paid to the clerk of
all of the respondents who, within 30 days of the licenses of the above-named respond- this court one-half of the fine or portion of the ents, that they and each of them, as also fine it is required to pay, and who, within 60 W. R. Pickering Lumber Company, be fined days from date, shall have paid the remaining
one-half, and the costs of this proceeding, and for their violations of law aforesaid in the who shall have, at the end of such 60 days, sums respectively below set out, which sums complied with the following conditions: (1) are respectively to be paid into the state That they have paid the fine and costs as above treasury, for the use and benefit of the state competent evidence, by way of affidavits from
stated; and (2) that such respondents show by of Missouri, within 30 days from the date its managing officers, the following things: (a) of the rendition of this decision and the That such respondents or respondent has withjudgment bottomed hereon; that is to say: sociation, and from all associations of a like
drawn from the Yellow Pine Manufacturers' AsArkansas Lumber Company, revocation of character; (b) that such respondents or license and a fine of $3,000. Chicago Lumber spondent have no officer, agent, director, stock& Coal Company, revocation of license and a holder, or employé, which is a member of such fine of $50,000. The Dierkes Lumber & Coal of similar import or character; (c) that such
Yellow Pine Manufacturers' Association, or one Company, revocation of license and a fine of respondents or respondent will not in the fu$5,000. Freeman-Smith Lumber Company, ture become a member of such association or revocation of license and a fine of $1,000. W. any similar association, or permit any officer,
agent, director, stockholder, or employé to beR. Pickering Lumber Company, a fine of come a member thereof; (d) that such re$1,000.
spondents or respondent will in the future sell But we are further of the opinion that for lumber in Missouri in open and honest competi
tion with all other wholesale dealers in lumber; considerations heretofore expressed, and in (e) that such respondents or respondent will order to make the punishment correspond not discriminate between buyers of lumber and with the respective degrees of guilt of the other material sold by them, and will treat all several respondents, a stay of execution of purchasers alike, and such respondents will not
agree in any way to discriminate against purthe decree of forfeiture and revocation of chasers; (f) that such respondents or respondtheir licenses to do business in this state, ent have and will discontinue the practice of pending the further order of this court upon dertakes to sell within the territory of another
blacklisting any retail dealer who sells or unpayment of the fines severally assessed retail dealer, and to this end will discontinue against them, and upon conditions hereafter the publication of any credit report based upon to be annexed thereto by the court by de the idea that any retail dealer is one who has cretal order, should be entered and made as dealer; (g) that such respondents or respond.
been selling in the territory of another retail to the following named respondents, that is ent will give no recognition to the demands of to say, Arkansas Lumber Company, the any organization of retail dealers, but will treat Dierkes Lumber & Coal Company, and the whether such purchaser is a member of a retail
all retail dealers alike in making sales to them, Freeman-Smith Lumber Company; all of dealers' association or not; (b) that such rewhich is so ordered.
spondents or respondent will not be a party to any agreement or understanding to control the
amount of the production of lumber; (i) that LAMM, C. J., and GRAVES, BOND, and if any retail dealers' association or one or more WALKER, JJ., concur. WOODSON, J., con- retail dealers undertake, with respondents or curs in result, except as to so much of opinion systems by which honest and real competition
any respondent, to inaugurate any system or as adjudges absolute ouster as to sundry re- in the sale of lumber, by retail or wholesale, in spondents. BROWN, J., not sitting.
the state, is or will be restricted, such respondent or respondents will promptly lay all such
facts before the Attorney General of this state; On Motions to Modify Judgment. (j) that such respondents or respondent will PER CURIAM. Upon consideration all the of any prices current, except such a price cur
not be a party to the publication or circulation