nual meeting held in January, 1908, Secre- | member of this association is not to be held tary Smith, among other things, says:

"Many will remember a circular issued on October 3d, calling attention to condition of stocks at that time which should cause manufacturers to stop, look, and listen.' Since that time, owing to the financial stringency, there has been a marked reduction in produc

tion.

guilty, and is not bound by the admissions of a comember of the association, if, having taken no part, he withdraw on getting knowledge, or if, without knowledge of the association's conspiracy, he subsequently join, but take no part in, the conspiracy, or, being a member of the association at the time the conspiracy is made, neither be present at the making thereof, nor have knowledge of it, nor take part in it, nor knowingly take profit from it.

In passing this point, and in a way apropos thereto, we note that learned counsel for respondents complain strenuously, if not bitter

as a matter of law that:

"The objects and purposes of the Yellow Pine Association as expressed in its constitution and by-laws as they have existed since the month of January, 1902, are in all repects legal and laudable."

"At a mass meeting of manufacturers of yel-ly, that the commissioner refused to declare low pine, held in Memphis on November 14th, a suggestion was made that the running time of sawmills be secured with a statement as to any increase or decrease in production. From actual reports sent in, the reduction in production during November among 328 mills was 203,000,000 feet; among 420 mills in December 309,000,000 feet, and among 206 mills in January will be 273,000,000 feet. Using these figures as a basis, it is reasonable to count on a reduction in output between November 1, 1907, and January 31, 1908, of 1,000,000,000 feet, or 44 per cent., in the states covered by our membership. The effect on stocks will be shown later. Calls for running time of sawmills will be made monthly until conditions change."

In the view we take of the law, and which we have expressed herein, the refusal of the commissioner to so declare cuts no figure in the case. In the view we take of the facts, this is also for a greater reason true. For if the record shows any one point conclusively and beyond dispute, it is that neither the Yellow Pine Association nor its predecessor ever had a by-law or a section in its constitution setting forth its objects or reasons for existing till July, 1906. This, too, notwithstanding it had expended in its maintenance more than $225,000 in all; that it paid its secretary for many years an annual stipend of $8,000, and spent annually for upkeep from $60,000 to $70,000, and had been in existence for 16 long years! Having no publicly expressed objects, how could its purposes | be divined, except by its overt acts? "Wherefore, by their fruits ye shall know them." Matthew vii, 20.

[21-23] Members of the Yellow Pine Association are not so far copartners as that the unlawful agreements or conspiracies of certain or a majority of the members will bind those not actually making or present and participating in the making of such agreement, unless being members, but having no active part in the making of the agreement, they yet carry out such agreement by an overt act done in accordance therewith. In the case of State ex rel. v. Stock Exchange, 211 Mo. loc. cit. 191, 109 S. W. 675, 124 Am. St. Rep. 776, all members of the association conspired; but only a part of the members acted. Here in the case at bar no overt general rule, resolution, or by-law of the Yellow Pine Association expressed any unlawful purpose or tendency, and only part of the respondents were present at the meeting which passed, or at the indorsement of, the curtailment resolution; hence the distinction. State ex rel. v. Stock Exchange, 211 Mo. 181, 109 S. W. 675, 124 Am. St. Rep. 776. Since some of the acts and purposes of the Yellow Pine Association were praiseworthy, the merely becoming a member of it was not of itself so far a conspiracy as to cause an invocation of the rule that, a conspiracy being shown, the acts and statements of any conspirator, dum fervet opus, will bind all. Yet if one knew of an unlawful | ganization of the association of yellow pine conspiracy of an association and of its unlawful acts, and so having knowledge join it, such one becomes tainted with like guilt as inheres to him who took part in the conspiracy at its inception. United States v. Lake Shore, etc., Ry. (D. C.) 203 Fed. 295. But a

Coming back to the legal effect, under our statute, of the "curtailment" or limitation of output of lumber growing out of the acts of the Yellow Pine Association, as the statement eked out by this opinion shows them, there can be but one view we take it that such acts were unlawful and fall within the purview of the acts denounced by our law. State ex rel. v. People's Fuel Co., 246 Mo. 168, 151 S. W. 101; State ex rel. v. Firemen's Fund Ins. Co., supra.

[24] This brings us to a consideration of the proof upon the charge that respondents fixed the prices to be charged for yellow pine lumber in this state. The learned commissioner finds that respondents are guilty also upon this charge. Practically from the or

lumber manufacturers and dealers, this association issued a price list. We need not go back in the discussion here further than the year 1902, however. At each annual meeting there was appointed by the Yellow Pine Association a committee of members

the association; and it shall be the duty of the secretary to aid said committee in the discharge of its duty."

thereof, and consisting of from 10 to 15 of 1 "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. White, of the Missouri Lumber & Mining Exchange Company, were usually found serving upon this committee, which was called interchangeably the "Committee on Values" and again the "Committee on Price List." The persons named above were, when this suit was begun, and for years had been, president or managing officers of the respective respondents whose name follows theirs above herein. We deal in no fulsome praise and render honor only where honor is due when we say that in the affairs of the Yellow Pine Association throughout its career these 5 persons were facile princeps, in "bad eminence."

This committee on values was a standing committee, which made report at the annual and semiannual meetings of the association recommending given and stated prices for each item of the several grades and specifications of lumber manufactured and sold by the component members of the association. These reports of the committee on values were adopted by the association as the prices to be charged for the several items and grades of lumber. The committee on values also, if need arose, met in the interim between the annual and the semiannual meetings of the association and promulgated new price lists of yellow pine lumber, which lists the committee transmitted to the secretary, and the latter sent out to the members of the association. In the year 1905 seven such price lists were gotten out. These conditions subsisted till some time in the latter part of the year 1905 or the early part of the year 1906, when legal investigations of the methods of the association, or of certain of its component members, having been set on foot in the state of Mississippi, the Yellow Pine Association, through its board of directors, unanimously adopted a resolution on the 24th day of January, 1906, providing that the committee on values should no longer make any report other "than of existing conditions applicable to the trade," and that such committee should not make "any recommendation affecting prices to be charged for lumber or the amount of the product or output thereof." This resolution, as well as the reasons for the adoption of the same, are set out in extenso in the statement of the case. No report of the committee on values was presented to the following annual meeting. But at the next meeting of the board of directors a new section was added to the by-laws of the association. This section was adopted February 27, 1906, and is as follows:

The Committee of Thirty was appointed. The names on it are familiar names upon the record. By the advice of counsel they never acted, but later the matter of getting out a price list of lumber, or a "Yellow Pine Price Current," was turned over to George K. Smith, the secretary of the Yellow Pine Association, who selected a list of 63 correspondents, for the major part members of the association, from whom he got monthly reports of the prices which they were asking for lumber of the several kinds, grades, and specifications adopted by the association. From these reports, he says, as a basis he made up a flat rate sheet of delivered prices upon a basis of a freight rate of 23 cents per hundred weight. We need not here go into the details of the printing, dissemination, and promulgation of this list. We have set these out in the statement. Suffice it to say that the prices shown by Secretary Smith's compilation of the reports of his 63 correspondents were unfair; they are styled by the learned commissioner "boosting" prices. If a great majority of the 63 reports showed no advance in the price of a given item, the price list would yet, almost without a single exception, show an increase in the price of this item. From time to time flat rate lists were made up; from these as a basis, booklets were prepared, showing delivered prices on the various kinds and grades of yellow pine lumber at freight rates from 10 cents to 45 cents. These booklets were issued by the association, and so stated upon their title pages, till as late at least as December 27, 1905. They were called "Yellow Pine Price Currents" till at least as late as July 18, 1906, and were afterwards styled "Market Reports on Yellow Pine Lumber." Till December 27, 1905, they bore a date, stating at what time the prices therein became effective, and this, too, whether they were gotten out, or purported to be, by the individual members of the Yellow Pine Association or by the secretary of the association. 9,000 to 13,000 of these lists were printed for each revision of prices and sent out by the secretary. Sometimes a special cover, as for the Long-Bell Lumber Company, would be used to inclose the flat list or the booklets with the freight rates extended, in which case the members of the association, respondents and others, would give orders to the secretary for whatever number of copies of the flat list or the booklet were desired.

Some

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, we would not say that Smith's acts or the acts of the association in this behalf were unlawful. In truth the name "prices current" explains itself in law as in diction. To pursue the matter further would be merely to define common honesty, the rules of which in the last analysis are all the respondents in this matter are by law required to follow.

The learned commissioner finds that the members of the association, including the respondents, did not abide by the prices shown upon these price lists, either when the latter were made by the committee on values, or when made by the secretary. This, we think, is a correct finding.

But our statutes, recognizing as impossible 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. v. 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 the exceptions taken by the respondents, nor need we pass upon any of the thousand or more objections and exceptions to the admission of testimony. If we find facts enough based upon competent and admissible evidence and law enough in the record to sustain one or more of the charges made, this is all that is necessary in order to make proper a judgment of guilt against the respondents.

We are not to be understood as declaring as a matter of law, under our Missouri antitrust statutes, that dealers or manufacturers of any vendible commodity of sale or manufacture may not issue a price current. But such a list or compilation of prices ought either to be compiled and promulgated by an indifferent or wholly disinterested person, or, if compiled and promulgated by an interested person, it ought to be honestly and fairly compiled; it ought fairly to represent current prices as based upon actual sales, or upon actual offers to buy and actual offers to sell, and not misrepresent such prices with a view of boosting any prices of any item or items. If in the instant case there had been touching this price current matter no antecedent unlawful acts of the Yellow Pine Association, if this association had not for years promulgated as current prices lists which falsely represented and arbitrarily 169 S.W.-12

Indubitably, since the Yellow Pine Manufactures' Association is not sued herein, since no allegations are made in the information regarding it, and since no relief is asked as against it, we are without power in this action to give relief, except in so far as what is said herein may operate as rules of ethics by which it may square its behavior, or as a chart by which it may hereafter steer its course. The remedy afforded by section 10303 might have reached it; but that is not

invoked (Hopkins v. United States, supra), and so the Yellow Pine Association is not before us in the legal flesh.

the unlawful acts, and from the active and aggressive or passive participation as the case is of respondents' officers and agents in these acts, we do not find that the ends of justice would be subserved by meting out to each of the guilty respondents the same punishment.

It follows that we find the following respondents guilty as charged of (a) conspiracy to limit the output or amount of yellow pine to be manufactured in Missouri, and (b) of 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. Carter Lumber Company; The Dierkes Lumber & Coal Company; Dixie Lumber Company; Foster Lumber Company; FreemanSmith Lumber Company; Geo. W. Miles Timber & Lumber Company; Grayson-McLeod Lumber Company; Hogg-Harris Lumber Company; Leidigh-Havens Lumber Company; Long-Bell Lumber Company; Louis Werner Saw Mill Company; Lufkin Land & Lumber Company; Missouri Lumber & Land Exchange Company; Missouri Lumber & Mining Company; The Ozan Lumber Company; W. R. Pickering Lumber Company; Van Cleve Lumber Company.

We find the following respondents not guilty, to wit: Detroit Timber & Lumber Company, for the reason that, though it was a member of the Yellow Pine Association from 1902 till some nebulous time in 1905, we are not able to say definitely from the proof whether it was a member on the 30th of July, 1905, or not; Ferguson-McDaris Lumber Company, for the reason that upon the face of things, upon the letter of its constitution and its by-laws, the Yellow Pine Association had reformed upon the surface when this respondent became a member thereof in 1907, and there is no sufficient proof in the record that this respondent had guilty knowledge of its past illegal acts (United States v. Lake Shore, etc., Ry., supra), or knowledge of any illegal practices of the secretary in getting out the so-called market reports, since this respondent was a member for one year, the year 1907 only; Glen Lumber Company, which became a member in 1906, for the same reasons last above set out; Ingham Lumber Company, a member when suit was begun, for the reason that there is no proof as to when it became a member, no proof of actual participation in the making of any illegal agreement, or any proof of knowledge that such were made, or proof of any operations thereunder; and the Robert Kamm Lumber Company, which became a member of the Yellow Pine Association in 1907, but touching whose participation in or guilty knowledge of the illegal practices, there is no definite proof in the record.

From the facts as shown by the record, from the length of time of participation in

tively, as set following their names, as a punishment for their and each of their violations of the laws of this state, which sums shall be paid into the state treasury for the use and benefit of the state of Missouri, within 30 days from the date of the rendition of this decision and of the judgment bottomed thereon; that is to say: Alf Bennett Lumber Company, ouster and a fine of $1,000. Bowman-Hicks Lumber Company, ouster and a fine of $10,000. Bradley Lumber Company, ouster and a fine of $50,000. Calcasieu Long Leaf Lumber Company, ouster and a fine of $50,000. Central Coal & Coke Company, ouster and a fine of $50,000. Colonial Lumber & Timber Company, ouster and a fine of $10,000. C. J. Carter Lumber Company, ouster and a fine of $5,000. Dixie Lumber Company, ouster and a fine of $5,000. Foster Lumber Company, ouster and a fine of $5,000. Geo. W. Miles Timber & Lumber Company, ouster and a fine of $1,000. Grayson-McLeod Lumber Company, ouster and a fine of $50,000. HoggHarris Lumber Company, ouster and a fine of $5,000. Leidigh-Havens Lumber Company, ouster and a fine of $5,000. Long-Bell Lumber Company, ouster and a fine of $50,000. Louis Werner Saw Mill Company, ouster and a fine of $5,000. Lufkin Land & Lumber Company, ouster and a fine of $8,000. Missouri Land & Lumber Exchange Company, ouster and a fine of $6,000. Missouri Lumber & Mining Company, ouster and a fine of $50,000. The Ozan Lumber Company, ouster and a fine of $5,000. Van Cleve Lumber Company, ouster and a fine of $5,000.

Being of the opinion, however, that there are, as stated, diverse degrees of guilt among these respondents, and that upon the surface at least the Yellow Pine Association has reformed some of the evils which it long, openly, and flagrantly practiced, we are further of opinion that the ends of justice will be subserved by granting a stay of execution pending the further order of this court of the decree of forfeiture and ouster as to some of these respondents upon the payment by them of the fines severally assessed against them within 30 days, and upon such conditions of continuing good behavior as may hereafter be annexed thereto by this court by its decretal order; that is to say, as to the following respondents: Alf Ben