ous competition. Some of our members lose | the January, 1905, association, calls attensight 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 33% 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 by months beginning with July and ending of supply and demand." with December, 1904, and also the amount of curtailment during that period by states and the number of mills in each state curtail Captain J. B. White, at this January meeting, delivered an address before the association, entitled "Marketing of Yellow Pine," in which, among other things, he said: "A certain large Eastern jobber of yellow pine, whom we all here well know, and who has lately become a manufacturer, said to me the other day that he could name 15 men in the South who, if they could agree, could fix and maintain a uniform price for yellow pine in all the markets of the United States. I asked him who they were. He wrote down the names, and I believe he is right. There is no wood that will take the place of yellow pine at anywhere near its present value. Let us think the subject over. It is worthy of our prompt consideration. There are a great many here to-day at this meeting; but, when you come to look us all up and see who the men are who have the large control of all these different interests, we may be surprised to discover how large a part of the manufacturing interests here represented are really controlled by less than 15 men, and if this is true, as I believe it, how close we may be to the final curing of the ills with which we have been afflicted." The result was that at its semiannual meeting in June, 1904, the association, in executive meeting, adopted a resolution favoring the curtailment of 33% per cent. in the amount of lumber being manufactured by the various mills for a period of 90 days beginning with July 1, 1904. The meeting was well attended; a list of those in attendance being found in the record. George K. Smith, secretary, sent out to the various members and others copies of the curtailment resolution, with the request that he be advised of their intentions as to observing it. A great number of the members acted in accordance with the resolution and curtailed the amount of the product manufactured. Secretary Smith's official report to the January meeting, 1905, and President Long's address both show this indubitably. The secretary called for and received reports from the mills as to facts showing whether they were complying or not, and received reports about every 30 days, showing the amount of lumber being cut and the stocks on hand, etc. At the end of the first 90 days, the second period of 90 days was recommended with like results. ing. There was less stock cut during the year of 1904 than had been cut during the year 1903, more shipped during the year 1904 than in 1903, and less stock on hand January 1, 1905, than was on hand January 1, 1904. In less than 10 days from the 1st of July, after curtailment began, the downward tendency of prices had been stopped, and within 30 days a substantial advance had been made. On October 15th another notable advance was made in prices. The advances between July 1st and October 1st was about $1.19 per M, while between October 1 and January 1, 1905, it was about $1.04 per M, or between July 1, 1904, and January 1, 1905, it was about $2.23 per M. On January 10, 1905, the association committee on values again advanced the prices. The profits of the Long-Bell Company for the six months' period by reason of the curtailment was $260,381. It was estimated for all lumber manufacturers in the district for the same period there was an increase in profits of $6,298,500. To members of the association during the same period about $2,210,000. President Long, in his annual address to the association for the year 1905, reviewed the experiences of 1903 and the conditions of the first six months of 1904, and then took up the question of the curtailment matter and its results, and said in part as follows: resolution was passed looking to the reduction "And so at our semiannual meeting in June a of our output about 33 per cent. Some claim that the operation of this association costs too Doubtless it is true that many much money. stay out of it because of the cost it will be to them. I stated a few moments ago that this organization was organized in the year of 1892, or thirteen years ago. The total cost to operate the same during its entire existence has been in round numbers $225,000; these figures are obtained from Secretary Smith's records. The members of our association, when running regular time, manufacture about 250,000,000 feet a month. On two-thirds time would mean 166,000,000 feet. According to these figures, we shipped during the three months from July to September, inclusive, 500,000,000, on which we received an advance of $1.17 per thousand, equal to $595,000. A like amount, viz., 500,000,000 feet, October to December, inclusive, on which we received an advance over July 1st, prices of $2.23 per thousand, making $1,710,000. had not this curtail movement been effected, "I believe it practically safe to calculate that, prices would have receded at least 50 cents per thousand below those prevailing July 1st. Multiplying 1,000,000,000 feet by this amount, we have $500,000. Added to the $1,710,000, we 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 The involuntary curtailment during the period of 6 months from July 1, 1904, to January 1, 1905, that is, curtailment by reason of accidents or other matters, which rendered it impossible to operate mills for certain days or times, amounted to 186,429,828 feet, while the voluntary curtailment for the same period of time amounted to 457,400,502 feet, making a total curtailment during the period of 643,830,330 feet. much as the entire expense of this organization since its inception. "Again complete statistics show that the mills within the range of the territory covered by this association manufacture about 8,500,000,000 feet of lumber annually. Reducing this onethird will give us 5,700,000,000 feet annually. One-fourth every three months would give 1,425,000,000 feet. Multiplied by the advance between July 1st to October 1st, we have about $1,695,750; a like amount shipped between October 1st and January 1st at $2.23 equal to $3,177,750, estimating that prices would have declined at least 50 cents per thousand below those prevailing July 1st, would mean on 2,850,000,000 feet $1,425,000, or a total saving to the entire manufacturing fraternity in the district in question $6,298,500. "Very unexpectedly, but true, we found that one of our mills manufactured its lumber during this curtail movement at 17 cents per thousand cheaper than the first six months of the year under like conditions as to expenditures, etc.; another $1.64. This mill, however, was a new mill, and doubtless part of this saving is accounted for by the same being in smoother running shape the last six months than during the first six months. Another produced its lumber at 20 cents less under the curtail plan. Another, and the last, cost 33 cents more during the last six months than the first six. "I wish you would individually make a reckoning of what this curtail movement means to you, for by this means the illustration I think will be more forcible. Some two years ago, in figuring up and finding that the cost to my company and its allied interests to operate this association was about $2,500 per year (and I must admit that I thought it looked large), yet in making my calculation as to the saving that this curtail movement has effected to my company, and finding that we obtained about $145,081 for our shipments between July 1st and January 1st than we would have obtained at prices prevailing July 1st, and that our stock on hand at our mills and in our retail yards was worth about $115,000 more than it would have been worth January 1st in the absence of this movement, making a total saving for this company of $260,380; the $2,500, of course, sinks into an insignificant pebble. "To me, our ability to bring so large a number of minds together to such an extent as to work to the same end is of more satisfaction than the money thus far obtained by this action, for it overthrows the idea often expressed that there are too many different interests involved to affect prices when the manufacturing capacity or supply is in excess of the demands of the trade. "I believe that the working of this curtail movement will give us more confidence in ourselves, more confidence in each other, and should we, as we will, reach a condition some time in the future where our supply will exceed the demand, this experience will prove of immense value, and just in this connection, preparatory to such a condition, I would recommend that a committee consisting of two from each district covered by this association be appointed and made a permanent committee on curtailment, in whose hands shall be lodged power to restrict the output when in their opinion conditions demand." This address was referred to a committee for such recommendation as it might see fit to make concerning it. In due time this committee reported back to the association as follows: "We recommend to all our members a most careful study of all the suggestions so ably presented. Recognizing the great victory gained by our late efforts at curtailment, we offer the following: 169 S.W.-11 'Resolved, that there shall be a permanent committee on values appointed. In addition to former work of said committee, it shall be their duty to appoint from their own number, a select committee of five, who shall be charged with carefully studying all market conditions and conditions of stock, and who shall in event of apparent necessity, take such action to secure further curtailment as they may deem needful.'" This report was adopted. Not only did prices advance during the curtailment period, but they continued to advance for some time afterwards. A new price list was issued the 10th of January, 1905, and the association committee on values a few days afterwards reported that they would make no changes in the same, but reaffirm the same with a view of early action towards an advance later on. They did issue a new list in March, 1905, and again in May, July, August, November, and December; each list showing an additional advance over the last previous one. Four new ones were issued in 1906, nine in 1907, and three in 1908, to the time of the institution of this suit. Prices advanced from August, 1904, to May, 1908, on some items as high as $12 per thousand. In the early part of 1905 continued curtailment took place in the production of lumber, being involuntary, however, on account of weather conditions. The amount, however, was such as to render any voluntary curtailment unnecessary in order to give the association the proper grip on prices. The amount of curtailment for the first six months was over 33 per cent. again. Prices continued to hold and advance until in the latter part of 1907, when it appears that there was a great curtailment among the mills. In the month of November for that year a curtailment of 203,000,000 feet was reported by 328 mills; while in the month of December, from 420 mills reporting, in territory covered by the association membership, there was found a curtailment of 309,000,000, feet. In October a circular letter had been issued to the manufacturers, calling attention to the condition of stocks, suggesting that it was time to "stop, look, and listen." By the middle of November following a mass meeting of yellow pine manufacturers was held at Memphis, and reports as to the running times of various sawmills were called for, and also as to the amount of lumber being produced, and the curtailment above referred to followed. In his January, 1908, report Secretary Smith said: "In closing my report one year ago this sentence was used: 'Unless something unforeseen happens to prevent, we should move forward during 1907 with increasing members and increased benefits to every member.' As you all which put the brakes on suddenly, and the effect know, something happened late in October will be noted in our figures on production, as well as in the curtail of the association and the income account. Many will remember a circular issued on October 3d, calling attention to condition of stocks at that time which would cause manufacturers to 'stop, look, and listen.' Since that time, owing to financial stringency, there The downward tendency in prices starting in about that time was arrested at once, and some items immediate advances were on made. Some of the respondents filed on June 10, 1912, a motion to require relator to elect upon which of three charges, to wit, membership in and alleged acts as members of the Southwestern Lumbermen's Retail Association, membership in and alleged acts as members of the Yellow Pine Association, and acts in connection with the joint trade relations agreement, the relator would proceed. The commissioner found guilty all of the respondents whose names, domicile, and connections with the Yellow Pine Association we have set out above herein. Generally his findings are these: price when so regulated and fixed; to regulate, fix, and limit the amount and quantity of lumber manufactured and bought and sold in this state; to control and limit the trade in lumber, and to limit competition in such lumber trade in Missouri, and that the respondents and each and every one of them as members of said association have, through said association, pool, arrangement, and undertaking, and by means of its practices and policies, regulated and limited the amount and quantity of lumber manufactured and sold in Missouri; have increased, fixed, and maintained the market price of lumber bought and sold in this state; have lessened lawful trade and full and free competition in the manufacture, importation, and sale of lumber in this state, and were at the time of the institution of this suit unlawfully and illegally fixing and maintaining the full and free competition in the importation price of lumber in the state, and restraining and manufacture and sale of lumber in this state, and that by means thereof respondents have violated the said statute law of the state of Missouri upon which the information is based, and have incurred all the penalties therefor as provided in said statutes." Thereupon, and within the time provided by the order, respondents filed with this court 72 exceptions, and the case is before us for our ruling as to whether in the last analysis-and for naught else of legal substance- there is law and evidence in the whole case justifying us in granting the prayer of the relator, or whether respondents should go hence acquit. So, since there is no point to be subserved by a lengthy separate review and discussion of the whole of these 72 exceptions, we shall not take them seriatim, but discuss and rule such vital points as may serve to elucidate the one question in the case. We have drawn largely upon the most excellent and scholarly report of 'the able commissioner for the facts of this statement, and also for the language thereof, which for the most part is verbatim. This acknowledgment is in lieu of quotation marks. "In view of the record there could be no ques-up tion but what it was for the purpose and intention by the use of the price list and by the curtailment processes and other methods and processes employed, singly and separately by each, and also the one in connection with the other, to fix, regulate, maintain, and advance prices of yellow pine lumber upon the market in Missouri. Not only did the association and its members pursue policies peculiar to the association for the purpose of affecting and controlling the prices of lumber, but it co-operated with the Southwestern Lumbermen's Association and with other associations of a similar character, methods, and work, which had as a result the limiting of competition in the trade and the control of the trade, with all that that might mean. It entered into an agreement with the Lumber Secretaries Bureau of Information in which was federated the great retail lumber companies covering the territory of its operations, manufacturers, and wholesalers, which was in its essence unlawful and tended to restrict trade and limit it to certain channels and give the control thereof into certain hands and thereby make it the easier to regulate the quantity or amount of lumber manufactured and sold and the price to be had and obtained therefor." Elliott W. Major, Atty. Gen., and John M. Atkinson, of Jefferson City, Special Counsel, for relator. Botsford, Deatherage & Creason, of Kansas City, for respondent Leidigh-Havens Lumber Co. Arthur N. Sager and Walter H. Saunders, both of Kansas City, for certain respondents. Johnson & Lucas, Holmes, Holmes & Page, W. R. Thurmond, and Scarritt, Scarritt, Jones & Miller, all of Kansas City, for other respondents. FARIS, J. (after stating the facts as above). Many contentions have been lodged with us by the many learned counsel who, Specifically, and touching the provisions of our anti-trust statutes and the phases there- | representing the different respondents, have of which the commissioner deemed to have been violated, he finds: "It is further found that the Yellow Pine Association is an unlawful pool, trust, agreement, combination, confederation, arrangement, and undertaking, created, entered into, and maintained by respondents and others with the unlawful design, purpose, and view of limiting, controlling, and fixing the price to be paid by retail dealers in lumber and consumers of lumber in the state for lumber offered for sale and sold herein, and to maintain such filed briefs or made oral arguments in this court. All of these contentions, however, in the last analysis, we think may be fairly embraced in the epitome thereof which we make below: (a) That the petition filed by relator herein does not state facts sufficient to constitute a cause of action against any of the respondents; (b) that there is a misjoinder of causes of action, or alleged causes of action, against The status of this commissioner, as he has come to be named, as an arm of the court, has never been clearly and definitely determined by any judicial holding. To an extent, the duties of such a commissioner seem to be sui generis. Usually and in substance the orders made by this court appointing such commissioners have been that: the several respondents; (c), that respondents | mony. "Such commissioner shall have the power and authority and be subject to the same duimposed upon officers authorized to take depoties and obligations as are by law conferred and sitions, and, in addition to the power and authority aforesaid, said commissioner shall have power and authority to hear and determine all clude the same in the same manner and to the objections to testimony, and to admit or exsame extent as this court might in a trial of this cause before this court; all rulings of such in this court, at or before the final hearing of commissioner to be subject, however, to review this cause upon exceptions by either party." The rule stated by Finkelnberg is as follows: "It is usual to have the testimony taken by a commissioner appointed for that purpose, with power to rule on questions of evidence, subject to review by the court itself." Finkelnberg on App. Prac. 194. Many other points are urged; but all of 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 in the compass of this point. In order to naked and useless one. reasonably preserve the logic of this discussion, we here shall make touching the case some preliminary observations. It is clear that, if we should hold in the end that under the law the duty of passing both upon the law and the evidence devolves upon this court, then the question of the refusal by the commissioner of certain declarations of law requested, the giving by the commissioner of other declarations, the findings of fact and the conclusions of law made by the commissioner, and the alleged admission of incompetent evidence offered by the state, all fall out of this case. Likewise, owing to inherent limitations of conditions precedent to a review, hereafter to be noticed, errors bottomed on the refusal to admit competent testimony fall out of the case. In the case at bar, our commissioner, by an order of this court made in that behalf, was empowered to "take the testimony upon the issues joined in issue subpoenas, compel the attendance of witsaid cause, with full power and authority to nesses, and the production of papers, books, and other documents, to issue attachments tions to testimony, and to admit or exclude the therefor, and to hear and determine all objecsame in the same manner and to the same extent as this court might in the trial of the case with his findings of fact thereon, together with before the court, and to report the testimony his findings as to the law upon each issue tendered to him by the respective parties, and to state his conclusions of law in his final report, made by said special commissioner, to be filed exceptions to the findings of fact and law so by either party so desiring within ten days after the filing of the special commissioner's report 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. 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 aplearned lawyer of this state to take the testi-preciable portion of a delegated judicial au The So If we consider the commissioner as occupying the status of a statutory referee and as possessing all of the powers, duties, and prerogatives of such, we yet reach the identical conclusion, though we come to it by a different road. For in equity cases the court is not bound by the findings of a referee upon the facts. O'Neill v. Capelle, 62 Mo. 202. This is the rule likewise in all cases which are compulsorily referable under our statute. Utley v. Hill, 155 Mo. 232, 55 S. W. 1091, 49 L. R. A. 323, 78 Am. St. Rep. 569; Reed v. Young, 246 Mo. loc. cit. 618, 154 S. W. 766; Haas v. Garnett, 155 Mo. 568, 55 S. W. 1132. Likewise the rule as to the force and effect of the reports of masters in chancery, is in consonance with this view in such a case as this. Where a case under the old equity thority. The power of a trial court or anot 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. 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 might be persuasive, as might be the suggestions of a friend to the court, but not binding. Any other view would eventually lead us into conflict with the law and the Constitution. This view, when compared with the earlier forms of orders made in these cases, seems to be in consonance therewith. Latterly, the orders made in these cases would seem, by their terms, to attempt to broaden the original power conferred upon such commissioners. Such broadening cannot, in our view, be upheld under the law or under the organic law. Any other view inevitably leads us into logical closed lanes and brings about impracticable, if not absurd, situations in practice. If the commissioner, on a hearing had, err in refusing to admit evidence which is competent and vital-practice was referred to a master by consent, ly material, and which he ought to have admitted, so as to enable us to pass on the case legally, fairly, intelligently, what are we to do with the case when we convict him of error? Clearly we may not do the useless thing of sending the case back to him, only that the error may be corrected. No good would be thus subserved, except to confer a debatable personal favor upon the commissioner, in that we would confront him with his own error, without perhaps convincing him that he had erred. If he err by admitting evidence that he ought not to admit, the same thing is true. We have the matter before us and may correct this error. In neither contingency does good accrue, nor is the case expedited by conferring upon the commissioner the power to bind and loose in his rulings upon the facts or the law. we If may confer so thoroughgoing a power upon a commissioner, there is left to us but the clerical labor of entering the decrees of our Frankenstein. Such a view contributes but little to brevity of record or simplicity of procedure, because in practice upon exceptions made the case comes up to us with the offerings bodily in the record for our review, just as if in all cases the commissioner had admitted it originally, or just as if he had then the findings of the latter were like special verdicts of a jury, or like the report of a referee, would be in the same case; but where the case was sent to the master, without the consent of both parties, the master's findings of fact were advisory to the court only. Hapgood v. Berry, 157 Fed. 807, 85 C. C. A. 171; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764. So whether we view the commissioner as an arm of this court sui generis, whose functions have arisen ex necessitate, or whether we weigh him in the scales by which we weigh a referee, or a master in chancery, we reach the same conclusion, as to our right here to review his findings. [2] Taking these views as to the powers and duties of the commissioner, it will be seen that all of the rulings made by him upon the law and the evidence, as also the findings made by him upon the facts, are subject to complete, full, and ample review by this court upon exceptions timely filed thereto by either party. This being the case, the contentions and exceptions urged by the respondents, other than those of cold law and fact mentioned above, fall out of the case. The case is here for our weighing upon the law, and for our examination upon the evi |