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U. S. 211, 20 Sup. Ct. 96, 44 L. Ed. 136; to it the punishments prescribed by section Northern Securities Co. v. United States, 193 10304; and (c) actions at common law by U. S. loc. cit. 317, 24 Sup. Ct. 436, 48 L. Ed. informations in the nature of quo warranto, 679).

where all defendants are corporations. If [10] Clearly, then, an action in equity may we could proceed against and convict for be brought under section 10303 of our stat. these offenses a natural person by a proceedute to "prevent and restrain" violations of ing in quo warranto, we could not punish these statutes against "pools, trusts and con- him. spiracies.” Such an action in a proper case [14] It is fairly clear that in providing would reach combinations of natural persons, statutory remedies our Legislature did not or partnerships, or corporations, as well as contemplate that the remedies so provided natural persons and corporations. Hopkins would be utterly ignored, and the old remedy v. United States, supra; Anderson v. United at common law would be exclusively invoked, States, supra. No reason can be seen why in a court now sadly in arrears with its the penalties provided for in section 10304 work, and that the forum provided by statcould not be made to follow a finding of guilt ute would never be used. Be this as may be, against a corporation pursuant to the proce- the existence and nature of the three remedure set out in section 10302. But this point dies provided, and the nature and history and is not before us.

derivation of our statute incline us to the [11] No theory is known under which a view, that the Legislature did not contem: natural person violating these anti-trust stat- plate the use of a jury in the equity proceedutes could be proceeded against by quo war- ing, and that in the quo warranto proceedranto. We have had a statute defining the ing our holdings in this state on this point practice in quo warranto and the conditions have decided it, unless and until we shall to which the same apply since at least as ear see fit to overrule these cases. State ex inf. ly as January 14, 1825; this statute has sur v. Standard Oil Co., supra; State V. Vail, vived the Practice Act and has come down supra; State v. Lupton, supra. We have to us almost unchanged. Section 2631 et seq., also pointed out the similarity between the R. S. Mo. 1909. It is ample to oust from of- Sherman Act and our statute in order to fice any individual who usurps such office or point the moral, that since the Sherman Act any franchise, and such was its ancient and has been said to be penal in its nature, so time-honored office; but does a natural per- far as the necessity of strict construction is son violating these statutes usurp an office concerned (Northern Securities Co. v. United or a franchise? What does he usurp? Mere- States, 193 U. S. loc. cit. 358, 24 Sup. Ct. 436, ly the right to break the law. He is plain 48 L. Ed. 679), no reason can be seen why malefactor, an ordinary felon, liable to be our statute, an exact rescript as to many secincarcerated in the penitentiary for the vio- tions and in pari materia as to all others here lation of a penal statute. But this point is concerning us, is not also penal (State ex inf. not in the case at bar. We mention it ar v. Continental Tobacco Co., 177 Mo. 37 loc. cit., guendo.

75 S. W. 737). There is neither rhyme nor [12] But the right to proceed against cor reason in an argument, then, which urges porations for conspiracies in restraint of upon us that since the statute of limitations trade is said, by Marshall, J., to be derived may not run against the state in the ordinary from the common law (State ex inf. v. Ar- quo warranto proceeding to determine title wour Packing Co., 173 Mo. loc. cit. 388, 73 to office, or to determine the right of a town S. W. 645, 61 L. R. A. 464, 96 Am. St. Rep. to assume corporate powers, that therefore a 515), and the common-law method was by an proceeding under our anti-trust statutes folinformation in the nature of quo warranto lows the same rule, regardless of the fact (27 Cyc. 907).

that these statutes are penal. Whether there “If,” says Cyc., "a corporation is shown to is a bar by limitation to the ancient office .be engaged in monopolizing an industry. quo of an information in the nature of quo warwarranto, or similar proceedings may be begun ranto or not, we need not decide, and so give by the Attorney General or other proper officer, and judgment rendered either dissolving no opinion; but since our statute is penal, the corporation altogether or ousting it from its and since the penalty is death to the corporapresent course."

tion, or confiscation of its property in whole This is the rule abundantly settled by the or in part (by a fine) to the state, it is imholdings in this state. State v. Standard Oil possible to escape the conviction that section Co., supra; State v. Delmar Jockey Club, 200 1890 of our statutes prescribing limitations Mo. 70, 92 S. W. 185, 98 S. W. 539.

applies when aided by section 1914, both of [13] It would appear, then, that we have in which we quote, supra, at length. this state three methods of proceeding [15] Such limitation, however, does not against violators of our anti-trust statutes: have reference to the day of the making and (a) By indictment or information as for a entering into the illegal conspiracy, but to felony (if the offender be a natural person); the date of the last proven overt act under (b) by bill in equity to "prevent and re. such conspiracy, regardless of the date at strain," under section 10303, which jurisdic- which the original illegal agreement was tion attaching, and proof being made, draws | made. Ware v. United States, 154 Fed. 577,

84 C. C. A. 503, 12 L. R. A. (N. S.) 1053, 12 , remains. Besides, the acts refer to the title Ann. Cas. 233; United States v. Brace (D. C.) of the chapter by the style under which it 149 Fed. 874.

has been known for years; that is, “pools, The sections quoted from the criminal law, trusts and conspiracies.” The articles and and providing for limitations for the bringing sections only have been interchanged or swapof actions for penalties and forfeitures, as ped about, leaving the wording of the title urged by respondents, do not apply, for the of the acts in all other respects correctly very clear reason that this, as we have seen expressive of the contents thereof. We have above, is a civil action, and not a criminal no particular difficulty with this sort of cleriaction: therefore the statute of limitations cal error, when we bear in mind the reason providing for the time within which civil for section 28 of article 4 of our Constitution. actions must be brought must govern and This court has expressed both the reason guide us. Other jurisdictions also hold like and the rule in this language: wise. Com. v. Birckett, 2 Va. Cas. 51. We "The evident object of the provision of the therefore hold that all acts alleged to have organic law relative to the title of an act was been done in contravention of the statutes re- the general contents of the bill, and contain

to have the title, like a guideboard, indicate lating to pools, trusts, and combinations by one general subject which might be expressed respondents prior to July 30, 1905, are bar- in a few or a greater number of words. If red, and that, if we are to find them guilty, ject, if they do not mislead as to what the bill

those words only constitute one general subwe must so find them from unlawful con- contains, if they are not designed as a cover spiracies made and had subsequent to said to vicious and incongruous legislation, then the date, or continuations of, or overt acts un- title can stand on its own merits, is an honest der, prior conspiracies, which continuations

title, and does not impinge on constitutional

prohibitions." St. Louis V. Weitzel, 130 Mo. or overt acts were done subsequent to the loc. cit. 616, 31 S. W. 1045; State ex rel. v. latter date.

Wiethaupt, 231 Mo. loc. cit. 460, 133 S. W. 329. This view obviates the consideration of the Judged by this rule, regard being had to contention that the motion to elect should the reason and wisdom of it, we would not have been sustained.

say that so palpable an error so patently cor[16] V. It is urged by some of the respond- rected violates the amending act of March ents that we have no jurisdiction in this case, 19, 1907, even if this court had not in a more because the acts alleged to have been done flagrant case on all fours with the facts here in contra vention of law are the same acts held to the contrary. State ex rel. v. Wietover which the Interstate Commerce Law ap- haupt, 231 Mo. 460, 133 S. W. 329. While plies, and which acts are reserved by the the court held the act under discussion in Congress for its regulation.

the above case unconstitutional, it was not so This contention is no longer an open ques held on this point, but upon another and diftion, and cannot be sustained. It was raised ferent question entirely. Upon the identical and disposed of in a manner opposed to the point here to the fore the court upheld the contentions of respondents in the case of doctrine we here adhere to. Whether the State ex inf. v. Standard Oil Co., 218 Mo. loc. combined effect of the two acts passed by the cit. 375, 116 S. W. 902. It was again urged General Assembly in 1907, and which sought in the United States Supreme Court on ap- to repeal sections 8965 to 8982, R. S. 1899, peal in the latter case, and was by that were sufficient for that purpose under the court decided against the contentions of re- facts, we need not inquire, till a prosecution spondent. These views, coming to us as they be brought under one of said sections atdo from a well-considered case in this court, tempted to be repealed by the act in quesand with the approval of the views therein tion. We are unable to agree with this conexpressed by the highest court in the land, tention and disallow this point. we do not feel disposed to reopen the discus [18, 19] VII, Returning, now, to a considersion upon the point, or to interfere with the ation of the question which comes back to us conclusions reached in these cases, and re-upon the whole record, as to whether the solve this point against the contention of re- facts shown in evidence (which facts and acts pondents.

of the respondents or overt continuations (17) VI. Learned counsel for some of the thereof, under unlawful conspiracies in rerespondents urge that sections 10310, 10312, straint of trade theretofore entered into, ocand 10304, R. S. 1909, are unconstitutional. curred on or subsequent to the 30th day of They do not furnish us with any suggestions July, 1905) are sufficient to show that re. or reasons for the faith that is in them. It spondents are guilty as charged, we are led is true, as we find, that by a somewhat ridic- to a short résumé of the facts in the record, ulous error, probably due to error of a clerk and to a consideration of the persuasive findor copyist, the recital of the article and sec- ings in this behalf by our commissioner, tions amended is erroneous (Laws of Mo. The commissioner in his findings of fact, 1907, p. 377; Laws of Mo. 1907, p. 374); but upon which he bottoms his findings of guilt, we see that if we strike out the erroneous bases the same upon three chief propositions : part, which is incorrectly stated, as surplus- (a) The fixing of prices to be charged for yelage, a good, sufficient, and correct title of low pine lumber; · (b) curtailment of output the subject matter and contents of the acts by agreement and concerted movement; (c)

open alliance with the Southwestern Lum-, the manufacturers of lumber, who shall be mem.
bermen's Association, with the Lumber Sec-bers of this association."
retary's Bureau of Information, and with the Unfortunately for a clear and connected
National Lumber Manufacturers' Association, showing of the dealings of the Southern Lum-
all three of which associations he finds to be ber Manufacturers' Association and the Yel.
unlawful fosterers of criminal conspiracies, low Pine Lumber Association, the secretary
by which alliance respondents either them- had destroyed “as junk" in 1906 all of its
selves (1) divided territory among retail deal- records, including letters in letter fles, up,
ers, (2) agreed not to sell to so-called “poach- apparently, to the very date of destruction.
ers,” farmers co-operative yards, and con- Likewise, some of the witnesses, practically
sumers, or (3) agreed to sell only to so-called all of whom were unfriendly, were afflicted
legitimate retail dealers, who were members with poor memories of only fairly ancient
of or under the protection of the said South- facts. As illustrating this difficulty, the be-
western Association, or consorted with knowl- low excerpt from the examination of a wit-
edge of the fact, with those who did these ness in the case is pertinent:

"Q. You have been a member of the commit-
Clearly, if we find respondents not guilty tee on values for a number of years in the as-
of each and all three of these charges, includ- sociation? A. I think so.
ing the triangular ramifications of charge you acted as a member of the committee on val-

"A. Will you tell the commissioner what years (e), touching all of which there was proof ad- ues? A. I do not remember. duced, the finding and judgment should be "Q. Were you not a member of the commitfor respondents. If we find them guilty of tee on values during the years 1904 and 1905?

A. I do not remember. any one of these charges, judgment should be

"Q. Were you a member of the committee on against them.

values during the years 1902 and 1903? A. I Some preliminary observations upon cold do not remember that either. If you have got questions of fact may be here referred to tell you. I know I was a member some time.

the records of the meeting, perhaps that may so that they may be carried in mind through The years I was a member I do not remember. the discussion as to liability or not of re- "Q. Do you remember serving as one of_the spondents upon the facts.

committee on values during the World's Fair

year in 1904? A. Well, I do not remember. The association was, as we have seen, or- "Q. Well, you remember attending the_soganized in 1890; it had when this suit was called curtailment meeting at the World's Fair instituted some 300 members, who controlled in 1904? A. No, sir; I do not think I did. at least one-third of the output of yellow that meeting.

"Q. The records show you were present at

Now, having called your at. pine lumber in the United States. When this tention to that fact, 'do you remember whether action began, and for many years before, the you were present at that meeting or not? A. association was annually expending in the Well, if you show me the record, I might be conduct of its affairs from $60,000 to $75,000 read the proceedings of the meeting over, some;

able to tell. It is quite possible that, if I could per year, out of which sum the secretary was thing would refresh my memory so that I could paid an annual salary of $8,000, and of which recall. Well, I see here my picture in the proone respondent alone paid $2,500 per i think you might take it for granted that I

ceedings. The chances are that I was there. year, although until 1906-16 years after its

I see my picture, and I remember someorganization—it had no word in constitution thing_now of standing out in front of the Hooor by-law publicly setting forth and declaring Hoo Building-I have that recollection. the objects of its organization and mainte- remember you went into executive session and

"Q. Now you remember at that meeting-you nance, the raisons d’être, of its living, moving discussed the subject of curtailment? A. No, and having its being. At the meeting held sir; I do not. in Memphis on the 27th of February, 1906,

"Q. Do you not remember that such a session there were present some six attorneys, who, which you discussed the subject of curtailment

was held, at which time you were present, and at after viewing the transactions of the associa- and there urged the agreement that 33'3 per tion, recommended that an amendment to the cent of the output of your lumber should be constitution be had, which should set forth curtailed for the next 90 days?. A. I should to the public the association's excuse for ex. & Coal Company I would not represent them

think that as president of the Chicago Lumber isting. Accordingly in July, 1906, at the semi- on the subject of curtailment, as I was not a annual meeting in Chicago, article 3 to the manufacturer. constitution was adopted. This article is

"Q. Now, independently of the Chicago Lum

ber & Coal Company, tell the commissioner as follows:

whether you were present at that meeting and "The object of this association shall be to se- took part in the curtailment meeting. A. I do

a full understanding of the conditions not remember of any executive session. I resurrounding the lumber market in the territory member there was a meeting held in the large covered by this association, the establishment room. I do not think we adjourned to any of uniform grades for the inspection of lumber, other place to hold an executive session. I to promote uniform customs and usages among think the public or the people who were there manufacturers of lumber, to procure and fur- present attending the meeting were all there at nish to its members such information as may

that time. tend to protect them against unbusinesslike "Q. The record of the proceedings being callmethods of those with whom they deal, and suched to your attention, state if you went into exother information as may be for the benefit of ecutive session on the motion of Mr. N. W. Me the members of the association, and to propose Leod. Do you remember such a motion being and carry out such other measures as may be made? A. No, sir. deemed for the welfare and in the interests of "Q. Do you remember the subject of cur.



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tailment being discussed there? A. Yes, sir; , or not? A. I have no recollection of it at all. I think I do.

"Q. Tell the commissioner whether you took "Q. Ordinarily, you have a right good memany part in the discussion of the curtailment at ory, have you not? A. Sometimes, on that time. A. I do not recall.

subjects." "Q. Do you remember Mr. J. B. White be

When this action was begun, our statute, ing there? A. No, sir; I do not think I do.

“Q. Do you remember Mr. R. A. Long being which is leveled against “pools, trusts and there? A. think I do.

conspiracies” in “restraint of trade," provid"Q. Do you remember his address at that ed among other things that it was unlawful time pointing out the surplus production of to (a) "create, enter into, become a member lumber? A. No, sir; I do not.

"Q. When did you first hear about the cur- of, or participate in any agreement, combinatailment meeting held on that occasion? A. I tion, confederation or understanding with presume if I was there I heard of it at that any other person or persons to regulate, contime.

“Q. What is your answer now to the commis- trol or fix the price of any article of manusioner as to whether you took part in that facture, mechanism, merchandise, commodity curtailment meeting or not? A. The minutes or repair,” or to “enter into, become a memof the meeting show that I was there; but I ber of or participate in any pool, trust, agreehave no recollection of it.

"Q: Do you remember being present at the ment, contract, combination, confederation meeting when it went into executive session? or understanding to fix or limit the amount or Do you remember what any member said about quantity of any article of manufacture, the curtailment there? A. No, sir.

merchandise, commodity.” Laws "Q. Do you remember what Mr. R. A. Long of Mo. of 1907, p. 377; section S965, R. S. said at that time in the executive session? A. No, sir.

of Mo. 1899; section 10299, R. S. of Mo. 1909. *Q. Did you make a speech on the subject of The petition in this case charges among other curtailment? A. Not that I have any recollec- things and variations of this charge that: tion of. "Q. Did Mr. Nelson W. McLeod make a

"Respondents have created, entered into, bespeech on the subject of curtailment? A. Not come members of and participated in a pool, that I recall of.

trust, agreement, combination, confederation, “Q. Did Mr. Charles A. Keith make a speech other, and with other corporations and persons

and understanding among themselves, with each on it? A. Not that I recall of. "Q. Do you remember a single word that was and view to regulate, control, and fix the price

to relator unknown, with the purpose, design, said on the subject of curtailment? A. Not to be paid by retail dealers in lumber and conthat I recall of.

sumers of lumber in this state for lumber offer"Q. Do you remember that they had the sub- ed for sale and sold in this state, to maintain ject of curtailment up? A. You mean in the such prices when so regulated and fixed, to reg. meeting that they had the subject of curtail-ulate, fix, and limit the amount and quantity of ment up?

lumber manufactured and bought and sold, to "Q. Yes, sir. A. I believe they did.

control and limit the trade in lumber, and to “Q. The records show you went into an ex- limit competition in such lumber trade in the ecutive session to discuss curtailment. Do you state of Missouri." remember that? A. No, sir. "Q. Did your Bradley Lumber Company cur

The petition charges consummation of these tail for 90 days? A. I do not recall that, ei- several acts, i. e., not only that 'respondents ther.

had conspired together with the "purpose, "Q. Did your Bradley Lumber Company cur- design, view," and intent to fix the price and tail for six months? A. I do not recall that. limit the output of lumber in this state, but I do not think they did.

"Q. What makes you have that opinion that that they had, pursuant to this fell purpose, you do not think they did? A. Well, that is a actually accomplished their designs and had sawmill. It was not producing much at that fixed the price of lumber to consumers and time. I do not recall whether we curtailed or retailers, and had limited the output of yel

"Q. Did you ever report to Mr. George K. low pine lumber in this state. Smith that you were curtailing at the Bradley If from the proof we shall find that the Lumber Company? A. Not that I recollect of. respondents conspired with each other to

"Q. Did you ever receive a letter from Mr. George K. Smith, asking if you were curtail: limit the output or amount of lumber manuing, after that meeting? A. Not that I recol-factured in this state, clearly it makes no lect of.

difference (except as affording an overt act "Q. Do you remember any member of that or continuance of the conspiracy, so as to association discussing with you the subject of curtailment at any time during the year 19047 toll the statute, if the original conspiracy itA. It is possible they may have, if the matter self has been barred by limitations) whether was discussed. I have no recollection of it. the agreement was ever carried out or not.

"Q. Did you go to the New Orleans meeting Our statute is leveled against the making and in January, 1905? A. I think not.

"Q. Do you remember attending the semian- entering into the conspiracy denounced, nor nual meeting of the Southern Lumber Manu- does it make any difference that some of facturers' Association held in the city of St. the respondents have no mills in Missouri Lovis on July 18 and 19, 1905? A. I do not and actually manufacture no lumber here, so recall. If it was held here, it is probable that I did attend.

long as some of them do have mills here and "Q. Well, the record shows you were there, do manufacture lumber here in this state, representing the Chicago Lumber & Coal Com- and so long as they have agreed or conspired pany—the official record of the association. Now, after having your attention called to that with local manufacturing respondents to curfact, what is your best recollection as to tail the output or any part of the output whether you attended that semiannual meeting actually made in Missouri.


The facts, as we have detailed them in the j a “resolution" of the Yellow Pine Association, statement of the case under the catchword while the secretary in his report calls it a “curtailment," show a most bold and flagrant "recommendation." This speech of the presiagreement of the association of which re- dent, after being characterized by the movspondents are, were, or subsequently became ent as a "wonderful address," was referred members to control and limit the amount of to a committee for such action as the comyellow pine lumber manufactured in this mittee might deem proper to make touching state and elsewhere. This agreement was the recommendations contained therein. The made June 14, 1904. The official report of committee made, touching the phase of curthe secretary of the Southern Lumber Manu- tailment, this report: facturers' Association (later the Yellow Pine "Your committee, to whom was referred the Manufacturers' Association, and which for address of our president, respectfully report: convenience we will style the Yellow Pine ful study of all the suggestions so ably present

"We recommend to all members a most careAssociation) uses this language:

ed. Recognizing the great victory gained by “The meeting, then went into executive ses- our late efforts at curtailment, we offer the folsion to deal with the question of curtailment lowing: of output as referred to in the president's ad- "Resolved, that there shall be appointed a dress and the secretary's report. The matter permanent committee on values. received very careful consideration, and from "In addition to former work of said committhe figures submitted it was found advisable to tee, it shall be their further duty to appoint, recommend to all manufacturers a reduction of from their own number, a select committee of 3313 per cent. of the output of all sawmills un- five, who shall be charged with carefully study. til such time as the demand should more nearly ing all market conditions and conditions of absorb the supply.”

stock, and who shall, in event of apparent nePresent at this meeting by their represent- cessity, take such action to secure further cur

tailment as they may deem needful.” atives and actually participating, so far as the record shows, were the following respond

This report was, on January 25, 1905, ents: Arkansas Lumber Company, Bowman- adopted, as the official report of the Yellow

Pine Association shows. Present at the adopHicks Lumber Company, Central Coal & Coke Company, Chicago Lumber & Coal Com- tion of this resolution, and apparently par. pany, Colonial Lumber & Timber Company, the following additional respondents: Alf

ticipating therein, were representatives of Dierkes Lumber & Coal Company, Foster Lumber Company, Freeman-Smith Lumber Com

Bennett Lumber Company, Geo. W. Miles pany, Grayson-McLeod Lumber Company,

Timber & Lumber Company, Louis Werner

Saw Mill Company. Present at both the Long-Bell Lumber Company, Missouri Lum

1904 and the 1905 meetings were representaber & Land Exchange Company, Missouri Lumber & Mining Company, W. R. Pickering Barr-Dubach Lumber Company, and Fred B.

tives of the Frost-Trigg Lumber Company, Lumber Company, and Van Cleve Lumber

Dubach Lumber Company; but since as to the Company.

Subsequently, and at the next annual meet- three latter this action has been already dising of the Yellow Pine Association held at missed by the state, on account of inability New Orleans January 24, 1905, Mr. R. A. to obtain jurisdiction over them, we need Long, the then president of the said associa

not longer consider them. tion, delivered an address, in which he said, above mentioned actually participated in the

The 16 respondents firstly and secondly relative to the curtailment movement, among original agreement to curtail the output of other things, this:

“This condition caused a break in our prices yellow pine lumber. While all these things to such an extent that by June 1st we found occurred more than three years before this the manufacturers sufficiently anxious to sell, action was begun, and while, as

we have and the retailer and the consumer so disinclined seen, the original unlawful agreement to to buy, as to bring our selling price close to limit output was entered into on June 14, and in some cases below the cost of manufacture, and so, at our semiannual meeting in 1904, yet we find the 16 named respondents June, a resolution was passed looking to the either participating in renewals of it, gloryreduction of our output about 33 per cent. ing in the results of it, and passing resoluSome of the most successful men in our line of business shook their heads and made the tions to continue it indefinitely in January, statement that we could not ‘legislate prices,' 1905, or actually present and taking active that supply and demand must govern, and that part in the making of it. the supply would be governed 'survival of the fittest. In spite of these prophecies we suc

[20] Conceding that we must, in order to ceeded in securing the co-operation of about so toll the statute, find the commission of an per cent. of the manufacturers of yellow pine, overt act within the three-year period, if the and so the plan was entered into and tested be- original conspiracy be barred, we may yet tween July 1st and October 1st. In less than

State 10 days from July 1st the downward tendency find this by circumstantial evidence. of prices had been checked, and within 30 days ex rel. v. Firemen's Fund Ins. Co., 152 Mo. 1, a substantial advance had been made."

52 S. W. 595, 45 L. R. A. 363. But we are A difference of verbiage, perhaps owing to not under the facts here compelled to resort loose diction, will be noted, as occurring in to circumstantial evidence. We have the the language of the secretary and the presi- admissions of the chief officer and only acdent. The president speaks of the curtail- tive managing officer, namely, the secretary ment movement as having been originated by of the association. In his report to the an

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