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 we could proceed against and convict for these offenses a natural person by a proceeding in quo warranto, we could not punish him.

[10] Clearly, then, an action in equity may be brought under section 10303 of our statute to "prevent and restrain" violations of these statutes against "pools, trusts and conspiracies." Such an action in a proper case would reach combinations of natural persons, or partnerships, or corporations, as well as natural persons and corporations. Hopkins v. United States, supra; Anderson v. United States, supra. No reason can be seen why the penalties provided for in section 10304 could not be made to follow a finding of guilt against a corporation pursuant to the procedure set out in section 10302. But this point is not before us.

[14] It is fairly clear that in providing statutory remedies our Legislature did not contemplate that the remedies so provided would be utterly ignored, and the old remedy at common law would be exclusively invoked, in a court now sadly in arrears with its work, and that the forum provided by statute would never be used. Be this as may be, the existence and nature of the three remedies provided, and the nature and history and derivation of our statute incline us to the [11] No theory is known under which a view, that the Legislature did not contemnatural person violating these anti-trust stat-plate the use of a jury in the equity proceedutes could be proceeded against by quo warranto. We have had a statute defining the practice in quo warranto and the conditions to which the same apply since at least as early as January 14, 1825; this statute has survived the Practice Act and has come down to us almost unchanged. Section 2631 et seq., R. S. Mo. 1909. It is ample to oust from office any individual who usurps such office or any franchise, and such was its ancient and time-honored office; but does a natural person violating these statutes usurp an office or a franchise? What does he usurp? Merely the right to break the law. He is a plain malefactor, an ordinary felon, liable to be incarcerated in the penitentiary for the violation of a penal statute. But this point is not in the case at bar. We mention it arguendo.

[12] But the right to proceed against corporations for conspiracies in restraint of trade is said, by Marshall, J., to be derived from the common law (State ex inf. v. Arour Packing Co., 173 Mo. loc. cit. 388, 73 S. W. 645, 61 L. R. A. 464, 96 Am. St. Rep. 515), and the common-law method was by an information in the nature of quo warranto (27 Cyc. 907).

"If," says Cyc., "a corporation is shown to be engaged in monopolizing an industry quo warranto, or similar proceedings may be begun by the Attorney General or other proper officer, and judgment rendered either dissolving the corporation altogether or ousting it from its present course.'

This is the rule abundantly settled by the holdings in this state. State v. Standard Oil Co., supra; State v. Delmar Jockey Club, 200 Mo. 70, 92 S. W. 185, 98 S. W. 539.

[13] It would appear, then, that we have in this state three methods of proceeding against violators of our anti-trust statutes: (a) By indictment or information as for a felony (if the offender be a natural person); (b) by bill in equity to "prevent and restrain," under section 10303, which jurisdiction attaching, and proof being made, draws

ing, and that in the quo warranto proceeding our holdings in this state on this point have decided it, unless and until we shall see fit to overrule these cases. State ex inf. v. Standard Oil Co., supra; State v. Vail, supra; State v. Lupton, supra. We have also pointed out, the similarity between the Sherman Act and our statute in order to point the moral, that since the Sherman Act has been said to be penal in its nature, so far as the necessity of strict construction is concerned (Northern Securities Co. v. United States, 193 U. S. loc. cit. 358, 24 Sup. Ct. 436, 48 L. Ed. 679), no reason can be seen why our statute, an exact rescript as to many sections and in pari materia as to all others here concerning us, is not also penal (State ex inf. v. Continental Tobacco Co., 177 Mo. 37 loc. cit., 75 S. W. 737). There is neither rhyme nor reason in an argument, then, which urges upon us that since the statute of limitations may not run against the state in the ordinary quo warranto proceeding to determine title to office, or to determine the right of a town to assume corporate powers, that therefore a proceeding under our anti-trust statutes follows the same rule, regardless of the fact that these statutes are penal. Whether there is a bar by limitation to the ancient office of an information in the nature of quo warranto or not, we need not decide, and so give no opinion; but since our statute is penal, and since the penalty is death to the corporation, or confiscation of its property in whole or in part (by a fine) to the state, it is impossible to escape the conviction that section 1890 of our statutes prescribing limitations applies when aided by section 1914, both of which we quote, supra, at length.

[15] Such limitation, however, does not have reference to the day of the making and entering into the illegal conspiracy, but to the date of the last proven overt act under such conspiracy, regardless of the date at which the original illegal agreement was 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, trusts and conspiracies." The articles and sections only have been interchanged or swapped about, leaving the wording of the title of the acts in all other respects correctly expressive of the contents thereof. We have no particular difficulty with this sort of clerical error, when we bear in mind the reason for section 28 of article 4 of our Constitution. This court has expressed both the reason and the rule in this language:

The sections quoted from the criminal law, and providing for limitations for the bringing of actions for penalties and forfeitures, as urged by respondents, do not apply, for the very clear reason that this, as we have seen above, is a civil action, and not a criminal action; therefore the statute of limitations providing for the time within which civil actions must be brought must govern and guide us. Other jurisdictions also hold likewise. Com. v. Birckett, 2 Va. Cas. 51. We therefore hold that all acts alleged to have been done in contravention of the statutes relating to pools, trusts, and combinations by respondents prior to July 30, 1905, are barred, and that, if we are to find them guilty, we must so find them from unlawful conspiracies made and had subsequent to said date, or continuations of, or overt acts under, prior conspiracies, which continuations or overt acts were done subsequent to the latter date.

This view obviates the consideration of the contention that the motion to elect should have been sustained.

If

"The evident object of the provision of the organic law relative to the title of an act was to have the title, like a guideboard, indicate the general contents of the bill, and contain one general subject which might be expressed in a few or a greater number of words. ject, if they do not mislead as to what the bill those words only constitute one general subcontains, if they are not designed as a cover to vicious and incongruous legislation, then the title can stand on its own merits, is an honest title, and does not impinge on constitutional prohibitions." St. Louis v. Weitzel, 130 Mo. loc. cit. 616, 31 S. W. 1045; State ex rel. v. Wiethaupt, 231 Mo. loc. cit. 460, 133 S. W. 329.

Judged by this rule, regard being had to the reason and wisdom of it, we would not 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, because the acts alleged to have been done in contravention of law are the same acts over which the Interstate Commerce Law applies, and which acts are reserved by the Congress for its regulation.

This contention is no longer an open question, and cannot be sustained. It was raised and disposed of in a manner opposed to the contentions of respondents in the case of State ex inf. v. Standard Oil Co., 218 Mo. loc. cit. 375, 116 S. W. 902. It was again urged in the United States Supreme Court on appeal in the latter case, and was by that court decided against the contentions of respondent. These views, coming to us as they do from a well-considered case in this court, and with the approval of the views therein expressed by the highest court in the land, we do not feel disposed to reopen the discussion upon the point, or to interfere with the conclusions reached in these cases, and resolve this point against the contention of repondents.

19, 1907, even if this court had not in a more flagrant case on all fours with the facts here held to the contrary. State ex rel. v. Wiethaupt, 231 Mo. 460, 133 S. W. 329. While the court held the act under discussion in the above case unconstitutional, it was not so held on this point, but upon another and different question entirely. Upon the identical point here to the fore the court upheld the doctrine we here adhere to. Whether the combined effect of the two acts passed by the General Assembly in 1907, and which sought to repeal sections 8965 to 8982, R. S. 1899, were sufficient for that purpose under the facts, we need not inquire, till a prosecution be brought under one of said sections attempted to be repealed by the act in question. We are unable to agree with this contention and disallow this point.

[18, 19] VII. Returning, now, to a consideration of the question which comes back to us upon the whole record, as to whether the facts shown in evidence (which facts and acts 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 reor 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)

the manufacturers of lumber, who shall be members of this association."

open alliance with the Southwestern Lumbermen's Association, with the Lumber Secretary's Bureau of Information, and with the Unfortunately for a clear and connected National Lumber Manufacturers' Association, showing of the dealings of the Southern Lumall three of which associations he finds to be ber Manufacturers' Association and the Yelunlawful 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 files, 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 bewestern Association, or consorted with knowl- low excerpt from the examination of a witedge of the fact, with those who did these ness in the case is pertinent: things.

Clearly, if we find respondents not guilty of each and all three of these charges, including the triangular ramifications of charge (e), touching all of which there was proof adduced, the finding and judgment should be for respondents. If we find them guilty of any one of these charges, judgment should be against them.

Some preliminary observations upon cold questions of fact may be here referred to, so that they may be carried in mind through the discussion as to liability or not of respondents upon the facts.

sum

The association was, as we have seen, organized in 1890; it had when this suit was instituted some 300 members, who controlled at least one-third of the output of yellow pine lumber in the United States. When this action began, and for many years before, the association was annually expending in the conduct of its affairs from $60,000 to $75,000 per year, out of which sum the secretary was paid an annual salary of $8,000, and of which one respondent alone paid $2,500 per year, although until 1906-16 years after its organization-it had no word in constitution or by-law publicly setting forth and declaring the objects of its organization and maintenance, the raisons d'être, of its living, moving and having its being. At the meeting held in Memphis on the 27th of February, 1906, there were present some six attorneys, who, after viewing the transactions of the association, recommended that an amendment to the constitution be had, which should set forth to the public the association's excuse for existing. Accordingly in July, 1906, at the semiannual meeting in Chicago, article 3 to the constitution was adopted. This article is as follows:

"The object of this association shall be to secure a full understanding of the conditions surrounding the lumber market in the territory covered by this association, the establishment of uniform grades for the inspection of lumber, to promote uniform customs and usages among manufacturers of lumber, to procure and furnish to its members such information as may tend to protect them against unbusinesslike methods of those with whom they deal, and such other information as may be for the benefit of the members of the association, and to propose and carry out such other measures as may be deemed for the welfare and in the interests of

"Q. You have been a member of the committee on values for a number of years in the asA. I think so. sociation?

"A. Will you tell the commissioner what years you acted as a member of the committee on values? A. I do not remember.

"Q. Were you not a member of the committee on values during the years 1904 and 1905? A. I do not remember.

"Q. Were you a member of the committee on values during the years 1902 and 1903? A. I do not remember that either. If you have got the records of the meeting, perhaps that may I know I was a member some time. The years I was a member I do not remember. "Q. Do you remember serving as one of the committee on values during the World's Fair year in 1904? A. Well, do not remember.

tell you.

"Q. Well, you remember attending the socalled curtailment meeting at the World's Fair in 1904? A. No, sir; I do not think I did. "Q. The records show you were present at that meeting. Now, having called your attention to that fact, do you remember whether you were present at that meeting or not? A. Well, if you show me the record, I might be read the proceedings of the meeting over, someable to tell. It is quite possible that, if I could thing would refresh my memory so that I could recall. Well, I see here my picture in the proI think you might take it for granted that I ceedings. The chances are that I was there. was. I see my picture, and I remember something_now of standing out in front of the HooHoo Building-I have that recollection. remember you went into executive session and "Q. Now you remember at that meeting-you discussed the subject of curtailment? A. No, sir; I do not.

"Q. Do you not remember that such a session was held, at which time you were present, and at which you discussed the subject of curtailment and there urged the agreement that 33% per cent. of the output of your lumber should be curtailed for the next 90 days? A. I should & Coal Company I would not represent them think that as president of the Chicago Lumber on the subject of curtailment, as I was not a manufacturer.

I re

"Q. Now, independently of the Chicago Lumber & Coal Company, tell the commissioner whether you were present at that meeting and took part in the curtailment meeting. A. I do not remember of any executive session. member there was a meeting held in the large room. I do not think we adjourned to any other place to hold an executive session. I think the public or the people who were there present attending the meeting were all there at that time.

"Q. The record of the proceedings being called to your attention, state if you went into executive session on the motion of Mr. N. W. McLeod. Do you remember such a motion being made? A. No, sir.

"Q. Do you remember the subject of cur

tailment being discussed there? A. Yes, sir; I think I do. *

"Q. Tell the commissioner whether you took any part in the discussion of the curtailment at that time. A. I do not recall.

"Q. Do you remember Mr. J. B. White being there? A. No, sir; I do not think I do. "Q. Do you remember Mr. R. A. Long being there? A. I think I do.

"Q. Do you remember his address at that time pointing out the surplus production of lumber? A. No, sir; I do not.

"Q. When did you first hear about the curtailment meeting held on that occasion? A. I presume if I was there I heard of it at that

time.

"Q. What is your answer now to the commissioner as to whether you took part in that curtailment meeting or not? A. The minutes of the meeting show that I was there; but I have no recollection of it.

"Q. Do you remember being present at the meeting when it went into executive session? Do you remember what any member said about the curtailment there? A. No, sir.

"Q. Do you remember what Mr. R. A. Long

said at that time in the executive session? A. No, sir.

"Q. Did you make a speech on the subject of curtailment? A. Not that I have any recollec

tion of.

"Q. Did Mr. Nelson W. McLeod make a speech on the subject of curtailment? A. Not that I recall of.

"Q. Did Mr. Charles A. Keith make a speech

on it? A. Not that I recall of.

"Q. Do you remember a single word that was said on the subject of curtailment? A. Not

that I recall of.

"Q. Ordinarily, you have a right good memory, have you not? A. Sometimes, on some subjects."

When this action was begun, our statute, which is leveled against "pools, trusts and conspiracies" in "restraint of trade," provided among other things that it was unlawful to (a) "create, enter into, become a member of, or participate in any agreement, combination, confederation or understanding with any other person or persons to regulate, control or fix the price of any article of manufacture, mechanism, merchandise, commodity or repair," or to "enter into, become a member of or participate in any pool, trust, agreement, contract, combination, confederation or understanding to fix or limit the amount or quantity of any article of manufacture, merchandise, commodity." Laws of Mo. of 1907, p. 377; section 8965, R. S. of Mo. 1899; section 10299, R. S. of Mo. 1909. The petition in this case charges among other things and variations of this charge that:

* *

*

"Respondents have created, entered into, become members of and participated in a pool, trust, agreement, combination, confederation, other, and with other corporations and persons and understanding among themselves, with each to relator unknown, with the purpose, design, and view to regulate, control, and fix the price to be paid by retail dealers in lumber and consumers of lumber in this state for lumber offered for sale and sold in this state, to maintain such prices when so regulated and fixed, to regcurtail-ulate, fix, and limit the amount and quantity of lumber manufactured and bought and sold, to control and limit the trade in lumber, and to limit competition in such lumber trade in the state of Missouri."

"Q. Do you remember that they had the subject of curtailment up? A. You mean in the meeting that they had the subject of ment up?

"Q. Yes, sir. A. I believe they did. "Q. The records show you went into an executive session to discuss curtailment. Do you remember that? A. No, sir.

"Q. Did your Bradley Lumber Company curtail for 90 days? A. I do not recall that, ei

ther.

"Q. Did your Bradley Lumber Company curtail for six months? A. I do not recall that. I do not think they did.

"Q. What makes you have that opinion that you do not think they did? A. Well, that is a sawmill. It was not producing much at that time. I do not recall whether we curtailed or

not.

"Q. Did you ever report to Mr. George K. Smith that you were curtailing at the Bradley Lumber Company? A. Not that I recollect of. "Q. Did you ever receive a letter from Mr. George K. Smith, asking if you were curtailing, after that meeting? A. Not that I recollect of.

"Q. Do you remember any member of that association discussing with you the subject of curtailment at any time during the year 1904? A. It is possible they may have, if the matter was discussed. I have no recollection of it.

"Q. Did you go to the New Orleans meeting in January, 1905? A. I think not.

The petition charges consummation of these several acts, i. e., not only that respondents had conspired together with the "purpose, design, view," and intent to fix the price and limit the output of lumber in this state, but that they had, pursuant to this fell purpose, actually accomplished their designs and had fixed the price of lumber to consumers and retailers, and had limited the output of yellow pine lumber in this state.

If from the proof we shall find that the respondents conspired with each other to limit the output or amount of lumber manufactured in this state, clearly it makes no difference (except as affording an overt act or continuance of the conspiracy, so as to toll the statute, if the original conspiracy itself has been barred by limitations) whether the agreement was ever carried out or not. Our statute is leveled against the making and entering into the conspiracy denounced, nor does it make any difference that some of the respondents have no mills in Missouri and actually manufacture no lumber here, so 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. with local manufacturing respondents to curNow, after having your attention called to that fact, what is your best recollection to tail the output or any part of the output whether you attended that semiannual meeting actually made in Missouri.

"Q. Do you remember attending the semiannual meeting of the Southern Lumber Manufacturers' Association held in the city of St. Louis on July 18 and 19, 1905? A. I do not recall. If it was held here, it is probable that I did attend.

as

The facts, as we have detailed them in the 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 respondents are, were, or subsequently became members to control and limit the amount of yellow pine lumber manufactured in this state and elsewhere. This agreement was made June 14, 1904. The official report of the secretary of the Southern Lumber Manufacturers' Association (later the Yellow Pine Manufacturers' Association, and which for convenience we will style the Yellow Pine Association) uses this language: