6 tion on the part of the employer or producer. Most of these statutes are, however, ineffectual for one reason or another. For instance, the last one, passed in Missouri, which superseded · the previous existing statute of 1891, makes it illegal for any corporation or individual to become a member of any pool, trust, agreement, combination, federation, or understanding with any other corporation or individual to fix the price of any article or product, etc. Now, while it might possibly be conceded to be in accordance with common law principles to prohibit any actual pools by which the price or output was limited to a certain amount, and the profits divided, such a combination being in restraint of trade, and while perhaps even it might be deemed unlawful at common law to make a combination not to sell any product or more than a certain amount of any product, or not to sell for a long period of time, except at a certain price, it is hard to see any constitutional justification for forbidding two or three individual dealers to come to any understanding among themselves as to what, at least for a certain period of time, they shall charge for their commodities. Such statutes are against general constitutional principles, if not against express provision of our state or federal consti Mo., 1895, p. 237. tutions. Owing to the great difficulty of enforcing such laws, and procuring the necessary evidence, there has been little authoritative determination of their constitutionality as yet in the courts. Then, coming to an agreement among employers to pay a certain price for labor: It is hard to see why this should be considered illegal, if the whole authority of American judicial decision is to make similar combinations on the part of laborers or employees perfectly legal. Such statutes may be constitutional, but they are hardly fair. However, as we have said, the ordinary statute against trusts does not cover this point, and consequently they are not cited in this handbook. (See Stimson's "American Statute Law," Vol. II., pp. 580-590.) The case of More v. Bennett, fully discussed in § 51 above, is direct authority that a combination of employees, and consequently of employers, to fix wages and impose penalties on its own members for working for less, is illegal. We have stated at great length in §§ 51 and 55 our opinion that the modern law is otherwise, and that combinations, either of employers or employees, to fix wages, etc., in the absence of any illegal act or of any combination otherwise unlawful—such as a boycott-are perfectly legal. 7 See Bohn Mfg. Co. v. Hollis, 55 N. W., 1119; § 57 below. Partly as a consequence of the modern prejudice against trusts or combinations of producers, however, there are a great many recent cases which drastically enforce the old common law doctrine against combinations in restraint of trade, and make any combination, agreement, or association of producers or wholesale dealers to fix prices unlawful; such as combinations to fix the price of milk, sugar, coal, lumber, salt, matches, sheep, whiskey, or other necessaries of life, and refusing to allow parties to the combination to enforce penalties provided by the bylaws for under-selling. Thus in Commonwealth v. Tack (1 Brewster, 511), decided in 1868, the defendant was indicted for a conspiracy to stimulate the price of oil. The fact was that the prosecutor, one James O'Connor, having been advised by the defendants that oil would go lower and that he had better "go short," entered into contracts with Tack Bros. & Co. for the delivery of 16,000 barrels of oil, whereby he lost large sums of money; and he procured the indictment of Tack Bros. on the charge of combining to raise the price. The case is, in fact, a curious survival of the old English statutes against forestalling, and probably would not have been possible but for the allegation of conspiracy. The court charged that an agreement between two or more persons to forestall and control the market for any necessary of life by the employment of falsehood, and "an unmixed motive of mischief either to the public or an individual," was indictable as a conspiracy; but the jury disagreed. As good an example of such cases as any is perhaps the case of the Texas Standard Cotton Oil Co. v. Adoue, and also Morris Run Coal Co. v. Barclay Coal Co., the former being a case where plaintiffs, representing four cottonseed mills, combined with defendants representing a large number of other mills, all being dealers in cotton seed and manufacturers of products therefrom, for the purpose of having defendants take the entire yield of their mills, they guaranteeing the plaintiffs a certain profit, establishing prices to be paid for seed cotton, to be changed only by agreement, and the minimum price at which all meal cake, etc., should be sold; and that the plaintiffs should not purchase or ship any seed from a certain place. The court refused to sustain an action by the plaintiffs to recover the net profits under the guaranty, on the ground that the contract was void at common law as being in restraint of trade. In the latter case, five coal companies in Pennsylvania entered into an agreement in New York to di 19 S. W. Rep., 274. vide two coal regions of which they had control, to appoint a general agent who should receive the coal mined from both companies, each in a certain proportion, with a committee to adjust prices, freight rates, etc., and providing for settlements between the several companies every month. The court refused to enforce this contract also, in a suit brought by one of the companies against the others. In this case there was a New York statute, but the decision would probably have been the same without it.1o In fact these modern anti-trust acts, so far as they can be brought under the most stringent provisions of the common law, are unnecessary; because the courts in their present temper would commonly come to the same conclusion without them; while in cases where the statutes them 10 See also the Sugar Trust Case, 121 N. Y., 582; State v. Neb. Distilling Co., 29 Neb., 700; Diamond Match Case, Richardson v. Buhl, 77 Mich., 632; Salt Co. v. Guthrie, 35 O. State, 666; People v. Sheldon, 139 N. Y., 251; Phœnix Bridge Co. v. Keystone Co., 142 N. Y., 425; Wells v. McGeoch, 71 Wis., 196; People v. Milk Exchange, 27 L. R. A., 437; Ford v. Chicago Milk Association, 39 N. E., 651; Judd v. Harrington, 139 N. Y., 105. Such pools, etc., are illegal although the public be not in fact injured: Judd v. Harrington. A pool not to sell beer to outsiders for less than $9 a barrel was refused enforcement by a court of equity: Nester v. Continental Brewing Co., 161 Pa. St., 473. But sales by a member of such a trust may be sued upon: Nat. Distilling Co. v. Cream City Co., 86 Wis., 352. |