out let or hinderance to exercise the ordinary functions pertaining to legislators, are definitely expressed and set forth in this language of the proposed amendment "except that ordinary appropriation acts for the maintenance of the state government and its public institutions, and all laws for the immediate preservation of the public peace, health and safety, may go into immediate operation," if passed by the requisite vote., etc., and approved, etc. And even after a law has been enacted in due form, it is still subject, under the proposed amendment, before it can have any validity, to the acceptance of the electors of the state, if demand therefor be made by a certain number of the voters. So that it will readily be seen what a small quantum of legislative power will remain in the general assembly of the state of Missouri or in any state, if such an amendment be adopted.

And the question arises just here, whether the amendment itself will be valid if adopted? Ordinarily, and generally speaking, it is true that amendments of the organic law of a state are to be treated as valid, but this is not universally true. The amendment if repugnant to the constitution of the United States, or laws made in pursuance thereof, or to any treaty made under the authority of the United States, is void, "anything in the constitution or laws of any state to the contrary notwithstanding."3

The federal constitution declares : ""The United States shall guarantee to every state in this union a republican form of government."4 A republican form of government is necessarily a representative government by delegation instead of a pure democracy, where the people directly enact all laws and perform all other functions of government, legislative, executive and judicial without the intervention of agents. Mr. Madison, when speaking of what, and in what, a republic consists, said: "If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for

3 Art. VI. U. S. Const.

Art. IV. sec. 4.

a limited perod, or, during good behavior.5" Elsewhere the learned author restates the two salient points of difference between a democracy and a republic.

Defining a republican form of government, Judge Cooley says: "A government in the republican form; a government by representatives chosen by the people."7 A statesman, inferior to none in point of accuracy and clearness of logical statement, said: "The constitution and government (of the United States) rest, throughout, on the principle of the concurrent majority; it is, of

course, a republic, a constitutional democracy in contra-distinction to an absolute democracy; and the theory which regards it as a government of the mere numerical majority rests on a gross and groundless misconception." Representative democracy is thus defined by Bouvier: "A form of government where the powers of the sovereignty are delegated to a body of men elected from time to time, to exercise them for the benefit of the whole nation."'9

Thus, we see that a republican form of government and a representative or constitutional democracy, as above defined, are interchangeable terms, one and the same thing. Nor are we without direct support for this position by an adjudication by the final arbiter in such matters. Thus, in Minor v. Happersett, 10 it is said: "The guaranty is of a republican form of government. No particular form of government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended. The guaranty necessarily casts the duty on the part of the states themselves to provide such a government. All the states had governments when the constitution was adopted. In all, the people participated to some extent through their representatives elected in the manner specially provided. These governments, the constitution did not change. They were accepted precisely as they were, and it is, therefore, to be pre

5 Federalist and other Const. Pap. vol. 1 p. 210; Fed. Statm. Series.

6 lb. 58.

7 Cooley, Const. 194.

8 Vol. I., 185, Calhoun's Works.

91 Bouv. Inst. n. 31.

10 21 Wall. 162.

sumed that they were such as it was the duty of the states to provide. Thus, we have unmistakable evidence of what was a government, republican in form, within the meaning of that term as employed in the constitution."

Tested by the foregoing authorities and standard definitions as well as by the direct adjudication just quoted, does the proposed amendment fall under the ban of the federal constitution? If it does, then according to Judge Cooley the federal government would be bound to interfere. He says: "The power of the people to amend or revise their constitution is limited by the constitution of the United States in the following particulars: It must not abolish the republican form of government, since such an act would be revolutionary in its character, and would call for and demand direct intervention on the part of the government of the United States."11 Elsewhere, the eminent jurist discoursing on the same topic says: "Even in strict accordance with the forms prescribed for amending a state constitution, it would be possible for the people of the states to effect such change, as would deprive it of its republican character. It has been suggested that it would then be the duty of congress to intervene. In any case there could probably be no appeal from the decision of congress." 12 And the courts, both of the states and nation, when such a constitution-breaking amendment or a law bottomed thereon, were to come before them for adjudication would be bound, under the oath required by Article VI. of the federal constitution, to declare such amendment or the law, the outgrowth of such amendment, null and void; and this, for the reason that an, unconstitutional law, whether organic or statutory, is no law at all.18

After full consideration of the proposed constitutional amendment, I am unable to reach any other conclusion, but that the amendment cannot withstand the test and the charge that it attempts to substitute for a "republican form of government," something

11 Cooley, Const. 44. 12 Cooley, Const. 196.

13 "When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made." Cooley, Const. 222.

which does not come up to the standard of such a form of government as understood at the time of the adoption of the federal constitution, a contemporary construction, which has never been departed from, but which has received the express sanction of the Supreme Court of the United States, as "unmistakable evidence of what was a government republican in form within the meaning of that term as employed in the constitution."

Nor do I believe that the conclusion just announced is at all affected or in any manner impaired by reason of the fact that the proposed amendment allows the general assembly to retain certain shreds and patches of legislative power, to pass certain perfunctory laws relating to appropriations, etc. A legislative body so shorn of its customary and constitutional functions cannot be longer regarded as the representatives of the people. The legislative power cannot be halved, quartered, nor in any other way subdivided. A representative democracy cannot be crossed with an "absolute" democracy, and still the hybrid resultant from such copulative conjunction prove to be, and constitute, "a government republican in form." Clay and iron cannot in such case be welded together, any more than they could in the feet of the image which Daniel saw in his vision.

The task attempted in this case to subject the legislature of the states to outside domination, must, it seems, prove as abortive as though similar measures had been attempted towards the judiciary and the judgments and the decrees of the courts both nisi and appellate subjected to acceptance or rejection by a popular vote. The same power, if existent as to the legislature, must of necessity exist as to the judiciary. Why go through the stupid formality of long litigation in the courts when the whole matter could be settled far more speedily and intelligently by a popular vote taken on the question, whether Smith murdered Jones, or whether Black unlawfully took possession of White's land. Indeed, it may well be asked, why elect a legislature at all, except for the purpose of electing a United States senator, when all the perfunctory duties left to the legislature could so easily be discharged by a couple of competent clerks stationed at the capitol? And if "economy" is so much in vogue there, certainly the cutting off of a vast amount of useless expense,

if the principle of the proposed amendment be correct, would be a great desideratum."

In conclusion, it may be well to advert, for a moment, to a provision of paragraph 6 of the amendment proposed, which declares that "any law or part of a law, approved or enacted by the electors as aforesaid, shall not have its force, intent or purpose, impaired or annulled by any ruling decision or construction of any of the courts of this state." Suppose that a court on examination of such statute should find it to be in conflict with the constitution of the United States, or a law passed in pursuance thereof, or a treaty made under the authority of the United States, shall not such court declare such conflict to exist, and consequently that such statute is void? And then as to the "force, intent or purpose" of the statute "approved or enacted by the electors," shall not they be ascertained by the application of the usual rules of constructon or interpretation? What other means have the courts to resort to except those mentioned? When it is remembered, of course, by those who are conversant with precedents how much difficulty courts have had in the past in construeing on interpreting even the most plainly worded statutes, the futility of the requirement mentioned and quoted, becomes at once, apparent. Take, for instance, the statute of frauds of England, a statute of but three short sections (a statute on which our own statutes are substantially bottomed), and yet that statute plainly worded as it is, has cost the British government or its people, many millions of pounds to determine "its force, intent or purpose."

The only exception to a plainly worded statute failing to occasion or cause litigation, is the "statute of descents and distributions" of Virginia, drawn by Thomas Jefferson at one sitting, a statute which cut loose from and repudiated the law of primogeniture, and established decents and distributions on a just and rational basis; that statute has given rise to less litigation than any other statute ever penned by mortal man. perhaps, the remark may be ventured without fear of successful contradiction, that Thomas Jefferson has not often been duplicated even in the legislature of Missouri, or of any other state. T. A. SHERWOOD.

St. Louis, Mo.

But,

MONOPOLIES - REGULATION OF PRICES BY PLUMBERS' ASSOCIATION.

WALSH V. ASSOCIATION OF MASTER PLUMBERS OF ST. LOUIS, MO.

St. Louis Court of Appeals, December 16, 1902. Injunction will lie to dissolve an illegal agreement between a plumbers' association and dealers and manufacturers, whereby the latter agree not to sell to others than members of the association, and the former to boycott any dealer found selling to a nonmember, and to restrain the enforcement of such agreement against a plumber who, by reason thereof, has been unable to purchase supplies with which to do his work.

STATEMENT OF FACTS: The facts showed that several large plumbing supply houses of the city of St. Louis entered into a written agreement with the members of the Association of Master Plumbers, that the said dealers would not sell to any master plumbers any plumbers' supplies, unless said master plumbers desiring to buy said supplies was a member of the said association. It was further agreed that if any dealer violated this agreement he would be boycotted by the association. As a result of this agreement the plumbing supply houses of the city of St. Louis have ever since refused to sell to plumbers not members of the Master Plumbers' Association, or any other person in the city of St. Louis, plumbing supplies of any description whatsoever. The purpose and intent of this agreement was evidently for the purpose of limiting competition, and restricting trade and raising and controlling the prices of plumbers' supplies in the city of St. Louis. The condition of affairs produced by this conspiracy to maintain prices became intolerable, and suit was brought by a master plumber, not in the association, to test the validity of the agreement, and to enjoin the Master Plumbers' Association from interfering with the plaintiff in his right and effort to purchase plumbers' supplies from any of the dealers in the city. On demurrer to this petition in the trial court plaintiff lost his case.

BLAND, P. J.: In Hunt v. Simonds, 19 Mo. 586, the court said: "It is obviously the right of every citizen to deal or refuse to deal with any other citizen, and no person has ever thought himself entitled to complain in a court of justice of a refusal to deal with him, except in some cases where, by reason of the public character which a party sustains, there rests upon him a legal obligation to deal and contract with others." The same doctrine is announced in Shoe Co. v. Saxey, 131 Mo. 212, 32 S. W. Rep. 1106, 52 Am. St. Rep. 622; State v. Associated Press, 159 Mo. 410, 60 S. W. Rep. 91, 51 L. R. A. 151, 81 Am. St. Rep. 368; Carew v. Rutherford, 106 Mass. 13, 8 Am. St. Rep. 287; Brewster v. Miller (Ky.), 41 S. W. Rep. 301, 38 L. R. A. 505. Cooley in his work on Torts (2d Ed. p. 328), states the principle broadly as follows: "It is part of every man's civil rights that he be left at liberty to refuse business rela

tions with any person whomsoever, whether the refusal rests upon reason or is the result of whim, caprice, prejudice, or malice." In Walker v. Cronin, 107 Mass. 555, it is said: "Every one has a right to enjoy the fruits and advantages of his own enterprise, industry, skill and credit. He has no right to be protected against competition; but he has a right to be free from malicious and wanton interference, disturbance, or annoyance. If disturbance or loss come as a result of competition, or the exercise of like rights by others, it is damnum absque injuria, unless some superior right by contract or otherwise is interfered with." A capitalist has the right to employ his capital, or to hide it away and refuse to use it, so long as he does not become a public charge, and a man without capital may labor or refuse to labor so long as he keeps out of the poorhouse. So, also, have capitalists the right to combine their capital in productive enterprises, and by lawful competition drive the individual producer and the smaller ones out of business. And laborers and artisans have the right to form unions, and by their united effort fight competition by lawful means. Snow

v. Wheeler, 113 Mass. 179; Association v. Walsh, 2 Daly, 1; Reg. v. Rowlands (1851), 2 Denison, Crown Cas. 364. And courts will not lay their hands upon either to restrain them, however fierce the competition, so long as their methods are lawful. But, if either steps without the pale of the law, and by fraud, misrepresentation, intimidation, obstruction, or molestation hinders one in his business or his avocation as an artisan or laborer, courts have not hesitated to interfere, and to afford remedial relief, either by awarding compensatory damages in an action at law, or, where the injury is a continuing one, by granting injunctive relief. Lucke v. Clothing Cutters' and Trimmers' Assembly No. 7,507 (Md.), 26 Atl. Rep. 505. 19 L. R. A. 408, 39 Am. St. Rep. 421; Quinn v. Leathem (1901), App. Cas. 495; Toledo v. A. A. & N. M. R. Co. v. Pennsylvania Co. (C. C.), 54 Fed. Rep. 746, 19 L. R. A. 395; Jackson v. Stanfield, 137 Ind. 592, 36 N. E. Rep. 345, 37 N. E. Rep. 14, 23 L. R. A. 588; Olive v. Van Patten, 7 Tex. Civ. App. 630, 25 S. W. Rep. 428; Cœur D'Alene Consol. & Min. Co. v. Miners' Union of Wardner (C. C.), 51 Fed. Rep. 260, 19 L. R. A. 382; Beadel v. Perry, L. R. 3 Eq. 465; Broome v. Telephone Co., 42 N. J. Eq. 141, 7 Atl. Rep. 851; Doremus v. Hennessy, 176 Ill. 608, 52 N. E. Rep. 924, 54 N. E. Rep. 524, 43 L. R. A. 797, 802, 68 Am. St. Rep. 203. In Emack v. Kane (C. C.), 34 Fed. Rep. 46, Blodgett, J., said: "I cannot believe that a man is remediless against persistent and continued attacks upon his business, such as have been perpetrated by these defendants against the complainant, as shown by the proofs in this case. It shocks my sense of justice to say that a court of equity cannot restrain systematic and methodical outrages like this by one man upon another's property rights. If a court of equity cannot restrain an attack like this upon a man's business, then the

party is certainly remediless, because an action at law in most cases would do no good, and ruin would be accomplished before an adjudication would be reached. True, it may be said that the injured party has a remedy at law; but that might imply a multiplicity of suits, which equity often interposes to relieve from. But the still more cogent reason seems to be that a court of equity can, by its writ of injunction, restrain a wrongdoer, and thus prevent injuries which could not be fully redressed by a verdict and judgment for damages at law." The petition alleges that the agreement between the Association of Master Plumbers and the respondent corporations is for the purpose of fixing prices and limiting the production of plumbers' supplies. Agreements of this character are prohibited by section 8978, art. 2, ch. 143, Rev. St. 1899, and they are, therefore, unlawful. But it is contended by respondents that, conceding the agreement to be unlawful because within the prohibition of said section, the illegal agreement concerns the public only, and can only be declared illegal in a suit brought for the purpose by the attorney general or the prosecuting attorney of the county, as provided by the next succeeding section (8979). Section 8982 of the same article expressly provides that it is the purpose of the article to provide an additional remedy for the control and restraint of pools, trusts, and conspiracies in restraint of trade. And it is evident that, if the remedy prayed for by appellant existed before the enactment of said article 2, it is not taken away or in any way abridged by section 8979 of the article.

The contract being unlawful, it remains to be seen whether or not the appellant's private rights were obstructed or interfered with as a result of the illegal agreement. The petition alleges that they were; that he was unable to purchase supplies, on account of said agreement, with which to do his work, and was prevented from taking plumbers' contracts for the reason he could not procure the supplies necessary to fill the contracts; that the only reason the respondent corporations have for refusing to sell him supplies is because he is not a member of the Association of Master Plumbers, and that one of the purposes of the illegal agreement is to coerce him to become a member of said association. In Doremus v. Hennessy, 176 Ill. 608, 52 N. E. Rep. 924, 54 N. E. Rep. 524, 43 L. R. A. 797, 802, 68 Am. St. Rep. 203, it was held that members of a trade association, who combined to induce or compel other persons not to deal nor enter into contracts with one who will not join the association or conform his prices with those fixed by the association, will be liable for the injuries caused to him by loss of business resulting from such combination. In Jackson v. Stanfield, supra, it was held that: "A combination of retail lumber dealers to destroy the business of brokers and commission dealers, who did not keep a lumber yard with an assorted stock of

In

* * *

lumber, by coercing wholesalers to refuse to make sales to such brokers or lose the business of the members of such combination, is unlawful, and renders a member who procures action by the association to the injury of the brokers liable to the latter for damages.' An analogous case is Olive v. Van Patten, supra. The allegations of the petition show that the respondents have conspired together to boycott the appellant and other master plumbers of the city of St. Louis who have not joined the Association of Master Plumbers. A boycott is defined to be an illegal conspiracy in restraint of trade. Casey v. Cincinnati Typographical Union (C. C.), 45 Fed. Rep. 135, 12 L. R. A. 193. In State v. Firemen's Fund Ins. Co., 152 Mo. 1, 52 S. W. Rep. 595, 45 L. R. A. 363, a conspiracy is defined to be a combination to accomplish an unlawful end by lawful means, or a lawful end by unlawful means. Mulcahy v. Reg. (1868), L. R. 3 H. L., at page 317, Willes, J., said: "A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. The number and the compact give weight and cause danger." In Reg. v. Warburton (1870), L. R. 1 Cr. Cas. 276, Cockburn, C. J., said: "It is not necessary, in order to constitute a conspiracy, that the acts agreed to be done should be acts which, if done, would be criminal. It is enough if the acts agreed to be done, although not criminal, are wrongful; i. e., amount to a civil wrong." An instructive case in this connection is the house of lords case of Quinn v. Leathem (1901), App. Cas. 495, wherein it was unanimously held that: "A combination of two or more, without justification or excuse, to injure a man in his trade by inducing his customers or servants to break their contracts with him, or not to deal with him or continue in his employment, is, if it results in damage to him, actionable." The case is interesting in the review made of the case of Allen v. Flood (1898), App. Cas. 1, construing the case as not deciding that boycotting is lawful. Applying the doctrine of these cases to the allegations of the petition, there can be no question that the agreement between the respondents is an illegal conspiracy, and that its effect is to inflict a civil wrong upon appellant, and that this wrong is a continuing one, and, according to all the authorities entitles the appellant to injunctive relief so far as a court of equity is authorized to administer it within the bounds of equitable jurisprudence. We think it is competent for the court to declare the agreement complained of as illegal and void, and to restrain the parties to the agreement from keeping its terms or demanding that they be kept, and thus leave the respondent corporations and each of them free to deal or not to deal with appellant, as they may choose. In so far as it appears from the allegations of the petition, the Association of Master Plumbers is not an illegal association. Presumably it was formed for the purpose of mutual protection, and

to fight competition in their business within the boundaries of the city of St. Louis. As we have seen, the association may lawfully do this by lawful means and methods to the extent of driving nonmembers out of business. We see nothing, therefore, in the petition that would authorize a court of equity to dissolve the association. The cases of Manufacturing Co. v. Hollis, 54 Minn. 223, 55 N. W. Rep. 1119, 21 L. R. A. 337, 40 Am. St. Rep. 319, Continental Ins. Co. v. Board of Fire Underwriters of the Pacific (C. C.), 67 Fed. Rep. 310, and Steamship Co. v. McGregor, 15 Q. B. Div. 476, and other cases cited and relied on by the respondents, are cases wherein no illegal conspiracy was proven, but where the parties only exercised the right to trade or not to trade with others, and in which there was fierce competition, but no unlawful act, and are therefore not analogous to the case at bar.

The judgment is reversed, and the cause remanded, with directions to the circuit court to set aside the order sustaining the demurrer and to overrule the same, with leave to respondents to answer if they are so advised.

NOTE.-Combination of Laborers for the Purpose of Controlling Labor or Materials as a Combination in Restraint of Trade. The opinion of Goode, J., concurring in the opinion of the court in the principal case offers an excellent summary of the cases in this interesting question. He says: "I have consulted many authorities on the propositions involved in this case, and think they warrant the following conclusions:

1. The combination of the defendants charged in the petition is a conspiracy to create a monopoly to raise prices, and in restraint of trade, and is void at common law. Sufficient acts of malice and violence towards this plaintiff are averred to constitute a cause of action. The case stated differs from Hunt v. Simonds, 19 Mo. 583, both in the purpose of the combination, there being no intention in that case to control prices or restrain trade,-and in the malicious violence alleged to have been exhibited against this appellant. See U. S. v. Addyston Pipe & Steel Co., 29 C. C. A. 141, 85 Fed. Rep. 271, 46 L. R. A. 122, where the cases are collected; Sinsheimer v. Garment Workers (Sup.), 26 N. Y. Supp. 152; Casey v. Typographical Union (C. C.), 45 Fed. Rep. 135, 12 L. R. A. 193; Steamship Co. v. McGregor, 23 Q. B. Div. 598 [1892], App. Cas. 25,-in which the meaning of malice, when said to create a right of action in such cases, is defined. Craft v. McConoughy, 79 Ill. 346, 22 Am. Rep. 171. While the particular agreement dealt with in Skrainka v. Scharringhausen (St. L.), 8 Mo. App. 522, was held valid, the reasoning of the opinion supports Walsh's Case, 2 Daly, 1, and the same is true of Steamship Co. v. McGregor, supra.

2. The combination alleged is a positive offense against our present statutes on the subject of pools and trusts, and is made actionable by them. Rev. St. 1899, § 8978, et seq.; State v. Firemen's Fund Ins. Co., 152 Mo. 1, 52 S. W. Rep. 595, 45 L. R, A. 363; U.S. v. Addyston Pipe & Steel Co., supra; People v. Sheldon, 139 N. Y, 251, 34 N. E. Rep. 785, 23 L. R. A. 221 36 Am. St. Rep. 690; U. S. v. Jellico Mountain Coal & Coke Co. (C. C.), 46 Fed. Rep. 432, 12 L. R. A. 753. 3. Injunction lies to dissolve the conspiracy and restrain the boycott of and violent acts against the