(Snrnpll Cam irlynnl ffiibtaty Cornell University Library KF 16361914 Laws on trusts and monopolies, domestic a 3 1924 019 216 278 Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019216278 LAWS ON TRUSTS AND MONOPOLIES DOMESTIC AND FOREIGN ' ' WITH AUTHORITIES (REVISED EDITION) COMPILED UNDER THE DIRECTION OF J. J. SPEIGHT CLERK COMMITTEE On' THE JUDICIARY HOTJBE OP REPRESENTATIVES NATHAN B. WILLIAMS OF THE ARKANSAS BAK PRINTED FOR THE USE OF THE COMMITTEE WASHINGTON, D. C, DECEMBER 1, 1913 REVISED JANUARY 10, 1914 WASHINGTON GOVERNMENT PRINTING 0FFI03 ' 1914 /^ no H COMMITTEE ON THE JUDICIAKY, HOUSE OF REPEESBNTATIVES. SIXTT-THIED CONGRESS. Hbney D. Clayton, Alabama, Chairman. Edwin T. Whbb^ North Carolina. John F. Cabew, New York. Charles C. Caelin, Virginia. John B. Peterson, Indiana. John C. Floyd, Arkansas. John J. Mitchell, Massachusetts. EoBEBT Y. TteoMAS, Jr., Kentucky. Andrew J. Volstead, Minnesota. H. Garland DupeA, Louisiana. John M. Nelson, Wisconsin. Waltbe I. McCoy, New Jersey. Dick T. Morgan, Oklahoma. •Daniel J. McGillicuddt, Maine. Henet G. Danfoeth, New York. Jack Beall, Texas. L. C. Dybe, Missouri. Joseph Taggaet, Kansas. George S. Graham, Pennsylvania. Louis PitzHhney, Illinois. Walter M. Chandler, New York. J. J. Speight, Clerk, II TABLE OF CONTEIvrTS. Unless otherwise indicated, references are to Revised Statutes or codes of the several States. United States ,, .-.-,-.-, .' 1-39 Sherman antitrust law ;...'.■ . .t. :^. . . .v 1 Act of August 15, 1894 ^ 3 Act of February 12, 1913 5 Act of February 4, 1887 6 Act of February 11, 1903 7 Joint resolution of March 7, 1906 8 Joint resolution of March 21, 1906 1 , . . , 10 Act of June 25, 1910 11 Judicial Code, January 1, 1912 13 Act of February 25, 1903 13 Act of February 14, 1903 14 Act of June 13, 1906, immunity of witnesses 15 Sundry civil bill, March 4, 1913 16 Panama Canal act, August 24, 1912 17 Naval appropriation bill, March 4, 1913 20 District of Columbia appropriation bill, March 4, 1913 21 Equity rules. Supreme Court United States 23 Table of cases decided under Sherman law 24-34 Resale contracts, cases 34-36 Labor cases 36 Power "of Congress under antitrust act, cases 38 Alabama: Constitution 41 Statutes — Acts 1883 41 Acts 1897 43 Court decisions 44 Arizona: Constitution 45 Statutes, Acts 1912 '. 45-49 Arkansas: Constitution 51 Statutes, Acts 1905 as amended 1913 51-58 Court decisions , 58 OaHfomia: Constitution 59 Statutes, Acts 1907 59 Unfair competition, Acts 1913 ,......,,,.. 64 Court decisions , 66 III IV TABLE OP CONTENTS. Colorado: Page. Constitution 69 Statutes, Acts 1913 69 Connecticut: Constitution 73 Statutes, Acts 1911 73 Court decisions 73 Delaware , 75 District of Columbia 77 Florida: , ' Statutes, Acts 1906 79 Court decisions 79 Georgia: Constitution .' 81 Statutes — Acts 1896 81 Acts 1890 82 Court decisions 84 Idaho: Constitution 85 Statutes — Acts 1909 85 Acts 1911 86 Illinois: Statutes — Acts 1907 93 Acts 1893 (held unconstitutional) 98 Court decisions 101 Illustrative cases 102-104 Indiana: Statutes : 105 Acts 1907 - 105 Court decisions 112 Iowa: Statutes as amended by Acts 1913 113 Court decisions , Hg Illustrative cases Hg Kansas: Statutes — Acts 1887 117 Acts 1889 119 Acts 1897 122 Acts 1899 126 Acts 1905 ; '_\ 127 Acts 1909 ...!!'! 130 Court decisions _ igi Kentucky: Constitution 133 Statutes — Acts 1890 133 Acts 1908 135 Acts 1908 ] 136 Court decisions 13jj Illustrative cases 138 TABLE OP OOKTENTS. V Louisiana. . Paga. Constitution 139 Statutes — Acts 1890 139 Acts 1908 142 Court decisions 143 Illustrative cases 144 Maine: Statutes .' 145 Acts 1913 : 146 Court decisions 147 Maryland, constitution 149 Massachusetts: Statutes — Acts 1907 151 Acts 1908 151 Acts 1911 .., 152 Acts 1912 , 154 Acts 1913 156 Court decisions 157 Illustrative cases 157-159 Michigan: Constitution 161 Statutes — Acts 1899 161 Acts 1905 " ; 165-168 Unfair competition, Acts 1913 168 Court decisions 169 Illustrative cases 170-172 Minnesota: Constitution 173 Statutes, Acts 1907 173 Court decisions - 174 Mississippi: Constitution 175 Statutes, code as amended 175 Court decisions 183 Missouri: Statutes as amended 1913 .• 185 Court decisions 201 Montana: Constitution 203 Statutes, Acts 1909 203 Unfair competition, Acts I9l3 204-206 Court decisions 206 Nebraska: Constitution 207 Statutes — Acts 1897 207 Acts 1913 -- 211,215 Unfair discrimination, Acts 1913 213 Court decisions 223 Nevada 225 New Hampshire, court decisions 227 VI TABLE OF CONTENTS. New Jersey: . Page. Statutes, Acts 1913 229-235 Unfair competition, Acts 1913 231 Court decisions 235 New Mexico, statutes 237 New York: Statutes 239 Court decisions 242 Illustrative cases 244-250 North Carolina:' Constitution 251 Statutes — Acts 1911 251 Acts 1913 254 Court decisions 260 North Dakota: Constitution 261 Statutes, Acts 1907 261 Unfair competition, Acts 1913 266, 269 Ohio: Statutes 271 Court decieionc 276 Illustrative cases 276» Oklahoma: Constitution 281 Statutes ' 282 Unfair competition. Acts 1913 288 Court decisions 291 Oregon, court decisions ' 293 Pennsylvania: Constitution 295 Court decisions 295 Rhode Island, court decisions 297 South Carolina: Constitution 299 Statutes — Code , 299 Acts 1902 301 Court decisions 305 South Dakota: Constitution 307 Statutes, Acts 1909 307 Unfair competition. Acts 1913 312 Court decisions 313 Tennessee: Constitution _ 3^5 Statutes, Acts 1903 315 Court decisions.". 3Xg Texas: Constitution 317 Statutes 317-336 Court decisions 33g TABLE OF CONTENTS. VII Utah: Page. Constitution » 339 Statutes 339 Unfair competition, Acts 1913.-. 341, 342 Vermont, statutes 345 Virginia, Constitution 347 Washington: Constitution 349 Court decision 349 West Virginia, court decision ^ 351 Wisconsin: Statutes , 353 Acts, 1913 '. 355 Court decisions 357 Wyoming: Constitution 359 Statutes 359 Foreign countries : . . 363-480 Australia 363-382 Canada 383-403 Cape of Good Hope , , 405-407 Great Britain 409-460 British decisions, A. D. 1415-1894 447-460 Japan 461 New Zealand 463-480 LAWS ON TRUSTS AND MONOPOLIES, DOMESTIC AND FOREIGN, WITH AUTHORITIES. UNITED STATES. Statutes, the sherman antitrust law. [26 Stat. L., 209. July 2, 1890.] AN ACT To protect trade and commerce against unlawful i-e- stralnts and monopolies. Be it enacted hy the Senate and House of Representa- tives of the United States of America in Congress as- serrMed. Every contract, combination in the form of Restraint pro- ' "^ . ' . . • » 1 hlbited in com- trust or otherwise, or conspiracy, m restraint of trade merce between , -, X • . , „ . states and for- or commerce among the several States, or with foreign eign nations. nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be pun- Punishment, ished by a fine not exceeding $5,000, or by imprisonment not exceding one year, or by both said punishments, in the discretion of the court. Sec. 2. Every person who shall monopolize, or attempt Monopoly pro- to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not ex- Punishment. ceeding $5,000, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. Sec. 3. Every contract, combination in form of trust specific piovi- *> ' ^ ^ sion as to ter- or otherwise, or conspiracy, in restraint of trade or com- '•t<"'y involved. merce in any Territory of the United States or of the District of Columbia, or in restraint of trade or commerce 24427°— 14 1 1 2 LAWS ON TEUSTS AND MONOPOLIES. between any such Territory and another, or between any such Territory or Territories and any State or States or the District of Columbia, or with foreign nations, or be- tween the District of Columbia and any State or States or foreign nations, is hereby declared illegal. Every person who shall make any such contract or engage in Conspiracy. g^j^y gudi combination or conspiracy, shall be deemed Punishment, guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding $5,000, or by imprison- ment not exceeding one year, or by both said punish- ments, in the discretion of the court. ^iow'district^ Sec. 4. The several circuit courts of the United States juTiaiLuon? are hereby invested with jurisdiction to prevent and restrain violations of this act; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the ^"'yQo^g^^*t<"^- Attorney General, to institute proceedings in equity to prevent and restrain such violations. Such proceedings may be by way of petition setting forth the case and praying that such violation shall be enjoined or other- wise prohibited. When the parties complained of shall have been duly notified of such petition the court shall proceed, as soon as may be, to the hearing and determi- nation of the case; and pending such petition and before dere.^"'^^'^^ °'^' final decree, the court may at any time make such tem- porary restraining order or prohibition as shall be deemed just in the premises. Additional par- Qeo. 5. Whenever it shall appear to the court before which any proceedings under section four of this act may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned whether they reside in , the district in which the court is held or not, and sub- poenas to that end may be served in any district by the marshal thereof. p^o"?!*!^!^ °' Sec. 6. Any property owned under any contract or by any combination, or pursuant to any conspiracy (and being the subject thereof) mentioned in section one of this act, and being in the course of transportation from one State to another, or to a foreign country, shall be forfeited to the United States, and may be .seized and condemned by like proceedings as those provided by law for the forfeiture, seizure, and condemnation of property imported into the United States contrary to law. UNITED STATES. 3 Sec. 7. Any person who shall be injured in his business agerto\njur"d or property by any person or corporation by reason of P^'^*y- anything forbidden or declared to be unlawful by this act, may sue therefor in any circuit court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sus- tained, and the cost of suit, including a reasonable at- torney's fee. Sec. 8. That the word " person," or " persons," wher- Definitions. ever used in this act shall be deemed to include corpora- tions and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country. [28 Stat L., 570. Aug. 15, 1894.] AN ACT To reduce taxation and provide revenue for the Gov- ernment, and for other purposes. Sec. 73. That every combination, conspiracy, trust, pumic policy. •' . ' , Declaration of. agreement, or contract is hereby declared to be contrary (Amended by to public policy, illegal, and void, when the same is made Feb. 12, 19*13. ) by or between two or more persons or corporations either of whom is engaged in importing any article from any foreign country into the United States, and when such combination, conspiracy, trust, agreement^, or contract is intended to operate in restrain of lawful trade, or free competition in lawful trade or commerce, or to increase the market price in any part of the United States of any article or articles imported or intended to be imported into the United States, or of any manufacture into which such imported article enters or is intended to enter. Every person who is or shall hereafter be engaged in the Conspiracy ot importation of goods or any commodity from any for- eign country in violation of this section of this act, or who shall combine or conspire with another to violate the same, is guilty of a misdemeanor, and, on conviction thereof in any court of the United States,, such person Punishment, shall be fined in a sum not less than $100 and not exceed- ing $5,000, and shall be further punished by imprison- ment, in the discretion of the court, for a term not less than three months nor exceeding twelve months. Sec. 74. That the several circuit courts of the United ^Jf.f^^affi'rt States are hereby invested with jurisdiction to prevent ^9^t'i*^j,''o,^"'''^" 4 LAWS ON TEtrSTS AND MONOPOLIES. and restrain violations of section seventy-three of this S?cf a°tto^eys. ^^^ J ^^^ ^^ shall be the duty of die several district attor- neys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such vio- lations. Such proceedings may be by way of petitions setting forth the case and praying that such violations shall be enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition the court shall proceed, as soon as may be, dera™'"'"^ °'' ^ ^^^ hearing and determination of the case ; and pend- ing such petition and before final decree the court may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises, other parties. g^^^ 75 Tj^g^^ whenever it shall appear to the court before which any proceeding under the seventy-fourth section of this act may be pending that the ends of jus- tice require that other parties should be brought before the court, the court may cause them to be summoned whether they reside in the district where the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof. aSd*l™zarl°of ^^*^- '^^- '^^^* ^^J property owned under any contract fimlnEd by °^ ^^ ^^^ combination or pursuant to any conspiracy Peb."i2f 1^13 ) (^^^ being the subject thereof) mentioned in section seventy-three of this act, and being in the course ot transportation from one State to another or to or from a Territory or the District of Columbia shall be forfeited to the United States, and may be seized and condemned by like proceedings as those provided by law for the forfeiture, seizure, and condemnation of property im- ported into the United States contrary to law. ag^fo tajarS' Sec. 77. That any person who shaU be injured in his. party. business or property by any other person or corporation by reason of anything forbidden or declared to be un- lawful by this act may sue therefor in any circuit court of the United States in the district in which the defend- ant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee. Eeceived by the President August 15, 1894, and not being returned within 10 days became a law without his approval. tJNITED STATES. 5 [The foregoing sections were expressly preserved in the Dingley Act of 1897. Section 34 of that act (30 Stat., 213) concludes as follows:] And further provided, That nothing in this act shall be Dingiey Act ' , . IV reservation. construed to repeal or in any manner affect the sections numbered seventy-three, seventy-four, seventy-five, sev- enty-six, and seventy-seven of an act entitled "An act to reduce taxation, to provide revenue for the Govern- ment, and for other purposes," which became a law on the twenty-eighth day of August, eighteen hundred and ninety- four. [Public— No 370. Feb. 12, 1913.] [H. R. 25002.] .VN ACT To amend section seventy-three and section seventy-six of the Act of August twenty-seventh, eighteen hundred and ninety-four, entitled "An Act to reduce taxation, to provide rev- enue for the Government, and for other purposes." Be it enacted hy the Senate and House of Representa- tives of the United States of America in Congress asseriv- hled, That section seventy-three and section seventy-six of the Act of August twenty-seventh, eighteen hundred and ninety-four, entitled "An Act to reduce taxation, to provide revenue for the Government, and for other pur- poses," be, and the same are hereby, amended to read as follows : " Sec. 73. That every combination, conspiracy, trust. Amending agreement, or contract is hereby declared to be contrary iug. i5, i894. to public policy, illegal, and void when the same is made by or between two or more persons or corporations either of whom, as agent or principal, is engaged in importing any article from any foreign country into the United States, and when such combination, conspiracy, trust, agreement, or contract is intended to operate in restraint of lawful trade, or free competition in lawful trade or commerce, or to increase the market price in any part of the United States of any article or articles imported or intended to be imported into the United States, or of any manufacture into which such imported article enters or is intended to enter. Every person who is or shall here- after be engaged in the importation of goods or any com- modity from any foreign country in violation of this sec- tion of this Act, or who shall combine or conspire with another to violate the same, is guilty of a misdemeanor. 6 LAWS ON TRUSTS AND MONOPOLIES. and on conviction thereof in any court of the United States such person shall be fined in a sum not less than one hundred dollars and not exceeding five thousand dol- lars, and shall be further punished by imprisonment, in the discretion of the court, for a term not less than three months nor exceeding twelve months." Amending " Sec. 76. That any property owned under any contract S6C. I 0| aCt - 1 • , • II * Aug. 15, 1894. or by any combination, or pursuant to any conspiracy, and being the subject thereof, mentioned in section seventy-three of this Act, imported into and being within the United States or being in the course of transportation from one State to another, or to or from a Territory or the District of Columbia, shall be forfeited to the United States, and may be seized and condemned by like proceed- ings as those provided by law for the forfeiture, seizure, and condemnation of property imported into the United States contrary to law." [24 Stat. L., 379. Feb. 4, 1887.] AN ACT To regulate commerce.' Be it enacted hy the Senate and House of Representa- tives of the United States of America in Congress assem- Act applies to Med. That the provisions of this act shall apply to common car- ' . . .'■'■'' Tiers. any common carrier or carriers engaged m the trans- portation of passengers or property wholly by railroad, or partly by railroad and partly by water when both are used, under a common control, management, or arrange- laent, for a continuous carriage or shipment, from one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States, through a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of transshipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign Bxceptions. countrv : Provided, however, That the provisions of this act shall not apply to the transportation of passengers or iThe parts of tlie act not relating to combinations are omitted. tJNitEt) STATES. 7 property, or ta the receiving, delivering, storage, or handling of property, wholly within one State, and not shipped to or from a foreign country from or to any State or Territory as aforesaid. The term " railroad " as used in this act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any cor- poration operating a railroad, whether owned or operated under a contract, agreement, or lease; and the term "transportation" shall include all instrumentalities of shipment or carriage. * * * Sec. 5. That it shall be unlawful for any common car- PooUng agree- rier subject to the provisions of this act to enter into anyfui. contract, agreement, or combination with any other com- mon carrier or carriers for the pooling of freights of different and competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads, or any portion thereof; and in any case of an agreement for the pooling of freights as aforesaid, each day of its continuance shall be deemed a separate offense. Sec. T. That it shall be unlawful for any common car- continuous „ , . . shipmenta. rier subject to the provisions of this act to enter into any combination, contract, or agreement, expressed or im- plied, to prevent, by change of time schedule, carriage in different cars, or by other means or devices, the carriage of freight from being continuous from the place of ship- ment to the place of destination. * * * [32 Stat. L., 823. Feb. 11, 1903.] AN ACT To expedite the hearing and determination of suits in equity pending or hereafter brought under the act of July second, eighteen hundred and ninety, entitled "An act to pro- tect trade and commerce against unlawful restraints and mo- nopolies," "An act to regulate commerce," approved February fourth, eighteen hundred and eighty-seven, or any other acts having a like purpose that may be hereafter enacted. Be it enacted iy the Senate and House of Representa- tives of the United States of America in Congress as- semUed, That in any suit in equity pending or l^ereaf ter Bxpeaition^of ^ brought in any circuit court of the United States under sherman^iaw. the act entitled "An act to protect trade and commerce act ^June 25, against unlawful restraints and monopolies," approved July second, eighteen hundred and ninety, "An act to regulate commerce," approved February fourth, eighteen 8 LAWS ON TBUSTS AND MONOPOLIES. hundred and eighty-seven, or any other acts having a like purpose that hereafter may be enacted, wherein the United States is complainant, the Attorney General may file with the clerk of such court a certificate that, in his opinion, the case is of general public importance, a copy of which shall be immediately furnished by such clerk to each of the circuit judges of the circuit in which the case is pending. Thereupon such case shall be given precedence over others and in every way expedited, and be assigned for hearing at the earliest practicable day, before not less than three of the circuit judges of said circuit, if there be three or more; and if there be not more than two circuit judges, then before them and such dis- trict judge as they may select. In the event the judges sitting in such case shall be divided in opinion, the case shall be certified to the Supreme Court for review in like manner as if taken there by appeal as hereinafter pro- vided. appeaiB*''* ^°'^ Sec. 2. That in every sait in equity pending or here- after brought in any circuit court of the United States under any of said acts, wherein the United States is complainant, including cases submitted but not yet de- cided, an appeal from the final decree of the circuit court will lie only to the Supreme Court, and must be taken within sixty days from the entry thereof: Provided, That in any case where an appeal may have been taken from the final decree of a circuit court to the circuit court of appeals before this act takes effect, the case shall proceed to a final decree therein, and an appeal may be taken from such decree to the Supreme Court in the manner now provided by law. JOINT KBSOLtlTION Instructing the Interstate Commerce Com- mission to make examinations into the subject of railroad dis- criminations and monopolies in coal and oil, and report on the same from time to time. Resolved iy the Senate and House of Representatives of the United States of America in Congress assembled, 8traSedto"ex° That the Interstate Commerce Commission be, and is ?Mt°of'?an/o"a'd^®^®^y' authorized and instructed immediately to inquire, tionsTn°coai investigate, and report. to Congress, or to the President make°rep^ort "^^^^ Congress is not in session, from time to time as the tim™ *'™* *" investigation proceeds — UNITED STATES. V First. Whether any common carriers by railroad, sub ject to the interstate-commerce act, or either of them, own or have any interest in, by means of stock ownership in other corporations or otherwise, any of the coal, or oil which they, or either of them, directly or through other companies which they control or in which they have an interest, carry over their or any of their lines as common carriers, or in any manner own, control, or have any in- terest in coal lands or properties or oil lands or properties. Second. Whether the officers of any of the carrier com- rferain cm" panics aforesaid, or any of them, or any person or per- or'^poai and^* sons charged with the duty of distributing cars or fur- "" traffic, nishing facilities to shippers, are interested, either directly or indirectly, by means of stock ownership or otherwise in corporations or companies owning, operat- J°f^^*^^ °^_ ing, leasing, or otherwise interested in any coal mines, ^'^^J^^^'j^ ,^^"^^g coal properties, or coal traffic, oil, oil properties, or oil ^'afflc^' ^""^ °" traffic over the railroads with which they or any of them are connected or by which they or any of them are employed. Third. Whether there is any contract, combination in ^°™J'\^**'°" °' the form of trust, or otherwise, or conspiracy in restraint ^^""^Sigpoiy^*^ of trade or commerce among the several States, in which J°|^°'' °" any common carrier engaged in the transportation of coal or oil is interested, or to which it is a party ; and whether any such common carrier monopolizes or attempts to monopolize or combines or conspires with any other car- rier, company or companies, person or persons to monop- olize any part of the trade or commerce in coal or oil or traffic therein among the several States or with foreign nations, and whether or not, and if so, to what extent, such carriers, or any of them, limit or control, directly or indirectly, the output of coal mines or the price of coal and oil fields or the price of oil. , . <. ■ ^ ^ _, ^ • • 1 n Commission to Fourth. If the Interstate Commerce Commission shall make report, find that the facts, or any of them, set forth in the three paragraphs above do exist, then that it be further re- quired to report as to the effect of such relationship, ownership, or interest in coal or coal properties and coal traffic or oil, oil properties, or oil traffic aforesaid, or such contracts or combinations in form of trust or other- wise, or conspiracy or such monopoly or attempt to monopolize or combine or conspire as aforesaid, upon 10 LAWS ON TEUSTS AND MONOPOLIES. such person or persons as may be engaged independ- ently of any other persons in mining coal or producing oil and shipping the same, or other products, who may desire to so engage, or upon the general public as con- sumers of such coal or oil. fuppf^aSd «s- Fifth. That said commission be also required to iuves- tribution. tigate and report the system of car supply and distribu- tion in effect upon the several railway lines engaged in the transportation of coal or oil as aforesaid, and whether said systems are fair and equitable, and whether the same are carried out fairly and. properly ; and whether said car- riers, or any of them, discriminate against shippers or parties wishing to become shippers over their several lines, either in the matter of distribution of cars or in furnishing facilities or instrumentalities connected with receiving, forwarding, or carrying coal or oil as afore- said. suS^a't remed? ^^^th. That Said Commission be also required to report tSdconci"*"*^^^ to "^hat remedy it can suggest to cure the evils above sions. set forth, if they exist. Seventh. That said commission be also required to re- port any facts or conclusions which it may think pertinent to the general inquiry above set fortli. ^'fumuh^*° Eighth. That said commission be required to make this from time to investigation at its earliest possible convenience and to furnish the information above required from time to time and as soon as it can be done consistent with the performance of its public duty. Public Eesolution, No. 8, approved March 7, 1906. JOINT RESOLUTIOX Amending joint resolution instructing the Interstate Commerce Commission to make examinations into the subject of railroad discriminations and monopolies, and report on the same from time to time, approved March seventh, nine- teen hundred and six. Resolved hy the Senate and House of Represenfafives of the United States of America in Congress assembled, That joint resolution instructing the Interstate Com- merce Commission to make examinations into the subject of railroad discriminations and monopolies, and report on the same from time to time, approved March seventh, nineteen hundred and six, is hereby amended by adding the following thereto: Ninth. To enable the commission to perform the duties required and accomplish the purposes declared herein UNITED STATES. 11 the commission shall have and exercise under this joint resolution the same power and authority to administer oaths, to subpoena and compel the attendance and testi- mony of witnesses and the production of documentary evidence, and to obtain full information, which said com- mission now has under the act to regulate commerce, ap- proved 'February fourth, eighteen hundred and eighty- seven and acts amendatory thereof or supplementary thereto now in force or may have under any like statute taking effect hereafter. All the requirements, obliga- tions, liabilities, and immunities imposed or conferred by said act to regulate commerce and by "An act in rela- tion to testimony before the Interstate Commerce Com- mission in cases under or connected with an act entitled 'An act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, and amendments thereto," approved February eleventh, eighteen hundred and ninety -three, shall also apply to all persons who may be subpoenaed to testify as witnesses or to produce docu- mentary evidence in pursuance of the authority herein conferred. Public Eesolution, No. 11, approved March 21, 1906. [36 Stat. L., 854. June 25, 1910.] AN ACT To amend an act entitled "An act to expedite the hearing and determination of suits in equity pending or hereafter brought under the act 9f July second, eighteen hundred and ninety, entitled 'An act to protect trade and commerce against unlawful restraints and monopolies,' 'An act to regulate com- merce,' approved February fourth, eighteen hundred and eighty- seven, or any other acts having a like purpose that may be hereafter enacted," approved February eleventh, nineteen hun- dred and three. Be it enacted hy the Senate and B.ouse of Representa- tives of the United States of America in Congress as- semlled, That section one of the act entitled "An act to expedite the hearing and determination of suits in equity pending or hereafter brought under the act of July sec- ond, eighteen hundred and ninety, entitled 'An act to protect trade and commerce against unlawful restraints and monopolies,' 'An act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, or any other acts having a like purpose that may be here- after enacted," approved February eleventh, nineteen hundred and three, be, and the same is hereby, amended so as to read as follows : 12 LAWS ON TEUSTS AND MONOPOLIES. cases^ulider°' "That in any §uit in equity pending or hereafter trust laws. brought in any circuit court of the United States under the act entitled 'An act to protect trade and commerce against unlawful restraints and monopolies,' approved July second, eighteen hundred and ninety,' 'An act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, or any other acts having a like purpose that hereafter may be enacted, wherein the United States is complainant, the Attorney General may file with the clerk of such court a certificate that, in his opinion, the case is of general public importance, a copy of which shall be immediately furnished by such clerk to each of the circuit judges of the circuit in which the case is pending. Thereupon such case shall be given precedence over others and in every way expedited, and be assigned for hearing at the earliest practicable day, before not less than three of the circuit judges of said court, if there be three or more ; and if there be not more ?ulges.*"°" °* than two circuit judges, then before them and such dis- trict judge as they may select; or, in case the full court shall not at any time be made up by reason of the neces- sary absence or disqualification of one or more of the said circuit judges, the justice of the Supreme Court assigned to that circuit or the other circuit judge or judges may designate a district judge or judges within the circuit who shall be competent to sit in said court at the hearing of said suit. In the event the judges sit- ting in such case shall be equally divided in opinion as to the decision or disposition of said cause, or in the event that a majority of said judges shall be unable to agree upon the judgment, order, or decree finally dis- posing of said case in said court which should be entered in said cause, then they shall inmiediately -certify that Failure of fact to the Chief Justice of the United States, who shall agreement to . . . ' he certifled to at once designate and appoint some circuit judge to sit with said judges and to assist in determining said cause. Such order of the Chief Justice shall be immediately transmitted to the clerk of the circuit court in which said cause is pending, and shall be entered upon the minutes of said court. Thereupon said cause shall at once be set down for reargumept and the parties thereto notified in writing by the clerk of said court of the action of the court and the date fixed for the reargument thereof. The jprovisions of this section shall apply to CJNITED STATES. 13 all causes and proceedings in all courts now pending, or which may hereafter be brought. THE JUDICIAL CODE. AN ACT To codify, revise, and amend the laws relating to the judiciary. [Approved Mar. 3, 1911 ; in effect Jan. 1, 1912.] Sec. 289. The circuit courts of the United States, upon circuit courts • the taking effect of this act, shall be and hereby are " " ^ * ' abolished. * * * Sec. 290. All suits and proceedings pending in said District courts • J i ,1 1 » , 1 , • /« « . supersede clr- circuit courts on the day oi the taking effect of this act, cuit courts, whether originally brought therein or certified thereto from the district courts, shall thereupon and thereafter be proceeded with and disposed of in the district courts in the same manner and with the same effect as if origi- nally begun therein. * * * Sec. 291. Wherever, in any law not embraced within district courts . . •' . supersede clr- this act, any reference is made to, or any power or duty is ™" courts, conferred or imposed upon, the circuit courts, such ref- erence shall, upon the taking effect of this act, be deemed and held to refer to, and to confer such power and im- pose such duty upon, the district courts. [32 Stat. L., 854, 903. Feb. 25, 1908.] AN ACT Making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June thirtieth, nineteen hundred and four, and for other pur- poses. if: ^ ^ ^ H: That for the enforcement of the provisions of the act entitled "An act to regulate commerce," approved Febru- ary fourth, eighteen hundred and eighty-seven, and all acts amendatory thereof or supplemental thereto, and of the act entitled "An act to protect trade and commerce against unlawful restraints and monopolies," approved July second, eighteen hundred and ninety, and all acts amendatory thereof or supplemental thereto, and sections seventy-three, seventy-four, seventy-five, and seventy-six of the act entitled "An act to reduce taxation, to pro- vide revenue for the Government, and other purposes," approved August twenty-seventh, eighteen hundred and 14 LAWS ON TRUSTS AND MONOPOLIES. Exemptions from prosecu- tions under trust acts. ninety-four, the sum of $500,000, to be immediately avail- able, is hereby appropriated, out of any money in the Treasury not heretofore appropriated, to be expended . under the direction of the Attorney General in the em- ployment of special counsel and agents of the Department of Justice to conduct proceedings, suits, and prosecutions under said acts in the courts of the United States : Pro- vided^ That no person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding, suit, or prosecution under said acts: Provided further. That no person so testifying shall be exempt from prosecution or punishment for perjury committed in so testifying. [32 Stat. Ij., 825, 827. Feb. 14, 1903.] AN ACT To establish tbe Department of [Commerce and Labor.] Now Department of Commerce, act March fourth, nineteen hundred and thirteen. Bureau of Cor- porations. Powers of bu- reau to make Investigation. Si5C. 6. That there shall be in the Department of Com- merce and Labor a bureau to be called the Bureau of Corporations, and a Commissioner of Corporations who shall be the head of said bureau, to be appointed by the President, who shall receive a salary of $5,000 per an- num. There shall also be in said bureau a deputy com- missioner who shall receive a salary of $3,500 per annum and who shall, in the absence of the commissioner, act as and perform the duties of the Comimssioner of Corpora- tions, and who shall also perform such other duties as may be assigned to him by the Secretary of Commerce and Labor or by the said commissioner. There shall also be in the said bureau a chief clerk and such special agents, clerks, and other employees as may be authorized by law. The said commissioner shall have power and authority to make, under the direction and control of the Secretary of Commerce and Labor, diligent investigation into the organization, conduct, and management of the business of any corporation, joint-stock company, or corporate combination engaged in commerce among the several States and with foreign nations, excepting common car- riers subject to "An act to regulate commerce," approved I'ebruary foui1;h, eighteen hundred and eighty-seven, and UNITED STATES. 15 to gather such information and data as will enable the President of the United States to make recommendations to Congress for legislation for the regulation of such commerce and to report such data to the President from time to time as he shall require ; and the information so obtained, or so much thereof as the President may direct, shall be made public. In order to accomplish the purposes declared in the foregoing part of this section, the said commissioner shall have and exercise the same power and authority in respect to corporations, joint-stock companies, and com- binations subject to the provisions hereof as is conferred on the Interstate Commerce Commission in said " act to regulate commerce," and the amendments thereto in respect to common carriers, so far as the same may be applicable, including the right to subpoena and compel ^^^^^^^§1^^^^ the attendance and testimony of witnesses and the pro- ^J"^^j®^|^™°°y duction of documentary evidence and to administer oaths. \°°^^' p'^^p^'^- All the requirements, obligations, liabilities, and immu- nities imposed or conferred by said " act to regulate com- merce " and by "An act in relation to testimony before the Interstate Commerce Commission," and so forth, ap- proved February eleventh, eigtheen hundred and ninety- three, supplemental to said " act to regulate commerce " shall also apply to all persons who may be subpoenaed to testify as witnesses or to produce documentary evidence in pursuance of the authority conferred by this section. It shall also be the province and duty of said bureau, ports."''"^'" '^ under the direction of the Secretary of Commerce and Labor, to gather, compile, publish, and supply useful information concerning corporations doing business within the limits of the United States as shall engage in interstate commerce or in commerce between the United States and any foreign country, including cor- porations engaged in insurance, and to attend to such other duties as may be hereafter provided by law. ***** [34 Stat., 798. June 30, 1906.] AN ACT Defining the right of immunity of witnesses under the act entitled "An act in relation to testimony before the Inter- state Commerce Commission," and so forth, approved February eleventh, eighteen hundred and ninety-three, and an act en- titled "An act to establish the Department of Commerce and Labor," approved February fourteenth, nineteen hundred and three, and an act entitled "An act to further regulate com- 16 LAWS ON TRUSTS AND MONOPOLIES. Immunity of witnesses. merce witli foreign nations and among the States," approved February nineteenth, nineteen hundred and three, and an act entitled "An act making appropriations for the legislative, ex- ecutive, and judicial expenses of the Government for the fiscal year ending June thirtieth, nineteen hundred and four, and for other purposes," approved February twenty-fifth, nineteen hun- dred and three. That under the immunity provisions in the act en- titled "An act in relation to testimony before the Inter- state Commerce Commission," and so forth, approved February eleventh, eighteen hundred and ninety-three, in section six of the act entitled "An act to establish the Department of Commerce and Labor," approved Feb- ruary fourteenth, nineteen hundred and three, and in the act entitled "An act to further regulate commerce with foreign nations and among the States," approved February nineteenth, nineteen hundred and three, and in the act entitled "An act making appropriations for the legislative, executive, and judicial expenses of the Gov- ernment for the fiscal year ending June thirtieth, nineteen hundred and four, and for other purposes," approved February twenty-fifth, nineteen hundred and three, im- munity shall extend only to a natural person who, in obedience to a subpoena, gives testimony under oath or produces evidence, documentary or otherwise, under oath. [Public, No. 3. H. R. 2441. Mar. 4, 1913.] AN ACT Making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirtieth, nineteen hundred and fourteen, and for other purposes. T' ^ ^ ^ :^ prMeCTi*uons°of Enforcement of antitrust laws: For the enforcement orgMizatioS™ °-^ antitrust laws, including not exceeding $10,000 for salaries of necessary employees at the seat of government, $300,000 : Provided, however, That no part of this money shall be spent in the prosecution of any organization or individual for entering into any combination or agree- ment having in view the increasing of wages, shortening of hours or bettering the conditions of labor, or for any act done in furtherance thereof, not in itself unlawful: Provided further, That no part of this appropriation shall be expended for the prosecution of producers of farm products and associations of farmers who cooperate and organize in an effort to and for the purpose to obtain and maintain a fair and reasonable price for their prod- ucts. * * * UNITED STATES. 17 [Public, No. 337. Approved Aug. 24, 1912. H. R. 21969.] AN ACT To provide for the opening, maintenance, protection, and operation of the Panama Canal, and the sanitation and govern- ment of the Canal Zone. * * * 4i 4: Sec. 11. That section five of the act to regulate com- merce, approved February fourth, eighteen hundred and eighty-seven as heretofore amended, is hereby amended by adding thereto a new paragraph at the end thereof, as follows: " From and after the first day of July, nineteen hun- ^ own'^lhip"' dred and fourteen, it shall be unlawful for any railroad Exceptions, company or other common carrier subject to the act to regulate commerce to own, lease, operate, control, or have any interest whatsoever (by stock ownership or other- wise, either directly, indirectly, through any holding company, or by stockholders or directors in common, or in any other manner) in any common carrier by water operated through the Panama Canal or elsewhere with which said railroad or other carrier aforesaid does or may compete for traffic or any vessel carrying freight or passengers upon said water route or elsewhere with which said railroad or other carrier aforesaid does or may com- pete for traffic; and in case of the violation of this pro- vision each day in which such violation continues shall be deemed a separate offense." Jurisdiction is hereby conferred on the Interstate Com- merce Commission to determine questions of fact as to the competition or possibility of competition, after full hear- ing, on the application of any railroad company or other carrier. Such application may be filed for the purpose of determining whether any existing service is in viola- tion of this section and pray for an order permitting the continuance of any vessel or vessels already in operation, or for the purpose of asking an order to install new serv- ice not in conflict with the provisions of this paragraph. The commission may on its own motion or the applica- tion of any shipper institute proceedings to inquire into the operation of any vessel in use by any railroad or other carrier which has not applied to the commission and had the question of competition or the possibility of competition determined as herein provided. In all such cases the order of said commission shall be final. 24427°— 14 2 18 LAWS ON TKUSTS AND MONOPOLIES. terrtete 'com- ^^ t^® Interstate Commerce Commission shall be of the merce Commis- opinion that any such existing specified service by water other than through the Panama Canal is being operated in the interest of the public and is of advantage to the convenience and commerce of the people and that such extension wUl neither exclude, prevent, nor reduce com- petition on the route by water under consideration, the Interstate Commerce Commission may, by order, extend the time during which such service by water may continue to be operated beyond July jBrst, nineteen hundred and fourteen. In every case of such extension the rates, schedules, and practices of such water carrier shall be filed with the Interstate Commerce Commission and shall be subject to the act to regulate commerce and all amend- ments thereto in the same manner and to the same extent as is the railroad or other common carrier controlling such water carrier or interested in any manner in its opera- tion : Provided, Anj application for the extension under the terms of this provision filed with the Interstate Com- merce Commission prior to July first, nineteen hundred and fourteen, but for any reason not heard and disposed of before said date, may be considered and granted thereafter. or^operated°in ^o vessel permitted to engage in the coastwise or for- sherman law ^igii trade of the United States shall be permitted to enter canal? "^^ 01" P^^s through- said canal if such ship is owned, char- tered, operated, or controlled by any person or company which is doing business in violation of the provisions of the act of Congress approved July second, eighteen hun- dred and ninety, entitled "An act to pi-otect trade and commerce against unlawful restraints and monopolies," or the provisions of sections seventy-three to seventy- seven, both inclusive, of an act approved August twenty- seventh, eighteen hundred and ninety-four, entitled "An act to reduce taxation, to provide revenue for the Gov- ernment, and for other purposes," or the provisions of any other act of Congress amending or supplementing the said act of July second, eighteen hundred and ninety, commonly known as the Sherman Antitrust Act, and amendments thereto, or said sections of the act of August twenty-seventh, eighteen hundred and ninety-four. The question of fact may be determined by the judgment of any court of the United States of competent jurisdiction in any cause pending before it to which the owners or UNITED STATES. 19 operators of such ship are parties. Suit may be brought by any shipper or by the Attorney General of the United States. That section six of said act to regulate commerce, as heretofore amended, is hereby amended by adding a nevf paragraph at the end thereof, as follows: " When property may be or is transported from point Hsdlction'of"" to point in the United States by rail and water through interstate com- the Panama Canal or otherwise, the transportation being s'°°- by a common carrier or carriers, and not entirely within the limits of a single State, the Interstate Commerce Commission shall have jurisdiction of such transporta- tion and of the carriers, both by rail and by 'water, which may or do engage in the same, in the following particu- lars, in addition to the jurisdiction given by the act to^ regulate commerce, as amended June eighteenth, nine- teen hundred and ten: " (a) To establish physical connection between the lines JJl^sicaf ^c'on- of the rail carrier and the dock of the water carrier by '^®'=t'°°^- directing the rail carrier to make suitable connection be- tween its line and a track or tracks which have been con- structed from the dock to the limits of its right of way, • or by directing either or both the rail and water carrier, individually or in connecti'on with one another, to con- struct and connect with the lines of the rail carrier a spur track or tracks to the dock. This provision shall only apply where such connection is reasonably practicable, can be made with safety to the public, and where the amount of business to be handled is sufficient to justify the outlay. " The commission shall have full authority to deter- May nx terma. mine the terms and conditions upon which these con- necting tracks, when constructed, shall be operated, and it may, either in the construction or the operation of such tracks, determine what sum shall be paid to or by either carrier. The provisions of this .paragraph shall extend to cases where the dock is owned by other parties than the carrier involved. "(b) To establish through routes and maximum joint May^estawish^ rates between and over such rail and water lines, and to determine all the terms and conditions under which such lines shall be operated in the handling of the traffic em» braced. "(c) To establish maximum proportional rates by rail ^ay^ a^^ ma^i- to and from the ports to which the traffic is brought, or "o"*^ ^^^^^' 20 LAWS ON TRUSTS AND MONOPOLIES. from which it is taken by the water carrier, and to de- termine to what traffic and in connection with what ves- sels and upon what terms and conditions such rates shall apply. By proportional rates are meant those which differ from the corresponding local rates to and from the port and which apply only to traffic which has been brought to the port or is carried from the port by a com- mon carrier by water. May require "(d) If any rail Carrier subject to the act to regulate rangements commerce enters into arrangements with any water car- lines. rier operating from a port in the United States to a foreign country, through the Panama Canal or otherwise, for the handling of through business between interior points of the United States and such foreign country, the Interstate Commerce Commission may require such railway to enter into similar arrangements with any or aU other lines of steamships operating from said port to the same foreign country." Orders to be The orders of the Interstate Commerce Commission formal com- relating to this section shall only be made upon formal plaint. , *? . -. .,.,,, , • • complamt or in proceedings instituted by the commission • of its own motion and after full hearing. The orders provided for in the two amendments to the act to regu- late commerce enacted in this section shall be served in the same maimer and enforced by the same penalties and proceedings as are the orders of the commission made under the provisions of section fifteen of the act to regu- late commerce, as amended June eighteenth, nineteen hundred and ten, and they may be conditioned for the Bonds. payment of any sum or the giving of security for the payment of any sum or the discharge of any obligation which may be required by the terms of said order. [Public, No. 433. Approved Mar. 4, 1913. H. R. 28812.] AN ACT Making appropriations for the naval service for the fiscal year ending June thirtieth, nineteen hundred and fourteen, and for other purposes. ***** That no part of any sum herein appropriated shall be expended for the purchase of structural steel, ship plates, armor, armament, or machinery from any persons, firms, tag'shlrman '" Pi^ Corporations who have combined or conspired to tidpateta n""°^°^opolize the interstate or foreign commerce or trade yai contracts, of the United States, or the commerce or trade between the States and any Territory or the District of Columbia, UNITED STATES, 21 in any of the articles aforesaid, and no purchase of struc- tural steel, ship plates, or machinery shall be made at a price in excess of a reasonable profit above the actual cost of manufacture. But this limitation shall in no case apply to any existing contract. [Public, No. 435. Approved Mar. 4, 1913. H. R. 28499.] AN ACT Making appropriations to provide for the expenses of the government of the District of Columbia for the fiscal year ending June thirtieth, nineteen hundred and fourteen, and for other purposes. ***** Par. 64. That no franchise nor any right to or under any franchise to own or operate any public utility as de- fined in this section or to use the tracks of any street rail- road shall be assigned, transferred, or leased, nor shall any contract or agreement with reference to or affecting any such franchise or right be valid or of any force or effect whatsoever unless the assignment, transfer, lease, contract, or agreement shall have been approved by the commission in writing. The permission and approval of the commission to the assignment, transfer, or lease of a franchise under this paragraph shall not be construed to revive or validate any lapsed or invalid franchise or to enlarge or add to the powers and privileges contained in the grant of any franchise or to waive any forfeiture. It shall be unlawful for any street railroad corporation. No pubue utii- gas corporation, electric corporation, telephone corpora- tonds or "Sock tion, telegraph corporation, or other public utility cor- fess! ^'^' "° poration, directly or indirectly, to acquire the stock or bonds of any other corporation incorporated for or en- gaged in the same or similar business as it is, unless authorized in writing to do so by the commission, and every contract, transfer, agreement for transfer or as- signment of any such stock or bonds without such written authority shall be void and of no effect. ***** Par. 72. That the power to create lines on corporate property by public utilities in the District of Columbia is hereby declared to be a special privilege the right of supervision, regulation, restriction, and control of which ^lens to be , Jr ! o ; ) supervised. IS hereby vested in the public utilities commission of the 22 LAWS ON TRUSTS AND MONOPOLIES. District of Columbia, and such power shall be exercised according to the provisions of this section. stockrtoSds. P^K- '^^- That no public utility shall hereafter issue any stocks, stock certificates, bonds, mortgages, or any other evidences of indebtedness payable in more than one year from date, until it shall have first obtained the certificate of the commission showing authority for such issue from the commission. Par. 74. That no public utility shall issue any stocks, certificates of stock, bonds, or other evidences of indebt- edness for money, property, or services, either directly or indirectly, nor shall it receive any money, property, or services in payment of the same, either directly or indi- rectly, until there shall have been recorded upon the books Certificate of of such public Utility the certificate of the commission in commission ^ -^ ^ •^ necessary. this section provided for. denls!""' ^*'''" ^^- '^^- That no public utility shall declare any stock, bond, or scrip dividend or divide the proceeds of the sale of any stock, bond, or scrip among its stockholders. Par. 76. That no public utility shall issue any stocks, certificates of stock, bonds, or other evidences of indebt- edness secured on its property in the District of Columbia ?eorganizatio™ ^^T the purpose of any reorganization or consolidation in excess of the total amount of the stocks, certificates of stock, bonds, or other evidences of indebtedness then out- standing against the public utilities so reorganizing or consolidating, and no such public utility shaU purchase the property of any other public utility for the purpose of effecting a consolidation until the commission shall have determined and set forth in writing that said consolida- tion will be in the public interest, nor until the com- mission shall have approved in writing the terms upon which said consolidation shall be made. Par. 77. That no public utility shall apply the pro- ceeds of any such stock, certificates of stock, bonds, or other evidences of indebtedness to any other purpose or issue the same on any less favorable terms than that specified in the certificate issued by the commission. Void issues. Par. 78. That all stocks, certificates of stock, bonds, and other evidences of indebtedness issued contrary to the provisions of this section shall be void. tJNITED STATES. 23 RULES OF PRACTICE IN EttUITY, SUPREME COURT 01 THE UNITED STATES. [Promulgated Nov. 4, 1912.1 73. I'ltELIMINARY JNJTTNCTIONS AND TEMPORARY RESTRAINING ORDERS. No preliminary ini unction shall be granted without no- Euies of Su- . --. preme Court. tice to the opposite party. Nor shall any temporary restraining order be granted without notice to the oppo- site party, unless it shall clearly appear from specific facts, shown by affidavit or by the verified bill, that im- mediate and irreparable loss or damage will result to the applicant before the matter can be heard on notice. In case a temporary restraining order shall be granted with- out notice, in the contingency specified, the matter shall be made returnable at the earliest possible time, and in no event later than ten days from the date of the order, and shall take precedence of all matters, except older matters of the same character. When the matter comes up for hearing the party who obtained the temporary restraining order shall proceed with his application for a preliminary injunction, and if he does not do so the court shall dissolve his temporary restraining order. Upon two days' notice to the party obtaining such tem- porary restraining order, the opposite party may appear and move the dissolution or modification of the order, and in that event the court or judge shall proceed to hear and determine the motion as expeditiously as the ends of justice may require. Every temporary restraining or- der shall be forthwith filed in the clerk's office. 74. INJUNCTION PENDING APPEAL. When an appeal from a final decree, in an equity suit, granting or dissolving an injunction, is allowed by a justice or a judge who took part in the decision of the cause, he may, in his discretion, at the time of such allow- ance, make an order suspending, modifying, or restoring the injunction during the pendency of the appeal, upon such terms, as to bond or otherwise, as he may consider proper for the security of the rights of the opposite party. 24 DECISIONS ON TBUSTS AND MONOPOLIES. CASES DECIDED UNDER THE SHERMAN LAW OR RELATING THERETO. [See Federal Anti-Trust Decisions, 4 volumes.] Abner-Drury Brewing Co.. Leonard v 25 D. C. App., 161. A. Booth & Co. V. Davis 12T Fed., 875. 131 Fed., 31. Addyston Pipe & Steel Co., U. S. v 78 Fed., 712. 85 Fed., 271. 175 V. S., 211. Agler, U. S. v 62 Fed., 824. AJexander v. U. S 201 U. S., 117. Allen Bros. Tob. Co., R. J. Reynolds Tob. Co. v_151 Fed., 819. Aluminum Castings Co. v. Michigan Alumi- num F. Co , 190 Fed., 879. American Banana Co. v. United Fruit Co 153 Fed., 943. 160 Fed., 184. 166 Fed., 261. 213 U. S., 347. American Biscuit & Mfg. Co. v. Klotz 44 Fed., 721. American Bralje Beam Co. v. Pungs 141 Fed., 923. American Naval Stores Co., tl. S. v 172 Fed., 455. 186 Fed., 592. American Preservers' Co., Bishop v 51 Fed., 272. 105 Fed., 845. American School Furniture Co., Metcalf v 108 Fed., 909. 113 Fed., 1020. 122 Fed., 115. Ajnerican Sugar Ref. Co., Pennsylvania Sugar Ref. CO. V 160 Fed., 144. 166 Fed., 254. - American Tel. & Tel. Co., Ames v 166 Fed., 820. American Tob. Co., Larcus v 163 Fed., 712. American Tob. Co., Monarch Tob. Works v 165 Fed., 774. American Tob. Co., People's Tob. Co. v 170 Fed., 396. American Tob. Co., 11. S., v 164 Fed., 700. 221 V. S., 106. 191 Fed., 371. American Tob. Co., TJ. S. Tob. Co. v 163 Fed., 701. American Tob. Co., Ware-Kramer Tob. Co. v 178 Fed., 117. 180 Fed., 160. American Tob. Co., Weisert Bros. Tob. Co. V— 163 Fed., 712. American Union Coal Co. v. Penna. R. Co 159 Fed., 278. Ames V. American Tel. & Tel. Co 166 Fed., 820. Anderson, Shawnee Compress Co. v 87 Pac, 315. 209 U. S., 423 Anderson v. United States 82 Fed, 998 171 U. S., 604. Arkansas Brokerage Co. v. Dunn & Powell 173 Fed., 899. Armour & Co., U. S. v 142 Fed., 808- Atchison, T. & S. F. Ry. Co. v. Prescott & A, C. Ry. Co 73 Fed., 438. 84 Fed., 213. tnsriTED STATES. 26 Atchison, T. & S. F. Ry. Co., U. S. v 142 Fed., 176. Barber Asphalt Paving Co., Field v 117 Fed., 925. 229 V. S., 1. Bauer & Cie v. O'Donnell 194 U. S., 618. Bay (Cincinnati, Portsmouth, Big Sandy, and Pomeroy Packet Co. v.) 200 TJ. S., 179. Beef Trust Cases. See U. S. v. Swift and U. S. V. Armour. Bement v. National Harrow Co 186 XJ S., 70. Bigelow V. Calumet & Hecla Min. Co 155 Fed., 869. 167 Fed., 704. 167 Fed., 721. Bishop V. American Preservers' Co 51 Fed., 272. 105 Fed., 845. Blindell v. Hagan 54 Fed., 40. 56 Fed., 696. Block V. Standard Distilling & Distributing Co_ 95 Fed., 978. Blount Mfg. Co. V. Yale & Towne Mfg. Co 166 Fed., 555. Board of Trade v. Christie Grain & S. Co 116 Fed., 944. 121 Fed., 608. 125 Fed., 161. 198 U. S., 236. Bobbs-Merrill Co. n. Straus 139 Fed., 155. 210 U. S., 339. Booth & Co. V. Davis 127 Fed., 875. 131 Fed., 31. Bradley, Fonotipia Ltd. v 171 Fed., 951. Bradley, Victor Talking Mach. Co. v 171 Fed., 951. Buchanan, Foot v 113 Fed., 156. Callam, Northwestern Consol. Min. Co. v 177- Fed., 786. Calumet & Hecla Min. Co., Bigelow v 155 Fed., 869. 167 Fed., 704. 167 Fed., 721. Camors-McConnell Co. v. McConnell .140 Fed., 412. 140 Fed., 987. 152 Fed., 321. Carter-Crume Co., Cravens v 92 Fed., 479. Carter-Crume Co. v. Peurrung 86 Fed., '439. Case, J. I., Threshing Mach. Co., Indiana Mfg. Co. V W8 Fed., 21. 154 Fed., 365. Cassidy, United States v 67 Fed., 698. Central Coal & Coke Co. v. Hartman 111 Fed., 96. Central Railroad & Banking Co. of Ga., Clark V 50 Fed., 338. Charles E. Wisewall, The 74 Fed., 802. 86 Fed., 671. Chattanooga Foundry & Pipe Works, City of Atlanta v 101 Fed., 900. 127 Fed., 23. 203 U. S., 390. Chesapeake & Ohio Fuel Co., U. S. v 105 Fed., 93. 115 Fed., 610. 26 DECISIONS ON TRUSTS AND MONOPOLIES. CMcago Wall Paper Mills v. General Paper Co_147 Fed., 491. Christie Grain & Stock Co., Board of Trade i;J.16 Fed., 444. 121 Fed., 608. 125 Fed., 161. 198 U. S., 236. Cilley V. United Shoe Mach. Co 152 Fed., 726. Cincinnati, N. O. & T. P. Ey. Co., Thomas V— _62 Fed., 803. Cincinnati, Portsmouth, Big Sandy & Pomeroy Packet Co. v. Bay 200 U. S., 179. City of Atlanta v. Chattanooga Foundry & Pipe Works 101 Fed., 909. 127 Fed., 23. 203 U. S., 390. Clabaugh v. Southern Wholesale Grocers' Ass'n 181 Fed., 706. Clarke v. Central R. R. & Banking Co. of Ga___50 Fed., 338. Cole Transp. Co. v. White Star Line _186 Fed., 63. Coal Dealers' Ass'n of Calif., V. S. v 85 Fed., 252. Comer, Waterhouse v 55 Fed., 149. Connolly, Union Sewer-Pipe Co. v 99 Fed., 354. 184 U. S., 540. Continental Tobacco Co., Whltewell v 125 Fed., 454. Continental Wall Paper Co. v. Voight ^—148 Fed., 939. 212 U. S., 227. Corning, In re 51 Fed., 205 Cravens v. Carter-Crume Co 92 Fed., 479. Creamery Package Mfg. Co., Virtue v 179 Fed., 115. Danbury Hatters' Case. See Loewe v. Lawlor. Darius Cole Transp. Co. v. White Star Line— 186 Fed., 63. Davis et al., A. Booth & Co. v 127 Fed., 875. 131 Fed., 31. Debs, United States v 64 Fed., 724. Debs, In re J.58 U. S., 564. Delaware, L. & W. R. Co. v. Frank 110 Fed., 689. Delaware, L. & W. R. Co. v. Kutter 147 Fed., 51. D. E. Loewe & Co. v. Lawlor J.30 Fed., 633. 142 Fed., 216. 148 Fed., 924. 208 U. S., 283. Dennehy v. McNulta 86 Fed., 825. 77 Fed., 900. Dr. Miles Med. Co. v. Jaynes Drug Co 149 Fed., 838. Dr. Miles Med. Co. v. Park 164 Fed., 803. 220 U. S., 373. . Dueber Watch Case Mfg. Co. v. Howard Watch & Clock Co 55 Fed., 851. 66 Fed., 637. Dunn & Powell v. Arkansas Brokerage Co 173 Fed., 899. Du Pont de Nemours & Co. v. V. S 188 Fed., 127. Eastman Kodak Co., Loeb v 183 Fed., 704. B. C. Knight Co., U. S. v .60 Fed., 308. 60 Fed., 934. 156 U. S., 1. UNITED STATES. 27 E Howard Watch & Clock Co., Dueber Watch Case Mfg. Co. v 55 Fed., 851. 56 Fed., 637. Elliott, United States v 62 Fed., 801. 64 Fed., 27. Ellis V. Irnnan, Poulsen & Co 124 Fed., 956. 131 Fed., 182. Evans v. Lowensteln 69 Fed., 908. Farmers' Loan & Trust Co. v. Northern Pac. R. R. Co 60 Fed., 803. Field V. Barber Asphalt & Paving Co 117 Fed., 925. 194 V. S., 618. Fonotipla Ltd. v. Bradley 171 Fed., 951. Foot V. Buchanan .113 Fed., 156. Frank (Delaware, L. & W. R. X:!o. v.) 110 Fed., 689. Geiger, Otis Elevator v .107 Fed., 131. General Electric Co. v. Wise 119 Fed., 922. General Paper Co. v. Chicago Wall Paper Mills J.47 Fed., 491. Gibbs 17. McNeeley (Shingle Trust) 102 Fed., 594. 107 Fed., 210. 118 Fed., 120. Goshen Rubber Works v. Single Tube Auto. & Bicycle Tire Co ,166 Fed., 481. Grand Jury, In re 62 Fed., 840. Grand Jury, In re charge to 151 Fed., 834. Green, In re 52 Fed., 104. Greenhut, United States v 50 Fed., 469. Greer, Mills & Co. v. StoUer .77 Fed., 1. Griffin & Stelly Co., U. S. Consol. S. R. Co. v__126 Fed., 364. Gulf, C. & S. F. Ry. Co. v. Miami S. S. Co ,86 Fed., 407. Hadley Dean Plate Glass Co. v. Highland Glass Co 143 Fed., 242. Hagan, Blindell v .54 Fed., 40. 56 Fed., 696. Hale, In re 139 Fed., 496. Hale v. Henkel 201 U. S., 43. Hale V. O'Connor Coal & Sup. Co 181 Fed., 267. Harriman v. Northern Securities Co 132 Fed., 464. 134 Fed., 331. 197 U. S., 244. Harrington, Pidcock v 64 Fed., 821. Hartman, Central Coal & Coke Co. v 111 Fed., 96. Hartman v. John D. Parks & Sons Co 145 Fed., 358. 153 Fed., 24. Heike, United States v 175 Fed., 852. 217 U. S., 423. Hench, National Harrow Co. v 76 Fed., 667. 83 Fed., 36. 84 Fed., 22. Henkel, Hale v 201 U. S., 43. Henkel, McAlister v 201 U. S., 90. Highland Glass Co., Hadley Dean Plate Glass Co. V - 143 Fed., 242. 28 DECISIONS ON TRUSTS AND MONOPOLIES. Hocking Valley Ky. Co., Mannington v 183 Fed., 133. Hopkins, United States v 82 Fed., 529. 84 Fed., 1018. ^ 171 U. S., 578. Howard Watch & Clock Co., Dueber Watch Case Mfg. Co. v 55 Fed., 851. 66 Fed., 637. In re Corning 51 Fed., 205. In re Debs, Petitioner 158 U. S., 564. U. S. V. Debs 64 Fed., 724. In re Grand Jury 62 Fed., 840. In re Grand Jury — charge to 151 Fed., 834. In re Green 52 Fed., 104. In re Hale 139 Fed., 496. Hale V. Henkel _" 201 U. S., 43. In re Kittle 180 Fed., 946. In re Terrell .,. 51 Fed., 213. Indiana Mfg. Co. v. 3. I. Case Threshing Mach. Co 148 Fed., 21. 154 Fed., 365. Inman, Poulsen & Co., Ellis v 124 Fed., 956. 131 Fed., 182. lola Portland Cement Co., Phillips v 125 Fed., 593. Jayne, Loder v 142 Fed., 1010. 149 Fed., 21. Jaynes Drug Co., Dr. Miles Med. Co. v 149 fed., 838. Jellico Mountain Coke & Coal Co., U. S. v 43 Fed., 898. 46 Fed., 432. J. I. Case Threshing Mach. Co., Indiana Mfg. Co. V 148 Fed., 21. 154 Fed., 365. John D. Parks & Sons Co., Hartman v 154 Fed., 895. 153 Fed., 24. Joint Traffic Association, U. S. v 76 Fed., 895. 89 Fed., 1020. 171 U. S., 505. Kinsey Co. v. Board of Trade 198 U. S., 236. Kissell, United States v 173 Fed., 823. 218 U. S., 601. Kittle, In re 180 Fed., 946. Klotz, American Biscuit & Mfg. Co. v 44 Fed., 721. Knight Co., United States v 60 Fed., 306. 60 Fed., 934. 156 U. S., 1. Kutter, Delaware, L. & W. K. Co. v 147 Fed., 51. Laemuile et al.. Motion Picture Patents Co. •w_178 Fed., 104. Larcus v. American Tob. Co 163 Fed., 712. Lawlor, Loewe v 130 Fed., 633. 142 Fed., 216. 148 Fed., 924. 187 Fed., 522. 208 U. S., 283. UNITED STATES. 29 Lehigh Valley R. Co., Meeker et al. v 162 Fed., 354. 183 Fed., 548. Leonard v. Abner-Drury Brewing Co 25 D. C. App., 161. Licorice Paste Trust. See XJ. S. v. MacAn- drews & Forbes Co Loder v. Jayne 142 Fed., 1010. 149 Fed., 21. Loeb V. Eastman Kodak Co 183 Fed., 704. Loewe v. Lawlor 130 Fed., 633. 142 Fed., 216. 148 Fed., 924. 187 Fed., 522. 208 XJ. S., 283. Lowenstein v. Evans 69 Fed., 908. Lowry v. Tile, Mantel & Grate Ass'n 98 Fed., 817. 106 Fed., 38. Lowry, "W. W. Montague & Co. v 115 Fed., 27. 193 V. S., 38. McAlister v. Henkel 201 U. S., 90. MacAndrews & Forbes Co., U. S. v 149 Fed., 823. 212 U. S., 585. McConnell, Camors-McConnell Co. v 140 Fed., 412. 140 Fed., 987. 152 Fed., 321. McNeeley, Gibbs v 102 Fed., 594. 107 Fed., 210. 118 Fed., 120. McNulta, Dennehy v 86 Fed., 825. Mannington v. Hocking Valley Ry. Co. et al_-_183 Fed., 133. Meeker et al. v. Lehigh Valley R. Co 162 Fed., 354. 183 Fed., 548. Metcalf V. American School Furniture Co 108 Fed., 909. 113 Fed., 1020. 122 Fed.,' 115. Miami S. S. Co., Gulf C. & S. F. Ry. Co. v 86 Fed., 407. Michigan Aluminum F. Co. v. Aluminum Cast- ings Co 190 Fed., 879. Miles Medical Co. v. Park & Sons Co 220 TJ. S., 373. Milwaukee Rubber Works, Rubber Tire Wheel Co. V 142 Fed., 531. 154 Fed., 358. Mines v. Scribner 147 Fed., 927. Minnesota v. Northern Securities Co 123 Fed,, 692. 194 tr. S., 48. Monarch Tob. Works v. American Tob. Co 165 Fed., 774. Montague & Co. v. Lowry il5 Fed., 27. 193 U. S., 38. Moore v. United States 85 Fed., 465. Motion Picture Patents Co. v. Laemuile 178 Fed., 104. Motion Picture Patents Co. v. Ullman 186 Fed., 174. Nash V. U. S 229 TJ. S., 373. National Folding-Box & Paper Co. v. Robert- Son-,--^—^—— - .,„^_^^— —.,-,— 99 Fed., 985, 30 DECISIONS ON TBUSTS AND MONOPOLXES. National Harrow Co. v. Hench 76 Fed., 667. 83 Fed., 36. 84 Fed., 226. National Harrow Co. v. Quick 67 Fed., 130. 74 Fed., 443. National Harrow Co., Bement v J.86 TJ. S., 70. National Harrow Co., Strait v 51 Fed., 819. National Window Glass Jobbers' Ass'n, Wheeler Stenzel Co. v 152 Fed., 864. Nelson, United States v 52 Fed., 646. Nelson v. United States .201 U. S., 92. Northern Securities Co., Harriman v 132 Fed., 464. 134 Fed., 331. 197 U. S., 244. Northern Securities Co., U. S. v 120 Fed., 721. 193 U. S., 197. Northern Securities Co., Minnesota v 123 Fed., 692. 194 TJ. S., 48. Northwestern Consol. Min. Co. v. Wm. Callam & Son J.77 Fed., 786. O'Connor Coal & Sup. Co., Hale v 181 Fed., 267. O'Donnell, Bauer & Cie v .229 U. S., 1. Otis Elevator Co. v. Geiger 107 Fed., 131. Pacific & Arctic Co., TJ. S. v 228 V. S., 87. Park & Sons Co., Dr. Miles Med. Co. v J.64 Fed., 803. 220 U. S., 373. Park, John D., & Sons Co., Hartman v 145 Fed., 358. 153 Fed., 24. Patten, TJ. S. v J.87 Fed., 664. Patterson, United States v 55 Fed., 605. 59 Fed., 280. Penna. R. Co., American Union Coal Co. v 159 Fed., 278. Penna. Sugar Eef. Co. v. American Sugar Kef. Co 160 Fed., 144. 166. Fed., 254. People's Tob. Co. v. American Tob. Co JL70 Fed., 396. Peurrung, Carter-Crume Co. v 86 Fed., 439. Phillips V. Portland Cement Co 125 Fed., 593. Pidcock V. Harrington 64 Fed., 821. Prescott & A. C. R. Co. v. Atchison, T. & S. F. E. Co 73 Fed., 438. 84 Fed., 213. Pungs, American Brake Beam Co. v 141 Fed., 923. Quick, National Harrow Co. v 67 Fed., 130. 74 Fed., 236. E. J. Reynolds Tob. Co. v. Allen Bros. Tob. Co ^ J.51 Fed., 819. Reading Company, U. S. v J.83 Fed., 427. Eeardon & Sons Co., John, v U. S 191 Fed., 454. Rice V. Standard Oil Company 134 Fed., 464. Robertson v. National Folding-Box & Paper Co 99 Fed., 985. Robinson v. Suburban Brick Co 137 Fed., 804, UNITED STATES. 31 Rubber Tire Wheel Co. v. Milwaukee Rubber Works Co 142 Fed., 531. 154 Feci., 358. Scrlbner, Mines v :. 147 Fed., 927. Shawnee Compress Co. v. Anderson 87 Pac, 315. 209 U. S., 423. Shingle Trust. See Glbbs v. McNulta. Single Tube Auto. & Bicycle Tire Co., Goshen Rubber Works v 166 Fed., 431. Southern Indiana Exp. Co. v. United States Exp. Co 88 Fed., 659. 92 Fed., 1022. Southern Railway, Tift v 138 Fed., 758. Southern Wholesale Grocers' Ass'n, Cla- baugh V 181 Fed., 706. Standard Distilling & Distributing Co., Block V ^95 Fed., 978. Standard Oil Company, Rice v 134 Fed., 464. Standard Oil Co. of New Jersey, U. S. v 152 Fed., 290. 173 Fed., 177. 221 U. S., 1. Standard Sanitary Mfg. Co. v. U. S 191 Fed., 172. State of Minnesota v. Northern Securities Co__123 Fed., 692. 194 U. S., 48. Steers et al. v. U. S 192 Fed., 1. Stoller (Greer, Mills & Co. v.) 77 Fed., 1. Strait V. National Harrow Co 51 Fed., 819. Straus, Bobbs-Merrlll Co. v 139 Fed., 155. 210 U. S., 339. Strauss et al. v. American Publishers' Ass'n U. S. Supreme Court, Dec. 1, 1913. Strout V. United Shoe Machinery Co 195 Fed., 313. Suburban Brick Co., Robinson v 127 Fed., 804. Swift & Co., United States v 122 Fed., 529. 188 Fed., 92. 196 U. S., 375. Terminal Railroad Ass'n of St. Louis, U. S. V— 224 U. S., 383. Terrell, In re 51 Fed., 213. Thomas v. Cm., N. O. & T. P. Ry. Co 62 Fed., 803. Thomson v. Union Castle Mail S. S. Co 149 Fed., 933. 166 Fed., 251. Tift-y. Southern Ry Co .138 Fed., 753. Tile, Mantel & Grate Ass'n v. Lowry .98 Fed., 817. 106 Fed., 38. Tobacco Trust Cases. See U. S. v. American Tobacco Co., Hale v. Henkel, McAlJster v. Henkel, and U. S. v. MacAndrews & Forbes Co. Trans-Missouri Freight Ass'n, U. S. v 53 Fed., 440. 58 Fed., 58. 166 U. S., 290. Tribolet, United States v 95 Pac, 85. Ullman, Motion Picture Pateuts Cy< v- J.86 Fea., 174, 32 DECISIONS ON TRUSTS AND MONOPOLIES. Union Castle Mail S. S. Co., Thomson v 149 Fed., 933. 166 Fed.. 251. Union Pacific Coal Co. v. U. S 173 Fed., 737. Union Pacific R. R. Co. v. U. S 188 Fed., 102. Union Sewer-Pipe Co. v. Connolly 99 Fed., 354. 184 U. S., 540. United Fruit Co., American Banana Co. v 153 Fed., 943. 160 Fed., 184. 166 Fed., 261. 213 U. S., 347. United Shoe Mach. Co., Cilley v 152 Fed., 726. United Shoe Mach. Co. v. Strout 195 Fed., 313. U. S. V. Addyston Pipe & Steel Co 78 Fed., 712. 85 Fed., 271. 175 V. S., 211. U. S. V. Agler 62 Fed., 824. U. S. V. American Naval Stores Co 172 Fed., 455. 186 Fed., 592. U. S. V. American Tobacco Co 164 Fed., 700. 221 U. S'., 106. 191 Fed., 371. U. S. V. Armour & Co 142 Fed., 808. U. S. V. Atchison, T. & S. F. Ry. Co 142 Fed., 176. U. S. V. Cassidy 67 Fed., 698. U. S. V. Chesapeake & Ohio Fuel Co 105 Fed., 93. 115 Fed., 610. U. S. V. Coal Dealers' Assn. of Calif 85 Fed., 252. U. S. V. Debs 64 Fed., 724. In re Debs 158 U. S., 564. U. S., V. Du Pont de Nemours & Co 188 Fed., 127. U. S. V. E. C. Knight Co 60 Fed., 306. 60 Fed., 934. 156 U. S., 1. U. S. V. Elliott 62 Fed., 801. 64 Fed., 27. U. S. V. Freight Association. (See U. S. v. Trans-Missouri Freight Association.) U. S. V. General Paper Co. (See Nelson v. U. S. and Alexander v. U. S. ) U. S. ii. Greenhut 50 Fed., 469. U. S. V. Heike 175 Fed., 852. 217 U. S., 423. U. S. V. Hopkins 82 Fed., 529. 84 Fed., 1018. 171 U. S. 578. U. S. Jellico Mountain Coke & Coal Co 43 Fed., 898. 46 Fed., 432. U. S. V. Joint Traffic Association 76 Fed., 895. 89 Fed., 1020. 171 U. S., 505. U. S. V. Kissell 173 Fed., 823. 218 U. S., 601. U. S. V. MacAndrews & Forbes Co 149 Fed. 823. 212 U. S., 585. y. S. V. Nasi , .^_„ 229 U. S. 373, UNITED STATES. 33 TJ. S. V. Nelson 52 Fed., 646. Nelson v. United States 201 T, S., 92. U. S. V. Northern Securities Company 120 Fed., 721. 193 U. S., 197. U. S. V. Pacific & Arctic Company 228 U. &'., 87. U. S. V. Patten 187 Fed., 664. 226 U. S., 525. TJ. S. V. Patterson 55 Fed., 605. 59 Fed., 280. O. S. ■!;. Beading Company 183 Fed., 427. 226 U. S., 324. 228 U. S., 158. U. S. V. John Reardon & Sons Co 191 Fed., 454. Ur-S. V. Standard Oil Co. of New Jersey 152 Fed., 290. 173 Fed., 177. 221 U. S., 1. TJ. S. V. Standard Sanitary Mfg. Co 191 Fed., 172. 226 U. S., 20. U. S. V. Steers et al 192 Fed., 1. U. S. V. Swift & Co 122 Fed., 529. 188 Fed., 92. 196 U. S., 375. TJ. S. V. Trans-Missouri Freight Ass'n 53 Fed., 440. 58 Fed., 58. 166 IT. S., 290. TJ. S. V. Tribolet 95 Pac, 85. TJ. S. V. Virginia-Carolina Chemical Co 163 Fed., 66. TJ. S. V. Wlnslow et al 195 Fed., 578. 227 U. S., 202. TJ. S. V. Workingmen's Amalgamated Council-54 Fed., 994. 57 Fed., 85. U. S., Alexander v , 201 TJ. S., 117. TJ. S., Anderson v 82 Fed., 998. 171 TJ. S., 604. U. S., Moore v 85 Fed., 465. TJ. S., TJnion Pacific Coal Co. v 173 Fed., 737. TJ. S., Union Pacific R. R. Co. v 188 Fed., 102. 226 U. S'., 61^70. U. S. Consolidated S. R. Co. v. Griffln- Skelly Co 126 Fed., 364. U. S. Exp. Co., Southern Ind. Exp. Co. v 88 Fed., 659. 92 Fed., 1022. United States Tob, Co. v. American Tob. Co— 163 Fed., 712 Victor Talking Mach. Co. v. Bradley 171 Fed., 951. Virginia-Carolina Chemical Co. v. U. S 163 Fed., 66. Virtue v. Creamery Package Mfg. Co 179 Fed., 115. 227 U. S., 8. Voight, Continental Wall Paper Co. v 148 Fed., 939. 212 U. S., 227. Ware-Kramer Tob. Co. v. American Tob. Co_-178 Fed., 117. 180 Fed., 160. Waterhouse v. Comer 55 Fed., 149. Weisert Bros. Tob. Co. v. American Tob. Co— ,163 Fed., 712. • 24427°— 14 3 34 DECISIONS ON TRUSTS AND MONOPOLIES. Wheeler Stenzel Co. v. National Window Glass Jobbers' Ass'n 152 Fed., 864. White Star Line, Cole Transp. Co. v 186 Fed., 63. Wbitwell v. Continental Tob. Co 125 Fed., 454. Winslow et al. v. TJ. S 195 Fed., 578. Wise, General Electric Co. v 119 Fed., 922. Wisewall, The Charles E 74 Fed., 802. 86 Fed., 671. Workingmen's Amalgamated Council, U. S. v 54 Fed., 994. 57 Fed., 85. Yale & Towne Mfg. Co., Blount Mfg. Co. v 166 Fed., 555. Note. — Owing to the fact that there are four volumes of anti- trust decisions in print and full table of cases has been given above, only a few illustrative cases of leading propositions are here separately cited. Some very late cases are digested. — Gom- piler. RESALE CONTRACTS. PRICE FIXING. United States v. Greenhut et. al 51 Fed., 205. United States v. Greenhut et al 51 Fed., 213. American Soda-Fountain Co. v. Green et al 69 Fed., 333. Henry v. A. B. Dick Co 223 U. S., 6. Bob[)s-Merrill Co. ■;;. Strauss et al 210 U. S., 339. Bauer & Cie. v. O'Donnell 220 U. S., 1. Dr. Miles Medical Co. v. Park & Sons Co 220 U. S., 373. Strauss et al. v. American Publishers' Ass'n Supreme Court U. S., Dec. 1, 1913. Bobbs-Merrill Co. v. Strauss et al 210 U. S., 339. STATEMENT. This action arose under a resale price fixing notice printed in a copyright book stating that any sale at a less price will be treated as an infringement of the copy- right. OPINION. There are differences between the patent, and the copy- right, statutes in the extent of the protection granted by them. The sole right to vend granted by section 4952, Eevised Statutes, does not secure to the owner of the Price fixing un- Copyright the right to qualify future sales by his vendee law ineffertuai. or to limit or restrict such future sales at a specified price, and a notice in the book that a sale at a different price will be treated as an infringement is ineffectual as against one not bound by contract or license agreement. Dr. Miles Medical Co. i. Park & Sons Co 220 U. S., 373. TTNITBD STATES. 85 STATEMENT. The Dr. Miles Medical Co. had an elaborate resale and price-fixing contract for their medicines, and this action was to enjoin defendant from cutting the price or urging others so to do or from " advertising, selling, or offering for sale the remedies obtained," by means at less " than the established retail price thereof." OPINION. A system of contracts between manufacturers and mty"not 'flx*"^ wholesale and retail merchants by which the manuf ac- ^aief^ °* '^ turers attempt to control not merely the prices at which its agents may sell its products, but the prices for all sales by aU dealers at wholesale or retail, whether pur- chasers or subpurchasers, eliminating all competition and fixing the amount which the consumer shall pay, amounts to restraint of trade, and is invalid both at common law and, so far as it affects interstate commerce, under the Sherman Antitrust Act of July 2, 1890; and so held as to the contracts involved in this case. A manufacturer of unpatented articles can not by rule or notice, in absence of statutory right, fix prices for future sales, even though the restrictions be known to purchasers. Whatever rights the manufacturer may have in that respect must be by agreements that are law- ful. Although the earlier common-law doctrine in regard to restraint of trade has been substantially modified, the public interest is still the first consideration; to sustain the restraint it must be reasonable as to the public and parties and limited to what is reasonably necessary, un- \ der the circumstances, for the covenantee; otherwise re- straints are void as against public policy. Agreements or combinations between dealers having for their sole purpose the destruction of competition and fixing of prices are injurious to,the public interests and void; nor are they saved by advantages which the par- ticipants expect to derive from the enhanced price to the consumer. Bauer & Cie. v. O'Donnell 229 U. S., 1. STATEMENT. A patented article was resold by the defendant at less than the price fixed in a notice printed on the same by the manufacturer. 36 DECISIONS ON TEUSTS AND MONOPOLIES. OPINION. Patentee not fix resale A patentee may not by notice limit the price at which price. future retail sales of the patented article may be made, such article being in the hands of the retailer by purchase from a jobber who has paid to the agent of the patentee the full price asked for the article sold. Where the transfer of the patented article is fuU and complete an attempt to reserve the right to fix the price at which it shall be resold by the vendee is futile under the statute. It is not a license foi* qualified use, but an attempt to unduly extend the right to vend. These last three cases (Bobbs-MerriU Co. v. Strauss, 210 U. S., 339 ; Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S., 373, and Bauer v. O'Donnell, 229 U. S., 1) form a distinct trinity and express the views of the Supreme Court of the United States imder existing law on the subject of resale and price-fixing and price-main- tenance contracts. The Bobbs-MerriU case relates to copy- righted articles, while the Dr. Miles case relates to un- patented articles entering into interstate commerce, and the O'Donnell case applies to patented articles. These cases cover the whole subject of price-fixing contracts. LABOR CASES. Adair v. United States 208 U. S., 161. Allis-Chalmers Co. d. Reliable Lodge Ill Fed. Rep., 264. A Ills-Chalmers Co. v. Iron Moulders' Union 150 Fed. Rep., 155. Aluminum Casting Co. v. Local No. 84 of Inter- national Moulders' Union of North America etal 197 Fed. Rep., 221. American Steel & Wire Co. v. Wire, etc 90 Fed. Rep., 608. Armstrong Cork Co. v. Anheuser-Busch Brewing Co Atchison, Topeka & Santa Fe R. R. Co. v. Gee, Circuit Court, Southern District, Iowa Barnes, A. R., & Co., v. Berry 156 Fed. Rep., 72. Beck et al. r. Railway Trainmen's Protective Boutwell et al. v. Marret al.l 42 Atl. Rep., 607. Bowels V. Indiana Railway Co 62 N. E. Rep., 94. Union 77 X. ^v. Rgp., 13. Carter et al. v. Fortney et al 170 Fed. Rep., 463. 172 Fed. Rep., 722. Central District & Printing Tel. Co. v. Kent Commonwealth v. Hunt 4Metcalf'sRep., 111. Conkney (W. B.) Company v. Russell et al Ill Fed. Rep., 417. Construction Co. v. Cameron et. al 80 N. E. Rep., 478. Delaware, Lackawanna & W. R. R. Co. v. Switch- men's Union of N. A 158 Fed. Rep., 690. UNITED STATES, 37 Prank et. al. v. Herold et al 52 Atl. Rep., 152. Fordahl v. Hayde 82 Pac. Rep., 1079. George Jonas Glass Co. i). Glass Blowers' Assn. . . . 54 Atl. Rep., 567. Glass Co. V. Glass Bottle Blowers 66 Atl. Rep., 953. Goldfield Consolidated Mines Co. v. Goldfield Miners' Union 220 et al 159 Fed. Rep., 500. Gray v. Trades Council 97 N. W. Rep., 663. Guaranty Trust Co. v. Haggerty 116 Fed. Rep.. 510. Hammond Lumber Co. v. Sailors' Union of the Pacific 149 Fed.. Rep., 577. Hitchman Coal & Coke Co. v. Mitchell 172 Fed. Rep., 963. Hopkins v. Oxley Stave Co 83 Fed. Rep., 152. 83 Fed. Rep., 912. Howard, Administratrix v. Illinois Central Rail- way 207 U. S. Rep., 463. Huttig, etc., Co. v. Fuette et al 163 Fed. Rep., 363. Illinois Central R. R. v. International Associa- tion of Mechanics 190 Fed. Rep., 910. In re Debs, petitioner, 158 U. S., 564. In re Lennon 166 U. S., 548. Iron Moulders' Union 125 of Milwaukee v. Allis- ChalmersCo 166 Fed. Rep., 45. Irving et al. v. Joint District Council of New York 180 Fed. Rep., 896. Jensen v. Cooks 81 Pac. Rep., 1069. Jersey City Printing Co. a;. Cassidy et al 53 Atl. Rep., 230. Kargis Furniture Co. v. Local Union No. 131 75 N. E. Rep., 877. Kemmerer v. Haggerty ." 139 Fed. Rep., 693. Knudsen et al. v. Benn et al 123 Fed. Rep., 636. Kolley et al. v. Robinson et al 187 Fed. Rep., 415. Loewe et al. v. California Federation of Labor. . . 139 Fed. Rep., 71. Loewei;. Lawlor 208 U. S., 274. Loewe et al. v. California Federation of Labor etal 189 Fed. Rep., 714. March v. Bricklayer's, etc 63 Atl. Rep., 291. Mobile & Ohio R. R. v. E. E. Clark, et al National Telephone Co. of W. Va. v. Kent 156 Fed. Rep., 173. Newport Iron & Brass Foundry v. Moulders' Union O'Neil V. Behanna 37 Atl. Rep., 843. Otis Steel Co. (Ltd.) v. Local Union 218 of Cleve- land, Ohio 110 Fed. Rep., 698. Oxley Stave Co. v. Coopers' International Union of North America 72 Fed. Rep., 695. Pickett i;. Walsh 78 N. E. Rep., 753. Pope Motor Car Co. v. Keegan 150 Fed. Rep., 148. Pope Motor Car Co. v. Stitart Rocky Mountain Bell Telephone Co. v. Montana Federation of Labor 156 Fed. Rep., 809. Shine v. Fox Bros. Mfg. Co 156 Fed. Rep., 357. State V. Stockford 58 Atl. Rep., 769. State V. Coyle (Okla.) 130 Pac. Rep., 316. 38 DECISIONS ON TBXJSTS AND MONOPOLIES. Southern Railway Co. v. Machinists' Local Union Ill Fed. Rep., 49. The Buck Stove & Range Co. v. American Fed- eration of Labor 35 Wash. Law Rep., 797. Toledo, Ann Arbor R. R. v. Arthur and R. R. Companies 54 Fed. Rep., 730. Underbill v. Murphy, Typo. Joum., Aug. 15, 1901. 174. Union Pacific Railway Co. v. Ruef 120 Fed. Rep., 102. United States v. Agler 62 Fed. Rep., 82. United States v. Cassidy 67 Fed. Rep., 698. United States i;. Debs et al 64 Fed. Rep., 724. United States ■!). Debs et al 64 Fed. Rep., 724. United States v. Elliott 62 Fed. Rep., 801. 64 Fed. Rep., 27. United States v. Sweeney 95 Fed. Rep., 434. United States v. Weber et al - 114 Fed. Rep., 950. United States v. Workingmen's Amalgamated Council of New Orleans et al 54 Fed. Rep., 994. Vegelahn v. Guntner 167 Mass., 92. Wabash R. R. Co. v. Hanahan et al 121 Fed. Rep., 564. Waterhouse et al. v. Comer 55 Fed., 149. United States v. John S. Steers et al. Indictment re- turned February 17, 1910, in Eastern District of Ken- tucky, charging conspiracy to restrain trade. This is the so-called '■'■Night Rider " case where the restraint con- sisted in preventing the shipment of tobacco in inter- state commerce by means of violence and intimidation. After the overruling of demurrers and various pleas in abatement a trial V7as had, and on April 16, 1910, a verdict of guilty was returned as to eight of twelve de- fendants and fines aggregating $3,500 were imposed. The case was appealed to Circuit Court of Appeals, and the A'erdict was affirmed December 5, 1911. May 11, 1912, the fines were commuted by the President to pay- ment of costs of suit. (See cases under Kentucky, seq.) CASES SHOWING POWKB OF CONGRESS TJNDEB, ANTI- TBUST ACT. Addystone Pipe Co. Case .175 U. S., 245. American Preservers' Trust r. Taylor Mfg. co_46 Fed. Rep., 152. American Tobacco Co. Case— 221 U. S., 180-181. Bement v. National Harrow Co 186 U. S., 92. Carter v. Ailing 43 Fed. Rep., 208. Central Ohio Salt Co. ■;;. Guthrie 35 Ohio St., 666, 672. (Quoted and approved in Northern Securities case.) Charles River Bridge v. Warren Bridge 11 Pet., 567. Basum v. Buckeye Brewing Co 51 Fed. Rep., 156. UNITED STATES. 89 Fowle V Park 131 U. S., 88. Gibbs v. Baltimore Gas Co 130 U. S., 408-409. Gompers v. Bucks Stove & Range Co 221 U. S., 438-^39. Gould r. Head 38 Fed. Rep.,S86. Henry t'. A. B. Dick Co 223 tJ. S. ; 224 U. S., 6-12. In re Greene 52 Fed. R., 115. Merz Capsule Co. v. V. S. Capsule Co 67 Fed. Rep., 414. Montague r. Lowry 193 U. S., 45. Morris Run Coal Co. r. Barclay Coal Co GS Pa. St., 173, 186. (Quoted and approved in Nortliern Securities case.) Xational Cotton Oil Co. v. Texas 197 XJ. S., 128-129. Northern Securities Case., 193 XJ. S., 351-352. Oliver v. Gilmore 52 Fed. Rep., 562. Oregon Steam Xavig. Co. v. Winsor 20 Wall., 64. Pearsall r. Great Northern Railway Co 161 U. S., 676. Standard Oil Case 221 U. S., 50. Swift & Co. V. United States 196 U. S., 395. United States v. Joint Traffic Asso 171 U. S., 568. United States v. Joint Traffic Assn 171 U. S., 566-568. United States r. Swift & Co 122 Fed Rep., 534. United States r. Trans-ilissouri Freight Assn__166 U. S., 312, 313. United States v. Trans- Jlissouri Freight Assn__166 U. S., 316. United States v. Workingmen's Amalgamated Council 54 Fed R., 996. Whitwell V. Continental Tobacco Co 125 Fed. R. 457-458. GENERAL POWER OE CONGRESS; SOME OTHER CASES. Blake v. McClung .172 U. S., 239. Brown et al. v. Maryland 12 Wheat, 413, 1827. Farmers' and Mechanics' Xational Bank r. Dearing 91 U. S., 29. Gibbons v. Ogden 9 Wheat, 1, 1824. In re Rahrer, Petitioner 140 U. S., 545. Leisy t. Ilardiu 135 U. S., 100. McCulloch V. The State of .^laryland et al 4 Wheat, 316, 1819. Munn r. Illinois 94 U. S., 113. Nicol V. Ames ; In re Nichols ; Skillen v. Ames and Ingwersen v. United States 173 U. S., 509. Pollock V. Farmers' Loan & Trust Co. ; Hyde v. Continental Trust Co 158 U. S., 601. Regan v. Mercantile Trust Co 154 U. S., 413. Robbins v. Shelby County Taxing District 120 U. S., 489. Trade-Mark Cases J.0O U. S., 82. Walling V. The State of Michigan 116 U. S., 446. ALABAMA. CONSTITXT'nON, 1901. Sec. 103. The legislature shall provide by law for the regulation, prohibition, or reasonable restraint of com- mon carriers, partnerships, associations, trusts^ monopo- lies, and combinations of capital, so as to prevent them or any of them from making scarce articles of necessity, trade, or commerce, or from increasing unreasonably the cost thereof to the consumer, or preventing reasonable competition in any calling, trade, or business. Sec. 233. No corporation shall engage in any business other than that expressly authorized in its charter or articles of incorporation. Sec. 234. No corporation shall issue stock or bonds exci'pt for money, labor done, or property actually re- ceived ; and all fictitious increase of stock or indebtedness shall be void. The stock and bonded indebtedness of cor- porations shall not be increased except in pursuance of general laws, nor without the consent of the persons hold- ing the larger amount in value of stock, first obtained at a meeting to be held after thirty days' notice, given in pursuance of law. STATUTES. Sec. 7579. Any person or corporation who engages or agrees with other persons or corporations, or enters into, directly or indirectly, any combination, pool, trust, or confederation, to regulate or fix the price of any article or commodity to be sold or produced within this state, or any person or corporation who enters into, becomes a member of, or party to, any pool, agreement, combina- tion or confederation, to fix or limit the quantity of any article or commodity to be produced, manufactured, mined, or sold, in this state, must, on conviction, be fined not less than five hundred nor more than two thousand dollars. 41 42 LAWS ON TBTJSTS AND MONOPOLIES. Sec. 7580. Anj- corporation chartered under tlie laws of this state, or any officer, stocldiolder, agent, or em- ploye of any such corporation, which enters into any combination with any other corporation or person with the intent to place the management or control of any such corporation in the hands of another corporation or person, and thereby limit or fix the price, restrict or diminish the production, manufacture, sale, use, or con- sumption of any article of commerce, must, on conviction, be fined not less than five hundred nor more than two thousand dollars. Sec. 7581. Any person or corporation, domestic or for- eign, which shall restrain or attempt to restrain the free- dom of trade or production, or which shall monopolize, or attempt to monopolize the production, control^ or sale of any commodity, or the prosecution, management, or control of any kind, class or description of business; or which shall destroy, or attempt to destroy, competition in the manufacture or sale of a conunodity, shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than five hundred nor more than two thousand dollars for each offense. Sec. 7582. The four preceding sections must be given in special charge to the grand jury. Sec. 2487. Any person, firm, or corporation injured or damaged by an unlawful trust, combine, or monopoly, or its effect, direct or indirect, may, in each instance of such injury or damage, recover the sum of five himdred dollars and all actual damages from any person, firm, or corpora- tion creating, operating, aiding or abetting such a trust, combine, or monopoly; and may maintain the action therefor against any one or more of the parties to the trust, combine, or monopoly, or their attorneys, officers, or agents, who aid or abet such trust, combine or monop- oly. And aU such actions may be prosecuted to final judgment or decree against any one or more of the de- fendants thereto, notwithstanding there may be a dis- missal, acquittal, verdict, judgment or decree in favor of one or more of the defendants. Sec. 2-188. xVctions under the preceding section may be brought in any county where the trust, combine, or monopoly was formed, or where it exists or is carried on, promoted, operated, practiced, employed, used or en- joyed ; or in any county in which either of the defendants ALABAMA. 43 may have a domicile, or where an officer or agent of any defendant corporation may be found. TJNLAWFUIi POOLING OF FREIGHTS. Any officer, agent, or servant of a person or corpora- tion operating a railroad, who aids in making or carry- ing out an agreement between railroads, commonly called a pool, for the division between themselves of the freight- carrying business of any place in this state,- whereby trade is restrained by the establishment of extortionate rates and the prevention of free competition, unless such agree- ment has been approved by the railroad commissioners, must, on conviction, be fined not less than fifty, nor more than two hundred dollars. (Act of 1883, sec. 2.) INSURANCE. That every contract or policy of insurance made or issued after the passage of this act shall be construed to mean that in the event of loss or damage thereunder, the assured or beneficiary thereunder may, in addition to the actual loss or damage suffered, recover twenty-five per cent of the amount of such actual loss, any provision or stipulation in such contract or policy to the contrary not- withstanding ; Provided, at the time of the making of such contract or policy of insurance, or subsequently be- fore the time of trial the insurer belonged to, or was a member of, or in any way connected with, any tariff association or such like thing by whatever name called or who had any agreement or had any understanding with any other person, corporation or association en- gaged in the business of insurance as agent or otherwise about any particular rate of premium which should be charged or fixed for any kind or class of insurance risk; And provided further, no stipulation or agreement in such contract or policy of insurance to arbitrate loss or damage nor to give notice or make proofs of loss or dam- age shall in any such case be binding on the assured or beneficiary, but right of action accrues immediately upon loss or damage. Be it fiirther erMCted, That if it is shown to the reason- able satisfaction of the jury by a preponderance of the weight of the testimony that such assurer at the time of the making of such agreement or policy of insurance or 44 LAWS ON TBUSTS AND MONOPOUBS. subsequently before the time of trial belonged to, or was a member of, in any way connected with any tariff asso- ciation or such like thing by whatever name called, either in or out of this state, or had made any agreement or had any understanding either in or out of this state with any person, corporation or association engaged in the business of insurance as agent or otherwise about any particular rate of premium which should be charged or fixed for any risk of insurance on any person or prop- erty or on any kind or class of insurance risk, they must if they find for the assured or beneficiary in addition to his actual damages assess and add twenty-five per cent of the amount of such actual loss, and judgment shall be rendered accordingly. Be it further enacted, That this act shall be liberally construed to accomplish its object. February 18th, 1897. COURT DECISIONS. Citizens' Light, Heat & Power Co. v. Montgomery Light & Water Power Co., 171 Fed., 553. ARIZONA, CONSTI'l'UTION, 1010. Art. 14, Sec. -I-. Xo corporation shall engage in any business other than that expressly authorized in its charter or by the law under which it may have been or may hereafter be organized. Sec. 5. No corporation organized outside of the limits of this State shall be allowed to transact business within this State on more favorable conditions than are pre- scribed by law for similar corporations organized under the laws of this State; and no foreign corporation shall be permitted to transact business within this State unless said foreign corporation is by the laws of the country, State, or Territory under which it is formed permitted to transact a like business in such country, State, or Territory. STATUTES. AN ACT Defining and prohibiting trusts, providing procedure to enforce the provisions of this act, and providing penalties for violation of the provisions of this act. (Law 1912, c. 73.) Sec. 1. A trust is a combination of capital, skill, or acts, by two or more persons, firms, corporations, or asso- ciations of persons, or either two or more of them, for either, any or all of the following purposes : First. — To create or carry out restrictions in trade or commerce or aids to commerce, or to carry out. restric- tions in the full and free pursuit of any business author- ized or permitted by the laws of this State. Second. — To increase or reduce the price of merchan- dise (merchandise), products or commodities, or limit the production thereof, or to control the cost or rates of insurance. Third. — To prevent competition in the manufacture, making, transportation, sale or purchase of merchandise, products or commodities, or to prevent competition in aids to commerce. 45 46 LAWS ON TRUSTS AND MONOPOLIES. Fourth. — To fix any standard or figure, wherbby its price to the public shall be, in any manner, controlled or established, any article or commodity of merchandise, product or commerce intended for sale, use or consump- tion in this State. Fifth. — To make or enter into, or execute or carry out, any contract, obligation or agreement of any kind or description by which they shall bind or have to bind themselves not to sell, manufacture, dispose of or trans- port any article or commodity, or article of trade, use, merchandise, commerce or consumption below a common standard figure or by which they shall agree in any man- ner to keep the price of such article, commodity or trans- portation at a fixed or graded figure, by which they shall in any manner establish or settle the ]3rice of any article or commodity or transportation between them or them- selves and others, to preclude a free and unrestricted com- petition among themselves or others in transportation, sale or manufacture of any such article or commodity, or by which they shall agree to pool, combine or unite any interest they may have in connection with the manufac- ture, sale, or transportation of any such article or com- modity, that its price may in any manner be affected. Sixth. — To regulate the transportation of any product or commodity. And any such combinations are hereby declared to be against public policy, unlawful and void. Sec. 2. All persons, companies, or corporations within this State are hereby denied the rights to form or to be in any manner interested, either directly or indirectly, as principal, agent, representative, consignee or other- wise in any trust as defined in Sec. 1 of this Act. Sec. 3. Any corporation, holding a charter under the laws of the State of Arizona which shall violate any of the provisions of this Act shall thereby forfeit its charter and franchise, and its corporate existence shall cease and determine; and any stockholder, director, officer, agent, representative or consignee of any such corporation shall be subject to the penalties herein prescribed. Sec. 4. For a violation of any provision of this Act by any corporation, or any of its officers or agents, men- tioned herein, it shall be the duty of the Attorney General of the State or County Attorney of any county in which said violation may occur, or either of them, upon his own ABIZONA. 47 motion, to institute an action in any court in this State having jurisdiction thereof, for the forfeiture of the charter, rights and franchise of such corporation, and the dissolution of its corporate existence. Sec. 5. Every person, company, or corporation within or without this State, their officers, agents, representa- tives, or consignee^, violating any of the provisions of this Act, within this State, are hereby denied the right, and are hereby prohibited from doing any business within this State, and all persons, companies and cor- porations, their officers, agents, representatives and con- signees within this State are herebj^ denied the right to handle the goods of, or in any manner deal with, directly or indirectly, any such person, company, or corporation, their officers, agents, representatives, or consignees, and it shall be the duty of the Attorney General, and the County Attorney of any county in the State where any violation of this Act be committed, or either of them, to enforce the provisions of this section by injunction or other proceeding; and all persons, companies and cor- poration's, their officers, agents, representatives or con- signees, violating any of the provisions of this section, either directly or indirectly or abetting or aiding either directly or indirectly in any violation of any provisions of this section, shall be deemed guilty of a misdemeanor and shall be fined not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), and confined in jail not less than Thirty (30) Days, nor more than six (6) Months, and shall for- feit not less than One Hundred Dollars ($100.00) for each and every day such violation may continue, which may be recovered in the name of the State of Arizona in any court of competent jurisdiction. Sec. 6. Each and every person, company or corpora- tion, their officers, agents, representatives or consignees, who either directly or indirectly, violate any of the pro- visions of this Act shall be deemed guilty of a misde- meanor and on conviction thereof shall be .subject to a fine of not less than One Hundred Dollars ($100.00) nor more than One Thousand ($1,000.00), and shall be imprisoned not less than Thirty (30) Days nor more than Six (6) Months, and in addition thereto for each and every day thereafter that such violation shall be com- mitted or continued, forfeit and pay the sum of One 48 LAWS ON TEUSTS AND MONOPOLIES. Hundred Dollars ($100.00), which may be recovered in the name of the State of Arizona, in any county where the offense is committed or where either of the offenders reside, and it shall be the duty of the Attorney General of the State or of the County Attorney of any county in the State, in which said violation shall occur, or either of them, to prosecute and enforce the provisions of this Act. Sec. 7. The creation or maintenance of a monopoly within the State shall be unlawful, and any person, part- nership, association, company, or corporation attempting to create or maintain such monopoly shall be punished, as provided for persons, companies, or corporations, their officers, agents, representatives, or assigns forming or interested in trusts, as defined herein, as provided in Sec. 6 hereof, and to all other penalties provided herein for violation of the provisions of this Act. Sec. 8. Any contract or agreement in violation of any of the provisions of this Act shall be absolutely void and not enforceable in any of the courts of this State, and when any civil action relating to and growing out of trans- actions prohibited by this Act, shall be commenced in any court of this State, it shall be lawful to plead in the defense thereof that the plaintiff or any other person interested in the prosecution of the case is, at the time, or has within One (1) Year next preceding the date of the commencement of any such action, been guilty either as principal, agent, representative, or consignee, directly or indirectly, of a violation of any of the provisions of this Act, or that the cause of action grows out of any business transaction in violation of this Act. Sec. 9. That any person, firm, company, or corpora- tion that may be damaged by any such agreement, trusts or combination described in Sees. 1 and 2 of this Act, may sue for and recover in any court of competent juris- diction in this State, of any person, company, or corpora- tion, operating such trust or combination, such dam- ages as they have sustained, together with a reasonable attorney fee. Sec. 10. It shall be the duty of the Attorney General of the State, and the County Attorneys in their respec- tive counties, to diligently prosecute any and all persons violating any of the provisions of this Act, and it shall be the duty of all State and county officials having no- ABIZONA. 49 tice and knowledge of any violation of the provisions of this Act to notify the county attorney of their respective counties and the Attorney General of the State, of the fact of such violation, and to furnish them with the names of any witnesses by whom such violation can be proved; if any such officer or officers shall fail to com- ply with the provisions of this section he shall, upon con- viction, be fined in any sum not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), and such conviction shall be a forfeiture of the office held by such person, and the court before whom such conviction is had shall, in addition to the imposition of the fine aforesaid, order and adjudge the forfeiture of his said office. Sec. 11. The several superior courts of this State, and the judges thereof, shall have jurisdiction, and it shall be their duty, upon good cause shown and upon written application of the County Attorney or the Attorney Gen- eral, to cause to be issued by the clerk of said court sub- poenas for such witnesses as may be named in the ap- plication of a county attorney or the Attorney General, and to cause the same to be served by the sheriff of the county where such subpoena is issued; and such wit- nesses shall be compelled to appear before such court or judge, at the time and place set forth in the subpoena, and shall be compelled to testify as to any knowledge they may have of the violation of any of the provisions of this Act; and any witness who fails or refuses to attend and testify shall be punished as for contempt as provided by law. Any person subpoenaed and examined shall not be liable to criminal prosecution for any viola- tion of this Act about which he may testify. Neither shall the evidence of any such witness be used against him in any criminal proceeding. The evidence of all wit- nesses so subpoenaed shall then be taken down by the reporter of said court and shall be transcribed and placed in the hands of the County Attorney or the Attorney General, and he shall, in the proper courts, at once prose- cute such violator or violators of this Act as the testi- mony so taken shall disclose. Witnesses subpoenaed as provided for in this section shall be compelled to attend from any county in the State. 24427°— 14 4 ARKANSAS. Art. 2, Sec. 19. Perpetuities and monopolies are con- trary to the genius of a republic, and shall not be al- lowed; * * * STATUTES (act 1905 AS AMENDED MAE.. 12, 1913). Any corporation organized under the laws of this or any other state, or country, and transacting or conducting any kind of business in this state, or any partnership or individual, or other association or persons whatsoever, who are now, or shall hereafter create, enter into, become a member of, or a party to, any pool, trust, agreement, combination, confederation or understanding, whether the same is made in this state or elsewhere, with any other corporation, partnership, individual, or any other person or association of persons, to regulate or fix either in this state or elsewhere the price of any article of manufacture, mechanism, merchandise, commodity, convenience, repair, any product of mining, or any article or thing whatso- ever, or the price or premium to be paid for insuring property against loss or damage by fire, lightning or tor- nado, or to maintain said price when so regulated or fixed, or who are now, or shall hereafter enter into, become a member of, or a party to, any pool, agreement, contract, combination, association or confederation, whether made in this state or elsewhere, to fix or limit in this state or elsewhere, the amount of quantity of any article of manu- facture, mechanism, merchandise, commodity, conven- ience, repair, any product of mining, or any article or tiling whatsoever, or the price or premium to be paid for insuring property against loss or damage by fire, light- ning, storm, cyclone, tornado or any other kind of policy issued by any corporation, partnership, individual or association of persons aforesaid, shall be deemed and ad- judged guilty of a conspiracy to defraud and be subject to the penalties as provided by this act. 51 52 LAWS ON TRUSTS AND MONOPOLIES. Sec. 2. Any person, partnership, firm or association, or any representative or agent thereof, or any corpora- tion or company, or any officer, representative or agent thereof, violating any of the provisions of this Act, shall forfeit not less than two hundred dollars, nor more than five thousand dollars for every such offense, and each day such person, corporation, partnership or association shall continue to do so shall be a separate offense, the penalty in such case to be recovered by an action in the name of the State at the relation of the Attorney General, the moneys thus collected to go into the State Treasury for the benefit of the common school fund of this State, except as hereinafter provided. (Act Mar. 12, 1913.) Sec. 3. Any corporation created or organized by or un- der the laws of this state which shall violate any of the provisions of the preceding sections of this act shall thereby forfeit its corporate rights and franchises and its corporate existence shall, upon proper proof being made thereof in any court of competent jurisdiction in this state, be by the court declared forfeited, void and of non- effect, and shall thereupon cease and determine ; and any corporation created or organized by or under the laws of any other state or country, which shall violate any provi- sions of the preceding sections of this act, shall thereby forfeit its right and privilege thereafter to do any busi- ness in this state, and upon proper proof being made thereof in any court of coinpetent jurisdiction in this state, its right and privilege to do business in this state shall be declared forfeited ; and in all proceedings to have such forfeiture declared, proof that any person who has been acting as the agent of such foreign corporation in transacting business in this state, has been, while acting as such agent, and in the name, behalf or interest of such foreign corporation, violating any provisions of the pre- ceding sections of this act, shall be received as prima facie proof of the act of the corporation itself; and it shall be the duty of the clerk of said court to certify the decree thereof to the secretary of state, and if it be an insurance company, also to the auditor of the state, who shall take notice and be governed thereby as to the cor- porate powers and rights of said corporation. Sec. 4. Xo individual, company or corporation shall be subject to any of the penalties of this Act, unless such individual, company or corporation shall do within this ARKANSAS. 53 State some act directly tending to carry into eiTect a conspiracy prohibited by this Act; and the purchase, sale, delivery or disposition of any article of commerce in a lawful manner within this State shall not be deemed an act done in pursuance of, or for the purpose of carry- ing into effect any such conspiracy. (Act Mar. 12, 1913.) Sec. 5. A monopoly is any union or combination or con- solidation or affiliation of capital, credit, property, assets, trade, customs, skill or acts of any other valuable thing or possession, by or between persons^ firms or corpora- tions, or association of persons, firms or corporations, whereby any one of the purposes or objects mentioned in this act is accomplished or sought to be accomplished, or whereby any one or more of said purposes are promoted or attempted to be executed or carried out, or whereby the several results described herein are reasonably calculated to be produced ; and a monopoly as thus defined and con- templated, includes not merely such combination by and between two or more persons, firms and corporations, act- ing for themselves, but is especially defined and intended to include all aggregations, amalgamations, affiliations, consolidations or incorporations of capital, skill, credit, assets, property, custom, trade or other valuable thing on, possession whether effected by the ordinary methods of partnership or by actual union under the legal form of a corporation, or any incorporated body resulting from the union iof one or more distinct firms or corporations, or by the purchase, acquisition or control of shares or certifi- cates of stocks or bonds, or other corporate property or franchises, and all partnerships and corporations that have been or may be, createdby the consolidation or amal- gamation of the separate capital, stock, bonds, assets, credit, property, customs, trade, corporate or firm belong- ings of two or more firms or corporations or companies, are especially declared to constitute monopolies within the meaning of this act, if so created or entered into for any one or more of the purposes named in this act ; and a monopoly, as thus defined in this section, is hereby de- clared to be unlawful and against public policy, and any and all persons, firms, corporations or association of per- sons engaged therein shall be deemed and adjudged to be guilty of a conspiracy to defraud, and shall be subject to the penalties prescribed in this act. 54 LAWS ON TEUSTS AND MONOPOLIES. Sec. 6. If any person, persons, company, partnership, association, corporation or agent engaged in the manufac- ture or sale of any article of commerce or consumption pro- duced, manufactured or mined in this stat*, or elsewhere, shall, with the intent and purpose of driving out compe- tition, or for the purpose of financially injuring compet- itors, sell within this state at less than cost of manufac- ture or production, or sell in such a way, or give away in this state, their productions for the purpose of driving out competition, or financially injuring competitors en- gaged in similar business, said person, or persons, com- pany, partnership, association, corporation, or agent re- sorting to this method of securing a monopoly within this state in such business, shall be deemed guilty of a con- spiracy to form and secure a trust or monopoly in re- straint of trade, and on conviction thereof shall be sub- jected to the penalties of this act. Sec. 7. It shall be the duty -of the Secretary of State on or about the first day of July each year, to address to the president, secretary or treasurer, or any director of said company doing business in this State, a letter of inquiry as to whether the said corporation has all or any part of its interest or business in or with any trust, com- bine or association or persons or stockholders as named in the preceding provisions of this Act, and to require an answer under oath, of the president, secretary or treas- urer, or any director of said company. A form of affi- davit shall be inclosed in said letter of inquiry, as follows : AFFIDAVIT. State of Arkansas, County of ^ I, do solemnly swear that I am the (president, secretary, treasurer or di- rector) of the corporation known and styled duly incorporated under the laws of on the day of and now transacting or conducting business in the State of Arkansas, and that I am duly authorized to represent said corporation in making this affidavit; and I do further solemnly swear that said , known and styled as aforesaid, has not, since the day of (naming the day upon which this Act is to take efFect), created, entered into or ARKANSAS. 55 become a member of or a party to, and was not on the day of nor at any day since that date, and is not now a member of or a party to any pool, trust, agreement, combination, confederation or under- standing with any other corporation, partnership, indi- vidual or any other person or association or persons, either in this State or elsewhere, to regulate or fix in this State the price of any article of manufacture, mechanism, merchandise, commodity, convenience, repair any product of mining, or any article or thing whatsoever, or the price or premium to be paid for insuring property against loss or damage by fire, lightning, storm, cyclone, tornado, or any other kind of policy issued by the parties afore- said ; and that it has not entered into or become a mem- ber of or a party to any pool, trust, agreement, contract, combination, or confederation, to fix or limit in this State the amount or quantity of any article of maimfac- ture, mechanism, merchandise, commodity, convenience, repair, any product of mining, or any article or thing whatsoever, or the price or premium to be paid for in- suring property against loss or damage by fire, lightning, storm, cyclone, tornado, or any other kind of policy issued by the parties aforesaid ; and that it has not issued and does not own any trust certificates for any corpo- ration, agent, officer or employee, or for the directors or stockholders of any corporation, and has not en- tered into and is not now in any combination, contract or agreement with any person, or persons, corporation or corporations, or with any stockholder or director thereof, the purpose and effect of which said combination, con- tract or agreement would be to place the management or control of such combination or combinations, or the manufactured products thereof in the hands of any trustee or trustees, with the intent to fix or limit the price or lessen the production and sale of any article of commerce, use or consumption, or to prevent, restrict or diminish the manufacture or output of any article in Arkansas. President, Secretary, Treasurer, or Director. " Subscribed and sworn to before me, a within and for the County of this day of 1 Seal. 56 LAWS ON TRUSTS AND MONOPOLIES. "And on refusal to make oath in answei- to said in- quiry, or on failure to do so, within thirty days from the mailing thereof, the Secretary of State shall certify said fact to the Attorney General, and it shall be the duty of the Attorney General, at his earliest practical moment, in the name of the State and at the relation of the At- torney General, to proceed against said corporation, if a domestic corporation, for the recovery of the money for- feit provided for in this Act, and also for the forfeiture of its charter or certificate of incorporation. If a for- eign corporation, to proceed against such corporation for the recovery of the money forfeit provided for in this Act, and to forfeit its right to do business in this State. Provided, that within sixty days after the passage of this Act, all foreign corporations desiring to do business in this State shall file a new bond, as the statutes direct; and such sureties and bondsmen shall be liable for the penalties and forfeitures, including costs, provided for in this Act. (Act Mar. 12, 1913.) Sec. 8. Whenever any proceedings shall be commenced in any court of competent jurisdiction in this State by the Attorney General against any corporation or cor- porations, individual or individuals, or association of in- dividuals, or joint stock association or co-partnership under the law against the formation and maintenance of pools, trusts of any kind, monopolies or confederations, combinations or organizations in restraint of trade, to dissolve the same or to restrain their formation or main- tenance in this State, or to recover the penalties in this Act provided, then, and in such case, if the Attorney General desire to take the testimony of any officer, director, agent or employee of any incorporation, or joint stock association proceeded against, or in case of a co-partnership any of the members of said partnership, or any employee thereof, in any court in which said ac- tion may be pending; and the individual or individuals whose testimony is desired are without the jurisdiction of this, or reside without the State of Arkansas, then in such case the Attorney General may file in said court in term time, or with the judge thereof in vacation, a state- ment, in writing setting forth the name or names of the persons or individuals whose testimony he desires to take, and the time when and the place where he desires said person to appear ; and thereupon the court or judge thereof shall make an order for the taking of said testi- ARKANSAS. 57 mony of such person or persons, and for the production of any books, papers, documents in his possession or under his control relating to the merits of any suit, or to any evidence therein, shall appoint a commission for that purpose, who shall be an officer authorized by law to take depositions in this State, and said Commission shall issue immediately a notice in writing, directed to the attorney or attorneys of record in said cause, or agent, or officer, or other employee, that the testimony of the person named in the application of the Attorney General is desired, and requesting said attorney or attorneys of record, of said officer^ agent or employee to whom said notice is delivered, and upon whom the same is served, to have said officer, agent, employee, representative of said co-partnership, or agent thereof, whose evidence is desired to take, together with such books, papers and documents, at the place named in the application, shall then and there testify. Provided, however, that such ap- plication shall always allow in fixing said time and same number of days' tra,vel to reach the designated place in Arkansas that would be allowed by law in case of taking depositions; provided, also in addition to the above named time, six days shall be allowed for the attorneys of record, or the agent, officer or employee on whom notice is served to notify the person or persons whose testimony is to be taken. Service of said notice as re- turned in writing may be made by any one authorized by law to serve siibpoena. (Act Mar. 12, 1913.) Sec. 9. Whenever the persons mentioned in the pre- ceding sections shall be notified as above provided, to request any officer, agent, director or employee to attend before any court, or before any person authorized to take the testimony in said proceedings, and the person or persons whose testimony is required as above provided, shall fail to appear and testify and produce any books, papers and documents, they may be ordered to procure by court, or the other office authorized to take such evi- dence, then it will be the duty of the court, upon motion of the Attorney General, to strike out the answer, mo- tion, reply, demurrer or other pleading then or thereafter filed in said action or proceeding by the said corporation, joint stock association or co-partnership whose officer, agent, director or employee has neglected or failed to attend and testify and produce all books, papers and documents he or they shall have been ordered to produce 58 LAWS ON TETJSTS AND MONOPOLIES. in said action by the court or person authorized to take said testimony and said court shall proceed to render judgment by default against said co-partnership, joint stock association or corporation, joint stock association or co-partnership. And it is further provided, that in case of any officer, agent, employee, director or represent- ative of any corporation, joint stock association or co- partnership in such proceeding, as hereinbefore men- tioned, who shall reside or be found within this State, shall be subpoenaed to appear and testify, or produce books, papers and documents and shall fail, neglect or refuse to do so, then the answer, motion, demurrer or other pleading then and thereafter filed by said corpora- tion, joint stock association or co-partnership in any such proceeding, shall on motion of the Attorney Gen- eral, be stricken out and judgment in said cause rendered against said corporation, joint stock association or co- partnership. (Act Mar. 12, 1913.) Sec. 10. It will be the duty of the Attorney General to enforce the provisions of this Act. As compensation for his services in this behalf, the Attorney General shall be entitled to his actual expenses incurred in the prose- cution of such suits, to be paid by the defendant or de- fendants when judgment is rendered for the State, to be taxed as costs by the court hearing the cause. (Act Mar. 12, 1913.) Sec. 11. In all suits instituted under this Act to for- feit the charter of corporations, or to forfeit the right of a corporation to do business in this State, where judg- ment of forfeiture is obtained, and the cause not appealed to the Supreme Court, the Circuit Court rendering such judgment shall allow the Attorney General, his actual expenses, to be paid out of the assets of said corporation. AU actions authorized and brought under this Act shall have precedence on motion of the Attorney General, of all other business, civil and criminal, except criminal cases where the defendants are in jail. (Act Mar. 12, 1913.) COURT DECISIONS. Ex Parte Levy, 43 Ark., 42, 53. Hammond Packing Co. v. State, 212 U. S., 322. State V. Aetna Fire Ins. Co., 66 Ark., 480. State V. Lancashire Ins. Co., 66 Ark., 466 ; 45 L. E, A., 848. CALIFORNIA. CONSTITUTION, 1879. Art. 12, Sec. 9. No corporation shall engage in any business other than that expressly authorized in its char- ter, or the law under which it may have been or may hereafter be organized; nor shall it hold for a longer period than fiTe years any real estate except such as may be necessary for carrying on its business. Statutes. [March 23, 1907.] CARTWRIGHT ANTI-TRUST LAW. Section 1. A trust is a combination of capital, skill or acts by two or more persons, firms, partnerships, corpo- rations or associations of persons, or of any two or more of them for either, any or all of the following purposes : 1. To create or carry out restrictions in trade or com- merce. 2. To limit or reduce the production, or increase the price of merchandise or of any commodity. 3. To prevent competition in manufacturing, making, transportation, sale or purchase of merchandise, produce or any commodity. 4. To fix at any standard or figure, whereby its price to the public or consumer shall be in any manner con- trolled or established, any article or commodity of mer- chandise, produce or commerce intended for sale, barter, use or consumption in this state. 5. To make or enter into or execute or carry out any contracts, obligations or agreements of any kind or de- scription, by which they shall bind, or have bound them- selves not to sell, dispose of or transport any article or any commodity or any article of trade, use, merchandise, commerce or consumption below a common standard fig- 69 50 LAWS ON TETJSTS AND MONOPOLIES. ure or fixed value, or by which they shall agree in any manner to keep the price of such article, commodity or transportation at a fixed or graduated figure, or by which they shall in any manner establish or settle the price of any article, commodity or transportation be- tween them or themselves and others, so as to directly or indirectly preclude a free and unrestricted competition among themselves, or any purchasers or consumers in the sale or transportation of any such article or commodity, or by which they shall agree to pool, combine or directly or indirectly unite any interests that they may have con- nected with the sale or transportation of any such article or commodity, that its price might in any manner be af- fected. Every such trust as is defined herein, is declared to be unlawful, against public policy and void, provided that no agreement, combination or association shall be deemed to be unlawful or within the provisions of this act, the object and business of which are to conduct its opera- tions at a reasonable profit or to market at a reasonable profit those products which cannot otherwise be so mark- eted, provided further, that it shall not be deemed to be unlawful, or within the provisions of this act, for persons, firms, or corporations engaged in the business of selling or manufacturing commodities of a similar or like char- acter, to employ, form, organize or own any interest in any association, firm or corporation, having as its object or purpose the transportation, marketing or delivery of such commodities. (As amended by L. 1909, c. 362.) Sec. 2. For a violation of any of the provisions of this act by any corporation or association mentioned herein, it shall be the duty of the attorney-general or the district attorney of the proper county, to institute proper suits or quo warranto proceedings in any court of competent jurisdiction for the forfeiture of its charter rights, fran- chises or privileges and powers exercised by such cor- poration or association, and for the dissolution of the same imder the general statutes of the state. Sec. 2J. It shall be lawful to enter into agreements or form associations or combinations, the purpose and effect of which shall be to promote, encourage or increase com- petition in any trade or industry, or which are in fur- therance of trade. (Added, L. 1909, c. 362.) OALIFOBNIA 61 Sec. 3. Every foreign corporation, as well as every for- eign association, exercising any of the powers, franchises or functions of a corporation in this state, violating any of the provisions of this act, is hereby denied the right and prohibited from doing any business in this state, and it shall be the duty of the attorney-general to enforce this provision by bringing proper proceedings by injunc- tion or otherwise. The secretary of state shall be au- thorized to revoke the license of any such corporation or association heretofore authorized by him to do business in this state. Sec. 4. Any violation of either or all of the provisions of this act shall be and is hereby declared a conspiracy against trade, and any person who may become engaged in any such conspiracy or take part therein, or aid or advise in its commission, or who shall, as principal, man- ager, director, agent, servant or employee, or in any other capacity, knowingly carry out any of the stipulations, purposes, prices, rates, or furnish any information to assist in carrying out such purposes, or orders there- under or in pursuance thereof, shall be punished by a fine of not less than fifty ($50) dollars nor more than five thousand ($5,000) dollars, or be imprisoned not less than six months nor more than one year, or by both such fine and imprisonment. Each day's violation of this pro- vision shall constitute a separate offense. Sec. 5. In any indictment, information or complaint for any offense named in this act, it is sufficient to state the purpose or effects of the trust or combination, and that the accused is a member of, acted with or in pur- suance of it, or aided or assisted in carrying out its pur- poses, without giving its name or description, or how, when and where it was created. Sec. 6. In prosecutions under this act, it shall be suffi- cient to prove that a trust or combination, as defined herein, exists, and that the defendant belonged to it, or acted for or in connection with it, without proving all the members belonged to it, or proving or producing any article of agreement, or any written instrument on which it may have been based ; or that it was evidenced by any written instrument at all. The character of the trust or combination alleged may be established by proof of its general reputation as such. In case any court of record, or in vacation any judge of said court in which is pend- 62 LAWS ON TRUSTS AND MONOPOLIES. ing any civil, criminal or other action or proceeding brought or prosecuted by the attorney-general or any district attorney for the violation of any of the provi- sions of this act or in any action or proceeding for the violation of the law of this state, against conspiracy or combination in restraint of trade so orders, no person so ordered shall be excused from attending, testifying or producing books, papers, schedules, contracts, agreements or any other document in obedience to the subpoena or under the order of such court or any commissioner or referee appointed by said court to take testimony or any notary public or other person or officer authorized by the laws of this state to take depositions when the order made by such court or judge thereof includes a witness whose deposition is being taken before such notary public or other officer on the ground or for the reason that the tes- timony or evidence required of him may tend to crimi- nate him or subject him to any penalty ; but no individual shall be prosecuted or subjected to any penalty for or on account of any transaction, matter or thing concerning which he may so testify, or produce evidence, docu- mentary or otherwise, before any such court, person or officer. Sec. 7. Each and every firm, person, partnership, cor- poration or association of persons, who shall in any man- ner violate any of the provisions of this act, shall, for each and every day that such violations shall be commit- ted or continued, after due notice given by the attorney- general or any district attorney, forfeit and pay the sum of fifty ($50) dollars, which may be recovered in the name of the people of the state of California, in any county where the offense is committed, or where either of the offenders resides ; and it shall be the duty of the attor- ney-general, or the district attorney of any county on the order of the attorney-general, to prosecute for the re- covery of the same. "When the action is prosecuted by the attorney-general against a corporation or association of persons, he may begin the action in the supreme (superior) court of the county in which defendant resides or does business. Sec. 8. That any contract or agreement in violation of the provisions of this act shall be absolutely void and shall not be enforceable either in law or equity. CALIPOENIA. 63 Sec. 9. That the provisions hereof shall be held cumu- lative of each other and of all other laws in any way affecting them now in force in this state. . Sec. 10. It shall not be lawful for any person, part- nership, association or corporation, or any agent thereof, to issue or to own trust certificates, or for any person, partnership, association or corporation, agent, officer or employee, or the directors or stockholders of any corpo- ration, to enter into any combination, contract or agree- ment with any person or persons, corporation or corpora- tions, or with any stockholder or director thereof, the purpose and effect of which combination, contract or agreement shall be to place the management or control of such combination or combinations, or the manufac- tured product thereof, in the hands of any trustee or trustees with the intent to limit or fix the price or lessen the production and sale of any article of commerce, use or consumption, or to prevent, restrict or diminish the manufacture or output of any such article, and any per- son, partnership, association or corporation that shall en- ter into any such combination, contract or agreement for the purpose aforesaid shall be deemed guilty of a mis- demeanor, and on conviction thereof shall be punished by a fine not less than fifty dollars, nor more than five thou- sand dollars. Sec. 11. In addition to the criminal and civil penalties herein provided, any person who shall.be injured in his business or property by any other person or corporation or association or partnership, by reason of anything for- bidden or declared to be unlawful by this act, may sue therefor in any court having jurisdiction thereof in the county where the defendant resides or is found, or any agent resides or is found, or where service may be ob- tained, without respect to the amount in controversy, and to recover twofold the damages by him sustained, and the costs of suit. Whenever it shall appear to the court be- fore which any proceedings under this act may be pend- ing that the ends of justice require that other parties shall be brought before the court, the court may cause them to be made parties defendant and summoned whether they reside in the county where such action is pending or not. Sec. 12. The word " person " or " persons " whenever used in this act shall be deemed to include corporations, 64 LAWS ON 'I'KUSTS ANI> MONOPOI.l lOH. piirdicrsliips mid associations (ixisUiijj; iiiiddi- or iiiillior- i/A'(l by (lie laws of tliiw state or any olluir slalo, or any roroifj;n coiiiilrv. Sioc. V.\. Labor wlicUicr skilled or unskilled is not a. commodity williin tiic, meaning of tins act. (Added by L. 1!)()!), c. ;i(;2.) ((}cii. Ivaws, Sck;. 1 K'.Ci.) UNKArii, coMTK/rrrioN and dihcimmination. |t!liii|>, 276, iicl^M 111' Oiilifdrnia, .I'l H), l()l;i. | SudTioN .1. It, Bind! 1)0 unlawful for any ixwhom, (inn, or corporation, doin^,' hiisinoHH in tho SI.mI.o of California and (MifjjMt^fcd in Uki production, manufacture, dinl^rilxi- l.ion, or said of any coniniodil-y of ^^cncnd uho or consiunp- tiou, or tlic product or service of any puMic utility, with the intcid, to destroy i.he competition of any r((i,'ula.r oh- tahlished dealer in Huch conunodity, product, or Hei'vice, or to prevent tlie competition of any person, fir'm, private corporation, or nnmici[)id. or othoi' pid)lic corporation, who or wliic.h, in ^'ood faith, inl-ends and al.temptH (,o hecome sue!) dealer, to discriminii-te hel/Ween (liffcrent sectionH, conuTumities, or cities, or portiouH thereof of thiH State, by selling' or furnisliinfj such connnodity, pi'o(ha^t, or service at a lower r'ate in one Hection, c-om- itninity, or city, or atiy portion ther(«)f, limn in anotiier, after nuikiufi; a,ll(jwa.nce for' differenc-e, if any, in the i.',vn(\(\, (piality, orcpnuitity, and for ciist dillerences hetfWeen Huch |)la,ces due to distance from the f)oird, of production, miuHifactun^, or disl-rihution, and expense of diHti'il)uti(Mi and o[)era,tion. This net is riot inf,erided to f)roliihit tiie mr^r^tirif^ in good faith of a competitive rate, or' to pr'ev(uil/ a reasonahle elnssificalion of sei'vice by public utilitiriS for the purpose of (establishing riites. The inhibition hei'cof agiiinst locality disc.r'imination shall emhr'iii'e any scliemo of H|)iec,iii.l rebates, coilater'id contr'acts, or' iiny devic.e of any nature wher'ceby Hucii disci'iminatiori is, in HnbHtance or fact, efhiel,(ul in violation of tlai spirit and intent of this act. Any p(U'sori, who either as dir'ect,or, odicer, or agent of any (irm or cor'|)oratiori or as agenf, of any f)cj'Hori, vio- lating the fH'ovisioriH ti(U'(Hil', iissists or' aids, directly or iridii'octly, in such 'viohition Hhall be r'eH()onsible tlier'(el'or cfpially witti the person, firm, or cor'por-atiori for' whom or whicli he acts, fn the |)ros(H'ui,ion of any (airnon aw oiruier, dii-ector, or iigerit it shall be Hufllcient to allege CALIFORNIA. 65 and prove the unlawful intent of the person, firm, or cor- poration for whom or which he acts. Seo. 2. If complaint shall be made to the attorney general that any corporation is violating section 1 of this act, he shall investigate such complaint, and if, in his opinion, sufficient grounds exist therefor, he shall prose- cute an action in the name of the people of the State of California in the proper court to annul the charter or revoke the license of such corporation to do business in this State, as the case may be, and to permanently enjoin' such corporation from doing business in this State; and if in such action the court shall find that such corporation is violating this act, it may enjoin said corporation from doing business in this State for such time as the court shall order or may annul the charter, or revoke the license of such corporation, and permanently enjoin it from transacting business in the State. Sec. 3. Any contract, express or implied, made by any person, firm, or corporation in violation of the pro- visions of section 1 of this act for the sale or furnishing of any commodity, product, or service at a rate greater- than the lowest rate charged therefor by such person, firm, or corporation in any other section, community, or city in this State, after making allowance for the cost differences between such place and the place where under the contract such commodity, product, or service is delivered or furnished, and for difference, if any, in grade, quality, or quantity, is declared to be an illegal contract, and no recovery thereon shall be had. Sec. 4. Any person, firm, private corporation or municipal or other public corporation, may maintain an action to enjoin a continuance of any act or acts in violation of section one of this act and, if injured thereby, for the recovery of damages. If, in such action, the court shall find that the defendant is violating section one of this act, it shall enjoin the defendant from a contin- uance thereof; it shall not be necessary that actual damage to the plaintiff be alleged or proved. In addition to such injunctive relief, the plaintiff in said action shall be entitled to recover from the defendant three times the amount of the actual damages, if any, sustained. Sec. 5. Any person, whether as principal, agent, officer or director, for hinaself or for another person, or for any firm or corporation, or any corporation, who or 24427°— 14 5 66 LAWS ON TRUSTS AND MONOPOLIES. which shall violate sooiion one of this act, is guilty of a misdemeanor and upon conviction thereof, shall, if a person, be punished by a fine of not exceeding one thousand dollars, or by imprisonment in a county jail not exceeding one year, or by both such fine and imprison- ment, and, if a corporation, by a fine of not more than five thousand dollars. Sec. 6. If any section, sentence, clause or phrase of this- act is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of the act. The legislature hereby declares that it would have passed this act, and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more other sections, sentences, clauses, or phrases be declared unconstitutional. The remedies herein prescribed are cumulative and in addition to the . remedies prescribed by the pubhc utilities act for dis- criminations by public utilities. If any conflict shall arise between this act and the pubhc utiUties act, the latter shall prevail. Sec. 7. The legislature declares that the purpose of this act is to safeguard the public against the creation or perpetuation of monopolies and to foster and encourage competition, by prohibiting unfair and discriminatory practices by which fair and honest competition is de- stroyed or prevented. The act shall be liberally con- strued that its beneficial purposes may be subserved. COURT DECISIONS. Merchant's Ad— Sign Co. v. Sterling, 1'24 CaL, 429; 46 L. R. A., 142. San Diego Water Co. v. San Diego Flume Co., 108 Cal., 549. Brown v. Kling 101 Cal., 295. Calif., etc., Association v. Stelling 141 Cal., 720. Calif. Steam Navigation & Trust Co. v. Wright Cal., 258. Callaghan v. Donnolly 45 Cal., 152. City Carpet Beating Co. v. Jones 102 Cal., 506. Dodge V. Dodge 145 Cal., 380. Franz v. Bieler 12(j Cal., 176. Ghirardelli -y. Huusicker (Cartwright Act) 1G4 Cal., 355. Gregory v. Spieker 110 Cal., 150. Grogan v. Chaffee 156 Cal., 611. Havermeyer v. Superior Court 84 Cal., 378. Herrman v. Menzies 115 Cal., 16. Lightner v. Menzel 35 Cal., 452. CALIFORNIA, 67 Meyers v. Merilllon 118 Cal., 352. More V. Bonner '. 40 Oal., 251. Pacific Factor Co. v. Adler 90 Cal., 110. Pavkovich v. S. P. R. R 87 Pac. Rep., 1097. Bagsdale v. Nagle 106 Cal., 332. Santa Clara Co. v. Hayes .76 Cal., 387. Schwalm v. Holmes 49 Cal., 665. Visalla Gas & Elec. Co. v. Sims .104 Oal., 326. Vulcan Powder Co. v. Hercules Powder Co 96 Cal., 510. Well V. Jones 53 Cal., 46. Works V. Jones 102 Cal., 506. Wright V. Ryder 36 Cal., 342. COLORADO. CONSTITUTION, 1876. Art. XV, Sec. 5. No railroad corporation, or the lessees or managers thereof, shall consolidate its stock, property or franchises with any other railroad corpora- tion owning or having under its control a parallel or competing line. STATUTES. [Chapter 161 (Acts 1913).] TRUSTS DEFINED AND PROHIBITED. AN ACT Defining and prohibiting trusts; providing procedure to enforce the provisions of this act, and penalties for violations of the provisions of this act. Section 1. A trust is a combination of capital, skill or Trusfs"***"" °' acts, by two or more persons, firms, corporations, or asso- ciations of persons, or by any two or more of them, for either, any or all of the following purposes : First. To create or carry out restrictions in trade or commerce, or aids to commerce, or to carry out restrictions in the full and free pursuit of any business authorized or permitted by the laws of this State. Second. To increase or reduce the price of merchandise, produce or commodities. Third. To prevent competition in the manufacturing, making, transportation, sale or purchase of merchan- dise, produce, ores, or commodities, or to prevent compe- tition in aids of commerce. Fourth. To fix any standard of figures, whereby the price to the public of any article or commodity of mer- , chandise, produce or commerce intended for sale, use or consumption in this State shall, in any manner, be con- trolled or established. 69 70 LAWS ON TBUSTS AND MONOPOLIES. Fifth. To make or enter into, or execute or carry out, any contract, obligation or agreement of any kind or de- scription by which they shall bind or have to bind them- selves not to sell, manufacture, dispose of or transport any article or commodity, or article of trade, use, merchandise, commerce or consumption below a common standard fig- ure ; or by which they shall agree in any manner to keep the price of such article, commodity or transportation at a fixed or graded figure; or by which they shall in any manner establish or settle the price of any article or com- modity or transportation between them or themselves and others so as to preclude a free and unrestricted competi- tion among themselves or others in transportation, sale or manufacture of any such article or commodity; or by which they shall agree so to pool, combine or unite any interest they may have in connection with the manufac- ture, sale or transportation of any such article or com- modity, that its price may in any manner be affected. Against pub- And all such combinations are hereby declared to be against public policy, unlawful and void; provided that no agreement or association shall be deemed to be unlaw- ful or within the provisions of this act, the object and purposes of which are to conduct operations at a reason- able profit or to market at a reasonable profit those prod- ucts which cannot otherwise be so marketed; provided further that it shall not be deemed to be unlawful, or with- in the provisions of this act, for persons, firms, or corpora- tions engaged in the business of selling or manufacturing commodities of a similar or like character to employ, form, organize or own any interest in any association, firm or corporation having as its object or purpose the transportation, marketing or delivering of such commod- ities ; and provided further that labor, whether skilled or unskilled, is not a commodity within the meaning of this act. ^Lawful agree- Section 2. It shall be lawful to enter into agreements or form associations or combinations, the purpose and effect of which shall be to promote, encourage or increase competition in any trade or industry, or which are in fur- therance of trade. GeMrViorDis? Seotion 3. For a violation of any of the provisions of to begta"?«on': tliis act by any corporation, or by any of its officers or agents mentioned herein, it shall be the duty of the attor- ney general of this State, or district attorney of any dis- trict in which said violation may occur, or either of them, COLOEADO. 7X upon his own motion to institute an action in any court in this State having jurisdiction thereof for the forfeiture of the charter, -rights and franchise of such corporation, and the dissolution of its existence. Section 4. Every foreign corporation, as well as every Foreign cor- „ . • i- ■ • J. J.I J. poratlons vlo- roreign association, exercising any oi the powers, f rq,n- lating mis act. chises or functions of a corporation in this State, violat- ing any of the provisions of this act, is hereby denied the right and prohibited from doing any business in this State, and it shall be the duty of the Attorney General to enforce this provision by bringing proper proceedings by injunction or otherwise. Section 5. Each and every person, company or corpo- violations, ration, the officers, agents or representatives thereof, vio- lating any of the provisions of this act shall be deemed guilty of a misdemeanor, and on conviction thereof shall be subject to a fine of not more than one thousand dollars, or to imprisonment for not more than six months ; and it shall be the duty of the Attorney General of the State, or the district attorney of any district in the State, in which said violation shall occur, or either' of them, to prosecute and enforce the provisions of this act. Section 6. Any contract or agreement in violation of _, 9°?.*'^*'=*' ■*? •' ° violation, void. any of the provisions of this act shall be absolutely void and not enforceable in any of the courts of this State; and when any civil action shall be commenced in any court of this State it shall be lawful to plead in defence thereof that the cause of action sued upon grew out of a contract or agreement in violation of the provisions of this act. Section 7. That any person, firm, company or corpo- ^^ Action for ration that may be damaged by any such agreement, trust or combination described in Section 1 of this act, may sue for and recover in any court of competent jurisdiction in this State, of any person, company or corporation operat- ing such trust or combination, such damages as may have been thereby sustained. Section 8. In any proceeding pending in any court of ^^^^ ej^J,^,^! record brought or prosecuted by the Attorney General, beeau^e^^ot in- or any district attorney, for the violation of any of the provisions of this act, no person shall be excused from attending, -testifying or producing books, papers, sched- ules, contracts, agreements or any other document, in obedience to the subpoena or under the order of such courtj or any commissioner or referee appointed by said 72 LAWS ON TEUSTS AND MONOPOLIES. court to take testimony, or any notary public, or other person or officer authorized by the laws of this State to take depositions, when the orders made by such court, or judge thereof, included a witness whose deposition is be- ing taken before such notary public or other officer, on the ground or for the reason that tlie testimony or evi- dence required of him may tend to criminate him or sub- No prosecu- ject him to any penalty; but no individual shall be prose- evidence given, cuted or subjected to any penalty for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence, documentary or other- wise, before any such court, person or officer. Approved April 7th 1913, at 9 :03 A M. o'clock. CONNECTICUT. CONSTITUTION, 1818. Art. I, Sec. 1. We declare, That all men when they form a social compact, are equal in rights; and that no man or set of men are entitled to exclusive public emolu- ments or privileges from the community. STATUTES. [Chapter 185 Acts 1911.] AN ACT Concerning Combinations to Increase Prices of Kecessities. Any person who, for himself or as a member of any to*^fl^''*"?*'°°l firm or an officer or agent of any corporation, conspires necessioea pro- with or enters into any combination or agreement with any other person or any firm or corporation for the pur- pose of fixing or maintaining a higher price, at wholesale or retail, for ice, coal, or any other necessity of life than would prevail except for such conspiracy, combination, or agreement, or of limiting or restraining the production, manufacture, shipment, or sale of any such commodity for the purpose of increasing the price thereof, shall be fined not more than one thousand dollars, or imprisoned not more than five years, or both. Approved, August 15, 1911. COURT DECISIONS. Connors v. Connolly, Conn. Rep. 86, 641. The Norwich Gas Light Co. v. The Norwich City Gas Co., 25 Conn., 18. The State v. Brennan's Liquors, 25 Conn., 277. 73 DELAWARE. There are no anti-trust statutes in Delaware. DISTRICT OF COLUMBIA. The general statutes of the United States (26 Stats, at Large, 209 ; Sup. 2d Ed., p. 762) , and other laws prohib- iting unlawful restraints of trade, monopolies and com- bines, are in force in this District. 77 FLORIDA. STATUTES, 1906. Sec. 3160. Every arrangement, contract, agreement, trust, or combination between persons or corporations, or between any person and any corporation, made with a view to, or tending to prevent, hinder or obstruct the lawful sale in this State, or any place therein, of beef or other fresh meat of cattle or any other edible animal raised, fattened or fed in the State of Florida, or any other beef or fresh meat, or with a view to or tending to prevent, hinder or obstruct the lawful sale of any cattle or other edible animal in this State, or any place therein, or which shall tend to monopolize or control the sale or price of beef or other fresh meat in this State, or any place therein, is hereby declared to be against public policy. Sec. 3161. Any corporation chartered under the laws of this State, which shall violate any of the provisions of the preceding section shall thereby forfeit its charter and franchises, and its corporate existence shall there- upon cease and determine. Every foreign corporation which shall violate any of the provisions of said section, is hereby denied the right to do and is. prohibited from doing business in this State. It is hereby made the duty of the Attorney-General of this State to enforce this provision by due process of law. ^ COTJET DECISIONS. Barbee v. Jacksonville & A. Plank Road Co., 6 Fla., 262. Stewart & Bro. v. Stearns & Culver Lbr. Co., 56 Fla., 570. 79 GEORGIA. CONSTITUTION. Aet. IV, Sec. 2. The General Assembly of this state shall have no power to authorize any corporation to buy shares or stock in any other corporation in this state or elsewhere, or to make any contract or agreement what- ever, with any such corporation, which may have the effect, or be intended to have the effect, to defeat or lessen competition in their respective businesses, or to encourage monopoly; and all such contracts and agree- ments shall be illegal and void. STATUTES, 1896. Sec. 1. That, from and after the passage of this Act, all arrangements, contracts, agreements, trusts or combi- nations between persons or corporations made with a view to lessen, or which tend to lessen, full and free com- petition in the importation or sale of articles imported into this State, or in the manufacture or sale of articles of domestic growth or of domestic raw material, and all arrangements, contracts, agreements, trusts or combina- tions between persons or corporations designed, or which tend to advance, reduce or control the price or the cost to the producer or to the consumer of any such product or article, are hereby declared to be against public policy, unlawful and void. Sec. 2. Be it further erhocted by the authority afore- said, That any corporation, chartered under the laws of this State, which shall violate any of the provisions of this Act shall thereby forfeit its charter and its franchise, and its corporate existence shall thereupon cease and de- termine. Every foreign corporation, which shall violate any of the provisions of this Act, is hereby denied the right to do, and is prohibited from doing, business in this. State. It is hereby made the duty of the Attorney-Gen- eral of the State to enforce this provision by due process of law. 24427°— 14 6 81 82 LAWS ON TEUSTS AND MONOPOLIES. Sec. 3. Be it further enacted iy the authority afore- said, That any violation of the provisions of this Act shall be deemed, and is hereby declared to be destructive of full and free competition and a conspiracy against trade, and any person or persons who may engage in any such conspiracy, or who shall, as principal, manager, director or agent, or in any other capacity, knowingly carry out any of the stipulations, purposes, prices, rates or orders made in furtherance of such conspiracy, shall, on conviction, be punished by a fine of not less than one hundred dollars or more than five thousand dollars and by imprisonment in the penitentiary not less than one year nor more than ten years; or, in the judgment of the court, by either such fine or such imprisonment. Sec. 4. Be it further enacted iy the authority afore- said, That the provisions of this Act shall not apply to agricultural products or live stock while in the possession of the producer or raiser. i Sec. 5. Be it further enacted iy the authority afore- said. That any person or persons, or corporations that may be injured or damaged by any such arrangement, contract, agreement, trust or combination, described in Section one of this Act, may sue for and recover, in any court of competent jurisdiction in this State, of any per- son, persons or corporation operating such trust or com- bination, the full consideration or sum paid by hun or them for any goods, wares, merchandise or articles the sale of which is controlled by such combination or trust. Sec. 6. Be it further eTiacted hy the authority afore- said. That it shall be the duty of the Judges of the Superior Courts of this State specially to instruct the grand juries as to the provisions of this Act. Sec. 7. Be it further enacted hy the authority afore- said. That all laws and parts of laws in conflict with the provisions of this Act be, and the same are, hereby re- pealed. Approved December 23, 1896. Georgia Code. [Section 9.] POOLING. p.'tol. ^*^°"^' Sec. 2466. It shall be unlawful for any insurance com- 2443?^' ®*^®'Pany, or companies, authorized to do business in this GEORGIA. 83 State, or the agent or agents thereof, to make, maintain, or enter into any contract, agreement, pool, or other ar- rangement with any other insurance company, or com- panies, licensed to do business in this State, or the agent or agents thereof, for the purpose of, or that may have the tendency or effect of, preventing or lessening competition in the business of insurance transacted in this State. And when it shall be made to appear to the commissioner of insurance that any company, or companies, agent, or agents have entered into any such contract, agreement, pool, or other arrangement, said commissioner shall re- voke the license issued to such company or companies, and the same shall not be reissued until the president or chief officer of such company or companies shall file an affidavit with said commissioner, stating that such con- tracts, agreements, pools, or other arrangements have been annulled and made void : Provided, that nothing in this Article shall be so construed as to prevent any insur- ance company, legally authorized to transact business in this State, from separately surveying, inspecting, or ex- amining the premises to be insured, by and with the con- sent of the owner, for the purpose of bringing about im- provements in fire protection, so as to lessen the cost of insurance by reducing rates. Sec. 2597. Any railroad company incorporated under 5if"*® ■^*®^' ^■ the provisions of this Article shall have authority to sell, aeol-leio^^^^' lease, assign, or transfer its stock, property, and fran- chises to, or to consolidate the same with, those of any other railroad company incorporated under the laws of this or any other State or of the United States, whose rail- road within or without this State shall connect with or form a continuous line with the railroad of the company incorporated under this law, upon such terms as may be agreed upon ; and conversely any such corporation organ- ized under the provisions of this Article may purchase, lease, consolidate with, absorb, and merge into itself the stock, property, and franchises of any other railroad company incorporated under the laws of this or any other State or the Unit«d States, whose railroad within or without this State shall connect with or form a continuous line or system with the railroad of such company incor- porated under this law, upon such terms as may be agreed upon. And it shall be lawful for any railroad company or corporation now or hereafter formed by the consolida- tion of one or more railroad companies, or corporations, 84 LAWS ON TBUSTS AND MONOPOLIES. organized under the laws of this State, or under the laws of this State and any other States, with one or more com- panies or corporations organized under the laws of any other State, or under the laws of this and other States, to issue its bonds and stock as provided for in this Article, in such amounts as they may deem necessary for the pur- pose of paying or exchanging the same for or retiring any bonds or stocks theretofore issued by either of the said companies, or corporations, so merged, purchased, or consolidated, or for any other purpose, and to the amount authorized by the laws of the State under which either of said companies, or corporations, so consolidated was organized, and to secure the same, in case of bonds, by mortgages or trust deeds upon its real or personal prop- erty, franchises, rights, and privileges, whether within or without this State: Provided, that no railroad company shall make any contract under the provisions of this sec- tion with any other railroad company which is a com- peting line, that is calculated to defeat or lessen competi- tion in this State or to encourage monopoly. ActB 1890-1, Sec. 2614. All street-railroad companies may lease or 2607**' ^*^^' ^®^ their road, franchises, and other property to any other corporation created by the laws of this State for street-railroad purposes; and their franchises and property so sold shall remain liable in the hands of the lessee or purchaser for all debts or claims against the company making the conveyance. Nothing in this sec- tion shall be construed to authorize any such company to sell, lease, or otherwise dispose of any of its property or franchises so as to defeat or lessen competition, or to encourage monopoly. 3 1^3^2' ' 13^40' ^^^' ^^^^" ^ contract which is against the policy of the 2 7 85' 6466'^*^ ^^^ ^"^ ^ euf orccd ; such are contracts tending to 42*58,^^299^*^' *^°'"^'^P* legislation or the judiciary, contracts in general in restraint of trade, contracts to evade or oppose the revenue laws of another coimtry, wagering contracts, contracts of maintenance or champerty. COTJRT DECISIONS. Brown v. Jacobs Pharmacy Co., 115 Ga., 429 ; 57 L. K. A., 547. Central of Ga. Ey. Co. v. Collins, 40 Ga., 582. Dady v. Georgia & A. Ry., 112 Fed., 838. State V. Cen. of Ga. Ry. Co., 109 Ga., 716. Trust Company of Ga. ■;;. State, 109 Ga., 736, IDAHO. CONSTITU TiON. Art. XI., Sec. 18. No incorporated company nor any association of persons or stock company, in the State of Idaho, shall directly or indirectly combine or make any contract with any other incorporated company, foreign or domestic, through the stockholders or the trustees or as- signees of such stockholders in any manner whatsoever, for the purpose of fixing the price or regulating the pro- duction of any article of commerce or of the produce of the soil or of consumption by the people; and that the legislature be required to pass laws for the enforcement thereof, by adequate penalties, to the extent, if necessary for that purpose of the forfeiture of their property and franchise. Statutes (Acts 1909). Section 1. It shall be unlawful for any incorporated company, association of persons or stock company in this state, directly or indirectly to combine or make any con- tract with any incorporated company foreign or domes- tic, through their stockholders, or the trustees or as- signees of such stockholders, or in any manner whatso- ever, for the purpose of fixing the price or regulating the production of any article' of commerce or of produce of the soil, or of consumption by the people. (An act to prohibit combinations in restraint of trade and to pro- vide punishment for violations thereof, approved March II, 1909; L. 1909, p. 297.) Sec. 2. A violation of the provisions of Section 1 of this Act shall constitute a misdemeanor and be pun- ished by a fine of not exceeding Five Thousand Dollars or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment. (Id., Sec. 2.) Sec. 3. If the violation of Section 1 of this Act is com- mitted by an association of persons, or by a stock com- pany, all of the persons forming such association or being 85 86 LAWS ON TEUSTS AND MONOPOLIES. members, of such stock company shall be equally liable and punishable as provided by Section 2 hereof, and if the offense is committed by a corporation, the directors of said corporation shall be held personally liable and pun- ishable as provided by Section 2, and in addition thereto the court may impose against said corporation a fine not exceeding Five Thousand Dollars, and may declare its franchise forfeited. (Id., Sec. 3.) ANTI-TRUST ACT OF 1911. Section 1. That every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce, within this state, is hereby declared to be illegal. Every person who shall make any such con- tract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and on convic- tion thereof, shall be punished by fine not exceeding five thousand dollars ($5,000) or by imprisonment not ex- ceeding one (1) year, or by both such punishments, in the discretion of the court. Sec. 2. That every person who shall monopolize, or at- tempt to monopolize or combine, or conspire with any other person or persons, to monopolize any part of the t^ade or commerce, within this state, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five thousand dollars ($5,000) or by imprisonment not exceeding one (1) year, or by both said punishments, in the discretion of the court. Sec. 3. That any property owned under any contract or by any combination, or pursuant to any conspiracy (and being the subject thereof), mentioned in the fore- going sections of this act, shall be forfeited to the state. Sec. 4. That every person, corporation, joint stock company, or other association, engaged in business within this state, who shall enter into any contract, combination or conspiracy, or who shall give any direction or author- ity to do any act, for the purpose of driving out of busi- ness any other person engaged therein, or who for such purpose shall in the course of such business sell any ar- ticle or product at less than its fair market value, or at a less price than it is accustomed to demand or receive therefor in any other place under like conditions ; or who IDAHO. 87 shall sell any article upon a condition, contract or under- standing that it shall not be sold again by the purchaser, or restrain such sale by the purchaser, shall be deemed guilty of a misdemeanor and on conviction thereof, shall be punished by a fine not exceeding five thousand dollars ($5,000) or by imprisonment not exceeding one (1) year, or by both said punishments, in the discretion of the court. Sec. 5. That all the books of record and papers of every corporation, joint stock company, or other associa- tion, engaged in business within this state shall be sub- ject to inspection by the attorney-general of this state, or by any agent he may designate for that purpose, and such corporation, joint stock company, or other association shall, at such times as he shall prescribe, make such re- turns duly verified by an officer of such corporation, joint stock company or association, as shall be by him pre- scribed either by general regulations or by special direc- tion. Sec. 6. That any president, director, treasurer, officer, corporator, copartner, associate or agent of such corpo- ration, joint stock company or other association, who shall in its behalf do anything by this act prohibited to such corporation, joint stock company, or other associa- tion, or who shall support, vote for, aid and abet, or take part in doing such action by said corporation, joint stock company, or other association, or any instrumentality thereof, shall be liable to the penalties by this act pro- vided. Sec. 1. That any corporation, joint stock company, or other association that shall have been twice adjudged to have violated the provisions of this act by the final judg- ment of any court having jurisdiction of -the question in any civil suit or proceeding in which said corporation, joint stock company, or other association shall have been a party, who shall thereafter violate this act, or who shall fail to make the returns herein required, at the time specified, shall no longer be allowed to engage in busi- ness within this state; provided, that such prohibition shall only be enforced after such corporation, joint stock company or other association shall have been enjoined against further engaging in such business, on an infor- mation or suit brought in a court of competent jurisdie- tion, by the attorney-general in behalf of this state. It 88 LAWS ON TETJSTS AND MONOPOLIES. shall be the duty of the attorney-general in such case, unless he shall be satisfied that such corporation, joint stock company or other association has desisted and ab- stained and will in future desist and abstain from such violation, to enforce the provision by proceeding, either by information or by indictment, as he may in his discre- tion think best. Any corporation, joint stock company or other association which shall be charged with violating this act, and any president, director, treasurer, officer or agent thereof, may be joined as a party in any proceed- ing, civil or criminal, to enforce this act. If in the judg- ment of the attorney-general, such corporation, joint stock company or other association against which any civil proceeding may be instituted by one on which the public is so depending that the interruption of its busi- ness will cause serious public loss or inconvenience, he may in his discretion, refrain from proceeding to obtain a decree which will absolutely prevent the continuance of such business and may apply for a limited or conditional decree, or one to take effect at a future day, as the public interests shall seem to require. And if, in the judgment of the court before whom such proceeding may be pend- ing, the interruption of the business of the defendant corporation, joint stock company or other association, will cause such serious public loss or inconvenience, the court may decline to enter an absolute decree enjoining it against proceeding with its business, and may enter a modified or conditional decree, or such decree to take effect at a future time, as justice shall require. The court may also in its discretion, enjoin such officers or agents or servants of such corporation, joint stock com- pany or other association from continuing in its service, and enjoin any- such corporation, joint stock company, or other association from continuing their employment therein, as the case shall seem to require. Sec. 8. That any corporation, joint stock company or other association, and any president, director, treasurer, officer, corporation, co-partner, associate or agent thereof, who shall in its behalf, after the first day of January in the year 1912 engage in such business in violation of this act, shall for each offense, in addition to such penalty for contempt as the court in case of disobedience to its lawful order may impose, be punished by a fine not exceeding five thousand dollars ($5,000) or by imprisonment not IDAHO. 89 exceeding one (1) year, or by both said punishments, in the discretion of the court. Sec. 9. That every president, treasurer, general man- ager, agent or other person usually exercising the powers of such officers of any corporation, joint stock company, or other association, who has himself, in its behalf, vio- lated, united to violate, or voted for or consented to the violation of any of the provisions of this act, shall there- after be personally liable for all the debts and obligations of any such corporation, joint stock company, or other association, created while such person holds such office or agency, whether under the same or subsequent elections or appointments. Sec. 10. That it shall be unlawful for any person or persons to offer, grant or give, or to solicit, accept or re- ceive any rebate, concession, or service in respect of the transportation of any property within this state by any common carrier, whereby any such property shall, by any device whatever, be transported at a less rate than named in the tariffs published, and filed by such carrier, as is required by law, or charged others for like service. Every person who shall offer, grant, or give or solicit, accept or receive any such rebate, concession or service shall be deemed guilty of a misdemeanor, and on conviction there- of shall be punished by a fine of not less than five thou- sand dollars ($5,000). Sec. 11. That if any joint stock company, corporation or combination or any agent thereof, shall solicit, accept or receive any such rebate, concession or service as is hereinabove described to be -unlawful, it shall be unlaw- ful thereafter to transport within this state any article owned or controlled by such company, corporation or combination or produced or manufactured by it, by whomsoever the same may be owned or controlled. If any such joint stock company, corporation or combi- nation, shall offer, grant or give any special prices, in- ducements or advantages for the sale of articles produced, manufactured, owned or controlled by it to purchasers in any particular locality in order to restrict or destroy com- petition in that locality in the sale of such articles, it shall be unlawful thereafter to transport within this state any article owned or controlled by it or produced or manufac- tured by it, by whomsoever the same may be owned or controlled; provided, however, that the prohibition im- 90 LAWS ON TRTTSTS AND MONOPOLIES. posed under this section sliall not apply to any article purchased bona fide before decree made in pursuance hereof against the joint stock company, corporation or combination, producing, manufacturing, or theretofore owning or controlling the same; and provided further, that even after decree any such article may be relieved from the prohibition imposed under this section, if the owner thereof shall show to the satisfaction of the court having jurisdiction of the matter, hereinafter provided, that such articles were purchased, bona fide, without no- tice, and within thirty (30) days after the entry of such decree. Any transportation company,' and any officer, agent or representative thereof, knowingly concerned in the transportation of articles within this state, contrary to the prohibition of this section, shall be punished by a fine of not less than five thousand dollars ($5,000). Sec. 12. That the several courts of record of this state having equity jurisdiction are hereby invested with juris- diction to prevent and restrain all violations of this act, and especially the offering, granting, giving, soliciting, accepting or receiving any such rebate, concession, or serv- ice by any person or persons ; and to prevent or restrain any such joint stock company, corporation or combination, who shall have solicited, accepted or received any such re- bate, concession or service, or who shall have offered, granted or given any special prices, inducements or advan- tages in order to restrict or destroy competition in particu- lar localities from engaging in commerce within this state. Such proceedings may be by way of petition setting forth the cause of action and prayijig that the acts hereby made unlawful shall be enjoined or otherwise prohibited. When the parties complained of shall be duly notified of such petition, the court shall proceed as soon as may be to the hearing and determination of the case, and upon such petition and before final decree the court may at any time make such temporary restraining order or prohibi- tion as shall be deemed just. The court may retain juris- diction of the cause after the decree, for the purpose of such subsequent modification of the same as may be made to appear equitable and just in the premises. Sec. 13. That whenever it shall appear to the court before which any civil proceedings under this act shall be pending, that the ends of justice require that other par- ties shall be brought before the court, the court may cause IDAHO. 91 them to be summoned, whether they reside in the county where the court is held or not, and subpoenas to that end may be served in any county by the sheriff thereof. Sec. 14. That any person who shall be injured in his business or property by any other person or persons by reason of anything forbidden or declared to be unlawful by this act may sue therefor in any court of record in this state in the county in which the defendant or de- fendants reside or are found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained and the costs of suit, including a reasonable attorney's fee. Sec. 15. That the word " person " or " persons " as used in the sections of this act, shall be deemed to include all corporations, associations, combinations or concerns whatsoever. Sec. 16. That in any suit in equity brought in any court of this state under this act wherein the state is complain- ant, the attorney-general may file with the clerk of such court a certificate that, in his opinion, the case is of gen- eral public importance, a copy of which shall be immedi- ately furnished by such clerk to the judge of the court in which the case is pending. Thereupon such case shall be given precedence over others and in every way expedited, and be assigned for hearing at the earliest practicable day. An appeal from the final decree of the court will lie only to the supreme court. Sec. 17. That in all prosecutions, hearing and proceed- ings under the provisions of this act, whether civil or criminal, no person shall be excused from the attending and testifying or from producing books, papers, con- tracts, agreements and documents before the courts of this state, or in obedience to the subpoena of the same, on the ground or for the reason that the testimony or evi- dence, documentary or otherwise, required by him may tend to incriminate him or subject him to a penalty or forfeiture. Any person who shall neglect or refuse to make returns, attend and testify or answer any lawful requirement hereinbefore provided for, or produce books, papers, contracts, agreements and documents if in his custody, control or power to do so, in obedience to the subpoenas of the court, or lawful requirements of the at- torney-general, shall be deemed guilty of a misdemeanor and upon conviction thereof by a court of competent 92 LAWS ON TBUSTS AND MONOPOLIES. jurisdiction shall be punished by a fine not less than five hundred dollars ($500) nor more than five thousand dol- lars ($5,000). That whoever knowingly swears to a re- turn or report required by this act that is false in any material particular, or knowingly swears to an answer to any of the requirements of this act, that is false, in any material particular, shall be deemed guilty of perjury and punished as provided by the laws of this state in reference to perjury. Whoever shall knowingly prepare, or cause to be pre- pared a report, return or answer required by this act that is false, as aforesaid, shall be guilty of subornation of perjury and punished as provided by law. Sec. 18. That there is hereby appropriated out of any money in the treasury not otherwise appropriated to be expended under the direction of the governor and attor- ney-general of this state, the sum of one thousand dollars ($1,000) for the enforcement of the provisions of this act in the employment of special counsel and agents by the governor and attorney-general to conduct proceed- ings, suits and prosecutions under this act, in the courts of this state. It is hereby made the duty of the attorney- general, and the county attorneys of the state under di- rection of the attorney-general, to institute and prose- cute such proceedings as may be necessary to carry into effect all of the provisions of this act ; provided, that no person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, mat- ter or thing concerning which he may testify or produce evidence, documentary or otherwise, or any proceedings, suit or prosecution under this act ; provided, further, that no person testifying shall be exempt from prosecution or punishment for perjury committed in so testifying. Approved March 10th, 1911. (L. 1911, c. 215, p. 688.) ILLINOIS. Statutes (Acts 1907). If any corporation organized under the laws of this or any other state or country for transacting or conducting any kind of business in this state, or any partnership or individual or other association of persons whosoever, shall create, enter into, become a member of or a party to any pool, trust, agreement, combination, confedera- tion or understanding with any other corporation, part- nership, individual or any other person or association of persons, to regulate or fix the price of any article of mer- chandise or commodity, or shall enter into, become a member of or party to any pool, agreement, contract, combination or confederation to fix or limit the amount or quantity of any article, commodity or merchandise to be manufactured, mined, produced or sold in this state, such corporation, partnership, or individual or other association of persons shall be deemed and adjudged guilty of a con- spiracy to defraud, and be subject to indictment and pun- ishment as provided in this act; provided, however, that in the mining, manufacture or production of articles of mer- chandise, the cost of which is mainly made up of wages, it shall not be unlawful for persons, firms or corpora- tions doing business in this state to enter into joint 9,r- rangements of any sort, the principal object or effect of which is to maintain or increase wages. (Act of June 11, 1891 ; Laws 1891, p. 206, as amended to 1907, Sec. 1.) It shall not be lawful for any corporation to issue or to own trust certificates, or for any corporation, agent, offi- cer Qr employees, or the directors or stockholders of any corporation to enter into any combination, contract or agreement with any person or persons, corporations or cor- porations, or with any stockholder or director thereof, the purpose and effect of which combination, contract or agreement shall be to place the management or control of such combination or combinations, or the manufac- tured product thereof, in the hands of any trustee or trus- tees, with the intent to limit or fix the price or lessen 93 94 LAWS ON TRUSTS AND MONOPOLIES. the production and sale of any article of commerce, use or consumption, or "to prevent, restrict or diminish the manufacture or output of any such article. (Act supra, Sec. 2.) If a corporation or a company, firm or association, shall ' be found guilty of a violation of this act, it shall be pun- ished by a fine in any sum not less than five hundred dol- lars ($500) nor more than two thousand dollars ($2,000) for the first offense; and for the second offense not less than two thousand dollars ($2,000) nor more than five thousand dollars ($5,000) ; and for the third offense not less than five thousand dollars ($5,000) nor more than ten thousand dollars ($10,000) , and for every subsequent of- fense and conviction thereof, shall be liable to a fine of fifteen thousand dollars ($15,000) ; provided, that in aU cases under this act either party shall have the right of trial by jury. (Act supra. Sec. 3.) Any president, manager, director or other officer or agent or receiver of any corporation, company, firm or association, or any member of any company, firm- or asso- ciation, or any individual found guilty of a violation of the first section of this act, may be punished by a fine of not less than two hundred dollars ($200), nor to exceed one thousand dollars ($1,000) , or be punished by confine- ment in the county jail not to exceed one year, or both, in the discretion of the court before which such conviction may be had. (Act supra, Sec. 4.) Any contract or agreement in violation of any pro- vision of the preceding sections of this act, shall be abso- lutely void. (Act supra, Sec. 6.) Any purchaser of any article or commodity from any individual, company or corporation transacting business contrary to any provision of the preceding sections of this act, shall not be liable for the price or payment of such article or commodity, and may plead this act as a defense to any suit for such price or payment. (Act supra, Sec. 6.) The fines hereinbefore provided for may be recovered in an action of debt, in the name of the people of the state of Illinois. If, upon the trial of any cause insti- tuted under this act to recover the penalties as provided for in section 3, the jury shall find for the people, and that the defendant has been before convicted of a viola- tion of the provisions of this act, they shall return such finding with their verdict, stating the number of times ILLINOIS. 95 they find defendant so convicted, and shall assess and re- turn with their verdict the amount of the fine to be im- posed upon the defandant in accordance with said section 3 ; provided, that in all cases under the provisions of this act, a preponderance of evidence in favor of the people shall be sufficient to authorize a verdict and judgment for the people. (Act supra. Sec. 7.) It shall be the duty of the secretary of state, on or about the first day of September of each year, to address to the president, secretary or treasurer of each incorpo- rated company doing business in this state, whose post- office address is known or may be ascertained, a letter of inquiry as to whether the said corporation has all or any part of its business or interest in or with any trust, combi- nation or association of persons or stockholders, as named in the preceding provisions of this act, and to require an answer, under oath, of the president, secretary or treas- urer, or any director of said company. A form of affi- davit shall be enclosed in said letter or inquiry, as fol- lows: AFFIDAVIT, State of Illinois, County of , ss. I, , do solemnly swear that I am the (president, secretary, treasurer or director) of the corporation known and styled duly incorporated under the laws of , on the day of , 18 , and now transacting or conducting business in the state of Illinois, and that I am duly authorized to represent said corporation in the making of this affidavit; and I do further solemnly swear that the said known and styled as aforesaid, has not, since the day of ^ (naming the day upon which this act takes effect), cre- ated, entered into or become a member of, or a party to, and was not, on the day of nor at any day since that date, and is not now a member of or a party to, any pool, trust, agreement, combination, con- federation or understanding with any other corporation, partnership, individual, or any other person or associa- tion of persons to regulate or fix the price of any article of merchandise or commodity; and that it has not en- tered into or become a member of, or a party to, any pool, trust, agreement, cqntract, combinatioQ or confederation 98 LAWS ON TRUSTS AJSU MONOPOLIES. It shall be the duty of the prosecuting attorneys in their respective jurisdictions, and the attorney-general, to enforce the foregoing provisions of this act, and any pros- ecuting attorney of any county, securing a conviction under the provisions of this act, shall be entitled to such fee or salary as by law he is allowed for such prosecution. When there is a conviction under this act, the informer shall be entitled to one-fifth of the fine recovered, which shall be paid him when the same is collected. All fines recovered under the provisions of this act shall be paid into the county treasury of the county in which the suit is tried, by the jDcrson collecting the same, in the manner now provided by law, to be used for county purposes. (Act supra, Sec. 8.) TRUSTS AND COMBINES (aCT 1893). (Held unconstitutional. See below.) AN ACT To define trusts and conspiracies against trade, declar- ing contracts in violation of the provisions of this act void, and making certain acts in violation thereof misdemeanors, and pre- scribing the punishment therefor and matters connected there- with. Sec. 1. Be it enacted hy^ the People of the State of _ Illinois, represented in General Assembly, That a trust is a combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons, or of two or more of them for either, any or all of the fol- lowing purposes: First — To create or carry out restric- tions in trade. Second — To limit or reduce the produc- tion, or increase or reduce the price of merchandise or commodities. Third — To prevent competition in manu- facture, making, transportation, sale or purchase of mer- chandise, produce or commodities. Fourth — To fix at any standard or figure, whereby its price to the public shall be in any manner controlled or established, upon any article or commodity of merchandise, produce or manufacture intended for sale, use or consumption in this state ; or to establish any pretended agency whereby the sale of any such article or commodity shall be covered up and made to appear to be for the original vendor, for a like purpose or purposes, and to enable such original vendor or manufacturer to control the wholesale or retail price of any such article or commodity after the title to ILLINOIS. 99 such article or commodity shall have passed from such -vendor or manufacturer. Fifth— To make or enter into, or examine or carry out any contract, obligation or agree- ment of any kind or description by which they shall bind or have bound themselves not to sell, dispose of, or trans- port any article or commodity, or article of trade, use, merchandise, commerce or consumption below a common standard figure, or card, or list price, or by which they shall agree in any manner to keep the price of such article, commodity or transportation at a fixed or grad- uated figure, or by which they shall in any manner estab- lish or settle the price of any article or commodity or transportation between them or themselves and others to preclude a free and unrestricted competition among themselves or others in the sale or transportation of any such article or commodity, or by which they shall agree to pool, combine or unite any interest they may have in connection with the sale or transportation of any such article or commodity that its price might in any manner be affected. Sec. 2. That any corporation holding a charter under- the laws of this state which shall violate any of the pro- visions of this act shall thereby forfeit its charter and franchise, and its corporate existence shall cease and determine. Sec. 3. For a violation of any of the provisions of this act by any corporation mentioned herein it shall be the duty of the attorney-general or prosecuting attorney, upon his own motion, tENCE. Sec. 4612. But when the matter sought to be elicited would tend to render him criminally liable, or to expose him to public ignominy, he is not cpmpelled to answer, except as provided in the next section. But in prosecu- tions against gaming, betting, lotteries, dealing in op- tions, creating, entering into or becoming a member of, or a party to any pool, trust, agreement, contract, com- bination, confederation or understanding with any other corporation, partnership, association or individual to regulate or fix the price of any article of merchandise or commodity or to fix or limit the amount or quantity of any article, commodity or merchandise to be manufac- tured, mined, produced or sold in this state, and keeping gambling houses, or rooms for illegal use or disposal of intoxicating liquors, no witness shall be excused from giving testimony upon the ground that his testimony would tend to render him criminally liable or expose him to public ignominy ; but any matter so elicited shall not be used against him, and said witness shall not be prosecuted for any crime connected with or growing out of the act on which the prosecution is based in the cause in which his evidence is used for the state, under the provisions of this section. (As amended by act April COTJET DECISIONS. Beechley v. MuMlle et al., 102 la., 602; 70 N. W. Eep., 107; 71 N. W. 428. Chapin v. Brown, 83 Iowa, 156. Dorn V. Cooper, 117 N. W., 1. Wilson V. Morse, 117 Iowa, 681;, 91 N. W., 823. illustrative" cases. ASSOCIATION OF GROCEETMEN (lOWA, 189l). The grocerymen in a town, in order to avoid a trade in butter which was burdensome, agreed not to buy any butter or take it in trade except for use in their own fam- ilies, so as to throw the business into the hands of one man who dealt in butter exclusively. The agreement was held invaHd, because in restraint of trade and tending to create a monopoly. (Chapin v. Brown, 83 Iowa, 156.) KANSAS. Statutes. ACT OF 1887. 1. That it shall be unlawful for any grain dealer or grain dealers, partnership, company, corporation or asso- ciation of grain dealers, or any other person or persons, partnership, company, corporation, or association, to enter into any agreement, contract or combination with any other grain dealer or grain dealers, partnership, com- pany, corporation or association of grain dealers, or any other person or persons, partnership, company, corpora- tion or association, for the pooling of prices of different and competing dealers and buyers, or to divide between them the aggregate or net proceeds of the earnings of such dealers and buyers, or any portion thereof, or for fixing the price which any grain dealer or grain dealers, partnerships, company, corporation or association of grain dealers, or any other person or persons, partner- ship, company, corporation or association, shall pay for grain, hogs, cattle, or stock of any kind or nature what- ever; and in case of any agreement, contract or combi- nation for such pooling of prices of different and com- peting dealers and buyers, or to divide between them the aggregate or net proceeds of the earnings of such dealers and buyers, or any portion thereof, or for fixing the price which any grain dealer or grain dealers, partnership, company, corporation or association of grain dealers, or any other person or persons, partnership, company, cor- poration or association, shall pay for grain, hogs, cattle, or stock of any kind or nature whatever, each day of its continuance shall be deemed a separate offense. (L. 1887, c. 175, Sec. 1; G. S., Sec. 5182.) 2. That in case any grain dealer or dealers, partner- ship, company, corporation or association of grain deal- ers, or any person or persons, partnership, company, cor- poration or association subject to the provisions of this act, shall do or cause to be done or permit to be done any 117 118 LAWS ON TRUSTS AND MONOPOLIES. act, matter or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter or thing in this act required to be done, such grain dealer or grain dealers, partnership, company, corporation or association of gr^in dealers, or any other person or persons, partner- ship, company, corporation or association, shall be liable to the person or persons injured thereby to the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as a part of the costs in the case ; and in any such action brought for the recovery of damages the court before whom the same shall be pend- ing may compel any grain dealer or grain dealers, part- nership, company, corporation or association of grain dealers, or any person or persons, partnership, company, corporation or association subject to the provisions of this act, or any director, officer, receiver, trustee, agent, employe, or clerk of them or either of them, defendant in such suit, to attend, appear and testify in such case, and may compel the production of the books and papers of such grain dealer or grain dealers, partnership, company, corporation or association of grain dealers, or any other person or persons, partnership, company, corporation or association party to such suit. The claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying, but such evidence or testimony shall not be used against such person in the trial of any criminal pro- ceeding. (Id., Sec. 2; G. S., Sec. 5183.) 3. That any grain dealer or grain dealers, partner- ship, company, or corporation or association of grain dealers, or any other person or persons, partnership, com- pany, corporation or association subject to the provisions of this act, or any director, officer, or any receiver, trustee, clerk, or lessee or agent, or person acting for or employed by them or either of them, who alone or with any other partnership, company, corporation, association, person or party, shall wilfully do or cause to be done or shall wil- fully suffer to permit to be done any act, matter or thing in this act prohibited or declared to be unlawful, or who shall aid or abet therein, or shall wilfully omit or fail to do any act, matter or thing in this act required to be done, or shall cause or willingly suffer or permit any act, KANSAS. 119 matter or thing so directed or required by this act to be done, not to be so done, or shall aid or abet such omission or failure, or shall be guilty of any infraction of this act., or shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall upon conviction thereof be fined in any sum not exceeding one thousand dollars, or impris- onment in the jail of the county not exceeding six months, or both, in the discretion of the court ; and shall moreover be liable to the suit of the party injured or damaged. (Id., Sec. 3; G. S., Sec. 5184.) ACT or 18 89. 1. That all arrangements, contracts, agreements, trusts, or combinations between persons or corporations made with a view or which tend to prevent full and free com- petition in the "importation, transportation or sale of articles imported into this state, or in the product, manu- facture or sale of articles of domestic growth or product of domestic raw material, or for the loan or use of money, or to fix attorneys' or doctors' fees, and all arrangements, contracts, agreements, trusts or combinations between persons or corporations, designed or which tend to ad- vance, reduce or control the price or the cost to the pro- ducer or to the consumer of any such products or articles, or to control the cost or rate of insurance, or which tend to advance or control the rate of interest for the loan or use of money to the borrower, or any other services, are hereby declared to be against public policy, unlawful and void. (L. 1889, c. 257, Sec. 1 ; G. S., Sec. 5185.) 2. It shall not be lawful for any corporation to issue or to own trust certificates, other than the regularly and lawfully authorized stock thereof, or for any corporation, agent, officer or employes, or the directors or stockholders of any corporation, to enter into any combination, con- tract or agreement with any person or persons, corpora- tion or corporations, or with any stockholder or director thereof, the purpose and effect of which combination, contract or agreement shall be to place the management or control of such combination or combinations, or the manufactured product thereof, in the hands of any trus- tee or trustees, with the intent to limit or fix the price or lessen the production and sale of any article of commerce, use or consumption, or to prevent, restrict or diminish 120 LAWS ON TRUSTS AND MONOPOLIES. the manufacture or output of any such article. (Id., Sec. 2;G.S., Sec. 5186.) 3. That all persons entering into any such arrange- ment, contract, agreement, trust or combination, or who shall after the passage of this act attempt to carry out or act under any such arrangement, contract, agreement, trust or combination described in section one or two of this act, either on his own account or as agent or attorney for another, or as an officer, agent or stockholder or any corporation, or as a trustee, committee, or in any capacity whatever, shall be guilty of a misdemeanor, and on con- viction thereof shall be subject to a fine of not less than one hundred dollars and not more than one thousand dol- lars, and to imprisonment not less than thirty days and not more than six months, or to both such fine and impris- onment, in the discretion of the court. (Id., Sec. 3; G. S., Sec. 5187.) 4. That any person or corporation injured or dam- aged by any such arrangement, contract, agreement, trust or combination, described in section one or two of this act, may sue for and recover in any court of competent jurisdiction in this state, of any person or corporation, the full consideration or sum paid by him for any goods, wares, merchandise and articles included in or advanced or controlled in price by said combination, or the full amount of money so borrowed. (Id., Sec. 4; G. S., Sec. 5188.) 5. That when an action at law or suit in equity shall be commenced in any court of this state, it shall be lawful in the defense thereof to plead in bar or in abatement that the plaintiff or any other person interested in the prosecution of the case is a member or agent of an un- lawful combination as described in section one or two of this act, or that the cause of action grows out of such com- bination, or out of some business or transaction thereof. (Id., Sec. 5; G. S., Sec. 5189.) 6. That the purchase, sale or manufacture of any goods, wares, merchandise or other commodities in this state by any person or corporation who has entered into any such arrangements, contracts, agreements, trusts or combina- tions in any other state or territory, as described in sec- tions one or two of this act, or the purchase, sale or man- ufacture of any such articles by any agent or attorney for such person, or as an agent, officer or stock broker of any such corporation, as a trustee, committee, or in any KANSAS. 121 capacity whatever, shall constitute a violation of this act, and shall subject the offender to the aforesaid liabilities and penalties. (Id., Sec. 6; G. S., Sec. 5190.) 7. It shall be the duty of the county attorneys to dili- gently prosecute any and all persons violating any of the provisions of this act in their respective counties. If any county attorney shall fail, neglect or refuse to faith- fully perform any duty imposed upon him by this act, he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than one hundred dollars nor more than five hundred dollars, and be imprisoned in the county jail not less than ten days nor more than ninety days; and such conviction shall operate as a forfeiture of his office, and thp court before whom such conviction may be had shall order and adjudge such forfeiture of office, in addition to the fine imposed as herein provided. And whenever the county attorney shall be unable or shall neglect or refuse to enforce the provisions of this act in his county, or for any reason whatever the provisions of this act shall not be enforced in any county, it shall be the duty of the at- torney-general to enforce the same in such county, and for that purpose he may appoint as many assistants as he shall see fit, and he and his assistants shall be author- ized to sign, verify and file all such complaints, informa- tions, petitions and papers as the county attorney is au- thorized to sign, verify or file, and to do and perform any act that the county attorney might lawfully do or per- form ; and for such services he or his assistants shall re- ceive the same fees that the county attorney would be entitled to for like services, to be taxed and collected in the same manner. (Id., Sec. T; G. S., Sec. 5191.) 8. It shall be the duty of all sheriffs, deputy sheriffs, constables, mayors, marshals, police judges and police officers of any city or town, having notice or knowledge of any violation of the provisions of this act, to notify the county attorney of the fact of such violation, and to fur- nish him the names of any witnesses within his knowl- edge by whom such violation can be proven. If any such officer shall fail to comply with the provisions of this sec- tion, he shall upon conviction be fined in any sum not less than one hundred dollars nor more than five hundred dollars ; and such conviction shall be a forfeiture of the office held by such person, and the court before whom such conviction is had shall, in addition to the imposition 122 LAWS ON TRUSTS AND MONOPOLIES. If the fine aforesaid, order and adjudge the forfeiture of his said office. (Id., Sec. 8 ; G. S., Sec. 5192.) 9. It shall be the duty of the district courts to instruct the grand juries especially as to the provisions of this act. (G. S., Sec. 5193. 1. A trust is a combination of capital, skill, or acts, by two or more persons, firms, corporations, or associa- tions of persons, or either two or more of them, for either, any or all of the following purposes : First. To create or carry out restrictions in trade or commerce, or aids to commerce, or to carry out restric- tions in the full and free pursuit of any business author- ized or permitted by the laws of this state. Secoiid. To increase or reduce the price of merchan- dise, produce or commodities, or to control the cost or rates of insurance. Third. To prevent competition in the manufacture, making, transportation, sale or purchase of mechandise, produce or commodities, or to prevent competition in aids to commerce. Fourth; To fix any standard or figure, whereby its price to the public shall be, in any manner, controlled or established, any article or commodity of merchandise, produce or commerce intended for sale, use or consump- tion in this state. Fifth. To make or enter into, or execute or carry out, any contract, obligation or agreement of any kind or de- scription by which they shall bind or have to bind them- selves not to sell, manufacture, dispose of or transport any article or commodity, or article of trade, use, mer- chandise, commerce or consumption below a common standard figure, or by which they shall agree in any manner to keep the price of such article, com- modity or transportation at a fixed or graded figure; or by which they shall in any manner establish or settle the price of any article or commodity or transpor- tation between them or themselves and others, to pre- clude a free and unrestricted competition among thenv- selves or others in transportation, sale or manufacture of * This act superseflea chapter 158 o( the Laws of 1891, which Is no longer In force. State v. Wilson, 84 Pac, 737. This act is constitu- tional. Smiley t. Kansas, 196 U. S., 447. KANSAS. 123 any such article or commodity; or by which they shall agree to pool, combine or unite any interest they may have in connection with the manufacture, sale or trans- portation of any such article or commodity, that its price may in any manner be affected. And any such combinations are hereby declared to be against public policy, unlawful and void. (L. 1897, c. 265, Sec. 1;G.S., Sec. 5142.) 2. All persons, companies or corporations within this state are hereby denied the right to form or to be in any manner interested, either directly or indirectly, as prin- cipal, agent, representative, consignee or otherwise, in any trust as defined in section one of this act. (Id., Sec. 2; G. S., Sec. 5143.) 3. Any corporation holding a charter under the laws of the state of Kansas which shall violate any of the pro- visions of this act shall thereby forfeit its charter and franchise, and its corporate existence shall cease and de- termine ; any any stockholder, director, officer, agent, rep- resentative or consignee of any such corporations shall be subject to the penalties herein prescribed. (Id., Sec. 3; G. S., Sec. 5144.) 4. For a violation of any of the provisions of this act by any corporation or any of its officers or agents men- tioned herein, it shall be the duty of the attorney-general of the state, or county attorney of any county in which said violation may occur, or either of them, upon his own motion, to institute an action in any court in this state having jurisdiction thereof for the forfeiture of the charter, rights and franchise of such corporation, and the dissolution of its corporate existence. (Id., Sec. 4; G. S., Sec. 5145.) 5. Every person, company or corporation within or without this state, their officers, agents, representatives or consignees, violating any of the provisions of this act within this state, are hereby denied the right and are hereby prohibited from doing any business within this state, and all persons, companies and corporations, their officers, agents, representatives and consignees within this state, are hereby denied the right to handle the goods of or in any manner deal with, directly or indirectly, any such person, company or corporation, their officers, agents, representatives, or consignees, and it shall be the duty of the attorney-general and the county attorney of any county in the state where any violation of this act 124 LAWS ON TBUSTS AND MONOPOLIES. be committed, or either of them, to enforce the provisions of this section by injunction or other proceeding; and all persons, companies and corporations, their oiRcers, agents, representatives or consignees, violating any of the provisions of this section, either directly or indi- rectly, or of abetting or aiding either directly or indi- rectly in any violation of any provisions of this section, shall be deemed guilty of a' misdemeanor, and shall be fined not less than one hundred dollars nor more than one thousand dollars, and confined in jail not less than thirty days nor more than six months, and shall forfeit not less than one hundred dollars for each and every day such violation may continue, which may be recovered in the name of the state of Kansas in any court of competent jurisdiction. (Id., Sec. 5; G. S., Sec. 5146.) 6. Each and every person, company or corporation, their officers, agents, representatives or consignees, who either directly or indirectly violate any of the provisions of this act shall be deemed guilty of a misdemeanor, and on conviction thereof shall be subject to a fine of not less than one hundred dollars nor more than one thousand dollars, and shall be imprisoned not less than thirty days nor more than six months, and in addition thereto, for each and every day thereafter that such violation shall be committed or continued, forfeit and pay the sum of one hundred dollars, which may be recovered in the name of the state of Kansas in any county where the offense is committed or where either of the offenders reside ; and it shall be the duty of the attorney-general of the state, or the county attorney of any county in the state, in which said violation shall occur, or either of them, to prosecute and enforce the provisions of this act. (Id., Sec. 6; G. S., Sec. 5147.) 7. Any contract or agreement in violation of any of the provisions of this act shall be absolutely void and not enforceable in any of the courts of this state ; and when any civil action shall be commenced in any court of this state it shall be lawful to plead in the defense thereof that the plaintiff or any other person interested in the prosecution of the case is at the time or has within one year next preceding the date of the commencement of any such action been guilty, either as principal, agent, repre- sentative, or consignee, directly or indirectly, of a viola- tion of any of the provisions of this act, or that the cause KANSAS. 125 of action grows out of any business transaction in viola- tion of this act. (Id., Sec. T ; G. S., Sec. 5148.) 8. That any person, firm, company or corporation that may be damaged by any such agreement, trusts or combi- nations described in sections one and two of this act, may sue for and recover in any court of competent jurisdic- tion in this state, of any person, company or corporation operating such trust or combination, such damages as they have sustained, together with a reasonable attorney- fee. (Id., Sec. 8; G.S., Sec. 5149.) 9. It shall be the duty of the attorney-general of the state and the county attorneys in their respective coun- ties to diligently prosecute any and all persons violating any of the provisions of this act ; and it shall be the duty of all state and county officials having notice and knowl- edge of any violation of the provisions of this act to notify the county attorney of their respective counties and the attorney-general of the state of the fact of such violation, and to furnish them with the names of any witnesses by whom such violations can be proved. If any such officer or officers shall fail to comply with the provisions of this section he shall upon conviction be fined in any sum not less than one hundred dollars nor more than one thousand dollars, and such conviction shall be a forfeiture of the office held by such person, and the court before whom such conviction is had shall, in addi tion to the imposition of the fine aforesaid, order and adjudge the forfeiture of his said office. (Id., Sec. 9; G. S., Sec. 5150.) 10. The several district courts of this state and the judges thereof shall have jurisdiction, and it shall be their duty, upon good cause shown and upon written ap- plication of the county attorney or the attorney-general, to cause to be issued by the clerk of said court subpoenas for such witnesses as may be named in the application of a county attorney or the attorney-general, and to cause the same to be served by the sheriff of the county where such subpoena is issued ; and such witnesses shall be com- pelled to appear before such court or judge at the time and place set forth in the subpoena, and shall be com- pelled to testify as to any knowledge they may have of the violations of any of the provisions of this act; and any witness who fails or refuses to attend and testify shall be punished as for contempt, as provided by law. 126 LAWS ON TRUSTS AND MONOPOLIES. Any person subpoenaed and examined shall not be liable to criminal prosecution for any violation of this act about which he may testify. Neither shall the evidence of any such witness be used against him in any criminal proceeding. The evidence of all witnesses so subpoenaed shall be taken down by the reporter of said court, and shall be transcribed and placed in the hands of the county attorney or the attorney -general, and he shall, in the proper courts, at once prosecute such violator or vio^ lators of this act as the testimony so taken shall disclose. Witnesses subpoenaed as provided for in this section shall be compelled to attend from any county in the state. (Id., Sec. 10; G. S., Sec. 5151.) 11. Nothing in this chapter shall be held or construed to affect any actions or prosecution which is now pend- ing under the provisions of any law now in existence in this state. (Id., Sec. 11; G. S., Sec. 5152.) ACT OF 1899. 1. If any person, company or corporation doing busi- ness in Kansas shall make any agreement, expressed or implied, or by any understanding or combination with any person, company or corporation within or without the state, by which any shipper of seeds, grains, hay or live stock is defrauded out of any portion of the net weight of any consignment or grain, seeds, hay, or live stock, all such agreements or combinations are hereby de- clared to be in restraint of trade, and any such person, company or corporation shall be deemed guilty of a mis- demeanor, and upon conviction shall be fined in the sum of not less than one hundred dollars and not exceeding one thousand dollars for each offense. (L. 1899, c. 293 Sec. 1; G. S., Sec. 6177.) 2. Every person, servant, agent or employe of any firm or corporation doing business within the state of Kansas that shall conspire or combine with any other persons, firm or corporation within or without the state for the purpose of monopolizing any line of business or shall conspire or combine for the purpose of preventing the producer of grain, seeds or live stock or hay, or the local buyer thereof, from shipping or marketing the same without the agency of any third person, firm or corpora- tion, shall be deemed guilty of a misdemeanor, and on conviction shall be fined in a sum not less than one thou- KANSAS. 127 sand dollars and not to exceed five thousand dollars for each offense. (Id., Sec. 2; G. S., Sec. 5178.) 3. Any person who shall as agent or employe of any person, firna or corporation, enter into an agreement, ex- pressed or implied, by which it is stipulated that grain, seeds or hay shall not be shipped by the producer or local buyer unless accompanied with warehouse receipts, or that the same shall in any manner be under the control of any warehouseman or agent as a condition precedent to the marketing of said grain, all such agreements shall be deemed and are hereby declared unlawful and in re- straint of trade, and the person entering into such agree- ment or combination shall be deemed guilty of a mis- demeanor, and upon conviction shall be fined in a sum not less than one thousand dollars and not more than five thousand dollars, or by imprisonment in the county jail not less than ninety days and not to exceed one year, or bj' both such fine and imprisonment, at the discretion of the court. (Id., Sec. 3 ; G. S., Sec. 5179.) 4. The several district courts and the supreme court of the state of Kansas are hereby vested with jurisdiction to prevent and restrain violators of this act, and it shall be duty of the attorney-general to enforce the provisions of this act, and such proceedings may be instituted by pe- tition, setting forth the cause of complaint, praying re- lief, verifying said petition by affidavit, and the court shall grant temporary restraining orders enjoining or prohibiting such violation till the final bearing of the case. Said restraining order shall be granted without bond. (Id., Sec. 4; G. S., Sec. 5180.) 5. Any person, firm or corporation that shall be in- jured in business or property by any other person, firm or corporation by reason of anything declared unlawful or in restraint of trade by this act, shall have a right of action against the person, firm or corporation violating the provisions of this act for threefold damages, includ- ing costs and reasonable attorneys' fees. (Id., Sec. 5; G. S., Sec. 5181.) ACT OF 1905. 1. Any person, firm, or corporation, foreign or do- mestic, doing business in the state of Kansas, and en- gaged in the production, manufacture or distribution of any commodity in general use, that shall intentionally, for the purpose of destroying competition, discriminate between different sections, communities or cities of this 128 LAWS ON TRUSTS AND MONOPOLIES. state, by selling such commodity at a lower rate in one section, community or city or any portion thereof than is charged for such commodity in another section, commu- nity, or city, after equalizing the distance from the point of production, manufacture or distribution and freight rates therefrom, shall be deemed guilty of unfair discrim- ination. (L. 1905, c. 2, Sec. 1; G. S., Sec. 6162.) 2. If complaint shall be made to the charter board of the state of Kansas that any corporation chartered in this state or authorized to do business therein is guilty of un- fair discrimination within the terms of this act, it shall be the duty of the charter board to institute an inquiry as to such discrimination, giving to the party complained against notice and reasonable opportunity to be heard, and if in the judgment of such charter board, or a ma- jority thereof, any corporation, foreign or domestic, shall have been guilty of unfair discrimination, within the terms of this act, the said charter board shall so find, and make a record of such fact upon the records of the char- ter board, and shall immediately forfeit the charter of such corporation, if it be a domestic corporation, or, if it be a foreign corporation, shall immediately forfeit the permit of such foreign corporation to do business in this state. (Id., Sec. 2; G. S., Sec. 5163.) 3. If after the revocation of such charter, in the case of a domestic corporation, or of its permit, if it be a for- eign corporation, any corporation shall continue or at- tempt to do business in the state of Kansas, it shall be the duty of the attorney-general, by a proper suit in the name of the state of Kansas, to oust such corporation from all business of every kind and character in said state of Kansas. (Id., Sec. 3; G. S., Sec. 5164.) 4. Any person, firm or corporation violating the pro- visions of this act, upon conviction thereof shall forfeit to the state of Kansas the sum of not less than two hun- dred dollars for each and every violation of this act; said sum to be recovered by a suit in the name of the state of Kansas in any court of competent jurisdiction, by the attorney-general. All sums collected under this act shall be credited to the permanent school fund of the state of Kansas. (Id., Sec. 4; G. S., Sec. 5165.) 5. Nothing in this act shall be construed as repealing any other act or part of an act, but the remedies herein provided shall be cumulative to all other remedies pro- vided by law. (Id., Sec. 5 ; G. S., Sec. 5166.) KANSAS. 129 ACT OF 1907. 1. That in all civil actions brought in the supreme court or in the district courts of this state for the pur- pose of enforcing the provisions of chapter 113a of the General Statutes of 1901, being an act entitled "An act defining and prohibiting trusts, providing procedure to enforce the provisions of this act, and providing penalties for violations of the provisions of this act " ; or article 13 of chapter 21 of said General Statutes of 1901, the same being composed of acts entitled as follows: "An act to prohibit grain dealers, partnerships, companies, corpora- tions or associations from combining or entering into any agreement or contract to pool or fix the price to be paid for grain, hogs, cattle, or stock of any kind whatever, and to provide punishment for violations of the same," "An act to declare unlawful trusts and combinations in re- straint of trade and products, and to provide penalties therefor," "An act prohibiting combinations to prevent competition among persons engaged in buying or selling live stock, and to provide penalties therefor," "An act to prohibit combinations in restraint of trade, declaring such combinations unlawful, and prescribing penalties for the violation of this act," whether such suits are for the purpose of ousting corporations, firms or associa- tions from transacting business in the state through or in pursuance of unlawful agreements and combinations in restraint of trade or to enjoin such unlawful combina- tions and agreements, the said court may on motion of either party require the opposing litigant to produce books or writings in his possession or under his power which may contain evidence pertinent to the issue, and may require the party to answer interrogatories filed in court with said motion for the discovery of facts material to the support or defense of the action; and if either of said parties fail to comply with such order of the court or judge, the court may, on motion, give judgment by default. (L. 1907, c. 259, Sec. 1 ; G. S., 5153.) 2. That the opposing party to whom the interroga- tories are propounded shall answer the said interrogato- ries explicitly, fully, and without evasion, and such an- swers shall be under oath ; provided, that no answers to such interrogatories shall be used in any criminal prose- cution against the party so answering, nor shall the per- son answering or producing such books or papers be 24427°— 14 9 130 LAWS ON TRUSTS AND MONOPOLIES. liable to criminal prosecution for any offense about which his answers or books and papers produced would be evi- dential. (Id., Sec. 2; G. S., Sec. 5154.) 3. That the motion of the party asking for the produc- tion of such books or papers, or filing such interrogatories, shall be supported by the affidavit of the interrogator or of his attorney that he has reason to believe that the party making the application will derive some material benefit in the action from the answers which he seeks if the answers are fairly made ; that it is not sought for the purpose of harassment, vexation, or delay; and that he has reason to believe and does believe that the party who is asked to produce suqh books or writings or to whom said interrogatories are addressed has knowledge of the facts sought to be discovered, and that the discovery of said facts is not as open to the party making the mo- tion or filing said interrogatories as they are to the party addressed or interrogated. (Id., Sec. 3; G. S., Sec. 6155.) 4. That the court or judge may grant the motion upon notice and it shall be sufficiently granted or allowed if the court or judge will indorse the motion itself with an en- try substantially as follows : "Allowed this day of 19__ A. B., Judge." (Id., Sec. 4; G. S., Sec. 5156.) 6. That upon the granting or allowance of said mo- tion, notice thereof shall be given to the party addressed or sought to be interrogated, and his acknowledgment of said notice will be sufficient if signed by himself or by his attorney of record. (Id., Sec. 5; G. S., Sec. 5157.) 6. That if the party required to produce the books and papers as provided by this act shall fail to produce them at the trial, without sufficient cause, the court may on mo- tion made give judgment against him by default. (Id., Sec. 6; G. S., Sec. 5158.) ACT or 1909. AN ACT Relating to unlawful monopolies, trusts and combinations in restraint of trade, providing additional penalties for the vio- lation of chapter 265 of the Laws of 1897, and providing for the better enforcement thereof. In addition to all other penalties and forfeitures now provided by law, each and every firm, person, corporation or association of persons who shall in any, manner violate KANSAS. 131 any of the provisions of chapter 265 of the Laws of 1897. which act relates to unlawful monopolies, trusts, conspira- cies and combinations in restraint of trade, shall for each and every day that such violations shall be committed or continued forfeit and pay the sum of one hundred dollars, which may be recovered in the name of the state of Kan- sas in any county where the offense is committed, or where any or either of the offenders reside, and it shall be the duty of the attorney-general to prosecute for the recovery of said penalties. It shall not be necessary to convict any firm, person, corporation or association of per- sons before commencing suit to recover the penalties pro- vided for in this section, but said penalties shall apply to any such firm, person, corporation or association whether they or any of them shall be prosecuted criminally or not ; provided, said penalty shall not accrue during the pend- ency of any actions under this act. (L. 1909, c. 261, Sec. 1; G. S., Sec. 5159.) Actions to recover said penalties may be joined with actions in quo warranto, injunctions or actions of any other nature brought for the purpose of ousting firms, corporations or associations from transacting business in this state because of the violations of any provision of chapter 265 of the Laws of 1897, and any court in which said action shall be brought shall have authority in such quo warranto, injunction or other suit, in addi- tion to the judgments now provided for by law, to render judgment for said penalties as herein provided. (Id., Sec. 2; G. S., Sec. 5160.) The rights and remedies given by this act shall be con- strued as cumulative of all other laws in force in this state, and shall not affect, change or repeal any other remedies or rights now existing in this state for the en- forcement, payment or collection of fines, penalties and forfeitures. (Id., Sec. 3; G. S., Sec. 5161.) COURT DECISIONS. Barton v. Mulvane, 59 Kan., 313, 52 Pac, 883. Crystal Ice Co. v. Wylie, 65 Kan., 104, 68 Pac, 1086. Greer v. Payne, i Kan. App., 153, 46 Pac, 190. Ee Pinkney, 47 Kan., 89, 27 Pac, 179. State V. Dreany, 65 Kan., 292, 69 Pac, 182. State V. Smiley, 66 Kan., 240, 67 L. E. A., 903, 69 Pac, 199. Aff'd in 196 U. S., 447. The State of Kansas v. Wm. C. Phipps et al., 50 Kans., 609, 18 L. E. A., 657. KENTUCKY. CONSTITUTION. Sec. 198. It shall be the duty of the general assembly from time to time, as necessity may require, to enact such laws as may be necessary to prevent all trusts, pools, combinations or other organizations from combining to depreciate below its real value any article, or to enhance the cost of any article above its real value. Statutes. (Act 1890.) That if any corporation organized under the laws of Kentucky, or under the laws of any other state or country, for transacting or conducting any kind of business in this state, or any partnership, company, firm or individual, or other association of persons, shall, create, establish, organize or enter into, or become a member of, or a party to, or in any way interested in, any pool, trust, combine, agreement, confederation or understanding with any other corporation, partnership, individual or person, or association of persons, for the purpose of regulating oi^ controlling or fixing the price of any merchandise, manu- factured articles or property of any kind, or shall enter into, become a member of, or party to, or in any way in- terested in, any pool, agreement, contract, imderstanding, combination or confederation, having for its object the fixing, or in any way limiting the amount or quantity of any article of property, commodity or merchandise to be produced or manufactured, mined, bought or sold, shall be deemed guilty of the crime of conspiracy, and pun- ished therefor as provided in the subsequent sections of this act. (Sec. 3915.) It shall not be lawful for any corporation to issue or to own, have or sell any trust certificates or stocks, or for any corporation's agent, officer or employee, agent or director, or any corporation to enter into, either verbally or in writing, any combinations, contract, agreement or 133 134 LAWS ON TRUSTS AND MONOPOLIES. understanding with any person or persons, corporation or corporations, or with any director, agent or officer thereof, the purpose or effect of which combination, con- tract, agreement or understanding would be to place the management, control or any part of the business of such combination or association, or the manufactured product thereof, in the hands or under the control, in whole or in part, of any trustee or trustees, or agents, or any person whatever, with the intent, or to have the effect to limit, fix, establish or change the price of the production or sale of any article of property or of commerce, or to pre- vent, restrict, or in any way diminish the manufacture or output of any such article or property. (Sec. 3916.) If any corporation, company, firm, partnership or per- son, or association of persons, shall, by court of com- petent jurisdiction, be found guilty of any violation of any of the provisions of this act, such guilty party shall be punished by a fine of not less than five hundred dol- lars, and not more than five thousand dollars. Any presi- dent, manager, director or other officer or agent, or re- ceiver of any corporation, company, firm, partnership or any corporation, company, firm or association, or mem- ber of any corporation, firm or association, or any mem- ber of any company, firm or other association, or any individual, found, by a court of competent jurisdiction, guilty of any violation of this act, shall be punished by a fine of not less than five hundred dollars nor more than five thousand dollars, or may be imprisoned in the county jail not less than six months nor more than twelve months, or may be both so fined and imprisoned in the discretion of the court or jury trying the case. (Sec. 3917.) Any contract or agreement or understanding in viola- tion of the provisions of the preceding sections of this act shall be null and void; and any purchasers of property or article, or of any commodity, from any individual, firm, company or corporation transacting business con- trary to the preceding sections of this act, shall not be liable for the price of payment of such article or com- modity or property, and may plead and rely on this act as a complete defense to any suit for such price of pay- ment. (Sec. 3918.) If any corporation created or organized by or under the laws of this state shall be indicted and convicted for any violation of any of the provisions of this act, such KENTUCKY. 136 indictment, trial and conviction in any court of com- petent jurisdiction shall have the effect to forfeit the charter of such corporation without any further proceed- ings on the subject of the forfeiture of its charter; but any corporation whose charter is so forfeited shall have the right of appeal as is provided in other cases, and the filing of the bond as is required by law shall suspend the judgment of forfeiture until same is passed upon by the court to which the case is appealed. (Sec. 3919.) It shall be the duty of the circuit judges, and other judges of similar jurisdiction in this state, to give the provisions of this act in charge to the grand juries at each term of their courts. (Sec. 3920.) The provisions of the Code of Practise regulating ap- peals in other cases shall apply to appeals under this act. (Sec. 3921.) [Chapter 117. Laws of Kentucky, 1906.] ' AN ACT Permitting persons to combine or pool their crops of wheat, tobacco and other products and sell same as a whole, and making contracts in pursuance thereof valid. Be it enacted iy the General Assembly of the Common- wealth of Kentucky: Section 1. It is hereby declared lawful for any number of persons to combine, unite or pool, any or all of the crops of wheat, tobacco, corn, oats, hay, or other farm products raised by them, for the purpose of classifying, grading, storing, holding, selling or disposing of same, either in parcels or as a whole, in order or for the pur- pose of obtaining a greater or higher price therefor than they might or could obtain or receive by selling said crops separately or individually. Sec. 2. That contracts or agreements made or entered into by persons with each other, the object or intent of which is to unite, pool or combine all or any of the crops of tobacco, wheat, corn, oats, hay, or other farm prod- ucts, raised by such persons, for the purpose of classi- fying, grading, storing, holding, selling or disposing of said crops, or any of them, either in parts or as a whole, in order, or for the purpose of obtaining a better or higher price therefor than could or might be obtained by selling said crops separately or individually, are hereby permitted, and shall not, because of any such combina- 1 Now questioned under the 14th amendment in case of Collins v, Kentucky, pending before Supreme Court of United States. 136 LAWS ON TEUSTS AND MONOPOLIES. tion or purpose of said persons, be declared illegal or invalid. Sec. 3. Such persons so entering into such agteement or contract as is set out in the foregoing sections, are hereby permitted to select an agent or agents through or by or with whom said parties so entering into such agreements may classify, grade, store, hold, sell or dis- pose of said crops, or any of them, and said agent or agents shall have the right to take, receive, hold, store, classify, grade, sell or dispose of said crops so placed in such agreement, as directed or authorized by their prin- cipal, for the purpose of accomplishing the object of such combination or agreement between such principals, and contracts and agreements entered into by such agent or agents for the purpose of classifying, grading, storing, holding, selling or disposing of said crops so combined, united or pooled, either in parcels or as a whole, are hereby permitted, and shall not, because of any such com- bination or purpose of such original agreement of such principals so entering into said combination, or of such agent or agents, be declared illegal or invalid. Sec. 4. Whereas, many persons of this Commonwealth now desire to combine their respective crops of tobacco, wheat, corn, oats, hay and other farm products, an emer- gency is now declared to exist which requires that this act should, and it shall, take effect from and after its passage and approval by the Governor. (Approved Mar. 21, 1906.) [Chapter 8. Laws of Kentucky, 1908.] * AN ACT To amend section 3 of an act of the General Assembly of Commonwealth of Kentucky, approved March 21, 1906, entitled "An act permitting persons to combine or pool their crops of wheat, tobacco and other products and sell same as a whole and making contracts In pursuance thereof valid, being Chapter 117 of the Acts of the General Assembly of the Com- monwealth of Kentucky for the year 1906." Be it enacted hy the General Assembly of the Oom/mon- wealth of Kentucky: Section 1. That section 3 of an act entitled, An act permitting persons to combine or pool their crops of wheat, tobacco and other products and sell same as a whole, and making contracts in pursuance thereof valid, approved March 21, 1906, being Chapter 117 of the acts of the General Assembly of the Commonwealth of Ken- 1 Now questioned under the 14tli amendment in case of Collins v. Kentucky, pending before Supreme Court of United States. KENTUCKY, 137 tucky for the year 1906, be and the same is hereby amended and re-enacted so as to read as follows : Such persons so entering into such an agreement or contract as is set out in the foregoing sections are hereby permitted to select an agent or agents through or by or with whom said parties so entering into such agreement may classify, grade, store, hold, sell, or dispose of said crop, or any of them, and said agent or agents shall have the right to take, receive, hold, store, classify, grade, sell or dispose of said crop so placed in said agreement, for the purpose of accomplishing the object of such combination or agreement between such principals, and contracts and agreements entered iiito by such agent or agents for the purpose of classifying, grading, storing, holding, selling or disposing of said crop so combined, united or pooled, either in parcel or as a whole, are hereby permitted, and shall not, because of any such combination or purpose of such original agreement of such principals so entering into said combination, or of such agept or agents, be de- clared illegal or invalid. All contracts heretofore made by any person or persons for the purposes set out in the foregoing sections are hereby declared valid, if otherwise legally binding on the parties. To prevent any breach or violation of any contract made for the purposes set out in the foregoing sections a restraining order and writ of injunction may be issued by proper officer, as pre- scribed in the Civil Code of Practice. For any breach or violation of any contract entered into for the purposes set out in the foregoing sections, the injured party may recover the damages sustained by him by reason of such violation of such contract of the person violating the same, and also of any person who shall in- duce or persuade another to violate such contract, which damages shall include the reasonable expense and attor- ney's fees incurred by the injured party in prosecuting an action to recover such damages, or to prevent a violation of such contract, if the party complaining shall succeed in doing so, which may be recovered in the same action or original proceeding. Said agent when so selected as herein provided shall have the sole right to sell said crop so pooled or combined, and it shall be unlawful for any owner of such crop to sell or dispose of same and for any person to knowingly purchase the same without the writ- ten consent of such agent, and upon conviction thereof he 138 LAWS ON TRUSTS AND MONOPOLIES. or they shall be fined in any sum or amount not exceed- ing $250.00 for each offense, to be fixed by the jury in their discretion. Sec. 2. Whekeas, many crops of tobacco and other products have been combined and pooled in this State, under contract and agreement entered into for the pur- poses set out in the above section, an emergency is now declared to exist, which requires that this act should and it shall take effect from and after its passage and ap- proval by the Governor. (Approved Mar. 13, 1908.) COUHT DECISIONS. Anderson v. Jett, etc., 89 Ky., 375. Brewster v. Miller et al., 101 Ky., 368 ; 38 L. E. A., 505. Commonwealth v. Grinstead, 108 Ky., 69. Commonwealth v. Hodges, 137 Ky., 233. Commonwealth v. International Harvester Company, 131 Ky., 551. Commonwealth v. International Harvester Company, 131 Ky., 571. Commonwealth v. International Harvester Company, 147 Ky., 564. International Harvester Company v. Commonwealth, 137 Ky., 551. International Harvester Company v. Commonwealth, 144 Ky., 403. Owen County Board of Control v. Brumback, 128 Ky., 137. ILLTJSTKATIVE CASES. COMBINATION OF STEAMBOAT OWNERS (KENTUCKY, 1889). Two owners of steamboats running in the Kentucky Eiver made an agreement to keep up rates and divide net profits to prevent ruinous competition and reduced rates. The contract was held void. (Anderson v. Jett, 89 Ky., 375.) LOUISIANA. Constitution. Art. 190. It shall be unlawful for persons or corpora- tions, or their legal representatives, to combiae or con- spire together, or to unite or pool their interests for the purpose of forcing up or down the price of any agricul- tural product or article of necessity, for speculative pur- poses; and the legislature shall pass laws to suppress it. Statutes. Act 86, 1890 : " That every contract, combination in the form of trust, or conspiracy, in restraint of trade or com- merce or to fix or limit the amount or quantity of any article, commodity or merchandise to be manufactured, mined, produced or sold in this state is hereby declared illegal. " Sec. 2. That eterj person who shall make any such contract, or engage in any such combination or conspir- acy, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by fine not exceed- ing five thousand dollars, or by imprisonment not exceed- ing one year, or by both of said punishments, in the dis- cretion of the court. " Sec. 3. That every person who shall monopolize, or attempt to monopolize or combine, or conspire with any other person or persons, to monopolize any part of the trade or commerce within the limits of this state, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.'' Act 90 of 1892 : " That after the passage of this act it shall be unlawful for any individual, firm, company, cor- poration or association to enter into, continue or main- tain any combination, agreement or arrangement of any kind, expressed or implied, with any other individual, 139 140 LAWS ON TRUSTS AND MONOPOLIES. ** firm, company, association or corporation, for any of the following purposes : First, to create or carry out restric- tions of trade ; second, to limit or reduce the production, or increase or reduce the price of merchandise, produce or commodities; third, to prevent competition in manu- facture, making, transportation, sale or purchase of mer- chandise, produce or commodities; fourth, to fix at any standard or figure, whereby its price shall be in any man- ner controlled or established, any article of merchandise, produce, commodity or commerce intended for consump- tion in this state ; fifth, to make or enter into or execute or carry out any contract, obligation or agreement of any kind or description by which they shall bind or have bound themselves not to sell, dispose of or transport any article or commodity or article of trade, use, merchandise, commerce or consumption below a common standard fig- ure, or by which they shall agree in any manner to keep the price of such article at a fixed or graduated figure, or by which they shall in any manner establish or settle the price of any article or commodity or transportation between them or themselves and others to preclude a free and unrestricted competition among themselves, or others, in the sale or transportation of any such article or com- modity, or by which they shall agree to pool, combine, or unite any interest they may have in connection With the sale or transportation of any such article or commodity that its price might in any manner be affected. " Sec. 2. That any corporation holding a charter un- der the laws of the state of Louisiana which shall be con- victed of a violation of the provisions of this act shall thereby forfeit its rights and franchises, and its cor- porate existence shall cease and determine, and it shall be the duty of the attorney-general of his own motion and without leave or orders of any court or judge to institute an action in the name of the state of Louisiana for the forfeiture of such rights and franchises and the dissolution of such corporate existence. " Sec. 3. That every foreign corporation, or any cor- poration organized under or pursuant to the laws of any state, who shall be convicted of a violation of the pro- visions of this act is hereby denied the right and pro- hibited from doing any business within this state, and it shall be the duty of the attorney-general to enforce this provision by injunction or other proceedings in the name of the state of Louisiana. LOUISIANA. 141 " Sec. 4. That any violation of either or all the pro- visions of this act shall be and is hereby declared a con- spiracy against trade, and any person who may be or who may become engaged in any such conspiracy or take part therein, or aid or advise in its commission, or who shall, as principal, manager, director or agent, knowingly carry out any of the stipulations, purposes, prices, rates or orders thereunder or in pursuance thereof, shall be punished by fine not less than one hundred dollars nor more than one thousand dollars, and by im- prisonment in the penitentiary not less than six months nor more than one year, or by either such fine and im- prisonment, in the discretion of the court. It shall be the duty of the district attorneys in their respective juris- dictions and the attorney-general to enforce this pro- vision, and any district attorney of any parish securing a conviction under this provision shall be entitled to such fee or salary as by the law he is allowed for such prosecution. " Sec. 5. That in any indictment for an offense named in this act it is suiEcient to state the purposes or effects of the trust or combination, and that the accused was a member of, acted with or in pursuance of it, without giv- ing its name or description, or how, when or where it was created; provided, that no contract or agreement or arrangement which does not include, or which cannot be held to include, a stipulation between the parties to share in the profits of any such contract, agreement or arrange- ment, or which contract, agreement or arrangement does not provide for or does not contemplate a profit or pool to be divided between the parties to such contract, agree- ment or arrangement, shall be held or construed to be in violation of the provisions of this act. " Sec. 6. That in prosecutions under this act, it shall not be necessary to prove who constitute all the members belonging to the trust or combination. " Sec. 7. That any contract or agreement in violation of the provisions of this act shall be absolutely void. " Sec. 8. That the provisions of this act shall not apply to agricultural products or live stock while in the hands of the producer or raiser; nor be so construed as to effect any combination or confederation of laborers for the pur-^ pose of procuring an increase of their wages or redress of grievances." 142 LAWS ON TBUSTS AND MONOPOLIES. ACT 1908. Any person, firm, company, association or corporation, foreign or domestic, doing business in the state of Loui- siana, and engaged in the production, manufacture, or distribution of any commodity in general use, that shall, intentionally, for the purpose of injuring or destroying the business of a competitor in any locality, discriminat- ing between different sections, communities, cities or localities in the state of Louisiana, by selling such com- modity at a lower rate in one section, community, city or locality, that is charged for such commodity by said person, firm, company, association or corporation in an- other section, community, city or locality after making due allowance for the difference, if any, in the grade or quality of such commodity and in the actual cost of transportation of same from the point of production, if a raw product, or from the point of manufacture, if a manufactured product, shall be guilty of unfair discrim- ination, which is hereby prohibited and declared unlaw- ful, and to be a misdemeanor; and that all sales so made shall be taken and considered as prima facie evidence of unfair discrimination. (L. 1908, Act 128, Sec. 1.) Any person, firm, company, association or corporation violating any of the provisions of the preceding section, any officer, agent or receiver of any firm, company, asso- ciation or corporation, or any member of the same, or any individual found guilty of a violation thereof shall be fined not less than five hundred dollars ($500), nor more than five thousand dollars ($5,000), or be im- prisoned in the parish jail for not less than one year, nor more than two years, or both, at the discretion of the court. (L. 1908, Act 128, Sec. 2.) All contracts or agreements made in violation of any of the provisions of the two preceding sections shall be void. (L. 1908, Act 128, Sec. 3.) It shall be the duty of the district attorneys, in their several judicial districts, throughout the state, to enforce the provisions of the preceding sections of this act, by appropriate actions and prosecutions in the several courts of the state of competent criminal jurisdiction, and of the attorney general, in all such cases, when carried by appeal or otherwise to the Supreme Court of this state, or to any other court of this state or of the United States ; and that it shall also be the duty of the attorney LOUISIANA. 143 general of the state, whether requested or directed to do so by the governor or by the general assembly of the state or not, to enforce all the foregoing provisions of this act by appropriate actions and proceedings of a civil nature in such court or courts of the state as may have jurisdiction in such cases, and as is hereinafter provided. (L. 1908, Act 128, Sec. 4.) If any complaint be made to the secretary of state that any corporation, authorized to do business in this state is guilty of unfair discrimination within the terms of this act, it shall be the duty of the secretary of state to refer the matter to the attorney general, who shall ex- amine into said complaint, and if the. facts justify it, in his judgment, shall institute proceedings in the courts against such corporation. (L. 1908, Act 128, Sec. 5.) If any corporation, foreign or domestic, authorized to do business in this state, or any officer, agent or receiver of any corporation, is found guilty of unfair discrimina- tion, as defined by this act, it shall be the duty of the secretary of state immediately to revoke the permit or license of such corporation to do business in this state. (L. 1908, Act 128, Sec. 6.) In all cases where a corporation may have been con- victed of the violation of the provisions of this act, and it shall continue or attempt to do business thereafter in this state, it shall be the duty of the attorney general of the state, by a proper suit, in the name of the state, to oust such corporation from all business of every kind and character in the state of Louisiana. (L. 1908, Act 128, Sec. 7.) The remedies and penalties provided in this act shall be cumulative to each other and to all other remedies and penalties provided by law. (L. 1908, Act 128, Sec. 8.) COURT DECISIONS. India Bagging Assn. v. Kock, 14 La. Ann., 168. John Trisconi v. J. M. Winship et al., 43 La., 45. Texas and Pacific Ky. et al. v. Southern Pacific Ry. Co., 41 La., 970. 144 LAWS ON TBUSTS AND MONOPOLIES. ILLUSTRATIVE CASES. COMBINATION OF DEALERS IN COTTON BAGGING (LOUISIANA, 1849). Eight commercial firms ia New Orleans holding a large quantity of cotton bagging entered into an agreement by which they stipulated that for three months no member should sell a bale except by a vote of the majority. It was held that the contract was — palpably and unequivocally a combination in restraint of trade, and to enhance the price in the market of an article of primary necessity to cotton planters. Such combinations are contrary to public order, and can not be enforced in a court of justice. (India Bagging Associa- tion V. Kock, 14 La. Ann., 168.) MAINE. STATUTES. It shall be unlawful for any firm or incorporated com- pany, or any number of firms or incorporated companies, or any unincorporated company, or association of persons or stockholders, organized for the purpose of manufac- turing, producing, refining or mining any article or product which enters into general use and consumption by the people, to form or organize any trust, or to enter into any combination of firms, incorporated or unincor- porated companies, or association of stockholders, or to delegate to any one or more board or boards of trustees or directors the power to conduct and direct the business of the whole number of firms, corporations, companies or associations which may have formed, or which may propose to form a trust, combination or association incon- sistent with the provisions of this section and contrary to public policy. (E. S., c. 47, Sec. 53.) No certificate of stock, or other evidence of interest, in any trust, combination or association, as named in the preceding section, shall have legal recognition in any court in this state, and any deed of real estate given by any person, firm or corporation, for the purpose of be- coming interested in such trust, combination or associa- tion, or any mortgage given by the latter to the seller, as well as all certificates growing out of such transaction, shall be void. (K, S., c. 47, Sec. 54.) Any incorporated company now operating under the laws of this state, and which at the date of the passage of this act, may be interested in any trust, combination or association, named in section one of this act, or any firm, incorporated or unincorporated company, or asso- ciation of persons or stockholders, who shall enter into or become interested in such trust, combination or asso- ciation, after the passage of this act, shall be deemed guilty of a misdemeanor, and be subject to a fine of not less than five nor more than ten thousand dollars: Pro- 24427°— 14 10 14& 146 LAWS ON TRIIHTH AND MONOPOLIES. vided, That noUiiufi; in (liis Hcdion kIihII be so construed as (o iipply to Hiuih incorporated companicH as shall, within ninety days from ttie date of the passage of this act, withdraw from and Hever all connections with such trust, combination or association. (R. 8., c. 47, Sec. 55.) Il shall be the duty of the seorolnry of state, iih soon as may be after the passage of this ai;t, to forward to the president, secretary or treasunu-, of each incorporaksd company organized for the purpose of manufacturing, producing, refining or mining any article or produ(-t which entern into general iiw^ and consiimption by the people, and doing business wifliin tfiin Htate, a copy of this act, and also a letter of inquiry as (o whether Haid corporation has merged all or any part of its business or interests in or with any trust, combination or association of persons or stockholders as named in section one of this act, and to require an answer, under oath, of the presi- dent, secretary, treawurer, or- directors of said company, a form of affidavit, together with qucHtionH ., 173 Mo., 356;61L. E. A.,464. State ex rel. Crow v. Continental Tobacco Co., 177 Mo., 1. Walsh V. Association of Ma:ster Plumbers, 97 Mo. App., 280. MONTANA. CONSTITUTION. Abt. XV, Sec. 20. No incorporation, stock company, person or association of persons in the State of Montana shall directly or indirectly combine or form what is known as a trust, or make any contract with any person, or persons, corporations, or stock company, foreign or domestic, through their stockholders, trustees or in any manner whatever, for the purpose of fixing the price or regulating the production of any article of commerce, or of the product of the soil, for consumption by the people. The legislative assembly shall pass laws for the enforce- ment thereof by adequate penalties to the extent, if neces- sary for that purpose, of the forfeiture of their property and franchises, and in case of foreign corporations pro- hibiting them from carrying on business in the state. STATUTES. Every person, corporation, stock company or associa- tion of persons in this state who, directly or indirectly, combine or form what is known as a trust, or make any contract with any person or persons, corporation or stock companies, foreign or domestic, through their stockholders, directors, officers or in any manner what- ever, for the purpose of fixing the price or regulating the production of any article of commerce, — "The phrase" ' articles of commerce ' as herein employed shall and does include not only those articles which are generally, pop- ularly and legally known as articles of commerce, but also gas, water, waterpower, electric light and electric power for whatever purpose used or employed " — or of the product of the soil for consumption by the people, or to create or carry out any restriction in trade, to limit productions, or increase or reduce the price of merchan- dise or commodities, or to prevent competition in mer- chandise or commodities, or to fix a standard or figure whereby the price of any article of merchandise, commerce 203 204 LAWS ON TRUSTS AND MONOPOLIES. or product, intended for sale, use or consumption, wili"be in any way controlled, or to create a monopoly in the manufacture, sale or transportation of any such article or to enter into an obligation by which they shall bind others or themselves not to manufacture, sell or transport any such articles below a common standard or figure or by which they agree to keep such article or transporta- tion at a fixed or graduated figure, or by which they settle the price of such article, so as to preclude unrestricted competition, is punishable by imprisonment in the county jail for a period not less than twenty-four hours, or more than one year, or by fine not exceeding twenty-five thou- sand dollars, or both. (L. 1909, c. 97, Sec. 1.) The provisions of this Act do not apply to any arrange- ments, agreement, or combination between laborers, made with the object of lessening the number of hours of labor or increasing wages. (Id., Sec. 2.) No person shall be excused from testifying in any prosecution brought pursuant to the provisions of this Act, but no person testifying for the prosecution shall be punished or prosecuted in any manner whatsoever for any act committed by him personally, as to which he is called upon to testify in a prosecution against any per- son or corporation, stock company or association. (Id., Sec. 3.) [Chapter 7, Acts 1913.] A BILL For an Act entitled : "An Act to prohibit unfair compe- tition and discrimination, and providing a penalty for the in- fraction of the provisions thereof." Be it enacted hy the Legislative Assemhly of the State of Montana: Section 1. Any person, firm or corporation, foreign or domestic, doing business in the State of Montana, and engaged in the production, manufacture or distribution of any commodity in general use, that intentionally, for the purpose of destroying the competition of any regu- larly established dealer in such commodity, or to prevent the competition of any person, firm or corporation who in good faith intends and attempts to become such dealer, shall discriminate between different sections, communi- ties or parts of this State, by selling such commodity at a lower rate or price in one section, city or community, or any portion thereof, than such person, firm or corpo- ration, foreign or domestic, charges for such commodity MONTANA. 205 in another section, community or city, after equalizing the distance from the point of production, manufacturfe or distribution and freight rates therefrom, shall be deemed guilty of unfair discrimination. Sec. 2. If complaint shall be made to the Attorney General that any corporation is guilty of unfair discrimi- nation as defined by this Act, he shall forthwith investi- gate such complaint, and for that purpose he shall sub- poena witnesses, administer oaths, take testimony and require the production of books or other documents, and » if, in his opinion, sufficient grounds exist therefor, he shall prosecute an action in the name of the State in the proper Court to annul the charter or revoke the permit of such corporation, as the case may be, and to perma- nently enjoin such corporation from doing business in this State, and if in such action the Court shall find that such corporation is guilty of unfair discrimination as defined by this Act, such Court shall annul the charter or revoke the permit of such corporation, and may perma- nently enjoin it from transacting business in this State. Sec. 3. Any person, firm or corporation violating the provisions of Section One (1) of this Act, whether as principal or agent, shall, upon conviction thereof be fined not less than Two Hundred (200) Dollars nor more than Ten Thousand (10,000) Dollars, for each offense. Sec. 4. Nothing in this Act shall be construed as re- pealing any other Act or part of an Act, but the remedies herein provided shall be cumulative to all other remedies provided by law. Sec. 5. This Act shall take effect and be in force from and after its passage and approval. Approved February 6, 1913. [Chapter 8, Acts 1913.] , A BILL For an Act entitled: "An Act to prohibit unfair compe- tition and discrimination, and providing a penalty for the in- fraction of the provisions thereof." Be it enacted hy the Legislati/ve Assembly of the State of Montana: Section 1. Any person, firm or corporation, foreign or domestic, doing business in the State of Montana, and engaged in the buying, selling, production, manufacture or distribution of any commodity in general use, that in- . tentionally, for the purpose of destroying the competition 206 LAWS ON TEUSTS AND MONOPOLIES. of any regularly established dealer in such commodity, or to prevent the competition of any person, firm or corpo- ration, who in good faith intends and attempts to become such dealer, shall discriminate between different persons, sections or communities in, or parts of this State by buy- ing such commodity at a higher rate or price in one sec- tion, city or community, or any portion thereof, than such person, firm or corporation, foreign or domestic, pays for such commodity in another section, community or city, ^ after equalizing the distance from the point of produc- tion, manufacture or distribution and freight rates there- from, shall be deemed guilty of unfair discrimination. Sec. 2. If complaint shall be made to the Attorney General that any corporation is guilty of unfair discrimi- nation as defined by this Act, he shall forthwith investi- gate such complaint, and for that purpose he shall sub- poena witnesses, administer oaths, take testimony, and require the production of books or other documents, and if, in his opinion, sufficient grounds exist therefor, he shall prosecute an action in the name of the State in the proper Court to annul the charter or revoke the permit of such corporation, as the case may be, and to permanently en- join such corporation from doing business in this State; and if in such action the court shall find that such corpora- tion is guilty of unfair discrimination as defined by this Act, such Court shall annul the charter or revoke the permit of such corporation, and may permanently enjoin it from transacting business in this State. Sec. 3. Any person, firm or corporation violating the provisions of Section 1 (One) of this Act, whether as principal or agent, shall, upon conviction, thereof be fined not less than Two Hundred ($200) Dollars, nor more than Ten Thousand ($10,000) Dollars, for each offense. Sec. 4. Nothing in this Act shall be construed as re- pealing any other Act or part of an Act, but the remedies herein provided shall be cumulative to all other remedies provided by law. Sec. 5. This Act shall take effect and be in full force from and after its passage and approval. Approved February 6, 1913. court decisions. Mac Ginnis v. Boston & Montana Con. Mining Co., 29 Mon., 428. State V. Cudahy Packing Co. et al., 33 Mon., 179. NEBRASKA. CONSTIITTTION. Art. XI, Sec. 3. No railroad corporation or telegraph company shall consolidate its stock, property, franchises, or earnings, in whole or in part, with any other railroad corporation or telegraph company owning a parallel or competing line; and in no case shall any consolidation take place, except upon public notice of at least sixty days to all stockholders, in such manner as may be pro- vided by law. Statutes. chapter 91a trusts. 6281 Section 1.^ That a trust is a combination of capital, skiU or acts by any person or persons to fix the price of any article or commodity of trade, use or mer- chandise, with the intent to prevent others from con- ducting or carrying on the same business or selling or trafficking in the same article, use or merchandise, or a combination of capital, skill or acts by two or more per- sons or by two or more of them for either, any or all of the following purposes : 1. To create or carry out restric- tions in trade. 2. To limit or reduce the production or 1 Sec. 1 of "An act to define trusts and conspiracies against trade and business, declaring the same unlawful and void, and providing means for the suppression of the same, and remedies for persons injured thereby, and to provide punishment for violations of this act, and to repeal chapter ninety-one a (91a), entitled 'Trusts,' of the Complied Statutes of Ne- braska for the year 1895." Laws 1897, chap. 79. Took effect July 10, 1897. See State v. Neb. Dls. Co., 29 Neb., 700 ; MoUyneaux v. Witten- berg, 39 Id., 547 ; Downing v. Lewis, 56 Id., 386. Lumber dealers' asso- ciations. This chapter does not grant special privileges, and is not special legislation within sec. 15, art. Ill, Const. Passage was constitutional. iClelland v. Anderson, 66 Id., 252. But see Niagara Fire Ins. Co. v.. Cor- nell, 110 Fed. Rep., 816. Conspiracy where one is driven out of business a tort. Clelland v. Anderson, 66 Neb., 276. Eight of action passes to assignee in bankruptcy. S. C, 75 Id., 273. Art. 1 docs not limit art. 2. State v. Omaha Elevator Co., 75 Id., 637. Agreement by lumber dealer to " protect another by asking hlglier price, or to divide territory and fir prices," Is a violation of statute. State v. Adams, 81 Id., 392. 207 208 LAWS ON TEUSTS AND MONOPOLIES. increase or reduce the price of merchandise or commodi- ties. 3. To prevent competition in insurance, either life, fire, accident or any other kind, or in manufacture, making, constructing, transportation, sale or purchase of merchandise, produce or commodities. 4. To fix at any standard or figure, whereby its price to the public shall be in any manner controlled or established upon any arti- cle of merchandise, produce or manufacture of any kind intended for sale, use or consumption in this state; to establish any pretended agency whereby the sale of any such article, commodity, merchandise or product shall be covered up, concealed or made to appear to be for the original vendor, for a like purpose or purposes, and to enable such original vendor, producer or manufacturer to control the wholesale or retail price of any such article of merchandise, product or commodity after the title to the same shall have passed from such vendor or manufac- turer. 5. To make or enter into, carry on or carry out any contract, obligation or agreement of any kind or description by which they shall bind, or have heretofore bound themselves not to sell, dispose of, traffic in or trans- port any article of merchandise or commodity, or article of trade, product, use, merchandise, consumption or com- merce, below a common standard figure, card or list price, or by which they shall agree in any manner to keep the price of such article, product, commodity or transporta- tion, at a fixed or graduated figure or price, or by which they shall in any manner establish or settle the price of any article of merchandise, commodity, or of insurance, fire, life or accident, or transportation between them or between themselves and others, or with the intent to pre- clude, or the tendency of which is to prevent or preclude a free and unrestricted competition among themselves or others or the people generally in the production, sale, traffic or transportation of any such article of merchan- dise, product or commodity or conducting a like business or by which they shall agree to pool, combine or unite any interest they may have in connection with the sale, pro- duction or transportation of any such article of merchan- dise, product or commodity or the carrying on of any such business, that its price might in any manner be affected thereby. 6282-6294 Sees. 2-14. [Kepealed. State v. Elevator Co., 75 Neb. 637.] NEBBASKA. 209 GRAINMEN. 6295 Sec. 15.^ That it shall be unlawful for any person, partnership, company, association or corporation engaged in the business of grain dealing or owning or operating any grain elevator, or in buying, selling, handling, consigning, shipping or transporting grain, to enter into any under- standing, contract, agreement, or combination with any other persons, company, partnership, association or corpo- ration, whether within or without this state engaged in a like business, to form, enter into or maintain or contribute money or anything of value to any trust, pool, combina- tion or association of persons, partnerships, companies, associations or corporations of whatever name, which has for any of its objects the prevention of competition among buyers, sellers or dealers in grain, or which by any of its acts, or the acts of any of its officers, members, agents or employes, hinders or prevents or tends to hinder or prevent the fullest competition in the purchase, sale or dealing, in grain by any person, partnership, company, association or corporation outside of, or not a member of, or not doing business by or through such trust, pool, com- bination or association, or any of its members, officers, agents or employes, or which has for one of its objects the prevention of competition by requiring or compelling its members not to deal with shippers or dealers in grain not members of such trust, pool, combination or associa- tion ; or which requires its members to refuse tcJ sell, pur- chase or consign any grain, to any person, company, part- nership or corporation which purchases or receives con- signment of grain from any person, company or corpora- tion not a member of such trust, pool, combination or association, or not doing business through the same or ' Sees. 15-18. "An act to prohibit combinations among grain elevator men and to prohibit any person, company, partnership, association or corporation engaged in the business of grain dealing or owning or oper- ating any grain elevator, or in the buying, selling, handling, consigning or transporting grain from entering Into any understanding, contract, agreement or combination with any other person, company, partnership, association or corporation to form, enter into, maintain or contribute to any trust, pool, combination or association of whatever name, having for any of- Its objects the prevention of competition among buyers, sellers or dealers in grain not members of, or not doing business through such trust, pool, combination or association, by means of preventing such per- sons from finding a marljet for their grain and by intimidating and pre- venting purchase[r]s and exporters from buying from any person, not a member of and not doing business through such trust, pool, combination or association ; and to provide a penalty for the violations of this act." Laws 1897, ch. 80. Took effect July 10, 1897. See, also, sec. 245x« Crlm. Code. 24427°— 14 14 210 LAWS ON TRUSTS AND MONOPOLIES. any of its members; or which has for any of its objects the prevention of any person, company, partnership, asso- ciation or corporation not shipping grain through grain elevators, whether owned or operated by members of such trust, pool, combination or association, or not, from find- ing purchasers for their grain by boycotting or threaten- ing to boycott such purchasers. [1897, chap. 80, § 1.] 6296 Sec. 16. That in any case, any person, company partnership, association, corporation, trust, pool or com- bination of whatever name shall do, cause to be done, or permit to be done, any act, matter or thing in this act pro- hibited or declared to be unlawful, such person, partner- ship, company, association, corporation, trust, pool or combination shall be liable to the person, partnership, company, association or corporation injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable attorney fee, to be fixed by the court, in every case of recovery to be taxed as part of the costs in the case ; and the property of any person who may be a member of or interested in any such trust, pool, combina- tion or association, violating the provisions of this act shall be liable for the full amount of such judgment and may be levied upon and sold to satisfy the same. [Id., § 2.] 6297 Sec. 17. Any person, partnership, company, asso- ciation or corporation subject to the provisions of this act. or any trust, combination, pool or association, or any director, officer, receiver, trustee, employe agent or per- son, acting for or einployed by them, or either of them, who shall violate any of the provisions of section 1 of this act shall Ije declared to he guilty of a felony and shall upon conviction thereof be fined in any sum not less than one thousand dollars and not exceeding two thousand dol- lars, and any person, officer, member, agent or employe of any trust, combination, pool or association violating the provisions of section 1 of this act, may in addition to the foregoing fine, be sentenced by the court to a period not exceeding six months to be served in the penitentiary of the state. That half of the fine so imposed shall go to the person or persons ^\ho furnish information and evidence on which a conviction shall be founded. [Id., § -3.] 6298 Sec. 18. Any person who may be aggrieved or in- jured by section 1 of this act may prosecute the violator in a criminal action by his own attorney, without the in- NBBEASKA, 211 tervention of the county attorney, and in case of convic- tion the court shall allow a reasonable attorney fee to be taxed as costs in the case. [Id., § 4.J CHAPTER 117 (acts 1913). AN ACT To amend Section 26 of Chapter 91A of the Compiled Statutes of Nebraska for 1911, being Section 3777 of the Report of Commission for Revision of General Laws of Nebraska, for 1913, [C. A. S., § 12012] and to repeal said original section as it now exists. Section 1. That Section 26 of Chapter 91A of the Compiled Statutes of Nebraska for 1911, being Section 3777 of the Eeport of Commission for Kevision of Gen- eral Laws of Nebraska, for 1913, [C. A. S., § 12012] be and the same is hereby amended to read as follows : Any person, firm, or company, association or corporation, for- eign or domestic, doing business in the state of Nebraska and engaged in the production, manufacture or distribu- tion of any commodity in general use, that shall inten- tionally, for the purpose of destroying the business of a competitor in any locality, discriminate between different sections, communities, or cities of this state by selling such commodity at a lower rate in one section, community or city, than is charged for said commodity by said party in another section, community or city, after making due allowance for the difference, if any, in the grade or qual- ity and in the actual cost of transportation from the point of production, if a raw product, or from the point of manufacture, if a manufactured product, shall be deemed guilty of unfair discrimination, which is hereby prohib- ited and declared unlawful. Proof that any person, firm, company, association or corporation has been discrim- inating between different sections, communities and cities of this state by selling a commodity at a lower rate in one section, community or city, than is charged for said com- modity by said party, in another section, community or city, after making an allowance for the difference, if any, in the grade or quality and in the actual cost of transpor- tation from the point of production, if a raw material, and from the point of manufacture, if a manufactured product, sriall be prima facie evidence that the party so discriminating is guilty of unfair discrimination. Any person, firm, company, association, or corporation, for- 212 LAWS ON TRUSTS AND MONOPOLIES. eign or donioslic, doing bu.sincss in the, Stal(' (jf Nebraska engaged in the business of collex^iing or buying any prod- uct, comuuxlity or projierty of any kind, (hat shall inten- tionally, for iho purpose of injuring or destroying the business of a, competitor in any locality, discriiniiiaie be- tween ilie different seciions, communilies or cilJes of liiis state by buying any product, connnodily, or property of any kind, and paying therefor a higher rale or priiui in one section, eonuruinily, or city than is paid for tlie same kind of product, commodity or property by said party in another section, community or city, after making due allowance for the difference, if any, in the grade or (pial- ity and in the actual cost of the transportation from the point where the same is purchased to the market wher'e it is sold, or intended to be sold, shall be deemed guilty of unfair discrimination, which is liereby prohibited and declared unlawful. Proof that any person, lirm, com- pany, association or corporation has becui (lis, fC A. S., § 12012] as it now exists, be and the same is hereby repealed. Approved, April 15, 1913. 6301f Sec. 27. Any person, firm, company, a,ssociation or corporation violating any of the provisions of the; pre- ceding section, and any offituir, agent or rcceivc'r of any firm, company, association or corporation, or iiriy mem- ber of the same, or any individual, found guilty of a vio- lation thereof, shall be fined not l(!S.s than Five Hundred Dollars ($500.00) nor more than Five 'Iliousand Dollars ($5,000.00), or be imprisoned in the county jail not to exceed one year, or suffer both penalties. [Id., § II.] NEBRASKA. 213 6301g Sec. 28. All contracts or agi'eements made in vio- lation of any of the provisions of the two preceding sec- tions shall be void. [Id., § III.] 6301h Sec. 29. It shall be the duty of the county attor- neys, in their counties, and the attorney general, to en- force the provisions of the preceding sections of this act by appropriate actions in courts of competent jurisdic- tion. [Id., § IV.] CHAPTER 114 (acts 1913). AN ACT Amending Section 12016 of Cobbey's Annotated Statutes for 1911, [C. S., Ch. 91a, § 30] relating to prosecution of cor- porations charged with unfair discrimination, requiring the Attorney General to investigate upon complaint, and to repeal said original section and all acts and parts of acts In conflict herewith. Section 1. That Section 12016 of Cobbey's Annotated Statutes for 1911, [C. S., Ch. 91a, § 30] is hereby amend- ed to read as follows: Section 12016. If complaint shall be made to the Attor- ney General that any corporation is guilty of unfair dis- crimination as defined by this act, he shall investigate such complaint and for that purpose he may subpoena witnesses, administer oaths, take testimony, and require the production of books and other documents, and, if in his opinion sufficient grounds exist therefor he may pros- ecute an action in the name of the state in the proper court to annul the charter or revoke the permit of such corporation as the case may be, and to permanently en- join such corporation from doing business in this state, and if in such action the court shall find that such cor- poration is guilty of unfair discrimination as defined by this act, such court shall annul the charter or revoke the permit of such corporation, and may permanently enjoin it from transacting business in this state. Sec. 2. That said original section 12016 of Cobbey's Annotated Statutes for 1911, [C. S., Ch. 91a, § 30] and all acts and parts of acts in conflict herewith are hereby repealed. Approved, April 15, 1913. 6301J Sec. 31. If any corporation, foreign or domestic, authorized to do business in this state, is found guilty of unfair discrimination, such finding shall cause a for- 214 LAWS ON TRUSTS AND MONOPOLIES. feiture of all the privileges and rights conferred by the la\Ys of this state upon corporations, and shall bar its right to do business in this state. [Id., § VI.] 6301k Sec. 32. If any corporation having been found guilty of a violation of any of the provisions of this act, shall continue or attempt to do business in this state, it shall be the duty of the attorney general by a proper action in the name of the State of Nebraska, to oust such corporation from all business of every kind and character in this state. [Id., § VII.] 6302 Sec. 33. Nothing in this act shall be construed as repealing any other act, or part of act, but the remedies herein provided shall be cumulative to all other remedies provided by law. [Id., § VIII.] ARTICLE II. RESTRAINTS MONOPOLIES, REBATES. 6302a Section 1. That every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce, within this state, is hereby declared to be illegal. Every person who shall make any such con- tract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on convic- tion thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.^ 6302b Sec. 2. That every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce, within this state, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. 6302c Sec. 3. That any property owned under any con- tract or by any combination, or pursuant to any con- spiracy (and being the subject thereof), mentioned in the foregoing sections of this act, shall be forfeited to the state. ' "An act to protect trade and commerce against unlawful restraints and monopolies, and to prohibit the giving or receiving of rebates on the transportation of property, and to provide a penalty for the violation thereof." Laws 1905, H. R. 110. In effect July 1, 1905. Repeals by Im- plication art. I, except sec. 1. Not affected by sees. 15-18, chap. 91a, nor sec. 24ox>2, Crim. Code. State v. O. Elevator Co., 75 Neb., 637. Indict- ments should allege acts complained of were in restraint of trade within this state. Proper respondents. Howell v. State, 83 Id., 448. NEBRASKA. 215 CHAPTER 145 (aCTS 1918). AN ACT To ameud Section 12031 of Cobbey's Annotated Statutes of Nebraska, 1911, [C. S., Ch. 91j, Art. 2, § 4] and to repeal said original section as now existing. Section 1. That Section 12031 of Cobbey's Annotated Statutes of Nebraslfa for the year 1911 be amended so as to read as follows: That no corporation, joint stock company or other asso- ciation, whose stockholders are not personally liable for their debts, except corporations incorporated under the laws of the state of Nebraska, and those required by law to file annual reports with the Auditor of Public Ac- counts, and common carriers and corporations owning or using property exclusively in connection with the busi- ness of transportation and corporations engaged in fur- nishing additional accommodation to passengers as such while being carried by such carriers, shall engage in busi- ness within this state, or continue to carry on such busi- ness, unless it shall comply with the following conditions : It shall file a statement in the ofHce of the attorney gen- eral of this state, signed and sworn to by its president, its treasurer, its general manager, and a majority of the directors, or by persons exercising the powers usually exercised by such officers and directors of such corpora- tions, joint stock companies, and other associations, on or before the 15th day of September, in the year 1906, and shall on or before the 15th day of September, in each year thereafter file a like statement for the year ending with the 30th day of June in said year, respectively, showing : (a) The amount of its capital stock, (b) The market value of the same, (c) How much of the same has been paid in full in cash ; or, if the same has not been paid in full in cash, what has been received by the said corpora- tion, joint stock company, or other association, in lieu thereof, and the value of whatever shall have been so received by it. (d) The names of all the officers and directors of such corporation, joint stock company, or other association, and all agents entrusted with the gen- eral management of its affairs, (e) The amount it has paid in dividends during the same period, the rate of per- centage of such dividends, and times of paying the same, (f) A statement of all the stock owned by it of any other corporation, joint stock company, or other association, specifying the corporation, joint stock company, or other 216 LAWS ON TETJSTS AND MONOPOLIES. association, and the number of and value of shares in each ; the amount of its own stock held by other corporations, joint stock companies or other associations, and the value thereof; and the amount of stock in other corporations, joint stock companies, or other associations held in trust for it or in which it has any interest, directly or in- directly, absolute or conditional, legal or equitable, speci- fying the corporations, joint stock companies or other associations, (g) It shall also on or before the 30th day of June, in the year 1906, file in the office of the attorney general of this state, an undertaking signed by said offi- cers, general managers, and directors, that they will com- ply with the provisions of this and all other laws of this state in the management of the affairs of said corporation, joint companies, or other associations; and that they accept the provisions and liabilities of this act, and the obligations by it imposed, so long as they shall continue to hold or exercise said office or authority, and shall there- after within ten days of their entering upon the duties of their offices, file a like undertaking signed by every officer, general manager and director thereof elected or appointed to such office or employment. This statement shall be in addition to all statements now or hereafter required by law, or by any other public authority in this state. Sec. 2. That Section 12031 of Cobbey's Annotated Stat- utes of Nebraska for the year 1911 [C. S., Ch. 91a, Art. 1, § 4] as heretofore existing be and the same is hereby re- pealed. Sec. 3. Whereas an emergency exists, this act shall take effect and be in force from and after its passage and approval. Approved, April 17, 1913. 6302e Sec. 5. The attorney general of this state may at any time require of any corporation, joint stock company, or other association so engaged any statement he may think fit in regard to the conduct of its business. And he may especially require any such corporation, joint stock company, or other association, to give a list of all con- tracts or transactions entered into within the twelve months preceding such requisition, in which it has sold any article or product, or carried any article or product within this state at a rate less than the ordinary market price, of [if] such article or product had been sold or car- ried by any other person than the party to such transac- NEBRASKA. 217 tion. And he may further require the reason for such distinction and the circumstances attending the same. 6302f Sec. 6. That every person, corporation, joint stock company, or other association engaged in business within the state, who shall enter into any contract, com- bination or conspiracy or who shall give any direction or authority to do any act, for the purpose of drawing out of business any other person engaged therein, or who for such purpose shall in the course of such business sell any article or product at less than its fair market value, or at a less price than it is accustomed to demand or receive therefor in any other place under like conditions ; or who shall sell any article upon a condition, contract or under- taking that it shall not be sold again by the purchaser, or restrain such sale by the purchaser, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. 6302g Sec. 7. That no corporation, joint stock company, or other association, shall engage in business within this state, a majority of whose stock is owned by or controlled or held in trust for any manufacturing or other corpora- tion, which, in the course of its manufacture or produc- tion, conducts its business, or any part thereof, in a man- ner which would be prohibited by this act, if it were so conducted in the course of such business within this state. 6302h Sec. 8. That all the books of record and papers of .every such corporation, joint stock company, or other association, engaged in business within this state, shall be subject to inspection by the attorney general of the state, or by any agent he may designate for that purpose, and such corporation joint stock company, or other asso- ciation shall, at such times as ho shall prescribe, make such further returns, verified as aforesaid, as shall be by him prescribed either by general regulations or by special direction. 6302i Sec. 9. That any president^ director, treasurer, officer, corporator, copartner, associate, or agent of such corporation, joint stock company, or other association, who shall in its behalf do anything by this act prohibited to such corporation, joint stock company, or other associa- tion, or who shall support, vote for, aid and abet, or take part in doing such action by said corporation, joint stock company, or other association^ or any instrumentality 218 LAWS ON TRUSTS AND MONOPOLIES. thereof, shall be liable to the penalties by this act pro- vided. 6302J Hec. 10. That no corporation, joint stock com- pany, or other association, after the 30th day of June, 1906, which shall manufacture or produce any articlCj for sale or transportation within this state, which shall do any of the acts or things prohibited to be done by this act, shall engage in business within this state. 6302k Sec. 11. That any corporation, joint stock com- pany, or other association that shall have been twice ad- judged to have violated the provisions of this act by the final judgment of any court having jurisdiction of the question, in any civil suit or proceeding in which said corporation, joint stock company^ or other association shall have been a party, who shall thereafter violate this act, or who shall fail to make the returns herein required at the times specified, shall no longer be allowed to en- gage in business within this state: Provided, That such prohibition shall only be enforced after such corporation, joint stock company, or other association shall have been enjoined against further engaging in such business, on an information or suit brought in a court of competent jurisdiction, by the attorney general in behalf of this state. It shall be the duty of the attorney general in such case, unless he shall be satisfied that such corpora- tioUj joint stock company, or other association has de- sisted and abstained and will in future desist and abstain from such violation, to enforce the provision by pro- ceeding either by information or by indictment, as he may in his discretion think best. Any corporation, joint stock company, or other association which shall be charged with violating this act, and any president, direc- tor, treasurer, officer, or agent thereof, may be joined as a party in any proceeding, civil or criminal, to enforce this act. If, in the judgment of the attorney general, such corporation, joint stock company, or other association against which any civil proceeding may be instituted be one on which the public is so depending that the inter- ruption of its business will cause serious public loss or inconvenience^ he may, in his discretion, refrain from proceeding to obtain a decree which will absolutely pre- vent the continuance of such business, and may apply for a limited or conditional decree, or one to take effect at a future day, as the public interest shall seem to require. And if, in the judgment of the court before whom such NEBRASKA. 219 proceeding may be pending, the interruption of the busi- ness of the defendant corporation, joint stock company, or other association^ will cause such serious public loss or inconvenience, the court may decline to enter an absolute decree enjoining it against proceeding with its business, and may enter a modified or conditional decree, or such decree to take effect at a future time, as justice shall require. The court may also, in its discretion, enjoin such officers or agents or servants of such corporation, joint stock company^ or other association from continuing its service, and enjoin any such corporation, joint stock com- pany, or other association from continuing their employ- ment therein, as the case shall seem to require.^ 63021 Sec. 12. That any corporation, joint stock com- pany, or other association^ and any president, director, treasurer, officer, corporator, copartner, associate, or agent thereof who shall in its behalf, after the 30th day of June, in the year 1906^ engage in such business in violation of this act, shall for each offense, in addition to such penalty for contempt, as the court in case of disobedience to its lawful order may impose, be punished by a fine not ex- ceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. 6302m Sec. 13. That every president, treasurer, general manager, agent or other person usually exercising the powers of such officers of any corporation, joint stock company, or other association^ who has himself, in his be- half, violated, united to violate, or voted for or consented to the violation of any of the provisions of this act, shall thereafter be personally liable for all the debts and obli- gations of any such corporation, joint stock company, or other association, created while such person holds such office or agency, whether under the same or subsequent elections or appointments. 6302n Sec. 14. That it shall be unlawful for any per- son or persons to offer, grant, or give, or to solicit, accept, or receive, any rebate, concession, or service in respect of the transportation of any property within this state by any common carrier, whereby any such property shall, by any device whatever, be transported at a less rate than that named in the tariffs published and filed by such car- rier, as is required by law or charged others for like serv- 1 In action to restrain yiolation of act court cannot in first Instance declare forfeiture of corporate charter. State v. Omalia, 75 Neb., 654. 220 LAWS ON TETJSTS AND MONOPOLIES. ice. Every person who shall offer, grant, or give or solicit, accept or receive any such rebate, concession, or service shall be deemed guilty of a misdemeanorj and on conviction thereof, shall be punished by a fine of not less than five thousand dollars. 6302o Sec. 16. That if any joint stock company, cor- poration, or combination or any agent thereof, shall solicit, accept, or receive any such rebate, concession or service as is hereinbefore declared to be unlawful^ it shall be unlawful thereafter to transport within this state any article owned or controlled by such company, corpora- tion, or combination, or produced or manufactured by it, by whomsoever the same may be owned or controlled. If any such joint stock company, corporation, or combina- tion, shall offer, grant, or give any special prices, induce- ments, or advantages for the sale of articles produced, manufactured, owned, or controlled by it to purchasers in any particular locality in order to restrict or destroy competition in that locality in the sale of such articles, it shall be unlawful thereafter to transport within this state any article owned or controlled by it, or produced or manufactured by it^ by whomsoever the same may be owned or controlled. Provided, however, That the pro- hibition imposed under this section shall not apply to any article purchased bona fide before decree made in pur- suance hereof against the joint stock company, corpora- tion, or combination producing, manufacturing, or there- tofore owning ox controlling the same; and provided further, That even after decree any such article may be relieved from the prohibition imposed under this section^ if the owner thereof shall show to the satisfaction of the court having jurisdiction of the matter, hereinafter pro- vided, that such article was purchased bona fide, without notice, and within thirty days after the entry of such de- cree. Any transportation company, and any officer, agent, or representative thereof^ knowingly concerned in the transportation of articles within this state, contrary to the prohibitions of this section, shall be punished by a fine of not less than five thousand dollars. 6302p Sec. 16. That the several courts of record of this state having equity jurisdiction are hereby invested with jurisdiction to prevent and restrain all violations of this act, and especially the offering, granting, giving, solicit- ing, accepting, or receiving any such rebate, concession, or service by any person or persons; and to prevent or NEBRASKA. 221 restrain any such joint stock company, corporation, or combination, who shall have solicited, accepted, or re- ceived any such rebate, concession, or service, or who shall have offered, granted, or given any special prices, induce- mentSj or advantages in order to restrict or destroy com- petition in particular localities from engaging in com- merce within this state. Such proceedings may be by way of petition setting forth the cause of action and pray- ing that the acts hereby made unlawful shall be enjoined or otherwise prohibited. When the parties complained of shall be duly notified of such petition, the court shall proceed as soon as may be to the hearing and determina- tion of the case, and upon such petition and before final decree the court may at any time make such temporary restraining order or prohibition as shall be deemed just. The court may retain jurisdiction of the cause after the decree, for the purpose of such subsequent modification of the same as may be made to appear equitable and just in the premises. 6302q Sec. 17. That whenever it shall appear to the court before which any civil proceedings under this act shall be pending, that the ends of justice require that other parties shall be brought before the court, the court may cause them to be summoned, whether they reside in the county where the court is held or not, and subpoenas to that end may be served in any county by the sheriff thereof. 6302r Sec. 18. That any person who shall be injured in his business or property by any other person or persons by reason of anything forbidden or declared to be un- lawful by this act, may sue therefor in any court of rec- ord in this state, in the county in which the defendant or defendants reside or are found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained and the costs of suit, including a reasonable attorney's fee. 6302s Sec. 19. That the word " person " or " persons " as used in sections, one, three and five, of this act, shall be deemed to include all corporations, associations, com- binations or concerns whatsoever. 6302t Sec. 20. That any suit in equity brought in any court of this state under this act, wherein the state is com- plainant, the attorney general may file with the clerk of such court a certificate that^ in his opinion, the case is of general public importance, a copy of which shall be 222 LAWS ON TKUSTS AND MONOPOLIES. immediately luniished by such cleric (o the judge of the court in which tlie cmsc. is pendiiifj:. Thereupon such case sliiill be f^^ivcii precedeiu^o over and in every way expedited, and be assifrnod for hcariiifj; at lln' earliest praclicablc (hiy. An appeal rroiu the final decree of the court will lie only to the Supreme Court and must be talaiti within sixty days from the (>ntry thereof. 6302u Sec. 21. Thnt, in all prosecutions, hearings, and proceedings under the provisions of this nr.i, whether civil or criniiniil, no ])ers()n sluill be excused IVoui alteiid- ing and teslifyingj oi- I'roiu producing books, |)apers, coii- tracls, agrectnenls, iind (h)cuiiients before^ the c<)url,s of this state, or- in olnHJience to th(^ subpoena of th<' sanu^, on the ground oi' for the reason tlial, tile (estiniony or FOEFEITUBES DUE THE STATE OF TEXAS. Section 1. Whenever any corporation created under the laws of this state, or any foreign corporation authorized to do business in this state, shall violate any law of this state, including any law against trusts, monopolies and conspiracies, or combinations or contracts in restraint of trade, for the violation of which fines or penalties or for- feitures are provided, all property of such corporation within this state at the time of such violation, or which may thereafter come within this state, shall, by reason of such violation, become liable for such fines or penalties and for all costs of suit and of collection, and the state of Texas shall have a lien on all such property from the date that suit shall be instituted by the attorney general or district or county attorney acting under his direction in any court of competent jurisdiction within this state for the purpose of forfeiting the charter or canceling the permit of such corporation, or for such fines or penalties. The institution of such suit for such fine, penalties or for- feiture shall constitute notice of such lien. Where any such law has heretofore been violated, or shall be vio- lated before the taking effect of this act, and a cause of action exists for such fine, penalties or forfeiture, or shall come into existence before the taking effect of this act, and suit shall be filed in such case, the state shall have a lien to secure the payment of such fine, penalties and costs from the time this act shall take effect on all property of such corporation within this state of which shall there- after become or be brought within the state. Sec. 2. Any action or cause of action for any fine, for- feiture or penalty that the state of Texas has or may have against any corporation chartered under the laws of this or any other state, territory or nation, shall not abate or become abated by reason of the dissolution of such cor- poration, whether voluntary or otherwise, or by the for- feiture of its charter. Whenever a corporation against * which the state has heretofore instituted suit, or shall hereafter institute suit, for forfeiture of its charter, or cancellation of its permit, or for fines or penalties under any law of this state, shall dissolve in this or any other state, or shall have a judgment rendered against it in this or any other state, for the forfeiture of its charter, the court in this state in which such suit is pending shall TEXAS. 335 f appoint a receiver for the property and business of such corporation within this state or that may come or be brought within this state during such receivership, or the court may, in any case wherein the state is suing any such corporation for the forfeiture of its charter, or of its permit to do business in this state, or for fines or penal- ties, appoint a receiver for such corporation, whenever the interest of the state may seem to require such action. If such dissolution shall take place or judgment of for- feiture be rendered against such corporation before this act takes effect, the court shall, upon the taking effect of this act, appoint a receiver for the property and business of such corporation in this state ; and the state shall have the right to the writs of attachment, garnishment, se- questration or injunction, without bond, to aid in the enforcement of its rights created by this act; and all property that may come into the possession of any re- ceiver appointed under the provisions of this act, not otherwise exempt by law, shall be subject to the lien herein created, and for the payment of any such fine or penalty. Sec. 3. The attorney-general, or any district or county attorney acting under his direction, may bring suit in the name of the State of Texas for the foreclosure of such lien in the district court of any county in the State of Texas, and in case the suit for foreclosure should be brought against any corporation which has dissolved or had a judgment for the forfeiture of its charter or the cancellation of , its permit rendered against it, pending any suit by the State of Texas against such corporation for the forfeiture of its charter or cancellation of its permit or for penalties or fines, service may be had upon any person within this state who acted and was acting as agent of any such corporation in this state at the time of such dissolution or forfeiture of charter or cancella- tion of permit. Sec. 4. The rights and remedies given by this act shall be construed as cumulative of all other laws in force in this state, and shall not affect, change or repeal any other remedies or rights now existing in this state for the en- forcement, payment or collection of fines, penalties and forfeitures. Sec. 5. In case any suit should heretofore be brought in any of the courts of this state for the recovery of pen- alties mentioned in this act, the same shall not be settled 336 _ LAWS ON TEUSTS AND MONOPOLIES. or compromised without trial upon the merits thereof without the consent and approval of the attorney-general of the state. (G. L., 1907, p. 175.) COTIRT DECISIONS. Albertype Co. v. Gust Fiest Co., 102 Tex., 219; 109 S. W., 1139. Altgelt V. City of San Antonio, 17 S. W. 75 ; 81 Tex., 436. Anderson v. Rowland, 18 Tex. Civ. App., 460. Beer v. Landman, 88 Tex., 450. Cases frequently cited in these proceedings, but which involve not the statute but the constitutional provision forbidding the creation of monopolies, are: City of Brenham v. Brenham Water Co., 67 Tex., 561. Clark V. Cyclone Woven Wire Fence Co., 22 Tex. Civ. App., 41. Columbia Carriage Co. v. Hatch, 19 Tex. Civ. App., 120. Comer v. Burton-Lingo Co., 58 S. W., 969. Crump V. Ligon, 37 Tex. Civ. App., 172. Crystal Ice, etc., Co. v. State, 23 Tex. Civ. App., 293, Crystal Ice Mfg. Co. v. San Antonio Brewing Assn., 8 Tex. Civ. App., 1. Edwards County v. Jennings, 89 Tex., 618. Erwin v. Hayden, 43 S. W., 610. Fort Worth & D. C. Ey. Co. v. State, 99 Tex., 34; 88 S. W., 370. Forrest Photo. Co. v. Hutchinson Gro. Co., 108. S. W., 768. Fuqua v. Pabst Brewing Co., 90 Tex., 298. Gates V. Hooper, 90 Tex., 563. Gulf, C. & S. F. Ry. Co. v. State, 72 Tex., 404. Hartford Fire Ins. Co. v. City of Houston, 102 Tex., 317. Houck & Dieter v. Anheuser-Busch Brewing Co., 88 Tex., 184; 27 S. W., 692. Jersey Creme Co. v. McDaniel Bros., 152 S. W., 1187. Jones V. Carter, 45 Tex. Civ. App., 450. Lewis V. Weatherford, M. W. & N. W. Ry. Co., 36 Tex. Civ. App., 48. Lone Star Salt Co. v. Blount, 49 Tex. Civ. App., 138. Lytle V. Galveston, H. & S. A. Ry. Co., 100 Tex., 292. Mason v. Adoue, 30 Tex. Civ. App., 276. National Cotton Oil Co. v. State, 72 S. W., 615. TEXAS. 337 Nickels v. Prewitt Auto Co., 149 S. W., 1094. Norton v. Thomas & Sons Co., 99 Tex., 578. Pasteur Vaccine Co. v. Burkey, 22 Tex. Civ. App., 232. Patterson v. Crabb, 51 S. W., 870. Queen Ins. Co. v. State, 86 Tex., 250. Eedland Fruit Co. v. Sargent, 51 Tex. Civ. App., 619. S. S. White Dental Mfg. Co. v. Hertzberg, 51 S. W., 355. San Antonio Gas Co. v. State, 22 Texas Civ. App., 118. Simmons & Co. v. Terry, 79 S. W., 1103. Springfield F. & M. Ins. Co, v. Cannon, 46 S. W., 375. Star Mill & Elevator Co. v. Ft. Worth Grain & Elev. Co., 146 S. W., 604. State V. Laredo Ice Co., 96 Tex., 461. State V. Missouri, K. & T. Ey. Co., 99 Tex., 516. State V. Eacine Sattley Co., 134 S. W., 400. State V. Shippers Comp. & Warehouse Co., 95 Tex., 603; 67 S. W., 1049. Texas & P. Coal Co. v. Lawson, 89 Tex., 394. Texas Brewing Co. v. Anderson, 40 S. W., 337. Texas Brewing Co. v. Durrum, 46 S. W., 880. Texas Brewing Co. v. Meyer, 38 S. W., 263. Texas Brewing Co. v. Templeman, 90 Tex., 277. Troy Buggy Works v. Fife & Miller, 74 S. W., 956. Texas Standard Oil Co. v. Adoue, 83 Tex., 650. Vanderweghe v. American Brewing Co., 61 S. W., 526. Waters-Pierce Oil Co. v. State, 19 Tex. Civ. App., 1 ; affirmed, 177 U. S., 28. Waters-Pierce Oil Co. v. State, 48 Tex. Civ. App., 162; affirmed, 212 U. S., 86; and see Atty. Gen. v. Waters- Pierce Oil Co., 67 S. W., 1057. Welch v. Phelps & Bigelow Wind Mill Co., 89 Tex., 655. Wheatley v. KoUaer, 133 S. W., 903. Wiggins V. Bisso, 92 Tex., 219. Wolff V. Hirschfield, 23 Tex. Civ. App., 670. Wolf Co. V. Galbraith, 35 Tex. Civ. App., 505. 2442T°— 14 22 UTAH. CONSTITUTION. Art. 12, Sec. 20. Any combination by individuals, cor- porations, or associations, having for its object or eflPect the controlling of the price of any products of the soil, or of any article of manufacture or commerce, or the cost of exchange or transportation, is prohibited, and hereby declared unlawful, and against public policy. The legis- lature shall pass laws for the enforcement of thiS' section by adequate penalties, and in case of incorporated com- panies, if necessary- for that purpose, it may declare a for- feiture of their franchise. Statutes. Any combination by persons having for its object or effect the controlling of the prices of any professional services, any products of the soil, any article of manu- facture or commerce, or the cost of exchange or trans- portation, is prohibited and declared unlawful. (Sec. 1752.) Any person or association of persons who shall create, enter into, become a member of, or a party to, any pool, trust, agreement, combination, confederation or under- standing with any other person or persons, to regulate or fix the price of any article of merchandise or commodity ; or shall enter into, become a member of, or a party to. any pool, trust, agreement, contract, combination or con- federation to fix or limit the amount or quantity of any article, commodity or merchandise to be manufac- tured, mined, produced or sold in this state, shall be deemed and adjudged guilty of a conspiracy to defraud, and be subject to punishment as hereinafter provided. (Sec. 1753.) It shall not be lawful for any corporation to issue or to own trust certificates; or for any corporation, agent, officer or employee, or the directors or stockholders of 339 340 LAWS ON TBUSTS AND MONOPOLIES. any corporation, to enter into any combination, contract or agreement with any person or persons, the purpose or effect of which combination, contract or agreement shall be to place the management or control of such combina- tion or combinations, or the manufactured products thereof, in the hand of any trustee or trustees, with the intent, to limit or fix the price, or lessen the production and sale of any article of commerce, use, or consumption, or to prevent, restrict, or diminish the manufacture or output of any such article, or to monopolize any part of the trade or commerce within this state. (Sec. 1754.) If a corporation, a company, a firm or association shall be found guilty of a violation of any provision of this title, it shall be punished by a fine in any sum not less than one hundred dollars nor more than two thousand dollars for the first offense; and for the second offense, not less than five hundred dollars nor more than five thousand dollars; and for the third offense, not less than five thousand dollars nor more than ten thousand dollars; and for every subsequent offense shall be liable to a fine of fifteen thousand dollars. (Sec. 1755.) Any president, manager, director or other officer, agent or receiver of any corporation, company, firm or associa- tion, or any member of any company, firm or association, or any individual found guilty of a violation of any pro- vision of this title, may be punished by a fine of not less than one hundred dollars nor more than one thousand dollars, or by confinement in the county Jail not more than one year, or by both, in the discretion of the court before which such conviction may have been had. (Sec. 1756.) Any contract or agreement in violation of any pro- vision of this title shall be absolutely void. (Sec. 1757.) Any corporation organized or existing under the laws of this state that shall violate any provisions of this title shall thereby forfeit its corporate rights and franchises, and its corporate existence shall thereupon cease and determine. (Sec. 1758.) It shall be the duty of the secretary of state, upon satis- factory evidence that any corporation or association of persons, incorporated, or operating under the laws of this state, has entered into any trust, combination or associa- tion, as mentioned in the preceding provisions of this title, to give notice to such corporation that unless it withdraws from and severs all business connections with UTAH. 341 said trust, combination or association, its corporate right and franchise will be revoked at the expiration of thirty days from the date of such notice. (Sec. 1759.) At the expiration of thirty days, if such withdrawal or severance be not theretofore made, the secreta,ry of state shall cause a certified statement of the facts to be filed in the office of the attorney-general of the state, who shall commence, or direct any county attorney in the state to commence, an action, in any district court of the state of competent jurisdiction, to forfeit and revoke the cor- porate rights and franchise of such corporation. On the final decision of the same, should the defendant be found guilty of a violation of any of the provisions of this title, the court shall render judgment that the charter, cor- porate rights and franchises of such corporation be re- voked and the secretary of state shall thereupon make publication of such revocation in four newspapers in general circulation in four of the largest cities of the state. (Sec. 1760.) In case any person or persons shall do, cause to be done, or permit to be done, any act, matter or thing in this title prohibited or declared to be unlawful, such person or per- sons shall be liable to the person or persons injured thereby for treble the amount of damages sustained in consequence of any such violation. (Sec. 1761.) The word " person " or " persons," whenever used in this title, shall be deemed to include corporations, com- panies and associations, existing imder or authorized by the laws of either the United States or any of the terri- tories, any state, or any foreign country. (Sec. 1762.) [Charter 12. Acts 1913.] UNFAIR DISCRIMINATION AND COMPETITION IN THE BUYING AND SEIiJNG OF DAIRY PRODUCTS, POULTRY AND EGGS. Section 1. Any person, firm, company, association or corporation, foreign or domestic, doing business in the State of Utah and engaged in the business of buying milk, cream or butter fat for the purpose of manufacture or sale, or of buying poultry or eggs for the purpose of sale or storage, that shall for the purpose of creating a mo- nopoly or destroying the business of a competitor, dis- criminate between different sections, communities, locali- ties, cities or towns of this State by purchasing such com- 342 LAWS ON TEUSTS AND MONOPOLIES. modity or commodities at a higher price or rate in one section, community, location, city or town than is paid for the same commodity hy said person, firm, company, asso- ciation or corporation in another section, community, locality, city or town after making due allowance for the difference, if any, in the grade or quality, and in the actual cost of transportation from the point of purchase to the point of manufacture, sale or storage, shall be deemed guilty of unfair discrimination which is hereby prohibited and declared to be unlawful, but prices made . to meet competition in such locality shall not be in viola- tion of this act; and any person, firm, company, associa- tion or corporation or any officer, agent, receiver or mem- ber of such firm, company, association or corporation found guilty of unfair discrimination as herein defined shall be punished by a fine in any sum not more than five thousand dollars, or by imprisonment in the county jail . not exceeding one year, or by both such fine and impris- onment. Approved February 21, 1913. [Chapter 41. Acts 1913.] TTNFAIE COMBETITION AND DISCRIMINATION. Section 1. Any person, firm or corporation, foreign or domestic, doing business in the State of Utah, and en- gaged in the production, manufacture or distribution of any commodity in general use, that intentionally, for the purpose of destroying the competition of any regular, established dealer in such commodity, or to prevent the competition of any person, who in good faith intends and attempts to become such dealer, shall discriminate be- tween different sections, communities, or cities, of this State by selling such commodity at a lower rate in one section, community or city, or any portion thereof, than such person, firm or corporation, foreign or domestic, charges for such commodity in another section, commu- nity or city, after equalizing the distance from the point of production, manufacture, or distribution and freight rates therefrom, shall be deemed guilty of unfair dis- crimination. Sec. 2. If complaint shall be made to the attorney- general that any corporation is guilty of unfair discrimi- nation as defined by this act, he shall investigate such UTAH, 343 complaint and for that purpose he may subpoena wit- nesses, administer oaths, take testimony, and require the production of books or other documents, and, if in his opinion sufficient grounds exist therefor, he may prose- cute an action in the name of the State in the proper court to annul the charter or revoke the permit of such corpora- tion, as the case may be, and to permanently enjoin such corporation from doing business in this State, and if in such action the court shall find that such corporation is guilty of unfair discrimination as defined by this act, such court shall annul the charter or revoke the permit of such corporation, and may permanently enjoin it from transacting business in this State. Sec. 3. Any person, firm, or corporation violating the provisions of Section 1 of this act, shall upon conviction thereof, be fined not less than one hundred dollars, nor more than three thousand dollars for each offense. Approved March 12th, 1913. VERMONT. Statutes. amount of capital stock ; The capital stock of such corporation shall not be less than five hundred dollars, and shall be divided into shares not exceeding one hundred dollars each. Such capital stock may be increased at a meeting of the stockholders warned for that purpose. But no articles of association or certificates of increase of capital stock, increasing the capital stock of any corporation organized under this chapter to an amount exceeding ten million dollars, shall be filed by the secretary of state until the same have been submitted to a judge of the supreme court, who shall have the power to determine, with or without hearing, whether such proposed corporation may or may not be organized under the provisions of this chapter. Such judge shall not permit the organization of such corporation if in his opinion its organization is liable to create a monopoly or result in restraining trade. Shares of stock may be issued as preferred stock both as to dividends and on liquida- tion, under such terms and provisions as the articles of association or certificate of increase of capital stock may provide. But no stock shall be in any way preferred unless the terms of preference are definitely stated in the stock certificate; nor, in the case of stock issued under a certificate of increase of capital stock, unless its prefer- ence is authorized and approved by the unanimous vote of the common stock. (Sec. 4311, as amended by L. 1910, No. 143, Sec. 4.) 345 VIRGINIA. CONSTITUTION. , Sbo. 165. The general assembly shall enact laws pre- venting all trusts, combinations and monopolies inimical to the public welfare. 347 WASHINGTON. CONSTITUTION. Aet. XII, Sec. 22. Monopolies and trusts shall never be allowed in this state, and no incorporated company, copartnership or association of persons in this state shall directly or indirectly combine or make any contract with any other incorporated company, foreign or domestic, through their stockholders, or the trustees or assignees of such stockholders, or with any copartnership or associa- tion of persons, or in any manner whatever, for the pur- pose of fixing the price or limiting the production or regulating the transportation of any product or com- modity. The legislature shall pass laws for the enforce- ment of this section by adequate penalties, and in case of incorporated companies, if necessary for that purpose, may declare a forfeiture of their charter. ■ COURT DECISION. Wood V. City of Seattle, 23 Wash., 1 ; 52 L. R. A., 369. 349 WEST VIRGINIA, Note: There are no anti-trust statutes in West Vir- ginia. OOUET DECISION. THE PUBLIC INTEREST THE CKITERION IN JUDGING OF REASONABLE- NESS or THE RESTRAINT (wEST VIRGINIA, 188S). From the principles which underlie all the cases, the inference must be necessarily drawn that if there be any sort of business which from its particular character can be restrained to no extent whatever without prejudice to the public interest, then the courts would be compelled to hold void any contract imposing any restraint, howover partial, on this particular business, provided, of course, it be shown clearly that the peculiar business thus at- tempted to be restrained is of such a character that any restraint upon it, however partial, must be regarded by the court as prejudicial to the public interest. (West Va. Trans. Co. v. Ohio River Pipe Line Co., 22 W. Va., 600.) 351 WISCONSIN. STATUTES. Any corporation organized under the laws of this state which shall enter into any combination, conspiracy, trust, pool, agreement or contract intended to restrain or pre- vent competition in the supply or price of any article or commodity in general use in this state, or constituting a subject of trade or commerce therein, or which shall in any manner control the price of any such article or com- modity, fix the price thereof, limit or fix the amount or quantity thereof to be manufactured, mined, produced or sold in this state, or fix any standard or figure by which its price to the public shall be in any manner controlled or established, shall upon proof thereof, in any court of competent jurisdiction have its charter or authority to do business in this state cancelled and annulled. Every * * * corporation shall, upon filing its an- nual * * * report with the secretary of state, make and attach thereto the affidavit of its president, secretary or general managing officer, fully stating the facts in regard to the matters specified in this section. (S., Sec. 1791J ; L. 1907, p. 432.) Upon complaint being made to the attorney-general and evidence produced to him which shall satisfy him that any such corporation has violated any of the conditions specified in sections l791j and 1791k, he shall forthwith bring an action in the name of the state in any circuit court of this state to have the charter of such corporation forfeited, cancelled and annulled, and upon due proof being made thereof to the satisfaction of the court, judg- ment shall be entered therefor. (S., Sec. 17911; L. 1905. p. 944.) Any foreign corporation which shall enter into any combination, conspiracy, trust, pool, agreement or con- tract intended to restrain or prevent competition in the supply or price of any article or commodity in general 24427°— 14 2.3 353 354 LAWS ON TRUSTS AND MONOPOLIES. use in the state, or constituting a subject of trade or com- merce therein, or which shall in any manner control the price of any such article or commodity, fix the price thereof, limit or fix the amount or quantity thereof to be manufactured, mined, produced or sold in this state, or fix any standard or figure by which its price to the public shall be in any manner controlled or established, shall, upon proof thereof, in any court of competent jurisdic- tion, have its license or authority to do business in this state cancelled and annulled. (S., Sec. I770g; L. 1905. p. 937.) No foreign corporation shall be authorized to file its charter or articles of incorporation or association with the secretary of state, or be authorized to do business in this state unless it shall at the time of making applica- tion therefor file with the secretary of state an affidavit executed by its president, secretary or general managing officer stating that such corporation has not violated any of the provisions of section I770g ; and every such corpo- ration shall, upon filing its annual statement with the sec- retary of state, make and attach thereto the affidavit of its president, secretary or general managing officer, fully stating the facts in regard to the matters specified in section l770g. (S., Sec. I770h ; L. 1905, p. 937.) Upon complaint being made to the attorney-general and evidence produced to him which shall satisfy him that any such foreign corporation has violated any of the conditions specified in sections 1770f and I770g, he shall forthwith bring an action in the name of the state in any circuit court of this state to have the license of such corporation to do business in this state cancelled and annulled and upon due proof being made thereof to the satisfaction of the court, judgment shall be entered therefor. The provisions of section 1791m shall extend to all proceedings under this and the two foregoing sec- tions. (S., Sec. 17701; L. 1905, p. 937.) POWER TO HOLD STOCKS AKD BONDS OF OTHER CORPORATIONS. In all cases in which one corporation shall hold stock in another, such stock shall, at all meetings of the stock- holders of the latter corporation, be voted by the presi- dent of the former, unless its board of directors, by reso- lution adopted at any regular or special meeting of such WISCONSIN". 355 board, designate some other person for that purpose ; and any one or more officers of the former corporation may be chosen, qualify and act as directors and officers of the latter corporation, as in the case of other stockholders. (S. Sec. ITTea; L. 1905, p. 30.) Acts 1913. [No. 77, A.] Section 1791n — 9. 1. Any person, firm, or corporation, foreign or domestic, doing business in this state and en- gaged in the production, manufacture or distribution of any commodity in general use, that shall intentionally, for the purpose of destroying the competition of any regular, established dealer in such commodity or to prevent com- petition of any person who, in good faith, intends or at- tempts to become such dealer, discriminate between differ- ent sections, communities, or cities of this state, by sell- ing such commodity at a lower rate in one section, com- ■ munity, or city, or any portion thereof, than such person, firm, or corporation, foreign or domestic, charges for such commodity in another section, community, or city, after making due allowance for the difference, if any, in the grade or quality and in the cost of transportation from the point of production, if a raw product, or from the point of manufacture, if a manufactured product, shall be deemed guilty of unfair discrimination, which is hereby prohibited and declared unlawful. 2. Any person, firm, company, association or corpora- tion, and any officer, agent or receiver of any firm, com- pany, association or corporation, or any member of the same, or any individual violating any of the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than two hundred dollars, nor more than five thousand dollars for each offense, or by imprisoimaent in the county jail not to exceed one year, or by both such fine and imprisonment. Section I791n — 10. 1. Any person, firm, company, as- sociation or corporation, foreign or domestic, doing busi- ness in this state and engaged in the business of collecting or buying any product, commodity or property of any kind, that shall intentionally, for the purpose of injuring or destroying the business or trade of a competitor in any 356 LAWS ON TRUSTS AND MONOPOLIES. locality, or to prevent competition by any person who in good faith intends or attempts to engage in such business, discriminate between the different sections, communities, or cities of this state, or between persons, firms, associa- tions or corporations in any localitj, by buying any prod- uct, commodity or property of any kind,, and paying therefor a higher rate or price in one section, communitj', or city, or to any person, firm, association or corporation than is paid for the same kind of product, commodity or property by said person, firm, company, association or corporation, foreign or domestic, in another section, com* mimity or city, or to another person, firm, association or corporation, after making dvie allowance for the differ- ence, if any, in the grade or quality and in the actual cost of the transportation from the point whore the same is purchased to the market where it is sold, or intended to be sold, shall be deemed guilty of unfair discrimination, which is hereby prohibited and declared unlawful. 2. Any person, firm, company, association or corpora- tion, and any officer, agent or receiver of any firm, com- pany, association or corporation, or any member of the same, or any individual \iolating any of the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than two hundred dollars nor more than five thousand dollars for each offense, or by imprisonment in the county jail not to exceed one year, or by both such fine and imprisonment. Section 1791n — 11. The attorney general shall insti- tute, manage, control, and direct, by himself, his deputy or any of his assistants, in the proper county, all prosecu- tions for violations of sections 1791n — 9 and 1791n — 10 and for such purpose shall have and exercise all powers conferred upon district attorneys in such cases. If shall be the duty of the district attorney in tho county in which any such prosecution may be instituted or pending to co- operate with and assist the attorney general in such pros- ecution. Section 1791n — V2. If complaint shall be made to the attorney general that any corporation is guilty of unfair discrimination, as defined by the provisions of section I791n — 9 or 1791n — 10, he shall investigate such com- plaint and for that purpose he may subpoena witnesses, administer oaths, take testimony and require the produc- tion of books or other documents, and, if in his opinion ■wisooNsiN. 357 sufficient grounds exist therefor, he may prosecute an ac- tion in the name of the state in the proper court to annul the charter or revoke the permit of such corporation, as the case may be, and to permanently enjoin such corpora- tion from doing business in this state, and if in such action the court shall find that such corporation is guilty of unfair discrimination, as defined by the provisions of said section l'r91n — 9 or I791n — 10, such court shall annul the charter or revoke the permit of such corporation, and may permanently enjoin it from transacting business in this state. Section 2. This act shall take effect and be in force from and after its passage and publication. (Chapter 165, Acts, 1913.) COURT DECISIONS. Aikens v. State, 113 Wis., 419; 89 N. W., 1135. Berlin Machinery Works v. Perry, 71 Wis., 495; 38 N. W., 82. Bratt V. Swift, 99 Wis., 579; 75 N. W., 411. Calumet Service Co. v. Chilton, 148 Wis., 334; 135 N. W., 131. Covington v. Swan, ;28 Wis., 321; 107 N. W., 336. Eureka Laundry Co. v. Long, 146 Wis., 205; 131 N. W., 412. Fairbanks v. Leary, 46 Wis., 637. Gatzow V. Buening, 106 Wis., 1; 81 N. W., 1003; 49 L. K. A., 475. Plawarden v. Youghiogheny & L. Coal Co., Ill Wis., 546;56L. E. A.,828. Kellogg V. Larkin, 3 Pinney, 123. Kradwell v. Thiesen, 131 Wis., 97; 111 N. W., 233. Labenheimer v. Mann, 17 Wis., 542. Martins v. ReUly, 109 Wis., 464; 84 N. W., 840. Milwaukee Masons & B. Association v. Niezerowski, 95 Wis., 129; 70 N. W., 166. Murray v. McGarigle, 69 Wis., 483; 34 N. W., 522. My Laundry Co. v. Schmeling, 129 Wis,, 597; 109 N. W., 540. National Distilling Co. v. American Improvement Co., 86 Wis., 352. Palmer v. Thoms, 96 Wis., 367; 71 N. W., 654. Richards v. American Desk & Seating Co., 87 Wis., 503; 68 N. W., 787. 358 LAWS ON TRUSTS AND MONOPOLIES. Rubber Tire Wheel Co. v. Milwaukee Rubber Works Co., 142 Fed., 531. S. C. . . . 79 Wis., 138; 48 N. W., 253. Smith V. Nipert, 76 Wis. 86; 44 N. W., 846. State ex rel. Dumer v. Heugin, 110 Wis., 189; 85 N. W., 1046; 62 L. R. A., 700n. Tectonius v. Scott, 110 Wis., 441; 86 N. W., 672. Washburn v'. Dosch, 68 Wis., 436; 32 N. W., 551. WYOMING. CONSTITUTION. MONOPOLIES AND PERPETUITIES PROHIBITED. Akticle I. Sec. 30. Perpetuities and monopolies are contrary to the genius of a free state, and shall not be allowed. Corporations being creatures of the state, en- dowed for the public good with a portion of its sovereign powers, must be subject to its control. Akt. X, Sec. 6. No corporation shall have power to engage in more than one general line or department of business, which line of business shall be distinctly speci- fied in its charter of incorporation. STATUTES. TRUSTS PROHIBITED. Akt. X. Sec. 8. There shall be no consolidation or com- bination of corporations of any kiads whatever to prevent competition, to control or influence productions or prices thereof, or in any manner to interfere with the public good and general weKare. Any person, firm, or corporation, foreign or domestic, doing business in the State of Wyoming and engaged in the production, manufacture or distribution of any commodity in general uscj that shall, intentionally, for the purpose of destroying competition, disdiiminate be- tween different sections, communities or cities of this state, by selling such commodity at a lower rate in one sec- tion, community or city, or any portion thereof, than is charged for such commodity in another section, com- munity or city, after equalizing the distance from the point of production, manufacture or distribution and freight rates therefrom, shall be deemed guilty of unfair discrimination ; provided, however, that this act shall not apply to any case where by reason of different railroad rates or other natural things in favor of any manufac- 359 360 LAWS ON TRUSTS AND MONOPOLIES. turer or dealer of goods of this or another state such manufacturer or dealer sells at a different price than he does in another, in order to meet the competitive rates or other natural things in favor of such other manufac- turer or dealer ; provided, further, that this act shall not apply to any case where any manufacturer of or dealer in goods manufactured or produced in this state sells products in one place cheaper than in another to meet upon the same or more favorable basis any competition from foreign states, or this state; provided, further, that this act shall not prevent the sale of goods at proper com- mercial discount customary in the sale of such particular goods. (L. 1911, c. 62, Sec. 1.) If complaint shall be made to the attorney-general of the state of Wyoming, or the county and prosecuting at- torney of any county thereof, that any corporation, char- tered in this state or any foreign corporation, doing business in this state by virtue of compliance with the laws thereof, or any person or firm of persons doing business in this state, is guilty of unfair discrimination, within the terms of this act, it shall be the duty of the attorney-general, and the county and prosecuting attor- neys of this state to institute an inquiry as to such dis- crimination, giving to the party complained against notice and reasonable opportunity to be heard, and if in the judgment of such prosecuting officers, or either of them, any corporation, foreign or domestic, or any per- son or firm of persons shall have been guilty of unfair discrimination, within the terms of this act, it shall be their duty to institute quo warranto proceeding, to for- feit the charter of said domestic corporation, or if a for- eign corporation to procure an order of court to cause the permit of said corporation to do business in this state, immediately forfeited. (Id., Sec. 2.) If after the revocation of such charter, in the case of domestic corporation ; or if its permit, if it be a foreign corporation, any corporation shall continue or attempt to do business in the State of Wyoming, it shall be the duty of the attorney-general, by a proper suit, in the name of the State of Wyoming to oust such corporation from all business of every kind and character in said State of Wyoming. (Id., Sec. 3.) Any person, firm or corporation violating the provi- sions of this act shall be deemed guilty of a misdemeanor, WYOMING. 361 and upon conviction thereof, shall forfeit to the State of Wyoming the sum of not less than two hundred dol- lars for each and every violation of this act. Said sum to be recovered by a suit, in the name of the State of Wyoming, in any court of competent jurisdiction, by the attorney-general. (Id., Sec. 4.) Nothing in this act shall be construed as repealing any other act or part of an act, but the remedies herein pro- vided shall be cumulative to all other remedies provided by law. (Id., Sec. 5.) LAWS ON TRUSTS AND MONOPOLIES. FOREIGN COUNTRIES.' AUSTRALIA. THE ATJSTRALIAIT INDUSTRIES PRESERVATION ACT, 1906. [As amended by the acts of 1907, 1909, and 1910.] AN ACT For the preservation of Australian industries, and for the repression of destructive monopolies. [Assented to Sept. 24, 1906.] Be it enacted hy the King^ Most Excellent Majesty, the Senate, and the House of Representatives of the Com- Tnomwealth of Austrcdia, as follows: Part I. — Preliminary. 1. This act may be cited as the Australian industries preservation act, 1906-1910. 2. This act is divided into parts as follows: Part I, preliminary; Part II, repression of monopolies; Part III, prevention of dumping. 3. In this act, unless the contrary intention appears — " Commercial trust " includes a combination, whether wholly or partly within or beyond Australia, of separate and independent persons (corporate or unincorporate) , whose voting power or determinations are controlled or controllable by (a) the creation of a trust as understood in equity, or of a corporation wherein the trustees or cor- poration hold the interests, shares, or stock of the con- stituent persons; or (5) an agreement; or (e carried on •^ J, ' without pounder, brewer or malster, manufacturer of tobacco oriiceose. cigars, or bonded manufacturer, or use any utensil, ma- chinery, or apparatus suitable for carrying on any such trade or business, or any business subject to excise, or im- port, make, or begin to make any still, rectifier, or other apparatus suitable for the manufacture of wash, beer, or 388 LAWS ON TKUSTS AND MONOPOLIES. spirits, or for the rectification or compounding of spirits. (E. S., c. 34, s. 9.) (Eevised Statutes of Canada, 1906, Vol., II, chap. 51, sec. 17.) [4 Edward VII, chap. 17.] AN ACT To amend the inland revenue act. [Assented to Au;?. 10, 1904.] His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : R. s. c, c. 34. 1. The inland revenue act, chapter 34 of the E-evised N6'w section. Statutes, is amended by inserting the following section immediatelv after section 96: License to \,e " 96a. The minister of inland revenue may declare forfeited . .■' in case o£ sale forfeited any license authorized bv this act m any case or consignment •' , , ■ " j! ^ j. i of goods under where a person who, being a manufacturer of anv class restrictive con- ,,. ii. ■ -i t'i ditions. of goods sub]ect to a duty of excise, either directly or indirectly {a) makes a sale of any such goods, or consigns them for sale upon commission, to another person, sub- ject to the condition that the purchaser or the consignee shall not sell or deal in goods of a like kind produced by, or obtained or to be obtained from, any other manu- facturer or dealer; or (&) makes a sale of any such goods, or consigns them for sale upon commission, to another person, upon such terms as would, in their application, give more profit to the purchaser or the consignee if he should not sell or deal in goods of a like kind produced by, or obtained or to be obtained from, any other manu- Notice of for- f acturer or dealer, and the collector of inland revenue leiture. ^ shall thereupon cause a notice of such forfeiture to be of^forfXure ^^ forthwith inserted in The Canada Gazette, and from and after the insertion thereof the license shall be null and void, and no new license shall be granted to such person, and no license shall be granted to any other person for carrying on any business in the premises occupied by him until the minister of inland revenue is satisfied that the dealings above referred to have ceased. mi?fs"ter°to be " ^- "^^^ decision of the minister of inland revenue as flnai. to wheither any sale or consignment of goods is, or is not, subject to any such conditions, or upon any such terms, as is or are defined in subsection 1 of this section shall be final." (Statutes of Canada, 4 Edw. VII, 1904, Vols. I and II, chap 17.) CANADA. 389 POWER OF THE GOVERNOR IN COTTNCIL TO REDUCE DUTIES OR PLACE ON FREE LIST. 18. Whenever the governor in council has reason to be- J°^uiry by lieve that with regard to any article of commerce Ihere exists any trust, combination, association, or agreement of any kind among manufacturers of the article or deal- ers therein to unduly enhance the price of the article, or in any other way to unduly promote the advantage of the manufacturers or dealers at the expense of the con- sumers, the governor in council may commission or em- power any judge of the supreme court of Canada or of the exchequer court of Canada, or of any superior court in any Province of Canada, to inquire in a summary way into and report to the governor in council whether such trust, combination, association, or agreement exists. 2. The judge may compel the attendance of witnesses, Evidence. and examine them under oath, and require the produc- tion of books and papers, and shall have such other neces- sary powers as are conferred upon him by the governor in council for the purposes of such inquiry. 3. If the judge reports that such trust, combination, Report, association, or agreement exists, and if it appears to the governor in council that the disadvantage to the consum- ers is facilitated by the duties of customs imposed on a like article when imported, then the governor in council shall place the article on the free list, or so reduce the duty on it as to give to the public the benefit of reason- able competition in such article. (60-61 V., c. 16, s. 18.) (Revised Statutes of Canada, 1906, vol. 1, p. 834.) 12 Whenever, from or as a result of a judgment of a„*^° "o^'g^,®^^ the supreme court or exchequer court of Canada, or of*^'®^- any superior court, or circuit, district, or county court in Canada, it appears to the satisfaction of the governor in council that with regard to any article of commerce there exists any conspiracy, combination, agreement, or ar- rangement of any kind among manufacturers of such ar- ticles or dealers therein to unduly promote the advantage of the manufacturers or dealers at the expense of the con- sumers, the governor in council may admit the article free of duty, or so reduce the duty thereon as to give the public the benefit of reasonable competition in the article, if it appears to the governor in council that such disad- vantage to the consumer is facilitated by the duties of customs imposed on a like article. (Eepealed by sec. 47, combines investigation act, 1910.) Powers of governor m council. 390 LAWS ON TRUSTS AND MONOPOLIES. Evidence. iiqu'ry hj 2. Whenever the governor in council deems it to be in the public interest to inquire into any conspiracy, combi- nation, agreement, or arrangement alleged to exist among manufacturers or dealers in any article of commerce to unduly promote the advantage of the manufacturers or dealers in such article at the expense of the consumers, the governor in council may commission or empower any judge of the supreme court or of the exchequer court of Canada, or of any superior court or county court in Can- ada, to hold an inquiry in a summary way and report to the governor in council whether such conspiracy, combi- nation, agreement, or arrangement exists. 3. The judge may compel the attendance of witnesses and examine them under oath and require the production of books and papers, and shall have such other necessary powers as are conferred upon him by the governor in council for the purpose of such inquiry. 4. If the judge reports that such conspiracy, combina- tion, agreement, or arrangement exists in respect of such p o w e r s of article, the governor in council may admit the article free couDcli' ° there^ of duty, or SO reduce the duty thereon as to give to the public the benefit of reasonable competition in the article, if it appears to the governor in council that such disad- vantage to the consumer is facilitated by the duties of customs imposed on a like article. (Canada, The Customs Tariff, 1907, chap. 11, sec. 12.) Report of judge. COMBINES INVESTIGATION ACT. [9-10 Edward VII, chap. 9.] AN ACT To provide for the investigation of combines, monopolies, trusts, and mergers. Short title. [Assented to May 4, 1910.] His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1. This act may be cited as the " combines investigation act." INTERPRETATION . Definitions. Application. 2. In this act, unless the context otherwise requires — (a) "Application " means an application to a judge for an order directing an investigation under the provi- sions of this act; CANADA. 391 (J) " Board " means a board of investigation estab- lished under the provisions of this act ; (c) " Combine " means any contract, agreement, ar- rangement, or combination which has, or is designed to have, the effect of increasing or fixing the price or rental of any article of trade or commerce or the cost of the storage or transportation thereof, or of the restricting competition in or of controlling the production, manufac- ture, transportation, storage, sale, or supply thereof, to the detriment of consumers or producers of such article of trade or commerce, and includes the acquisition, leas- ing, or otherwise taking over, or obtaining by any per- son to the end aforesaid, of any control over or interest in the business or any portion of the business of any other person, and also includes what is known as a trust, monopoly, or merger; {d) " Department " means the department of labor; {e) " Judge " means, in the Province of Ontario, any judge of the high court of justice; in the Province of Que- bec, any judge of the superior court ; in the Provinces of Nova Scotia, New Brunswick, British Columbia, Prince Edward Island, Saskatchewan, and Alberta, any judge of the supreme court; in the Province of Manitoba, any judge of the court of King's bench; and in the Yukon Territory, any judge of the territorial court ; (/) " Minister " means the minister of labor; {g) " Order " means an order of a judge under the provisions of this act; (A) " Prescribed " means prescribed by this act or by any rule or regulation made thereunder; (i) "Eegistrar" means the registrar of boards of in- vestigation appointed under this act. Combine. Department. Judge. Minister. Order. Prescribed. Registrar. ADMINISTRATION . 3. The minister shall have the general administration tio^f™'"'^*"^^ of this act. 4. The governor in council shall appoint a registrar of ^oarlfs'.^*'^^'^ °' boards of investigation, who shall have the powers and perform the duties prescribed. (2) The office of registrar may be held either sepa- ^^^^^p vo^ n^t^- rately or in conjunction with any other office in the public "'"« °* o®'^^- service, and in the latter case the registrar may, if the governor in council thinks fit, be appointed by reference to such other office, whereupon the person who for the 392 LAWS ON TRUSTS AND MONOPOLIES. time being holds such office or performs its duties shall, by virtue thereof and without thereby being entitled to any additional remuneration, be the registrar. ORDER rOR IX\'ESTIGATION. Order for in- 5. Where six or more persons, British subjects resident in Canada and of full age, are of opinion that a combine exists, and that prices have been enhanced or competition restricted by reason of such combine, to the detriment of consumers or producers, such persons may make an appli- cation to a judge for an order directing an investigation into such alleged combine. for^o'JdeV'^''*'"" (^) Such application shall be in writing addressed to the judge, -and shall ask for an order directing an investi- gation into the alleged combine, and shall also ask the judge to fix a time and place for the hearing of the appli- cants or their respresentative. piicatSn."' ^^" (3) The application shall be accompanied by a state- ment setting forth — {a) The nature of the alleged combine and the persons believed to be concerned therein ; (S) The manner in which the alleged combine affects prices or restricts competition, and the extent to which the alleged combine is believed to operate to the detri- ment of consumers or producers; (c) The names and addresses of the parties making the application and the name and address of one of their number or of some other person whom they authorize to act as their representative for the purposes of this act and to receive communications and conduct negotiations on their behalf. of applicants. ° (4) The application shall also be accompanied by a statutory declaration "from each applicant declaring that the alleged combine operates to the detriment of the declarant as a consumer or producer, and that to the best of his knowledge and belief the combine alleged in the statement exists and that such combine is injurious to trade or has operated to the detriment of consumers or producers in the manner and to the extent described, and that it is in the public interest that an investigation should be had into such combine. appii?alufn. °' 6- Within 10 days after the judge receives the appli- cation he shall fix a time and place for hearing the appli- cants and shall send due notice, by registered letter, to CAKADA. 393 the representative authorized by the statement to receive communications on behalf of the applicants. At such hearing the applicants may appear in person or by their representative or by counsel. 7. If upon such hearing the judge is satisfied that there ^es'tigatioS'^ 'by is reasonable ground for believing that a combine exists •l""'-'''- which is injurious to trade or which has operated to the detriment of consumers or producers, and that it is in the public interest that an investigation should be held, the judge shall direct an investigation under the provisions of this act; or if not so satisfied, and the judge is of opinion that in the circumstances an adjournment should Ad jour n- inii-1 T !• •! ™6Dt for fur- be ordered, the ]udge may ad]ourn such hearmg until ther evidence. further evidence in support of the application is given, or he may refuse to make an order for an investigation. (2) The judge shall have all the powers vested in the j„a'g''7^''^ °^ court of which he is a judge to summon before him and enforce the attendance of witnesses, to administer oaths, and to require witnesses to give evidence on oath or on solemn affirmation (if they are persons entitled to affirm in civil matters), and to produce such books, papers, or other documents or things as the judge deems requisite. 8. The order of the judge directing an investigation Transmission shall be transmitted by him to the registrar by registered evidence to reg- letter, and shall be accompanied by the application, the statement, a certified copy of any evidence taken before the judge, and the statutory declarations. The order shall state the matters to be investigated, the names of the persons alleged to be concerned in the combine, and the names and addresses of one or more of their number with whom, in the opinion of the judge, the minister should communicate in order to obtain the recommendation for the appointment of a person as a member of the board as hereinafter provided. APPOINTMENT OF BOARDS. 9. Upon receipt by the registrar of the order directing ^^^pp"^"*™^"' an investigation the minister shall forthwith proceed to appoint a board. 10. Every board shall' consist of three members, who ^^ ^"a^^^""^*'™ shall be appointed by the minister under his hand and seal of office. 11. Of the three members of the board one shall be i,o**^emi3ers of appointed on the recommendation of the persons upon 394 LAWS ON TEUSTS AND MONOPOLIES. whose application the order has been granted, one on the recommendation of the persons named in the order as being concerned in the alleged combine, and the third on the recommendation of the two members so chosen. Recommenda- 12. The persons upon whose application the order has member. been granted and the persons named in the order as being concerned in the alleged combine, within seven days after being requested so to do by the registrar, may each re- spectively recommend the name of a person who is will- ing and ready to act as a member of the board, and the minister shall appoint such persons members of the board. communica- (2) For the purpose of obtaining the recommendations resentatives of referred to in subsection 1 of this section it shall be suffi- cient, as respects the applicants, for the registrar to com- municate with the representative mentioned in the state- ment as authorized to receive communications on their behalf, and as respects the persons concerned in the alleged combine it shall be sufficient for the registrar to communicate with the persons named in the order as the persons with whom the minister should communicate for this purpose, ter^mly '^lieci (^) ^^ ^^^ parties, or either of tliem, fail or neglect to members. make any recommendation within the said period, or such extension thereof as the minister, on cause shown, grants, the minister shall, as soon thereafter as possible, select and appoint a fit person or persons to be a member or members of the board. ti?n"^Tnd™ap- (^) '^^^ *""'° members so appointed may, within seven d'udgl^ls^third "^^^^ after their appointment, recommend the name of a member. judge of any court of record in Canada who is willing and ready to act as a third member of the board, and the minister shall appoint such judge as a member of the board, and if they fail or neglect to make a recommenda- tion within the said period, or such extension thereof as the minister on cause shown grants, the minister shall, as soon thereafter as possible, select and appoint a judge of any court of record in Canada to be the third member of the board. Chairman. - (5) The third member of the board shall be its chair- man. Vacancies. ^g^ ^ vacancy in the membership of a board shall be filled in the same manner as an original appointment is made. quaHfled "^i^s ^^- ^^ person shall act as a member of the board who members. jg qjj^ of ^Yie applicants for the board or who has any CANADA. 395 direct pecuniary interest in the alleged combine that is the subject of investigation by such board, or who is not a British subject. 14. As soon as possible after all the members of the ggNotice of per- board have been appointed by the minister the registrar shall notify the parties of the names of the chairman and other members of the board. 15. Before entering upon the exercise of the functions oatn of office. of their office the members of the board shall take the following oath: I, , do solemnly swear — That I will truly, faithfully, and impartially perform my duties as a member of the board appointed to in- vestigate . That I am a British subject. That I have no direct pecuniary interest in the alleged combine that is to be the subject of investigation. That I have not received nor will I accept, either directly or indirectly, any perquisite, gift, fee, or gratuity from any person in any way interested in any matter or thing to be investigated by the board. That I am not immediately connected in business with any of the parties applying for this investigation, and am not acting in collusion with any person herein. 16. The department may provide the board with ag,*^'^^'^*I,g^t^o stenographer and such clerical and other assistance as to i^oard. the minister appears necessary for the efficient carrying out of the provisions of this act. The department shall oisbursementa. also repay any reasonable and proper disbursements made or authorized and certified by the judge who grants the order directing the investigation. 17. Upon the appointment of the board the registrar commence- , ,, „ , , , . . „ , ,. • ment of Inves- shall forward to the chairman copies of the application, tigation. statement, evidence, if any, taken before the judge, and order for investigation, and the board shall forthwith proceed to deal with the matters referred to therein. INQUIRY AND HEPORT. 18. The board shall expeditiously, fully, and carefully inquiry- inquire into the matters referred to it and all matters affecting the merits thereof, including the question of whether or not the price or rental of any article con- cerned has been unreasonably enhanced, or competition in the supply thereof unduly restricted, in consequence 396 LAWS ON TRUSTS AND MONOPOLIES. jRepo-^tto^'^-oi a combine, and shall make a full and detailed report thereon to the minister, which report shall set forth the various proceedings and steps taken by the board for4he purpose of fully and carefully ascertaining all the facts and circumstances connected with the alleged combine, including such findings' and recommendations as, in the opinion of the board, are in accordance with the merits and requirements of the case. Scope of In- (2) In deciding any question that may affect the scope or extent of the investigation, the board shall consider what is required to make the investigation as thorough and complete as the public interest demands. K|p o r t of 19. The board's report shall be in writing, and shall be signed by at least two of the members of the board. The report shall be transmitted by the chairman to the regis- trar, together with the evidence taken at such investiga- tion certified by the chairman, and any documents and papers remaining in the custody of the board. A minor- ity report may be made and transmitted to the registrar by any dissenting member of the board. Publication of 20. Upon receipt of the board's report and of the rGDorts minority report, if any, a copy thereof shall be sent free of charge to the parties and to the representative of any newspaper in Canada who applies therefor, and the report and minority report, if any, shall also be pub- Distributionlished without delay in the Canada Gazette. The min- of copies. , ^ ister may distribute copies of the report, and of any minority report, in such manner as to him seems most desirable, as a means of securing a compliance with the tifl^rcopfes'^''" board's recommendations. The registrar shall, upon pay- ment of such fees as may be prescribed, supply a certified copy of any report or minority report to any person applying for it. cultoms'^'toties 21. Whenever, from or as a result of an investigation mnluTcomlt ""^er the provisions of this act, or from or as a result of tition. a judgment of the supreme court or exchequer court of Canada or of any superior court, or circuit, district, or county court in Canada, it appears to the satisfaction of the governor in council that with regard to any article there exists any combine to promote unduly the advan- tage of the manufacturers or dealers at the expense of the consumers, and if it appears to the governor in council that such disadvantage to the consumer is facilitated by the duties of customs imposed on the article, or on any like article, the governor in council may direct either that CANADA, 397 such article be admitted into Canada free of duty or that the duty thereon be reduced to such amount or rate as will, in the opinion of the governor in council, give the public the benefit of reasonable competition. 22. In case the owner or holder of any patent issued p^|n°'^n°ce?- under the patent act has made use of the exclusive rights *^''^ °*^®^' and privileges which, as such owner or holder he con- trols, so as unduly to limit the facilities for transporting, producing, manufacturing, supplying, storing, or deal- ing in any article which may be a subject of trade or commerce, or so as to restrain or injure trade or commerce in relation to any such article, or unduly to prevent, limit, or lessen the manufacture or production of any article or unreasonably to enhance the price thereof, or unduly to prevent or lessen competition in the produc- tion, manufacture, purchase, barter, sale, transportation, storage, or supply of any article, such patent shall begj-^^^g^^^'e"*},"" liable to be revoked. And, if a board reports that a pat- '^°"''*- ent has been so made use of, the minister of justice may exhibit an information in the exchequer court of Canada praying for a judgment revoking such patent, and the court shall thereupon have jurisdiction to hear and de- cide the matter and to give judgment revoking the pat- ent or otherwise as the evidence before the court may require. 23. Any person reported by a board to have been guilty strictTng°^man- of unduly limiting the facilities for transporting, pro- ^^^^^^'^^^^Yalon ducing, manufacturing, supplying, storing, or dealing in any article which may be a subject of trade or commerce; or of restraining or injuring trade or commerce in rela- tion to any such article; or of unduly preventing, limit- ing, or lessening the manufacture or production of any such article; or of unreasonably enhancing the price thereof; or of unduly preventing or lessening competi- tion in the production, manufacture, purchase, barter, sale, transportation, storage, or supply of any such ar- ticle, and who thereafter continues so to offend, is guilty of an indictable offense and shall be liable to a penalty P™»^ity' not exceeding $1,000 and costs for each day after the ex- piration of 10 days, or such further extension of time as in the opinion of the board may, be necessary, from the date of the publication of the report of the board in the Canada- Gazette during which such person so continues to offend. 398 LAWS ON TRUSTS AND MONOPOLIES. SITTINGS OF BOARD. bofr"'"^° »' 24. The sittings of the board shall be held at such times and places as are fixed by the chairman, after con- sultation with the other members of the board, and the parties shall be notified by the chairman as to the times and places at which sittings are to be held ; provided that, so far as practicable, the board shall sit in the locality within which the subject matter of the proceedings be- fore it arose. Proceedings. 25. The proceedings of the board shall be conducted in public, but the board may order that any portion of the proceedings shall be conducted in private. Decisions. 26. The decision of any two of the members present at a sitting of the board shall be the decision of the board. Quorum. 27. The presence of the chairman and at least one other member of the board shall be necessary to constitute a sitting of the board. mem'^r!™ "' 28. In case of the absence of any one member from a meeting of the board the other two members shall not proceed, , unless it is shown that the absent member has been notified of the meeting in ample time to admit of his attendance. par^t?es.'^'^°'^*°* 29. Any party to an investigation may appear before the board in person or may be represented by any other person or persons, or, with the consent of the board, may be represented by counsel. apl^oin'te'ij"°by ^O. Whenever in the opinion of the minister the public mfnister. interest so requires, the minister may apply to the min- ister of justice to instruct counsel to conduct the investi- gation before a board, and upon such application the minister of justice may instruct counsel accordingly. The fees and expenses allowed to such counsel by the minister of justice shall be paid out of such appropria- tions as are made by Parliament to provide for the cost of administering this act. ^cmitempt of 31 jf^ jjj ^^y proceedings before the board, any person willfully insults any member of the board, or willfully interrupts the proceedings, or without good cause refuses to give evidence, or is guilty- in any other manner of any willful contempt in the face of the board, any officer of the board, or any constable may take the person offending into custody and remove him from the precincts of the board, to be detained in custody until the conclusion of that day's sitting of the board, and the person so offend- CANADA. 399 ing shall be liable, upon summary conviction, to a penalty Penalty. not exceeding $100. WITNESSES AND EVIDENCE. 32. For the purposes of an investigation the board shall witnesses and have all powers which are vested in any court of record in civil cases for the following purposes, namely: The summoning of witnesses before it, and enforcing their attendance from any part of Canada, of administering oaths, and of requiring witnesses to give evidence on oath or on solemn affirmation (if they are persons entitled to affirm in civil matters), and to produce such books, pa- pers, or other documents or things as the board deems requisite to the full investigation of the matters into which it is inquiring. (2) Any member of the board may administer an oath, oati^- (3) Summonses to witnesses and all other orders, proc- sienature of ^ ^ ' ^ chairman, ess, and proceedings shall be signed by the chairman. 33. All books, papers, and other documents or things ^ inspection of , - ' , documents. produced before the board, whether voluntarily or in pur- suance of summons, may be inspected by the board, and also by such parties as the board allows. 34. Any party to the proceedings shall be competent- Parties as witlI16SS6S and may be compelled to give evidence as a witness. 35. Every person who is summoned and duly attends Expenses of as a witness shall be entitled to an allowance for attend- ance and traveling expenses according to the scale in force with respect to witnesses in civil suits in the superior courts of the Province in which the inquiry is being con- ducted. 36. If any person who has been duly served with a sum- ^ifnees'^to at- mons and to whom at the time of service payment or J^^'J ""^^t" p^°: tender has been made of his reasonable traveling expenses merits- according to the aforesaid scale, fails to attend or to pro- duce any book, paper, or other document or thing as re- quired by his summons, he shall, unless "he shows that there was good and sufficient cause for such failure, be guilty of an offense and liable upon summary conviction Penalty. to a penalty not exceeding $100. 37. The board may, with the consent of the minister, Experts. ^nplpy competent experts to examine books or official reports, and to advise it upon any technical or other mat- ter material to the investigation, but the information ob- tained therefrom shall not, except in so far as the board 400 LAWS ON TKXJSTS AND MONOPOLIES. deems it expedient, be made public, and such parts of the books, papers, or other documents as in the opinion of the board are not material to the investigation may be sealed up. EE:\rtrNERATION AND EXPENSES OF BOARD. olb^avT^^'"' 38. The members of a board shall be remunerated for their services as follows : {a) To the two members first appointed an allowance of $5 each per day for a time not exceeding three days during which they may be actually engaged in selecting the third member of the board. (5) To each member an allowance at the rate of $20 for each day's sitting of the board. pensea?""^*''" ^9- ^ach member of the board shall be entitled to his actual and necessary traveling expenses and an allowance of $10 per day for each day that he is engaged in travel- ing from or to his place of residence for the purpose of attending or after having attended a meeting of the board. gratfi!Fy*"'^pro' ^0. No member of the board shall accept, in addition to hibited. i^jg traveling expenses and allowances as a member of the • board, any perquisite, gift, fee, or gratuity of any kind from any person in any way interested in any matter or thing that is being investigated by the board. The ac- ceptance of any siich perquisite, gift, fee, or gratuity by any member of the board shall be an oflFense, and shall Penalty. render such member liable upon summary conviction to a fine not exceeding $1,000, and he shall thereafter be dis- qualified to act as a member of any board. eipenses.*'^ ""^ 41. All expenses "of the board, including expenses for transportation incurred by the members thereof or by persons under its order in making investigations under this act, salaries of employees and agents, and fees and traveling expenses of witnesses, shall be allowed and paid upon the presentation of itemized vouchers therefor, approved and certified by the chairman of the boardj which vouchers shall be forwarded by the chairman to Bta?ement"*oi*^® registrar. The chairman shall also forward to the sittings. registrar a certified and detailed statement of the sit- tings of the board and of the members present at each of such sittings. CANADA. 401 MISCELLANEOUS/ 42. No proceedings under this act shall be deemed in- tegaMtiea. ''' valid by reason of any defect of form or any technical irregularity. 43. Evidence of a report of a board may be given in ^.^^J^^^^'^'^^ °^ any court by the production of a copy of the Canada Gazette purporting to contain a copy of such report, or by the production of a copy of the report purporting to be certified by the registrar to be a true copy. 44. The minister shall determine the allowance or Allowances determined ty amounts to be paid to all persons, other than the mem- minister, hers of a board employed by the Government, or any board, including the secretaries, clerks, experts, stenog- raphers, or other persons performing any services under the provisions of this act. 45. The governor in council may make such regulations, by governor" in not inconsistent with this act, as to him seem necessary '=°"'«^"- for carrying out the provisions of this act and for the efficient administration thereof. (2) Such regulations shall be published in the Canada Pib"'=a"<'°- Gazette, and upon being so published they shall have the same force as if they formed part of this act. (3) The regulations shall be laid before both Houses ^^f^J^ ^Parfik^- of Parliament within 15 days after such publication if men*- Parliament is then sitting, and if Parliament is not then sitting then within 15 days after the opening of the next session thereof. 46. The minister shall lay before Parliament, within po^t^^pariia; the first 15 days of the then next session, an annual re- '"^''*' port of the proceedings under this act. 47. Subsection 1 of section 12 of the customs tariff, anind^e'a.'^' ^^' 1907, is repealed. 48. This act shall not be construed to repeal, amend, ^- ®' "^^ ^^^" or in any way affect the trade-unions act, chapter 125 of the Eevised Statutes, 1906. SCHEDTJI-B. [Form 1.] APPLICATION FOB ORDER DIRECTING AN INVESTIGATION. [The combines Investigation act. sec. 5.] Dated at , this day of , 19—. In the matter of an alleged combine (here state shortly the nature of the combine). §44§7°— J4 §Q 402 LAWS ON TRUSTS AND MONOPOLIES. To the honorable (here insert the name of the judge), a judge (or chief justice as the case may be) of the (here Insert the title of the court). The undersigned are of opinion that a combine exists (here state shortly the nature of the alleged combine) and that prices have been enhanced (or competition has been restricted by such combine, as the case may be) to the detriment of consumers (or producers, as the case may be). The undersigned therefore apply for an order under " the com- bines investigation act" directing an investigation into such alleged combine. (Here state — (a) the nature of the alleged combine and the persons believed to be concerned therein; and, (6) the manner in vrhich the alleged combine affects prices or restricts competition, and the extent to which the alleged combine is believed to operate to the detriment of consumers or producers, as the case may be.) STATEMENT ACCOMPANYING APPLICATION FOR OEDEB. Dated at this day of . 19—. The undersigned hereby authorize of (give name and place of residence) to act as our representative for the purpose of " the combines investigation act," and to receive communications and conduct negotiations on our behalf. The names and addresses of the persons applying for the afore- said order are as follows: Names. Addresses. stattjtobt declaration accompanying application foe oedeb.* Canada : Province of . to wit: I, , Of the of — In the of do solemnly declare: 1. That the alleged combine operates to my detriment as a con- sumer (or producer, as the case may be). 2. That to the best of my knowledge and belief the combine alleged in the foregoing statement exists, and that such combine is injurious to trade (or has operated to the detriment of consum- ers or producers, as the case may be) in the manner and to the extent described. 3. That it is in the public Interest that an investigation should be had into such combine. And I make this solemn declaration conscientiously believing it to be true, and knowing that it Is of the same force and effect as if made under oath, and by virtue of the Canada evidence act. Declared before me at , in the county of , this day of , 19—. » A declaration as above must be made by eaob applicant. CANADA. 403 [Form 2.] ORDER DIRECTING INVESTIGATION. [The combines Investigation act, sec. 7.] In the matter of the application of (here insert the names of applicants), dated the day of ■ 19 — , for an order directing an investigation under " the combines investigation act " into an alleged combine (here state shortly the nature of the combine) . I, the honorable , a judge (or chief justice, as the case may be) of (here insert the name of court), after having read the application of (names of applicants), dated the day of , 19__, the statement and statutory declarations accompanying the same, and the evidence produced by the said applicants, am satisfied that there is reasonable ground for believing that a com- bine exists (here describe nature of. combine), which is injurious to trade (or which has operated to the detriment of consumers or producers, as the case may be), and that it is In the public interest that an investigation should be held, under the provisions of the said act, into the following matters, that is to say : (Here sel out the matters to be investigated.) The names of the persons alleged to be concerned in the alleged combine are (here insert names and addresses), and I am of opinion that the minister of labor should communicate with (here insert the name or names with, in each case, the address), in order to obtain the recommendation for the appointment of a person as a member of the board of investigation on behalf of those concerned in the said alleged combine. . Dated at , this day of , 19 CAPE OF GOOD HOPE. ACT TO PREVENT A MONOPOLY 01" THE MEAT TRADE (No. 15 of 1907). Whereas, it appears that within recent years certain persons have formed combinations for regulating the meat trade in order to secure larger profits, and whereas the effect of such combinations is prejudicial to the pub- lic interest^ and whereas it is desirable to provide by law against such combinations. Be it enacted by the Governor of the Cape of Good Hope, by and with the advice and consent of the Legis- lative Council and the House of Assembly thereof, as follows: — 1. In this Act the following words shall, unless the con- text otherwise requires, bear the meanings set opposite them : — " Butcher " shall mean any person who is required to take out a butcher's licence under the pro- visions of Section twenty of Act No. 3 of 1864, and Section five of the amending Act No. 43 of 1898. " Person " shall include any partnership or company. " Superior Court " shall mean the Supreme Court, Eastern Districts Court, High Court or any Cir-- cuit Court within their respective jurisdictions. 2. Every licence to carry on the trade of a butcher^ is- sued after the promulgation of this Act, shall bear en- dorsed thereon the address of the premises in which the trade is to be carried on, and any person who shall carry on the said trade in premises other than those in respect of which the licence has been issued shall be subject to the penalties to which any person is liable who carried on such trade without a licence, provided, however, that nothing in this section contained shall be deemed to affect the provisions of sections seven, eight and nine of Act No. 13 of 1870: Provided further and notwithstanding any- thing to the contrary in Act No. 20 of 1884, the licence fee payable by a butcher to sell South African grown 405 406 LAWS ON TRUSTS AND MONOPOLIES. meat only, shall be Five Pounds per annum, and the licence fee payable by a butcher to sell also other than South African grown meat, or to sell other than South African grown meat only, shall be Ten Pounds per annum. 3. Every act, contract, combination or conspiracy in unreasonable restraint of the trade of a butcher is hereby declared to be illegal, and every person who shall commit any such act or make any such contract or engage in such combination or conspiracy shall be guilty of a criminal offence, and subject on conviction to a penalty not exceed- ing £500, and in default of payment thereof to imprison- ment with or without hard labour for a period not ex- ceeding twelve months : Povided (1) That it shall not be illegal for any person carry- ing on the trade of a butcher to enter into a bond fide partnership with any other person carrying on the same trade; or to enter into any hond fde arrangement with any other per- son or persons carrying on the same trade, with the object of effecting economies in the said trade or carrying on business more econom- ically. (2) That the provisions of this section shall not ap- ply to any contract which is the mere accom- paniment of the sale of fixed property for the purpose of enhancing the price at which the vendor sells the said property. 4. All contracts and undertakings in support of any combination the object of which is to secure the control of the sale of meat, so as to enable such combination to arbitrarily control or regulate the price thereof, shall be held to be illegal and void. 5. Any person who is engaged in the trade of a butcher or acting on behalf of a butcher, who shall compel, or at- tempt to compel, by threats, or intimidation, verbally or in writing; any butcher to sell meat at a price or prices other than those at which he is or was selling at the time when such threats or intimidation were made, or would have sold but for such threats or intimidation, shall be guilty of a criminal offence and subject on conviction to a penalty not exceeding £100, and in default of payment thereof to imprisonment with or without hard labour for a period not exceeding six months. CAPE OP GOOD HOPB. 407 6. The licence to carry on the trade of a butcher issued to any person who shall be convicted under sections three or five hereof shall be cancelled and no such licence shall be issued to him at any time within the period of two years from the date of such a conviction. 7. Any contravention of the provisions of sections three and five of this Act shall be prosecuted in a superior court. 8. The foregoing provisions of this Act or any of them, with the exception of that part of section two which ap- plies to the licence fees payable by butchers, shall be- come operative only in those Divisions of this Colony in which it may be proclaimed to be in force by the Gov- ernor upon an application to that effect from the Divi- sional Council of the Division, under a resolution adopted by such Council at a meeting where at least three- fourths of the members are present, and at least a majority of those present voted for the resolution: provided that if the Divisional Councils of the Cape^ Port Elizabeth, East London or Kimberley decline to make such appli- cation, any Municipal Council within any one of these Divisions may make application for the proclamation of the provisions of this Act within its own Municipal area. 9. This Act may be cited for all purposes as the " Meat Trade Act, 1907." &MA1: BRitAlU. feilEA'T BRITAIN COMPANIES (CONSOLIDATION) ACT. The interests of the trading public in England, as represented by consumers and dealers, have not been the subject of special legislation (except in the ancient stat- utes covering the cases of badgering, engrossing, fore- stalling, and regrating). Combinations in restraint of trade are prima facie void and not illegal ; no statute in force makes them criminal, and the policy of the law, as at present declared by the legislature, is against all fetters on combination and competition unaccompanied by violence or fraud or other like injurious acts. The common law and the statutes with reference to * badgering, forestalling, regrating, and engrossing de- clared that certain large operations in goods which inter- fered with the ordinary course of trade were injurious to the public, and they were held criminal accordingly, but the penal statutes were repealed by 12 George III (c. 71) , and the common law was left unaided. By 7 and 8 Victoria (c. 24) the common law in respect to badgering, engrossing, forestalling, and regrating was expressly re- pealed, with a proviso to the effect that the act should not apply to the offense of knowingly and fraudulently spreading or conspiring to spread false rumors with in- tent to affect the prices of goods or merchandise, nor to the offense of preventing or endeavoring to prevent, by force or threats, goods or merchandise being brought to market.^ On the other hand, the interests of the trading public, from the standpoint of investors and creditors, have been the subject of careful consideration and considerable legislation, and incidentally some of the abuses often charged to industrial combinations, such as overcapitali- zation and its results, have in a measure been corrected by the publicity given to corporate affairs. The subject of company-law reform was investigated in 1894 by a departmental committee composed of mem- 1 Mogul S. S. Co. V. McGregor, 23 Q. B. D. (1889), 629. 409 410 LAWS ON TKUSTS AND MONOPOLIES. bers of Parliament, judges, prominent lawyers, and mer- chants, who, after considering the comments and sugges- tions of commercial bodies throughout the country, framed a bill which was introduced in 1894. This oc- cupied the attention of the House of Lords until 1900. when it was finally passed, considerably modified' but ■very much on the original lines. The purposes of the legislation and the condition which led to its adoption, as shown by the report of the com- mittee in 1895, the annual reports of the board of trade, and Parliamentary debates, are briefly indicated below.. It was generally conceded that the vast majority of corporations were honestly formed for the purpose of engaging in legitimate business, and that the facilities offered by the companies act of 1862 (the first great cor- poration act) for the formation of companies with limited liability greatly extended British trade and at- tracted a great amount of foreign capital, but it was generally acknowledged that certain abuses of public con- fidence which did not exist prior to this act, and which would have been practically impossible in the case of individuals or private partnerships, had developed to such an extent as to warrant the consideration of new legislation with a view to their correction. The problem before Parliament was, on one hand, the protection of the large body of the public represented in investors and creditors, and, on the other hand, to avoid restricting unduly the facilities for the creation and de- velopment of corporations, which had contributed so largely to the prosperity of the country, and needlessly embarrassing their administration. Instead of adopting arbitrary rules which in some cases might effectively prevent an abuse but in others seriously interfere with the prosecution of legitimate business, it was deemed sufficient, for the time being at least, to pro- vide for a certain amount of publicity in corporate affairs, enforcing those requirements by penalties, imposed in many cases upon the individuals who knowingly and will- fully disregarded them. The necessity for publicity, and its effect, can best be shown by a few typical cases. A frequent cause of failure and the resulting loss to stockholders and creditors was the so-called "loading" of the purchase price of property acquired by a new cor- poration. An option to purchase a business frequently GBEAT BBITAIN, 411 passed through a number of vendors, the price being increased with each successive sale. It was pointed out that there was no objection to this provided that it was done openly. If the persons invited to subscribe to the new company were informed that they would purchase the property at, say, twice the amount the real and present owner was willing to sell it for, and they cared to invest in such an undertaking, it was their own affair. The law now provides that a prospectus, which it de- fines as any notice, circular, advertisement, or other in- vitation, offering to the public for subscription or pur- chase any shares or debentures of a company, must be filed with the registrar of companies, and must show (1) the names and addresses of the vendors, and where there is more than one separate vendor, or the company is a subpurchaser, the amount payable to each vendor; (2) the particulars and the nature and extent of the interest of every director in the promotion of, or property to be acquired by, the company; (3) the dates of and parties to every material contract, and a reasonable time and place for the inspection of such contracts; and further, that a company which does not issue a prospectus shall not allot any shares or debentures until a statement in lieu of a prospectus has been filed. A person is deemed a vendor who has entered into any contract, absolute or conditional, for the sale or purchase, or for any option of purchase, of any property to be acquired by the company. The purpose of the legislation is to disclose the real vendor, the real purchase price, and who is profiting by the promotion. Another frequent cause of disaster in England, as shown by the reports of the board of trade, was proceed- ing to allotment of shares with insufficient subscriptions, often merely for the purpose of paying the preliminary expenses. While it was deemed impracticable to fix a proportion of the capital to be subscribed before allot- ment, owing to the varying circumstances of each case, the law provides that the minimum amount upon which a company offering shares to the public may proceed to issue stock must be fixed by the memorandum or articles of association and named in the prospectus, in default of which the entire capital offered for subscription must be taken. The subscriber is thus given an opportunity of forming his own judgment as to the immediate prospects of the company. 412 LAWS ON TBTJSTS AKD MONOPOLIES. Another serious cause of complaint sought to be cor- rected by publicity was in connection with debentures and mortgages. A man owning a declining business could incorporate, taking debentures or a mortgage from the company in payment for his property, thus becoming his own secured creditor. In case of failure, not only the creditors but the stockholders suffered, because he held practically all the assets. The inadequacy of the partial publicity required by the earlier acts was shown by cases of intending credit- ors, who, from their examination of the records, were informed that there was a large amount of uncalled cap- ital due, often from a list of substantial stockholders. They were unaware of a mortgage on the uncalled cap- ital,^ and, extending credit under such circumstances, they assumed a risk they possibly would not have considered if they had been fully informed. The law now provides that particulars of all mortgages, debentures, and charges shall be filed with the registrar of companies and shall be open to public inspection. While it was fully realized that legislation could not protect the public from the re- sults of their own recklessness, it was considered proper that corporations should supply the inquiring investor or creditor with information sufficient at least to enable him to form a judgment, and that publicity as to financial status was a just and necessary condition to attach to the privilege of limited liability. Again, the disclosures re- quired in many particulars are really no more than those due from persons acting in a fiduciary capacity, and while the underlying principles have long been recog- nized by courts of law and equity, they have frequently been overlooked by persons engaged in the promotion of corporations. The application of certain of these prin- ciples by the companies act tends not only to protect the public, but to bring home to promoters and directors a sense of their obligations and to shareholders the stand- ards of commercial morality which they have a right to expect from persons whom they have been invited to trust. One important feature of the act is that certain con- ditions made possible by secrecy are prevented, and that an unsatisfactory financial condition of the company is made apparent to the creditors and stockholders in time 'Under the English law the uncalled capital may he mortgaged If au- thorized by the memorandum and articles. GREAT BBITAIN. 413 for them to take such action as seems necessary before the assets are further diminished. It was pointed out in Parliament that the existing methods of redress by means of criminal actions were unsatisfactory because of the great indisposition to resort to criminal procedure and the tendency of juries to acquit for doing what was only a common practice. In addition it was necessary to be reasonably certain that there was sufficient evidence, and in some cases it was extremely difficult to secure it, while there might be little doubt that gross frauds had been committed. Civil actions were at- tended with considerable difficulty and heavy expense. . It is apparent from the foregoing that in order to give effect to certain provisions of the companies acts an ad- ministrative office was required. The duties were im- posed upon the board of trade, and some of the most important will be noted hereafter. A digest of the provisions of the act of 1908 in respect of (1) the classification of companies, (2) the powers and duties of the board of trade in connection with the administration of the act, accompanied by extracts from the annual reports of the board, (3) information avail- able to the public, (4) the penalties for the enforcement of the act, and an outline of the history and organization of the board of trade are appended hereto. CLASSiriCATION OF COMPANIES. The English law has classified companies (1) in re- spect of the liability of members, (2) in respect of their organization and relation to the public. IN BESPECT OF LIABILITY OF MEMBEES. (a) Companies " limited by shares," defined as com- panies having the liability of their members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them. (&) Companies "limited by guarantee," the liabilities of the members being limited by the memorandum of association to such amount as the members may respec- tively undertake to contribute to the assets of the com- pany in the event of its being wound up. (c) " Unlimited companies," the members of which have no limit to their liability. There are comparatively few companies of this class, 414 LAWS ON TBTJSTS AND MONOPOLIES. Unless otherwise noted, the provisions of the act here- after referred to relate generally to companies " limited by shares." IN BESPECT OF OBGANIZATION AND BELATION TO THE PUBLIC. (a) "Private companies," which are defined. as those which by their articles restrict the right to transfer shares, limit their membership to not more than 50 (ex- clusive of persons employed by the company), and pro- hibit any invitation to the public to subscribe for any shares or debentures. (&) "Public companies," which include all other than private, and which are chiefly considered hereafter. The most important distinctions between public and private companies are as follows: (a) A private company may be formed by two persons, while a public company requires seven. (h) The preliminary requirements are fewer in the case of private companies. The certificate of incorporation is granted upon the delivery to the registrar of companies of the memorandum and articles of association, whereas other companies can not commence business without com- pliance with a series of preliminary conditions, including the registration of a prospectus or a statement in lieu thereof. (e) An annual audited balance sheet, summarizing the capital, liabilities, and assets of the company, is required from a public company, but not from a private company.^ {d) Private companies are not required to file with the registrar a copy of a detailed report as to the position of the company which is sent to members before its first or " statutory " meeting." (e) Private companies are exempt from the provisions of the act permitting the inspection of balance sheets, auditor's and other reports by holders of debentures and preference shares.^ POWEES AND DUTIES OF THE BOAKD OF TRADE IN RESPECT TO THE ADMINISTRATION OF THE COMPANIES (CONSOLIDA- TION) ACT 1908. While most of the duties imposed upon the board of trade by this act are in connection with the dissolution of ^ Companies (consolidation) act, 1908, sec. 26. ' Companies (consolidation) act, 1908, sec. 65. ' Companies (consolidation) act, 1908, sec, 114, GEBAT BRITAIN. 415 companies, there are some powers which may be exercised under certain circumstances over going concerns. Inspection. — Perhaps the most important, at least in theory, is that of inspection of the affairs of a company at the request of its stockholders.^ This power of inspec- tion, however, has been very rarely used.^ The inspec- tors appointed by the board have access to all the book= and documents of the company and may examine its officers and agents under oath, rendering, finally, a report to the board of trade. Copies of this report are, upon request, furnished to the applicants for the examination, and, when properly authenticated, are admissible in any legal proceeding as evidence of the opinion of the in- spectors in relation to any matters therein contained. Abuse of this privilege is prevented by a provision that the application shall be by persons holding not less than one-tenth of the shares issued, and by a requirement of the board of trade that the application shall be supported by evidence of the good faith of the applicants, and that they have good reason for demanding the investigation. The board may, in addition, require the applicants to secure the costs of the investigation, which must be de- frayed by them unless, in the discretion of the board, they should be borne by the company. Audit. — Upon the application of any stockholder the board of trade may appoint auditors for any company upon its failure to do so at its annual meeting.^ The regular audit of accounts, though usually pro- vided for in the articles of a company, was considered by Parliament to be too important to stockholders and the public to be left to a voluntary arrangement. The ap- pointment of auditors by the board of trade, upon the application of a stockholder, is provided for extending the principle adopted in regard to banking companies in the companies act 1879.* The auditors have access to all books and are required to report to the stockholders, on the accounts examined by them, which report shall state whether they have obtained all information and explana- tions required by them, and whether in their opinion the balance sheets submitted in general meeting exhibit a correct view of the company's affairs. 1 Companies (consolidation) act, 1908, sec. 109. 2 Palmer's Company Law (7th ed.), p. 220. 'Companies (consolidation) act, 1908, sees. 112-113. * Palmer's Company Law (7th ed.), p. 221, 416 LAWS ON TBUSTS AND MONOPOLIES. Payment of interest out of capital. — ^Where any shares are issued to raise money for the construction of any works, buildings, or plant which can not be made profit- able for a lengthened period, the company may pay inter- est on so much of that share capital as is for the time being paid up, provided that it is authorized by the articles or special resolution, and, further, that it is sanctioned by the board of trade, which may investigate the circumstances at the expense of the company and the payments may continue only for such portion of the time limited by the act as the board may determine, but in no case shall the rate of interest exceed 4 per cent per annum or such lower rate as may be prescribed by order in council.^ Articles of association. — The act requires the articles of association to be registered, and provides that in the absence of articles adopted by the company,, or in so far as filed articles do not exclude or modify model articles appended to the act, such model articles shall constitute the articles of the company.'' The board of trade may alter or add to these statutory articles, which alterations or additions will thereafter have the force of law ; the changes, however, not affecting companies previously registered.^ Change of name. — A company may, by special resolu- tion, change its name, but only with the consent of the board of trade.* The board has authority to establish registration offices, make regulations as to the performance of the duties of the registrar, and to prescribe fees for the inspection or copies of the records of the registrar, not exceeding the maximum prescribed by the act.' Other duties in connection with going concerns, but more ministerial in character, such as issuing certificates of incorporation, the registration of such documents as the act requires to be published, etc., have been imposed upon the board. WINDING UP AND BEMOVAL FROM EEQISTEB. A company once incorporated can not be dissolved except by compliance with the provisions of the act, or by removal from the register as a defunct company. ^ Companies (consolidation) act, 190S, sec. 91. 2 Companies (consolidation) act, 1908, sees. 10 and 11. = Companlos (consolidation) act, 1908, sec 118. •Companies (consoUdatlont act, 1908, sec. 8 (3). 5 Companies (consolidation) act, 1908, sec, 243 (1), (2). GBEAT BEITAIN. 417 The grounds on which a winding-up order maybe made by the court are : (a) If the company has by special resolution resolved that the company be wound up by the court ; (b) If default is made in filing the statutory report or in holding the statutory meeting; (c) If the company does not commence its business for a whole year; (d) If the number of members is reduced, in the case of a private company, below two, or, in the case of any other company, below seven; (e) If the company is unable to pay its debts ; (f) If the court is of the opinion that it is just and equitable that the company should be wound up.^ Just what " Just and equitable " means is, of course, impossible to define, but winding-up orders have been made on the ground that the substratum of the company was gone,^ that the company was a bubble,' and that the company was conceived and brought forth in fraud.* The winding-up order once having been issued by the court, however, the board of trade is charged with many important duties. When it became necessary to appoint a receiver, the official receiver attached to the court for banpruptcy purposes shall be appointed, or, if there is more than one, such one of them as the board of trade may select, and in the absence of any official receiver the board may ap- point an officer for the purpose." , A receiver thus- appointed shall submit a preliminary report to the court, stating the amount of capital issued, subscribed, and paid up; the estimated amount of assets and liabilities ; the causes of failure ; his opinion whether further investigation in regard to the promotion, forma- tion, or failure of the company or the conduct of the busi- ness is desirable, and may report further whether in his opinion .any fraud has been committed and mention any other matters desirable to be brought to the attention of the court.' 1 Companies (consolidation) act, 1908, sec. 129. ^ German Date Coffee Co., 20 C. D., 169 ; Red Rock Gold Mining Co., 61 L. T., 785. ' London & County Coal Co., 3 Eq., 35S. * J. B. Brlnsmead & Sons (1897), 1 Cli. 45, 1 ch. 406 (Appeal). 5 Companies (consolidation) act, 1908, sec. 140. "Companies (consolidation) act, 1908, sec. 148, 24427°— 14 27 418 LAWS ON TRUSTS AND MONOPOLIES. If the receiver further reports that iri his opinion fraud has been committed in the promotion of the company, or by any director or officer since its formation^ the court may publicly examine such person or persons on oath, and the receiver and liquidator (if any) may take part in such examination. Notes of the examination shall be reduced to writing, signed by the person examined, and may be used in evidence against him, and shall be open to the inspection of any creditor or contributory.^ The public examination provided for in this section. was introduced into the company laws as section 8 of the director's liability act, 1890, and was at first largely re- sorted to, but its operation was considerably curtailed by a decision of the House of Lords in 1896, holding that no order for public examination of a particular person can be made unless the official receiver expresses the opinion that such person has been guilty of fraud and shows how he is connected with the facts.^ The provision has, notwithstanding this limitation, been availed of in a number of cases, as shown by the fol- lowing table: Public c-i-a niiimlions. Yeav. Winding- up orders. Number ol companies in wliioh examina- tion ordered. Number of persons examined. 1902 112 83 98 89 116 108 126 146 13.5 10 16 7 U 8 10 9 9 6 15 50 25 33 16 24 28 18 ■11 1903 1904 1903. .~ 190fi 1907 1908 1909 1910 1 Reports, Board of Trade, 1902-1910. Where, in the course of winding up a company, it ap- pears that any person taking part in the formation or promotion of the company, or any past or present direc- tor, manager, liquidator^ or officer has misapplied any funds, or has been guilty of breach of trust, the court may, upon the application of the official receiver, liquida- tor, or any creditor or contributory, examine into the conduct of the person complained of and compel him to 'Companies (consolidation) act, 1908, sec. 175. = Es: parte Barnes (1906), A. C. 146. Civil, Naval, and Militarv Out- fitters (1899), 1 Cli. 215. GEEAT BEITAIN. 419 restore any such money or property to the company, and the^ order shall be deemed a final judgment.^ The receiver shall call separate meetings of creditors and contributories to determine whether an application, shall be made to the court for appointing a liquidator in the place of the official receiver and determining whether application is to be made for the appointment of a committee of inspection consisting of creditors and contributories to act with the liquidator." Where the official receiver becomes the liquidator of a company he may, in his discretion, apply to the court for the appointment of a special manager with such pow- ers and for such time as the court may direct, and the special manager so appointed shall give such security and account in such manner as the board may direct.' An account called the " Companies liquidation ac- count " shall be kept by the board of trade with the Bank of England, and all moneys received by the board in re- spect of proceedings under this act in connection with the winding up of companies in England shall be paid to that account.* Whenever the balance of this general account is in excess of the immediate requirements of the board, it may be invested in Government securities, and the divi- dends shall be considered in fixing fees payable in wind- ing-up proceedings.'' When the committee of inspection deems the balance to the credit of the-company to be in excess of immediate requirements, the board shall invest the excess in Govern- ment securities and credit the dividends to the company.® When the balance to the credit of any company's ac- count with the board of trade exceeds £2,000, and the liquidator notifies the board that the excess is not re- quired, the company shall be entitled to 2 per cent inter- est on the excess.® Every liquidator shall, at least twice a year, render to the board of trade an account of his receipts and pay- ments, which shall be audited by the board, summarized, and sent to creditors and contributors, a copy being re- 1 Companies (consolidation) act, 1908, see. 215. "Companies (consoliflatlon) act, 1908, sees. 152, 100. ' Companies (consolidation) act, 1908, sec. 161. * Companies (consolidation) act, 1908, see. 229. ^Companies (consolidation) act, 1908. sec. 2.30. ' Companies (consolidation) act, 1908, sec. 231, 420 LAWS ON TBUSTS AND MONOPOLIES. tained by the board for the inspection of any person interested.^ The board may direct a local investigation into the books and vouchers of the liquidator, and may, in its discretion, apply to the court to examine him or any other person on oath concerning the wind-up of any company.^ The board shall take cognizance of the conduct of liqui- dators of companies being wound up by the court, and, if they do not observe the requirements imposed upon them by the statute or rules, or a complaint is made by any creditor or contributory, the board shall inquire into the matter and take such action as it may think expe- dient.2 Upon the conclusion of his duties the liquidator shall' report to the board of trade, and after consideration of the report and any objection urged against his release by a creditor or contributory the board shall grant or with- hold his release accordingly, subject to an appeal to the high court.^ An order of the board of trade releasing the liquidator shall discharge him from all liability, but may be re- voked on proof that it was obtained by fraud or by sup- pression of any material fact.* In the absence of a committee of inspection appointed to act with the liquidator, the board of trade may do any act that the committee might do under the act. Under the rules of the board of trade the committee of inspec- tion, consisting of creditors and contributories, assists the liquidator in the administration of the assets of the company. The board of trade may, with the approval of the treas- ury, appoint such additional officers as may be required for winding up companies, and may remove any person so appointed." An inspector general in companies liquidation was ap- pointed in 1891, to whom the official receivers of the board of trade throughout the country report in connec- tion with matters arising under the companies act." 1 Companies (consolidation) act, 1008, sec. WS. 'Companies (consoUaatlon) act, 1908, sec. 159. TompanifH (consoUrlutlonj art, 1908, sec. 157. 'Companlfts (consoli.lntlon) act, 1908, sees. 1.52, 100; Statutory Kui™ and Orders, 1909, p. !Jo. 'Companies (consolidation) act, 1908, sec. 2ZZ, 'Statutory itales and Orders, 1891, GEEAT BRITAIN. 421 The officers of the courts winding up companies shall report to the board of trade at such times and in such manner as may be required, and from these returns the board shall prepare books which shall be open for public information under the regulations of the board.^ The lord chancellor may, with the concurrence of the president of the board of trade, make general rules for carrying into effect the objects of this act so far as it relates to the winding up of companies in England." Such rules shall be laid before Parliament and shall be judicially noticed and shall have the force of law." (Kules made under this authority may be found in Stat- utory Eules and Orders, 1909, pp. 61-203.) The accounts of the board of trade in relation to the winding up of companies in England shall be audited in such manner as the treasury may direct, and the board shall make such returns as the treasury direct " for the purposes of the account to be laid before Parliament. Defunct companies. — ^Where the registrar of companies has reasonable cause to believe that a company is not carrying on business, he shall send an inquiry by mail to its registered office, and in default of an answer in one month shall in 14 days after the expiration of the month send a second, after which in default of an answer for one month a notice will be published in the Gazette that unless cause is shown to the contrary within three months the company shall be removed from the register and dis- solved. The registrar may, under similar conditions, remove a company from the register when he has reasonable cause to believe either that no liquidator is acting or that the affairs of the company are fiilly wound up and the re- turns required to be made by him have not been made for six months after a demand for them has been made. The court may restore any company to the register if. on the application of the company, or any member or creditor, it is satisfied that the company was carrying on business, or otherwise that it is just that the company be restored to the register upon such conditions as the court may deem fit, and the company shall be deemed to have continued in existence as if its name had not been struck off.* 1 Companies (consoUdatlon) act, 1908, sec. 235. ' Companies (consolidation) act, 1908, see. 237. 'Companies (consolidation) act, 1908, sec. 234. * Companies (consolidation) act, 1908, see. 242. 422 I^AWS ON TEUSTS AND MONOPOLIES. The board of trade shall cause an annual report of the matters within this act to be prepared and laid before both Houses of Parliament.^ REPORTS or THE BOARD OF TRADE. The publicity afPorded by the law has taken two forms, the annual reports of the board of trade, submitted to Parliament in accordance with the act, and the informa- tion required to be filed and open to the inspection of the public. With the information available at the office of the registrar of companies, and from the reports of the offi- cial receiver on companies wound up, the board of trade has been able to report upon improper methods of pro- motion or management and common causes of failure during the previous year. While thus enabled to observe the deficiencies of the law, it has, by means of the same information, been possible to report upon the effect of each amendment. The reports also contain typical cases illustrating various causes of failure, often accompanied with frank comment upon the methods employed by the promoters or officers, and the board has repeatedly called the attention of the public to the provisions of the law intended for their protection. In addition to the above, each report contains detailed statistics in respect of companies registered or wound up during the preceding year. The following extracts taken from the first annual report of the board of trade (1891) illustrate the char- acter of these reports : But perhaps tlie most frequent of all the abuses arising in con- nection with the formation of companies lies In the exercise of the power by which the directors proceed to allotment on a purely nominal share subscription. Forgetful of this fact innu- merable cases have occurred where persons have been induced to subscribe for shares in a company believing that it would start possessed of ample means with which to carry out the objects for which it was formed, and where they subsequently found that by the act of allotment upon a merely nominal subscription the directors had compelled them to become partners in a company which was doomed to failure by the total inadequacy of Its resources. This evil is aggravated by the fact that the directors are in the majority of cases the nominees of the promoters, and that it is, as a rule, [to] the interest of the latter that an allot- ment should be made. 'Companies (consolidation) act, 1908, aec. 283. GBEAT BKtTAlN. 4^3 In regard to some of these matters, the evils referred to may, to some extent, be capable to mitigation by legislation, but it will probably be found Impossible to guard against all the ever-chang- ing and endless devices of unscrupulous promotors, and the most effective remedy will probably be found in the exercise of greater caution and discrimination on the part of the investing public. ***** Again, some of the companies -were formed merely for the pur- pose of carrying out an idea, not accompanied by the acquisition of any property or rights — sometimes an Idea involving great benefit to the community, if it could be properly carried out. The failure of such companies is not to be taken as showing that the idea In Itself was erroneous, but merely that the means adopted were unsuitable or Insufficient. In all these cases, the amount of capital subscribed by the public was wholly inadequate for the purposes of the company, as judged even by the estimate of its promoters on its formation. The fact is, the directors should never have gone to allotment ; and in doing so they entirely neg- lected and sacrificed the Interests of the subscribers. In many cases what they did was simply to seize the moneys of a mere handful of subscribers, and to use them In paying the expenses of promotion and the other preliminary expenses of the company. In discussing the failures of the past year in its eight- eenth annual report, the board of trade (1908) cited the following case: Brazilian Rubber Plantations & Estates (Ltd.) (High Court). This company was formed on the 31st of January, 1906, with a nominal capital of £180,000, for the purpose of acquiring and de- veloping rubber estates in Brazil. A few months prior to the formation of the company the original vendor of these estates sold them for fl5,CKX). The purchaser In his turn sold them in October, 1905, to the promoters for £20,000. In January, 1906, the promoters formed a syndicate to acquire the property for £50,000, and through the medium o'f the syndicate promoted the company and sold the property to It for £150,000 on the 31st of January, 1906. This was a grossly Inflated figure, no change having taken place In the property since the previous Octo- ber, when It was sold by the original vendor for £15,000. The company's prospectus, which was issued on the 1st of Feb- ruary, 1906, the day after the registration of the company, con- tained various misstatements, which are set out in the official receiver's report, and among them the official receiver refers to the following paragraphs : " The area of the estates, which are freehold and unencumbered, is approximately 12,500 acres. " The distance from the estates to the railway is about 12 miles on an easy gradient." These two statements are said by the directors to be based partly on a letter to the effect that mules carried the produce to the railway, about 12 miles distant. The word " mules " In the ■letter, the directors state, was misread "miles," and, 20 miles being taken to mean 20 square miles, they considered that they 424 LAWS ON teus:ds and monopolies. were moderate when they set down the 20 square miles In the pros- pectus as containing only 12,500 English acres. The official receiver reported to the court that in his opinion fraud had been committed by the promoters and by some of tlie directors, and a public examination has been held by the court of the i)ersons reported against by the official receiver. The nineteenth annual report (1909) contains the following : Another Instance of the way in which persons disregard in- formation which is made available by law for their protec- tion is afforded by the case of The Bee & the Bells Kefresh- ment Contracting SjTidicate (Ltd.), (Leeds). This company was registered in October, 1909, with a nominal capital of £5,000 in £1 shares, as a private company. The object of forming the company was to enable the promoter (who was a refreshment caterer and who had obtained the exclusive right to supply re- freshments on the aviation grounds at Blackpool during the flying week) to carry the business through witiiout personal liability. Though the nominal capital was £5,000, the capital subscribed for cash was £2 only, and this fact was open to any inquirer at Som- erset House. With this capital of £2 only at his back, the com- pany managed to Incur liabilities to the extent of £1,551, and the official receiver estimates that the net loss to creditors will amount to 19s. in the pound. The following extract is from the annual report for the year 1910 : Insurance companies. — There have been several Important fail- ures during the past year of companies carrying on various forms of ihsurance business. Of these failures that of the Law Car & General Insurance Corporation (Ltd.), is, so far as figures are concerned, the most important, but the National Free Homes Association (Ltd.) is a very bad example of the companies which cater for poor people and induce them to part with their savings. This latter company received upward of £17,000 in small sums from poor people, and practically the whole of this sum was ab- sorbed by the directors and officials in the payment of their own salaries. INFORMATION AVAILABLE TO THE PUBLIC. The following information is open to the inspection of the public at the office of the registrar of companies, with the exception of one or two items, where, as indicated, the document is for the inspection of members or con- tributories only. As an indication of the actual use of this information by the public, the registrar of companies reported in 1895 that over 100 persons searched the files daily. 1. The memorandum of association, which must state : GREAT BEITAIN. 425 (a) The name of the company, with " limited " as the last word of the name. (6) Location of registered office. (c) Objects of company. (d) That the liability of its members is limited. (e) The amount of capital and number of shares. (/) The names of each subscriber and amount of stock subscribed for.^ 2. Any change of name by company.^ 3. Any alterations in memorandum of association.' 4. Articles of association provided by the company (if any), or those provided by the act of 1908.* 5. A list of members of the company, a list of all persons who have ceased to be members, their names, addresses, and occupations, the number of shares held by each, and the date of all transfers of stock.^ Note. — ^These requirements as to the publicity of lists of mem- bers of companies and their holdings are in marked contrast with those existing in the TJnited States. The laws of 50 States and Territories In respect of the accessibility of this information may be classified as follows : Open to the public, 6; two of these fall to provide a penalty for'noncompliance. Open to persons " interested," 2; one of these fails to provide a penalty for noncompliance. Open to stoclihold- ers and creditors, 14; three of these fail to provide a penalty for noncompliance. Open to stockholders only, 21 ; three of these fail to provide a penalty for noncompliance. Open to creditors only, 1. 'List required to be kept, but no provision for access, 4. No provision relating to this subject, 2. Total, 50. (Corporation Manual, 1910.) 6. A summary distinguishing between shares issued for cash and shares issued as fully or partly paid up oth- erwise than in cash, specifying — (a) The share capital, and the number of shares. (&) The number of shares taken from the commence- ment of the company to the date of the return. (c) The amount called up on each share. (d) The total amount of calls received. (e) The total amount of calls unpaid. (/) The total amount of the sums (if any) paid by way of commission in respect of any shares or debentures, or allowed by way of discount in respect of any deben- tures, since the date of the last return. 1 Companies (consolidation) act, 1908, sec, 13. 2 Companies (consolidation) act, 1908, sec. 8. ^Companies (consolidation) act, 1908, sec. 9. 'Companies (consolidation) act, 1908, sec. 11. 'Companies (consolidation) act, 1908, sec. 26, 426 LAWS ON TRUSTS AND MONOPOLIES. {g) The total number of shares forfeited. (A) The total amount of shares or stock for which share warrants are outstanding at the date of the return. (i) The total amount of share warrants issued and surrendered, respectively. {j) The number of shares or amount comprised in each share warrant. {k) The names and addresses of directors. (l) The total debt due from the company in respect of all mortgages and charges.^ (1) For the purpose of securing any issue of deben- tures. (2) On uncalled capital. (3) Created or evidenced by an instrument which, if executed by an individual, would require registration, as a bill of sale. (4) On any land or interest therein. (5) On any book debts. (6) Or a floating charge on the undertaking or prop- erty of the company.^ 7. A balance sheet audited by the company's auditors (except where the company is a private company), con- taining a summary of its share capital, its liabilities, and its assets, giving such particulars as will disclose the gen- eral nature of those liabilities and assets, how the values of the fixed assets have been arrived at, and showing the total amount (if any) paid in commissions for subscrip- tions to shares or debentures,^ but it need not include a statement of profit and loss.^ 8. A statutory report, certified by two directors, a copy of which has been sent to every member of the company at least seven days before a general meeting, called the statutory meeting, held not less than one month nor more than three months from the date at which the company is entitled to commence business. The obvious purpose of the statutory meeting with its prelimi- nary report is to put the shareholders of the company as early as possible in possession of all the important facts relating to the new company. * * * Furnished with these particulars, the shareholders are to have an opportunity of meeting and discussing the whole situation — the management, methods, and prospects of the company. If the shareholders fail to do so, they have only themselves >to blame.'' ^ Companies (consolidation) act, 1908, sec. 26. ' Companies (consolidation) act, 1908, sec. 93. ' Companies (consolidation) act, 1908, sec. 90. < Palmer's Company Law (7th ed.), p. IBS. GEEAT BRITAIN. 427 This report must show — (a) The total shares allotted, distinguishing shares allotted as fully or partly paid up or otherwise than in casli, and stating in the case of shares partly paid up the extent to which they are so paid up, and in either case the consideration^ for which they have been allotted. (h) The total amount of cash received by the company in respect of all the shares allotted, distinguished as aforesaid. (c) An abstract of the receipts of the company on account of its capital, whether from shares or debentures, and of the payments made thereout, up to within seven days of the date of the report, exhibiting under distinctive headings the receipts of the company from shares and debentures and other sources the jfeyments made there- out, and particulars concerning the balance remaining in hand, and an account or estimate of the preliminary ex- penses of the company. (d) The names, addresses, and descriptions of ^he di- rectors, auditors, managers, and secretary. (e) The particulars of any contract, the modification of which is to be submitted to the meeting for its approval, together with the particulars of the proposed modifica- tion.^ (This statutory report need not be forwarded or filed by a private company.) 9. Copies of every special and extraordinary resolu- tion.^ 10. Copies of every " prospectus " issued by or on be- half of a company, or any person who is or has been engaged in the formation of the company. The discipline exercised by the act is largely by means of the provisions in respect of this document, which is de- fined as any " notice, circular, advertisement, or other invitation, offering to the public for subscription or pur- chase any shares or debentures of a company." To com- ply with the requirements of the act, the prospectus must show — (a) The contents of the memorandum, with the names, descriptions, and addresses of the signatories, and the number of shares subscribed for by them, respectively; and the number of founders or management or deferred shares, if any, and the nature and extent of the interest of the holders in the property and profits of the company; and ^ CompanieB (consolidation) act, 1908, sec. 65. a Companies (consolidation) act, 190S| sec. TO; 428 LAWS ON TRUSTS AND MONOPOLIES. (b) The number of shares, if any, fixed by the articles as the qualification of a director, and any provision in the articles as to the remuneration of the directors ; and (c) The names, descriptions, and addresses of the directors or proposed directors ; and (d) The minimum subscription on which the directors may proceed to allotment, and the amount payable on application and allotment on each share ; and in the case of a second or subsequent offer of shares, the amount offered for subscription on each previous allotment made within the two preceding years, and the amount actually allotted, and the amount, if any, paid on the shares so allotted; and (e) The number and amount of shares and debentures which within the tw6 preceding years have been issued, or agreed to be issued, as fully or partly paid up other- wise than in cash, and in the latter case the extent to which they are so paid up, and in either case the consid- eration for which those shares or debentures have been issued or are proposed or intended to be issued ; and (/) The names and addresses of the vendors of any property purchased or acquired by the company, or pro- posed to be purchased or acquired, which is to be paid for wholly or partly out of the proceeds of the issue offered for subscription by the prospectus, or the pur- chase or acquisition of which has not been completed at the date of issue of the prospectus, and the amount pay- able in cash, shares, or debentures, to the vendor, and where there is more than one separate vendor, or the com- pany is a subpurchaser, the amount so payable to each vendor: Provided, That where the vendors, or any of them, are a firm the members of the firm shall not be treated as separate vendors ; and iff) The amount (if any) paid or payable as pur- chase money in cash, shares, or debentures, for any such property as aforesaid, specifying the amount (if any), payable for good will ; and (h) The amount (if any) paid within the two pre- ceding years, or payable, as commission for subscribing or agreeing to subscribe, or procuring or agreeing to procure subscriptions, for any shares in, or debentures of. the company, or the rate of any such commission: Pro- vided, That it shall not be necessary to state the com- mission payable to subunderwriters ; and GEEAT BRITAIN. 429 (i) The amount or estimated amount of preliminary expenses; and {}) The amount paid within the two preceding years or intended to be paid to any promoter, and the consider- ation for any such payment; and {k) The dates of and parties to every material con- tract and a reasonable time and place at which any ma- terial contract or a copy thereof may be inspected : Pro- vided, That this requirement shall not apply to a con- tract entered into in the ordinary course of the business carried on or intended to be carried on by the company, or to any contract entered into more than two years be- fore the date of issue of the prospectus ; and (l) The names and addresses of the auditors (if any) of the company ; and (m) Full particulars of the nature and extent of the interest (if any) of every director in the promotion of, or in the property proposed to be acquired by, the com- pany, or, where the interest of such a director consists in being a partner in a firm, the nature and extent of the in- terest of the firm, with a statement of all sums paid or agreed to be paid to him or to the firm in cash or shares or otherwise by any person, either to induce him to be- come, or to qualify him as, a director or otherwise for services rendered by him or by the firm in connection with the promotion or formation of the company ; and (n) Where the company is a company having shares or more than one class the right of voting at meetings of the company conferred by the several classes of shares, respectively.^ 11. A company which does not issu6 a prospectus shall not allot any shares or debentures unless there has been filed with the registrar of companies a statement in lieu of a prospectus signed by every person named as a di- rector or a proposed director and containing the partic- ulars set out in the following form.^ (A private com- pany is not required to file a prospectus or a statement in lieu of a prospectus.) 1 Companies (consolidation) act, 1908, sec. 81. =i Companies (consolidation) act, 1908, sec. 82. 430 LAWS ON TKUSTS AND MONOPOLIES, Statement in lieu of prospectus filed 6y — section 82 of the companies (consolidation) sented for filing By . (.Ltd.). pursuant to act, 1908. Pre- The nominal share capital of the company— £ (Shares of £ each. Shares of £ each. Shares of £ each. [1 shares of £ fully paid. 2 shares upon which £ I per share credited as paid. !3 debenture, £ A. Consideration. Divided into Names, descriptions, and addresses of directors or proposed directors Mmimum subscription (if any) fixed by the memo- randum or articles of association on which the company may proceed to allotment Number and amount of shares and debentures agreed to be issued as fully or partly paid up otherwise than in cash The consideration for the intended issue of those shares and debentures \ Names and addresses of vendors i of property pur- chased or acquired or proposed to be purchased ^ or acquired by the company Amount (in cash, shares, or debentures) payable to each separate vendor Amount (if any) paid or payable (in cash or shares or debentures) for any such property, specifying amount (if any) paid or payable for" good will. . . Amount (if any) paid or payable as commission for subscribing or agreeing to subscribe or procuring or agreeing to procure subscriptions for any shares or debentures in the company, on Rate of the commission Estimated amount of preliminary expenses Amount paid or intended to be paid to any pro- moter Consideration for the payment Dates of and parties to every material contract (other than contracts entered into in the ordi- nary course of the business intended to be car- ried on by the company or entered into more than two years before the filing of this statement) . Time and place at which the contracts of copies thereof may be inspected Names and addresses of the auditors of the com- pany (if any) Full particulars of the nature and extent of the interest of every director in the promotion of or in the property proposed to be acquired by the company, or, where the interest of such a director consists in being a partner in a firm the nature and extent of the mterest of the firm, with a statement of all sums paid or agreed to be paid to him or to the firm in cash or shares, or ouier- wise, by any person either to induce him to be- come, or to quality him as a director, or otherwise for services rendered by him or by the firm in connection with the promotion or formation of the company Whether the articles contain any provisions pre-' eluding holders of shares or debentures receiving and inspecting balance sheets or reports of the auditors or other reports Total purchase price. . £. . Cash £. Shares £. Debentures £. Goodwill £. Amount paid. Amount payable. Rate, per cent. £ p^ame of promoter. \Amount, £ Consideration. Nature of the provisions. ' For definition of vendor see section 81 (2) of the companies (consolidation) act, 1908. ' See section 81 (3) of the companies (consolidation) act, 1908. (Signatures of the persons above named as directors or proposed directors, or of their agents authorized in writing.) 12. Xotice of the consolidation or division of share capital into shares of a larger amount, or the conversion GKEAT BRITAIN. 431 of shares into stock, or a reconversion of stock into shares, shall be filed with the registrar of companies.^ 13. Copy of order of the court approving any reduc- tion of capital.* 14. Particulars of any mortgage or charge for the pur- pose of securing any issue of debentures, or on uncalled share capital, or created or evidenced by an instrument ' which, if executed by an indivdual, would require reg- istration as a bill of sale, or on any land or interest therein, or on book debts, or a floating charge on the undertaking or property of the company, together with a copy of the instrument.* 15. Particulars as to debentures as follows: The total amount secured by the series, the dates of the resolutions authorizing the issue, the date of the deed (if any), a general description of the property charged, the names of the trustees (if any) for the debenture holders, the rate per cent of any commission paid for subscriptions, to- gether with the deed containing the charge, or' if there is no such deed, a copy of one of the debentures.' 16. Notice of the appointment of a receiver.* 17. Semiannual abstract of receipts and disbursements of a receiver, and a notice that he has ceased to act.' 18. Notice of any winding-up order made by the court.* 19. A copy of the report of the official liquidator of a company being wound up by the court, showing receipts and disbursements and the progress of the liquidation.' (For the inspection of creditors and interested persons only.) 20. A statement to the official receiver by the directors and chief officer of a company being wound up by the court, containing particulars of its assets and liabilities, names, residences, and occupations of its creditors, the securities held by them, respectively, the dates when such securities were given, and such further information as may be prescribed or as the receiver may require.' (This is open to inspection by creditors or contributors only.) 1 Companies (consolidation) act, 1908, sec. 42. 2 Companies (consolidation) act, 1908, sec. 51. " Companies (consolidation) act, 1908, sec. 93. * Companies (consolidation) act, 1908, sec. 94. = Companies (consolidation) act, 1908, sec. 95. " Companies (consolidation) act, 1908, sec. 143. 'Companies (consolidation) act, 1908, sec. 155. * Companies (consolidation) act, 1908, sec. 147. 432 LAWS ON TRUSTS AND MONOPOLIES. 21. Notice that a meeting of the company, called by the , liquidator in case of a voluntary winding up, for the pur- pose of explaining his final account, has been held. 22. Three months after registration of this notice the company shall be deemed dissolved, unless the dissolution is deferred by the court for cause shown by an interested party.^ 23. A copy of any order of a court declaring a dissolu- tion void upon the application of the liquidator or other interested party within two years of the date of the original order of dissolution.^ Registration office and fees. — There shall be offices for the registration of companies at such places as the board of trade think fit, and documents kept by the registrar may be inspected by any person, who may also obtain cer- tified copies upon the payment of reasonable fees for such inspection or copies. A certified copy so obtained shall be of equal validity with the original in all legal pro- ceedings.' 24. A return of allotments of shares, from both private and public companies, stating the number and nominal amount of the shares in tlie allotment, the names, ad- dresses, and descriptions of the allottees, and the amount (if any) paid or due on each share, and in the case of shares allotted as fully or partly paid up otherwise than in case, a contract in writing constituting the title of the allottee, together with any contract of sale or for services or other consideration in respect of which the allotment was made, and a return stating the number and nominal amount of shares so allotted, the extent to which they are to be treated as paid up, and the consideration for which they have been allotted. In the absence of a written con- tract the particulars indicated on the following form shall be filed with the registrar.* 1 Companies (consolidation) act, 190S, sec. 195. " Companies (consolidation) act, 1908, sec. 223. •Companies (consolidation) act, 1008, sec. 243. * Companies (consolidation) act, 1908, sec. 88, Form 52, order of 1909. GEEAT BBITAIN. 433 Particulars prescribed under section 88, subsection (2). Filed by (Ltd.). Presented for filing by . [In cases where a contract such as is mentioned in paragraph (6) of subsection (1) of section 88 of the companies (consolidation) act, 1908, is not reauoed to writing, the com- pany must, within the time limited in the said section, file with the registiai of joint- stock companies the following particulars of the contract, which particulars must be stamped with the same stamp duty as would have been payable if the contract had been reduced to writing.) (1) The number of shares, in whole or in part, allotted for a consideration other than cash (2) If the consideration for the allotment of any shares is services, or any consid- eration other than that mentioned below In part 3, state what such, con- sideration consists of (3) If the consideration for the allotment of any shares is a sale of property, or the agreement for sale of property, state fully the consideration for, and other terms of, such sale or agreement for sale. (4) Give full particulars, in the form of the following table, of the property which is the subject of the sale, showing in detail now the total considera- tion is apportioned between the respective heads: Equitable estates, or interests in freeholds and leaseholds, whether in the United Kingdom or abroad (which includes hereditaments sub- ject to a legal mortgage) Patents, licenses, trade-marks, and copyrights Good will Fixtures and fittings Books and other debts (including money on deposit at bank or else- where) Benefit of contracts Other property, viz: '— Total. (5) If the consideration payable is partly in respect of a sale of property or agree- ment for a sale of property and partly in respect of some other considera- tion, state fairly how much of the amount of the consideration is attribu- table to each of the heads of the property sold or agreed to be sold and how much to such other consideration (6) If the consideration payable consists in the assumption by the purchaser of liabilities to third persons, specify the total amount of suchliabllities (Signature.) Date (Designation of position in relation to the company.) PENALTIES. The provisions of the act of 1908 are enforced by a number of penalties, the most important of which are the following : Default In filing a copy of the prospectus with the registrar of companies. Penalty : The company, and every person knowingly a party to the issue of the prospectus, is liable to a fine not exceeding £5 for every day from the date of issue until a copy is filed.' Untrue statements in a prospectus. Penalty: Every person shall be liable to compensate all sub- scribers for loss sustained by reason of such untrue statement, unless he had reasonable grounds for belief that the statement was true, or that, having consented to become a director, he with- drew his consent, and that the prospectus was issued without his consent ; or that, on becoming aware of its issue without his con- sent, he gave public notice of the fact.' Unauthorized use of director's name in a prospectus.' 1 Companies (consolidation) act, 1908, sec. 80. • Companies (consolidation) act, 1908, sec. 84. 24427°— 14 28 434 LAWS ON TRUSTS AND MONOPOLIES. Unauthorized use of name of a person as director In the list of directors filed witli registrar of companies, upon application for registration of the company. Penalty: The person applying for registration is liable to a Jlne not exceeding £50.' ^ „ ^ 4. Violation of the provisions of the act in respect of allotment. Penalty ■ Allotment voidable for one month after holding statu- tory meeting, and any director who knowingly contravenes or permits the contravention of these provisions is liable to com- pensate the company and the allottee for any loss, damages, or costs sustained. Period of limitation, two years from date of allotment.'' A company shall not commence business or exercise borrowing powers unless — Shares held subject to the payment of the whole amount in. cash have been allotted to an amount not less in the whole than the minimum subscription, and Every director has paid on each of his shares the same pro- portion that is payable on the allotment of shares offered to the public, and There has been filed with the registrar of companies a statutory declaration by the secretary or a director that the above condi- tions have been complied with ; In the case of a company which does not issue a prospectus, there has been filed a statement in lieu of a prospectus. Penalty: Any contract made before a company is entitled to commence business is provisional only, and shall not bind the company until that date. Every person responsible for the con- travention shall, without prejudice to any other liability, be liable to a fine not exceeding f50 for every day during which It continues." Note. — The above section does not apply to private companies. Default of a limited company when allotting shares to file, within a month, a return showing the number and nominal amount of shares allotted, and amount paid or payable on each share; or, if shares are allotted as fully or partially paid up otherwise than in cash, to file a contract showing the title of allottee and any contract of sale, or for services, or other consideration for allot- ment, together with a return showing number and nominal amount of shares allotted, extent to which treated as paid up, and con- sideration for which allotted; or, if the contract above described be not in writing, to file the prescribed particulars of contract. (See form, p. — .) Penalty : Every officer knowingly a party to the default Is liable to a fine not exceeding £50 for every day during which default continues. Provided, that the court, in its discretion, may relieve from the penalty and extend the time for filing.* Default in holding the statutory meeting or filing the statutory report. Penalty: The company may be wound up by the court at the Instance of a shareholder, and costs may be charged to any 1 Companies (consolidation) act, 1908, sec. 72. ' Companies (consolidation) act, 1908, sec. 86. ' Companies (consolidation) act, 1908, sec. 87. • Companies (consolidation) act, 1908, sec. 88. GREAT BRITAIN. 435 person who, in the opinion of the court, is responsible for the default' Default in keeping at the company's registered office a list of directors or managers, with their names, addresses, and occupa- tions; and in filing a copy of said list and all changes with the registrar of companies. Penalty : The company, and every director and manager know- ingly and willfully authorizing or permitting the default, is liable to a fine not exceeding £5 for each day of the default.' Refusal to permit inspection of the company's register of mem- bers by any member gratis, and by any other person upon payment of 6d. ; or — Refusal to furnish copies upon payment of fees prescribed. Penalty: The company, and every director and manager who knowingly authorizes or permits the refusal, is liable to a fine not exceeding £2 for each refusal, and a further fine of not exceeding £2 for each day during which the refusal continues, and the high court may compel an immediate compliance.' Default in keeping a register of mortgages and charges showing particulars in each case. Penalty: Every director, manager, or other officer of the com- pany who knowingly and willfully authorizes or permits the omis- sion of any entry is liable to a fine not exceeding £50.* Default in furnishing the registrar with the particulars and a copy of any mortgage or charge on the property, capital, book debts, etc., of the company. Penalty: Security is void against the liquidator or creditors, but without prejudice to the obligation to repay the money so secured, which becomes immediately payable.' Default in filing with the registrar of companies the " particu- lars " of any mortgage or charge created by the company. Penalty: The company, and every director, manager, secretary, or other person knowingly a party to the default, is liable to a fine not exceeding £50 for every day during which the default con- tinues.' Default in filing with the registrar of companies a copy of any mortgage or charge created by the company. Penalty : The company, and every director, manager, and other officer of the company who knowingly and willfully authorized or permitted the default, is, without prejudice to any other liability, liable on summary conviction to a fine not exceeding £100.' Default in indorsing upon any debenture or certificate of deben- ture stock, before delivery, a copy of the certificate of registration. Penalty: Any person knowingly and willfully authorizing or permitting such default is, wi/;hout prejudice to any other liability, liable on summary conviction to a fine not exceeding £100.' 1 Companies (consolidation) act, 1908, sees. 129, 137 ("), 141 (»). 2 Companies (consolidation) act, 1908, sec. 75. » Companies (consolidation) act, 1908, sec. 30. * Companies (consolidation) act, 1908, sec. 100. "Companies (consolidation) act, 1908, sec. 93. " Companies (consolidation) act, 1908, see.i 99. 'Companies (consolidation) act, 1908, sec. 99 ("). •Companies (consolidation) act, 1908, sec. 99 ('). 436 LAWS ON TRUSTS AND MONOPOLIES. Default In permitting an Inspection of the company's register of mortgages and charges by members of the company without charge, and by other persons upon payment of Is., and Default In permitting an Inspection of copies of the instruments by members of the company without charge. Penalty : Any officer refusing Inspection, and every director and manager authorizing or knowingly and willfully permitting the refusal. Is liable to a fine not exceeding £5 and a further fine not exceeding £2 for every day during which the refusal continues, and the high court may compel an immediate Inspection.' Default in permitting debenture holders and shareholders to Inspect the register of debenture holders, and In furnishing copies to any debenture holder of any trust deed securing any issue of debentures, upon payment of the prescribed fee. Penalty : The company, and every director or other officer who knowingly authorizes or permits the refusal, is liable to a fine not exceeding £5 and a further fine of not exceeding £2 for each day during which the refusal continues." Default in forwarding a copy of every special or extraordinary resolution to the registrar of companies. Penalty: The company, and every director and manager who knowingly and willfully authorizes or permits any such default, is liable to a fine not exceeding £2 for every day during which the default continues.' Default in annexing a copy of every special resolution in force to copies of the registered articles subsequently issued, or, where there are no registered articles, default in forwarding the resolu- tion to any member upon payment of Is. Penalty : The company, and every director and manager laiow- ingly and willfully authorizing or permitting the default, is liable to a fine not exceeding £1 for each copy in respect of which default is made.' Default in indicating on copies of the memorandum of associa- tion Issued any alteration of capital or shares. Penalty: The company, and every director and manager who knowingly and willfully authorizes or permits the default, is liable to a fine not exceeding £1 for each copy so Issued.* Default in notifying the registrar of companies of any special resolution authorizing the Increase of capital beyond its registered capital, or, in case of a company not having a share capital, of the Increase In the number of members beyond the registered number. Penalty: The conii)any, and every director and manager who knowingly and willfully authorizes or permits the default, Is liable to a fine not exceeding £5 for every day during which the default continues.' Default In indicating a reduction of capital upon any copies of the memorandum of association subsequently Issued. 1 Companies (conBOlldatlonj act, 1908, sec. 101. 2 Companies (consolidation) act, lOOS, sec. JO'S. 'Companies (consolidation) act, 1908, sec. 70. 'Companies (consolidation) act, 1908, sec. 41. " Companies (consolidation) act, 1908, sec. 44. GEEAT BRITAIN. 437 Penalty : The company, and every director and manager know- ingly and willfully authorizing the default, Is liable to a fine not exceeding £1 for each copy so issued.' Default in disclosing to the court the name of any creditor enti- tled to object to the reduction of capital or misrepresenting the nature and amount of any claim. Penalty : If any director, manager, or officer willfully is a party to or is privy to such concealment or misrepresentation, he shall be guilty of a misdemeanor.' Default in filing with the registrar of companies an order of the court confirming any alteration in the memorandum of association with regard to the objects of the company. Penalty : The company is liable to a fine not exceeding f 10 for every day during which it is in default.' Default in producing documents or giving answers required by inspectors appointed by the board of trade during an investigation demanded by the required number of stockholders. Penalty : A fine not exceeding £5 for each offense.* Default in notifying registrar of companies of the appointment of a receiver. Penalty : The person obtaining the order, or appointed the re- ceiver under the powers contained in any instrument, is liable to a fine not exceeding £5 for every day during which the default continues." Default by receiver appointed under the powers in any instru- ment, in filing an abstract of receipts and expenditures once In every half year, or in filing notice that he has ceased to act as receiver. Penalty : A fine not exceeding £50.' Destruction, mutilation, alteration, or falsification of any books, papers, or securities of any company being wound up with Intent to defraud or deceive any person. Penalty : Any director, officer, or contributory guilty of the above shall be liable to imprisonment for a term not exceeding two years, with or without hard labor.' Default by the liquidator, in the case of a voluntary winding up, in filing a return to the registrar of companies of the holding of a general meeting for the purpose of laying his final accounts before it. Default by any person applying for and securing an order of the court deferring the dissolution of the company in filing a copy of such order with the registrar of companies. Penalty : A fine of £5 for every day during which the default continues." Forgery or alteration of any share warrant or coupon with in- tent to defraud, or falsely personating the owner of any share, thereby endeavoring to receive any money due to the true owner. ' Companies (consolidation) act, 1908, sec. 52. ' Companies (consolidation) act, 1908, sec. 54. " Companies (consolidation) act, 1908, sec. 9 (7). * Companies (consolidation) act, 1908, sec. 109. c Companies (consolidation) act, 1908, sec. 94. ' Companies (consolidation) act, 1908, sec. 95. ^ Companies (consolidation) act, 1908, sec. 216. ' Companies (consolidation) act, 1908, sec. 195. 438 LAWS ON TRUSTS AND MONOPOLIES. Penalty : Any person guilty of the above shall be liable to penal servitude for life, or for any term not less than three years, in the discretion of the court.^ Engraving or making without lavcful authority any plate, etc., of any share warrant or coupon of any company, or knowingly having such In custody. Penalty: Penal servitude for not less than 3 nor more than 14 years, at the discretion of the court.' If any person, on examination on oath authorized under this act, or in any affidavit or deposition in or about the winding up of any company, or otherwise in or about any matter arising under this act, willfully and corruptly gives false testimony, he shall be liable to the penalties for willful perjury. Any person willfully making a statement false in any material particular, knowing it to be false, in any return, report, certifi- cate, balance sheet, or other document relating to the conclusive- ness of certificates of incorporation, appointments or advertise- ments of directors, commencement of business, returns as to allotments, statutory meetings, particulars as to directors and mortgage debt and the statement in the form of a balance sheet In the annual summary; appointment, remuneration, powers, and duties of auditors; obligations of companies where no prospectus is issued ; registration of mortgages and charges ; filing of accounts of receiver and manager; notice by liquidator in voluntary wind- ing up of his appointment; rights of creditors in voluntary wind- ing up; requirements as to companies established outside of the United Kingdom ; annual report by board of trade, shall be guilty of a misdemeanor, and liable on conviction on indictment to im- prisonment not exceeding two years, with or without hard labor, and on summary conviction to imprisonment for a term not ex- ceeding four months, with or without hard labor, and in either ease to a fine in lieu of or in addition to such imprisonment: Provided, That the fine imposed on summary conviction shall not exceed £100.' If in any proceeding against a director of a company for negli- gence or breach of trust it appears that such person is or may be liable in respect of the negligence or breach of trust, but has acted honestly and reasonably and ought fairly to be excused, the court may relieve him, either wholly or partly, from his liability on such terms as seem proper." Any manager, director, or public officer of a body corporate who shall make, or concur in making, circulating, or publishing any written statement or account known to be false in any material particular, with intent to deceive or defraud any member, share- holder, or creditor of such body corporate, or to induce any person to become a shareholder, or to intrust or advance any property to such body corporate, or to enter into any security for its benefit, shall be guilty of a misdemeanor, and liable to be kept In penal servitude for not less than three nor more than seven years, or to be imprisoned for any term not exceeding two years, with or with- out hard labor, and with or without solitary confinement.* 1 Companies (consolidation) act, 1908, sec. 38. " Companies (consolidation) act, 1908, sec. 281 and Schedule V. • Companies (consolidation) act, 1908, sec. 279. « 25 and 28 Vict., chap. 96, sec. 84. GBEAT BRITAIN. 439 Default in furnishing members with a copy of the memorandum and articles of association upon the payment of 1 shilling. Penalty: The company is liable to a fine not exceeding fl for each offense.' Default in displaying the name of the company on its place of business. Penalty: The company is liable to a fine not exceeding £5 for each day, and every director and manager knowingly and willfully authorizing or permitting the default is liable to the like penalty." Default in displaying the name of the company on advertise- ments, official publications, negotiable instruments, etc., or the use of a seal without such name displayed thereon. Penalty : Every director, manager, or oflBcer authorizing the Issue of the above is liable to a fine not exceeding £50, and is per- sonally liable on the instrument unless duly paid by the company.' Tiame of company. — The purpose of the legislature in requiring the publication of the company's name was that a company of limited liability should continually bring to the notice of those who might deal with it the fact that it is " limited." See also AtUin & Co. v. Wardle and others (61 L. T., 23), in which the South Shields Salt Water Baths Co. (Ltd.) was mlsde- scribed in a bill as the Salt Water Baths Co. (Ltd). The directors were held personally liable on the bill.' Default in notifying the registrar of companies of the situation of the registered office of the company and any change therein. Penalty: A fine not exceeding £5 for every day during which the default continues.* Power of court to assess dwmages agavmt delinquent directors. — Where, in the course of winding up, it ap- pears that any person who has taken part in the promo- . tion, formation, management, or liquidation of the com- pany has misapplied or otherwise become accountable for any property of the company, or has been guilty of a breach of trust, the court may examine into the con- duct of such person and compel restoration of such money or property, or any part thereof, without preju- dice to criminal liability.^ Prosecution of delinquent directors. — If it appears to the court, in the course of a winding up by or subject to the supervision of the court, that any past or present director, manager, officer, or member of the company has been guilty of any offense in relation to the company for which he is criminally responsible, the court may, on the application of any person interested in the winding up, or of its own motion, direct the liquidator to prosecute ^ Companies (conBOlidatlon) act, 1908, sec. 18. ^ Companies (consolidation) act, 1908, sec. 63. ' Palmer's Company Law (7th ed.), p. 244. * Companies (consolidation) act, 1908, sec. 62. ' Companies (consolidation) act, 1908, sec. 215. I 440 LAWS ON TRUSTS AND MONOPOLIES. for the offense, and may order the costs and expenses to be paid out of the assets of the company.^ If it appears to the liquidator in the course of a volun- tary winding up that any past or present director, man- ager, officer, or member of the company, has been guilty of any offense in relation to the company for which he is criminally responsible, he, with the previous sanction of the court, may prosecute the offender, and all expenses properly incurred by him in the prosecution shall be payable out of the assets of the company, in priority to all other liabilities." When an official receiver of a company being wound up by the court reports that in his opinion fraud has been committed by any person in the promotion, formation, or management of the company, the court may subject such person to a public examination, in which the receiver, liquidator, creditor, and contributory may take part. Notes of the examination shall be taken down and may be used in evidence against the person so examined." The following table indicates the extent to which the provisions of the company law of England in respect to publicity have been adopted throughout the Empire: » Companlefi (consolidation) act, 1908, sec. 217. 'Companies (consolUatlon) act, 1908, «ec. 2]r>. ■Companies (consolidation) act, 1908, sec. 175. GEEAT BRITAIN. 441 9? « mod} bo" p 1-H O w "'^ ° ® b "a j^j bb43 Is ,.a-s -da ^■o* s«ooooooooo»oo jH>H!zi|2;!z;;z;!z;!z;!z;?ilz;|Ha2i Osooooo ooeoo 0< JH |h !z; Iz; ^2; !h ^; ;z; !w ^; ;« >< |H |>(>5>H!>ijW>H>H |JH|^>Hg>H sSoSooooooooaSoo >< >H >. g !e; 2; a !? iz; Iz; ig >< iz; iz; oa^ooooo OOi^OO ;z;fH;z;;z;|z;!z;!z; Z|z;|m^^; (SOOOOOOOOOOVOO !HZ|z;2i]z;:z;!z;|z;lz;!z;;z;fH;zi|z; ;z;!h|z;>h!z;Z>, !h!z;!z;|z;;z; va3o«ooo««Otta5a5 ><|>i>H|z;>HZ|z;:zitH>H|zi>H j>!;|>HJJH>H>i>H>H ^i^JMgjS (" f« !" >| f" Ix !? Iz; !" !x Z >« >< !x |>i>i!>h>i|>(>h(>h !w|?!m!?|>i VSOOOOOOOVOlDVe >< Jh Iz; Iz; JM iz; g; Iz; 2; >< !z; (m >< >H OoSOOOOtC OOtfOO |x >H >( ;zi !h Iz; IH |zi Iz; f« >H >< !« |m ^^^^^^^ ^^^[z;^ SSoooooooooooo ooSooooo oo«oo ><|>Hiz;|zi2ig2i;z;|z;2;|z;!z;!ziJz; Z!«a^;iz;ZfH K^ifnglz; SSooaSooooSooSoSS >H!z;>HfH>. oddoocsqS ooqSoo >H >H >< Z |« Iz; >H Iz; W >. Iz; >H (w !h x3Sgjooo3ss£3sassas >H (M )» Z IZ; Z >H >< >^ JH JX fM |X |X ^^^^^^^ ^^^^^ ><|xi>H!zi>HZ><|z;ZI>'Z>H|x|x >h;im1><>h|mJm|x |h|>h><|m|w (■go ga It iliPllUlli 1- llPli 00'ZZaZfi<«^m|'3i>mCi'eipfe5 S&Sa - ©^ ; O 03 ill" ZCQ •sE «+^ . •.£ 3 !>■ o« s ^ Is" a-gl^ •3 ■sis ^ a> u H • s 2|S§ S'd B p,5 Pi &3h5p,m g a. oS ffa ll^lll CO * ©"OtJ S ® +a in OS ® "^ g— onas ill IP «go«§S 0:^4^ d d d ■°a-asas oPi—g^ M 442 LAWS OK TRUSTS AND MONOPOLIES. OtTTLINE OF THE HISTORY AND ORGANIZATION OF BOARD OF TRADE OF ENGLAND. Prior to 1782 there existed in England a body known as the Board of Trade and Plantations, whose duties were, when requested, to consult and advise the Govern- ment on commercial questions. Being advisory, with no administrative powers and only intermittently consulted, it became a body of no practical importance, and was abolished by 22 George III (c. 82, s. II, XV, 1782), and its duties transfered to a committee of the privy council. In 1786 a large committee was appointed for the con- sideration of all matters relating to trade and foreign plantations, the appointment being based on the act of 1782.^ This new committee was, like its predecessor, purely advisory. It was entirely discretionary with the Govern- ment officials whether or not they should consult the com- mittee at all, or act on its advice if obtained. During the early years of its existence the business of the com- mittee was done by resolutions passed at a board consist- ing of such members as chose to attend, the average (ac- cording to the minute books from 1786 to 1797) being only seven or eight. As the president was the only mem- ber who was regularly present, and as he was competent to act alone (the order in council by which the committee was appointed not requiring a quorum), the business was gradually drawn into the president's hands, more es- pecially as the board's administrative functions began to arise. Thus, while the board of trade presents outwardly the appearance of a permanent staff, under a secretary, there exists behind it a dormant committee of the privy council, which, while seldom heard of, is nevertheless recognized. It was not until 1840 that it was intrusted with any great administrative powers, when, by 3 and 4 Victoria (c. 97), the duty of settling and approving the by-laws of railways was imposed upon it. From that date the regulative powers have been increased. The president of the board is usually a member of the cabinet. The board of trade has become an administrative and regula- tive body, the duties imposed upon it being so numerous 1 Order In council, 23d August, 1786. GBBAT BRITAIN. 443 and varied that seven departments have been created to perform them, namely : I. The statistical and commercial department, which, in addition to the preparation and publication of com- mercial statistics, advises other offices when requested, and these requests have in late years been more frequent. II. The railway department, which, besides administer- ing railway legislation, performs duties not obviously connected with locomotion, such as the control of various matters connected with the metropolitan gas companies, patents, trade-marks, etc. The joint-stock companies registration office ^ is under this department. Annual re- ports and such special reports as may be ordered by Parliament are compiled by the staff. III. The marine department. IV. The harbor department. V. The finance department. The bankruptcy acts, 1883 and 1890, and the companies (winding-up) act 1890, have placed the money produced by the realization of the as- sets of bankrupts and joint-stock companies which are in compulsory liquidation under the control of the board of trade, and this department has the custody of these funds.^ VI. The fisheries department. VII. The .bankruptcy department. The companies (winding-up) act of 1890 applied to the winding-up of insolvent companies some of the leading principles of bankruptcy law, namely, that of the official custody of the assets at the initial stage of the proceedings, with liberty to the creditors and contributories of the com- pany to later substitute their own liquidator. The act also applied to winding-up of companies another prin- ciple, that of an official investigation into the causes of failure and the conduct of those responsible for the trad- ing and financial transactions causing the insolvency. The act also provided for a public examination of pro- moters, directors, and officers, and for reports similar in some respects to the reports upon the bankrupt's conduct and affairs under the bankruptcy acts. For the purpose of carrying this into effect official receivers are attached to the courts which have winding- 125 and 26 Vict., c. 80, companies act, 1862; 63 and 64 Vict., c. 48, companies act, 1900. " Companies (winding-up) act, 53 and 54 Vict, c. 63, 1890 ; companies act, 63 and 64 Vict., o. 48, 1900. 444 LAWS ON TBXJST8 AND MONOPOLIES. up jurisdiction, and the board of trade is intrusted with power of control over the accounts and proceedings of liquidators of companies similar to that exercised over trustees in bankruptcy.^ ^ Companies (winding-up) act, 63 and 64 Vict., c. 63, 1890 ; companieB act, 63 and 64 Vict., c. 48, 1900 ; Chltty's Digest of the Laws of England ; Encyclopedia of Laws of ISngland, 2d ed., vol. II ; companies act dted. BRITISH EMPIRE. List of companu acts of the British Empire from 1882 to 1901; showing title of act and year of passage. Year of pas- Title of act. Title of act. 1864. 1867. 1870. 1877. 1879. 1880. 1883. 1886. 1897. 1890. 1890. 1890. 1893. 1898. 1900. 1907. 1908. 1908. 1882. 1902. 1904. 1900. 1901. 1902. 1897. 1897. 1897. UNITED KINGDOM. Companies act. Companies seals act. Companies act. Joint stocl£ companies arrange- ment act. Companies act. Do! Companies (colonial registers) act. Companies act. Preferential payments in bank- ruptcy act. Companies (memorandum of asso- ciation) act. Companies (winding up) act. Directors' liability act. Companies (windmg up) act. Conmanies act. Do! Do. Companies (consolidation) act (Dec. 21, 1908). Indian companies act. Indian companies (memorandum of association) act, amending act of 1882. DOMINION OF CANADA. (As distmguistied from the Cana- dian Provinces.) Companies act. J5o. Companies may be incorpo- rated eitlier under Dominion laws or those of the Provinces, but the insolvency of companies is a matter withla the exclusive jurisdiction of the Dominion. CANADA. OTitario. Ontario companies act. Ontario companies act (amend- ment). Do. Do. Do. Do. Ontario mining companies incor- poration act. An act, chap. 215 of laws of 18 7. Directors' liability act. 1897. 1897. 1902. 1900. 1901. 1888. 1895. 1898. 1902. 1904. 1904. 1900. 1900. 1900. 1902. 1903. 1904. 1905. 1906. 1900- 1903. 1904. 1903. 1904. 1906. 1903. 1903. 1903. 1905. 1902. 1904. 1905. 1906. CANADA— continued. Ontano— Continued. Chaps. 217, 219, 220 of laws of 1897 (3 acts). Joimt atrnk companies winding up act. Joint stoclc companies winding up act (amendment). Act respecliiig the 'Uoensing of estiapiiavliiGial corporations. Do. Quebec. Kevised Statutes (arts. 4694 to 4793). Amendment. Do. Do. Do. Extraprovincial corporations. • Nova Scotia. Nova Scotia companies act. Companies (winding to) act. Chap. 130, Revised Stdiites. Companies' act of ISOOi (amendi- ment). Do. Do. Do. Do. Chap. 127, relating to foreign cor- porations. Amendment. Do. New Bmnswkk. New Brunswiclc joint stock com. panies act. New Brunswick joint stock com- panies' act (amendment). Do. Consolidated Statutes, chap. 86. Companies winding-up, act. Extraprovincial eOrporations, 11 censing of. Extraprovincial corporations, 11 censing of (amendment); Manitoba. Manitoba joint stock companies act. Manitoba joint stock companies act (amendment). Do. Manitoba joint stock companies act (amendment) (2). 445 446 LAWS ON TRTJSTS AND MONOPOLIES. Year Year of Title o( act. of Titio of act. pae- pas- oage. sage. CANADA— continued. COMMONWEALTH OF AUSTRALIA— continued. Britith Coittmdto— Continued. rmmaTJia— Continued. 1899.. Joint stoclc companies winding-up act. 1896.. Companies act (amendment). Foreign companies act, No. 2. 1902.. Chap. 29, laws of 1902. 1898.. 1903.. Foreign corporation act. 1901.. Foreign companies amendment Province of Northwest Territories. 1902.. Do. 1905.. Do. 1901.. Companies ordinance. Foreign companies ordinance. 1884.. Mining companies act. 1903.. 1896.. Mining companies (foreign) act. Mining companies amendment act. 1903.. Companies winding-up ordinance. 1896.. 1903.. Trust companies ordinance. 1900.. Do. British Columbia. Western Australia. 1897.. Companies act (a consolidation act). 1893.. Companies act (a consolidation act). 1898.. Companies act (amendment). 1896.. Companies act amendment act. 1899.. 1897.. 1900.. Do! 1898.. Do! 1901.. Do. 1899. . Companies duty act. 1902.. Companies act (amendment) (2). 1S(W.. Companies act amendment act. 1904.. Companies act (amendment). 1902.. 1905.. 1906.. Do! New Zealand. 1898.. Mortgage debenture act. 1903.. Companies winding-up act. 1903.. Companies act (a conHOlldatlon 1898.. Companies act (since repealed). act). 1904.. Mining companies act. COMMONWEALTH OF AUSTRALIA. SOUTH AFKICA. New South Wales. Cape of Oood ITope. 1899. . Companies act (a consolidation act). 1892.. Companies act. 1900.. Companies act (amendment). 1895.. Company debenture act. Companies act amendment act. 1906.. 1906.. 1901.. Companies (death duties) act. NaM. Victoria. 1864.. Joint stock companies limited 1890.. Companies act (a consolidation act). liability law. 1865.. Law No. 18. 1892.. Companies act amendment act. 1866.. Winding-up law. 1896. . Companies documents act. 1893.. Joint stock companies amendment 1896.. Companies act amendment act. law. 1896.. Companies act. 1896.. Law No. 3. 1897.. Companies act amendment act (September). Companies act amendment act 1S99.. .Share-pledge act. 1897.. Transvaal. (December). 1900.. Companies act. 1874. . Law No. 5, enacted by the Volks- raad, resolution dated Oct. 31, 1903.. Sovih Australia. 1874.. 1874. Amendment, Nov. 18, 1874. IH90.. Amendment, May 10, 1890. 1892.. Companies act (a consolidation act). 1892.. Amendment, May 24, 1892. 1892.. Amendment by executive 1893.. Companies amendment act. council Dec. 11, 1892, by au- thority of Volksraad. Queensland. 1894.. Volksraad resolution, June 2, 1894. 1894.. Volksraad resolution, May 30, 1894. 1863.. Companies act. 1904.. Ordinance No. 30. 1886.. British companies act. 1886.. 1889.. Mining companies act. Companies act amendment act. Dividend duty act. Companies act. Orange River Colony. 1890.. 1891.. 1891.. Statute law of Orange Free State chap. 100. Law No. 2. 1892.. Companies (winding up) act. 1802.. 1893.. Companies act. 1892.. Law No. 4. 1894.. 189J.. 1896.. Heoonstructed companies act. Foreign companies act. Do. 1904.. Companies amendment ordinance No. 24. Tasmania. BrUlsh South Africa Co. 1869.. Companies act. 1895. . Ordinance No. 2. 1896.. Companies act (amendment). BRITISH DECISIONS. 1. CONTRACTS IN EESTBAINT OF TRADE. THE dyer's case (BEITISH, 141B), THE EARLIEST REPORTED CASE. In the reign of Henry V a dyer bound himself not to exercise his trade for six months in the same town with the plaintiflf. An action on the bond was brought, but the case was dismissed. The court said: If the plaintiff were here he should go to prison till he had paid a fine to the King. (Yearbook, 2 Hen. V.) RESTRICTING THE TRADE OP A HABERDASHER (BRITISH, 1602). A workman agreed to pay £20 if he should use the trade of haberdasher within the county of Kent. The court held that to prohibit or restrain anyone to use a lawful trade at any time, or at any place, was against the law, and said: Although it were alleged that here he is not prohibited or obliged absolutely that he shall not exercise the trade of an haberdasher, but that if he exercise it, he shall pay to the plaintiff £20, and so it differs from the dyer case, yet it was all one; for he ought not be abridged of his trade and living. (Colgate v. Bacheler, 1 Coke's Rep., 872.) THE IPSWICH TAILOES' CASE (BRITISH, 1608). Certain workmen bound themselves not to work at a certain trade, but the court held the bond void at common law, and said : No man could be prohibited from working in any lawful trade, for the law abhors idleness, the mother of all evil, and especially in young men, who ought in their youth (which is the seed time) to have lawful sciences and trades, which are profitable to the Commonwealth, and whereof they might reap the fruit in their old age, for idle in youth, poor in age; and therefore the common law abhors all monopolies which prohibit any from working in any lawful trade. (Ipswich Tailors' case, 11 Coke's Bep., 53a.) CONTRACT NOT TO EXERCISE TRADE OP JOINER (BRITISH, 1685). A man agreed that he would not exercise the trade of joiner in a certain shop in London for 21 years. Subse- quently he leased the shop to a joiner who exercised his trade therem during the period. The entire court agreed that a man can not bind himself that he shall not use his 447 448 LAWS ON TRUSTS AND MONOPOLIES. trade generally, but that he might bind himself not to use it for a time certain in a place certain. (Rogers *. Parry, 2 Bulstrode, 136.) AGEEEMENT NOT TO USE A TBADB (BRITISH, 1649). A woman, in consideration of a marriage to be had between a certain man and her daughter, promised £100 to the man and £10 for apparel for her daughter, and agreed to assign over her shop with divers wares in it, and her trade to the man. She further agreed not to use her trade in a certain town. While on a suit to enforce the contract the man obtained verdict, yet it was thus early urged that the agreement not to use her trade was contrary to law and void. (PrugneU v. Gosse, Alleyn, 67.) AGREEMENT NOT TO EXERCISE A TRADE (BRITISH, 1711). [The celebrated case of Mitchell v. Reynolds.] A baker assigned to a man the lease of a certain bake- house for the term of five years, and agreed not to exer- cise the trade of a baker within the parish during that period, upon a penalty of £50. Upon a suit to recover, the defendant urged that he was a baker by trade, that he had served his regular apprenticeship, and that the bond was void in law. The court said : The general question upon this record is whether this bond, being made in restraint of trade, be good. And we are all of opinion that a special consideration being set forth in the condition, which shows it was reasonable for the parties to enter into it, the same is good; and that the true distinction of this case is not between promises and bonds, but between contracts with and without consideration, and that where- ever a sufficient consideration appears to make it a proper and useful contract, and such as can not be set aside without injury to a fair con- tractor, it ought to be maintained; but with this constant diversity, viz, where the restraint is general not to exercise a trade throughout the Kingdom, and where it is limited to a particular place; for the former of these must be void, being of no benefit to either party, and only oppressive, as shall be shown by and by. * * » To conclude: In all restraints of trade, where, nothing more appears, the law presumes them bad; but if the circumstances are set forth, that presumption is excluded, and the court is to judge of those circum- stances and determine accordingly; and if upon them it appears to be a just and honest contract, it ought to be maintained. This case is frequently cited in England and America as the leading case upon the subject. (Mitchell v. Rey- nolds, 1 P. Wms., 181.) BRITISH DECISIONS. 449 CONTRACT PKOHIBITING SALE OP GUNS UNDER CERTAIN CONDITIONS (BRITISH, 1743). The Gunmakers' Company had a by-law prohibiting the sale of guns under certain conditions to any person engaged in London or within 4 miles thereof not a member of the company, and certain other restrictions. The validity of the by-law was challenged on the ground that it was in unlawful restraint of trade. The court held the by-law illegal, and said : To oblige a man after he has finished his barrels not to sell them to anyone but one who is admitted of the company is a great restraint upon trade. So, likewise, not to put his mark or to suffer his mark to be put upon the barrel of amy person not admitted of the company is a very great hardship and restraint, imless there was a particular reason for it. (The Master, etc., of Gunmakers v. Fell, Willes R., 384.) CONSPIRACY TO IMPOVERISH A CERTAIN TAILOR (BRITISH, 1788). Indictment stated that Eccles and six others, intend- ing vmlawfully and by indirect means to impoverish a certain tailor and to hinder him. from using his trade, unlawfully conspired and combined for that purpose. The indictment was held good. Said the court: The conspiracy is to prevent both from working; the consequence is poverty. Both the conspiracy and the consequence are stated; but it is objected that there is no allegation of the means. Such an allega- tion is unnecessary. (King v. Eccles, 3 Doug., 337.) ENGROSSING THE MARKET (BRITISH, I8OO). The defendant was charged with spreading rumors with intent to enhance the price of hops, and with en- grossing large quantities of hops with the intent to resell the same for an unreasonabe profit. He was convicted and heavily fined. Lord Kenyon said: That our law books do declare practices of the sort with which the defendant is charged to be offenses at common law can not be denied. (King V. Waddington, 1 East, 143.) Note. — These [forestalling, engrossing, and regrating] are kindred offenses, indictable both under the ancient common law and by early English statutes, yet seldom made the subject of a criminal prosecu- tion in modern times. And in England they were abolished in 1844 by 7 and 8 Vict., c. 24, both as common-law offenses and as statutory. (Bishop's New Criminal Law, sec. 518.) King V. Waddington "has been sharply criticised as not in harmony with modern political economy; and it no doubt goes beyond what would be considered proper 24427°— 14 29 450 LAWS ON TRUSTS AND MONOPOLIES. among us. It has never been judicially disapproved." (Spelling's Trusts and Monopolies, p. 256.) Mr. W. F. Dana, in 7 Harv. Law Eev., 338 (1894), de- nied that "engrossing" at common law had any relation to "monopolizing." (See Cooke's Trade and Labor Com- binations, p. 159.) Entirely apart from these statutes, we must hold it to be indictable, on general principles of common law, to engross and absorb any par- ticular necessary staple or constituent of life so to impoverish and dis- tress the mass of the community for the purpose of extorting, by terror or other coercive means, prices above the real value. Questions of this kind have usually come before the courts on indictments for con- spiracy, for it is by conspiracies that extortions of this kind are gener- ally wrought. But on an indictment against an individual for buying up all the grain or other necessary staple so as to produce a famine in the market, and thus to obtain grossly extortionate prices, wrung through a sense of misery from the community, the offense may be held indict- able at common law. (2 Whart. Crim. Law, sec. 1851.) Note. — The common law against these offenses of forestalling, en- grossing, regrating, and monopolies has borne the test of ages, and has been wise and useful. The fault has not been in this law in the United States, but in the nonexecution of it. (7 Dane Abr., 39.) REGRATING A CRIME AT COMMON LAW (BRITISH, I8OO). It is conceded that the statute of 12 George III has repealed all existing statutes relating to regrating; never- theless regrating is a crime at common law. Rex v. Busby, Peake's Add. Nisi Prius Cas., 189.) Note. — Blackstone in his Commentaries has the following to say of regrating, forestalling, engrossing, and monopoly at common law: "blackstone on regrating, forestalling, engrossing, and monopoly at common law (BRITISH, 1765). "The offense of forestalling the market is also an offense against public trade. This, which (as well as the two following) is also an offense at common law, was described by statute 5 and 6 Edward VI, chapter 14, to be the buying or contracting for any merchandise or victual coming in the way to market, or dissuading persons from bring- ing their goods or provisions there or persuading them to enhance the price, .when there; any of which practices make the market dearer to the fair trader. "Regrating was described by the same statute to be the buying of corn or other dead victual in any market and selling it again in the same market or within 4 miles of the place, for this also enhances the price of the provisions, as every successive seller must have a successive profit. ' ' Engrossing was also described to be the getting into one's possession, or buying up, large quantities of com or other dead victuals, with intent to sell them again. This must of course be injurious to the public, by putting it in the power of one or two rich men to raise the price of BRITISH DECISIONS. 451 provisions at their own discretion. And so the total engrossing of any other commodity, with intent to sell it at an unreasonable price, is an offense indictable and finable at the common law. And the general penalty for these three offenses by the common law (for all the statutes concerning them were repealed by 12 George III, c. 71) is, as in other minute misdemeanors, discretionary fine and imprisonment. Among the Romans these offenses and other malpractices to raise the price of provisions were punished by a pecuniary mulct. "Monopolies are much the same offense in other branches of trade that expressing is in provisions, being a license or privilege allowed by the King for the sole buying and selling, making, working, or using of anything whatsoever, whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before. These had been carried to an enormous height during the reign of Queen Elizabeth, and were heavily complained of by Sir Edward Coke in the beginning of the reign of King James I. , but were in a great measure remedied by statute (21 Jac. I, c. 3), which declares such monopolies to be contrary to law and void (except as to patents, not exceeding the grant of 14 years, to the authors of new inventions, and except also patents concerning printing, saltpeter, gunpowder, great ordnance, and shot), and monopolists are punished with the forfeiture of treble damages and double costs to those whom they attempt to disturb ; and if they procure any action brought against them for these damages to be stayed by any extrajudicial order other than of the coiurt whereiii it is brought they incur the penalties of praemunire. "Combinations, also among victualers or artificers, to raise the price of provisions, or any commodities, or the rates of labor, are in many cases severely punished by particular statutes; and in general by statutes 2 and 3 Edward VI, capita 15, with the forfeiture of £10, or 21 days' imprisonment, with an allowance of only bread and water, for the first offense; JE20 or the pillory for the second, and £40 for the third, or else the pillory, loss of one ear, and perpetual infamy. In the same manner, by a constitution of the Emperor Zeno, all monopolies and combinations to keep up the price of merchandise, provisions, or workmanship were prohibited upon pain of forfeiture of goods and perpetual banishment." (4 Blackstone, pp. 158-160.) WHAT IS A KEASONABLB RESTRAINT OF TRADE (BRITISH, 188l)7 A surgeon dentist agreed not to practice his trade within 100 miles of the city of York, where the plaintiff carried on that business. This was held by the court to be an unreasonable restraint, because it was larger than was necessary to afford a fair protection to the plaintiff in the enjoyment of his trade. The court said: We do not seehow a better test can be applied to the question whether this is or not a reasonable restraint of trade than by considering whether the restraint is such only as to afford a fair protection to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public. Whatever restraint is larger than the necessary protection of the party requires can be of no benefit to either. It can only be oppressive. It is, in the eye of the law, unreasonable. Whatever is injurious to the interests of the public is void on the ground of public policy. (Horner v. Graves, 7 Biog., 735.) 452 LAWS ON TRUSTS AND MONOPOLIES. CONTKACT NOT TO BE A CARRIER DURING LIFE (BRITISH, 1887). An owner of an express abandons his express business between two places, and covenants not to exercise the trade of carrier during his life. The pm-chaser gave him life employment as his assistant. This covenant was held valid by the court. (WaUis v. Pay, 2 M. and W.,273.) CONTRACT UNLIMITED AS TO TIME (BRITISH, 183T). A clerk entering into the service of a druggist agreed that if he (the clerk) shall at any time thereafter exercise the trade or business of chemist and druggist in a certain town he should pay £500 in liquidated damages. The court held that the restraint was not shown to be imrea^ sonable or oppressive by the circumstance that its duration was not Umited to the life of the employer, or to the time during which he should carry on the business. (Hitchcock V. Coker, 6 Ad. and El., 438.) CONTRACT NOT TO BE EMPLOYED IN A CERTAIN BUSINESS FOR A CERTAIN TIME (BRITISH, A clerk, in consideration of employment, agreed that he would not within two years after leaving his employer's service solicit any of his employer's customers, or within nine months thereafter be employed iu the business of a coal merchant. The court held the contract void, as it was unhmited in point of space, and said : It is against the principles and policy of the law as to any restraints on trade, and the right of every man to be at liberty to struggle for his own existence in the exercise of any lawful employment; and it is beyond what is necessary for the protection of the plaintiff, or what the justice of the case demands. (Ward v. Byrne, 5 M. and W., 548.) A CONTRACT NOT TO PRACTICE A PROFESSION ANYWHERE (BRITISH, 1843). A surgeon dentist covenanted not to carry on his profession in London or any of the towns or places in England or Scotland where the plaintiffs or the defandant, on their account, might have been practicing before the expiration of service. The court declared the contract void, and said: According to the terms of this covenant, the defendant is prohibited from carrying on his business, not merely at such place or places as th« plaintiffs might be practicing at the time of the expiration of the service, but at any place where they might have been practicing before, though for ever so short a time. * * « Contracts for the partial restraint of trade are upheld, not because they are advantageous to the individual with whom the contract is BRITISH DECISIONS. 453 made, and a sacrifice pro tanto of the rights of the community, but because it is for the benefit of the public at large that they should be enforced. Many of these partial restraints on trade are perfectly con- sistent with public convenience and the general interest, and have been supported. Such is the case of the disposing of a shop in a par- ticular place, with a contract on the part of the vendor not to carry on a trade in the same place. It is in effect the sale of a good will, and offers an encouragement to trade by allowing a party to dispose of all the fruits of his industry. « » « And such is the class of cases of much more frequent occurrence, and to which this present case belongs, of a tradesman, manufacturer, or professional man taking a servant or clerk into his service, with a con- tract that he will not carry on the same trade or profession within cer- tain limits. * * * In such a case the public derives an advantage in the unrestricted choice which such a stipulation gives to the em- ployer of able assistants, and the security it affords that the master will not withhold from the servant instruction in the secrets of his trade and the communication of his own skill and experience, from the fear of Ms afterwards having a rival in the same business. (Mallan V. May, 11 Mees. and W., 652.) CONTRACT NOT TO SELL BREAD ON PREMISES FOR SPECIFIED TIME (BRITISH, 1844). A baker agreed that he would not, during a certain term, solicit the custom of or knowingly supply bread or flour to any of the customers then dealing at the premises, without the consent of the man to whom he had assigned his business. The court held the agree- ment not to be in unreasonable restraint of trade, and said: Contracts in partial restraint of trade, limited as to time and terri- tory, founded on a reasonable consideration, confined to particular persons, are valid. (Rannie v. Irvine, 7 Man. and G., 976.) CONTRACT RESTRICTING RIGHT OP TRAVELING SALESMAN TO SELL FOR ANOTHER (BRITISH, 1859). A salesman agreed with his employers that in case he traveled for any other house in the same trade, after he had left his employers' service, he would forfeit £50. The court held that this contract was not an unreasona- ble restraiat of trade, ajid said : Contracts for the partial restraint of trade are upheld, not because they are advantageous to the individual with whom the contract is made, and a sacrifice pro tanto of the rights of the community, but because it is for the benefit of the public at large that they should be enforced. Many of these partial restraints are perfectly consistent with public convenience and the general interest, and have been sup- ported. (Mumford 1). GethiHg, 7 C. B. N. S., 305.) 454 LAWS ON TKUBTS A^U MO>J OPOUEB. EXCLUSIVE ENJOYMENT OP THE BENEFITS PURCHASED (BRITISH, A company was formed for the purchase and workmg of a process in the manufacture of leather cloth intro- duced into England from America. The contract of purchase contained a stipulation that the vendors — will not, directly or indirectly, carry on, nor will they, to the best of their power, allow to be carried on by others, in any part of Europe, any company or manufactory having for its object the manufacture or sale of productions now manufactured in the business or manufactory of the vendors, and will not communicate to any person or persons the means or processes of such manufacture, so as in any way to interfere with the exclusive enjoyment by the purchasing company of the bene- fits hereby agreed to be piurchased. The court held such a restriction was reasonable, the entire business and the subject matter of the contract being considered. (Leather Cloth Co. v. Lorsont, 39, L. J., ch. 86.) CONTRACT NOT TO PROCURE ORDERS (BRITISH, 1872). A salesman agreed not at any time during his service for his present employers, or within two years from his quitting their service, either directly or indirectly, to sell, procure orders for sale, or reconamend or be in anywise concerned in the sale or recommendation, either on his own account or for any other person, of any Burton ale or beer or porter. The court held this contract void, and said : There has been a natural inclination of the courts to bring within reasonable limits the doctrine as to these covenants laid down in the earlier cases, but it has been generally considered in the later, as well as in the earlier, cases that a covenant not to carry on a lawful trade, unlimited as to space, is on the face of it void. * * * And the rule, if not obviously just, is at any rate simple and very convenient. (All- Bopp V. Wheatcroft, 42 L. J., ch. 12.) Note. — ^AUsopp v. Wheatcroft "was disapproved of in Rousillon v. Rousillon. " (See Lopes, L. J., in Mills v. Dunham, 1 Ch. Div., 1891, 576.) RESTRICTIONS UPON THE CHAMPAGNE TRADE (BRITISH, 1879). Defendant addressed a letter to the plaintiff, in which he undertook not to represent any house in the cham- pagne business for a period of two years after leaving the plaintiflF, or to establish himself or associate himself with other persons or firms in the champagne business for a period of 10 years. These undertakings were made upon assurances that defendant's position was assured in the house, barring the happening of unforeseen events or BBiaiSH DECISIONS. 455 negligence on defendant's part. The agreement was made upon the Continent. Within the time fixed the defendant started in the prohibited business in London. The restriction applied to the champagne trade, and it clearly appeared that this trade extended over all Europe. The court held that, considering the peculiar nature of the trade, the restraint was not unreasonable either in point of time or extent of territory. As to the rule that the extent of the territory determines the validity of the contract rather than the nature of the trade, the court said: I have, therefore, upon the authorities, to choose between two sets of cases, those which recognize and those which refuse to recognize this supposed rule; and, for the reasons which I have ahready mentioned, I have no hesitation in saying that I adhere to those authorities which refuse to recognize this rule, and I consider that the cases in which an unlimited prohibition has been spoken of aa void relate only to circum- stances in which such a prohibition has been unreasonable. (Rousillon V. Rousillon, L. R. 14, Ch. Div., 351.) CONTRACT NOT TO DO BUSINESS "sO PAK AS THE LAW ALLOWS" RE- STRAINS TRADE (BRITISH, 1887). A retiring partner covenanted to retire from business "so far as the law allows. " The court held such a cove- nant was too vague for the court to enforce. "The old rule," said the court, "that the law does not allow an absolute covenant in restraint of trade is still binding. The covenant is void on that ground also." (Davies v. Davies, 36 L. E., Ch. Div., 359.) AGREEMENT CONTAINING NO LIMITATIONS AS TO SPACE (BRITISH, 1892). A German company engaged in the manufacture and sale of aniline and soda made a contract with certain agents in England, whereby the agents were to have exclusive agency for certain articles, and to be paid over a very substantial sum during the life of the agreement. In consideration therefor the agents bound themselves for three years after the determination of the agreement not to enter into any similar business or give any infor- mation of any kind about the business of their principals. The court held the contract good, notwithstanding the fact that it contained no limitations as to space, and said : The result of the authorities down to the present time on this question of a covenant in restraint of trade appears to be as follows: Where the restraiQt is general — that is, without qualification — the covenant is bad as beiag unreasonable and contrary to public policy. Where the restraint is partial — that is, subject to some qualification either as to 456 LAWS ON TKUSTS AND MONOPOLIES. time or space — then the question is whether the restraint is reasonable; and if reasonable, it is good in law. In considering this question of reasonableness the points to which the attention of the court is specially directed are the limits of time and space and the protection required for the trade of the covenantee, this latter point involving the examinar tion of the nature and extent of the trade. The reasonableness depends on all the circumstances, and these must be duly weighed in each case. If the restraint is greater than the protection that the business of the covenantee can possibly require, the covenant is unreasonable and void. (Badische Anilin und Soda Fabrik v. Schott & Segner, 61 L. J. E., ch. 698.) UNEBASONABLE RESTRICTION UPON A CLERK AND BOOKKEEPER (BEnT8H, 1893). A clerk and bookkeeper agreed not to accept any situa- tion as clerk or agent, nor to establish himself in a similar business within a certain distance without the written permission of his employer, for a period of three years after leaving the employer's service. There was a pro- viso in the contract that such permission should not be withheld if it should be shown to the satisfaction of the employer that the situation accepted was not with a firm dealing in the same class of goods as the employer. The court said that "the employer has put upon this clerk the outside limit, and stipulated that he shall not engage in any business," and therefore declared the agreement void. (Perls v. Solfeld, 61 L. J., ch. 409.) EBSTBICnONS UPON MANUFACTURE OF GUNS (BRITISH, 1894). Nordenfelt agreed with a gun company that he would not engage for a period of 25 years, either directly or indirectly, in the business of manufacturing guns and their accessories, except on behalf of the gun company. The consideration was that the gun company purchased the plant and good will of Nordenfelt, he being retained as manager on a salary. The consideration was held sufficient to sustain the contract. It has been determined judicially, said the court — that in cases where the purchaser for his own protection obtains an obligation restraining the seller from competing with him within bounds which, having regard to the nature of the business, are reasonable and are limited in respect of space, the obligation is not obnoxious to public policy, and is therefore capable of being enforced. (Nordenfelt V. Maxim-Nordenfelt Co., 63 L. J. R., ch., 908.) BRITISH DECISIONS. 457 2. ILLEGAL COMBINATIONS AND MONOPOLIES. MONOPOLY IN PLAYING CAHDS (BRITISH, 1602). The plaintiff was given th,e sole right to import playing cards and the entire traffic in them and the sole right to make such cards within the realm. The defendant, in disregard of this grant, made and sold some gross of such cards and imported others, and was accordingly sued for infringing upon the exclusive privileges of the plaintiff. As to a portion of the cards made and sold within the realm he pleaded that he was a haberdasher in London and a free citizen of that city, and as such had a right to make and sell them. The court held the plea good and the grant void as against the common law and divers acts of Parliament. (Case of Monopolies, 11 Coke, 84b.) CONFEDERATION AMONG BREWERS TO PUT DOWN THE GALLON TRADE (BRITISH, 1665). Information was filed against brewers of London for confederating and conspiriag to put down the gallon trade by which the poor are supplied, which caused mutiny agaiast the farmers of excise. It was moved to quash the information on the ground that it is no crime by our law to depauperate another in order to enrich oneself. But after several debates the King's bench gave judgment for the King. They all agreed that the conspiracy here is an act punishable. (Starling Case, 1 Keb., 650.) Note. — Down to the end of the seventeenth century there appears to be no reason to suppose that, apart from the determination in Starling's case — a determination which was recognized by Lord Holt in 1704 as exceptional — the word "unlawful" or "illegal," as used to describe the purposes, a combination for which is an indictable offense,' was ever used by the courts in any other sense than that of "criminal, " or at most "punishable." (Wright on Crim. Consp., p. 51.) COMBINATION TO FIX THE PRICE OF SALT (BRITISH, 1758). This was a motion for leave to file an information against the defendants, who were separate proprietors of salt works in Droitwich, for a conspiracy to raise the price of salt there, by entering into an article whereby they bound themselves under a penalty of £200 not to sell salt imder a certain price, which exceeded the price then re- ceived for it. The information was granted, and Lord Mansfield declared — that if any agreement was made to fix the price of salt or any other necessary of life (which salt emphatically was) by people dealing in 458 LAWS OK TBUSTS AND MONOPOLIES. that commodity, the court would be glad to lay hold of an opportunity from what quarter soever the complaint came, to show their sense of the crime; and that at what rate soever the price was fixed, high or low, made no difference, for all such agreements were of bad consequence and ought to be discountenanced. He mentioned an indictment upon one of the last home circuits against the bakers of the town of Famham for such an agreement. (King v. Norris et al., 2 Kenyon, 300.) COMBINATION OP MASTER MANTrPACTTJEBRS OP COTTON (BBmSH, 1855). Eighteen master manufacturers of a large district formed a combination by which they were bound to carry on their trade as the majority might direct. They might be compelled to shut up their manufactories and dismiss their hands, even though that action should be against the interests of individual members of the association and the manufacturing community. The contract was held void. The court remarked: This bond takes away the freedom of action of the individual to carry on the trade, and to open and close his works according as it may be for his interest or that of the public. (Hilton v. Eckersley, 6 El. and BL, 47.) JOINT PUESB ARRANGEMENT BETWEEN RAILWAY COMPANIES (BRITISH, Two railway companies agreed that their profits and loss should be brought into one common fimd, and the net receipts divided into two shares of nine-tenths and one-tenth, without the authority of an act of Parliament. This contract was held void. Said the court: It appears to me so clearly and palpably illegal that I do not think the court ought to hesitate in its views in that respect; otherwise it might be that all the railways in the Kingdom might be collected into one large joint stock concern. (Charlton v. Newcastle, etc., R. Co., 5Jur., N. S., 1096.) AGREEMENT BETWEEN CANADIAN SALT COMPANIES (CANADIAN, 1871). Several incorporated companies and individuals in the salt business agreed to combine. The agreement pro- vided that aU the parties to it should sell all salt manu- factured by them through the trustees of the association, and should seU none in any other manner. The agreement was held valid, the court saying it was out of the question that this agreement had for its object the formation of a monopoly, as there are other parties than those to the agreement engaged in the manufacture of salt, and this agreement is nothing more than the agreement of two persons carrying on the same trade not to undersell each BRITISH DECISIONS. 459 other. (Ontario Salt Co. v. Merchants' Salt Co., 18 Grant's Ch. Rep., 540.) Note. — But the view is taken [in this case] that, even if such acts were once "illegal" at common law, "long usage" has brought about a change in the common law in this respect. (Cooke's Trade and Labor Combinations, p. 159, n. 1.) COMBINATION AMONG STEVEDORES TO PARCEL OUT THE STEVEDORING BUSINESS OF A PORT (BRITISH, 18T9). The stevedores of Melbourne, Australia, agreed to par- cel out the stevedoring business of the port among them- selves, so as to prevent competition, and to keep up the price to be paid for the work. The privy council of Great Britain held that such agreement is not invalid if carried iato effect by provisions reasonably iiecessary for the pur- pose, though the effect of them might be to create a partial restraint upon the power of the parties to exercise their trade. But it held that the provision in the agreement that in the case of ships passing out of the hands of merchants named in the contract into hands of other merchants, who should not choose to employ the party entitled under the agreement, aU the parties thereto are deprived of work, can not be justified. It is obviously detrimental to the pubhc, is entirely beyond anything the legitimate interests of the parties reqiiired, and is utterly improfitable and unnecessary, at least for any purpose which can be avowed. (CoUins v. Locke, L. R. 4 App. Cas., 674.) COMBINATION OF MANUPCTUREBS OF- MINERAL WATER (BRITISH, 1899). If a contract for raising prices against the public interest is a contract in restraint of trade, this is undoubtedly such a contract. During the last 100 years great changes have taken place in the views of the public, of the legislature, and therefore of the judges on the matter, and many old-fashioned offenses have disappeared; hni the rule still obtains that combination for the mere purpose of raising prices is not enforceable in a court of law. This contract is illegal in the sense of not being enforceable. It is not necessary that it should be such as to form the ground of criminal proceedings. The action in this case was brought to enforce a penalty luider the rtdes of a mineral-water assocaition, which recited that the object of the association was to maintain the price of mineral water, and bound the members for 10 years not to sell at less than 9d. a dozen bottles, or not less than any higher price fixed by the committee, on penalty of £10 for each violation. (Urmston v. White- legg, 63 L. T. (N. S.), 455.) 460 LAWS ON TRUSTS AND MONOPOLIES. ASSOCIATION OP TEA-CARRYING COMPANIES (BRITISH, [The very important case of Mogul S. S. Co.] A suit for damages was brought by a company engaged in the tea-carrying trade at Hankow, China, against six other companirs engaged in the same trade for loss in- flicted by an alleged unlawful conspiracy entered into by them to drive the plaintiff out of the trade and to obtain control of the trade themselves. It appeared that the defendants agreed to conform to a plan of association by which they should constantly underbid the plaintiff and take away his trade by offering exceptional and very favorable terms to customers dealing exclusively with members of the association, and that they did this to control the business the next season after he had been thus driven out of competition. It was held by the House of Lords that this was not an unlawful and indictable conspiracy, giving rise to a cause of action by the person injured thereby; but it was not held that the contract of association entered into by the defendants was not void and unenforceable at common law. On the contrary. Lords Bramwell and Hannen dis- tinctly say that the contract of association was void as in restraint of trade, but all the law lords were of opinion that contracts void as in restraint of trade were not im- lawful in a criminal sense, and gave no right of action for damages to one injured thereby. (Mogul S. S. Co. v. McGregor, etc., Co., L. R. App. Cas. (1892), p. 25.) Note. — ^Though the question was not in the case, it seems to have been the view of the court in Mogul Steamship Co. i;. McGregor that what are here called agreements ' ' in restraint of trade " were not indict- able at common law. (Cooke's Trade and Labor Combinations, p. 159, n. 1.) JAPAN. If a company does acts contrary to the public welfare r to good morals, the court may on the application of public procurator or of its own motion order its disso- iition. (Commercial Code of Japan, Book 11, Chap. 1, lee. 48, Loenholm.) 461 NEW ZEALAND. ITS FOR THE BEPKESSION OF MONOPOLIES IN TRADE OB COMMERCE. [New Zealand Statutes, 1, Geo. V, 1910, No. 32.] f ACT For the repression of monopolies in trade or commerce. Title. [Not. 21, Be it enacted iy the Gerveral Assembly of New Zealand Parliament assemibled, and iy the authority of the ne, as follows: 1. Ihis act may be cited as the " commercial trusts act, short title • 1 1 tf o.Tia commence- 10," and shall come into operation on the 1st day ofment. nuary, 1911. 2. (1) In this act, unless the contrary intention ap- interpre- ars, " commercial trust " ilieans any association or com- lation (whether incorporated or not) of any number persons, established either before or after the com- sncement of this act, and either in New Zealand or lewhere, and (a) having as its object, or as one of its jects, that of (1) controlling, determining, or influenc- y the supply or demand or price of any goods in New aland or any part thereof or elsewhere, or that of (2) jating or maintaining in New Zealand or any part ereof or elsewhere a monopoly, whether complete or rtial, in the supply or demand of any goods; or (&) ting in New Zealand or elsewhere with any such object aforesaid ; and includes any firm or incorporated com- ny having any such object, or acting as aforesaid. "Association " includes the union of any number of rsons by or under any agreement or trust, whether nporary or permanent, and whether legally valid or t, and whether including any scheme of organization or mmon management or control or not. "Member of a commercial trust" means any of the astituent persons of that trust, or any agent of that ist, and, where any such constituent person or agent is 3orporation, firm, or association, includes every mem- c or agent of that corporation, firm, or association. 463 464 LAWS ON TBUSTS AND MONOPOLtES. " Person " includes a corporation, and as used in the foregoing definitions of " conunercial trust," " associa- tion," and " member of a commercial trust " includes also a firm of partners or any other association or combina- tion of persons. oAc?''*^*""" (^) Nothing in this act shaU apply to any goods other than those specified in the schedule hereto, ces'sionsta con- ^' ^^^^y pcrson conunits an offense who, either as elreiusive" deal- P'^^^^P*^ '^^ agent, in respect of dealings in any goods, •"s- gives, offers, or agrees to give to any other person any re- bate, refund, discount, concession, allowance, reward, or other valuable consideration for the reason or upon the express or implied condition that the latter person — (a) Deals or has dealt or will deal, or intends or undertakes or has undertaken or will undertake to deal, exclusively or principally, or to such an extent as amounts to exclusive or principal dealing, with any person or class of persons, either in relation to any particular goods or generally; or (6) Does not deal or has not dealt or will not deal, or intends or undertakes or has undertaken or will under- take not to deal, with any person or class of persons, either in relation to any particular goods or generally ; or (e) Eestricts or has restricted or will restrict, or intends or undertakes or has undertaken or will under- take to restrict, his dealing with any person or class of persons, either in relation to any particular goods or generally; or (d) Is or becomes or has been, or has undertaken or will undertake to become, a member of a commercial trust; or (e) Acts or has acted or wiU act, or intends or under- takes or has undertaken or will undertake to act, in obedience to or in conformity with the determinations, directions, suggestions, or requests of any commercial trust with respect to the sale, purchase, or supply of any goods. fuJai?ti deal " *" ^^^^^ person commits an offense who, either as usa s o ea . principal or agent, refuses, either absolutely or except upon disadvantageous or relatively disadvantageous con- ditions, to sell or supply to any other person, or to pur- chase from any other person, any goods for the reason that the latter person — (a) Deals or has dealt or will deal, or intends to deal, or has not undertaken or will not undertake not to dealj NEW ZEALAND. 465 ith any person or class of persons, either in relation to ly particular goods or generally ; or (&) Is not or has not been, or will not become or under- ,ke to become or has not undertaken to become, a mem- ;r of a commercial trust ; or (c) Does not act or has not acted or will not act, or DBS not intend to act, or has not undertaken or will not adertake to act, in obedience to or in conformity with le determinations, directions, suggestions, or requests of ay commercial trust with respect to the sale, purchase, [■ supply of any goods. 5. Any person who conspires with any other person to luegai mo- 1 , nopolies. lonopolize wholly or partially the demand or supply m ew Zealand or any part thereof of any goods, or to con- ■ol wholly or partially the demand or supply or price in 'ew Zealand or any part thereof of any goods, is guilty t an offense if such monopoly or control is of such a ature as to be contrary to the public interest. 6. (1) Every person commits an offense who, either as -^^'i^jb' rincipal or agent, sells or supplies, or offers for sale or a commercial ipply, any goods at a price which is unreasonably high, • that price has been in any manner directly or indirectly etermined, controlled, or influenced by any commercial Tist of which that person or his principal (if any) is or is been a member. (2) Every person commits an offense who, in obedience ) or in consequence of or in conformity with any deter- lination, direction, suggestion, or request of any com- lercial trust, whether he is a member of that trust or not, (lis or supplies, or offers for sale or supply, any goods, hether as principal or agent, at a price which is unrea- )nably high. 1. (1) If any commercial trust, whether as principal Saies by ,n ,. n.» , ,a commercial • agent, sells or supplies, or oners tor sale or supply, trust, ly goods at a price which is unreasonably high, every jrson who is then a member of that trust shall be deemed I have committed an offense against this act. (2) If in any such case the commercial trust is a cor- )ration, it shall itself be guilty of an offense against lis act; but the liability of the trust shall not exclude ■ affect the liability of its members under the last pre- ding subsection. 8. For the purposes of this act the price of any goods ^ ^^i'™ ^p'"'^*! all be deemed to be unreasonably high if it produces deemed ^unrea- • is calculated to produce more than a fair and reason- 24427°— 14 30 466 LAWS ON TRUSTS AND MONOPOLIES. able rate of commercial profit to the person selling or Supplying, or offering to sell or supply, those goods, or to his principal, or to any commercial trust of which that person or his principal is a member, or to any member of any such commercial trust. Aiding and 9. Every person who aids, abets, counsels, or procures, abetting of- . •' ^ . ' ' . . . fenses against or IS lu any Way kuowingly concerned in the commission of, an offense against this act, or the doing of any act outside New Zealand which would if done in New Zea- land be an offense against this act, shall be deemed to have committed that offense. Penalty. 10. (1) Every person who commits an offense against this act shall be liable to a penalty of £500. (2) If two or more persons are responsible for the same offense against this act, each of those persons shall be severally liable to a penalty of £500, and the liability of each of them shall be independent of the liability of the others, coverabie^^ by ^^- Every such penalty shall consttute a debt due by supreme''court* ^'^^ offender to His Majesty the King, and shall be re- coverable, together with costs of suit, by a civil action in the supreme court, instituted by the attorney general for and in the name of His Majesty. Supreme 12. In any such action the supreme court may remit court TTifly r6- duce penalty, such part of the aforesaid penalty of £500 as it thinks fit, and may give judgment for the residue of the penalty only, agiinst" ?e'b*etf- 1^. In any such action the supreme court may, in addi- u a^n^e^of 'rf- ti'^ii to the Said penalty, grant an injunction against the fenses. continuance or repetition of the offense ; but no such in- junction shall be granted by way of interlocutory pro- ceedings before final judgment in the action. parue"^^"^ a n"! ^^' ^^"^ ^^ ^^^ ^^^^ action claims may be joined for cauBes of ac-the recovery of penalties in respect of several offenses, whether of the same or different kinds. (2) In any such action several persons may be joined as defendants, whether in respect of the same or of dif- ferent offenses, and whether those offenses are committed by the same or by different parties ; and in any such case separate judgments may be given in respect of each de- fendant so joined. (3) In the case of any such joinder of causes of action or of parties the supreme court may give such directions as it thinks fit for the separate trial of any cause of action against any defendant. NEW ZEALAND. 467 15. (1) In any action for the recovery of a penalty Evidence, ir for an injunction under this act the supreme court oay, in proof of any fact in issue, admit and accept as ufficient such evidence as it thinks fit, whether such evi- lence is legally admissible in other proceedings or not. (2) In any action for the recovery of a penalty or for m injunction under this act,' no person, whether a party o the action or not, shall be excused from answering any [uestion put to him by interrogatory or otherwise, or Tom producing or making discovery of any document, >n the ground that the answer to the question or the pro- luction or discovery of the document would tend to crim- nate him in respect of any offense against this act. SCHEDULE. GOODS TO WHICH THIS ACT APPLIES. Schedule. Agricultural Implements. Coal. Meat. Fish. Flour, oatmeal, and the other products or by-products of the Qilling of wheat or oats. Petroleum or other mineral oil (including kerosene, naphtha, nd the other products or by-products of any such oil). Sugar. Tobacco (including cigars and cigarettes). PATENTS, DESIGNS, AND TKADE-MABKS. [1908, No. 140.] lN act To consolidate certain enactments of the general assembly relating to patents for inventions and registration of designs and of trade-marks. COMPULSORY LICENSES. 28. If on the petition of any person interested it is gove?n^r''to or^ iroved to the governor that by reason of the default ^|^gg^°*(f^[^^; f a patentee to grant licenses on reasonable terms (a) sec. 33.) he patent is not being worked in New Zealand; or (5) he reasonable requirements of the public with respect the invention can not be supplied; or (c) any per- on is prevented from working or using to the best ad- antage an invention of which he is possessed, the overnor may order the patentee to grant licenses on uch terms as to the amounl of royalties, security for 468 LAWS ON TEtrSTS AND MONOPOLIES. payment, or otherwise, as the governor, having regard to the nature of the invention and the circumstances of the case, deems just, and any such order may be enforced by mandamus. (New Zealand Consolidation Statutes, Vol. IV, Ap- pendix D, act 140, sec. 28.) MONOPOLY PREVENTION ACT. [1908, No. 122.] AN ACT To consolidate certain enactments of the general assembly relating to the prevention of certain monopolies. Be it enacted hy the general assembly of New Zealand in parliament assembled, and hy the authority of the same, as follows: Short title. 1. (1) The short title of this act is "The monopoly prevention act, 1908." Enactments (2) This act IS a consolidation of the enactments men- consolldated. ... tioned m the first schedule hereto, and with respect to those enactments the following provisions shall apply: Savings. (or) All appointments, regulations, orders in council, orders, reports, recommendations, instruments, and gen- erally all acts of authority which originated under any of the said enactments, and are subsisting or in force on the coming into operation of this act, shall enure for the purposes of this act as fully and effectually as if they had originated under the corresponding provisions of this act, and accordingly shall where necessary be deemed to have so originated. (b) All matters and proceedings commenced under any such enactment, and pending or in progress on the com- ing into operation of this act, may be continued, com- pleted, and enforced under this act. (3) This act is divided into parts, as follows: Part I. Agricultural implements. (Sees. 2 to 13.) Part II. Flour and other products. (Sees. 14 to 24.) Pakt I. — Agricultural implements. 1 1 o°D ^^^iQos" ^" ^^ *^^^ P^^* °^ *^^® ^°*' ^^ "°* inconsistent with the No. 58, sec. 2.)'contextj " implements " means the implements, machines, and appliances specified in the second schedule hereto; " minister " means the minister of customs. NEW ZEALAND. 469 3. (1) The minister shall cause to be compiled a state- to1,*e^"ompiied! aent showing in the case of each implement its descrip- dbid., sec. 3.) ion, the nature and quality of the materials used in its instruction, and the price then current. (2) Such statement shall be published in the Gazette. 4. On complaint to the minister by any two or more ^^jj^^J^p'^J,^ °* nanufacturers in New Zealand of any implement that the *'g*J*'J\ <''*'^' jrice of any implement on importation into New Zealand las been materially reduced, and that competition on infair lines is being carried on by importers of imple- nents from foreign countries, he shall summon the board lereinafter constituted and refer the matter of such com- alaint to it for report. 5. (1) There is hereby constituted a board called " The t^f°i'^ \\^l] igricultural implement inquiry board," consisting of — ^^"^^ ^^ The judge of the court of arbitration, who shall be ;hairman ; The president for the time being of the Farmers' Dnion ; The president of the Industrial Association of Canter- bury; Some person appointed by the governor on the recom- nendation of the trades and labor councils; and Some person appointed by the governor on the recom- nendation of the agricultural and pastoral associations. (2) The members of the board appointed by the gov- n'ncr shall be appointed in the same manner as members )f the court of arbitration (other than the judge) are ippointed. (3) The board and its members as constituted under • The agricultural-implement manufacture, importation, ind sale act, 1905," and subsisting on the coming into )peration of this act, shall be deemed to be the board and ts members under this act. 6. (1) The board on being summoned by the minister ^"^''^^lySy .hall inquire with as little delay as possible into the mat- sec. 6 ; 1997' « . , . , f. 1 » No. 30, sec. 4.) er referred to it m such manner as it thinks fit, and for he purposes of such inquiry shall have and may exercise ill the powers that the court of arbitration has in respect ^f industrial disputes. (2) The board may exercise its powers and functions it any meeting at which the judge of the court of arbitra- ion and at least three other members of the board are iresent. 470 LAWS ON TRUSTS AND MONOPOLIES. (3) The board shall report in writing to the minister the result of its inquiry, and shall state whether or not in its opinion the price of any implement imported into New Zealand has been materially reduced below that specified in the statement mentioned in section 3 hereof, and may recommend that relief be granted in the manner hereinafter appearing. \ imposedTf'&ew ^- (^) ^^ ^^ ^^y time the manufacturers of imple- factu?e1- "^r^e"- ^^i^ts in New Zealand agree to reduce the price of the ^1905* N^o'^'sl' ^''■^*'^^ ^^ the implements mentioned in the second sec. 7.) ' schedule hereto, or not less than a moiety thereof, to at least 20 per cent below that specified in the statement mentioned in section 3 hereof, and notify the minister of such agreement, he shall summon the board and refer the matter to it for report. (2) The board shall in like manner make inquiry into the matter, and report in writing to the minister whether or not ia its opinion it is advisable for the protection of the industry in New Zealand that relief be granted as hereinafter mentioned, g /a°n^ ^bonus" ^" ^^"^ ^^ ^^^ ^^^ where the board recommends that sec^'s^') ^°' ^^' ^'®^i®^ ^^ granted it shall be lawful for the minister to grant to the manufacturers of implements in New Zea- land such bonus, not exceeding 33 per cent, as he deems necessary to enable manufacturers to compete with im- porters of such implements. (2) The right to such bonus shall be subject to such terms and conditions as the governor in council thinks fit to impose. mlnnil^nfel ^' "^^^ *^® purposcs of this act implements manufac- in^united mng- tured in the United Kingdom shall be deemed to be manu- No' 30,' sec ^3^' ^^^tu^'^d in New Zealand, and the importers of such im- plements shall be deemed to be manufacturers thereof in New Zealand, reftind^duty o2 10- (1) Whenever it is proved to the satisfaction of tMs}'' (iBoi; the collector that duty-paid materials have been used in No.58,sec.io.) ti^g Construction of any implement, he- shall refund to the manufacturer of such implement the amount of duty paid on the materials so used. (2) For the purposes of this section " materials " in- cludes such parts of implements as can not advantage- ously be manufactured in New Zealand. boVr^d^to bf 11- Every report of the board shall be laid before &TrUament°P^i'lia'^ent within 10 days after its presentation to the iec^^s^') '^°' ^°' minister of customs if Parliament is then sitting, and if NEW ZEALAND. 471 lot, then within 10 days after the commencement of the next ensuing session. 12. (1) This part of this act shall be deemed to be in- ^^^f '"'iggg; :orporated with " the customs law act, 1908." No-. ^|8^ ^ f|<=: (2) The governor may from time to time, by order intjj.°^2^i ™*' council gazetted, make regulations necessary for the carrying out of this part of this act. 13. This part of this act shall continue in operation till this"'part of the 31st day of December, 1908, on which day it shall beNo' 21 ^slc°2-' deemed to be repealed. slfi)'^"' ^"' Part II. — Flour and other products. 14. In this part of this act " the court " means the ^ J^,"^ « ""(^goV court of arbitration under "The industrial conciliation ^°- 3*' ^^"^^ 2) and arbitration act, 1908." 15. Notwithstanding anything in " The customs duties exfmp'ied'ftom act, 1908," it shall be lawful for the governor, at any ™|t°™|ggf i^*^- time and from time to time, on the recommendation of the court, made in accordance with this part of this act, to declare, by order in council gazetted, that on and after El date to be specified in such order in council flour im- ported into New Zealand shall be admitted free of all duties of customs, and so long as any such order in council remains in force flour shall be exempt from such duties accordingly. 16. Any such order in council may be revoked by the cpuncn ^ leAt- governor at any time as from a day to be specified in the b "^ revoked^ order in council revoking the same, not being earlier than *"^"'' ^^'^' *■' three months from the gazetting of the last-mentioned order in council. 17. The court may from time to time, at the direction j^^„°i^"g'^*ag™^J of the governor, make an inquiry as to whether the whole- ^907,°no^°34; sale market price of flour in New Zealand is unreasonably ^^'^- ^-^ high, and if on such inquiry the court finds that such price is, or has at any time since the receipt of such direction from the governor been, unreasonably high, the court shall recommend the governor to exercise the powers conferred on him by section 15 hereof. 18. For the purposes of such inquiry the price of flour p^^ce' rf'°floSr^ shall be deemed to be unreasonably high— _ (^"id,, sec. e.) (a) If the average price of flour in New Zealand is, relatively to the price of wheat in New Zealand, higher ;han the average price of flour in Australia relatively to the average price of wheat in Australia, unless in the 472 LAWS ON TRUSTS AND MONOPOLIES. opinion of the court the additional price in New Zealand is justified by additional cost of production ; or (&) If the average price of wheat in New Zealand has, by reason of any combination among the holders of stocks of wheat, or by reason of any complete or partial monopoly established by any such holder, been raised above the price which would be determined by unre- stricted competition. Sees. 15 to 19. (1) The provisions of sections 15 to 17 hereof shall wheat.*''?ibid." also apply to wheat in the same manner as to flour. '^' ■' (2) For the purpose of any inquiry by the court under the authority of this part of this act the price of wheat shall be deemed to be unreasonably high if the average wholesale price in New Zealand has, by reason of any combination among the holders of stocks, or by reason of any complete or partial monopoly established by any such holder, been raised above the price which would be deter- mined by unrestricted competition. Sees. 15 to 20. (1) The provisions of sections 15 to 17 hereof shall potatoes, also apply to potatoes in the same manner as to flour. (2) For the purpose of any inquiry by the court under the authority of this part of this act the price of potatoes shall be deemed to be unreasonably high — • (a) If the average wholesale price in New Zealand exceeds £7 per ton; or (b) If the average wholesale price in New Zealand has, by reason of any combination among the holders of stocks of potatoes, or by reason of any complete or partial monopoly established by any such holder, been raised above the price which would be determined by unre- stricted competition. ag? *p?ice*^de- 21. (1) The average price in New Zealand of any of (Ibid™ sec. *9^)' the aforesaid articles shall be determined by the court for the purposes of this part of this act, by reference to the ordinary market price for the time being in Inver- cargill, Dunedin, Oamaru, Timaru, Christchurch, Wel- lington, and Auckland. (2) The average price in Australia of any of the afore- said articles shall be likewise determined by reference to the ordinary market price for the time being in Adelaide, Sydney, and Melbourne. have%"owers*of ^2. (1) In making any inquiry under the authority '(ibid.^ec.^'o") °^ *^is P*'^ *^* *^is. ^^t' t^® court shall be deerfied to be a commission within " the commissions of inquiry act, 1908," and shall have all the powers conferred upon com- NEW ZEALAND. 473 missioners by that act, and shall be subject to all the provisions of that act accordingly. (2) In making any such inquiry the court may receive and act on any evidence which it thinks fit, whether the same is legally admissible in a court of law or not. 23. (1) For the purposes of this part of this act there J..K I P ™senta- shall be added to the court one additional member thereof, cultural ana , - ' pastoral socie- to be appointed by the governor from time to time in the ties to be a „ . . , , . » , . member of the case 01 any inquiry under this part or this act, on thecom't- (i907. recommendation of a majority of the societies incor- porated under " the agricultural and pastoral societies act, 1908." (2) The member so appointed shall be deemed to be a member of the court for the purpose of the inquiry in respect of which he was so appointed, but for no other purpose whatsoever. (3) The recommendation of the said societies 'shall be made in such manner as is prescribed by regulations made by the governor in council. (4) If the said societies fail to make any recommenda- tion in accordance with such regulations, the governor may appoint as such additional member of the court any person whom he thinks fit. (5) The additional member (if any) appointed under " the flour and other products .monopoly prevention act, 1907," and in office on the coming into operation of this act, shall be deemed to be the additional member under this act. 24. (1) In the case of any inquiry under this part of /j,,ia"°ec"i™) this act the court may exercise its powers and functions at any sitting thereof at which there are present three members, including the judge of the court. (2) In the case of any division of opinion, if the mem- bers of the court who are present are equally divided in opinion, the decision of the judge shall be deemed to be the decision of the court. FIRST SCHEDULE. ENACTMENTS CONSOLIDATED. 1905, No. 58. The agricultural-implement manufacturer, importa- tion, and sale act, 1905. 1906, No. 21. The agricultural-implement manufacture, imporca- tiou, and sale act, extension act, 1906. 1907, No. 30. The agricultural-Implement manufacture, importa- tion, and sale act, 1907. 1907, No. 34. The flour and other products monopoly prevention act, 1907. 474 LAWS ON TRUSTS AND MONOPOLIES. Sees. 1905, No schedule. 1905'^^No!' 58; SECOND SCHEDUM!, IMPLEMENTS TO WHICH PAET 1 OP THIS ACT BELATES. Plows of all kinds over li hundredweight. Tine harrows. Disk harrows. Drills, combined grain, seed, and manure, 10 coulters and over. Drills, combined grain, seed, and manure, 10 coulters. Drills, grain. Rollers, land and Cambridge, over 7 hundredweight. Cultivators and grubbers, over 2 hundredweight. Chaff cutters, 9-inch mouth and over. Self-bagging chaff cutters. Seed cleaners. (New Zealand Consolidated Statutes, Appendix D, Vol. IV, pp. 283 to 287.) / [1908, No. 236.] Title. _ AN ACT To amend the monopoly prevention act, 1908. . [Oct. 10, 1908.] Be it enacted hy the General Assembly of New Zealand in Parliament assembled, and hy the authority of the same, as follows: Short title. 1. This act may be cited as the " monopoly prevention amendment act, 1908." acPeltendTd."' 2. (1) Part I of the monopoly prevention act, 1908, shall continue in operation until the 31st day of Decem- ber, 1910, on which day it shall be deemed to be repealed. Repeal. (2) Section 13 of the monoply prevention act, 1908, is hereby repealed. (New Zealand Statutes, 1908, No. 236, p. 110.) [1907, No. 34.] Title. AN ACT To prevent the establishment of monopolies in the sale of flour and other products. [Nov. 19, 1907.] Be it enacted hy the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows.' Short title. I Tj^jg ^^^ j^^y ^^ ^j^g^ ^g ^^^ „ g^^^ ^^^ ^^^^^ p^^^_ ucts monopoly prevention act, 1907." NEW ZEALAND. 475 2. In this act " the court " means the court of arbitra- interpretation. tion under the industrial conciliation and arbitration act, 1905. 3. Notwithstanding anything contained in the tariff gj^UJjOp»r°'»yQ^ act, 1907, it shall be lawful for the governor, at any time customs duty, and from time to time, on the recommendation of the court made in accordance with this act, to declare, by order in council gazetted, that on and after a date to be specified in such order in council flour imported into New Zealand shall be admitted free of all duties of customs, and so long as any such order in council remains in force flour shall be exempt from such duties accordingly. 4. Any such order in council may be revoked by the ^o^ncn *reiii'it°- governor at any time as from a day to be specified in the be°revoked"*^ order in council revoking the same, not being earlier than three months from the gazetting of the last-mentioned order in council. 5. The court may from time to time, at the direction of iniiSre* aa* "to the governor, make an inquiry as to whether the whole- ^ °' *°"''" sale market price of flour in New Zealand is unreasonably high ; and if on such inquiry the said court finds that such price is, or has at any time since the receipt of such direc- tion from the governor been, unreasonably high, the said court shall recommend^ the governor to exercise the powers conferred upon him by section 3 of this act. 6. For the purposes of such inquiry the price of flour prtc°"ol''fl2u/ shall be deemed to be unreasonably high — (a) If the average price of flour in New Zealand is, relatively to the price of wheat in New Zealand, higher than the average price of flour in Australia relatively to the average price of wheat in Australia, unless in the opinion of the court the additional price in New Zealand is justified by additional cost of production; or (b) If the average price of wheat in New Zealand has, by reason of any combination among the holders of stocks of wheat, or by reason of any complete or partial monop- oly established by any such holder, been raised above the price which would be determined by unrestricted compe- tition. 7. (1) The provisions of sections 3, 4, and 5 of this act ^i^tfo whlS?.'^ shall also apply to wheat in the same manner as to flour. (2) For the purpose of any inquiry by the court under the authority of this act, the price of wheat shall be deemed to be unreasonably high if the average wholesale .price in New Zealand has, by reason of any combination 476 LAWS ON TBUSTS AND MONOPOLIES. among the holders of stocks or by reason of any com- plete or partial monopoly established by any such holder, been raised above the price which would be determined by unrestricted competition, also** to" pota^ 8. (1) The provisions of sections 3, 4, and 5 of this act *°*^' shall also apply to potatoes in the same manner as to flour. (2) For the purpose of any inquiry by the court under the authority of this act, the price of potatoes shall be deemed to be unreasonably high — (a) If the average wholesale price in New Zealand exceeds £7 per ton ; or (&) If the average wholesale price in New Zealand has, by reason of any combination among the liolders of stocks of potatoes or by reason of any complete or partial mo- nopoly established by any such holder, been raised above the price which would be determined by unrestricted competition, pric^^'dete? 9. The average price in New Zealand of any of the mined. aforesaid articles shall be determined by the said court for the purposes of this act by reference to the ordinary market price for the time being in Invercargill, Dune- din, Timaru, Oamaru, Christchurch, Wellington, and Auckland. The average price in Australia of any of the aforesaid articles shall be likewise determined by ref- erence to the ordinary market price for the time being in Adelaide, Sydney, and Melbourne. iiaTe*powers*of 10- (1) In making any inquiry under the authority of CO ssion. ^j^g ^p^ ^j^g court shall be deemed to be a commission within the commissioners act, 1903, and shall have all the powers conferred upon commissioners by that act, and shall be subject to all the provisions of that act accordingly. (2) In making any such inquiry the said court may receive and act on any evidence which it thinks fit, whether the same is legally admissible in a court of law or not. tive^o? a^rieui- 11. (1) For the purposes of this act there shall be torai ""cie^fes added to the court one additional member thereof to be of tiie^court. ""^ appointed by the governor from time to time in the case of any inquiry under this act, on the recommendation of a majority of the societies incorporated under the agri- cultural and pastoral societies act, 1877. (2) The member so appointed shall be deemed to be a member of the said court for the purpose of the inquiry . NEW ZEALAND. 477 in respect of which he was so appointed, but for no other purpose whatsoever. (3) The recommendation of the said societies shall be made in such manner as is prescribed by regulations made by the governor in council. (4) If the said societies fail to make any recommenda- tion in accordance with such regulations, the governor may appoint as such additional member of the said court any person whom he thinks fit. 12. (1) In the case of any inquiry under this act the court may exercise its powers and functions at any sitting thereof at which there are present three members, includ- ing the judge of the said court. (2) In the case of any division of opinion, if the mem- bers of the said court who are present are equally divided in opinion, the decision of the said judge shall be deemed to be the decision of the court. (Xew Zealand Statutes, 7 Edw. VII, 1907, pp. 137 to 139.) [1907, No. 30.] Quorum. AN ACT To amend the agricultural-implement manufacture, im- portation, and sale act, 1905, and to continue tlie operation thereof. [Not. 13, 1907.] Be it enacted by the General Assenibly of N ev> Zealand, in Parliament asserribled, and hy the authority of the same, as follows: 1. This act may be cited as the " agricultural-imple- ment manufacture, importation, and sale act, 1907." 2. Section 2 of the agricultural-implement manufac- ture, importation, and sale act extension act, 1906, is hereby amended by omitting the word " seven " and sub- stituting the word " eight." 3. Section 9 of the agricultural-implement manufac- ture, importation, and sale act, 1905, is hereby amended by omitting the words " of British manufacture " and substituting the words "manufactured in the United Kingdom." 4. The board constituted by the last-mentioned act may exercise its powers and functions at any meeting at which the judge of the court of arbitration and at least three other members of the board are present. 5. The report of the board shall be laid before Parlia- ment within 10 days after its presentation to the minis- ter of customs if Parliament is then sitting, and if not, Title. Short title. Act of 1906 extended. Sec. 9 of act of 1905 amend- ed. Quorum of ag- rlcultural-im- p 1 e m e n t In- quiry board. Report of board to be presented to Parliament. 478 LAWS ON TRUSTS AND MONOPOLIES. Title. Short title. Continuation of act. then within 10 days after the commencement of the next ensuing session. (New Zealand Statutes, 7 Edw. VII, 1907, p. 129.) [1906, No. 21.] AN ACT To revive " the agricultural-implement manufacture, Im- portation, and sale act, 1905." [Oct. 23, 1906.] Be it enacted by the General Assembly of New Zealand, in Parliament assembled, amd by the authority of the same, as follows: 1. The short title of this act is " The agricultural- implement manufacture, importation, and sale act exten- sion act, 1906." 2. (1) The agricultural-implement manufacture, im- portation, and sale act, 1905, shall continue in operation and be deemed to- have continued in operation as if sec- tion 13 thereof had not been passed until the 31st day of December, 1907. (2) The said section 13 is hereby repealed. (New Zealand Statutes, 1906, No. 21, p. 71.) [1905, No. 58.] AN ACT To regulate and control tlie manufacture and sale of cer- tain agttcultural implements within New Zealand and the Im- portation of the same Implements from foreign countries. [Oct. 31, 1905.] Be it enacted by the General Assembly of New Zealand m Parliament assembled, and by the authority of the same, as follows: Short title. 1. The short title of this act is " The agricultural im- plement manufacture, importation, and sale act, 1905." 2. In this act, if not inconsistent with the context, " commissioner " means the commissioner of trade and customs ; " implements " means the implements, machines, and appliances specified in the schedule hereto. tolj^e^compiiedL 3. (1) As soon as practicable after the passing of this act the commissioner shall cause to be compiled a state- ment showing in the case of each implement its descrip- tion, the nature and quality of the materials used in its construction, and the price current on the passing of this act. (2) Such statement shall be published in the Gazette. unfaiT^'^impe' *■ ^n complaint to the commissioner by any two or tition. jjjQpg manufacturers in New Zealand of any implement Repeal. Title. In t e rp re tatlon. NEW ZEALAND. 479 that the price of any implement on importation into New Zealand has been materially reduced, and that competi- tion on unfair lines is being carried on by importers of implements from foreign countries, he shall summon the board hereinafter constituted and refer the matter of such complaint to it for report. 5 (1) There is hereby constituted a board called " the ^^fg^""^ ™°^"" agricultural implement inquiry board," consisting of — The president of the arbitration court, who shall be chairman ; The president for the time being of the Farmers' Union ; The president of the Industrial Association of Canter- bury; Some person appointed by the governor on the recom- mendation of the trades and labor councils; and Some person appointed by the governor on the recom- mendation of the agricultural and pastoral associations. (2) The members of the board appointed by the gov- ernor shall be appointed in the same manner as members of the arbitration court (other than the president) are appointed. 6. (1) The board on being summoned by the commis- ^0^°^"'"^^ ''? sioner shall inquire with as little delay as possible into the matter referred to it in such manner as it thinks fit, and for the purposes of such inquiry shall have and may exercise all the powers that the arbitration court has in respect of industrial disputes. (2) The board shall report in writing to the commis- sioner the result of its inquiry, and shall state whether, or not in its opinion the price of any implement imported into New Zealand has been materially reduced below that specified in the statement mentioned in section 3 hereof, and may recommend that relief be granted in the manner hereinafter appearing. 7. (1) If at any time after the passing of this act the jm^^g^^^iJew manufacturers of implements in New Zealand agree f-o f^^t'^^g^rs^'^'re- reduce the price of the whole of the implements men- auce prices, tioned in the schedule hereto, or not less than a moiety thereof, to at least 20 per cent below that specified in the statement mentioned in section 3 hereof, and notify the commissioner of such agreement, he shall summon the board and refer the matter to it for report. (2) The board shall in like manner make inquiry into the matter, and report in writing to the commissioner whether or not, in its opinion, it is advisable for the pro- 480 LAWS ON TRUSTS AND MONOPC ^S. tection of the industry in New Zealand that relief be granted as hereinafter mentioned. Power to 8. (1) In any case where the board recommends that ^ grant dodub. . . ' relief be granted it shall be lawful for the commissioner - to grant to the manufacturers of implements in New Zealand such bonus, not exceeding 33 per cent, as he deems necessary to enable manufacturers to compete with importers of such implements. (2) The right to such bonus shall be subject to such terms and conditions as the governor in council thinks fit to impose. Britfih^mlnu* »• For the purposes of this act implements of British facture. manufacture shall be deemed to be manufactured in New Zealand, and the importers of such implements shall be deemed to be manufacturers thereof in New Zealand. reftind"duty on 10- (1) Whenever it is proved to the satisfaction of, riafs^'° ™**^"the collector that duty-paid materials have been used in the construction of any implement, he shall refund to the manufacturer of such implement the amount of duty paid on the materials so used. (2) For the purposes of this section materials include such parts of implements as can not advantageously be manufactured in New Zealand, rated.* n'orpo" ^^ This act shall be deemed to be incorporated with " the customs laws consolidation act, 1882," and its amendments. EeguiationB. jg. The govemor may from time to time, by order in council gazetted, make regulations necessary for the car- rying out of this act. act."™ °° ° 13. This act shall continue in operation till the 1st day of August, 1906, on which day it shall be deemed to be repealed. Schedule. SCHEDtTLE. IMPLEMENTS TO WHICH THIS ACT BELATES. Plows of all kinds over IJ hundredweight. Tine harrows. Disk harrows. Drills, combined grain, seed, and manure, 10 colters and over. Drills, combined grain, seed, and manure, 10 colters. Drills, grain. Rollers, land and Cambridge, over 7 hundredweight. Cultivators and grubbers, over 2 hundredweight. Chaff cutters, 9-inch mouth and over. Self-bagging chaff cutters. Seed cleaners. (New Zealand Statutes, 5 Edw. VII, 1905, pp. 601-603.) O