text:
    Schwartz v. State ex. rel Schwartz.

      Cumulative voting of shares — In election of directors — Section 3245, Rev. Stat.

    In the election of directors of a corporation the cumulative voting of shares is authorized by Section 3245, Revised Statutes, as amended April 23,1898 (93 O. L., 230), and one receiving a majority of the votes so cast is elected a director, though he does not receive the votes of the holders of a majority of the shares.
    (Decided January 9, 1900).
    Error to the Circuit Court of Hamilton county.
    An action in quo warranto was brought against the five plaintiffs in error to oust them from the directory of the Pape Brothers’ Moulding Company, a corporation organized under the laws of the state of Ohio and doing business in Hamilton county, they having been elected in August, 1898, and 'continuing to hold notwithstanding the alleged fact that at an election in August, 1899, five others named were elected over them as directors of the board, which consists of nine members. Issues were joined for the purpose of determining which candidates for the directory were elected. The cause was submitted in the circuit court on an agreed statement of facts which shows that at the election in August, 1899, the holders of a majority of the shares cast their full votes for the plaintiffs in error and four others, whose election as directors is not disputed. A minority voted their shares cumulatively for the five persons whose induction is claimed, except that one vote was given to each of the four whose election is not disputed. It resulted that the plaintiffs in error received the votes of the holders of a majority of the shares, but did not receive a majority of the votes; and that those whose induction is sought received a majority of the votes, but did not receive the votes of the holders of a majority of the shares. The circuit court rendered a judgment of ouster and induction, holding that those who by cumulative voting had received a majority of the votes were elected.

      Burton P. Hollister, for plaintiffs in error.
    The language of the act is plain and unambiguous. The first sentence of said act, as amended, provides that stockholders of a corporation may vote for directors of the corporation by casting the number of shares owned by them for as many persons as there are directors to be elected (which was the method of voting for stockholders given by Sec. 3245 R. S., before this amendment was passed), or he may cumulate said shares. The second sentence says that a majority of the number of shares shall be necessary for a choice. Which means that whatever the number of votes cumulatively cast a stockholder may receive, he is not elected a director unless, at the same time, he receives a majority of the number of shares. This second provision of the statute in regard to the number of shares necessary for a choice does not take away the right given to a stockholder to vote his shares cumulatively, though it may, under certain circumstances, take away the advantages to be gained by thus voting cumulatively. As the language is plain and unambiguous, the court would not be warranted by a change of words or in any other strained construction or interpretation to draw a different conclusion than that expressed in the words used. Brown v. Hunt, 18 Ohio St., 311; Gardner v. Collins, 2 Pet. 93.
    Nor can an obvious meaning be abandoned, though the court is convinced that the legislature intended differently. Woodbury v. Berry, 18 Ohio St., 456; Ohio St., 65; Hathaway’s Will, 4 Ohio St., 383; Sedgwick on Statutory and Constitutional Law, 231; Smith on Statutory Construction, 714.
    Courts are not to alter words though the legislature may not have contemplated the consequence of using them. When, by the use of • Olear and unequivocal language, capable of only one meaning, anything is enacted by the legislature, it must be enforced, even though it is absurd or mischievous . though it defeat the object of the act. Endlich on Interpretation of Statutes, Pars. 6, 7, 8. Bruner v. Briggs, 39 Ohio St., 478; Burgett v. Burgett, 1 Ohio St., 469; McCormick v. Alexander, 2 Ohio St., 65; Hathaway’s Wills, 4 Ohio St., 383; Smith Bridge Co. v. Bowman, 41 Ohio St. 37; Henry v. Trustees, 48 Ohio St., 671; Rex v. Ramsgate, 6 B. & C., 712.
    If the second provision of said act, as to the number of shares necessary to a choice, so destroys the effect of the first provision as to cumulative voting, that the second provision is in direct conflict with, the first, and the two provisions cannot be reconciled, then it is our contention that the second provision as to the number of shares necessary to a choice is the law, and the first provision as to cumulative voting is therefore invalid. For the reason that, if several clauses are unreconcilable and conflict, the last in local position must prevail. State ex rel. v. Hamilton, 47 Ohio St., 52.
    The second clause, which requires a majority of the number of shares for a choice, is in its nature a proviso and limits the operation and effect of the first clause permitting cumulative voting. The particular intent expressed in a proviso or exception will control the general intent of the enactment. The proviso is the later expression of the legislative will. The generally accepted rule with regard to the construction of a proviso in an act which is repugnant to the purview of the act, is that laid down in Attorney-General v. Water Works, Fitzgibbon, 195; Packer v. Railroad Co, 19 Pa. St., 211; Brown v. Commissioners, 21 Pa. St., 37, 42; Quick v. White Water Trustees, 7 Ind., 570; Ryan v. State, 5 Neb., 276.

      Stallo, Richards & Shaw, for plaintiffs in error.
    Counsel for defendants in error seem to find solace in the unctious reflection that the legislature did not mean what is expressed in the words set forth in section 3245, as amended April 23, 1898; that the closing sentence, requiring “A majority of the number of shares shall be necessary for a choice,” was either a mistake or an accident.
    Is this view tenable? Let us turn to section 3245 before the amendment in question was passed. What do we find are the words descriptive of the condition or result necessary to be accomplished or brought about by the expression of the preference of shareholders in order for a director to be legally chosen? We find these words: “A plurality of votes shall be necessary to a choice.”
    Can it be seriously urged or argued for a moment that the words “plurality of votes” were accidentally, unintentionally or mistakenly laid aside and substituted by the words “A majority of the number of shares?”
    Do the words “plurality of votes” mean the same thing as the words “the majority of the number of shares?”
    We urge and insist that these two phrases are not synonymous; that they can in no sense be said to mean the same thing. We urge and insist, further, that the substitution of the one for the other was intentionally and designedly made by the legislature, and that the legislature meant what it said in the, amendment — no more and no less.
    There is no fraud here, and certainly the final sentence of section 3245, as amended, is but declaratory of what has been the legal and moral right of shareholders since the creation of corporations. Cook on Stock and Stockholders, 3d edition, page 814.
    The statute in question requires neither construction nor interpretation, for the language is plain and free from doubt and can have but one meaning. The statute means just what it says. American & English Ency. of Law, Yol. 23, page 298, and the numberless cases cited in foot note No. 2; Sedgwick on Stat. & Const. Law, page 231; Cooley Const. Limita* tion (5th edition), page 197.
    But we are not compelled to go beyond our own state to substantiate the foregoing rules with reference to the province of the judiciary where the statute is plainly expressed. Woodbury v. Berry, 18 Ohio St., 456; Smith v. The State, 66 Md., 215; Doe v. Considine, 6 Wall. (U. S.), 458; Koch v. Bridges, 45 Miss., 259; Vol. 23, Am. & Eng. Ency. Law, pages 298 to 304.
    There can be no dispute of the legal proposition that “statute law is the will of the legislature,” nor can the further legal proposition be disputed that “the object of all judicial interpretation of statute is to determine what intention is conveyed by the language used.” 1 Kent’s Commentaries, page 468; Lieber Legislative Herm., page 88; Brewer v. Blougher, 14 Peter’s (U. S.), 178; Robinson v. Schenck, 102 Ind., 307.

      J. Shroder and Fred Hertenstein, for defendant in error.
    'The statute (R. S. 3245) is not vague. It is transcribed from statutes and constitution of other states, which, under judicial scrutiny have passed muster. Morowitz Corp., Sec. 476a; Beach Corp., Sec. 302; Taylor Corp., Secs. 580, 581; California Constitution, 1879, Art. 12, Sec. 12, Dier Code, V. 2, Sec. 307; Illinois Constitution, 1870, Art. 2, Sec. 3, Stairr & C. Stat., Sec. 3, p. 610; Missouri Constitution, 1875, Art. 12, Sec. 6; Idaho Constitution, 1889, Art. 2, Sec. 4; Montana Constitution, 1889, Art. 15, Sec. 4; Nebraska Constitution, 1875, Art. 11, Sec. 5; West Virginia Constitution, 1872, Art. 11, Sec. 4; Pennsylvania Constitution, 1874, Art. 16, Sec. 4; Gen’l. Statutes of Kansas, 1889, Sec. 1185; Civil Statutes of Texas, 1888, Art. 4128; Michigan Statutes, 4885 (a); Kentucky General Statutes, 552, Sec. 207.
    The passage from • Revised Statutes, section 3245, may (if necessary for the effective operation of the section) be considered surplusage. Without it, a majority of the voted shares would anyhow elect a director. The section 3246, which was passed on in The State ex rel. v. Merchant, 37 Ohio St., 251, does not prescribe what proportion of the vote was necessary to a choice, yet the court decided the case on the presumption that a majority was sufficient.
    If this quoted passage was to be read as contended for by plaintiffs in error, it would in practical effect lead to the absurd result of defeating the manifest object of the amendment. Where the literal or metaphysical construction of a part of an act would lead to a reductio ad absurdum, it is clear that the legislature did not intend such construction to be given to it.
    The law puts such construction to the words used, as is natural, and as will in practical application accomplish the purpose evidently designed by the legislature. This sentence in question is but the short form of a declaration to the effect that the majority of the voted shares cast by shareholders shall be necessary to an election. This is agreeable to custom, which the legislature is presumed to have followed. Morowitz Priv. Corp (2nd Ed.), Secs. 476a, 477.
    (A) There is no valid objection to shareholders cumulating or otherwise combining their votes, so long as the shareholder retains the power of controlling his vote. The pooling of votes and the creation of voting trusts furnish instances of this kind of combination. Griffith v. Jewett, 15 W. L. B., 419; Railway v. State ex rel., 49 Ohio St., 668.
    There is no rule of law which would necessarily limit the shareholders’ franchise of voting to one vote for each share. It would be competent to authorize two or more votes for each share; and the shareholder, being possessed of the right of casting a certain number of votes, may be permitted to exercise this right according to his own interest among the various candidates. And no notice was required from the shareholder of his intention to vote cumulatively. Pearce v. Commonwealth, 104 Pa. St, 150.

      (B) The amendment of April 23, 1898, to section 3245 (authorizing cumulative voting) is not in conflict with the constitution.
    1. (a) There is, in respect of the subject matter of this section no constitutional prohibition placed upon the legislature.
    (6) The constitution does not prescribe or require a particular mode of election.
    (c) This court in State ex rel. v. Stockly, 45 Ohio St., 304, took no exception to cumulative voting.
    2. This amendment does not impair a contract or any vested right. The act of incorporation of the company (here in question) was subject to the right to alter or repeal it, reserved under Article XIII, section 2, of the constitution. The following cases support this proposition: Lorain Plant Rd. Co. v. Colton, 12 Ohio St., 263; State v. Cinti. Gas Light Co., 18 Ohio St., 262; Harper v. Ampt, 32 Ohio St., 291; Sandusky City Bank v. Wilber, 7 Ohio St., 481; Shields v. State, 26 Ohio St., 86; 95 U. S., 319; State v. Sherman, 22 Ohio St., 411; Ry. v. Moore, 33 Ohio St., 392; State v. Hamilton, 47 Ohio St., 74; Ry. v. Sharpe, 38 Ohio St., 150; Miller v. N. Y., 14 Wall, 478; Spring Valley Waterworks v. Schottler, 110 U. S., 347; Hamilton Gas Light Co. v. Hamilton, 146 U. S., 258; The State ex rel. v. Merchant, 37 Ohio St., 251.
   By the Court:

The correctness of the judgment depends upon the construction which should be given to section 3245, revised statutes, as amended April 23, 1898 (93 O. L., 230). The material portion of the section is as follows:

“Every stockholder shall have the right to vote in person or by proxy the number of shares owned by him for as many persons as there are directors to be elected, or to cumulate said shares and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock shall equal, or to distribute them on the same principle among as many candidates as he shall think fit; and such directors shall not be elected in any other manner. A majority of the number of shares shall be necessary for a choice.”

Before the amendment of the statute is was held in State v. Stockley, 45 Ohio St., 304, that the statute did not authorize cumulative voting at elections of directors of corporations. For the plaintiffs in error it is contended that although the amended statute plainly authorizes cumulative voting, the result of the election must in all cases be the same as before such voting was authorized. This is said to be the necessary result of the requirement that “a majority of the' number of shares shall be necessary for a choice.” We cannot suppose that the general assembly amended the statute to the end that it should remain unchanged. 'The amendmént clearly authorizes two modes of voting, that is, either by or without cumulating shares. The requirement of a majority of shares must, in order that the clearly-defined purpose of the legislature be not defeated, be regarded as applying only when the shares are voted without cumulating. The statute affords no reason for the conclusion that votes were authorized for any purpose except to influence the result of the election.

Judgment affirmed.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    The State ex rel. Poorman v. County Commissioners.

      Sherifffails to give bond — Before first Monday of January, after his election— Creates a vacancy.

    If one elected to the office of sheriff fails, without justification, to give an official bond before the first Monday of January next after his election there occurs on that day a vacancy in the office which the county commissioners should fill by appointment.
    (Decided January 16, 1900.)
    In Mandamus.
    The cause is submitted on demurrer to the answer and upon the agreement that the facts appearing in the pleadings shall be taken as conclusive for the purposes of final judgment. In substance those facts are that at the general election held on the 7th day of November, 1899, the relator was duly elected to the office of sheriff of Paulding county for a term of two years, to commence on the first Monday in January, 1900. On the 21st of November, 1899, his commission was duly issued and forwarded to the clerk of the court of Paulding county, where it remained until the second day of January, 1900. On the 20th day of December, 1899, the relator made application to the local agents at Paulding, Ohio, of the United States Fidelity and Guaranty Company of Baltimore, Maryland, for the furnishing of his official bond. The application was forwarded to the company on the 23rd day of December, 1899, and on the 29th day of December, 1899, the company at Baltimore signed and acknowledged the bond and mailed the same to its representatives at Paulding, by whom it was received at Paulding on the morning of Monday, the first day of January, 1900, and upon that day the relator signed the bond and it was approved by the prosecuting attorney, as required by law. The defendants, the commissioners, were in session at Paulding on Tuesday, the 2nd day of January, 1900. The relator on the first day of January went to the office of the board of county commissioners for the purpose of having them approve his bond, but the board not being in session the bond was not presented to them nor approved upon that day. Upon the day following, January 2nd, 1900, he presented the bond to the board of commissioners in session, but the board, although satisfied with the form and sufficiency of the bond, refused to approve the same because it had not been tendered prior to the first Monday in January, 1900, as required by law. The commissioners thereupon declared the office of sheriff vacant and proceeded to make an appointment to fill it. The object of the petition is to require the defendants to approve the bond.

      J. M. Sheets, Attorney General, and Snook, Corbett and Phipps for relator.
    As applicable to the undisputed facts, we make the following propositions of law, to-wit:
    First — Section 1203 of the Revised Statutes, which provides sheriffs’ bonds shall be given “within ten days after receiving their commissions, and before the first Monday of January next after their election,” is as to time of giving bond, directory only and merely because the bond in this case was not signed by the relator until Monday, January 1st, 1900, and not presented to the board of county commissioners until the next day for its approval, did not and coiild not occasion a vacancy in the term of office to which the relator was elected. Ohio ex rel. Epler v. Lewis, 10 Ohio St., 129; Ohio ex. rel. Kelley v. Thrall, 59 Ohio St., 368; Am. & Eng., 19 Sub., title 7, pp. 440-1-2; Duntly v. Davis, 42 Hun. (N. Y.), 229; Meechem on Public Officers, p. 166.

      Second — In the case at bar, construing the statute with literal strictness against the relator, the bond having been executed by the Surety Company on the 29th of December, became and then was a good and sufficient bond to the state of Ohio. R. S. 3641c, 2 Am. & Eng. Enc., 466#, Sub. Title E. N. 1, 5667t. And the condition of R. S. 1203 was thereby fully complied with.
    Third — The duty and power of the commissioners, under Revised Statutes 1203-1205 are ministerial only. Am. & Eng., v. 2, p. 4667i and N. 3 and 4.
    And it seems clear to us that they could not under the power conferred on them by statute, create a vacancy, but merely declare its existence, after its creation by an act or acts, omission or omissions of sufficient force and effect to produce that condition, and an attempt to create a vacancy by declaration and to fdl it by appointment thereto, of their own selection for that office instead of the person elected thereto by popular vote, is void and of no effect. Culver v. Armstrong, 77 Mich., 194.
    And even this attempted exercise of power was not made until after an unobjectionable bond was presented to said board for its approval.
    Fourth — The contention that the bond was not indorsed with the oath of office of relator, is made here for the first time, and was not made by the commissioners on the presentation of the bond as appears from the record as set forth in their answer, and for that reason is entitled to no consideration at the hands of the court, but were this not true, “The oath of office is a mere ministerial act, and not a condition precedent to entering upon the duties of the office, nor will the omission to take it by the principal in an official bond discharge the sureties.” Ohio v. Findley, 10 Ohio St., 51; 19 Am. & Eng. Enc., 443-444.
    Fifth — The statute, R. S. 1205 id., can not be held to operate against the relator until after the receipt of his commission, or some act of his going to show that he intended to postpone the giving of bond on an intention on his part not to accept his office. State v. Hadley, 27 Ind., 496.

      John W. Zuber; J. S. Snook and George B. Okey, for defendants.
    Much of the supposed conflict of case law on this subject has grown out of failure to properly distinguish the different questions which have been before the courts and the different statutes which have been under discussion. The cases may be divided into four classes:
    First — Those cases where the law neither declares the office vacant nor makes it the duty of some board or officer declare to a vacancy on the failure of the officer-elect to present his bond within the time prescribed by law and the.bond is approved after the prescribed time by the proper officer or board. In these cases the courts hold the bond good not because the statute fixing the time is directory but because the officer becomes a de facto officer and because his sureties are estopped from denying the validity of the bond. Westhaven v. Cline, 5 Ohio St., 36; City of Chicago v. Gage, 95 Ill., 593.
    Second — Another class of cases like those in Missouri, are those where the statutes contain a provision that the bond shall be filed within a certain time, but contain no provision whatever as to forfeiture. It is manifest that cases arising under such statutes as these can throw no light upon the question in controversy.
    Third — There is a class of cases where the officer elect has not qualified within time because there has been pending a case in mandamus, quo warranto or injunction, or because some statute has been enacted which after the expiration of the time for qualification has been declared unconstitutional. In this class of cases the courts have rightly held that the ofcer may qualify upon tlie termination of the suit or upon the statute being declared to be unconstitutional. Such is the case of State ex rel. v. Heffner, 59 Ohio St., 368. This class of cases is clearly distinguishable from the one at bar where the failure can be attributed to no other cause than the negligence of the relator. It is clear that decisions coming under any of the foregoing heads have no weight on the questions under discussion. Forwell v. Adams, 112 Ill., 57; Benoit v. Miller, 16 Mich., 56.
    Fourth — The fourth class of cases are those where the statute either provides that upon failure to give the bond within the time specified, the office shall become vacant or some board or officer shall declare a vacancy. In passing on statutes of this kind courts have almost uniformally held that the plain language of the statute must be followed. State v. Lansing, 64 N. W., 1104; Ross v. People, 78 Ill., 375; Falconer v. Shores, 37 Ark., 286; People v. Taylor, 57 Cal., 620; People v. Perkins, 85 Cal., 509; People v. Sherd, 100 Cal., 537; State v. Matheny, 7 Kan., 327; State v. Tucker, 54 Ala., 205; in rel. office of Atty. Gen., 14 Fla., 277; State v. Beard, 34 La., 273; Bennet v. State, 58 Miss., 566; Childrey v. Rady, 77 Va., 518; Owens v. O’Brian, 78 Va., 116.
    We contend that the language of the statute “the sheriff shall, before the first Monday in January next after his election, give bond to the state with two or more sureties approved by the county commissioners,” admit of no other construction other than that which the plain terms import, and that when the statute says “if the sheriff fails to give bond within the time above specified then said commissioners shall declare the office of such sheriff vacant.” It casts upon the commissioners of Paulding county the duty to declare said office vacant in as plain and concise terms as could possibly be used.
    Relator contends that because the bond was filed before the commissioners declared a vacancy he is entitled to have his bond approved. This is not true.
    First — Because section 19 of R. S. provides that on failure either to give bond or qualify within time he shall be deemed to' have refused to accept the office, and by its very terms declares the office vacant.
    Second — The answer shows that he did not take oath of office or have same indorsed on bond.
    Third — Section 1205 makes it the plain duty of the commissioners to declare a vacancy if he fails to give bond within the time specified by law.
    Fourth — We have not found a single case on which relator can base his contention, except cases where the matter came before the court upon a collateral issue such as a suit on the bond where it had been approved after time or on motion to quash some writ, and are no authority in the case at bar..
    Fifth — On the other hand, in each of the following cases, the bond was filed before the forfeiture was declared and before appointment of successor, and the question of the right to office was before the court either by mandamus or quo warranto, and the court held that the failure to file a bond in time had worked a forfeiture. Harris v. Tucker, 54 Ala., 205 (overruling 33 Ala., 674); State v. Beard, 34 La. 273; State v. Hopkins, 10 Ohio St., 509; State ex rel. Epler v. Lewis, 10 Ohio St., 135.
   By the Court:

The result of Poorman’s failure to give bond before the first Monday in January, 1900, and the duty of the defendants in consequence of such failure are determined by section 19, 1203 and 1205 of the Revised Statutes. By the first of these sections it is provided that “Any person elected or appointed to an office of whom bond or security is by law required previous to the performance of the duties imposed on him by his office, who refuses or neglects to give such bond or find such security agreeably to and within the time for that purpose prescribed by law, and in all respects to qualify himself for the performance of such duties, shall be deemed to have refused to accept the office to which he was elected or appointed, and the same shall be considered vacant and be filled as provided by law.” Section 1203 provides: “The sheriff shall, within ten days after receiving his commission, and before the first Monday of January next after his election, give bond to the state with two or more sureties, approved by the county commissioners * * * * Section 1205 provides: “If the sheriff fails to give bond within the time above specified, or fails to give additional sureties on his bond, or a new bond within ten days after he has received written notice that the county commissioners require such additional surety or new bond, then the said commissioners shall declare the office vacant and said office shall thereupon be filled as provided by law.”

The case before us presents no justification for the failure of the relator to comply with the requirements of the law, nor is the court able to relieve him from the consequences which the statute in plain terms affixes to his failure.

Demurrer to answer overruled and petition dismissed.


author: By the Court :

text:
    The State ex rel., Leland v. Mason as Speaker of the House of Representatives, and Guilbert, as Auditor of State.

      Member of general assembly — By accepting appointment to federal judgeship —Becomes ineligible to seat in general assembly.

    A member of the general assembly, who has accepted an appointment to a federal judgeship, thereby, by force of section 4 of article 2 of the constitution, becomes ineligible to a seat in the general assembly and ceases to be a member of that body, and is not entitled to payment of salary thereafter.
    (Decided January 16, 1900.)
    Motion for an alternative writ of mandamus.
    Tlie cause was submitted on its merits on tbe hearing of tbe motion.
    In substance tbe petition avers that tbe relator, Charles A. Leland, was, on tbe first Monday of November, 1897, duly elected a member of tbe bouse of representatives of tbe state of Ohio, from Noble county, duly qualified, entered upon tbe duties of tbe office and has ever since occupied and performed tbe duties thereof.
    The defendant, Mason, is the speaker of tbe bouse of representatives, and tbe defendant, Guilbert, is tbe auditor of state.
    Tbe salary of tbe office of membér of tbe bouse was and is $600 during each year of tbe term. It became due to relator for tbe year 1899 on February 16, 1899, and there was duly appropriated out of tbe general revenue fund of tbe state tbe sum of $600, not otherwise appropriated, to pay tbe same, by which said sum was to be paid in one installment on and after February 16,1899.
    It was tbe duty of Mason, as speaker, upon demand, to issue a certificate to the auditor of state, certifying that said sum of $600 for salary as aforesaid was due relator, and the duty of said Guilbert as auditor, to issue a warrant upon the treasurer of state for said sum.
    In the month of October, 1899, the relator demanded of said Mason as speaker such certificate for his salary, which he refused and still refuses to issue.
    On November 16, 1899, the relator presented his claim for salary to the defendant, Guilbert, as auditor, and demanded that he issue his warrant on the treasurer of state for his salary, which he then refused and still refuses to do.
    On or about the........day of........, 1898, relator was appointed associate justice for the United States District court, fifth judicial district of the territory of New Mexico, accepted such appointment and then duly qualified as such justice, and now holds said position.
    There is money in the treasury of the state duly appropriated sufficient to pay said salary.
    On April 26, 1898, the general assembly, by joint resolution, adjourned sine die. Defendants have always been informed of the claim of relator, and that -he is the duly elected, qualified and acting member of the house of representatives from Noble county.
    A writ of mandamus is prayed for commanding said Mason, as speaker, to issue such certificate, and said auditor to issue his warrant.

      D. L. Sleeper, counsel for relator.
    Our contention is, that the relator having been duly elected, qualified and commissioned, is a member of the general assembly and remains such until the house by a two-thirds vote expels him.
    The whole question is for the house.
    Gen. Joseph Wheeler, in proceedings against him in the present house of representatives to unseat him and others because they had accepted military commissions in the volunteer army in the late war with Spain, stated that in the whole history of our government no member has ever been expelled or deprived of his seat in consequence of his having accepted an office except in a single case of Van Ness in 1802. Dalton’s case, 43 Ohio St., 652; Cooley Con. Lim., 133; State v. Jarrett, 17 Mich., 309; People v. Mahoney, 13 Mich., 481.
    The relator is a member of the general assembly and under section 40, Revised Statutes, “each member shall receive the sum of six hundred dollars for each year of the term of his office.”
    The statute is plain and no exception or qualification therein provides discretion to the auditor of state in the matter. It has been held by courts of the last resort over and over again that he who holds the commission is entitled to the emoluments of the office. State ex rel. v. Clark, Auditor, 52 Mo., 508; Winston v. Mosley, Auditor, 35 Mo., 146; Board v. Benoil et al, 20 Mich., 176; section 154, R. S.; Bryan v. Cattell, Auditor, 35 Iowa, 538; People ex rel. v. Schuyler, Auditor, 79 N. Y., 189; Leech v. Cassidy, 23 Ind., 449; People v. Head, 25 Ill., 325; State v. Auditor, 48 Mo., 213; State, Jackson v. Auditor, 34 Mo., 375; this case is affirmed in 36 Mo., 70; Beck v. Jackson, 43 Mo., 117; Court v. Sparks, 10 Mo., 117.
    Revised Statutes of Ohio, Sec. 6744, forbids the issuing of a writ of mandamus in a case where there is a plain anl adequate remedy in the ordinary course of the law.
    Revised Statutes, section 6760, provides for a writ of quo warranto against a person who usurps, intrudes into, or unlawfully holds or exercises a public office.
    The defendants cannot raise the question of the relator unlawfully holding said office in this action as a plain and adequate remedy at law is furnished by section 6760 by a writ of quo warranto.
    Revised Statutes, section 2988, directs the governor to call a special election to fill a vacancy in the general assembly.
    Seetion 37, Revised Statutes, provides that the resignation of a member shall not take effect when the legislature is in session until a majority of the house to which he belongs has consented thereto, and in vacation, until the governor has accepted the resignation. A member of the house cannot voluntarily resign and he will not be permitted to accomplish by indirection as by the acceptance of another office what he cannot do directly. Meecham on Pub. Officers, 421; Throop on Pub. Officers, Sec. 30, 411, 412.
    In Meecham on Public Officers, two exceptions are noted to the rule that the acceptance of an incompatible office vacates the first office, viz: First, where the officers are under different governments, as state and national, Sec. 430; .and second, where the incumbent cannot voluntarily resign. Sec. 421.

      F. S. Monett, Attorney General, for defendants.
    We believe that it is within the jurisdiction of the supreme court of the state, under section 1, article 4, to exercise judicial power over the subject matter set forth in relator’s petition. Article 4, section 1. Under section 2 said court has original jurisdiction in mandamus.
    The relator has recognized that there is a judicial question to be determined by invoking your jurisdiction.
    This general power, or authority, has no limitations so far as the supreme court is concerned, in mandamus unless it be found in the constitution. Because you receive your powers from the constitution for exercising this function; therefore it alone can take them away.
    The power of the legislature in article 2, section 1, is supreme, save and except where the constitution itself places limitations thereon, which limitations this court has been repeatedly called upon to define and to discover. 1 Ohio St., 77; Cass v. Dillon, 2 Ohio St., 608.
    If relator’s position be true, he must presume not only that all legislative and judicial power to determine the eligibility' of a member is provided for in section 6, but he must further presume that every member of each house will violate his oath of office by violating the constitution itself. Nay, more, he has invoked the jurisdiction of a court, created by the constitution, in asking them-to exercise that jurisdiction for the purpose of -violating article 2, section 4, of the constitution, when under article 15 it is their sworn duty to sustain the constitution.
    So likewise to have a seat in the general assembly if he is once elected and seated, he can terminate that relationship by either tendering his resignation and having it accepted while he remains in private life, or he can constitutionally vacate it by accepting a federal office, which, by the terms of the constitution, is the highest kind of a resignation, and it makes no exception to this rule other than those named therein, viz: the township officer, justice of the peace, notary public or officer of the militia.
    Counsel contend for the rule laid down in Meechem on Pub. Officers, section 430, that where the office is held under different sovereignties, does not apply. But in each of the following cases the court assumed jurisdiction and passed upon the matter. Dickson v. People, 17 Ill., 191; People v. Brooklyn, 77 N. Y., 503; 33 Am. Rep., 659; State v. DeGrass, 53 Texas, 367; State v. Buttz, 9 S.C., 156.
    We contend that the relator has forfeited his seat in the general assembly and the right to the emoluments thereof, by accepting the position of associate justice of the supreme court of the United States for the fifth judicial district of the territory of New Mexico. Shell v. Cousins, 77 Va., 328; State v. Newhouse, 29 La. Ann., 824; State v. Arata, 32 La. Ann., 193; State
      v. Draper, 45 Mo., 355; Foltz v. Kerlin, 105 Ind., 221; Daily v. State, 8 Blackf. (Ind.), 329; 2 Hill (N. Y.), 93; People v. Nostrand, 46 N. Y., 381; People v. Green, 58 N. Y., 304.
    Rut why take up the time of this court discussing a proposition which has but recently been decided? State ex rel. Allen v. Mason, etc., 61 Ohio St., 62.
   By the Court :

The record presents the question whether or not a member of the general assembly who, during the first year of the term for which he has been elected, has accepted an appointment as associate justice of a district court of the United States, and entered upon the discharge of the duties of said office, is entitled to payment of salary as such representative for and during the second year of said legislative term, the legislature having appropriated funds for the payment of the salaries of the members?

Or, perhaps the question should be put in this form: Should this court, by mandamus, compel the payment of salary under the circumstances above stated?

In support of the relator’s claim the contention is that the case is controlled by sections 6 and 8 of article 2 of the constitution, which provide: “Each house shall be judge of the election, returns, and qualifications of its own members,” and may “with the concurrence of two-thirds, expel a member.” And that the relator, having been duly elected and qualified, became a member of the general assembly, and no action having been taken by the house of representatives to exclude or expel the relator, he remains a member and entitled to draw the salary. That is, the question is purely a legislative one, wholly within the control of the house of representatives. And no other officer, authority or court has power to pass upon the question of relator’s eligibility, or to refuse him his salary.

We cannot assent to this proposition. The sections-cited are to be construed with section 4 of the same article, which provides that'“No person holding office under the authority of the United States * . * * * shall be eligible to, or have a seat in, the general assembly.”

It is the duty of the court to give force to this mandate of the constitution, and though the general assembly does not act, the court cannot evade that duty. It must refuse its aid to one who assumes to hold office in violation of the constitution. No one doubts that the federal judgeship is an' office. The relator, when he accepted that office and became a federal judge, was no longer eligible to a seat in the general assembly, and is not entitled to payment of the salary claimed.

Motion overruled and writ refused.


author: Shauck, C. J.

text:
    The State ex rel F. S. Monnett, Attorney General, v. The Buckeye Pipe Line Co. The State ex rel F. S. Monnett, Attorney General v. The Solar Refining Co. The State ex rel F. S. Monnett, Attorney General v. The Ohio Oil Co. The State ex rel F. S. Monnett, Attorney General v. The Standard Oil Co.

      Trusts — Act to define — pj, O.L. 143 — Forbidding independent corporations to enter combinations, etc — Legislative power— Constitutional law.

    The act entitled “An act to define trusts, etc.,” 93 O. L. page 143, in so far as it forbids independent corporations to enter into combinations to restrict competition in trade with a view to exacting from consumers higher prices than would prevail under the conditions of open competition, is an exercise of legislative power not repugnant to any limitation prescribed by either the state or federal constitution.
    (Decided January 30, 1900.)
    In Quo Warranto.
    In these cases the late attorney general filed petitions in quo warranto containing several causes of action and alleging the grounds upon which he claims the said corporations should be ousted of their franchises. The first causes of action in the three first cases are substanially copies of the petition upon which the judgment of this court in the State on the relation of the Attorney General v. The Standard Oil Company, 49 Ohio St., 137, is founded. The questions now to be determined arise upon the second causes of action in the several petitions. In those causes of action the allegations of the first causes of action are by averment alleged to be true, as though fully repeated. This mode of pleading is manifestly improper, since the causes of action are independent. The second cause of action counted upon violations of the act of April 19, 1898 (93 O. L., 143), entitled “An act to define, trusts and provide for criminal penalties in civil damages, and punishment of corporations, persons, firms and associations, or persons connected with them, and to promote free competition in commerce and all classes of business in the state.”
    In the second cause of action it is alleged against each of the defendants that it entered into a combination with nineteen other named corporations for the purpose of preventing competition in the production, transportation and refining of petroleum, and of fixing and maintaining the prices at which its various products should be sold. It is alleged that the same persons are chosen to the directories of said several corporations, to the end that their opera-, tion may be so controlled as to accomplish the purpose of said trust agreement, the object of which is alleged to be that the functions of producing, transporting and refining petroleum are so apportioned among them as to prevent competition. The terms of the agreement are not set out, but its purport is alleged as follows: “The said defendant company whoily violated the said act in carrying out said trust contract, obligations and agreements by continuing to bind itself and remaining obligated not to sell, dispose of and transport petroleum or any of its products that are now, or have heretofore been used in trade for merchandise or consumed by the citizens of the state of Ohio at a fixed value, and have confederated and agreed to establish and maintain the price of said petroleum and its products at a higher price than the said commodities would have been furnished to the consumers had the said trust agreement not been made, entered into and continued as aforesaid, the true amount and advance between the competitive price and the price determined by said combination, plaintiff has not the means of fully stating and advising the court, and that they have by entering into said trust agreements and by continuing operation thereunder, directly and indirectly precluded a free and unrestricted competition among themselves as well as between purchasers and consumers in the transportation and sale of said petroleum and all its products; that the defendant company has, by entering into and continuing in its operation under said agreements hereinbefore set forth and by entering into other and further agreements, the nature of which plaintiff is unable to state, defendant company has agreed to pool, combine and have directly and indirectly united its interest with the said nineteen other companies hereinbefore set forth, and its stockholders, directors, officers and other persons to the plaintiff unknown, in order that they may have connected with the transportation and sale of said petroleum and all its products, so that its price is fixed thereby in this, to-wit: that the open market, competitive' price of the high-grade of petroleum or illuminating oil manufactured and refined by defendant company, is about four (4) cents per gallon. By means of said combination and confederation by which this defendant directly and indirectly aids the other said nineteen companies is able to destroy competition and extort an amount from the purchasers, residents of the state of Ohio, eight (8) cents and upwards per gallon for said commodity to the detriment of the citizens of the state of Ohio, and wholly in abuse of its corporate rights, franchises and powers.”
    The prayer of each petition is that the defendant be adjuged to have forfeited its corporate rights, privileges and franchises and that it be ousted and excluded therefrom.
    It was probably in view of the averment intended to couple the first cause of action with this, that the defendant, instead of demurring to the second cause of action, made it the subject of a second defense in the answer in which they allege that the act referred to is unconstitutional. To this defense a demurrer is interposed on behalf of the state. The same questions are raised in case No. 6416 by the allegation of the fifth defense in the answer alleging that the act is unconstitutional. To this defense there is a reply denying that the act is unconstitutional, but this may be treated as a demurrer. The act is as follows:
    “An act to define trusts and to provide for criminal penalties and civil damages, and punishment of corporations, persons, firms and associations, or persons connected with them, and to promote free competition in commerce and all classes of business in the state.
    “Section 1. Be it enacted by the General Assembly of the State of Ohio, That a trust is a combination of capital, skill or acts by two or more persons, firms, partnerships, corporations 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 commerce.
    “2. To limit or reduce the production, or increase or reduce the price of merchandise or any commodity.
    “3. To prevent competition in manufacturing, making, transportation, sale or purchase of merchandise, product or any commodity.
    “4. To fix at any standard or figure, whereby its price to the public or consumer shall be in any manner controlled or established, any article or commodity of merchandise, 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 description, by which they shall bind or have bound themselves 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 figure 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 rate or graduated figure, or by which they shall in any manner establish or settle the price of any article, commodity or transportation between 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 connected with the sale or transportation of any such article or commodity, that its price might in any manner be affected. Every such trust as is defined herein is declared to be unlawful, against public policy and void.
    “Section 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 prosecuting attorney of the proper county, to institute proper suits or quo warranto proceedings in the court of competent jurisdiction in any of the county seats in the state where such corporation or association exists or does business, or may have a domicile. And when such suit is instituted by the attorney-general in quo warranto, he may also begin any such suit in the supreme court of the state, or the circuit court of Franklin county, for the forfeiture of its charter rights, franchises or privileges and powers exercised by such corporation or association, and for the dissolution of the same under the general statutes of the state.
    “Section 3. Every foreign corporation, as well as any foreign 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 in quo warranto in the supreme court, or the circuit court of the county in which defendant resides or does business, or other proper proceedings by injunction or otherwise. The secretary of state shall be authorized to revoke the certificate of any such corporation or association heretofore authorized by him to do business in this state.
    “Section 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, manager, director, agent, servant or employer, 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 thereunder or in pursuance thereof, shall be punished by a fine of not less than fifty ($50) dollars nor more than five thou-sand ($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 provision shall constitute a separate offense.
    “Section 5. In any indictment 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 pursuance of it, or aided or assisted in carrying out its purposes, without giving its name or description, or how, when and where it was created.
    “Section 6. In prosecutions under this act, it shall be sufficient 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 belonging 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 ah leged may be established by proof of its general reputation as such.
    “Section 7. Each and every firm, person, partnership, corporation or association of persons, who shall in any manner violate any of the provisions of this act, shall for each and every day that such violations shall be committed or continued, after due notice given by the attorney general or any prosecuting attorney, forfeit and pay the sum of fifty ($50) dollars, which may be recovered in the name of the state, 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, or the prosecuting attorney of any county on the order of the attorney general, to prosecute for the recovery of same. When the action is prosecuted by the attorney general against a corporation or association of persons, he may begin the action in the circuit court of the county in which defendant resides or does business.
    “Section 8. That any contract or agreement in violation of the provisions of this act, shall be absolutely void and not enforcable either in law or equity.
    “Section 9. That the provisions hereof shall be held cumulative of each other and of all other laws in any way affecting them now in force in this state.
    “Section Í0. It shall not be lawful for any person, partnership, 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 employe, or the directors or stockholders of any corporation, to enter into 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 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 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 person, partnership, association or corporation that shall enter into any such combination, contract or agreement for the purpose aforesaid shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not less than fifty dollars, nor more than one thousand dollars.
    “Section 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 forbidden 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 obtained, without respect to the amount in controversy, and to recover two-fold the damages by him sustained, and the costs of suit. Whenever it shall appear to the court before which any proceedings under this act may be pending, that the ends of justice require that other parties shall b,e 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.
    “Section 12. The word ‘person’ or ‘persons’ whenever used in this act, shall be deemed to include corporations, partnerships and associations existing under or authorized by the state of Ohio, or any other state, or any foreign country.
    “Section 13. This act shall take effect and be in force from and after the first day of July, 1898.”

      F. S. Monnett, Attorney General, and Edgar B. Kinhead and Smith W. Bennett, of counsel, for the state.

      Is the Valentine-Stewart anti-trust law unconstitutional upon the following grounds?

      a. Does' it violate article 1, section 1, of the constitution of the state by depriving persons of liberty, and of acquiring, possessing and protecting property?

      b, Does it violate article 1, section 16, of the constitution of Ohio by depriving persons of their property without due process of law?

      o. Does it violate article 1, section 9, of the constitution of Ohio by inflicting cruel and unusual punishments?

      d. Is it a retroactive law?
    e. Does it violate section 1 of the 14th amendment to the constitution of the United States, by abridging the privileges or immunities of citizens of the United States, or by depriving persons of liberty or property without due process of law, or does it deny to persons within its jurisdiction equal protection of the laws?

      †. Does it violate article 1, section 8, of the constitution of the United States by interfering with the power of congress to regulate commerce with foreign nations and with the several states? Does it violate article 1, section 10, of the constitution of the United States as an ex post facto law or law impairing the obligation of contracts?
    The controlling principle that governs any such legislation and the rule which should dominate the proper construction of any such act, is that of salios populi est suprema lex; wherever the welfare of the whole people of the state are concerned, or any part thereof, the principle contended for applies.
    One of the early decisions frequently followed and cited by this court in the earlier adjudications is that of Lewis v. McIlvaine, 16 Ohio St., 354; Ry. Co. v. Clinton Co., 1 Ohio St., 77; Lehman v. McBride, 15 Ohio St., 573; Walker v. Cincinnati, 21 Ohio St., 41; State v. Kendle, 52 Ohio St., 442; Ireland v. Turnpike Co., 19 Ohio St., 373; Leep v. Ry. Co., 41 Am. St. Rep., 109; Fox v. McDonald, 46 Am. St. Rep., 98;
      Ry. Co. v. Dey, 81 Am. St. Rep., 477; Woodworth v. Ry Co., 36 Am. St. Rep., 309; In re Maderra Irr Dist., 27 Am St. Rep., 106; Stevenson v. Coglan, 25 Am. St. Rep., 230; Mauldin v. City Council, 46 Am. St. Rep., 723.
    We assert and cite authorities for the court’s consideration as to what limits in the said law the party defendant can claim as a defense to the constitutionality of the act. We claim that all of the sections of the act are not involved in this controversy, or in other words, if it is only such parts of said act, as affect this defendant in this action, that the courts will hear them complain of the unconstitutionality.
    Courts will not permit the constitutionality of a statute to be questioned by persons whose -rights it does not affect, Sullivan v. Berry, 4 Am. St. Rep., 147; Commissioners v. State, 12 Am. St. Rep., 183.
    Persons whose rights are not affected by a statute cannot avoid its operation on the ground that it impairs an obligation of contract between others. 4 Am. St. Rep., 147; People v. Budd, 15 Am. St. Rep., 460.
    So in the federal court it is with equal jealousy that the federal courts preserve the legislative power of congress and have repeatedly held that the presumption is always in favor of the validity of the .statute if the contrary is not clearly demonstrated. Cooper v. Telfair, 4 Dallas, 14; Fletcher v. Peck, 6 Cranch, 87; Pine Grove v. Talcott, 19 Wall, 666.
    Such power being clearly vested in the legislature to enact such a law, it was only re-incorporating into the statute what the common law, as early as the day of the great Blackstone, had said was the law. Wendell’s Blackstone, Vol. 2, p. 407, note 13, and Vol. 4, p. 158.
    The act to protect trade and commerce against unlawful restraint and monopolies, commonly known as the Sherman Anti-trust act (July 2, 1890), expressed the policy of the United States. 26 Stat., 209 C., 647; U. S. V. Trans-Missouri Freight Association, 166 U. S., 290.
    Many of the sovereign states have retained a clause or inserted a clause in their constitution declaring all monopolies or contracts in restraint of trade odious and forbidden. N. C. Constitution, Art. L., Sec. 31; Tennessee Constitution, Art. 1, Sec. 22; Texas Constitution, Art. 1, Sec. 18; Compiled Laws of New Mexico, p. 382, Sec. 1292; Stimson Am. Stat. Law, Vol. 2, p. 580, commencing with Sec. 9900 down to and including 9905, on p. 950.
    There may be said to be two principal ways in which the organization of the so-called trusts or prohibited combinations are accomplished.
    In the first the former structure of the original individual undertaking is preserved. The managers of these several corporations, companies or business simply agree among themselves to transfer all, or at least a majority of their stock, in trust to a central committee of trustees, who give back to them in return trust certificates to the estimated value of the plant and property of the individual, together with the good will of the business and any patents it may control or advantages which it may possess, making its consolidation Avith the trust particularly desirable. Each member also generally receives back a mortgage covering his original property given by the trustees to secure the individual in case the combination should fail or be dissolved. The trustees then “have the poAver to elect the directors, place their own agents in charge, prevent all clashing of interests and so control the market.” This is the “original or simón pure trust.” Hobson’s Modern Capitalism, p. 130; Yon Halle on Trusts, p. 127; Cook’s Corporation Problem, p. 218, 219; Headley’s Economics, p. 158.
    Of such form was the Standard Oil trust, the Cotton Oil trust, the Sugar trust, the Whiskey trust, and the host of combinations that folloAved in their train. See the result of New York trust investigation given in “Appendix A” of Cook on Trusts.
    The second method of forming the consolidations differs but little in its practical workings from the first. In form it is a gigantic corporation, it consolidates the undertakings itself, either by leasing them for a term of years or by purchasing them outright, giving its own stock in payment. The pioneer of this second group was the Diamond Match Co., and to it belond also many of the railroad combinations. The United States Leather Company; the United States Rubber Company; The American Tobacco Company, and later the Continental Tobacco Company; the Cleveland & Sandusky Brewing Company, and most of the new companies that are forming, and old trusts as they have been reorganized. See Von Halle on Trusts, p. 108; Cook on “The Corporation Problem,” pp. 244, 245.
    This act we claim to be but a fair exercise of the police power reserved in every government, state or national. While it is difficult to give an exact definition of police poAver applicable in all cases, it is necessary to do so in this case. Cooley’s Con. Lim., 6th Ed., 624 and 572 ; 4 Blackstone’s Commentaries, 162; Commonwealth v. Alger, 7 Cush., 84; Thorpe v. Railway Co., 27 Vt., 149; 4 Thompson on Corporations, Sec. 5472; Ry Co. v. Mower, 6 Kas., 573; Nelson v. R. R. Co., 26 Vt., 717; State v. Chamber of Commerce, 47 Wis., 670; Ins. Co. v. Needles, 113 U. S., 574 ; Holden v. Hardy, 169 U. S., 366.
    In the case at bar we do not seek to apply any neAv principles, but only those ancient as the time of Lord Coke, announced in the case of “monopolies,” Darcy v. Allen, Coke’s Rep. No. XI, p. 840; State v. Standard Oil Company, 49 Ohio St., 187.
    It will be observed that the common welfare is the basis of public policy as well as the source of the police power of the state. State v. Noyes, 47 Me., 211; Lake View v. Rose Hill Cemetery, 70 Ill., 192;
      Slaughter House Cases, 16 Wal. 36; Butchers’ Union Co. v. Crescent City, 111 U. 8., 746; New Orleans v. Stafford, 27 La. Ann., 417; Cooley’s Con. Lim., 4th Ed. 506.
    In the exercise of this power states have the right to prohibit the adulteration of food products. State v. Campbell, 64 N. H., 402; People v. West., 44 Hun., 162; People v. Arensberg, 105 N. Y., 123; Waterbury v. Newton, 50 N. J. L., 534; Plumley v. Mass., 155 U. S., 461; Commonwealth v. Waite, 11 Allen, 264 ; Cooley Con. Lim., 4th Ed., 596; Commonwealth v. Hamilton Mfg. Co., 120 Mass 383; Shaffer v. The Union Mining Co., 55 Md., 74; Cooley’s Con. Law, 235; Underwriters v. Whippel, 37 N. Y. S., 712; 2nd App. Div., 361; State v. Ins. Co., 50 O. S., 252; Jorden v. Overseer, 4 Ohio, 294; Munn v. Ill., 94 U. S., 113; Railway Co. v. Iowa, 94 U. S., 115; Railway Co. v. Iowa, 94 U. S., 115; Stone v. Wisconsin, 94 U. S., 181; People v. Budd, 117 N. Y., 1; Reagan v. Farmers L. & T. Co., 154 U. S., 362.
    Monopolies have been condemned for centuries by the common law. The Common law upon this subject is very well understood and not much need be said upon it here. The United States v. Addyston Steel Co., 54 U. S., App., 723; Mitchell v. Reynolds, 1 P. Williams, 181; Mandeville v. Harman, 7 Atlantic, 37 (N. J.).
    Sale of good will of a business or employment, with an agreement not to engage in the business under reasonable restrictions, etc., have always been regarded as lawful. Lang v. Werk, 2 Ohio St., 520; Lufkin Rule Co. v. Fringeli, 57 Ohio St., 596.
    Public policy is hard to define. The definition adopted in Ohio is probably the most approved one by the courts of last resort. Hurd et al. v. Robinson et al., 11 Ohio St., 237; Beach on Monopolies, etc., Sec. 16; Crawford v. Wick, 18 Ohio St., 190; Salt Co. v. Guthrie, 35 Ohio St., 666; Scofield v. R. R. Co., 43 Ohio St., 571; Emery v. Ohio Candle Co., 47 Ohio St., 320; Field Cordage Co. v. Natl. Cordage Co., 6 Ohio C. C. Rep., 615; 3 C. D., 613; Lead Co. v. Lead Co,, 9 Bulletin, 310; 8 Dec. Re., 762; Hoffman v. Waterfield Co., Cti. Sup. Ct., 11 Bul., 258; 6 Dec. Re., 215; Thomas v. Miles, 3 Ohio St., 275; Grasseli v. Louden, 11 Ohio St., 349; Stines v. German, 25 Ohio St., 580.
    All of the cases where the doctrine that partial reasonable restraints in trade have been held valid, would fall under the first purpose in the trust law if under any; and as we have argued, a contract can not fall within that purpose now unless it is for the direct and immediate or main purpose of restraining trade. 171 U. S., 505; 54 U. S. App., 723.
    No contract for the purpose of limiting or reducing production, or to increase or reduce price, the second purpose of the law, was ever held valid. No contract or combination to prevent competition was ever held legal. None of the other purposes of the act were ever considered legal.
    It was upon the construction that the act included contracts in reasonable as well as unreasonable restraint of trade, that Justice Swayne, in the In re Grice, 79 Fed., 627, declared the Texas law unconstitutional. This was an erroneous construction and the case was reversed by the supreme court, 169 U. S., 284.
    Two supreme courts have already declared in favor of the constitutionality of laws of this character, namely, Texas and Missouri. Waters-Pierce Co. v. State, 44 S. W., 936; State v. Firemen’s Insurance Co., 52 S. W., 595.
    Many of the evils aimed at by the law which have resulted and. are the usual result from restrictions of trade and monopolies may be found in the decisions of the court. Pearsall v. Great Northern Ry. Co., 161 U. S., 646; Hooker v. Vandewater, 4 Denio, 349; Tiedeman on Police Power, 25; 166 U. S., 322; Coot on Trusts, p. 51.
    It will be conceded that the so-called anti-trust law is an exercise of police power, and whether it has transcended the legislative power or authority is a judicial question. Ry. Co. v. Beckwith, 129 U. S., 29; Ward v. Farwell, 97 Ill., 608.
    One of the contentions of the defendant is that the act is unconstitutional in the method in which it provides for proof, viz.: the character of the trust or combination may be established by proof of its general reputation as such. In reply to this criticism we beg leave to remind the court that the legislature had full power to prescribe rules of evidence and methods of proof. This clause only provides a rule of evidence, and as such- evidence it is not made conclusive, but the parties have an opportunity to rebut such evidence by proof, submitting issues under all evidence to the court. Meadowcroff v. People, L. R. A., 177; State v. Beach, 36 L. R. A., 179; State v. Hurley, 54 Me., 562; State v. Kingsley, 108 Mo., 135; Cooley Con. Lim., 309; Pennsylvania Co. v. McCann, 54 Ohio St., 10; Commissioners v. Merchants, 103 N. Y., 143; 57 Am. Rep., 705.
    To the objection that the act in question abridges the privileges or immunities of citizens of the United States, it is sufficient to quote the opinion of Justice States, it is sufficient to quote Paul v. Virginia, 8 Wallace, 177; Liverpool Ins. Co. v. Mass., 10 Wal., 573; Orient Co. v. Daggs, 172 U. S., 561.
    Does the act in question deny to the defendant the equal protection of the law? Cooley on Con. Lim., 490; Missouri v. Lewis, 101 U. S., 22; Hayes v. Missouri, 122 U. S., 68; Lowe v. Kansas, 163 U. S., 81; Tinsley v. Anderson, 171 U. S., 101.
    Does the act in question deprive the defendant of its property without due process of law? The act in question only prohibits the defendant, as well as other citizens, from entering into such contracts and engaging in such acts as are hurtful to society and consequently in opposition to the public welfare. There can be no vested right granted to any individual or set of individuals to do that which is wrongful and in violation of public policy. Stone v. Mississippi, 101 U. S., 814; Beer Co. v. Mass., 97 U. S., 25; Thorpe v. Ruthland, 27 Vt., 149; State v. Wheeler, 25 Conn., 290; Mayor v. Miln, 11 Peters (U. S.), 139; Cochran v. VanSerley, 20 Wend., 380; Dorman v. State, 34 Ala., 232; Boston v. Cummins, 16 Ga., 112; Hamilton v. St. Louis Co., 15 Mo., 23; Wynehamer v. People, 13 N. Y., 390; Town of Guildord v. Supervisors, 13 N. Y., 143; Dibbrell v. Morris Heirs, 15 S. W., 87; Sharpless v. Mayor, 21 Pa. St., 147; Bertholdi v. O’Reilly, 74 N. Y., 514; Tiedeman Lim. Pol. Powers, p. 5; Cooley’s Elements of Tort, p. 99;

      M. F. Elliott and Virgil P. Kline, and Lawrence T. Weal, for the defendants.
    We say that the act of April 19,1898:
    I. Makes penal all association of two or more persons for business purposes.
    II. Renders it impossible for two or more persons associated to carry on business; and,
    III. That the right of persons to associate and carry on business is one of the liberties protected by the fourteenth amendment to the Federal Constitution and by article 1, section 1, of the constitution of Ohio.
    That act defines a trust as follows: “A trust is a combination of capital, skill or acts by two or more persons, firms, partnerships, corporations-or associations of persons, or of any two or more of them, for either, any or all of the following purposes.”
    The words “combination of capital, skill or acts,” embrace every method by which men can associate in business, whether by partnership, corporatibn, joint-stock association or by contract of any nature. Parsons on Partnership, 3rd Edition, p. 6; 3 Kent’s Commentaries, p. 23; 1 Lindley on Partnership (4th Ed., p. 3).

      In order to demonstrate that the act makes criminal all association for business purposes, it is only necessary to show that one or more of the enumerated purposes is essential to every business association, whether partnership, corporation, or joint-stock association, being so necessary a factor of the combination that the existence of the one implies the existence of the other.
    This renders it necessary 'to consider what the law regards as a “purpose.” A purpose is a mental state, an intent, a design. Every man is prima facie supposed to intend every necessary or even probable consequence of his own act. Broome’s Legal Maxims, 7 Ed., p. 307; Bishop on Crim. Law, Sec. 337; Ins. Co. v. Texas, 86 Texas Rep., 250; Texas Coal Co. v. Lawson, 89 Texas Rep., 398.
    I. We now call attention to the prohibitions which we claim prevent all association of two or more persons in business, to-wit:

      a. Combinations of capital, skill or acts of two or more persons which prevent competition in manufacturing, making, transportation, sale or purchase of merchandise, produce or any commodities.
    5. The making or entering into or carrying out or executing any contract, obligation or agreement of any kind or description by which (two or more persons) shall in any manner, directly or indirectly, preclude a free and unrestricted competition among themselves, or any purchasers or consumers in the sale or transportation of any article or commodity, or by which,

      c. They shall agree to pool, combine, or, directly or indirectly, unite any interests 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.
    We do not claim that the act is unconstitutional because it makes criminal the union of capital, skill and acts which create restriction in trade. Our claim is that the act is unconstitutional because it makes criminal contracts between two or more persons which “prevent competition” or which “preclude directly or indirectly a free and unrestricted competition among themselves,” and prevent the “union, directly or indirectly, of any interests,” which might in any manner affect prices.
    It is usual in articles of co-partnership to stipulate that each partner shall devote his time and attention to the business of the firm and shall not engage in any business in competition with the firm. This is an agreement to prevent competition. Parsons on Partnership, 4th Ed., Sec. 153; Matthews v. Associated Press, 136 N. Y., 333.
    There is no possible escape from the obvious and self-evident proposition that any association in business prevents competition among the persons associated, and that if prevention of competition is made criminal, association is made impossible. Prevention of competition is a purpose or effect of every co-partnership, joint-stock association, or corporation. It is a purpose or effect of every contract, agreement or understanding by which men associate or co-operate. Prevent men from making contracts which preclude a free and unrestricted competition among themselves and we are at once relegated to the savage state.
    II. In addition to the provisions of the act which make associations for business purposes impossible, other provisions render business by two or more persons associated impossible.
    Without dwelling upon this provision we may ask how it is possible for two or more persons to associate in business if they may neither limit nor reduce their production nor increase nor reduce the price of their commodities, nor agree not to sell below a common standard figure; nor to settle the price either as between themselves or themselves and others; nor to unite their interests so that price might in any manner be affected. In re Grice, 79 Fed. Rep., 642.
    It may be contended that the legislature did not intend to interfere with corporations or partnerships or the right of association; that the act recognizes associations as already existing — a fact which could not be ignored — cannot defeat the plain language which renders their future existence penal. Neither can the plain language of a statute be altered by reference to other statutes. Fisher v. Blight, 2 Cranch, 358; Schooner v. The U. S., 7 Cranch, 52; United States v. Freeman, 3 H., 556; McPherson v. Blacker, 146 U. S., 1, 27; United Society v. Eagle Bank, 7 Conn., 457.
    Neither can the act be confined to prohibition of unreasonable restraint of competition. It is specific and particular in describing what character of restrictions of competition is meant, and embraces every agreement which directly or indirectly precludes free and unrestricted competition between few or many. U. S. v. Freight Assn., 166 U. S., 290.
    III. Thq right of persons to associate and carry on business and to enter into contracts necessary to their business, is one of the liberties protected by the fourteenth amendment to the Federal constitution.
    The constitution protects liberty of contract, except in so far as that liberty encroaches upon the liberty of others. Allgeyer v. La., 165 U. S., 578; Butcher’s Union Co. v. Crescent City, 111 U. S., 746; Bertholf v. O’Reilly, 74 N. Y., 509; In re Jacobs, 98 N. Y., 98; People v. Marx, 99 N. Y., 377; People v. Gillson, 109 N. Y., 389; Forster v. Scott, 136 N. Y., 577; Printing Co. v. Sampson, 19 Eq. Cases, 462; U. S. Chem. Co. v. Prov. Chem. Co., 64 Fed. Rep., 946
    The courts of many states of the union have guarded their right of contract by declaring unconstitutional acts which infringe upon it. Godcharles v. Wigeman, 113 Pa. St., 431. The United States Circuit court in Ohio declared unconstitutional a statute preventing railroad companies from contracting with employes in respect of personal injuries. Shearer v. Pa. Co., 71 Fed. Rep., 931. The supreme court of this state held an act relating to mechanics’ liens void because it interfered with the right of contract. Palmer v. Tingley, 55 Ohio St., 423. It has also been held that the statute requiring certain employers to pay their employes twice a month is unconstitutional. In Illinois the truck-store act, the coal-weighing act and other legislation has been set aside for the same reason. Frorer v. People, 141 Ill., 171; Ramsey v. People, 142 Ill., 380; Harding v. People, 160 Ill., 459; Richie v. People, 152 Ill., 98.
    Legislation has been pronounced unconstitutional in other states on the same ground. Kuhn v. Detroit, 70 Mich., 534; Spry Lumber Co. v. Trust Co.. 77 Mich., 199; State v. Loomis, 115 Mo., 307; State v. Julow, 129 Mo., 163; State v. Good will, 33 W. Va., 179; Ex parte Kuback, 85 Cal., 274; Low v. Reese Printing Co., 41 Neb., 127; In re Eight Hour Law, 21 Col., 29; Com. v. Perry, 155 Mass., 117.
    Among the rights of contract thus protected is the right of men to form business relations among themselves. Cooley on Torts, 278; Tiedeman’s Lim. Police Powers, 233.
    All these views are well supported by authorities. Railway Co. v. Jacksonville, 67 Ill., 37; Coe v. Schultz, 47 Barb., 64; Quintini v. City of Bay St. Louis, 1 S. R., 625; Lake View v. Rose Hill Co., 70 Ill., 191; Thorpe v. R. R. Co., 27 Vt., 140; Lowry v. Rainwater, 70 Mo., 152; Jeck v. Anderson, 57 Cal., 251; People v. Gillson, 109 N. Y., 389; Colon v. Lisk, 153 N. Y., 188; People v. Arensberg, 103 N. Y., 399; People v. Warden, 144 N. Y., 529 ; Health Dept. v. Rector, 145 N. Y., 32.
    As to the history of laws against combination we call attention to “Rogers Economical Interpretation ’ of History,” chapter 2, and the statutes in 37 Edw. III, and the Statute of Laborers, in 23 Edw. III, and 34 Edw. III; 3 Henry VI, C. 1; 15 Henry VI, C. 6; from 28 Edw. I to James I, 37 acts against laborers were passed. All were repealed and a new one framed, 5 Eliz., C.4. This system of infamous laws which enslaved the laborer was not finally swept away from the statute book until 1825. See Albert Stiekney’s “State Control of Trade and Commerce;” 5 and 6 Edw. VI., C. 14; 7 and 8 Vic., V. 24; 27 Edw. III, A. D. 1553; 28 George III, C. 53; 17 George III, C. 42.
    Co-partnerships were therefore recognized as combinations which prevented competition and affected prices. How could it be otherwise? Mitchell v. Reynolds, 1 Smith’s L. C., 511.
    One form of partnerships was condemned by law in a manner which suggests the statute under consideration, namely: a partnership with transferable shares, or a joint-stock association. 6 George I, C. 18; In R. v. Webb, 14 East., 406; Pratt v. Hutchinson, 15 East., 511; 1 Lindley on Partnerships, 193; Mogul S. S. Co. v. McGregor, L. R.; 23 Q. B. D., 598.
    The first American case in which an opinion was enunciated which, carried to its full extent, would be fatal to association, was Hooker v. Vandewater, 4 Denio, 349. People v. Fisher, 14 Wend, 9; Stanton v. Allen, 5 Denio, 434; Com. v. Carlisle, Brightley (Pa.), 36; Central Salt Co. v. Guthrie, 35 Ohio St., 666; Emery v. Ohio Candle Co., 47 Ohio St., 320; Coal Co. v. Coal Co., 68 Pa. St., 173; Bagging Assn. v. Koch, 14 La Ann., 168; U. S. v. Coal Co., 46 Fed. Rep., 432; Lumber Co. v. Hayes, 76 Cal., 387; Craft v. McConoughy, 79 Ill., 346; Gibbs v. Gas Co., 130 U. S., 396; Mitchell v. Reynolds, 1 P. Williams, 181; Marsh v. Russell, 66 N. Y., 288; Phippen v. Stickney, 3 Met., 384; Lorillard v. Clyde, 86 N. Y., 384; Shade Roller Co. v. Cushman, 143 Mass., 353; Match Co. v. Roeber, 106 N. Y., 473; Leslie v. Lorillard, 110 N. Y., 519; Matthews v. Ass. Press., 136 N. Y., 333; Jones v. Fell, 5 Fla., 510; R. R. Tax Cases, 13 Fed. Rep., 743; U. S. Pipe Co., 85 Fed. Rep., 271.

      IV. The act is also unconstitutional because of the provisions of sections 5 and 6. Fouts v. State, 8 Ohio St., 98; Hartman v. Commonwealth, 5 Pa St., 60; O’Neil v. Vermont, 144 Vt., 323; Cooley on Con. Lim., 556; Hoke v. Henderson, 4 Div., 1; Plimpton v. Somerset, 33 Vt., 283; Clark v. Mitchell, 64 Mo., 581; People v. Cannon, 139 N. Y., 32; State v. Beswick, 3 R. I., 211; State v. Kartz, 13 R. I., 528; Kirby v. United States, 174 U. S., 47; 39 N. H., 305; Boyd v. United States, 116 U. S., 616; R. R. Co. v. Smith, 173 U. S., 684; Greenwood v. Freight Co., 105 U. S., 13; Commonwealth v. Essex Company, 13 Gray, 239; People v. O’Brien, 111 N. Y., 1; Detroit v. Detroit, 43 Mich., 140; Cherokee Nation v. Ry Co., 135 U. S., 641; Ry v. Ohio, 173 U. S., 285; Smith v. Ames, 169 U. S., 466; Ry. v. Beckwith, 129 U. S., 26; Ry. v. Ellis, 165 U. S., 154; Turnpike Co. v. Parks, 50 Ohio St., 568.
    Y. The act violates both the state and Federal constitutions in that it is restrictive, ex post facto, and impairs the obligations of contracts. Rairdon v. Holden, 15 Ohio St., 207; Tiedeman’s Lim. Police Powers, p. 76; Fletcher v. Peck, 6 Cranch, 137; I Kent Commentaries, 409; Cummings v. Missouri, 4 Wal., 277; Ex parte Garland, 4 Wal., 333; Planter’s Bank v. Sharp, 6 How., 301; Green v. Biddle, 8 Wheat., 76; 1 How., 317; 4 Smedes & Marshall, 507; Ring v. Bank, 15 Mass., 447.
    VI. The statute in question is in violation of article 1, section 8, of the constitution of the United States, which provides that congress shall have power to regulate*commerce with foreign nations and among the several states. Crutcher v. Kentucky, 141 U. S., Sup. Ct. Rep., 47; Steamship Co. v. Tinker, 94 U. S., 328; Telegraph Co. v. Texas, 105 U. S., 460; Ferry Co. v. Penn., 114 U. S., 196; Steamship Co. v. Penn., 122 U. S., 326; McCall v. California, 136 U. S., 114; Arnold v. Yanders, 56 Ohio St., 417.
    VII. The act violates both the Federal and state constitutions by inflicting cruel and unusual punishments. O’Neil v. Vt., 144 U. S., 325.
    VIII. It may be contended that some or all of the sections above discussed may be unconstitutional without affecting the remainder of the act. We think not. The rule that part of an act may fail and the remainder may stand has very strict limitations when applied to penal acts. United States v. Reese, 92 U. S., 214; United States v. Harris, 106 U. S., 629; Trade Mark cases, 100 U. S., 582; Baldwin v. Franks, 120 U. S., 678; 5 Ohio St., 497; 17 Ohio St., 684.
    The relator refers to numbers of contracts which, while indirectly restrictive of trade and competition, are legal at common law, and contends that they are not condemned by the Ohio act. Our answer is that all contracts of the character reférred to are clearly made criminal by the act. As for example, contracts on sale of good will not to engage in the same business; contracts between partners not to engage in a rival business, etc., etc. Who can doubt that such contracts not only indirectly, but directly prechide free and unrestricted competition between the contracting parties? Ry. Co. v. Pullman Car Co., 139 U. S., 79; The express cases, 117 U. S., 1; Williams v. Montgomery, 118 N. Y., 519; Brown v. Rounsavell, 78 Ill., 589; Newell v. Mergendorff, 19 Mont., 254; 58 F. R., 58.

      Foraker, Outcalt, Granger & Prior, and W. W. Fuller, for the defendant,
    Continental Tobacco Company, in a case similar to the case at bar, were permitted to be heard at the same time, and submitted a brief against the constitutionality of the act.
    The offense around which the statute centers is a combination of capital, skill or acts among two or more persons for the purpose of restricting trade. This constitutes what the statute calls a “trust,” and what if declares to be “a conspiracy against trade.” The offense is committed by the forming of the conspiracy; the accessories after the fact are the only persons who are indictable for carrying the conspiracy ont. It necessarily follows, then, that venne is an important feature in the application of the statute ; for the statute has no extra-territorial effect.
    Statutes have no extra-territorial effect unless such effect is expressly declared. Woodward v. Ry. Co., 10 Ohio St., 121; Lehman v. McBride, 15 Ohio St., 573.
    . The act of April 19, 1898, prohibits and ppnishes only such combinations and contracts in restraint of trade as were illegal at common law.
    The sole purpose of the act is to prohibit and punish conspiracies against trade. This limitation dominates the act and subserves all that public policy demands. What is a conspiracy? Commonwealth v. Hunt, 4 Met., 111; Pettibone v. U. S., 148 U. S., 203 ; Mogul Steamship Co. v. McGregor, 93 Q. B. D., 614; Tarlton v. McGauley, Peake, 270; Garret v. Taylor, Cro. Jac., 567; Bowen v. Hall, 6 Q. B. Div., 333; Crump’s Cases, 84 Vo., 927; Ray on Contractual Limitations, 293; Kelly v. Mfg. Co., 44 Fed. Rep., 19; Story’s Eq. Juris., Vol. 2, 13 Ed., p. 255; Simmons Co. v. Mansfield Co., 23 S. W., 165; Brown on Trade Marks, Sec. 43, et seq.; Cab Co. v. Mooney, 15 Abb. N. C., 152; McLean v. Fleming, 98 U. S., 245; Hazard v. Coswell, 57 How., Pr., 29; Brown v. Slidel, 153 Pa. St., 60; Jaeger v. LeBoutelier, 27 N. Y., Sup. 890.
    The Standard Oil Company was a combination largely made up of corporations entered into for the express purpose of controlling the production of oil and its prices by means which were ultra vires and illegal. State v. Standard Oil Co., 49 Ohio St., 137; Cattle Co. v. People, 156 Ill., 448; People v. Refining Co., 54 Hun., 356; 121 N. Y., 696; Pacific Factor Co. v. Adler, 90 Cal., 110.
    The combinations in the following reported cases were unquestionably conspiracies against trade. They were formed for the very purpose of controlling the market by restricting production so as to enhance prices, or by stilling competition among the members under agreements not to compete with each other, or by creating a “corner,” and in a maimer that had a necessary tendency to oppress individuals and prejudice the public by unjustly subjecting them to the power of the confederates. Morris Run Coal Co. v. Marclay Coal Co., 68 Pa. St., 173; Arnot v. Coal Co., 68 N. Y., 553; Craft v. McConnoughy, 79 Ill., 246; Bagging Assn. v. Koch, 14 La Ann., 168; Anderson v. Jett, 89 Ky., 275; People v. Sheldon, 139 N. Y., 251; Judd v. Harrington, 139 N. Y., 105; Chapin v. Brown, 83 Iowa, 156; 96 Cal., 510; Vulcan Powder Co. v. Hercules Powder Co., 96 Cal., 510; Oil Co. v. Adone, 83 Texas, 650; People v. Milk Exchange, 145 N. Y., 267; Santa Clara Lumber Co., v. Hays, 76 Cal., 387; Carbon Co. v. McMillan, 119 N. Y., 46; Salt Co. v. Guthrie, 35 Ohio St., 666; Emery v. Ohio Candle Co., 47 Ohio St., 320; Jackson v. Brick Assn., 53 Ohio St., 303 ; Samuel v. Oliver, 130 Ill., 73; Hoffman v. Brooks, 11 W. L. B., 258; Queen Ins. Co. v. State, 24 S. W., 397; In re Greene, 52 Fed. Rep., 104; People v. Duke, 44 Y. Supp., 340.
    Combinations entered into for the purpose of stopping disastrous competition have been repeatedly sustained in the American courts, within the limitation of the means being lawful. Oakdale Mfg. Co. v. Garst, 28 Atlantic Rep., 773; Skrainka v. Sharinghausen, 8 Mo. App., 522; Bohn Mfg. Co. v. Hollis, 54 Minn., 223; Kellogg v. Larkin, 3 Penn., 123; Rafferty v. Buffalo Gas Co., 56 N. Y. Sup., 288; U. S. Chemical Co. v. The Provident Chemical Co., 64 Fed. Rep., 946; Herriman v. Menzies, 46 Pac. Rep., 730; Presser v. U. S., 116 U. S., 252; Rutter v. Henry, 46 Ohio St., 272.
    A contract whereby the seller agrees to give certain rebates in prices if the seller will for a certain period of time maintain a certain price in selling at retail the brand of goods sold, is not a contract in unlawful restraint of trade. Clark v. Frank, 17 Mo. App., 602; In re Greene, 52 Fed. Rep., 104; In re Corning, 51 Fed. Rep., 205; Olmstead v. D. & C. Co., 77 Fed. Rep., 265; Brewster v. Miller, 41 S. W. (Ky.), 301; Cohen v. Envelope Co., 56 N. Y. Supp., 588; Roller Co. v. Cushman, 143 Mass., 353; Dolph v. Luandry Co., 28 Fed. Rep., 553; Watch Co. v. Howard Co., 55 Fed. Rep., 851; Parkhurst v. Kinsman, 1 Blatch, 488; United States v. Kelson, 52 Fed. Rep., 646; Lenz v. Brown, 41 Wis., 172; Walsh v. Windmill Co., 36 S. W., 71; Carter-Crume Co. v. Peurrung, 86 Fed., Rep., 437; Hitchcock v. Anthony, 83 Fed. Rep., 779; Hodge v. Sloane, 17 N. E., 335; Thermometer Co. v. Poole, 4 N. Y. Supp., 861.
    Literally construed in disregard of the limitations for which as contended the act of April 19, 1898, would violate that provision of the fourteenth amendment to the Constitution of the United States which declares that no state shall deprive any person of liberty or property without due process of law. Wynehamer v. People, 13 N. Y., 392; Hurtado v. California, 110 U. S., 516; Low v. Reese Printing Co., 24 L. R. A., 702; Frorer v. People, 141 Ill., 171; People v. Gillson, 109 N. Y., 289; Slaughter House Case, 16 Wall., 36; State v. Goodwill, 33 W. Va., 179; In re Jacobs, 98 N. Y., 106; Leep v. Ry. Co., 58 Ark., 407; State v. Loomis, 115 Mo., 307; Godcharles v. Wigenan, 113 Pa. St., 431; Coal Co. v. People, 147 Ill., 66; Commonwealth v. Perry, 155 Mass., 117; Palmer v. Tingle, 55 Ohio St., 423; Lawton v. Steele, 152 U. S., 133.
   Shauck, C. J.

Counsel seem to be in accord as to the mode of challenging the validity of the act and, without devoting time to iriticism of the pleadings, we follow them in the consideration of that question. In the brief on behalf of the state it is said that the act is merely declaratory of the common law. If that prop-' osition could be accepted it would relieve the cases of all difficulty, but for obvious reasons it cannot be accepted. The act creates criminal offenses and prescribes penalties to be imposed upon those who commit them; while, as is well known, we have no common law crimes in this state. Furthermore, it is quite clear that as to some of the persons and contracts within the operation of the act its purpose is to authorize proceedings against parties who are performing the terms of the forbidden contracts, while without the aid of the statute courts can denounce the contracts as unlawful only when by actions against defaulting parties they are called upon to aid in their enforcement. The act may in other respects exceed the common law.

We do not, however, deem it necessary or prudent to pass upon all the objections which are urged against the act. It is quite familiar doctrine that in determining the constitutional validity of statutes their different provisions are not necessarily subject to the same conclusion. They are not, unless they constitute a single scheme, and are so interdependent that it could not be rationally presumed that any of them would have been made if it had not been supposed that all could be enforced. The application of this doctrine to the act before us is quite clear in view of the differences in the nature of the several combinations which are forbidden and in the characters of those against whom the prohibition is directed. Moreover, that the legislature regarded the provisions of the act as severable, is indicated by the distributive force of the phrase “either, any or all,” preceding the enumeration of the forbidden purposes, as well as by the terms of the ninth section requiring that the provisions of the act shall be held to be cumulative with respect to one another as well as with respect to other laws.

We are, therefore, to consider only those provisions of the act which are relevant to the cases before us. These cases are civil actions brought against independent corporations. The contract which we are asked to denounce is not incidental to the sale of property or any interest therein. It does not concern the good Avill of any business. It does not contemplate the formation of any corporation or other company for the carrying on of any business. In the subject of the contract the interests of the contracting parties are not adverse; they are not even diverse. The agreement, according to the allegations of the petition, has no purpose whatever except to prevent competition in the production, transportation and refining of petroleum, to the end that there may be received from the consumers of its products higher prices than would prevail under the condition of open competition. Counsel for the defendants admit that such a contract is within the inhibitions of the act, but deny the poAver of the legislature to inhibit it. Laws of this general character were entirely familiar to our English ancestors and to those who framed the American constitution. In view of the omnipotence of the English parliament, such enactments do not, of course, furnish a standard for the validity of enactments passed by our legislatures, whose poavers are subject to defined limitations. They do, however, show that such real or supposed invasion of the interests of the public was a well known subject for the exercise of legislative power. The definite proposition of counsel upon this point is that although the act is an exercise of legislative power, it transcends the provisions of the state and Federal constitutions which render inviolable the rights of liberty and property, which include the right to make contracts. It would be difficult to place too high an estimate upon these guaranties, and they include the right to make contracts. But it is settled that these guaranties are themselves limited by the public welfare or the exercise of the police power. Although that power may not be conclusively defined, its nature and attributes have been the subject of much investigation. In all considerate discussions of the subject it is conceded that in the exercise of this power the legislature can prohibit only those uses of property which are hurtful to the public, and the inhibited use must be hurtful in a legal sense. That contracts like these are hurtful in that sense has been held in more cases than it would be practicable to cite. They abound throughout nearly three centuries of the development and administration of the common law in England and America. We cite, because of their full consideration of the subject and their direct application to legislation of this character, United States v. The Trans-Missouri Freight Association, 166 U. S., 290; United States v. Joint Traffic Association, 171 U. S., 505; United States v. The Addyston Pipe & Steel Co., 54 U. S. App., 723. These cases are applicable, since the provisions of the Federal anti-trust statute are not substantially different from those of the Ohio act which are brought under consideration in these cases, and there is no substantial difference between the contracts or constitutional provisions involved. That the contracts there considered were in restraint of commerce between states, served only to bring the subject within federal jurisdiction. The considerations affecting the validity of the legislation are in all respects as applicable here as there. Since the contract alleged in these petitions is for the sole purpose of restraining trade or limiting competition, we find no decision which doubts that they are in a legal sense hurtful to the public. There appear to be differences of opinion respecting the test of the reasonableness of contracts of sale where the good will of a business is in part the subject of the transaction and there are restraints imposed upon the vendor to secure the purchaser in the subject of the sale. But such doubts do not extend to contracts whose only purpose is to* impose such restraints. Such contracts have been uniformly held to be unlawful. They cannot be reasonable in a sense which would bring the right to make them within the protection of any guaranty of either the state or federal constitution.

The demurrers are sustained.


text:
    State of Ohio ex rel. Savage v. Hidy, Judge.

      Judge-elect may practice law — After receiving commission, but whose term of ofñce has not yet began — Section 562, Rev. Statr

    The provision of the Revised Statutes Section 562, that “No person shall practice as an attorney and counsellor at law in any court of this state * * * who holds a commission as judge of any court of record” does not apply to one who has received a commission to act as judge for the term for which he was elected, but whose term of office has not yet begun.
    (Decided January 30, 1900.)
    In Mandamus.
    This is a petition for mandamus to require the defendant to permit the relator to appear in court as an attorney at law, up to the time the relator shall assume the duties of judge of the court of common pleas, to which office he has been duly elected and commissioned. The petition shows that the relator is an attorney-at-law, duly authorized to practice his profession in all the courts of Ohio; that on the 7th day of November, 1899, he was elected to the office of judge of the court of common pleas, for the term of five years, commencing on the first Monday of May, 1900; that a commission was duly issued to him, as such judge-elect, on the-21st day of December, 1899, and on the following day he took the oath of. office and transmitted, as required by law, to the clerk of the court of common pleas of Clinton county, Ohio, a certificate thereof; and that the defendant, who is presiding judge of the court of common pleas of Fayette county, now refuses to permit the relator to appear as an attorney in a certain case now pending in that court, by reason of the provisions of section 562 of the Revised Statutes of Ohio. The relator also shows that by reason of the ruling of the defendant he will be debarred of his right to practice his profession for nearly four months and from the only means of his earning a living during that time, and that during that time he can receive no salary as judge of the court of common pleas and has no present right to exercise the functions of that office.

      L. T. Neal and 8. G. Smith, for relator.

      J. M. Sheets, Attorney General, for defendant.
   By the Court:

The provision of the Revised Statutes, section 562, that “No person shall practice as an attorney and counselor at law in any court of this state * * *

who holds a commission as judge of any court of record,” does not apply to one who has received a commission to "act as judge for the term for which he was elected, but whose term of office has not yet begun. As to the time preceding the commencement of his term he cannot be considered as holding a •commission as judge, but merely as holding a commission authorizing him to assume the functions of a judge at the proper time. Until such time he is not a judge and is invested only with the right to be a judge. It is obvious that the sense in which the legislature used the word “hold” is not that in which it is taken by the defendant; for if one whose term of office as judge has expired continues in possession of his commission, he holds the same, but no longer holds it as judge.

Peremptory writ allowed.