§ 10. 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 employee, 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.

§ 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 be brought before the court, the court may cause them to be made parties defendant and summoned, whether they reside in the county where such action is pending, or not.

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§ 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.

§ 13. This act shall take effect and be in force from and after the first day of July, 1898.

[Passed April 19, 1898.]

COMMON-LAW DECISIONS.

The Central Ohio Salt Co. v. Stephen H. Guthrie.

35 O. St., 666. Statement.

January, 1880.

About thirty salt dealers and manufacturers in the Muskingum and Hocking valleys formed themselves into the Central Ohio Salt Company. The members were to continue their business as before except that the sale and price of salt was to be controlled by the company. Defendant has violated the contract of association and suit is brought against him for damages. He defends on the ground that the contract was illegal.

Opinion.

“That all contracts in partial restraint of trade are not void as against public policy is too well settled to be gainsaid; while, on the other hand, it is as fully established, as a general rule, that contracts in general restraint of trade are against public policy and, therefore, absolutely void. Upon the authorities, however, the line between such as are void and those that are binding, is not very clearly defined.

"Public policy, unquestionably, favors competition in trade, to the end that its commodities may be afforded to the consumer as cheaply as possible, and is opposed to monopolies, which tend to advance market prices to the injury of the general public.

"We think the contract before us should not be enforced." Plaintiff can not recover.

47 O. St., 320. Statement.

Emery et al. v. The Ohio Candle Co.

January, 1890.

In 1880 an unincorporated company was formed to continue six years, called The Candle Manufacturers' Association which included the manufacturers of ninety-five per cent of the star candles east of the western boundary of Utah. The members were required to pay into the treasury of the association two and a half cents a pound on all candles sold by them within that territory. But neither was bound to operate his factory; and whether he did or did not he received his proportion of the pool which was based on his former business. Under this agreement a sum of

$2,151.17 is due plaintiff, and this suit is brought to recover it.

Opinion.

"We are of the opinion that the suit can not be maintained, for the reason that the objects of the association were contrary to public policy, and in no way to be aided by the courts."

Plaintiff can not recover.

49 O. St., 137. Statement.

State ex rel. v. Standard Oil Co.

March 2, 1892.

Defendant is an Ohio corporation. Its stockholders and the stockholders of many other oil companies transferred their stock to a board of seven trustees, and received in return trust certificates. The state brings suit for the forfeiture of defendant's charter and other relief.

The defenses are:

1. The illegal acts are not the corporation's but the stockholders'.

2. The statute of limitations has run.

Opinion.

Where all, or a majority of the stockholders composing a corporation do an act which is designed to affect the property and business of the company, and which, because of their controlling number, does affect the property and business of the company, in the same manner as if it had been a formal resolution of its board of directors, the act should be regarded as the act of the corporation.

The act in this case was ultra vires, and against public policy, and would have been ground for the forfeiture of the defendant's charter if the action had been commenced in time, but, as it has been over five years since the act was committed, the statute of limitations prevents forfeiture now. But other relief was prayed, and this will be granted.

A decree is granted "ousting the defendant from the right to make the agreement set forth in the petition and of the power to perform the same.”

OKLAHOMA.

STATUTE.

STATUTES OF OKLAHOMA, CHAP. 83.

TRUSTS.

AN ACT to prevent combinations in restraint of trade.

Be it enacted by the Legislative Assembly of the Territory of Oklahoma:

§ 1. If any individual, firm, partnership or any association of persons whatsoever, shall create, enter into, become a member of, or a party to, any pool, trust, agreement, combination or understanding with any other individual, firm, partnership or association of persons whatsoever, to regulate or fix the price of, or to prevent or restrict, the competition in the sale of provisions, feed, fuel, lumber, or other building materials, articles of merchandise or other commodity [they], shall be deemed guilty of [a] misdemeanor and upon conviction thereof, shall be fined not less than fifty, nor more than five hundred dollars.

§ 2. It shall not be lawful for any corporation organized under the laws of this territory, or organized under the laws of any other territory or state, and doing business in this territory, to enter into any combination, contract, trust, pool or agreement with any other corporation or corporations, or with any individual firm, partnership or association of persons, whatever, for the purpose of regulating or fixing the price of, or preventing or restricting competition, in the sale of provisions, feed, fuel, lumber, or other building materials, articles of merchandise, or other commodity, including the fixing of the rate of interest. [Any] president, manager, director, agent, receiver or other officer of any such corporation, violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than fifty nor more than five hundred dollars, for the first offense, and upon a second conviction shall be fined a sum equal to twice the amount of the first fine, and such corporation shall forfeit its corporate right and franchise, and its corporate existence, in this territory, shall thereupon cease and determine.

§ 3. Any person purchasing provisions, feed, material, articles of merchandise, or any commodity from any individual, firm, partnership or corporation, transacting business in violation of the provisions of this act, such person so purchasing shall not be liable for the price or payment of any such article or commodity and may plead this act, as a defense in any suit for price or payment. In any civil action brought under the provisions of this section the court before whom such suit shall be pending may compel the plaintiff to testify, but if the plaintiff be a corporation then the court may compel any officer, agent, or employee of such corporation to attend, appear, and testify, or compel the production of any contract, or papers in evidence in such civil action: Provided, The evidence so obtained shall not be used in any criminal prosecution against the person so testifying except in a criminal prosecution for perjury committed in giving such testimony.

§ 4. Any person who shall have purchased from any individual, firm, partnership or corporation, doing business in violation of the provisions of this act, any provisions, feed, fuel, lumber or other building material, articles of merchandise, or other commodity, and paid for the same, may maintain a civil action to recover the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable attorney's fee to be fixed by the court, which attorney's fee shall be taxed and collected as part of the costs in such case. In any civil action brought under the provisions of this section the court before whom such suit be pending may compel the defendant to testify, but if the defendant be a corporation, then the court may compel any officer, agent or employe of such corporation to attend, appear and testify or compel the production of any contract or paper as evidence in such civil action: Provided, The evidence so obtained shall not be used in any criminal action against the person so testifying except in a criminal prosecution for perjury committed in giving such testimony.

§ 5. It shall be the duty of the prosecuting attorneys in their respective counties, to enforce the foregoing provisions of this act, and any prosecuting attorney securing a conviction under the provisions of this act, shall be entitled in addition to such fee or salary as by law he is allowed for such prosecution, to one-fifth of the fine received.

[Took effect December 25, 1890.]