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legislature) therefore prohibited any trust whose object was to place the control of any business in the power of trustees, where the effect of such trust should be to injure the public or any particular person or corporation in this State. Such legislation has become very general in the United States, owing to the pernicious results of such trusts. It appears, therefore, from these previously announced, well considered and strikingly accurate statements of the scope and purpose of the law by this court, that one of two things must exist in order to render a contract or agreement between two or more persons or corporations subject to the condemnation of paragraphs (g) and (h) of the Act now under consideration: First, it must place the control to some extent of the business or of the products or earnings thereof, or it must give the power to conduct or control the management of such business to trustees or persons other than the proper officers, agents or employees of the contracting persons or corporations, or, second, it must have the effect of injuring the public or some particular person or corporation in this State.

The correctness of the definition which recognizes that a "combine" to fall within the purview of the legislative design must have as a constituent element either a violation of public policy in that it tends to create a monopoly or is in restraint of trade, or that it involves a delegation and abandonment of corporate powers and is inimical to the public welfare, is emphasized and made more manifest by reference to legislation dealing with this subject enacted subsequent to the adoption of Code, Sec. 4437 hereinbefore cited. The purpose of the legislature of this State, the object it had in view, the evil it sought to prevent, appear in the title given in conformity to the constitutional requirements as setting forth the subject matter dealth with, to Chapter 88, Acts 1900, which is the latest expression of legislative will. That Act is entitled "An Act to define trusts and combines, to provide for the suppression thereof, and to preserve to the people of this state the benefits arising from competition in business." And the same intention is again declared in Sec. II of the Act which directs that it shall be liberally construed to the end that trusts and conbines may be suppressed and the benefits arising from competition in business preserved to the people of this state. The benefits which the

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legislature sought to secure to the people of the state were those which naturally flow from competition in business. In order to insure these benefits it was provided that any contract entered into between two or more persons or corporations should be unlawful, if it in any wise restrained or decreased the advantages known to arise from competition in business, whether such contract was expressly and openly in restraint of trade, or whether by its effect it was indirectly liable to reduce or increase prices, to increase or reduce production, to engross or forestall or to hinder competition in production, manufacture, transportation, sale or purchase of any commodity. All contracts, whether expressed or implied, which would necessarily or probably have any of the effects therein forbidden were declared to be violative of the announced public policy of the state in that they inevitably tended to reduce the benefits sought to be insured by the Act. It was also forbidden for any two or more persons or corporations to issue, own or hold the certificates of stock of any trust or combine. This provision was clearly aimed at the well known plan by which the stock of various corporations surrendering their own corporate entity, engaged in a partnership of their own; such arrangements being palpably in restraint of trade and tending inevitably to the creation of a monopoly. It was further provided by paragraphs (g) and (h) that it should be unlawful for two or more persons, firms or corporations or one or more of either with one or more of the other, to form any contract or combination by which the power to dictate or control the management of the business, or by which the control of the business or of the products and earnings thereof, was placed in the power of any other person than their own proper officers, agents and employees. These paragraphs are a rescript of the provisions originally contained in Sec. 4437 supra. It should be observed that these paragraphs, and in fact the whole chapter, deal with both corporations and individuals alike. And in construing such statutes the general rule is that the nature of the business contemplated by the contract or arrangement, and the tendency of the contract as affecting the public, rather than whether the parties to the contract are corporations or individuals, are to be considered in determining whether it violates public policy.

Hirschl. Combination, Consolidation and Succession of Corporations, p. 2.

This consideration eliminates from this discussion the question of to what extent limitations, upon the power to contract, may be placed by the state upon corporations, solely and only, in a proper exercise of its reserved police power. When analyzed the propositions contained in the paragraphs cited are not novel; they are in truth, but mere announcements of familiar principles contained in varying form in many statutes germane to this subject. They, and all the provisions of the Act, are but means to an end, details of the legislative plan. The result desired, the purpose of the entire legislation, was to suppress trusts, secure the benefits arising from competition in trade, prevent monopolies and protect the people from the possible tyranny and oppression of combined wealth. In fact a brief investigation will show that all modern anti-trust legislation is based upon the same fundamental principle. All combinations are forbidden, the necessary, natural or probable consequence of which will be to increase or decrease the price of production of any commodity, or which restrict facilities in the handling or transportation of the same. Contracts or agreements, of whatever character, by which the autonomy of corporations is surrendered and the exercise of their charter powers delegated to others are denounced as violative of public policy. Corporations which enjoy no powers except those of which they are recipients by charter grant, are without power to absolve themselves from the performance of their duties to the public, and contracts abnegating such performance and alienating the powers granted them by the state, are void. Central Transportation Co. vs. Pullman's Palace Car Co., 139 U. S. 35 L. Ed. 55; Ray Contractual Limitations, p. 240.

Arrangements under whatever guise, by which the stock of several distinct corporations is placed in the hands of certain trustees who are vested with power of voting it, are condemned as tending inevitably to the creation of monopolies, and the absolute destroying of competition in the production or transportation of many commodities, and as a direful result, a few individuals would be able to fix the price of the very necessities of life, with power to increase or decrease without regard to supply or demand, but solely as their greed and rapacity might dictate. The wisdom of such legislation and the imperative necessity of its strict en

forcement is evidenced by the fact that the aggressions of mighty aggregations of corporate wealth so formed now constitute one of the gravest problems with which the nation has to deal. Northern Securities Co. vs. U. S. 43 L. Ed. 698; Pearsall vs. Great Northern R. R. Co., U. S. 40 L. Ed. 838

In short, without unduly extending these observations the formation of all contracts and combinations is condemned by which corporations or individuals are banded together for any illegal purpose, or if such association be already in existence the parties will be inhibited from continuing operations thereunder.

But, at last the test, and only test, is, not what the intent of the parties may be, not what form the combination has taken, but what will its probable effect be?

If unlawful or oppressive, if obnoxious to public policy, if inimical to public welfare, they will be denounced and punishment meted out to every participant; otherwise, courts will not limit or restrict the inalienable right of contract, and will not interfere unless the violation of law be apparent or the apprehended evil effect assume some tangible form. Noyes, Intercorporate Relations, Sections 392, 401, 405.

We uphold and maintain in its full integrity the doctrine which recognizes the right of the state in the exercise of its reserved police power to restrict the power of corporations to contract within certain prescribed limits, and which forbids that such power should ever be so abridged or so construed as to permit corporations to conduct their business in such manner as to infringe upon the rights of individuals or the general well being of the state. That power inheres in the sovereign and the protection from the encroachments of corporations is assured by the guarantee of Sec. 190, Constitution 1890.

But that doctrine is not assailed here. This is a case involving, not legislative power, but legislative will. In this direct connection, it must again be observed that by the Act now under review, what is forbidden to corporations is likewise forbidden to individuals; the contracts and agreements which are by paragraphs (g) and (h) condemned,

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fall under the ban of the law whether entered into by corporations solely among themselves, or jointly with individuals, or by several individuals alone.

It is contended that all combinations or contracts without regard to purpose, intent or effect, by which the control to any extent of business or of the products and earnings thereof, is placed within the power of trustees or by which other persons than the contracting parties or their proper officers, agents or employees are given the power to dictate or control the management of business are prohibited by the terms of the Act. If this narrow construction is in fact the legislative intent, the entire law would be open to the just criticism of being a wholly unnecessary if not an unwarranted invasion of the inherent right of the citizen to deal with his own as he pleases, if without injury to others. Gage vs. State, 24 Ohio, C. C. R. 724.

Carried to its logical conclusion this argument would prevent any two or more individuals engaged in business from employing the same agents or representatives, or from placing in the hands of the same individual the right to control their separate businesses. So, two planters, owning adjoining plantations by employing the same manager to control both places with power to manage the business, dictate to the laborers and dispose of the products, would be guilty of a criminal conspiracy. Two jobbers who employ the same travelling salesman with power to accept or reject orders to be transmitted to one or the other of the stores; or two merchants who employ the same drayman to haul and deliver their freight; or two express companies which employ the same messenger and delivery man; or two railroad companies which employ the same ticket or freight agent at union depots; or two insurance companies which employ the same adjuster, with power to settle losses; or two lumber companies which employ the same attorney with power to adjust disputed claims or impending litigation, and many other cases of every day occurrence, would each be violative of the law now under consideration, and every participant therein, would be subject to the severe penalties therein prescribed. We cannot adopt or sanction this restricted view. The true interpretation in our judgment, is that only such contracts and agreements (within the purview of the paragraphs now under review) are forbidden which on account