or a prosecuting attorney. Such sum may be recovered in the name of the state in any county where the offense is committed or where any of the offenders reside; and the attorney general, or the prosecuting attorney of any county upon the order of the attorney general, shall prosecute for the recovery thereof. When such action is prosecuted by the attorney general he may begin the same in the court of common pleas of Franklin county or of any county in which the defendant. resides or does business. (101 v. 275; 93 v. 145, sec. 7.)

Sec. 6396. Criminal penalty; penalty when violation relates to bread, meat, vegetables, etc.-A violation of any or all of the provisions of this chapter is a conspiracy against trade, and a person engaged in such conspiracy or taking part therein, or aiding or advising in its commission, or, as principal, manager, director, agent, servant, or employer, or in any other capacity, knowingly carrying out any of the stipulations, purposes, prices or rates, or furnishing any information to assist in carrying out such purposes, or orders thereunder, or in pursuance thereof, or in any manner violating a provision of this chapter, shall be fined not less than fifty dollars nor more than five thousand dollars or imprisoned not less than six months nor more than one year, or both. Provided, however, that when the violation of the provisions of this chapter consists of a combination to control the price or supply, or to prevent competition in the sale of bread, butter, eggs, flour, meat, vegetables or any one of said articles, the person or persons thus engaged shall upon conviction thereof be fined in any sum not less than five hundred dollars and be imprisoned in the penitentiary not less than one nor more than five years. Each day's violation of any of the provisions of this chapter shall constitute a separate offense. (103 v. 254; 93 v. 144, secs. 4, 10.)

Sec. 6397. Liability for damages. In addition to the civil and criminal penalties provided in this chapter, the person injured in his business or property by another person, or by a corporation, association, or partnership, by reason of anything forbidden or declared to be unlawful in this chapter, may sue therefor in any court having jurisdiction thereof in the county where the defendant or his agent resides or is found, or where service may be obtained, without respect to the amount in controversy, and recover twofold the damages sustained by him and his costs of suit. When it appears to the court, before which a proceeding under this chapter is pending, that the ends of justice require other parties to be brought before such 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. (93 v. 146, sec. 11.)

Sec. 6398. What indictment shall contain.-In an indictment for an offense provided for in this chapter, it is sufficient to state the pur

pose or effects of the trust or combination, and that the accused is a member thereof, or 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. (93 v. 144, sec. 5.)

Sec. 6399. Evidence. In prosecutions under this chapter, 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 an article of agreement, or a written instrument on which it may have been based; or that it was evidenced by a written instrument. The character of the trust or combination alleged may be established by proof of its general reputation as such. (93 v. 145, sec. 6.)

Sec. 6400. Jurisdiction of courts; quo warranto; injunction.The several courts of common pleas in the state are hereby invested with jurisdiction to restrain and enjoin violators of this chapter. For a violation of any provision of this chapter by a corporation or association mentioned herein, the attorney general, or the prosecuting attorney of the proper county, shall institute proper proceedings in a court of competent jurisdiction in any county in the state where such corporation or association exists, does business or has a domicile. When such suit is instituted by the attorney general in quo warranto, he may begin the same in the supreme court of the state, or the court of appeals of Franklin County. When such suit is instituted by the attorney general to restrain and enjoin a violation of any provision of this chapter, he may begin the same in the court of common pleas of Franklin County. Such proceedings to restrain and enjoin such violation, or violations, shall be by way of petition setting forth the case, and praying that such violation shall be enjoined or otherwise prohibited.

Domestic corporations; dissolution by court. Upon the filing of such petition, and before final decree, the court may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises. In any action or proceeding in quo warranto by the attorney general or a prosecuting attorney against a corporation the court in which such action or proceeding is pending may, ancillary to such action or proceeding, restrain or enjoin the corporation and its officers and agents from continuing or committing during the pendency of the action the alleged act or acts by reason of which the action is brought. When, in a proceeding quo warranto by the attorney general or any prosecuting attorney, any corporation incorporated under the laws of this state is, on final hearing, found guilty of violating any of the provisions of this act, the court may

declare a forfeiture of all its rights, privileges and franchises to the state and may order the incorporation dissolved and appoint a trustee or trustees to wind up its affairs, as is provided in other cases in quo warranto (103 v. 425; 101 v. 275; 93 v. 114, sec. 2.)

Sec. 6400-1. Parties defendant; statute of limitation no bar to suit. In any action or proceeding in quo warranto, injunction, or otherwise brought by the attorney general or a prosecuting attorney under this chapter, all persons parties to or participating in the trust or conspiracy against trade violative of the provisions of this chapter, may be made parties defendant and summoned, whether they reside in the county where such action is instituted or not. Proceedings in quo warranto and in injunction may be instituted simultaneously, or while one or another of them is pending, such suits being started in the proper court as provided in this chapter, and no suit in injunction shall be a bar to a suit in quo warranto, nor shall a suit in quo warranto be a bar to one instituted to restrain and enjoin. No statute of limitation shall prevent or be a bar to any suit, or proceeding, for any violation hereafter committed of any provision of this chapter. (101 v. 276.)

Sec. 6401. Witness not excused from testifying.-If a court of record or in vacation a judge thereof, in which is pending a civil, criminal, or other action or proceeding brought or prosecuted by the attorney general or a prosecuting attorney for the violation of any provision of this chapter, or an action or proceeding for a violation of a law, common or statute, against a conspiracy or combination in restraint of trade, so orders, no person shall be excused from attending, testifying, or producing books, papers, schedules, contracts, agreements, or other documents in obedience to the subpoena or order of such court or a commissioner, referee, or master appointed by such court to take testimony, or a notary public or other person authorized by the laws of this state to take depositions, when the order made by such court or judge includes a witness whose deposition is being taken before such notary public or other officer, for the reason that the testimony or evidence required of him may tend to criminate him or subject him to a penalty; but no person shall be prosecuted or subjected to a penalty for or on account of a transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, before such court, person, or officer. (98 v. 313, sec. 6a.)

Sec. 6402. Cumulative provisions.-The provisions of this chapter shall be cumulative of each other and of all other laws in any manner affecting them. (93 v. 145, sec. 9.)

Judicial Decisions

Application of the Common Law.

One, who has been forced to discontinue his business of selling plumbing supplies because of an agreement between members of an association of plumbers to regulate price, source and production, and to withhold supplies from nonmembers, has a cause of action against the association. Needles v. The Bishop & Babcock Co., 2 O. N. P. (ns) 77, 14 O. D. 445 (1904).

An association of tobacco warehousemen whose purpose was to reduce competition, fix prices, share in a guarantee fund, and to forfeit any interest in profits in case of any violation of its rules was held to be an illegal combination. The association was denied recovery in a suit against a member for breach of his contract. Valid portions of the agreement were not enforced, since the contract was held not separable. Hoffman v. Brooks, 6 O. D. Rep. 1215, 11 W. I. B. 258 (1884).

An agreement between 30 or more salt producers within a certain area to control the price, production and business methods of its members is in restraint of trade. That competition is not actually destroyed is no defense so long as there is evidence of a tendency to destroy competition. Central Ohio Salt Co. v. Guthrie, 35 O. S. 666 (1880).

A contract between members of an association of 95 percent of all candle manufacturers east of Utah, providing for price increases of commodities, decrease of production and division of profits earned from the association pool is illegal. A member will not be permitted. to recover his share of the pool's profits since doing so would be giving effect to a contract in restraint of trade. Emery v. The Ohio Candle Co., 47 O. S. 320, 24 N. E. 660, 21 A. S. 819 (1890).

A group of oil companies were precluded from placing the management of their businesses in control of a single company for the purpose of generally controlling production and price of petroleum products. The corporate fiction will be disregarded when all or nearly all of the stockholders place their stock in the hands of a single company for the purpose of creating a monopoly. Quo Warranto proceedings by the State is a proper remedy. State v. Standard Oil Co., 49 O. S. 137, 30 N. E. 279, 34 A. S. 541 (1892).

An agreement between members of a combination, consisting of nearly all of the brick manufacturers in the city of Akron, to sell their products through a central office, the purpose being to increase price by reducing competition is against public policy and cannot be

defended on grounds that it was a partnership. Recovery against a member for breach of his contract with the association will not be granted in a suit by the association in its own name. Jackson v. Akron Brick Ass'n, 53 O. S. 303, 41 N. E. 257, 53 A. S. 638 (1895).

An injunction was granted to restrain a combination of cash register companies from attempting to destroy the English and Colonial business of another company. The combination resorted to the use of unfair trade practices. Among other things, it continually harrassed the company with a number of unfounded law suits, thereby creating unfavorably publicity, resulting in restraint of trade. National Cash Register v. Heyne et al., 10 O. N. P. (ns) 465, 26 O. D. 628 (1910).

A combination of wheel manufacturers engaged in allotting available trade among its members, fixing prices, limiting production, and further engaged in the purchasing of competing factories for the purpose of discontinuing their operation, is a trust contrary to public policy and illegal. Thus, where in pursuance of the illegal plan the price has been paid, but no possession taken under the contract for purchase of the factory, the court will leave the parties where it finds them. Possession will not be given to the combination. Fisher et al. v. Flickinger Wheel Co. et al., 7 O. C. C. (ns) 533, 18 O. C. D. 501 (1906).

In a suit for injunction brought by a nonmember against an association to prevent the association from enforcing certain provisions of its bylaws, the court held that the bylaw of the association of insurance agents providing for the expulsion of members for dealing with nonmembers is not illegal, although the association intended to restrict competition and control price. Regardless of motive, an association as well as an individual may refuse to deal with whomsoever it chooses. Runck v. Cloud, 8 O. N. P. 436, 11 O. D. 344 (1901).

A bill for an accounting setting out a contract between two firms by which they agreed to divide gross profits at regular intervals, was held not demurrable. Such a contract is legal on its face, and will be upheld. Fechteler et al. v. Palm Bros. & Co., 14 O. F. D. 369, 133 Fed. 462 (1904).

A contract between an automobile company and its sales agents providing that title to cars shall remain in the principal and be transferred only by his bill of sale, is not in restraint of trade. Orebaugh v. Neu, 28 O. C. D. 32, 38 O. C. C. (ns) 32, 28 O. C. A., 161 (1917).

Persons picketing a retailer persisting in making purchases of meat from a certain wholesaler alleged to be unfair to a labor union,