Judicial Decisions

GENERAL ANTITRUST LAWS

Application of the Common Law.

An agreement among 24 stone-quarry operators in one district of a city to sell, for a period of 6 months, their respective outputs through a single agent who was to determine the quota of production for each quarry and sell the stone at uniform prices was held not in restraint of trade in Skrainka v. Scharringhausen, 8 Mo. App. 522 (1880). The court stated that the contract did not deprive men of work, or unduly raise prices, or cause a monopoly, or end competition, and was therefore not injurious to the public.

Constitutionality of Statutes.

The general antitrust laws have been held constitutional under State and Federal constitutions in the following cases: State ex rel. Crow, Attorney General v. Firemen's Fund Insurance Co. et al., 152 Mo. 1, 52 S. W. 595 (1899); State ex rel. Crow, Attorney General v. Continental Tobacco Co. et al., 177 Mo. 1, 75, S. W. 737 (1903); State ex rel. Hadley, Attorney General v. Standard Oil Co. of Indiana et al., 218 Mo. 1, 116 S. W. 902 (1909), aff'd. 224 U. S. 270, 32 Sup. Ct. 406, 56 L. Ed. 760 (1912); State ex rel. Major, Attorney General v. International Harvester Co. of America, 237 Mo. 369, 141 S. W. 672 (1911), aff'd. 234 U. S. 199, 34 Sup. Ct. 859, 58 L. Ed. 1276 (1914); State ex rel. Jones v. Mallinckrodt Chemical Works, 249 Mo. 702, 156 S. W. 967 (1913) aff'd. 238 U. S. 41, 35 Sup. Ct. 671, 59 L. Ed. 1192 (1915); State ex rel. Attorney General v. Arkansas Lumber Co. et al., 260 Mo. 212, 169 S. W. 145 (1914); State ex rel. Mueller Baking Co. et al. v. Calvird, Judge, 338 Mo. 601, 92 S. W. (2d) 184 (1936).

Procedure under section 8735 to secure compulsory attendance of nonresident officers of a corporation by giving notice to their attorneys of record is constitutional. State ex rel., Hadley, Attorney General v. Standard Oil Co. of Indiana et al., 194 Mo. 124, 91 S. W. 1062 (1906).

Acts of 1889, section 6, page 97, requiring an officer of every corporation to report whether his company had violated the antitrust act was held unconstitutional. State ex rel. Attorney General v. Simmons Hardware Co., 109 Mo. 118, 18 S. W. 1125 (1892).

Act March 24, 1897, section 1, page 208, prohibiting fire-insurance companies from combining to fix premium rates except in cities with a population of 100,000 or over was held constitutional. The excep tion was subsequently repealed. State ex rel. Crow, Attorney

General v. Aetna Insurance Co. et al., 150 Mo. 113, 51 S. W. 413 (1898).

Application of Statutes.

In General.

A trust is a contract, combination, confederation, or understanding, express or implied, between two or more persons, to control the price of a commodity or service for the benefit of the parties thereto and to the injury of the public, and which tends to create a monopoly. State ex rel., Crow, Attorney General v. Firemen's Fund Insurance Co. et al., supra.

For a monopoly to exist it is not necessary that prices be raised and competition destroyed, but only that the power exist to raise prices or destroy competition at pleasure. State ex rel. Hadley, Attorney General v. Standard Oil Co. of Indiana et al., 218 Mo. 1, 116 S. W. 902 (1909), aff'd. 224 U. S. 270, 32 Sup. Ct. 406, 56 L. Ed. 760 (1912).

The antitrust laws of this State are penal in their nature and should be strictly construed, but both the information and the facts should be reasonably construed. Ibid.

The fact that a livestock exchange is a voluntary association does not make the antitrust law inapplicable to its members acting in concert. State ex rel. Attorney General v. Kansas City Livestock Exchange et al., 211 Mo. 181, 109 S. W. 675 (1908).

Labor unions are not unlawful combinations in restraint of trade. Lohse Patent Door Co. v. Fuelle et al., 215 Mo. 421, 114 S. W. 997 (1908).

The antitrust laws apply to insurance companies. State ex rel. Barker, Attorney General v. Assurance Co. of America et al., 251 Mo. 278, 158 S. W. 640 (1913).

The newspaper business is a personal service, and section 8701 does not apply to it. State ex rel. Star Publishing Co. v. Associated Press, 159 Mo. 410, 60 S. W. 91 (1900).

A company which buys ice from codefendants and does a retail business in ice is not exempt from the antitrust statute on the ground. that it is engaged in a personal service. Dietrich v. Cape Brewery & Ice Co. et al., 315 Mo. 507, 286 S. W. 38 (1926).

A corporation, trading as a commission merchant at a stockyard, was held not to be engaged in the trade within meaning of the antitrust statutes. Cooperative Live Stock Commission Co. v. Browning et al., 260 Mo. 324, 168 S. W. 934 (1914).

Where four packers controlled 65 to 80 percent of the dressed beef and 50 to 60 percent of the dressed pork sold in the three largest

210235°-40-vol. 1—31

cities in Missouri and combined to fix meat prices there, such combination was held in restraint of trade. State ex rel. Crow, Attorney General v. Armour Packing Co., et al., 173 Mo. 356, 73 S. W. 645 (1903).

Five producers entered into contracts to deliver to plaintiff all the granite each produced for 5 years. The contracts worked serious public injury by raising prices and were therefore held invalid. Finck et al. v. Schneider Granite Co., 187 Mo. 244, 86 S. W. 213 (1905).

The antitrust law is broad enough to cover cases where oil companies fix prices, limit trade, and prevent competition. State ex rel. Hadley, Attorney General v. Standard Oil Co. of Indiana et al.,

supra.

A combination of six harvester-manufacturing companies doing 80 to 90 percent of that business in the United States was held to be unlawful under the antitrust law. State ex rel. Major, Attorney General v. International Harvester Co. of America, supra.

The merger, with a view to lessening competition, of seven companies into one doing 50 to 60 percent of the wholesale and retail ice business in a city was held to violate section 8703. State ex rel. Sager v. Polar Wave Ice & Fuel Co., 259 Mo. 578, 169 S. W. 126 (1914).

Rules of a hay dealers' association fixing a uniform rate of commission to be charged do not violate sections 8700 to 8703, because the labor is not a "product or commodity" that is the subject of “importation, transportation, manufacture, purchase, or sale" within the meaning of the statute; and where the only restriction on dealing with nonmembers of the association forbids it only as to former members suspended or expelled, the above sections are not violated. Harelson v. Tyler et al., 281 Mo. 383, 219 S. W. 908 (1920).

An agreement between two telephone companies that each would route messages in the territory of the other over its lines for a period of 25 years was held not to violate the antitrust laws. Home Telephone Co. v. Sarcoxie Light & Telephone Co., 236 Mo. 114, 139 S. W. 108 (1911).

An agreement to fix prices and limit production of plumbers' supplies was held invalid under the antitrust laws. Walsh v. Association of Master Plumbers of St. Louis, Missouri, et al., 97 Mo. App. 280, 71 S. W. 455 (1902).

A planing-mill listing bureau did not illegally restrain trade by furnishing members estimates on which to bid, supplying information on costs and credits, and cooperating in resisting the demands of labor. Where restraint of trade is merely incidental to the plan of an organization not othewise illegal, the antitrust statute

is not violated. State ex rel. Barrett, Attorney General v. Carondelet Planing Mill Co. et al., 309 Mo. 353, 274 S. W. 780 (1925).

Defendant's agents could not use a social club formed by them as an agency to fix insurance rates in violation of the antitrust law. State ex rel. Crow, Attorney General v. Firemen's Fund Insurance Co. et al., supra.

Where an association of undertakers met for social purposes and discussed the best methods of carrying on business, but adopted no regulations to fix prices or keep down competition, the antitrust laws were not violated. Wagoner Undertaking Co. v. Jones, 134 Mo. App. 101, 114 S. W. 1049 (1908).

An allegation that defendants, pursuant to agreement among themselves, refused to loan or hire carriages and hearses to undertakers not members of defendants' association, with the result that plaintiffs, nonmembers, could neither borrow nor hire from them, does not state a cause of action under the antitrust law. Stephens et al. v. Mound City Liverymen and Undertakers Association of St. Louis et al., 295 Mo. 596, 246 S. W. 40 (1922).

A combination illegal under the antitrust laws cannot be operated under the cloak of a corporation by its constituent members or governing bodies. National Lead Co. v. S. E. Grote Paint Store Co., 80 Mo. App. 247 (1899).

The right of one to buy from or sell to whom he pleases does not extend to concerted action by a group to destroy the business of another. Deitrich v. Cape Brewery & Ice Co. et al., supra.

Where a large body of men combine for a particular purpose, and in pursuance of the agreement, the men individually act in accordance with it in transacting their business, the law will hold those who entered into the agreement responsible. Refusal of members of an exchange to deal with outsiders is not justified by the fact that outsiders may join for a $1,000 fee. State ex rel. Attorney General v. Kansas City Live Stock Exchange et al., supra.

But, an arrangement between members of a livestock exchange that they will not deal with plaintiff, a nonmember, or with anyone dealing with plaintiff, does not violate sections 8700, 8702, 8703, 8707, and 8715. Cooperative Live Stock Commission Co. v. Browning et al., supra.

The anti-trust laws were held not to apply to an agreement between competing insurance companies that none of them would reemploy within 2 years any person leaving or discharged from another company. Cheek v. Prudential Insurance Co. of America, 192 S. W. 387 (1917), aff'd 259 U. S. 530, 42 Sup. Ct. 516, 66 L. Ed. 1044 (1922).

A fire insurance association which did not limit its membership did not violate the antitrust laws by forbidding members to have business dealings with nonmembers or with insurance companies for which such nonmembers acted as agents. Bersch v. Fire Underwriters' Association of St. Louis et al., 241 S. W. 428 (1922).

An agreement between brewers that none of them would sell beer to anyone in debt to any of the others violated the antitrust laws and operated as a defense in a suit for beer sold. Ferd Heim Brewing Co. v. Belinder, 97 Mo. App. 64, 71 S. W. 691 (1903).

Members of a stock exchange do not violate the antitrust laws by refusing to deal with a person expelled from the exchange for wrongdoing provided this is the ground and not the fact of nonmembership. (Heim Brewing Co. case, supra, distinguished.) Gladish v. Bridgeford et al., 113 Mo. App. 726, 89 S. W. 77 (1905).

Defenses.

It is no defense to an antitrust suit that power has been used with moderation or that the combination has been induced by good intentions or has had good effects. State ex rel. Major, Attorney General v. International Harvester Co. of America, supra; State ex rel. Kimbrell v. People's Ice, Storage & Fuel Co., et al., 246 Mo. 168, 151 S. W. 101 (1912); State ex rel. Barrett, Attorney General v. Boeckeler Lumber Co. et al., 302 Mo. 187, 257 S. W. 453 (1924). Defendants in an antitrust case will not be "heard to say that a forbidden agreement is not injurious to the public." Reisenbichler v. Marquette Cement Co., et al., supra. The fact that price-fixing agreements are frequently broken is no defense to an anti-trust prosecution. State ex rel. Crow, Attorney General v. Armour Packing Co. et al., supra.

Liability and Remedies.

Under section 8700, the president of a corporation is liable for acts of the corporation bringing about an unlawful combination. Dietrich v. Cape Brewery & Ice Co. et al., supra.

A corporation against which an antitrust suit is pending cannot abate the suit by voluntarily withdrawing from the State. State ex rel. Hadley, Attorney General v. Standard Oil Co. of Indiana et al., supra.

An injunction will issue to dissolve an illegal combination between a plumbers' association and wholesalers and manufacturers to violate the antitrust law. Walsh v. Ass'n. of Master Plumbers of St. Louis, Mo. et al., supra.

Where a group of insurance companies were threatening to withdraw from the State in a body, the court had power to issue a tempo