settles all questions of public policy and of reasonableness. In the recent leading case of The United States v. The Trans-Missouri Freight Association, before the Supreme Court of the United States, Mr. Justice Peckham, in delivering the opinion of the court, said: "The arguments which have been addressed to us against the inclusion of all contracts in restraint of trade, as provided for by the language of the act, have been based upon the alleged presumption that congress, notwithstanding the language of the act, could not have intended to embrace all contracts, but only such contracts as were in unreasonable restraint of trade. Under these circumstances we are therefore asked to hold that the act of congress excepts contracts which are not in unreasonable restraint of trade, and which only keep rates up to a reasonable price, notwithstanding the language

they are conducted for the purposes for which organized, they are a public benefit. When, therefore, the provisions of agreements in restraint of competition tend beyond measures for selfprotection, and threaten the public good in a distinctly appreciable manner, they should not be sustained. The apprehension of danger to the public interests, however, should rest on evident grounds, and courts should refrain from the exercise of their equitable powers in interfering with and restraining the conduct of individuals or of corporations unless their conduct, in some tangible form, threatens the welfare of the public." Leslie v. Lorillard, 110 N. Y. 533. F and wife sold a newspaper in D county, and agreed that F "shall not edit, print or conduct a newspaper, nor be in any wise connected with one printed anywhere in the State of North Carolina, and that for a like period Mrs. F shall not edit, print or conduct a newspaper or magazine, nor be in anywise connected with one in the

county of D. said State, without the consent of such purchaser or his assignees." Held, that such contract was not void as an unreasonable restraint on trade. Cowan v. Fairbrother, 118 N. Car. 406; S. C.. 24 S. E. Rep. 212. Where electrotype plates are sold so that the absolute title passes to the buyers, a clause in the contract of sale, providing that the buyers will not sell the plates to other parties, or multiply them for the purpose of sale, is a contract in restraint of trade, but is reasonable in view of the nature of the property, and will be enforced between the parties. Meyer v. Estes, 164 Mass. 457; s. C.. 41 N. E. Rep. 683. Bylaw 25, of the Associated Press of New York, which provides that no member "shall receive or publish the regular news dispatches of any other news association covering a like territory and organized for a like purpose," is not void as unreasonable as in restraint of trade. Matthews v. Associated Press, 136 N. Y. 333; s. c., 32 N. E. Rep. 981.

of the act makes no such exception. In other words, we are asked to read into the act, by way of judicial legislation, an exception that is not placed there by the law-making branch of the government, and this is to be done upon the theory that the impolicy of such legislation is so clear that it cannot be supposed congress intended the natural import of the language it used. This we cannot and ought not to do. That impolicy is not so clear nor are the reasons for the exception so potent, as to permit us to interpolate an exception into the language of the act, and thus materially to alter its meaning and effect. It may be that the policy evidenced by the passage of the act itself will, if carried out, result in disaster to the roads, and in a failure to secure the advantages sought from such legislation. Whether that will be the result or not we do not know and cannot predict. These considerations are, however, not for us. If the act ought to read as contended for by defendants, congress is the body to amend it and not this court, by a process of judicial legislation wholly unjustifiable. Large numbers do not agree that the view taken by defendants is sound or true in substance, and congress may, and very probably did, share in that belief in passing the act. The public policy of the government is to be found in its statutes, and, when they have not spoken directly, then in the decisions of the courts and the constant practice of the government officials, but when the law-making power speaks upon a particular subject over which it has constitutional power to legislate, public policy in such a case is what the statute enacts. If the law prohibit any contract or combination in restraint of trade or commerce, a contract or combination made in violation of such law is void, whatever may have been theretofore decided by the courts to have been the public policy of the country on the subject."

§ 47. Divisibility of Illegal Contract.-It is well established that where a contract in restraint of trade contains

1 United States v. Trans-Missouri S. 290; s. c., 17 Sup. Ct. Rep. 540, Freight Association (1897), 166 U. 558.

two or more stipulations, a part of which are valid and the remainder void, the contract may be divided and the valid portion sustained, If the agreement is of such a character as to admit of division, it will be held void only to the extent to which it is illegal, or in contravention of public policy. In a leading case before the Supreme Court of the United States, the rule is stated by Mr. Justice Bradley, as follows: "It is laid down by Chitty as the result of the cases, and his authorities support the statement, 'that agreements in restraint of trade, whether under seal or not, are divisible; and, accordingly, it has been held that when such an agreement contains a stipulation which is capable of being construed divisibly, and one part thereof is void as being in restraint of trade, whilst the other is not, the court will give effect to the latter, and will not hold the agreement to be void altogether.'" In a case in Pennsyl

1 Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64, 70. See also Price v. Green, 16 M. & W. 346; s. C., 16 L. J. Excheq. 108; Mallan v. May, 11 M. & W. 653; s. C., 7 Jur. 536; 12 L. J. Excheq. 376; Willis v. Beard, 6 Ind. 200; Gelpcke v. Dubuque. 68 U. S. 175; Goodwin v. Clark, 65 Me. 280; Carleton v. Woods, 28 N. H. 290; Van Dyck v. Van Buren, 1 Johns. 362; Saratoga County Bank v. King, 44 N. Y. 89; Leavitt v. Palmer, 3 N. Y. 19; Newberry Bank v. Stegall, 41 Miss. 142; Tracy v. Talmage, 14 N. Y. 162; Carrigan v. Lycoming F. Ins. Co., 53 Vt. 418; Widoe v. Webb, 20 Ohio St. 431; Hynds v. Hays, 25 Ind. 31. 36; White v. Buss, 3 Cush. 449. A contract not to engage in a particular trade for a specified time in the city of St. Louis, or at any other place." is divisible, and as to the restriction in St. Louis is not void as in restraint of trade. Peltz v. Eichell, 62 Mo. 171. Declaration in covenant on an indenture, which, after reciting that defendant had

1

for four years been plaintiff's salaried clerk, and requested plaintiff to accept him as articled clerk without payment of any premiums, which plaintiff consented to do on defendant entering into the covenants thereinafter contained, and that defendant had bound himself clerk to plaintiff for five years, to the intent that he might become entitled to make application to be admitted attorney and solicitor, defendant covenanted that he would not, during said term of five years, nor at any time after the expiration of such term, either directly or indirectly, interfere or intermeddle with, or be concerned as attorney, agent or otherwise for any person who had already been, or should thereafter become or be, the client or correspondent in business of, or with. plaintiff, or any partner he might admit to a share with him, or to any person to whom he might sell or assign the whole, or any part of his business or profession, and that

vania, A, for a valuable consideration, covenanted with B, not to engage in the manufacture of ochre "in the county of Lehigh or elsewhere." He afterwards did engage in said business in said county. B filed his bill in equity, praying that A might be enjoined from carrying on said business in said county. It was held: 1. That the contract was reasonable. 2. That it was divisible as to place. 3.

That an injunction was the proper remedy to enforce it.1 In the opinion in this case, the court said: "The covenant as to place, in the county of Lehigh or elsewhere,' is divisible, and valid as to the county; for the present it is conceded to be void elsewhere. Where a county or city or borough is named as a limit, and an unreasonable extent of territory in addition is also named, the covenant is divisible and may be valid as to the particular place, which is a reasonable limit."2 In an English case, L was engaged as clerk by D & Co. of London, foreign carriers, by agreement containing the following covenant: "L agrees that he will not within twelve calendar months after the termination of this agreement, from whatever cause, carry on, or be engaged in, or interested directly or indirectly in the cities of London, Birmingham, Liverpool and New York, "or within fifty miles thereof of each of the above named places, either as principal, clerk, agent or otherwise, in any business similar to the business now or hereafter to be carried on by the employers." Defendant, on leaving plaintiff's service, entered into the service of a rival firm in London. Plaintiff had not any trade with Birmingham, but a considerable business with the other places mentioned. It was held that the limit of time was reasonable; also, that of space, with the exception of Birmingham; that the words "principal, clerk, agent or otherwise" were not too wide; that the words "now or hereafter" were not reasonable. In a recent case in Massachusetts, it was held that a stipulation by a manufacturer of fire alarm and telegraph apparatus, on a sale of all his machinery, stock, letters patent and inventions, that he will not for ten years engage in the manufacture and sale of such apparatus, or enter into competition with the purchaser, while valid in so far as the patents and inventions agreed to be sold are concerned, is void, as against public policy, in so far as it prohibits the seller from engaging in the manufacture and sale of

1 Smith's Appeal, 113 Pa. St. 579.

3 Davies V. Lowen. 64 L. T.

2 Smith's Appeal, 113 Pa. St. 579, 655.