Messrs. Dunshee & Dorn and Carr, | N. W. 604; Oregon Steam Nav. Co. v. Hale, Hewitt, Parker, & Wright, for appel-1 Wash. Terr. 283, 34 Am. Rep. 803; Vickery lants: v. Welch, 19 Pick. 523; Lawrence v. Kidder, The rigor of the rule laid down in the 10 Barb. 641; Lanzit v. J. W. Sefton Mfg. earlier cases has long since been abandoned Co. 184 Ill. 326, 75 Am. St. Rep. 171, 56 N. by the great majority of the courts. The E. 393; Linn v. Sigsbee, 67 Ill. 75; Hursen modern rule is much broader, and the ten- v. Gavin, 162 Ill. 377, 44 N. E. 735; Harddency is to uphold contracts of the charing v. American Glucose Co. 182 Ill. 551, acter of the one sued upon. While it is true that the courts of some of the states still adhere to the old rule, the courts of such states are largely in the minority.

74 Am. St. Rep. 189, 55 N. E. 577: Lufkin Rule Co. v. Fringeli, 57 Ohio St. 596, 41 L. R. A. 185, 63 Am. St. Rep. 736, 49 N. E. 1030; More v. Bonnet, 40 Cal. 251, 6 Am. Diamond Match Co. v. Roeber, 106 N. Rep. 621; Peltz v. Eichele, 62 Mo. 171; KelY. 473, 60 Am. Rep. 464, 13 N. E. 419; logg v. Larkin, 3 Pinney, 123, 56 Am. Dec. Wood v. Whitehead Bros. Co. 165 N. Y. 545, 164; Consumers' Oil Co. v. Nunnemaker, 142 59 N. E. 357; Oregon Steam Nav. Co. v. Ind. 560, 51 Am. St. Rep. 193, 41 N. E. Winsor, 20 Wall. 64, 22 L. ed. 315; Cowan 1048; Chappel v. Brockway, 21 Wend. 157; v. Fairbrother, 118 N. C. 406, 32 L. R. A. Taylor v. Blanchard, 13 Allen, 370, 90 Am. 829, 54 Am. St. Rep. 733, 24 S. E. 212; Dec. 203; Cleaver v. Lenhart, 182 Pa. 285, Herreshoff v. Boutineau, 17 R. I. 3, 8 L. R. 37 Atl. 811; Harkinson's Appeal, 78 Pa. A. 469, 33 Am. St. Rep. 850, 19 Atl. 712; 196, 21 Am. Rep. 9; Keeler v. Taylor, 53 Anchor Electric Co. v. Hawkes, 171 Mass. Pa. 467, 91 Am. Dec. 221; Rakestraw v. 101, 41 L. R. A. 189, 68 Am. St. Rep. 403, 50 | Lanier, 104 Ga. 188, 69 Am. St. Rep. 154, N. E. 509; Trenton Potteries Co. v. Oli- 30 S. E. 735; Bullock v. Johnson, 110 Ga. phant, 58 N. J. Eq. 507, 46 L. R. A. 255, 78 486, 35 S. E. 703; Goodman v. Henderson, Am. St. Rep. 612, 43 Atl. 723; Underwood | 58 Ga. 567; Dean v. Emerson, 102 Mass. v. Barker, 68 L. J. Ch. N. S. 201; Norden- 480; Bishop v. Palmer, 146 Mass. 469, 4 feldt v. Maxim-Nordenfeldt Guns & Ammu| Am. St. Rep. 339, 16 N. E. 299; Richardson nition Co. 63 L. J. Ch. N. S. 908.

This court has announced that contracts of this character, where limited in territory to such an extent as is reasonably necessary for the protection of the purchaser, and where the contract is not designed to create a monopoly, are valid and binding.

Smalley v. Greene, 52 Iowa, 241, 35 Am. Rep. 267, 3 N. W. 78; Hedge v. Lowe, 47 Iowa, 139; Troendle v. Bender (Iowa) 79 N. W. 1123.

v. Buhl, 77 Mich. 632, 6 L. R. A. 457, 43 N. W. 1102.

Contracts which have a restraint upon trade in general are not authorized by law, because they have a tendency to monopolies, which are highly injurious to the public.

Heichew v. Hamilton, 3 G. Greene, 596; Hedge v. Lowe, 47 Iowa, 137; Chapin v. Brown Bros. 83 Iowa, 160, 12 L. R. A. 428, 32 Am. St. Rep. 297, 48 N. W. 1074.

Bishop, Ch. J., delivered the opinion of the court:

Messrs. Clark & Clark, for appellee: Agreements in general restraint of trade have been held void by the courts of Eng- It will be observed that, by the contract. land and the United States for more than in question, defendant agreed, without limifive centuries, for the reason that the pub- tation of time, to abstain from engaging in lic, as well as the parties themselves, has the shirt business within a radius of 100 an interest in the question; and that the miles of Des Moines; that, as related to the public welfare demands that private citi-states of Iowa and Nebraska generally, the zens be not allowed, even by their own vol- agreement provides for a time limit of ten untary contracts, to restrain themselves un-years. Taking the facts as stated in the pereasonably from the prosecution of their accustomed livelihood, or from embarking in business enterprises.

All contracts in general restraint of trade, as that a person shall not carry on his business anywhere in the state, are void, no matter what the consideration may be, because the effect of such contracts must be injurious to the public.

State v. Nebraska Distilling Co. 29 Neb. 700, 46 N. W. 155; Alger v. Thacher, 19 Pick. 51, 31 Am. Dec. 119; Wright v. Ryder, 36 Cal. 342, 95 Am. Dec. 186; Western Wooden-Ware Asso. v. Starkey, 84 Mich. 76, 11 L. R. A. 503, 22 Am. St. Rep. 686, 47

tition to be true,—and, as far as well pleaded, the demurrer admits the truth thereof, -it is manifest that the alleged conduct on the part of defendant does now, and, unless he be restrained therefrom, will continue to, interfere with, and work injury and damage to, the property rights and business interests of plaintiffs. It is certain that the defendant possessed valuable rights, and, without dispute, these were in the nature and character of property rights. It was in consideration of a transfer of such to plaintiffs that they entered into the contract of purchase, and paid the consideration price. It would seem that common fairness re

quires that plaintiffs should be protected in another; and, even where there is no essen the rights thus acquired by them, unless, tial difference in the matter of abstract defforsooth, some consideration of general pub-inition, it may be certain that self-interest, lic policy dictates that their complaint should go unheard. That the attempted restriction is against public policy, and therefore void, is the sole contention on behalf of appellee. It is said that the contract, having application to the entire states of Iowa and Nebraska, is one in general restraint of trade; that the 100-mile restriction is a limitation in pretense only, while covering practically the entire state; and that the same cannot be upheld, because the contract being indivisible, if one part is void all parts are void.

viewed from the standpoint of locality more or less immediate, will enter into and dominate the side of practical application. Now, in this country we have no such conditions as existed when the doctrine was first promulgated. In a recent case it has been well said: "Public policy is a variable test. In the days of the early English cases, one who could not work at his trade could hardly work at all. The avenues to occupation were not as open nor as numerous as now, and one rarely got out of the path he started in. Contracting not to follow one's trade was about the same as contracting to be idle, or to go abroad for employment. But this is not so now. It is an everyday occurrence to see men busy and prosperous in other pursuits than those to which they were trained in youth, as well as to see them change places and occupations without depriving themselves of the means of livelihood, or the state of the benefit of their industry. It would therefore be absurd, in the light of this common experience, now to say that a man shuts himself up to idleness or to expatriation, and thus injures the public, when he agrees, for a sufficient

The doctrine that contracts in general restraint of trade are to be held void as against public policy found root early in the development of our system of law, and recognition of such doctrine has continued down to the present time, but with more or less of modification as different courts have been called upon to make practical application thereof. Formerly, in the enforcement of this doctrine, the rights of the immediate parties to a contract, as between themselves, were put entirely out of view until it had been determined that the contract was not one the enforcement of which would operate as an encroachment upon the interests of consideration, not to follow some one callthe general public. The reason of the rule ing within the limits of a particular state. is said to be twofold,—that such restraints There is no expatriation in moving from work injury to the public by depriving it one state to another, and from such removof the industry of the restricted party in als a state would be likely to gain as much the vocation for which he is best adapted, as as it would lose." Herreshoff v. Boutineau, well as by the tendency thereof to throw the 17 R. I. 3, 8 L. R. A. 469, 33 Am. St. Rep. person so restrained upon the public for sup- 850, 19 Atl. 712. Again, in Wood v. Whiteport, or compel him to expatriate himself head Bros. Co. 165 N. Y. 545, 59 N. E. 357, and transfer his residence and allegiance to it is said: "The doctrine which avoids a consome other state or country in order to pur- tract for being one in restraint of trade is sue his occupation; also that the tendency founded upon a public policy. It had its of such restraint is to foster monopolies, origin at a time when the field of human prevent competition, enhance prices, and enterprise was limited, and when each man's might ultimately enable organized capital industrial activity was more or less necesto silence all competition, become the sole sary to the material well-being and welfare producer, and place the public at its mercy. of his community and of the state. The following cases will serve to illustrate: The conditions which made so rigid a docAlger v. Thacher, 19 Pick. 51, 31 Am. Dec. trine reasonable no longer exist. In the 119; Wright v. Ryder, 36 Cal. 342, 95 Am. present practically unlimited field of huDec. 186; Western Wooden-Ware Asso. v. man enterprise there is no good reason for Starkey, 84 Mich. 76, 11 L. R. A. 503, 22 restricting the freedom to contract, or for Am. St. Rep. 686, 47 N. W. 604; [Mitchel fearing injury to the public from contracts v. Reynolds, 1 P. Wms. 181], 1 Smith Lead. which prevent a person from carrying on a Cas. 9th ed. 694. In view, however, of the particular business. Interference would onever-changing conditions of trade, com- ly be justifiable when it was demonstrable merce, the mechanic arts, etc., and the diver- that in some way the public interests were sity of interests which obtain in the various endangered." See also Diamond Match Co. states and countries, it must be manifest v. Roeber, 106 N. Y. 473, 60 Am. Rep. 464, that there can be no single standard respecting public policy. This is true to the extent that it frequently happens that in certain respects the policy of one state is found to be the exact opposite of that maintained by

13 N. E. 419; Leslie v. Lorillard, 110 N. Y. 519, 1 L. R. A. 456, 18 N. E. 363. To any one at all familiar with present-day conditions, it requires no argument to demonstrate that public policy requires that in

trade matters there shall be no restraints | L. R. A. 255, 78 Am. St. Rep. 612, 43 Atl. imposed, save in those instances where it is 723. It is to be noted, however, that a disclearly made to appear that the public wel- tinction is generally drawn, and with much fare would be otherwise seriously endan- force, between those trades or avocations, on gered. And an all-important factor in bus- the one hand, in which the general public, iness life is the right of individual contract, as such, has some special interest, as, for -the right to buy and sell, to bargain and instance, common carriers, water and light convey at will. The demand for recognition companies, and others of a quasi public of this, coming up from the world of busi- character, and those trades and avocations, ness, has been heard, and countenance giv- on the other hand, in which the interest en thereto, by legislatures and courts every-does not arise out of a common necessity, where. So, too, note has been taken of the or is not otherwise a matter of common conbaneful results which follow, seemingly with cern to the general public, but which serve inevitable certainty, from giving sanction, rather to minister to the convenience or even negatively, to acts or conduct involv- gratify the desires, tastes, etc., of such ining fraud or dominated by bad faith. Certain-dividual members of the community as care ly it is not going too far to say that there to extend their patronage. The reason for can be no sound public policy which operates this is apparent. Take the case of a city in to give countenance to the open disregard | which water is supplied to the inhabitants and violation of personal contracts entered from two or more general sources, each uninto in good faith and upon good consid-der the control of a separate private ownereration. A recent expression of the English ship. Now, a contract between such owncourt of appeal on the subject rings true. In Underwood v. Barker, 68 L. J. Ch. N. S. 201, it is said: "If there is one thing more than another which is essential to the trade and commerce of this country, it is invio-tainly be so far repugnant to the general lability of contracts deliberately entered into; and to allow a person of mature age, and not imposed upon, to enter into a contract, to obtain the benefit of it, and then to repudiate it and the obligations which he has undertaken, is, prima facie at all events, contrary to the interests of any and every country."

ers, whatever the consideration as between themselves, providing for the shutting off of all such sources of supply but one, would serve to create a monopoly, and would cer

public interest that the courts would refuse to enforce the same. The case of Chapin v. Brown, Bros. 83 Iowa, 160, 12 L. R. A. 428, 32 Am. St. Rep. 297, 48 N. W. 1074, furnishes a further illustration. It there appeared that all dealers doing business in Storm Lake who had theretofore engaged in the purchase of butter from the farmers of It has thus come to be the rule of the the surrounding country entered into a concases in most jurisdictions that a contract tract with plaintiff to the effect that they in itself reasonable and based upon good con- would discontinue such business, and give sideration will be enforced according to the plaintiff sole and exclusive control thereof. rights of the respective parties thereto, and Here was an interest common to all the this notwithstanding it may appear that in farmers residing within the trade circle of some respects or in a limited way the en- Storm Lake, and the court held that the forcement of such contract has for a result contract was void as against public policy, a partial restraint of trade. Several of our for the reason that the direct tendency and own cases make it certain that such is the effect thereof was to create a monopoly. But Irule in this state. Heichew v. Hamilton, 3 to our minds the reasoning which proves satG. Greene, 596; Hedge v. Lowe, 47 Iowa, isfactory in such cases loses quite all its 137; Smalley v. Greene, 52 Iowa, 241, 35 force when applied to a case where, as for Am. Rep. 267, 3 N. W. 78; Chapin v. Brown illustration, 2 out of 100 or 1,000 shirt dealBros. 83 Iowa, 160, 12 L. R. A. 428, 32 Am. ers agree between themselves, upon a suffiSt. Rep. 297, 48 N. W. 1074. See also the cient consideration, and without any purfollowing recent cases from other jurisdic- pose to control the trade generally, that the tions in which the doctrine has found appli- one will not engage in business in competication: Diamond Match Co. v. Roeber, 106 tion with the other. And this more espeN. Y. 473, 60 Am. Rep. 464, 13 N. E. 419; cially where one sells out his business, inHerreshoff v. Boutineau, 17 R. I. 3, 8 L. R. cluding the good will thereof, to the other. A. 469, 33 Am. St. Rep. 850, 19 Atl. 712; In such cases the interest of the general pub Cowan v. Fairbrother, 118 N. C. 406, 32 L. lic, from a trade standpoint, is infinitesimal. R. A. 829, 54 Am. St. Rep. 733, 24 S. E. 212; We have simply the substitution of one Wood v. Whitehead Bros. Co. 165 N. Y. 545, tradesman for another. In giving applica 59 N. E. 357; Anchor Electric Co. v. tion to the present-day doctrine, it has been Hawkes, 171 Mass. 101, 41 L. R. A. 189, 68 said that the true test is whether the reAm. St. Rep. 403, 50 N. E. 509; Trenton Pot-straint is such only as to afford a fair proteries Co. v. Oliphant, 58 N. J. Eq. 507, 46 tection to the interests of the party in favor

of whom it is given, and not so large as to tinction between the enforcement of the interfere with the interests of the public. property right in the good will of a retail And the restriction must be reasonable, not business at Winterset and the enforcement oppressive, or out of proportion to the ben- of the property right in the good will of a efits which the vendee may, in reason, ex- | wholesale business at Des Moines, as the pect to flow from the restrictive features of same actually exists. Nor are we persuaded the contract. In Hubbard v. Miller, 27 that the welfare of the state is jeopardized Mich. 15, 15 Am. Rep. 153, it is said: "If, in the one case more than in the other. The considered with reference to the situation, expatriation of the one is no more likely business, and objects of the parties, and in to create an idler or pauper than the other. the light of all the surrounding circum- Indeed, as we read the cases, the courts no stances with reference to which the contract longer attempt to fix the geographical limwas made, the restraint contracted for ap- its within which only contracts of the charpears to have been for a just and honest pur-acter in question can be enforced. And if pose, for the protection of the legitimate interests of the party in whose favor it is imposed, reasonable as between them, and not specially injurious to the public, the restraint will be held valid." And this language is quoted approvingly in Hedge v. Lowe, 47 Iowa, 137. Now, whether a con

Emma N. HYATT, Exrx., etc., of M. B. | City, 113 Iowa, 246, 84 N. W. 1027; How

APPEAL by defendant from a judgment of the District Court of Hamilton County in plaintiff's favor in an action brought to recover compensation for services rendered in a disbarment proceeding. Affirmed.

The decision of the trial court having been in favor of the plaintiff, defendant sought a review before the supreme court, and an opinion was handed down by that court on May 19, 1902, reversing the judg

land v. Wright County, 82 Iowa, 164, 47 N. WV. 1086; Guanella v. Pottawattamie County, 84 Iowa, 36, 50 N. W. 217; Re Eaton, 7 N. D. 269, 74 N. W. 870; Morton v. Watson, 60 Neb. 672, 84 N. W. 91.

Mr. J. M. Blake also for appellant. Messrs. N. P. Hyatt and D. C. Chase for appellee.

McClain J., delivered the opinion of the

court:

The simple question involved in this appeal is whether the lower court erred in holding that, notwithstanding there is no statutory provision for compensation to an

attorney appointed by the court to prosecute disbarment proceedings under the provisions of Code, § 325, such attorney is entitled to compensation. The theory of the appellant seems to be that the attorney thus appointed is an officer of the court, and, like other public officers, is entitled only to such compensation as is provided for by statute, liable for any expenses in conducting the and that the county cannot be rendered court, unless such liability is expressly declared by statute. But with these contentions we cannot agree. It is true that

Iment of the trial court (90 N. W. 508). A rehearing was, however, granted, after which the opinion published herewith was handed down affirming the judgment of the the attorney is in some sense an officer of trial court and annulling the former opinion rendered by the supreme court. That opinion, having thus been nullified, is omitted from the report.

The facts sufficiently appear opinion.

in the

Mr. A. N. Boeye, for appellant: A public officer cannot recover compensation for services performed by him as such, unless provided for expressly by statute.

Howland v. Wright County, 82 Iowa, 164,

47 N. W. 1086.

An attorney at law is an officer of the

the court. But he is certainly not a public
officer. As incident to the privilege of
practising in. the courts, he may be required
to discharge certain duties imposed upon
him by statute. Thus he may be required
to defend a criminal. But we know of no
obligation imposed upon him by statute to
give his services to the public without com-
pensation. It was held by this court, be-
fore there was any statutory compensation
to counsel appointed to defend one accused
of crime who was without means to em-
ploy counsel, that, while the person appoint-
ed by the court for the purpose was under
obligation to render his services, there was
a corresponding obligation on the part of
the county to pay him a reasonable com-
County, 2 G. Greene, 473. That case over-
pensation therefor. Hall v. Washington
ruled Whicher v. Cedar County, 1 G.

Greene, 217, in which the court had held
that compensation was discretionary in
such cases with the county. Likewise, in
White v. Polk County, 17 Iowa, 413, it was
held by the two judges who favored af-
firmance that one appointed by the court to
act as special prosecutor in criminal cases
in the absence of the district attorney was
entitled to reasonable compensation from
the county for his services, although no
Compensation in such cases was provided for
The difference of opinion among
by law.
the judges of the court in that case was not