the test of extent seems to be that in effect generally accepted, it also seems reasonably obvious that a rigidly consistent application of it, not merely throughout a country or State generally, but throughout its communities, large and small, would be prac tically imposible, or, if possible, in a high degree disastrous. In short, the test is inadequate, being incapable of consistent and logical application. § 121. Effect of tendency to produce illegal restriction.-It has already been stated that while a restriction resulting in the control of 100 per cent. of the supply of a given commodity within a given area is illegal, yet such a restriction resulting in the control of, say, only five or ten per cent. is doubtless not illegal, at least not necessarily.26 by which each had the exclusive right to furnish gas in certain areas, and fixing prices dependent for charge upon mutual consent. WISCONSIN: By-laws of association composed of about sixty of the seventy or seventy-five mason contractors in Milwaukee, the object being to suppress fair and free competition for building contracts in Milwaukee, it being provided that each member should submit any bid for a contract to the association, and that the lowest bidder should add six per cent. to the amount of his bid, before submitting it to the owner or architect, held illegal. So the right to bid on changes or additions was limited to the original contractor, unless the amount was larger than the contract price. Milwaukee Masons & Builders' Assoc. v. Niezerowski, 95 Wis. 129; 70 N. W. 166; 37 L. R. A. 127; 60 Am. St. Rep. 97 (1897). Compare Bailey v. Master Plumbers, under TENNESSEE, supra. Milwaukee Ma& Builders' Assoc., v. Nie sons But this statement must be zerowski, was followed as applicable to combination to monopolize the livery business in Milwaukee. Gatzow v. Buening, 106 Wis. 1, 12; 81 N. W. 1003, 1006; 49 L. R. A. 475, 480; 80 Am. St. Rep. 17 (1900). Contrary to the later decisions in Wisconsin and elsewhere is Kellogg v. Larkin, 3 Pinney (Wis.), 123, 145; 56 Am. Dec. 164, 176 (1851), sustaining an agreement to give the "full, absolute and uninterrupted control of the Milwaukee wheat market," so far as the contracting parties should be "able to do so, by virtue of their capacity as warehousemen or vessel and dock-owners," it appearing, however, that the rest of Wisconsin was an open and uninterrupted market for the sale of wheat. See, under § 125, National Distilling Co. v. Cream City Importing Co., 86 Wis. 352; 56 N. W. 864; 39 Am. St. Rep. 902 (1893). See generally, article in 20 Harv. Law Rev. 167 (1907) by Herbert Pope. 26 See § 120. taken with an important qualification. Though the restriction may be not illegal, if considered apart from the tendency presently to be considered, yet it may well be illegal in the light of such tendency. Thus the circumstances attending its existence may be such as to indicate a speedy increase to a control of 90 or 95 per cent. That under these conditions the restriction would be regarded as illegal seems to accord with the generally accepted doctrine that a restriction will be pronounced illegal at any stage, though at the time harmless, if it appear that in the natural course of events it will develop into a restriction harmful, considered by itself; in other words, if its tendency is to become actually harmful.27 This seems, however, to be a rather loose 27 Northern Securities Co. v. U. S., 193 U. S. 197, 332; 24 Supm. 436, 454; 48 L. Ed. 679 (1904); Chesapeake & O. Fuel Co. v. U. S., 115 Fed. 610, 623; 53 C. C. A. 256, 269 (6th C., 1902); Bobbs-Merrill Co. v. Straus, 139 Fed. 155, 192 (C. C. N. Y., 1905); Arnold v. Jones Cotton Co., 152 Ala. 501; 44 So. 662; 12 L. R. A. N. S. 150 (1907); Flower v. Smith Lumber Co., 47 So. 1022 (Supm. Ct. Ala., 1908); State ex rel. v. Portland Natural Gas & Oil Co., 153 Ind. 483; 53 N. E. 1089; 53 L. R. A. 413; 74 Am. St. Rep. 314 (1899). See Clark v. Needham, 125 Mich. 84; 83 N. W. 1027; 51 L. R. A. 785; 84 Am. St. Rep. 559 (1900). In Harding v. American Glucose Co., 182 Ill. 551, 615; 55 N. E. 577, 598; 64 L. R. A. 738, 763; 74 Am. St. Rep. 189 (1899), it was stated as the test whether the "necessary consequence" "is the controlling of prices, or limiting of production, or suppressing of competition, in such a way as thereby to create a monopoly." The doctrine stated in the text seems to be the true ground of the decision in More v. Bennett, 140 Ill. 69, 80; 29 N. E. 888, 891; 15 L. R. A. 361, 364; 33 Am. St. Rep. 216, 220 (1892), where an association of stenographers in Chicago was held illegal as having for its object the prevention of competition, notwithstanding that but a small portion of the law stenographers in the city belonged to the association. The court said: "True, the restraint is not so far-reaching as it would have been if all the stenographers in the city had joined the association, but, so far as it goes, it is precisely of the same character, produces the same results, and is subject to the same legal objection." See also Chicago, Wilmington, etc., Coal Co. v. People, 214 Ill. 421, 452; 73 N. E. 770, 780 (1905). So in Slaughter v. Thacker Coal & Coke Co., 55 W. Va. 642; 47 S. E. 247; 65 L. R. A. 342; 104 Am. St. Rep. 1013 (1904), of an agreement among coal companies operating in the same vein by which they appointed a common agent to sell at uniform prices. They were referred to in the opinion as being only "three small companies out of the vast and elastic doctrine, perhaps dangerously so.28 The possibilities of its application are numerous and the determination of the question of legality in any particular instance must depend largely on the circumstances of the case. In applying this doc number of coal producing companies in the State," and the quantity of coal put upon the market by them was said to be "an utterly insignificant portion of the vast quantities thrown upon the market by the numerous competing producers." Pocahontas Coke Co. v. Powhatan Coal & Coke Co., 60 W. Va. 508, 531; 56 S. E. 264, 273; 10 L. R. A. N. S. 268, 285; 116 Am. St. Rep. 901 (1907), seems to go very far in applying this doctrine. Here was held established the existence of an illegal combination among corporations, producers of coke, against the objection thus stated, it being regarded as a sufficient answer that "it is not essential that the monopoly be complete before it is illegal": "It does not appear what part or per cent. of the total production of the P. coal field is produced by the 20 corporations. It is said that together they may produce only one per cent. of the total production of the field." In Stockton v. Central R. R. Co. of N. J., 50 N. J. Eq. 52, 81; 24 Atl. 964, 975; 17 L. R. A. 97, 109 (1892), where a lease between railroad companies was held unlaw 28 See drastic criticism in 1 Eddy on Combinations, § 553. A decided tendency to reaction against such doctrine may be apparent in Monongahela River Consolidated Coal & Coke Co. v. Jutte, 210 Pa. St. 288; 59 Atl. 1088; 105 Am. St. Rep. 812 (1904), where, considering the extent of the operations involved, it ful as part of a scheme to secure a monopoly of the Pennsylvania anthracite coal traffic, it was said: "It is true, co-operation of the remaining coal roads, which is necessary to a complete monopoly, has not yet been secured. By this lease only one competitor is silenced, and only a little more than one-half of the entire coal region is controlled. It is only the second step in the direction of monopoly, the first being the lease of the L. V. railroad. It is to be remembered, however, that the attorney-general may have his injunction when the ultra vires act tends, or is of a nature, to produce public injury. He is not required to wait until all the monopoly possible is created, or until all the injury possible is in process of infliction." See, however, Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507; 43 Atl. 723; 46 L. R. A. 255; 78 Am. St. Rep. 612 (1899); reversing 56 N. J. Eq. 680; 39 Atl. 923 (1898). In Anheuser-Busch Brewing Assoc. v. Houck, 27 S. W. 692 (Tex. Civ. App., 1894); affirmed as Houck v. Anheuser-Busch Brewing Assoc., 88 Tex. 184; 30 S. W. 869 is difficult to see how, consistently with the weight of authority, the court reached the conclusion that there was no intention to obtain exclusive possession of the commodity in question. Moreover, as will be seen infra, even if there was an absence of such intention, that circumstance was not conclusive. trine, great weight will be given to the presumption, derived from common observation, of the tendency of an individual to promote his own interests, even at the expense of the public interest.29 The doctrine may apply even although at a given (1895), a combination to control the supply of beer was held illegal, notwithstanding testimony that its only object and effect were to reduce expenses. So, in People ex rel. v. Chicago Gas Trust Co., 130 Ill. 268, 291; 22 N. E. 798, 802; 8 L. R. A. 497, 504; 17 Am. St. Rep. 319, 331 (1889), where holding of stock by one corporation in others, was held illegal as enabling it to control them and establish a monopoly, the court said: "The question is not whether it has attempted to exercise such control; the law looks to the general tendency of the power conferred." The doctrine stated in the test is frequently sought to be declared by statute; as witness, in the antitrust acts (see c. XX), the use, with reference to restrictions upon competition, of such expressions as "with a view," "intended," "tend,” "with the intent," "designed," “intended to have the effect," "having for its object," "attempt," "reasonably calculated to produce." In Swift v. U. S., 196 U. S. 375, 396; 25 Supm. 276, 279; 49 L. Ed. (1905), in holding a scheme as a whole unlawful under the Federal 29 Thus, it was said in Stockton v. Central R. R. Co. of N. J., 50 N. J. Eq. 52, 84; 24 Atl. 964, 976; 17 L. R. A. 97, 110 (1892): "It is possible that such a monopoly may be used as the defendants suggest, to introduce economies and cheapen coal, but it does violence to our knowledge of human nature anti-trust act, against the objection that the several acts charged were lawful and that intent could make no difference, it was said: "Intent is almost essential to such a combination (i. e., in restraint of commerce), and is essential to such an attempt (i. e., to monopolize commerce). Where acts are not sufficient in themselves to produce a result which the law seeks to prevent for instance, the monopolybut require further acts in addition to the mere forces of nature to bring that result to pass, an intent to bring it to pass is necessary in order to produce a dangerous probability that it will happen. But when that intent and the consequent dangerous probability exist, this statute, like many others, and like the common law, in some cases, directs itself against that dangerous probability as well as against the completed result." To like effect, Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 109; 29 Supm. 220, 226 (1909), which see (also § 232), as to constitutional objections to prohibitions against acts "reasonably calculated" or "tending" to produce restrictions upon competition. to expect such a result." So in People v. North River Sugar Refining Co., 54 Hun, 354, 379; 7 N. Y. Suppl. 406, 411; 5 L. R. A. 386, 389 (1889). "Where the effect of the arrangement is to permanently secure the control, or the substantial control, of this product and of its sale, as that has been done, it 137, 186; 30 N. E. 279, 290; 15 L. R. A. 145, 159; 34 Am. St. Rep. 541, 553 (1892), the "Standard Oil Trust" was condemned, even conceding that it had improved the quality, and cheapened the cost of petroleum and its products to the consumer. This decision was approvingly cited on this point in Trenton Potteries Co. v. Oliphant, 56 N. J. Eq. 680, 736; 39 Atl. 923, 944 (1898). See also San Antonio Gas Co. v. State, 22 Tex. Civ. App. 118, 125; 54 S. W. 289, 293 (1899). In U. S. v. Coal Dealers' Assoc., 85 Fed. 252, 264 (C. C. Cal., 1898), a combination to fix the price of coal was held illegal, against the contention that it was beneficial in protecting consumers from the dishonest methods of some dealers, and protecting wholesale dealers in enabling them to collect their bills from retail dealers. See also note 31, infra. stage the restriction is actually beneficial, for the inquiry will not be limited to that stage, but the restriction will be pronounced illegal, if its remote and permanent, as distinguished from its immediate and temporary, effects, promise to be harmful.30 Thus, while the raising of prices may not be an immediate and temporary effect, it may be a remote and permanent effect. 31 Nor will so uncertain an element as the intent of the is no more than just to infer that the control is to be used to avoid competition and enhance prices, and in that manner, as it is the ordinary expedient for that end, promote the interests and add to the profits of the associates." See also State ex rel. v. Standard Oil Co., infra. But a different view was taken in Central Shade Roller Co. v. Cushman, 143 Mass. 353; 9 N. E. 629 (1887), sustaining a combination among the principal dealers in a commodity, who substantially supplied the market. The court said: "We cannot assume that the purpose and effect of the combination are to unduly raise the price of the commodity. A natural purpose and a natural effect are to maintain a fair and uniform price and to prevent the injurious effects, both to producers and customers, of fluctuating prices, caused by undue competition. When it appears that the combination is used to the public detriment, a different question will be presented from that now before us. The contract is apparently beneficial to the parties to the combination, and not necessarily injurious to the public, and we know of no authority or reason for holding it to be invalid, as in restraint of trade or against public policy." 30 Thus notably in State ex rel. v. Standard Oil Co., 49 Ohio St. 31 Thus, restrictions were condemned, notwithstanding that they had resulted in lowering prices, in Richardson v. Buhl, 77 Mich. 632, 660; 43 N. W. 1102, 1111; 6 L. R. A. 457, 466 (1889); Hunt v. Riverside Co-operative Club, 140 Mich. 538; 104 N. W. 40; 112 Am. St. Rep. 420 (1905); Strait v. National Harrow Co., 18 N. Y. Suppl. 224 (Supm. Ct., Sp. T., 1891). See Chicago, Wilmington, etc., Coal Co. v. People, 114 Ill. App. 75, 106 |