parties to the restriction be considered, the test being rather whether, under the circumstances, the opportunity exists for them to create, as a remote and permanent effect, a harmful restriction. 32 (1904). Richardson v. Buhl was approvingly cited on this point in Trenton Potteries Co. v. Oliphant, 56 N. J. Eq. 680, 736; 39 Atl. 923, 944 (1898). Compare U. S. v. Swift, 122 Fed. 529, 534 (C. C. Ill., 1903). So, in the absence of proof that unreasonable prices resulted. Anderson v. Jett, 89 Ky. 375; 12 S. W. 670; 6 L. R. A. 390 (1889); Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666 (1880); Hoffman v. Brooks, 23 Am. Law Reg. (N. S.) 648 (Super. Ct. Cin., 1884); People v. Sheldon, 139 N. Y. 251; 34 N. E. 785; 23 L. R. A. 221; 36 Am. St. Rep. 690 (1893); Cohen v. Berlin & Jones Envelope Co., 166 N. Y. 292, 304; 59 N. E. 906, 910 (1901). See also Addyston Pipe & Steel Co. v. U. S., 175 U. S. 211, 238; 20 Supm. 96, 106; 44 L. Ed. 136 (1899); John D. Park & Sons Co. v. Hartman, 153 Fed. 24, 45; 82 C. C. A. 158, 179; 12 L. R. A. N. S. 135, 150 (6th C., 1907); Brown v. Jacobs Pharmacy Co., 115 Ga. 429, 435, 436; 41 S. E. 553, 555, 556; 57 L. R. A. 547, 551; 90 Am. St. Rep. 126 (1902); Heim Brewing Co. v. Belinder, 97 Mo. App. 64, 68; 71 S. W. 691, 692 (1902). So, in People v. Milk Exchange, 145 N. Y. 267, 274; 39 N. E. 1062, 1064; 27 L. R. A. 437, 441; 45 Am. St. Rep. 609 (1895), where a combination to control the price and supply of milk was held illegal, it was said: "It may be claimed that the purpose of the combination was to reduce the price of milk, and that, it being an article of food, such reduction was not against public policy. But the price was fixed for the benefit of the dealers, and not the consumers, and the logical effect upon the trade of so fixing the price by the combination, was to paralyze the production and limit the supply, and thus leave the dealers in a position to control the market, and at their option to enhance the price to be paid by the consumers." See also Gibbs v. McNeeley, 118 Fed. 120, 123; 55 C. C. A. 70, 73; 60 L. R. A. 152, 155 (9th C., 1902); Harding v. American Glucose Co., 182 Ill. 551, 620; 55 N. E. 577, 600; 64 L. R. A. 738, 765; 74 Am. St. Rep. 189 (1899); Chicago, Wilmington, etc., Coal Co. v. People, 114 Ill. App. 75, 106 (1904). As to prohibition in Texas act against combination for "increasing or reducing" prices, see San Antonio Gas Co. v. State, 22 Tex. Civ. App. 118; 54 S. W. 289 (1899). 32 Thus, in Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173, 184; 8 Am. Rep. 159, 162 (1871), the agreement was held void, notwithstanding the claim that "its true object was to lessen expenses, to advance the quality of the coal, and to deliver it in the markets it was to supply, in the best order, to the consumer." So, in Hooker v. Vandewater, 4 Denio (N. Y.), 349; 47 Am. Dec. 258 (1847), of an agreement professedly "for the purpose of establishing and maintaining fair and uniform rates of freight and equalizing the business among § 122. Prospect of competition.-There are few, if any, cases in which, however complete may be a restriction upon competition, the prospect of competition is entirely absent. All existing coal mines, for instance, may be under a single con themselves, and to avoid all unnecessary expense." So, where it was conceded that one of the purposes was "to enable the parties to obtain reasonable prices." Cummings v. Union Blue Stone Co., 164 N. Y. 401; 58 N. E. 525; 52 L. R. A. 262; 79 Am. St. Rep. 655 (1900). So, in U. S. V. Trans-Missouri Freight Assoc., 166 U. S. 290; 17 Supm. 540; 41 L. Ed. 1007 (1897), of an agreement professedly "for the purpose of mutual protection by establishing and maintain`ng reasonable rates, rules and regulations on all freight traffic, both through and local." See also Chesapeake & O. Fuel Co. v. U. S., 115 Fed. 610, 623; 53 C. C. A. 256, 269 (6th C., 1902); U. S. v. American Tobacco Co., 164 Fed. 700, 721 (C. C. N. Y., 1908); Stewart v. Stearns & Culver Lumber Co., 48 So. 19, 26 (Supm. Ct. Fla., 1908); Chicago, Wilmington, etc., Coal Co. v. People, 114 Ill. App. 75, 100 (1904); State ex inf. Crow v. Firemen's Fund Ins. Co., 152 Mo. 1, 42; 52 S. W. 595, 607; 45 L. R. A. 363, 375 (1899); Heim Brewing Co. v. Belinder, 97 Mo. App. 64, 69; 71 S. W. 691, 692 (1902); Judd v. Harrington, 139 N. Y. 105; 34 N. E. 790 (1893); Kellogg v. Sowerby, 190 N. Y. 370; 83 N. E. 47 (1907); Nester v. Continental Brewing Co., 161 Pa. St. 473; 29 Atl. 102; 24 L. R. A. 247; 41 Am. St. Rep. 894 (1894); State v. Virginia-Carolina Chemical Co., 71 S. C. 544, 562; 51 S. E. 455, 462 (1905); San Antonio Gas Co. v. State, 22 Tex. Civ. App. 118, 125; 54 S. W. 289, 293 (1899); Charleston Gas Co. v. Kanawha Gas Co., 58 W. Va. 22; 50 S. E. 876; 112 Am. St. Rep. 936 (1905); Pocahontas Coke Co. v. Powhatan Coal & Coke Co., 60 W. Va. 508, 529; 56 S. E. 264, 273; 10 L. R. A. N. S. 268, 284; 116 Am. St. Rep. 901 (1907). A fortiori, in case of a mere absence of expression of intention to create a restriction upon competition. People v. North River Sugar Refining Co., 54 Hun, 354, 374, 376; 7 N. Y. Suppl. 406, 410; 5 L. R. A. 386, 389 (1889); Bailey v. Master Plumbers, 103 Tenn. 99; 52 S. W. 853; 46 L. R. A. 561 (1899). See also Addyston Pipe & Steel Co. v. U. S., 175 U. S. 211, 243; 20 Supm. 96, 108; 44 L. Ed. 136 (1899). But in MacGinniss v. Boston, etc., Consolidated Copper, etc., Mining Co., 29 Mont. 428; 75 Pac. 89, 96 (1904), where constitutional and statutory provisions against a trust, etc., for the purpose of fixing price, etc., were held not to apply in the absence of "a criminal intent to evade or transgress" such provisions, reference was made to the doctrine of some courts that "the mere possession of power by a combination of corporations or associations, or persons, to injuriously repress competition, to regulate production, and fix prices, is against public policy," and it was said that an examination of such cases "will reveal the fact that in each particular case before the court for consideration, it appeared either from the fact proved or admitted trol, but there remains the prospect of the discovery of other and competing mines. It would seem that insufficient effect has, as a rule, been allowed to such prospect of competition.33 A distinction might, perhaps, well be taken between, for instance, perishable articles, and articles of permanent value, so between or from the terms of the contract itself, that the defendants entertained and were pursuing the unlawful purpose." And see Swift v. U. S., note 27, supra. 33 In Tuscaloosa Ice Manuf. Co. v. Williams, 127 Ala. 110; 28 So. 669; 50 L. R. A. 175; 85 Am. St. Rep. 125 (1900), an agreement that had the effect of suppressing competition between the only two parties engaged in supplying ice within a region of 7,000 inhabitants, was condemned, notwithstanding the possibility of competition by other parties, and the circumstance that such competition did actually soon arise. In U. S. v. Addyston Pipe & Steel Co., 85 Fed. 271, 284; 29 C. C. A. 141, 153; 46 L. R. A. 122, 132 (6th C., 1898), it was intimated that the illegality of even a local monopoly is not removed by the circumstance that by reason of outside competition it is purely temporary. The court said: "The public interest may suffer severely while new competition is slowly developing." See comments therein on Wickens v. Evans, 3 Younge & J. 318 (1829). In Stewart v. Stearns & Culver Lumber Co., 48 So. 19, 26 (Supm. Ct. Fla., 1908), where the restriction was in the business of conducting a general store in a village (see § 173), it was said: "The inhabitants of a village have a right to protection from injurious restraint of trade and monopoly in useful commodities in the village without reference to the opportunities af forded for obtaining the commodities in a neighboring town." In Continental Securities Co. v. Interborough Rapid Transit Co., 165 Fed. 945, 956 (C. C. N. Y., 1908), where was held to exist a monopoly in the business of railroad transportation in New York city (see § 224), though it did not appear that the members of the combination had obtained exclusive franchises for the construction and operation of railroads in the territory affected, or that such franchises were not obtainable or might not be obtained in the future, it was said: "Within the strict definition of 'monopoly,' if it be that a monopoly must include all present existing means of carrying on a business or doing a particular thing generally, or in a particular place or locality, and the right to possess, or own, or control all means for doing that thing in that place in the future, no monopoly has been created." But some effect seems to have been allowed to the prospect of competition in Francis v. Taylor, 31 Misc. 187; 65 N. Y. Suppl. 28 (Supm. Ct., Sp. T., 1900), where, in answer to the objection that a combination between two corporations (the Wagner and Pullman "palace car companies") would create a great monopoly, the court said: "The plan in question in no way involves any restraint upon others from freely engaging in the same kind of business." In Kellogg v. Larkin, 3 Pinney (Wis.), 123, articles that are, and those that are not, susceptible of indefinite production, as witness the distinction between certain rare natural products and ordinary manufactured articles.34 Moreover, it would seem that some consideration might well be given to the vast improvements in facilities for transportation that tend to practically annihilate distance between localities. 35 § 123. Forestalling; ingrossing; regrating.-Although, as already seen, the modern condemnation of restrictions upon competition resulting from acts of individuals is merely by way of extension of the condemnation originally limited to monopolies 147; 56 Am. Dec. 164, 177 (1851), where an agreement to secure to certain parties the "control of the Milwaukee wheat market" was held not illegal as tending to "reduce the price of wheat below its actual market value," the court said: "Wheat, being an article of almost universal consumption, has a market everywhere and a value in every market. And that value in any particular place is determined less by the number of purchasers in that place, than by its distance from and means of communication with the great central markets of the country and of the world." 34 In People v. North River Sugar Refining Co., 54 Hun, 355, 377; 3 N. Y. Suppl. 401, 413; 2 L. R. A. 33, 42 (1889), it was said that the definition of monopoly is "applicable to every monopoly, whether the supply be restricted by nature or susceptible of indefinite production. The difficulty of effecting the unlawful purpose may be greater in one case than in the other, but it is never impossible." But in Booth v. Seibold, 37 Misc. 101; 74 N. Y. Suppl. 776 (Supm. Ct., Sp. T., 1902), no illegal restriction was held to result from a contract relating to fish, "a commodity which is practically limitless, and to be had for the catching, not only in the sea, but in all of our freshwater lakes and rivers." See remarks of Lacombe, J., in Dueber Watch-case Manuf. Co. v. Howard Watch & Clock Co., 66 Fed. 637, 644; 14 C. C. A. 14, 21 (2d C., 1895), as to a combination among makers of watch-cases, distinguishing Arnot v. Pittston & Elmira Coal Co., 68 N. Y. 558; 23 Am. Rep. 190 (1877), as a case where the region of the production of the commodity in question (anthracite coal) was known to be limited. 35 In Tuscaloosa Ice Manuf. Co. v. Williams, note 33, supra, where the contention that ice could be brought from other places was overruled, the court said: "The position is exceedingly nude and bald, when taken in respect of a commodity like ice or water, the chief cost of which, apart from the plant for its manufacture or collection, is in the transportation to the consumer; and it may be safely said that an ice factory in a town beyond the ordinary reach of delivery wagons from another town has a monopoly of the ice business in that town." created by the crown, the methods employed by those engaged in restriction upon competition more nearly resemble those employed by those formerly engaged in what was known as forestalling, ingrossing and regrating. "Forestalling, ingrossing and regrating was the offense of buying up large quantities of any article of commerce for the purpose of raising the price. The forestaller intercepted goods on their way to market and bought them up, so as to be able to command what price he chose when he got to the market. The ingrosser or regratorfor the two words had much the same meaning-was a person who, having bought goods wholesale, sold them again wholesale. This was regarded as a crime." 36 If now the illegality of these practices clearly rested on common law grounds, there would be much plausibility in the view that the modern condemnation of restrictions upon competition resulting from acts of individuals is merely by way of extension of the condemnation of such practices.37 As it is, it seems, to say the least, by no means clear that the illegality thereof did not rest on statutory grounds. 38 The question whether they did or not 36 3 Stephen's History of the Criminal Law of England, c. 30, p. 199. See also 3 Coke's Institutes, c. 89. These offenses are said, in 2 Wharton's Criminal Law (10th Ed.), § 1849, to have been taken from the Roman law. It will be noted that these offenses could be committed by a single individual. In Pettamberdass v. Thackoorseydass, 7 Moore P. C. C. 239, 262 (1850), it was said that "ingrossing can be committed only with respect to the necessaries of life"; and see article in 7 Harv. Law Rev. 338, 344 (1894) by W. F. Dana. As to prohibition thereof by municipal ordinance, see Dutton v. Mayor, etc., of Knoxville, 113 S. W. 381 (Supm. Ct. Tenn., 1908). 37 For an expression of such view, see, for instance, Queen Ins. Co. v. State, 86 Tex. 250, 269; 24 S. W. 397, 403; 22 L. R. A. 483, 493 (1893). See also State v. Eastern Coal Co., 70 Atl. 1 (Supm. Ct. R. I., 1908). In Oliver v. Gilmore, 52 Fed. 562, 565 (C. C. Mass., 1892), a case of an agreement to close manufacturing works, it was said that "the contract would seem to be in violation of the old rules of the common law (i. e., against forestalling and ingrossing), intended to prevent the gathering up of the control of commodities into few hands." But query in the absence of evidence tending to show monopoly? 38 See as to such statutes, Queen Ins. v. State, supra. See, on the general question whether such acts were illegal at common law, articles in 3 Pol. Sci. Quart. 592, 609 (1888) by T. W. Dwight; 29 Law Mag. & Rev. |