(concurring). The construction given the first section of the anti-trust law of 1905 in Hartford Insurance Co. v. State, 76 Ark. 303, in my opinion renders the whole act unconstitutional. The offense, or act interdicted by the law, is the “being,” “creating,” “entering into,” “becoming a member of,” a trust to regulate or fix prices. That is the “conspiracy to defraud” of which the parties are adjudged guilty. That is the unlawful act which subjects the parties named in the act to a penalty. If the act thus made unlawful is not committed in this State, if the trust has no reference whatever to prices in this State, and does not in any manner affect persons or property in this State, then the Legislature has no power to prohibit, or prescribe money penalties for the commission of, such acts. I care not how altruistic or philanthropic such legislation may be from the viewpoint of political doctrinaires, it is unconstitutional and void. I repeat now, I hope for the last time, what I have said twice before, that our Legislature in the anti-trust law of 1899 and 1905, never intended their enactment to have any such extra-territorial effect, and this court in my opinion, with all due respect, has not correctly construed it. See my concurring opinion in Lancashire Insurance Co. v. State, 66 Ark. 466, and my dissenting opinion in Hartford Insurance Co. v. State, 76 Ark. 303. The first sections of the anti-trust acts of March 6, 1899, and of Jan. 23, 1905, are in language almost identical and in legal effect precisely the same. We gave the correct construction and reached the correct conclusion in construing the first section of this law in Lancashire Ins. Company v. State, 66 Ark., supra.
The words “whether made in this State or elsewhere” were added to the first section of the Act of 1905 to make the language of-that act conform'to the decision of the court in Lancashire Insurance Co. v. State, 66 Ark. supra. The effect of these added words was to make any act done, no matter where, in furtherance of the conspiracy to defraud the people of Arkansas by entering into a trust to control prices in this State a violation of the law.
If the act had been framed as an exclusion statute for foreign corporations doing business in this State, .or as prescribing the terms upon which foreign corporations might be admitted to do business in the State, the lawmakers would never have embraced private individuals and domestic corporations within the provisions of the law, as framed, creating the offense, and .prescribing the pecuniary punishment thereof. We must presume that the Legislature knew that private individuals could not be punished for entering a trust beyond the limits of the State that did not affect prices in the State, and that domestic corporations could not have penalties adjudged against them for doing some act out of the jurisdiction of the State that did not affect prices in the State. Would one of our merchants in Little Rock who entered a confederation in London, England, to control the price of an article that was sold and used only in London be subject to the penalties of this law for entering such confederation? Could one of our citizens be deprived of his livelihood and of his property by execution to satisfy a judgment that might be rendered against him as a penalty for an act committed in London? Could domestic corporations be held liable, under similar circumstances, and mulcted in fines, and have their charters forfeited and their property confiscated, simply because they are creatures of the State? In my opinion, such procedure would be in derogation of charter rights, and could not be justified by any power reserved in the Legislature to “alter, revoke, or amend” the charter of domestic corporations, for charters can not only be altered, revoked, or annulled “in such a manner that no injustice shall be done to the corporators.” (Art. 12, § 6, Const. Ark. 1874.) Such procedure would be most .unreasonable and unjust to the corporators who may have invested millions in our State, ■and who at the time of the passage of the act were engaged in a perfectly legitimate business. If they are in a trust of any kind anywhere at the time of the passage of the act, although not to affect prices in this State, they are penalized under this statute, and the statute is ex post facto in that' respect. It may be impossible for them, within sixty - days, to arrange their affairs so as to come within the provisions of the act, without an absolute sacrifice or confiscation of their property, still, if they do not, they are subject to the heavy pecuniary penalties of this law. Well, if individuals and domestic corporations cannot be penalized in heavy money judgments for acts done beyond the jurisdiction of the State, under this law, neither can foreign corporations. The act should be so construed as to make the law equal and uniform in the money penalty to be adjudged against those who come within its inhibition. I have no doubt that such was the intention of the Legislature.
It must be kept in mind that in this, as well as in Hartford Insurance Co. v. State, the only judgment sought is a pecuniary penalty. It is not a proceeding to forfeit a charter, but to punish for acts done out of the State under a charter that was good when issued -and that has never been forfeited or called in question. The appeal only calls in question the validity of the pecuniary judgment. When a foreign corporation has been licensed to do business in the State, it must have the equal protection of the laws. The State can keep it out, but it cannot admit it, and permit it to remain, and at the same time subject it to money penalties that could not be imposed upon domestic corporations or individuals for the same offense. “Such (foreign) corporation shall be entitled to all rights and privileges and subject to all the penalties conferred and imposed by the laws of this State upon similar corporations formed and existing under the laws of this State.” Kirby’s Digest, § 828.
These are a few of the numerous considerations which, it seems to me, demonstrate the error in the construction given the law, and show its unconstitutionality as construed.
The provisions of the first section of the act as applicable to the classes named therein cannot be separated. This court can not enter upon the work of legislation. The provisions of the act are so interdependent that this court can not enter upon the work of classification and segregation. The first' section cannot be held constitutional as applied to individuals and domestic corporations, and therefore it cannot be held constitutional when applied to foreign corporations. See American Smelting & Refining Co. v. Colorado, 204 U. S. 103.
The law, to be constitutional, must be confined in its operation to trusts that are formed in this State or elsewhere to affect prices in this State. It must be presumed that the Legislature intended to act within its jurisdiction, that it intended to benefit the people of the State by laws that would protect them from dishonest, unjust and oppressive combinations in restraint of trade, and confederations and monoplies designed to fix, control, and regulate the price of some commodities essential to the life, comfort and happiness of the people.
The language of the law,’ in my opinion, does not warrant a construction that puts the Arkansas Legislature in the unenviable attitude of driving from our State those individuals and corporations who would come here and, by engaging in competitive business, lower the price of the various articles enumerated in the statute. I am unwilling to convict the Legislature of the unwisdom involved in a policy that can but bring dire disaster to the business interests of the State, and ruin to the people whom the Legislature must be presumed to have intended to benefit and protect.
The law, as construed, does not relieve the people of the necessity of buying trust-made articles, and at trust-fixed prices, but it only compels them to go into other States for them and to pay the increased cost. For 'there is no law in Arkansas that can prevent the merchants of New York, St. Louis, and Memphis, from selling our merchants and people their goods, wares and merchandise at trust-fixed prices, and there is no law, and can be none, that will prevent the insurance companies of foreign states and countries from entering into trusts and combinations to fix the rates of insurance for property elsewhere. There can be no law to prevent our people, when the exigencies of their business require, from insuring their property in old-line insurance companies that have been driven from the State. But all this adds to the burden of the people, instead of making it lighter. Hence, I still contend that this court made a great mistake in looking to executive messages, political platforms of the dominant party, and other so-called contemporaneous “history of the times,” to aid in the construction of language which in my opinion really needs no construction, but which plainly limits the operation and effect of the law to territory within the jurisdiction of the Legislature — to Arkansas. But I am powerless as an individual judge to overrule Hartford Fire Ins. Co. v. State; and, as I see nothing in sections eight and nine to render the act unconstitutional, for reasons stated by the Chief Justice, under the rule of stare decisis, I concur in the judgment only.