(concurring). — In my opinion the Legislature has the power and authority to control all the pleadings and procedure in this court the same as it has in the circuit courts, and it is wholly immaterial whether it pertains to proceedings in quo warranto, other original writs, or any other matters intrusted to the keeping of this court by the founders thereof.
The cases cited by Brother Bond ón page 1 O'- of his dissenting opinion (p. 168, post) do not, in my opinion, announce a contrary doctrine, and therefore, do not support the proposition that the Legislature has no such authority.
No such question was involved, considered or discussed in any of those cases, except by way of illustration, and that was against my learned brother’s contention.
The question there decided was whether or not the statutes mentioned in those cases applied to the pleadings and practice in the Supreme Court, and not that the Legislature had no authority to enact laws governing those matters, if in its wisdom it deemed it wise to so do.
In the discussion of this subject, Judge Napton, in the case of State ex rel. v. Stewart, 32 Mo. 379, l. c. 383, by way of obiter, expressly declares the law to be contrary to the doctrine announced by my learned associate, Judge Bond. The ruling of this court, as announced in that case by Judge Napton is expressed in the following language:
“There is no doubt that this court is mainly intended by the Constitution as an appellate tribunal. In some instances original jurisdiction has been given to it, but chiefly with a view to enable it to exercise more effectually its superintending control over inferior courts. Its power in proceedings in quo warranto seems to be a departure from the general policy *154evinced in the construction of the court. Whether this jurisdiction was designed to extend to that class of in-formations which, under the English Statutes, had become essentially civil actions, commenced and conducted in the name of a public officer, but really for the mere ascertainment and' settlement of private rights, is a question which might justify some hesitation and consideration, if it were necessary now to determine it. The Legislature, it is .certain, has furnished this court with none of the machinery for trying issues in fact, and in practice such trials are altogether without precedent. These informations are attended with all the forms and must progress through all the stages incident to any other writ. There are pleas and demurrers, issues in law and in fact, trials by jury, motions for new trials in arrest of judgment, and writs of error. The issue of fact by the common law must be tried in the county where the franchise is situated. [Tancred, p. 3; Ang. & A. on Corp., p. 870, sec. 762.] If such a proceeding is entertained by this court, it must be conducted solely according to the forms of the common law, for neither the statute of W. & M. nor of Anne is in force here; nor does our own statute apply to the Supreme Court,' but is exclusively confined to the circuit courts.”
. This language clearly recognizes the power of the Legislature to control the pleadings and practice of this court in proceedings of this character, should it deem it wise to do so.
The Stewart case just mentioned was cited with approval by this court in the case of State ex rel. v. Job, 205 Mo. 1, l. c. 25, where the court, in speaking through Fox, P. J., said:
“It is insisted by learned counsel for appellants that the relators were entitled to judgment of ouster by reason of the failure of respondents to answer on October 3, 1903, and it is urged that no sufficient answer or return was made to this proceeding until Jan-*155nary 25, 1904. In support of this insistence our attention is directed to State ex inf. v. Vallins, 140 Mo. 523. In response to this contention it is sufficient to say that a complete answer to the contention is found in State ex inf. v. Beechner, 160 Mo. l. c. 86. That case clearly marks the distinction between informations in the nature of quo warranto at the relation of a private person by leave, and proceedings by quo warranto instituted by the Attorney-General by virtue of his office. It was there expressly ruled that since 1855 there has been no difference in the rules applicable to filing of amended returns and answers in proceedings of this character in the circuit court, and the right to amend an answer in any kind of a civil suit. In pointing out the distinction it was there said: ‘ The plaintiffs rely upon State ex informatione Crow, Attorney-General, v. Vallins, 140 Mo. 523, and argue that it was there held that no amendment in a quo warranto proceeding was allowable. But the case at bar is very different from the Vallins case. This is a proceeding in the nature of a quo warranto at the relation of a private citizen, begun in the circuit court, whereas the Vallins case was a proceeding by quo warranto instituted by the Attorney-General ex officio in this court. This case could only be filed by leave of court, is controlled by the quo luarranto statute, and the statute relating to the amendments in civil cases in a circuit court. The Vallins case was filed by the Attorney-General ex officio in this court, without leave, as he had a right to do, was a proceeding by quo warranto, which this court had' a right under the Constitution to issue, was controlled by the common law practice in ex officio cases of quo warranto, was not affected by the statute in relation to amendments, for as was shown in the Stewart case (State ex rel. v. Stewart, 32 Mo. 379) that statute applies only to circuit courts and not to this court, and therefore no amendment was permissible in that case. ’ ’ ’
*156The other cases cited in the dissenting opinion, as previously stated, have no application to the proposition in hand.
Prom these observations it is clearly to be seen that the cases cited do not support the doctrine that the Legislature is powerless to control the pleadings- and procedure in this court.
But upon principle, the mere fact that this court has authority to issue original writs, as I understand Judge Bond to contend, does not prohibit the Legislature from legislating upon and controlling those matters.
If that is true then by parity -of reasoning the Legislature has no authority over the pleadings and practice in the circuit courts, in that or any other re•gard, for their authority is also derived from the Constitution, sections 1 and 23 of Article 6.
“Section 1. The judicial power of the State, as to matters of law and equity except as in this Constitution otherwise provided, shall be vested in a Supreme Court, the St. Louis Court of Appeals, circuit courts, criminal courts, probate courts, county courts and municipal corporation courts. ’ ’
“Section 23. The circuit court shall exercise a superintending control over criminal courts, probate courts, county courts, municipal corporation courts, justices of the peace and all inferior tribunals in each county in their respective circuits.”
As previously stated, the cases cited by Judge Bond simply hold that the statutes there cited only applied to the circuit courts and not to the Supreme Court.
Now, if the Constitution contains no inhibition against the authority of the Legislature to control the pleadings and practice in the circuit courts, then how can it be logically contended, that it cannot control those matters in this court?
*157The authority of this and those courts to issue such writs is derived from the same authority — the Constitution — and the authority of the one is in no manner enlarged over or restricted as compared to the other; nor is the authority of the Legislature restricted in controlling the pleadings in the one any more than in the other.
If there is any difference in that regard, the authority of the circuit courts is broader because the authority conferred upon those courts to issue such writs is granted in general terms, while that of this court and the various courts of appeals is granted in specific or limited terms.
So, in my opinion, the cases cited by Judge Bond, instead of holding that the Legislature has no power to prescribe the rules of pleading's and practice in this court, are, upon the other hand, authorities to the contrary; and upon principle, as I have tried to point out, the Legislature does possess that power and authority, for the reason that this and those courts stand upon the same bottom and possess exactly the same power and authority in issuing writs of quo voarrcmto and all other original writs.
It would be a most dangerous doctrine for this court to announce that the Legislature had no power to control the rules of pleading and practice herein.
While it is true, and it must be conceded, that the Legislature has no power to shear this court of its jurisdiction over the issuance and trial of such writs, yet there is nothing in the letter or spirit of the Constitution even remotely indicating that the Legislature may not, in its wisdom, control the pleading and proT cedure in this court in such matters.
With these observations in view I now return to the statutes in question. The most casual reading of them will show upon their faces that they apply to this court as well as to the circuit courts, and no sound reason can be advanced for holding they are not binding *158upon this court as well as upon those courts. All are creatures of the Constitution, and derive their authority in that regard from the same instrument.
Qu^warranto!
II. The doctrine in the Williams case, 221 Mo. 227, is not sound, and was not followed by this Court in Banc in the case of State ex inf. v. Arkansas Lumber Co., 260. Mo. 212. The information in that case is in all respects substantially the same as is the information in this case; and also in that of the case of State ex inf. v. Standard Oil Co., 218 Mo. 1, where the same ruling was had.
In both of those cases it was held that where the information or petition for the writ charged that the conspiracy was formed for an illegal or unlawful purpose, then the facts constituting the conspiracy need not be stated, but upon the other hand, that where the conspiracy was formed for doing a lawful act in an unlawful manner, then the petition should state the facts constituting the conspiracy. This is elementary and is recognized by all of the courts on both sides of the Atlantic.
In the consideration of this question, this Court in Banc, speaking through Faris, J., in the case of State ex inf. v. Arkansas Lumber Co., 260 Mo. 212, l. c. 279, in clear and terse terms stated that rule in the following language:
“It is urg*ed by learned counsel for respondents that the above case is decisive of their, contentions upon this question in the instant case. Respondents, however, lose sight of the distinction which ought to be drawn under the law between the Missouri Pacific case, 240 Mo. 35, and the one at bar. In the Missouri Pacific case respondents were charged, in substance, with entering into an unlawful combination to do a lawful act; that is to say, an unlawful combination to fix a rate for carrying passengers not exceeding the statu*159tory rate which they were permitted by law to charge. Since by statute they might charge a maximum rate of three cents per mile for carrying a passenger, and since even pursuant to the alleged unlawful conspiracy into which it was charged they had entered, they were not seeking or conspiring to charge a rate beyond the maximum rate allowed by statute, they were endeavoring only to do a lawful act by an unlawful means. This distinction is clearly drawn in the Standard Oil case, supra, 218 Mo. l. c. 366.”
All pools, trusts and combinations mentioned in the statutes in question, in restraint of trade, etc., are unlawful, both at common law and under the statutes mentioned, and the rules of pleading prescribed in sections 10298 to 10301, Revised Statutes 1909, are in conformity with the common-law rule before stated, as has been held in this State in numerous cases.
III. Since reading the dissenting opinion, I have been convinced thereby that the penalties imposed by the majority opinion upon the respondents are excessive.
Punishment!'
As I understand the policy of the State, it is not to unjustly or oppressively penalize the business interests of its citizens, but is to protect and encourage people to come into this State, establish and conduct legitimate business herein. Of course, that does not include business transacted in violation of the laws of the State of Missouri and good morals, whether transacted by citizens of this or any other State.
In the case at bar the record shows that prior to the filing the amended -information in this case, the respondents voluntarily dissolved the National Packing Company and ceased to transact business through that medium, which was the heart of the unlawful conspiracy complained of in this case and the means through which -that conspiracy was carried into execution. This shows that the respondents had in good *160faith, prior to the filing of the amended informations in these cases, deserted the path of sin and thereby opened np the business avenues to the equal competition of all; and also enabled the consumer of this country to purchase the products of the packing house from the cheapest vendor.
Since these facts appear from the record, and that such institutions are absolutely necessary for the well ■being of the State and citizens thereof, I can see no valid reason for placing the heavy fines mentioned upon them; and so believing, I am in favor of reducing the fines imposed by the majority opinion to at least one-half of the sums stated therein.
Since the foregoing paragraph III was written, and before the majority opinion was concurred in, the fine in each case of fifty thousand dollars was reduced to twenty-five thousand dollars against each defendant, in accordance with my suggestion. I therefore concur in the majority opinion.
I.