(dissenting).
On appellee’s motion for rehearing, Mr. Justice YOUNG dissenting to our original opinion, Mr. Justice CRAMER concurring, the dissent therefore becomes the opinion of this court affirming the judgment of the trial court; and the writer adhering to our former decision, such becomes his dissent, adopting the reasons and conclusions therein, thus reversing and remanding the case for trial on the merits.
The gist of the offense, as seen from appellant’s pleading, is the combination, and the overt acts are only evidentiary of such combination. Neither the statutes nor the decisions of this State provide that the overt acts are necessary for the completion of the statutory prohibition. The substance of the prohibition of the statute is complete when the contract or conspiracy is entered into. It is an independent wrong for which the parties can be prosecuted under the statutory remedies. Rice v. State, 121 Tex.Cr.R. 68, 51 S.W.2d 364. The prohibition is more succinctly stated in the case of Short v. United States, 4 Cir., 91 F.2d 614, 621, 112 A.L.R. 969, wherein it is stated that “the crime is the conspiracy and not the overt act.”
In some jurisdictions there is a statutory requirement that an overt act be proved. Even in those cases, it is held that the overt act proved need not even be unlawful, so long as it is done pursuant to such a combination as would amount to a conspiracy in law. 6 Am.Eng.Ency. of Law 837. Therefore when the appellees entered into the combination that created or tended to create a restriction in the free pursuit of the business of constructing municipal electric light and power systems, die prohibition of the statute was effectively completed. It naturally follows that it is not material to the pleadings of the appellant that the acts done pursuant to the conspiracy were lawful or unlawful.
The act of the engineer Gieb in seeking and obtaining employment by the municipalities, or his acts in preparing the plans and specifications, the acts of Fairbanks-Morse in selling its engines to Universal Electric Company of Alabama, or the acts of Universal Electric in buying its engines only from Fairbanks-Morse, or in accepting the bonds in payment for its construction work, are each and all lawful. However, these do not constitute a defense to the prohibition of the statute. The gravamen of the offense is not the performance of the individual acts of the conspirators, which acts may be lawful in themselves, but the conspiracy, understanding, and agreement to combine their capital, skill or acts for the purpose of carrying out restrictions in the lawful pursuit of lawful businesses; that is, of competitive bidding on the construction of municipal electric light and power plants as alleged.
On appellant’s contention that the trial court erred in overruling their plea to the jurisdiction as to Fairbanks-Morse, it being a foreign corporation, abridges its right to interstate commerce because of which the United States 'Court has jurisdiction over the subject matter in suit. The trial court, on hearing of Fairbanks-Morse’s plea in abatement, overruled the contention, finding that Fairbanks-Morse maintained no plants for the production of engines within this State, and that it manufactured all of its engines outside of the State of Texas and shipped them into Texas in interstate commerce, but that such interstate commerce was merely incidental to the unlawful transactions alleged in plaintiff’s pleadings. This holding of the trial court was proper; and the majority in affirming the judgment of the trial court impliedly approved such finding. The question here involved is not the manufacture and sale of engines in Texas, but is the formation of the conspiracy to restrict the free pursuit of the business of the construction of municipal electric light and power plants in *661Texas. The matter of manufacturing- and shipping of the engines was but incidental to the accomplishment of the essential purposes of the conspiracy. As above pointed out, the conspiracy is the gravamen of the offense charged in the State’s pleadings, not the carrying on of its business of the manufacture of engines and their shipment into Texas. The Fairbanks-Morse corporation is doing business in this State under a duly authorized permit, and at the time complained of in this suit, is alleged to have entered into the unlawful combination in restraint of trade in this State, a violation of the laws of this State. The corporation, therefore, is amenable to the laws of this State, and the courts of this State have jurisdiction of plaintiff’s suit. The suit of the State in no way interferes with the defendant’s lawful pursuit of its business of manufacture and sale of engines.
Appellees cite the cases of Glass v. Hoblitzelle, Tex.Civ.App., 83 S.W.2d 796; Albertype Co. v. Gust Feist Co., 102 Tex. 219, 114 S.W. 791; and York Mfg. Co. v. Colley, 247 U.S. 21, 38 S.Ct. 430, 62 L.Ed. 963, in support of the proposition that the allegations of the State’s petition involve matters in interstate commerce, and that the courts of this State do not, therefore, have jurisdiction of this case. A careful reading of these decisions will disclose that they are not in conflict with the principle above announced, but, in fact, are authority therefor. At page 799 of 83 S.W.2d in the Hoblitzelle case, the court says: “There was no inherent and intrinsic relation between the undertaking of the company to manufacture the films, and to ship them to Lubbock, and the company’s undertaking to publicly exhibit the films in the theaters at Lubbock. The matter of manufacturing and shipping the films was but incidental to the accomplishment of the essential purpose of the contract; namely, the advertising at Lubbock, the business of Ligón, by the use of the films. The circumstance that interstate commerce was involved in the manufacture and shipment of the films does not alter the intrastate character of the public exhibition of the advertising matter contained in the films.”
I feel that the opinion in the Hoblitzelle case and the authorities there cited support the ruling of the trial court on the plea to the jurisdiction that the manufacture by Fairbanks-Morse of engines used in the construction of municipal electric light and power plants' alleged in the State’s petition, outside the state and shipping them in interstate commerce into this State is but incidental to the essential purpose of the offense alleged in the State’s petition, to-wit, that the conspiracy between the various appellees created or carried out restrictions in the free pursuit of a business authorized or permitted by the laws of this State.
A careful reading of the York Mfg. Co. case will disclose the same distinguishable feature pointed out by the court in the Hoblitzelle case, that is, that the subject matter of the contract involved was the sale of the refrigeration machinery and the installation was incidental to such sale. Here we have the exact reverse, even though the manufacture and sale of the engines by Fairbanks-Morse & -Co. be interstate commerce, the offense alleged in the State’s petition is the primary question at issue here and the sale of the engines is but incidental to the violation of the Anti-Trust Laws of this State by the conspirators acting entirely, wholly and solely within this State. I do not see how the Albertype case has any application to the question here involved for the reason that Albertype case simply involves the construction of a contract between a citizen of New York and a citizen of Texas to ship albums manufactured in New York to Texas for use by such citizen in Texas. We are not here dealing with a contract to manufacture engines outside of Texas, and ship them into Texas for resale in Texas, but are dealing with an alleged conspiracy to prevent or lessen competition and to create and carry out restrictions in the free pursuit of the business of the construction and installation of municipal electric light and power systems in Texas.
Carefully and thoughtfully have I considered all of appellees’ counter-points of error; and finding no merit in any of them, therefore, appellant’s contentions should be *662sustained and the judgment of the trial court reversed and cause remanded to the trial court to be tried on the merits. I respectfully dissent to the majority affirming the judgment of the trial court.