ON MOTION TO MODIFY JUDGMENT. Under our statutes "all arrangements, contracts, agreements, combinations or understandings" which are "made with a view to lessen" or which, in fact, tend to lessen lawful trade" or full and free competition in the . . . sale in this State of any "product, commodity or article, or thing bought and sold" or "which are designed . . . to increase, or which tend to increase, the market price of any product, commodity or article . . . bought and sold" are declared to be "against public policy, unlawful and void;" and all persons participating therein "shall be deemed and adjudged guilty of a conspiracy in restraint of trade" and subject to punishment therefor.
Under the evidence respondents have been found guilty, and the next question concerns the punishment to be inflicted. The statute (Sec. 9661, R.S. 1919) gives the courts a wide discretion in fixing punishment under Article 1, Chapter 88. [State ex inf. v. Armour Packing Co., 173 Mo. l.c. 356.] This ranges from a nominal fine to one as large as may be deemed right; or the court may declare forfeit the rights and franchises of a domestic corporation and the license of a foreign corporation, and, in addition, may confiscate to the State all or any part of the property of an offending domestic corporation and all or any part of the property, in the State, of a guilty foreign corporation.
This is not a case on appeal in which a jury's verdict includes an exercise of discretion as to the amount of punishment deserved. This court in this case is under the necessity of deciding this as well as the question of guilt or innocence. The two functions are legally separable and logically separated and require consideration of the record facts from two materially different points *Page 550 of view. This is obviously true and if it were not true the investiture of a discretion in respect to the punishment would be a manifest absurdity.
It is not until after the question of guilt or innocence has been determined that the question concerning the punishment to be inflicted can arise. It is indisputable that there may be facts which have no relevance to the issue of guilt or innocence which are pertinent to the determination of the punishment to be inflicted. The granting of discretion in fixing punishment is doubtless due in large part to this fact. In searching a record for the facts tending to prove or disprove guilt merely mitigatory circumstances are of no real consequence, and the investigating mind is not and ought not to be greatly impressed by them. They do not constitute defensive matter. They are of great consequence in the exercise of discretion in fixing punishment. Unless specifically considered with this distinction in view the tendency of the mind to reject them which was properly present when the record was read on the issue to which they are not relevant, may inadvertently project itself into the consideration of them in connection with the issue to which they are quite relevant, and their improperly diminished force will be reflected in an excess of punishment.
The cases presently to be cited demonstrate that heretofore this court has clearly had all this in mind, and the modification of its judgment in cases like this show the substantial results of reconsideration of the record in fixing punishment. In view of these things it is proper, preparatory to the final exercise of its discretion in fixing punishment in this case, that this court re-examine its precedents and read again this record with an eye single to the punishment to be fixed. The motions to modify cannot be safely ruled until this is done.
There have been a number of prosecutions for violation of the Anti-Trust Act which have been heard in this court, and it will not require much space to epitomize them. *Page 551
In State ex inf. v. Firemen's Fund Ins. Co., 152 Mo. 1, respondents were adjudged guilty of having combined to fix and maintain rates and monopolize the fire insurance business in St. Joseph, then a city of about 65,000 inhabitants. They were found to have accomplished these unlawful purposes. They constituted a formidable aggregation of capital. They were foreign companies. They habitually, methodically and knowingly violated the anti-trust law. Each was fined $1000, and the record shows judgment of ouster rendered June 30, 1899; motion for rehearing was filed July 8, 1899, and overruled July 14, 1899; motion to modify judgment of ouster sustained July 14, 1899, and ouster suspended as to each respondent upon payment of its fine of $1000, No other condition was attached. This explains the reference in State ex inf. v. Armour Packing Co., 173 Mo. l.c. 393, to the judgment in the Firemen's Fund Case as a "suspensive order."
In State ex inf. v. Armour Packing Co., 173 Mo. 356, and in State ex inf. v. Swarzschild Sulzberger Co., 173 Mo. 394, the charge was that the Armour Packing Co., Hammond Packing Co., Cudahy Packing Co., Swift Co., Armour Co., and Swarzschild Sulzberger Co. had conspired to fix and control prices of dressed beef and dressed pork and packing house products in Missouri. Respondents were found guilty of open, gross, studied and habitual violations of the statute. Each was fined $5000. Ouster was ordered stayed upon payment of fine and costs.
The respondents in State ex inf. v. Standard Oil Co. of Indiana et al., included the company named, the Waters-Pierce Oil Company and the Republic Oil Company. The Standard Oil Company of Indiana was capitalized for a large sum, but its chief significance in respect to capital employed or represented was that it was in Missouri the licensed arm of the parent corporation, the Standard Oil Company of New Jersey. The Waters-Pierce Oil Company had a capital of $3,000,000 and assets of $12,000,000. It was a Missouri *Page 552 corporation. The Republic Oil Company had a capital of $350,000, of which $60,000 was employed in Missouri. The Standard and the Waters-Pierce had divided this State between them. They did not compete. When an "independent" entered the field of either, the Republic Oil Company was "set upon" it to undersell and destroy it. The Republic Oil Company was owned by the Standard interests, and it had no other function of consequence except to pose as an independent and destroy those who had the temerity to attempt to compete with either of the two companies first named. "And when the Republic Company had sufficiently chastised the independents . . . by the reduction of prices of oils or otherwise, it would then practically retire from the field of operation and eagerly await the next combat with the independents, if, perchance, any one of them was so (sic) timorous as to challenge the monopoly of those two companies by seeking a portion of their trade." [218 Mo. l.c. 445.] This court fined each of the respondents $50,000, and suspended the ouster as to the Standard and Waters-Pierce companies. [218 Mo. 477, 478; 251 Mo. 271, 272, 273.]
In State ex inf. v. International Harvester Company of America,237 Mo. 369, respondent was merely the sales-agent of the International Harvester Company (of New Jersey), which had a capital of $120,000,000, and did about 85 or 90% of the harvesting machinery and farm implement business of the United States. It was formed by combining the five principal competitors in these lines, and later acquired others, and thereafter was able to dominate the field. The finding was that the principal was guilty. The punishment was inflicted upon the agent which, alone, was licensed in Missouri and could be and was brought before the court. Respondent was fined $25,000 (237 Mo. 420), and permitted to take out a new license in Missouri on stated conditions.
In State ex rel. v. Polar Wave Ice Fuel Co., 259 Mo. 578, this court had before it, on appeal, a judgment of the St. Louis City Circuit Court finding the Polar *Page 553 Wave Company guilty as the instrument of an unlawful combination to lessen competition. The trial court had found the company had been formed by combining seven principal competitors in the ice business in St. Louis. It was a deliberate and successful effort to dominate the market and fix ice prices in that city. This court set aside that judgment, and rendered judgment imposing a fine of $50,000 and staying ouster upon conditions.
In State ex inf. v. Arkansas Lumber Co. et al., 260 Mo. l.c. 261, the parent combination affected included about three hundred plants and represented a great collection of capital. A single "curtailment" programme carried on for six months yielded $6,298,000 in profits to manufacturers and $2,210,000 to members. One Missouri corporation's share of this was $260,381. This case shows that the violation of the statute was regularly conducted as the sole business of the association. Fines imposed ranged from $1000 to $50,000. Ouster suspended on conditions.
In State ex inf. v. Armour Packing Co., 265 Mo. 121, the Armour, Swift and Morris companies were again at the bar of this court. The organization of the National Packing Company as a holding company and to buy other competing companies was charged and proved, and the operation of this company as an agency in attempted concealment of methodical, habitual and persistent law-violations by three great packing companies and others, was charged and proved. The allegations were that respondents had combined to fix, regulate, control and maintain prices, quantity of sales and competition in the sale of beef and beef products in Missouri. A fine of $25,000 was adjudged against each company and ouster ordered stayed on condition. On November 14, 1916, these fines were reduced to $12,500 each, but the judgment of suspended ouster was left unchanged.
This court forfeited the license of the Republic Oil Company,218 Mo. 1, and sustained a judgment of ouster against the People's Ice, Fuel Storage Company, 246 Mo. l.c. 176 and 223, but these were mere agencies employed to further the unlawful plan under review, and *Page 554 bore to the other respondents in the respective cases a relation comparable to that borne by the St. Louis Lumber Trade Exchange to the other respondents in this case. It does not appear that any absolute judgment of ouster heretofore has been finally sustained by this court in a case of this kind against any corporation in a position at all comparable to that of the retailers in this case.
It thus appears that to this day this court has habitually suspended judgments of ouster, however great the combination of capital haled to the bar, however open, deliberate, avaricious and flagrant the offense charged and proved, and however clear and indubitable the proof made. With these precedents in mind, the record is to be read again with an eye single to the fixing of punishment.
It will not be amiss again to state some of the facts and bring out some of the conditions with especial reference to this question. The use of lumber in St. Louis and vicinity was so much stimulated by the demand created during the construction period of the World's Fair held in that city that a number of firms and corporations, not previously engaged in it, were attracted to the retail business. The subsequent return to the normal demand for a community like St. Louis reduced the use of lumber to such an extent that the city and vicinity were oversupplied with retail lumber dealers, despite the normal growth of the city and section and consequent increase in the demand for lumber. Competition between the dealers became sharp and sharper. Gradually the devil began to take the hindmost unless the hindmost saw his Satanic Majesty first and retired from the contest. These reductions in the number of dealers and capital employed were not commensurate with the decrease in retail sales, and the struggle for survival continued. The stress became so great that the business became shot through with evil practices which resulted from the efforts of the dealers to keep their heads above the rising waters of loss and bankruptcy. The existence of these practices is proved by the evidence of both *Page 555 relator and respondents and is testified to by representatives of respondents; by dealers in no wise connected with respondents or the St. Louis Lumber Trade Exchange; by large and small contractors who bought lumber and had no other connection with the retail lumber business; by users and buyers of lumber; and by several who are no longer connected with the retail lumber business, but who had been in it during a part of the period in question and who had either been forced out or had withdrawn because they were unwilling to participate in the practices in question and thought they could not continue on any other terms. The record leaves no doubt about it and is subject to no other construction. These practices included the substitution of grades; the substitution of species; intentional shortages in quantities actually delivered; various credit and financing devices whereby the contractors were virtually bribed and the contracts bought from them. Lumber easily lends itself to the deceit of the builder or purchaser, if the dealer and contractor desire to use it to that end. Once it is built into walls or, when exposed, is covered with paint, the cheating in the substitution of grades and species is so hidden that the owner or buyer cannot discover it, even if he had the knowledge necessary to its discovery before the lumber went into the structure — which would be very exceptional knowledge unless he were a lumber dealer himself. One method used in St. Louis was to submit bids which would call for the proper grades and quantities. The state of competition was such that these bids seldom added more than a dollar and fifty cents a thousand feet to the cost of the lumber f.o.b. St. Louis. Often they were less and even below that cost. The usual practice, as the whole evidence shows, was for the dealer who had made such a bid and had been awarded the contract, not to deliver the quantity and quality called for by the bid. It was impossible for him to do so and make any profit at all. In fact, this record shows beyond all question that ordinarily it would have been impossible to have avoided an actual and considerable *Page 556 loss. Sometimes the dealer sent to the job the species of lumber called for, but sent a cheaper, an inferior grade. In others he sent a different, inferior and cheaper species. The balance of his cost and his profit, if any, he got by means of those deceptions. If he were caught, the material was hauled back to the yard and he lost the sale; or, if his explanation satisfied, he might, to save his face, send out the material he had agreed to send. The loss in these cases he covered by overcharging small buyers who relied upon themselves in making purchases and had no knowledge of grades, species, measurements or prices. If a contractor in charge of the work knew his business, he could detect substitutions and shortages. That some contractors did make such detections resulted in favors being shown them in the way of credits, discounts, rebates and financing schemes which, with some of them, induced a frame of mind more lenient toward the retailer's methods or prices. Other contractors made use of conditions to play off one dealer against another. The lumber requirements of a contract would be submitted to various dealers, but bids would be asked from one dealer on one grade or species and from another on a different grade or species. Then the contractors would approach one dealer with an intimation or a statement of the amount of another's bid and the offer of a preference, and could sometimes secure, at an inadequate price, the quality he desired by creating this impression of competitive bids. In fact, the bids taken were not competitive, but covered different qualities of material. The bids themselves would not be disclosed, merely the total amount. Sometimes dealers were asked to bid on different quantities, in lump sums, and these bids were used in the same way. Sometimes a bid for a quantity less than the amount of lumber required was accepted and subsequently the owner learned that the estimate of material needed had been too low and more must be purchased. Things were in such a way that one group of contractors who desired to get the material in kind and quantity which a job required, organized a lumber company and began to *Page 557 supply their needs in that way. Some dealers failed in business. A few liquidated and quit. Two or three firms abandoned the retail business and confined themselves to wholesale trade. In the meantime the consumer got all the worst of it in that the structure he built or purchased was made of inferior lumber. In the meantime dealers in other building materials were actively pressing the advantages of the products which they sold. Advertising campaigns advised the public to use substitute roofing, lathing, siding, and the like. The impression got abroad, or was put abroad, that lumber resources were nearing exhaustion and that the builder would as well accustom himself, without further delay, to the use of other material. In the city of St. Louis ordinances were passed which lessened the use of lumber. For instance, the required thickness of walls of which brick constituted a part was increased to thirteen inches. This affected or prohibited brick veneer construction. Other ordinances limiting lumber use were enacted and subsequently discovered by the lumber dealers. The retailers had an organization of a sort which seems to have accomplished nothing until in 1912 it adopted a price agreement. In a very short time it was discovered, of course, that this was unlawful and it was at once abandoned. There is no evidence that either before or after this four months' period this old organization had any sort of agreement as to prices. The old conditions were hardly interrupted, much less eliminated, by this agreement of 1912, but continued from that time forward. The retail business was not only unprofitable, but the prevailing practices were immoral. In what they evidently regarded as self-defense, dealers who knew well enough that the practices in question were wrong, participated in them nevertheless, spurred by the instinct of nature's first law, because they felt they had to choose between participation and being driven out of their chosen business — as some were driven out. It is obvious that for some time the dealers in looking at the moral question involved, gave especial emphasis to the fact that, as it appeared to them, competitors *Page 558 were endeavoring to destroy their business. Each seems to have regarded the others as business pirates, to be fought with every effective weapon. Gradually the effect upon the consumer, that innocent bystander who seems to have infinite capacity to withstand punishment, and the effect upon the lumber business itself, began to obtrude themselves, and the idea that these conditions ought to be rectified was born.
Whatever may be said of its importance, or even competence, upon the question of guilt or innocence, it it clear that the existence of the practices detailed would call for remedy, and that the conditions described, proved beyond question to exist, ought to be understood and kept in mind when what was subsequently done is considered with respect to the punishment to be inflicted.
The men who are responsible for the formation of the St. Louis Lumber Trade Exchange, in fact all the retail dealers, are entitled, on this question, to have their acts judged in the light of all the facts and conditions which enmeshed them at the time and to have their motives and intentions finally judged on the evidence in the record. There is no doubt that a cold-blooded entrance into a deliberate contract to unite in robbing a community by the method of fixing prices is not only contrary to the statute, but is highly immoral, as well. Upon this relator, respondents, counsel and the court all agree. The question whether this record shows such an agreement in its worst form or shows something less is another matter, and is to be solved by the record.
About the first of the year 1917 one of the gentlemen who was a member of the old organization, attended a meeting of lumbermen in Chicago, at which an address was made by Hon. L.C. Boyle, ex-Attorney General of Kansas and a lawyer of ability and distinction. The St. Louisan's interest was aroused and he talked with Mr. Boyle. He returned to St. Louis, and the upshot of the matter was that Mr. Boyle was invited to address the lumber dealers of St. Louis, and subsequently did so. He seems to have been told of conditions in St. Louis. *Page 559 He discussed them and in a general way suggested what he assured his hearers were legal methods of removing the evils which certainly existed. As to the details of organization he recommended that Hanks Gregg of Chicago be called in to advise. This was thereafter done and they evolved the charter and by-laws of the St. Louis Lumber Trade Exchange. These were submitted to Mr. Boyle and received his approval, and this approval was communicated to the gentlemen concerned in St. Louis. Quite a number of the St. Louis dealers went further. They submitted the plan to their own counsel and those counsel approved its legality. It may be said that the question of legality of the plan under our law was passed upon by a list of lawyers which contains names which are well known for ability, learning and integrity, and it would require considerable hardihood to intimate that any of the number would render a legal opinion except in the best of faith, for any reason. All this the organization had before them when they instituted the St. Louis Lumber Trade Exchange. At this time, then, the members are to be judged in the presence of the conditions which surrounded them, which no one will deny were not only ruinous to the dealer but injurious to the consuming public and to the lumber trade as a business, but wrong in themselves. Further, it does not appear that relator or any of his witnesses have been able to suggest any method which would have been available to correct the then existing conditions, and it is certain that respondents theretofore had been unable to find means to extricate themselves except by voluntary or involuntary retirement from the field. It ought not to be held on this record that respondents were not in good faith desirous of putting the business on a right basis. In addition, their course, intent and motives ought to be examined in the light of the legal advice they took, and that advice ought to be viewed as it appeared to them, strengthened and fortified by the ability and character of counsel who gave it. It is not to be understood from this that any advice from any source can be put forward as a defense *Page 560 to the charge in this case. It is meant that the things stated have to do with the amount of punishment to be inflicted.
Normally, the retail cost of goods to the consuming public is made up (1) of the wholesale cost, (2) freight to the retailer's location, (3) the cost of handling from the car or barge through the store or yard to the consumer, and (4) the retailer's profit. The first and second of these are pretty well determined for the dealer by agencies outside of his control. The third covers the whole cost of his retail organization and operations. It includes numerous elements, as is obvious. The fourth explains itself. It was apparent to the dealers, both respondents and the others, at the time, and is apparent to any reader of this record now, that the objectionable practices in the retail lumber trade grew out of the strenuousness of the dealer's efforts to get replacement cost or more, in the face of competition of a character which had introduced unscrupulous methods of getting business. In the heat of the fight with each other, certain moral distinctions were forgotten, first by a dealer or two, then by many as the trade became further infected. The disease was progressive. In its progress the point was finally reached at which there came the consciousness that the public, the business and the dealers themselves were all involved. All were suffering injury, and that without net benefit to any. In view of all this there is logic in ascribing the existing difficulties to the failure of retailers to realize the fact that they were pricing their stocks at less than the cost of replacement plus the cost of handling. The cut in bids was counterpoised by the tricks and schemes detailed. These were the methods which were used to prevent loss on bids made at sums less than actual expense of delivery to the consumer. That there is no moral wrong in including in the retail price the wholesale cost, freight and cost of handling must be conceded. That there is something less than moral in a condition which would take from the retailer his stock at less than his total cost of delivery to the consumer *Page 561 will hardly be denied. That this is true of a state of affairs which leaves the dealer the option of selling for less than such cost or quitting his chosen business is hardly more open to denial. Efforts to correct existing practices had been made and failed. The cause was obvious — the not unusual inability of human nature to resist the temptation to save itself by questionable methods after it becomes involved in a struggle in which such methods are used against it. The elimination of these methods was the problem. The cause of their coming into use seemed and is clear, from the evidence. Since it was apparent that the effort to avoid losses caused the trouble, in the business, it is not surprising that it was thought that an effectual corrective must in some way remove the cause. The question was whether this could be done within the law. As stated, respondents were assured, orally and in writing, that this could be done and that the plan adopted was legal and sound. That plan took the cost of lumber, f.o.b. St. Louis, as the basic element. Then the "service charge" was added. This charge was made up of numerous items of costs of handling from the car to the consumer. It did not include them all. At no time was the wholesale price, plus freight, plus the service charge, equal to the cost to the dealer of delivering the goods, when the service charge is measured by the standard of the average of the ten or more most efficient St. Louis yards.
It is argued in relator's brief, and this finds some favor in the opinion, that the service charge included a profit. The overwhelming weight of the evidence is against this conclusion. The publication of the chart with the service charge line designated as the "retail price" is used to show the contrary. It was so published. Relator quotes a part of Hoxie's testimony to show that the retail price was in fact fixed at the aggregate of the wholesale price (including freight) plus the service charge. Hoxie's testimony is conflicting. He testified, point blank, that this aggregate was not the retail price in St. Louis. Then he said there were doubtless sales *Page 562 at that price. Under a skillful examination he testified the aggregate showed "roughly" the retail price; that the chart showing the rise and fall of the wholesale price and the service charge was hastily prepared for the use of the Attorney-General; that in a general way it showed the retail prices; that it was published as the retail price and was not put out to deceive the public; and, finally, that it showed the retail price. The witness was responsible for the advertisement, so far as this question is concerned, and was gradually backed into the position of trying to defend it as absolutely true in all its representations. In either construction it did substantially show, in a general way, the relation which the rise and fall of wholesale prices bore to the rise and fall of retail prices. It did not show the retail prices. Hoxie so testified in terms. It was not made up from retail prices. There was no sufficient data for that. It indicates a retail price, fixed in fact and in terms, and this is contradicted by the testimony of a cloud of witnesses, members of the Exchange and others; lumbermen, contractors, buyers, who testified to active competition in the retail trade during all the time covered by the chart except the period during which the Federal Government established prices. The advertisement was an adaptation of the figures of a chart furnished the Attorney-General, post litem motam, on which the line representing the "retail price" in the advertisement was shown as delineating the rise and fall of the service charge. It was used in the advertisement, in the St. Louis papers, for the general purpose stated, and was intended as an answer to charges made that lumber prices had unduly advanced in proportion to wholesale cost. In addition, another exhibit (No. 15) which does purport to show retail prices and which relator offered, prepared by Hoxie, shows that the retail prices were not the wholesale prices (including freight) plus the service charge. Hoxie was put in an embarrassing position, as it then seemed to him, and attempted to defend the advertisement to refute the inference that in it he had intended to deceive the public. *Page 563 What he had done was to use a chart already made (in 1921) for the purpose of showing the Attorney-General, in 1921, the rise and fall of the market. That chart did not purport to show retail prices. Clearly it was not intended as an admission, at that stage of this contest, that the retail price, including a profit, was an agreed price. On its face it does not purport to show this. In using it as an advertisement Hoxie changed the designation of the "service charge" line to that of "retail price." That was incorrect, but it did put before the public, in terms it understood, a general idea of the rise and fall of prices, and, as the advertisement was intended plainly to do, gave exact figures on the wholesale prices. The advertisement was a defense of the dealers against the charge or implication that they were responsible for the high price to the consumer. That defense was founded mainly upon the increase in wholesale prices, for which the retailers were not responsible, and this was the dominant thing in Hoxie's mind, no doubt. The inference drawn from this incident is, in the circumstances, not warranted even if it stood alone. When consideration is given the mass of evidence introduced by both relator and respondents which overwhelmingly shows that the retail price was fixed neither in theory nor practice and that competition continued among respondents and between them and non-members, that inference can not be justified. The evidence conclusively shows that the increase in prices was mainly due to the increase in wholesale or mill price and freight. This price or cost increased from $29 in January, 1918, to $72 in March, 1920 — over 148%. The retailers' expense of handling increased from $7 to $14 in the same time. Labor cost, a large part of the handling cost, increased enormously. Other costs went up. As the opinion shows, this estimated cost of handling did not include several items which in fact formed a part of it. The cost was determined by accountants who went to the books of respondents at intervals and computed the cost to the several companies. The average cost of the ten or more most *Page 564 efficient companies doing seventy per cent of the business was taken as the service charge for the period. The cost of the several companies varied from 16.1% to 41.4% of the price obtained. The service charge was always less, in dollars and percentage, than the average cost of all respondent companies. This reduction, if the service charge was applied in full, amounted to more than forty thousand dollars per year to the consumers. It had the further effect to stimulate the dealers whose cost was high to reduce it to the level of the service charge. This applied its pressure continuously to induce the elimination of expense of handling and retail overhead. Inspection was established and the delivery of the quantity and quality agreed was thus secured. Bids were sent in and examined and it was thereby assured that the competitors bid on identical estimates, and errors in computation and extension were caught. After the contract was awarded, competing companies and no others, were allowed to see each other's bids. The dealers ceased to buy contracts by discounts, financial aid to contractors, rebates and the like. The practices aimed at were, in the main, stopped. The overwhelming weight of the evidence is that lumber, at all times (except during the period of Government-fixed prices) was lower in St. Louis and vicinity than in adjacent sections and in the Mississippi Valley cities — and others inland. Competition continued among respondents and between them and non-member companies. The practical identity of bids in two instances on city contracts is given too much importance. In the first place, the bids were on exceedingly small amounts of staple lumber and are comparable to letting the contract for a sack of flour to grocers in one community. Many hundreds of bids made to the city were available to relator. Respondents offered in evidence a large number of those, but relator did not print them. The official in charge of letting city contracts in all cases in which no single item exceeded $500 produced these, and testified generally to competition among the retailers of the city. One witness testified bids were *Page 565 alike, but his testimony is contradicted by the evidence just mentioned, and by the testimony of many witnesses, some who are respondents, some who were retailers but did not belong to the Exchange, and contractors and buyers.
The witnesses are almost unanimous in their testimony that during the formation of the Exchange in 1917 and in soliciting members thereafter, there was no representation or suggestion that price-fixing was contemplated.
The imposition of fines for deviations from the service charge seems to have been abandoned before this proceeding was begun. There were some things done against which, in themselves, we do not understand any real objections are urged. What sound reason can be advanced against the maintenance of a system of inspection by a group of competing retailers to determine whether a dealer has delivered the character, quality and quantity of material for which his contract of sale calls? And what objection can be lodged against the joint employment of an agent to furnish the trade with legitimate credit information? There seems to be no reason these things cannot lawfully be done. As to the first, it insures the buyer's getting what he has bought and aids in putting competition on a real basis, in that bidders must expect to deliver what they sell or suffer the exposure of efforts to cheat the buyer by selling one thing and delivering another. As to the second, it aids in protecting the dealers, and, through them, the honest and solvent buyers from the necessity of carrying the "dead beats" free of charge so far as concerns their use of lumber. For it is certain that credit losses must be covered by bills collected from solvent buyers or that the losing dealer will merely distribute his capital among those who do not pay. The system is employed by many groups of dealers for themselves, or the information is bought from agencies which make a business of collecting it. Unless these methods are illegal, and that is not suggested, the *Page 566 collection and dissemination of credit information by respondents is not so.
Tested by the requirements of the statute, the system adopted was wrong; but when the good faith of the dealers is judged in the light of the facts shown by the record, it does not appear that their offense was committed in any such open disregard of the law as it is and was written in such fashion as appeared in several cases heretofore cited. The record abounds in proof to the contrary, unless all usual methods of weighing evidence are to be abandoned. It is proved by the evidence as to the intent of the dealers, the advice they took and the results accomplished.
The Exchange has had a payroll of considerable size. Its manager's, counsel's, inspectors' salaries and office expenses amounted to nearly $24,000 per year. Advertising campaigns to restore lumber to its former place in builders' esteem were conducted at large expense. The appropriation for that purpose for 1921 was $20,000. This combined advertising was cheaper than if the retailers had severally undertaken it. It was necessary, in view of the facts already stated. The income of the Exchange in 1918 was about $53,000. The excess above expenses was not very great. The opinion disposes of relator's suggestion that the Exchange had cost St. Louis and vicinity $2,500,000. This suggestion is necessarily based upon the assumption that if the Exchange had not been formed the system of cheating which preceded it would have continued and the public would have paid less to the retailers under that system. It takes no account of the fact that under that system the buyer did not get what he thought he was getting and that his smaller price was well matched and covered by inferiority in quality and shortage in quantity. It assumes that the amount and quality delivered under the two methods, on identical estimates, would be the same. If relator proved anything in this case, he proved the negative of this assumption. *Page 567
But all that has been said does not constitute a defense. It does show that there is much to be considered on the question of punishment which did not appear in other prosecutions under the statute. In those cases this court was dealing with great corporations. The inference of a deliberate intent to violate the law and mulct the public in most cases was irresistible. No ouster was finally ordered in those cases. The court gave sound reasons for its course. Those reasons are more applicable in this case than in those in which they were given. The course the court took then has been vindicated by subsequent events. This is a necessary inference from the fact that the law officers of the State have never found it necessary to use against those previous defendants the ready weapon the court put into their hands. There can be no doubt they would have used it if reason for its use had come into being.
In this case a group of relatively small retail corporations, operating in one community, one very important community, is at the bar. They are domestic corporations, except two which employ nearly all their capital in this State. The suspended ouster plan, efficacious against great corporations, would be peculiarly effective in this case. The public and respondents' competitors easily and readily could and would discover any new violations. The impending punishment would constitute an effective deterrent. If it did not, the ultimate punishment could be inflicted promptly and at any time. If it did, then respondents would continue in competition in the retail business. If absolute ouster goes, a majority of the retail capital is at once put out of business in the district. The result is a reduction in the number of the competitors and, doubtless, the appearance of a large retail lumber corporation with many yards throughout the territory. Even if this does not prove true, and organizations are formed which, in a competitive sense, will succeed respondents, in any subsequent prosecution the State must again make out a whole new case. There is, so far as public benefit is concerned, a sort of suggestion of futility about the method of absolute ouster which seems *Page 568 to show it to be far less effective to the end desired than is the method of sentence suspended in part.
As an argument against a judgment of suspended ouster it is quite irrelevant to say that corporations and individuals who have never been brought to account in the courts have violated the statute. The record does not afford any basis for such an argument. Further, it does not follow from the fact that one against whom no such judgment has been rendered has not obeyed the law that the rendition of such a judgment is futile in securing obedience from one against whom it has been rendered. Nor is it logical to say that a judgment of suspended ouster is ineffective to control one against whom it has been rendered when neither the court nor the law officers of the State have attempted to use the suspended judgment against one guilty of a second offense. It is also indubitably true that this court is in no position to take judicial notice of offenses, if any, committed by others than the present respondents, in order to swell the punishment in this case. If it can take such judicial notice for that purpose, it can do the like as against such others. If it can do this, and these others are living under a suspended ouster judgment, the court ought to proceed to fix appropriate additional punishment against them. If they have not been convicted previously and judicial notice can be taken of their offenses to increase the present respondents' punishment, then when the Attorney-General does proceed against them there will be no need of offering evidence to convict; judicial notice will cover the whole matter. For it will hardly be denied that if judicial notice can be taken of an offense in order to increase the punishment of one who did not commit that offense and is in no way connected with it, it certainly could be taken to convict him who did commit it. The arguments referred to are outside the record and so essentially invalid as to require no further comment.
There are special facts which affect particular respondents and constitute special reasons in their cases for judgments of conditional ouster, but the general reasons *Page 569 applicable to all convince that it should be applied to all.
A more detailed discussion of the facts would add further certainty to the conclusion reached. Time and space impose their limitations. This is not a proper case for an absolute ouster, and an absolute ouster is not the effective way to deal with respondents.
The fines fixed in the opinion previously adopted constitute adequate punishment in this case. The order of absolute ouster is modified as to all of the respondents except the St. Louis Lumber Trade Exchange. The other judgments of ouster and forfeitures of licenses are suspended upon these conditions:
1. That the fines and costs be paid at a time which has been fixed as December 3, 1923.
2. That within sixty days after December 3, 1923, each respondent who desires such suspension shall show by affidavits of its managing officers (and others, if required) that such respondent, its officers, directors, agents and representatives, have withdrawn from all agreements and understandings with any and every person or persons, natural or corporate, which in any way or manner, direct or indirect, restrict or lessen competition, fix or affect prices, discriminate in favor of or against any dealer or dealers, buyer, contractor or other person, control or affect the amount or quantity of lumber and forest products in the market, or in anywise restrict open, honest and free competition in the lumber business, or violate, directly or indirectly, any law of this State relating to monopolies, pools, trusts and conspiracies in restraint of trade; that in case any person or persons, natural or corporate, shall suggest or offer to such respondent to form or enter into any agreement, plan or scheme in violation of any of such laws, such respondent will promptly lay the facts relating thereto before the Attorney-General of this State; that such respondent will not participate in the publication or distribution of any price current, except as derived from actual, bona-fide sales previously made in full competition; *Page 570 that such respondent is not now engaged in, and in the future will not engage in, any practice or practices, agreements or understandings which violate either the letter or the spirit of the Anti-Trust Laws of this State.
Jurisdiction is retained, and in case of any violation of the conditions of suspension of ouster, the court may, upon a showing made at the instance of the Attorney-General, re-open the case for further consideration and may convert the suspended ouster into an absolute ouster, or consider the further punishment to be adjudged. The motions to modify are sustained to the extent herein indicated and overruled in all other respects. All concur, except Woodson, C.J., Graves and David E. Blair, JJ.