defines a corporation as "any company or association, incorporated or unincorporated" which either (a) is organized to carry on business for profit and has shares of capital or capital stock, or (b) is “without shares of capital or capital stock, except partnerships, which is organized to carry on business for its own profit or that of its members." The Harness Manufacturers' Association is a voluntary, unincorporated association and thus without capital stock. It is not itself engaged in business. Petitioner contends that it therefore is not within the act. But this contention overlooks the fact that the association is not the only one proceeded against; but that its officers and the members of its executive committee, as well as its membership generally, are included in the proceedings as parties and made subject to the Commission's order. The language of the act affords no support for the thought that individuals, partnerships, and corporations can escape restraint, under the act, from combining in the use of unfair methods of competition, merely because they employ as a medium therefor an unincorporated, voluntary association, without capital and not itself engaged in commercial business. The order may be enforced by reaching the officers and members, personally and individually. A voluntary association, having many members, may be brought into court by service on its officers and such of its members as are known and can be conveniently reached, sufficient being served to represent all the diverse interests. * * *

*

The contention that the Harness Manufacturers' Association is not engaged in commerce is answered by the consideration, first, that many of its members are so engaged, and, second, that interstate commerce is claimed to have been directly affected by the alleged unfair methods of competition. * * The objection that the public is not interested in the activities of the association is answered by the fact that, if the Commission's findings are to be accepted, trade conditions in the harness and saddlery trade have been substantially affected by the methods of competition in question. This subject will more fully appear by consideration of the nature and effect of the Commission's findings.

3. The harness and saddlery trade consists broadly of three divisions: (a) Manufacturers of saddlery hardware, harness goods, and horse furnishing goods; (b) wholesalers and jobbers, who buy the last-mentioned goods from the manufacturers and themselves manufacture harness in wholesale quantities, selling both classes of products to the retailer; (c) retail harness dealers, who sell saddlery goods at retail, to a small extent manufacturing harness.

The Commission's findings of fact, so far as now important, may be thus summarized: Prior to the organization of the Saddlery Association it was the general custom for accessory manufacturers to sell direct to retailers, and in large and important sections of the United. States the wholesale and retail saddlery business has long been conducted as one operation. The Harness Manufacturers' Association is a voluntary, unincorporated association, its membership being composed largely of city and district associations in various cities throughout the states of the Union, the membership of these associations being composed of concerns engaged in manufacturing and selling harness and saddlery goods at retail, and who purchase their supplies of harness and saddlery goods largely from wholesalers and jobbers in interstate commerce, including members of the Saddlery Association. The membership of the Saddlery Association, which comprised the greater part of the wholesale saddlery trade of the United States, consisted of persons

and concerns engaged in selling at wholesale harness and saddlery goods in interstate commerce throughout the various states and territories of the United States to retail dealers, both members and nonmembers of the Harness Manufacturers' Association, and in direct competition. with other persons or organizations similarly engaged, its declared policy being (at variance with the condition above set forth) to promote a system of trade by which the manufacturers could sell to jobbers only, the jobbers to the retailers only, and the retailers alone direct to consumers; that the Saddlery Association (although some of its old members were still, in various parts of the United States, doing a combined wholesale and retail business), as well as a policy that such concerns were not entitled to recognition as legitimate jobbers, and that the adoption of such rule and policy were brought about in part by the influence and pressure, and in response to the overtures of the Harness Manufacturers' Association.

The Commission further found that the officers, committees, and members of the Harness Manufacturers' Association and of the Saddlery Association have actively co-operated to establish the principle that a combined and closely affiliated wholesale and retail business was not a legitimate wholesale business; that the secretary of the Saddlery Association has attempted to prevent accessory manufacturers from recognizing, as legitimate jobbers, wholesalers whose names were furnished by the Harness Manufacturers' Association to the Saddlery Association, as complained of by retailers, for competing with them; and that the Harness Manufacturers' Association has used its influence with the Saddlery Association to prevent the admission of specific concerns to membership in the latter association and the recognition of such concerns as legitimate jobbers.

The Commission further found that the Harness Manufacturers' Association has requested and secured the co-operation of members of the Saddlery Association in a refusal to sell mail order houses, hardware stores, general stores, and other competitors of retail harness manufacturers not recognized by the Harness Manufacturers' Association as legitimate; that the latter has refused the privilege of associate membership to accessory manufacturers and jobbers who sell to mailorder houses, establishing, however, an associate membership restricted to manufacturers, and jobbers who do not sell to consumers and to mail order houses, and who are otherwise in harmony with the policy of the association, and issuing credentials thereof to the travelling salesmen of associate members and urging and encouraging the affiliated retailers to withdraw and withhold patronage from concerns whose salesmen were not so equipped, and have induced the members of the Saddlery Association to use their influence with the accessory manufacturers not to sell mail order houses; and that by reason of refusals of accessory manufacturers, due to objections of the Saddlery Association, to recognize as jobbers certain competitors of members of that association, such competitors have been forced to buy from the Saddlery Association at prices higher than charged by manufacturers to recognized jobbers.

The Commission further found that as a result of the opposition of the Harness Manufacturers' Association to sales by manufacturers and jobbers to the classes of competitors before mentioned, the latter had been prevented from purchasing as freely in interstate commerce as they would have been without such opposition. The findings detail many in

stances of specific means used to accomplish the various classes of alleged unfair methods of competition, and which we deem it unnecessary

to set out.

Both the Saddlery and Harness Manufacturers' Association, its officers, committees, and members of its subsidiary and affiliated associations, were ordered to cease and desist from conspiring or combining between themselves to induce, coerce and compel accessory manufacturers to refuse to recognize as legitimate jobbers, entitled to buy from manufacturers at jobbers' prices and terms, individuals and concerns doing or endeavoring to do a combined or closely affiliated wholesale and retail business; and from carrying on between themselves communications having the purpose, tendency, and effect of so inducing, coercing, and compelling accessory manufacturers in the respect above referred to.

The Harness Manufacturers' Association, its officers, committees, and members of its subsidiary and affiliated associations, were ordered to cease and desist from (a) conspiring or combining among themselves to induce, coerce and compel manufacturers and jobbers to refuse to sell any of the competitors of retail harness manufacturers; (b) using any scheme whereby the active members of the Harness Manufacturers' Association concerted to favor with or confine their patronage to manufacturers and jobbers comprising the associate membership of that association or who had not complied with its active membership by selling to certain competitors thereof; (c) using or continuing any system of credentials or other indication of manufacturers and jobbers sales policies with regard to certain competitors and consumers, and from encouraging and urging retailers to confine their patronage to or to patronize manufacturers whose sales policy is in harmony with the Harness Manufacturers' Association's requirements as before set out; (d) inducing members of the Saddlery Association to use their influence with accessory manufacturers not to sell to mail order houses or other competitors of retail harness manufacturers.

In our opinion, the Commission's finding of fact, and the existence of the combinations, schemes and practices directed to be discontinued, are amply sustained either by undisputed testimony or by the great preponderance of the evidence. This conclusion is not overcome by petitioner's criticisms addressed to specific features of the testimony. The findings of fact being so supported, the Commission's order is, in our opinion, fully justified by the authorities to which attention has already been called, including especially Eastern States Lumber Co. v. United States, 234 U. S. 600, 34 S. Ct. 951, 58 L. Ed. 1490, L. R. A. 1915A, 788, where a state of facts quite similar to that found here was held to amount to a violation of the Sherman Anti-Trust Act (Comp. St. § 8820 et seq.).

In view of what has appeared, the criticism of lack of public injury is without force. The suggestion that no damage has been shown, even if true in fact, is answered by the consideration that the remedy afforded by the statute is preventive, not compensatory.

The order of the Commission, so far as it relates to the Harness Manufacturers' Association, its officers, committees, and the members of its subsidiary and affiliated associations, is affirmed.

EMERY et al. v. OHIO CANDLE CO.

(Supreme Court of Ohio, 1890. 47 Ohio St. 320, 24 N. E. 660, 21 Am. St. Rep. 819.)

Error to superior court of Cincinnati.

In 1880 an unincorporated company was formed, to continue six years, called the "Candle Manufacturers' Association," which included. the manufacturers of 95 per cent. of the star candles in that part of the United States lying east of the 114th deg. of longitude west of Greenwich, or substantially all the territory east of the western boundary of Utah. Its object was to increase the price and decrease the manufacture of candles in the territory covered by the agreement; and it is found, as a fact, to have had that effect during the whole existence of the association. The members composing the association were required to pay into its treasury two and one-half cents per pound on every pound of candles disposed of on their own account within the territory. But neither was bound to operate his factory; and, whether he did or did not, he received at stated times his proportion of the profits of the pool, which was based upon the business that had been done by him in previous years, thus making it to the interest of each member to operate his factory when the price of candles was high, and to remain idle when the price was low. The receipts of the association were placed in a selected depository, the First National Bank of Cincinnati, to the credit of an executive committee, consisting of three members, selected by the association, and could only be paid. out on a check signed by at least two of them. The claims of all members were adjusted by this committee.

The Ohio Candle Company, incorporated under the laws of this state, joined the association in 1883, and withdrew there from in March, 1884. During the month of January of that year it had paid into the association $22.40, but there was due to it, under the terms of the agreement, as profits for that month, the sum of $2,151.17. The committee agreed to pay the company the sum it had paid in, but refused to pay the sum due as profits, on the ground that, by withdrawing before the expiration of the life of the association, it had violated the agreement, and was entitled to none of its gains. Thereupon the company brought suit for the amount against the members composing the committee, to which the bank was made a party, asking that the bank be ordered to pay the money to the plaintiff, or that a judgment be rendered in its favor for the amount with interest. Issues of fact having been made up, the case was tried to the court, and reserved for hearing in general term, which made a finding of facts-the substance of which has been stated-and rendered judgment against the members of the committee, which is sought to be reversed on the ground that it is against the law.

PER CURIAM. We are of the opinion that the suit cannot be maintained, for the reason that the objects of the association were contrary to public policy, and in no way to be aided by the courts. No recovery can be had except by giving effect to the terms of the agreement. The action is, in substance, a suit against the association to recover a sum due the plaintiff under the terms on which the association was formed. The committee represent the association, and a judgment against them. is a judgment against it. If, as claimed by the defendants, a member

could not withdraw from the association until the six years had expired, then the committee, as representing the association, had a defense on which they might have relied, had the objects of the association been perfectly legitimate. But should a court be called on to consider any defense, so long as the claim itself is based upon an agreement to which it can give no countenance? It must be observed that the withdrawal of the plaintiff was not at a time, nor under circumstances, that could give to it the merits of repentance. It had passed beyond where it might, by withdrawal, have secured the aid of a court in recovering what it had advanced in furtherance of an illegal object. Its suit is to recover its portion of the ill gotten gains. The case of Norton v. Blinn, 39 Ohio St. 145, can have no application here, for this is a suit between parties to enforce the terms of the illegal agreement. See Texas & P. Ry. Co. v. Southern Pac. Ry. Co., 6 So. 888, where Brooks v. Martin, 2 Wall. 70, is accurately distinguished, and shown to have no application to a case such as this.

Judgment reversed, and petition of plaintiff below dismissed.

CUMMINGS v. UNION BLUESTONE CO. et al.

(Court of Appeals of New York, 1900. 164 N. Y. 401, 58 N. E. 525, 52 L. R. A. 262, 79 Am. St. Rep. 655.)

Action by James V. Cummings against the Union Bluestone Company and others to recover damages alleged to have been sustained by plaintiff as the result of a conspiracy between defendants to abrogate a contract creating a combination to control the price of bluestone. From a judgment of the Appellate Division (44 N. Y. Supp. 787), affirming a judgment in favor of defendants, plaintiff appeals.

LANDON, J. The trial court, in directing a verdict for the defendants, held that the contract for the alleged violation of which by the defendants the plaintiff sought to recover damages was a combination to control the market of bluestone and the market price, and to increase the market price, and maintain it at the increased price, and was therefore void. The evidence was to the effect that in 1887 the plaintiff and 14 other persons were the producers of nearly the whole product of Hudson river bluestone, and of at least 90 per centum of the whole amount of such stone sold in the New York market to customers in various states east of the Mississippi river; that their yearly sales amounted to upwards of $1,500,000; that, owing to competition among themselves, their profits had for some time been practically nominal; that, with the intent to increase their profits, and to secure to each of said producers such part of the sales as his usua! production bore to the whole production, they entered into an agreement bearing date the 21st day of February, 1887, with the defendant the Union Bluestone Company, and thereby agreed that the said company should act as their sales agent of all the marketable bluestone, manufactured and unmanufactured, which the market would take for the six years from that date at prices to be fixed by the Bluestone Association, composed of the said producers, and to apportion the sales among the producers according to a schedule set forth in the contract, and to sell for no other parties, the producers agreeing to sell no stone except through such agent, and, acting as the Bluestone Association, to fix the prices, and each to furnish, upon the request of the sales agent,