decrees, I am indebted to 23 Am. & Eng. Ency. Law 221: Reg. v. Lefroy, L. R. 8 Q. B. 134; Cosby v. Superior Court, 110 Cal. 45, 42 Pac. 460; Gordan v. Buckles, 92 Cal. 481, 28 Pac. 490; Williams v. Dwinelle, 51 Cal. 442; People v. Dist. Court, 6 Colo. 534; People v. Mayer, 71 Hun (N. Y.) 182, 21 N. Y. Supp. 621; People v. Carrington, 5 Utah, 531, 17 Pac. 735; State v. Superior Court, 4 Wash. 30, 29 Pac. 764. Cases admitting the principle, but holding the want of jurisdiction to make the orders, for disobedience of which the contempt proceedings were pending, did not sufficiently appear, are Ex parte Hamilton, 51 Ala. 62, and State v. Scarritt, 128 Mo. 331, 30 S. W. 1026. For the position that, after the allowance of the appeal and supersedeas, the jurisdiction of the judge of the circuit court ceased, and that the injunction was no longer operative, counsel for the petitioner rely upon section 12 of chapter 135 of the Code of 1899 [Code 1906, § 4049] providing that this court or a judge thereof "may allow an appeal, writ of error, or supersedeas, and may stay proceedings either in whole or in part," and also upon certain decisions which hold that there is an inherent power in a court or judge, on allowing an appeal from an order refusing to dissolve an injunction, to make an order staying the operation of the injune tion. It is said, first, that the statute gives such power, and second, that, if it does not, then the power exists independently of statute. For the latter proposition they cite Hovey v. McDonald, 109 U. S. 150, 3 Sup. Ct. 136, 27 L. Ed. 888; Slaughter House Cases, 10 Wall. (U. S.) 273, 19 L. Ed. 915, and Leonard v. Ozark Land Co., 115 U. S. 465, 6 Sup. Ct. 127, 29 L. Ed. 445. We deem it unnecessary to pass upon either of these propositions, for the reason that the order made by the judge of this court, who granted the appeal does not, in our opinion, attempt to exercise any such power. The prayer of the petition is "that an appeal and supersedeas be allowed it (the petitioner) staying said injunction." The order made by the judge says: "Appeal and supersedeas allowed as prayed for in the foregoing petition." This order simply awards an appeal and supersedeas. It is not a special order, expressly staying the operation of the injunction. The most that can be said is that, inferentially, it undertakes to say the effect of a supersedeas is to stay the injunction. If it so declares, it does not thereby extend the scope of the writ. A mere erroneous definition of the writ would not have that effect. The important function of staying the operation of an injunction ought to be performed by a positive, affirmative order, having the same certainty as a judgment or decree. Whether it is stayed or not should not be left to mere inference or intendment. As the injunction was not so stayed, even if it could have been stayed, the appeal from the order refusing to dissolve it, accompanied by the supersedeas, left it in full force

and effect, and the jurisdiction to punish for contempt in disobeying it remained in the court below or the judge thereof. State v. Harness, 42 W. Va. 414, 26 S. E. 270. So much of the injunction as was prohibitory, restraining the defendant from selling or disposing of its coke otherwise than through the agency of the plaintiff, was within the jurisdiction of the court and not void. Although sufficient grounds for this part of the injunction may not have been shown by the bill, the matters set up, as ground therefor constituted at least a defective bill in equity for injunction, calling for the exercise of the power of the court to consider and determine whether the plaintiff was entitled to the relief prayed for. In granting an injunction which may not have been justified by the allegations of the bill, but which it was in the power of the court to grant, if the bill had been sufficient, the court merely erred in determining the question of the sufficiency of the bill. Its power to decide erroneously is as clear and undoubted as its power to decide correctly. There was no want of jurisdiction, but only an erroneous decision, if all that is said in the argument on this question be true.

There is reputable authority to the effect that power conferred by statute upon judges to make orders in vacation, such as preliminary injunctions and orders appointing receivers, carries with it, as incidental thereto, power to enforce obedience by proceedings for contempt. Children's Home Society v. State, 57 Neb. 765, 78 N. W. 265; Cobb v. Black, 34 Ga. 162; Harmon v. Wagener, 33 S. C. 487, 12 S. E. 98. This comports with the general rule that a grant of power to do a thing necessarily implies a grant of power to use appropriate means for its accomplishment, but whether the principle is applicable here, it is not necessary to determine. Section 27 of chapter 147 of the Code of 1899 [Code 1906, § 4327] expressly confers upon judges power to punish, in vacation, certain classes of contempts, including those consisting of disobed ience of orders and decrees. It says: "The courts and judges thereof may issue attachments for contempts, and punish them summarily" in the cases mentioned in that sec tion. It must be assumed that the Legislature used the terms "courts and judges" advisedly, and consistently with its practice of conferring power upon judges, as contradistinguished from their courts, and that it had a purpose in using both. If judges, as such, may punish for contempts at all, they must do so in vacation, for, when acting in term, their acts are those of the courts. Therefore, to withhold from them authority to entertain contempt proceedings in vacation would render the word "judges" meaningless and inoperative. Such a result is forbidden by well-established rules of construction. Omission of the words "in vacation," usually found in this connection, signifies nothing. Obviously authority conferred upon judges to act, and authority given to them to act in va.

cation, amount to the same thing. That the Legislature did have a highly important object in view in conferring this power upon judges is so obvious as not to require any observations respecting it. It seems to be contended that the Constitution forbids the exercise of such powers otherwise than by courts, but it is conceded and held by the courts generally that such power may be vested in judges. That contempts partake of the nature of criminal offenses does not preclude legislative power to provide for punishment thereof by summary proceedings. State v. Hansford, 43 W. Va. 773, 28 S. E. 791; State v. Fredlock, 52 W. Va. 232, 43 S. E. 153, 94 Am. St. Rep. 932. That statutory power to act in vacation is sufficient, is the import of the decisions cited to sustain this position of counsel for the petitioner. They contradict the argument.

On the assumption that it is entitled to relief, the petitioner relies upon the want of any other remedy and especially of a remedy by appeal. So far as the judge has acted within his powers, lack of a right to review by appeal is immaterial. "There is no absolute right in a suitor to have a decision against him reviewed, which must be respected in making laws, and, in the absence of a constitutional inhibition, it is within the power of the Legislature to prescribe the cases and the courts in which parties shall be entitled to appellate remedies." Fleshman v. McWhorter, 54 W. Va. 161, 46 S. E. 116. In so far as he has acted beyond his jurisdiction, prohibition is the special, peculiar, and most appropriate remedy, and an appeal or writ of error is not needed, although, in cases reviewable by such proceedings, they may be used to correct wrongs done by usurpation or abuse of judicial powers. These conclusions and principles render it unnecessary to say whether there is a right of appeal in such cases or not.

Our conclusion is that, as to so much of the charge of contempt as consists of disobedience of that part of the injunction which requires the petitioner to continue to ship its coke to the Pocahontas Coke Company, as its sole selling agent under said contract, the writ of prohibition must be awarded, but refused as to the residue of said charge, and that the plaintiff have judgment against the defendant Pocahontas Coke Company for its costs.

(60 W. Va. 508) POCAHONTAS COKE CO. v. POWHATAN COAL & COKE CO.

(Supreme Court of Appeals of West Virginia. Nov. 20, 1906. Rehearing Denied Jan. 10, 1907.)

1. INJUNCTION-MOTION TO DISSOLVE. Upon the hearing of a motion to dissolve an injunction before answer, the allegations of the bill must be taken as true.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 379, 388.]

2. MONOPOLIES-ANTI-TRUST ACT.

Before a contract can be declared illegal by reason of the act of Congress known as the "Anti-Trust Law," passed July 2, 1890, it must appear that the contract is clearly within the provisions of the act.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 35, Monopolies, § 10.]

3. CONTRACTS-RESTRAINT OF TRADE.

A contract which is in unreasonable restraint of trade is void at common law, because contrary to public policy.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 542-544.] 4. SAME-PUBLIC POLICY.

A contract, combination, or trust among various producers and sellers of a commodity, the direct and necessary or natural effect of which is to restrain competition and control the prices of such commodity, is in unreasonable restraint of trade, and void at common law, because contrary to public policy.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 547-549.] 5. SAME

TRADE.

UNREASONABLE

RESTRAINT

OF

In determining whether or not a contract or combination is in unreasonable restraint of trade, the subject-matter of the contract or combination, the situation of the parties, and all the circumstances attending the transaction should be considered.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 542-544.] 6. SAME.

In determining whether or not a contract or combination is in unreasonable restraint of trade, it is immaterial whether or not the commodity which is the subject-matter of the contract or combination is of prime necessity, if the commodity is an article of legitimate trade

or commerce.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 542-544, 547–549.] 7. SAME.

In determining whether or not a contract is in unreasonable restraint of trade, all the powers of the contract should be considered, and its character determined, not alone by what has been done under it, but by what may be done under it when all of its powers shall have been fully exercised.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 542-549.] 8. SAME.

It is no defense to the illegality of a contract or combination which is in unreasonable restraint of trade to show that the prices of the commodity which constitutes its subjectmatter have not been changed, or even that such prices have been lowered.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 542-549.] 9. SAME.

Unreasonable restraint of trade, which is only partial, is illegal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, § 554.]

10. SAME-COMPLETE MONOPOLY.

In order that a combination or trust may be in unreasonable restraint of trade, it is not necessary that a complete monopoly be formed. The combination or trust is in unreasonable restraint of trade if it tends to monopoly and is to the injury of the public.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 542-549, 554.] 11. SAME.

If a combination or trust is illegal, because in unreasonable restraint of trade, the contract whereby such combination or trust was ef

fectuated and established is void, because in unreasonable restraint of trade.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 542-549.]

12. SAME-ENFORCEMENT.

The courts will not enforce such contract between the parties to it, because of its void character.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 681-683.]

13. SAME EVIDENCE.

The contract, the form of which is set out and referred to as "contract B" in the opinion below, is in unreasonable restraint of trade, and void, because against public policy.

14. INJUNCTION-DISSOLUTION.

Where there is no equity in the bill, a motion to dissolve a preliminary injunction should be sustained.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 357-361.]

(Syllabus by the Court.)

Appeal from Circuit Court, McDowell County.

Bill by the Pocahontas Coke Company against the Powhatan Coal & Coke Company. Decree for plaintiff, and defendant appeals. Reversed and remanded.

Rucker, Anderson, Stroeber & Hughes, Strother, Taylor & Flanagan, Vinson, & Thompson, and R. C. & Bernard McClaugherty, for appellant. Wm. A. Glasgow, Jr., Holt & Duncan and Wyndham Stokes, for appellee.

COX, J. The appellant, Powhatan Coal & Coke Company, complains of the order of the judge of the circuit court of McDowell county, made in vacation on the 16th of July, 1906, overruling its motion to dissolve an injunction awarded by said judge in vacation on the 2d of July, 1906, upon presentation of a bill in equity by appellee, Pocahontas Coke Company, against appellant. In order to have a proper understanding of the questions involved in this case, a somewhat extended statement is necessary.

Appellee, by its bill upon which the injunction was awarded, alleges substantially that it is a corporation under the laws of West Virginia, and that it was organized pursuant to, and that the main object of its organization is set forth in, a contract among the various producers and manufacturers of coke in the Pocahontas-Flat Top coal field, dated the 29th of June, 1905, a copy of which is filed with the bill, and, omitting signatures, is as follows:

"This agreement, made this 29th day of June, 1905, between the undersigned, producers and manufacturers of coke in the Pocahontas-Flat Top coal field, witnesseth that, whereas, it is deemed expedient that there should be some arrangement perfected to improve conditions in the manufacture, inspection, and shipment of coke, and to regulate and to improve the quality of coke manufactured in the district mentioned, therefore the parties hereto do hereby agree:

"(1) That upon the signing of this agree ment the parties hereto will apply for a charter and organize a corporation, to be known as the Pocahontas Coke Company, the authorized capital stock of which shall be one hundred and fifty thousand dollars ($150,000) each share of which shall be of the par value of ten (10) dollars, and the officers of which company shall be a president, a vice president, a secretary and treasurer (which latter two offices may be held by one person), a general manager, who may be president or vice president, and a board of directors of seven or more members.

"(2) The object of said Pocahontas Coke Company shall be to facilitate the manufacture, inspection, shipment, and betterment of coke from the Pocahontas-Flat Top coal field, and to regulate, improve, and standardize the quality of coke manufactured in the district aforesaid.

"(3) The parties hereto, who are operators of coke ovens, shall be entitled to subscribe for one share of the capital stock of said company for every coke oven owned by such party, provided that, immediately upon the allotment of such stock to such party, he or it shall make with Pocahontas Coke Company a three-year contract for the sale by it of all coke produced by such operator at a commission of five cents (5c) per net ton, on the coke sold; and provided, further, that no stock subscription in Pocahontas Coke Company shall be accepted from any operator until such three-year contract, as to coke produced by him or it, shall have been made and entered into.

"(4) The subscriptions to the stock of said company shall be paid, fifty per cent. (50%) in cash, and the balance on call of the board of directors, as the needs of the company may require.

In

"(5) It is further agreed that there shall be named by a majority of the parties to this agreement three (3) trustees, who shall hold the stock of each party hereto, which, when issued, shall be properly assigned in blank and deposited with said trustees. case of death or redemption of any trustee, his successor shall be elected by a majority of the stockholders of Pocahontas Coke Company, at a special meeting called for that purpose, or at any general or regular meeting. "(6) After the payment of the expenses of operation of Pocahontas Coke Company, the surplus, if any, derived by said company from the commissions received by it from the sale of coke or otherwise, shall be declared annually as dividends upon the stock held by each stockholder, each stockholder to have the same proportion of such surplus as the number of tons of coke furnished by him or it bears to the whole number of tons of coke furnished to said company for sale. The stock issued by such company shall at all times be held by the trustees, as aforesaid, but the voting power thereon shall be

and continue in the stockholders. Each share of stock shall be entitled to one vote.

"(7) If a stockholder in Pocahontas Coke Company shall decline to renew his or its contract aforesaid, then the stock of such person or corporation shall be sold by the trustees to Pocahontas Coke Company at its book value, and the proceeds thereof shall be turned over to such person or corporation declining to renew his or its contract aforesaid.

"(8) There shall be for the company a general manager, who shall have active and general charge and management of the business of the company, and who shall not be interested in any coke operation or plant, and said general manager shall be entirely impartial and disinterested, and have no special interest in any particular coke property or operation, and shall devote his entire time to the business of Pocahontas Coke Company.

"(9) There shall be a chief inspector and such assistant inspectors as may be necessary, who shall be disinterested and impartial persons, without any interest in any plant or operation producing coke, and such inspector and his assistants shall inspect the coke produced by the stockholders of Pocahontas Coke Company, and shall enforce such rules and regulations as to the manufacture and inspection of coke as may be prescribed by the board of directors.

"(10) Pocahontas Coke Company is to take from the parties with whom it has contracts as aforesaid all of the coke produced by them, to the extent that railroad facilities may be furnished to transport the same, as long as market conditions will enable Pocahontas Coke Company to dispose of same at or above the cost of production.

"(11) The parties to this agreement are to keep such ovens burning as may be necessary to supply their or its proportion of the sales of coke made by Pocahontas Coke Company. "(12) The organization of Pocahontas Coke Company is not to be delayed by reason of any existing contracts which the parties hereto may have for the sale of coke; but said contracts shall be assumed and carried out by Pocahontas Coke Company upon the terms thereof, and it shall be entitled to its commission upon the coke delivered thereunder.

"(13) If at any time the coke produced by any person or corporation with whom or which Pocahontas Coke Company may have a contract as aforesaid shall be unsatisfactory, then such person or corporation shall bring his or its coke up to the proper standard, and carry out such directions in the manufacture, handling, and preparation of coke as may be prescribed by the board of directors of Pocahontas Coke Company, or by its executive committee.

"The contract of each stockholder of Pocahontas Coke Company shall provide for the sale of its or his entire output of coke

through Pocahontas Coke Company in the market, and in said contract there shall be prescribed a penalty or liquidated damages in case said operator shall sell his or its coke through any other agency, or to any other person, than Pocohontas Coke Company, and such other provisions as may be mutually necessary for the protection of the producer of coke and Pocahontas Coke Company, and for the inspection and improvement of the coke and bringing the same to a proper standard and authorizing the inspectors to reject any coke not up to the proper standard. Any party to this agreement furnishing coke, for which the purchaser may decline to pay the full price on account of unsatisfactory quality, shall bear such loss.

"Witness the following signatures."

This contract purports to have been executed by 20 of said coke producing and manufacturing corporations, and will be hereafter referred to as "contract A."

Appellee by said bill further alleges in substance that the parties to contract A, including appellant, subsequently became stockholders of the appellee under the terms of said contract, and that appellant and every other stockholder of appellee, in accordance with the requirements of contract A, entered into a "uniform contract" with appellee, whereby appellee was appointed the true and legal sole sales agent of the producers and manufacturers of coke in said coal field (they being the stockholders of appellee), for the purpose of selling all coke produced or manufactured at the ovens owned, or which during the period covered by contract A might be owned, by appellant and such other parties as entered into such uniform contract. A blank copy of said "uniform contract" is filed with the bill, and will hereafter be referred to as "contract B." It is as follows: "This agreement, made this

of

day

—, 1905, between - -, a corporation chartered and organized under the laws of the state of West Virginia, of the first part, and Pocahontas Coke Company, a corporation chartered and organized under the laws of the state of West Virginia, of the second part, witnesseth, that for and in consideration of the mutual covenants and agreements to be performed by each, as well as the sum of one dollar paid by each party to the other, the receipt whereof is hereby acknowledged, the parties hereto do hereby agree as follows, to wit:

"First. The party of the first part does hereby make, constitute, and appoint the party of the second part its true and lawful sole sales agent for the purpose of selling all coke produced or manufactured at the ovens now owned or which may during the period covered by this contract, or any extension thereof, be owned, by the party of the first part. The party of the first part

agrees to deliver, at its ovens, to the party of the second part, all the coke produced or manufactured by it during the period covered by this contract or any extension thereof; provided, however, that whereas, the party of the second part has made or may make agreements or contracts to act as the selling agent for other producers of coke than the party of the first part, therefore the party of the second part shall only be required to take such quantity of coke from the parties for whom it acts as agent as railroad facilities may be furnished to transport, and the party of the second part shall also only be required to take such quantity of coke from all of the persons whom it represents as agent as the market conditions will enable it to dispose of at or above the cost of production. And if the party of the second part shall be unable to take all of the coke produced by the principals represented by it, it shall only be required to take from the party of the first part such proportion of the whole amount of coke handled by it as the number of coke ovens owned by the party of the first part bears to the number of coke ovens owned by all producers and manufacturers of coke for whom the party of the second part shall act as agent.

"Second. The party of the second part agrees to sell said coke, delivered to it as aforesaid by the party of the first part, for the best price that the market at the time of such sale will afford.

"Third. The party of the first part agrees to pay to the party of the second part, and the party of the second part agrees to accept, a commission on sales of coke made by it as such agent of five cents (5c) per ton of 2,000 pounds on all coke sold for the party of the first part. The party of the second part agrees to accept said commissions, upon the condition that it is hereby employed as the sole and exclusive sales agent of the party of the first part.

"Fourth. It is further agreed by the parties hereto that in case of a breach of the covenant on the part of the party of the first part to deliver, at its ovens, to the party of the second part, all the coke produced or manufactured by it, during the period covered by this contract, or any extension thereof, that the party of the second part shall, at its option, be forthwith entitled to terminate this agreement, and in the event of such termination the party of the first part shall forfeit all interest in or right to deliver coke upon any contracts taken or sales made theretofore by the party of the second part, and which at the time of such termination remain wholly or partially unfilled; but this provision shall not be so construed as to relieve the party of the first part from furnishing its due proportion of coke to enable the party of the second part to fill such unexpired or incomplete con

tracts, if required so to do by the party of the second part, notwithstanding notice of the termination of this contract may have been given by the party of the second part to the party of the first part.

"Fifth. The party of the second part agrees to act as agent of the party of the first part upon the terms and conditions in this agreement expressed, and to use its best efforts to sell the coke of the party of the first part at the best price that the market will afford.

"Sixth. The party of the second part hereby guaranties payment for all coke sold by it, as such agent, at the average price for all coke handled by it, passing the weigh scales each month, and agrees to take charge of the inspection, shipment, and delivery of said coke and the collection of bills therefor; pay the cost of such inspection, and all tolls and other charges in connection with such shipment and delivery; and to pay to the party of the first part, on the 25th day of each and every month during the continuance of this contract, the proceeds of all coke delivered for its account at the average price aforesaid and passing the weigh scales of the Norfolk & Western Railway Company, or the Western Weighing Association during the next preceding calendar month, the weights on which said scales shall govern and be binding upon both parties to this agreement. It is also agreed that all expenses connected with the selling of such coke shall be borne by the party of the second part.

"Seventh. The party of the second part agrees to keep complete and accurate books of account and proper vouchers for all transactions as such agent, which books and vouchers and all other papers relating to such transactions shall at all times during business hours of the day be open to verification by a disinterested expert accountant appointed by the party of the first part. It is further agreed that the party of the second part shall furnish to the party of the first part, as soon as convenient after the 1st day of each calendar month, during the continuance of this agreement, a statement showing the total tonnage handled by it from each and every person during each month, together with a statement of the average price obtained for such coke.

"Eighth. The party of the first part under this agreement shall be responsible for the quality of coke it ships, and it agrees to assist in building up and maintaining the standard of coke; and it is further agreed by the party of the first part that the size of slack and freedom from impurities shall be such as to insure the making of good merchantable coke, and, in order that the coke manufactured by the party of the first part shall be loaded into cars free from ashes and breeze, it is hereby agreed that all coke loaded and shipped hereafter shall be loaded by means of standard 14-tine forks of 20-inch spread, out to out.