State ex inf. Barker v. Armour Packing Co.

WALKER, J. In June, 1910, the State of Missouri, u.pon the information of the Attorney-General, instituted a proceeding in quo warranto in the Supreme Court against the Hammond Packing Company, an Illinois corporation doing business under the authority of the laws of this State, at St. Joseph, Missouri, and the St. Louis Dressed Beef & Provision Company, a Missouri corporation engaged in business at the city of St. Louis. On the same date a like proceeding was commenced in this court by the Attorney-General against the Armour Packing Company, a corporation organized unT der the laws of the State of New Jersey; Swift & Company, a corporation organized under the laws of the State of Illinois, and Morris & Company, a corporation organized under the laws of the State of Maine, each authorized to do business in this State. The business of these corporations was the buying, slaughtering and marketing of live stock used for food, and in addition the dealing in cured meats, eggs, poultry, game, butter and other agricultural and dairy products, and the preparation and selling of the various by-products derived from the slaughtering of live stock. The information in these cases was identical, barring names, dates and formal allegations particularly applicable to the corporations proceeded against, and each charged violations of the antitrust statutes of Missouri (Secs. 10298-10301, R. S. 1909). Answers were filed in due time, and in January, 1911, an order was made referring the case against the Hammond Packing Company and the St. Louis Dressed Beef & Provision Company to the Hon. Daniel Dillon, as special commissioner, to hear and rule on the competency of all testimony offered, -and return same into this court with his findings of facts thereon. An abstract of the voluminous testimony agreed upon by the Attorney-General and respondents ’ counsel was — 132 — used before the commissioner as the record in these' cases, and is filed here as the “Joint Abstract of the Record,” and will be referred to in the discussion of the issues submitted. Although these proceedings were commenced separately, after the testimony had been taken before the commissioner in the suit against the Hammond Packing Company and the St. Louis Dressed Beef & Provision Company, counsel for these parties, as well as for the other corporations named, stipulated that the testimony thus taken, as well as the report of the commissioner, who was limited to a finding of facts, should be taken as the evidence in all of the cases, the stipulation being in these words: “It is hereby stipulated: That this case shall be submitted upon the evidence taken and the report of the commissioner made in case No. 16090, State ex rel. Attorney-General v. Hammond Packing Company et al., herein pending.” The informations are substantially as follows: That respondents have entered into a pool, trust and combination among themselves and with other corporations and persons to relator unknown, with the purpose and design to (1) regulate, fix and control prices to be paid for beef and beef products, etc., for sale and sold in this State; (2) to maintain such prices when so regulated and fixed; (3) to regulate, fix and limit the amount and quantity of beef and beef products sold and offered for sale in this State; (4) to control and limit the trade in beef and beef products, etc., in this State; and (5) to limit and lessen competition in the purchase and sale of beef and beef products in this State. That by reason of said trust and combination formed as aforesaid respondents have (1) regulated, fixed and limited the amount and quantity of such products sold and offered for sale; (2) that they have fixed and maintained the price of such products bought and sold in this State; (3) that they have lessened lawful trade and full and free competition in — 133 — the purchase aud sale of such products; (4) that they are now unlawfully and illegally fixing the price of said articles in this State; and (5) that they are restraining and limiting full and free competition in the purchase and sale of such products in this State. That there was in September, 1902, up to which time respondents were legitimate competitors of all others in the same business, formed under the laws of New Jersey the National Packing Company, herein called the “National Company,” with power to do a packing business and own and control the stock of other corporations. That the National Company was not organized in good faith for the purpose of engaging in the business authorized by its charter, but as a corporate scheme and device to effect an unlawful arrangement between respondents and others engaged in business in Missouri and the United States, whose names were to the relator unknown, to lessen, restrict and destroy lawful trade and full and free competition, and to regulate, fix and maintain prices, and to control and limit the amount and quantity of things to be sold and offered for sale in Missouri and in the United States; that the scheme was to have the National Company as a holding corporation to acquire the stock and assets of all corporations and the plants of all individuals and partnerships, who, as competitors, did a packing business in Missouri and the United States, so that through the sole control of the National Company it could pursue such policy as would remove all inducement for competition among such parties; that pursuant to the scheme thus concocted the National Company acquired, and has since owned and used, in aid of the said scheme, the stock of respondents, previously engaged in business in Missouri as legitimate competitors, and has since wrongfully operated them ostensibly as separate and competitive companies, whereby the public has been misled and deceived; that it acquired, and has .ever since owned, the stock and assets of the cor — 134 — porations, whose names were unknown to informant, engaged in the same business in Missouri, and the United States, and used the same to carry out the said scheme; that by this method and scheme, lawful trade and full and free competition was lessened, restricted and destroyed, and the quantity and amount of meat products to be offered for sale was controlled and limited. The answer admitted the legality of the incorporation of respondents, their authority to do business in this State, and that as alleged in the informations they were at least until 1902 lawfully engaged in a competitive business with every other like concern in Missouri. Every other averment of the information was put in issue. The defenses presented by the answers were: (1) That the informations failed to state facts sufficient to constitute a cause of action; (2) That there was a misjoinder of parties defendant; (3) That the actions were barred by the Statute of Limitations; (4) That the statute creating the offenses charged had been repealed; (5) That the statute for the alleged violation of which forfeiture was sought was violative of the Federal Constitution; (6) That this court in an original proceeding has no jurisdiction to enforce the antitrust statutes. The commissioner being limited under the .order of his appointment to a finding of the facts did not consider the above defenses, as they presented only questions of law. Before the commencement of these proceedings the Attorney-General under the provision of sections 10332-10338, Revised Statutes 1909, caused an inquiry to be made to ascertain whether informations should be filed against respondents. This inquiry was had before the same commissioner who subsequently took the entire testimony but who was then acting under the. appointment of this court solely for the purposes of the preliminary inquiry. — 135 — The testimony taken at this preliminary inquiry and -which was thereafter introduced in evidence at the regular hearing before the commissioner, consisted of the articles of incorporation and licenses to do business in this State, of the Armour Packing Company, Armour & Company, Swift & Company, Morris & Company, Schwa'-tzchild & Sulzberger, Cudahy Packing-Company, Hammond Packing Company and St. Louis Dressed Beef & Provision Company; a statement showing the total number of cattle, hogs and sheep sold at the Kansas City stockyards in 1909, and the testimony of a number of witnesses interested in or connected in a business way with the respondents. Much of the testimony taken before the commissioner in regard to matters antedating the formation of the National Company is irrelevant, and its consideration is not necessary to a determination of the issues involved. The record shows that whatever organization existed prior to the formation of the National Company was at its creation then terminated and the affairs of the preceding organizations closed up in July, 1902. To effectuate the organization of the National Company -fifteen million dollars was borrowed by representatives of Swift & Company, Armour & Company and Morris & Company, the contract in regard thereto being signed by J. Ogden Armour, G. E. Swift and Edward Morris, heads of Armour & Company, Swift & Company and Morris & Company respectively. The agreement between these parties uppn which was based the organization of the National Company provided that there should be formed a corporation with a bonded indebtedness and preferred and common stock, which should acquire the capital stock, plants, properties and business of Swift & Company, Armour & Company and Morris & Company, G. P. Swift, J. Ogden Armour. and Edward Morris each agreeing that he would have conveyed to the new company at least eighty per cent of the capital stock of the — 136 — company of which he was the head. It was provided that the tangible properties of the three companies should be appraised and payments in bonds and stocks made to each company therefor in such proportion as the value of the assets of each company bore to the value of the three. Each party was to deposit one million dollars with a trust company to secure the performance of his part of the contract. Any party thereto might purchase for the new corporation when formed, the capital stock and the properties and assets of other corporations engaged in the packing business upon the joint account of all of the parties, each of whom was to pay to the one making such purchase such proportion of all payments so made as the actual appraised value of the tangible property agreed to be conveyed by his company bore to the aggregate appraised valuation of all property of Armour & Company, Swift & Company and Morris & Company to be conveyed to the new corporation. Pursuant to said contract purchases were made of the stock of the Omaha Packing Company, Hammond Packing Company, United Dressed Beef Company, Anglo-American Provision Company and its subsidiary companies, and the St. Louis Dressed Beef & Provision Company. These purchases were made at a cost of ten millions of dollars. J. 0. Armour, Gr. F. Swift and Edward Morris borrowed eight million dollars to pay on account of these purchases, securing same by the properties purchased for the proposed consolidation, held by trustees and afterwards conveyed to the National Company. The organized capital of the National Company was fifteen million dollars; the purpose of its organization as declared by its articles of association, was to engage generally in the packing business, but the evidence discloses that it has been operated only as a holding company and as a means of enabling Armour, Swift and Morris to meet to — 137 — gether weekly and direct the corporations whose stock the National owned, as well as an instrumentality to enable the three packing companies, of which these parties were the heads, to form a substantial union of interests. The directors of the National Company are all parties interested in or connected with the Armour, Swift and Morris interests. After the organization of the National Company weekly meetings were held by the representatives of Swift, Morris and Armour, in Chicago, and have been continued since the organization of the National Company. The National Company maintained an auditing department with general traveling auditors who were sent out to audit the books of the various subsidiary corporations. These auditors reported regularly to the general auditor of the National Company. It also maintained various forces to look after the respective departments of the packing business, and reports were daily and weekly made by each subsidiary concern to the National Company in relation to all the business transacted by them. Daily reports were made of the amount of purchases of live stock, the prices paid therefor, the prices paid by Armour, Swift and Morris, and the prices they have paid, and also the amount of stock to be on the market during the day. The National Company had head buyers who went on the market to aid the local buyers of the subsidiary concerns. Information was given each of such concerns as to the amount of purchases to be made by it and the prices at which these purchases should be made; the said concerns made their purchases of finished products through the National Company; they transmitted their wants and orders to it and it placed such orders with whichever company it saw fit. The National Company each clay advised them as to prices at which it could purchase for them, and in some in — 138 — stances the subsidiary concerns were permitted to buy directly if it was found to their advantage. A private wire connected all of the subsidiary corporations with the National Company, and daily information and reports relative to market conditions and the packing business were transmitted over this wire. The National Company charged no commissions on purchases made for the various corporations, but placed orders for each subsidiary corporation. ■ The profits and dividends declared by the National Company were derived from the dividends and profits of the subsidiary corporations, it having no other means of making profits. After the National Company received daily reports as to the purchases made and prices paid by each subsidiary corporation, this information was sent collectively to each of them to inform them what each of the other companies was purchasing and the prices being paid. The National Company also had a system of estimating costs which was substantially the same system adopted by Swift, Morris and Armour. This system and method was largely arbitrary and its basis was seldom changed. The selling price was determined by the estimated cost. The. testimony is to the effect that the actual cost was usually less than the estimated cost, and that in St. Louis and at other points the price at which meat was sold by subsidiary concerns of the National and by Armour, Swift and Morris, was substantially the same. At the weekly meetings of the National Company statistical statements as to all of the subsidiary con cerns of the National, as well as those of Armour, Swift and Morris, were submitted. These statements disclosed the number of cattle purchased by each subsidiary company of the National Company, as well as the Armour, Swift and Morris companies, the volume of shipments made by each subsidiary corporation to the various parts of the United States, and the prices at which packing products had been sold, together with the — 139 — working marginal price. After snch meetings, the president of the National Company, through its employees in charge of the various departments, communicated with the heads of the subsidiary corporations, advising them as to the amount of purchases to be made of live stock and the volume of shipments to be made to the various sections of the country. These matters were decided and determined upon at the weekly meeting of the National Company. Representatives of the subsidiary corporations of the National communicated with the representatives of Armour, Swift and Morris relative to market conditions, prices to be paid and prices at which packing products were sold. The affairs of the National Company and its subsidiary corporations were guided and managed by Swift, Armour and Morris. The uniformity of prices at which live stock was purchased and packing products were sold by Armour, Swift and Morris, and the subsidiary corporations of the National Company, discloses the manner in which the affairs of the subsidiary corporations of the National were controlled and the course pursued by the Armour, Morris and Swift interests. These weekly meetings attended by Swift, Morris and Armour afforded the means and constituted the instrumentality by which these parties agreed upon the affairs and directed the business of each of said concerns. Upon the facts as above set forth the special commissioner found substantially as follows: That there was an agreement and understanding between Swift & Company, Armour & Company and Morris & Company and the National Packing Company and the respondents herein, and the other companies whose properties and assets had been transferred to the National Packing Company, as aforesaid, as to the conduct of their business made and entered into, with a view to lessen, restrict, limit and destroy free competition between said parties to said agreement in the purchase of cat140 tie, sheep and hogs, and in the sale of fresh meats and other packing house products in Missouri and in the United States, and that said agreement and understanding was made for the purpose of fixing and maintaining the prices of cattle, sheep and hogs and the prices of fresh meats and other packing house products in the State of Missouri and in the United States, and for the purpose of controlling and limiting the amount and quantity of fresh meats and other packing house products sold and offered for sale in the State of Missouri and in the United States. And that pursuant to said agreement and understanding Swift & Com. pany, Armour & Company and Morris & Company and the National Packing Company, and respondents herein, and said other companies whose stock and properties'had been conveyed to the National Packing Company as aforesaid, from the time said National Packing Company was incorporated until after the filing of the information in this case, did regulate and fix and maintain the prices of cattle, sheep and hogs and the prices of fresh meats and other packing house products in the State of Missouri and in the United States, and did control and limit the amount and quantity of fresh meats and other packing house products, sold and offered for sale in the State of Missouri and throughout the United States. Formal written exceptions to the report of the commissioner were filed, and these cases are for hearing thereon; they will be considered in the order of their presentation by respondents. Sufficiency of Informations. I. Respondents contend that the informations are insufficient in not specifically charging facts which show, if true, that respondents have violated the antitrust statutes. Before comparing or contrasting authorities pro and con on this subject, it is well, as was said by Mr. Webster on a memorable occasion, that we “glance — 141 — at the sun and take our latitude” lest in a general discussion of cases we are diverted from our true course and fail to readily reach the harbor of right conclusions. Although the sufficiency of an information in a q%w warranto proceeding of the particular class of these under review may generally be measured by the rules applicable to civil cases, as Brown, J., has clearly said in State ex rel. v. Railroad, 240 Mo. 35, our sun, if we may be permitted to continue the figure, in these cases is primarily the statute, which modifies the general rule in antitrust proceedings. It is as follows: “In any suit that is now pending, or which may hereafter be brought, in which it is charged that any pern son, corporation, partnership or association of persons has created, entered into, become a member of or participated in any pool, trust, ag’reement, combination, confederation or understanding in restraint of trade or competition with any other person, corporation, partnership or association of persons, it shall not be necessary to allege or plead the manner in which, or when or where such pool, trust, agreement, combination, confederation or understanding was made or effected.” [Sec. 10310, R. S. 1909.] This statute, the terms of which are unambiguous, simplifies the information, in dispensing with the necessity of specific allegations in regard to the manner in which, the time when and the place where the pool or trust was effected, and is applicable not only to cases where the offenses charged to have been committed are wrong in themselves, but also to those in which a misuser of a lawful right is charged. As to the distinction to be made in the pleadings in these two classes of cases, see State ex rel. v. Railroad, 240' Mo. 35, and especially the concurring opinion of Woodson, J., therein, l. c. 56, and State ex inf. v. Standard Oil Co., 218 Mo. l. c. 367. An analysis of the information under review, the material allegations of which have heretofore been set — 142 — forth, will disclose, although we disregard the statute (Section 10310, supra) and determine the sufficiency of the pleadings by the rule applicable alike to either of the class of cases above referred to, viz., those charging acts wrong in themselves or those involving the unlawful exercise of a right, that they are not only sufficient in containing plain and concise statements of the causes of action (Sec. 1794, R. S. 1909) but in specifically alleging all the facts necessary to properly charge violations of the antitrust statutes. The matter of the sufficiency of informations in quo warranto proceedings of this character was elaborately and learnedly discussed by Paris, J., in State ex inf. v. Arkansas Lumber Co., 260 Mo. 212, in which it was held that although the pleadings viewed by the ordinary rules of procedure were vague, uncertain and indefinite, if, when measured by the terms of the antitrust statutes, they directly charged a violation of same in the language of these statutes, their sufficiency would not be questioned, especially when the fact appeared, as it did in that case, that no timely objections were interposed calling the court’s attention to the defective .pleadings or in any manner preserving such objections for consideration. In the cases at bar the demurrers to the informations, if they can be so considered, were incorporated into and made a part of the returns or answers; no rulings were demanded or made thereon and respondents are in the attitude of having answered over, which effects an abandonment of their demurrers. [State ex rel. v. Bright, 224 Mo. 514, 135 Am. St. 552.] If, therefore, the informations were not sufficient, measured by the rule applicable to this class of cases, and we disregard the literal terms of the statute (Section 10310, supra) which obviates special allegations, they may still be held sufficient under the carefully considered rule announced in the Lumber ease, supra, especially in view of the fact that here as in that cáse no objections were made or preserved in such a — 143 — manner as to entitle them to consideration by this court. In the analysis of these informations to determine their sufficiency we have not overlooked the fact that they contain allegations unnecessary to a proper and precise averment of the offenses complained of; to illustrate : following the allegation that respondents were guilty of entering into and consummating the unlawful combination “among themselves and with each other” it is averred that like offenses were committed by them with “other corporations, partnerships and individuals engaged in the same business (whose names are to informant unknown).” Of this more at length later. It may he said generally, without hypercriticism, that the informations are inartificially drawn and do not as they should, in unnecessary verbiage, point directly and clearly to the material matters in issue; nevertheless, although obscured with words, they are sufficient to charge the respondents with the creation and consummation of a monopoly, or, in other words, a conspiracy in restraint of trade. This being true, the statements of unnecessary matter above set forth may he treated as surplusage. It was so ruled by this court in State ex inf. Hadley v. Railroad, 206 Mo. l. c. 46, which held unnecessary allegations in quo warranto proceedings to be surplusage. In passing, it may be pertinently said that the Hadley case, supra, in its further ruling in regard to this class of pleadings, announced that they were not governed by the general rules of civil procedure, a doctrine since clearly repudiated in State ex rel. v. Grimm, 220 Mo. 483, as noted by Brown, J., in State ex rel. v. Railroad, 240 Mo. l. c. 48. This is relevant only so far as it goes to show that the general rules governing the procedure in civil cases are applicable in quo warranto cases, and as a consequence that it was unnecessary to specify in the informations the other corporations or individuals which by reason of the unlawful combination came un — 144 — der the control of the National Company, because proof of such fact was not necessary to establish respondent’s guilt. The general rule in civil cases is that if a pleading sets forth sufficient facts to constitute a cause of action, plaintiff’s right of redress is not prejudiced by the fact that unnecessary statements are added, but they may be disregarded. [Emmons v. Quade, 176 Mo. 22; Dunlap v. Kelly, 105 Mo. App. 1; Sumner v. Tuck, 10 Mo. App. 269; Van Raalte v. Epstein, 202 Mo. 173.] In harmony with the rule announced in the Hadley case, supra, in regard to unnecessary allegations being regarded as surplusage, see also, Murray v. McGarigle, 69 Wis. l. c. 491; Swift & Co. v. U. S., 196 U. S. l. c. 395; State v. Thompson, 69 Conn. 720, and cases cited in 8 Cyc. 663, under note 9. t^1 Evidence, II. It is not necessary in these cases to enter into a discussion of the character and limitations of the power of the commissioner to take the testimony herein and report his findings . thereon. This has been done in State ex inf. v. Standard Oil Co., 194 Mo. l. c. 164, and the Lumber Company case, supra, and the correctness of the conclusions there reached is not questioned. We have, therefore, taken and considered the testimony in these cases as preserved in the joint abstract, as well as the commissioner’s findings thereon, regarding the latter as persuasive and to be accepted as correct where same, which we did not find to be the case, was not affirmatively wrong. Without repeating the testimony at length, the relevant parts of which we have set forth in.the statement with such succinctness as its prolixity will permit, it is disclosed that the National Company, organized as shown by its articles as a packing company, but utilized entirely as a holding company to direct, regulate and control other corporations, became after its organization the owner by purchase of the — 145 — stock of the respondents, the Hammond Packing Company, the St. Lonis Dressed Beef & Provision Company and of eighty per cent of the Swift, Armonr and Morris companies and of the stock of other packing companies not necessary to be further referred to here. The prime purpose of the organization of the National Company was to enable the heads of the great packing companies, to-wit, Swift, Armour and Morris, who were instrumental in its creation, to form a substantial and effective union of interests and thereby control, not only the supply of live stock furnished to packing houses, but its output as a dressed product, as well as its distribution and the prices to be paid for or received for same. In consummation of this scheme note the successive steps taken by the directory of the National Company not only to effectuate a union of interests but to completely control such interest when united: first, we find that the directors of the National Company were all interested in or directly connected with the Swift, Armour and Morris interests. When organized, the National Company, although its directory made no pretense of transacting any business authorized by its charter, held weekly meetings to direct and control the business of the various corporations whose stock it had acquired. At these meetings reports from all of the corporations whose stock was owned by the National were received in relation to all business transactions by .them; these reports included daily reports of the amounts of live stock purchased, prices paid for same, prices made for live stock by the Swift, Armour and Morris Companies, and the amount of live stock to be on the market each day. Head buyers went on the markets at the various stockyards and aided the buyers of the various packing industries in purchasing stock for their respective companies. In addition, corrections were regularly given by the National Company to each of the other corporations as to the amount of — 146 — purchases to be made by them respectively and the prices authorized to be paid; they were required to make their purchases of dressed or finished products through the National Company if made on another company, and if such order was not satisfactory to the National it was authorized to place the order elsewhere. Each day the National advised the various other corporations as to prices to be paid by them for stock, and at times permitted them to buy directly if found to their advantage. A system of telegraphic intercommunication was in operation between the National and the other corporations, by which the former was enabled to know each day exactly what the other companies were doing in a business way. Much of the other testimony consists of a detailed account of the multiform methods adopted and pursued by the management of the National Company, in not only rendering itself at all times familiar with the business of each of the other corporations, but in practically controlling such business by regulating not only the amount of their purchases and the prices paid for stock, but in the sale of their finished product and the price at which it was to be sold. A careful survey of the foregoing facts amply sustain the finding of the commissioner that the property and assets of respondents were transferred to the National Company to enable it to conduct, and that it did conduct, their business with, their approval and co-operation, which they were powerless to prevent after a sale of a majority of their stock, so as to lessen, restrict, limit and destroy free competition between said companies in the purchase of live stock for food and in the distribution and sale of fresh meats and packinghouse products, and that said transfers and agreements were made for the purpose of fixing- and maintaining the prices of live stock used for food and the prices of fresh meats and other packing- house products, and for the purpose of controlling and limiting- the quantity — 147 — of such meats and other packing house products in the markets sold or offered for sale in this State, and that said respondents, as disclosed by the testimony, from the time said National Company was incorporated and until after the filing of the information in these cases, did regulate, fix and maintain the’ prices of live stock for food and the prices of fresh meats and other packing house products and did control and limit the amount and quantity of fresh meats and other packing house products sold and offered for sale in this State. This view of the fulness and force of the said testimony will, in the event of no prejudicial error being found in the proceedings, suffice to authorize an ouster under the statutes prohibiting unlawful combinations (Secs. 10298-10309, supra) and the. general statute (Sec. 2635, R. S. 1909) authorizing judgments in cases of this character. In reaching this conclusion we have not been unmindful of the rulings of this court (State ex rel. v. Asso. Press, 159 Mo. 410, 467; State ex inf. v. Cont. Tobac. Co., 177 Mo. 1, 37) that offenses such as are here charged, savor of crime and the judgments sought thereon should be rendered only upon clear and convincing proof. In the review of this evidence we have, therefore, considered the intent and purpose of .the acts complained of, which if construed most liberally for the respondents, may not show an affirmative purpose to violate the law, but nevertheless the evidence is amply clear and convincing to show not only a specific intent to restrain legitimate competition in the articles and products involved and the consequent creation of a monopoly, but that by the creation of such a monopoly, trade was, in fact, unlawfully controlled and restrained. This conclusion is sustained by many authorities here and elsewhere construing the statute invoked as well as others of a similar character. [Nor. Secu. Co. v. U. S., 193 U. S. 197; State ex rel. v. Inter. Harv. Co., 237 Mo. l. c. 405; State ex inf. v. Armour — 148 — Pack. Co., 173 Mo. 356; State ex inf. v. Firemen’s Fund Ins. Co., 152 Mo. 1; People v. Sheldon, 139 N. Y. 251; People v. North Riv. S. R. Co., 121 N. Y. 582; People v. Gas. Tr. Co., 130 Ill. 268; Heim Brew. Co. v. Belinder, 97 Mo. App. 64.] The force and effect of this testimony is not weakened by the fact that on their face the articles of incorporation of the National Company, the instrumentality through which respondents affected the unlawful combination and agreement, which prevented competition and restrained trade bore evidence of the organization of said company for legal purposes, if, as we hold it has been shown here, such organization grew out of and was a part of an unlawful conspiracy between respondents to control the output, price'and distribution of the articles and products in which they dealt and thus practically render impossible all legitimate competition (Finck v. Schneider Gr. Co., 187 Mo. l. c. 268). The general rule in regard to combinations of the character here, under review as announced in Swift & Co. v. United States, 196 U. S. 395, is not inappropriate, in this connection; that although the separate elements of a scheme may be lawful if found to be bound together by a common intent as parts of an unlawful scheme to effect a monopoly, the plan may make the parts unlawful. The liability of respondents for violations of the statutes in question, if committed in this State, as we hold them to have been, will not be affected by the fact that the instrumentality through which they operated in violating the law was a corporation which had been organized for ostensibly legitimate purposes in another State. [Euston v. Edgar, 207 Mo. 287.] From all the foregoing we find that the combination of respondents under the direction and management of the National Company resulted in a common management, a community' of stock interests, an arbitrary fixing of the purchase and selling prices of live — 149 — stock for food and the dressed product thereof and a limiting at the will of the management of the quantity or amount of live stock to be bought or sold, all of which resulted in the lessening or destruction of competition in this State between respondents and the other corporations whose stock was acquired by the National Company. Limitations, III. The contention that these proceedings are barred by the Statute of Limitations might be entitled to serious consideration under the statute (Sec. 1914, R. S. 1909) which subjects actions brought by the State or for its benefit to a like bar to that applicable to actions between private parties; and as these proceedings are for penalties or forfeitures the three years’ Statute of Limitations (Sec. 1890, R. S. 1909) would apply were it not for the fact that the pleadings allege that at the time they were filed, and the testimony shows that, not only at the time' of the institution of these suits but thereafter respondents were members of and participated in the unlawful pool, trust and combination. The contention of the bar by limitations or from laches is, therefore, without merit. ofISpart?es! IY. Respondents further contend that there is a misjoinder of parties defendant; that one corporation cannot be joined with others in a quo ivcirranto pro7 ceeding for an abuse or misuse of corporate rights, because such a charge has relation to the individual contract of each of such corporations with the State, and that there is no such joinder of rights or interests as to authorize one proceeding against all. As has been heretofore shown, informations in quo warranto are governed by the rules of pleadings in civil cases. The respondents .are charged not only with the same offenses, but such offenses are alleged to have been joined and to have — 150 — been committed in an abuse and misuse of their franchises growing out of the connection of -their transactions with each other. Under this state of facts, if guilty, the State is entitled to only one satisfaction, if it may be so designated, to-wit: A forfeiture of the corporation’s franchises, or in the case of foreign corporations, a revocation of their licenses and such penalties as may be adjudged in addition thereto. [Sec.. 10304, R. S. 1909.] This being true, the joint proceedings of the State against the respondents, in the two-actions, which might well have been brought as one, is-in conformity with the Code of Civil Procedure (See-Secs. 1734 and 1795, R. S-. 1909) prescribing in the one-instance who may be joined as defendants, and in the-other what causes of action may be united in one petition. The invoking of the authorities of these civil procedure statutes to sustain a joinder in the cases-under review, finds confirmation in State ex inf. v. Standard Oil Co., 218 Mo. l. c. 362, where the matter was ruled upon in conformity with the conclusion reached herein,' and a number of Missouri cases cited in support thereof. Repeal of Statutes. Y. If the contention of respondents as to the repeal of the statutes under which these proceedings were brought was seriously made, it has- . been abandoned in their brief and arguments. It will suffice to say that these-statutes were repealed and a new act was passed in-relation to the entire subject-matter of pools, trusts- and discriminations at the session of the Forty-seventh General Assembly (Laws 1913, pp. 549-555), but this act in no manner changed the burden.of the offenses necessary to authorize the proceedings herein, but simply made additions to the acts declared in the former statute to be necessary to constitute an unlawful combination in restraint of trade. Respondents — 151 — are, therefore, in nowise materially affected by this legislation and their contention is lacking in "merit. AdjucMcation. VI. A defense of former acquittal or prior adjudication of the matters here involved was urged by counsel for respondents in the oral argument,- but was in no manner pleaded or otherwise preserved for review. Therefore, whether the rule in criminal or civil procedure be applied, this question is not here for our consideration. of°s“al,ty VII. The contention that the antitrust statutes are violative of the Constitution of the United States, urged by respondents in their answer, tat seemingly- abandoned in their briefs, is so completely foreclosed against respondents’ contention by the ruling of this court in State ex inf. v. Standard Oil Co., 218 Mo. l. c. 376, which was affirmed by the Supreme Court of the United States (224 U. S. l. c. 290), that time and space heed not be taken in discussing this question. The validity of these statutes under the Constitution of this State has also been settled. [Finck v. Schneider Gr. Co., 187 Mo. 244, 271.] Finding no error in these proceedings,. a judgment of forfeiture of the franchises of the St. Louis Dressed Beef & Provision Company should be entered, dissolving and ousting it from all corporate rights under the laws of this State, and in addition that a fine of twenty-five thousand dollars be imposed against it; and it appearing that the other respondents, to-wit: the Hammond Packing Company, the Armour Packing Company, the Morris Company and Swift & Company are foreign corporations authorized to do business in this State, it is ordered, for the violations of the law aforesaid in their abuse and misuse of the authority conferred on them, that their licenses to do business in — 152 — this State be revoked, and in addition that a fine of twenty-five thousand dollars be imposed against each of said corporations; and that each of said fines so imposed be paid into the State Treasury for the use and benefit of the State of Missouri, on or before the 15th day of June, 1915. St. Louis Dressed Beef & Provision Company, ouster and a fine of twenty-five thousand dollars; Hammond Packing Company, revocation of license and a fine of twenty-five thousand dollars; Armour Packing Company, revocation of license and a fine of twenty-five thousand dollars; Morris & Company, revocation of license and a fine of twenty-five thousand dollars; Swift & Company, revocation of license and a fine of twenty-five thousand dollars. Upon the payment of the fines severally assessed against each of said corporations, within the time above limited, the forfeiture of the franchises of the St. Louis Dressed Beef & Provision Company, and the revocation of the licenses to do business in this State of the other corporations herein named as respondents, will be stayed pending the further order of this court, upon the conditions hereafter to be set forth by this court in its order and judgment in regard hereto. All of which is so ordered. Woodson, G. J., and Brown and Faris, JJ., concur, Woodson, G. J., in separate opinion; Faris, J., dubitante as to what is said concerning section 10310, Revised Statutes 1909; Graves, J., concurs in result of the opinion as to judgment of guilt as found in majority opinion, but thinks that under the peculiar facts in this case the fines are excessive and dissents as to the amount of the fines; Bond, J., dissents in part and concurs in part in separate opinion; Blair, J., having been of counsel, not sitting. — 153 — pieading and Procedure^ m in original Proceedmgs.