
    The State ex rel F. S. Monnett, Attorney General, v. The Buckeye Pipe Line Co. The State ex rel F. S. Monnett, Attorney General v. The Solar Refining Co. The State ex rel F. S. Monnett, Attorney General v. The Ohio Oil Co. The State ex rel F. S. Monnett, Attorney General v. The Standard Oil Co.
    
      Trusts — Act to define — pj, O.L. 143 — Forbidding independent corporations to enter combinations, etc — Legislative power— Constitutional law.
    
    The act entitled “An act to define trusts, etc.,” 93 O. L. page 143, in so far as it forbids independent corporations to enter into combinations to restrict competition in trade with a view to exacting from consumers higher prices than would prevail under the conditions of open competition, is an exercise of legislative power not repugnant to any limitation prescribed by either the state or federal constitution.
    (Decided January 30, 1900.)
    In Quo Warranto.
    In these cases the late attorney general filed petitions in quo warranto containing several causes of action and alleging the grounds upon which he claims the said corporations should be ousted of their franchises. The first causes of action in the three first cases are substanially copies of the petition upon which the judgment of this court in the State on the relation of the Attorney General v. The Standard Oil Company, 49 Ohio St., 137, is founded. The questions now to be determined arise upon the second causes of action in the several petitions. In those causes of action the allegations of the first causes of action are by averment alleged to be true, as though fully repeated. This mode of pleading is manifestly improper, since the causes of action are independent. The second cause of action counted upon violations of the act of April 19, 1898 (93 O. L., 143), entitled “An act to define, trusts and provide for criminal penalties in civil damages, and punishment of corporations, persons, firms and associations, or persons connected with them, and to promote free competition in commerce and all classes of business in the state.”
    In the second cause of action it is alleged against each of the defendants that it entered into a combination with nineteen other named corporations for the purpose of preventing competition in the production, transportation and refining of petroleum, and of fixing and maintaining the prices at which its various products should be sold. It is alleged that the same persons are chosen to the directories of said several corporations, to the end that their opera-, tion may be so controlled as to accomplish the purpose of said trust agreement, the object of which is alleged to be that the functions of producing, transporting and refining petroleum are so apportioned among them as to prevent competition. The terms of the agreement are not set out, but its purport is alleged as follows: “The said defendant company whoily violated the said act in carrying out said trust contract, obligations and agreements by continuing to bind itself and remaining obligated not to sell, dispose of and transport petroleum or any of its products that are now, or have heretofore been used in trade for merchandise or consumed by the citizens of the state of Ohio at a fixed value, and have confederated and agreed to establish and maintain the price of said petroleum and its products at a higher price than the said commodities would have been furnished to the consumers had the said trust agreement not been made, entered into and continued as aforesaid, the true amount and advance between the competitive price and the price determined by said combination, plaintiff has not the means of fully stating and advising the court, and that they have by entering into said trust agreements and by continuing operation thereunder, directly and indirectly precluded a free and unrestricted competition among themselves as well as between purchasers and consumers in the transportation and sale of said petroleum and all its products; that the defendant company has, by entering into and continuing in its operation under said agreements hereinbefore set forth and by entering into other and further agreements, the nature of which plaintiff is unable to state, defendant company has agreed to pool, combine and have directly and indirectly united its interest with the said nineteen other companies hereinbefore set forth, and its stockholders, directors, officers and other persons to the plaintiff unknown, in order that they may have connected with the transportation and sale of said petroleum and all its products, so that its price is fixed thereby in this, to-wit: that the open market, competitive' price of the high-grade of petroleum or illuminating oil manufactured and refined by defendant company, is about four (4) cents per gallon. By means of said combination and confederation by which this defendant directly and indirectly aids the other said nineteen companies is able to destroy competition and extort an amount from the purchasers, residents of the state of Ohio, eight (8) cents and upwards per gallon for said commodity to the detriment of the citizens of the state of Ohio, and wholly in abuse of its corporate rights, franchises and powers.”
    The prayer of each petition is that the defendant be adjuged to have forfeited its corporate rights, privileges and franchises and that it be ousted and excluded therefrom.
    It was probably in view of the averment intended to couple the first cause of action with this, that the defendant, instead of demurring to the second cause of action, made it the subject of a second defense in the answer in which they allege that the act referred to is unconstitutional. To this defense a demurrer is interposed on behalf of the state. The same questions are raised in case No. 6416 by the allegation of the fifth defense in the answer alleging that the act is unconstitutional. To this defense there is a reply denying that the act is unconstitutional, but this may be treated as a demurrer. The act is as follows:
    “An act to define trusts and to provide for criminal penalties and civil damages, and punishment of corporations, persons, firms and associations, or persons connected with them, and to promote free competition in commerce and all classes of business in the state.
    “Section 1. Be it enacted by the General Assembly of the State of Ohio, That a trust is a combination of capital, skill or acts by two or more persons, firms, partnerships, corporations or associations of persons, or of any two or more of them, for either, any or all of the following purposes:
    “1. To create or carry out restrictions in trade or commerce.
    “2. To limit or reduce the production, or increase or reduce the price of merchandise or any commodity.
    “3. To prevent competition in manufacturing, making, transportation, sale or purchase of merchandise, product or any commodity.
    “4. To fix at any standard or figure, whereby its price to the public or consumer shall be in any manner controlled or established, any article or commodity of merchandise, produce or commerce intended for sale, barter, use or consumption in this state.
    “5. To make or enter into or execute or carry out any contracts, obligations or agreements of any kind or description, by which they shall bind or have bound themselves not to sell, dispose of or transport any article or any commodity or any article of trade, use, merchandise, commerce or consumption below a common standard figure or fixed value, or by which they shall agree in any manner to keep the price of such article, commodity or transportation at a fixed rate or graduated figure, or by which they shall in any manner establish or settle the price of any article, commodity or transportation between them or themselves and others, so as to directly or indirectly preclude a free and unrestricted competition among themselves, or any purchasers or consumers in the sale or transportation of any such article or commodity, or by which they shall agree to pool, combine or directly or indirectly unite any interests that they may have connected with the sale or transportation of any such article or commodity, that its price might in any manner be affected. Every such trust as is defined herein is declared to be unlawful, against public policy and void.
    “Section 2. For a violation of any of the provisions of this act by any corporation or association mentioned herein, it shall be the duty of the attorney-general, or the prosecuting attorney of the proper county, to institute proper suits or quo warranto proceedings in the court of competent jurisdiction in any of the county seats in the state where such corporation or association exists or does business, or may have a domicile. And when such suit is instituted by the attorney-general in quo warranto, he may also begin any such suit in the supreme court of the state, or the circuit court of Franklin county, for the forfeiture of its charter rights, franchises or privileges and powers exercised by such corporation or association, and for the dissolution of the same under the general statutes of the state.
    “Section 3. Every foreign corporation, as well as any foreign association, exercising any of the powers, franchises or functions of a corporation in this state, violating any of the provisions of this act, is hereby denied the right and prohibited from doing any business in this state, and it shall be the duty of the attorney general to enforce this provision by bringing proper proceedings in quo warranto in the supreme court, or the circuit court of the county in which defendant resides or does business, or other proper proceedings by injunction or otherwise. The secretary of state shall be authorized to revoke the certificate of any such corporation or association heretofore authorized by him to do business in this state.
    “Section 4. Any violation of either or all of the provisions of this act shall be and is hereby declared a conspiracy against trade, and any person who may become engaged in any such conspiracy or take part therein, or aid or advise in its commission, or who shall as principal, manager, director, agent, servant or employer, or in any other capacity, knowingly carry out any of the stipulations, purposes, prices, rates, or furnish any information to assist in carrying out such purposes, or orders thereunder or in pursuance thereof, shall be punished by a fine of not less than fifty ($50) dollars nor more than five thou-sand ($5,000) dollars, or be imprisoned not less than six months nor more than one year, or by both such fine and imprisonment. Each day’s violation of this provision shall constitute a separate offense.
    “Section 5. In any indictment for any offense named in this act, it is sufficient to state the purpose or effects of the trust or combination. And that the accused is a member of, acted with or in pursuance of it, or aided or assisted in carrying out its purposes, without giving its name or description, or how, when and where it was created.
    “Section 6. In prosecutions under this act, it shall be sufficient to prove that a trust or combination, as defined herein, exists, and that the defendant belonged to it, or acted for or in connection with it, without proving all the members belonging to it, or proving or producing any article of agreement, or any written instrument on which it may have been based; or that it was evidenced by any written instrument at all. The character of the trust or combination ah leged may be established by proof of its general reputation as such.
    “Section 7. Each and every firm, person, partnership, corporation or association of persons, who shall in any manner violate any of the provisions of this act, shall for each and every day that such violations shall be committed or continued, after due notice given by the attorney general or any prosecuting attorney, forfeit and pay the sum of fifty ($50) dollars, which may be recovered in the name of the state, in any county where the offense is committed, or where either of the offenders reside; and it shall be the duty of the attorney general, or the prosecuting attorney of any county on the order of the attorney general, to prosecute for the recovery of same. When the action is prosecuted by the attorney general against a corporation or association of persons, he may begin the action in the circuit court of the county in which defendant resides or does business.
    “Section 8. That any contract or agreement in violation of the provisions of this act, shall be absolutely void and not enforcable either in law or equity.
    “Section 9. That the provisions hereof shall be held cumulative of each other and of all other laws in any way affecting them now in force in this state.
    “Section Í0. It shall not be lawful for any person, partnership, association or-corporation, or any agent thereof, to issue or to own trust certificates, or for any person, partnership, association or corporation, agent, officer or employe, or the directors or stockholders of any corporation, to enter into any combination, contract or agreement with any person or persons, corporation or corporations, or with any stockholder or director thereof, the purpose and effect of which combination, contract or agreement shall be to place the management or control of such combination or combinations, or the manufactured product thereof, in the hands of any trustee or trustees with the intent to limit or fix the price or lessen the production and sale of any article of commerce, use or consumption, or to prevent, restrict or diminish the manufacture or output of any such article, and any person, partnership, association or corporation that shall enter into any such combination, contract or agreement for the purpose aforesaid shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not less than fifty dollars, nor more than one thousand dollars.
    “Section 11. In addition to the criminal and civil penalties herein provided, any person who shall be injured in his business or property by any other person or corporation or association or partnership, by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any court having jurisdiction thereof in the county where the defendant resides or is found, or any agent resides or is found, or where service may be obtained, without respect to the amount in controversy, and to recover two-fold the damages by him sustained, and the costs of suit. Whenever it shall appear to the court before which any proceedings under this act may be pending, that the ends of justice require that other parties shall b,e brought before the court, the court may cause them to be made parties defendant and summoned, whether they reside in the county where such action is pending, or not.
    “Section 12. The word ‘person’ or ‘persons’ whenever used in this act, shall be deemed to include corporations, partnerships and associations existing under or authorized by the state of Ohio, or any other state, or any foreign country.
    “Section 13. This act shall take effect and be in force from and after the first day of July, 1898.”
    
      F. S. Monnett, Attorney General, and Edgar B. Kinhead and Smith W. Bennett, of counsel, for the state.
    
      Is the Valentine-Stewart anti-trust law unconstitutional upon the following grounds?
    
      a. Does' it violate article 1, section 1, of the constitution of the state by depriving persons of liberty, and of acquiring, possessing and protecting property?
    
      b, Does it violate article 1, section 16, of the constitution of Ohio by depriving persons of their property without due process of law?
    
      o. Does it violate article 1, section 9, of the constitution of Ohio by inflicting cruel and unusual punishments?
    
      d. Is it a retroactive law?
    e. Does it violate section 1 of the 14th amendment to the constitution of the United States, by abridging the privileges or immunities of citizens of the United States, or by depriving persons of liberty or property without due process of law, or does it deny to persons within its jurisdiction equal protection of the laws?
    
      †. Does it violate article 1, section 8, of the constitution of the United States by interfering with the power of congress to regulate commerce with foreign nations and with the several states? Does it violate article 1, section 10, of the constitution of the United States as an ex post facto law or law impairing the obligation of contracts?
    The controlling principle that governs any such legislation and the rule which should dominate the proper construction of any such act, is that of salios populi est suprema lex; wherever the welfare of the whole people of the state are concerned, or any part thereof, the principle contended for applies.
    One of the early decisions frequently followed and cited by this court in the earlier adjudications is that of Lewis v. McIlvaine, 16 Ohio St., 354; Ry. Co. v. Clinton Co., 1 Ohio St., 77; Lehman v. McBride, 15 Ohio St., 573; Walker v. Cincinnati, 21 Ohio St., 41; State v. Kendle, 52 Ohio St., 442; Ireland v. Turnpike Co., 19 Ohio St., 373; Leep v. Ry. Co., 41 Am. St. Rep., 109; Fox v. McDonald, 46 Am. St. Rep., 98; 
      Ry. Co. v. Dey, 81 Am. St. Rep., 477; Woodworth v. Ry Co., 36 Am. St. Rep., 309; In re Maderra Irr Dist., 27 Am St. Rep., 106; Stevenson v. Coglan, 25 Am. St. Rep., 230; Mauldin v. City Council, 46 Am. St. Rep., 723.
    We assert and cite authorities for the court’s consideration as to what limits in the said law the party defendant can claim as a defense to the constitutionality of the act. We claim that all of the sections of the act are not involved in this controversy, or in other words, if it is only such parts of said act, as affect this defendant in this action, that the courts will hear them complain of the unconstitutionality.
    Courts will not permit the constitutionality of a statute to be questioned by persons whose -rights it does not affect, Sullivan v. Berry, 4 Am. St. Rep., 147; Commissioners v. State, 12 Am. St. Rep., 183.
    Persons whose rights are not affected by a statute cannot avoid its operation on the ground that it impairs an obligation of contract between others. 4 Am. St. Rep., 147; People v. Budd, 15 Am. St. Rep., 460.
    So in the federal court it is with equal jealousy that the federal courts preserve the legislative power of congress and have repeatedly held that the presumption is always in favor of the validity of the .statute if the contrary is not clearly demonstrated. Cooper v. Telfair, 4 Dallas, 14; Fletcher v. Peck, 6 Cranch, 87; Pine Grove v. Talcott, 19 Wall, 666.
    Such power being clearly vested in the legislature to enact such a law, it was only re-incorporating into the statute what the common law, as early as the day of the great Blackstone, had said was the law. Wendell’s Blackstone, Vol. 2, p. 407, note 13, and Vol. 4, p. 158.
    The act to protect trade and commerce against unlawful restraint and monopolies, commonly known as the Sherman Anti-trust act (July 2, 1890), expressed the policy of the United States. 26 Stat., 209 C., 647; U. S. V. Trans-Missouri Freight Association, 166 U. S., 290.
    Many of the sovereign states have retained a clause or inserted a clause in their constitution declaring all monopolies or contracts in restraint of trade odious and forbidden. N. C. Constitution, Art. L., Sec. 31; Tennessee Constitution, Art. 1, Sec. 22; Texas Constitution, Art. 1, Sec. 18; Compiled Laws of New Mexico, p. 382, Sec. 1292; Stimson Am. Stat. Law, Vol. 2, p. 580, commencing with Sec. 9900 down to and including 9905, on p. 950.
    There may be said to be two principal ways in which the organization of the so-called trusts or prohibited combinations are accomplished.
    In the first the former structure of the original individual undertaking is preserved. The managers of these several corporations, companies or business simply agree among themselves to transfer all, or at least a majority of their stock, in trust to a central committee of trustees, who give back to them in return trust certificates to the estimated value of the plant and property of the individual, together with the good will of the business and any patents it may control or advantages which it may possess, making its consolidation Avith the trust particularly desirable. Each member also generally receives back a mortgage covering his original property given by the trustees to secure the individual in case the combination should fail or be dissolved. The trustees then “have the poAver to elect the directors, place their own agents in charge, prevent all clashing of interests and so control the market.” This is the “original or simón pure trust.” Hobson’s Modern Capitalism, p. 130; Yon Halle on Trusts, p. 127; Cook’s Corporation Problem, p. 218, 219; Headley’s Economics, p. 158.
    Of such form was the Standard Oil trust, the Cotton Oil trust, the Sugar trust, the Whiskey trust, and the host of combinations that folloAved in their train. See the result of New York trust investigation given in “Appendix A” of Cook on Trusts.
    The second method of forming the consolidations differs but little in its practical workings from the first. In form it is a gigantic corporation, it consolidates the undertakings itself, either by leasing them for a term of years or by purchasing them outright, giving its own stock in payment. The pioneer of this second group was the Diamond Match Co., and to it belond also many of the railroad combinations. The United States Leather Company; the United States Rubber Company; The American Tobacco Company, and later the Continental Tobacco Company; the Cleveland & Sandusky Brewing Company, and most of the new companies that are forming, and old trusts as they have been reorganized. See Von Halle on Trusts, p. 108; Cook on “The Corporation Problem,” pp. 244, 245.
    This act we claim to be but a fair exercise of the police power reserved in every government, state or national. While it is difficult to give an exact definition of police poAver applicable in all cases, it is necessary to do so in this case. Cooley’s Con. Lim., 6th Ed., 624 and 572 ; 4 Blackstone’s Commentaries, 162; Commonwealth v. Alger, 7 Cush., 84; Thorpe v. Railway Co., 27 Vt., 149; 4 Thompson on Corporations, Sec. 5472; Ry Co. v. Mower, 6 Kas., 573; Nelson v. R. R. Co., 26 Vt., 717; State v. Chamber of Commerce, 47 Wis., 670; Ins. Co. v. Needles, 113 U. S., 574 ; Holden v. Hardy, 169 U. S., 366.
    In the case at bar we do not seek to apply any neAv principles, but only those ancient as the time of Lord Coke, announced in the case of “monopolies,” Darcy v. Allen, Coke’s Rep. No. XI, p. 840; State v. Standard Oil Company, 49 Ohio St., 187.
    It will be observed that the common welfare is the basis of public policy as well as the source of the police power of the state. State v. Noyes, 47 Me., 211; Lake View v. Rose Hill Cemetery, 70 Ill., 192; 
      Slaughter House Cases, 16 Wal. 36; Butchers’ Union Co. v. Crescent City, 111 U. 8., 746; New Orleans v. Stafford, 27 La. Ann., 417; Cooley’s Con. Lim., 4th Ed. 506.
    In the exercise of this power states have the right to prohibit the adulteration of food products. State v. Campbell, 64 N. H., 402; People v. West., 44 Hun., 162; People v. Arensberg, 105 N. Y., 123; Waterbury v. Newton, 50 N. J. L., 534; Plumley v. Mass., 155 U. S., 461; Commonwealth v. Waite, 11 Allen, 264 ; Cooley Con. Lim., 4th Ed., 596; Commonwealth v. Hamilton Mfg. Co., 120 Mass 383; Shaffer v. The Union Mining Co., 55 Md., 74; Cooley’s Con. Law, 235; Underwriters v. Whippel, 37 N. Y. S., 712; 2nd App. Div., 361; State v. Ins. Co., 50 O. S., 252; Jorden v. Overseer, 4 Ohio, 294; Munn v. Ill., 94 U. S., 113; Railway Co. v. Iowa, 94 U. S., 115; Railway Co. v. Iowa, 94 U. S., 115; Stone v. Wisconsin, 94 U. S., 181; People v. Budd, 117 N. Y., 1; Reagan v. Farmers L. & T. Co., 154 U. S., 362.
    Monopolies have been condemned for centuries by the common law. The Common law upon this subject is very well understood and not much need be said upon it here. The United States v. Addyston Steel Co., 54 U. S., App., 723; Mitchell v. Reynolds, 1 P. Williams, 181; Mandeville v. Harman, 7 Atlantic, 37 (N. J.).
    Sale of good will of a business or employment, with an agreement not to engage in the business under reasonable restrictions, etc., have always been regarded as lawful. Lang v. Werk, 2 Ohio St., 520; Lufkin Rule Co. v. Fringeli, 57 Ohio St., 596.
    Public policy is hard to define. The definition adopted in Ohio is probably the most approved one by the courts of last resort. Hurd et al. v. Robinson et al., 11 Ohio St., 237; Beach on Monopolies, etc., Sec. 16; Crawford v. Wick, 18 Ohio St., 190; Salt Co. v. Guthrie, 35 Ohio St., 666; Scofield v. R. R. Co., 43 Ohio St., 571; Emery v. Ohio Candle Co., 47 Ohio St., 320; Field Cordage Co. v. Natl. Cordage Co., 6 Ohio C. C. Rep., 615; 3 C. D., 613; Lead Co. v. Lead Co,, 9 Bulletin, 310; 8 Dec. Re., 762; Hoffman v. Waterfield Co., Cti. Sup. Ct., 11 Bul., 258; 6 Dec. Re., 215; Thomas v. Miles, 3 Ohio St., 275; Grasseli v. Louden, 11 Ohio St., 349; Stines v. German, 25 Ohio St., 580.
    All of the cases where the doctrine that partial reasonable restraints in trade have been held valid, would fall under the first purpose in the trust law if under any; and as we have argued, a contract can not fall within that purpose now unless it is for the direct and immediate or main purpose of restraining trade. 171 U. S., 505; 54 U. S. App., 723.
    No contract for the purpose of limiting or reducing production, or to increase or reduce price, the second purpose of the law, was ever held valid. No contract or combination to prevent competition was ever held legal. None of the other purposes of the act were ever considered legal.
    It was upon the construction that the act included contracts in reasonable as well as unreasonable restraint of trade, that Justice Swayne, in the In re Grice, 79 Fed., 627, declared the Texas law unconstitutional. This was an erroneous construction and the case was reversed by the supreme court, 169 U. S., 284.
    Two supreme courts have already declared in favor of the constitutionality of laws of this character, namely, Texas and Missouri. Waters-Pierce Co. v. State, 44 S. W., 936; State v. Firemen’s Insurance Co., 52 S. W., 595.
    Many of the evils aimed at by the law which have resulted and. are the usual result from restrictions of trade and monopolies may be found in the decisions of the court. Pearsall v. Great Northern Ry. Co., 161 U. S., 646; Hooker v. Vandewater, 4 Denio, 349; Tiedeman on Police Power, 25; 166 U. S., 322; Coot on Trusts, p. 51.
    It will be conceded that the so-called anti-trust law is an exercise of police power, and whether it has transcended the legislative power or authority is a judicial question. Ry. Co. v. Beckwith, 129 U. S., 29; Ward v. Farwell, 97 Ill., 608.
    One of the contentions of the defendant is that the act is unconstitutional in the method in which it provides for proof, viz.: the character of the trust or combination may be established by proof of its general reputation as such. In reply to this criticism we beg leave to remind the court that the legislature had full power to prescribe rules of evidence and methods of proof. This clause only provides a rule of evidence, and as such- evidence it is not made conclusive, but the parties have an opportunity to rebut such evidence by proof, submitting issues under all evidence to the court. Meadowcroff v. People, L. R. A., 177; State v. Beach, 36 L. R. A., 179; State v. Hurley, 54 Me., 562; State v. Kingsley, 108 Mo., 135; Cooley Con. Lim., 309; Pennsylvania Co. v. McCann, 54 Ohio St., 10; Commissioners v. Merchants, 103 N. Y., 143; 57 Am. Rep., 705.
    To the objection that the act in question abridges the privileges or immunities of citizens of the United States, it is sufficient to quote the opinion of Justice States, it is sufficient to quote Paul v. Virginia, 8 Wallace, 177; Liverpool Ins. Co. v. Mass., 10 Wal., 573; Orient Co. v. Daggs, 172 U. S., 561.
    Does the act in question deny to the defendant the equal protection of the law? Cooley on Con. Lim., 490; Missouri v. Lewis, 101 U. S., 22; Hayes v. Missouri, 122 U. S., 68; Lowe v. Kansas, 163 U. S., 81; Tinsley v. Anderson, 171 U. S., 101.
    Does the act in question deprive the defendant of its property without due process of law? The act in question only prohibits the defendant, as well as other citizens, from entering into such contracts and engaging in such acts as are hurtful to society and consequently in opposition to the public welfare. There can be no vested right granted to any individual or set of individuals to do that which is wrongful and in violation of public policy. Stone v. Mississippi, 101 U. S., 814; Beer Co. v. Mass., 97 U. S., 25; Thorpe v. Ruthland, 27 Vt., 149; State v. Wheeler, 25 Conn., 290; Mayor v. Miln, 11 Peters (U. S.), 139; Cochran v. VanSerley, 20 Wend., 380; Dorman v. State, 34 Ala., 232; Boston v. Cummins, 16 Ga., 112; Hamilton v. St. Louis Co., 15 Mo., 23; Wynehamer v. People, 13 N. Y., 390; Town of Guildord v. Supervisors, 13 N. Y., 143; Dibbrell v. Morris Heirs, 15 S. W., 87; Sharpless v. Mayor, 21 Pa. St., 147; Bertholdi v. O’Reilly, 74 N. Y., 514; Tiedeman Lim. Pol. Powers, p. 5; Cooley’s Elements of Tort, p. 99;
    
      M. F. Elliott and Virgil P. Kline, and Lawrence T. Weal, for the defendants.
    We say that the act of April 19,1898:
    I. Makes penal all association of two or more persons for business purposes.
    II. Renders it impossible for two or more persons associated to carry on business; and,
    III. That the right of persons to associate and carry on business is one of the liberties protected by the fourteenth amendment to the Federal Constitution and by article 1, section 1, of the constitution of Ohio.
    That act defines a trust as follows: “A trust is a combination of capital, skill or acts by two or more persons, firms, partnerships, corporations-or associations of persons, or of any two or more of them, for either, any or all of the following purposes.”
    The words “combination of capital, skill or acts,” embrace every method by which men can associate in business, whether by partnership, corporatibn, joint-stock association or by contract of any nature. Parsons on Partnership, 3rd Edition, p. 6; 3 Kent’s Commentaries, p. 23; 1 Lindley on Partnership (4th Ed., p. 3).
    
      In order to demonstrate that the act makes criminal all association for business purposes, it is only necessary to show that one or more of the enumerated purposes is essential to every business association, whether partnership, corporation, or joint-stock association, being so necessary a factor of the combination that the existence of the one implies the existence of the other.
    This renders it necessary 'to consider what the law regards as a “purpose.” A purpose is a mental state, an intent, a design. Every man is prima facie supposed to intend every necessary or even probable consequence of his own act. Broome’s Legal Maxims, 7 Ed., p. 307; Bishop on Crim. Law, Sec. 337; Ins. Co. v. Texas, 86 Texas Rep., 250; Texas Coal Co. v. Lawson, 89 Texas Rep., 398.
    I. We now call attention to the prohibitions which we claim prevent all association of two or more persons in business, to-wit:
    
      a. Combinations of capital, skill or acts of two or more persons which prevent competition in manufacturing, making, transportation, sale or purchase of merchandise, produce or any commodities.
    5. The making or entering into or carrying out or executing any contract, obligation or agreement of any kind or description by which (two or more persons) shall in any manner, directly or indirectly, preclude a free and unrestricted competition among themselves, or any purchasers or consumers in the sale or transportation of any article or commodity, or by which,
    
      c. They shall agree to pool, combine, or, directly or indirectly, unite any interests they may have in connection with the sale or transportation of any such article or commodity that its price might in any manner be affected.
    We do not claim that the act is unconstitutional because it makes criminal the union of capital, skill and acts which create restriction in trade. Our claim is that the act is unconstitutional because it makes criminal contracts between two or more persons which “prevent competition” or which “preclude directly or indirectly a free and unrestricted competition among themselves,” and prevent the “union, directly or indirectly, of any interests,” which might in any manner affect prices.
    It is usual in articles of co-partnership to stipulate that each partner shall devote his time and attention to the business of the firm and shall not engage in any business in competition with the firm. This is an agreement to prevent competition. Parsons on Partnership, 4th Ed., Sec. 153; Matthews v. Associated Press, 136 N. Y., 333.
    There is no possible escape from the obvious and self-evident proposition that any association in business prevents competition among the persons associated, and that if prevention of competition is made criminal, association is made impossible. Prevention of competition is a purpose or effect of every co-partnership, joint-stock association, or corporation. It is a purpose or effect of every contract, agreement or understanding by which men associate or co-operate. Prevent men from making contracts which preclude a free and unrestricted competition among themselves and we are at once relegated to the savage state.
    II. In addition to the provisions of the act which make associations for business purposes impossible, other provisions render business by two or more persons associated impossible.
    Without dwelling upon this provision we may ask how it is possible for two or more persons to associate in business if they may neither limit nor reduce their production nor increase nor reduce the price of their commodities, nor agree not to sell below a common standard figure; nor to settle the price either as between themselves or themselves and others; nor to unite their interests so that price might in any manner be affected. In re Grice, 79 Fed. Rep., 642.
    It may be contended that the legislature did not intend to interfere with corporations or partnerships or the right of association; that the act recognizes associations as already existing — a fact which could not be ignored — cannot defeat the plain language which renders their future existence penal. Neither can the plain language of a statute be altered by reference to other statutes. Fisher v. Blight, 2 Cranch, 358; Schooner v. The U. S., 7 Cranch, 52; United States v. Freeman, 3 H., 556; McPherson v. Blacker, 146 U. S., 1, 27; United Society v. Eagle Bank, 7 Conn., 457.
    Neither can the act be confined to prohibition of unreasonable restraint of competition. It is specific and particular in describing what character of restrictions of competition is meant, and embraces every agreement which directly or indirectly precludes free and unrestricted competition between few or many. U. S. v. Freight Assn., 166 U. S., 290.
    III. Thq right of persons to associate and carry on business and to enter into contracts necessary to their business, is one of the liberties protected by the fourteenth amendment to the Federal constitution.
    The constitution protects liberty of contract, except in so far as that liberty encroaches upon the liberty of others. Allgeyer v. La., 165 U. S., 578; Butcher’s Union Co. v. Crescent City, 111 U. S., 746; Bertholf v. O’Reilly, 74 N. Y., 509; In re Jacobs, 98 N. Y., 98; People v. Marx, 99 N. Y., 377; People v. Gillson, 109 N. Y., 389; Forster v. Scott, 136 N. Y., 577; Printing Co. v. Sampson, 19 Eq. Cases, 462; U. S. Chem. Co. v. Prov. Chem. Co., 64 Fed. Rep., 946
    The courts of many states of the union have guarded their right of contract by declaring unconstitutional acts which infringe upon it. Godcharles v. Wigeman, 113 Pa. St., 431. The United States Circuit court in Ohio declared unconstitutional a statute preventing railroad companies from contracting with employes in respect of personal injuries. Shearer v. Pa. Co., 71 Fed. Rep., 931. The supreme court of this state held an act relating to mechanics’ liens void because it interfered with the right of contract. Palmer v. Tingley, 55 Ohio St., 423. It has also been held that the statute requiring certain employers to pay their employes twice a month is unconstitutional. In Illinois the truck-store act, the coal-weighing act and other legislation has been set aside for the same reason. Frorer v. People, 141 Ill., 171; Ramsey v. People, 142 Ill., 380; Harding v. People, 160 Ill., 459; Richie v. People, 152 Ill., 98.
    Legislation has been pronounced unconstitutional in other states on the same ground. Kuhn v. Detroit, 70 Mich., 534; Spry Lumber Co. v. Trust Co.. 77 Mich., 199; State v. Loomis, 115 Mo., 307; State v. Julow, 129 Mo., 163; State v. Good will, 33 W. Va., 179; Ex parte Kuback, 85 Cal., 274; Low v. Reese Printing Co., 41 Neb., 127; In re Eight Hour Law, 21 Col., 29; Com. v. Perry, 155 Mass., 117.
    Among the rights of contract thus protected is the right of men to form business relations among themselves. Cooley on Torts, 278; Tiedeman’s Lim. Police Powers, 233.
    All these views are well supported by authorities. Railway Co. v. Jacksonville, 67 Ill., 37; Coe v. Schultz, 47 Barb., 64; Quintini v. City of Bay St. Louis, 1 S. R., 625; Lake View v. Rose Hill Co., 70 Ill., 191; Thorpe v. R. R. Co., 27 Vt., 140; Lowry v. Rainwater, 70 Mo., 152; Jeck v. Anderson, 57 Cal., 251; People v. Gillson, 109 N. Y., 389; Colon v. Lisk, 153 N. Y., 188; People v. Arensberg, 103 N. Y., 399; People v. Warden, 144 N. Y., 529 ; Health Dept. v. Rector, 145 N. Y., 32.
    As to the history of laws against combination we call attention to “Rogers Economical Interpretation ’ of History,” chapter 2, and the statutes in 37 Edw. III, and the Statute of Laborers, in 23 Edw. III, and 34 Edw. III; 3 Henry VI, C. 1; 15 Henry VI, C. 6; from 28 Edw. I to James I, 37 acts against laborers were passed. All were repealed and a new one framed, 5 Eliz., C.4. This system of infamous laws which enslaved the laborer was not finally swept away from the statute book until 1825. See Albert Stiekney’s “State Control of Trade and Commerce;” 5 and 6 Edw. VI., C. 14; 7 and 8 Vic., V. 24; 27 Edw. III, A. D. 1553; 28 George III, C. 53; 17 George III, C. 42.
    Co-partnerships were therefore recognized as combinations which prevented competition and affected prices. How could it be otherwise? Mitchell v. Reynolds, 1 Smith’s L. C., 511.
    One form of partnerships was condemned by law in a manner which suggests the statute under consideration, namely: a partnership with transferable shares, or a joint-stock association. 6 George I, C. 18; In R. v. Webb, 14 East., 406; Pratt v. Hutchinson, 15 East., 511; 1 Lindley on Partnerships, 193; Mogul S. S. Co. v. McGregor, L. R.; 23 Q. B. D., 598.
    The first American case in which an opinion was enunciated which, carried to its full extent, would be fatal to association, was Hooker v. Vandewater, 4 Denio, 349. People v. Fisher, 14 Wend, 9; Stanton v. Allen, 5 Denio, 434; Com. v. Carlisle, Brightley (Pa.), 36; Central Salt Co. v. Guthrie, 35 Ohio St., 666; Emery v. Ohio Candle Co., 47 Ohio St., 320; Coal Co. v. Coal Co., 68 Pa. St., 173; Bagging Assn. v. Koch, 14 La Ann., 168; U. S. v. Coal Co., 46 Fed. Rep., 432; Lumber Co. v. Hayes, 76 Cal., 387; Craft v. McConoughy, 79 Ill., 346; Gibbs v. Gas Co., 130 U. S., 396; Mitchell v. Reynolds, 1 P. Williams, 181; Marsh v. Russell, 66 N. Y., 288; Phippen v. Stickney, 3 Met., 384; Lorillard v. Clyde, 86 N. Y., 384; Shade Roller Co. v. Cushman, 143 Mass., 353; Match Co. v. Roeber, 106 N. Y., 473; Leslie v. Lorillard, 110 N. Y., 519; Matthews v. Ass. Press., 136 N. Y., 333; Jones v. Fell, 5 Fla., 510; R. R. Tax Cases, 13 Fed. Rep., 743; U. S. Pipe Co., 85 Fed. Rep., 271.
    
      IV. The act is also unconstitutional because of the provisions of sections 5 and 6. Fouts v. State, 8 Ohio St., 98; Hartman v. Commonwealth, 5 Pa St., 60; O’Neil v. Vermont, 144 Vt., 323; Cooley on Con. Lim., 556; Hoke v. Henderson, 4 Div., 1; Plimpton v. Somerset, 33 Vt., 283; Clark v. Mitchell, 64 Mo., 581; People v. Cannon, 139 N. Y., 32; State v. Beswick, 3 R. I., 211; State v. Kartz, 13 R. I., 528; Kirby v. United States, 174 U. S., 47; 39 N. H., 305; Boyd v. United States, 116 U. S., 616; R. R. Co. v. Smith, 173 U. S., 684; Greenwood v. Freight Co., 105 U. S., 13; Commonwealth v. Essex Company, 13 Gray, 239; People v. O’Brien, 111 N. Y., 1; Detroit v. Detroit, 43 Mich., 140; Cherokee Nation v. Ry Co., 135 U. S., 641; Ry v. Ohio, 173 U. S., 285; Smith v. Ames, 169 U. S., 466; Ry. v. Beckwith, 129 U. S., 26; Ry. v. Ellis, 165 U. S., 154; Turnpike Co. v. Parks, 50 Ohio St., 568.
    Y. The act violates both the state and Federal constitutions in that it is restrictive, ex post facto, and impairs the obligations of contracts. Rairdon v. Holden, 15 Ohio St., 207; Tiedeman’s Lim. Police Powers, p. 76; Fletcher v. Peck, 6 Cranch, 137; I Kent Commentaries, 409; Cummings v. Missouri, 4 Wal., 277; Ex parte Garland, 4 Wal., 333; Planter’s Bank v. Sharp, 6 How., 301; Green v. Biddle, 8 Wheat., 76; 1 How., 317; 4 Smedes & Marshall, 507; Ring v. Bank, 15 Mass., 447.
    VI. The statute in question is in violation of article 1, section 8, of the constitution of the United States, which provides that congress shall have power to regulate*commerce with foreign nations and among the several states. Crutcher v. Kentucky, 141 U. S., Sup. Ct. Rep., 47; Steamship Co. v. Tinker, 94 U. S., 328; Telegraph Co. v. Texas, 105 U. S., 460; Ferry Co. v. Penn., 114 U. S., 196; Steamship Co. v. Penn., 122 U. S., 326; McCall v. California, 136 U. S., 114; Arnold v. Yanders, 56 Ohio St., 417.
    VII. The act violates both the Federal and state constitutions by inflicting cruel and unusual punishments. O’Neil v. Vt., 144 U. S., 325.
    VIII. It may be contended that some or all of the sections above discussed may be unconstitutional without affecting the remainder of the act. We think not. The rule that part of an act may fail and the remainder may stand has very strict limitations when applied to penal acts. United States v. Reese, 92 U. S., 214; United States v. Harris, 106 U. S., 629; Trade Mark cases, 100 U. S., 582; Baldwin v. Franks, 120 U. S., 678; 5 Ohio St., 497; 17 Ohio St., 684.
    The relator refers to numbers of contracts which, while indirectly restrictive of trade and competition, are legal at common law, and contends that they are not condemned by the Ohio act. Our answer is that all contracts of the character reférred to are clearly made criminal by the act. As for example, contracts on sale of good will not to engage in the same business; contracts between partners not to engage in a rival business, etc., etc. Who can doubt that such contracts not only indirectly, but directly prechide free and unrestricted competition between the contracting parties? Ry. Co. v. Pullman Car Co., 139 U. S., 79; The express cases, 117 U. S., 1; Williams v. Montgomery, 118 N. Y., 519; Brown v. Rounsavell, 78 Ill., 589; Newell v. Mergendorff, 19 Mont., 254; 58 F. R., 58.
    
      Foraker, Outcalt, Granger & Prior, and W. W. Fuller, for the defendant,
    Continental Tobacco Company, in a case similar to the case at bar, were permitted to be heard at the same time, and submitted a brief against the constitutionality of the act.
    The offense around which the statute centers is a combination of capital, skill or acts among two or more persons for the purpose of restricting trade. This constitutes what the statute calls a “trust,” and what if declares to be “a conspiracy against trade.” The offense is committed by the forming of the conspiracy; the accessories after the fact are the only persons who are indictable for carrying the conspiracy ont. It necessarily follows, then, that venne is an important feature in the application of the statute ; for the statute has no extra-territorial effect.
    Statutes have no extra-territorial effect unless such effect is expressly declared. Woodward v. Ry. Co., 10 Ohio St., 121; Lehman v. McBride, 15 Ohio St., 573.
    . The act of April 19, 1898, prohibits and ppnishes only such combinations and contracts in restraint of trade as were illegal at common law.
    The sole purpose of the act is to prohibit and punish conspiracies against trade. This limitation dominates the act and subserves all that public policy demands. What is a conspiracy? Commonwealth v. Hunt, 4 Met., 111; Pettibone v. U. S., 148 U. S., 203 ; Mogul Steamship Co. v. McGregor, 93 Q. B. D., 614; Tarlton v. McGauley, Peake, 270; Garret v. Taylor, Cro. Jac., 567; Bowen v. Hall, 6 Q. B. Div., 333; Crump’s Cases, 84 Vo., 927; Ray on Contractual Limitations, 293; Kelly v. Mfg. Co., 44 Fed. Rep., 19; Story’s Eq. Juris., Vol. 2, 13 Ed., p. 255; Simmons Co. v. Mansfield Co., 23 S. W., 165; Brown on Trade Marks, Sec. 43, et seq.; Cab Co. v. Mooney, 15 Abb. N. C., 152; McLean v. Fleming, 98 U. S., 245; Hazard v. Coswell, 57 How., Pr., 29; Brown v. Slidel, 153 Pa. St., 60; Jaeger v. LeBoutelier, 27 N. Y., Sup. 890.
    The Standard Oil Company was a combination largely made up of corporations entered into for the express purpose of controlling the production of oil and its prices by means which were ultra vires and illegal. State v. Standard Oil Co., 49 Ohio St., 137; Cattle Co. v. People, 156 Ill., 448; People v. Refining Co., 54 Hun., 356; 121 N. Y., 696; Pacific Factor Co. v. Adler, 90 Cal., 110.
    The combinations in the following reported cases were unquestionably conspiracies against trade. They were formed for the very purpose of controlling the market by restricting production so as to enhance prices, or by stilling competition among the members under agreements not to compete with each other, or by creating a “corner,” and in a maimer that had a necessary tendency to oppress individuals and prejudice the public by unjustly subjecting them to the power of the confederates. Morris Run Coal Co. v. Marclay Coal Co., 68 Pa. St., 173; Arnot v. Coal Co., 68 N. Y., 553; Craft v. McConnoughy, 79 Ill., 246; Bagging Assn. v. Koch, 14 La Ann., 168; Anderson v. Jett, 89 Ky., 275; People v. Sheldon, 139 N. Y., 251; Judd v. Harrington, 139 N. Y., 105; Chapin v. Brown, 83 Iowa, 156; 96 Cal., 510; Vulcan Powder Co. v. Hercules Powder Co., 96 Cal., 510; Oil Co. v. Adone, 83 Texas, 650; People v. Milk Exchange, 145 N. Y., 267; Santa Clara Lumber Co., v. Hays, 76 Cal., 387; Carbon Co. v. McMillan, 119 N. Y., 46; Salt Co. v. Guthrie, 35 Ohio St., 666; Emery v. Ohio Candle Co., 47 Ohio St., 320; Jackson v. Brick Assn., 53 Ohio St., 303 ; Samuel v. Oliver, 130 Ill., 73; Hoffman v. Brooks, 11 W. L. B., 258; Queen Ins. Co. v. State, 24 S. W., 397; In re Greene, 52 Fed. Rep., 104; People v. Duke, 44 Y. Supp., 340.
    Combinations entered into for the purpose of stopping disastrous competition have been repeatedly sustained in the American courts, within the limitation of the means being lawful. Oakdale Mfg. Co. v. Garst, 28 Atlantic Rep., 773; Skrainka v. Sharinghausen, 8 Mo. App., 522; Bohn Mfg. Co. v. Hollis, 54 Minn., 223; Kellogg v. Larkin, 3 Penn., 123; Rafferty v. Buffalo Gas Co., 56 N. Y. Sup., 288; U. S. Chemical Co. v. The Provident Chemical Co., 64 Fed. Rep., 946; Herriman v. Menzies, 46 Pac. Rep., 730; Presser v. U. S., 116 U. S., 252; Rutter v. Henry, 46 Ohio St., 272.
    A contract whereby the seller agrees to give certain rebates in prices if the seller will for a certain period of time maintain a certain price in selling at retail the brand of goods sold, is not a contract in unlawful restraint of trade. Clark v. Frank, 17 Mo. App., 602; In re Greene, 52 Fed. Rep., 104; In re Corning, 51 Fed. Rep., 205; Olmstead v. D. & C. Co., 77 Fed. Rep., 265; Brewster v. Miller, 41 S. W. (Ky.), 301; Cohen v. Envelope Co., 56 N. Y. Supp., 588; Roller Co. v. Cushman, 143 Mass., 353; Dolph v. Luandry Co., 28 Fed. Rep., 553; Watch Co. v. Howard Co., 55 Fed. Rep., 851; Parkhurst v. Kinsman, 1 Blatch, 488; United States v. Kelson, 52 Fed. Rep., 646; Lenz v. Brown, 41 Wis., 172; Walsh v. Windmill Co., 36 S. W., 71; Carter-Crume Co. v. Peurrung, 86 Fed., Rep., 437; Hitchcock v. Anthony, 83 Fed. Rep., 779; Hodge v. Sloane, 17 N. E., 335; Thermometer Co. v. Poole, 4 N. Y. Supp., 861.
    Literally construed in disregard of the limitations for which as contended the act of April 19, 1898, would violate that provision of the fourteenth amendment to the Constitution of the United States which declares that no state shall deprive any person of liberty or property without due process of law. Wynehamer v. People, 13 N. Y., 392; Hurtado v. California, 110 U. S., 516; Low v. Reese Printing Co., 24 L. R. A., 702; Frorer v. People, 141 Ill., 171; People v. Gillson, 109 N. Y., 289; Slaughter House Case, 16 Wall., 36; State v. Goodwill, 33 W. Va., 179; In re Jacobs, 98 N. Y., 106; Leep v. Ry. Co., 58 Ark., 407; State v. Loomis, 115 Mo., 307; Godcharles v. Wigenan, 113 Pa. St., 431; Coal Co. v. People, 147 Ill., 66; Commonwealth v. Perry, 155 Mass., 117; Palmer v. Tingle, 55 Ohio St., 423; Lawton v. Steele, 152 U. S., 133.
   Shauck, C. J.

Counsel seem to be in accord as to the mode of challenging the validity of the act and, without devoting time to iriticism of the pleadings, we follow them in the consideration of that question. In the brief on behalf of the state it is said that the act is merely declaratory of the common law. If that prop-' osition could be accepted it would relieve the cases of all difficulty, but for obvious reasons it cannot be accepted. The act creates criminal offenses and prescribes penalties to be imposed upon those who commit them; while, as is well known, we have no common law crimes in this state. Furthermore, it is quite clear that as to some of the persons and contracts within the operation of the act its purpose is to authorize proceedings against parties who are performing the terms of the forbidden contracts, while without the aid of the statute courts can denounce the contracts as unlawful only when by actions against defaulting parties they are called upon to aid in their enforcement. The act may in other respects exceed the common law.

We do not, however, deem it necessary or prudent to pass upon all the objections which are urged against the act. It is quite familiar doctrine that in determining the constitutional validity of statutes their different provisions are not necessarily subject to the same conclusion. They are not, unless they constitute a single scheme, and are so interdependent that it could not be rationally presumed that any of them would have been made if it had not been supposed that all could be enforced. The application of this doctrine to the act before us is quite clear in view of the differences in the nature of the several combinations which are forbidden and in the characters of those against whom the prohibition is directed. Moreover, that the legislature regarded the provisions of the act as severable, is indicated by the distributive force of the phrase “either, any or all,” preceding the enumeration of the forbidden purposes, as well as by the terms of the ninth section requiring that the provisions of the act shall be held to be cumulative with respect to one another as well as with respect to other laws.

We are, therefore, to consider only those provisions of the act which are relevant to the cases before us. These cases are civil actions brought against independent corporations. The contract which we are asked to denounce is not incidental to the sale of property or any interest therein. It does not concern the good Avill of any business. It does not contemplate the formation of any corporation or other company for the carrying on of any business. In the subject of the contract the interests of the contracting parties are not adverse; they are not even diverse. The agreement, according to the allegations of the petition, has no purpose whatever except to prevent competition in the production, transportation and refining of petroleum, to the end that there may be received from the consumers of its products higher prices than would prevail under the condition of open competition. Counsel for the defendants admit that such a contract is within the inhibitions of the act, but deny the poAver of the legislature to inhibit it. Laws of this general character were entirely familiar to our English ancestors and to those who framed the American constitution. In view of the omnipotence of the English parliament, such enactments do not, of course, furnish a standard for the validity of enactments passed by our legislatures, whose poavers are subject to defined limitations. They do, however, show that such real or supposed invasion of the interests of the public was a well known subject for the exercise of legislative power. The definite proposition of counsel upon this point is that although the act is an exercise of legislative power, it transcends the provisions of the state and Federal constitutions which render inviolable the rights of liberty and property, which include the right to make contracts. It would be difficult to place too high an estimate upon these guaranties, and they include the right to make contracts. But it is settled that these guaranties are themselves limited by the public welfare or the exercise of the police power. Although that power may not be conclusively defined, its nature and attributes have been the subject of much investigation. In all considerate discussions of the subject it is conceded that in the exercise of this power the legislature can prohibit only those uses of property which are hurtful to the public, and the inhibited use must be hurtful in a legal sense. That contracts like these are hurtful in that sense has been held in more cases than it would be practicable to cite. They abound throughout nearly three centuries of the development and administration of the common law in England and America. We cite, because of their full consideration of the subject and their direct application to legislation of this character, United States v. The Trans-Missouri Freight Association, 166 U. S., 290; United States v. Joint Traffic Association, 171 U. S., 505; United States v. The Addyston Pipe & Steel Co., 54 U. S. App., 723. These cases are applicable, since the provisions of the Federal anti-trust statute are not substantially different from those of the Ohio act which are brought under consideration in these cases, and there is no substantial difference between the contracts or constitutional provisions involved. That the contracts there considered were in restraint of commerce between states, served only to bring the subject within federal jurisdiction. The considerations affecting the validity of the legislation are in all respects as applicable here as there. Since the contract alleged in these petitions is for the sole purpose of restraining trade or limiting competition, we find no decision which doubts that they are in a legal sense hurtful to the public. There appear to be differences of opinion respecting the test of the reasonableness of contracts of sale where the good will of a business is in part the subject of the transaction and there are restraints imposed upon the vendor to secure the purchaser in the subject of the sale. But such doubts do not extend to contracts whose only purpose is to* impose such restraints. Such contracts have been uniformly held to be unlawful. They cannot be reasonable in a sense which would bring the right to make them within the protection of any guaranty of either the state or federal constitution.

The demurrers are sustained.  