of the persons to be subjected to the burden of the particular tax. The class of persons to be subjected to the tax in question are employers. The law, considered as a revenue measure, must, in order to be valid, bear uniformly, either upon all employers in this state, or upon some portion of them who may be found to come reasonably within a narrower classification.

The act of 1919, considered as such a tax measure, attempts to make such narrower classification by confining the application of its burden to those employers only whose workmen killed in the course of employment leave no surviving dependents. Such a classification, in order to be valid, must have some reasonable basis for this differentiation. The only basis which is or can be urged in its support consists in the occasional and purely accidental circumstance that such employers happen to have such workmen having no dependents, killed in the course of their employment. It should require neither argument nor authority to show that such a purely adventitious condition could form no reasonable basis for the classification attempted by this act, particularly in view of the other provisions thereof, by the terms of which the proceeds of this tax are to be devoted to the benefit, not of the employers required to pay the tax, nor even of their employees, but to the benefit and betterment of a class of persons bearing no relation to either, but who have been injured in other employments in the general course of industry.

T

The Lumber Trade Exchange Decision

HE decision of the Supreme Court of Missouri in State v. Boeckler Lumber Co. and others, 254 S. W. Rep. 385, in which the dissolution of the St. Louis Lumber Trade Ex-. change was decreed on the ground that it was operating in violation of the anti-trust laws of Missouri, was referred to at length in the December issue of the Business Law Journal.

In the opinion, as originally filed, a judgment of ouster against the lumber corporations, which were members of the Exchange was prescribed. This meant that these corporations would be dissolved and deprived of their corporate franchises, in addition to being required to pay the fines imposed against them.

Upon motion to modify (256 S. W. Rep. 175), the judgment of ouster was suspended on condition that each corporation, within 60 days after December 3, 1923, should show by affidavits that it had withdrawn from all agreements and understandings which would, in any way, fix or affect prices, discriminate against dealers or buyers, or restrict open, honest and free competition in the lumber business; that it would promptly report to the Attorney General

any offer or suggestion that it enter into any such agreement or understanding; that it would not participate in the publication o distribution of any price current, except as derived from actual bona fide sales previously made in full competition, and that it was not then engaged in and would not in the future engage in any practices which would violate the letter or spirit of the Missouri anti-trust laws.

The opinion on the motion to modify, written by Judge James T. Blair, deals more indulgently with the companies which were members of the Exchange than does the original opinion of the court, referred to in the December issue of this publication. While not overlooking the fact that there had been a violation of the law, the court takes note of many circumstances indicative of good faith and showing a lack of intentional wrongdoing.

In this later opinion the court calls attention to the fact that, prior to the organization of the Exchange, the lumber business in St. Louis had "become shot through with evil practices," including "the substitution of grades; the substitution of species; intentional shortages in quantities actually delivered; various credit and financing devices, whereby the contractors were virtually bribed and the contracts bought from them.”

Referring to this condition of affairs and the bearing which it had on the questions before the court, it is said in the opinion:

Whatever may be said of its importance, or even competence, upon the question of guilt or innocence, it is clear that the existence of the practices detailed would call for remedy, and that the conditions described, proved beyond question to exist, ought to be understood and kept in mind. when what was subsequently done is considered with respect to the punishment to be inflicted. The men who are responsible for the formation of the St. Louis Lumber Trade Exchange-in fact, all the retail dealers—are entitled, on this question, to have their acts judged in the light of all the facts and conditions which enmeshed them at the time, and to have their motives and intentions finally judged on the evidence in the record. There is no doubt that a cold-blooded entrance into a deliberate contract to unite in robbing a community by the method of fixing prices is not only contrary to the statute but is highly immoral as well. Upon this relator, respondents, counsel and the court all agree. The question whether this record shows such an agreement in its worst form, or shows something less, is another matter, and is to be solved by the record.

In further setting forth its reasons for suspending the judgment of ouster the court called attention to a part of the history of the

organization of the Exchange and the good faith on the part of those who organized it in the following paragraphs:

About the first of the year 1917 one of the gentlemen who was a member of the old organization (the Retail Lumber Dealers' Association) attended a meeting of lumbermen in Chicago, at which an address was made by Hon. L. C. Boyle, ex-Attorney General of Kansas and a lawyer of ability and distinction. The St. Louisan's interest was aroused and he talked with Mr. Boyle. He returned to St. Louis, and the upshot of the matter was that Mr. Boyle was invited to address the lumber dealers of St. Louis, and subsequently did so. He seems to have been told of conditions in St. Louis. He discussed them, and in a general way suggested what he assured his hearers were legal methods of removing the evils which certainly existed. As to the details of organization, he recommended that Hanks & Gregg, of Chicago, be called in to advise. This was thereafter done, and they evolved the charter and by-laws of the St. Louis Lumber Trade Exchange. These were submitted to Mr. Boyle and received his approval, and this approval was communicated to the gentlemen concerned in St. Louis.

Quite a number of the St. Louis dealers went further. They submitted the plan to their own counsel, and those counsel approved its legality. It may be said that the question of legality of the plan under our law was passed upon by a list of lawyers which contains names which are well known for ability, learning and integrity, and it would require considerable hardihood to intimate that any of the number would render a legal opinion, except in the best of faith, for any reason. All this the organization had before them when they instituted the St. Louis Lumber Trade Exchange.

At this time, then, the members are to be judged in the presence of the conditions which surrounded them, which no one will deny were not only ruinous to the dealer and injurious to the consuming public and to the lumber trade as a business but wrong in themselves. Further, it does not appear that relator or any of his witnesses have been able to suggest any method which would have been available to correct the then existing conditions, and it is certain that respondents theretofore had been unable to find means to extricate themselves, except by voluntary or involuntary retirement from the field. It ought not to be held on this record that respondents were not in good faith desirous of putting the business on a right basis. In addition, their course, intent and motives ought to be examined in the light of the legal advice they took, and that advice ought to be viewed as it appeared to them, strengthened and fortified by the ability and character of counser who gave it. It is not to be understood from this that any advice from any source can be put forward as a defense to the charge in this case. It is meant that the things stated have to do with the amount of punishment to be inflicted...

Tested by the requirements of the statute, the system adopted was wrong; but when the good faith of the dealers is judged in the light of the facts shown by the record, it does not appear that their offense was com

mitted in any such open disregard of the law, as it is and was written, in such fashion as appeared in several cases heretofore cited. The record abounds in proof to the contrary, unless all usual methods of weighing evidence are to be abandoned. It is proved by the evidence as to the intent of the dealers, the advice they took, and the results accomplished.

The court also pointed out that by suspending the judgment of ouster jurisdiction of all the parties could be retained. point it said:

On this

In this case a group of relatively small retail corporations, operating in one community, is at the bar. They are domestic corporations, except two, which employ nearly all their capital in this state. The suspended ouster plan, efficacious against great corporations, would be peculiarly effective in this case. The public and respondents' competitors easily and readily could and would discover any new violations. The impending punishment would constitute an effective deterrent. If it did not, the ultimate punishment could be inflicted promptly and at any time. If it did, then respondents would continue in competition in the retail business. If absolute ouster goes, a majority of the retail capital is at once put out of business in the district. The result is a reduction in the number of the competitors, and, doubtless, the appearance of a large retail lumber corporation, with many yards throughout the territory. Even if this does not prove true, and organizations are formed which, in a competitive sense, will succeed respondents, in any subsequent prosecution the state must again make out a whole new case. There is, so far as public benefit is concerned, a sort of suggestion of futility about the method of absolute ouster which seems to show it to be far less effective to the end desired than is the method of sentence suspended in part...

Jurisdiction is retained, and, in the case of any violation of the conditions of suspension of ouster, the court may, upon a showing made at the instance of the Attorney General, reopen the case for further consideration, and may convert the suspended ouster into an absolute ouster, or consider the further punishment to be adjudged.

At the time of the filing of the original prevailing opinion leave was extended to Chief Justice Woodson and Judge Graves to file a dissenting opinion. Such an opinion was filed by Judge Graves and concurred in by the Chief Justice. The opinion shows in unequivocal language that these judges were strongly opposed to the suspension of the judgment of ouster.

Digest of Recent Business Decisions

Below are given, in digest form, recent decisions of the State and Federal Courts affecting business. The decisions are grouped under appropriate headings, alphabetically arranged. At the beginning of each decision is given the title, the court by which it was decided, and the reporter citation