St. 58, 63. But, while he is not estopped from proceeding to set aside the sale and the lease by reason of his agency and his obligations as trustee, he comes into court assailing and seeking to cancel a legal title; for until that is done his possession is that of the complainant. Under these circumstances, until the hearing, the practice in the courts of chancery is not to disturb the possession under the legal title prior to the final decree, unless a case of monstrous wrong is established. Stilwell v. Wilkins, Jac. 280, reported in full in Edwards on Receivers, p. 28, Lord ELDON, when a similar question was presented, observed:

"The point that struck me was whether, on a bill to impeach a sale for fraud, the court interposes so strongly before the hearing as to take away the possession from persons holding it under the effect of deeds not yet set aside by decree."

-And he holds that "it was not the general habit of the court." There the case was so monstrous, and the proof was so strong, that "it was hardly possible that the transaction could stand," and the legal title was interfered with.

This is a leading case, and gives what we find is the rule. The possession under the title is not disturbed unless the proof of fraud is so strong as to lead the court to the clear conviction that it will, on the final hearing, be established. The fraud set up and relied upon by the defendant and intervenor is false and fraudulent representations by the agents of the complainant in this: that they represented that the stock was fully paid-up stock, whereas, in truth and fact, it was none of it paid up in money, and only paid up in part, and, to the extent of that part, by transfer of plants or bakeries and manufactories at an estimated value as capital. The stock delivered to the defendant and intervenor was not paid up until it was issued to them, and was paid for by a transfer of the bakery and good-will; and then it became paid up, and they were discharged from all liability to be made to contribute as shareholders therefor. The testimony as to what was represented by complainant's agents about the stock being paid up is conflicting; but, when viewed in connection with the circumstances under which the stock was received, fails to satisfy us, upon this preliminary hearing, that any false representations are proved to have been made. The case of the defendant and intervenor, set up in their cross-bill, whereby they oppose the appointment of a receiver, is that of parties who seek to rescind a deed on the ground of fraud, which upon this hearing they fail to establish.

So far we have considered the question of appointing a receiver of the property in controversy inter partes, and mainly from the stand-point presented by the defendant's showing, and thereon such appointment seems proper, and we should accord it, but for an aspect of the case originally suggested by the defendant, when the case was pending in the state court, apparently abandoned here, but sufficiently brought to our notice. by the exhibits of both parties. We are not satisfied that the complainant's business is legitimate. While the nominal purpose of the complainant's corporation, as stated in its charter, is the manufacture and

sale of biscuit and confectionery, its real scope and purpose seems to be to combine and pool the large competing bakeries throughout the country into practically what is known and called a "trust," the effect of which is to partially, if not wholly, prevent competition, and enhance prices of necessary articles of food, and secure, if not a monopoly, a large control, of the supply and prices in leading articles of breadstuffs. The case shows that an insignificant number of shares of complainant's stock was unconditionally subscribed for, apparently enough to qualify directors; but the great mass was taken and held by irresponsible parties, to be used in parceling out as full-paid stock to such leading and successful bakeries throughout the country as could be induced to come in on an agreed value of the property and a large estimate of good-will. Each bakery when secured to be carried on by its former managers, subject, however, as to control of funds, territory, prices, and competition, to the central management; all profits pooled, and of course division thereof to be made on the basis of the stock assigned to each bakery. Under this arrangement complainant has already secured the control, and pooled the business, of 35 of the leading bakeries in 12 different states of the west and south, and is evidently seeking more constituents. The act of congress approved July 2, 1890, entitled "An act to protect trade and commerce against unlawful restraints and monopolies," expressly prohibits, under severe penalties, "every contract, combination, in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states," and declares punishable "every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, any part of the common trade or commerce among the several states." The enforcement of this act is, by the statute, devolved upon the circuit courts of the United States. The first and third sections of an act of the legislature of Louisiana, approved July 5, 1890, entitled "An act to protect trade and commerce against unlawful restraints and monopolies, and to provide penalties for the violation. of this act," declare:

"Section 1. That every contract, combination in the form of trust, or conspiracy in restraint of trade or commerce, or to fix or limit the amount or quantity of any article, commodity, or merchandise to be manufactured, mined, produced, or sold in this state, is hereby declared iilegal.”

"Sec. 3. That every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, any part of the trade or commerce within the limits of this state, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court."

In construing the federal and state statutes, we exclude from consideration all monopolies which exist by legislative grant; for we think the word "monopolize" cannot be intended to be used with reference to the acquisition of exclusive rights under government concession, but that the law-maker has used the word to mean "to aggregate" or "concentrate" in the hands of few, practically, and, as a matter of fact, and according to the known results of human action, to the exclusion of oth

ers; to accomplish this end by what, in popular language, is expressed in the word "pooling," which may be defined to be an aggregation of property or capital belonging to different persons, with a view to common liabilities and profits. The expression in each law "combination in the form of trust" would seem to point to just what, in popular language, is meant by pooling.

Now it is to be observed that these statutes outline an offense, but require for its complete commission no ulterior motive, such as to defraud, etc.; and, further, that the language is altogether silent as to what means must be used to constitute the offense. The offense is defined to "combine in the form of trust, or otherwise, in restraint of trade or commerce," and "to monopolize, or attempt to monopolize, any of the trade or commerce." To compass either of these things, with no other motive than to compass them, and by any means, constitutes the offense. One just and decisive test of the meaning of the expression "to monopolize" is obtained by getting at the evil which the law-maker has endeavored to abolish and restrict. The statutes show that the evil was the hindrance and oppression in trade and commerce wrought by its absorption in the hands of the few, so that the prices would be in danger of being arbitrarily and exorbitantly fixed, because all competition would be swallowed up, so that the man of small means would find himself excluded from the restrained or monopolized trade or commerce as absolutely as if kept out by law or force. If this is the meaning of the defining words, does not this corporation, thus glutted with the 35 industries of 12 states, disclose an "attempt to monopolize?" So far, therefore, as the complainant's business is a combination in restraint of trade, or is an "attempt to monopolize, or combine, in the form of a trust, or otherwise, any part of trade or commerce," as these words are properly defined, the law stamps it as unlawful, and the courts should not encourage it. Aside from this, the complainant's business, even if lawful, being of the kind shown above, is not of that meritorious kind that it should be encouraged by a court of equity. The appointment of a receiver by a court of equity is not a matter of strict right, but of judicial discretion. Fosdick v. Schall, 99 U. S. 235. It falls within that class of interlocutory remedies which courts must grant or withhold, according to a discretion conscientiously exercised, upon a consideration of all the facts which a cause presents, involving the rights of the parties and the interests of the public. The attempt to accumulate in the hands of a single organization the business of supplying bread itself to so large a portion of the poor, as well as the rich, people of the United States should not be favored by a court of equity. It carries with it too much of danger of excluding healthy competition, thereby increasing the difficulty to the general public of participating in a most useful business, as well as adding to the possibility of multitudes of citizens being temporarily, at least, compelled to pay an arbitrary and high price for daily food.

Whatever we may feel compelled to do, on the final hearing of this cause, towards recognizing the complainant's legal rights, and compelling a faithless trustee to account, we are clear that at this preliminary stage,

with our present impressions of the character and general scope of complainant's business, the court ought not, by the appointment of a receiver, to aid complainant to perfect, and perhaps to enlarge, his combination or trust; and the refusal to appoint a receiver can result in no serious and lasting injury to complainant, because the shares of stock of complainant company, forming the entire consideration of complainant's purchase, have been tendered in court, and may be impounded, to be held as security for any damages susceptible of proof resulting from defendant's mismanagement of the property pending the suit. The motion for a receiver is denied.

MURDOCK v. CITY OF CINCINNATI et al.

(Circuit Court, S. D. Ohio, W. D. January 7, 1891.)

1. MUNICIPAL CORPORATIONS - STREET IMPROVEMENTS - WAIVER OF NOTICE - DUE PROCESS OF LAW.

An owner of land abutting on a street, by petitioning for its improvement, and agreeing, not only to pay his own assessments, but also to answer for any deficiency in the collectibility of the assessments against other abutting owners, waives his right to notice or an opportunity to be heard before the assessments are levied; and the proceedings of the city authorities, who levied the assessment in the exercise of the power conferred on them by law, and in compliance with the petition, cannot afterwards be impeached by such abutting owner, as being without due process of law, for the lack of such notice or an opportunity to be heard. 2. SAME-PENDENCY OF ACTION IN STATE COURT.

The institution of an action in a state court by the city against the abutting owner for the collection of the assessment affords him the opportunity of presenting every objection, either under the constitution of the United States or under the constitution and laws of the state, going to the validity of the assessment; and the judgment rendered in such action will constitute due process of law.

3. SAME-FEDERAL QUESTION.

Whether or not complainant is personally liable for an assessment made for the improvement of a street before he became the owner of property abutting thereon is not a federal question.

JACKSON, J. The complainant seeks to enjoin the city of Cincinnati, its agents and officers, from collecting or enforcing against him or hist property certain foot-front assessments, levied and imposed to meet and defray the expenses incurred in improving Grand, Hawthorn, and Phillips avenues, in said city, on which complainant's lot or parcel of ground bounded and abutted. It is not denied that the laws governing the city of Cincinnati confer upon its authorities full power to make assessments to defray the costs and expenses of improving streets and avenues therein by the foot front of the property bounding and abutting upon such improvements. By sections 2263, 2264, Rev. St. Ohio, the city council are authorized to assess the costs and expenses of acquiring and of improving

streets either upon the general tax-list, in which case the assessment is imposed upon all the taxable real and personal property in the corporation, or the same "may be assessed on the abutting, and such adjacent and contiguous, or other benefited, lots and lands in the corporation, either in proportion to the benefits which may result from the improvement, or according to the value of the property assessed, or by the foot front of the property bounding and abutting upon the improvement, as the council, by ordinance setting forth specifically the lots and lands to be assessed, may determine before the improvement is made." Such assessments may be made payable in one or more installments, and at such times as the council may prescribe. It clearly appears that the city authorities directed the improvements, and made the assessments in question to defray the expenses thereof, in accordance with the provisions of the statutes relating to the subject. But it is claimed on behalf of complainant that, although the laws authorizing the assessments complained of were complied with, they, and the proceedings taken thereunder by the city authorities, are wanting in "due process of law," because said assessments are allowed and permitted to be made without notice to, or a hearing, or an opportunity of hearing, by, the owner or owners of the property to be assessed, and because, in fact, no notice was given to complainant, nor any opportunity of hearing afforded him in relation thereto.

This is the sole federal question presented by the record or involved in the case. The complainant relies upon the opinion of this court in the case of Scott v. City of Toledo, 36 Fed. Rep. 385, in support of his contention. But this case is clearly distinguishable, in several important particulars, from that of Scott v. City of Toledo, and is not properly controlled by that decision. It is shown here that complainant actually petitioned the board of public affairs of Cincinnati for the improvement of Hawthorn and Phillips avenues, and for the assessment for the whole cost of such improvement, to be made and collected in 10 annual installments, etc.; "and in consideration of the city's making said improvement," he, and each of the signers of said petitions, agreed with each other and with said city, and jointly and severally bound himself, to make good to the city any deficiency in the collectibility of the assessment, caused by insufficiency of values of property of those not signing the petitions. In respect to Grand avenue, his predecessor in title had signed and presented to said board a similar petition. In compliance with said petitions, after due and proper steps to ascertain the costs of the improvements, and the propriety of making the same, the board of public affairs recommended the making of the improvements asked for, and reported to the council the necessary ordinances on the subject, which were passed, and assessments made, and directed to be collected in 10 installments, on the basis of the foot front of the property abutting on the improvements. Due notice of those proceedings was given to complainant. After advertising for bids, the work was let out and completed with the full knowledge and acquiescence of complainant. While said petitions for the improvement of said avenues did not, in express