Schemes to Control the Market. of degree often difficult to fix. Whether in dependence is reserved in essential things is the question, or whether there has been a surrender of such independence so that there is now no motive for competition is the issue, a question of fact often difficult of inter pretation. Nester t1. Continental Brewing Company (161 Pa. St. 473) is representative of the class of cases in question. The bill set forth that a Brewers' Association of Philadelphia had been formed under articles of agreement in writing by forty-five brewers of Philadelphia, individuals, firms and corporations. By the principal section of the agreement each mem ber of the association agreed not to sell any beer to any new trade or to any customer of any brewer that belonged to the association. The court below found that the object of this combination was to regulate the price and control the distribution of beer within the city. A summary from the opinion of Mr. Jus tice Sterrett follows: "The test question in every case like the present is whether or not a contract in restraint of trade exists which is injurious to the public interests; if injurious, it is void as against public policy. Courts will not stop to inquire as to the degree of injury inflicted. It is enough to know that the natural tendency of such contracts is in jurious. So if the natural tendency of such contracts is to injuriously affect public inter ests, the form and declared purpose are im material. Courts will not lend their aid in illegal transactions no matter how dis guised." Emery v. Ohio Candle Company is an in teresting arrangement also. An association was proved in that case to include ninety-five per cent, of the manufacturers of star candles in the United States. The members of the association surrendered their freedom of action by this provision, that they were re quired to pay into the treasury two and onehalf cents per pound on every pound of
candles disposed of on their own account. None of them were bound to operate their factories; whether they did or not they re ceived a share in the profits of the pool. This plan was thus self-acting; it was to the inter est of each member to remain idle when the price was low, to operate only if the price were high. It was found as a fact in the case that the expected result followed; the produc tion of candles decreased, the price of candles increased during the whole existence of the association. The court pronounced the arrangement bad altogether: "We are of the opinion that the suit cannot be maintained, for the reason that the objects of the association were con trary to public policy and in no way to be aided by the courts. No recovery can be had except by giving effect to the terms of the agreement the action is in substance a suit against the association to recover a sum due the plaintiff under the terms on which the association was formed. Its suit is to re cover its portion of the ill-gotten gains." The combination in restraint of trade once proved to be such, outlawry is declared.1 It can bring no suit against those in it, but neither can they sue it; the courts will have nothing to do with association or associates. That is the penalty, that the loss must lie where it falls, a holding which in itself is often one of the strongest of deterrents. Thus any member of the association may withdraw whenever it suits his interest to do so, a result that minimizes the harm that such a combination may effect. For experience shows that the result is that competition still goes on surreptitiously, despite the agree 1 The following cases, among others, hold a combina tion in restraint of trade invalid: Hilton v. Eckersley, 6. E. & B. 47; Cousins v. Smith, 13 Ves. 542; U. S. v. Jellico Co., 46 Fed. 342; U. S. v Nelson, 52 Fed. 646; Mill Co. v. Hayes, 76 Cal, 387; Moore г: Bennett, 140 Ill. 69; Houston 7-. Kentlinger, 91 Ky. 333; Fabacker v. Bryant, 46 La. Ann. 820, Bingham v. Brands, 77 N. W. 940; Cohen?•. Envelope Co., 166 N. Y. 292; Salt Ass'n т. Guthrie, 35 Oh. St. 666; Morris Coal Co. v. Barclay Co., 68 Pa. St. 173; Mallory v. Oil Works, 86 Tenn. 598; Oil Co. r. Adone, 83 Tex. 650.
