State ex inf. Major v. International Harvester Co.

141 S.W. 672, 237 Mo. 369, 1911 Mo. LEXIS 267

• Court: Supreme Court of Missouri
• Decided: November 27, 1911
• Status: Published

Opinions

VALLIANT, C. J.

This is an original proceeding in this court on the information of the Attorney-General, charging the respondent with violating the anti-trust laws of this State. There is not much dispute about the essential facts in the case; the difference between the parties consisting mainly in the contention on the part of the State that the acts that were done by the respondent and its associations were done for the purpose of suppressing competition and regulating prices, and the contention on the other hand that the acts were done for the purpose of bringing about a more rational and conservative method of conducting the business of manufacturing and selling agricultural implements within the legitimate bounds of the law and with no purpose of creating a monopoly or suppressing competition, or regulating prices, in the sense that those terms are used in the statutes.

The respondent is a Wisconsin corporation chartered in 1881, under the name Parker-Dennet Harvesting Machine Company, to engage in the business of manufacturing and selling harvesting machines, that is, binders, mowers, etc., and other agricultural implements. It was located at Milwaukee, Wisconsin, and conducted its manufacturing business there. Its name was afterwards changed to Milwaukee Harvesting Company and under that name it was licensed to do business in this State in 1892. It established itself here and conducted its business of selling its own manufactured articles until the occurrence of the events herein complained of by the State, since which time it has conducted a business of selling only the products of the International Harvester Company, a New Jersey corporation, which corporation will be hereinafter more particularly referred to and discussed. After the organization of the last named corporation it acquired all the stock of respondent and respondent’s name was again' changed, the last name being the International Harvester Company of America; the words “of America” alone distinguishing its name from that of the New Jersey corporation. Respondent is frequently referred to in the-evidence as the “Milwaukee,” and for convenience and ready distinction we shall sometimes refer to it by that name.

Besides the Milwaukee Company there were other foreign corporations, manufactuers and sellers of farm implements of the same or similar character, licensed to do business in this State, among them: the McCormick Harvester Company, an Illinois corporation; the Plano-Manufacturing Company, also an Illinois corporation; the Warder-Bushnell & Glessber Company, an Ohio corporation, and the D. M. Osborne and Company, a New York corporation. In addition to the above corporations the Deering Company, which was an Illinois copartnership, was also a manufacturer and seller of harvesting machines and doing business in this State. The manufacturing plants of all these concerns were located in their respective State domiciles; the business they conducted here was that of selling their manufactured products. There were other concerns engaged in like business, but the six companies above named, including respondent, were the chief concerns, and in 1902 (which was the date of the alleged unlawful combination), and for several years prior thereto, they did from eighty to ninety per cent of all harvesting machine business in the United States and in the State of Missouri. The commissioner has listed these companies in the rank of the relative volume of business done by each as follows: (1) the McCormick, (2) the Deering, (3) the Warder-Bushnell & Glessner, {4) the Plano, (5) the Osborne and (6) the Milwaukee. The machines of each company bore the company’s trade-mark for a name: “McCormick,” “Deering,” “Champion” (the Warder-Bushnell & Glessner), “Plano,” “Osborne” and “Milwaukee,” and were well known to the trade by their respective trade-marks.

In 1902 and for several years prior thereto a very active, an unusually active, competition was practiced by these companies between themselves and others engaged in like business. The commissioner describes the competition as “active, persistent, strenuous and fierce.” Respondent describes it as “a bitter wasteful warfare, of a sort never known in any other business in the world.” It also says: “Competition was not fair and business-like, such as the law encourages, but a fierce conflict, causing the ruthless ruin of competitors,” and of no fair advantage to the farmer. To avoid the disasters with which that condition of the market seemed to threaten the companies engaged in the harvester machine business, the International Harvester Company, the New Jersey corporation, was on August 12, 1902, created, and into it was merged all the properties and business of five of the companies above named, to-wit, the McCormick, the Deering, the Warder-Bushnell & Glessner, the Plano, and the Milwaukee, and in January, 1903, the New Jersey corporation purchased all the stock of the Osborne company and thereupon all the property of that company was transferred to the New Jersey company. Thus in January, 1903, the New Jersey company had acquired the plants and properties of the companies that theretofore had manufactured and sold eighty or ninety per cent of all the harvesting machines in the United States and to that extent it thereafter dominated the market. During . 1903 it acquired control of the Altman-Miller Company, an Ohio corporation, that manufactured and sold a harvesting machine called the “Buck-Eye,” and it has since acquired the properties of other concerns engaged in manufacturing harvesting machines and other farm implements in the United States and properties outside the United States. The commissioner finds the value of all its assets to be, on January 31, 1907, $156,282,454.16.

The New Jersey corporation is engaged in manufacturing all of the harvester machines above named and putting them on the market under their respective names, the “McCormick,” the “Deering,” the “Champion,” etc., and the respondent is its sole agent for putting its products on the market. The negotiations which ended in the organization of the New Jersey company were conducted by Mr. Perkins of the banking house of J. P. Morgan & Company, and they were the result of his reflections on the situation of the. harvester machine business prompted by a visit of Mr. McCormick to him in 1902. The object of Mr. McCormick’s visit was to obtain money to extend the business of his company. He was fully conscious of the danger to his business threatened by the fierce competition of the other concerns who were his rivals; his was the strongest one of them all, but he wanted to gain more strength to enable him to compete with his rivals successfully. He did not at that time have any idea of forming a combination with his rivals to allay competition and control the market. His talk with Mr. Perkins was in furtherance of his purpose to obtain more money to extend his business, and there was nothing said between them at that time indicative of a purpose to form a combination. Having fully laid his purpose before Mr. Perkins, the latter took time to consider it, and they parted with the understanding that they would meet again. Mr. Perkin’s reflection led him to the conclusion that the conditions were favorable for the introduction into the field of a great corporation to engage in manufacturing harvester machines and other agricultural implements. With this idea in his mind when they met again, Mr. Perkins proposed to Mr. McCormick to purchase his plant. The matter was fully discussed and the proposition was agreeable. Mr. McCormick was willing to sell and Mr. Perkins to buy at a price to be agreed on, based on a fair valuation of the property and business. Mr. Perkins had in mind then the purchase of other concerns and was negotiating with them, and Mr. McCormick knew that fact. During these negotiations Mr. Perkins bought for J. P. Morgan & Company all the assets of the Milwaukee Company and paid for them in cash. That seems to have been an outright purchase, not dependent in any degree on the consummation of the negotiations looking to the purchase of the assets of the other companies. Mr. Perkins testifled that he would have bought the McCormick Company even if he could not have obtained the others. He testified that after talking with McCormick he negotiated with the managers of the other companies, trading with each separately. “After finding out what I could buy the companies for, I tried to pay them in the best coin I had to deliver and they agreed to take stock in the new company in payment.” Except with the Milwaukee company there was no concluded contract of purchase, but only an agreeable understanding, until July 28th, 1902, when the respective representatives of all these companies met around a table in New York and each one then and there signed the contract for the sale of the assets of the company he represented. Up to that time there was never a meeting of the representatives of those companies to discuss and agree upon the plan of organization. The negotiations were conducted by Mr. Perkins, or under his direction, with each company separately. He testified that he bought the property of each company, just as he would buy a horse in the market. The evidence shows, however, that each company knew that like negotiations were going on with the other companies and each agreed to take pay in stock in a company to be formed. At the date of the signing of the contracts the respective representatives of the companies had come to New York in relation to this business, but they had held no communication with each other, they came together for the first time when they signed the contracts; these contracts were all alike and were prepared and ready for signature when the parties met around the table.

It was not a joint contract, but each executed a separate one transferring to the trustee named all the property and rights of every description, including accounts and bills receivable, trade-marks, trade names and good will of his company. And it was provided: “The purchase price to be paid by the purchaser to the vendor for all and singular said property shall be the aggregate of the several appraisals and valuations hereinafter provided for and of said accounts and bills receivable and cash, if any, and shall be payable in full-paid non-assessable shares of the capital stock of said purchasing company taken at par.” The purchasing company referred to was the New Jersey corporation to be thereafter organized, the immediate transfers being to a trustee to hold until that organization. The acts of the representatives of the several corporations were duly sanctioned and approved by the stockholders of the respective companies, and by the partners in the Deering Company. The agreement to take pay in stock of the company to be formed applied to all the companies except the Warder-Bushnell & Glessner Company; the exception as to that company was made because it was discovered that part of its capital stock was owned by two estates, therefore the proportion belonging to those estates was to be paid in cash, the rest in stock.

All of the contracting companies parted with all their assets of every description and good will, leaving them only the shares of stock which were of no use or value. The next step was the organization of the International Harvester Company under the laws of New Jersey with a capital stock of $120,000,000, which was distributed as follows: J. P. Morgan & Company, having paid for the property and stock of the Milwaukee Company, $3,148,196.66, and their services and expenses in the organization being estimated at $3,451,803.34, they were awarded stock to the amount of $6,600,000; the tangible properties of the McCormick, the Deering, the Warder-Bushnell & Glessner; and the Plano ha-ving been appraised at $53,400,000, and their guaranteed bills receivable and accounts at $40,000,000, stock to the amount of $93,400,000 was distributed to them, and the remaining stock to the amount of $20,-000,000 was issued to individuals who subscribed for it.

After the organization of the New Jersey corporation, all the other companies that had been absorbed by it ceased to do business and thereafter the business of manufacturing and selling harvester machines and other farm implements was conducted by the New Jersey corporation. But because some States would not admit into their borders a corporation of such large capital stock, and others imposed a license tax that the managers thought was unreasonable, it was decided that the corporation would limit its operations to manufacturing the machines and implements, and would employ another concern which would not be objectionable to the laws of those States, to sell its products. For this purpose the managers of the New Jersey corporation turned their attention to the respondent in this case, then called the Milwaukee Harvester Company, the property of which the New Jersey corporation had already acquired, and the stock of which it also owned. The advantage of using this respondent also appeared by the fact that it was already licensed in the States where it was desired to go, and it could operate in those States as the selling agent of the New Jersey corporation under the licenses that it already had. The International Harvester Company (the New Jersey Corporation), being then the owner of the stock of the respondent, the Milwaukee Company, caused the respondent’s name to be changed to the International Harvester Company of America, and chose its board of directors, and since then the respondent has been engaged exclusively in the business of selling the machines and implements manufactured by the New Jersey corporation.

Its mode of doing business was to appoint at different places in the State what it called a “sales agent” who was to conduct the business of selling the machines under certain specifications and limitations set out in an elaborate contract on a printed form. This contract for the first three years contained a clause requiring the agent to sell all the machines or property received by him under the contract at such prices and on such terms as might be fixed by respondent or its general agent, and also an agreement on the agent’s part not to accept the agency of any other concern in like business; but those restrictions were ehminated from the contract used in 1906 and thereafter. Under the contract after those clauses were ehminated, the agent was required to pay the company a certain price for each machine sold, and whatever he might get in- excess of that price was his commissions. The sliding of the price at which the agent might sell was within the margin of his own commissions, the ' price he was to pay the company was fixed. The evidence showed that there was considerable competition in the trade after the absorption of the competing companies; some of the witnesses, who were agents, testified that there was as much competition after 1902 as there had been before that date. But the competition there spoken of was chiefly between the agents selling the different machines made by the New Jersey corporation; that is, an agent who had the selling of a “McCormick” would compete with one selling the “Deering” or the “Champion” or the “Buck-Eye,” etc., and it was within the margin of the agent’s commissions. And the evidence showed that there were three independent companies in the market competing with the agents of the respondent, and they did a good business. But as compared with the volume of business done by the respondent that done by the independent companies was small. In entering into the contract the agent was permitted to select "either the “McCormick,” the “Deering,” the “Champion,” the “Plano,” the “Osborne” or the “Milwaukee,” but was generally confined to one fine.

The evidence also-shows that the price of Harvester machines was not materially higher after the New Jersey corporation entered the field than it was before, until 1908, -when it was increased eight or ten per cent; whilst in the meantime there had been a greater increase in the price of the material and labor used in their construction. The evidence also shows that whilst harvesting machines were the chief products of the companies absorbed by the International Harvester Company, that company has greatly enlarged its business and extended it to many other farm implements, and has thus put itself in competition with the many concerns that theretofore were and still are engaged in' manufacturing such other farm implements and the farmers generally have profited thereby. The evidence also shows that the machines manufactured by the International Company have been greatly improved in quality and the item of repair material has been reduced in'price and placed within closer reach of the farmer. On the whole the evidence shows that the International Harvester Company has not used its power to oppress or injure the farmers who áre its customers.

I. In 1902, when the negotiations which led up to the -organization of the International Harvester Company were begun, competition between the large harvester machine companies in the United States was such as to reduce the market to a condition that was deplorable from the standpoint of the competing companies and it is not certain that its tendency was towards the ultimate advantage of the consumer of those machines. Whilst the tendency of fair competition is to produce a wholesome condition of the market, yet competition may be of such a character and so designed as to destroy the weaker competitors, leaving only the giant in the field, who then would have a monoply of the market. The law is not interested alone in the consumer, but it has regard also for the producer and would, if it could, protect a small manufacturer or dealer from the destruction that the avarice of a powerful rival might design. Therefore, the argument of the learned counsel for the respondent is not without force, that the competition that existed in 1902 in the harvester machine market was not the kind of competition that the lawmakers had in mind when they enacted the anti-trust statutes. But unfortunately for that argument it is impossible for the Legislature to prescribe a general rule by which competition conducive to a wholesome condition of the market can be distinguished from a competition that is demoralizing and disorganizing. In a late case (Standard Oil Co. v. United States, 221 U. S. 1), the Supreme Court of the United. States held that the act of Congress which prohibits contracts in restraint of trade was to be construed in.the light of reason, and when so construed it did not forbid the making of every contract that had for its purpose a restrain of trade, but only such as had for its purpose an unreasonable restraint of trade; and, for an example, the court referred to contracts whereby a voluntary restraint would be put by an individual on his own right to carry on his trade or calling; contracts of which character were by the common law of England at one time held to be void, but the doctrine was afterwards modified so that it was only when a restraint by contract was so general as to be coterminous with the kingdom that it was treated as void. Reading the whole opinion in that case wé infer that when the court says a reasonable restraint of trade is not forbidden by the statute, it refers to the restraint which is placed on the trade by the terms of the contract or by the act in question. Under that decision as we understand it, if a contract provides for a reasonable and lawful restraint of trade it is not forbidden by the statute or if the act done is potential only of such a reasonable restraint it is- not condemned. Under the rule there laid down if a contract in question or an act of combination is significant or potential only of a reasonable restraint of competition it is not within the condemnation of the statute. But when a contract or act of combination is to be upheld on the theory that it is only a reasonable restriction on trade, it must appear on the face of the contract or act that the restriction which it creates is limited within reasonable bounds. It will not avail one who attempts to defend a contract unhmited in its terms or an act that is unhmited in the apparent scope of its power, to say that it will be. used only in a moderate degree. The law is jealous of an unhmited power in such case in whose-, soever hands it may be placed-. After laying down the rule of reasonable construction the court turned to the facts of that case and held that the acquisition of power by the Standard Oil Company betokened its unlawful purpose. The court said: “Because the unification of power and control over petroleum and its products, which was the inevitable result of the combining in the New Jersey corporation by the increase of its stock and the transfer to it of the stocks of so many.other corporations, aggregating so vast a capital, gives rise, in and of itself in the absence of countervailing circumstances, 'to say the least, to the prima-facie presumption of intent and purpose to maintain the dominancy over the oil industry, not as a result of normal methods of industrial development, but by new means of combination which were resorted to in order that greater power might be added than would otherwise have arisen had normal methods been followed, the whole with the purpose of excluding others from the trade and thus centralizing in the combination a perpetual control of the movements of petroleum and its . products in the channels of interstate commerce.”

And again the court said: “So far as the decree held that the ownership of the stock of the New Jersey corporation constituted a combination in violation of the first section and an attempt to create a monopoly or to monopolize under the second section and commanded the dissolution of the combination, the decree was clearly appropriate.”

In the case at bar we are to take the acts of the parties and judge their purpose by the consequence' that would naturally result. When men deliberately and intelligently go to work and acquire power that will enable them to control the market, if they choose to exercise it, there is no use for them to say that they did not intend to control the trade or limit competition, nor when the legality of their act of acquisition is in question is it any use for them to say we have not used the power to oppress any one. Counsel for respondent argue that the mere possession of power incident to the possession of wealth is not unlawful if it is not unlawfully exercised, and that is so. Wealth is power, and it may, without violation of law, be exercised to influence the market. The statute we are now considering is not designed to limit the amount of wealth one may lawfully acquire, therefore not designed to limit the influence that wealth may exert, but it is designed to forbid the acquisition of power for the purpose of influencing the market by combinations of interests that otherwise would compete in the market. The law regards such a power acquired by such a combination as dangerous to the rights of the people and forbids its acquisition. If immediately on the organization of the International Harvester Company and its appointing the respondent to act as its agent and before any of its products were put on the market an information in quo warranto had been presented in court against it, it would have been no answer to the complaint for the respondent to say: True it is we have this power, but we are not going to use it to the injury of the farmers or of other dealers in the same kind of implements. Neither is it any defense, after operating under the power for a time, to say we have not up to this date used the power to injure anyone.

Doubtless it could have been well said in behalf of the Standard Oil Company in the case above cited, that under its operation the price of coal oil had not been increased and that many products of petroleum other than illuminating oil, not before known or used, had been developed, and on the whole the public had been benefited, although in the acquirement of the power small producers and dealers may have been driven out of business and ceased to compete in the market.

So in the ease at bar: the price of harvesting machines has not increased in proportion to the increased cost of construction, or the increased merit of the machines, and respondent has brought other farm implements into trade, and it is also true that not all, though some of the smaller concerns that were competitors on the market, have ceased their struggle for existence and retired from the field.

There can be no doubt but that the competition that existed between the concerns that were engaged in manufacturing and selling harvester machines in 1902, was the moving cause of the organization of the International Harvester Company, and there can be no doubt but that that competition ceased when that corporation took charge of the business. The suppressing of that competition may not have been Mr. Perkins’ purpose; he may have thought that he could organize a great corporation that could five and prosper in spite of competition. He bought the Milwaukee Company without waiting to see what he could do with others, and he said that he would have bought the McCormick even if he could not have bought the others. But we are not concerned with what he would have done, our attention is directed to what he did, and that was the buying of all' these concerns and combining them in one corporation, with the result that the fierce competition that had existed ceased. He said that he bought the property of each of these companies just as lie would buy a horse in the market. He was probably mistaken in that figure of speech. This transaction was conducted with great skill and ability and evidently with an eye on the anti-trust statutes of this and other states, with the purpose of either avoiding or evading those statutes. Whilst the negotiations with each company were. conducted separately yet they were conducted with reference to the result of like negotiations with the other companies. No definite contract of purchase was concluded with either company, except the Milwaukee, until like contracts were made with the others and the agreement to take pay in stock of the corporation to be. formed showed that the managers of each company knew of what the corporation was to consist. The managers of these several' corporations were men of conspicuous business intelligence, they would never.have agreed to sell the property of their companies and- take pay in stock of a corporation to be formed unless they knew of what that corporation was to consist. The fact that they did not all get together and agree to merge their companies in one, but on the contrary each conducted its part of the scheme in form as if it were simply making a sale of its property, shows that they were acting in fear of the anti-trust statutes. And the fact that they did not all sign one contract, but each a separate one, shows caution to avoid the appearance of combination, yet when all the several contracts were signed the effect was the same as if they had all signed one contract. And the fact that the representatives of the five companies were all in New York on that business at the same time but stopping at different hotels and holding no communication with each other again shows caution. ■ If there had been no anti-trust laws in the land and these gentlemen had all concluded, in order to suppress what they call this unbusinesslike and ruinous competition, to unite their interests in one great- company (as in fact they did), the most natural thing for them to have done would have been to meet together and talk it over and agree on the details. In the ease above cited the Supreme Court of the United States, commenting on the comprehensive terms of the antitrust act of Congress, which in that particular is like our statute, said: “In view of the many new forms of contracts and combinations which were being evolved from existing economic conditions, it was deemed essential by an all-embracing enumeration to make sure that no form of contract or combination by which an undue restraint of interstate or foreign commerce was brought about could save such restraint from condemnation.” And so we say under our statute the form of contract under which this combination was brought about cannot save it from condemnation, and respondent cannot escape the result by saying it was-not designed to suppress reasonable competition, but only the ruinous and unbusinesslike methods that were then in practice, because there is no such limit in the power conferred.

We hold that the International Harvester Company, the New Jersey corporation, is an unlawful combination to suppress competition and regulate prices-within the meaning of our statute, and therefore it has no right to do business in this State.

II. The respondent the International Harvester Company of America, the Wisconsin corporation, is doing business in this State under a license issued to it by the Secretary of State in 1892. At that time it was an independent corporation under the name of the Milwaukee Harvester Company, manufacturing and selling its own harvester machines. Of this corporation the commissioner says: “This corporation and its stockholders once had capital, now it has none; everything that it or its stockholders once had now belongs to the International Harvester Company. . . . The respondent in truth and in fact is a mere sales department of the International Harvester Company.” '

At the date of the organization of the International' Harvester Company and at the time it began doing business in this State through the agency of the respondent, it could not have obtained a license in its own name, because at that time our law did not admit into the State a foreign corporation of such large capital, but since then our statute has been amended and the amount of the capital is now no objection. But the fact is the International Harvester Company began doing business in this State through the agency of the respondent at a time when, even if it was otherwise entitled, it could not have obtained a license in its own name. And although now the amount of its capital stock would not exclude it from the State yet the fact that it is an unlawful combination in the light of our anti-trust statutes would exclude it. What a principal is forbidden to do in his own name he cannot do through an agent. If a principal has no authority, he cannot confer authority on an agent.

There is another aspect in which the respondent appears. When the respondent obtained its license to do business in this State it was an independent corporation manufacturing and selling its own machines and it was for the purpose of selling its own product that the license was granted. It now has no business of its own, no property, no independent existence, it is in fact a mere sales department of the International Harvester Company, which company has never been licensed to do business in this State. We do not mean to say that the respondent while doing the business for which it was licensed in 1892 could not also, if its charter so provided, have acted as agent for some other concern and sold its goods, provided the other concern could have lawfully sold its own goods, but whether when the respondent committed a complete abandonment of the business for which it was licensed, had no longer any business of its own, it could take up a mere agency, is a question worthy of consideration. But perhaps there is no use. deciding that question since we have already concluded that respondent’s principal has not and has never had any right to do business in this State, therefore as its principal’s agent respondent has no such right. The amount paid by respondent for the license issued to it in 1892 was $62.50, which was the minimum tax prescribed by the statute, and was estimated on the representation of the respondent at that time as to the proportion of-its capital stock, which was $750,000, represented by its business in this State. The International Harvester Company with a capital of $120,000,000, even if it was not otherwise excluded, could not lawfully use the license based ' on an estimate of the proportion of the capital stock of another company which was less than a hundreth part of its capital. If such were permitted corporations with enormous capital would soon learn to organize or acquire smaller ones and send them into the State to do its business with a minimum fee.

III. We have already said in effect that when a party is called into court to answer a charge of unlawful combination in restraint of trade, it is no defense to say that the power thus acquired has been or will be used with moderation. But after the court has adjudged the party guilty of the act charged and comes to consider the penalty to be adjudged, the past conduct of the party in the exercise of its power is a fact worthy of consideration. Our anti-trust statute says that if the party found guilty of the act forbidden is a domestic corporation its charter shall be adjudged forfeited, and if it is a foreign orporation its right to do business in this State shall be adjudged forfeited. Besides the statute/ we have the common law on the subject of combinations in restraint of trade and the penalties under that law; in this respect the State courts have a jurisdiction that the Federal courts, who have no common law jurisdiction, do not have.

In determining the penalty to be adjudged in a case of this kind the court should have regard to the consequence to follow its decision. It would be an' injury to the people of this State to forbid the International Harvester Company to do business here; therefore, whilst we must obey the mandate of the statute and pronounce a judgment of ouster, yet, we may suspend the execution of the judgment, as this court in some cases has sometimes done, on terms that would be fair to the corporation and conducive to the welfare of the people of the State.

One of the evils intended to be guarded against, by the law is the enhancing of prices to the injury of the consumer, but that is not the only evil that may be done by a great power in the market; the driving of small competitors out of the trade is a wrong that the law would prohibit. This is not a paternal government, and the State does not undertake to deprive one of the advantage his greater wealth gives him in the market over one of smaller means, but it does undertake to prevent a combination of interests to drive others out of the market. If the International Harvester Company were disposed to exercise the power its enormous wealth gives, and if it were left unrestrained to do so, it could drive every competitor it now has from the field. In considering what restraints the court in this ease, in that respect, should impose, we experience difficulty. A company of so much strength has the power to temporarily reduce the price of its goods to such a degree as that all competitors would be compelled to either sell out or quit the business, and when the field by such means would be cleared the prices would be at the will of the survivor. There would be no advantage to the people in that. On the other hand it will not do to say that this company shall not, because of the superior facilities it possesses for economical manufacturing, put its products on the market at a price that other concerns possessing less facilities cannot afford, and must therefore leave the field. Nor, will it do to say that this corporation shall not buy out the smaller manufacturers and dealers, for that might be unjust to the latter, depriving them of an opportunity to sell when they so desired.

If the International Harvester Company is to be permitted to continue to do business in this State, either in its own name or through the agency of respondent, it must be on condition that it shall not use its power either to force a competitor to sell or drive it out of the market by unfair methods, and that it will not raise the prices of the articles it sells beyond a fair profit on their cost and the expense of marketing • the same. And since the International Harvester Company has been doing business in this State, through the agency of respondent, under license that it had no right to use, it should pay to the State a reasonable .sum for the privilege enjoyed, and it should take out a license in its own name under the terms and condiditions prescribed in section 3039, Revised Statutes 1909, and pay therefor the tax in that section prescribed, estimated on the proportion of its capital stock represented by its property and business in Missouri, and subject itself to all the requirements of foreign corporations doing business in this State prescribed in article 1 of chapter 33 of the Revised Statutes of 1909. The license so to be taken out to stand revoked if at any time hereafter on motion of the Attorney-General it be made to appear to this court that the corporation, either in person or by its agent, has violated any of the conditions above specified. If the International Harvester Company sees fit to comply with the terms above specified it may carry on its. business in this State either in person or through the agency of the respondent, but not on the respondent’s present license.

The International Harvester Company not being a party to this suit, of course we can impose no fine or other penalty on it; it-not being in this State it is •not subject to expulsion from our borders, we can only affect it in the person of its representative, the respondent.

The judgment is that the license issued to respondent in 1892 to do business in this State is hereby revoked, and that respondent pay the costs of this suit. But it is further adjudged that if the International Harvester Company shall within sixty days pay the above mentioned reasonable sum to be fixed by the court on motion to be hereinafter made and shall take out a license to do business in Missouri on the terms and conditions above specified, it may conduct its business here either in its own name or through the respondent as its agent until the license expires by law or a breach of one or more of the conditions above mentioned.

Lamm, Ferriss and Brown, , JJ., concur in all except the judgment suggested in this opinion; Kennish, J., not sitting, having been of counsel.

SEPARATE OPINION.