either directly or indirectly. The logic of this conclusion is made the more apparent when we read the proviso in the light of the enactments found in our state Constitution, above noted. It is provided in our organic law (Const. art. 7, § 1) that all property, unless legally exempt, "shall be taxed in proportion to its value, to be ascertained as provided by law." It is significant in this connection that there are no exemptions mentioned or provided for in our fundamental law authorizing the legislature to make any deductions from the amount of any tax after it shall have been assessed, levied, and collected pursuant to law. See also article 11, § 9, Const., which provides that "no county nor the inhabitants thereof, nor the property therein, shall be released or discharged from its or their proportionate share of taxes to be levied for state purposes; nor shall commutation for such taxes be authorized in any form whatever." True, this provision only relates to the discharge or 1elease of state taxes. Still, if this proviso were allowed to stand, it would have the indirect effect to authorize and permit a release pro tanto of the state's revenue. We are fully aware of the rule of law enunciated by some authors, as well as courts of high repute, that "a saving clause which is repugnant to the enacting part of the statute is void; but a proviso which is repugnant to the purview of the act will override and control the latter." Black, Constr. & Interpretation of Laws, p. 278. This same learned author, on the next page, says that the distinction drawn between saving clauses and provisos has been much criticised. The following language of Chancellor Kent in volume 1 of his Commentaries, p. 463, is quoted by Mr. Black with approval: "There is a distinction in some of the books between a saving clause and a proviso in the statute, though the reason of the distinction is not very apparent. It may be remarked that a proviso repugnant to the purview of the statute renders it equally nugatory and void as a repugnant saving clause; and it is difficult to see why the act should be destroyed by the one, and not by the other, or why the proviso and the saving clause, when inconsistent with the body of the act, should not both of them be equally rejected." Be this rule of construction as it may, the foregoing distinction is without significance as applied to the facts in the action at bar, since we have reached the conclusion that the proviso of the above statute is void on constitutional grounds, and must therefore be rejected. Eliminating the proviso from the above § 12 of the act of 1895, such enactment seems to be complete in itself, fully authorizing the assessment, levy, and collection of the tax in question. Seanor v. Whatcom County, 13 Wash. 52, 42 Pac. 552. Judge Cooley, in his work on Constitutional Limitations, 5th ed. *178, uses the following language: "Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall." Testing appellant's complaint in the light of the foregoing propositions of law, we are of the opinion that it fails to state a cause of action against respondents, or either of them, and that there is no error in the record of which appellant has any legal ground for complaint. The judgment of the Superior Court is therefore affirmed. WEST VIRGINIA SUPREME COURT OF APPEALS. W. P. SLAUGHTER, Receiver of Thacker Coal Company, Plff. in Err., บ. THACKER COAL & COKE COMPANY. (......W. Va......) *Three coal-mining companies operating in the same vein or seam in close proximity to one another, and just hav Headnote by POFFENBARGER, J. NOTE. For other cases in this series as to validity of combinations to create monopoly or control prices, see People v. North River Sugar ing commenced the development of that particular kind of coal, organize indirectly and nominally in the names of individuals a third corporation to act as their general sales agent, and each gives it, by contract, the exclusive right to sell its entire output of coal at prices uniform as to all three companies, and not to be departed from without the consent of all the companies, and said agent company is to advertise and introduce the coal in the markets, establish and control all agencies and subagencies, and make all sales and collections, and deduct for its compensation 10 Ref. Co. 2 L. R. A. 33, and note; Richardson v. Buhl, 6 L. R. A. 457, and note; National Benefit Co. v. Union Hospital Co. 11 L. R. A. 437; cents per ton out of the proceeds of sales. Held, that the contract is illegal and void, its tendency being to suppress competition and restrain trade, contrary to public policy. (April 1, 1904.) Thacker Coal & Coke Company, the Lynn Coal & Coke Company, the Logan Consolidated Coal Company, and the Maritime Coal Company. On said date another corporation was organized, called the Thacker Coal Company. Its capital stock paid in ERROR to the Circuit Court for Mingo was $640, and the principal stockholders County to review a judgment in favor of defendant in an action brought to recover damages for breach of contract to deliver coal to the Thacker Coal Company for sale. Affirmed. The facts are stated in the opinion. Messrs. Simms & Enslow, for plaintiff in error: Under the English common law, a mere contract to raise the price of property of the parties combining, involving no interference with the legal rights of others, did not constitute a crime. Mogul S. S. Co. v. McGregor, L. R. 21 Q. B. Div. 544, 57 L. J. Q. B. N. S. 541, 59 L. T. N. S. 514, 37 Week. Rep. 286, 53 J. P. · 391, 6 Asp. Mar. L. Cas. 320, L. R. 23 Q. B. Div. 598 [1892] A. C. 25, 61 L. J. Q. B. N. S. 295, 66 L. T. N. S. 1, 40 Week. Rep. 337, 7 Asp. Mar. L. Cas. 120, 56 J. P. 101; United States v. E. C. Knight Co. 156 U. S. 1, 39 L. ed. 325, 15 Sup. Ct. Rep. 249; United States v. Trans-Missouri Freight Asso. 166 U. S. 290, 41 L. ed. 1007, 17 Sup. Ct. Rep. 540. were the presidents of the Thacker Coal & Coke Company, the Lynn Coal & Coke Company, and the Logan Consolidated Coal Company. Small amounts of stock were taken by two other persons simply for the purpose, as is supposed, of making up the required number of persons. A. Moore, president of the Thacker Coal & Coke Company, was elected president of the new company. Said new company was organized, not for the purpose of mining coal, nor of selling coal generally, but for the sole purpose of acting as sales agent of the companies operating in said Thacker vein, but the Maritime Company refused to take part in its organization, and also to contract with it. On said 1st day of May, 1895, said agent corporation entered into a contract with the Thacker Coal & Coke Company whereby it agreed to sell for said company, for the period of five years, not less than 20,000 tons of coal each year, or, in default thereof, to pay the Thacker Coal & Coke Company 20 cents per ton for so much coal as it should fail to sell, in case it did fail Messrs. Rucker, Anderson, & Hughes, to sell the amount stipulated. From the for defendant in error: The plaintiff being both insolvent and indebted to the defendant, the only way it could insist upon a continuance of the contract was by first paying every cent it owed the defendant, and then tendering, in advance, the price of every shipment of coal demanded. Having utterly failed in both particulars, the plaintiff cannot recover damages from the defendant for a breach of the contract. proceeds the agent company was to deduct and retain as compensation 10 cents per ton. The Thacker Coal & Coke Company covenanted to deliver to the agent company as much coal as it could sell, not exceeding, however, 84,000 tons each year. It was further agreed that, if the mining company should fail to deliver coal according to the agreement, it should pay the agent company 10 cents per ton for coal not delivered, as compensation or liquidated damages. It was further provided that either party might terminate the agreement at the end of any year by giving sixty days' notice Messrs. Campbell, Holt, & Duncan prior thereto, April 1st being the beginning also for defendant in error. Ex parte Chalmers, L. R. 8 Ch. 289, 42 L. J. Bankr. N. S. 37, 28 L. T. N. S. 325, 21 Week. Rep. 349. of the year fixed in the contract. The prices at which the coal was to be sold were Poffenbarger, J., delivered the opinion fixed in the agreement, and it was further of the court: On the 1st day of May, 1895, there were four coal companies, corporations, operating in what is known as the Thacker Coal Vein in Mingo county. They were the Gloucester Isinglass & Glue Co. v. Russia Cement Co. 12 L. R. A. 563; Lovejoy v. Michels, 13 L. R. A. 773, and note; Ford v. Chicago Milk Shippers' Asso. 27 L. R. A. 298; People v. Milk Exchange, 27 L. R. A. 437; United States v. E. C. Knight Co. 24 L. R. A. 428, Affirmed in 39 L. ed. U. S. 325; State v. Phipps, 18 L. R. A. 657; Queen Ins. Co. v. State, 22 L. R. A. 483; Nester v. Continental Brewing Co. 24 L. R. A. provided that they should be adhered to by the agent company unless departure therefrom should be authorized by a minute signed by all parties producing coal from said vein for whom the said agent company 247; National Harrow Co. v. Hench, 39 L. R. A. 299; San Diego Water Co. v. San Diego Flume Co. 29 L. R. A. 839; Trenton Potteries Co. v. Oliphant, 46 L. R. A. 255; Tuscaloosa Ice Mfg. Co. v. Williams, 50 L. R. A. 175; Com. v. Grinstead, 56 L. R. A. 709; Gibbs v. McNeeley, 60 L. R. A. 152; and John D. Parks & Sons Co. v. National Wholesale Druggists' Asso. 62 L. R. A. 632. received from the sale of the coal, without should act as agent. The agent company remit for the proceeds as the money was was required to account for and pay over the proceeds of sales on or before the 15th day of each month. The general nature of the agent company's business, as set forth in the contract, was the selling, advertising, and introducing of Thacker coal, and it had authority to adjust and settle complaints made by consumers, and to select and appoint all subagents for the sale of said coal. Under this contract, the agent company sold for the three producing companies with which it had contracts, up to the 1st of May, 1896, 124,087 tons. In the meantime, there had been paid in on the capital stock of the agent company, by deduction from the proceeds of coal sold by the three operating companies, $5,360, which, with the amount originally paid in, $640, made the total sum paid in $6,000. Practically all of this money and the commissions, amounting to about $12,400, had been expended in the business of the agent company, advertising the coal, establishing agencies and subagencies, and providing facilities for handling and disposing of the coal. During this time Moore, president of the Thacker Coal & Coke Company, was president and had the management of the Thacker Coal Company. About the 1st of May, 1896, he retired from the presidency of the agent company, and Walter Graham, president of the Logan Consolidated Coal Company, succeeded him. On May 22, 1896, Moore, acting as president of the Thacker Coal & Coke Company, notified the agent company by letter that his company would not deliver any more coal under the contract, assigning as ground for its refusal that the agent company had, in the month of April, 1896, sold the coal of his company at prices less than the minimum prices stipulated in the agreement, without any authority so to do, and that the agent company had further violated the agreement by not accounting for and paying the proceeds of the sales made in April, 1896, on or before the 15th day of May, 1896. The payment complained of was by checks sent from Bluefield to Thacker under date of May 18, 1896. In reply to this letter, Graham, president of the agent company, wrote Moore, and called his attention to the fact that all parties interested had, at a certain meeting, upon the recommendation of Moore himself, unanimously agreed that the president of the Thacker Coal Company should have discretion to make concessions in price when he should deem it expedient, and that Moore himself, as president of the agent company, had directed the sales complained of to be made as they were made. He further, reminded him that it had been the practice, as established by himself, to Under rule 10 of this court (45 S. E. xi.) the defendant cross-assigns error in the overruling of the demurrer. I am of the opinion that this assignment is well taken. But for § 10 of chapter 99 of the Code of 1899, an action of assumpsit would not lie upon any sealed instrument. Under it such action does lie upon a promise, under- | sold in any particular place, nor that, under taking, or obligation in such instrument this contract, it must necessarily go befor the payment of money. The covenant yond the state lines. An examination of which forms the basis of this action is to the decisions of the United States Supreme deliver coal. It is true that there is a Court construing the act makes it certain clause by which the defendant company that, to be illegal thereunder, it must fall agrees to pay 10 cents per ton as liquidated clearly within the terms of the act. Kidd damages, but that only becomes effective v. Pearson, 128 U. S. 1, 32 L. ed. 346, 2 Inupon the breach of the covenant to deliver ters. Com. Rep. 232, 9 Sup. Ct. Rep. 6; coal. In the absence of such breach there United States v. E. C. Knight Co. 156 U. is no agreement to pay money. The condi- S. 1, 39 L. ed. 325, 15 Sup. Ct. Rep. 249; tion upon which this promise to pay money United States v. Trans-Missouri Freight arises is one of the class the determination Asso. 166 U. S. 290, 41 L. ed. 1007, 17 Sup. of which is peculiarly the subject of an Ct. Rep. 540. As this contract does not do action of covenant. The demand sued for so, it must be held valid so far as that act here is materially different from those in- is concerned. Is it void at common law? volved in Kern v. Zeigler, 13 W. Va. 707, The modern rule on that subject is that, aland Jones v. Singer Mfg. Co. 38 W. Va. 147, though a contract may be in restraint of 18 S. E. 478. However, the majority are of trade, if it is not unreasonably so, it is ena different opinion, and on this point the forceable. "Some of such contracts have judgment of the court below must stand. been held void and unenforceable in the For the plaintiff in error it is said there courts by reason of their restraint being is no evidence against his right to recover, unreasonable, while others have been held but it is insisted for the defendant in error valid because they were not of that nature. that the judgment cannot be disturbed for A contract may be in restraint of trade, two reasons. The first is that the contract and still be valid at common law." Mr. was entered into by the parties for the pur- Justice Peckham in United States v. Transpose of destroying competition, and is in Missouri Freight Asso. "The sense of the restraint of trade, and therefore void, as modern decisions is that, if the restraint is against public policy. In this connection it only commensurate with the fair protection is shown that, while the stock of the agent of the business sold, the contract is reasoncorporation stood in the name of Graham, able, valid, and enforceable." United States Moore, and Kirk, presidents of the three Chemical Co. v. Provident Chemical Co. 64 producing companies, it was taken in their Fed. 946. In that case one company sold names for convenience, and paid for by the out its competing business to another, coal companies; and, further, that an effort agreeing not to engage in the business any was made by these companies to get the more during the term of the lease. There Maritime Coal Company to join them. Un- is ample ground for applying this principle less this contract is within the inhibition of here. These companies were developing a act Cong. July 2, 1890, chap. 647, 26 Stat. new coal field. Their product was unknown at L. 209, U. S. Comp. Stat. 1901, p. 3200, in the markets, and it was necessary, in declaring illegal every contract and com- order to find sale for it, to spend large bination in the form of trust or otherwise, amounts of money in advertising it and esor conspiracy in restraint of trade or com- tablishing agencies. As they all produced merce among the several states or with the same kind of coal, this could be done foreign nations, it is not necessarily il- more advantageously and economically legal. Although on its face it carries an through one agency than by separate action. apparent tendency to stifle competition, and In accomplishing this purpose it was necesis, in that sense, in restraint of trade, it is sary that a uniform price as to the product not illegal by reason of that act, unless it of each company should be maintained; affects commerce among the several states otherwise the common agent, by discriminator with foreign nations. United States v. ing between them, could have sold the coal Trans-Missouri Freight Asso. 166 U. S. 290, of one company to the exclusion of that of 325, 41 L. ed. 1007, 1022, 17 Sup. Ct. Rep. the others, and the enterprise would have 540. This contract relates simply to the become impracticable, and defeated its own sale of the output of one mine; but it ap- purpose. The agreement to maintain unipears from the evidence in the case that the formity of price seems, therefore, to have agent corporation was organized for the been rather an incident to the main purpose purpose of handling the output of all the than a design to stifle competition. "The companies operating in a certain vein or latest decisions of courts in this country seam of coal, and that two other companies and in England show a strong tendency to had contracts with it like or similar to the very greatly circumscribe and narrow the contract with the defendant company. But doctrine of avoiding contracts in restraint it does not appear that this coal was to be of trade. The courts do not go to the length of saying that contracts which they now would say are in restraint of trade are, nevertheless, valid contracts, and to be enforced. They do, however, now hold many contracts not open to the objection that they are in restraint of trade which a few years back would have been avoided on that sole ground, both here and in England." Matthews v. Associated Press, 136 N. Y. 333, 32 Am. St. Rep. 741, 32 N. E. 981. In Skrainka v. Scharringhausen, 8 Mo. App. 522, the contract under consideration-very much like this one-was held good. The owners of certain stone quarries entered into an agreement to secure "a fair, proportionate sale of the product of all quarries at uniform prices and living rates," the terms of the agreement restricting the production of stone within certain territory, putting the sales in the hands of an agent for the interest of all parties, appointing a committee of five persons to modify prices and settle complaints, and imposing a penalty for every sale made in violation of the agreement. It is not intended here to affirm the cor rectness of the decision; but it illustrates the view taken by certain courts, and shows that much latitude is allowed to manufacturers and producers of commodities in arrangements for facilitating production and sale. In Diamond Match Co. v. Roeber, 106 N. Y. 473, 60 Am. Rep. 464, 13 N. E. 419, Andrews, J., said: "In the present state of the authorities, we think it cannot be said that the early doctrine that contracts in general restraint of trade are void, without regard to circumstances, has been abrogated. But it is manifest that it has been much weakened, and that the foundation upon which it was originally placed has, to a considerable extent at least, by the change of circumstances, been removed." Another interesting case is that of Central Shade Roller Co. v. Cushman, 143 Mass. 353, 9 N. E. 629. In that case the contract was one made by three manufacturers of a certain kind of curtain fixtures under different letters patent, owned by them severally, for the purpose of avoiding competition. It was held valid. In Cohen v. Berlin & J. Envelope Co. 9 App. Div. 425, 41 N. Y. Supp. 345, manufacturers of envelopes made a contract with another envelope manufacturer by which they agreed to purchase from him, at prices to be fixed from time to time by the former, a stated quantity of goods manufactured by him during a stated period, and he agreed that during such time he would not sell to others at a less price. Nineteen other concerns throughout the country engaged in manufacturing envelopes were not parties to the agreement, and their goods were in competition with those of the contracting parties. The contract was held valid, and the court recognized, as facts to be considered, that the agreement included but a small number of the manufacturers of envelopes, and that at the time it was made the business of manufacturing envelop s was demoralized through excessive competition. This case well illustrates the nature of the facts and circumstances to be considered in the present state of the law in determining whether a contract such as we have here is void as being in restraint of trade. In Horner v. Graves, 7 Bing. 735, 5 Moore & P. 768, 9 L. J. C. P. 192, Tindal, Ch. J., said: "We do not see how a better What test can be applied to the question whether reasonable or not than by considering whether the restraint is such only as to afford a fair protection to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public. Whatever restraint is larger than the necessary protection of the party can be of no benefit to either. It can only be oppressive, and, if oppressive, it is, in the eye of the law, unreasonable. ever is injurious to the interests of the public is void on the ground of public policy." Applying here this test, and the general principles recognized in Cohen v. Berlin & J. Envelope Co., it is impossible to see how the public was, or could have been injured by this contract. Three small companies out of the vast number of coal producing companies in this state entered into it. The quantity of coal put upon the market by them is an utterly insignificant portion of the vast quantities thrown upon the market by the numerous competing producers. In the absence of some great combination virtually controlling the production and price of a commodity in the country, the price is regulated and determined by the law of supply and demand. It is manifest that by this agreement the production of these three mines was facilitated and increased, rather than stifled or curtailed. If their operation can be said to have affected the price of coal to the consumer, it is perfectly clear that the tendency was to reduce, instead of increase, it, because that advantageous arrangement for the sale of their output enabled them to put upon the market increased quantities of coal. validity of this contract must be determined by its practical effect, rather than by ascertaining whether it falls within the terms of a legal definition. Contracts in restraint of trade and contracts, eliminating competition, as a general proposition, are The |