what more than that figure. Of the total also sold to peddlers, who ran their own the People's Ice, Storage & Fuel Company wagons. owned or leased plants with sufficient capac- In March, 1906, the price of ice in Kansas ity to produce about 180 tons per day, ex- City to peddlers and distributors, uniformly clusive of the 100-ton addition to the plant made by all producers and importers, was of the Western Ice & Storage Company. $3 per ton. On the 1st day of April this Excepting the original respondents in this price was raised by all to $4 per ton, and on case, the companies making ice in Kansas May 1st it was again uniformly raised by On the 23d of June this City and vicinity were the Crystal Springs all to $5 per ton. Ice Company, Kansas City, Kan., capacity 50 proceeding was instituted. The retail prices tons per day; the Leeds ice plant, capacity were raised to conform to the increase in the 30 tons per day; the Armour Packing Compa- price made the peddlers. Notices of uniform ny, 150 tons per day; the Santa Fé Car increases on April 1st and May 1st were Icing Company, 140 tons per day, located at mailed out some days in advance by the Argentine, Kan., the Independence plant, In- People's Ice, Storage & Fuel Company and dependence, Mo., capacity 50 tons. The first- the Central Ice Company to their respective named company also handled about two cars customers; the peddlers or drivers for each (40 tons) of ice from Galena, Kan.; and the company getting their notice of the increase Leeds Company handled a car per day from in the wholesale and retail prices from the Paola, Kan. The Swift Packing Company company direct, or from the weighmaster at was installing a 200-ton plant, and the Mor- the plant at which they obtained ice, and ris Packing Company made about 100 tons the peddlers operating their own wagons getper day; but neither was selling ice on the ting their information, often, when the inKansas City market at the time of the hear-creased price was exacted of them. These ing. enormous. The evidence also disclosed that what was called "the ice season" .extended from about June 15th to September 15th of each year, during which time the demand for ice was The natural ice crop in the vicinity of Kansas City in the winter of 1905 and 1906 was a failure. The Armour Packing Company, which usually stored 80,000 tons or more of natural ice, was unable to store any, and, consequently, for use in its own business, was relying upon the artificial ice from its plant. Neither that company nor R. W. Woods, one of the stockholders of the People's Ice, Storage & Fuel Company, and a dealer in natural ice, entered into any contract with the People's Company in 1906. As Mr. Woods testified, he "had nothing to sell." None of the respondents, save the People's Ice, Storage & Fuel Company and the Central Ice Company, delivered ice by wagons on regular routes, though Vanderslice-Lynds sold ice to three or four peddlers, who operated their own wagons, and who had bought from that company from the time The only it began the manufacture of ice. other companies operating wagons on the streets were the Crystal Springs Company of Argentine, Kan., which appears to have operated wagons in Kansas City, Kan., the Standard Ice Company, under which name the Leeds plant, some three to five miles out of the city, was operated, and possibly the Interstate Ice & Cold Storage Company Some had operated some wagons a while. other companies sold ice to peddlers at times; but it is not made clear what amount of ice reached the daily market by this channel. The Central Ice Company, one of the defendants, was shown to have a capacity of 350 tons per day at the time of the hearing, and it also shipped in ice from outside last conformed their retail prices to those of the People's and Central Companies, which were identical and conformed to the notices sent out. There had been no scarcity of ice in 1906 to explain the increase in prices; and some of the plants of the companies named had not been, prior to the hearing in July, run at their full capacity all the time. The officers of defendants explained the increase as due to the failure of the natural ice crop and the consequent change in the ratio of the demand to the supply of artificial ice. The Central Ice Company and the People's Ice, Storage & Fuel Company furnished about 75 to 90 per cent. of the ice used in the Kansas City market, excepting that consumed by large plants, which, in the main, made their own ice. The Central Ice Company was organized about 1902 or 1903 by W. F. Lyons, who became its president, principal owner, and, it He had full control and seems, manager. charge of the company's business, as his own This company testimony clearly indicates. furnished no ice to the People's Ice, Storage & Fuel Company, but had 27 or 28 wagons of its own, which it used in delivering ice. It also sold ice to about 30 or 35 peddlers, who used their own wagons in delivering. The People's Ice, Storage & Fuel Company operated 57 or 58 ice wagons of its own, and also sold to about 65 or 70 peddlers, who delivered in their own wagons. Some of these peddlers operated more than one wagon. of them-nearly all of them-procured their ice supply from the People's Ice, Storage & Fuel Company or the Central Ice Company. All of them conformed to the retail prices made by the People's and the Central Companies, except in a few isolated sales. O. W. Most Storage Company and one of the organizers | they “had one more opportunity to advance of the first distributing company, the old Peo- | prices." He was very anxious to secure an ple's Ice & Fuel Company in 1898, testified agreement to make the advance, but was that the People's Ice & Fuel Company and told that the Consumers' Company did not the Central Ice Company, after it was organ- look upon the proposal with favor; but a ized, entered into "a gentlemen's agreement final conclusion would be reached in a few to be good to each other." The representa- days. That answer was a refusal to enter tives of the People's Ice, Storage & Fuel into the agreement for the advance. Lyons Company, "had several talks with Mr. Lyons, took the matter up with Street thereafter, representing his company, and it was agreed" deploring the fact that prices were not highthat "each should respect the others custom-er, and finally stated that if the Consumers' ers;" and it was also agreed that "a usual Ice Company did not agree to the advance and uniform price" should be maintained "there certainly would be lower prices for and the two sell at the same price. Butt further testified that in the fall of 1905 or spring of 1906 he contemplated buying into the Central Ice Company, and that Lyons, its president, during the pendency of their negotiations, made a general statement of the financial condition of the company. During the discussion Butt asked Lyons how he "was going to conduct the general business now," and whether he was still "maintaining those prices." The witness testified "he said 'Yes; they were still working along under the same arrangement." ice." A few days thereafter, and about June 25th or 28th, the Central Ice Company and the People's Ice & Fuel Company did cut the price to $2 per ton for natural ice and to $2.85 per ton for artificial ice, and these prices were maintained until the Consumers' Ice Company failed, about 60 days later. The evidence showed that the Consumers' Ice Company's natural ice cost it $2.25 to $2.50 per ton f. o. b. Kansas City, and that the artificial ice it handled was almost a negligible quantity. These facts were testified to by Street, and Lyons, recalled, admitted having frequent conversations with Street and his associates, admitted stating that they were selling ice too low, denied endeavoring to arrange any advance on the part of the Central, the People's, and the Consumers' Companies, but did not deny cutting the prices as Street testified. O. P. Street was engaged in the ice business in Kansas City in 1905, dealing principally in natural ice. A. J. Morris and H. R. Clauss were associated with him, and the business was done under the name of the Consumers' Ice Company. This company procured a small supply of artificial ice from Galena, Kan. (Street being interested in an Dr. Henry Croskey testified to a conversaice company there), and Pittsburg, Kan. tion with W. F. Lyons, president of the CenThe principal part of their ice was natural tral Ice Company, in April, 1906, in which he ice from Moline, Ill. The Consumers' Ice asked Lyons what effect the hot weather Company began their 1905 business in May, would have on ice. In the language of the 1905, and made a price to peddlers of $3 per witness: "He says: 'Well, it is going to ton. At this time the People's Ice & Fuel raise the price.' I says: 'Why, you can Company (the old distributing company), the manufacture it for 90 cents or $1.25.' 'Yes,' Central Ice Company, and practically all, if he says, 'but there is no money in that.' He not all, other ice companies, except the Im- says: "You can't buy any natural ice, and perial Brewing Company, were maintaining you have to depend on artificial ice. Of a price of $3.50 per ton to peddlers. In the course, we are going to make something out early part of May, 1905, Street had a con- of it.' I said: 'Well, it will not affect me versation with A. Menny, the manager of the much. I have been buying my ice from MurPeople's Ice & Fuel Company, at his office, phy for eight years. I have only been payconcerning the price of ice in Kansas City ing him 30 cents a hundred, and, of course, for 1905; but the details of this conversa- Murphy will not raise it on me.' He says: tion were excluded by the learned commis- 'Yes, indeed, he will, because I have already sioner. Street testified that in June Lyons, raised it on him-the price of ice. We will president of the Central Ice Company, visit-raise it again, and we will have to charge ed the office of the Consumers' Ice Company him more for it.' I says: If Murphy is goand took up the question of the prices of ice. ing to charge me more than that, I am going He made inquiries of Street, Clauss, and to look around for somebody to buy ice from.' Morris as to whether it "would be agreeable He says: "That will not do you any good to" them to advance prices to $3.50 for nat- either, because we all intend to raise the ural ice and $4 for artificial ice. Lyons stat-price of ice, and you cannot get it any cheaped that he had been in consultation with the People's Company. Street's company de- Lyons admitted having a conversation with ferred giving a definite answer, and Lyons Dr. Croskey at the place Croskey named, but visited them again, and was told the Con- said it occurred in May of 1906. Lyons desumers' Ice Company had decided not to ad-tailed the conversation as follows: "He callvance prices. Later, about June 20th, or ed across the corner to me, and said, 'Have 25th, Lyons again approached the members of you raised the price of ice, too?' I said: er.'" reason for raising the price of ice?' I told upon the daily requirements of the customer. him on account of the hot winter and scar- The price (after May 1, 1906), delivered in city of the product. He says: 'I don't believe wagon load lots (5,000 pounds), was $5.50 per Murphy will raise on me. I have been buy- ton; less than 5,000 pounds, and a cake ing from him a great many years,' or a 'good (300 pounds) or more, $6 per ton; less than long time.' I don't remember that he stated a cake, to business houses, at the rate of $7 eight years or any definite period. He told per ton; to families, $10 per ton. These me he had been buying from him for some prices, prior to May 1, 1906, had been, retime, and that he didn't believe Murphy spectively, at the rate of $4.50, $5, $6, and $8, would raise his price. He said his price was per ton. The prices of the People's and the 30 cents a hundred. I said to him: 'Neither Central Companies were identical in point of he nor any one else can furnish you that time and amount. ice at that price this year, if we should have a hot season-if we get a warm season. On account of the conditions of the ice market to-day, men who are now manufacturing ice will be glad to get it at 30 cents a hundred in car load lots. I have already raised my price on Mr. Murphy, and expect to have to do it again.' He commenced talking to me about everybody going in and raising the price, and I just finished my dinner and got up and left." [1-3] 1. The action of the circuit court in referring the case is assigned for error. It is not necessary for us to follow counsel through the authorities cited upon the question of the referability of this proceeding, for the reason that the referee was appointed at the June, 1906, term of court, and no term bill of exceptions was filed; nor was leave taken at that term to file such a bill for the purpose of preserving exceptions to the court's action. The recital in the bill fil ed by leave given at a later term cannot avail to save the point. Smith v. Baer, 166 Mo. loc. cit. 401, 66 S. W. 166; Dean v. Railroad Co., 229 Mo. loc. cit. 439, 440, 129 S. W. 953; State v. Bonner, 5 Mo. App. loc. cit. 16. Neither do the objections made before the referee at the beginning of the taking of testimony before him furnish any sup head must be made at the time of the apport for this assignment. Objections on this Mr. Joseph Heim testified that the Kansas City Breweries Company had no agreement with any one as to the amount of ice it should make, nor any agreement as to the price at which it should sell. Mr. Vanderslice gave like testimony as to the Vanderslice-Lynds Mercantile Company. Neither of these gentlemen, nor any other, however, though both of them and Mr. Miles seem to have been present at the time, denied the testimony as to the original purposes of the formation of the People's Ice & Fuel Company as de-pointment, and made to the court itself. The tailed by Butt and Trask. There was evi- referee, or commissioner, as he was dubbed dence that the Breweries Company and the in this case (Peabody v. Munson, 211 Ill. Vanderslice Company sold ice to others than loc. cit. 326, 71 N. E. 1006), has no more the People's Ice, Storage & Fuel Company, power to set aside his appointment, on the but not to peddlers, except as already stated. ground that the cause he is about to hear The quantity of ice sold at retail and to is not referable, than he has to appoint himretailers by these companies was practically self referee in the first place. negligible. H. L. Burk was the secretary of the People's Ice, Storage & Fuel Company, and, according to his own uncontradicted testimony, the whole power to fix prices of ice was in his hands. He consulted no one, in or out of the company, but made prices as he pleased. He originally (July 1, 1905) had one share of stock, but before the hearing had acquired seven more, he testified. The testimony of the officers and directors of the company tended to corroborate Burk as to his control of prices. Lyons testified he generally conformed his (Central Ice Company's) prices to those made by the People's Ice, Storage & Fuel Company; that he watched their prices, and when they advanced the price he did likewise. He said that on one occasion he made price "downtown $7 a ton and collected the money for the ice"; that he "thought was going to be the regular price." but found it was not, but that "it was $6 instead of $7," and had to refund the difference. It also appeared that as the price to peddlers was advanced the prices to consumers were also advanced; these It may also be observed here that the action of the trial court in overruling the motion to set aside the appointing order and the motion to strike out the testimony, on the ground that the case was not referable and consent had not been given, all of which motions were filed after the report was in, is in full harmony with principles heretofore laid down. Young v. Powell, 87 Mo. loc. cit. 130; Conley et al. v. Horner et al., 10 Okl. loc. cit. 278, 62 Pac. 807. [4] 2. An exception not properly preserved is no exception at all. Consequently this record presents a case in which the trial court referred the issues, at the relator's instance, without exception being taken. It was too late after the report was filed to move for trial by jury (Smith v. Baer, supra, 166 Mo. loc. cit. 402, 66 S. W. 166; Grant v. Hughes, 96 N. C. loc. cit. 189, 2 S. E. 339); and consequently the right to such trial in a case of this kind is not presented by this record. [5] 3. After the report of the referee and relator's exceptions thereto had been on file been argued, submitted, taken under advise- an ordinary proceeding by information in ment, and sustained, and partial findings of the nature of quo warranto. The case was fact and conclusions of law, so the record tried below on that theory, and in their recites, had been filed by the court below, briefs and arguments here appellant's counappellants, on May 14, 1907, the day the sel adhere to the trial theory. There is no order sustaining the exceptions was finally contention that the proceeding is one in equimade, filed seven separate motions to strike ty, but the contrary. out all or certain parts of the evidence taken by the referee. Two of these motions were filed by the People's Ice, Storage & Fuel Company, one to strike out all the evidence, and one to strike out merely that part of the evidence relative to the organization of the People's Ice & Fuel Company, and to the objects and purposes of such organization. These motions were overruled and exceptions taken. Thereafter, and at "11 o'clock a. m." on the same day, the .People's Ice, Storage & Fuel Company filed its application for change of venue, on the grounds of the bias and prejudice of the judge against it. The application was signed by the applicant's counsel, and was sworn to by its secretary, H. L. Burk, on May 13, 1907, the day before the application was presented, and before the several motions mentioned were filed and disposed of. No notice of the intended presentation of the application was given the prosecuting attorney until immediately at the time the application was filed. Under such circumstances the trial court's ruling refusing a change of venue could not be disturbed (St. L., C. G. & Ft. S. Ry. Co. v. Holladay, 131 Mo. loc. cit. 452, 453, 33 S. W. 49), even if it could be conceded (which it is not) that the general rule that a case cannot be cut in two by a change of venue after the filing of a referee's report (Woodrow v. Younger, 61 Mo. 395) is inapplicable, in view of the peculiar facts of this case. 4. Despite the fact that the circuit judge set aside the referee's report and made findings of fact of his own, it is insisted that the judgment, based on the court's findings, must be reversed if there is any substantial evidence in the record supporting the findings of the referee. (1) This is not a reference by consent; and consequently the rule in such references with regard to the finality of the referee's findings of fact (Caruth-Byrnes Hardware Co. v. Wolter, 91 Mo. 484, 3 S. W. 865; State ex rel. Walker v. Hurlstone, 92 Mo. loc. cit. 332, 5 S. W. 38) is not applicable to this case. [6] (2) Nor is the rule applicable in references in suits in equity applicable here. Proceedings by information in the nature of quo warranto, not instituted under the statute, owe their origin to the common law (High on Extr. Legal Remedies, § 593; State ex inf. v. Standard Oil Co., 218 Mo. loc. cit. 345, 116 S. W. 902; State ex rel. v. Rose, 84 Mo. loc. cit. 202; State ex rel. v. Miller, 1 Mo. App. 57, 67, 68); and equitable rules, generally speaking, are not applicable to them. The information, rule issued thereon, and relief granted are not consistent with any [7] We agree with the view of the trial court and counsel on both sides that this is a proceeding by information in the nature of quo warranto, despite the presence in the information of a prayer for an injunction. The remedy by injunction, if any exist, to restrain corporations from continuing unlawful combinations and that by quo warranto are wholly inconsistent and cannot be prosecuted to judgment at the same time, even separately (Attorney General v. Railroad Companies, 35 Wis. loc. cit. 595, 596) for obvious reasons. Quo warranto goes to the life of the corporation informed against; while a proceeding to enjoin is necessarily predicated upon an anticipation of the continuance of the defendant's corporate exist ence. There are reasons, also, to question the right of a prosecuting attorney, in 1906, to institute injunction proceedings under the statute then in force (section 8979, R. S. General (of which there is no pretense in 1899), except by direction of the Attorney this case); and certainly he could not proceed outside the statute, in a case of this kind, by injunction against corporations whose business was not affected with a public interest. McCarter v. Insurance Co., 74 N. J. Eq. 372, 73 Atl. 80, 414, 29 L. R. a. (N. S.) 1194, 135 Am. St. Rep. 708, 18 Ann. Cas. 1048; Cook on Corporations, § 635. was [8] It is not necessary to elaborate these suggestions, however, since the case tried below and heard here upon the theory that it was purely a proceeding by information in the nature of quo warranto, and on The that theory it must be decided by us. rule in equity, therefore, with respect to weighing evidence, is inapplicable. [9] (3) Nor can we apply the rule laid down by the statute (section 2013, R. S. 1909) for the government of those cases in which the report of the referee was approved by the trial court, for the obvious reason that the report in this case was not approved, but exceptions thereto sustained and independent findings made by the court. [10, 11] (4) The question which confronts us in this case really is as to what presumptions support the findings of the trial judge, made on the evidence after the referee's report has been set aside in the exercise of the court's unquestionable discretion so to do (Utley v. Hill, 155 Mo. loc. cit. 276, 55 S. W. 1091, 49 L. R. A. 323, 78 Am. St. Rep. 569) in a case referred by compulsion. For the purpose of determining this question, we must, since no exception to the sidered here (Smith v. Baer, 166 Mo. loc. cit. | court in that case, in discussing the finality 401, 66 S. W. 166; Tinsley v. Kemery, 170 of the referee's findings of facts, said: "UnMo. loc. cit. 316, 70 S. W. 691), treat the case as one compulsorily referable. In such cases it is the settled law of this state that the trial court "may act upon the report of the referee and find therefrom different conclusions of fact from those reported by the referee." Utley v. Hill, 155 Mo. loc. cit. 276, 55 S. W. 1104, 49 L. R. A. 323, 78 Am. St. Rep. 569. Once, at least, this division has expressed itself directly upon the point. In the case of Utley v. Hill, 155 Mo. loc. cit. 258, 55 S. W. 1097, 49 L. R. A. 323, 78 Am. St. Rep. 569, it was said that the finding of the trial judge in sustaining exceptions on conflicting evidence, when assailed in this court as against the weight of the evidence, would not be reviewed, "because it is the settled practice of this court not to review conflicting evidence, nor to review the rulings or findings of the trial courts on such evidence." It is true that the evidence was not before the court, and the point need not have been discussed. The fact that the remark quoted was obiter does not, however, deprive it of all its value. der the present statute, the constant practice in a large class of cases is for the courts to review the findings of the referee upon the evidence reported by him, and to correct the findings when erroneous. When the evidence is preserved, these findings may be reviewed and corrected on appeal to this court." The question presented in that case was as to the power of the circuit court to revise the referee's findings in a case referred by consent; and what is said with respect to findings in other classes of cases is not so authoritative as what is said on the point actually before the court for decision. The cases cited in support of the holding quoted do not support it, if it is to be interpreted as laying down a rule that this court will set aside the findings of the trial court in this sort of a case merely on the weight of the evidence. Two of the cases cited were equitable in their nature, and in the other the trial court had merely referred the report of a receiver, and the questions reviewed in this court in this last were rather of arithmetic and law than of fact in the ordinary sense. Certainly a finding of fact, based on a mere mathematical computation, is reviewable, since any other finding than a correct one has no evidence to support it. In the case of Williams v. Railway Co., 153 Mo. loc. cit. 511, 54 S. W. 697, it was held by Division No. 2 of this court that in case of a conflict between the findings of the But the question before the court in Cacircuit court and the referee the presump-ruth-Byrnes Hardware Co. v. Wolter was the tion in this court was "in favor of the judicial action of the circuit court, whose duty and prerogative it was, in a case like this, to examine the report of the referee in the light of the evidence and affirm or reverse his action." The court declared that rule to be "in harmony with our practice in reviewing the granting or refusing of new trials," and held that "the presumption is in favor of the action of the trial court; and it is only where we find it has abused its discretion do we interfere with its judgment." In the case of Smith v. Baer, 166 Mo. loc. cit. 406, 407, 66 S. W. 170, it was said that, "under the Constitution, this court has a right to review the facts, as well as the law, in any case, however it may have been tried; but it has not been its practice to do so, except in extreme cases, in actions at law, for the reason that experience has shown that it was not necessary to do so to insure a proper administration of justice. * right of the circuit court, in a case referred by consent, to make findings contrary to those of the referee and render judgment thereon. Nor did the court in that case lay down any rule that it would examine and pass upon conflicting evidence in a case like that now at bar and make its own findings in accordance with its own views of the weight of the evidence. It was merely held that findings of the trial court, contrary to those of the referee, might be "reviewed and corrected on appeal." It is to be noted that the remark there made seems as applicable to the review of the findings of the referee, which have not been "corrected" by the trial court, as to those which have. The premises considered, we conclude that the Wolter Case is not an authority for the proposition that this court will weigh conflicting evidence in a case of this kind. That the language used in that case is not out of harmony with the rule laid down in Williams v. Santa Fé Ry. Co., supra, is shown by the fact that in the latter case the Wolter Case is cited in support of this court's power to review the court's findings of facts. 153 Mo. loc. cit. 495, 511, 54 S. W. This court always looks into the record, [12] In Caruth-Byrnes Hardware Co. v. Wolter, 91 Mo. 484, 3 S. W. 866, the reference was by consent, and the question presented there was wholly different from that In West v. Bank, 110 Mo. App. 496, 85 S. W. 603, the St. Louis Court of Appeals had before it the question whether the findings of fact by the trial court, after sustaining exceptions to the referee's findings, ought to |