seems an academic one of little practical importance, in view of the extension already considered of the rule of condemnation of monopolies created by the crown. § 124. Fixing, raising or lowering price.-The condemnation of monopolies created by the crown was professedly based on the existence of what were said to be "three inseparable incidents" to every such monopoly, the most conspicuous being that the price of the monopolized commodity would be raised.39 But, however it might have been as to monopolies resulting from the act of government, it certainly is not an inseparable incident of a monopoly resulting from the acts of individuals, that the price is so raised. Assuming, however, that it is such an incident, it clearly does not follow that the circumstance of the raising of price in any way necessarily involves the existence of an illegal restriction upon competition, thus, where an individual possessing but a small portion of the supply of a given commodity, raises the price of such portion. It is obvious then that not only is the raising of price not a necessary incident of an 148 (1903-4) by P. H. Brown; Klingel's Pharmacy v. Sharpe, 104 Md. 218; 64 Atl. 1029; 7 L. R. A. N. S. 976; 118 Am. St. Rep. 399 (1906); Commonwealth v. International Harvester Co., 115 S. W. 703, 712 (Ct. App. Ky., 1909). Combinations, contracts, etc., "to ingross or forestall a commodity" are expressly included in the prohibition of the Mississippi act (§ 219). 39 Darcy v. Allein, 11 Coke, 84b, 866. For, as here said, "he who has the sole selling of any commodity may and will make the price as he pleases; and this word Monopolium, dicitur απο του μόνου και πωλεω quod est, cum unus solus aliquod genus mercaturæ universum emit, pretium ad suum libitum statuens." See also Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666 (1880); U. S. v. Trans-Missouri Freight Assoc., 166 U. S. 290; 17 Supm. 540; 41 L. Ed. 1007 (1897). The doctrine seems equally capable of application to a reduction of prices injurious to producers. See, for instance, Texas Standard Oil Co. v. Adoue, 83 Tex. 650; 19 S. W. 274; 15 L. R. A. 598; 29 Am. St. Rep. 690 (1892); Ellis v. Inman, 131 Fed. 182; 65 C. C. A. 88 (9th C., 1904). As to prohibition of Cal. Const. against raising of rates for transportation by railroad, after lowering for purpose of competition, see Edson v. Southern Pacific R. R. Co., 144 Cal. 182; 77 Pac. 894 (1904). As to duty of one enjoying monopoly (e. g., of privilege of furnishing gas) to charge reasonable rates, see Public Service Corp. v. American Lighting Co., 67 N. J. Eq. 122; 57 Atl. 482 (1904). illegal restriction upon competition, but it furnishes no adequate test of the legality of such a restriction. A fortiori is this the case as to merely fixing the price.* 40 § 125. Agreement to fix price.-It will hereafter be seen that the presence or absence of the element of agreement or com bination furnishes no test of the legality of a restriction upon competition. It having just been seen that the fixing of price furnishes no test of such legality, it seems to follow that the presence or absence of an agreement to fix price furnishes no such test. This may be made clear by illustration. If within a given area there be a thousand dealers in a given commodity, an agreement between two of the smaller dealers to raise the price would produce no appreciable and hence no illegal restriction upon competition, at least not necessarily. That is to say, the agreement must be among dealers in substantial control of 40 In State v. Eastern Coal Co., 70 Atl. 1, 5, 6 (Supm. Ct. R. I., 1908), was held not sustainable an indictment for a combination to fix the price of coal, it being said: "In order to regulate and fix the price of an article it is absolutely necessary to have or to acquire the power to do so. . . . The charge is that the defendants combined to do something that can only be done through a monopoly. The act of fixing the price is only an attribute of a monopoly, an indicium by which it may be classified. It is a symptom, but it is not the disease itself." See Whitwell v. Continental Tobacco Co., 125 Fed. 454, 459, 460; 60 C. C. A. 290, 295, 296; 64 L. R. A. 689, 696, 697 (8th C., 1903); Chicago, Wilmington, etc., Coal Co. v. People, 114 Ill. App. 75, 111 (1904). In Elliman v. Carrington, 2 Ch. (1901) 275, was sustained an agreement by which a wholesaler purchasing from a manufacturer agreed not to sell below specified prices, and in case of sale to another, to procure a similar agreement from the latter. See also Taddy v. Sterious, 1 Ch. (1904) 354; McGruther v. Pitcher, 2 Ch. (1904) 306; Garst v. Charles, 187 Mass. 144; 72 N. E. 839 (1905). The prohibition of the anti-trust acts commonly includes combinations to increase (or reduce) price (or cost); so of combinations to "fix," "regulate," "control," "limit," "influence," "establish," "change," "maintain," or the like. Ordinarily the prohibition is absolute, but for special forms of qualification, see under the various acts, c. XX. As to effect of such statutory prohibi tions, see Clancey v. Onondaga Salt Manuf. Co., 62 Barb. (N. Y.) 395 (1862); Beechley v. Mulville, 102 Iowa, 602; 70 N. W. 107; 63 Am. St. Rep. 479 (1897). the supply,11 to produce such result. 42 But in this case the illegality is determined by the circumstance of their having such control, and not by the circumstance of the agreement; in other words, as just stated, the presence or absence of the agreement furnishes no test of legality.43 In this view an agreement to fix 41 As to what constitutes such control, see § 120. 42 This is the view taken in National Distilling Co. v. Cream City Importing Co., 86 Wis. 352; 56 N. W. 864; 39 Am. St. Rep. 902 (1893); Herriman v. Menzies, 115 Cal. 16; 46 Pac. 730; 35 L. R. A. 318; 56 Am. St. Rep. 82 (1896). In Herriman v. Menzies it was applied to an agreement of an association of stevedores in San Francisco, "to govern and control the business of master stevedores, to be carried on by its members," with a provision for fixing prices to be charged by members, it not appearing that the parties controlled the business of stevedoring in San Francisco, to the extent of ability to exclude competition or control prices, or that they comprised more than an insignificant fraction of those engaged there in the business. See Over v. Byram Foundry Co., 37 Ind. App. 452; 77 N. E. 302; 117 Am. St. Rep. 327 (1906). See under Federal act, § 193; under New York act, § 224. There are some comparatively early decisions that go to the extent of holding that an agreement to fix prices is not illegal, even if among those in substantial control of the supply. Thus, in Ontario Salt Co. v. Merchants' Salt Co., 18 Grant (Ontario), 540 (1871; salt), notwithstanding the admission that "prices might possibly be influenced by it." So in Central Shade Roller Co. v. Cushman, 143 Mass. 353; 9 N. E. 629 (1887), of a combination among manufacturers and sellers of curtain fixtures known as "wood balance shade rollers," though they were the principal dealers and substantially supplied the market. So held even on the assumption that the agreement tended to raise the price. So in Dolph v. Troy Laundry Machinery Co., 28 Fed. 553 (C. Ct. N. Y., 1886), was sustained an agreement between two manufacturers of washing-machines, they being the principal, but not the only, manufacturers in this country, for a division of profits on sales, upon the basis of a fixed price. It is clear that these authorities would not now be generally followed. 43 Thus, in Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173, 186; 8 Am. Rep. 159, 165 (1871), the five coal companies which combined to fix the price of coal were the sole dealers in the region affected. The court said: "Singly each might have suspended deliveries and sales of coal, to suit its own interests, and might have raised the price, even though this might have been detrimental to the public interest. . . But this combination has a power in its confederated form which no individual action can confer. The public interest must succumb to it, for it has left no competition free to correct its baleful influence." So in Chicago, Wilmington, etc., Coal Co. v. People, 214 Ill. 421; 73 N. E. 770 (1895), of an agreement among price, though a frequent incident of a restriction upon competition, is of no consequence, from a legal standpoint, save as affecting the manner in which the question of illegality arises, those including the larger producers of coal in northern Illinois. So in Drake v. Siebold, 81 Hun, 178; 30 N. Y. Suppl. 697 (1894), the agree ment to fix the price of coal, held illegal, was among all the coal dealers in Rochester, except a few small dealers who sold by the bushel. So held under the statute (now Penal Code, § 168, subd. 6) against a conspiracy "to commit any act injurious to trade or commerce.' So in Hoffman v. Brooks, 23 Am. Law Reg. (N. S.) 648 (Super. Ct., Cin., 1884), the agreement held illegal was among the owners of the leaf-tobacco warehouses in Cincinnati, for fixing rates of serv ice, the business being of great magnitude in that city, and that being the largest market for such business in the United States. So in People v. Milk Exchange, 145 N. Y. 267; 39 N. E. 1062; 27 L. R. A. 437; 45 Am. St. Rep. 609 (1895), though it does not clearly appear how large a percentage of the dealers were inIcluded in the combination in question, yet the prices of milk as fixed by it had "largely controlled the market in and about the city of New York, and of the milk-producing territory contiguous thereto." In Cohen v. Berlin & Jones Envelope Co., 166 N. Y. 292; 59 N. E. 906 (1901), the agreement held illegal was between, on the one hand, a combination of those manufacturing 85 per cent. of the envelopes manufactured in this country, and, on the other, a comparatively small manufacturer outside the combination. There were similar contracts between the combination and all other considerable outside producers. So in Bobbs-Merrill Co. v. Straus, 139 Fed. 155, 177, 189 (C. C. N. Y., 1905), of a combination to fix the price of books, among at least 90 per cent. of both publishers and sellers of copyrighted books in the United States. In U. S. v. American Tobacco Co., 164 Fed. 700, 720 (C. C. N. Y., 1908), the par ties to the combination were said to "so engross the market" (see §§ 193, 198), as to be able to "at pleasure fix the prices." To the same rule seems referable Lovejoy v. Michels, 88 Mich. 15; 49 N. W. 901; 13 L. R. A. 770 (1891), where, in applying the rule that, in the absence of agreement as to the price of goods sold, the price shall be a reasonable one, it was held error to allow as the price, or even consider as evidence of value, the price fixed by a combination of manufacturers, to which the plaintiff belonged, and which substantially controlled the supply. And the following are cases of agreements held illegal as fixing prices, where the parties seem, though it does not always appear, to have constituted a substantial portion of the dealers in the commodity. But, if otherwise, they are to be classed with the cases cited in note 45, infra. Leonard v. Poole, 114 N. Y. 371; 21 N. E. 707; 4 L. R. A. 728; 11 Am. St. Rep. 667 (1889; lard); De Witt Wire-Cloth Co. v. N. J. WireCloth Co., 16 Daly, 529; 14 N. Y. Suppl. 227; affirmed, it seems, in 38 N. Y. State Reporter, 1023 44 thus in a proceeding to enforce such an agreement. A fortiori is this the case as to merely fixing the price. Nevertheless, the view that agreements to fix price are inherently illegal has not infrequently been expressed, and even acted upon, 15 though in some instances the illegality has been regarded as confined to an agreement to fix an unreasonable price.16 (1891; wire-cloth); Richardson v. Buhl, 77 Mich. 632, 657; 43 N. W. 1102, 1110; 6 L. R. A. 457, 465 (1889; friction matches); Cummings v. Foss, 40 Ill. App. 523 (1891); confirmed in subsequent decision in Foss v. Cummings, 149 Ill. 353; 36 N. E. 553 (1894; corn; the opinion was here expressed that the combination was in violation of the Illinois statute making it a penal offense to "corner the market or attempt to do so)"; U. S. v. Addyston Pipe & Steel Co., 85 Fed. 271, 288; 29 C. C. A. 141, 157; 46 L. R. A. 122, 134 (6th C., 1898); affirmed in 175 U. S. 211, 237; 20 Supm. 96, 106; 44 L. Ed. 136 (1899). See Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507; 43 Atl. 273; 46 L. R. A. 255; 78 Am. St. Rep. 612 (1899). In National Harrow Co. v. Bement, 21 App. D. 290, 294; 47 N. Y. Suppl. 462, 466 (1897), a provision in a license to manufacture and sell under a patent, whereby the licensor reserved the right to decrease the prices as fixed, was held illegal, against the contention that authority was not given to increase the price, it appearing that the prices as fixed were far above the selling price. As to reversal, see § 120. That for the purpose of making illegal the fixing of price by those in substantial control of the supply, it is not necessary that the price fixed be unreasonable, see § 121. As to sufficiency 45 of indictment for combination to fix price, see State v. Eastern Coal Co., 70 Atl. 1 (Supm. Ct. R. I., 1908). 44 See § 167. 45 This seems to be the ground of the decision in More v. Bennett, 140 Ill. 69; 29 N. E. 888; 15 L. R. A. 361; 33 Am. St. Rep. 216 (1892), declaring illegal an association of law stenographers, having as its object to control the prices to be charged by its members for stenographic work, by restraining all competition among them. And in the following cases it does not appear that the agreements condemned were among persons constituting a substantial portion of the dealers: Urmston v. Whitelegg, 63 L. T. R. N. S. 455 (1890; manufacturers of mineral waters); Sayre v. Louisville Union Benev. Assoc., note 46, infra. See also decisions, note 43, supra. 46 Thus, in Herriman v. Menzies, 115 Cal. 16; 46 Pac. 730; 35 L. R. A. 318; 56 Am. St. Rep. 82 (1896), the agreement was sustained, it not appearing that the prices fixed were unreasonable, or the restriction "such as to preclude a fair competition with others engaged in the business," though there is another and distinct ground for the decision, namely, that the parties Idid not control the business. See note 42, supra. So, in Sayre v. Louisville Union Benev. Assoc., 1 |