are peculiar and limited to dealings in a certain commodity. Evil practices, therefore, may arise in the business methods pertaining to one commodity, which do not obtain at all in relation to other commodities. Practices may obtain which contravene no Statute, and which, nevertheless, would be deemed as morally dishonest and detrimental to the public interest. If it is true that large corporations enter a specified business and cover a large territory, including many purchasing points, and if it be true that they resort to methods which would be deemed morally dishonest and unjust in order to obtain a monopoly of that particular business in the territory which they so occupy, then a situation is presented which fairly calls for legislative attention. The legislative problem thus presented is manifestly a difficult one. The resulting legislation may not be the best. But a legislative Act which is directed against such particular evil ought not for that reason alone to be regarded as capricious and arbitrary in its classification. The temporary maintenance of artificial prices for the sole purpose of destroying a weaker competitor and creating a monopoly is one of the modern evil inventions. All that is required for its sure success is that there be great inequality of financial resources in favour of the offending party.1

The consideration of this important subject necessarily leads to the conclusion that the business of buying or of selling a specified commodity, when carried on by parties controlling ample capital, with large central plants and local purchasing or distributing points extending over wide territory, affords special facilities and motives for the creation of monopolies by the temporary maintenance of artificial prices at competitive local points. This, however, can be stopped by local legislation where the Federal government is helpless, and it is one of the hopeful signs of progress to be able to note the decided steps already taken in this direction. 2 134 N. W. R. 497.

1 133 N. W. R. 898.

A calling may not in itself be immoral, and yet the tendency of what is generally or ordinarily or often done in pursuing that calling may be towards that which is admittedly immoral or pernicious; and this is particularly true in connection with those trades and commercial undertakings which, although innocent and harmless in themselves, become through improper discrimination objectionable.

It is true that it is the right of every citizen to pursue any lawful trade or business, under such restrictions as are imposed upon all persons of the same age, sex and conditions. But the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted licence to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is the liberty regulated by law. The right to acquire, enjoy, and dispose of property is declared in many Constitutions to be one of the inalienable rights of man. But this declaration is not held to preclude the Legislature of any State from passing laws respecting the acquisition, enjoyment, and disposition of property. What contracts respecting its acquisition and disposition shall be valid, and what void or voidable; when they shall be in writing and when they may be made orally; and by what instruments it may be conveyed or mortgaged, are subjects of constant legislation. And as to the enjoyment of property, the rule is general that it must be accompanied with such limitations as will not impair the equal enjoyment by others of their property. Sic utere tuo ut alienum non laedas is a maxim of universal application.1

1 137 U.S. 90.

There is no evil in a trust, pool or combination, even when in restraint of trade, provided the restraint is fair and reasonable. If public policy condemns unjust and unreasonable restraints of trade, it is because public policy requires that all men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred.1

With respect to contracts in restraint of trade, the public interest is the first consideration. To sustain the restraint, it must be reasonable both with respect to the public and to the parties, and that it is limited to what is fairly necessary under the circumstances for the protection of the covenantee. Otherwise restraints of trade are void as against public policy. Public welfare is first considered, and if it be not involved and the restraint upon one party is not greater than protection to the other party requires, the contract may be sustained. The question is whether, under the particular circumstances of the case, and the nature of the particular contract involved in it, the contract is or is not unreasonable.?

If the contract can be said to restrain trade unreasonably, then it is against public policy; but it is not always easy to determine precisely what public policy is in any given case. The determination of what contracts are and what are not against public policy is usually attended with much difficulty, as the term public policy will not admit of exact definition. Public policy in one part of the country may or may not be the public policy of another part. Likewise, the public policy of one time may or may not be the public policy of another time. Our complex and changing civilisation is especially marked and distinguished by our view of public policy, which is not the same to-day as it was a decade ago, or as it probably will be a decade hence. Whatever it may

1 L. R. [1875], 19 Eq. 465.

2 220 U.S. 373.

be or may not be, all authorities agree that public policy in a State is declared and made certain when disclosed by a sustained line of decisions by the judicial branch of government, or by the legislative branch when it finds definite and exact expression in statutory enactments. And when the public policy of a people is thus crystallised into law, such law will be deemed to be the final word in expressing the popular policy in that behalf.1

In the definition of public policy, Courts have never been able to improve on the language of Justice Story, who said:

Public policy is in its nature so uncertain and fluctuating, varying with the habits and fashions of the day, with the growth of commerce and the usages of trade, that it is difficult to determine its limits with any degree of exactness . . . . Wherever any contract conflicts with the morals of the time, and contravenes any established interest of society, it is void as being against public policy.

As an illustration of pools and combinations in restraint of trade, but that have yet been held to be lawful, one can refer to the various combinations in vogue throughout the western and southern States of the United States among the farmers and growers of cotton and tobacco for the pooling of their crops. These combinations are, as a rule, the result of express legislative authority authorising any number of persons to combine, unite, or pool crops of wheat, corn, oats, hay, or other farm products raised by them, for the purpose of classifying, grading, storing, holding, selling, or disposing of the same. Referring to the Statute of Kentucky permitting such pooling by producers, and the causes that led to such legislation, the Supreme Court of that State say:

The conditions which gave rise to the Act are known to all men. At the time of its enactment there was but one buyer for the farmer's tobacco. It mattered not how hard he laboured, how valuable his

1

100 N. E. 92; 166 U.S. 290; 41 L. 1097.

P

soil, or how fine the quality of crop, he was obliged to accept whatever the buyer might offer. Indeed, in many instances, the buyer absolutely refused to examine his crop or make any offer at all. Instead of the plenty to which he was accustomed and to which he was entitled, he stood face to face with privation and want. As individuals the farmers were unable to cope with the situation.1

And again

The farmers scattered all over the State, each acting independently and separately for himself, were unable to dispose of their crops at a fair and reasonable price. There was practically no competition among the purchasers of the crops. A combination and Trust had been formed by the buyers to depreciate the value of the crops below the real value, and single-handed the producers were unable to compete or deal in terms of equality with these Trusts and combinations that controlled the markets in which the farmer was obliged to dispose of his produce. To meet the condition of affairs thus presented, and to enable the farmers to combine their resources, and place their products in the hands of an agent selected by them to the end that better prices might be obtained, this Act was passed.2

We have thus presented the unique example of a combination or pool in restraint of trade, not only as essential in order to meet and successfully combat the evils of an unjust, unreasonable, and therefore unlawful combination or Trust, but authorised by law. The test of lawfulness is, whether the combination is for the purpose of depreciating the commodity below or enhancing it above its true value. As long as such combinations do not accomplish more than secure a fair and adequate price for their product, such acts cannot be held to be in conflict with the morals of the time, or to contravene any established interest of society. Public policy, say the Appellate Court of Indiana, does not ask those who till the soil to take less than a fair return for their labour. Public policy safeguards society from oppression ; it is not an instrument of oppression.3

1 137 Ky. 233.

2 128 Ky. 152.

3

100 N. E. 89.