affirmance of the judicial destruction of our freedom of speech and of the press? Will the process of judicially amending our constitutions by the interpolation of limitations upon freedom of press stop, or shall we have an ever increasing abridgement of such liberty? These are the serious questions which confront us.

THEODORE SCHROEDER.

New York, N. Y.

MONOPOLIES-COMBINATIONS OF TRADES AND PROFESSIONS.

ROHLF v. KASEMEIER.

Supreme Court of Iowa, November 18, 1908.

It is no crime for any number of persons without any unlawful object in view to associate themselves together, and agree that they will not work for or deal with certain classes of men, or work under a certain price or without certain conditions, and a union of laborers or professional men for the purpose of advancing wages is not unlawful.

DEEMER, J.: Plaintiff, who is a physician and surgeon, with 13 others of like profession, were indicted by the grand jury of Bremer county for the crime of entering into an agree ment, combination, or understanding to fix and maintain fees and charges to be exacted for medical and surgical services in said county. Plaintiff was arrested under the indictment, and thereafter brought habeas corpus proceedings before the Honorable C. H. Kelley, Judge, to secure his release from custody, claiming that he was unduly and illegally restrained of his liberty, for the reason that the indictment charges no offense known to our laws, and that, if there be a law forbidding such acts as are charged against him, it is unconstitutional and void, in that it deprives him of his liberty, prevents him from acquiring or possessing property, and deprives him of his safety and the pursuit of his happiness, and deprives him of the right of contract and of the equal protection of the laws. The charging part of the indictment reads as follows: "The said L. C. Kern, Dr. C. T. Brown, Dr. O. L. Chaffee, Dr. W. A. Rohlf, Dr. H. C. Jungblut, Dr. B. C. Dunkelberg, Dr. C. H. Graening, Dr. Stafford, Dr. A. G. Rennison, Dr. Patterson, Dr. J. F. Auner, Dr. Murphy, Dr. Bradford, Dr. Cross, on the 30th day of July, in the year of our Lord one thousand nine hundred and seven in the county aforesaid, being physicians and surgeons located and practicing their profes

sions in the county of Bremer, state of Iowa, did then and there willfully, unlawfully, and maliciously conspire, combine, confederate, and agree with each other to create, organize, and enter into, and did then and there willfully, unlawfully, and maliciously enter into and be come, a member of and a party to a trust, pool, agreement, contract, combination, confederation, and understanding to fix, establish, and regulate and maintain the price of a commodity in the county of Bremer, state of Iowa, and did then and there willfully and unlawfully fix, regulate, and establish the price of medical service and medical skill, and the profit, benefit, fee, and compensation to be received therefor contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of lowa." The demurrer challenges these contentions of plaintiff, and it is stoutly insisted upon this appeal that the indictment does charge an offense, and that the statute under which it was found is a valid exercise of leg islative power.

As the case must turn upon the construction of a statute, we here copy the material parts of the section under which the indictment was found. It is No. 5060 of the Code, reading as follows: "Pools and Trusts. Any corporation organized under the laws of this or any other state or country for transacting or conducting any kind of business in this state, or any partnership, association or individual, creating, entering into or becoming a member of, or party to any pool, trust, agreement, contract, combination, confederation or understanding with any other corporation, partnership, association, or individual, to regulate or fix the price of any article of merchandise or commodity, or to fix or limit the amount or quantity of any article, commodity, or merchandise to be manufactured, mined, produced or sold in this state, shall be guilty of conspiracy." The first point to be decided is: Do the acts charged constitute a crime under this section of the Code? It will be noticed that it forbids a combination, agreement, or understanding to regulate or fix the price of any article of merchandise, or commodity, or of merchandise to be manufactured, mined, produced, or sold in this state. The primary inquiry is: Are the charges of a physician or surgeon for his medical skill or ability an article of merchandise or commodity to be produced or sold in this state. For appellant it is contended that the word "commodity" is broad enough to cover the charge made for professional services or skill, and that the trial court was in error in holding to the contrary. It must be remembered that the word is found in a criminal statute, and that in the interpretation of such statutes different rules apply

from those which obtain in civil matters, or where contracts are involved. Nothing is to be added to such statutes by intendment, and, as a rule, they are to have a strict construction. Moreover, it is well settled that, in construing any statute, all the language shall be considered, and such interpretation placed upon any word appearing therein as was within the manifest intent of the body which enacted the law. Much of necessity depends upon the context and upon the usual and ordinary significance of the language used. Now, the word "commodity" is derived from the Latin "Commodetas," and means primarily a convenience, profit, benefit, or advantage; but in referring to commerce it comprehends everything moveable -that is, bought or sold-except animals. See Webster's International Dictionary; Best v. Bauder, 29 How. Prac. (N. Y.) 489; Barnett v. Powell, 16 Ky. 409; Queen Ins. Co. v. State, 86 Tex. 250, 24 S. W. 397, 22 L. R. A. 483. This word appearing in another statute (McClain's Code, sec. 5454) was held to cover insurance, and it was decided that a combination to fix insurance rates was illegal. See Beechley v. Mulville, 102 Iowa, 602, 70 N. W. 107, 71 N. W. 428, 63 Am. St. Rep. 479. But in that case the parties were not selling their own services. They were, as the opinion says, selling insurance, which was regarded as a commodity as used in the statute then under consideration. Here the indicted defendants were for a price giving their own services, or perhaps selling them, and the question is: Were these personal services a commodity?

As already indicated, the word must be taken in connection with the others used in the statute, and it is manifest that the commodity referred to must have been such as could be Lanufactured, mined, produced, or sold in the state, and the price was to be of an article or merchandise or commodity. If the contention of appellant be correct, the statute covers all kinds of personal labor, both skilled and unskilled, under the term "commodity." Indeed, this is the broad claim made by counsel. Now, whilst there is a class of political economists who treat labor as so much merchandise, the wage being regulated simply by supply and demand, there is another class, which, taking account of the personal equation, sees in it something more than a commodity, and refuses to subscribe to the doctrine that supply and demand alone regulate the price. This latter class of economists refuses to accept the doctrine that a man is rich because he has stored away within him many days' work, and are convinced that his necessities, quite as often as the demand for his labor, fixes the stipend which he is to receive. In other words, the laborer, skilled or unskilled, is not regarded as standing on an equality with him who

If

barters in goods and merchandise. It is not, of course, within the province of courts of justice to adopt or promulgate any particular system of political science; but in the interpretation of statutes they must take notice of current political theory and conviction. we were to adopt the view so strongly presented by appellant's counsel, it would be on the assumption that the associated words "merchandise" and "commodity" include the wages to be paid for labor, because labor is a sort of merchandise, subject to barter and sale as other goods. A fundamental rule of construction is that, where particular words are followed by general ones, the general are restricted in meaning to objects of a like kind with those specified. State v. Stoller, 38 Iowa, 321; People v. Railroad, 84 N. Y. 565; McDade v. People, 29 Mich. 50. Now, the term "merchandise" is special rather than general, and has reference primarily to those things which merchants sell either at wholesale or retail. Jewell v. Board, 113 Iowa, 47, 84 N. W. 973. "Commodity" is a broader term, and, when used as in the statute now under consideration. means almost any description of article called moveable or personal estate. Barnett v. Powell, 16 Ky. 409; Shuttleworth v. State, 35 Ala. 415; State v. Henke, 19 Mo. 225.

It

Used in connection with the term "merchandise," and qualified as it is in the latter part of the section by the words "manufactured. mined, produced, or sold," it is manifest that the statute was not intended to, and did not, include labor either skilled or unskilled. must be remembered that the statute is a criminal one, and that such statutes must be structly construed; and, in case of doubt, the construction must be adopted most favorable to the party charged. The only ground upon which appellant can stand with any show of plausibility is that labor is a commodity to be bought, sold. or produced, as merchandise. This is a strained and unnatural construction, and gives to the word "commodity" a meaning which is perhaps permissible, but is not the commonly accepted one. Under our statutes, words and phrases are to be construed according to the context and the approved usage of the language. Code, sec. 48. With this in mind, we are constrained to hold that labor is not a commodity within the meaning of the act now in question. As supporting this conclusion, see Hunt v. Riverside Club, 140 Mich. 538, 104 N. W. 40, 12 Detroit Leg. N. 264; Queen v. State, 86 Tex. 250, 24 S. W. 397, 22 L. R. A. 483. It seems to be the almost universal holding that it is no crime for any number of persons without an unlawful object in view to associate themselves together, and agree that they will not work for or deal with certain classes of men, or work

under a certain price or without certain condi tions. Carew v. Rutherford, 106 Mass. 14, 8 Am. Rep. 287; Commonwealth v. Hunt, 4 Metc. 134, 33 Am. Dec. 346; Rogers v. Everts, 17 N. Y. Supp. 268; United States v. Moore (C. C.) 129 Fed. 630.

The statute in question was aimed at unlawful conspiracies or combinations in restraint of trade, and was manifestly not intended to cover labor unions. It is the right of miners, artisans, laborers, or professional men to unite for their own improvement or advancement or for any other lawful purpose, and it has never been held, so far as we are able to discover, that a union for the purpose of advancing wages is unlawful under any statutes which have been called to our attention. As said by Judge Taft in Phelans Case (C. C.) 62 Fed. 803: "Such unions, when rightly conducted, are beneficial in character." And it would be a strained and unnatural conclusion to hold that a statute aimed at pools and trusts should be held to include agreements as to prices for labor because the word "commodity" is used therein. As the right to combine for the purpose of securing higher wages is recognized as lawful at common law, a statute enacted to prohibit pools and trusts should not be held to apply to combinations to fix the wages for labor, unless it clearly appears that such was the legislative intent. Whatever of doubt there may be regarding the power of the legislature to do so, we do not think that the act in question covers combinations to fix the labor price whether that labor be skilled or unskilled.

Appellants rely largely upon the celebrated cases of Loewe v. Lawlor et al., 208 U. S. 274, 52 L. Ed. 488, 28 Sup. Ct. 301, and In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092, and other like cases in support of their construction of the statute; but in our opinion none of these cases are applicable. The Debs Case is not in point. Others involved a pool between manufacturers and still other boycotts. In the Loewe case defendants were engaged in a boycott of plaintiff and its customers, and were in the performance of acts calculated to destroy plaintiff's business by driving away customers, by threats and oercion were driving away plaintiff's employees, and circulating false reports regarding plaintiff and its business, the effect of which was to destroy its interstate trade. These acts were held to be an unlawful interference with interstate commerce, and a violation of the anti-trust law known as the "Sherman Act" (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200). The statute before us has nothing to do with commerce; nor does it have to do with restraint of trade or commerce as does the Sherman act. It has to do

with pools and trusts organized in this state to fix or regulate the price of any article or commodity, or to fix or limit the amount or quality of any article, commodity or merchandise to be produced or sold in the state. Surely it has no reference to the amount or quality of labor to be produced or sold. Such a construction would be ridiculous. And, if it will not bear that interpretation, it follows that the word "commodity," when used with reference to prices, should not be held to include labor. No case has been cited which supports appellant's contention, and we have not been able to find any. On the other hand, the following lend support to our conclusions: Cleland v. Anderson, 66 Neb, 252, 92 N. W. 307, 5 L. R. A. (N. S.) 136; Downing v. Lewis, 56 Neb. 386, 76 N. W. 900; State v. Associated Press, 159 Mo. 410, 60 S. W. 91, 51 L. R. A. 151, 81 Am. St. Rep. 368. It would be stretching the statute entirely too far to hold that it covers combinations to fix the price of labor. That the practice of medicine and surgery is labor, no one, we think, will question.

The trial court was right in discharging the plaintiff, and its judgment must be, and it is, affirmed.

NOTE-Combinations to Fix Wages and FeesRestraint of Trade. The principal case presents the narrow question whether a particular criminal statute embraced under the terms, "commod.. ity," and "merchandise," as there used a combination to fix prices for labor or services and it was rightly held that they did not. Therefore, the prosecution rightly failed. It may be said that the anti-monopoly statute considered is of about the same general character as that found in the legislation of other states. It may be further said that, the federal anti-trust statute, that is the Sherman act, does not regard the question of combination in any way as distinguishing between capital and labor, or as between commodities and wages, but it simply views all arrangements in pursuance of concerted action as to their influence upon the free flow of commerce between the states, or restricts, in that regard, the liberty of a trader to engage in business. See Danbury Hat Case sub nom. Loewe v. Lawlor, 208 U. S. 274, 52 L. Ed. 588, 28 Sup. Ct. 301. Therefore whether any combination may or may not be in restraint of trade from a common law or other view is of no concern to federal law, as the only policy the federal government takes into view is that in respect to interstate commerce, a view distinctly recognizing the rightful autonomy of our federated sovereignties.

But there is a large inquiry remaining as to how far society, union, federation arrangements may extend in the yielding up of an individual's right and liberty of contract infringes upon public policy, or is void as in restraint of trade. Decision touching this inquiry is more or less abundant so far as labor unions are concerned, because their members have sought more than those of other crafts and avocations to obtain what they deemed the advancement of their interests in a surrender of their free right of contract, deem

.66. 115 56, 75 .72. 78 72, 78

New York....2, 14, 15, 21, 28. 35, 36, 43, 59, 63, 77, 81. 83, 92, 93, 97, 107. 113. 117, 121, 125 North Carolina....1, 4, 8, 23, 25, 30, 45, 50, 52, 65, 68, 71, 88, 95, 104, 105. 112, 114, 118, 119 Oregon. 54, 62, 101, 106, 110, 124 South Carolina. .60, 67, 87 Tennessee .74 Texas....5, 17, 18, 20, 24, 27, 31, 34, 38, 61, 69, 91, 108, 116, 120

Utah Virginia Wisconsin.

.84 85

.11, 33, 57, 76, 94

1. Accident Insurance--Proofs of Loss.Where plaintiff submitted proofs of loss on an accident policy which on their face showed that the insurer was not liable, the burden was on plaintiff to show that the proofs were erroneous in fact.-Hill v. Aetna Life Ins. Co., N. C., 63 S. E. 124.

2. Accord and Satisfaction-What Constitutes. A payment of a less sum on an unliquidated claim than demanded in full satisfaction is an accord and satisfaction.-Freeman v. Tiffany Studios, 113 N. Y. Supp. 64.

3.

Action-Contract or Tort.-One voluntarily waiving the tort, and suing on the implied promise to pay for wrongfully cutting and removing timber on his land, makes the action one of assumpsit.-Asher v. Cornett, Ky., 113 S. W. 131.

4. Adverse Possession-Color of Title.-The report of commissioners in partition, found among an allottee's papers and restored to the records on proof of its genuineness was properly admitted to show color of title to land sued for; all public records of the partition proceeding having been destroyed.-Hill v. Lane, N. C. 62 S. E. 1074.

5.- -Possession of Tenant.-Possession of land by a party after suspension of limitations by the Civil War held immaterial, where he had held for a sufficient time to prescribe the owner's title before such suspension.-Harris Iglehart, Tex., 113 S. W. 170.

V.

6. Railroad Right of Way.-Owners of lots abutting upon a railroad right of way have no title by adverse possession to strips of the right of way occupied as part of their lots and under no other claim of right.-Chicago, M. & St. P. Ry. Co. v. Hanken, Iowa, 118 N. W. 527.

7. Animals-Marks and Brands. Where a brand is recorded with the cattle sanitary board, all animals branded therewith are prima facie the property of the person owning such brand. -Territory v. Caldwell, N. M., 98 Pac. 167.

8. Running at Large. The legislature may re-enact the common-law rule as to the restraint of domestic animals, and may render such re-enactment applicable to the whole or any political division of the state.-State V. Mathis, N. C., 63 S. E. 99.

9. Appeal and Error-Amendments.-A defendant permitted to testify without objection to a matter set up in a proposed amended answer is not prejudiced by the refusal to permit the amendment.-Richner v. Plateau Live Stock Co., Colo., 98 Pac. 178.

of

Statute.-The

10. Constitutionality question whether a statute is constitutional will not be certified to the supreme court, where a determination can be reached without deciding its constitutionality.-Wimberly v. Georgia, Southern & F. Ry. Co., Ga., 63 S. E. 29.

11. Harmless Error.-A mistake in inserting the word "not" in an instruction held to be more favorable to appellant than if the word had been omitted, and not to be ground for reversal.-Hiroux v. Baum, Wis., 118 N. W. 533.

12. Refusal of Certiorari.-The court of appeals cannot review the refusal of a writ of certiorari unless the petition for certiorari is incorporated in the bill of exceptions or otherwise verified as a part thereof.-Gossett v. City of Atlanta, Ga., 63 S. E. 143.

15.

Bankruptcy-Profits of Business.-Profits made from a business held not to belong to the concern or its trustee in bankruptcy, but to unsecured creditors.-Gill v. Bell's Knitting Mills, 113 N. Y. Supp. 90.

16. Banks and Banking-Action for Deposits. -In an action against a bank on an alleged lost certificate of deposit, where the bank's employees, testifying from their books, denied that a deposit was made, the bank could introduce, in connection with the other testimony, its records and methods of business, as tending_to corroborate their testimony, and to show affirmatively that no deposit was made.-Wagner v. Valley Nat. Bank, Iowa, 118 N. W. 523.

18.

Benefit Societies-Wrongful Termination of Certificate.-Insured, on the alleged wrongful termination of his policy, may tender premiums, and on maturity sue for benefits. He may sue for damages for the wrongful cancellation of the policy, or sue in equity to determine whether the policy is still in force.-Royal Fraternal Union v. Lundy, Tex., 113 S. W. 185.

19. Bills and Notes-Negotiability.-The negotiable character of a note made in Kansas and payable in another state will be determined by the law of the latter state.-Sykes v. Citizens' Nat. Bank of Des Moines, Iowa, Kan., 98 Pac. 206.

20. Brokers-Commissions.-A broker, emploved to sell land for one-half cash and balance