municipal law of England and America, the words 'penal' and 'penalty' have been used in various senses. Strictly and primarily, they denote punishment, whether corporal or pecuniary, imposed and enforced by the state for a crime or offense against its laws.' In the previous case of Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 8 Sup. Ct. R. 1370, 32 L. Ed. 239, Mr. Justice Gray, for the court, had said: "The rule that the courts of no country execute the penal laws of another ap plies not only to prosecutions and sentences for crimes and misdemeanors, but to all suits in favor of the state for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue, or other municipal laws, and to all judgments for such penalties.'" And, after reviewing a number of authorities, the court continued: "The action provided for in section 7 of the act could neither be brought in the name of the United States nor prosecuted as a popular or qui tam action, the remedy being expressly restricted to the party ‘injured in his business or property.' The phraseology of the proviso in section 1047 must be regarded as somewhat significant as to the character of the prosecution within the legislative purpose. In view of these and other provisions of the Revised Statutes, and of the doctrine of more recent cases, it seems permissible to entertain serious doubt whether section 1047 applies, or was intended to apply, to suits other than those prosecuted in behalf of the United States. But, be this as it may, I conclude that this is not a penal action. and the recovery sought is not a penalty within the sense here involved, which is substantially the same as the international sense." PART VIII. STATE ANTI-TRUST LAWS. CHAPTER 23. THE LAWS AND THEIR APPLICATION. § 893. Generally. 894-897. Discrimination between combinations of capital and combina tions of labor. 898. Size of combination immaterial - Monopolies. 999. Corporate combinations under the state laws. 900. Construction of the laws. 901-903. Constitutionality of state laws. 904-907. 908. 909-912. 913. Interference with the freedom of contract. Discrimination among classes or individuals. Pleading of the statute in defense to collection of claims. 914. Alabama - Trusts and combinations. 918. California-Combinations - Affecting sale of live-stock. 934. 935. 936. Boycotting and blacklisting. Right to join labor unions. Intimidation of employers and employees. 937. Indiana - Trusts and combinations. 949. Strikes Liability of cities for damages. 952. Maine-Trusts and combinations. Strikes and combinations of labor. 954. Maryland - Affecting labor. 955. Massachusetts - Affecting labor. 956, 957. Michigan - Trusts and combinations. 958. Minnesota-Trusts and combinations. 975. New Mexico - Trusts and combinations. 979. 980. 985. Strikes of railroad employees. 986. South Carolina - Trusts and combinations. 989. Tennessee - Trusts and combinations. 990, 991. Texas - Trusts and combinations. 994. 995. 996. 997. Exclusive rights under patents. Act does not affect interstate commerce. Contracts for exclusive agencies. Notes given under illegal contract. 998. Utah-Trusts and combinations. 999. Affecting labor - Blacklisting. 1000. Virginia - Blacklisting. 1001. Washington - Affecting labor - Blacklisting. 1002. Wisconsin - Trusts and combinations. § 893. Generally. The effort has been made to collect together in this chapter all the laws of the several states which in any manner affect or relate to 1. Combinations of capital; 2. Combinations of labor. And in connection there with to cite whatever decisions have been rendered in state or federal courts construing or in any manner affecting those laws of the different states.1 Inasmuch as each state may fix the terms and conditions. upon which the corporations of other states or countries shall be permitted to do business within the limits of the state, or, if it sees fit, may arbitrarily exclude all or any such corporations, it is important to have accessible and in convenient form a summary of the state laws.2 A few, perhaps ten or a dozen, pages could have been saved by cross-references from state to state, instead of summarizing the laws of each state under the particular state, but it is believed that the saving of printed matter will not compensate for the additional trouble that parties using the work will be put to in looking from one state to another to ascertain what the law is. As regards combinations of labor, crossreferences have been used to a very material extent, thereby condensing the summary into smaller space. Ordinarily a summary of state legis lation is more appropriately placed in an appendix; but as there could be no summary of state laws without references to the decisions affecting those laws, and without some discussion of the principles governing the construction of those laws, it was deemed best that the state anti-trust laws should immediately follow the federal anti-trust laws, that being the natural and logical sequence. 2 The right of a foreign corporation to engage in business within a state other than that of its own creation depends solely upon the will of such other state. Bank of Augusta v. §894. Discrimination between combinations of capital and combinations of labor.- With few exceptions the states legislating against combinations have discriminated sharply between combinations of capital and combinations of labor, favoring the latter and condemning the former. In many states this discrimination is made by provisions in the anti-trust laws excepting combinations of labor from their operation, and frequently also excepting combinations of producers of agricultural products. In other states the discrimination is made in the shape of direct legislation favoring the organization of labor. The constitutionality of these provisions will be considered in a subsequent section; it is sufficient here to note that they exist, and to refer briefly to certain considerations of an economic, social and general character bearing upon this discrimination. It is well recognized that, so far as the cost of production is concerned, labor is a commodity like unto capital; that both labor and capital are essential to production, and that in all production labor and capital enter in varying proportions; in Earle (1839), 13 Pet. 519; Lafayette Ins. Co. v. French (1855), 18 How. 404; Society for Savings v. Coite (1867), 6 Wall. 594; Provident Institution v. Massachusetts (1867), 6 Wall. 611; Hamilton Co. v. Massachusetts (1867), 6 Wall. 632; Paul v. Virginia (1868), 8 Wall. 168; Ducat v. Chicago (1870), 10 Wall. 410; State Tax on Railway Gross Receipts (1872), 15 Wall. 284; Railroad Co. v. Peniston (1873), 18 Wall. 5; Delaware Railroad Tax Case (1873), 18 Wall. 206; State Railroad Tax Cases (1875), 92 U. S. 575; Philadelphia & Southern Steamship Co. v. Pennsylvania (1886), 122 U. S. 326, 7 Sup. Ct. R. 1118; California v. Central Pacific R. R. Co. (1887), 127 U. S. 1, 8 S. Ct. R. 1073; Home Ins. Co. v. New York (1889), 134 U. S. 594, 10 Sup. Ct. R. 593; Maine v. Grand Trunk Railway (1891), 142 U. S. 217, 12 Sup. Ct. R. 121, 163; Ashley v. Ryan (1893), 153 U. S. 436, 14 Sup. Ct. R. 865; Hooper v. California (1894), 155 U. S. 648, 15 Sup. Ct. R. 207. The exception to this rule embraces those cases where a corporation created by one state rests its right to do business in another upon the federal character of its business. Telegraph Co. v. Texas (1881), 105 U. S. 460; Gloucester Ferry Co. v. Pennsylvania (1884), 114 U. S. 196, 205, 211, 5 Sup. Ct. R. 826; Phila. Steamship, etc. Co. v. Pennsylvania (1886), 122 U. S. 326, 342, 7 Sup. Ct. R. 1118; McCall v. California (1889), 136 U. S. 104, 110, 10 Sup. Ct. R. 881; Norfolk & Western R. R. Co. v. Pennsylvania (1889), 136 U. S. 114, 118, 10 Sup. Ct. R. 958; Pickard v. Pullman Southern Car Co. (1885), 117 U. S. 34, 6 S. Ct. R. 653; Robbins v. Selby County Taxing District (1886), 120 U. S. 489, 7 Sup. Ct. R. 592; Leloup v. Port of Mobile (1887), 127 U. S. 640, 8 Sup. Ct. R. 1380; Asher v. Texas (1888), 128 U. S. 129,9 Sup. Ct. R. 1; Stoughtenburgh v. Hennick (1888), 129 U. S. 141, 9 Sup. Ct. R. 256; Crutcher v. Kentucky (1890), 141 U. S. 47, 11 Sup. Ct. R. 851. |