-came to the conclusion that these acts and the section of the Constitution so construed were opposed to the fourteenth amendment of the Constitution of the United States, because it was not possible under these statutory and constitutional provisions so construed for any person to determine with reasonable certainty when the price of an article had been enhanced above, or depreciated below, its real value.

In the case of Collins v. Commonwealth, also appealed from this court, the Supreme Court of the United States, in an opinion that may be found in 234 U. S. 634, 34 Sup. Ct. 924, 58 L. Ed. 1510, reversed the judgment of this court, and held that the prosecution against Collins for selling pooled tobacco could not be sustained because the acts of 1908 and 1910, as construed by this court in the 131 Ky. (115 S. W.) case, were by reason of their uncertainty in making the guilt of Collins depend on whether the purpose of the pool, of which he was a party, was to enhance or decrease the price of the pooled property above its real value fundamentally defective.

As the law announced by the Supreme Court of the United States in these opinions is of course conclusive and binding upon this court, as much so as the law announced by this court is conclusive and binding upon the circuit courts and inferior courts of this state, the question arises: What is the effect to be given to the Supreme Court decisions in their operation upon the act of 1890, section 198 of the Constitution, the acts of 1906, 1908 and 1910, and the opinions of this court in the International Harvester Cases construing these statutory and constitutional provisions?

[1] Taking up first the act of 1890, we think it may be confidently asserted that this act is not open to any constitutional objection on the ground that it is violative of either the state or federal Constitution. This act does not discriminate against any person or set of persons. Its provisions are broad enough to embrace all who are guilty of the offense described in the statute. It was intended to and does apply equally and alike to all corporations, partnerships, companies, individuals, or associations who "shall create, establish, organize, or enter into or become a member of or a party to or in any way interested in any pool, trust, combine, agreement, confederation, or understanding with any other corporation, partnership, individual, or person, or association of persons

[2] We may also with equal confidence, assert that section 198 of the Constitution standing alone does not contravene any provision of the federal Constitution for the simple reason that this section of the Constitution is not self-executing. It does not undertake to punish, prohibit, or make unlawful any pools, combinations, or other organizations formed for the purpose of depreciating below its real value or enhancing above its real value the cost of any article or created for any other purpose. Standing alone, it is merely a direction to the legislative department of the state to enact such laws as may be necessary to prevent the condition described in the section. Commonwealth v. Grinstead, 108 Ky. 59, 55 S. W. 720, 57 S. W. 471, 21 Ky. Law Rep. 1444, 22 Ky. Law Rep. 377.

So that putting aside for the moment the common-law doctrine of restraint of trade and the act of 1890, no person or set of persons could be prosecuted or punished for entering into a trust, pool, combination, or other arrangement to depreciate below its real value or enhance above its real value the price of any article, if this section of the Constitution were the only authority for such prosecution. Nor under this section alone would the validity of any contract entered into for the purpose of enhancing the cost of any article above its real value or depreciating it below its real value be effected.

It is therefore obvious that the vice in the laws of this state pointed out in the Supreme Court decisions is not to be found in the act of 1890, or in section 198 of the Constitution, but in the acts of 1906, 1908, and 1910 as construed by this court in the International Harvester Cases and the other cases mentioned. If the acts of 1906, 1908, and 1910 had never been enacted, or if the construction placed on these acts by this court had never been adopted, there could be no objection to the common law or statutory anti-trust law in force in this state. Coming now to the acts of 1906, 1908, and 1910 we find that these acts do not on their face amend or purport to amend the act of 1890. They were, as shown by their title and subjectmatter, independent enactments.. Nor, indeed, do they on their face purport to have been enacted for the purpose of giving effect to section 198 of the Constitution. The title to the act of 1906, c. 117, declares that it is "An act permitting persons to combine or pool their crops of wheat, tobacco and other products and sell the same as a whole, and making contracts in pursuance thereof val

id"; and the body of the act provides that it shall be lawful for any number of persons to pool, combine, or unite these crops for the purpose of classifying, holding, and disposing of the same "in order or for the purpose of obtaining a greater or higher price therefor than they might or could obtain or receive by selling said crops separately or individually." The act of 1908 (Acts 1908, c. 8) merely amended the act of 1906.

The act of 1910 (Acts 1910, c. 7) in its title declares that it is "an act to authorize and regulate the recordation of agreements for pooling farm products," and in its body provides that:

"Any person buying or soliciting pooled or pledged property, the lists of which have been recorded as herein provided shall upon conviction be fined not less than ten nor more than one thousand dollars or imprisoned not less than fifteen nor more than ninety days or both so fined and imprisoned."

In 1910 acts other than the one mentioned, intended to strengthen and make more effective the act of 1906, were enacted by the Legislature, but it is not important that we should set out either the title or the purpose of these acts.

In the International Harvester Case, 131 Ky. 551, 115 S. W. 703, 133 Am. St. Rep. 256, this court, on the binding authority of Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679, was confronted by the situation that the act of 1906, standing alone, and limited in its application to farmers, would be obnoxious to the state as well as the federal Constitution, and if not so limited would license and authorize all corporations or persons, in whatever business engaged, to combine and unite with other persons or corporations for the purpose of obtaining greater prices for their property or products than could be obtained if they were sold in competition. In writing this opinion it fully understood that if this act were construed to confer on farmers the exclusive privilege of combining and pooling their crops, to the end that a greater price might be obtained therefor, and to deny to other classes the right to combine or pool their products for the same purpose, it would be in direct violation not only of section 3 of the Bill of Rights, but of the fourteenth amendment to the Constitution of the United States.

It further understood that if this act were so construed as to confer upon all corporations and persons the right to combine for the purpose of getting greater prices for their products than could be obtained if they acted independently and in competition with each other, the inevitable result would be that combinations and monopolies would be formed by corporations engaged in the manufacture and sale of necessary articles to farmers and others for the sole purpose of increasing the price of these articles.

To escape these conditions it was thought

by a majority of the court that the constitutional objections could be overcome and the alternative objection to removing all restraint on trusts and combinations could be avoided by reading together the act of 1890, section 198 of the Constitution and the act of 1906, and this solution of what was then recognized as a very troublesome question, was decided upon. It 'should also be said that, in reaching the conclusion expressed in the 131 Ky. 551, case (115 S. W. 703, 133 Am. St. Rep. 256), the court was endeavoring to carry out, in a way that would stand the test of judicial scrutiny when measured by constitutional limitations, the legislative will. If there was any way of escape it was not to be assumed that the Legislature intended that we should have no anti-trust laws in this state, or that it intended to declare that all corporations and persons might combine to get, as expressed in the act of 1906, a better or higher price for their property than they could or might obtain by selling it separately or as individuals, although the price so obtained might be much more than the real value of the article. It is perfectly manifest from a reading of these acts that the Legislature did not intend to do either of these things, and yet it is certain that one or the other of these alternatives would have resulted if the court had sustained this legislation and adopted any other conclusion than the one reached.

The Supreme Court of the United States, however, found that this construction did not avail to remove the constitutional objection to the legislation when so construed. The effect of the opinions of the Supreme Court in the International Harvester Case and in the Collins Case is that legislation that makes criminal liability depend upon the question whether the purpose of the pool or combination is to increase or decrease the price of property above or below its real value, cannot be sustained. It is true that the Supreme Court did not rule that this legislation of itself was violative of the federal Constitution. That question was not before the court. But it did rule that the acts of 1906, 1908, and 1910 as construed by this court were opposed to the federal Constitution. A further necessary effect of these opinions is that no valid legislation can be enacted to carry out the provisions of section 198 of the Constitution if the legislation follows the wording of the Constitution and makes either civil rights or criminal liability depend on whether the price of an article is enhanced or decreased above or below its real value. It is true that the question of the validity of legislation of this character in its effect upon contract rights and liabilities was not before the Supreme Court in the cases mentioned. But from the reasoning of the court, especially in the Collins Case, there seems no escape from the conclusion that if the question came before the

Supreme Court it would hold that contract rights or liabilities depending on the question whether the price of an article had been increased or decreased above or below its real value, could not be enforced, because of the uncertainty of determining whether the value of the article in question had been increased above or decreased below its real value. For example, if under the act of 1906, or 1910, as construed by this court in the Harvester Case, a party was sued for selling a pooled crop in violation of his agreement, or for refusing to deliver a crop he had agreed to pool, it would be indispensable to a recovery that the plaintiff should show that the purpose of the pool was not to increase the price of the article above its real value or decrease it below its real value, because if the purpose of the pool was to do either of these things, the contract would be invalid. Owen County Burley Society v. Brumback, 128 Ky. 137, 107 S. W. 710, 32 Ky. Law. Rep. 916. It is therefore at once apparent that in the attempted enforcement of civil rights and liabilities under and by virtue of these statutes the same element of uncertainty would arise to prevent the enforcement of the right or liability that would arise in a criminal prosecution for a violation of the provisions of these pooling acts. And if this uncertainty would defeat a criminal prosecution, it would likewise defeat a civil action.

It should, however, be here pointed out that the conclusion we have reached in respect to the effect of these acts on contract rights and liabilities does not go to the extent of holding that mere uncertainty or indefiniteness in a legislative act would prevent the enforcement of civil rights or liabilities arising thereunder if the enforcement of these rights and liabilities may be rested on common-law rules. This distinction was made in L. & N. R. R. Co. v. Commonwealth, 99 Ky. 132, 35 S. W. 129, 18 Ky. Law Rep. 42, 33 L. R. A. 209, 59 Am. St. Rep. 457, where the court said that although sections 816 and 819 of the Kentucky Statutes could not, on account of their uncertainty, be made the basis of a criminal prosecution, this did not prevent the shipper from recovering back from the carrier under common-law principles the excess of charges over reasonable rates.

[3] In view, therefore, of these Supreme Court decisions, the validity of the acts of 1906, 1908, and 1910 can only be sustained upon the ground that all corporations and persons doing business of any kind in this state shall be permitted to enjoy the same privileges as farmers; namely, to combine, unite, and pool their property or products for the purpose of selling them at a higher price than they could obtain if acting separately or in competition with each other, without regard to whether the price at which

than their real value or not, and this of course would be to say that we had no antitrust laws in this state.

To put the validity of this legislation upon this ground, which is the only ground on which it can stand, would not only be obnoxious to the whole spirit and purpose of our laws, common and statutory, and the public policy of the state from its very beginning, but would license and authorize all corporations engaged in any kind of business in this state, or selling any kind of articles or products to the people of the state, to combine or unite for the purpose of selling these articles or property to the people of the state at any price they could obtain. A ruling like this would not only be an intolerable departure from the legislative intent in the enactment of the acts of 1906, 1908, and 1910, as expressed in their title and body, but would place the people of the state who must buy articles of necessity from corporations engaged in their manufacture, absolutely under the control of these corporations, who could and certainly would combine and fix the price of these articles at any sum they desired. And to say that the Legislature of the state intended to do this would be setting down a wanton reproach if not an insult to the intelligence and public spirit of the members, and this we were not willing to do when the 131 Ky. 551, case (115 S. W. 703, 133 Am. St. Rep. 256) was written, and are not willing to do

We are therefore constrained to hold that the acts of 1906, 1908, and 1910, now sections 3941a, 3941d of the Kentucky Statutes, are void. We are also constrained to overrule the case of Commonwealth v. International Harvester Co., 131 Ky. 551, 115 S. W. 703, 133 Am. St. Rep. 256, and the subsequent cases resting on this opinion. Thus putting out of the way these acts and the decisions of this court holding that these acts and the act of 1890 and section 198 of the Constitution should be read together as one harmonious whole, we are now back to the safe place from which we ventured in 1906, and again stand ground.

solid constitutional

[4] This conclusion leaves to be decided the question of the effect of the act of 1890 of the opinions of this court holding that it was amended by the act of 1906. This question is, we think, easy of solution. The validity of a constitutional enactment such as the act of 1890 cannot be impaired or affected by an unconstitutional amendment. The amendment may be held invalid, but the act it amends, if free from constitutional objections, will stand as it did before the unconstitutional amendment. It cannot for a moment be entertained that an unconstitutional amendment to a valid act can destroy the validity of the act. The amenda