(257 S.W.)

tional Harvester Co. v. Commonwealth, 144, Ward v. Krinsky, 259 U. S. 503, 42 Sup. Ct. Ky. 403, 138 S. W. 248; L. & N. R. Co. v. 529, 66 L. Ed. 1033; Smith v. Kans. City Burley Tob. Soc., 147 Ky. 22, 143 S. W. 1040. Trust Co., 255 U. S. 180, 41 Sup. Ct. 243, 65 Indeed, since the Clayton Amendment of the L. Ed. 577; National Union Fire Ins. Co. v. Sherman Act (U. S. Comp. St. § 8835f) ex- Wanberg, 260 U. S. 71, 43 Sup. Ct. 32, 67 L. pressly exempts agricultural and horticultur- Ed. 136; Duplex Printing Co. v. Dearing, 254 al organizations instituted for the purpose of U. S. 443, 41 Sup. Ct. 172, 65 L. Ed. 349, 16 mutual help, and not having capital stock or A. L. R. 196; Connolly v. Union Sewer Pipe conducted for profit from anti-trust provi- Co., 184 U. S. 541, 22 Sup. Ct. 431, 46 L. Ed. sions, it recognizes as reasonable a classifica- 679. tion based upon such pursuits. Hence the The fact that other productive groups can, Sherman Act as amended is itself expressive do, and for many years have marketed their of a change in the public attitude and policy wares as groups, and not as individuals, and toward agricultural and horticultural pur- that they are and have been enabled through suits in relation to other business activities, group organization or "gentlemen agreeand a recognition of a necessity for the ments" to regulate the distribution and stapublic welfare of permitting organization bilize the prices of their products, is a fact among such citizens to enable them to meet known of all men, which can neither be dejustly and without undue advantage the con- nied nor blinked by the courts; as is also the ditions they encounter in necessary trade re- fact that farmers, if unorganized, necessarily lations with other citizens, or rather groups. act as individuals and not as groups in marNor are the Clayton Act and the many oth-keting their products, resulting in "dumping" er recent acts of Congress treating farmers by the farmers, distribution by speculators, as a distinct class the only expressions of an unconscionable and uneconomic spread such a change in public opinion and the pub- between producer and consumer in the neceslic policy of our nation with reference to sities of life, and an inevitable demoralizathem and their economic problems. The en- tion of basic economic conditions, to the hurt actment by the Legislatures of 30 or more of directly or indirectly of every citizen. the states of enabling acts precisely like the Bingham Co-operative Marketing Act is further evidence of the present state of public opinion on the matter, as is the attitude of every other agency through which an enlightened public policy may be declared, including the most recent résumé of the state of the Union by the President of the United States.

With a clear recognition of this fact borne in upon the public conscience by the threatened economic collapse of the farming industry indispensable to public welfare and national stability, if not national existence, an enlightened public opinion unmistakenly demands that farmers be permittted to organize for the marketing of their crops, not merely for their own protection, but for the public good. But what has current public opinion with reference to economic questions to do with constitutional inhibitions and guaranties? Just this: It often, as here, affords the proper and usual approach for a consideration of their terms and meaning.

[4] That all law, even constitutional law, is not static, but progressive, and in step always with sound economic conditions and an enlightened public policy, recently has come to be realized clearly, if ever it may have been thought otherwise, as is attested by highest judicial and lay utterances.

[3] The basis of this change in public opinion toward combination and classification is not in any sense political, but economic rather, and, in our judgment, it is because of basic economic conditions, affecting vitally not only the farmers, but also the public weal, that the classification based upon agricultural pursuits is reasonable, just, and imperative for the good of the entire nation and every citizen thereof. If this be true, the Bingham Act is based upon a classification that is not offensive to the equal protection provisions of the Fourteenth Amendment. City of Louisville v. Coulter, 177 Ky. 242, 197 The best evidence of the sure foundation S. W. 819, L. R. A. 1918A, 811; Owen County of the federal Constitution is not that it was Society v. Brumback, 128 Ky. 137, 107 S. W. declaratory of the highest conceptions of 710; Douglas Park Jockey Club v. Talbott, truth and justice with reference to communi173 Ky. 685, 191 S. W. 474; Commonwealth ty life when it was written, but that, corv. Remington Typewriter Co., 127 Ky. 177, rectly interpreted, it is equally so to-day, de105 S. W. 399; Barbier v. Connolly, 113 U. S. spite the many changes time and experience 27, 5 Sup. Ct. 357, 28 L. Ed. 923; South Caro- have brought in such conceptions. The Conlina ex rel. Phoenix Ins. Co. v. McMaster, 237 stitution in the Fourteenth Amendment deU. S. 63, 35 Sup. Ct. 504, 59 L. Ed. 839; clared the public policy of equal protection American Sugar Refining Co. v. Louisiana, of the laws, unalterably, both then and now, 179 U. S. 89, 21 Sup. Ct. 43, 45 L. Ed. 102; it is true, except by formal amendment, but German Alliance Ins. Co. v. Lewis, 233 U. S. being written for time rather than a day, 389, 34 Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. most wisely left it to the Legislatures and 1915C, 1189; N. Y. Central R. Co. v. White, the courts to provide the means and define 243 U. S. 188, 37 Sup. Ct. 247, 61 L. Ed. 667, the terms in accordance with an enlightL. R. A. 1917D, 1 Ann. Cas. 1917D, 629; ened public consciousness which continually

strives toward, and constantly attains, if but, say, in the absence of proof, that 5 cents a slowly and haltingly, a better understanding pound is unjust or oppressive, or out of all of community life. Unquestionably, as that proportion to the damages which would recomplex problem is understood by the best sult from such a breach. Hence the sum so thought of to-day, the Bingham Act, by en- fixed must be construed as liquidated damabling the farmers to market their crops co- ages, rather than a penalty, and is collectioperatively for the purpose, as declared in the ble. Walton, etc., v. McKitrick, 141 Ky. 415, act, of regulating distribution and stabilizing 132 S. W. 1046; Fiscal Court of Franklin the prices of farm products, serves a pressing County v. Public Service Co., 181 Ky. 245, public need that justifies. the classification of 204 S. W. 77. farmers as a distinct class, and treats all of the class equally and fairly, and not better, if that were important, than other distinct productive classes are treated under the laws of the state and nation. It does not, therefore, offend the equal protection provisions of the federal Constitution, notwithstanding the fact that 21 years ago the Supreme Court of the United States, in the case of Connolly v. Union Sewer Pipe Co., supra, indicated a somewhat. contrary view, but which is, under the more recent decisions of that court, easily distinguished upon several grounds.

We therefore hold that the act is valid, and that appellant's contract with appellee does not by itself, nor when considered in connection with other like contracts, violate the Sherman Anti-Trust Act as amended.

[8] For the same reasons, we think injunctive relief would be allowed upon general principles to prevent a breach of this contract by any member, even if it were not expressly allowed by the Bingham Co-operative Marketing Act (Grant County Board v. Allphin, 152 Ky. 280, 153 S. W. 417), and we do not doubt that the Legislature has the power to prescribe appropriate remedies to prevent or redress civil wrongs, and that it did not in this act transcend such power, as was held in some of the cases supra upholding similar acts and provisions.

For the reasons indicated, the judgment is affirmed.

The whole court sitting.

HERTEL v. EDWARDS, Circuit Judge. (Court of Appeals of Kentucky. Dec. 21, 1923. Rehearing Denied Jan. 25, 1924.)

I. Divorce 182-Court of Appeals, and not circuit court, may allow alimony after appeal perfected.

[5] With reference to the contention that the contract is unilateral, little need be said, since, in consideration of appellant's promises, appellee agrees specifically to receive, handle, and market the tobacco appellant and other members deliver to it, and to settle therefor according to stipulated terms. Furthermore, appellant's agreements were made in consideration of like agreements of other members, and for their mutual advan-ed tage, and whichever way the matter is diction to thereafter make an allowance of aliviewed there is no lack of mutuality.

[6, 7] The remaining contentions relate to the remedies available to appellee to enforce compliance by appellant, and for his breach of contract. Both the statute and the contract provide for injunctive relief to prevent a breach, and for liquidated damages as compensation therefor.

Appellee has no capital stock, is not operated for profit, and is not permitted to buy, handle, or sell tobacco except for its members, but is dependent for its existence and an opportunity to serve its members upon their observance of their contracts. It would be utterly impossible to ascertain the damage that would result to the co-operative effort from a breach of their like contracts by one or more members, and it was both wise and provident, if not essential for attainment of their purposes, that they agree on a basis for estimating same, and the Legislature, in recognition of that fact, expressly authorized them so to do, although that right clearly existed without such express authority. Nor do we regard, and certainly we cannot

Where judgment of divorce granting akmony was superseded, and appeal was perfectby filing a transcript of the record in the regular way, the trial court was without juris

mony "pending the appeal," under Ky. St. § 2121, and Civ. Code Prac. § 424; the Court of Appeals being the only court which could grant alimony at that time.

2. Appeal and error 436- Appeal divests trial court of jurisdiction.

An appeal removes a cause to the higher forum and temporarily during the pendency of the appeal divests the trial court of its jurisdiction.

Original proceeding in prohibition by Louis Hertel against Davis W. Edwards, Judge of the First Chancery Division of the Jefferson Circuit Court. Writ granted.

L. A. Hickman, Hickman & Withers, and Samuel G. Tate, all of Louisville, for plaintiff.

Selligman & Selligman, of Louisville, for defendant.

THOMAS, J. This is an original action filed in this court by plaintiff (petitioner), Louis Hertel, against defendant, Davis W. Edwards, Judge of the First Chancery Divi

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(257 S.W.)

sion of the Jefferson Circuit Court, whereby | cases upholding the jurisdiction of the appetitioner seeks an order from this court pellate court to make such an allowance unprohibiting defendant from, in any manner der the same conditions will be found in the enforcing an order made by him on Decem- notes to Corpus Juris, supra, ás well as in ber 4, 1923, in the case of Hertel v. Hertel, the opinions referred to. theretofore pending in his court.

The Maxwell Case, from West Virginia, held to the contrary, and there are a few other courts which coincide with that opin

That case was a divorce proceeding instituted by petitioner against his wife, Barbara Hertel, in the Jefferson Circuit Court and ition, although there was a strong dissenting was allotted to defendant for trial. On July opinion in that case. The majority opinion 20, 1923, he entered a final judgment there- therein denied the jurisdiction upon the in, whereby he dismissed plaintiff's petition, ground that the court possessed appellate but granted his wife a divorce on her count- jurisdiction only, except in certain cases of erclaim, and gave her a judgment against original jurisdiction conferred by the Constiher husband for $7,500 permanent alimony tution of the state, and that to entertain and allowed her attorneys a fee of $1,000, such a motion would be assuming original to be taxed against the plaintiff as cost. The jurisdiction where it was not conferred. judgment also adjusted the property rights The other courts taking a similar view adopt of the parties by ordering restorations as the same reasoning, while the great majority required by the statute, and directed that of them holding to the contrary do so plaintiff, petitioner herein, pay to his wife upon the ground that the power to make the sum of $85 per month as temporary ali- such an allowance, after the perfection of mony until he performed the judgment of the the appeal, is an implied one, and incidental court. On the 14th day of August following to the appellate jurisdiction, and is not the the entry of that judgment, petitioner super-exercise of original jurisdiction; and such seded it, and on the same day served a copy was the holding of this court in the cases thereon upon his wife, and immediately proceeded to prepare the record for appeal to this court, and filed it in the clerk's office on November 26, 1923. The order made by defendant on December 4th thereafter, complaint of which is made in this case, made an allowance to the wife of $85 per month as alimony "pending the appeal," and directs its payment by petitioner or C. R. Boswell, who had theretofore, and before the submission of the cause, been appointed receiver in the case.

[1] The questions presented for determination are: (1) Has this court jurisdiction to make such an allowance after the appeal has been perfected by filing a transcript of the record in the regular way with the clerk of the Court of Appeals; and, if so (2) has the trial court concurrent jurisdiction of a similar motion after that time? The question of the jurisdiction of the appellate court to entertain such a motion under the circumstances is quite generally conceded (though there are some few cases denying it), as will be seen from section 643, p. 281, 19 Corpus Juris; Mosher v. Mosher, 16 N. D. 269, 113 N. W. 99, 12 L. R. A. (N. S.) 820, 125 Am. St. Rep. 654; annotations to the case of Maxwell v. Maxwell, 67 W. Va. 119, 67 S. E. 379, in 27 L. R. A. (N. S.) 712; Taylor v. Taylor, 19 N. M. 383, 142 Pac. 1129, L. R. A. 1915A, 1044; Robinson v. Robinson, 86 N. J. 165, 92 Atl. 94, L. R. A. 1915B, 1071; Prine v. Prine, 36 Fla. 676, 18 South. 781, 34 L. R. A. 87; Elzas v. Elzas, 183 Ill. 160, 55 N. E. 669; Chaffee v. Chaffee, 14 Mich. 463; Vanduzer v. Vanduzer, 70 Iowa, 614, 31 N. W. 956; Lake v. Lake, 17 Nev. 230, 30 Pac. 878; Krause v. Krause, 23 Wis. 354; Cralle v. Cralle, 81 Va. 773, and Wagner v. Wagner, 36 Minn. 239, 30 N. W. 766. Many other

of Napier v. Napier, 186 Ky. 558, 217 S. W. 683, Kreiger v. Kreiger, 194 Ky. 812, 241 S. W. 828, and Heskamp v. Heskamp, 195 Ky. 618, 242 S. W. 857. Our statute (section 2121) says that "pending an action for any divorce the court may allow the wife maintenance"; and section 424 of the Civil Code of Practice says:

"During the pendency of an action for divorce or alimony, the court may allow the wife maintenance, and enforce the payment thereof by orders and executions and proceedings as in cases of contempt."

We held in the case of Pemberton v. Pemberton, 169 Ky. 476, 184 S. W. 378, that the trial court under the statute, and the section of the Code, supra, "is empowered to grant the wife maintenance during the pendency of an action for divorce and alimony." In that case the complained-of order of allowance during the appeal was made by the trial court after rendering the judgment for permanent alimony (but whether before or after superseding the judgment is not shown), and before the appeal was perfected by filing a transcript in this court. Hence the question as to whether the trial court could make such an allowance after the judgment was superseded and the appeal perfected was not before the court, and the statement therein that "an action is pending whether in the circuit court or here on appeal" could not apply to the situation we have here. In the Heskamp Case, after discussing the power of this court to entertain such a motion, as well as the authority of the trial court after appeal prayed and before it was perfected, the opinion said:

"The plaintiff, however, did not make application to the [trial] court to order the pay

[2] It is a long-settled rule of appellate practice, especially when the judgment has been superseded as required by the local pracA separation of jury was not reversible tice, and when it is allowable, that an appeal error where it appeared that one was ill and removes the cause to the higher forum and unable to leave his bed and that the others temporarily, during the pendency of the ap- were compelled to comply with a call of nature, peal, divests the trial court of its jurisdiction.and before leaving the sheriff exercised every For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(257 S.W.)

the weapons, and before approaching the house they separated, arriving there from different directions. Bradley and McKinley York entered the house and demanded that they be shown the rifle of one of the Martins, and after making an examination stated it was not the gun from which the shots had been fired at the house. The appellant and his son Charlie York had remained on the outside, and, seeing Hugh Hammond, a visitor there, and the father of Sam Hammond, who had cut Clarke York the evening previous, said to him, "Where are your boys?" and before Hammond replied the question was answered by Sam Hammond, who had just come into the yard with Bert Cupp. In appellant's testimony he states that Sam Hammond said, "By God, here we are!" and a general firing began. In Cupp's testimony he says that Hammond simply said, "Here we are," and that the Yorks opened fire on the entire party, to which they replied as rapidly as possible, resulting in the instant killing of Bradley York and Hugh Hammond, and Sam Hammond was so badly shot that he died within two hours. McKinley York was shot through the knee and Sol York, the appellant, in the hip. A large number of witnesses testified both for appellant and the Commonwealth, and for the former it was stated that Sol York carried only one weapon, a shotgun, and did not participate in the shooting, while others testified directly to the contrary, and that he, with his three sons, started the affray, and fired as long as their ammunition lasted. The testimony is also conflicting as to the

ROBINSON, J. On Christmas Eve, December 24, 1921, Clarke York, a son of appellant, Sol York, received a number of knife wounds at the store of Jess Maggard in Clay county, the cutting being done by Sam Hammond and Bert Cupp, two young men residing in that neighborhood, and on Christmas afternoon the appellant was in his home op Rockcastle creek, where his wife was confined on account of illness, and his son, Clarke, from the wounds that he had received the night before. With him was a son McKinley York, and two others, Bradley and Charlie York, had just left, expressing their intention of visiting the store of Jess Maggard about half a mile distant. A few moments after their departure, and while they were still in sight of the house, rifle shots were heard from a direction opposite the residence of appellant, and a number of bul-presence of Goebel Hammond, another son lets struck his home, but no one therein was injured. Appellant immediately ran outside, claiming to have seen some one shooting down near what they called the "pine thicket," which lay between his home and that of Tom Martin, a neighbor living near. After ascertaining the direction from which the shots had come appellant went to the store of Jess Maggard (for just what reason is not shown), but in any event he failed to find his sons, who had returned to their home by another route. The father immediately came home, and it would seem that a general council was held between Sol York, Bradley, McKinley, and Charlie (his three sons), and they decided to go to the home of Tom Mar- It appears from the record that McKinley tin and examine his rifle in an effort to de- York was first tried and convicted, receiving termine whether he or any one there had a life term in the penitentiary. Appellant done the shooting, and apparently to be pre- was tried at a special term of the Clay cirpared for any emergencies that might arise. cuit court in December, 1922, and from the Appellant carried two guns-one a rifle de- judgment of 21 years in the penitentiary this scribed as a "45–70,” and a shotgun. Brad-appeal is prosecuted. Attorneys for him in ley had two pistols, Charlie a shotgun, and McKinley two pistols described as a ".38 special" and a ".45 automatic." It is further shown by the evidence that prior to going to Martin's members of the family had visited the house of neighbors and secured an extra supply of ammunition for some of

of Hugh Hammond, it being stated by some witnesses that he was present during the shooting, and by others that he arrived just as it ended. In any event, the appellant, Sol York, and his three sons were indicted for murder in the killing of Hugh and Sam Hammond; and Bert Cupp and Goebel Hammond for the shooting of the Yorks. The indictment charging them with the murder of Hugh Hammond was returned at the April term of the Clay circuit court. There was also a second count in the indictment charging them with conspiracy to kill and murder Hugh Hammond and Sam Hammond, his son, and others.

their motion and grounds for a new trial cite the following:

(1) The court erred in admitting incompetent evidence offered by the plaintiff to which defendant objected.

(2) Because the court erred in rejecting competent evidence offered by the defendant.