of a failure to market his fruit through the plaintiff association, as 'liquidated damages,' so that, as an item in the evidence suggesting proper interpretation to be given, the expression used indicates a recoverable damage, and not a penalty. Irrespective of this expression in the contract, we think that the facts and circumstances shown in evidence all support the plaintiff's contention that recovery should be sustained for the amount fixed by the by-laws of the association. The association was organized for the purpose of the better handling of citrus fruits through the co-operative and joint efforts of its members. From the nature of the organization and the statement of its purposes as found in its articles and by-laws, it can be fairly and reasonably inferred that, by the co-operation of its members, mutual advantages would accrue to all through greater economy in handling and shipping, and the securing of more advantageous marketing facilities. These results would be dependent directly upon the performance by the members of their agreement to deliver their fruit into the hands of the association for the purposes declared. Defendant sought to show at the trial that the damage which would accrue to the association by reason of any of its members failing or refusing to market their fruit through the association could be easily and exactly ascertained, and that such damage would consist wholly of a proportionate amount amount of overhead operating cost. By the line of questioning pursued it was made clear that the association would suffer an actual monetary loss by reason of the failure of defendant to deliver his fruit at the association packing house for market, as he had agreed to do; but in the very nature of the case we do not think that such damage should be the only damage considered to have been suffered by the plaintiff. Other elements have already been suggested. The existence and life of the association itself depended upon its being furnished fruit to dispose of in the public market. A reduction

in the amount of fruit so handled would not only tend to increase the overhead cost to the nontransgressing members, but, we may assume, to some extent, affect the prestige and standing of the association as a marketing concern. The argument would be the same, regardless of the quantity of fruit which might have been delivered by the defendant, whether it composed but a small fractional part, or one half, or more, of the entire product designed to be marketed by the plaintiff agency. Enough has been said, we think, to show that the case falls within the class as to which the law permits damages to be liquidated by contract, in advance of their occurrence. It follows as a necessary conclusion that plaintiff was entitled to recover the exact amount fixed in its contract as the sum per box which defendant should pay by reason of his failure to market this fruit in the manner agreed."

However, in Georgia Fruit Exch. v. Turnipseed (1915) 9 Ala. App. 123, 62 So. 542, a contract between a grower of fruit and a fruit exchange, the purpose of which was to sell fruit of a certain character, was held violative of public policy. This contract was conditional upon the fruit exchange making similar contracts with growers of a designated per cent of similar fruit in that locality, and it provided for a certain commission for the fruit the exchange sold for the grower, and also a commission on any fruit which the grower himself sold, or sold through other persons. The consideration for this latter commission was "a protected market and consequent enhanced price." It was this latter clause that was particularly offensive to public policy, as the court viewed it. Upon this point it said: "How is the market to be protected, and why the enhanced price? It cannot fairly be doubted but what the parties to the contract contemplated that this expected protected market and resultant enhanced price were to come only as a consequence of plaintiff's success in subsequently procuring or securing other peach growers, in such number

as, with defendant, would amount to the producers of at least 60 per cent of the peach crop, to do as defendant had agreed conditionally to dobecome a member of plaintiff corporation by subscribing to its capital stock, and pledge plaintiff the absolute right to handle their fruit crop for a total commission of 10 per cent, and pay 5 per cent to plaintiff on the gross sales of all fruit they did not let it handle (as a penalty, we infer, for not doing so), and agree to be bound by all the rules and regulations (present and future, we infer) of plaintiff's board of trustees, and that, too, without any limitation of time for the duration of the contracts. Presumably, it was to be a permanent arrangement by all these peach-growing stockholders, for the future sale and disposition of their crops,-60 per cent of the whole,-with a view of drawing into the association later the remaining 40 per cent, if possible. The conclusion cannot be escaped that when plaintiff succeeded in getting said required number of peach growers, inclusive of defendant, each to become a member of its corporation or exchange, and to execute a contract like that here under consideration, which plaintiff alleges it did do as the necessary averment of the performance by it of a condition precedent to its right to maintain an action on this contract, which, as seen, is so conditioned as not to be binding on defendant until plaintiff did do this, that is, did get at least 60 per cent of the fruit growers into the association,-plaintiff thereby became master of the situation, so far as regarded the sale and disposition of at least 60 per cent of the peach crop of the country, at least, of this section of the country,-and would remain such master so long as the parties, defendant and the other required number of growers, kept their contracts with plaintiff to market their crop through it, and to abide by the rules and regulations, not disclosed, of plaintiff's board of directors. To enforce the keeping of these contracts to ship and sell through plaintiff, a penalty of 5 per

cent, we construe it, as said, was provided, which defendant and the other required number of growers were to pay plaintiff on any of their crop they might sell themselves, or employ others to sell for them; thus resulting, after the making of these contracts, that these growers would have to pay 5 per cent for something which cost them nothing before (that is, to sell their crop themselves), and 15 per cent for something which cost them probably only 10 per cent before (that is, to have somebody else, other than plaintiff, to sell their crop for them). If after the making of the contract they got others to sel! their crop, they would, of course, have to pay those others the regular commission of 10 per cent, and also 5 per cent to plaintiff, whereas, if they had plaintiff to sell for them, it would cost only 10 per cent. We cannot doubt that the purpose of all this was to force a selling through the plaintiff, and thereby enable it to control the disposition and sale of 60 per cent of the peach crop, and a larger proportion if plaintiff could get other growers into its association; the design evidently being to get all of them into the arrangements, if possible. Assuming, however, that plaintiff never got more than 60 per cent of the growers,-the minimum number required to make the contracts with defendant and the other growers binding, it gave plaintiff a commanding position in fixing the prices of peaches in this section of the country. It could direct the market to which any shipment was to go, and withhold from any market all shipments, or limit the supply at a particular market, thus forcing up the price. It is clear that the real design was to stifle and destroy at the various markets competition between defendant and the other growers, who became members of the plaintiff association, by allowing plaintiff to divert the crop from the channels of trade in which it would have ordinarily flowed if each grower had been left to act independently and to choose his own market, and to so direct the shipments of these several growers

as to avoid competition between them at markets where they before competed."

In Baldwin County Producers' Corp. v. Frishkorn (1919) 17 Ala. App. 84, 81 So. 862, it is held that a corporation organized by and composed of producers of agricultural products, under a statutory provision for the incorporation of mutual co-operative societies and associations for farming and trucking purposes, and for the exemption of the same from all corporate taxation and licenses, cannot lawfully adopt by-laws to the effect that a member of the corporation selling his produce to any person other than the regularly authorized agent of the corporation shall pay 3 per cent of his gross sales into the treasury of the corporation. The court said that such a by-law cannot be enforced, for numerous reasons. "In the first place, the charter does not authorize any such by-law, and its adoption is therefore ultra vires. 7 R. C. L. p. 309. Secondly, such a by-law, even if not repugnant to the charter, could not be enforced as being in restraint of trade. 7 R. C. L. p. 146." And see Reeves v. Decorah Farmers' Co-op. Soc. (1913) 160 Iowa, 194, 44 L.R.A. (N.S.) 1104, 140 N. W. 844,

supra.

But see Ex parte Baldwin County Producers' Corp. (1919) 203 Ala. 345, 83 So. 69, holding that an association organized under the Alabama statutes relating to the incorporation of associations for farming and trucking purposes, may, by by-law, provide for a certain charge on the gross sales by members, of their produce, whether sold through the association or third parties.

In Oregon Growers' Co-op. Asso. v. Lentz (1923) Or. 212 Pac. 811, the court restrained the breach of a contract by a grower to deliver his crop of berries from certain lands for certain years, by mandatory injunction enjoining him from selling such crop to anyone else. This relief was given notwithstanding the contract contained a provision for stipulated damages in event of the breach,

the court holding, in this regard, that such damages did not constitute an adequate remedy. Upon this point the court said: "The plaintiff is a cooperative marketing association, and is not conducted for profit. Its members are composed exclusively of growers of horticultural and agricultural products. The defendant is himself a member of the association, and has contractual relations with it. These contracts are all similar in terms, and constitute the association as the agent of the members to dispose of and market their products for the mutual benefit of the members, and without profit to the association. Its success, therefore, and the benefits to be derived by the members thereof, are wholly dependent upon the performance, by all of the contracting parties, with the terms and conditions of their respective contracts. In order to carry out the objects and purposes for which it was organized, it is necessary for the association to enter into contracts for the disposal of the products of its members. Before it can safely make such contracts, it must be assured that it will obtain the products contracted for. It must also be able to form a reasonable estimate, in advance, of the amount of products which will be grown on the acreage stipulated, and maintain a sufficient organization and force to prepare the same for market. It is also necessary to secure the capital or credit required to discharge its obligations to the growers, and to conduct and carry on its business. The perishable nature of the products handled, the uncertainty of the market conditions and prices, its inability to buy these products from nonmembers, and the limited time in which its business for each season must be conducted and completed, make it essential that each member of the association should perform his contract according to its terms. From these considerations, it must be obvious that an action at law to recover the stipulated damages would not afford to the plaintiff a full, adequate, and complete remedy for the wrong

the legislature an exercise of judicial power.

Steele County v. Erskine, 39 C. C. A. 173, 98 Fed. 215; Gibson v. Sherman County, 97 Neb. 79, 149 N. W. 107; Guilford v. Chenango County, 13 N. Y. 143; Wrought Iron Bridge Co. v. Attica, 119 N. Y. 204, 23 N. Ē. 542.

The enactment of a curative act pending judicial proceedings is to be sustained.

Brand v. Multnomah County, 38 Or. 79, 50 L.R.A. 389, 84 Am. St. Rep. 772, 60 Pac. 390, 62 Pac. 209; Pennsylvania v. Wheeling & B. Bridge Co. 18 How. 421, 15 L. ed. 435.

Messrs. Hall & Purdy, for respondents:

The court was without jurisdiction to vacate the judgment and decree.

35 Cyc. 890; 4 C. J. 1222, 1223; Fulton v. Krull, 151 App. Div. 142, 135 N. Y. Supp. 432; Ean v. Chicago, M. & St. P. R. Co. 101 Wis. 166, 76 N. W. 329; Crowns v. Forest Land Co. 100 Wis. 554, 76 N. W. 613.

To permit the legislative depart

ment retroactively to annul a final judgment would be an unauthorized encroachment upon the proper functions of the judicial department.

Cooley, Const. Lim. 5th ed. p. 113; 6 R. C. L. p. 162; Dorsey v. Dorsey, 37 Md. 64, 11 Am. Rep. 528; Macartney v. Shipherd, 60 Or. 133, 117 Pac. 814, Ann. Cas. 1913D, 1257; Ratcliffe v. Anderson, 31 Gratt. 105, 31 Am. Rep. 716; Kearney County v. Taylor, 54 Neb. 542, 74 N. W. 965; Thomas v. Portland, 40 Or. 50, 66 Pac. 439; Denny v. Mattoon, 2 Allen, 361, 79 Am. Dec. 784; Wabash County v. Workman, Ind. 103 N. E. 99; People ex rel. Butler v. Saginaw County, 26 Mich. 22; Pennsylvania v. Wheeling & B. Bridge Co. 18 How. 421, 15 L. ed. 435.

The legislature cannot, by curative act, ratify or validate what it could not have originally authorized.

12 C. J. 1091; Cooley, Const. Lim. 5th ed. p. 458; Treadway v. Schnauber, 1 Dak. 236, 46 N. W. 464; Evans v. Fall River County, 9 S. D. 130, 68 N. W. 195; Haggart v. Alton, 29 S. D. 509, 137 N. W. 372; People ex rel. Butler v. Saginaw County, 26 Mich. 22.

Whiting, J., delivered the opinion of the court:

This cause has been before us upon a former appeal, our decision. being reported in 43 S. D. 166, 178

N. W. 575. It was then held that the attempted organization of the purported school corporation, of which defendants claim to be officers, was invalid, because there was then no statute authorizing the incorporating of an independent district into a consolidated school district. Such decision was filed and announced June 24, 1920, and remittitur filed below July 15, 1920. On June 26, 1920, the legislature enacted chapter 47, Laws Special Session 1920. This law, under § 22, art. 3, of the Constitution, and § 5111, Rev. Codes 1919, went into effect on the ninety-first day after its enactment, or September 25, 1920. On September 18, 1920, the trial court entered its judgment, based upon the judgment of this court, and held the attempted incorporation of defendant district invalid, and permanently enjoined the defendants "from proceeding further as a consolidated school district, and from in any manner assuming or undertaking to assume that said purported Erwin independent consolidated school district is in fact or law a consolidated school district, and from purchasing any site or erecting any school building for said purported consolidated school district, and from issuing bonds purporting to be the obligations of said alleged Erwin independent consolidated school district,

and from advertising for bids therefor, and from selling the same, and from conducting or attempting to conduct said alleged consolidated school district, and from acting or purporting to act as officers thereof."

After the said chapter 47, supra, went into effect, the defendants, basing their motion on the proposition that such statute cured the defective organization of the alleged consolidated district, moved the circuit court to vacate the provisions of the decree above set out. The trial court entered an order denying the motion, and from such order this appeal was taken.