of the act makes no such exception. In other words, we are asked to read into the act, by way of judicial legislation, an exception that is not placed there by the law-making branch of the government, and this is to be done upon the theory that the impolicy of such legislation is so clear that it cannot be supposed congress intended the natural import of the language it used. This we cannot and ought not to do. That impolicy is not so clear nor are the reasons for the exception so potent, as to permit us to interpolate an exception into the language of the act, and thus materially to alter its meaning and effect. It may be that the policy evidenced by the passage of the act itself will, if carried out, result in disaster to the roads, and in a failure to secure the advantages sought from such legislation. Whether that will be the result or not we do not know and cannot predict. These considerations are, however, not for us. If the act ought to read as contended for by defendants, congress is the body to amend it and not this court, by a process of judicial legislation wholly unjustifiable. Large numbers do not agree that the view taken by defendants is sound or true in substance, and congress may, and very probably did, share in that belief in passing the act. The public policy of the government is to be found in its statutes, and, when they have not spoken directly, then in the decisions of the courts and the constant practice of the government officials, but when the law-making power speaks upon a particular subject over which it has constitutional power to legislate, public policy in such a case is what the statute enacts. If the law prohibit any contract or combination in restraint of trade or commerce, a contract or combination made in violation of such law is void, whatever may have been theretofore decided by the courts to have been the public policy of the country on the subject."

§ 47. Divisibility of Illegal Contract.-It is well established that where a contract in restraint of trade contains

1 United States v. Trans-Missouri S. 290; s. c., 17 Sup. Ct. Rep. 540, Freight Association (1897), 166 U. 558.

two or more stipulations, a part of which are valid and the remainder void, the contract may be divided and the valid portion sustained, If the agreement is of such a character as to admit of division, it will be held void only to the extent to which it is illegal, or in contravention of public policy. In a leading case before the Supreme Court of the United States, the rule is stated by Mr. Justice Bradley, as follows: "It is laid down by Chitty as the result of the cases, and his authorities support the statement, that agreements in restraint of trade, whether under seal or not, are divisible; and, accordingly, it has been held that when such an agreement contains a stipulation which is capable of being construed divisibly, and one part thereof is void as being in restraint of trade, whilst the other is not, the court will give effect to the latter, and will not hold the agreement to be void altogether. In a case in Pennsyl

1 Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64, 70. See also Price v. Green, 16 M. & W. 346; s. C., 16 L. J. Excheq. 108; Mallan v. May, 11 M. & W. 653; s. c., 7 Jur. 536; 12 L. J. Excheq. 376; Willis v. Beard, 6 Ind. 200; Gelpcke v. Dubuque, 68 U. S. 175; Goodwin v. Clark, 65 Me. 280; Carleton v. Woods, 28 N. H. 290; Van Dyck v. Van Buren, 1 Johns. 362; Saratoga County Bank v. King. 44 N. Y. 89; Leavitt v. Palmer, 3 N. Y. 19; Newberry Bank v. Stegall, 41 Miss. 142; Tracy v. Talmage, 14 N. Y. 162; Carrigan v. Lycoming F. Ins. Co., 53 Vt. 418; Widoe v. Webb, 20 Ohio St. 431; Hynds v. Hays, 25 Ind. 31, 36; White v. Buss, 3 Cush. 449. A contract not to engage in a particular trade for a specified time "in the city of St. Louis, or at any other place," is divisible, and as to the restriction in St. Louis is not void as in restraint of trade. Peltz v. Eichell, 62 Mo. 171. Declaration in covenant on an indenture, which, after reciting that defendant had

for four years been plaintiff's salaried clerk, and requested plaintiff to accept him as articled clerk without payment of any premiums, which plaintiff consented to do on defendant entering into the Covenants thereinafter contained, and that defendant had bound himself clerk to plaintiff for five years, to the intent that he might become entitled to make application to be admitted attorney and solicitor, defendant covenanted that he would not, during said term of five years, nor at any time after the expiration of such term, either directly or indirectly, interfere or intermeddle with, or be concerned as attorney, agent or otherwise for any person who had already been, or should thereafter become or be, the client or correspondent in business of, or with, plaintiff, or any partner he might admit to a share with him, or to any person to whom he might sell or assign the whole, or any part of his business or profession, and that

vania, A, for a valuable consideration, covenanted with B, not to engage in the manufacture of ochre "in the county of Lehigh or elsewhere." He afterwards did engage in said business in said county. B filed his bill in equity, praying that A might be enjoined from carrying on said business in said county. It was held: 1. That the contract was reasonable. 2. That it was divisible as to place. 3.

That an injunction was the proper remedy to enforce it.1 In the opinion in this case, the court said: "The covenant as to place, in the county of Lehigh or elsewhere,' is divisible, and valid as to the county; for the present it is conceded to be void elsewhere. Where a county or city or borough is named as a limit, and an unreasonable extent of territory in addition is also named, the covenant is divisible and may be valid as to the particular place, which is a reasonable limit." In an English case, L was engaged as clerk by D & Co. of London, foreign carriers, by agreement containing the following covenant: "L agrees that he will not within twelve calendar months after the termination of this agreement, from whatever cause, carry on, or be engaged in, or interested directly or indirectly in the cities of" London, Birmingham, Liverpool and New York, "or within fifty miles thereof of each of the above named places, either as principal, clerk, agent or otherwise, in any business similar to the business now or hereafter to be carried on by the employers." Defendant, on leaving plaintiff's service, entered into the service of a rival firm in London. Plaintiff had not any trade with Birmingham, but a considerable business with the other places mentioned. It was held that the limit of time was reasonable; also, that of space, with the exception of Birmingham; that the words "principal, clerk, agent or otherwise" were not too wide; that the words "now or hereafter" were not reasonable.3 In a recent case in Massachusetts, it was held that a stipulation by a manufacturer of fire alarm and telegraph apparatus, on a sale of all his machinery, stock, letters patent and inventions, that he will not for ten years engage in the manufacture and sale of such apparatus, or enter into competition with the purchaser, while valid in so far as the patents and inventions agreed to be sold are concerned, is void, as against public policy, in so far as it prohibits the seller from engaging in the manufacture and sale of

1 Smith's Appeal, 113 Pa. St. 579. 2 Smith's Appeal, 113 Pa. St. 579,

3 Davies 655.

v. Lowen, 64 L. T.

such apparatus under other patents, or under no patents at all.1

§ 48. The Subject Continued.-In order that a covenant in restraint of trade may be held divisible, and that one part of it may be upheld, the agreement must be of such a character that the part that would otherwise have been valid is not vitiated by that which is void. In a case in Massachusetts, a purchaser promised to pay in installments for a business plant and property, in consideration of its sale and delivery, and the performance of three particular covenants and agreements by the seller, the first of which was a general agreement, without any limitation of space, that for and during the period of five years he would not either directly or indirectly continue in, carry on or engage in that business or any business of which that might form any part; it was held that the covenant was void as being in restraint of trade, and that, not being severable from the rest of the consideration, no action would lie on the promise for installments of the price. In the

1 Gamewell Fire Alarm Tel. Co. v. Crane, 160 Mass. 50; s. c., 35 N. E. Rep. 98.

2 Palmer v. Bishop, 146 Mass. 469. It is contended that the contract restrains the exercise of the business within two distinct areas, that the contract is severable. The one part restraining the exercise of the business within the city and county of San Francisco, and the other part restraining its exercise within the State, and that, while the latter is void, the former is valid, because the limits are not unreasonable. But we are of the opinion that the contract is, in that respect, entire. No precise rule can be laid down for the solution of the question, whether a contract is entire or separable; but it must be solved by considering both the language and the subject-matter

of the contract. There were not two distinct areas, for the one included the other. The defendant's business was not carried on in the two distinct areas as two separate occupations, but the complaint avers that the defendant was carrying on the business in the State, and that he sold such business to the plaintiff. When the price is expressly apportioned by the contract, or the apportionment may be implied by law to each item to be performed, the contract will generally be held to be severable, but no such apportionment can be made of this contract. When the contract provides for the restraint of the business within the State, if the mention of any subdivision of the State will make the contract severable, then it would be easy to defeat the rule prohibiting con