Knight & Jillson Co. v. Miller

• Citation: 87 N.E. 823,172 Ind. 27
• Decision Date: 16 March 1909
• Docket Number: No. 21,187.,21,187.
• Court: Indiana Supreme Court
• Parties: KNIGHT & JILLSON CO. et al. v. MILLER.

172 Ind. 27

87 N.E. 823

KNIGHT & JILLSON CO. et al.

v.MILLER.

No. 21,187.

Supreme Court of Indiana.

March 16, 1909.

Appeal from Superior Court, Marion County; James M. Leathers, Judge.

Action by Joseph Miller against the Knight & Jillson Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.Elmer E. Stevenson, D. P. Williams, and Rowland Evans, for appellants. Taylor, Woods & Willson, for appellee.

MYERS, J.

Appellee instituted this action in the Marion superior court December 13, 1904, by a complaint based upon sections 1 and 4 of the conspiracy act of March 3, 1899 (Acts 1899, p. 257, c. 148), charging the defendants, Knight & Jillson Company and the Central Supply Company, both domestic corporations located and doing business in Indianapolis, Ind., the former a manufacturer, wholesaler, and jobber of plumbing materials and supplies of every character, and the latter a wholesaler and jobber of plumbing materials and supplies of every character, and the Merchant Plumbers' Association, a domestic corporation of the city of Indianapolis alleged to be formed for the purpose of preventing competition in the plumbing business in said city, charging that they contracted, conspired, combined, and confederated together to prevent competition in the plumbing business, by suppressing competition among the members of the latter corporation, whose membership is alleged to embrace practically all the merchant plumbers of that city, through and by means of prices fixed arbitrarily, and without regard to the supply and demand, by such association, by means of fictitious published price lists, though sales were made to members at from 30 to 75 per cent. less than such lists, and by refusing to sell to those who were not members, who were thereby prevented from competing, and driving them out of business unless they became members of the association, that the two first named controlled the manufacture and sale of plumbers' supplies in said city, and were members of the said plumbers' association, alleging the refusal of each to sell to him, though the cash was offered, solely because he was not a member of that association, though a licensed plumber of that city, and regularly engaged in the business, and that he could not obtain the supplies elsewhere, alleging special damages, and praying for a mandatory injunction to require said manufacturers and jobbers to sell to him for cash, at reasonable and customary prices, and for attorney's fees. There was a special finding of facts practically following the allegations of the complaint, and conclusions of law stated. There was judgment on these conclusions, and a perpetual injunction against all the parties from refusing to sell, or inducing others not to sell, supplies to appellee for cash, at the usual and customary prices.

Error is here assigned separately by appellants as to each of the conclusions of law, and that the decision is contrary to law, and upon motion for a new trial that it is not sustained by sufficient evidence. Appellants assume that the action is based wholly upon the so-called anti-trust act of March 3, 1899 (Acts 1899, p. 257; Burns' Ann. St. 1908, § 3884). This is denied by appellee, who claims that, independently of that act, the judgment can be upheld as a common-law action. We are therefore required to determine the theory of this action, according to the theory upon which it was presented to the trial court, and in doing so the court may look to the pleadings and the entire record and briefs of counsel, and will construe the pleadings upon the theory most apparent and most clearly outlined by the facts stated, and its general scope and tenor, and determine it on that theory. Oölitic Stone Co. v. Ridge, 169 Ind. 639, 83 N. E. 246;Lake Erie Co. v. McFall, 165 Ind. 574, 76 N. E. 400;Huey Co. v. Johnston, 164 Ind. 489, 73 N. E. 996;Seymour Water Co. v. City of Seymour, 163 Ind. 120, 70 N. E. 514. It will be noted that the complaint makes a demand for attorney's fees and for damages. There could of course be no recovery of attorney's fees upon a common-law action, but section 4 of the act (section 3887, Burns' Ann. St. 1908) provides for a recovery of attorney's fees, and there was an award of $50 attorney's fees. We think there can be no doubt, from that fact and the general scope of the complaint, about the theory of the action being one under the act cited.

The constitutionality of the act is challenged on the ground that the subject embraced in the body of the act, is not expressed in the title. The constitutional provision (Burns' Ann. St. 1908, § 115) is that: “Every act shall embrace but one subject and matters properly connected therewith, which subject shall be embraced in the title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.”

The title and section 1 of the set are as follows: “An act to prohibit contracts or combination of persons, firms or associations intended to prevent free competition in business, to provide for civil damages, penalties and punishment for violation, repealing all laws in conflict therewith.” Section 1: “That any person, firm or association of persons who shall make any contract or enter into any agreement or make any combination or enter into any agreement, directly or indirectly, to induce, procure or prevent any wholesale or retail dealer in or manufacturer of merchandise or of supplies or of material or article intended for trade or used by any mechanic, artisan or dealer in the prosecution of his business from selling such supplies to any dealer or to any mechanic or artisan; and that any dealer in or manufacturer of such supplies or material or article of trade or supplies or material to be used by any mechanic, artisan or dealer who shall be a party, directly or indirectly, to any such contract, combination or arrangement, or who shall upon the request of any party to any such contract, combination or arrangement refuse to sell such articles of trade, supplies or materials, or articles sold by any dealer or used by any mechanic, or artisan, to any such person or persons who may require them in the prosecution of their said business, for the reason that said dealer, mechanic or artisan is not a member of a combination or association of persons, shall be guilty of a conspiracy against trade, and all such contracts, agreements, combinations or arrangements shall be void, and of no effect whatever in law.” The insistence here is that the words “intended to prevent free competition in business” in the title qualify and limit the words of the title “to prohibit contracts or combinations of persons, firms or associations,” that they do not appear literally, or in substance in the body of the act, and that, because the body of the act does not declare that the contracts, combinations, etc., shall be “intended to prevent free competition in business,” the act is invalid. It is not contended that the act is broader than the title, but that the language of the title is not used literally or in substance in the body of the act on the subject of intention; in other words, that the act is not as broad as the title. Appellants are not in a situation to complain of the title of the act, because the act is not as broad as the title, if the act itself defines conditions which in their definition describe contracts or combinations which, in and of themselves by their formation, can have but one effect, and that, the prevention or tendency to prevent free competition. It is not necessary that the body of an act shall declare that a thing shall be done with a specific intent, when the doing of that thing by the force of its character and effects discloses a situation upon which the law ingrafts an intent and purpose, and which could have no other purpose; that is, contracts or combinations which could have no other effect than to restrain free competition, or which have such tendency, will be deemed to have been so intended, and that purpose need not be declaredin the act. Where the necessary and immediate effect of a contract is to violate an act of Congress (anti-trust act), and also to restrain and regulate interstate and foreign commerce, whether the, design to so regulate was or was not in existence when the contract was entered into is immaterial. Addyston Pipe, etc., Co. v. U. S., 175 U. S. 211, 20 Sup. Ct. 96, 44 L. Ed. 136.

Where the offense charged is the violation of a written statute, the only intent necessary to the commission of the offense is the intent to do the prohibited thing. 18 Am. & Eng. Ency. of L. pp. 290, 291; Standard Oil Co. v. State, 117 Tenn. 618, 100 S. W. 705, 10 L. R. A. (N. S.) 1015;State v. Missouri, etc., Co., 99 Tex. 516, 91 S. W. 214, 5 L. R. A. (N. S.) 783. In the reasonable exercise of the police power for the protection of the public health, morals, safety, and welfare states may restrain the general right of contract. Standard Oil Co. v. State, supra; American Co. v. Southern Co., 167 Ind. 292, 78 N. E. 1021;Adams Express Co. v. State, 161 Ind. 328, 67 N. E. 1033. An intention to accomplish certain results will be presumed where such results are the natural consequences that may reasonably be expected. State v. Virginia, etc., Co., 71 S. C. 564, 51 S. E. 455. The legality of an object is the means used in accomplishing it, and is determinable regardless of the intent with which it is performed. Runck v. Cloud, 8 Ohio N. P. 436. The gravamen of the offense of conspiracy is the combination, and this is complete at common law, by the combination itself, and it is unnecessary to prove any overt act as done in pursuance of it. People v. Sheldon, 139 N. Y. 251, 34 N. E. 785, 23 L. R. A. 221, 36 Am. St. Rep. 690. The material question is the injurious tendency, and not whether the intent is evil. Anderson v. Shawnee Co., ...