Barataria Canning Co. v. Joulian

• Decision Date: 12 May 1902
• Citation: 80 Miss. 555,31 So. 961
• Court: Mississippi Supreme Court
• Parties: BARATARIA CANNING COMPANY v. EDGAR C. JOULIAN

31 So. 961

80 Miss. 555

BARATARIA CANNING COMPANY v. EDGAR C. JOULIAN

Supreme Court of Mississippi

May 12, 1902

FROM the circuit court of Harrison county. HON. GUION Q. HALL Judge, presiding by exchange with HON. JAMES H. NEVILLE Judge.

Action by the Barataria Canning Company, appellant, against E. J Joulian, appellee. The declaration sets out the contract in full, which shows that plaintiff agreed to buy, and defendant agreed to sell to it, all the cove oysters which defendant should pack during the months of January, February, March and April, except three carloads per month, if defendant should desire to retain same. The contract contained the following provision: "The said three carloads per month not to be sold to the trade by the party of the second part at a lower price than the price offered the trade by the party of the first part." The defendant demurred to the declaration on the ground that the contract was in violation of the provisions of § 4437, code 1892, on "Trusts and Combines," which are as follows:

"Sec 4437. Definition of Term; Criminal Conspiracy.--A trust and combine is a combination, contract, understanding, or agreement, express or implied, between two or more persons, corporations, or firms or associations of person, or between one or more of either with one or more of the others--(a) In restraint of trade; (b) to limit, increase, or reduce the price of a commodity; (c) to limit, increase, or reduce the production or output of a commodity; (d) intended to hinder competition in the production, importation, manufacture, transportation, sale, or purchase of a commodity; (e) to engross or forestall a commodity; (f) to issue, own, or hold the certificates of stock of any trust or combine; (g) to place the control, to any extent, of business or of the products or earnings thereof, in the power of trustees, by whatever name called; (h) by which any other person than themselves, their proper officers, agents, and employes shall, or shall have the power to dictate or control the management of business; or, (i) to unite or pool interests in the importation, manufacture, production, transportation, or price of a commodity; and is inimical to the public welfare, unlawful, and a criminal conspiracy." Section 4438 makes all contracts and agreements to enter into or pursue any trust or combine void, and provides that they cannot be enforced in any court. The demurrer was sustained, and plaintiff appealed to the supreme court.

Affirmed.

Mayes & Harris, for appellant.

1. What is it that the statute denounces as a trust? We submit that the words "is inimical to the public welfare, unlawful, and a criminal conspiracy" must be taken as a part of the definition of each and every one of the enumerated particulars, beginning with that one indicated by the letter "a" and running through to the letter "i."

It is not every contract to limit, increase, or reduce the price of a commodity which is denounced by the statute; but only such as are "inimical to the public welfare," etc.

If this be not the correct interpretation of this statute, then the words which we have been considering ("and is inimical to the public welfare, unlawful and a criminal conspiracy") are nugatory. Disconnected from the other part of the sentence, they mean nothing. If they are not a part of the essential description of the things prohibited to be done, then what meaning can be attributed to them must be merely the abstract, academic and useless assertion that a trust and combine is inimical to the public welfare, is unlawful, and is a criminal conspiracy, a proposition which needs no declaration, and which, when declared, amounts to nothing.

These words, however, as a part of the definition in each instance, become sensible and useful. Indeed, they save the statute from absurdity and unconstitutionality. Eliminate these words from the statute, and we have a law enacted by the legislature which, amongst other things, under the letter "b" would make it a crime for merchants under any circumstances to agree to sell their goods at a lower price, as for instance in times of public distress or epidemics. We would have a statute which makes it a crime for persons to agree to erect a factory; for the unavoidable effect of a factory is to increase the output of the commodity which the factory proposes to make. We have a statute which would make it a crime (under the letter "g") for a partnership to make an ordinary commercial assignment; for persons to organize a business and to agree that the affairs of the business should be managed by a board of directors.

2. It is to be noticed that this contract, in its very essence, was really nothing but a contract for labor. It was a contract simply to pack oysters. There is no showing in this record that the oysters to be packed had been raised in a private ground or bed, or that they belonged to the defendant. In the absence of such proof, this court will presume, what is matter of general knowledge, that the oysters along the Gulf Coast are common property, and belong to whomsoever shall take them. In this respect they are like water. The title to them comes by occupancy only.

It is quite doubtful whether oysters in their natural beds, being property of the public generally, and not of any particular individual, can in any proper sense be said to be a commodity within the purview of our statute.

As remarked above, this contract was really nothing but a contract for the labor of gathering and...