Co-Operative Live Stock Commission Co. v. Browning

• Decision Date: 02 July 1914
• Citation: 168 S.W. 934,260 Mo. 324
• Parties: CO-OPERATIVE LIVE STOCK COMMISSION COMPANY v. JAMES A. BROWNING et al., Appellants
• Court: Missouri Supreme Court

168 S.W. 934

260 Mo. 324

CO-OPERATIVE LIVE STOCK COMMISSION COMPANY v. JAMES A. BROWNING et al., Appellants

Supreme Court of Missouri

July 2, 1914

Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.

Reversed and remanded.

Edward J. White, Martin L. Clardy, J. Walter Farrar, Ball & Ryland Kinley & Kinley and R. W. Goldsby for appellants.

(1) The petition is insufficient. State v. Loomis, 115 Mo 307; Cooley, Const. Lim. (6 Ed.), 484; 2 Story on Const. (5 Ed.), 1950; Gladdish v. Live Stock Exch., 113 Mo.App. 725; Anderson v. United States, 171 U.S 604; United States v. Greenhut, 51 F. 210; In re Greene, 52 F. 104; Rice v. Oil Co., 134 F. 464. (2) The verdict and judgment were against the law. R. S. 1899, secs. 8981, 8978. (3) The acts of 1899 and 1907 are unconstitutional, insofar as they or either of them purport or may be construed to give an action against defendants. State ex rel. v. Associated Press, 159 Mo. 461; State v. Coffee Co., 171 Mo. 634; Shiveley v. Lankford, 174 Mo. 535; State ex rel. v. Vandiver, 222 Mo. 206; State v. Julow, 129 Mo. 163; In re Goode, 3 Mo.App. 230; State ex rel. v. Lafayette Co. Ct., 41 Mo. 39; State v. Persinger, 76 Mo. 346; Witzman v. Railroad, 131 Mo. 612.

Gage, Ladd & Small for respondent.

(1) "We would seem to lack perception of the true nature of things were we to be deceived or blinded by the screen or pretense which the conspirators raised to mask their operations. Courts should be as astute to discover and discern the truth as the guilty are to conceal it." Foot-Race Case, 147 F. 327. (2) There is abundant evidence tending to prove that the defendants and all other members of the traders' exchange boycotted and threatened others not members of their exchange for and from doing business with the plaintiff. (3) In order to constitute a boycott or threaten to boycott, it was not necessary to use or threaten violence to the person or property of anyone. It is sufficient if there was an injury or threat to cause a loss to another's business. Door Co. v. Fuelle, 215 Mo. 4221. (4) "The rule of reason" is excluded by our statutes, and any combination which tends to limit or control or lessen trade or competition, no matter how little falls within the condemnation of the antitrust laws of this State. State v. People's Ice Co., 246 Mo. 221. (5) As a matter of law an agreement between defendants or between them and other members of the traders exchange not to buy from or sell to the plaintiff's customers through the plaintiff, was a combination, agreement, trust, pool, association and conspiracy, etc., to restrain and limit trade and competition at this great cattle market at the stockyards in Kansas City, and whether such limitation or restraint of trade was "great or small," the law was violated. State ex rel. v. People's Ice Co., 246 Mo. 221. (6) "It is the combination or agreement that results in restraint of trade that the statute denounces, whether the result is accomplished by the act of each individual on his own account, doing as he agreed to do, or by the joint action of all. . . . It is the combination to accomplish that result that the statute is aimed to prevent." State ex rel. v. Live Stock Exchange, 211 Mo. 193; State ex rel. Barker v. Assurance Co., 158 S.W. 644. (7) All the sections and articles of our antitrust statutes are in pari materia and must be construed as if contained in one act. Hence it follows that section 8981 in article 2 of chapter 143, relating to pools, trusts and conspiracies, Revised Statutes 1899, which gives triple damages to any person injured in his property or business arising from any violation of that article, also gives such triple damages arising from any violation of any provisions of article 1 of said chapter 143. State v. Oil Co., 218 Mo. 354; State v. Elevator Co., 106 N.W. 983; Brewing Co. v. Belinder, 97 Mo.App. 64. (8) It is too late to challenge the constitutionality of our antitrust statutes for the alleged reason that they interfere with the right to contract or take property without compensation, or due process of law, or deny any person the equal protection of the law. All these questions have long since been foreclosed and settled by this court. Standard Oil Case, 218 Mo. 378. (9) The case of Anderson v. United States, 171 U.S. 604, so much relied on by the defendants, is not in point. All that case decided, as has been held by the Court of Appeals of this State and the Supreme Court of Kansas, was that the members of the traders exchange were not engaged in interstate commerce; and therefore the Sherman Act did not apply. Brewing Co. v. Belinder, 97 Mo.App. 64; State v. Wilson, 84 P. 737. Furthermore as pointed out in State ex rel. v. Live Stock Exchange, 211 Mo. 197, and State v. Aikens, 83 Kan. 792, all the rules of the traders exchange were not before the court in the Anderson case, especially the rule requiring the payment of a thousand dollar entrance fee, and the approval of two-thirds of the members before any person could enter the portals of the exchange and be a trader on the yards with none to molest or make him afraid. Besides, it may be said that when the Anderson case was decided this antitrust legislation was a sort of a "Mysterious Stranger" -- to be kept at a dignified and perfectly proper distance -- and did not meet with the cordial reception and hearty welcome which its great virtues entitled it to, and which it has since, upon better acquaintance, been accorded, especially by the Supreme Court of this State. (10) The statutes so far as they provide for a civil suit to recover triple damages are not penal. Atlanta v. Foundry & Pipe Works, 127 F. 23; Casey v. Transit Co., 116 Mo.App. 250. (11) It is settled in this State that the enforcement and construction of these antitrust statutes is not to be "approached with a sour face," but these statutes are remedial and must be liberally construed, so as to advance the remedy for the great wrongs therein denounced. It is the policy and purpose of the law that these statutes shall be rigidly enforced against all wrongdoers, and that the guilty shall not escape through any astute or artificial construction which subverts the general intent of the lawmakers -- which was to destroy the whole brood of trusts and combines against trade in this State, from the least unto the greatest. State v. Oil Co., 218 Mo. 359; State ex inf. v. Ins. Co., 152 Mo. 43. (12) The antitrust laws apply to commission merchants. The learned counsel for the appellants, neither at the trial of the case below nor in their briefs in this court, made any claim or point that the antitrust statutes did not apply to combines or boycotts against commission merchants, and therefore we did not argue that point or submit any authorities. In State ex rel. v. Live Stock Exchange, 211 Mo. 181, this court passed upon the very question, and held that the statute did apply to commission merchants, members of the Kanass City Live Stock Exchange. See, also, State v. Wilson, 73 Kan. 334. So the record in this case shows that all the live stock -- cattle, hogs and sheep -- which comes to Kansas City is sent to commission merchants and sold by them. It is true that they sell on commission and do not own the stock, but they are the parties who actually sell it on the market, and for the most part the owners never know for what the stock is sold until after a report of the sales is made. The commission men represent the owners, stand in the place of the owners and they are certainly bound and controlled by the antitrust laws of this State. And they can enter into an agreement and combine for the purpose of restraining trade and competition, or of lessening or raising prices, or doing anything which the owner himself could do in violation of the antitrust law. The antitrust law was primarily enacted for the purpose of protecting the producers and the consumers of farm products and other necessaries of life from combinations or monopolies which affect the prices or which tend to lessen competition in the trade. It is well known that nearly all of the food products, both raw material and finished, are for the most part handled by commission men, who, of all others, are in a position to enter into combines affecting the prices and trade and competition in the same. Butter, eggs, cheese, potatoes, flour, sugar, apples, oranges, lemons, fruits of all kinds, live stock -- cattle, hogs, sheep, goats -- poultry are bought and sold, and the prices are fixed, as a matter of fact, by commission merchants. And this antitrust statute was passed mainly, for the very purpose of protecting the producers and consumers of these food stuffs -- the farmers and the town people -- from combines and trusts formed by commission men. Therefore, to read them out of the benefits or the penalties of these statutes, would be to defeat the primary purpose of the law. There is nothing in the statutes saying that the combines or contracts or agreements in restraint of trade, condemned by the statutes, can only be or must be made by the owners of the products. But the statute says, "If any two or more persons or corporations who are engaged in buying or selling any article of commerce," Sec. 8978, R. S. 1899; that "all arrangements, contracts, agreements or combination between persons or corporations, or between persons or any association of persons or corporations, designed or made with a view to lessen, or which tend to lessen, full and free competition," Sec. 8966, R. S. 1899; and "Any person who shall create, enter into, become a member of or participate in any pool, trust, agreement, combination, confederation or understanding with any person or persons in restraint of trade or competition," Sec. 8965. The same language is used in the revised law of 19...