Commonwealth v. Bavarian Brewing Co.

• Decision Date: 07 March 1902
• Citation: 112 Ky. 925,66 S.W. 1016
• Parties: COMMONWEALTH v. BAVARIAN BREWING CO. et al. [1]
• Court: Kentucky Court of Appeals

66 S.W. 1016

112 Ky. 925

COMMONWEALTH v. BAVARIAN BREWING CO. et al. ^[1]

Court of Appeals of Kentucky.

March 7, 1902

Appeal from circuit court, Kenton county.

"To be officially reported."

An indictment against the Bavarian Brewing Company and others for combining to raise the price of beer was dismissed, and the commonwealth appeals. Reversed.

D. A Glenn and R. J. Breckinridge, for the Commonwealth. H. R Probasco, Geo. Washington, B. F. Graziani, and J. L Elliston, for appellees.

HOBSON J.

As a part of the war tax levied by the congress of the United States during the war with Spain a tax of $1 per barrel was imposed on beer. Appellees, who are brewers of Cincinnati Covington, and Newport, then by agreement raised the price of beer $1 per barrel, and sent out the following: "Special Notice to the Patrons of the Brewers of Cincinnati, Covington, and Newport: We, the undersigned brewers of Cincinnati, Covington, and Newport, hereby notify our respective patrons that, owing to the heavy additional war tax imposed upon beer, the price of keg beer to the trade will be increased at the rate of $1.00 (one dollar) per barrel, and the price of bottle beer will be advanced at the rate of ten cents per dozen quarts and five cents per dozen pints, and that such advance will take effect after midnight the 27th day of June, 1898. This increase covers the additional tax only, and we do not ask the trade to share the advance in price of brewing material, which in some instances amounts to more than seventy-five cents per barrel." This notice was signed by each of the 25 parties to the arrangement. They were indicted for violating section 3915, Ky. St.: "That if any corporation under the laws of Kentucky, or under the laws of any other state or country, for transacting or conducting any kind of business in this state, or any partnership, company, firm or individual, or other association of persons, shall create, establish, organize or enter into, or become a member of, or a party to, or in any way interested in any pool, trust, combine, agreement, confederation or understanding with any other corporation, partnership, individual or person, or association of persons, for the purpose of regulating or controlling or fixing the price of any merchandise, manufactured articles, or property of any kind, or shall enter into, become a member of, or party to or in any way interested in any pool, agreement, contract, understanding, combination or confederation, having for its object the fixing, or in any way limiting the amount or quantity of any article of property, commodity or merchandise, to be produced or manufactured, mined, bought or sold, shall be deemed guilty of the crime of conspiracy, and punished therefor as provided in the subsequent sections of this act." The evidence introduced on the trial established the making of the agreement, the sending out of the notice, and the advance in the price of beer by appellees according to its terms. At the conclusion of the evidence the court peremptorily instructed the jury to find for the defendants, and the commonwealth has appealed.

It is earnestly argued that the statute is in conflict with section 198 of the constitution: "It shall be the duty of the general assembly from time to time as necessity may...