Commonwealth v. Grinstead

• Citation: 55 S.W. 720,108 Ky. 59
• Parties: COMMONWEALTH v. GRINSTEAD et al. [1]
• Decision Date: 10 March 1900
• Court: Kentucky Court of Appeals

55 S.W. 720

108 Ky. 59

COMMONWEALTH v. GRINSTEAD et al. ^[1]

Court of Appeals of Kentucky.

March 10, 1900

Appeal from circuit court, Whitley county.

"To be officially reported."

An indictment against Grinstead & Tinsley for criminal conspiracy was dismissed, and the commonwealth appeals. Reversed.

J. N Sharp and Clifton J. Pratt, for the Commonwealth. Kohn, Baird & Spindle, for appellees.

DU RELLE, J.

To an indictment charging appellees with the offense of criminal conspiracy a general demurrer has been sustained. The indictment is based upon the act of May 20, 1890, entitled "An act to prevent the establishment of pools, trusts and conspiracies, and to provide punishments therefor" (1 Acts 1889-90, p. 143). It is contained in sections 3915 to 3921, Ky. St., inclusive. This case involves the validity of two sections of the act, which are now embodied in sections 3915, 3917, Ky. St. They are as follows:

"Sec 3915. 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."

"Sec. 3917. If any corporation, company, firm, partnership or person, or association of persons, shall, by court of competent jurisdiction, be found guilty of any violation of any of the provisions of this act, such guilty party shall be punished by a fine of not less than five hundred dollars and not more than five thousand dollars. Any president, manager, director or other officer or agent, or receiver of any corporation, company, firm, partnership, or any corporation, company, firm or association, or member of any corporation, firm or association, or any member of any company, firm or other association, or any individual, found, by a court of competent jurisdiction, guilty of any violation of this act shall be punished by a fine of not less than five hundred dollars nor more than five thousand dollars, or may be imprisoned in the county jail not less than six months nor more than twelve months, or may be both so fined and imprisoned in the discretion of the court or jury trying the case."

An affirmance of the judgment sustaining the demurrer is urged on the following grounds: (1) That the act of May 20, 1890, was repealed by the new constitution adopted September 28, 1891, because section 198 of that instrument is in conflict with it, and because, being inconsistent with it, section 1 of the schedule operates to repeal the act; (2) that it was repealed because of its omission from the general act revising the criminal laws, reported by the commission in pursuance of section 245 of the constitution, and adopted by the general assembly in April, 1893; (3) that it is void for uncertainty; and (4) that the indictment is fatally defective in not alleging facts sufficient to constitute an offense either at common law or under the statute. These objections have been elaborately and ably argued by counsel on both sides. Prior to May 20, 1890, no statute existed in this state upon the subject of pools, trusts, and conspiracies, and the statute law on the subject in most of the states is of comparatively recent growth.

The first question presented is as to the meaning of section 198 of the constitution; and in ascertaining that meaning we are to be guided, without reference to our individual opinions of policy, by the intent of the constitution, deducible from the language used, as understood by the people of the commonwealth. Nor is it to be assumed, in the ascertainment of the intent of the constitution, that in its adoption existent legislation was at all considered, unless that necessarily appears from the language used or the circumstances; for that instrument was to be of a permanent nature,--the organic law of the commonwealth. Section 198 is as follows: "It shall be the duty of the general assembly from time to time, as necessity may require, to enact such laws as may be necessary to prevent all trusts, pools, combinations or other organizations, from combining to depreciate below its real value any article, or to enhance the cost of any article above its real value." Is this section in conflict with the act of May 20, 1890? There can be no question that under the old constitution it was perfectly competent for the legislature to pass the act. It was clearly within the general powers of the legislature, unless the constitution contained some inhibition. Johnson v. Higgins, 3 Metc. 576.

In order to decide that there is a conflict between the act and the section, we must find that the section contains a limitation upon the general power of legislation upon this subject. If this section were, in form, a grant of power,--if it were an authority to the legislature to legislate upon this subject in a certain manner,--much might be said, and much authority cited in support of it, in favor of the proposition that by granting power to do a certain thing, to a certain extent, the legislature was by implication prohibited from exercising that power in any higher degree or any different manner. But this section is not a grant of power. It is the imposition of a duty. It is a mandatory requirement. And, so far from being a restraint upon the powers of the legislature, it seems to us that it must have been intended by the framers to be a requirement that the legislature should at least do this much, and have been so understood by the people who voted for the adoption of the instrument. Taking this view of the meaning of the section,--and, upon fair consideration, we can reach no other,--there is no conflict between it and the act then in existence. The constitution forbids a combination to depreciate any article below its real value, or to enhance the cost of any article above its real value. The statute forbids a combination to fix, control, or regulate the price of any article, and also a combination to fix or limit the quantity of production. It must be obvious that a prohibition of combinations to fix, control, or regulate prices is greater than, and necessarily includes within its meaning, a prohibition of combinations to depreciate or enhance. Inclusion is not conflict. To increase the efficiency of a provision by providing for something more is not conflict. Unless, as we have said, the section contains a prohibition express or implied, of action by the legislature beyond the action therein required, there is no conflict. As to the legislative power, all the presumptions are in favor of its exercise. "The presumption must be that the state rightly does what it assumes to do, until it is made to appear how, by constitutional concession, it has devested itself of the power, or, by its own constitution, has for the time rendered the exercise unwarrantable." U.S. v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588. This court has again and again announced this doctrine. The same doctrine is laid down in Cooley, Const. Lim. p. 87 et seq. But it is said that the rule announced by Cooley, Const. Lim. pp. 78, 79, applies: "Another rule of construction is that, when the constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases." But this rule cannot apply unless we hold that the requirement of action is a grant of power. As a matter of course, "if directions are given respecting the times or modes of proceeding in which a power shall be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only." Cooley, Const. Lim. p. 79. But there is nothing of that sort here. Nor is anything of that sort fairly to be inferred from the provisions of this section. It requires the general assembly from time to time, as necessity may require, to enact such laws as may be necessary to prevent combinations to depreciate or to enhance the price of any article below or above its real value. If that object can best be effected by a statute to prevent combinations to fix or regulate the price of any article, whether above, below, or at its real value, then, if the general assembly so ordain, that is the law which necessity requires to be enacted. No circumstances are stated in this section under which the right is to be exercised, but to the extent stated the legislature is required to exercise it. Nothing in the cases cited for appellees is in conflict with this view. It may be remarked that the cases cited in Cooley in support of the rule laid down by him, and cited on behalf of appellees, are to the effect that the legislature cannot add to the constitutional qualifications of voters, nor shorten or extend the constitutional term of office, nor add to the constitutional grounds for removing the...