Commonwealth v. McHugh

Citation326 Mass. 249,93 N.E.2d 751
PartiesCOMMONWEALTH v. McHUGH et al.
Decision Date07 July 1950
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Argued Feb. 7 1950.

H Wise, Boston, for defendants.

James J. Kelleher Boston (L. E. Ryan, Asst. Atty. Gen., with him), for Commonwealth.

Before QUA, C. J and RONAN, WILKINS, SPALDING and COUNIHAN, JJ. [Copyrighted Material Omitted]

QUA, Chief Justice.

This is an 'action' brought by the Attorney General in the name of the Commonwealth under G.L. (Ter.Ed.) c. 93, § 3 against the officers and members of the Atlantic Fishermen's Union, a voluntary association, to restrain the defendants from continuing certain 'acts, arrangements, combinations, and practices' described in the bill of complaint and alleged to be in violation of the common law and of c. 93, § 2.

Chapter 93, § 2, reads, 'Every contract, agreement, arrangement, combination or practice in violation of the common law whereby a monopoly in the manufacture, production, transportation or sale in the commonwealth of any article or commodity in common use is or may be created, established or maintained, or whereby competition in the commonwealth in the supply or price of any such article or commodity is or may be restrained or prevented, or whereby for the purpose of creating, establishing or maintaining a monopoly within the commonwealth of the manufacture, production, transportation or sale of any such article or commodity, the free pursuit in the commonwealth of any lawful business, trade or occupation is or may be restrained or prevented; or whereby the price of any article or commodity in common use is or may be unduly enhanced within the commonwealth, is hereby declared to be against public policy, illegal and void.'

An outline of the allegations of the bill sufficient for an understanding of the issues will now be stated: Fresh fish is an article or commodity in common use. The defendants assume 'jurisdiction' over substantially all the commercial fishing out of Gloucester, Boston, and New Bedford and exercise control over the activities of the fishermen and the entire supply of fish in those areas, which constitutes substantially the entire supply for the Commonwealth. They have combined to control completely not only the catching but the marketing and price of all such fish in such a manner as to create a monopoly, suppress competition, and unreasonably restrain trade in violation of the common law and of G.L. (Ter.Ed.) c. 93, § 2, in a manner described in detail in the bill which may be summarized as follows: by operating a 'selling room' at Gloucester, prescribing and enforcing rules and regulations governing the same, and determining who shall be admitted and whose bids shall be accepted or rejected; by requiring under penalty of fines and other disciplinary action that all fish brought into Gloucester on vessels manned by the defendants must be sold through the selling room, subject to the rules and regulations of the defendants, and not sold elsewhere to dealers, so as to compel dealers to submit to the defendants' rules in order to obtain necessary supplies of fresh fish, thereby giving the defendants complete control over the entire supply of fresh fish coming into Gloucester and over its price and sale, creating a monopoly, and preventing the free pursuit of the lawful business, trade, or occupation of dealing in fresh fish; by unjustifiably excluding dealers in certain instances from the selling room and refusing to accept their bids, even though they were the highest, thereby depriving such dealers of supplies; by persuading, coercing, and inducing various captains of fishing vessels by intimidations and threats of fines, of shutting off their sources of supplies, and of preventing them from obtaining crews to refuse to sell their catches to the highest bidders, thereby preventing such dealers from obtaining supplies necessary to their business; by artificially raising the price of fresh fish through the promulgation of a rule prohibiting purchasers from deducting from the purchase price of fish more than five per cent for ice or 'trash,' regardless of the amount of ice or 'trash' contained in the fish; by enforcing through fines upon captains and crews restrictions limiting the quantities of fresh fish which could be brought into the three ports named, thereby maintaining the price at unreasonably high levels; and by establishing the price at which fish could be sold at the New England Fish Exchange in Boston in order illegally to control the price of fish in Boston, in support of which fines and penalties will be imposed upon the crew and captain of any vessel that sells its catch for less than the price established by the defendants. By these acts the defendants have unduly enhanced the price of fish and have crippled the fish industry in a manner detrimental to the Commonwealth and the public.

1. The defendants, except one, filed a joint petition for removal of the cause to the United States District Court. [1] The remaining defendant filed his separate petition. Both petitions were denied, and the action of the judge is reported to us. Notwithstanding these denials, the defendants presented the cause to the United States District Court, but that court remanded it to the Superior Court. Commonwealth of Massachusetts v. McHugh, D.C., 71 F.Supp. 516. For reasons included in the opinion of the District Court in that case, which we do not repeat here, we hold that there was no error in denying the petitions for removal. See further Metropolitan Casualty Ins. Co. v. Stevens, 312 U.S. 563, 61 S.Ct. 715, 85 L.Ed. 1044; Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Atlantic Fishermen's Union v. Barnes, D.C., 71 F.Supp. 927; Lawrence Trust Co. v. Chase Securities Corp., 292 Mass. 481, 198 N.E. 905.

2. The defendants filed a paper entitled 'Motion to Dismiss and Quash Bill of Complaint, Subpoenae and Orders of Notice,' wherein are set forth many alleged reasons for dismissing the bill. Such a pleading, apparently designed to usurp or duplicate the office of a demurrer or plea, was improper practice. Rothstein v. Commissioner of Banks, 258 Mass. 196, 155 N.E. 7; E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110, 163 N.E. 883; Tyler v. Boot & Shoe Workers Union, 285 Mass. 54, 55, 188 N.E. 509. The motion is not in such form that it can be identified as in substance either a demurrer or a plea. The defendant also filed a demurrer and pleas. There was no error in denying the motion. The matters of defence to which it refers, in so far as they have substance and are argued, are raised and are considered in connection with the hearing on the merits.

3. The defendants filed a demurrer and two pleas. The pleas are for the most part alike, except that one is called a plea in abatement and the other a plea in bar. All, or practically all, of the matter set up in each of them is matter in bar. The court ordered the demurrer and pleas to be heard with the merits. It made a similar order in the matter of a petition for contempt brought by the Attorney General against the defendants for alleged violation by the defendants of a preliminary injunction issued in this cause. All these matters were heard together. There was no error in adopting this procedure. Pearson v. Mulloney, 289 Mass. 508, 510-511, 194 N.E. 458; Potter Press v. C. W. Potter, Inc., 303 Mass. 485, 491-492, 22 N.E.2d 68.

4. In so far as the demurrer raises questions of form we think it is not well taken, and that the bill is sufficient in form and in detail and adequately presents a case within G.L. (Ter.Ed.) c. 93, §§ 2, 3. See Commonwealth v. Dyer, 243 Mass. 472, 138 N.E. 296. In so far as the demurrer raises issues of substantive law we shall consider them in connection with the same or similar issues raised upon the pleas and the answer and at the hearing on the merits. Nothing would be gained by discussing the pleadings separately.

5. The case was heard at great length, and the evidence is reported. The judge made detailed findings of fact, which are supported by the evidence and which we shall now summarize in so far as seems necessary for the purposes of this decision. We include one or two findings of minor importance which we ourselves make from evidence so clear that we think them indisputable.

The Atlantic Fishermen's Union is an association of men engaged in commercial deep sea fishing from certain North Atlantic ports of the United States. Its stated objects are to improve working conditions and to 'receive a fair share of the profits of our labor commensurate with the dangers and hardships of our occupation.' Its members assume an obligation 'to obey all orders, rules and regulations and decisions' of the union. The union has no locals but maintains headquarters in Boston and so called branches in Gloucester, New Bedford, and New York, all under the immediate jurisdiction of headquarters. It maintains in New Bedford, New York, and Gloucester 'port agents' one of whose duties is to 'see as far as possible that no vessel shall leave port unless it has a full union crew and pays regular union wages and lays.' The union's 'territory' extends from Eastport, Maine, to Norfolk, Virginia, but a great majority of the members and all the officers are residents of Massachusetts. About thirty-five hundred members live in Massachusetts, of whom about seventeen hundred sail out of Gloucester, about one thousand out of Boston, and about eight hundred out of New Bedford or Nantucket. The Massachusetts fishing fleet comprises over five hundred vessels ranging in size from large trawlers carrying crews of about seventeen men to small boats carrying crews of from four to six men. In the year 1946 (the last full year before the hearing...

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