Delmas v. Pascagoula St. Ry. & Power Co.

• Citation: 60 So. 210,103 Miss. 235
• Decision Date: 21 October 1912
• Docket Number: 15,321
• Parties: H. E. DELMAS v. PASCAGOULA ST. RY. & POWER CO
• Court: Mississippi Supreme Court

60 So. 210

103 Miss. 235

H. E. DELMAS v. PASCAGOULA ST. RY. & POWER CO

No. 15,321

Supreme Court of Mississippi

October 21, 1912

APPEAL from the circuit court of Jackson county, HON. T. H. BARRETT Judge.

Suit by H. E. Delmas against the Pascagoula Street

Railway & Power Company. From a judgment sustaining a demurrer to plaintiff's declaration, he appeals.

The declaration filed by the plaintiff alleged that the defendant was engaged in the manufacture and sale of ice in the cities of Pascagoula and Moss Point, which are only three or four miles apart, and are connected by trolley, and that defendant on twenty-eight days in the month of May, 1909, sold ice to certain persons in Moss Point, where plaintiff was also engaged in the sale of ice, at a price below the normal cost of production of ice in said city of Moss Point, with the purpose of destroying plaintiff's business, and in an attempt to destroy competition in the sale of ice, in violation of chapter 119 of the Laws of 1908, amendatory to section 5002 of the Code of 1906. Under this count, plaintiff claims actual damages amounting to nine hundred dollars and penalty of five hundred dollars for each day, or fourteen thousand dollars for the twenty-eight days named in the declaration.

In the second count of the declaration plaintiff charges that on thirty days in said month of May, 1909, defendant sold ice in the city of Moss Point for a price less than defendant sold ice on said days in the city of Pascagoula, the difference of freight and other expenses considered, with intent to destroy plaintiff's business and to destroy competition, and on this count he claims actual damages in the sum of nine hundred dollars and statutory damages in the sum of fifteen thousand dollars.

Reversed and remanded.

Denny &amp Denny, for appellant.

Chapter 119 of the Acts of 1908, amending section 5002, Code of 1906 is not in violation of section 198 of the Constitution of Mississippi. The legislature is there directed to enact laws to prevent all trusts, combinations, contracts, and agreements inimical to the public welfare. The direction of the Constitution includes all trusts regardless of the nature of formation thereof and responding thereto, within its powers, the legislature enacted chapter 119 of the Acts of 1908.

There appears to have been no suggestion or contention that chapter 119, Acts of 1908, is violative of the Constitution until the instant case. The court, in Cumberland T. & T. Co. v State ex rel. Attorney General, 50 So. 446, refers to such act of the legislature as existing law without intimation or suggestion whatever that same is unconstitutional.

In the case of Retail Lumber Dealers Ass'n. v. State, 48 So. 1023, the court, citing the case of Barataria Canning Co. v. Joulian, 80 Miss. 555, 31 So. 961, stated that it was held in that case that the words "inimical to the public welfare" are not an added element of the definitions already given in the separate sections of this statute, but that the offense is complete when shown to come within the terms of any section of the statute, as thereby the legislature, in whom the discretion is vested, by its very declaration determines said act to be inimical to the public welfare."

Chapter 119, Acts 1908, provides that, as additional contract or combinations not allowed by law, "any corporation, domestic or foreign, or individual, partnership or association of persons whatsoever, (J) who shall restrain, or attempt to restrain the freedom of trade or production; (M) or who shall destroy or attempt to destroy competition in the manufacture or sale of a commodity, by selling or offering same for sale at a price below the normal cost of production; (N) or who shall. destroy or attempt to destroy competition in the manufacture or sale of a commodity, by selling or offering the same for sale at a lower price at one place in this state than another, differences of freight and other necessary expenses of sale and delivery considered, shall be deemed and held a trust and combine within the meaning and purpose of this act, and chapter 145 of the Code of 1906, etc.

The Constitution provides for prohibition of all trusts. The legislature, cognizant of the means adopted by large corporations throughout this country for stifling competition and acquiring monopolies of trade, a form of trust equally as vicious as combinations in oppressing individuals and the public generally, responded to the Constitution in providing above and there is not a single feature of the act that contains a suggestion in violation of the Constitution.

The second amended declaration states a condition within the words and meaning of the Acts of 1908 and the circuit court committed grievous error indeed in adjudging such statute in violation of chapter 198 of the Constitution.

The court committed equally as grave error in holding that plaintiff could not recover five hundred dollars for each day of the commission of the acts complained of.

Section 5007 of Code 1906 provides that "any person injured or damaged by a trust and combine as herein defined, or its effects direct or indirect, may, in each instance of such injury and damage, recover the sum of five hundred dollars, and all actual damages." Section 5004 of the Code, providing penalty for violation, fixes each day as a separate offense and such rule should be applied in the instant case. However, we have charged separate and distinct instances of injuries to plaintiff, the aggregate instances coinciding with the number of days upon which same were committed and certainly the instances or days mentioned in the declaration do not comprise one continuous act.

The law regards the conduct of appellee, as set forth in the declaration, as heinous and of the kind that merits severe punishment. To permit appellee to drive competitors out of business by a series of unlawful acts as in the instant case and then suffer only five hundred dollars loss in damages for all of its separate and distinct acts would be to license such concerns as, in most communities, it would be worth considerably more than five hundred dollars to have a monopoly of the ice trade and consequent right to fix prices always to the end that it would be more than compensated for the losses in damages paid and in its business while stifling its competitor.

In Railroad Co. v. Searles, 85 Miss. 520, 37 So. 939, where the circuit court had given judgment for five hundred dollars for each car that the association had refused to deliver to Searles at his warehouse, the court stated that as the association was not a trust within the meaning of the law "the appellant, by becoming a member thereof, did not subject itself to the penalties prescribed, and hence appellant was not entitled to recover the statutory penalty by the statute to every one injured or damaged by the operation of a trust." While the opinion rendered does not directly say so it seems plain to us that the act of the circuit court in awarding damages would have been affirmed had the car service association been deemed a trust.

Ford, White & Ford, for appellee.

The plaintiff's right to sue for and recover any penalty because of a violation of the statutes of Mississippi relating to trust and combine is wholly dependent on his being able to show a legal injury or damage, for this right is controlled by section 5007 of the Annotated Code of 1906, which is in the following words:

"Actions Against for Damages." Any person injured, or...