Dukate v. Adams

• Decision Date: 06 May 1912
• Docket Number: 14755
• Citation: 101 Miss. 433,58 So. 475
• Court: Mississippi Supreme Court
• Parties: W. K. M. DUKATE ET AL. v. WIRT ADAMS, STATE REVENUE AGENT

58 So. 475

101 Miss. 433

W. K. M. DUKATE ET AL. v. WIRT ADAMS, STATE REVENUE AGENT

No. 14755

Supreme Court of Mississippi

May 6, 1912

APPEAL from the chancery court of Harrison county, HON. T. A. WOODS Chancellor.

Suit by Wirt Adams, state revenue agent against W. K. M. Dukate and others. From a judgment overruling a demurrer to the bill defendants appeal.

The facts are fully stated in the opinion of the court.

Decree affirmed and cause remanded.

Jeff Truly, Ford, White & Ford and Edwin Thurrack, for appellant filed an elaborate brief fully covering all the points in the case but too long for publication.

E. J Gex and Flowers, Alexander and Whitfield, for appellee, filed an extended brief, too long for publication.

Argued orally by E. T. Merrick and Jeff Truly, for appellant.

Argued orally by J. N. Flowers, for appellee.

OPINION

SMITH, J..

Appellee filed his bill in the court below, alleging that appellants, under the guise of a limited partnership, had entered into a trust and combine for the purpose of controlling the trade in sea foods in Mississippi, and praying that this partnership be declared to be an unlawful trust and combine, and that appellants be decreed to pay to the state the statutory penalty for having entered into such trust and combine. To this bill a demurrer was interposed and overruled, and this appeal granted to settle the principles of law governing the case.

The points relied upon by appellants to obtain a reversal of the decree rendered in the court below may be reduced to three: First, that chapter 204 of the Laws of 1908 is unconstitutional, in so far as it attempts to confer jurisdiction upon the chancery court to hear and determine suits arising out of violations of the anti-trust law, for the reason that this anti-trust law makes the formation of a trust or combine a crime, and that under the Constitution the criminal laws cannot be enforced by the chancery court; second, that the bill is multifarious, for the reason that it unites two distinct and unconnected matters--that is, it seeks to have this limited partnership declared unlawful, and also to have penalties awarded for the violation of the anti-trust statute; third, that the revenue agent is without power to institute this suit.

Under section 147 of the Constitution, the question of the constitutionality of chapter 204 of the Laws of 1908 does not arise, unless we should reverse the decree of the court below for some reason other than that the cause was not of equity jurisdiction. It is true that this is an appeal to settle the principles of the case; but this section of the Constitution, nevertheless, applies, for it is not limited to appeals from final decrees. Cazeneuve v. Curell, 70 Miss. 521, 13 So. 32.

But it is said that this is a criminal and not a civil case, that, consequently, section 147 of the Constitution does not apply, and that the case of Grenada Lumber Co. v. State, 98 Miss. 536, 54 So. 8, which held to the contrary, was erroneously decided. Out of deference to counsel, we have re-examined this matter, in view of all of the arguments advanced by them, and see no reason to recede from the views expressed in the Grenada Lumber Co. case. In reaching this conclusion, we have not left out of view the fact that in section 5004 of the Code the violation of the anti-trust law is referred to as an "offense," that section 1589 of the Code provides that "the term 'offense,' when used in any statute, shall mean any violation of law liable to punishment by criminal prosecution," and that by the last sentence of section 5004 it is made "the duty of the several circuit judges of the state to specially call attention of the grand jury of their respective districts to this provision."

It may be that a person violating the anti-trust law is liable to punishment by criminal prosecution, as to which we express no opinion; but he certainly is not by reason of anything contained in section 5004, which imposes simply a civil liability. The language, "to be recovered by an action in the name of the state, at the relation of the attorney-general or district attorney," can be appropriately used only with reference to a civil case. Civil suits brought by the attorney-general or district attorney in their official capacity for the benefit of other parties are always brought in the name of such parties on the relation of the attorney-general or district attorney, as the case may be. Criminal prosecutions, under section 27 of the Constitution, and the laws enacted pursuant thereto, must be commenced, if in the circuit court, by indictment, and, if in the court of a justice of the peace, by an affidavit. In neither of these instances is the action thereby begun a proceeding "at the relation of the attorney-general or district attorney."

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