Ex Parte Tigner, No. 19333.

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtChristian
Citation132 S.W.2d 885
Decision Date23 June 1939
Docket NumberNo. 19333.
PartiesEx parte TIGNER.

Page 885

132 S.W.2d 885
Ex parte TIGNER.
No. 19333.
Court of Criminal Appeals of Texas.
June 23, 1939.
Rehearing Denied November 15, 1939.

Page 886

Commissioners' Decision.

Appeal from Criminal District Court No. 2, Harris County; Langston G. King, Judge.

Ex parte habeas corpus proceeding by Herbert Tigner. From a judgment remanding petitioner to custody, he appeals.

Affirmed.

Barksdale Stevens, K. C. Barkley, W. H. Scott, Wilmer B. Hunt, W. H. Colbert, and Herbert G. Tigner, all of Houston, for appellant.

C. K. Bullard, of Dallas, and Dan Moody, of Austin, amici curiæ.

Dan W. Jackson, Cr. Dist. Atty., and Chas. E. Kamp and Spurgeon E. Bell, Asst. Cr. Dist. Attys., all of Houston, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.


Appellant has been charged by indictment with entering into a conspiracy to fix the retail price of beer in violation of the provisions of Chapter 3, Title 19, Penal Code of the State of Texas, 1925. After his arrest and incarceration, he presented a petition to the Honorable Langston G. King, Judge of Criminal District Court No. 2 of Harris County, Texas, praying that a writ of habeas corpus issue to the end that he might be discharged from custody. The writ was issued, a hearing was had, and appellant was thereafter remanded to custody. The case is here on appeal.

It is the contention of appellant that the statute under which he is indicted is repugnant to the equal protection clause of the Fourteenth Amendment of the Constitution of the United States U.S.C.A. because of Article 1642, hereinafter quoted, which excludes from the operation of the statute agricultural products and live stock while in the hands of the producer or raiser. In considering this contention we deem it appropriate to set the statute out at length. It provides:

"Art. 1632. A `trust' is a combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons, or either two or more of them for any or all of the following purposes:

"1. To create, or which may tend to create or carry out, restrictions in trade or commerce or aids to commerce, or in the preparation of any product for market or transportation, or to create or carry

Page 887

out restrictions in the free pursuit of any business authorized or permitted by the laws of this State.

"2. To fix, maintain, increase or reduce the price of merchandise, produce, or commodities, or the cost of insurance, or of the preparation of any product for market or transportation.

"3. To prevent or lessen competition in the manufacture, making, transportation, sale or purchase of merchandise, produce, or commodities, or the business of insurance, or to prevent or lessen competition in aids to commerce, or in the preparation of any product for market or transportation.

"4. To fix or maintain any standard or figure whereby the price of any article or commodity of merchandise, produce or commerce, or the cost of transportation, or insurance, or the preparation of any product for market or transportation, shall be in any manner affected, controlled or established.

"5. To make, enter into, maintain, execute or carry out any contract, obligation or agreement by which the parties thereto bind, or have bound, themselves not to sell, dispose of, transport or to prepare for market or transportation any article or commodity, or to make any contract of insurance at a price below a common standard or figure, or by which they shall agree, in any manner, to keep the price of such article or commodity, or charge for transportation or insurance, or the cost of the preparation of any product for market or transportation, at a fixed or graded figure, or by which they shall, in any manner, affect or maintain the price of any commodity or article, or the cost of transportation or insurance, or the cost of the preparation of any product for market or transportation, between them or themselves and others, to preclude a free and unrestricted competition among themselves or others in the sale or transportation of any such article or commodity or business of transportation or insurance, or the preparation of any product for market or transportation, or by which they shall agree to pool, combine or unite any interest they may have in connection with the sale or purchase of any article or commodity, or charge for transportation or insurance, or charge for the preparation of any product for market or transportation, whereby its price or such charge might be in any manner affected.

"6. To regulate, fix or limit the output of any article or commodity which may be manufactured, mined, produced or sold, or the amount of insurance which may be undertaken, or the amount of work that may be done in the preparation of any product for market or transportation.

"7. To abstain from engaging in or continuing business, or from the purchase or sale of merchandise, produce or commodities partially or entirely within this State, or any portion thereof."

"Art. 1633. A `monopoly' is a combination or consolidation of two or more corporations when effected in either of the following methods:

"1. When the direction of the affairs of two or more corporations is in any manner brought under the same management or control for the purpose of producing, or where such common management or control tends to create a trust as defined in the first article of this chapter.

"2. Where any corporation acquires the shares or certificates of stock or bonds, franchise or other rights, or the physical properties, or any part thereof, of any other corporation or corporations, for the purpose of preventing or lessening, or where the effect of such acquisition tends to affect or lessen competition, whether such acquisition is accomplished directly or through the instrumentality of trustees or otherwise."

"Art. 1634. Either or any of the following acts shall constitute a conspiracy in restraint of trade:

"1. Where any two or more persons, firms, corporations or associations of persons, who are engaged in buying or selling any article of merchandise, produce or any commodity, enter into an agreement or understanding to refuse to buy from or sell to any other person, firm, corporation or association of persons, any article of merchandise, produce or commodity.

"2. Where any two or more persons, firms, corporations or associations of persons, shall agree to boycott or threaten to refuse to buy from or sell to any person, firm, corporation or association of persons for buying from or selling to any other person, firm, corporation or association of persons."

"Art. 1635. Whoever violates any provision of this chapter shall be confined in the penitentiary not less than two nor more than ten years."

Page 888

"Art. 1636. Upon the application of the Attorney General or of any of his assistants, or of any district or county attorney, acting under the direction of the Attorney General, made to any county judge, or any justice of the peace, in this State, stating that he has reason to believe that a witness, who is to be found in the county in which such judge or justice is an officer, knows of a violation of any provision of this chapter, it shall be the duty of such judge, or justice, before whom such application is made, to have summoned and examined such witness in relation to violations of any provision of this chapter, said witness to be summoned as in criminal cases. The said witness shall be duly sworn; and the judge or justice shall cause the statements of the witness to be reduced to writing and signed and sworn to before him; such sworn statement shall be delivered to the attorney upon whose application the witness was summoned. Should the witness so summoned fail to appear or to make statements of the facts within his knowledge under oath, or to sign the same after it has been reduced to writing, he shall be guilty of contempt of court, and may be fined not exceeding one hundred dollars, and may be attached and imprisoned in jail until he makes a full statement of all the facts within his knowledge with reference to the matter inquired about. Any person who shall testify before any judge or justice as provided for in this chapter, or who shall testify as a witness for the State in the course of any statutory proceeding to secure testimony for the enforcement of this law, or in the course of any judicial proceeding to enforce the provisions of this chapter, shall not be subject to indictment or prosecution for any transaction, matter or thing concerning which he shall so give evidence, documentary or otherwise."

"Art. 1637. If any person shall enter into an agreement or understanding of any character to form a trust, or to form a monopoly, or to form a conspiracy in restraint of trade, as these offenses are defined in this chapter, or shall form a trust, monopoly or conspiracy in restraint of trade, or shall be a party to the formation of a trust or monopoly or conspiracy in restraint of trade, or shall become a party to a trust or monopoly or conspiracy in restraint of trade, or shall do any act in furtherance of or aid to such trust or monopoly or conspiracy in restraint of trade, he shall be confined in the penitentiary not less than two nor more than ten years."

"Art. 1638. If any person, shall, as a member, agent, employee, officer, director or stockholder of any business, firm, corporation or association of persons, form, in violation of the provisions of this chapter, or shall operate, in violation of such provisions, any such business, firm, corporation or association formed in violation of this chapter, or shall make any sale, or purchase, or any other contract, or do business for such business, firm, corporation or association, or shall do any other act which has the effect of violating or aiding in the violation of any provision of this chapter, or shall, with the intent or purpose of driving out competition or for the...

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10 practice notes
  • Community Public Service Co. v. James, No. 9320.
    • United States
    • Court of Appeals of Texas
    • November 18, 1942
    ...beyond the power of the legislature to prescribe. Exemption 3 was sustained in the recent case of Ex parte Tigner, 139 Tex.Cr. R. 452, 132 S.W.2d 885, affirmed Tigner v. State, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124, 130 A.L.R. We overrule appellant's second point on two grounds: 1. The ......
  • Rucker v. State, No. 32719
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 25, 1961
    ...1233; Stansbury[170 Tex.Crim. 489] v. State, 133 Tex.Cr.R. 411, 109 S.W.2d 1279, 111 S.W.2d 717, 719; Ex parte Tigner, 139 Tex.Cr.R. 452, 132 S.W.2d 885, affirmed Tigner v. State of Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124, rehearing denied 310 U.S. 659, 60 S.Ct. 1092, 84 L.Ed. 1422......
  • Ex Parte Frye, No. 21883.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 10, 1941
    ...reasonable exercise of legislative functions within the purview of the Constitution. In the case of Ex parte Tigner, 139 Tex. Cr.R. 452, 132 S.W.2d 885, this court held that the equal protection clause of the Federal Constitution does not take from the State the power to classify in the exe......
  • Slater v. City of El Paso, No. 4836
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • October 24, 1951
    ...controlling rules relative to class legislation were announced by our Court of Criminal Appeals in Ex parte Tigner, 139 Tex.Cr.R. 452, 132 S.W.2d 885, affirmed Tigner v. State, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124, which upheld our Anti-Trust Statute, Art. 1642, Penal Code, as against ......
  • Request a trial to view additional results
10 cases
  • Community Public Service Co. v. James, No. 9320.
    • United States
    • Court of Appeals of Texas
    • November 18, 1942
    ...beyond the power of the legislature to prescribe. Exemption 3 was sustained in the recent case of Ex parte Tigner, 139 Tex.Cr. R. 452, 132 S.W.2d 885, affirmed Tigner v. State, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124, 130 A.L.R. We overrule appellant's second point on two grounds: 1. The ......
  • Rucker v. State, No. 32719
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 25, 1961
    ...1233; Stansbury[170 Tex.Crim. 489] v. State, 133 Tex.Cr.R. 411, 109 S.W.2d 1279, 111 S.W.2d 717, 719; Ex parte Tigner, 139 Tex.Cr.R. 452, 132 S.W.2d 885, affirmed Tigner v. State of Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124, rehearing denied 310 U.S. 659, 60 S.Ct. 1092, 84 L.Ed. 1422......
  • Ex Parte Frye, No. 21883.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 10, 1941
    ...reasonable exercise of legislative functions within the purview of the Constitution. In the case of Ex parte Tigner, 139 Tex. Cr.R. 452, 132 S.W.2d 885, this court held that the equal protection clause of the Federal Constitution does not take from the State the power to classify in the exe......
  • Slater v. City of El Paso, No. 4836
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • October 24, 1951
    ...controlling rules relative to class legislation were announced by our Court of Criminal Appeals in Ex parte Tigner, 139 Tex.Cr.R. 452, 132 S.W.2d 885, affirmed Tigner v. State, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124, which upheld our Anti-Trust Statute, Art. 1642, Penal Code, as against ......
  • Request a trial to view additional results

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