Hammond Packing Company v. State

• Court: Supreme Court of Arkansas
• Writing for the Court: HILL, C. J.
• Citation: 100 S.W. 407,81 Ark. 519
• Parties: HAMMOND PACKING COMPANY v. STATE
• Decision Date: 14 January 1907

100 S.W. 407

81 Ark. 519

HAMMOND PACKING COMPANY
v.
STATE

Supreme Court of Arkansas

January 14, 1907

[100 S.W. 408]

Appeal from Pulaski Circuit Court; Edward W. Winfield, Judge; affirmed.

This was an action instituted in the name of the State of Arkansas upon the relation of the Attorney General against the Hammond Packing Company under the anti-trust act, charging the defendant with being a member of a pool, trust, combination or conspiracy to fix and maintain prices in violation of the terms of the act, and seeking to recover a money penalty and to forfeit the right of the defendant to do business in the State.

The complaint alleged that defendant is a foreign corporation, and that on certain dates mentioned, while engaged in business in Arkansas, it created, entered into and became, and was then, a member of and a party to a pool, trust, agreement, combination, confederation and understanding, with certain other corporations, partnerships, individuals, persons and associations of persons, engaged in lines of business similar in most respects and objects to that conducted by the said defendant, amongst whom were Swift & Co., the Cudahy Packing Company, the Armour Packing Company, Nelson Morris & Co. and Armour & Co., to regulate and fix the selling price of certain articles of manufacture, merchandise, commodity and convenience, towit, the commercial products of slaughtered live stock, and to maintain such price when so regulated and fixed, contrary to the form of the statute in such cases made and provided, and in violation thereof.

* * * *

"Wherefore plaintiff alleges that said defendant, by transacting and conducting in this State the business of selling the products, articles and commodities aforementioned in this State, while a member of and a party to such pool, trust, combination, and understanding, as aforesaid, and by being a member of and a party to such pool, trust, combination and understanding as aforesaid, while transacting such business in this State, as aforesaid, violated the provisions of said act, and thereby forfeited its right and privilege thereafter to do business in this State; and that by committing such prohibited acts upon the 26th, 27th, 28th, 29th, 30th and 31st days of March, 1905, the said defendant became liable to the plaintiff in the sum of thirty thousand dollars, and an action accrued to the plaintiff to recover said sum according to the provisions of said act.

"The premises considered, plaintiff prays judgment that the right and privilege of said defendant to do business in this State be declared forfeited, and that plaintiff have and recover of said defendant the sum of thirty thousand dollars, and all her costs in this suit expended, together with all the expenses of the Attorney General in prosecuting same, as provided in said act, and for all other and proper relief."

The defendant interposed a demurrer on the following grounds:

"1. Because the allegations of the said paragraph do not constitute a cause of action against the defendant.

"2. Because it does not appear from the allegations of the said paragraph that the defendant had created, entered into, or become a member of, or a party to, any pool, trust, agreement, combination, confederation, or understanding with any corporation, partnership, individual, or association of persons in the State of Arkansas, or to regulate or fix the price at which any article of manufacture, merchandise, commodity, or convenience should be sold within the State of Arkansas.

"3. Because the statute upon which the action is brought attempts to impose a penalty for acts done outside the State of Arkansas, and is unconstitutional and void under the Fourteenth Amendment to the Constitution of the United States, and under section 21, article 2, of the Constitution of Arkansas."

With its demurrer the defendant filed an answer specifically denying the allegations of the complaint.

The court overruled a motion by defendant to make the allegations of the complaint more definite and certain so as to show when the pool, trust, agreement, confederation, combination or understanding charged in the complaint was made, where it was made, what its terms and conditions were, and in what respect it constituted a pool, trust, agreement, combination, confederation or understanding in violation of the statute, and to show the article or articles embraced within the terms of the pool, trust, combination or confederation.

On September 5, 1906, plaintiff filed its motion for the appointment of a commissioner to take depositions in Chicago, and for an order upon the defendant to produce before him S. A. McLain, Jr., and fifteen other designated persons alleged to be officers and employees of the defendant residing in Chicago, Illinois, and all books, papers and documents in the possession or under the control of said persons, or any of them, relating to the issues in the case.

Defendant filed its motion for a rule on plaintiff to set out specifically what it expected to prove by each witness whose production was asked for, and also to set out specifically the particular description of any books it desired to be produced, with the name of the witness who was expected to produce it, and that it be required specifically to state wherein any of said books were material to the issues in this case. The Attorney General, on behalf of the plaintiff, filed an affidavit stating that he did not know just what could be proved by any one of the witnesses asked for, nor exactly what information was contained in any book or paper which was material in the case. The court overruled this motion, and to its action in so doing the defendant excepted.

On September 10 the court entered an order appointing Lyle D. Taylor commissioner to take the depositions of the witnesses named in the motion of plaintiff in Chicago. The order directed the production of any books, papers, and documents in the possession or under the control of either of said persons relating to the merits of said cause, or to any defense therein, and directing and impowering said commissioner to examine orally under oath each and all of said persons or such thereof as may be brought before him for examination. Provided, that at such examination the witnesses and books aforesaid shall not be required to be produced at any one time in such numbers as to interfere with the operation of the defendant's business. It is further ordered that said commissioner shall, immediately upon the receipt of his commission above granted, issue a notice in writing, directed to the president or some officer or agent of the defendant corporation, notifying such president, officer or agent that the testimony of the person above named is desired, and requesting such president, officer or agent to have such persons, together with such books, papers and documents as above referred to, at the office of the said Lyle D. Taylor, 1301 Ashland Block, 59 Clark Street, in the city of Chicago, Illinois, on the 20th day of September, 1906, at 10 o'clock, A. M., then and there to testify, and to have such persons to attend at such place from day to day or from time to time, if adjournment be had, until the taking of their testimony herein be completed, and at such times to produce said books, papers and documents whenever demanded. And it is further ordered that counsel for the respective parties, or either of them, be, and they are, hereby authorized and allowed to attend before said commissioner upon the execution of the commission hereinbefore granted, and to orally examine and cross-examine said witnesses, or either of them; such oral examination and cross-examination to be reduced to writing by type by the commissioner, signed by said witnesses, attested in due form of law, and annexed to and returned with the commission hereinbefore ordered to the clerk of the Pulaski Circuit Court."

On October 8, the plaintiff filed its motion, reciting its motion for the appointment of a commissioner, the order appointing the commissioner, the service of notice by the commissioner for the production of the witnesses, and the books, papers and documents called for in the order appointing him, and the fact that at the time and place fixed the defendant refused to produce the witnesses called for, or any of the books, papers or documents, and thereupon asked the court to strike out all answers, demurrers, motions, replies or other pleadings filed in the cause, and to render a judgment in favor of the plaintiff by default.

The plaintiff, in support of its motion to strike the pleadings of the defendant, offered in evidence its motion to appoint a commissioner, the affidavit of the Attorney Gereral in support thereof, the order of the court appointing the commissioner, and the commission issued, with the return of the commissioner thereon.

The defendant, in support of its response, offered in evidence its motion to make the complaint more definite and certain, and the order of the court thereon, and its motion to require the depositions taken out of Pulaski County to be taken upon interrogatories and the order of the court overruling said motion, and its motion to require the plaintiff to make its motion for the appointment of a commissioner more definite and certain, so as to show the names of the persons to be examined, what the plaintiff expected to prove by each of them, the books, papers and documents that it desired produced, and what they contained that was material to the issues of the case, with the court's order overruling the same.

In the return of Lyle D. Taylor, commissioner, which was introduced in evidence by plaintiff upon the hearing of the motion to strike the pleadings and render judgment by default, is a letter of the defendant stating its reasons for its failure to comply with the order, which is as follows:

"Lyle D. Taylor, Commissioner, Ashland Block,...