In re The Petition of A. E. Pinkney

• Decision Date: 09 July 1891
• Citation: 27 P. 179,47 Kan. 89
• Parties: In the matter of the Petition of A. E. PINKNEY et al. for a writ of Habeas Corpus
• Court: Kansas Supreme Court

27 P. 179

47 Kan. 89

In the matter of the Petition of A. E. PINKNEY et al. for a writ of Habeas Corpus

Supreme Court of Kansas

July 9, 1891

Decided July, 1891.

Original Proceeding in Habeas Corpus.

ON May 12, 1891, a complaint was made charging that the petitioners did, in Leavenworth county, on the same day, "unlawfully agree and combine together and enter into, and then and there were in a contract, agreement and combination with each, and each of them with certain other persons and corporations, the names of which are now unknown to this affiant, which said agreement, contract and combination is and was designed and intended to control the cost and rate of insurance within said state by threatening persons and affiant in the insurance business with injury to their [said persons'] business, if such persons refused to demand the same cost and rate as should be named by said defendants and by them and the other persons and corporations with whom they have combined, in violation of the laws of Kansas." A warrant was issued upon this complaint in similar terms, and the petitioners appeared before the justice issuing the warrant without being arrested, where a preliminary examination was had, at the conclusion of which the petitioners were held for appearance and trial at the next term of the district court and bail was fixed at $ 200 each. The petitioners refusing to give a recognizance, a commitment was issued, under which they were taken into the custody of the sheriff, and from this custody they seek release by the writ of habeas corpus. Other facts are stated in the opinion of the court, filed on July 9, 1891.

Case remanded.

Thomas P. Fenlon, and E. F. Ware, for petitioners.

Lucien Baker, and J. H. Atwood, for respondent.

JOHNSTON J., HORTON, C. J. VALENTINE, J., concurring.

OPINION

JOHNSTON, J.:

The only question presented in behalf of the petitioners is the validity of what is known as the "antitrust law," so far as it relates to the business of insurance. (Laws of 1889, ch. 257.) The contention is, that the portion of the act pertaining to insurance is not clearly expressed in the title, as required by § 16, article 2, of the constitution, and is therefore void. The title is: "An act to declare unlawful trusts and combinations in restraint of trade and products, and to provide penalties therefor." Section 1 of that act embraces the provision with reference to the business of insurance, and is as follows:

"SECTION 1. That all arrangements, contract, agreements, trusts or combinations between persons or corporations, made with a view or which tend to prevent full and free competition in the importation, transportation or sale of articles imported into this state, or in the product, manufacture or sale of articles of domestic growth or product of domestic raw material, or for the loan or use of money, or to fix attorneys' or doctors' fees, and all arrangements, contracts, agreements, trusts or combinations between persons or corporations designed or which tend to advance, reduce or control the price or the cost to the producer or to the consumer of any such products or articles, or to control the cost or rate of insurance, or which tend to advance or control the rate of interest for the loan or use of money to the borrower, or any other services, are hereby declared to be against public policy, unlawful, and void."

Section 3 of the act provides as follows:

"SEC. 3. That all persons entering into any such arrangement, contract, agreement, trust, or combination, or who shall, after the passage of this act, attempt to carry out or act under any such arrangement, contract, agreement, trust, or combination described in sections 1 or 2 of this act, either on his own account or as agent or attorney for another, or as an officer, agent or stockholder of any corporation, or as a trustee, committee, or in any capacity whatever, shall be guilty of a misdemeanor, and upon conviction thereof shall be subject to a fine of not less than $ 100 and not more than $ 1,000, and to imprisonment not less than 30 days and not more than six months, or to both such fine and imprisonment, in the discretion of the court."

It thus appears that the body of the act contains a specific provision for the prevention of trusts or combinations which tend to control the cost or rate of insurance, and to punish all persons who enter into or attempt to carry out such trusts or combinations.

The question presented is, does the word "trade," used in the title, fairly indicate and include the provisions of the act with reference to insurance? It is argued that the usual meaning of the word should govern, and in that sense it has reference to the business of selling or exchanging some tangible substance or commodity for money, or the business of dealing by way of sale or exchange in commodities; and it is said that the use of the word in connection with that of "products," in the title, qualifies the meaning of "trade," and makes it all the more apparent that the construction contended for is the correct one. This is the commercial sense of the word, and possibly may be the most common signification which is given to it, but it is not the only one, nor the most comprehensive meaning in which the word is properly used. In the broader sense, it is any occupation or business carried on for subsistence or profit. Anderson's Dictionary of Law gives the following definition: "Generally equivalent to occupation, employment, or business, whether manual or mercantile; any occupation, employment or business carried on for profit, gain, or livelihood, not in the liberal arts or in the learned professions." In Abbott's Law Dictionary the word is defined as "an occupation, employment or business carried on for gain or profit." Among the definitions given in the Encyclopaedic Dictionary is the following: "The business which a person has learnt, and which he carries on for subsistence or profit; occupation; particularly employment, whether manual or mercantile, as distinguished from the liberal arts or the learned professions and agriculture." A like definition of the word is given in the Imperial Dictionary.

Rapalje & Lawrence's Law Dictionary, to which we are cited by the petitioners, gives the restricted definition "Traffic; commerce; exchange of goods for other goods, or for money." It is the only authority, however, which uses the word in its commercial sense alone. Bouvier limits the meaning to commerce and traffic and the handicraft of mechanics; and we are also cited by the petitioners to the definition given by Webster, which specifically is: "The act or business of exchanging commodities by barter, or by buying and selling for money; commerce; traffic; barter." This author, however, gives the more enlarged meaning of the word as well, as follows: "The business which a person has learned, and which he engages in, for procuring subsistence, or for profit; occupation; especially mechanical employment as distinguished from the liberal arts, the learned professions, and agriculture; as we speak of the trade of a smith, of a carpenter, or mason, but not now of the trade of a...