R. J. Williams Furniture, Co. v. McComb Chamber of Commerce

• Decision Date: 25 April 1927
• Docket Number: 26404
• Citation: 147 Miss. 649,112 So. 579
• Court: Mississippi Supreme Court
• Parties: R. J. WILLIAMS FURNITURE, CO. et al. v. MCCOMB CHAMBER OF COMMERCE et al. [*]

112 So. 579

147 Miss. 649

R. J. WILLIAMS FURNITURE, CO. et al. v. MCCOMB CHAMBER OF COMMERCE et al. ^[*]

No. 26404

Supreme Court of Mississippi

April 25, 1927

Division B

Suggestion of Error Overruled May 16, 1927.

APPEAL from chancery court of Pike county HON. R. W. CUTRER Chancellor.

Suit by the R. J. Williams Furniture Company and others against the McComb Chamber of Commerce and others. Decree for defendants and complainants appeal. Affirmed.

Affirmed.

Price, Cassedy & Jackson, for appellants.

I. This trades day scheme is discriminatory in its operation and as such is in restraint of trade, a monopoly, and against public policy, inimical to the public welfare and therefore subject to injunctive relief. Mississippi Constitution of 1890, sec. 198; chapter 69, Hemingway's Code, as amended by chapter 182, Laws of 1926.

The scheme as outlined in the advertisements and in the rules and regulations provided that only members of the chamber of commerce, and only those members in good standing, could participate in the trades day scheme. This scheme places a penalty on those merchants not members of the association.

The scheme as outlined would hamper those merchants who were not members of the chamber of commerce in the carrying on of their business, and has materially injured them, as revealed by the testimony of T. B. Butler, and would drive competition out of the retail business in the city of McComb. See Y. & M. V. Railroad Co. v. Searles, 85 Miss. 520, 37 So. 939; 68 L. R. A. 715; Retail Lumber Dealers Association v. State, 95 Miss. 337, 48 So. 1021.

The form of this attempt at monopoly under the authorities cited, does not matter, but the court should inquire into the intent of the association, which intent is the controlling feature. See Cumberland Telephone & Telegraph Co. v. State, 54 So. 570; Barrateria Canning Co. v. Joulian, 80 Miss. 555, 31 So. 961; Sivley v. Cramer, 105 Miss. 13, 61 So. 653; McCall v. Parsons, May, Oberschmidt Co., 107 Miss. 856, 66 So. 274.

As to the awarding of damages to the complainants in a case of this kind, we refer the court to Delmas v. Pascagoula Street Railway & Power Co., 103 Miss. 235, 60 So. 210; Crescent Oil Co. v. State, 83 So. 680; Brown v. Staple Cotton Co-operative Ass'n, 96 So. 849. See Monopolies, secs. 19 and 20, 19 R. C. L. 33, 6 R. C. L., p. 786, and authorities there cited; Addyston Pipe, etc., Co. v. U.S. 175 U.S. 211, 20 S.Ct. 96, 44 U.S. (L. Ed.) 136; Kosciusko Oil Mill Co. v. Wilson Cotton Oil Co., 90 Miss. 551, 43 So. 435, L. R. A. (N. S.) 1053.

An injunction is proper and should have been granted. See Griffith's Miss. Chancery Practice, sec. 435, and cases there cited.

II. This trades day scheme is injurious to the public morals and damages private interests, therefore it is a public nuisance producing a private injury, and subject to abatement by injunction. Griffith's Miss. Chancery Practice, sec. 434, p. 456; 96 Miss. 544, 51 So. 897; 70 Miss. 602, 13 So. 237; 11 L. T. A. 84 and note; 90 Miss 440, 43 So. 475; 42 F. 561; 3 Woods 222; 64 Miss. 483, 1 So. 625; 119 Miss. 500, 81 So. 169. See especially 57 Am. St. Rep. 443; also 71 S.W. 563, 31 Tex. Civ. App. 26; Green et al. v. Lake, 54 Miss. 540; Quintini v. Board, etc., of Bay St. Louis, 64 Miss. 483, 1 So. 625, 60 Am. Rep. 62; and the following Mississippi cases; 63 Miss. 373; 69 Miss. 31, 10 So. 448; 26 Miss. 84; 59 Am. Dec. 244; Wood et al. v. Ratliff et al., 103 So. 356; Pearman v. Wiggins et at., 103 Miss. 4, 60 So. 91.

III. This trades day scheme, gift enterprise, or cooperative advertisement, as it is called, is a lottery or gambling enterprise, and its operation is violative of the laws and therefore should be abated by injunction. Hemingway's Code, sections 1009 to 1118, inclusive. There are only three cases in Mississippi on the question of lotteries, none of which has any particular bearing on the case at bar, but in them are announced some of the principles of law relative to the operation of a lottery and its definition. Those cases are 96 Miss. 461, 50 So. 495; 69 Miss. 215, 10 So. 577; 48 Miss. 147, 12 Am. R. 367.

For approved definitions of a lottery we refer to 38 C. J. 284, et seq.; also 17 R. C. L. 1208. There are three essential elements before a scheme is said to constitute a lottery. They are: 1. The offering of a prize. 2. The awarding of a prize by chance. 3. The giving of a consideration for an opportunity to win a prize. 38 C. J., p. 289, sec. 2; 17 R. C. L., p. 1222, sec. 10.

The scheme adopted by the Chamber of Commerce of McComb contains all three of these elements. The attention of the court is called to the following citations where similar schemes have been held to be lotteries and in which cases there is contained a full discussion of the question involved: 18 Colo. 321, 32 P. 821, 36 Am. St. Rep, 292; 117 Ga. 599, 44 S.E. 320; 97 A. S. R. 177, 62 L. R. A. 93; 92 N.W. 763, 60 L. R. A. 448; 66 Neb. 349, 103 A. S. R. 706; 147 U.S. 449, 13 S.Ct. 409, 37 L.Ed. 237; 88 Ala. 196, 7 So. 338; 16 A. S. R. 36; 112 Ga. 20, 37 S.E. 96, 81 A. S. R. 17; 179 N.Y. 164, 71. N.E. 1058, 106 A. S. R. 586; 91 Ark. 205, 120 S.W. 979, 134 A. S. R. 67, 23 L. R. A. (N. S.) 626, 16 Am. Cas. 506; 74 Md. 565, 22 A. 4, 28 A. E. R. 268, 12 L. R. A. 425; 86 Misc. 255-257, 148 N.Y.S. 375; also 256 S.W. 384, 162 P. 1100; 204 P. 1030; 204 P. 1029; 147 U.S. 449; 13 S.Ct. 409; 37 U.S. (L. Ed.) 237; Dunn v. People, 40 Ill. 465; Taylor v. Smetten, L. R. 11, Q. B. Div. 207; The Colorado case, 18 Colo. 321, 32 P. 821, 76 Am. St. Rep. 292; Yellowstone Kit v. State, 88 Ala. 196, 7 So. 31, 16 A. S. R. 38 and note; State v. Mumford, 73 Mo. 647, 39 Am. Rep. 532; Huddelson v. State, 94 Ind. 426, 48 Am. Rep. 171; Ballock v. State, 73 Md. 125, Am. St. Rep. 559.

The case most nearly on all fours with the case at bar is that of Davenport v. City of Ottawa, 54 Kans. 711, 45 Am. St. Rep. 303.

Williams & Hunt, for appellees.

I. Appellants have no standing in court, for the reason that the acts complained of, and which they sought to enjoin, are now entirely complete, as the last drawing was held on December 27, 1926. The rule being "that where an injury is entirely complete, and there be no further continuance of it, an injunction is not available. Rights already lost, and wrongs already perpetrated, are beyond the scope of injunctive relief." McDaniel v. Hurst, 92 Miss. 197, 41 So. 381, S. C. 88 Miss. 778; Dixon v. Green County, 76 Miss. 794; 25 So. 665; Ruling Case Law 45, footnote 40; U. S. Lacassagne v. Chapino, 144 U.S. 119; 12 S.Ct. 659; 36 L.Ed. 368; Nat, Circle D. I. v. Nat. Order D. I., 252 F. 815, and other authorities there listed.

Appellants' argument in support of this assignment, "that only members of the chamber of commerce, and only those members in good standing could participate in the trades day scheme," is wholly untrue and unfair in fact. However, if appellants' statement was supported by evidence, and it is not, we submit that there would still be nothing in this plan, violative of said section, and in support thereof we cite Yazoo, etc., Railroad v. E. R. Seales, 85 Miss. 520, 37 So. 939; Sivley et al. v. Cramer, 105 Miss. 13, 61 So. 653; Yazoo, etc., R. R. Company v. Crawford, 107 Miss. 355, 65 So. 462; McCall Company v. Parsons-May-Oberschmidt Co., 107 Miss. 865, 66 So. 274.

II. Appellant alleged that "The trades day scheme is injurious to the public morals, and damaging to private interests, and is therefore a public nuisance, producing private injuries, and subject to abatement by injunction."

This presented a question of fact, for the adjudication of the court, and the proof as offered by appellees being so abundant, overwhelming, and convincing, the court unhesitatingly and immediately adjudged this controverted question of fact adversely to appellants. 32 C. J., page 47.

III. This scheme is not a lottery, a gambling enterprise, and its operation violative of the laws of the state. See section 1009, Hemingway's Code, entitled "Lotteries." 17 R. C. L., page 1222; Yellow Stone Kit v. State, 88 Ala. 196, 70 So. 338, 16 A. S. R. 38, and note, 7 L. R. A. 599, and note; Cross v. People, 18 Colo. 321, 32 P. 821, 36 A. S. R. 292, and note, Notes: 10 L. R. A. 60, 3 British Rul. Cas. 984.

The gratuitous distribution of property by lot or chance does not constitute the offense, if not resorted to as a device to evade the law, and no consideration is derived directly, or indirectly from the party receiving the chance. Yellow Stone Kit v. State, 88 Ala. 196, 7 So. 338, 7 L. R. A. 599, 16 Am. St. Rep. 38; Long v. State, 74 Md. 565, 22 A. 4, 12 L. R. A. 425, 28 Am. St. Rep. 268; Cross v. People, 18 Colo. 321, 32 P. 821, 36 Am. St. Rep. 292.

All the goods as sold by the retail merchants at McComb, either members or non-members of the Chamber of Commerce, during these trades day projects, were sold at their market value, and the prizes as given on each Saturday, and ending on December 27, 1926, were purely gratuitous, and given solely as an inducement to each purchaser.

Argued orally by W. F. Jackson, for appellants.

OPINION

ANDERSON, J.

The appellants, R. J. Williams Furniture Company and others merchants of McComb city, filed their bill in the chancery court of Pike county, against the appellees, the McComb Chamber of Commerce and certain merchants of McComb city, members of the chamber of commerce, to enjoin the latter from carrying out what is denominated in the bill and the testimony in the case as "trades day" or "profit-sharing campaign," conducted in McComb city under the auspices of the chamber of commerce. There was a hearing before the chancery court on bill, answer, and proofs, resulting in a decree denying the injunction prayed for and dismissing the appellants' bill,...