State ex. rel. Moose v. Frank

• Decision Date: 13 July 1914
• Docket Number: 125
• Parties: STATE ex. rel. WM. L. MOOSE, ATTORNEY GENERAL, v. FRANK
• Court: Arkansas Supreme Court

169 S.W. 333

114 Ark. 47

STATE ex. rel. WM. L. MOOSE, ATTORNEY GENERAL, v. FRANK

No. 125

Supreme Court of Arkansas

July 13, 1914

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; affirmed.

STATEMENT BY THE COURT.

The complaint in this cause alleged that appellees were engaged in the laundering business in the city of Little Rock, some of the appellees being corporations, others being a copartnership and still others the individual business of the proprietors of the defendant laundries mentioned in the complaint. It was alleged in the complaint that appellees, in violation of the anti-trust law, have agreed with each other to fix prices to be charged their customers and that they carried on their business under said agreement, the effect of the agreement being to stifle competition and increase the prices of laundering. The second paragraph of the complaint alleged that the appellees, for the purpose of driving out competition in the city of Malvern, in this State, had unlawfully combined with each other to do laundering for the people of that city at prices less than those charged the people of Little Rock and other places. A large sum of money was demanded in each paragraph of the complaint as a penalty against appellees, because of their alleged unlawful combination.

Separate demurrers were filed for appellees, and among other grounds of demurrer the act of the General Assembly of this State under which the proceeding was brought, was attacked as unconstitutional; and in all the demurrers it was alleged that the complaint did not state facts sufficient to constitute a cause of action. The circuit court held that the complaint did not state a cause of action and sustained the demurrer and the State has prosecuted this appeal from that judgment of the court.

The suit was instituted under the authority of section 1 of the anti-trust act passed at the 1905 session of the General Assembly of this State (Acts 1905, page 1), as amended by Act No. 161 of the Acts of 1913. Section 1 of the act of 1905 reads as follows:

"Any corporation organized under the laws of this or any other State, or country, and transacting or conducting any kind of business in this State, or any partnership or individual, or other association or persons whatsoever, who are now, or who shall hereafter, create, enter into, become a member of, or a party to, any pool, trust, agreement, combination confederation or understanding, whether the same is made in this State or elsewhere, with any other corporation, partnership, individual, or any other person or association of persons, to regulate or fix either in this State or elsewhere the price of any article of manufacture, mechanism, merchandise, commodity, convenience, repair, any product of mining, or any article or thing whatsoever, or the price or premium to be paid for insuring property against loss or damage by fire, lighting or tornado, or to maintain said price when so regulated or fixed, or who are now, or shall hereafter enter into, become a member of, or a party to any pool, agreement, contract, combination, association or confederation, whether made in this State or elsewhere, to fix or limit in this State or elsewhere, the amount or quantity of any article of manufacture, mechanism, merchandise, commodity, convenience, repair, any product of mining, or any article or thing whatsoever, or the price or premium to be paid for insuring property against loss or damage by fire, lightning, storm, cyclone, tornado, or any other kind of policy issued by any corporation, partnership, individual or association of persons aforesaid, shall be deemed and adjudged guilty of a conspiracy to defraud and be subject to the penalties as provided by this act."

Judgment affirmed.

Wm. L. Moose, Attorney General, Bradshaw, Rhoton & Helm and E. L. McHaney, for appellant.

1. The act is constitutional. 76 Ark. 303; 81 Id. 519; 212 U.S. 322, L.Ed. 530.

2. Our contention is that the agreement violates the anti-trust act by fixing the price of a "commodity," or an article of "convenience" or "repair." As to the doctrine of ejusdem generis, see 95 Ark. 114. Words are given their obvious and natural meaning. 67 Ark. 566; 71 Id. 561. Words judicially interpreted are presumed to have been used by the Legislature in that sense. 84 Ark 316; 123 Mass. 493; 12 Id. 252; 73 U.S. (16 Wall.) 632; 18 L.Ed. 904. A privilege is a commodity. 87 Mass. 428; 134 Mass. 419; 102 Ia. 602; 70 N.W. 107.

Morris M. & Louis M. Cohn, for appellees.

1. A combination to regulate the price of laundering does not come within the terms of the act. 95 Ark. 114; 159 Mo. 410; 81 Am. St. 368; 60 S.W. 91; 51 L. R. A. 151; 215 Mo. 421; 114 S.W. 997; 22 L. R. A. (N. S.) 607; 23 Id. 1284; 56 Neb. 386; 76 N.W. 900; 23 L. R. A. (N. S.) 1260; 45 Id. 355; 117 F. 570; 52 A. 326; 62 S.W. 481; 59 S.W. 916.

2. The act is unconstitutional. 58 Ark. 421; 29 L. R. A. 79; 22 Id. 340; 210 F. 173; 165 U.S. 578; 14 L. R. A. (N. S.) 361; 231 Ill. 340.

3. Laundering is not a "commodity." Cases, supra. 95 Ark. 114; 118 N.W. 276; 23 L. R. A. (N. S.) 1284; 86 Tex. 250; 22 L. R. A. 483; 24 S.W. 398; 231 U.S. 495-503; 52 A. 326.

OPINION

SMITH, J., (after stating the facts).

It is conceded by the State that an agreement to fix the price of laundering is not an agreement to fix the price of "any article of manufacture, mechanism or merchandise;" but it is contended that the facts here alleged constitute an agreement to fix the price of a commodity, convenience or repair. And it is not contended by the State that the business of laundering is included in the terms "any article or thing whatsoever." This last contention could not be sustained, because if the business of laundering is not a commodity, convenience or repair, then it would not be embraced in the words "article or thing whatsoever." Such a construction would be precluded by the decision of this court in the case of State v. Chicago, R. I. & P. Ry. Co., 95 Ark. 114. That case was a proceeding against that railroad for a violation of the anti-trust act of 1905 for entering into a pool, trust, agreement, combination, confederation, and understanding with certain domestic corporations, all owning and operating certain lines of railroads within the State, for the purpose of fixing rates to be charged for the service of carrying freight and passengers. In the opinion in that case, it was said: "Counsel for the State do not contend that freight or passenger rates are articles of merchandise, manufacture, mechanism, commodity, convenience or repair, or that they are products of mining; but they do contend that the words "or any article or thing whatsoever" include passenger and freight rates. We can not agree with their contention. This is a plain case for the application of the doctrine of ejusdem generis.

"The rule is 'when general words follow an enumeration of particular things, such words must be held to include only such things or objects as are of the same kind as those specifically enumerated.' 2 Lewis Sutherland on Statutory Construction (2 ed.), § 422."

And it was there further said: "Our 'antitrust act' does not in express terms attempt to deal with the questions of transportation by railroads or other carriers, or the fixing of rates therefor. It would be a violent presumption, indeed, to say that the Legislature in this vague and indefinite manner attempted to deal with a subject which so vitally affects the welfare of the people, and a proper solution of which has ever been one of the greatest concern and complexity. It seems evident to us that the framers of the act intended that the words 'or any article or thing whatsoever' should take their meaning from the things specifically mentioned before, and that, when so construed, the allegations of the complaint do not constitute a violation of the terms of the act."

In construing this act, we must bear in mind that it is highly penal, and as such must receive a strict construction. Hughes v. State, 6 Ark. 131; Grace v. State, 40 Ark. 97; Stout v. State, 43 Ark. 413.

Discussing the original anti-trust act of the General Assembly of 1899, Mr. Justice RIDDICK, in State v. Lancashire Fire Insurance Co., 66 Ark. 466, 51 S.W. 633, said: "Whatever the Legislature may have intended, such intention can have no effect unless expressed in the statute; for this, being a penal statute, can not be extended by implication. It would be in the highest degree unjust to punish conduct not clearly forbidden by the law itself."

Nor are we concerned with any consideration of the economic questions involved in this act. A study of its terms makes the fact plain that the Legislature has not included within the inhibition of this act agreements relating to the price of labor.

The question has several times been before the courts of various States as to whether a laundry was a manufacturing establishment or not, and so far as we are advised it has been uniformly held that it is not. In the case of Downing v. Lewis et al., 76 N.W. 900, 56 Neb. 386, it was contended the sale of a laundry and an agreement entered into between the parties with reference thereto violated the anti-trust law of that State which prohibited any combinations or agreements where persons are engaged in the manufacture or sale of any article of commerce or consumption, or for any persons so engaged to enter into any combination or agreement relating to the price of any article or product of such manufacture, and the court there decided that a laundry was not a manufacturing establishment and in so deciding that question it was there said: "It seems perfectly plain that a laundry, the business of which is to wash and iron linen, and other articles of wearing...