State ex rel. Rice v. Hasson Grocery Co.

• Decision Date: 26 October 1936
• Docket Number: 32347
• Citation: 170 So. 234,177 Miss. 204
• Court: Mississippi Supreme Court
• Parties: STATE ex rel. RICE, ATTY. GEN., et al. v. HASSON GROCERY CO. et al

170 So. 234

177 Miss. 204

STATE ex rel. RICE, ATTY. GEN., et al. v. HASSON GROCERY CO. et al

No. 32347

Supreme Court of Mississippi

October 26, 1936

Division B

Suggestion Of Error Overruled November 23, 1936.

APPEAL from chancery court of Lauderdale county, HON. A. B. AMIS Sr., Chancellor

Suit by the State, on the relation of Greek L. Rice, Attorney General, and others, against the Hasson Groccry Company and others. From an adverse judgment, plaintiffs appeal. Reversed and remanded, with directions.

Reversed and remanded.

W. W. Pierce, Assistant Attorney General, for appellants.

The court had jurisdiction of all the parties because of the conspiracy.

12 C J. 581, sec. 99; Ellzey v. State, 57 Miss. 826.

There was an unlawful conspiracy.

That the tax is lawfully imposed needs no argument because it has already been adjudicated.

State ex rel. Rice v. Evans-Terry Co,, 159 So. 658, 80 L.Ed. 94.

The weight of authority seems to be to the effect that while an act of an individual may not give rise to civil liability, yet the same act committed by several acting in concert may be unlawful and constitute an actionable wrong, giving rise to civic liability.

Rocky Mountain Bell Tel. Co. v. Montana Federation of Labor, 156 F. 809; Arthur v. Oakes, 63 F. 310, 25 L.R.A. 414; Randall v. Lanstorf, 126 Wisc. 147; Atchison, etc., Ry. Co. v. Gee, 139 F. 528; Allis-Chalmers Co. v. Reliable Lodge, 111 F. 264; American Steel & Wire Co. v. Wire Drawers' Union, 90 F. 608; Union Pacific Ry. Co. v. Ruef, 120 F. 102; In re Doolittle, 23 F. 545; Casey v. Cinn, etc., Ry. Co., 62 F. 803; Loewe v. California State Federation, 139 F. 71; Hawarden v. Youghiogheny Coal Co., 111 Wis. 545, 87 N.W. 472, 55 L.R.A. 828; Grenada Lbr. Co. v. Miss., 217 U.S. 433, 54 L.Ed. 828.

We think it is settled that an act lawful in an individual may be the subject of civil conspiracy when done in concert with others, provided that it is done with the direct intention to injure the public, it is not necessary, in order to maintain this suit, that an express agreement of the appellees be shown. It is enough that the individuals who have combined intended to use the means employed to accomplish an unlawful end and that they acted in concert.

United States v. Patten, 226 U.S. 525, 57 L.Ed. 333, 44 L.R.A. (N.S.) 325, 33 S.Ct. 141; Grenada Lbr. Co. v. Miss., 217 U.S. 433, 54 L.Ed. 826; Duplex Printing Press Co. v. Deering, 254 U.S. 461, 65 L.Ed. 354, 16 A.L.R. 196, 41 S.Ct. 172; Anderson 272 U.S. 359, 71 L.Ed. 298, 47 v. Shipowners Asso., S.Ct. 125; Monagahela Bridge Co. v. U.S. 216 U.S. 177; Globe & Rutgers Fire Ins. Co. v. Firemen's Fund Fire Ins. Co., 97 Miss. 148; South Wales Miners' Fed. v. Glamorgan Coal Co., 2 Am. & Eng. Ann. Cas.

What is lawful for an individual is not the test of what is lawful for a combination of individuals.

Gebardi v. U.S. 287 U.S. 112, 77 L.Ed. 206.

This record, we submit, conclusively shows that all of the appellees were undertaking to do the same thing by the same means and by reason thereof, their acts constituted a conspiracy.

Haas v. Hinkel, 216 U.S. 462, 54 L.Ed. 569; State v. Rickey, 9 N. J. Law 293; Erdman v. Mitchell, 53 A. 227, 207 Pa. 79, 63 L.R.A. 534.

The facts show a conspiracy. There is a presumption in favor of the validity or constitutionality of the statute imposing mileage taxes on motor vehicles.

Burnham v. Summer, 50 Miss. 517; Virden v. Bowers, 55 Miss. 1; Postal Telegraph Co. v. Robertson, 116 Miss. 204; Riley v. Ammon, 143 Miss. 861; State v. Edwards, 93 Miss. 704; Graves v. Minnesota, 272 U.S. 425, 71 L.Ed. 331; Life & Cas. Ins. Co. v. McCray, 291 U.S. 566, 78 L.Ed. 987; Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 79 L.Ed. 281.

The presumption must prevail in the absence of some factual foundation of record.

O'Gorman & Young v. Hartford Fire Ins. Co., 282 U.S. 251, 75 L.Ed. 324; Williams v. Baltimore, 289 U.S. 36, 77 L.Ed. 1015.

There is no factual foundation in this record overthrowing that presumption.

The constitutionality or validity of the statute was determined in the case of Hudson v. Stuart et al., 166 Miss. 339. This case was decided in the early part of the year 1933. But it might be said that the statute was re-enacted in 1934 and that Hudson v. Stuart supra, did not settle the constitutionality, although practically in the same words. In answer to this anticipated and probable argument, we submit that the 1934 act, to-wit: Chapter 126 of the General Laws of 1934 was held constitutional in February 1935 (State ex rel. Rice v. Evans-Terry Co., 159 So. 658), vet, not a single one of the appellees have paid their mileage taxes or made their mileage reports as required by the statute.

If it be true that the appellees only wanted to test the act as to its constitutionality, and it was their purpose to rely on that theory to sustain them, then why have they not complied with the act since the validity of the statute was determined practically a year ago? The burden was on appellees to make that showing

Ackerman v. Choctaw County, 157 Miss. 594; Price v. Haney, 164 So. 590.

Section 18 of Chapter 126, General Laws of Mississippi 1934, provides a complete scheme whereby any one or all of the appellees could have tested the constitutionality of the Motor Vehicle Privilege Tax statute by paying the tax under protest, and within thirty days bringing a suit to recover all or any part of it back. In this way all constitutional questions could have been raised and settled.

The testimony, in this record, shows a conspiracy and condemns the appellees.

A conspiracy rarely can be shown by direct evidence. Often times it can only be shown by many facts and circumstances taken and considered together, any one of which would be wholly insufficient to establish a conspiracy.

Pickett v. State, 139 Miss. 529.

The existence of a conspiracy can be established by proof of acts and conduct as well as by proof of an express agreement.

Osborn v. State, 99 Miss. 410.

The appellees are liable jointly because of the conspiracy.

Findlay v. McAllister, 113 U.S. 104, 28 L.Ed. 930; Ellzey v. State, 57 Miss. 827; State v. Baker, 27 R. I. 252, 61 A. 653; Commonwealth v. Waterman, 122 Mass. 57; State v. Buchanan, 9 Am. Dec. 534; Isaacs v. State, 48 Miss. 234; Globe & Rutgers Fire Ins. Co. v. Firemen's Fund Fire Ins. Co., 97 Miss. 148; Lawrence v. Hand, 23 Miss. 105.

The finding of the chancellor on the question of a conspiracy is against the preponderance of the evidence. Section 379, Code of 1930.

The chancery court had jurisdiction of the parties because, of a like or common interest of the parties defendant in the questions of law and fact involved.

The appellees have a common interest in the question of law involved.

In answer to the chancellor's reasoning, we submit that the constitutionality of the statute has not any more become settled since the filing of the bill of complaint in this case than it was prior thereto. The cases of Hudson v. Stuart, 166 Miss. 399; Hicklin v. Coney, 290 U.S. 167, 78 L.Ed. 247; Continental Baking Co. v. Woodring, 286 U.S. 352, 76 L.Ed. 1155; Corley & Hamilton v. Snook, 281 U.S. 66, 74 L. Et, 704, authoritatively settle the question of the constitutionality or validity of the law involved and in virtue of which this suit was filed. These cases were decided long prior to the time the bill of complaint was filed in this cause.

The appellees have a common interest in the question of fact.

The appellees having a common or like interest in the questions of law and fact involved, the trial court had jurisdiction of the parties to avoid a multiplicity of suits.

Selleck v. Macon Compress & Warehouse Co., 72 Miss. 1024; Weight v. Shelton, Sm. & M. Ch. Rep. 399; Thames v. Mangum, 87 Miss. 575; Pollock v. Savings Institution, 61 Miss. 293; Bishop v. Rosenbaum, 58 Miss. 84; Crawford v. Railroad Co., 83 Miss. 708, 36 So. 82, 102 Am. St. Rep. 476; Tisdale v. Ins. Co., 84 Miss. 709, 36 So. 568; Barry v. Barry, 64 Miss. 709, 3 So. 532; Section 547, Code of 1892; Griffith's Mississippi Chancery Practice, sec. 142, page 142; Roberts v. Burwell, 117 Miss. 451; Middleton v. Howell, 127 Miss. 880; Humphreys Co. v. Cashin, 136 Miss. 476.

S. B. Thomas, of Greenville, for appellees.

I have read with much interest the numerous cases cited by the appellant to sustain his position on point I.: "Where Was An Unlawful Conspiracy," but I do not find that any one of these cases is applicable to the case at bar. In each case cited there was a conspiracy to do an unlawful act or to do some act which constituted an actionable wrong.

The question which in my opinion is squarely presented to this court is whether or not the defendants named in the bill of complaint in this cause, by combining to employ mutual attorneys for the purpose of contesting the constitutionality of a law, committed in so doing an unlawful act, or conspired together to commit an actionable wrong, as well stated by the able chancellor in the lower court: "There has been no case before me in the argument at the bar, where if the doing of an act by one individual is lawful it constitutes any actionable conspiracy or any actionable wrong if it is done by more than one. It is only when the act itself is wrong, or the end to be accomplished is wrong, that the combining is unlawful. Because it must be wrong for the first man to do it before it can be wrong for the second one to do it; or the agreement must contemplate the doing of a thing that would result in wrong or injury. According to the allegations of this bill, and the proof, these men only confederated and conspired together to test the constitutionality of the law. That is all they have ever done so far as the allegations of this...