State v. Amour Packing Co.

• Decision Date: 09 February 1915
• Docket Number: No. 10090.,No. 16089.,16089.,10090.
• Citation: 265 Mo. 121,176 S.W. 382
• Parties: STATE ex inf. BARKER, Atty. Gen., v. AMOUR PACKING CO. et al. SAME v. HAMMOND PACKING CO. et al.
• Court: Missouri Supreme Court

176 S.W. 382

265 Mo. 121

STATE ex inf. BARKER, Atty. Gen., v.AMOUR PACKING CO. et al.

SAME v.HAMMOND PACKING CO. et al.

No. 16089.

No. 10090.

Supreme Court of Missouri.

February 9, 1915.

Rehearing Denied May 3, 1915.

In banc.Two original quo warranto proceedings by the State, on information of John.T. Barker, Attorney General, against the Armour Packing Company and others and the Hammond Packing Company and another.Judgments of ouster and fine against each defendant.

John T. Barker, Elliott W. Major, Attys.Gen., and Ernest A. Green, Asst. Atty. Gen. (Frank H. Farris, of Rolla, of counsel), for relator.H. S. Priest and Morton Jourdan, both of St. Louis, and Frank Hagerman, of Kansas City(Ralph Crews, M. W. Borders, A. H. & Henry Veeder, A. R. Urion and A. B. Stratton, all of Chicago, Ill., of counsel), for respondents..

WALKER, J.

In June, 1910, the state of Missouri, upon the information of the Attorney General, instituted a proceeding in quo warranto in the Supreme Court against the Hammond Packing Company, an Illinois corporation doing business under the authority of the laws of this state, at St. Joseph, Mo., and the St. Louis Dressed Beef & Provision Company, a Missouri corporation engaged in business at the city of St. Louis.On the same date a like proceeding was commenced in this court by the Attorney General against the Armour Packing Company, a corporation organized under the laws of the state of New Jersey, Swift & Co., a corporation organized under the laws of the state of Illinois, and Morris & Co., a corporation organized under the laws of the state of Maine, each authorized to do business in this state.The business of these corporations was the buying, slaughtering, and marketing of live stock used for food, and in addition the dealing in cured meats, eggs, poultry, game, butter, and other agricultural and dairy products, and the preparation and selling of the various by-products derived from the slaughtering of live stock.The information in these cases were identical, barring names, dates, and formal allegations particularly applicable to the corporations proceeded against, and each charged violations of the anti-trust statutes of Missouri (sections 10298-10301, R. S. 1909).Answers were filed in due time, and in January, 1911, an order was made, referring the case against the Hammond Packing Company and the St. Louis Dressed Beef & Provision Company to Hon. Daniel Dillon, as special commissioner, to hear and rule on the competency of all testimony offered, and return same into this court with his findings of facts thereon.An abstract of the voluminous testimony agreed upon by the Attorney General and respondents' counsel was used before the commissioner as the record in these cases, and is filed here as the "Joint Abstract of the Record," and will be referred to in the discussion of the issues submitted.Although these proceedings were commenced separately, after the testimony had been taken before the commissioner in the suit against the Hammond Packing Company and the St. Louis Dressed Beef & Provision Company, counsel for these parties, as well as for the other corporations named, stipulated that the testimony thus taken, as well as the report of the commissioner, who was limited to a finding of facts, should be taken as the evidence in all of the cases, the stipulation being in these words:

"It is hereby stipulated: That this case shall be submitted upon the evidence taken and the report of the commissioner made in case No. 16090, State ex rel. Attorney General v. Hammond Packing Company et al., herein pending."

The informations are substantially as follows: That respondents have entered into a pool, trust, and combination among themselves, and with other corporations and persons to relator unknown, with the purpose and design to: (1) Regulate, fix, and control prices to be paid for beef and beef products, etc., for sale and sold in this state; (2) to maintain such prices when so regulated and fixed; (3) to regulate, fix, and limit the amount and quantity of beef and beef products sold and offered for sale in this state; (4) to control and limit the trade in beef and beef products, etc., in this state; and (5) to limit and lessen competition in the purchase and sale of beef and beef products in this state.That by reason of said trust and combination formed as aforesaid respondents have: (1) Regulated, fixed, and limited the amount and quantity of such products sold and offered for sale; (2) that they have fixed and maintained the price of such products bought and sold in this state; (3) that they have lessened lawful trade and full and free competition in the purchase and sale of such products; (4) that they are now unlawfully and illegally fixing the price of said articles in this state; and (5) that they are restraining and limiting full and free competition in the purchase and sale of such products in this state.That there was, in September, 1902, up to which time respondents were legitimate competitors of all others in the same business, formed under the laws of New Jersey the National Packing Company, herein call the "National Company," with power to do a packing business and own and control the stock of other corporations.That the National Company was not organized in good faith for the purpose of engaging in the business authorized by its charter, but as a corporate scheme and device to effect an unlawful arrangement between respondents and others engaged in business in, Missouri and the United States, whose names were to the relator unknown, to lessen, restrict, and destroy lawful trade and full and free competition, and to regulate, fix, and maintain prices, and to control and limit the amount and quantity of things to be sold and offered for sale in Missouri and in the United States; that the scheme was to have the National Company as a holding corporation to acquire the stock and assets of all corporations and the plants of all individuals and partnerships, who, as competitors, did a packing business in Missouri and the United States, so that through the sole control of the National Company it could pursue such policy as would remove all inducement for competition among such parties; that pursuant to the scheme thus concocted the National Company acquired, and has since owned and used, in aid of the said scheme, the stock of respondents, previously engaged in business in Missouri as legitimate competitors, and has since wrongfully operated them ostensibly as separate and competitive companies, whereby the public has been misled and deceived; that it acquired, and has ever since owned, the stock and assets of the corporations, whose names were unknown to informant, engaged in the same business in Missouri, and the United States, and used the same to carry out the said scheme; that by this method and scheme, lawful trade and full and free competition was lessened, restricted, and destroyed, and the quantity and amount of meat products to ha offered for sale was controlled and limited.

The answers admitted the legality of the incorporation of respondents, their authority to do business in this state, and that as alleged in the informations they were, at least until 1902, lawfully engaged in a competitive business with every other like concern in Missouri.Every other averment of the information was put in issue.The defenses presented by the answers were: (1) That the informations failed to state facts sufficient to constitute a cause of action; (2) that there was a misjoinder of partiesdefendant; (3) that the actions were barred by the statute of limitations; (4) that the statute creating the offenses charged had been repealed; (5) that the statute for the alleged violation of which forfeiture was sought was violative of the federal Constitution;(6) that this court in an original proceeding has no jurisdiction to enforce the anti-trust statutes.The commissioner, being limited under the order of his appointment to a finding of the facts, did not consider the above defenses, as they presented only questions of law.

Before the commencement of these proceedings the Attorney General, under the provision of sections 10332-10338, R. S. of Mo. 1909, caused an inquiry to be made to ascertain whether informations should be filed against respondents.This inquiry was had before the same commissioner, who subsequently took the entire testimony, but who was then acting under the appointment of this court solely for the purposes of the preliminary inquiry.The testimony taken at this preliminary inquiry, and which was thereafter introduced in evidence at the regular hearing before the commissioner, consisted of the articles of incorporation and licenses to do business in this state, of the Armour Packing Company, Armour & Go., Swift & Co., Morris & Co., Schwartzchild & Sulzberger, Cudahy Packing Company, Hammond Packing Company, and St. Louis.Dressed Beef & Provision Company, a statement showing the total number of cattle, hogs and sheep sold at the Kansas City stockyards in 1909, and the testimony of a number of witnesses interested in or connected in a business way with the respondents.

Much of the testimony taken before the commissioner in regard to matters antedating the formation of the National Company is irrelevant, and its consideration is not necessary to a determination of the issues involved.The record shows that whatever organization existed prior to the formation of the National Company was at its creation then terminated, and the affairs of the preceding organizations closed up in July, 1902.To effectuate the organization of the National Company, $15,000,000 was borrowed by representatives of Swift & Co., Armour & Co. and Morris & Co., the contract in regard thereto being signed by J. Ogden Armour, G. P. Swift, and Edward Morris, heads of Armour & Co., Swift & Co. and Morris & Co., respectively.The agreement between these parties upon which...