State v. Arkansas Lumber Co.

• Decision Date: 24 December 1913
• Docket Number: No. 15146.,15146.
• Citation: State v. Arkansas Lumber Co., 169 S.W. 145, 260 Mo. 212 (Mo. 1913)
• Parties: STATE ex Inf. ATTORNEY GENERAL v. ARKANSAS LUMBER CO. et al.
• Court: Missouri Supreme Court

169 S.W. 145

260 Mo. 212

STATE ex Inf.ATTORNEY GENERAL v.ARKANSAS LUMBER CO. et al.

No. 15146.

Supreme Court of Missouri.

December 24, 1913.

On Motions to Modify Judgment, July 2, 1914.

1. REFERENCE (§ 47) — AUTHORITY OF REFEREE — SUPREME COURT — COMMISSIONER — JURISDICTION.

A commissioner appointed by the Supreme Court proceeding to take testimony, hear and determine objections to testimony, as the court

might in a trial of a cause, and report the testimony with his findings of fact and conclusions of law and all exceptions, has, in the absence of any statute, only the authority of a special commissioner to take depositions and return them into court, and his findings of fact and conclusions of law, though persuasive, are not binding.

2. REFERENCE (§ 100) — REPORT — EXCEPTIONS — SUPREME COURT — COMMISSIONER — JURISDICTION.

The Supreme Court, appointing a commissioner in an original proceeding to take testimony on the issues and make findings of fact and conclusions of law and state in his final report exceptions to findings and conclusions, must pass on the evidence and the law, and so will not pass on the refusal by the commissioner of requested declarations of law or the giving of other declarations or the findings of fact and conclusions of law and the admission of incompetent evidence.

3. JURY (§ 25) — RIGHT TO JURY TRIAL — DEMAND — TIME TO DEMAND.

In quo warranto to forfeit the franchises and licenses of corporations charged with violating the anti-trust law, a request by the corporations for a jury trial made for the first time before the commissioner appointed by the court on the case coming up before him for the taking of testimony comes too late.

4. MONOPOLIES (§ 26) — COMBINATIONS — FORFEITURE OF FRANCHISE — PARTIES.

That, in quo warranto to forfeit the franchises and licenses of corporations charged with violating the anti-trust law, the Attorney General dismissed the proceedings as against some of the corporations because of the insufficiency of the evidence as to them did not affect the proceeding against the remaining corporations.

5. QUO WARRANTO (§ 1) — INFORMATION TO FORFEIT FRANCHISES AND LICENSES OF CORPORATIONS — NATURE OF ACTION.

An information in the nature of quo warranto to forfeit the franchises and licenses of corporations violating the anti-trust law is a civil action.

6. MONOPOLIES (§ 26) — VIOLATION OF ANTITRUST LAW — INFORMATION IN QUO WARRANTO — SUFFICIENCY.

An information in the nature of quo warranto to forfeit the franchises and licenses of foreign and domestic corporations engaging in manufacturing and selling at wholesale yellow pine lumber, which alleges that the corporations entered into a pool, combination, and understanding among themselves, and with other corporations and persons to relator unknown, to regulate and fix the price to be paid by retail dealers in lumber and consumers of lumber in the state, to maintain the price when fixed, to regulate and limit the amount of lumber manufactured and bought and sold, to limit the trade in lumber, and to limit competition in the lumber trade in the state, and that the corporations, by means of the pool, combination, and understanding, have regulated, fixed, and limited the amount of lumber manufactured and sold, have increased, fixed, and maintained the market price of lumber bought and sold in the state, and have lessened lawful trade and free competition in the importation, manufacture, and sale in the state of lumber, and are illegally fixing and maintaining the price of lumber in the state and restraining free competition in the importation, manufacture, and sale of lumber in the state, to the detriment of the purchasing public, and that by reason thereof the corporations have unlawfully usurped their privileges and franchises, and which prays for a revocation of their franchises and licenses, and for the imposition of a fine for the misuse of franchises and licenses, charges in general terms a conspiracy and an unlawful combination in violation of the antitrust law, and is sufficient as against an objection raised for the first time to the admission of evidence.

7. PLEADING (§ 428) — INFORMATION IN QUO WARRANTO — SUFFICIENCY OF PLEADING — OBJECTIONS TO EVIDENCE.

Where, in quo warranto against corporations to forfeit their franchises and licenses for conspiring to control the yellow pine lumber trade, the corporations answered to the merits, and some of them presented amended answers before the commissioner, without attacking the sufficiency of the information, the information stating a cause by pleading legal conclusions, without stating the facts, could not be assailed by objections to the testimony, though the information was uncertain and indefinite, and could have been made more definite and certain on timely motion therefor.

8. PLEADING (§ 211) — DEMURRER ORE TENUS.

A demurrer ore tenus does not reach mere uncertainty or indefiniteness of averment or defect of pleading legal conclusions.

9. LIMITATION OF ACTIONS (§ 35) — ACTIONS FOR PENALTIES.

The provision of Rev. St. 1909, § 1890, limiting to three years actions for a statutory penalty or forfeiture, where the action is given to the party aggrieved, or to the state, embodied in article 9, is made applicable to an information in quo warranto by the state to forfeit the franchises and licenses of corporations for violating the anti-trust law, by section 1914, declaring that the limitations prescribed in article 9 shall apply to actions in the name of the state, and the state cannot rely on acts committed three years before the institution of the action.

10. MONOPOLIES (§ 12) — COMBINATION — REMEDY.

A suit in equity under Rev. St. 1909, § 10303, to restrain violations of the statute against pools, trusts, and conspiracies will reach combinations of natural persons or partnerships or corporations, as well as natural persons and corporations, and the penalties imposed by section 10304 may be imposed on a finding of guilt against a corporation pursuant to the procedure set out in section 10302.

11. MONOPOLIES (§ 24) — COMBINATION — REMEDY.

A natural person violating the anti-trust law cannot be proceeded against by quo warranto.

12. MONOPOLIES (§ 26) — COMBINATIONS — REMEDY — QUO WARRANTO.

The right to proceed against corporations for conspiracies in restraint of trade in violation of the anti-trust law is derived from the common law, and the common-law method was by information in the nature of quo warranto.

13. MONOPOLIES (§ 24) — COMBINATIONS — REMEDY.

Violators of the anti-trust law may be proceeded against by indictment or information as for a felony, if the offender is a natural person, or by bill in equity to prevent and restrain violations under Rev. St. 1909, § 10303, or actions at common law by information in the nature of quo warranto, where all defendants are corporations.

14. JURY (§ 19) — RIGHT TO TRIAL BY JURY — PROCEEDINGS FOR VIOLATION OF ANTI-TRUST LAW.

In proceedings in equity, or by information in the nature of quo warranto against corporations violating the anti-trust law, the corporations are not entitled to a jury trial.

15. LIMITATION OF ACTIONS (§ 59) — ACTIONS FOR PENALTIES — COMPUTATION OF PERIOD OF LIMITATION.

The limitations prescribed for an information in quo warranto to forfeit the franchises and licenses of corporations guilty of conspiring to limit the output and fix the price of an article of commerce do not refer to the date of the entry into the illegal conspiracy, but to the date of the last proven act under the conspiracy, regardless of the date of the original agreement.

16. COMMERCE (§ 13) — COMBINATIONS — INTERSTATE COMMERCE.

Foreign and domestic corporations engaged in manufacturing and selling at wholesale lumber are, when forming a conspiracy to limit the output and fix the price for lumber to be sold in the state, guilty of violating the state antitrust law, and they cannot defend on the ground that their acts are governed by the interstate commerce law.

17. STATUTES (§ 126) — TITLE — CLERICAL ERROR — EFFECT.

The clerical error in the title of Laws 1907, p. 374, entitled "An act repealing sections 8978, 8979, 8980, 8981, 8982 of article 2, chapter 143 of the Revised Statutes of 1899," etc., and enacting in lieu thereof certain new sections, instead of enumerating sections "8965-8977 of article 1, chapter 143," and in the title of Laws 1907, p. 377, entitled "An act to repeal sections 8965-8977 of article 1, chapter 143, Revised Statutes of 1899, entitled `Pools, trusts and conspiracies,' and to enact in lieu thereof certain new sections to be known as sections 8965-8977c," instead of the enumerated sections in the first-named act, does not affect the validity of the acts, notwithstanding Const. art. 4, § 28, providing that no bill shall contain more than one subject, which shall be expressed in the title.

18. MONOPOLIES (§ 12) — CONSPIRACIES — STATUTES — CONSTRUCTION.

Under Rev. St. 1909, § 10299, declaring that any person creating, entering into, becoming a member of, or participating in any pool or combination, in restraint of trade in the importation, manufacture, purchase, or sale of any commodity in the state, shall be guilty of a conspiracy in restraint of trade, corporations engaged in the manufacture and sale at wholesale of pine lumber which conspire to limit the output within the state violate the statute, and it is immaterial whether the agreement is ever carried out, and it is immaterial that some of the corporations have no mills in the state so long as some of them have mills and manufacture lumber in the state, provided all conspire to curtail the output in the state.

19. MONOPOLIES (§ 13) — CONSPIRACY IN RESTRAINT OF TRADE — CURTAILMENT — EVIDENCE.

A voluntary association of manufacturers and wholesalers of pine lumber agreed to curtail the output and recommended a reduction of 33 1/3 per cent. of the output until such time as the demand should more nearly...