State v. Carondelet Planing Mill Co.

• Citation: 274 S.W. 780
• Decision Date: 03 July 1925
• Docket Number: No. 22969.,22969.
• Parties: STATE ex rel. BARRETT, Atty. Gen., v. CARONDELET PLANING MILL CO. et al.
• Court: United States State Supreme Court of Missouri

274 S.W. 780

STATE ex rel. BARRETT, Atty. Gen., v. CARONDELET PLANING MILL CO. et al.

No. 22969.

Supreme Court of Missouri, in Banc.

July 3, 1925.

Quo warranto by the State of Missouri on the relation of James W. Barrett, Attorney General, against the Carondelet Planing Mill Company and others. Respondents discharged.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for relator.

Cornwell & Hicks, of St. Louis, for respondent North St. Louis Planing Mill Company.

Charles A. Houts and D'Arcy & Neun, all of St. Louis, for respondents Carondelet Planing Mill Company and others.

BLAIR, J.

This is an original proceeding by quo warranto, wherein we are asked to oust respondents from further enjoyment of their corporate franchises under the laws of this state, and to confiscate their property or impose fines upon them, because of alleged violation of the statutes of this state forbidding pools, trusts, agreements, combinations, confederations or understandings in restraint of trade or competition. Sections 9655, 9656, and 9658, R. S. 1919.

Respondents Fox Bros. Manufacturing Company and Huttig Sash & Door Company are corporations organized under the laws of other states, and duly authorized and licensed to do and were doing business in this state as foreign corporations. The other respondents are corporations organized under the laws of Missouri.

The information was filed July 1, 1921. On July 7, 1921, an information was filed in the case of State ex rel. Barrett v. Boeckeler Lumber Co., which case thereafter proceeded to hearing and judgment, and is reported in 301 Mo., beginning at page 445, 256 S. W. 175. During the pendency of that case the present case was not pressed to a hearing.

Our writ in the case at bar was issued on July 8, 1921, and service of such writ was accepted by certain attorneys, as "attorneys for respondents," on July 14, 1921. On November 5, 1921, and after the disposition of certain motions, not necessary to be noticed now, respondents filed their answer and return.

It appears that some question was raised touching the authority of counsel, who filed the answer and return as "attorneys for respondents," to represent respondent John M. Darr & Sons Planing Mill Company, and said respondent filed its separate answer and return on January 17, 1923.

On February 21, 1922, this court made an order appointing Hon. Dorsey Shackleford as commissioner, with authority to take such testimony, to issue subpoenas, to compel attendance of witnesses and production of books, papers, and other documents, to issue attachments therefor, and to hear and determine all objections to testimony and report such testimony and his proceedings thereon to this court. Our said commissioner was given no authority to and did not report his conclusions upon the facts and the law.

Certain motions were filed and disposed of by this court, which will not be noticed unless it becomes necessary in the course of the opinion., A motion to reinstate certain testimony, previously ordered to be stricken out by this court, was taken with the case, and will be noticed later in the opinion, if deemed necessary.

Our commissioner proceeded to take testimony in the case, and, on September 24, 1924, filed his report. In due course the case came on for hearing, was briefed and argued by counsel, and is thus before us for consideration and determination.

The issues of fact appear from the following allegations of the information:

"Relator informs the court that respondents have created, entered into, become members of, and participated in a pool, trust, agreement, combination, confederation, and understanding among themselves and each other, which tends to and does result in the restraint of lawful trade and full and free competition in the manufacture and sale of millwork in this state, with the purpose, design, and view to regulate, control, and fix the price of millwork, to maintain such price when so regulated and fixed, to fix the amount and quantity of millwork bought and sold, and to lessen lawful trade and full and free competition in the manufacture of millwork in this state, all to the great detriment and damage of the purchasing public and the people of the state of Missouri.

"Relator further states that by reason of the participation of said respondents in the pool, trust, agreement, combination, confederation, and understanding as herein stated, and by reason of the acts and things done by respondents as herein set forth, said respondents have been guilty of illegal, willful, and malicious perversion and abuse of the franchises, licenses, and authority severally granted to them by the state of Missouri, and illegal and unlawful usurpation of privileges, franchises, and authorities not granted to them by the state of Missouri."

The answer and return first filed, and the separate answer and return of respondent John M. Darr & Sons Planing Mill Company, are substantially alike, and specifically and generally deny the foregoing allegations of the information.

All the respondents were members of the St. Louis Millmen's Association at the time this proceeding was begun. Three of the respondents resigned therefrom in July, 1921. Respondents are engaged in the planing mill business, which consists of the manufacture of the various articles of woodwork used in the construction of buildings. Their product is of two kinds, special and stock millwork. Special millwork is made to order in accordance with plans and specifications for the particular building. Stock millwork is made up in quantities in standard sizes and materials, without reference to any specific building. The millmen's association has been in existence for over 30 years. Formal articles of association were drawn up in 1914, and again on January 1, 1919. It was operating Under the 1919 articles when the information was filed in this case. Said articles provided for the organization of a listing bureau, which was organized August 14, 1919, and known thereafter as Planing Mill Listing Bureau. For convenience, we will refer to these organizations as "association" and "bureau."

The association had the usual officers and committees. It held weekly meetings, at which an attendance fee was provided. The object and purpose of the association, as declared by article 9, was to devote its funds "to the payment of all duly authorized expenses which may be incurred under the provisions hereof and in carrying out the lawful purposes of this association to the payment of all proper costs and expenses which may be incurred in opposing, resisting, and defending against any unjust or unlawful demands of organized labor, should any such demand be presented or made, in preventing or removing any unjust or unlawful discriminations against the members or their output or product, in obtaining and procuring all such information as the officers or appropriate committees may be able to obtain or procure, the better to enable the members of the association to arrive at a fair and proper basis for extending and giving credit to buyers, and for ascertaining the cost of labor and material and of the manufacture of millwork, and in the adoption and execution of any lawful plans, or any other purposes, which, by vote of a majority of the association, may be deemed conducive to the welfare of the association, and not violative of any rule of business or of law."

Article 10 provided for the employment of a secretary to devote his time and energy to the best interests of the association. Payment of one-fifth of 1 per cent. of the net cost of the work covered on each and every list of items received from the listing bureau, to be thereafter formed, was provided to defray the expenses of the association.

Article 11 provided that information, gathered for the use of the members of the association, and lists of items, taken off by the bureau, should not be furnished to any one not a member of the association or the bureau. Other articles of the association need not be noticed unless reference thereto becomes necessary in the determination of the case.

The object and purpose of the organization of the Planing Mill Listing Bureau are stated in the agreement as follows:

"Whereas, under the present methods of carrying on the planing mill business in the city and in the county of St. Louis, in the state of Missouri, a large volume of needless work is required of the planing mills in taking off of items from specifications and other data, or information, furnished as the basis of estimates of items of planing millwork requisite and necessary to the furnishing and completion of that branch of the building business, thereby needlessly increasing the cost of production to the planing mills and the price to be paid therefor by the builder and owner, to the common loss and detriment of all parties concerned.

"And whereas, the subscribers hereto believe that through co-operation as hereinafter set forth, a substantial reduction in the cost to the planing mills of manufactured articles can be secured, and a corresponding reduction made to the builder and to the owner of the improvements in which the millwork is to be used, thereby encouraging and advancing the building business in the city of St. Louis, and the interests of all parties concerned.

"Therefore, it is mutually agreed," etc.

We quote the following from the articles of agreement:

"Article II. The authorized officers of said Planing Mill Listing Bureau shall employ adequately skilled and competent quantity surveyors, whose duty it shall be to make correct and uniform lists of items, and take quantities from plans and specifications, or other data and information, of all millwork to be figured on and for which lists are requested, when such work is to be used in the city or county of St. Louis, state of Missouri, for the use and benefit of the planing mill owners and operators who are parties hereto, to the end that there...