State v. Central Lumber Co.

• Decision Date: 01 December 1909
• Citation: 24 S.D. 136,123 N.W. 504
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. CENTRAL LUMBER COMPANY Defendant and appellant.
• Court: South Dakota Supreme Court

24 S.D. 136, 123 N.W. 504 (1909)

STATE OF SOUTH DAKOTA, Plaintiff and respondent v CENTRAL LUMBER COMPANY

Defendant and appellant

South Dakota Supreme Court

Appeals from Circuit Court, McPherson County, SD

Hon. Lyman T. Boucher, Judge

Affirmed

Sears & Potter, Brown, Abbot & Somsen

Seward & McFarland,

Attorneys for appellant

Opinion filed Dec. 1, 1909

WHITING, J.

Chapter 131, p. 196, Sess. Laws S. D. for the year of 1907, is in words as follows:

"An Act to Define and Prohibit Unfair Competition and Discrimination, and to Define the Powers and Duties of the Attorney General in Regard Thereto.

"Be it enacted by the Legislature of the state of South Dakota:

"Section 1. Unlawful Discrimination.--Any person, firm, or corporation foreign or domestic, doing business in the state of South Dakota, and engaged in the production, manufacture or distribution of any commodity in general use, that intentionally for the purpose of destroying the competition, of any regular, established dealer in such commodity, or to prevent the competition of any person who, in good faith intends and attempts to become such dealer, shall discriminate between different sections, communities, or cities of this state, by selling such commodity at a lower rate in one section, community or city, or any portion thereof than such person, firm or corporation, foreign or domestic charges for such commodity in another section, community, or city, after equalizing the distance from the point of production, manufacture, or distribution and freight rates therefrom shall be deemed guilty of unfair discrimination.

"Sec. 2. Duty of Attorney General.--If complaint shall be made to the Attorney General that any corporation is guilty of unfair discrimination as defined by this act, he shall investigate such complaint and for that purpose he may subpoena witnesses, administer oaths, take testimony and require the production of books or other documents, and, if in his opinion sufficient grounds exist therefor, he may prosecute an action in the name of the state in the proper court to annul the charter or revoke the permit 0f such corporation, as the case may be, and to permanently enjoin such corporation from doing business in this state, and if in such action the court shall. find that such corporation is guilty of unfair discrimination as defined by this act, such court shall annul the charter or revoke the permit of such corporation, and may permanently enjoin it from transacting business in this state.

"Sec. 3. Violation--Penalty.--Any person, firm, or corporation violating the provisions of section one (1) of this act shall upon conviction thereof be fined not less than two hundred dollars nor more than ten thousand dollars for each offense.

"Sec. 4. Remedies Cumulative.--Nothing in this act shall be construed as repealing any other act or part of an act, but the remedies hi rein provided shall be cumulative to all other remedies provided by law."

The state brought two actions in the circuit court, one criminal, charging defendant with having broken the above statute, the other civil, seeking under section 2 thereof to forfeit the right of defendant to do business in this state. Demurrers were interposed to both the criminal information and civil complaint, said demurrers attacking such information and complaint solely upon the ground that they did not allege facts sufficient, in the one case, to constitute a public offense, and in the other case, to state a cause of action; each demurrer being based solely upon the alleged unconstitutionality of the above statute. The demurrers were both overruled. In the civil case the defendant appealed from the Order overruling such demurrer. In the criminal case trial was had, and verdict of guilty rendered, judgment entered, motion for new trial made and overruled. The defendant at all times saved his rights by timely objections and motions raising the questions of constitutionality of the said statute, and duly appealed from the judgment of conviction and order denying new trial. It is admitted by the appellant that the only question raised by either appeal is the said constitutional questions, and they are the only ones saved by assignments of error. The question involved in the two cases on appeal being therefore necessarily largely, if not entirely, the same, by agreement of parties and consent of this court, the two causes have been presented together, and will be so decided.

The appellant in its brief has discussed the issues under the following headings:

"(1) The Statute in Question is Criminal in Its Nature and Penal in Its Provisions, and must be Strictly Construed. (2) No offense is Created by This Statute, Because, While It Defines Unfair Discrimination, Which is in Itself No Offense, It Nowhere Forbids It So as to Make. It a Crime. (3) This Law Cannot be Upheld upon the Theory That Its Purpose and Effect is to Prevent the Establishment of a Monopoly. (4) The Act, by Reason of Arbitrary Classification, Denies the Defendant Equality under the Law, and is for That Reason Violative of the Constitutions, Both State and Federal. (5) The Act is Invalid Because the Classification of Corporations by Section 2, and the Procedure Therein Provided for is Violative of the Constitutions, Both State and Federal. (6) Whether the Act can be Severed and Some Parts Saved While Others are Condemned. (7) The Act Interferes with Freedom to Contract."

The briefs on both sides are very full and exhaustive, and are a credit even to the eminent counsel engaged in this case. It will be impossible for us within the limits of this decision to discuss, in detail, the authorities cited, though we have given them careful consideration. For convenience we will take up the questions raised in the order in which they are treated in the appellant's brief.

The appellant, under the first heading, has gone into an exhaustive discussion of the rules of construction applicable to criminal statutes, for the purpose of showing, under the second heading, that the courts cannot read into the statute words so that such statute can be held to create an offense under section 3 of the Penal Code, which provides: "A crime or public offense is an act or omission forbidden by law, and to which is annexed, upon conviction, either of the following punishments: ... (3) Fine--" the point made by appellant being that said status in question nowhere "forbids" the acts that constitute the offense, and that therefore, under said section 3, Penal Code, there is no offense stated. The state had given this point careful consideration, answering fully the brief of appellant, and calling attention further to the fact that this is not a question going to the constitutionality of the statute, and therefore not properly before us. The state is right in this contention, but inasmuch as the point has been fully discussed, and is a matter vital to the people of this state, we consider ourselves justified in considering and passing on the same. We have just recently affirmed a judgment imposing the death penalty for murder, and, if appellant is right in its contention, we have no such crime as murder in this state, the statute relating thereto containing no specific words forbidding the acts constituting the offense; and, under section 2 of our Penal Code, no act or omission is a crime except as prescribed by some statute of this state. In fact, if appellant was right, there would be scarcely a criminal offense provided for by our Code and our jails and state's prison should be emptied of the persons confined therein. Nevertheless it is true that, if there is nothing in the body of the statute before us that forbids the doing of the acts set forth in section 1 thereof, appellant is right, and has not committed any criminal offense.

Conceding for the purposes of this discussion that no reference can be made to the word "prohibit" found in the title, to aid in upholding the law, and conceding likewise that nothing can be read into this statute in aid thereof, and that we must look to the plain language of the statute for the prohibition of the said acts, and even disregarding section 10 of our Penal Code, providing: "The rule of common law that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and promote justice"--still does not section 3 of said statute plainly prohibit the acts set forth in section 1 by prescribing a punishment therefor? It certainly does. One man might say to his child: "To break Mr. Jones' windows is wrong, and I forbid your doing it." Another man says to his child: "To break Mr. Jones' windows is wrong, and if you do it, I will whip you." Does it need any legal research or extended study of statutory construction for the second child to determine that he, as well as the other child, is forbidden to do the acts constituting the wrong? We think the second child would have a clear comprehension of the law of his home on this subject, and would hardly be in a position, after having broken the windows, to say to his father, "I did not know you forbade me to break the windows, you did not use the word 'forbid.'" In fact, if these two children were of very tender years, might it not well be that the first child, not knowing the meaning of the word "forbid," could well plead innocence, while, if his father had used the language of the other parent, he could not have so pleaded because he then would have known the fact that he was forbidden, while not knowing the meaning of the word "forbid"? Lawmakers should certainly be free, in the preparation of criminal statutes designed to control the actions of persons who have reached the age of criminal responsibility, to use the simple method of conveying an idea or thought which would be applicable in conveying such...