State v. E. Coal Co.

• Decision Date: 29 June 1908
• Citation: 29 R.I. 254,70 A. 1
• Parties: STATE v. EASTERN COAL CO. et al. SAME v. WARREN et al.
• Court: Rhode Island Supreme Court

70 A. 1

29 R.I. 254

STATE

v. EASTERN COAL CO. et al.

SAME

v. WARREN et al.

Supreme Court of Rhode Island.

June 29, 1908.

The Eastern Coal Company and others and George E. Warren and others were indicted for conspiracy, and the cases heard together upon certified questions from the superior court. Questions answered.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

William B. Greenough, Atty. Gen., and James C. Collins, Jr., Special Counsel, for the State.

Dexter B. Potter, for Curran & Burton, Inc., and Smith P. Burton, Henry W. Hayes, for John R. White & Son, Inc., and James A.

Kinghorn and Merwin White. Frank L. Hinckley, for Eastern Coal Company and George E. Warren.

Arthur M. Allen, for Doe & Little Company and Harry C. Clark.

DUBOIS, J. These are indictments charging the defendants with conspiracy. The cases were heard together, and came to this court upon certifications from the superior court for the counties of Providence and Bristol, under Court and Practice Act 1905, § 478.

The material portions of the four counts in each of the indictments set out that the defendants "unlawfully and fraudulently did combine, confederate, and conspire together, by divers unlawful and fraudulent devices, contrivances, and acts, unlawfully to regulate and fix the price at which coal should be sold in the said city of Providence, to the prejudice of the public and of the consumers of said coal, which said coal was then and there an article of prime necessity to the public and the consumers thereof," and that the defendants, "willfully devising and intending to regulate and fix the price of a prime necessity of life in said city of Providence, did unlawfully and maliciously conspire, combine, confederate, and agree together to do an illegal act injurious to the public trade in reference to a prime necessity of life, to wit, to then and there, in restraint of trade, and to the injury of the public trade, unlawfully create, enter into, and become members of and parties to a trust, agreement, combination, confederation, and understanding with each other wrongfully and unlawfully to regulate and fix the price at which coal should be sold in the city of Providence, which said coal was then and there an article of prime necessity to the public and consumers thereof," and also that the defendants "unlawfully, fraudulently, maliciously, wrongfully, and wickedly did conspire and agree together to do an illegal act injurious to the public trade, to wit, to then and there unlawfully regulate and fix the price at which anthracite coal should be sold in the city of Providence, which said anthracite coal was then and there an article of prime necessity to the public and the consumers thereof, and that the defendants did unlawfully and fraudulently fix and regulate the price of anthracite coal in said city of Providence," and, finally, that the defendants "unlawfully, fraudulently, maliciously, wrongfully, and wickedly did conspire and agree together to do an illegal act injurious to the public trade, to wit, to then and there unlawfully regulate and fix the price at which coal should be sold in said city of Providence, which said coal was then and there an article of prime necessity to the said public and consumers thereof."

The following are the questions certified for our determination:

"(1) Is said indictment Insufficient in law, in that it does not show that said defendants were dealers in coal or in anthracite coal, or otherwise had any power to regulate and fix the price thereof or to restrain trade therein?

"(2) Is said indictment insufficient in law, in that it does not show that said defendants conspired to create a monopoly in coal or anthracite coal?

"(3) Is said indictment insufficient in law, in that it does not appear in and by the same that said defendants conspired to raise the price of coal or to fix a price that was unlawful, exorbitant, unwarranted, or oppressive?

"(4) Is said indictment insufficient in law, in that it does not appear in and by the same that said alleged agreement to fix and regulate the price of coal was for any appreciable point of time or was an agreement binding on any of the parties thereto?

"(5) Does an agreement or combination to fix and regulate the price of coal as the same is set forth in the indictment constitute a criminal offense?

"(6) Is said indictment insufficient in law, in that it does not properly or sufficiently set forth either the means or the purpose of the alleged combination or agreement?

"(7) Is said indictment insufficient in law, in that it does not set forth the alleged agreement or combination with sufficient precision?

"(8) Can a corporation be guilty of the crime of conspiracy?"

To answer the questions, it is necessary to consider whether the crime of conspiracy is properly charged in the indictment. We have already defined criminal conspiracy to be a "confederation to do something unlawful either as a means or an end." State v. Bacon, 27 R. I. 252, 257, 61 Atl. 653, 654. Is anything unlawful charged either as a means or an end? No unlawful means are alleged in any of the counts. Therefore it must appear that something unlawful is charged against the defendants as an end. The object to be effected, as hereinbefore stated, according to the first count, is "unlawfully to regulate and fix the price at which coal should be sold in the city of Providence, to the prejudice of the public." Under the second count it is "to then and there, in restraint of trade and to the injury of the public trade, unlawfully create, enter into, and become members of and parties to a trust, agreement, combination, confederation, and understanding with each other wrongfully and unlawfully to regulate and fix the price at which coal should be sold in the city of Providence, which coal was then and there an article of prime necessity to the public and consumers thereof." By the third count it is "to do an illegal act injurious to the public trade, to wit, to then and there unlawfully regulate and fix the price at which anthracite coal should be sold in the city of Providence, and that they did fix and regulate the price of anthracite coal in the city of Providence." The object to be effected according to the fourth count is to do an illegal act injurious to the public trade, to wit, to then and there unlawfully fix the price at which coal should be sold in the city of Providence." The question may, therefore, be narrowed down to this: Is it unlawful for one person to fix the price at which coal shall be sold within the limits of a city? If it is, then it is necessarily a criminal offense for several persons to combine for that purpose; but, if it is lawful for one, then it does not become unlawful merely because a number are engaged with him in doing it. This doctrine is announced in Macauley Bros, v. Tierney, 19 R. I. 255, 33 Atl. 1, 37 L. R. A. 455, 61 Ana. St. Rep. 770 (1895) wherein Matteson, C. J., speaking for the court says (page 264 of 19 R. I., and page 4 of 33 Atl. [37 L. R. A. 455, 61 Am. St Rep. 770]): "What a person may lawfully do a number of persons may unite with him in doing without rendering themselves liable to the charge of conspiracy, provided the means employed be not unlawful." Portions of the opinion of Ball, J., in Chicago, etc., Coal Co. v. People, 114 Ill. App. 75 (1904), may seem to be in conflict with this doctrine, for on page 111 he reasons: "Counsel for defendants say that any one may lawfully fix the price at which he will sell his product, or he may lawfully refuse to sell it at any price. This is true. The injury to the public, if any, from the acts of an individual, are infinitesimal; and in the long run they correct themselves. Hence the law places few restrictions upon a man in the management of his own affairs. But 'men can often do by the combination of many what severally no one could accomplish, and even what when done by one would be innocent.' Morris Run v. Barclay, 68 Pa. 173, 8 Am. Rep. 159. Whenever the act to be done by such a combination necessarily tends to prejudice the public or to oppress individuals, the combination has always been held to be criminal. * * * 'There is potency in numbers when combined which the law cannot overlook where injury is the consequence.' Morris Run v. Barclay, supra."

It is worthy of note that the case then being considered was tried upon an agreed statement of facts and law, from which the judge was able to ascertain the consequences that naturally would flow from the agreement, and that the case of Morris Run v. Barclay was heard upon the report of a referee who found that the contract was void by statute and at common law, as against public policy, and that the contracting corporations represented almost the entire body of bituminous coal in the northern part of the state; that by combination between themselves they had the power to control the whole market in the district, and that they did control it by a contract not to ship and sell coal otherwise than as therein provided; and that, in order to destroy competition, they provided for an arrangement with dealers and shippers of anthracite coal. All this information was not gained from an Inspection of the pleadings. As was well said by Agnew, J., in Morris Run v. Barclay, 68 Pa. 187, 8 Am. Rep. 159: "If the motives of the confederates be to oppress, the means they use unlawful, or the consequences to others Injurious, their confederation will become a conspiracy. Instances are given in Commonwealth v. Carlisle, Brightly N. P. (Pa.) 40. Among those mentioned as criminal is a combination of employers to depress the wages of journeymen below what they would be, if there were no resort to artificial means; and a combination of the bakers of a town to hold up the article of bread and by means of the scarcity thus produced to extort an exorbitant price for it. The latter instance is precisely parallel with the...