State v. Fullerton Lumber Co.

• Court: South Dakota Supreme Court
• Writing for the Court: POLLEY, J.
• Citation: State v. Fullerton Lumber Co., 35 S.D. 410, 152 N.W. 708 (S.D. 1915)
• Decision Date: 24 May 1915
• Docket Number: 3567.
• Parties: STATE v. FULLERTON LUMBER CO. et al. [d]

152 N.W. 708

35 S.D. 410

STATE v. FULLERTON LUMBER CO. et al. ^[d]

No. 3567.

Supreme Court of South Dakota

May 24, 1915

Appeal from Circuit Court, Turner County; R. B. Tripp, Judge.

The Fullerton Lumber Company and others were convicted of a violation of Laws 1909, c. 224, prohibiting conspiracies in restraint of trade, and they appeal. Affirmed.

John E Tipton, of Geddes, Bogue & Bogue, of Centerville, French & Orvis, of Yankton, and Spangler & Haney, of Mitchell, for appellants.

Royal C. Johnson, of Aberdeen, A. B. Beck, of Geddes, and Edward E Wagner, of Sioux Falls, for the State.

POLLEY J.

The defendants in this action were indicted under the provisions of chapter 224, Laws of 1909. The Fullerton Lumber Company, J. H. Queal & Co., and the Floete Lumber Company are corporations, and, at the time of filing the indictment, were engaged in selling lumber, coal, and building material, at Geddes, S.D. The defendants Kramer and Mahaney were the agents and in the employ of the Floete Lumber Company. L. C. Kroh and F. S. Vaughn were the agents and in the employ of J. H. Queal & Co., and O. G. Meyer, R. C. Turner, and James Jordan were the agents and in the employ of the Fullerton Lumber Company. The indictment charged that on the 14th day of October, 1910, the defendants-

"did willfully, unlawfully, and wrongfully combine, have an understanding, and make an agreement, with and among themselves, to fix the prices of the commodities aforesaid within the state of South Dakota, and did then and there mutually agree among and between themselves to obstruct and prevent competition in the sale of the commodities aforesaid by wrongfully agreeing to fix the prices to be charged to the general public for said commodities by each and every one of the said defendants, and did then and there adopt a schedule of prices to be charged the general public for the commodities aforesaid, and did thereby bind themselves together and agree to charge a uniform price for the said commodities to the general public-that is to say, that while said corporations were engaged in business as aforesaid, and the said Nicholas J. Kramer and Pat Mahaney were agents and in the employ of said Floete Lumber Company, and carrying on its said business, and the said F. S. Vaughn and L. C. Kroh were the agents and employés of said J. H. Queal & Co. in the management of its said business, and the said R. C. Turner, James Jordan, and O. G. Meyer were the agents and employés of the Fullerton Lumber Company in the management of its said business, the said defendants did, at the time and place and in the manner aforesaid, mutually arrange and agree among themselves to, and did thereby, make and adopt certain schedules of prices, or price lists, at which they would then and thereafter sell said commodities to the public, to wit, a maximum and minimum schedule of prices, or price lists, that is to say, one schedule or price list fixing a high or maximum price at which the defendants would sell said commodities to the public when there were no other competitive dealers bidding or competing therefor, such prices being intended by the defendants to represent, and actually representing, a large and substantial profit to the defendants in the sale of said commodities, and another or minimum schedule, or price list, fixing the minimum price at which the defendants would sell such commodities when other competitive dealers should submit bids and enter into competition with the defendants therefor, said minimum schedule of prices representing the actual cost price of said commodities at said city of Geddes, to the defendants and other dealers in such commodities, the same to be sold by the defendants at such minimum prices only when such other competitive dealers should submit bids and enter into competition with the defendants for the sale thereof; said defendants intending by the said schedule of prices, or price lists, to sell such commodities at said maximum prices, and for a large and substantial profit to themselves, when other dealers should not compete with them therefor, and to compel such competitive dealers to sell said commodities at cost, or without profit, when such competitive dealers should submit bids and enter into competition with the defendants therefor; the defendants then and there wrongfully agreeing to fix the prices at which said commodities should be sold, so as to obstruct and prevent competition in the sale thereof within said county of Charles Mix and in the state aforesaid. ***"

To this indictment each of the defendants entered a plea of "not guilty," and, upon their application, the cause was transferred to Turner county, where a jury was impaneled and a trial had. At the close of the trial, the case was dismissed as to defendant Kramer, and, as to defendants Floete Lumber Company and Turner, the court advised a verdict of not guilty, and they were acquitted. The other defendants were convicted. A motion for a new trial was granted as to defendant Mahaney, but was denied as to the defendants Fullerton Lumber Company, J. H. Queal & Co., L. C. Kroh, O. G. Meyer, James Jordan, and F. S. Vaughn, and they bring the cause here on appeal.

The record on appeal contains something over 100 assignments of error, which, so far as is necessary to a determination of the case, will be taken up in their order.

It appears, from the record, that the indictment in this case was returned at a special term of the circuit court, called by the presiding judge of the circuit, upon his own motion. Appellants contend that this was beyond the authority of such judge, and that, for that reason, the proceedings had at such term of court, including the presentation of the indictment, are void. In view of the constitutional and statutory provisions, and what has already been said by this court upon the subject of holding special terms of court, this contention does not merit serious consideration. By section 28 of article 5, Const., which relates to the holding of terms of circuit courts, it is provided that:

"Special terms of said courts may be held under such regulations as may be provided by law."

And section 661, Rev. Pol. Code, reads as follows:

"The judges of the circuit courts, respectively, shall have power, whenever thereunto a request be made by the board of commissioners of the counties wherein terms of courts are regularly holden, or upon their *** motion without such request, by an order to that effect, to appoint and hold terms of the circuit court in any county or subdivision, and the terms of court as in this article provided shall continue as long as the business therein shall require, and the judges thereof shall have power to adjourn such courts from time to time as they shall deem expedient for the due administration of justice; and such adjourned terms shall in all respects be considered the same as the regular terms, as in this article provided for."

The effect of this statute is to vest in the circuit judge broad discretionary powers in the matter of holding special terms of court. Upon the request of the board of county commissioners, he may order a special term to be held; or he may do it upon his own motion without such request. No attempt is made to specify the circumstances under which he may act upon his own motion, and the effect of the statute is the same as though it in terms provided that whenever, in the judgment of the presiding judge of the circuit, the administration of justice requires the holding of a special term of court, it becomes his duty to order that such term be held.

It is true that the law does not require, nor provide a method of giving, notice of the dates of special terms of court, but this by no means renders void the proceedings had at such term of court. Failure to give notice of the time of holding such term of court could not prejudice the rights of any one who had actual notice and was present in court, as these defendants were, and the court has ample power to afford relief to those whose rights may have suffered through lack of notice. In re Nelson, 19 S.D. 214, 102 N.W. 885. It is our conclusion that the presiding judge was acting within his constitutional and statutory powers when he convened the special term of court at which defendants were indicted; and, when the court was so convened, it was in session for all matters that might properly come before it.

Section 162, Rev. Code Cr. Proc., as amended by chapter 92, Laws of 1905, authorizes the presiding judge to make an order calling a grand jury, whenever it appears to his satisfaction that a grand jury is either necessary or desirable. It is not claimed in this case that a proper order calling the grand jury that indicted appellants was not made, and we hold that such jury was properly and legally called.

Through mistake or oversight, the name of the defendant O. G. Meyer was omitted from the title of the cause in the indictment in the case, though his name appears in the body of the indictment as one of the defendants; and, through mistake or oversight, the name of James Jordan was omitted from one place in the body of the indictment where the other defendants are named, although his name appears as a defendant in the title of the cause, and also at another place in the body of the indictment. Because of these omissions, these two defendants objected to the trial proceeding as against them, and now contend that they are not included as defendants in the case, that it cannot be said, from the indictment, that the grand jury intended to make them parties to the action, and that, as to them, such omissions are fatal to the indictment. This contention is based upon the provisions of sections 221, 222, Rev. Code Cr. Proc. Section 221 provides that:

"The

...