State v. Jack

• Decision Date: 07 May 1904
• Docket Number: 13,774
• Citation: 69 Kan. 387,76 P. 911
• Parties: THE STATE OF KANSAS v. JOHN D. JACK
• Court: Kansas Supreme Court

76 P. 911

69 Kan. 387

THE STATE OF KANSAS v. JOHN D. JACK

No. 13,774

Supreme Court of Kansas

May 7, 1904

Decided January, 1904.

Appeal from Shawnee district court; Z. T. HAZEN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ANTI-TRUST LAW -- Provision for Preliminary Examination of Witnesses Approved. A proceeding before the district court or judge thereof upon the written application of the county attorney or attorney-general, under section 10 of chapter 265, Laws of 1897 (Gen. Stat. 1901, § 7873), to subpoena witnesses to testify of their knowledge of violations of provisions of the act known as the "anti-trust law," is of the nature of an investigation, or preliminary proceeding, and is a valid exercise of judicial power, the procedure being "due process of law," within the meaning of the fourteenth amendment to the federal constitution.

2. ANTI-TRUST LAW -- Exemption Provision of Bill of Rights Held Not Available. The exemption provided by section 10 of the bill of rights (Gen. Stat. 1901, § 92), that "no person shall be a witness against himself," cannot be claimed by a witness when, by the terms of a statute, the immunity afforded is coextensive with the constitutional privilege of silence.

3. ANTI-TRUST LAW -- Immunity Provision Held Coextensive with Constitutional One. The immunity afforded by section 10 of the antitrust law of 1897 to a witness subpoenaed in a proceeding or inquiry to testify of his knowledge of violations of that law is coextensive with the constitutional privilege that "no person shall be a witness against himself."

4. ANTI-TRUST LAW -- Possibility of Prosecution under Federal Anti-trust Law Will Not Excuse Witness from Testifying. A witness subpoenaed in a proceeding or inquiry to testify of his knowledge of violations of the anti-trust law cannot refuse to give his evidence on the ground that the immunity provided by section 10 of the act does not afford protection against the use of his evidence in a prosecution against him for violations of the federal antitrust law.

5. ANTI-TRUST LAW -- Prohibition of Doing Further Business in the State Construed. The provision of section 5 of the anti-trust law of 1897, that every person, company or corporation violating any of the provisions of the act be denied the right of, and prohibited from, doing any business within the state, contemplates the prohibiting of the continuance of, or the engagement in, business only when such business is in violation of the act.

6. ANTI-TRUST LAW -- Provision of Defense in Civil Action Construed. The provision of section 7 of the anti-trust law of 1897, that in any civil action there may be pleaded in defense that the plaintiff, or any person interested in the prosecution, has, within one year, been guilty of a violation of any of the provisions of the act, contemplates only civil actions relating to, and growing out of, transactions prohibited by the act.

7. ANTI-TRUST LAW -- Law Held Not in Contravention of Fourteenth Amendment to the Federal Constitution. The anti-trust law of 1897 is held not to be in contravention of the provisions of the fourteenth amendment to the constitution of the United States, but to be a valid exercise of legislative power.

C. C Coleman, attorney-general, Otis E. Hungate, county attorney, Edwin A. Austin, and Thompson, Springer & Price, for The State.

Rossington, Smith & Histed, J. T. Pringle, and R. B. Gilluly, for appellant.

ATKINSON J. All the Justices concurring.

OPINION

ATKINSON, J.:

This is an appeal by John D. Jack from a judgment of imprisonment for contempt by the district court of Shawnee county. Appellant, as a witness, refused to answer certain questions in a proceeding, or investigation, in that court concerning the existence of unlawful combinations of coal-operators, and was adjudged guilty of contempt.

On September 3, 1903, the attorney-general and the county attorney of Shawnee county, proceeding under section 10 of chapter 265, Laws of 1897 (Gen. Stat. 1901, § 7873), filed in the district court of Shawnee county their verified application, informing the court of the existence of unlawful combinations of persons engaged in the operation of coal-mines in Osage county, for the purpose of fixing the price of coal at the mines and the price to be charged to purchasers. It was therein averred that the members of these combinations met monthly in the county of Shawnee and fixed minimum prices to be charged for coal, and agreed that they would not sell it for less than such minimum prices, and that these agreements were carried out and executed by the members. Among others named in said application as having knowledge of the existence of these combinations was appellant, and for him it was therein asked that a subpoena issue. The district judge awarded subpoenas upon the application. The court denied the motion of appellant to quash the subpoena issued, and he thereupon appeared in court as a witness, and was asked the following questions:

"Ques. Do you know of any meetings of the operators of Osage county being held in this city [Topeka] at intervals during the last year?

"Q. I will ask you if you have any knowledge of a combine's or an agreement's being entered into by operators in coal of Osage county for the purpose of fixing the price of coal sold to residents and citizens of Kansas?

"Q. Have you any knowledge of any meetings of coal-operators of Osage county, Kansas, being held in this city on the last Saturday night of each month during the last year, the purpose of which was to fix the price of coal which was to be charged to citizens of Kansas?

"Q. Do you know of any agreement's having been entered into within this county within the last year between the operators in coal who operate in Osage county, Kansas, by which they attempted to fix and settle the price of coal between themselves and citizens of Kansas?"

Appellant refused to answer each of the foregoing questions, assigning the following as his reason therefor:

"I am engaged in operating a coal-mine in Osage county, Kansas, and in dealing in the output of said mines, and am one of the persons named in the application for subpoenas in this proceeding. The product of the mines of Osage county is the subject of both domestic and interstate commerce. I respectfully decline to answer the questions, or to testify with reference to the subject of this inquiry, for the reason that, in answering the questions and in submitting myself to an examination as a witness, I may incriminate myself and give information as to the details of the said alleged combination and agreement, and the names of parties and witnesses which might supply the means of convicting me of a crime and of subjecting me to imprisonment, fines, forfeitures, and penalties, and I therefore claim the privilege and immunity of section 10 of the bill of rights."

The anti-trust law (Laws 1897, ch. 265; Gen. Stat. 1901, §§ 7864-7874) is vigorously assailed. It is charged that the act is in violation of the fourteenth amendment to the federal constitution, in that it deprives a person of liberty and property without due process of law, and denies him the equal protection of the law. It is also charged that the requiring of appellant to answer these questions (his refusal so to do being the cause of his imprisonment for contempt) deprives him of the rights, privileges and immunities guaranteed by section 10 of the bill of rights (Gen. Stat. 1901, § 92). The motion to quash the subpoena raised the question whether the proceedings upon the application and the issuing of subpoenas thereunder, as provided by section 10 of the act of 1897, were "due process of law," within the meaning of the fourteenth amendment to the federal constitution. Said section reads:

"The several district courts of this state and the judges thereof shall have jurisdiction, and it shall be their duty, upon good cause shown and upon written application of the county attorney or the attorney-general, to cause to be issued by the clerk of said court subpoenas for such witnesses as may be named in the application of a county attorney or the attorney-general, and to cause the same to be served by the sheriff of the county where such subpoena is issued; and such witnesses shall be compelled to appear before such court or judge at the time and place set forth in the subpoena, and shall be compelled to testify as to any knowledge they may have of the violations of any of the provisions of this act; and any witness who fails or refuses to attend and testify shall be punished as for contempt, as provided by law. Any person subpoenaed and examined shall not be liable to criminal prosecution for any violation of this act about which he may testify. Neither shall the evidence of any such witness be used against him in any criminal proceeding. The evidence of all witnesses so subpoenaed shall be taken down by the reporter of said court, and shall be transcribed and placed in the hands of the county attorney or the attorney-general, and he shall, in the proper courts, at once prosecute such violator or violators of this act as the testimony so taken shall disclose. Witnesses subpoenaed as provided for in this section shall be compelled to attend from any county in the state."

It is urged by appellant that the proceeding provided by this section is not judicial in its character, and is not "due process of law," in that it is not founded upon complaint, information, or indictment. District courts are expressly created by the constitution, and therein given such jurisdiction as may be provided by law (Const., § 6, art. 3), its extent and practice being left to the legislature. Judges of the district courts are expressly created by the constitution,...