State v. Laredo Ice Co.

• Decision Date: 27 April 1903
• Parties: STATE v. LAREDO ICE CO. et al.
• Court: Texas Supreme Court

73 S.W. 951

STATE v. LAREDO ICE CO. et al.

Supreme Court of Texas.

April 27, 1903.

Certified Question from Court of Civil Appeals of Fourth Supreme Judicial District.

Action by the state of Texas against the Laredo Ice Company and others. From an order sustaining a demurrer to the petition, plaintiff appealed to the Court of Civil Appeals. On certified question from the Court of Civil Appeals.

C. K. Bell, Atty. Gen., and T. S. Reese, Asst. Atty. Gen., for the State. E. A. Atlee and Nicholson & Mullally, for appellees.

BROWN, J.

Certified question from the Court of Civil Appeals for the Fourth Supreme Judicial District, as follows:

"This is a suit brought by the state of Texas against the defendants, the Laredo Ice Company, a corporation composed of H. A. and P. M. Sauvignet, and the Consumers' Ice Company, a copartnership organized under the laws of the state of Texas, for the purpose of recovering penalties for a violation of the anti-trust law of 1899. It was alleged that the defendants had entered into a combination or agreement with each other by which they had formed a pool, trust, agreement, combination, confederation, understanding, and association with each other to regulate and fix, and that they did regulate and fix, the price of ice in the county of Webb, in the state of Texas; that such agreement was maintained from about the 19th day of June, 1902, to the date of the filing of the petition. The defendants filed a general demurrer to plaintiff's petition, which presented the question of the constitutionality of the anti-trust law of the state of Texas, approved March 25, 1899. The court, sustaining the demurrer, held the law to be unconstitutional, and dismissed the case, from which judgment this appeal was taken.

"Question. Is the act of the Twenty-Sixth Legislature (chapter 146, Acts 1899, p. 246) under which this action is brought, constitutional?"

It is claimed by counsel for appellees that the act referred to, known as the "Anti-Trust Law of 1899" (Laws 26th Leg. p. 246, c. 146), is void for the following reasons: (1) Because the fourteenth section has the effect to make it a part of the act of 1895, and to incorporate into the act of 1899 the proviso of section 12, c. 83, p. 115, of the law of 1895. (2) Because the act of 1899 prescribes for those who shall violate it excessive fines, contrary to section 13, art. 1, of the Constitution of this state. (3) Because the provision of the law which makes the failure of a party to respond to the demand of the Secretary of State for an affidavit prima facie evidence of a violation of the law is in conflict with section 10, art. 1, of the Constitution, in that it makes the accused testify against itself.

The fourteenth section of the act of 1899 concerning trusts and monopolies is in this language: "The provisions of the foregoing sections, and the fines and penalties provided for violations of this act shall be held and construed to be cumulative of all laws now in force in this state." Counsel for appellees earnestly contend that the effect of this provision is to consolidate and to make one law of the act of 1895 and the act of 1899, and thereby to give exemption from prosecution under the law of 1899 to those persons who are exempted by the provisions of the law of 1895. The term "cumulative" indicates an harmonious coexistence and co-operation, rather than a consolidation of two things into one. An amendment to a statute is not "cumulative" because it repeals and takes the place of the part of the law that it amends, thereby becoming a part of the law amended. It is true that, in seeking the meaning of language used in a statute, it is proper to consider all of the acts of the same legislative body which are in pari materia, because "it is supposed that there has been no change in the legislative intent and purpose," unless it is manifested by some change of language. Sutherland, Stat. Constr. § 283. But this is a rule of construction, merely, and does not constitute each act a part of every other act on the same subject. Laws which are said to be in pari materia are parts of a common system or policy, but are not one and the same law. Counsel press that rule of construction with force and earnestness, stopping little short of the...