State v. Mallinckrodt Chemical Works

• Decision Date: 28 March 1913
• Citation: 249 Mo. 702,156 S.W. 967
• Parties: STATE ex rel. JONES, Circuit Attorney of City of St. Louis, v. MALLINCKRODT CHEMICAL WORKS.
• Court: Missouri Supreme Court

156 S.W. 967

249 Mo. 702

STATE ex rel. JONES, Circuit Attorney of City of St. Louis, v. MALLINCKRODT CHEMICAL WORKS.

Supreme Court of Missouri.

March 28, 1913.

Rehearing Denied April Term, 1913.

1. PARTIES (§ 96) — WAIVER OF DEFECTS.

Defendant waived any defect of parties plaintiff by not standing upon its demurrer to the petition on that ground and answering over to the merits; all defects upon the face of the petition, except that it does not state facts sufficient to constitute a cause of action and want of jurisdiction, being waived by answering under Rev. St. 1909, § 1804.

2. PARTIES (§ 76) — WAIVER OF DEFECTS — ANSWERING TO MERITS.

Any defect in a petition under Rev. St. 1909, § 10322, to forfeit the franchise of a corporation for failure to make affidavit that it was not connected with any monopoly, in that the proceeding was brought in the name of the circuit attorney for St. Louis city, instead of in the name of the state, was waived, where defendant answered without raising the question by demurrer.

3. PARTIES (§ 76) — DEFECTS — WAIVER.

Any defect in the petition in a proceeding to forfeit a corporate franchise for failure to file the affidavit that it was not a monopoly, as required by Rev. St. 1909, § 10322, in that it should have been brought for the use of the city of St. Louis, pursuant to Const. art. 11, § 8, was waived by answering to the merits.

4. STATUTES (§ 64) — INVALIDITY — PARTIAL INVALIDITY.

Even if Rev. St. 1909, § 10304, directing all fines and penalties collected under the chapter for violation of the anti-trust act to be paid into the state treasury, is unconstitutional, in that they should be collected for the use of the school fund of St. Louis city, pursuant to Const. art. 11, § 8, the invalidity of such provision would not affect the validity of the rest of the chapter.

5. STATUTES (§ 64) — PARTIAL INVALIDITY — FORFEITURE OF FRANCHISE — DISPOSITION OF PENALTIES.

Any invalidity of Rev. St. 1909, § 10304, requiring that all fines, etc., collected under the chapter for violation of the anti-trust act be paid into the state treasury, would not make a petition under section 10322 to forfeit a corporate franchise, etc., materially defective, since the disposition of fines is a matter for future consideration.

6. STATUTES (§ 225) — CONSTRUCTION — IN PARI MATERIA.

All statutes which are in pari materia should be construed together, in order to ascertain the legislative intent.

7. MONOPOLIES (§ 26) — FORFEITURE OF FRANCHISE — ALLEGATIONS OF PETITION.

Rev. St. 1909, § 10322, provides a penalty for failure to file an affidavit that the corporation is not connected with a trust, consisting of "a forfeiture of its charter or certificate of incorporation or its right or privilege to do business in this state"; and section 10327 provides that in all suits instituted under "this article" to forfeit the charter of corporations, or the right of a corporation to do business, where a judgment of forfeiture is obtained, the court shall allow the circuit attorney a fee as stated. Held, that a petition to forfeit a corporate franchise for failure to make the required affidavit was not defective for not alleging that the corporation was connected with a trust or monopoly; the affidavit being required by section 10322, irrespective of whether it had such connection.

8. CONSTITUTIONAL LAW (§ 197) — MONOPOLIES (§ 10) — EX POST FACTO LAW.

Rev. St. 1909, § 10322, requiring corporations to file with the Secretary of State an anti-trust affidavit, did not violate Const. art. 2, § 15, where the statute was enacted some three years before the corporation was required to file the affidavit.

9. CONSTITUTIONAL LAW (§ 197) — "EX POST FACTO LAW."

An "ex post facto law" is one which makes an act done before the enactment of a statute penal or criminal which was innocent when committed, or which aggravates a crime by making it greater than when committed, or inflicts a greater punishment than existed when the offense was committed.

10. MONOPOLIES (§ 26) — FORFEITURE OF FRANCHISE — REMEDIES — STATUTORY REMEDIES.

A petition under Rev. St. 1909, § 10322, requiring the prosecuting attorney or circuit attorney of St. Louis city to proceed against a corporation which has failed to file an antitrust affidavit as required for the forfeiture of its charter, was not defective on the ground that a proceeding by the circuit attorney was not in the nature of quo warranto, since the statute itself provided the proceeding.

11. MONOPOLIES (§ 25) — CORPORATE REPORTS — ANTI-TRUST AFFIDAVIT.

In view of Rev. St. 1909, § 8057, providing that, where the word "county" is used in any general law, it shall include the city of St. Louis, unless such construction be inconsistent with the legislative intent, the anti-trust affidavit required to be filed by all corporations by section 10322 would apply to corporate officers in St. Louis city, though the statutory affidavit is captioned "county."

12. CONSTITUTIONAL LAW (§ 240) — EQUAL PROTECTION OF LAW.

Rev. St. 1909, § 10322, requiring corporations to file an anti-trust affidavit with the Secretary of State, does not violate amendment 14 of the federal Constitution by denying to a corporation the equal protection of the law, on the ground that partnerships, individuals, etc., are exempt from its provisions.

13. WITNESSES (§ 304) — PRIVILEGE — SELF-INCRIMINATING TESTIMONY.

Rev. St. 1909, § 10322, requires the managing officer of all corporations to make an affidavit that the corporation has not participated in any trust agreement, etc.; and section 10325 provides that in case of noncompliance by the corporation with the demand of the Secretary of State for the affidavit required by the article the same procedure shall ensue as is provided in section 10322 of this article, provided that no person shall be subject to any criminal prosecution on account of any matter disclosed in the affidavit, and that in any prosecution under the article no witness shall be permitted to refuse to answer material questions or to produce any material papers upon the ground that to produce such papers or to answer such questions might tend to incriminate him, but no person shall be subject to prosecution or to any penalty action on account of anything concerning which he may testify. Held, that neither section contravened the constitutional provision that no person shall be compelled to testify against himself in a criminal case, nor was section 10325 open to objection that it was not as broad as the constitutional guaranty.

14. MONOPOLIES (§ 25) — CORPORATE REPORTS — SUFFICIENCY OF FORMS.

Rev. St. 1909, § 3025, requires the Secretary of State on or before June 15th of each year to mail to every stock company blanks to be used in making reports provided for by sections 3025-3034, inclusive; and section 10322 requires the Secretary of State to send to all corporations on or before July 1st of each year an anti-trust affidavit to be made and filed by the corporation. On June 13, 1910, the Secretary of State sent to defendant corporation a sheet with such blanks, affidavits, and reports, and the corporation returned the paper with the reports required by section 3025 duly executed, but with the blank affidavit printed on the reverse side unexecuted, and refused to execute the latter. Held, that the corporation could not defend an action for forfeiture of its franchise for failure to file the affidavit required by section 10322, on the ground that the Secretary of State did not serve upon it two separate and distinct blank reports, instead of having both of the blanks printed on the same paper.

15. MONOPOLIES (§ 26) — FORFEITURE OF FRANCHISE — FAILURE TO FILE REPORT — RELIEF FROM FORFEITURE.

Rev. St. 1909, § 10322, imposes a forfeiture of the franchise of any corporation which fails to file an anti-trust affidavit as required, but provides that if such corporation shall file the affidavit "prior to the rendition or final judgment in said action" the court "may" assess against the corporation, in lieu of a judgment of forfeiture, a fine as stated, provides that at any time before final judgment, if the corporation filed with the Secretary of State the required affidavit, "the trial court may in its discretion" remit the penalty prescribed. Held, that the Supreme Court could not, upon sustaining a judgment of forfeiture under the section, permit the corporation to make the required affidavit upon just terms.

Bond, J., dissenting.

In Banc. Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Proceedings by the State of Missouri, on relation of Seebert G. Jones, Circuit Attorney of the City of St. Louis, against the Mallinckrodt Chemical Works. From a judgment for relator, defendant appeals. Affirmed.

This was a suit instituted in the circuit court of the city of St. Louis, by the respondent against the appellant, to have its charter forfeited for failure to make and file with the Secretary of State, an anti-trust affidavit, as required by sections 10322 and 10323, R. S. 1909, regarding pools, trusts, conspiracies, and discriminations. A trial was had before the court without the intervention of a jury, which resulted in a decree in favor of the respondent, forfeiting the charter of the appellant as prayed. In proper time all necessary steps for an appeal were duly taken, and thereafter the cause was appealed to this court.

The petition filed in the cause was as follows:

"State of Missouri, City of St. Louis — ss.:

"In the Circuit Court of the City of St. Louis, October Term, 1910.

"The State of Missouri, at the Relation of Seebert G. Jones, Circuit Attorney of the City of St. Louis, Relator, v. Mallinckrodt Chemical Works, a Corporation, Respondent.

"Comes now Seebert G. Jones, circuit attorney within and for the city of St. Louis, in the state of Missouri, and states that the respondent is, and at all times hereinafter mentioned was, a corporation duly organized,...