State v. McClellan

• Citation: 155 La. 37,98 So. 748
• Decision Date: 05 November 1923
• Docket Number: 26095
• Court: Supreme Court of Louisiana
• Parties: STATE v. McCLELLAN

98 So. 748

155 La. 37

STATE v. McCLELLAN

No. 26095

Supreme Court of Louisiana

November 5, 1923

Rehearing Denied by Whole Court January 7, 1924

Appeal from Criminal District Court, Parish of Orleans; Alexander C O'Donnell, Judge.

Byron C. McClellan was charged with attempting to monopolize a certain part of trade and commerce within the state, and from a judgment sustaining a motion to quash the indictment the State appeals.

Affirmed.

A. V Coco, Atty. Gen., and R. H. Marr, Dist. Atty., of New Orleans (T. S. Walmsley, of New Orleans, of counsel), for the State.

St. Clair Adams, John O. Davey, and Charles A. Byrne, all of New Orleans, for appellee.

THOMPSON J. O'NIELL, DAWKINS, and LAND, JJ., dissent.

OPINION

THOMPSON, J.

The state appeals from a judgment which sustained a motion to quash the indictment against the defendant. The charge is that the defendant "did unlawfully attempt to monopolize a certain part of the trade and commerce within the limits of this state, to wit, the laundry business in the city of New Orleans."

There are two acts of the Legislature (Acts 86 of 1890 and Act 11 of the Extra Session of 1915) whose purpose was to protect trade and commerce against unlawful restraints, combinations, conspiracies, and monopolies. One of the grounds of the motion to quash is that the charge against the defendant is based on Act 86 of 1890, whereas that act was repealed by Act 11 of 1915. It is admitted that the district attorney had before him the act of 1890 when he prepared the indictment, and this is plainly indicated by the indorsement on the back of the indictment. The language of the indictment, however, follows substantially that of Act 11 of the Extra Session of 1915, and it is to the body of the indictment that we must look to ascertain the crime with which a defendant is charged, rather than to the indorsement which is no substantive part of the indictment or charge. State v. Pointdexter, 117 La. 380, 41 So. 688; State v. Daniels, 122 La. 261, 47 So. 599.

There can be no doubt that the act of 1890 was superseded by the act of 1915. The two acts are inconsistent, the one with the other, in that the latter act makes the crime intended to be denounced a relative felony, while the former made the crime only a misdemeanor. Where two criminal statutes are repugnant as to the punishment that may be inflicted, they cannot stand together. State v. Hickman, 127 La. 442, 53 So. 680. Of course, the defendant could not be prosecuted under the repealed statute, but, as the indictment follows the language of the later act, it is sufficient, if it is otherwise legal, and the defendant is brought within its terms.

Another ground of the motion to quash is that the indictment is bad for uncertainty, because it does not allege or set out in what manner defendant unlawfully attempted to monopolize the laundry business in the city of New Orleans, or what facts and circumstances constituted said attempts to monopolize. It is true that neither the indictment nor the agreed statement of facts informs us of the relation which the defendant bears to the laundry business of New Orleans, and what interest he has therein, whether as owner, lessee, manager, or agent. Nor does the indictment set out in what manner the defendant attempted to bring about a monopoly of the laundry business. Section 10 of the Bill of Rights of the Constitution of 1921 plainly provides that in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation against him, and prosecuting officers would do well more carefully to observe this constitutional requirement; but the rule is well settled that, in prosecutions for purely statutory offenses, it is sufficient for the indictment or information to follow the language of the statute or language equivalent to that used in the statute. State v. Bulloch, 151 La. 593, 594, 92 So. 127. And it is another familiar rule of jurisprudence that, if the indictment does not sufficiently set forth the acts charged against the defendant particularly in matters of description, he waives the defect, if he fails to ask for a bill of particulars. State v. Cleary, 152 La. 265, 92 So. 892; and cases there cited.

The motion to quash attacks the constitutionality of Act 86 of 1890, on the ground that said act is repugnant to article 29 of the Constitution of 1879, article 31 of the Constitution of 1898, and section 16 of article 3 of the Constitution of 1921, which provide that every law shall embrace but one object which shall be expressed in its title. The question is of no importance and concern to the defendant, since he is not prosecuted under the act of 1890, and since that act has been repealed by the act of 1915. We note in defendant's brief that his learned counsel argue the same constitutional objection against the act of 1915, but we do not find any such attack in the motion to quash, and there has been no assignment of errors filed. But be that as it may, there is a ground set up in the motion which we regard as fatal to the indictment and prosecution against the defendant, and, this being true, it is unnecessary to consider the question of the constitutionality of the act. At all events, the defendant, under the conclusion we have reached, is without interest to raise the question of the constitutionality of the act. State v. Rogers, 148 La. 653, 87 So. 504.

The motion to quash alleges that the indictment and the matters and things therein alleged set forth and charge no crime known to the laws of Louisiana; that the laundry business in the city of New Orleans is not trade or commerce, and is not trade or commerce within the meaning and intendment of those words as used in the statute under which said indictment was drawn.

It is admitted in the statement of facts attached to the motion to quash:

"That in the laundry business in the city of New Oreleans no article is manufactured or sold, said laundries doing no business other than receiving dirty clothes, laundering them, and returning them, cleansed, to the customer.

"That the operation of washing, drying, starching, dampening, and ironing the laundry is largely mechanical or by means of steam and machinery designed for the purpose, supplemented by manual labor, performed by men and women.

"All materials used in the washing, starching, and ironing operation, such as soap, starch, blueing, and other necessary articles are purchased by the laundry from the manufacturers or dealers.

"The laundry requires the use of a large number of wagons and motor trucks and the services of a large number of drivers to transport the laundry from and to the residences, places of business, ships, hotels, and different agencies in the city.

"The laundries trade or deal with their customers through the truck or wagon drivers who solicit business; paid solicitors employed by the laundries; various agencies established throughout the city and in other towns; and the offices of the different laundries."

The title of the act is: "To protect trade and commerce against unlawful restraints, combinations, conspiracies and monopolies, and to provide remedies" and penalties "against same."

The first section of the act relates to antitrust contracts:

"That every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce in the state of Louisiana is hereby declared to be illegal."

"Every person who shall make any such contract, or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor," etc.

" Sec. 2. That every person who shall monopolize, or attempt to monopolize, * * * any part of the trade or commerce within the State of Louisiana, shall be deemed guilty," etc.

" Sec. 4. That it shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or sell, or contract for the sale of goods, wares, merchandise, machinery, supplies, or other commodities, whether patented or unpatented, for use, consumption or resale within this state, or to fix a price charged therefor, or discount from, or rebate upon such price, on the condition, agreement or understanding that the purchaser or lessee thereof shall not use or deal in the goods, wares, merchandise, machinery or other commodities of a competitor or competitors of the vendor or lessor, where the effect of such sale, or contract for sale, or lease, or such condition, agreement or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce."

It is clear that the charge as set out in the indictment does not bring the defendant within the terms of the first section of the act, for that section relates exclusively to contracts, etc., in restraint of trade. Section 2 does not define what acts shall constitute an attempt to monopolize any trade or commerce, nor what acts shall constitute a monopoly within the intent and purpose of that section, which is the only section of the act that fixes a penalty for the doing of the things mentioned in the section as unlawful.

We must have recourse, therefore, to section 4 for a definition of "an attempt to monopolize trade and commerce," if any such definition is to be found in the act at all. Counsel for the state concede that, if the act of 1915 consisted of section 4 alone, there might be some force in defendant's contention, but they say that other things...