State v. Omaha Elevator Co.

• Decision Date: 08 February 1906
• Citation: 75 Neb. 637,106 N.W. 979
• Parties: STATE v. OMAHA ELEVATOR CO. ET AL.
• Court: Nebraska Supreme Court

75 Neb. 637

106 N.W. 979

STATE

v.OMAHA ELEVATOR CO. ET AL.

Supreme Court of Nebraska.

Feb. 8, 1906.

Syllabus by the Court.

All statutes upon the same general subject are to be regarded as part of one system, and later statutes are to be considered as supplementary or complementary to those preceding them upon the same subject.

Statutes in pari materia should be construed together.

Repeals by implication are not favored. Where the Legislature has passed two statutes upon the same subject, the later covering the entire matter embraced in the first and also additional provisions, the later act supersedes the first and repeals the first by implication. But if the later statute does not cover the entire field of the first and fails to embrace within its terms a material portion of the first, it will not repeal so much of the first as is not included within its scope, but the two will be construed together, so far as the first still stands.

Rule applied, and held, that the anti-trust act of 1897, known as the “Gondring Act” (Sess. Laws 1897, p. 347, c. 79), was repealed by implication by the anti-trust act of 1905 known as the “Junkin Act” (Sess. Laws 1905, p. 636, c. 162), except as to the first section thereof defining “trusts.”

Unless it appears from its terms that an act applying to a certain class of persons is meant to cover all inhibitions and regulations affecting them, a later general act applying to all persons and prohibiting in general terms the acts specified in the former act as well as a number of other acts and purposes, defining new crimes and prescribing new penalties, and giving new civil remedies, will not be held to except the persons embraced in the former act from the operation of the latter.

Rule applied, and held, that the acts of 1887 (Sess. Laws 1887, p. 675, c. 114) and 1897 (Sess. Laws 1897, p. 352, c. 80), prohibiting combinations by grain dealers and others to fix the price of grain, etc., do not except such dealers from the operation of the later general antitrust acts of 1897 (Sess. Laws 1897, p. 347, c. 79) and 1905 (Sess. Laws 1905, p. 636, c. 162), applying to all illegal combinations to fix prices, etc.

Action by the state against the Omaha Elevator Company and others. Demurrer to petition overruled.

Norris Brown, Atty. Gen., W. T. Thompson, Deputy Atty. Gen., J. J. Sullivan, and Jefferis & Howell, for the State.

Kennedy & Learned, Hall, Woods & Pound, Smyth & Smith, Courtwright & Sidner, Strode & Strode, W. C. Walton, F. A. Brogan, O. B. Polk, I. E. Congdon, A. A. Welch, D. O. Dwyer, L. S. Hastings, John C. Watson, Clark O'Hanlon, and Brome & Burnett, for defendants.

LETTON, J.

This action was brought by the Attorney General of the state of Nebraska, on behalf of the state, against the Omaha Elevator Company, a corporation, and 23 other corporations, and against William H. Ferguson and 25 other individuals. The petition alleges, in substance, that each and all the defendant corporations and individuals are, and for many years have been engaged in the several counties of the state of Nebraska in the business of dealing in and shipping of grains of all kinds, and were the owners and operators of over 400 elevators at stations along the railway lines of said state, and that by reason of these facilities they are doing and have done an annual business in dealing in Nebraska grain to the amount of about 200,000,000 bushels per year. That the defendants now and for the last three years have been willfully and unlawfully combining and conspiring together for the purpose of pooling the prices to be paid for all kinds of grain in Nebraska and for the purpose of dividing between themselves the aggregate or net proceeds of the earnings of themselves and for the purpose of fixing the prices to be paid for, and preventing competition and restraining trade and commerce in grain in said state, so as to give them and each of them a monopoly of the grain trade in this state, to the end that they might enjoy unreasonable and unconscionable profits, and that these unlawful purposes have been attained. That the defendants, for the purpose of carrying out the conspiracy, organized what is known as the Nebraska Grain Dealers' Association. That certain defendants (naming them), are the officers of said association; that by the rules of the association no person or corporation was eligible to membership therein unless he or it was engaged in the buying, selling, or shipping of grain and who owned one or more elevators situated upon the right of way of some railroad, and no person or corporation was eligible who owned, controlled, or operated an elevator or “scoop shovel house” off the right of way; that all the defendants are members of said association and are known to each other and designated as “regular grain dealers.” All other dealers are known to the members of said association as “irregular grain dealers.” That there are and were for the last three years in Nebraska more than 1,200 grain elevators controlled by said association and subject to its rules, by-laws, regulations, and penalties, adopting and agreeing to the prices fixed for grain bought and sold by the officers of the association and doing business only with such persons and elevators as they should name; that there are less than 50 independent elevators and grain dealers in the state of Nebraska; that the defendants control at least 90 per cent. of the grain trade in this state; that they intend to continue such combination and will compel their respective members, agents, and servants to refrain from bidding against each other except perfunctorily, and by these means compel the owners of grains to sell at prices less than they would receive if the bidding was really and in truth competitive. That they have arbitrarily, from time to time, raised, lowered, and fixed the prices of grain and have undertaken and do now undertake to maintain uniform prices at which they will buy grain throughout the state. This purpose is and has been accomplished by means of secret meetings of the officers of said association, where the prices of grain are fixed, to be in force until changed by some subsequent meeting; that the prices are thereby maintained directly by the defendants, and by collusively restricting the volume of trade, by imposing and collecting penalties for the violation of the rules of the association, by notifying one another of the delinquencies of any of its members, and by keeping a black list of delinquents and refusing to deal with them, the price of grain is established, and competition entirely destroyed. That the defendants have each and all engaged in and will continue agreements and arrangements with the several railroad companies doing business in Nebraska, whereby they receive secretly, by means of rebates and other devices, freight rates less than those charged the public, and thereby no competitor is able to engage or to continue in the grain business, which facts result in giving the defendants a monopoly of the trade in grain in this state. That the defendants intend to continue and to sustain and carry on all the unlawful practices before recited, all in violation of law and to the irreparable injury of the public. That the defendants who are domestic corporations have abused and violated their franchises and forfeited their right to exist and do business in this state, and those defendants which are foreign corporations have likewise abused their franchises and forfeited their right to longer engage in business in Nebraska, by willfully violating the laws of this state. The prayer of the petition is that the defendants be adjudged guilty of the acts complained of and be perpetually restrained from every connection with the Nebraska Grain Dealers' Association; that the association be disolved; that the defendants who are officers of the association be perpetually enjoined from acting as such officers; that the defendants who are domestic corporations be dissolved and ousted of their corporate franchises, and that those who are foreign corporations be decreed to have abused their franchises to do business in this state and be forever ousted from the further exercise of the same in this state; that the defendants be perpetually enjoined from engaging in any contract or combination with one another, or with other persons or corporations, to prevent or limit competition in the grain trade or to fix and control the prices or to divide the net profits or to enter into any agreement for the pooling of prices or to solicit or receive rebates from any railway company or to create or carry out any restrictions or to limit or reduce the price, and for general relief in equity. To this petition the defendants have severally filed demurrers, upon the grounds that the court has no jurisdiction; that the plaintiff has no legal capacity to sue; that there is a defect of parties defendant; that several causes of action are improperly joined; and that the petition does not state facts sufficient to constitute a cause of action.

In order to understand the contentions made by the defendants, it will be necessary to review the legislation in this state having for its object the prevention of combinations, trusts, monopolies, pools, and other devices designed to restrain competition. In 1887 the Legislature passed an act, entitled “An act to prohibit grain dealers, persons, partnerships, companies, corporations, or associations from combining or entering into any agreement or contract to pool or fix the price to be paid for grain, hogs, cattle or stock of any kind whatever, and to provide punishment for violation of the same.” Laws 1887, p. 675, c. 114. The substance of this act is that it was declared unlawful for any persons, partnerships, corporations or associations to enter into any agreement, contract, or combination with any other of the same class for the pooling of prices of competitive dealers and buyers...