State v. Shepherd Const. Co., Inc.

• Decision Date: 07 July 1981
• Docket Number: INC,Nos. 37387,37422 and 37473,ASHLAND-WARRE,37421,s. 37387
• Citation: 248 Ga. 1,281 S.E.2d 151
• Court: Georgia Supreme Court
• Parties: , 1983-1 Trade Cases P 65,237 STATE v. SHEPHERD CONSTRUCTION COMPANY, INC. et al. SHEPHERD CONSTRUCTION COMPANY, INC. et al. v. STATE.v. STATE.

Page 151

281 S.E.2d 151

248 Ga. 1, 1983-1 Trade Cases P 65,237

STATE v. SHEPHERD CONSTRUCTION COMPANY, INC. et al.

SHEPHERD CONSTRUCTION COMPANY, INC. et al. v. STATE.

ASHLAND-WARREN, INC. v. STATE.

Nos. 37387, 37421, 37422 and 37473.

Supreme Court of Georgia.

July 7, 1981.

Rehearing Denied July 23, 1984.

David H. Flint, Warren O. Wheeler, Schreeder, Wheeler & Flint, Marvin S. Arrington, John J. Goger, Arrington, Rubin, Winter, Krischer & Goger, P. C., Atlanta, Charles H. Hyatt, David R. Rogers, Decatur, for Shepherd Const. Co., Inc., et al.

William G. Vance, Alan E. Lubel, Ralph H. Greil, Mitchell S. Rosen, Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ray S. Bolze, Roger C. Simmons, Howrey & Simon, Washington, D. C., for Ashland-Warren, Inc.

Arthur K. Bolton, Atty. Gen., G. Thomas Davis, Sp. Asst. Atty. Gen., Michael E. Sullivan, Asst. Atty. Gen., Lewis R. Slaton, Dist. Atty., Edward T. M. Garland, Joseph F. Page, Garland, Nuckolls & Catts, P. C., Atlanta, Bobby Lee Cook, Branch L. Connelly, Cook & Palmour, Summerville, for the State.

JORDAN, Chief Justice.

The State of Georgia indicted the Shepherd Construction Company, Inc., Dan P Shepherd and J. Harold Shepherd (hereinafter "The Shepherds") on seven counts of "conspiracy in restraint of free and open competition in transactions with the State" (Code Ann. § 26-2308(a)). The indictment charged the Shepherds with conspiring with certain others either to prohibit said others from submitting various road project bids lower than the Shepherds' bids or to prohibit the Shepherd Construction Company, Inc. from submitting various road project bids lower than the others' bids. The Shepherds filed a series of pretrial motions. After holding a hearing, the trial court granted two of the Shepherd's motions and denied the remainder. The State appeals the two motions which the trial court granted and the Shepherds appeal the remaining motions which the trial court denied.

The State indicted Ashland-Warren, Inc. (hereinafter Ashland) and two of its officers on four counts of violating Code Ann. § 26-2308(a). Ashland moved to dismiss the indictment as to itself on the ground that a corporation could not be charged under § 26-2308(a) because the statute provides only punishment by imprisonment. The trial court denied said motion and Ashland appealed to the Court of Appeals. On the motion of Ashland, this Court ordered the appeal transferred to this Court as a companion to the Shepherd appeal because one of the motions denied by the Shepherd trial court had raised the same issue as the Ashland motion.

I. (a) The State argues that the trial court erred in holding that Code Ann. § 26-2308(a) was unconstitutional because overbroad and facially vague. We agree.

Code Ann. § 26-2308(a) provides that "a person who enters into a contract, combination, or conspiracy in restraint of trade or in restraint of free and open competition in any transaction with the state or any agency thereof, whether said transaction be for goods, materials, or services, shall, upon conviction, be punished by imprisonment for not less than one nor more than five years...."

As defined by the common law, the phrase "restraint of trade" means restraint of competition, Griffin v. Vandegriff, 205 Ga. 288, 293, 53 S.E.2d 345 (1949); State v. Central of Georgia Railway Company, 109 Ga. 716, 35 S.E. 37 (1889); Standard Oil Company of New Jersey v. U. S., 221 U.S. 1, 39, 55, 57, 59-61, 31 S.Ct. 502, 507, 513, 514, 515-516, 55 L.Ed. 319 (1910), and, the prohibition against "a conspiracy in restraint of trade or in restraint of free and open competition" means simply a prohibition against a conspiracy in unreasonable restraint of competition. State of Georgia v. Central of Georgia Railway Company, 109 Ga. at 725, 35 S.E. 37; National Society of Professional Engineers v. U. S., 435 U.S. 679, 687-90, 98 S.Ct. 1355, 1363-64, 55 L.Ed.2d 637 (1977); Northern Pacific Railway Co. v. U. S., 356 U.S. 1, 4, 5, 78 S.Ct. 514, 517, 518, 2 L.Ed.2d 545 (1957); Appalachian Coals, Inc. v. U. S., 288 U.S. 344, 359-60, 53 S.Ct. 471, 473-74, 77 L.Ed. 825 (1932).

A statute is overbroad only if said statute "does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press." Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1939).

The first amendment does not protect speech which is "used in such circumstances and (is) of such a nature as to create a clear and present danger that it will bring about the substantive evils that (the state) has a right to prevent." Schenck v. U. S., 249 U.S. 49, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1918).

In the present case, Code Ann. § 26-2308(a) bans only that speech by which individuals conspire to create an unreasonable restraint against competition that is, only that speech which constitutes a clear and present danger of a substantive evil which the state may avoid.

Code Ann. § 26-2308(a) is not unconstitutional because overbroad.

A criminal statute is unconstitutionally vague if (1) the statute failed to give full notice to the defendant that his conduct was forbidden, see Smith v. Goguen, 415 U.S. 566, 577-78, 94 S.Ct. 1242, 1249-50, 39 L.Ed.2d 605 (1973); (2) the statute failed to give fair notice to anyone (including the defendant) that his conduct was forbidden, see, Smith v. Goguen, at 572, 578, 94 S.Ct. at 1246, 1249; or (3) the statute (although it does give fair notice to the defendant) failed to give fair notice to someone else that his conduct was forbidden. See Young v. American Mini Theaters, 427 U.S. 50, 58-61, 96 S.Ct. 2440, 2446-48, 49 L.Ed.2d 310 (1975).

A defendant has standing to challenge a statute for failure to give fair notice to someone else only if (1) the conduct for which the someone else could be prosecuted under the challenged statute is expression protected by the First Amendment and (2) the statute's deterrent effect against the other person's performing his protected expressive conduct is both real and substantial. Young v. American Mini Theaters, 427 U.S. at 59-60, 96 S.Ct. at 2446-47. Contra Parker v. Levy, 417 U.S. 733, 756-7, 94 S.Ct. 2547, 2561-62, 41 L.Ed.2d 439 (1973).

We find that the deterrent effect of Code Ann. § 26-2308(a) against someone else's performing his protected expressive conduct is neither real nor substantial. See Bates v. State Bar of Arizona, 433 U.S. 377, 379-81, 97 S.Ct. 2691, 2706-08, 53 L.Ed.2d 810 (1977).

Accordingly, we hold that the Shepherds are without standing to challenge Code Ann. § 26-2308(a) for failure to give fair notice to third parties.

The common law definition of the prohibition contained in Code Ann. § 26-2308(a) (unreasonable restraint of competition) gave the Shepherds more than fair notice that their conduct was prohibited by said statute. U. S. v. U. S. Gypsum Company, 438 U.S. 422, 438-40, 98 S.Ct. 2864, 2874-75, 57 L.Ed.2d 854 (1977); U. S. v. Brighton Building & Maintenance Co., 598 F.2d 1101, 1105 (1979).

Accordingly, we hold that Code Ann. § 26-2308(a) is not unconstitutionally vague as applied to the Shepherds (and, a fortiori, we also hold that said Code Section is not unconstitutionally vague as applied to everybody).

(b) The State argues that the trial court erred in granting the Shepherds' special demurrer to Counts 2 thru 7 of the indictment. Said Counts charged the Shepherds with conspiring with named individuals "and others" or "and another" to restrain free and open competition in transactions with the state.

An accused is entitled to an indictment perfect in form as well as substance if he raises the question on special demurrer. See, State v. Eubanks, 239 Ga. 483, 238 S.E.2d 38 (1977). The "perfect" indictment must either name the alleged "other" conspirators or label them as unknown or unindicted. See Martin v. State, 115 Ga. 255, 256-7, 41 S.E. 576 (1902) (dictum); U. S. v. Briggs, 514 F.2d 794 (1975). See generally Thompson v. Macon-Bibb County Hospital Authority, 246 Ga. 777, 273 S.E.2d 19 (1980).

In the present case, however, the names of the "other" conspirators had been given to the Shepherds by the state in the state's written response to the Shepherds' Brady motion.

For this reason, we hold that the trial court erred in granting the Shepherds' special demurrer to Counts 2 through 7 of the indictment. See, U. S. v. Briggs, 514 F.2d at 800, 805.

II. (a) The Shepherds enumerate as error the trial court's denial of their motion to dismiss Count I of the indictment as barred by the four-year period of limitations in Code Ann. § 26-502(c). The trial court noted the State's allegation in Count I that the offense was unknown until October 20, 1980, and, held that, under Code Ann. § 27-601(4), said allegation stated a legally sufficient ground for tolling the otherwise expired four-year period of limitation in Code Ann. § 26-502(c).

The Shepherds note, however, that, under Code Ann. § 26-503(b), the state's allegation does not state a legally sufficient ground for tolling the otherwise expired four-year period of limitations, and, argue that Code Ann. § 26-503(b) impliedly repealed that part of Code Ann. § 27-601(4) which provides that the period of limitation shall not run so long as the offense is unknown.

Code Ann. § 26-502, 503, and 504, effective July 1, 1969, track the provisions of Code Ann. § 27-601 (Cobb, 838, 842). Code Ann. § 26-503, however, in tracking that part of Code Ann. § 27-601 which provides that "(No) limitation shall run so long as the offender or offense is unknown," states only that no limitation shall run so long as "the person committing the crime or crimes is unknown...."

Accordingly, we hold that Code Ann. § 26-503 impliedly repealed that part of Code Ann. § 27-601 which provides that no limitation shall run so long as the offense is unknown, and...