Territory v. Long Bell Lumber Co.

• Decision Date: 21 December 1908
• Docket Number: Case Number: 2099 OK Ter, 2100 OK Ter, 2101
• Citation: 1908 OK 263,22 Okla. 890,99 P. 911
• Court: Oklahoma Supreme Court
• Parties: TERRITORY v. LONG BELL LUMBER CO. et al. SAME v. OKLAHOMA MILL & ELEVATOR Co. et al. SAME v. HAINES et al.

1908 OK 263

99 P. 911

22 Okla. 890

TERRITORY v. LONG BELL LUMBER CO. et al.

SAME v. OKLAHOMA MILL & ELEVATOR Co. et al.

SAME v. HAINES et al.

Case Number: 2099 OK Ter, 2100 OK Ter, 2101

Supreme Court of Oklahoma

Decided: December 21, 1908

Syllabus

¶0 1. TERRITORIES--Status. A territory, under the Constitution and laws of the United States, is an inchoate state--a portion of the country not included within the limits of any state, and not yet admitted as a state into the Union, but organized under the laws of Congress, with a separate Legislature, under a territorial Governor, and other officers appointed by the President and Senate of the United States.

2. SAME--"Legislative Power." The legislative power of the territory of Oklahoma extended to all rightful subjects of legislation pertaining to local self-government when not inconsistent with the Constitution and laws of the United States, and when the exercise of such power did not in any way interfere with the supreme right of Congress to control its governmental affairs.

3. SAME--Legislative Power--Anti-Trust Legislation. Chapter 83, Wilson's Rev. & Ann. St. Okla. 1903, being an enactment of the legislative assembly of the territory of Oklahoma passed December 25, 1890, entitled "An act to prevent combinations in restraint of trade," is not in conflict or inconsistent with the Constitution or laws of the United States nor with an act on the same subject applicable to territories, enforceable by the federal authorities, passed by Congress July 2, 1890 (Act Cong. July 2, 1890, c. 637, 26 Stat. 209 [U.S. Comp. St, 1901, p, 3200]) and was a valid statute of the territory of Oklahoma.

4. SAME. The fact that a prosecution for a violation of the terms of such territorial statute would also be a violation of and punishable under the federal act in no wise affects its validity.

5. MONOPOLIES -- Complaint -- Injunction -- "Public Nuisance." Where it is alleged that certain parties in violation of such act of the territorial Legislature had entered into and become members of a pool, trust, agreement, combination, and understanding with each other to create a monopoly in the business of buying and selling lumber, coal, and grain, and that, acting thereunder, they were enabled to and were charging the public unjust, unreasonable, and exorbitant prices for such commodities, and preventing others from engaging in such business, such acts constitute a public, common nuisance, and the parties thereto may be restrained as provided for in section 4440, Wilson's Rev. & Ann. St. Okla. 1903, at the suit of the county attorney.

Error from District Court, Kingfisher County; C. F. Irwin, Judge.

Actions by the Territory of Oklahoma against the Long Bell Lumber Company and others, and against the Oklahoma Mill & Elevator Company and others, and against A. T. Haines and others. Judgments for defendants, and the territory brings error. Reversed and remanded.

The above-entitled cases were all brought in the district court of Kingfisher county, Okla., in the month of October, 1906, by the county attorney of the county, the petitions being signed by him as such official and verified as provided by the statute. Omitting the formal parts, the first cause of action stated in the petition of the case where the Long Bell Lumber Company, the A. H. Showalter Lumber Company, and Butts Bros. Lumber Company are defendants reads as follows:

"That said defendants have been engaged in said business for several years last past, and all of said time they have federated together, and have, by express agreement with each other, either written or oral, controlled all the business of buying and selling lumber at said point in such a manner as to create a monopoly for the benefit of said corporations, and greatly to the injury of the public and the people of the county of Kingfisher, and the territory of Oklahoma. That, by means of said confederation, combination, and monopoly, said defendants are enabled to and do keep other persons desiring to enter said business from doing so, and they not only fix the prices that said lumber shall be purchased at from the mills, but also arbitrarily fix the price for which said lumber shall be sold to the consumer and have for several years last past, do now, and will continue to, unless restrained by the court, completely shut out competition in the lumber business in said city of Kingfisher, and said defendants have for several years last past, and do now, and will continue to, if not restrained by the court, charge the public and the people of Kingfisher county, and the territory of Oklahoma, unjust, unreasonable, and exorbitant prices for lumber, and by reason of the monopoly of said defendants created by said defendants said public and the people of Kingfisher county and territory of Oklahoma cannot buy lumber elsewhere, but are compelled, by reason of said monopoly, to purchase their lumber from said defendants, and from no other person or corporations. That each of the above-named defendants are apparently conducting a separate business under the respective names of their corporations, but in truth and in fact, by reason of the combination and monopoly created by said defendants, there is no competition in the sale of lumber in said city, nor will said defendants permit any one else to engage in the business of lumber dealers therein. That said defendants have conducted the aforesaid combination and monopoly for a good many years last past, to the great loss and injury of the public and to the people of the county of Kingfisher and territory of Oklahoma, and threaten to, and will continue to, violate the anti-trust law of the territory of Oklahoma and the United States, unless restrained by the courts. That for these impositions the public and the people of Kingfisher county and Oklahoma Territory have no speedy and adequate remedy at law."

The second cause of action sets forth substantially that the defendants have by agreement between themselves combined to suppress evidence which will enable the officers to enforce the antitrust law. The prayer is for an injunction restraining the parties from carrying on and conducting the business combination and monopoly, and from further combining and federating together for the purpose of defeating the operation of said law. The language used in the petitions filed in the second and third cases, and the averments of the same, are identical with the petition in the first case, except that in the second case grain was the commodity which was alleged the combination operated upon, and in the third case it was coal which had thus been brought within the control of the contract made between the parties.

The cases all took identically the same course in the lower court, in that temporary injunctions were obtained in each from the judge of the probate court, and on motion in the district court the same were dissolved and the petitions dismissed. From this action the territory of Oklahoma took each of said cases to the Supreme Court by proceedings in error where they were pending at the time Oklahoma and Indian Territory were erected into a state They have now been consolidated, and are before this court for consideration by virtue of our succession to the territorial Supreme Court under the terms of the Enabling Act (Act June 16, 1906, c. 3335, 34 Stat. 267) and the Schedule to the Constitution (Bunn's Ed. §§ 449-493).

Chas. J. West, Atty. Gen, George L. Bowman, Co. Atty., and Matthew John Kane, for the Territory.

F. L. Boynton, W. R. Cowley, and W. A. Ledbetter, for defendants in error.

DUNN, J.

¶1 (after stating the facts as above). Wilson's Rev. & Ann. St. Okla. 1903, § 4440, provides:

"An injunction may be granted in the name of the territory to enjoin and suppress the keeping and maintaining of a common nuisance. The petition therefor shall be verified by the county attorney of the proper county, or by the attorney general, upon information and belief, and no bond shall be required."

¶2 It was under the authority conferred on the county attorney by this section of the statute that he acted in bringing these suits, beginning them upon petitions which he verified on his information and belief, and securing injunctive relief in the name of the territory without bond. The position taken by him was that a monopoly or combination in restraint of trade such as is delineated and set forth in the petitions was a public or common nuisance, and as such that courts of equity at the instance of the public prosecutor had power to suppress the same.

¶3 The consideration and determination of two propositions will in our judgment cover and dispose of all the controverted questions raised. These are: First, was the territorial anti-trust act a valid, existing law at the time of the institution of these suits; and, second, if so, did the violation of its terms as averted constitute and make the result of such acts a common and public nuisance?

¶4 Incidental to the first proposition, there is argued in the briefs of defendants in error the proposition that the territorial authorities were without jurisdiction or power to proceed under the terms of what is generally known as the "Sherman Anti-Trust Act," passed by Congress on July 2, 1890 (Act July 2, 1890, c. 647, 26 Stat. 209 [U.S. Comp. St. 1901, p. 3201]), section 3 of which is made specifically applicable to territories, and section 4 thereof vesting the several Circuit Courts of the United States with jurisdiction to prevent and restrain violations of the act, and making it the duty of the several district attorneys of the United States under the direction of the Attorney General to institute suits in equity for such purpose. This question has been squarely passed upon in the case of Greer, Mills & Co. v. Stoller (C. C.) 77 F. 1, wherein it was held that the statute against unlawful restraints and monopolies (Act July 2, 1890, c. 647, 26 Stat. 209 [U.S. Comp. St. 1901, p. 3200])...