The State ex inf. Hadley v. Standard Oil Co.
| Decision Date | 26 February 1906 |
| Parties | THE STATE ex inf. HADLEY, Attorney-General, v. STANDARD OIL COMPANY (of Indiana), WATERS-PIERCE OIL COMPANY and REPUBLIC OIL COMPANY |
| Court | Missouri Supreme Court |
Herbert S. Hadley, Attorney-General, and John Kennish and Rush C. Lake, Assistant Attorneys-General, for informant.
(1) The constitutionality of sections 8983 and 8984, Revised Statutes 1899, is not now before the court for determination. From a consideration of the provisions of sections 8983 and 8984, it is clear that it was the intention of the Legislature to provide that service of the notice mentioned in these sections upon the attorneys of record should be service upon the respondent. The statute provides that the notice may be "directed to the attorney or attorneys of record in said cause, or any agent, officer or employee of any corporation joint stock association or partnership which are parties to said action." There is no provision in the statute for the imposition of any penalty upon the attorney or agent of a corporation who may fail to notify the officer or representative of respondent, whose presence is desired, of the facts stated in the notice. The plain meaning and intent of the statute is to provide a method for serving the notice upon the party in the case by serving it upon its attorney of record, as is provided by the Code of Civil Procedure. Kelley v. Andrew Co., 43 Mo. 344; State ex inf. v Continental Tobacco Co., 177 Mo. 42; Huyler v Cragin, 42 N. J. 392; Mitchell v. Rubber Reclaiming Co., 24 A. 407. When the Republic Oil Company asked for and was granted a license to do business in this State, section 8983 had already been adopted. When it asked for the privilege of coming here it agreed to abide by the laws of this State. It was as clearly a part of that license as if it had been written there in terms that the Republic Oil Company would appear in court, in the person of such officer or representative as might have knowledge of the particular issues involved, should a suit be brought against it for violating the anti-trust laws of this State. The right of such agent to refuse to answer questions which might tend to incriminate him is not involved in this phase of the discussion. It is clearly the right of the State, under the exercise of its police power, to require a non-resident corporation to appear in the courts of this State through the only personality by whom it could appear -- "an officer, agent, representative or employee," and to require it to appear in the person of that representative who has knowledge of the facts involved in the litigation. 6 Thomp. on Corp., sec. 7886; Attorney-General v. Bay State Mining Co., 99 Mass. 148; Clark v. Railroad, 81 Me. 477. The fact that this law does not make the same provisions in reference to an individual, or to resident corporations, is no argument against the constitutionality of the law. Ins. Co. v. Daggs, 172 U.S. 557. (2) Sections 737 to 741, Revised Statutes 1899, provide a method for securing the production of books and papers in any court in this State in any civil suit that may be pending therein. The law in this State providing for the production of books and papers by the adverse party never has been restricted, or in any manner made conformable to the practice in courts of chancery. Terr. Laws, 1804-24, sec. 12, p. 111; Laws 1825, sec. 37, p. 631; secs. 7, et. seq., pp. 817-18, R. S. 1845; secs. 36, et. seq., pp. 1265-66, R. S. 1855; secs. 737, et. seq., R. S. 1899. (3) The subpoena duces tecum was properly served upon the officer of the Waters-Pierce Oil Company who had charge of the books and papers as such officer. (4) The witness, Adams, had no right to refuse to answer the questions asked him, except upon the ground that his answer might tend to incriminate him. The question was material because it sought to secure evidence tending to show the form in which the combination, trust and confederation of these respondents had been accomplished, and also to disclose facts which would prove the motive or reason why those things had been done by the respondents, as disclosed by the evidence in violation of the antitrust laws. Kraus v. The Sentinel Co., 62 Wis. 664; State v. Faulkner, 175 Mo. 611. It is "abhorrent to the legal mind" to contend that the advice of a lawyer is a valid reason why an order or process of a court should be disregarded. McElree v. Darlington, 187 Pa. 593; State v. Butler, 47 S.C. 25; Osborn v. London Dock Co., 10 Exch. 698; In re Shera, 114 F. 207; State v. Wentworth, 65 Me. 234.
Alfred D. Eddy, Frank Hagerman, Nagel & Kirby, John D. Johnson and Boyle & Priest for respondents.
(1) The order to produce in this State the nonresident officers of the Republic Oil Company, and its stock book, can not and should not be enforced. 1st. Such an order is violative of the privileges accorded by sections 11 and 23 of article 2 of the State Constitution. U. S. v. Boyd, 116 U.S. 616; Counselman v. Hitchcock, 142 U.S. 547; Lees v. United States, 150 U.S. 480; In re Pacific Railroad Commission, 32 F. 251; In re Hale, 139 F. 502. Whether the statute now under consideration was valid, was left undecided in State ex inf. v. Continental Tobaco Co., 177 Mo. 42, though the clear intimation was that it was unconstitutional. State v. Faulkner, 175 Mo. 606; In matter of Charles Green, 86 Mo.App. 220; People ex rel. v. Foundry & Iron Co., 201 Ill. 236; Thruston v. Clark, 107 Cal. 290; Logan v. Railroad, 132 Pa. 406. The practice in equity of compelling a discovery or the production of books and papers has universally been subordinated to the constitutional protection. Robson v. Doyle, 191 Ill. 570; 6 Ency. Pl. & Pr. 742; 30 Am. and Eng. Ency. Law (2 Ed.), 1158, 1159; Lester v. People, 150 Ill. 420; Logan v. Railroad, 132 Pa. 406; U. S. v. Lead Co., 75 F. 497. 2d. The enforcement of article 3 deprives the Republic Oil Company of due process of law. Pennoyer v. Neff, 95 U.S. 714; Wilson v. Railroad, 108 Mo. 597; In re Com. of Pennsylvania, 45 Misc. 46, 90 N.Y.S. 808. (a) But section 8984, authorizing judgment to be rendered in case of failure to produce these officers, is clearly violative of the protection to which one is entitled by the guaranty of "due process of law." Hovey v. Elliott, 167 U.S. 413; McVeigh v. U.S. 11 Wall. 259; Foley v. Foley, 120 Cal. 42; Greig v. Ware, 25 Colo. 184, 55 P. 163. (b) The order of Judge Fox was, as the statute contemplates, made without any notice to the Republic Oil Company or its attorneys, and the order, if not complied with, carries with it the penalty of having judgment rendered against that company. This is not due process of law, and for this reason alone the statute is invalid. Windsor v. McVeigh, 93 U.S. 274. (c) Section 4 of article 2 of the State Constitution gives to all, even lawyers, the right to "the enjoyment of the gains of their own industry." Since the test oath cases (Cummings v. Missouri, 4 Wall. 277; Ex Parte Garland, 4 Wall. 33) the profession of the law has been something that one has the right to pursue. An arbitrary demand for a lawyer to do something disconnected from the work of his profession is an exaction not to be tolerated and the legislation is as vicious as that condemned in State v. Loomis, 115 Mo. 313. (2) The commissioner cannot order the production of books and papers under sections 737,740 and 741. State ex inf. v. Continental Tobacco Co., 177 Mo. 37. (3) The books and papers of a defendant cannot be obtained by a subpoena duces tecum against an officer who, as such, holds such papers. In re Hale, 139 F. 496.
OPINION
In Banc
Original proceeding on information in the nature of quo warranto. The Waters-Pierce Oil Company is a domestic corporation. The Standard Oil Company of Indiana is a corporation of that State. The Republic Oil Company is a corporation of the State of New York. The two latter companies are domiciled for business purposes in Missouri by virtue of licenses issued to them under our statute, and upon compliance therewith. Each and every of these corporations was created for the purpose of engaging in the business of refining petroleum and buying and selling the products thereof and all are engaged in the business of selling naptha, benzine, gasoline, kerosene, lubricating oil and other products of petroleum in Missouri; not only so, but the said Standard Oil Company has established, owns and is conducting a refinery in this State and is refining petroleum thereat.
On the 25th of March, 1905, the Attorney-General commenced an original proceeding in this court in the form of an information in the nature of quo warranto, filed ex officio, against all of said corporations thereby causing this court to be informed that said corporations had created, entered into and become members of a pool, trust, agreement, confederation, combination and understanding among themselves and each other, to regulate, fix and control the prices to be paid by retail dealers and others in Missouri for naptha, benzine, gasoline, lubricating oil and other products of petroleum sold in this State, and to control and limit the trade therein and to control, limit and prevent competition in the buying and selling thereof between themselves and others engaged in like business, and to deceive and mislead the public into the belief that said respondents were separate and distinct corporations, each pursuing an independent business as legitimate competitors in the purchase and sale of said products of petroleum. Said information informing this court, furthermore, that said corporations by said pool, trust, combination, etc., had actually fixed and maintained the...
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