The State ex inf. Barker v. Armour Packing Company

• Decision Date: 03 May 1915
• Citation: 176 S.W. 382,265 Mo. 121
• Parties: THE STATE ex inf. JOHN T. BARKER, Attorney-General, v. ARMOUR PACKING COMPANY, MORRIS & COMPANY and SWIFT & COMPANY. THE STATE ex inf. JOHN T. BARKER, Attorney-General, v. HAMMOND PACKING COMPANY and ST. LOUIS DRESSED BEEF & PROVISION COMPANY
• Court: Missouri Supreme Court

176 S.W. 382

265 Mo. 121

THE STATE ex inf. JOHN T. BARKER, Attorney-General, v. ARMOUR PACKING COMPANY, MORRIS & COMPANY and SWIFT & COMPANY.

THE STATE ex inf. JOHN T. BARKER, Attorney-General, v. HAMMOND PACKING COMPANY and ST. LOUIS DRESSED BEEF & PROVISION COMPANY

Supreme Court of Missouri

May 3, 1915

For judgment see post, page 151.

John T Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for relator; Frank H. Farris of counsel.

(1) The information in this cause is sufficient and specifically charges facts which show, if true, that respondents have violated the antitrust statutes of this State. There is no misjoinder of parties respondent. State ex inf. v. Railroad 240 Mo. 35; State ex rel. v. Grimm, 220 Mo. 483; State ex inf. v. Standard Oil Co., 218 Mo. 1; Sec. 10310, R S. 1909. (2) This action is not barred by the Statutes of Limitation. In this State we have no Statute of Limitations against the State instituting suits by the Attorney-General by information, in the nature of quo warranto, such as the suit at bar. Besides, at the time of filing this information respondents were still members of and participating in the unlawful pool and combination. High on Extraordinary Legal Remedies (3 Ed.), sec. 621; State ex rel. v Westport, 116 Mo. 595; State ex rel. v. Huff, 105 Mo.App. 634; State ex rel. v. Vandalia, 119 Mo.App. 424; Commonwealth v. Birchett, 2 Va. Cas. 51; State ex rel. v. Turnpike Co., 8 R. I. 521. (3) The commissioner who heard the testimony and had the witnesses before him reports that from the evidence adduced the National Packing Company was organized for the express purpose of limiting and destroying free competition, and that respondents have been and are maintained by the National Packing Company solely in furtherance of that unlawful purpose. Unless the findings of a commissioner appointed by the court to report on the facts are affirmatively and clearly shown to be wrong, the court will accept same as correct. State ex rel. v. Tobacco Co., 177 Mo. 38; State ex rel. v. Standard Oil Co., 194 Mo. 164; Tufts v. Latshaw, 172 Mo. 371; Bank v. Donnell, 172 Mo. 402. (4) The National Packing Company was organized as a means and instrumentality through which to continue and perpetuate the various methods of combination which existed prior to its organization and through which methods the large packing interests of the United States were brought into an unlawful combine. This being true, various decisions of appellate courts herein cited, condemn respondents herein as being members of an unlawful pool. Sections 10298, 10299, 10300, 10301, 10304, 10322, R. S. 1909; Harding v. Glucose Co., 182 Ill. 551; Richardson v. Buhl, 77 Mich. 632; Distillery & Cattle Feed Co. v. People, 156 Ill. 448; State v. Distilling Co., 29 Neb. 719; Lead Co. v. Store Co., 80 Mo.App. 266; Eustis v. Edgar, 207 Mo. 289; Finck v. Granite Co., 187 Mo. 244; United States v. Tobacco Co., 164 F. 700; Biscuit Co. v. Klotz, 44 F. 721; Strait v. Harrow Co., 18 N.Y.S. 224; Harrow Co. v. Hench, 76 F. 667; Harrow Co. v. Hench, 83 F. 36; Securities Co. v. Transit Co., 166 F. 945; Attorney-General v. A. Booth & Co., 143 Mich. 89; Capsule Co. v. Capsule Co., 67 F. 414; Wall Paper Co. v. Lewis Voight Sons & Co., 148 F. 939; Cotton Oil Co. v. Texas, 197 U.S. 129; Clancey v. Salt Mfg. Co., 62 Barb. 395; United States v. Pipe & Steel Co., 85 F. 279; Pittsburg Co. v. McMillin, 119 N.Y. 46; Noyes on Corporate Relations (2 Ed.), secs. 307, 310; Beach on Monopolies and Industrial Trusts, sec. 159, pp. 505, 507, pr. 167, p. 543, pr. 165, p. 536; 1 Eddy on Trusts and Monopolies, p. 550, prs. 617, 620, 621, 622; State ex rel. v. Standard Oil Co., 49 Oh. St. 137; People v. Refining Co., 54 Hun, 356; People v. Refining Co., 121 N.Y. 582; Bishop v. Preserves Co., 157 Ill. 284; Dunbar v. Tel. & Tel. Co., 224 Ill. 9; Securities Co. v. United States, 193 U.S. 197; United States v. Standard Oil Co., 173 F. 177; State ex rel. v. Standard Oil Co., 218 Mo. 1; 2 Cook on Corporations (6 Ed.), pr. 503a; State ex rel. v. Ins. Co., 152 Mo. 1; State ex rel. v. Packing Co., 173 Mo. 356; Froelich v. Benefit Assn., 93 Mo.App. 383; Brewing Co. v. Belinder, 97 Mo.App. 64; State v. Board of Trade, 107 Minn. 506; Railroad v. Closser, 126 Ind. 348; Coal Co. v. Coal Co., 68 Pa. St. 173; Joint Traffic Assn. v. U.S. 171 U.S. 338; Clark v. Railroad, 50 F. 346; Harvester Co. v. Commonwealth, 99 S.W. 637; Harvester Co. v. State, 99 P. 603; Cohen v. Envelope Co., 166 N.Y. 298; Hooker v. Vandewater, 4 Denio, 349; Stanton v. Allen, 5 Denio, 434; Railroad v. Railroad, 41 La. Ann. 970; U. S. v. Freight Assn., 166 U.S. 290; Standard Oil Co. v. Missouri, 224 U.S. 270; State ex rel. v. Harvester Co., 237 Mo. 369. (5) Independent of whether the National Packing Company was organized as a part and in pursuance of a former pool and combine, it was organized for the purpose, or, at least, provides a means through which the Armour Packing interests, the Swift Packing interests, the Morris Packing interests and the various subsidiary concerns, including the respondents, can and do lessen competition. Respondents are therefore guilty of the charges contained in the information. Cases cited under Point 4; United States v. Tobacco Co., 164 F. 700; United States v. Standard Oil Co., 173 F. 177; People v. Gas Trust Co., 130 Ill. 268; Securities Co. v. Transit Co., 165 F. 945; Wall Paper Co. v. Lewis Voight & Sons Co., 148 F. 939; Coal Co. v. Coal Co., 68 Pa. St. 173; Strait v. Harvester Co., 18 N.Y.S. 224; Biscuit Co. v. Klotz, 44 F. 721; Lead Co. v. Store Co., 80 Mo.App. 266; Richardson v. Buhl, 77 Mich. 632; Froelich v. Mutual Benefit Assn., 93 Mo.App. 383; State ex rel. v. Standard Oil Co., 49 Ohio St. 137. (6) Independent of the means which the National Packing Company affords, the Armour interest, the Morris interests, and the Swift interests meeting together with the representatives of respondents and jointly agreeing upon the affairs of these various interests, it is an unlawful combine, to which respondents are parties, in that it effectively destroys all competition and removes all incentive for competition among the various corporations, including the respondents, owned and controlled by the National Packing Company. Cases cited under Points 4 and 5, supra; State ex rel. v. Jockey Club, 200 Mo. 32; Terrett v. Taylor, 9 Cranch, 51; Commonwealth v. Bank, 28 Pa. St. 389; People v. Refining Co., 54 Hun, 354. (7) The various objections of unconstitutionality raised by respondents in their answer to these statutes are untenable, having all been foreclosed by prior decisions of this court and the United States Supreme Court. They are no longer open questions in this State. State ex inf. v. Ins. Co., 150 Mo. 113; State ex inf. v. Ins. Co., 152 Mo. 1; State ex inf. v. Tobacco Co., 177 Mo. 1; Finck v. Granite Co., 187 Mo. 244; State ex inf. v. Oil Co., 218 Mo. 1; Standard Oil Co. v. Missouri, 224 U.S. 270.

H. S. Priest, Morton Jourdan and Frank Hagerman for respondents; A. R. Urion, Henry Veeder, M. W. Borders and Ralph Crews of counsel.

(A) The information is in nowise supported by the proofs. (1) Where as here, quo warranto proceeds against a corporation for a violation of the antitrust law, the information must charge the specific wrong-doing, and the proofs must show that which is thus specifically pleaded. State ex rel. v. Talbot, 123 Mo. 71; State ex rel. v. Grimm, 220 Mo. 490; State ex rel. v. Railroad, 240 Mo. 35; State ex rel. v. Railroad, 241 Mo. 11. If the evidence does not show the specific wrong-doing so alleged, there is not simply a variance but a complete failure of proof. Waldhier v. Railroad, 71 Mo. 514; Reed v. Bott, 100 Mo. 62; McManamee v. Railroad, 135 Mo. 440; Huston v. Tyler, 140 Mo. 263; Chitty v. Railroad, 148 Mo. 75; Richardson v. Busch, 198 Mo. 174. (2) If a material fact be pleaded as unknown to the pleader, there is a complete failure of proof if it appear that such fact was either known or could have been discovered by the exercise of reasonable diligence. State v. Stowe, 132 Mo. 208; State v. Thompson, 137 Mo. 623; State v. Moses, 139 Mo. 217; State v. Burke, 151 Mo. 145; State v. Nunley, 185 Mo. 109; Naftzger v. United States, 118 C. C. A., 200 F. 501. (3) The specific charge in the information was this: Respondents, not as passive instruments, but as active conspirators, with unknown parties, conspired to take over, own and control all the packing companies in Missouri and the United States, the names of which were unknown, and pursuant to the scheme the National Company acquired the stock and assets of corporations whose names were likewise unknown. Both the proofs and the commissioner's report clearly showed: (a) There was never any purpose of obtaining control of all of such packing houses; (b) the alleged conspirators were Swift & Company, Armour & Company, Morris & Company and the companies actually acquired by the National Company, and (c) the names of these companies were actually disclosed at a preliminary hearing had under the statute (R. S. 1909, secs. 10332-10338) by the Attorney-General to see whether there was any reason for filing the information. Moreover, if such examination did not disclose the facts in every detail, they could have been ascertained by his asking for the production of the officers and directors and the books and papers of the companies doing business in Missouri. (B) The proofs were insufficient to make a case. (1) The commissioner's mere conclusion, in the teeth of findings to the contrary and his statement that there was no direct evidence to that effect, was that respondents were in a combination with Swift & Company, Armour & Company and the National Company. (2) Such a conclusion cannot be warranted by strong suspicions or...