The State ex inf. Major v. Arkansas Lumber Co.

• Decision Date: 02 July 1914
• Parties: THE STATE ex inf. ELLIOTT W. MAJOR, Attorney-General, v. ARKANSAS LUMBER COMPANY et al
• Court: Missouri Supreme Court

169 S.W. 145

260 Mo. 212

THE STATE ex inf. ELLIOTT W. MAJOR, Attorney-General, v. ARKANSAS LUMBER COMPANY et al

Supreme Court of Missouri

July 2, 1914

[Copyrighted Material Omitted]

For judgment see Per Curiam opinion, p. 319.

Elliott W. Major, Attorney-General, and John M. Atkinson, Special Counsel, for relator.

(1) The information specifically charges facts which show, if true that respondents have violated the antitrust statutes of this State. The information meets with every technical requirement of informations in the nature of quo warranto. State ex inf v. Railroad, 240 Mo. 35; State ex rel. v. Grimm, 220 Mo. 483; State ex inf. v. Oil Co., 218 Mo. 1. Each of the respondents, before this case was ever referred to a commissioner, filed his separate answer to the information herein. A number of the respondents went so far as to file amended answers to the information herein before the case was referred to a commissioner. The other respondents who did not file amended answers before the case was referred have filed with the commissioner amended answers subject to the approval of the court. Under the practice of our statutes the issues are required to be made up before the cause is referred to a commissioner to take evidence, and that rule should govern as to causes in this court. The commissioner had no authority to sustain a demurrer to the sufficiency of the information after the cause was referred to him to hear the evidence and report thereon as to the law and evidence. Turner v. Butler, 126 Mo. 131; 1 McQuillin's Mo. Prac., sec. 820; 34 Cyc. 819; Perseverance Min. Co. v. Bisiner, 87 Ga. 193; Belmont Min. Co. v. Costigan, 21 Colo. 471. (2) Respondents are not entitled to a trial by jury in a suit of this nature. A trial by jury cannot rightfully be demanded upon an information in the nature of quo warranto. State ex rel. v. Lupton, 64 Mo. 415; State ex rel. v. Vail, 53 Mo. 497; High on Extra. Leg. Rem. (3 Ed.), sec. 613. Respondents, by standing by and permitting the court to refer the cause without objecting to the action of the court in so doing, thereby waived any right to a trial by jury, if they were entitled to such in the first instance. Callahan v. Shotwell, 60 Mo. 398. (3) This suit is not barred by either of the Statutes of Limitation as set up by the respondents. R. S. 1909, secs. 1890, 1914; State ex rel. v. Westport, 116 Mo. 595; State ex rel. v. Huff, 105 Mo.App. 364; 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. (4) The issuance of the price list, price current and market report, under these several titles, by the Yellow Pine Manufacturers' Association and by the individual members of said association, up to the date of filing this suit, was in direct violation of our anti-trust statutes. R. S. 1909, secs. 10298, 10301, 10302-4; Bank v. Donnell, 172 Mo. 402; State ex rel. v. Tobacco Co., 177 Mo. 3; State ex rel. v. Oil Co., 194 Mo. 164; Standard Oil Case, 218 Mo. 1; State ex inf. v. Harvester Co., 237 Mo. 405; Oil Co. v. Texas, 212 U.S. 108; Coal Co. v. People, 214 Ill. 421; State ex rel. v. Stock Exchange, 211 Mo. 193; State ex inf. v. F. F. Ins. Co., 152 Mo. 40; State ex rel. v. Packing Co, 173 Mo. 356; People v. Sheldon, 139 N.Y. 261. (5) Turning our attention to the curtailment phase of this cause, we find that section 10299, prohibits "pools, trusts, agreements, contract, combination, confederation or understanding, to fix or limit the amount or quantity of any article of manufacture, mechanism, merchandise, commodity, convenience, repair, any product of mining, or any article or thing whatsoever of any class or kind bought and sold." Such was the common law. The commissioner found that respondents, as members of the Yellow Pine Manufacturers' Association, had violated this statute by curtailing the output of yellow pine lumber, and the evidence justifies his finding. Lumber Co. v. Mississippi, 217 U.S. 439: Lumber Dealers v. State, 95 Miss. 342.

Johnson & Lucas, Holmes, Holmes & Page, W. R. Thurmond, Scarritt, Scarritt, Jones & Miller, Botsford, Deatherage & Creason, J. S. Kirkpatrick, Arthur N. Sager and Walter H. Saunders for respondents.

(1) The information in this case is insufficient in law in that (a) It does not state facts sufficient to constitute a cause of action against the respondents, or any of them; (b) There is a misjoinder of pretended causes of action against the several respondents. State ex rel. v. Railroad, 240 Mo. 35; State ex rel. v. Grimm, 220 Mo. 483; R. S 1909, secs. 10298, 10300, 10301, 10314; McElroy v. United States, 164 U.S. 76. (2) Defendants are entitled to a jury trial. The commissioner erred in denying them that right, and respondents' motion to suppress the report for want of a jury trial should be sustained. Bank v. Anderson, 1 Mo. 244; Colon v. Lisk, 153 N.Y. 188; Railroad v. State, 75 Ark. 435; State v. Cobb, 24 Okla. 662; State ex rel. v. Townsley, 56 Mo. 107; People ex rel. v. Habird, 2 Idaho, 531; Metz v. Maddox, 189 N.Y. 460; Green v. Knox, 174 N.Y. 432; State ex rel. v. McDonald, 108 Wis. 8; Bradford v. Territory, 1 Okla. 366; Scott v. Neeley, 140 U.S. 106; Baylis v. Ins. Co., 113 U.S. 316; Brown v. Railroad, 69 Mo.App. 418; State v. Johnson, 26 Ark. 281; Attorney-General v. Sullivan, 163 Mass. 446. (3) The commissioner erred in ruling as a matter of law that the Statute of Limitations has no application to this cause, and that the State is not barred from this action by virtue of the Statute of Limitations invoked in the answers. R. S. 1909, secs. 1887, 1889, 1890, 1914, 4951, 4959; Shelby County v. Bragg, 135 Mo. 300; Wood v. Carpenter, 101 U.S. 135; St. Charles County v. Powell, 22 Mo. 521; Life Ins. Co. v. St. Louis, 98 Mo. 422; Dice v. Hamilton, 178 Mo. 81; Ames v. Kansas, 111 U.S. 449; Ratican v. Terminal Assn., 114 F. 666. (4) The commissioner erred in refusing to declare as a matter of law that the purposes of the Yellow Pine Manufacturers Association as expressed in the constitution and by-laws for six years prior to the institution of this suit were lawful. Anderson v. United States, 171 U.S. 604; State ex rel. v. Stock Exchange, 201 Mo. 181; Jayne v. Loder, 149 F. 984; Lawlor v. Loewe, 187 F. 522. (5) The Southwestern Retailers Association was not unlawful and there is not and never has been any preferential or discriminatory relation between the members of that association and the respondents, or members of the Manufacturers Association. The constitution and by-laws of the Southwestern Retailers Association and the Code of Ethics advocated by them and lumber merchants in general are clearly lawful. Anderson v. United States, 171 U.S. 604; Gladish v. Stock Exchange, 113 Mo.App. 726; Bohn Mfg. Co. v. Hollis, 34 Minn. 223; Montgomery Ward & Co. v. So. Dakota Retail Merchants & H. D. Assn., 150 F. 413. (6) The so-called reciprocity resolution of 1904, affecting wholesalers and retailers, was a mere proposal of a committee; nothing was consummated; no defendant acted pursuant to the proposal, and the proposal itself was not unlawful. (7) The Yellow Pine Manufacturers' Association is not a trust or illegal combine or conspiracy to restrict or fetter commerce in yellow pine lumber, nor has it such effect, actual or potential; but its purpose, object and achievement are to make trade in yellow pine easy and honest; to make it possible for people to get what they want and plenty of it, at a less price than they would have to pay for any other structural material answering a like purpose, such as steel, cement, other lumber, pulp, brick, stone or terra cotta. Its work is beneficent, and not baneful. It is law-abiding, and not criminal. The membership, which is voluntary, charged at the rate of about twenty per cent per annum. Manufacturers united with it as members or withdrew at their pleasure and no coercion or jeopardy was experienced in becoming members or in severing that relation. Membership did not insure the financial success of the manufacturer or even an easy road to fortune. The influence of the association is pro bono publico. (8) The Market Report is and always has been a legitimate and convenient publication which has stimulated, rather than stifled, trade and competition, and has been highly beneficial to the trade in general. (9) There was no understanding between the defendants or members of the Manufacturers' Association to sell lumber at or according to the market prices quoted in the Market Report. (10) There was no agreement to limit the production of lumber by the defendants, or the members of the Manufacturers' Association during the year 1904, or at any other time. (11) It is the province of this court to determine the issues of fact and law irrespective of the conclusion of the commissioner and as though the report of the commissioner as to those issues was not before the court. If the State Constitution by providing that the Supreme Court may issue and determine writs of quo warranto, as is contended by the relator, vests in this court the jurisdiction and authority to try this sort of an action when issues both of fact and of law are to be determined, then it goes without saying that the court and not an attorney as agent of the court should exercise that jurisdiction. The judiciary no more than the legislative department of the government or the executive can farm out its prescribed functions. If our request and contention for a jury trial be denied, then we take it, this action now has a similar status to a law case which, having been referred without consent, is being heard upon exceptions to the report of the referee. Such a report, so far as the conclusions of the referee are concerned, both as to law and fact, are in no sense binding upon the...