Slike strani

196 U. S.

Argument for Plaintiff in Error.

and the State of Kansas, with divers and sundry persons, partnerships, companies and corporations of grain dealers and grain buyers in the town of Bison, in the said county and State aforesaid, to wit, Humburg & Ahrens, the La Crosse Lumber & Grain Company, the Bison Milling Company and George Weicken, who were at the said time and place competitive grain dealers and buyers, to pool and fix the price the said grain dealers and buyers should pay for grain at the said place, and to divide between them the net earnings of the said grain dealers and buyers, and to prevent competition in the purchase and sale of grain among the said dealers and buyers." A trial was had, the defendant was found guilty and sentenced to pay a fine of $500, and to imprisonment in the county jail for three months. On appeal to the Supreme Court of the State the judgment was affirmed. 65 Kansas, 240. Whereupon this writ of error was sued out.

Mr. H. Whiteside for plaintiff in error:
The act of 1897 is unconstitutional and void.

Section one goes entirely too far and is an unwarranted attempt upon the part of the legislature to limit the rights of the individual in the matter of contracting and dealing with his fellow men. The liberty to contract is as much protected by the constitutional provisions above referred to as is the liberty of person, and any attempt to abridge or limit that right will be held void, unless such abridgement or limitation is necessary to preserve the peace and order of the community or the life, liberty and morals of individuals, in which cases it is held to be the proper exercise of the police power of the State. 2 Eddy on Combinations, $$ 679, 905; Niagara Fire Ins. Co. v. Cornell, 115 Fed. Rep. 816; Re Grice, 79 Fed. Rep. 627.

The United States Constitution confers upon Congress, in express terms, the power to regulate commerce with foreign nations and among the several States and with the Indian tribes. So that while Congress has that power it does not


Argument for Plaintiff in Error.

196 U. S.

follow that a state legislature has the same power. Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 228.

One Congress for the nation is a very different proposition from 45 separate legislatures, each local in its power, and generally hasty in its action.

The only power which a state legislature has to make any law which would impair the right to make any contract upon any subject is such as it possesses under the general police power of the State, which can only be exercised in matters which affect the peace and order of the community or the life, health and morals of individuals. So that the fact that the Federal Anti Trust Law has been held constitutional is no argument in favor of the constitutionality of the Kansas statute. But the two statutes are very dissimilar. See the cases cited in dissenting opinion of Justice Pollock of the State Supreme Court in this case.

The unconstitutionality of the act in question should not be protected by a revolutionary mode of construction. It was contrary to the holdings of the Supreme Court of Kansas until this case was passed on, and is against the great weight of authority generally.

When a statute is partly invalid the rule is that the rest cannot be upheld if the parts are mutually connected with and dependent on each other. See opinion Brewer, J., in 28 Kansas 457; Warren v. Mayor, 2 Gray (Mass.), 84; Slauson v. Racine, 13 Wisconsin, 398; Meshmeier v. The State, 11 Indiana, 482; McCluskey v. Cromwell, 11 N. Y. 601.

The legislature passed an entire statute on the supposition that it is valid as a whole and it cannot be interpreted on any other theory.

Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation. Courts cannot correct supposed errors, omissions or defects in legislation or vary by construction contracts of parties.

[ocr errors]

196 U. S.

Argument for Plaintiff in Error.

The office of interpretation is to bring sense out of the words used, and not to bring a sense into them. Peiber's Political and Legal Hermeneutics, 87; 2 Reuth Inst., ch. 7, $2; Story on Const. $ 392; Purdy v. People, 4 Hill, 384; Waller v. Harris, 20 Wend. 562; Newell v. People, 7 N. Y. 97; Hyatt v. Taylor, 42 N. Y. 258; Johnson v. H. R. R. R. Co., 49 N. Y. 455; Alexander v. Worthington, 5 Maryland, 485; Sutherland's Stat. Con. $$ 175, 237, and cases cited; United States v. Harris, 106 U. S. 629; Encking v. Simmons, 28 Wisconsin, 272; State v. Lovell, 23 Iowa, 304; Woodbury v. Berry, 18 Ohio St. 456; Dudley v. Reynolds, 1 Kansas, 285; Fitzpatrick v. Gebhart, 7 Kansas, 35; Ayers v. Fiego County, 37 Kansas, 240; State v. Chapman, 5 Pac. Rep. 708.

It is well known that the Federal Courts will not always follow state court constructions. Burgess v. Seligman, 107 U. S. 20; B. & 0. R. R. v. Baugh, 149 U. S. 368; Yick Wo. v Hopkins, 118 U. S. 356; Railroad & Telephone Co. v. Board of Equalizers, 85 Fed. Rep. 302; Neal v. Delaware, 103 U. S. 370; Ex parte Virginia, 100 U. S. 339; Henderson v. Mayor, 92 U.S. 259; N. Y. Cen. R. R. v. Lockwood, 84 U. S. 17; Myrick v. Mich. Cen. R. R., 107 U. S. 102; M., K. & T.R. R. Co. v. Elliot, 184 U. S. 531; Rolla v. Holley, 176 U. S. 408. They are disregarded in all matters of general law, or of great importance.

All agreements which may affect prices or commodities and the conduct of business are not unlawful and cannot be made so by legislatures. The law encourages and provides for combination and recognizes the economical truth that the coöperation of individuals is essential to the well being and the progress of society. Jones v. Field, 5 Florida, 510; State v. Loomis, 115 Missouri, 307; Eddy on Comb. $ 262. Nor will the courts assume the purpose and effect of a combination to unduly raise prices. Such purpose must be shown affirmatively. Shade Roller Co. v. Cushman, 143 Massachusetts, 352; Herriman v. Menzies, 115 California, 16; James v. Bowman, 190 U. S. 127.

Courts should refrain from interfering with the conduct of


[merged small][merged small][ocr errors]


the affairs of individuals unless such conduct in some tangible form threatens the welfare of the public. Leslie v. Lorrilard et al., 110 N. Y. 519. Neither are all combinations or contracts that tend to suppress competition or fix prices, illegal. Matthews v. Associated Press, 136 N. Y. 333; Eddy on Combinations, $$ 288, 332, and cases cited; McCauley v. Turney, 19 R. I. 255; Boehm Mfg. Co. v. Hollis, 54 Minnesota, 223; Richie v. People, 155 Illinois, 98; Hopkins v. United States, 171 U. S. 578; Anderson v. United States, 171 U. S. 604.

At common law only when combinations became monopolies injurious to the public, and were actually injuring the public, could they be denounced by indictment.

The conviction of plaintiff in error was without due process of law. For definition of due process of law as involved in this case, see Dartmouth College Case, 4 Wheat. 518; 10 Am. & Eng. Ency. Law, 2d ed., 293; Weimer v. Bunbury, 30 Michigan, 201; Brown v. Commissioners, 50 Mississippi, 468; Re Ah Lee, 5 Fed. Rep. 899; Chicago &c. R. R. Co. v. Chicago, 166 U. S. 266; Pennoyer v. Neff, 95 l'. S. 733; Rees v. Watertown, 19 Wall. 107; Benton v. Platten, 10 U. S. App. 657; Bouvier's Law Dictionary; Lowe v. Kansas, 163 U. S. 81.

[ocr errors][ocr errors][ocr errors][ocr errors]

Mr. D. R. Hite, with whom Mr. C. C. Coleman, Attorney General of the State of Kansas, and Mr. H. J. Bone were on the brief, for defendant in error:

The combination to which plaintiff in error was a party constituted an unlawful restraint of trade and the investigation as to the constitutionality of the statute will be confined to his own grievance. Waters-Pierce Oil Co. v. Texas, 177 U. S. 24, 43; Clark v. Kansas City, 176 U. S. 114.

This combination fell within the police powers of the State. Grain is a necessity and regulating dealings in it is for the public protection and within the powers of the States. Munn v. Illinois, 94 U. S. 113, 126; Brass v. North Dakota, 153 U. S. 391, 402. The rule applies alike to large and small combinations. Nor. Securities v. United States, 193 U. S. 197, 339,

[ocr errors]
[blocks in formation]

citing Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173, 186; see dissent of Shiras, J., United States v. TransMissouri, 58 Fed. Rep. 84.

The act as interpreted by the Kansas Supreme Court is not repugnant to the Federal Constitution. United States v. Freight Association, 166 U. S. 290, 322; United States v. Addyston Pipe Co., 85 Fed. Rep. 271.

Combinations and not innocent contracts are covered by this statute. See Mr. Carter's argument, Joint Traffic Case, 171 U. S. 505, 515; and for definitions of combination see Bouvier, Century and Standard Dictionaries under “Combine" and “Trusts ”; Spelling on Trusts and Monopolies. See authorities as exhaustively reviewed in opinion of the Chief Justice of the state court in this case. As to reasonable construction of the statute in the light of surrounding circumstances, see United States v. Laws, 163 U. S. 258; Hawaii v. Mankichi, 190 U. S. 197; United States v. Freight Association, 166 U. S. 290, 311; United States v. Joint Traffic Association, 171 U. S. 505; Northern Securities v. United States, 193 U. S. 197.

We conclude that the Supreme Court of Kansas properly construed the act in question by limiting its general language to acts and cases comprising unlawful combinations to restrain the State's domestic trade and commerce, and that, thus interpreted, the act is a valid exercise of the legislative power; that the plaintiff in error was convicted of being a party to a conspiracy to prevent full and free competition in the purchase of an article of prime necessity to human life, and, therefore, is guilty of an act within the constitutional competency of the State to punish.

MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.

The verdict of the jury settles all questions of fact.

In Missouri, Kansas &c. Ry. Co. v. Haber, 169 U. S. 613, 639, it is said: “Much was said at the bar about the finding of

« PrejšnjaNaprej »