Opinion
July 7, 1939.
1. CRIMINAL LAW: Construction. Section 8701, Revised Statutes 1929, declaring that certain pools, trusts, agreements, etc., shall constitute a conspiracy in restraint of trade, is declaratory of the common law.
The mere fact that heavy loss may be sustained in consequence of an adjudication of ouster of those so engaged should not deter the court from declaring the intention of the Legislature as contained in the statutes.
2. CRIMINAL LAW: Pools: Trusts: Conspiracies. The statute making it a conspiracy and punishable, to regulate, control or fix the price of any article of manufacture, mechanism, merchandise, commodity, convenience or repair, or any product of mining, or any article or thing whatsoever of any class or kind bought and sold, does not include the laundry business.
To operate a laundry is a business, and it sells service and nothing more.
The words "commodity" and "or repair" in the statute are used in connection with the clause "control or fix the price of any article," etc., indicating that what was meant was all articles of trade and commerce.
Appeal from Jackson Circuit Court. — Hon. Brown Harris; Judge.
AFFIRMED.
Roy McKittrick, Attorney General, W.J. Burke, Assistant Attorney General, W.W. Graves, M.W. O'Hern and John Wendorff for appellant.
The State in asking that the Supreme Court of this State construe the meaning of the words, "commodity, convenience or repair," as set out in Section 8701, Revised Statutes 1929, submits the following authorities: Sec. 8701, R.S. 1929; Home Tel. Co. v. Granby Neosho Tel. Co., 147 Mo. App. 216, 126 S.W. 773; State ex inf. Hadley v. Standard Oil Co., 218 Mo. 1, 116 S.W. 902; State ex inf. Major v. Arkansas Lbr. Co., 260 Mo. 212, 169 S.W. 145; Atlantic Cleaners Dyers v. United States, 286 U.S. 427; Endicott v. Rosenthal, 216 Cal. 721, 16 P.2d 673; Webster's New International Dictionary Words Phrases (4 Ed.), p. 454; State v. Interstate Power Co., 226 N.W. 427; 12 C.J. 153; Commonwealth v. Lancaster Savs. Bank, 123 Mass. 493; Kansas City v. Seaman, 99 Kan. 143, L.R.A. 1917B, 341, 160 P. 1139; International Textbook Co. v. Gillispie, 129 S.W. 922; Harelson v. Tyler, 219 S.W. 908, 281 Mo. 383; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S.W. 997, 22 L.R.A. (N.S.) 607, 122 Am. St. Rep. 492; State ex rel. v. Associated Press, 159 Mo. 410, 60 S.W. 91, 51 L.R.A. 151, 81 Am. St. Rep. 368; State v. McClellan, 98 So. 748, 31 Am. St. Rep. 527; State ex rel. Moose, Atty. Gen., v. Frank, 114 Ark. 47, 169 S.W. 330; Downing v. Lewis, 56 Neb. 386, 76 N.W. 900; Reisenbichler v. Marquette Cement Co., 108 S.W.2d 343; Commonwealth v. Keystone Laundry Co., 203 Pa. 289, 52 A. 326; Muir v. Samuels, 110 Ky. 605, 62 S.W. 481; White Star Laundry Co., 117 F. 570; Rohlf v. Kasemeier, 140 Iowa 182, 118 N.W. 276, 23 L.R.A. (N.S.) 1284, 132 Am. St. Rep. 261, 17 Ann. Cas. 750; United States v. Sischo, 262 F. 1001; People v. Epstean, 170 N.Y.S. 79, 102 Misc. 476; Baseball Club v. Chase, 149 N.Y.S. 15, 86 Misc. 441.
Byron Spencer, James T. Britt and Langworthy, Spencer, Terrell Matz for D.E. Dunlop, Arthur Dunlop, Arnold Held, W.L. Martin, George C. Green, A.O. Long, James Long, J.C. Johnston, Louis Kartsonis, Bert Frable, B.M. Hall, J.H. Hollingsworth, W.C. Beckwith, William Jacobs, Benno Jacobson and N. Cortez; Kaer P. Vanice, II, for Harry H. Gillpatrick and Harry Bahl.
The statute pertains to commodities, and laundry service is not a commodity. State v. Fowler, 265 Mo. 190, 177 S.W. 379; State v. Renkard, 150 Mo. App. 570, 131 S.W. 168; Harelson v. Tyler, 281 Mo. 383, 219 S.W. 908; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S.W. 997; State ex rel v. Associated Press, 159 Mo. 410; R.S. 1929, sec. 655; O'Malley v. Continental Life Ins. Co., 335 Mo. 1115, 75 S.W.2d 837; State ex rel. v. Pub. Serv. Comm., 327 Mo. 93, 34 S.W.2d 37; State of Louisiana v. McClellan, 98 So. 748, 31 A.L.R. 527; State ex rel. Moose v. Frank, 114 Ark. 47, 52 L.R.A. (N.S.) 1149, 169 S.W. 333; Downing v. Lewis, 56 Neb. 386, 76 N.W. 900; New York Clothing Mfgs. Exchange v. Textile Finishers' Assn., 238 A.D. 444, 265 N.Y.S. 105; In Matter of Mendoza Fur Dyeing Works, Inc., v. Taylor, 272 N.Y. 275; State v. Duluth Board of Trade, 107 Minn. 506, 121 N.W. 395; Smith v. Jackson, 54 S.W. 981; Reisenbichler v. Marquette Cement Co., 341 Mo. 744, 108 S.W.2d 343; 1935 Sess. Acts, 411; Chap. 33, R.S. 1929, sec. 5122; State v. Wade. 267 Mo. 249, 183 S.W. 598; Regan v. Ensley, 283 Mo. 297, 222 S.W. 773; McBoyle v. United States, 283 U.S. 25, 51 Supp. Ct. 340.
By an indictment of grand jury of Jackson County, Missouri, respondents were charged with a violation of Section 8701, Revised Statutes 1929 (Mo. Stat. Ann., p. 6487). The trial court sustained a demurrer to the indictment and the State appealed. Respondents, twenty-six in number, where charged with entering into a pool, trust, agreement, combination, confederation and understanding to regulate and control the price of laundry service in Kansas City, Missouri.
The sole question on this appeal is whether the laundry business comes within the terms of Section 8701, supra. This section reads as follows:
"Any person who shall create, enter into, become a member of or participate in any pool, trust, agreement, combination, confederation, or understanding with any other person or persons to regulate, control or fix the price of any article of manufacture, mechanism, merchandise, commodity, convenience or repair, or any product of mining, or any article or thing whatsoever, of any class or kind bought and sold, or the price or premium to be paid for insuring property against loss or damage by fire, lightning or storm, or to maintain said price when so regulated or fixed, or shall enter into, become a member of or participate in any pool, trust, agreement, 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, or the price or premium to be paid for insuring property against loss or damage by fire, lightning or storm, shall be deemed and adjudged guilty of a conspiracy in restraint of trade, and be punished as provided for in this article."
[1] Respondents insist that statutes pertaining to the criminal law must be strictly construed against the State. As a general rule that is correct. Appellant contends the statute should be liberally construed. The section under consideration is declaratory of the common law. In 12 Corpus Juris, 542, section 3, we find the following concerning the history of this law:
"Conspiracy was an offense known to the ancient English common law, antedating all legislative enactments. It is not true, as has been supposed by some, that this offense was created by the statute of 33 Edw. I; nor can it be correctly stated that this statute either abrogated or restricted the principles applicable to conspiracy as it existed at common law. The fact is, the statute, 33 Edw. I, must be considered either as only declaratory of the common law, as far as it goes, operating to remove doubts and difficulties which may have existed with reference to the conspiracies which it enumerates, by giving them a particular and definite description, or as superadding them to other classes of conspiracy already known to the law, leaving the common law unaffected beyond the express provisions of the statute."
This court in State ex inf. Hadley, Atty. Gen., v. Standard Oil Co., 218 Mo. 1, l.c. 359, 116 S.W. 902, l.c. 1012, said:
"The respondents contend that the statutes under consideration are highly penal, and should for that reason be strictly construed, and that the contention of the informant should not be concurred in by the court; and they cite many authorities in support of their contention. While it is true these sections of the statute provide for forfeitures of charters and the revocation of licenses of corporations to do business in this State, yet they are not in derogation of the common law, as the authorities heretofore cited firmly establish, but are intended to be in aid of and supplementary thereto, highly salutary and remedial in their purpose; and the mere fact that heavy losses may be sustained by respondents in consequence of an adjudication of ouster should not influence or deter the court from declaring the intention of the Legislature as contained in those articles."
[2] It cannot be said that the statute under consideration, even if liberally construed, would include within its terms the laundry business. A laundry does not deal with articles of commerce. The statute outlaws all agreements, ". . . to regulate, control or fix the price of any article of manufacture, mechanism, merchandise, commodity, convenience or repair, or any product of mining, or any article or thing whatsoever, of any class or kind bought and sold, . . ." (Italics ours.)
Laundries do not sell any articles which come within the terms of the statute. True, the operation of a laundry is a business. However, it sells a service and nothing more. It may be a convenient way for thousands of people to have their linen laundered, hence a convenience, but it is not an article of convenience bought and sold as the statute implies. It seems plain that the statute has made it unlawful for any person to enter into a pool or combination to fix the price of any article of commerce to be bought and sold. The statute so concludes. Note, ". . . or thing whatsoever of any class or kind bought and sold, . . ." There is nothing in the ordinary course of the laundry business that is bought and sold. The words "commodity" and "or repair" are used in the statute in connection with the clause "control or fix the price of any article of . . .", clearly indicating that what was meant was all articles of trade and commerce. The Supreme Court of Arkansas had a similar statute under consideration in the case of State ex rel. Moose, Atty. Gen., v. Frank et al., 169 S.W. 333. The court there held that laundries were not included within the terms of the statute. Appellant cites the case of Endicott v. Rosenthal, 216 Cal. 721, 16 P.2d 673. That case involved an agreement to fix the price of cleaning and dyeing. The statute there considered was much broader than our statute. It included "business of any kind." If our statute contained a similar phrase we would not hesitate to rule that laundries come within the term "business of any kind." If the people engaged in laundry and similar business enterprises enter into pools to fix prices and stifle competition so as to be injurious to the general welfare of the public at large, the remedy lies with the Legislature. The statute can be amended to meet such a condition. Until then, if the prices charged by the commercial laundries are too high, we will just have to do our own washings. Our opinion is, that, as the statute now reads, laundries are not included within its terms.
The judgment is affirmed. Cooley and Bohling, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.