Commonwealth v. Grinstead

Opinion oj? the court by JUDGE DuRELLE Reversing. To an indictment charging appellees with the offense of criminal conspiracy a general demurrer has been sustained. The indictment is based upon the act of May 20, 1890, entitled “An act to prevent the establishment of pools, trusts and conspiracies, and to -provide punishments therefor” (1 Acts 1889-90, p. 143). It is contained in sections 3915 to- 3921, Kentucky Statutes, inclusive. This case involves the validity of two sections of the act, which are now embodied in sections 3915,, 3917, Kentucky Statutes. They are as follows-: “See. 3915. That if any corporation under the laws of Kentucky, or under the laws of any other State or country, for transacting or conducting any kind of business in this State, or any partnership, company, firm1 or individual, or ■other association of persons, shall create, establish, organize or enter into, or become a member of, or a party to, or in any way interested in any pool, trust, combine, agreement, confederation, or understanding with any other- corporation, partnership, individual or person, or association-■of persons, for the purpose of regulating or controlling or fixing the price of any merchandise, manufactured articles, or property of any kind, or shall enter into, become a member of, or party to, or in any way interested in any pool, agreement, contract, understanding, combination or — 63 — confederation, having, for its object, the fixing, or in any way limiting the amount or quantity of any article of property, commodity or merchandise' to be produced or manufactured, mined, bought or sold, shall !be deemed guilty of the crime of conspiracy, and punished therefor as provided in the subsequent sections of this act.” “Sec. 3917. If any corporation, company, firm, partnership, or person, or association of persons, shall, by court of competent jurisdiction, be found guilty of any violation of any of the provisions of this act, such guilty party shall be punished by a fine of not less than five hundred dollars and not more than five thousand dollars. Any president, manager, director or other officer or agent, or receiver of any corporation, company, firm, partnership, or any corporation, company, firm or association, or member of any corporation, firm or association, or any member of any company, firm or other association, or any individual, found, by a court of competent jurisdiction, guilty of any violation, of this act shall be punished by a fine of not less than five hundred, dollars nor more than five thousand dollars, or may be imprisoned in the county jail not less than six months nor more than twelve months, or may be both so fined and imprisoned in the discretion of the court or jury trying the case.” An affirmance of the judgment sustaining the demurrer is urged on the following grounds: (1) That the act of May 20, 1890, was repealed by the new 'Constitution adopted September 28, 1891,' because section 198 of that instrument is in conflict with it, and because, being inconsistent with it, section 1 of the schedule operates to repeal the act; (2) that it was repealed because of-its omission from the general act revising the criminal laws, reported by the commission in pursuance of section 245 of the Constitution, — 64 — and adopted by the General Assembly in April, 1893; (3) that it is void for uncertainty; and (4) that the indictment is fatally defective in not alleging facts sufficient to constitute an offense either at common law or under the statute. These objections have been elaborately and ably argued 'by counsel on both sides. Prior to May 20, 1890, no statute existed in this State upon the subject of pools, trusts,, and conspiracies, and the statute law on the subject in most of the States is. of comparatively recent growth. The first question presented is as to the meaning of section 198 of the Constitution; and in ascertaining that meaning we are to be guided, without reference to our individual opinions of policy, by the intent of the Constitution, deducible from the language used, as understood by the people of the Commonwealth. Nor is it to be assumed, in the ascertainment of the intent of the Constitution, that in its adoption existent legislation was at all considered, unless that necessarily appears- from the language used or the circumstances; for that instrument was to be of a permanent nature, — the organic law of the Con. monwealth. Section 198 is as follows: “It shall be the duty of the General Assembly from time to time, as necessity may require, to enact such laws as may be necessary to prevent all trusts, pools, combinations or other organizations, from combining to depreciate below its real value any article, or to enhance the cost of any article, above its real value.” Is this section in conflict with the act of May 20,1890 ? There can be no question that under the old Constitution it was perfectly competent for the Legislature to pass the act. It was clearly within the general powers of the Legislature, unless the Constitution contained some inhibition. Johnson v. Higgins, 3 Metc. 576. In order to decide that there is a conflict between the act,and the sec — 65 — tion, we must find that the section contains a limitation upon the general power of legislation upon this subject. If this section were, in form, a grant of power, — if it were an authority to the Legislature to legislate upon this subject in a certain manner, — much might be said, and much authority cited in support of it, in favor of the proposition that by granting power to do a certain thing, to a certain extent, the Legislature was by implication prohibited from exercising that power in any higher degree or any different manner. But this section is not a grant of power. It is the imposition of a duty. It is a mandatory requirement. And, so far from being a restraint upon the powers of the Legislature, it seems to us that it must have been intended by the framers to be a requirement that the Legislature should at least do this much, and have been so understood by the people who voted for the adoption of the instrument. Taking this view of the meaning of the section, — and, upon fair consideration, we can reach no other, — there is no conflict between it and the act then in existence. The Constitution forbids a combination to depreciate any article below its real value, or to enhance the cost of any article above its real value. The statute forbids a combination to fix, control, or regulate the price of any article, and also a combination to- fix or limit the quantity of production. It must -be obvious that a prohibition of combinations to fix, control' or 'regulate prices is greater than, and necessarily includes- within its meaning, a prohibition of combinations to depreciate or enhance. Inclusion is not conflict. To increase the efficiency of a provision by providing for something more is not conflict. Unless-, as we have said, the section contains a prohibition, express or implied, of action by the Legislature beyond the action therein required, there is no conflict. As to the legislative power, all the presumptions are in favor of its — 66 — exercise. “The presumption must be that the State rightly does what it assumes to do, until it is made to appear how, by constitutional concession, it has devested itself of the power, or by its own constitution, has for the time rendéred the exercise unwarrantable.” U. S. v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588. This court has again and again announced this1 doctrine. The same doctrine is laid down in Cooley, Const. Lim. p. 87 et seq. But it is said that the rule announced by Cooley, Const. Lim. pp. 78, 79, applies: “Another rule of construction is that, when the Constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases.” But this rule can not apply unless we hold that the requirement of action is a grant of power. As a matter of course, “if directions are given respecting the times or modes- of proceeding in which a power shall be exercised, there is at least a strong presumption that the people designed it should’ be exercised in that time and mode only.” Cooley, Const. Lim. p. 79. But there is nothing of that sort here. Nor is> anything of that sort fairly to be inferred from the provisions of this section. It requires the General Assembly from- time to- time, as necessity may require, to enact such laws as may be necessary to prevent combinations to depreciate or to enhance the price of any article below or above its real value. If that object can best be effected by a statute to prevent combinations' to fix or regulate the price of any article, whether above, below, or at its real value, then, if the General Assembly so ordain, that is the law which necessity requires to be enacted. No circumstances are stated in this section under which the right is to be exercised, but to the extent stated the Legislature is required to exercise it. — 67 — Nothing in the cases cited for appellees' is in conflict with this. view. It may be remarked' that the cases cited in Cooley in support of the rule laid down by him, and cited on behalf of appellees, are to the effect that the Legislature can not add to the constitutional qualifications of voters, nor shorten or extend the constitutional term of office, nor ■add to the constitutional grounds' for removing the officer, nor change his compensation, nor provide for the choice of officers a different mode from that prescribed by the Constitution, nor confer the characteristic duties of an officer upon another. These cases show clearly the meaning of Mr. Cooley’s rule, and the application intended to be made of it, and that it did not apply to a case like the one at bar. The next objection is that, six years having elapsed since the adoption of the Constitution, the statute is repealed by section 1 of the schedule, providing that “the provisions of all laws which are inconsistent with this Constitution shall cease upon its adoption, except that all laws which are inconsistent with such provisions as require legislation to enforce them shall remain in force until such legislation is had, 'but not longer than six years after the adoption of this Constitution, unless sooner amended or repealed by the General Assembly.” It is obvious that the application of this section of the schedule depends upon whether an inconsistency exists. This question has been already practically settled. -There seems to us to -be no more inconsistency between the act of May 20, 1890, and section 198 of the Constitution, than exists between a quart and a pint. One includes and contains the other. It may be remarked that the quotation given from McTigue v. Com. (Ky.) 35 S. W. 121, has, so far as it would seem to hold section 1 of the schedule applicable to the cioss of cases then under consideration, — 68 — been modified by Stamper v. Com. (Ky.) 42 S. W. 915, and Thompson v. Com. (Ky.), 45 S. W., 1039; 46 S. W., 492, 698. Tbe . next objection is that the act was repealed because of its o&ission from the general act revising the criminal laws, adopted April 10, 1893 (now constituting chapter 36 Kentucky Statutes, entitled “Crimes and Punishments”): In support of this 'objection a number of cases are' cited, and the case of Buchannon v. Com., 95 Ky. 335, [25 S. W. 265,] is specially relied upon. That case, however, was considered in Conley v. Com. (Ky.) 32 S. W. 284, in an elaborate opinion by Judge Eastin, and its scope and meaning passed upon as follows: “We do not think the case cited, when properly read, warrants the conclusion drawn from it by counsel for appellant, and certainly that case did not demand any such construction of the statutes as is contended for. There the question was whether or not the act of April 10, 1893, repealed section 4 of the act of April 11, 1873, when it undertook to legislate on the whole subject ■embraced by the act of 1873, and actually adopted sections 2 and 3 of the latter act. The court there said: ‘And as section 96, embracing only provisions of sections 2 and 3 of the act of 1873, is all on the subject the Legislature deemed necessary to ingraft in the act of 1893, the conclusion is entirely reasonable that it was not intended that section 4, or any other part of the act of 1873, should be longer in force.’ From this- language it is evident that although the court spoke of the act of April 10, 1893, ás a complete system of statutory laws on the subject of ‘Crimes and Punishment,’ yet all that was meant to be decided in that case was that it is such complete system on subjects with which it deals and as to offenses of which it treats. It had adopted sections 2 and 3 of the act of 1873, and had expressly and purposely left out the other section, — 69 — thereby showing an intention to repeal that much of the law on the subject. It legislated upon the subject embraced by the act of 1873, and it was reasonable to assume that it legislated fully on that subject.” So in this case we find that the subject of “pools, trusts and conspiracies” was not legislated upon by the act of April 10, 1893. The subject was not treated in any way in that act, and no attempt was made therein to legislate upon it. It did contain a re-enactment of the Ivuklux act, and also of the act upon conspiracy to carry on a false prosecution. Those subjects are not in any wise akin to the subject treated of in the act now under consideration, and the doctrine should be limited, as laid down in Long v. Stone (Ky.) 39 S. W. 836, to holding that “general laws, comprehensive in character and actually adopted by that body, should be regarded, because evidently so intended, as repeal of prior laws on the subjects treated by them, respectively, and such should be the construction when that purpose is plainly shown by the context of a particular statute or otherwise.” We are of opinion, therefore, that the statute under consideration wTas not repealed by the act of April 10, 1893. The next objection is that the statute is too indefinite and uncertain to be enforced, and in support of this objection the cases of Louisville & N. R. Co. v. Com. (Ky.) 35 S. W. 129, and Com. v. Louisville & N. R. Co. (Ky.) 46 S. W. 700, construing sections 816 and 818, respectively, of the Kentucky Statutes, are relied upon. In the one case the statute forbade the charge of'more than a just and reasonable rate of toll for transportation, and in the other prohibited “undue or unreasonable preference or advantage to any particular person or locality.” In those cases the words “just and reasonable” and “undue or unreasonable” were held to be too indefinite and uncertain to form the — 70 — basis of the infliction of the. statutory punishment. The statute we are now considering leaves no such question open for the consideration of the jury as was left open by those statutes. It prohibits any combination to- regulate or fix prices. It also prohibits any combination to limit production. We are unable to see any uncertainty in ■these provisions. If the statute had prohibited an unreasonable advance of prices or an unjust depreciation the question would be different. But no such question is presented. A combination to fix prices or limit production is, by the statute, unlawful. We can not see how it could be made more definite. But it is urged that section 3917 is uncertain in the punishment provided. It will be observed that the first sentence of section 3917 provides a punishment by a fine of not less than $500 nor more than $5,000 for a violation by “any corporation, company, firm, partnership or person, or association of persons”; and the second sentence provides a punishment by a fine of not less than $500 nor more than $5,000, or by imprisonment in the county jail for not less than six nor more1 than twelve months, or both such fine and imprisonment, for a violation by “any president, manager, director or other officer or agent, or receiver of any corporation, company, firm, partnership, or any corporation, company, firm or association, or member of any corporation, firm or association, or any member of any company, firm or other association, or any individual.” The objection is that each part of the section applies to all varieties of artificial persons, and also to natural persons, and, therefore, as a different penalty -is imposed by the first part from that imposed by the second, the act is void for uncertainty. A careful examination of the second part of this section leads us to the conclusion that it was not the intention to impose the penalty denounced therein upon — 71 — any artificial person. The repetition of the- words “corporation, company, firm” seems probably to have been made by mistake. But, be that as it may, we think the repeated words should be construed as governed by the proposition “of,” just as they are where they first occur; that is to say, the section should be read, “or receiver of any corporation, company, firm, partnership, or [of] any corporation, company, firm or association.” And- this for the manifest reason that a distinction is evidently'aimed at between the parties sought to be punished in the first ■part of the section and in the second! part, and for the further reason that the- punishment by imprisonment denounced in the second' part is impossible of application to an artificial person, and we should so construe the statute as, if possible, to make it effective. Thus read, there is no uncertainty by reason of different penalties being made applicable to the same class of offenders, unless it results ■from the use of the word “person,” in the first part of the section, and “individual,” in the second part. But shall the statute be held void for this apparent inconsistency? Even in questions of constitutionality of statutes, courts will not lig-htly hold for naught the solemn declarations of a co-ordinate branch of the government. Said Chief Justice Marshall: “The court, when impelled1 by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligation-which that station imposes; but it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended) its powers, and its acts- to be construed as void;” Fletcher v. Peck, 6 Cranch, 128, 3 L. Ed., 175. And so in the construction of statutes it has been said by Chief Justice Pryor: “It is a well-settled rule of construction that the letter of a statute will not be followed — 72 — when it lead's to an absurd conclusion; but, on the contrary, the reason for the enactment must enter into its interpretation, so as to determine what was intended to be accomplished by it.” Sams v. Sams’ Adm’r, 85 Ky., 400 (3 S. W., 594). Mr. Endlich, in his work on the Interpretation of Statutes, says: “When the language of a statute iin its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, to inconvenience or absurdity, hardship or injustice, not presumably intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This is done sometimes by giving unusual meaning to particular words, sometimes by altering their collocation, or by rejecting them altogether, or by interpolating other words-; the court having an irresistible conviction that the modifications thus made are mere corrections of careless language, and give really the true intention.” Page 400, sec. 295. Applying this rule to the consideration of this statute, with the view of its interpretation, ut res magis valeat quam pereat, w.e find the penalty-imposing section of the statute divided' into two parts; the first part referring, with one exception, to artificial persons or combinations, and inflicting a penalty appropriate to artificial persons or combinations, viz., the penalty of a fine. We find the second part, as we construe it, referring solely to natural persons, generally occupying an official relationship to' artificial persons, or holding membership in them; and this part of the section inflicts a penalty appropriate to natural persons, viz., fine or imprisonment, or both, at the discretion of the court or jury trying the case. It seems manifest that the object of the statute was, in the first part, to impose punishment upon the corporate entities which might violate the stat — 73 — ute, and this could be done only by fine, and that the intention in the second part was to impose punishment upon' the officers of such, corporate entities or associations’, and punish individuáis1 who might be guilty of the same offense, and that in- the case of the natural persons, as it was possible to impose an additional penalty of imprisonment, it was imposed, in order the more effectually to deter them from committing,- or permitting the corporations which they represent to commit, the offenses denounced by the statute. From this it would seem that the word “person/’ as used in the first part of the section, is a mere inaccuracy, which may be rejected in order to effectuate the intention of the statute. As said1 by Judge Pryor in the case of Bird v. Board, 95 Ky., 199 (24 S. W., 119), in which the word “depth” was substituted for the word “width”; “In the case before us the legislative intent becomes so1 apparent, that, where words- have been carelessly inserted that lead to an absurdity, there is no reason why such a judicial interpretation should not be placed upon the statute as will effect its object; the court being satisfied the use of the word was- a mere inaccuracy, and the modification made is in furtherance of the legislative purpose.” This construction leaves the statute without objection on the ground of uncertainty. This brings us to the consideration of the last objection, viz., that the indictment is fatally defective in not alleging the acts charged against appellees with sufficient certainty, or stating the means to be used to carry out the conspiracy. The indictment is for a statutory offense, created by the statute alone. It follows the language of the statute, and, if the words of the statute are descriptive of the offense, it is, according to the well-settled rule of this State, complete. In Moore v. Com., 92 Ky., 630 (18 S. W., 833), in an opin — 74 — ion by Judge Holt, this court said1: “Where the words of the statute are descriptive of the offense, the indictment will be sufficient if it follows the language of the statute.” To the same effect are numerous other cases, unnecessary to be here cited. This is not a case of common-law conspiracy, as was the case of Com. v. Ward, 92 Ky., 158 (17 S. W., 283), but a purely statutory one. The offense, under this statute, is complete if the defendant enters into an agreement with another for the purpose of fixing the price of any merchandise. No conclusion of la.w forms any part of any of these ingredients of the offense. They are all statements of fact, and statements for the expression of which it is difficult to imagine language more apt than that employed by the statute. We think the contention that it is necessary to set forth the means to be adopted to effect the object of the combination is fully met by the general rule as to indictments for statutory offenses, where the offense is described by the statute; but we are further cited by appellant to State v. Murphy, 41 Am. Dec., 79, where the supreme court of Alabama held, in an indictment for common-law conspiracy, that: “In the prosecution for a conspiracy, it is sufficient to- state in the indictment the conspiracy and the object of it. The means by which it was intended to be accomplished need not be set out; being only matters of evidence to prove the charge, and not the crime itself.” And in 2 Bish. New Cr. Proc., sec. 204, it is shown that the two essentials of an indictment for conspiracy are: “(1) A combining of two or more minds; (2) the purpose of the combining.” In section 206, speaking of overt acts, it is said: “Such acts are, when the combining of the defendants in a common purpose has been shown, evidence, like their declamations, further establishing the conspiracy and illustrating its character. And, if the law gave to these acts no other — 75 — ■effect, they should mot be set out in the indictment, the province of which is to state facts, not evidence.” We are of opinion, therefore, that the indictment, following the statute, is descriptive of the offense. June 8, 1900: In reaching these conclusions, we have left out of sight all questions of the policy of the law and its propriety, and, being of opinion that there was no conflict between the statute and the Constitution, have endeavored only to ascertain and give effect to the legislative will. For the reasons given, the judgment is reversed and the cause remanded, with directions' to set aside the judgment, and for further proceedings consistent herewith. Judges Burnam and Hobson dissenting.