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dence, as we may find it to be from the rec- | Pac. 361, 24 L. R. A. (N. S.) 639. So, even ord, reserving the right to be persuaded, if if it were not now the well-settled law of we be so inclined, by the learned commis- this state-weight of stare decisis regarded sioner's finding upon the facts, and to be that a jury trial will not be granted by swayed, if we deem his position sound, by this court in a quo warranto proceeding here, his conclusions upon the law.

we would yet hold that under the facts here [3] II. Respondents each and all contend respondents, by their failure to request a that they were entitled to a jury trial. Up- jury in a timely way, must be said to have on this contention they cite authorities from waived trial by a jury, even if they were other jurisdictions, which in the main sup- entitled thereto under the law. port their contentions. However that may Persuasive with us in this view is the law be, the rule by weight of authority in this on the same point as to a referee, wherein state is otherwise. This holding has never the practice in many respects is cognate. As been departed from in this state, except by to the time of demanding a jury in a referred inference, as we might say, in the Townsley case, this court said, in Smith v. Baer, 166 Case, infra, since the question was first rais- Mo. loc. cit. 402, 66 S. W. 169: ed as reported in the case of State ex rel. “But even if the question was open to review,

The motion F. Vail, 53 Mo. 97. The doctrine enunciated there is no merit in the claim.

came too late. The right should have been asin the case of State ex rel. v. Vail, supra, serted before the case was referred. A party was affirmed in the case of State ex rel. Nor- cannot take chances of winning before a referee ton v. Lupton, 64 Mo. 415, 27 Am. Rep. 253, and, when he fails, demand a jury trial in the and in divers other cases not necessary to Young v. Powell, 87 Mo. loc. cit. 130.'

circuit court after the referee's report is filed. mention. The alleged right to a jury trial

There are, it is conceded, minor points of was futilely urged in the case of State ex difference between the facts in the instant inf. v. Standard Oil Co., 218 Mo. 1, 116 S.

case and those from which the above exW. 902, in this court, and the point was kept cerpt is taken (compare Laws 1895, $ 6, p. alive and again urged in the Supreme Court 95); but in all civil cases the rule is similar. of the United States in the case of Standard “In civil cases,” says Cyc., “a jury must be Oil Co. v. Missouri, 224 U. S. 270, 32 Sup. Ct. demanded or the right of trial thereby will 406, 56 L. Ed. 760, Ann. Cas. 1913D, 936; be waived.” 24 Cyc. 161. Such demand must and, while there is some authority in other be timely (24 Cyc. 165); regard being had to states which bears out the contentions of re- the loss of time and labor and the expense spondents touching this right to have ques- incident to failure to make a timely request. tions of fact determined by a jury, yet our

The personal views of the writer are that courts hold by the weight of authority to present a timely request for a jury in the the contrary. Besides, the request for a jury trial of an information in the nature of quo in this case was not raised by respondents warranto, having for its object the forfeiture in a timely way. With full knowledge, pre- of the franchise or the confiscation of the sumably, of the limitations, if not impossi- whole or a part of the property of a corporabilities, by which this court is hedged about tion, such request ought to be granted, and in the trial of questions of fact, and with the case sent down to a circuit court (comfull knowledge of the practice and procedure pare section 6, p. 95, Laws 1895; section 2627, in this behalf, respondents made no request R. S. 1909) to be tried by a jury on issues for a jury till the matter of taking testimony of fact framed by this court. State ex rel. came up before the commissioner appointed v. Townsley, supra; People v. Doesburg, suby this court. There for the first time a de- pra; State ex rel. v. Cobb, supra. However, mand for a jury was urged-urged, too, be- i have found the great weight of the decided fore an arm of this court, having, as

cases in this state to hold to the contrary. spondents well knew, no power to call a jury In fact none holds with these views, save or to try a case by a jury. There is but one and except the Townsley Case, which, recase in this state where a jury was ordered markable to say, has never yet been expressin a quo warranto proceeding; that is the ly overruled. Nevertheless, the writer at this case of State ex rel. v. Townsley, 56 Mo. 107, time, in this case, absent diligence as pointed where, timely request having been made to out, and to say no more, present perhaps, this court to submit the question of fact to at least a modicum of technicality, does not a jury, this court ordered the case referred feel inclined to argue or to urge the overrulto the circuit court of Jackson county for a ing of the cases expressing a doctrine on this hearing. Likewise in an early Michigan case point contrary to his own personal views. a similar procedure seems to have been had.

[4] III. All of the respondents contend that People v. Doesburg, 16 Mich. 133. And in the petition in this case does not state sufOklahoma it is said that the constitutional ficient facts to constitute a cause of action right to a jury exists; but, if a jury is de- against respondents or any of them, and that manded in a case in the Supreme Court there is an unwarranted and illegal miswhere no machinery therefor has been by law joinder of respondents therein. Coming to provided, the case will be dismissed and the last clause of respondents' contentions brought in a court having power to call a first, it is clear that the petition seeks to jury. State ex rel. v. Cobb, 24 Okl. 662, 104 charge an unlawful combination, or confed



eration, or, in other words, a conspiracy. It and this doctrine is the prevalent one in other is common sense, as well as law, that in or- states, and is approved by the text-writers on der to constitute a conspiracy there must be the ground that it brings the pleadings and

practice in these quo warranto cases in harconspirators. The respondents in a sense mony with the practice in other civil cases. are, and each of them is, charged with con

Whenever the information in quo warspiring together, each with the other, and ranto avers that the respondent has a corporate

existence, and the evident purpose of the proall with all to do certain things made unlaw.ceedings is to have its charter forfeited for ful by our statutes leveled against pools, nonuser, misuser, or usurpation of powers, then trusts, and combinations. In the very na- the pleader must plead specifically that acts of ture of things, it was clearly impossible to the nonuser, the acts of misuser, or of usurpa

tion relied upon for grounds of forfeiture, so charge them at all, unless they were charg- that the corporation may know what it is called, as they were, together. If respondents' ed upon to meet and defend.'" contention be bottomed upon the fact that It is urged by learned counsel for respondthe Badger Lumber Company, Missouri Tie ents that the above case is decisive of their & Timber Company, and others, who upon contentions upon this question in the instant taking proof satisfied the Attorney General case. Respondents, however, lose sight of that they were not and had not been mem- the distinction which ought to be drawn unbers of the association complained of, and der the law between the Missouri Pacific Case, were dismissed hence, then the dismissal by supra, and the one at bar. In the Missouri the state as to these respondents relieves us Pacific Case respondents were charged, in from further discussion of this point, since substance, with entering into an unlawful nothing is clearer than that respondents' case combination to do a lawful act; that is to is not, has not been, and cannot be prejudiced say, an unlawful combination to fix a rate by the joinder for a time with them, of other for carrying passengers not exceeding the respondents, as to whom, no guilt being found statutory rate which they were permitted by by counsel for the state, the case has been law to charge. Since by statute they might dismissed. Besides, our statute, by which charge a maximum rate of three cents per now alone demurrers are weighed, requires mile for carrying a passenger, and since, even that the demurrable defect of a defendant's pursuant to the alleged unlawful conspiracy not being a necessary party to the determina- into which it was charged they had entered, tion of the action "shall appear upon the they were not seeking or conspiring to charge face” of the petition (section 1800, R. S. a rate beyond the niaximum rate allowed by 1909), as the latter defect did not in the in- statute, they were endeavoring only to do a stant case.

lawful act by an unlawful means. This dis[5,6] Coming to the question of whether, tinction is clearly drawn in the Standard regardless of the contention last above dis- Oil Case, supra, 218 Mo. 366, 116 S. W. 1000, posed of, the petition states such facts as to where it is said: constitute a cause of action against respond

“And especially is this rule applicable in ents, we are met with a more serious difficulty. this state when such proceedings are civil in We ave a statute which provides that, in any their nature, and which are not required to be action brought to enforce the anti-trust laws, which crimes must be charged. State ex inf. y.

stated with the same technical strictness with it shall not be necessary to plead “the man- Equitable Loan & Inv. Co., 142_Mo. 325 [41 ner in which, or when or where" such con- s.' w. 916); State ex inf. v. Delmar Jockspiracy was made or effected. Section 10310, ey Club, 200 Mo. 34 [92 S. W. 185, 98

S. W. 539). But waiving that point for the R. S. 1909; Laws of Mo. 1907, p. 377.

present, and conceding that this proceeding is This form of action, that is to say, an in- in the nature of a criminal prosecution, and formation in the nature of quo warranto, has that the pleader should be held to the same been held to be a civil action. That it is a ing a criminal conspiracy, still we are of the

strict rules of pleading as is required in charge civil action is now the well-settled law of this opinion that the information states a good state. But to the aid of the rules of plead. cause of action, for the reason that acts with ing in ordinary cases, the Legislature has which the respondents are charged are unlaw

ful. sought to bring section 10310, supra. Re "In such cases the rule is that: 'If the act gardless, however, of the provisions of this with which the conspirators combine to persection, this court, in the case of State ex rel. form is unlawful, it is unnecessary to set out v. Missouri Pacific Ry. Co. et al., 240 Mo. 35, complishing it. But if. the end in view is law

in the indictment the means employed in ac144 S. W. 1088, lately held as follows:

ful or indifferent, and the conspiracy only be"Since the well-considered decision of this comes criminal by reason of the unlawful means court in the case of State ex rel. v. Grimm, whereby it is to be accomplished, it becomes 220 Mo. 483 [119 S. W. 626), it has become the necessary to show the criminality by setting settled law of Missouri that, in proceedings in out such unlawful means.' 4 Ency. Pl. & Pr. the nature of quo warranto to revoke the fran- pp. 713, 714, 716, 717; Coal Co. v. People, 214 chise of a corporation duly chartered or licensed 11l. 421 [73 N. E. 770). to transact business in this state, the pleadings shall conform to our general Code of Civil

[7] A similar attack was made by the reProcedure.

spondents in the Standard Oil Case, supra, "In the Grimm Case, supra, this court, in to the petition there. It was held by this banc, speaking through Gantt, J., said: "The des court that the petition was good under the cisions of this court have recognized the right of a defendant or respondent to demur to the rule above enunciated. It was held, on the information in the nature of quo warranto,/ other hand, that the petition in the Missouri

Pacific Case, supra, was bad. State ex inf. , stances; it states a cause of action by pleadv. Missouri Pacific Ry. Co., 240 Mo. 35, 144 S. ing legal conclusions; but it does not state it W. 1088. The Standard Oil Case was right- with the art or with that definiteness which ly decided; the Missouri Pacific Case was respondents and this court, that time and larightly decided; but the distinction which bor may be saved and business may be exwe make here was by inadvertence, not care- pedited, were entitled to have it stated. A mofully drawn as between the two cases. The tion to make more definite and certain would Standard Oil Case, supra, was a conspiracy have lain, and a timely demurrer for defects to do an unlawful act by an unlawful means, in this behalf ought to have been sustained, a conspiracy to do a thing against which the and most probably would have been sustained statute is leveled, and governing wbich the had such demurrer been filed in a timely way. provisions of section 10310, supra, apply; But it was too late to urge the same before while the Missouri Pacific Case was a con- the commissioner. No demurrer to the petispiracy to do a lawful act by unlawful tion has ever been filed. means. In other words, there were present [8] The only demurrer offered was a de in the Standard Oil Case both a conspiracy murrer ore tenus, objecting in limine, because and an unlawful act; while in the Missouri the petition, as respondents averred, stated Pacific Case there was present (or charged) a no cause of action. Such a demurrer has conspiracy only. The Missouri Pacific Rail- never been regarded by this court as reachroad Company might (then) have lawfully ing the alleged defects in a petition to nearcharged three cents a mile for carrying a pas-ly the same extent and for even nearly the senger; but it could not (then) lawfully same purpose as the formal written demurrer agree to stifle competition by contracting provided for by our code of pleading. Such with other common carriers to make or fix demurrer, that is, a demurrer ore tenus, in an agreed rate, even though such agreed rate law has no more effect in reaching a bad pewas less than the three cents allowed by law tition than has a motion in arrest, which to to be charged. Query: Has not competition an extent is covered fully by our statute of been since “repealed"?) In the case at bar jeofails. Such demurrer will not reach mere both a conspiracy and an unlawful act is uncertainty or indefiniteness of averment, or charged. This case falls within the category, the defect of pleading legal conclusions. 31 and is to be judged, it would seem, by the Cyc. 761, and cases cited. rules of pleading fixed by the Standard Oil If a petition attached for insufficiency by Case, and not by those of the Missouri Pacific an objection to the offering of any testimony Case. Regardless of this, however, respond thereon may be held by liberal construction ents by answering over waived this point, and reasonable intendment to state a cause of however good it might have been had they action, we ought not to lend our encouragetaken timely advantage of it. They all and ment to a method of attack which smacks of each of them answered here in this court be- the ambuscade, and of a digging of pitfalls fore the case was sent to our commissioner for the feet of the unwary. Heether v. for the taking of testimony therein; a ma- Huntsville, 121 Mo. App. 495, 97 S. W. 239; jority of them filed in this court amended Haseltine v. Smith, 154 Mo. 404, 55 S. W: answers before the case left here, and yet 633; 31 Cyc. 761. A fortiori, we ought not others and the remainder of them lodged to do so in an age when the question is up amended answers with the commissioner, for serious debate among bench and bar as to with the privilege of having such answers whether the demurrer ought not to be abolreferred back to this court for permission to ished, for that it is an anachronism, and formally file the same. At least 17 of the re- has outgrown its usefulness, and especially spondents thus lodged with the commissioner in a case wbich has been pending and dragsuch amended answers on June 10, 1912, long ging its slow length along for more than five after they had interposed their said demur- years; in which many thousands of pages rers ore tenus.

of testimony have been taken, and the trial That the petition in this case, viéwed by of which has involved years of time, manifold the ordinary rules of pleading, was vague, labor on court, counsel, and commissioner, uncertain, and indefinite, there can be no and thousands of dollars in expenses and doubt. It is patent that it does not inform costs. respondents definitely of the things which it We hold the petition good under the law is charged they have done; of the definite un- here, having regard to the time and manner lawful acts which it is charged they have com- of the attack thereon. Reaching this view mitted. It does not say how or when or where by another road, we need not pass upon secsuch acts were committed. It gives to the tion 10310 and say how far, if at all, we are state a roving commission to rake dead coals helped by it. from time to eternity, from center to circum- [9] IV. It is urged by all of the respondference; but yet after all and in all, viewed ents that the three-year statute of limitations in the light of our anti-trust law, it directly applies in this case; that the state had no charges a violation of that law in the lan- power or authority to go back in its investiguage of tim law. It is only uncertain and gations and dig up the alleged illegal acts of indefintie as to time and place and circum- respondents occurring at a period prior to

July 30, 1905, which date was three years to for its benefit, in the same manner as to aca day prior to the institution of this action. tions brought by private parties." In this view of respondents we concur. It is That this section makes applicable to the urged by the learned Attorney General that state every general limitation in our law, section 1890, R. S. 1909, of our statutes of there can be no doubt in logic or reason. limitations does not apply. This section, in Section 1890, supra, the applicable part of so far .as its provisions are in any wise ap- which we quote above, is contained in and is plicable to the facts here, is as follows: a part of article 9 of our statute, and the sec“Sec. 1890. Within three years

sec- tion last read is also one of the sections of ond, an action upon a statute for a penalty or article 9. Section 1914, supra, came into forfeiture, where the action is given to the party, aggrieved, or to such party and the our law in substantially its present form by state.”

the act of February 24, 1849.

For many This question does not seem ever to have years it was held to be a statute of limitaarisen in this state in a case of this sort. tions for the state, as well as for the individThere have been cases adjudged in which the ual. Hendrickson v. Grable, 157 Mo. 42, 57 rights of towns and villages to exercise their S. W. 784; Dice v. Hamilton, 178 Mo. 81, 77 corporate franchises were brought in question 1886, R. S. 1909 (which section took ef

S. W. 299. Prior to the enactment of sec. tion by informations in the nature of quo warranto. It has been held upon the doctrine of fect August 1, 1866), it was held in this state laches, however, that the right to investigate in so far as to bar the state from the recov

that section 1914, supra, applied to the state such matters is sometimes barred, without regard to the statute of limitations. In one ery of parts of the sixteenth section. Missiscase it was held that a period of twelve sippi Co. v. Vowels, 101 Mo. 225, 14 S. W. 282. years barred this right. State ex rel. v.

In fact there seems to have been no change Town of Westport, 116 Mo. 582, 22 S. W. 888. this point that this section does bar the state,

or shadow of turning in the holdings upon In another case it was held that eight years barred this right. State ex rel v. Town of regardless of the maxim, “Nullum tempus ocMansfield, 99 Mo. App. 146, 72 S. W. 471. currit regi," whenever the facts bring the But these were cases where the state inquir-state within the verbiage of this section. ed in effect by what right the respondent

It occurs to us that some of the legal quescities exercised corporate privileges.

tions now being constantly raised (some of There is little, if any, similarity in fact be- which, namely, form of pleading, right to a tween those proceedings and this at bar, et jury and statute of limitations, are to the id omne genus.

fore in the case at bar) might be slightly ilScarcely a vestige remains but the name, and we have uselessly and luminated by a bit of analysis of our statute with violence retained this. We have reach- against pools, trusts, and conspiracies. Goed out into common law without an excuse in ing back to the act of May 10, 1899 (Laws the necessity of the case and appropriated after appearing, we note that section 1 of this

of Missouri 1899, p. 316), for reasons here merely a name for an action under penal statutes which themselves prescribed anoth- act is in pari materia with sections 1, 2, and er and contemplated a different procedure. 3 of the anti-trust act of the United States This action clearly involves the exaction of (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. a penalty or forfeiture. Northern Securities Comp. St. 1901, p. 3200]), the so-called Co. v. United States, 193 U. S. loc. cit. 358, 24 Sherman Act"; the fields of interstate and

intrastate trade affected by them, respectiveSup. Ct. 436, 48 L. Ed. 679. The statute quoted limits the right of action to the party

ly, being regarded. This similarity inheres, aggrieved to the period of three years. The except that the Missouri law confines itself state is here the party aggrieved. It is said to a very specific definition of the offenses and correctly said, that, in the absence of a

denounced, while the sections of the Sherman specific statute against the right of the state Act mentioned defines the offense in general to maintain this action, the law does not terms, and prescribes penalties for the punforeclose the state's right to institute the ishment of the infraction thereof. Sections same, for the reason that no time runs 2, 3, and 4 of our act of 1899 are mutatis against the state. That this is the general tions 4, 5, and 7 of the Sherman Act. Sec

mutandis, similar in all substance with seclaw in other jurisdictions and the law every- tion 5 of our act of 1899 simply makes the where, in the absence of a specific statute, provisions of the act cumulative in procedure we concede and do not doubt. Eel River Ry: and provisions with former acts, unless in Co. v. State, 155 Ind. 433, 57 N. E. 388; Crane v. Reeder, 21 Mich. 24, 4 Am. Rep.

case of irreconcilable conflict. Many of the 430; State v. Fleming, 19 Mo. 607; Bagley acts complained of herein by the state tranv. Wallace, 16 Serg. & R. (Pa.) 245; Lawless spired while the act of 1899 was in force. v. Wright, 39 Tex. Civ. App. 26, 86 S. W. (Laws of Mo. 1907, p. 377), which was in

In the Missouri act of March 19, 1907 1039. But we have here in this state a spe-effect when the case at bar was brought, the cific statute, which is as follows: “Sec. 1914. The limitations prescribed in ar

first five sections thereof (now sections 10298, ticles 6 and 9 of this chapter shall apply to 10299, 10300, 10301, and 10302) are likewise, actions brought in the name of this state, or regard being had to different conditions and







jurisdiction, in pari materia with sections 1, Section 10304, R. S. of Mo. 1909, the penal2, and 3 of the Sherman Act, in that these ties of which are being invoked in the insections, respectively, define the offenses and stant case, is clearly not a statute prescribprescribe criminal penalties therefor. Pur- ing procedure, but a statute prescribing the suing the comparison farther, we find the punishment which may be inflicted upon a procedure in civil cases prescribed, respec- guilty domestic, or domiciled foreign cortively, in the two acts, as follows:

poration. Also section 10302, R. S. of Mo. Section 4, Sherman Section 10303, R. S. Mo. 1909, prescribes the punishment which shall Act: "The several Cir- 1909: "The several cir- be inflicted upon a natural person found cuit Courts of the Unit- cuit courts of this state guilty of the felony therein denounced when ed States are hereby in- are hereby invested with vested with jurisdiction jurisdiction prevent prosecuted criminally. Can anything be to prevent and restrain and restrain any person clearer than that the penalties of these two violations of this act; or persons, corporation, sections are not in the nature of things interand it shall be the duty partnership, individual

changeable? That a natural person cannot tbe several district or association of indiattorneys of the United viduals from entering

be punished under section 10304, nor can a States, in their respec- into combinations, corporation be punished under section 10302? tive districts, under the pools, agreements in the There must be a common ground, otherwise a direction of the Attor- form of trusts, confed- natural person or persons or a copartnership Dey General, to insti- eration, conspiracy

proceedings in understanding declared might conspire with a corporation or many equity prevent and illegal by this article, or corporations, and, being legally incapable of restrain such violations. any other law of this

common punishment, one or the other, or Such proceedings may state relative to pools, be by way of petition set- trusts, conspiracies and both, would go acquit. Suppose that in the ting forth the case and unlawful combinations. instant case John Doe and Richard Roe, praying that such viola- And it shall be the duty being sole traders in buying and selling yeltions shall be enjoined of the Attorney General low pine, and John Smith, being a manuor otherwise prohibited. and of the prosecuting facturer of yellow pine, had conspired and When the parties com- attorneys to institute plained of shall have proceedings in equity to combined with the Arkansas Lumber Combeen duly notified of prevent and restrain all pany and all of the other respondents ; such petition the court violations of this article would the prosecution here have been in quo shall proceed, as soon and of any other law as may be, to the hear- concerning pools, ti ists warranto against both corporations and pering and determination and conspiracies and sons, or an information for a felony against of the case ;

and pend- unlawful combinations. both the corporation and natural persons, or ing such petition

and Such proceedings may before final decree, the be by way of petition, would the state have proceeded against the court may at any time setting forth the case corporations in quo warranto and the natural make such temporary re- and praying that such persons by indictment as for a felony, for straining order or pro- violations enjoined the identical offense, or would the state have hibition

shall be or otherwise prohibited. deemed


in the When the parties com- pursued the one and let the other go acquit? premises."

plained of shall have 2 Eddy on Combinations, 1085. Can it be been duly notified of contended that quo warranto is a proper remsuch petition, the court

edy in such case against a natural person? shall proceed, as may be, to the hear- We submit so much arguendo, and touching ing

and determination neither question give an opinion. The points of the case ; and pend- are not in the case. They are logs heaved ing such petition, and overboard to ascertain if we have been driftbefore final decree, the court may, at any time, ing, and if so whither and how far. make such temporary With so much similarity in substance berestraining order

or tween our statutes and the federal Sherman prohibition shall be deemed just


Act, our actions in this state have been uni. premises."

formly by so-called informations in the naSection 5 of the Sherman Act, which is as Court, and not in any circuit court, while the

ture of quo warranto brought in the Supreme follows: “Whenever it shall appear to the court be

actions brought by the United States under fore which any proceeding under section four the Sherman Act have been both by criminal of this act may be pending, that the ends of prosecution (United States v. Patterson [D. justice require that other parties should be c.] 205 Fed. 292) and by action in equity in brought before the court, the court may cause the Circuit Courts (now by amendment of them to be summoned, whether they reside in the district in which the court is held or not; procedure, the District Courts) of the United and subpenas to that end may be served in any States (United States v. Knight & Co., 156 district by the marshal thereof”.

U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325; Uni-was, until the amendment of our act by ted States v. Freight Association, 166 U. S. the said act of 1907, also in our statute in 290, 17 Sup. Ct. 540, 41 L. Ed. 1007; United almost the precise words of the Sherman Act States v. Joint Traffic Ass'n, 171 U. S. 505, above quoted. See section 8980, R. S. 1899. 19 Sup. Ct. 25, 43 L. Ed. 259; Hopkins v. For some reason, this section was omitted United States, 171 U. S. 578, 19 Sup. Ct. 40, from the act of 1907; but whether it has or 43 L. Ed. 290; Anderson v. United States, has not been repealed, we need not now dis- 171 U. S. 604, 19 Sup. Ct. 50, 43 L. Ed. 300; cuss.

Addyston Pipe, etc., Co. v. United States, 175







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