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if it were not now the well-settled law of this state-weight of stare decisis regarded

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 we be so inclined, by the learned commissioner's finding upon the facts, and to be swayed, if we deem his position sound, by his conclusions upon the law.

that a jury trial will not be granted by this court in a quo warranto proceeding here, we would yet hold that under the facts here respondents, by their failure to request a Up-jury in a timely way, must be said to have waived trial by a jury, even if they were entitled thereto under the law.

[3] II. Respondents each and all contend that they were entitled to a jury trial. on this contention they cite authorities from other jurisdictions, which in the main support their contentions. However that may be, the rule by weight of authority in this state is otherwise. This holding has never been departed from in this state, except by inference, as we might say, in the Townsley Case, infra, since the question was first raised as reported in the case of State ex rel. v. Vail, 53 Mo. 97. The doctrine enunciated in the case of State ex rel. v. Vail, supra, was affirmed in the case of State ex rel. Norton v. Lupton, 64 Mo. 415, 27 Am. Rep. 253, and in divers other cases not necessary to mention. The alleged right to a jury trial was futilely urged in the case of State ex inf. v. Standard Oil Co., 218 Mo. 1, 116 S. W. 902, in this court, and the point was kept alive and again urged in the Supreme Court of the United States in the case of Standard Oil Co. v. Missouri, 224 U. S. 270, 32 Sup. Ct. 406, 56 L. Ed. 760, Ann. Cas. 1913D, 936; and, while there is some authority in other states which bears out the contentions of respondents touching this right to have questions of fact determined by a jury, yet our courts hold by the weight of authority to the contrary. Besides, the request for a jury in this case was not raised by respondents in a timely way. With full knowledge, presumably, of the limitations, if not impossibilities, by which this court is hedged about in the trial of questions of fact, and with

full knowledge of the practice and procedure in this behalf, respondents made no request for a jury till the matter of taking testimony came up before the commissioner appointed by this court. There for the first time a demand for a jury was urged-urged, too, before an arm of this court, having, as respondents well knew, no power to call a jury or to try a case by a jury. There is but one case in this state where a jury was ordered in a quo warranto proceeding; that is the case of State ex rel. v. Townsley, 56 Mo. 107, where, timely request having been made to this court to submit the question of fact to a jury, this court ordered the case referred to the circuit court of Jackson county for a hearing. Likewise in an early Michigan case a similar procedure seems to have been had. People v. Doesburg, 16 Mich. 133. And in Oklahoma it is said that the constitutional right to a jury exists; but, if a jury is demanded in a case in the Supreme Court where no machinery therefor has been by law provided, the case will be dismissed and brought in a court having power to call a jury. State ex rel. v. Cobb, 24 Okl. 662, 104

Persuasive with us in this view is the law on the same point as to a referee, wherein the practice in many respects is cognate. As to the time of demanding a jury in a referred case, this court said, in Smith v. Baer, 166 Mo. loc. cit. 402, 66 S. W. 169:

"But even if the question was open to review, there is no merit in the claim. The motion came too late. The right should have been asserted before the case was referred. A party cannot take chances of winning before a referee and, when he fails, demand a jury trial in the Young v. Powell, 87 Mo. loc. cit. 130." circuit court after the referee's report is filed.

There are, it is conceded, minor points of difference between the facts in the instant case and those from which the above ex

cerpt is taken (compare Laws 1895, § 6, p. 95); but in all civil cases the rule is similar. "In civil cases," says Cyc., "a jury must be demanded or the right of trial thereby will be waived." 24 Cyc. 161. Such demand must be timely (24 Cyc. 165); regard being had to the loss of time and labor and the expense incident to failure to make a timely request.

The personal views of the writer are that present a timely request for a jury in the trial of an information in the nature of quo warranto, having for its object the forfeiture of the franchise or the confiscation of the whole or a part of the property of a corporation, such request ought to be granted, and

the case sent down to a circuit court (compare section 6, p. 95, Laws 1895; section 2627, R. S. 1909) to be tried by a jury on issues of fact framed by this court. State ex rel. v. Townsley, supra; People v. Doesburg, supra; State ex rel. v. Cobb, supra. However, I have found the great weight of the decided cases in this state to hold to the contrary. In fact none holds with these views, save and except the Townsley Case, which, remarkable to say, has never yet been expressly overruled. Nevertheless, the writer at this time, in this case, absent diligence as pointed out, and to say no more, present perhaps, at least a modicum of technicality, does not feel inclined to argue or to urge the overruling of the cases expressing a doctrine on this point contrary to his own personal views.

[4] III. All of the respondents contend that the petition in this case does not state sufficient facts to constitute a cause of action against respondents or any of them, and that there is an unwarranted and illegal misjoinder of respondents therein. Coming to the last clause of respondents' contentions first, it is clear that the petition seeks to 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 conWhenever 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 usurpation 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 the Badger Lumber Company, Missouri Tie & Timber Company, and others, who upon taking proof satisfied the Attorney General that they were not and had not been members of the association complained of, and were dismissed hence, then the dismissal by the state as to these respondents relieves us from further discussion of this point, since nothing is clearer than that respondents' case is not, has not been, and cannot be prejudiced by the joinder for a time with them, of other respondents, as to whom, no guilt being found by counsel for the state, the case has been dismissed. Besides, our statute, by which now alone demurrers are weighed, requires that the demurrable defect of a defendant's not being a necessary party to the determination of the action "shall appear upon the face" of the petition (section 1800, R. S. 1909), as the latter defect did not in the instant case.

[5, 6] Coming to the question of whether, regardless of the contention last above disposed of, the petition states such facts as to constitute a cause of action against respondents, we are met with a more serious difficulty. We have a statute which provides that, in any action brought to enforce the anti-trust laws, it shall not be necessary to plead "the manner in which, or when or where" such conspiracy was made or effected. Section 10310, R. S. 1909; Laws of Mo. 1907, p. 377.

This form of action, that is to say, an information in the nature of quo warranto, has been held to be a civil action. That it is a civil action is now the well-settled law of this state. But to the aid of the rules of pleading in ordinary cases, the Legislature has sought to bring section 10310, supra. Regardless, however, of the provisions of this section, this court, in the case of State ex rel. v. Missouri Pacific Ry. Co. et al., 240 Mo. 35, 144 S. W. 1088, lately held as follows:

"Since the well-considered decision of this court in the case of State ex rel. v. Grimm, 220 Mo. 483 [119 S. W. 626], it has become the settled law of Missouri that, in proceedings in the nature of quo warranto to revoke the franchise of a corporation duly chartered or licensed to transact business in this state, the pleadings shall conform to our general Code of Civil Procedure.

"In the Grimm Case, supra, this court, in banc, speaking through Gantt, J., said: "The decisions of this court have recognized the right of a defendant or respondent to demur to the information in the nature of quo warranto,

It is urged by learned counsel for respondents that the above case is decisive of their contentions upon this question in the instant case. Respondents, however, lose sight of the distinction which ought to be drawn under the law between the Missouri Pacific Case, supra, and the one at bar. In the Missouri Pacific Case respondents were charged, in substance, with entering into an unlawful combination to do a lawful act; that is to say, an unlawful combination to fix a rate for carrying passengers not exceeding the statutory rate which they were permitted by law to charge. Since by statute they might charge a maximum rate of three cents per mile for carrying a passenger, and since, even pursuant to the alleged unlawful conspiracy into which it was charged they had entered, they were not seeking or conspiring to charge a rate beyond the maximum rate allowed by statute, they were endeavoring only to do a lawful act by an unlawful means. This distinction is clearly drawn in the Standard Oil Case, supra, 218 Mo. 366, 116 S. W. 1000, where it is said:

"And especially is this rule applicable in this state when such proceedings are civil in their nature, and which are not required to be which crimes must be charged. State ex inf. v. stated with the same technical strictness with Equitable Loan & Inv. Co., 142 Mo. 325 [41 S. W. 916]; State ex inf. v. Delmar Jockey Club, 200 Mo. 34 [92 S. W. 185, 98 S. W. 539]. But waiving that point for the present, and conceding that this proceeding is in the nature of a criminal prosecution, and that the pleader should be held to the same ing a criminal conspiracy, still we are of the strict rules of pleading as is required in chargopinion that the information states a good cause of action, for the reason that acts with which the respondents are charged are unlaw

ful.

"In such cases the rule is that: 'If the act with which the conspirators combine to perform is unlawful, it is unnecessary to set out complishing it. But if. the end in view is lawin the indictment the means employed in acful or indifferent, and the conspiracy only becomes criminal by reason of the unlawful means whereby it is to be accomplished, it becomes necessary to show the criminality by setting out such unlawful means.' 4 Ency. Pl. & Pr. pp. 713, 714, 716, 717; Coal Co. v. People, 214 Ill. 421 [73 N. E. 770].

[7] A similar attack was made by the respondents in the Standard Oil Case, supra, to the petition there. It was held by this court that the petition was good under the rule above enunciated. It was held, on the other hand, that the petition in the Missouri

The

stances; it states a cause of action by pleading legal conclusions; but it does not state it with the art or with that definiteness which respondents and this court, that time and labor may be saved and business may be expedited, were entitled to have it stated. A motion to make more definite and certain would have lain, and a timely demurrer for defects in this behalf ought to have been sustained, and most probably would have been sustained had such demurrer been filed in a timely way. But it was too late to urge the same before the commissioner. No demurrer to the petition has ever been filed.

[8] The only demurrer offered was a demurrer ore tenus, objecting in limine, because the petition, as respondents averred, stated no cause of action. Such a demurrer has never been regarded by this court as reaching the alleged defects in a petition to near

Pacific Case, supra, was bad. State ex inf. v. Missouri Pacific Ry. Co., 240 Mo. 35, 144 S. W. 1088. The Standard Oil Case was rightly decided; the Missouri Pacific Case was rightly decided; but the distinction which we make here was by inadvertence, not carefully drawn as between the two cases. Standard Oil Case, supra, was a conspiracy to do an unlawful act by an unlawful means, a conspiracy to do a thing against which the statute is leveled, and governing which the provisions of section 10310, supra, apply; while the Missouri Pacific Case was a conspiracy to do a lawful act by unlawful means. In other words, there were present in the Standard Oil Case both a conspiracy and an unlawful act; while in the Missouri Pacific Case there was present (or charged) a conspiracy only. The Missouri Pacific Railroad Company might (then) have lawfully charged three cents a mile for carrying a pas-ly the same extent and for even nearly the senger; but it could not (then) lawfully agree to stifle competition by contracting with other common carriers to make or fix an agreed rate, even though such agreed rate was less than the three cents allowed by law to be charged. Query: Has not competition been since "repealed"?) In the case at bar both a conspiracy and an unlawful act is charged. This case falls within the category, and is to be judged, it would seem, by the rules of pleading fixed by the Standard Oil Case, and not by those of the Missouri Pacific Case. Regardless of this, however, respondents by answering over waived this point, however good it might have been had they taken timely advantage of it. They all and each of them answered here in this court before the case was sent to our commissioner for the taking of testimony therein; a majority of them filed in this court amended answers before the case left here, and yet others and the remainder of them lodged amended answers with the commissioner, with the privilege of having such answers referred back to this court for permission to formally file the same. At least 17 of the respondents thus lodged with the commissioner such amended answers on June 10, 1912, long after they had interposed their said demur-years; in which many thousands of pages rers ore tenus.

That the petition in this case, viewed by the ordinary rules of pleading, was vague, uncertain, and indefinite, there can be no doubt. It is patent that it does not inform respondents definitely of the things which it is charged they have done; of the definite unlawful acts which it is charged they have committed. It does not say how or when or where such acts were committed. It gives to the state a roving commission to rake dead coals from time to eternity, from center to circumference; but yet after all and in all, viewed in the light of our anti-trust law, it directly charges a violation of that law in the language of law. It is only uncertain and indefinite as to time and place and circum

same purpose as the formal written demurrer provided for by our code of pleading. Such demurrer, that is, a demurrer ore tenus, in law has no more effect in reaching a bad petition than has a motion in arrest, which to an extent is covered fully by our statute of jeofails. Such demurrer will not reach mere uncertainty or indefiniteness of averment, or the defect of pleading legal conclusions. 31 Cyc. 761, and cases cited.

If a petition attached for insufficiency by an objection to the offering of any testimony thereon may be held by liberal construction and reasonable intendment to state a cause of action, we ought not to lend our encouragement to a method of attack which smacks of the ambuscade, and of a digging of pitfalls for the feet of the unwary. Heether v. Huntsville, 121 Mo. App. 495, 97 S. W. 239; Haseltine v. Smith, 154 Mo. 404, 55 S. W: 633; 31 Cyc. 761. A fortiori, we ought not to do so in an age when the question is up for serious debate among bench and bar as to whether the demurrer ought not to be abolished, for that it is an anachronism, and has outgrown its usefulness, and especially in a case which has been pending and dragging its slow length along for more than five

of testimony have been taken, and the trial of which has involved years of time, manifold labor on court, counsel, and commissioner, and thousands of dollars in expenses and costs.

We hold the petition good under the law here, having regard to the time and manner of the attack thereon. Reaching this view by another road, we need not pass upon section 10310 and say how far, if at all, we are helped by it.

[9] IV. It is urged by all of the respondents that the three-year statute of limitations applies in this case; that the state had no power or authority to go back in its investigations and dig up the alleged illegal acts of respondents occurring at a period prior to

July 30, 1905, which date was three years to
a day prior to the institution of this action.
In this view of respondents we concur. It is
urged by the learned Attorney General that
section 1890, R. S. 1909, of our statutes of
limitations does not apply. This section, in
so far as its provisions are in any wise ap-
plicable to the facts here, is as follows:
"Sec. 1890. Within three years *
sec-
ond, an action upon a statute for a penalty or
forfeiture, where the action is given to the
party aggrieved, or to such party and the

state."

for its benefit, in the same manner as to actions brought by private parties."

That this section makes applicable to the state every general limitation in our law, there can be no doubt in logic or reason. Section 1890, supra, the applicable part of which we quote above, is contained in and is a part of article 9 of our statute, and the section last read is also one of the sections of article 9. Section 1914, supra, came into our law in substantially its present form by 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 efS. 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 laches, however, that the right to investigate such matters is sometimes barred, without regard to the statute of limitations. In one case it was held that a period of twelve years barred this right. State ex rel. v. Town of Westport, 116 Mo. 582, 22 S. W. 888. In another case it was held that eight years barred this right. State ex rel v. Town of Mansfield, 99 Mo. App. 146, 72 S. W. 471. But these were cases where the state inquired in effect by what right the respondent cities exercised corporate privileges.

There is little, if any, similarity in fact between those proceedings and this at bar, et id omne genus. Scarcely a vestige remains but the name, and we have uselessly and

with violence retained this. We have reach

ed out into common law without an excuse in the necessity of the case and appropriated

merely a name for an action under penal statutes which themselves prescribed another and contemplated a different procedure. This action clearly involves the exaction of a penalty or forfeiture. Northern Securities Co. v. United States, 193 U. S. loc. cit. 358, 24 Sup. Ct. 436, 48 L. Ed. 679. The statute quoted limits the right of action to the party aggrieved to the period of three years. The state is here the party aggrieved. It is said,

and correctly said, that, in the absence of a specific statute against the right of the state to maintain this action, the law does not foreclose the state's right to institute the same, for the reason that no time runs against the state. That this is the general law in other jurisdictions and the law everywhere, in the absence of a specific statute, we concede and do not doubt. Eel River Ry

Co. v. State, 155 Ind. 433, 57 N. E. 388;

Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430; State v. Fleming, 19 Mo. 607; Bagley v. Wallace, 16 Serg. & R. (Pa.) 245; Lawless v. Wright, 39 Tex. Civ. App. 26, 86 S. W. 1039. But we have here in this state a specific statute, which is as follows:

"Sec. 1914. The limitations prescribed in articles 6 and 9 of this chapter shall apply to actions brought in the name of this state, or

fect August 1, 1866), it was held in this state that section 1914, supra, applied to the state in so far as to bar the state from the recovery of parts of the sixteenth section. Mississippi Co. v. Vowels, 101 Mo. 225, 14 S. W. 282. In fact there seems to have been no change or shadow of turning in the holdings upon this point that this section does bar the state, regardless of the maxim, "Nullum tempus occurrit regi," whenever the facts bring the state within the verbiage of this section.

It occurs to us that some of the legal questions now being constantly raised (some of which, namely, form of pleading, right to a fore in the case at bar) might be slightly iljury and statute of limitations, are to the luminated by a bit of analysis of our statute against pools, trusts, and conspiracies. Going back to the act of May 10, 1899 (Laws after appearing, we note that section 1 of this of Missouri 1899, p. 316), for reasons here

act is in pari materia with sections 1, 2, and 3 of the anti-trust act of the United States

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(Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), the so-called Sherman Act"; the fields of interstate and intrastate trade affected by them, respectively, being regarded. This similarity inheres, except that the Missouri law confines itself denounced, while the sections of the Sherman to a very specific definition of the offenses Act mentioned defines the offense in general terms, and prescribes penalties for the punishment of the infraction thereof. Sections 2, 3, and 4 of our act of 1899 are mutatis mutandis, similar in all substance with section 5 of our act of 1899 simply makes the tions 4, 5, and 7 of the Sherman Act. Secprovisions of the act cumulative in procedure and provisions with former acts, unless in acts complained of herein by the state trancase of irreconcilable conflict. Many of the spired while the act of 1899 was in force.

(Laws of Mo. 1907, p. 377), which was in effect when the case at bar was brought, the first five sections thereof (now sections 10298, 10299, 10300, 10301, and 10302) are likewise, regard being had to different conditions and

In the Missouri act of March 19, 1907

jurisdiction, in pari materia with sections 1, 2, and 3 of the Sherman Act, in that these sections, respectively, define the offenses and prescribe criminal penalties therefor. Pursuing the comparison farther, we find the procedure in civil cases prescribed, respectively, in the two acts, as follows:

Section 10304, R. S. of Mo. 1909, the penalties of which are being invoked in the instant case, is clearly not a statute prescribing procedure, but a statute prescribing the punishment which may be inflicted upon a guilty domestic, or domiciled foreign corporation. Also section 10302, R. S. of Mo. 1909, prescribes the punishment which shall be inflicted upon a natural person found guilty of the felony therein denounced when Can anything be prosecuted criminally. prevent clearer than that the penalties of these two sections are not in the nature of things interchangeable? That a natural person cannot or association of individuals from entering be punished under section 10304, nor can a into any combinations, corporation be punished under section 10302? 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 ney General, to insti- eration, conspiracy or

Section 4, Sherman Section 10303, R. S. Mo. Act: "The several Cir- 1909: "The several circuit Courts of the Unit- cuit courts of this state ed States are hereby in- are hereby invested with vested with jurisdiction jurisdiction to to prevent and restrain and restrain any person violations of this act; or persons, corporation, and it shall be the duty partnership, of the several district attorneys of the United States, in their respective districts, under the

or

individual

tute proceedings in understanding declared might conspire with a corporation or many equity to 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 manuotherwise prohibited. and of the prosecuting When the parties com- attorneys to facturer of yellow pine, had conspired and 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, tiasts 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 would the state have proceeded against the before final decree, the be by way of petition, 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 be enjoined the identical offense, or would the state have be or otherwise prohibited. pursued the one and let the other go acquit? the When the parties complained 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 soon 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 restraining order or prohibition as shall be deemed just in the premises."

hibition as shall deemed just in premises."

Section 5 of the Sherman Act, which is as

follows:

"Whenever it shall appear to the court before which any proceeding under section four of this act may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof"

—was, until the amendment of our act by the said act of 1907, also in our statute in almost the precise words of the Sherman Act above quoted. See section 8980, R. S. 1899. For some reason, this section was omitted from the act of 1907; but whether it has or has not been repealed, we need not now discuss.

With so much similarity in substance between our statutes and the federal Sherman Act, our actions in this state have been uniformly by so-called informations in the nature of quo warranto brought in the Supreme

Court, and not in any circuit court, while the actions brought by the United States under the Sherman Act have been both by criminal prosecution (United States v. Patterson [D. C.] 205 Fed. 292) and by action in equity in the Circuit Courts (now by amendment of procedure, the District Courts) of the United States (United States v. Knight & Co., 156 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325; United States v. Freight Association, 166 U. S. 290, 17 Sup. Ct. 540, 41 L. Ed. 1007; United States v. Joint Traffic Ass'n, 171 U. S. 505, 19 Sup. Ct. 25, 43 L. Ed. 259; Hopkins v. United States, 171 U. S. 578, 19 Sup. Ct. 40, 43 L. Ed. 290; Anderson v. United States, 171 U. S. 604, 19 Sup. Ct. 50, 43 L. Ed. 300; Addyston Pipe, etc., Co. v. United States, 175

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