Page images

Bishop, Crim. Proc. $S 631-642; Wharton, whether the measure be called a print or a Crim. Pl. & Pr. $$ 239-241; State v. Decker, package. The words are used synonymously 52 Kan. 193, 34 Pac. 780; State v. Burkett, as to the quantity designated thereby. One 51 Kan. 175, 32 Pac. 925; State v. Hayes, measure was established under two well59 Kan. 61, 51 Pac. 905; State v. Conley, recognized names. As in the sale of pota1 Kan. App. 124, 41 Pac. 980.

toes by measure, an abuse had arisen by The Kansas legislature did not intend the use of a measure of smaller content this act to apply to corporations.

than was indicated to the public by the Tynan v. Walker, 35 Cal. 634, 95 Am. name of the measure used. To correct this Dec. 152; Ezekiel v. Dixon, 3 Ga. 146; Atty. abuse the statute in question was enacted. Gen. v. Bank of Michigan, Harr. Ch. The objection is based upon the assumption (Mich.) 315; Storms v. Stevens, 104 Ind. that two different measures are designated 46, 3 N. E. 401; Woodbury v. Berry, 18 by the act. The objection therefore is not Ohio St. 456; Hadden v. The Collector tenable, (Hadden v. Barney) 5 Wall. 107, 18 L. ed. Several objections were urged which ap518; Dudley V. Reynolds, 1 Kan. 285; pear to be criticisms of the language of Tompkins v. First Nat. Bank, 18 N. Y. the complaint even where it follows the Supp. 234.

exact language of the statute in defining In order to show that the state is exer- the crime. These objections we will not cising its police power in a reasonable and discuss seriatim. Suffice it to say that the constitutional manner, the complaint should statute is not susceptible of some of the state the facts. It should state the weight constructions attempted to be placed upon of the package sold, and it would then be a it, and, while probably the crime is not question of law whether, assuming the defined therein as clearly as it might be, yet statements of facts to be true, the statute the definition seems to be intelligible, and has been violated.

the complaint follows closely the language Ex parte Dietrich, 149 Cal. 104, 5 L.R.A. thereof. It does not negative the proviso (N.S.) 873, 84 Pac, 770.

or exception in the last sentence of the Afr. Z. C. Millikin also for appellee. section, of which we will speak later.

The objection that the complaint is bad Smith, J., delivered the opinion of the for duplicity is completely answered in the court:

case of State v. Sherman, 81 Kan. 874, 135 A number of objections made to the com- Am. St. Rep. 403, 107 Pac. 33. The explaint are argued in the briefs together, posing for sale and selling, as charged, and are, in substance, that the complaint is appears to have been simultaneous and each not sufficiently definite and certain as to as a part of one act. the facts constituting the alleged offense Again, it is contended that even if the herein charged. It is especially urged that statute recites facts which constitute the the statute establishes a certain weight for offense, and if (as has been repeatedly held a print or package of butter, and that the by this court) the complaint is sufficient so complaint does not inform the accused far as it follows the language of the statute whether it was a print or a package which in describing the offense, still this comis alleged to have been sold short of such plaint is bad in that it does not negative weight. It is a matter of common knowl. the exception or provision contained in the edge that formerly butter was retailed in last sentence of § 15, which reads: “A prints of about 1 pound weight each; that slight variation from the stated weight, more recently, for cleanliness and attrac- measure or quantity for individual packtiveness, butter has been put up and sold in ages is permissible, provided this variation packages of about the same weight; and is as often above as below the weight, that at and before the passage of the act measure or quantity stated.” Laws 1909, both (print and package) were generally chap. 264, Gen. Stat. 1909, $ 9752. This is in understood as

of the same fact an independent sentence, although as amount in weight-1 pound. The legisla punctuated in the statute it is separated ture, in passing the act of which the quoted only by a semicolon from the preceding sections are a part, is presumed to have sentence. It forms no part of the definiused the terms in accordance with common tion of the offense charged, but is a proviso, usage. In fact, in the latter part of § 15 or, at most, an exception thereto. The prothe word “package” is used in lieu of “print vision simply excepts sales where the variaor package," and the word “packages” in tion in weight is slight, and is as frequently lieu of “prints or packages.” The act is above as below the weight expressly stated, entitled, “An Act Concerning Weights and or the weight implied in the absence of Measures and the Regulation Thereof." the required label. In such case it is not Laws 1909, chap. 264. Section 14 estab- necessary to negative the exception. See lishes the size of a measure of butter, State v. Thompson, 2 Kan. 432; Kansas



[ocr errors]


City v. Garnier, 57 Kan. 412, 46 Pac. 707; | its origin at a time when corporations were State v. Thurman, 65 Kan. 90, 68 Pac. few in number, and limited in their powers 1081; State v. Buis, 83 Kan. 273, 111 Pac. and in the purposes for which they were 189.

created. Experience has shown the necesThe more serious contentions in this case sity of essentially modifying it; and the

(1) That the statute in question is tendency of the more recent cases in courts not in terms made applicable to corpora of the highest authority has been to extend tions. (2) If intended to apply to corpo. the application of all legal remedies to rations, it is in violation of § 17, art. 2, of corporations, and assimilate them, as far the Constitution of Kansas for the reason as possible, in their legal duties and rethat it cannot have a uniform operation sponsibilities, to individuals. To a certain throughout the state; the penalty pre-extent, the rule contended for is founded scribed being a fine or imprisonment in jail, in good sense and sound principle. Coror both, in the discretion of the court. porations cannot be indicted for offenses (3) That the sections of the act in ques. which derive their criminality from evil tion are repugnant to the 14th Amendment intention, or which consist in a violation of to the Constitution of the United States in those social duties which appertain to men depriving persons of liberty and property and subjects. They cannot be guilty of without due process of law, etc.; the de- treason or felony; of perjury or offenses fendant being a resident of Kansas and of against the person. But, beyond this, there the United States.

is no good reason for their exemption from As to the first objection, it is practically the consequences of unlawful and wrongful conceded by the defendant that if the stat. acts committed by their agents in pursuute in question had expressly or by clear ance of authority derived from them. Such intendment been made applicable to corpo a rule would, in many cases, preclude all rations, and had provided for a fine only, it adequate remedy, and render reparation for would have been valid; also, that it de- an injury committed by a corporation imvolves upon this court to determine what possible; because it would leave the only was the intention of the legislature in means of redress to be sought against irre. enacting the law as to whether or not it sponsible servants, instead of against those was to apply to corporations. It was who truly committed the wrongful act by formerly held that a corporation could only commanding it to be done. There is no be indicted for a failure to perform some principle of law which would thus furnish duty, and not for malfeasance; but it is immunity to à corporation. If they comnow generally held that corporations may mit a trespass on private property, or be indicted for malfeasance or misfeasance, obstruct a way, to the special injury and and may be civilly held responsible for the damage of an individual, no one can doubt acts of their officers and agents. In some of their liability therefor. In like manner, the states this is as far as the law has pro- and for the same reason, if they do similar gressed. In some other states it is held acts to the inconvenience and annoyance of that a corporation may be held criminally the public, they are responsible in the form responsible for an act denounced by the and mode appropriate to the prosecution statute, which does not include, as a neces- and punishment for such offenses. sary ingredient, wrongful intent; it being If, therefore, the defendants have been in some cases remarked that a corporation, guilty of a nuisance, by obstructing unhaving no soul, cannot have a criminal in-lawfully a navigable stream, an indictment tent. As early as 1854 Justice Bigelow, in may well be maintained against them.” the opinion in the case of Com. v. New (pp. 345, 346.) Bedford Bridge, 2 Gray, 339, said: Since the decision in that case the law “The indictment in the present case is for las rapidly developed in favor of holding a nuisance. The defendants contend that corporations criminally responsible for the is cannot be maintained against them, on commission of acts denounced as criminal the ground that a corporation, although by statutes, especially where a specific inliable to indictment for nonfeasance, or an tent is not an (ssential ingredient of the omission to perform a legal duty or obliga-crime. This has been held in several Fedtion, is not amenable in this form of prose- eral decisions and by decisions in the courts cution for a misfeasance, or the di' of of last resort in several of the states. In any act unlawful in itself and injurious United States v. New York Herald Co. to the rights of others. There are dicta (C. C.) 159 Fed. 296, it is held: "A corin some of the early cases which sanction poration has capacity to commit the crime this broad doctrine, and it has been thence, of mailing obscene, nonmailable matter, copied into text writers, and adopted to prohibited by Rev. Stat. § 3893, as amended, its full extent in a few modern decisions. p. 2658.” (Syllabus.) A demurrer to the But, if it ever had any foundation, it has indictment in that case was overruled, al.


though the penalty prescribed by the statute ration, why it should not also include the was a fine or imprisonment at hard labor, or corporation if the same word were used to both. It is further held in that case: “Rev. designate the one guilty or supposed to be Stat. § 3893, as amended, describes certain guilty of the libel. The statute in question nonmailable matter, and provides that any ($ 15) by its language, "a person who, by person who shall knowingly deposit, or cause himself, or his servant or agent, or as the to be deposited, for mailing or delivery, servant or agent of another, uses,” etc., seems anything declared by the section to be non- almost to suggest that the word "person" mailable, shall for each offense be fined, on here was intended to include a corporation. conviction, or imprisoned at hard labor, or The statute was enacted to prevent a parboth, etc. Held, that such section was ticular abuse, and it is a matter of common applicable to a orporation organized for knowledge in the state that large corporathe purpose of publishing a newspaper, and tions as well as individuals were practisthat proof of the mailing by such corpora ing the abuse of selling butter by print and tion of its newspaper, containing obnoxious package containing less weight than is rematter, was sufficient to show that the cor- quired by the act, and, it may be said, of poration had knowledge thereof.” (Sylla- less weight than the public generally unbus.)

derstood such prints or packages to conIt is said in People v. Palermo Land & tain. That the individual who, after the Water Co. 4 Cal. App. 717, 89 Pac. 723: passage of the act, should expose for sale “There is no reasonable foundation in the or sell a print or package of less than the nature of things or such intrinsic differ- prescribed weight, should be guilty of a ence between corporations and natural per. crime, and that a corporation might consons of which I am aware that requires duct the practice with impunity, seems the application of a measure of jurisdic- revolting to all ideas of justice, and we tion over an offense committeed by a cor hold, in accordance with the general trend poration different from that to be invoked and development of the law, that the word wliere an individual is charged with the “person,” being the second word in Laws same or similar crime."

1909, chap. 264, § 15, as there used, inIt is said in Southern Exp. Co. v. State, cludes a corporation. 1 Ga. App. 700, 58 S. E. 67: “The respon- As to the second objection that the statute, sibility of corporations for violation of if applied to corporations, cannot have unipenal laws, though developed by gradual form operation in the state, the question evolution, is well settled and necessary. was involved in the New York Herald Case, A corporation be guilty of the supra, but seems not to have been considoffense of furnishing liquors to a minor, ered of sufficient importance to merit dis. if such liquors be delivered to a minor by cussion. In W. H. Small & Co. v. Com. 134 the agent of the corporation in the course Ky. 272, 120 S. W. 361, it is said: “That of its business, or if such agent knowingly an individual guilty of an offense may be permits such delivery by another.” (Syl- both fined and imprisoned, and a corporalabus.)

tion likewise guilty only fined, does not Among the states upholding the doctrine affect the validity of the statute. The apthat a corporation may be indicted for mis- parent discrimination grows out of condifeasance and for a violation of acts pro- tions that cannot be avoided, and the hibited by statute, cited in 12 Century corporation that is favored by the discrimDig. § 2138, are Illinois, Kentucky, New ination cannot complain.” It is true only Jersey, New York, Ohio, and Tennessee. the penalty of a fine can be applied to a Other states, notably Indiana and corporation; whether the additional penalty Maryland, hold to the ancient doctrines of imprisonment in the jail should ever be that a corporation cannot be indicted for applied to an individual is a matter that misfeasance. In several of the states cited rests in the discretion of the court. There there is a statutory provision that the word are many other instances where the same "person,” where used in the criminal stat- question will be raised; for instance, a ute, includes corporations. There is no corporation may be guilty of contempt of such provision in this state, and we do not court and can only be fined, while an infind any decision in this state which so dividual may be fined and imprisoned. holds, although in the case of State v. Wil- 1 Clark & M. Priv. Corp. § 257; Telegram liams, 74 Kan. 180, 85 Pac. 933, it was said Newspaper Co. v. Com. 172 Mass. 294, 44 that the word “person” used in § 314 of L.R.A. 159, 70 Am. St. Rep. 280, 52 N. E. crimes and punishments (Gen. Stat. 1909, 445. § 2814), referring to the person libeled, in- The third contention that SS 14 and 15 in cludes a corporation, The question may question are void because in violation of well be asked, if the word "person” used the 14th Amendment to the Constitution to designate one libeled, includes a corpo. of the United States, is likewise untenable.



[ocr errors]

They are upheld as police regulations, and ants from soliciting the custom of plain. such regulations of weights and measures tiff's customers as users of trading stamps, have stood upon the statute books of this from soliciting trading stamps from cusstate practically during the entire existence tomers of such customers, and from inof the state, and likewise in other states of ducing or attempting to induce any of its the Union.

customers to break its contracts with it. We conclude that the motion to quash the Affirmed. complaint should not have been sustained. The facts are stated in the opinion.

The judgment is therefore reversed, and Messrs. Charles Connor and Lothrop the case is remanded, with instructions to Withington, with Messrs. Whipple, Sears, overrule the motion and proceed in ac- & Ogden, for appellant: cordance with the views herein expressed. Contracts in restraint of trade are not

invalid and void unless unreasonable or prohibited by statute.

Anchor Electric Co. v. Hawkes, 171 Mass. MASSACHUSETTS SUPREME JUDI

101, 41 L.R.A. 189, 68 Am. St. Rep. 403, 50 CIAL COURT.

V. E. 509; Nordenfelt v. Maxim Nordenfelt MERCHANTS' LEGAL STAMP COM- Guns & Ammunition Co. (1894), A. C. 535, PANY, Appt.,

63 L. J. Ch. N. S. 908, 11 Reports, 1, 71 L. T.

N. S. 489, 6 Eng. Rul, Cas. 413; Diamond WILLIAM H. MURPHY et al.

Match Co. v. Roeber, 106 N. Y. 473, 60

Am. Rep. 464, 13 N. E. 419; Alger v. (220 Mass. 281, 107 N. E. 968.) Thacher, 19 Pick. 51, 31 Am. Dec. 119; Tay

lor v. Blanchard, 13 Allen, 370, 90 Am. Monopoly trading stamp contract. Contracts by which one issues trading 3 Am. Rep. 327; Bishop v. Palmer, 146

Dec. 203; Sampson v. Shaw, 101 Mass. 145, stamps to merchants, which, for the purpose of suppressing competition, prohibit them Mass. 469, 4 Am. St. Rep. 339, 16 N. E. from using the stamps of others, and which 299; Dean v. Emerson, 102 Mass. 480; enable him to control nearly 90 per cent Gamewell Fire Alarm Teleg. Co. v. Crane, of the trading stamp business in the local- | 160 Mass. 50, 22 L.R.A. 673, 39 Am. St. ity, are within the operation of a statute Rep. 458, 35 N. E. 98; Com. v. Strauss, declaring unlawful and void every agreement in violation of common law, if thereby 188 Mass. 229, 74 N. E. 308, 191 Mass. a monopoly in the production or sale of 545, 11 L.R.A. (N.S.) 968, 78 N. E. 136, 6 any article

or commodity tends to beAnn. Cas. 842, decided under Rev. Laws created.

1902, chap. 56, § 1; United Shoe Machinery (March 1, 1915.)

Co. v. LaChapelle, 212 Mass. 467, 99 N. E.

289, Ann. Cas. 1913D, 715. PPEAL by plaintiff from a decree of the Contracts, though in restraint of trade, A

Superior Court for Suffolk County, have been repeatedly upheld as legal. dismissing a bill filed to restrain defend- Anchor Electric Co. v. Hawkes, 171 Mass. Note. - Trading stamp contract a, it appeared that the defendant had obtained monopoly.

plaintiff's trading stamps under conditions

equivalent to a purchase from the subscribFor the constitutionality of statutes or ers for these stamps, and was giving them ordinances forbidding the use of trading to his own customers and advertising to do stamps, see notes to Ex parte Drexel, 2 so as an inducement to trade with him, L.R.A. (N.S.) 588; Denver v. Frueauft, 7 which action plaintiff sought to enjoin, the L.R.A. (N.S.) 1131; District of Columbia injunction being resisted by defendant on v. Kraft, 39 L.R.A. (N.S.) 957; and State ex the ground that plaintiff's practice of seek: rel. Hartigan v. Sperry & H. Co. 49 L.R.A. ing to enjoin, or even in some jurisdictions (N.S.) 1123.

to punish by prosecution, dealers who were In Merchants' Legal Stamp Co. v. Scott, using such trading stamps as an inducement

Mass. —, 107 N. E. 969, which was de- to their customers to transact business with cided at the same time as MERCHANTS' | them without having subscribed for the LEGAL STAMP Co. v. MURPHY, the court right to do so, and without having obtained basing its decision upon the MURPHY CASE, the stamps by payment therefor to the comholding that the nature of plaintiff's contract pany issuing them, was contrary to the prowas monopolistic in its tendency and there- visions of the laws forbidding monopoly. fore void, refused to grant relief against The court, in granting a temporary injuncdefendant, who was obtaining stamps in ex- tion, said that the intent and acts of perchange for goods from customers of plaintiff sons taking the stamps and seeking to rewho came into his store to trade, instead of deem them for a certain premium, and also buying them from the plaintiff.

the resultant benefits to that person, are In Sperry & H. Co. v. Fenster, 219 Fed. entirely different, and are based upon sub755 (a decision of a Federal district court), "stantially different, rights from those of a

[ocr errors]



101, 41 L.R.A. 189, 68 Am. St. Rep. 403, 50 Gilman v. Dwight, 13 Gray, 356, 74 Am. N. E. 509; Foss v. Roby, 195 Mass. 292, 10 Dec. 634; Dwight v. Hamilton, 113 · Mass. L.R.A. (N.S.) 1200, 81 N. E. 199, 11 Ann. 175; Gordon v. Knott, 199 Mass. 173, 19 Cas. 571; United Shoe Machinery Co. v. L.R.A.(N.S.) 762, 85 N. E. 184; Wm. RogKimball, 193 Mass. 351, 79 N. E. 790; ers Mfg. Co. v. Rogers, 58 Conn. 356, 7 Pierce v. Fuller, 8 Mass. 223, 5 Am. Dec. L.R.A. 779, 18 Am. St. Rep. 278, 20 Atl. 102; Perkins v. Lyman, 9 Mass. 521; Pierce | 467; Carnig v. Carr, 167 Mass. 544, 35 v. Woodward, 6 Pick. 206; Vickery v. L.R.A. 512, 57 Am. St. Rep. 488, 46 N. E. Welch, 19 Pick. 523; Angier v. Webber, 14 117; Diamond Match Co. v. Roeber, 106 Allen, 211, 92 Am. Dec. 748; Boutelle v. N. Y. 473, 60 Am. Rep. 464, 13 N. E. 419; Smith, 116 Mass. 111; Handforth v. Jack Herreshoff v. Boutineau, 17 R. I. 3, 8 L.R.A. son, 150 Mass. 149, 22 N. E. 634; Smith v. 469, 33 Am. St. Rep. 850, 19 Atl. 712; Brown, 164 Mass. 584, 42 N. E. 101; Mar. Mason v. Provident Clothing & Supply Co. shall Engine Co. v. New Marshall Engine [1913] A. C. 724, 82 L. J. K. B. N. S. 1153, Co. 203 Mass. 410, 89 V. E. 548; Norden- | 109 L. T. N. S. 449, 29 Times L. R. 727, felt v. Maxim Nordenfelt Guns & Ammuni. 57 Sol. Jo. 739, Ann. Cas. 1914A, 491; tion Co. (1894) A. C. 535, 63 L. J. Ch. Haynes v. Doman [1899] 2 Ch. 13, 68 L. J. V. S. 908, 11 Reports, 1, 71 L. T. N. S. 489, Ch. N. S. 419, 80 L. T. N. S. 569, 15 Times 6 Eng. Rul. Cas. 413; Underwood v. Bar- L. R. 354; Ehrmann Bartholomew ker [1899] 1 Ch. 300, 68 L. J. Ch. N. b. [1898] 1 Ch. 671, 67 L. J. Ch. N. S. 319, 78 201, 47 Week. Rep. 347, 80 L. T. N. S. 306, L. T. N. S. 646, 14 Times L. R. 364, 46 15 Times L. R. 177; Whitney v. Union R. Week. Rep. 509; Rousillon v. Rousillon, Co. 11 Gray, 359, 71 Am. Dec. 715; Parker L. R. 14 Ch. Div. 351, 49 L. J. Ch. N. S. v. Nightingale, 6 Allen, 341, 83 Am. Dec. 338, 42 L. T. N. S. 679, 28 Week. Rep. 632; Schwoerer v. Boylston Market Asso. 623, 44 J. P. 663; Com. v. Strauss, 191 99 Vass. 285; Rackemann v. Riverbank Mass. 545, 11 L.R.A.(N.S.) 968, 78 N. E. Improv. Co. 167 Mass. 1, 57 Am. St. Rep. 136, 6 Ann. Cas. 842; Butterick Pub. Co. 427, 44 N. E. 990; Evans v. Foss, 194 Mass. v. Fisher, 203 Mass. 122, 133 Am. St. Rep. 513, 9 L.R.A.(N.S.) 1039, 80 N. E. 587, 11 283, 89 N. E. 189; Beekman v. Marsters, Ann. Cas. 171; Brewer v. Marshall, 19 195 Mass. 205, 11 L.R.A.(N.S.) 201, 122 X. J. Eq. 537, 97 Am. Dec. 679, 4 Mor. Am. St. Rep. 232, 80 N. E. 817, 11 Ann. Min. Rep. 119; New York Bank Note Co. v. Cas. 332; Wiggin v. Consolidated AdjustHamilton Bank Note Engraving & Printing able Shoe Co. 161 Mass. 597, 37 N. E. 752; Co. 83 Hun, 593, 31 N. Y. Supp. 1060; New Garfield v. Peerless Motor Car Co. 189 York Bank Note Co. v. Kidder Press Mfg. Mass. 395, 75 N. E. 695; Manhattan Mfg. Co. 192 Mass. 391, 78 N. E. 463; Morse Co. v. New Jersey Stock Yard & Market Twist Drill & Mach, Co. v. Morse, 103 Mass. Co. 23 N. J. Eq. 161; Palmer v. Stebbins, 13, 4 Am. Rep. 513; Meyer v. Estes, 164 3 Pick. 188, and note, 15 Am. Dec. 204; Mass. 457, 32 L.R.A. 283, 41 N. E. 683; Butterick Pub. Co. v. Boynton, 191 Mass. Garst v. Harris, 177 Mass. 72, 58 N. E. 174, 175, 77 N. E. 705; Catt v. Tourle, L. R. party who is seeking to attract customers, forbid the use by its subscribers of any and to build up him own trade through the other kind of trading stamps; that that privilege of dealing, as it were, in trading might or might not be a restriction upon stamps, without payment for that privilege, competition or tend to effect a monopoly. and with no intention of getting the goods It will be observed that the question which for which the stamps are redeemable; that the court thus expressly refrained from the right to redeem the stamps is a prop- passing upon is the one involved and decided erty right transferable by possession, while in MERCHANTS' LEGAL STAMP Co. V. MURthe license to use them for advertising pur- PHY. poses is not transferable without compensa- In support of the distinction above made, tion to the person granting that right. Re- the opinion in the Fenster Case referred to ferring to the Clayton law, approved by the a decision by Judge Thomas in Sperry & President upon the 15th of October, 1914, H. Co. v. Benjamin, 221 Fed. 512, which is which provides in $ 3 against the making disposed of by a mere statement that an inof a contract or fixing of a price for mer- junction was demanded both by reason and chandise on condition that the lessee or pur- authority, and that the objection of multichaser shall not use or deal in the mer fariousness had been waived, without any chandise of a competitor, if the effect of discussion of the merits or even statement this contract would be to substantially of the facts upon which the preliminary inlessen competition or tend to create mo. junction was granted. nopoly,---the court observed that the statute Various other phases of the subject of forbids the converse of the acts complained monopolies are treated in notes referred to of in the present case: and that it had in the Index to L.R.A. Notes under the nothing to do with what might happen if title “Monopoly and Combinations." the trading stamp people were seeking to

R. L. S.

« PreviousContinue »