Aetna Insurance v. Commonwealth

106 Ky. 864 | Ky. Ct. App. | 1899

Lead Opinion

JUDGE DuRELLE

delivered the opinion of the court.

This appeal is from a judgment of conviction under an indictment charging appellants with “the offense of unlawfully conspiring, by persuasion, intimidation, and force, to counteract, avoid, stifle, and kill the effect of free competition among fire insurance companies and agents engaged in and offering to do a fire insurance business in the city of Frankfort, county of Franklin, and State of Kentucky, committed as follows, viz.: The said Aetna Insurance Company, a corporation organized under the law's of the State of Connecticut [and eighty-six others], in the said city of Frankfort, county of Franklin, and State aforesaid, on the 22d day of September, 1898, and within one year before the finding of this indictment, did then and there, each with the other, and with other persons, associations, firms, and corporations to this grand jury unknown, unlawfully conspire, confederate, combine, enter into, maintain, consummate, and continue an unlawful pool, trust, conspiracy, confederation, combination, compact, and agreement, intending and contriving thereby to persuade, intimidate, compel, and force all agents and companies then and there engaged in and offering to do a fire insurance business to enter into', maintain, consummate, and continue said unlawful pool, trust, conspiracy, combination, confederation, compact, and agreement, the objects, aim, and ends of which were then and there to counteract, avoid, stifle, and kill the effect of free competition among all insurance companies and agents then and there engaged in and offering to do a fire insurance business,' to fix and maintain the cost of fire insurance to the insuring public at a greater premium rate than would otherwise have to be paid, and thus unlawfully to exact, extort, and procure great sums of money from citizens of this Commonwealth, owning and insuring property in the city of Frankfort, county of Franklin, and State aforesaid, which said great sums of money said citizens would not have to pay but for the existence of said unlawful pool, trust, conspiracy, combination, confederation, compact and agreement, and which said unlawful pool, trust, conspiracy, combination, ^confederation, compact, and agreement so as aforesaid entered into, consummated, maintained, and continued by the parties aforesaid is of grievous prejudice and hurt to the common and public good and welfare, of evil example, and against the peace and dignity of the Commonwealth of Kentucky.”

To sustain this charge of conspiracy, the Commonwealth introduced the Constitution and by-laws, of the Kentucky and Tennessee Board of Fire Underwriters and the Frankfort Board of Underwriters, to show the objects of the associations named, together with evidence that appellants were engaged in fire insurance business at Frankfort through agents who were members of the Frankfort or local board. Not all of the appellants were members of the Kentucky and Tennessee board, but all appear to have done business in Frankfort through members of the board.

The Kentucky and Tennessee board -was an association of fire insurance companies doing business in the two States named; the object stated in its constitution being “to organize and maintain local boards, to establish and enforce uniform commissions, adequate rates, correct forms of policies, and to inculcate sound principles of underwriting.” Each company desiring membership was required to subscribe to the constitution and by-laws through its representatives, “thereby pledging itself to the objects and regulations of the association, and every member of this association shall require its agents to unite with local boards, and to co-operate actively therewith; but all rules and rates of the association must be enforced by members, whether adopted by the local boards or not.” The by-laws require the secretary, “under the direction of the executive committee, to promulgate rates and rules of the association.”

The Frankfort board, entitled “The Local Board of Fire Insurance Agents of Frankfort, Kentucky,” had for one of its objects, as declared by its constitution, the establishment “and maintenance of adequate and equitable rates.” Membership' was confined to agents of companies and officers of local companies, and no person was eligible to be a member who was in any way interested in insurance business with a person or company not a member, “unless they also are governed by all the rules and rates adopted by the board.” Every member was required “strictly and rigidly to adhere to the rules and rates adopted by the board, without deviation in letter or spirit.” By the by-laws, provision was made- for an executive and rating committee to survey and report risks. The surveys and rate books issued to members were the property of the board, and returnable upon its order. Misrepresentation or improper means of interference by agents subjected the party offending to charges. No agent was allowed to employ a solicitor or broker. Members were forbidden to attempt to create or foster prejudice against the. State association, the local board, or its members. There were provisions against dividing commissions, and writing risks outside the jurisdiction of the board at less than the established rate at the locality of the risk. Obedience to these regulations was to be enforced according to a schedule of penalties fixed in the by-laws, and members were to be punished for violation of rules or rates by suspension from membership, after hearing, upon ,a two-thirds vote, followed by a request to the companies of such agent that his commission be cancelled.

Testimony was introduced tending to show that a considerable increase1 had taken place in the rate of insurance in Frankfort and vicinity after the establishment of these boards. It is not necessary here to go further into the testimony.

A number of questions are presented upon this appeal, and have been most elaborately argued by counsel.

Among other grounds for reversal presented, it is urged that under the ruling in Com. v. Ward, 92 Ky., 158. [17 S. W., 283], the indictment did' not sufficiently set forth the facts stating the offense attempted to be charged; that the evidence was insufficient to sustain the charge; that this was especially true as to the so-called non-board companies, which were not members of either board, and against whom the only testimony connecting them with the alleged conspiracy is the fact that they employed agents in Frankfort who were members of the local board, thereby adopting the rates promulgated by that board; that the service of summons upon the Insurance Commissioner was not sufficient to bring the defendants before the court to answer an indictment; and that the instructions did not present the law to the jury.

But the underlying question, which, if answered in the negative, renders the consideration of these questions unnecessary for the . disposition of this case, is whether, either by the common law or under the statute, there is in this Commonwealth such an offense as that attempted to be described in the indictment. This question we shall consider first.

It was conceded by counsel representing the Commonwealth, both in oral argument and brief, that this proceeding was not instituted under the statute, but under the common law; and a careful examination of the statute has convinced us that it does not apply to a case like the one at bar. It provides (Kentucky Statutes, section 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, firm, 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 Icind, or shall enter into, become a. member of, or party to, or*in any way interested in any pool, agreement, contract, understanding, combination or 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.”

The language used would indicate tliat' the statute was intended to prevent pools and trusts forming for the purpose of fixing the price of merchandise and manufactured articles. Without giving undue weight to the argument that the punctuation shows the word “property” to be qualified by the adjective “manufactured,” it seems certain that the ejusdem generis rule of construction does apply, and that property referred to in the section was property of the same general class or nature as that described previously by the words “merchandise and manufactured articles.” And while it may be admitted that a contract, either for labor, or for indemnity against contingent loss, like an insurance contract, when executed, becomes property, because it is then a chose in action, the right to enter into such contracts, which belongs to all persons capable of contracting, — -as well natural persons as artificial ones authorized by their organic law to make such contracts, — -would hardly be considered to be included by the word “property,” unless that word were used in a much broader sense than it is customarily used by lawyers or in statutes. We conclude, therefore, that the word “property,” as used in the statute, does not include the right to enter into a contract of insurance, nor to fix the terms upon which such a contract will be made.

This brings us to consider whether, by the common law, as adopted into the jurisprudence of Kentucky, the acts whereof appellants have Reen charged constitute an indictable offense. And we should inquire further whether the English common law, at the time of its importation into our system, contained a principle which, by natural growth and expansion to meet the needs of social progress in a civilized State, has so enlarged its original scope as to include those acts in the catalogue of public offenses.

On behalf of the Commonwealth it is contended with great ability and fervor that criminal conspiracies —that is, conspiracies that were indictable at common law — included three classes: First, conspiracies to do an unlawful or indictable thing; second, conspiracies to accomplish a lawful purpose by means which were themselves unlawful or indictable; and, third, conspiracies to do a wrong affecting the general public, or an individual thereof, though' neither the acts done to accomplish the end, nor the end itself, would be in themselves indictable, * 9 i but for the conspiracy- Perhaps as clear and compact a - A statement of the Commonwealth’s contention as can be given is to be found in an extract from the article by Mr. Robert Desty on Criminal Conspiracies, in the American and English Encyclopedia of Law:

“A criminal conspiracy is (1) a corrupt combination (2) of two or more persons, (3) by concerted action to commit (4) a criminal or an unlawful act; (a) or an act not in itself criminal or unlawful, by criminal or unlawful means; (b) or an act which would tend to prejudice the public in general, to subvert justice, disturb the peace, injure public trade, affect public health, or violate public policy; (5) or any act, however innocent, by means neither criminal nor unlawful, where the tendency of the object sought would be to wrongfully coerce or or oppress either the public or an individual. . . . It is the corrupt agreeing together of two or more persons to do, by concerted action, something unlawful, either as a means or an end, that' constitutes a criminal conspiracy. The unlawful thing must either be such as would be indictable if performed by one alone, or of a nature particularly adapted to injure the public or some individual by reason of the combination.

It is not necessary, in order to constitute a conspiracy, that the acts agreed to be done should be acts which, if done, would be criminal. It is enough that they are wrongful; that is, amount to a, civil wrong. . . .

“Every conspiracy to do an unlawful act, or to do ' a lawful act for an illegal, fraudulent, malicious, or corrupt purpose, or for a purpose, which has a tendency to prejudice the public in general, is an indictable offense, regardless of the means whereby it is to be accomplished.”

2 Bishop on Criminal Law, section 172, is to substantially the same effect: “Conspiracy is the corrupt agreeing together of two or more persons to do by concerted action something unlawful, either as a means or as an end. The unlawful thing must be such as would be indictable performed by one alone, or, not being such, be of a nature particularly adapted to injure the public or some individual by reason of the combination.”

Relying upon these text writers, and upon the expressions of courts in a number of adjudged cases, the Commonwealth urges that fire insurance, in the progress of civilization, has grown to be an every day necessity; that a combination to .prevent free competition among those engaged in the business is against public policy; that, at common law, all combinations to raise the cost of necessaries were indictable, and therefore this combination is indictable here.

^ Considerable argument on the other side is devoted to the attempt to show that the combination here complained of is not only not obnoxious as against public policy, but a positive benefit to the public, since by the maintenance of adequate rates it secures the companies bound by it against doing business in a manner which might render them insolvent, and thereby cause loss to the policyholders. This argument, which is plausible, if not convincing, need not be here considered.

In this State the law seems to be well-settled that agreements in restraint of trade or commerce are so far against public policy as to be illegal, in the sense of being void and not enforceable. Anderson v. Jett, 89 Ky., 375, [12 S. W., 670].

In Huston v. Reutlinger, 91 Ky., 333, [15 S. W., 867], it was held that an association of underwriters almost exactly similar to the ones now in question, organized “for the purpose of securing uniformity in the rates of premiums, harmony in1 the conditions of insurance,” etc., was void, in so far as it undertook to regulate the employment of solicitors, the time of employment, and the compensation to be paid. And while there are decisions on the subject holding that the business of insurance, as carried on in one State by a company incorporated in another, was not commerce between the States (Paul v. Virginia, 75 U. S., 8 Wall., 168; State v. Phipps, 50 Kan., 609, [34 Am. St. R., 152, 18 L. R. A., 657, 31 Pac., 1097]), and in which it has been held that a dealer in foreign exchange was not engaged in commerce, but merely in supplying an instrument of commerce (Nathan v. Louisiana, 49 U. S., 8 How., 73), this court seems to have had no difficulty in holding that a combination in restraint of the exercise of the right to contract for labor was against public policy, and an agreement to be bound by the rules of such combination was void.

YYe shall assume, therefore, that under the cases of Anderson v. Jett and Huston v. Reutlinger, supra, and Sayre v. Louisville Union Benevolent Association, 1 Duv., 143, [85 Am. Dec., 613], the agreement whereby appellants and their agents became members of the association mentioned was against public policy and void, in so far as it restrained or prevented free competition in the fire insurance business, and shall proceed to consider whether such a combination was an indictable offense by the common law as we obtained it, or included within the spirit of the' common-law doctrine as to criminal conspiracies.

In Lathrop v. Commercial Bank, 8 Dana, 121, in an opinion by Chief Justice Robertson, this court, construing the question of how far the common law of England “was adopted by Kentucky, said that only such principles of the common law as had been adjudicated before the fourth year of James I. had been adopted in Kentucky. The history of the adoption is given as follows:

“By an ordinance of 1776, Virginia adopted ‘the common law of England, and all statutes or acts of Parliament made in aid of the common law prior to the fourth year of James I., and which [were] of a general nature and not local to that kingdom.’

“And the eighth section of the sixth article of the Constitution of Kentucky adopted, with certain qualifications, all laws which on the 1st of June, 1792, were in force in the State of Virginia.

“Unless the British mortmain acts were in force in Virginia on the 1st of June, 1792, they have never been in operation in Kentucky. Virginia had never, prior to June, 1792, specially enacted any mortmain statute; and, therefore, if the mortmain acts of England prior to the 4th of January were all ‘local to that kingdom,’ no part of them was ever in force in either Virginia nr Kentucky.”

In Ray v. Sweeney, 14 Bush, 2, [29 Am. R., 388], in an opinion by Judge Cofer, the court said:

“By an act of the Virginia convention of 1776, it was ‘declared that the common law of England, all statutes or acts of Parliament made in aid of the common ■ law prior to the fourth year of Ki/ng James I., and which are of general nature, and not local to . that. kingdom •. . . shall be the rule of decision, and shall be considered in full force, until the same shall be altered by the legislative power of this colony.” (Morehead & Brown, Kentucky Statutes, 612.)

The present Constitution provides, and previous Constitutions, in substance, provided, that “all laws which on the first day of June, 1792, were in force in the State of Virginia, and which are of a general nature, and not local to that State, and not repugnant to this Constitution, nor to the laws which have been enacted by the.General Assembly of the Commonwealth, shall be in force in this State until they shall be altered or repealed by the General Assembly.”

“But only such principles and rules as constituted a part of the common law prior to the fourth year of the reign of James I. are, or ever were, in force in this State. This is clearly implied in the act of 1776. To declare that the common law and statutes enacted prior to that time should be in force was equivalent to declaring that no rule of the common law not then recognized and in force in England should be recognized and enforced here.

“James I. ascended the throne of England in 1603 (March 24th), and the fourth year of his reign commenced March 24, 1607; and when it is sought to enforce in this State any rule of English common law, as such, independently of its soundness in principle, it ought to appear that it was established and recognized as the law of England prior to the latter date.”

therefore, was the common law as to criminal conspiracies’in the year 1607?

In Mr. Wright’s admirable little book upon the Law of Criminal Conspiracies (section 1), it is said:

“There appears to be no evidence that during the first of these periods [A. D. 1200 to 1600] any other crime , or conspiracy or combination was known to the common law than that which was authoritatively and ‘finally’ defined in A. D. 1305 by the ordinance of conspirators (33 Edw. I.), as consisting in confederacy or alliance for the false and malicious promotion of indictments and pleas, or for embracery or maintenance of various kinds. During the reigns from that of Edward III. to the end of that of Elizabeth, various statutes were directed against combinations for treasonable purposes or for breaches of the peace, against combinations by merchants to disturb the markets or prices, and against combinations by masons and carpenters, by victualers to raise prices, and by laborers to raise wages or alter hours; but no mention, has been found in any of the writers, reports, or abridgements of the period before the seventeenth century of any kind of conspiracy, confederation, or combination, as being criminal at common law, except the crime of conspiracy as defined by the ordinance of 1305. The process by which this specific, offense has been expanded into the comprehensive title of conspiracy or combination in the modern criminal law is now to be traced.”

The author then proceeds to trace the expansion of the criminal law of England in this behalf until it “grew into a rule that a combination to commit or procure the commission of any crime was criminal, and. might be prosecuted as a conspiracy, although the crime might have nothing to do with the crime of conspiracy, properly so-called.” He ascribes the principal share in the earlier stages of this development to the Court of Star Chamber.

Speaking of this book, Sir James Fitzjames Stephens, eminent alike as judge and law writer, says in the thirtieth chapter of his magnificent History of the Criminal Law of England:

“Mr. R. S. Wright, in a work of remarkable learning and ability, collected and commented, with a special view to this particular subject, upon every case ever decided upon the subject of conspiracy. The matter has also been fully discussed in many other works. The result is that the following statement as to the result of the authorities upon the subject may be depended upon:

“(1) No case has ever been cited in which any person was, for having combined with others for the raising of wages, convicted of a conspiracy in restraint of trade at common law before the year 1825. There is, indeed, one case (that of the journeymen tailors of Cambridge) which may perhaps be an authority the other way, but this appears doubtful.

“(2) There are some dicta to the effect that such combinations would be unlawful. The most important of these is the dictum of Grose, J., in Rex v. Mawbey [6 Term R., 636]: ‘In many cases an agreement to do a certain thing has been considered as the subject of an indictment for a conspiracy, though the same act, if done separately by each individual without any agreement among themselves, would not have been illegal, — as, in the case of journeymen conspiring to raise their wages, each may insist on raising his wages if he can, but, if several meet for the same purpose, it is illegal, and the parties may be indicted for a conspiracy.’ This dictum is an illustration not necessary to the decision of Rex v. Mawbey, and founded, as it seems to me, upon the case of the Cambridge tailors.

“(3) ‘ Some traces may be found in the ancient •books of a doctrine that it may be criminal, independently of combination,’ for one man to oblige another, by bond or otherwise, to abstain from the exercise of his proper craft or employment.’ These traces, however, are very faint, though it is clear enough that the attempt to create monopolies by royal grants, or by the by-laws made by bodies corporate or the like, or to restrain people by contract from exercising their trade, were always held to be illegal, except under certain limitations which do not affect this matter, in such a sense as to be void.”

The result of the examination of the English cases is thus summarized in Stephen’s remarkable book:

“Such, for the present, is' the final result of the long history which I have been relating. It is one of the most characteristic and interesting passages in the whole history of the criminal law.

“First, there is no law at all, either written or unwritten. Then a long series of statutes aim at regulating the wages of labour, and end in general provisions preventing and punishing, as far as possible, all combinations to raise wages. During the latter part of this period an opinion grows up that to combine for the purpose of raising wages is an indictable conspiracy at common law. In 1825 the statute law is put upon an entirely new basis, and all the old statutes are repealed, but in such a way as to countenance the doctrine about conspiracies in restraint of trade at common law. From 1825 to 1871 a series of cases are decided which give form to the doctrine of conspiracy in restraint of trade at common law, and carry it so far as to say that any agreement between two people to compel any one to do anything he does not like is an indictable conspiracy, independently of statute.”

In the volumes of Wright and Stephen, all the English cases cited on behalf of the Commonwealth are considered and discussed, and it is very conclusively shown that prior to 1607 there was no such thing at the common law as criminal conspiracy, except the confederacy for the false and malicious promotion of indictments and pleas, or for embracery or maintenance of various kinds, and that whatever may have been the Mota of the judges who decided subsequent cases, or the deductions drawn therefrom by some of the text writers, the cases themselves, for more than 200 years thereafter, do not support the contention made on behalf of the Commonwealth.

There were a large number of statutes against forestalling, ‘engrossing, regrating, and badgering, and a very large number against combinations of laborers and artisans to raise their wages. Some of the latter class were not formally repealed until the year 1875. Of this system of statutes Stephen says:

“I should not myself describe it as a system specially adapted and designed to protect freedom of trade. The only freedom for which it seems to me to have been specially solicitous is the freedom of the employers from coercion by their men.”

The English cases cited on behalf of the Commonwealth are all discussed in the works referred to, and shown not to sustain appellee’s contention.

In the case of Mogul Steamship Co. (Steamship Co. v. McGregor, 21 Q. B. Div., 549,) there was a confederation of steamship companies, united to drive their rivals out of the carrying trade between England and China. The question for decision was whether the federation constituted a conspiracy at common law, as being in general restraint of trade, and of particular injury to certain individuals and to the general public. The opinion in the Queen’s Bench division was delivered by Lord Coleridge. Subsequently, in the appeal division of the Queen’s Bench, reported in 23 Q. B. Div., 616, the opinion was delivered by Bowen, Lord Justice. It was subsequently decided in the House of Lords. The opinions of the judges on the first hearings, and those of the various law lords upon the final appeal, present a very complete review of all the English cases. Not to occupy too much time in their consideration, it may be remarked that the language of Crompton, J., in Hilton v. Eckersley, 6 Ellis and Blackburn, 47, relied on for appellee, was disapproved, Lord Halsbury saying in his opinion:

“I am unable to assent to that dictum. It is opposed to the whole current of authority. It was dissented from by Lord Campbell and Chief Justice Erie, and found no support when the case in which it was said came to the Exchequer Chamber, and it seems to me contrary to principle.”

In the opinion of Lord Bramwell in the House of Lords, the doctrine was thus stated:

“I think, upon the authority of Hilton v. Eckersley and other cases, we should hold that the agreement was illegal; that is, not enforceable by law. I will assume then, that it was, though I am not quite sure. But that is not enough for the plaintiffs. To maintain their action on this ground, they must make out that it was an offense, a crime, a misdemeanor. I am clearly of the opinion it wra.s not. Save the opinion of Crompton, J., (entitled to the greatest respect but not assented to by Lord Campbell or the exchequer chamber), there is no authority for it in' the English law.” We think it unnecessary to go further in an examination of the English cases upon this subject. The opinions in the Mogul Steamship Case in themselves form a treatise upon the subject, and a very complete discussion of practically all of the English cases upon it.

/It is evident from this examination that at the time the English common law, and the English statutes of a general nature, became a part of our system, the acts charged as an offense in this case were not indictable.

Nor do we think that any such principle has been adopted generally by the States of this Union as would justify us in holding, in the absence of all. precedent to that effect in this State, that the acts charged are criminal.

We do not consider it necessary to go into an extended review of the American cases upon this subject, but we shall refer to a few of them.

In Hutchins v. Hutchins, 7 Hill, 107, Chief Justice Nelson, in an elaborate opinion, in which the English cases are reviewed at length, said:

We think, therefore, that associations may be entered into, the object of which is to adopt measures that may have a tendency to impoverish another (that is, to diminish his gains and profits), and yet, so far from being criminal, the object may be highly meritorious and public-spirited. The legality of such an association will therefore depend upon the means to be used for its accomplishment. If it is to be carried into effect by fair or honorable and lawful means, it is, to say the least, innocent; if by falsehood or force, it may be stamped with the character of conspiracy.”

To the same effect, see Carew v. Rutherford, 106 Mass., 14.

In a carefully considered opinion in the case of United States v. Addyston Pipe & Steel Co., 29 C. C. A., 141, [85 Fed., 278], — a case arising under the Federal Statute,— Judge Taft, in discussing the statute, said:

“Contracts that were in unreasonable restraint of trade .at common law were not unlawful, in the sense of being criminal, or giving rise to a civil action for damages in favor of one prejudicially affected thereby, but were simply void, and were not enforced by the- courts. Mogul Steamship Co. v. McGregor [1892] App. Cas., 25; Hornby v. Close, L. R., 2 Q. B., 153; Lord Campbell, C. J., in Hilton v. Eckersley, 6 El. & Bl., 47, 66; Hannon, J., in Farrer v. Close, L. R., 4 Q. B., 602, 612. The effect of the act of 1890 is to render such contracts unlawful, in an affirmative or positive sense, and punishable as a misdemeanor, and to create a right of civil action for damages in favor of those injured thereby, and a civil remedy by- injunction in favor of both private persons and public against the execution of such contracts and the maintenance of such trade restraints.”

And see Orr v. Home Mutual Insurance Co., 12 La. Ann., 255, [68 Am. Dec., 770]; Macauley v. Tierney, 19 R. I., 255, [61 Am. St. R., 770, 33 Atl., 1]; Longshore Printing Co. v. Howell, 26 Or., 527, [28 L. R. A., 424, 38 Pac., 547].

In the view we have reached as to this case, it is immaterial to discuss the cases which have arisen under more or less stringent statutes in a number of the States, of which Queen Ins. Co. v. Texas, 86 Tex., 250, [22 L. R. A., 490, 24 S. W., 397], upon the one side, and State v. Phipps, 50 Kan., 609, [34 Am. St. R., 152, 18 L. R. A., 657, 31 Pac., 1097], upon the other, are fair examples.

There are some cases, it is true, where it seems to have been held that a combination to injure another in his business or reputation constituted an offense or afforded a cause of action. In these the element of malice seems to have been relied on. Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed., 738; Casey v. Typographical Union 45 Fed., 135.

We must not be mistaken as intimating that contracts ■in restraint ef trade, or which prevent a contracting party from accepting employment from or giving it to whomsoever he may desire, are not illegal, in the sense of being void as against public policy. That such contracts are unenforceable is settled law in this State, and in most of the States of the Union. Indeed, the bulk of quotations from adjudged cases given in the very ingenious brief of counsel who represented the Commonwealth upon the trial are from cases where this was the question for decision. This is notably the case in his quotations from Anderson v. Jett and Huston v. Reutlinger, decided by this court. It is true that in Com. v. Ward, 93 Ky., 158, [17 S. W., 283], the court — misled, doubtless, by similar loose expressions in the text writers — used this language:

“A criminal conspiracy is a corrupt combination of two or more persons by concerted action to do an unlawful act, or an act not unlawful by unlawful means, or an act which would tend to prejudice the general public.”

But the latter clause of the sentence quoted was not at all necessary to the decision of the case then before the court, and must be considered as dictum.

/ We are not able, from a consideration of the cases decided in this State, to reach the conclusion that the doctrine as to criminal conspiracies to be deduced from the common law and statutes recognized in England prior to 4 James' I. has exhibited any such growth in this State as to include any offenses not then cognizable. On the contrary, the tendency in this State in one respect, at least, has been in the other direction.

The statutes of Edw. VI., adopted in 1552, were, at the time we got ‘ our common law, in full force against forestalled . and regraders. But, notwithstanding the English law had been adopted, by which it was unlawful to buy goods on their way to market; to contract to buy them before they came to market; to make any motion, by word, letter, message, or otherwise, to any person for the enhancing of the price or dearer selling of any goods; to buy up dead victuals of any kind in one market in order to sell them at a higher price later at the same place, or within four miles,— it was found necessary in Virginia to adopt statutes against forestalling and ingrossing food, in order to obtain provisions for the Revolutionary army.

Even more marked1 has been the progress, or, rather, retrogression, in relation to labor unions. At the time we adopted the English law, the statutes passed in the time of the sixth Edward were in full force, which forbade all conspiracies and covenants of artificers, workmen, or laborers not to make or do their work but at a certain price or rate, under the penalty, on a third conviction, of the pillory and the loss of an ear, and to be taken as a man infamous. There were also in force at that time, unless superseded by the elaborate act of fifth Elizabeth, the statute of 3 Hen. VI., providing that, “whereas by the yearly congregations and confederacies made by the masons in their general chapters and assemblies the good course and effect of the statutes of laborers be openly violated and broken/'’ the chapters should not be holden, those that caused them to be assembled and holden should be “judged by felons, and punished by imprisonment, fine and ransom.” The statute of Elizabeth referred to fixed the hours of work; required all persons able to work, and not possessed of independent means or other employment, to labor on demand; gave power to the justices to fix the rate of wages; and forbade any one to set up or exercise any craft, mystery, or occupation unless he had served an apprenticeship of seven years.

But, so far as we are informed, the right of workingmen to combine for an increase or maintenance of their wages by lawful means has never been held unlawful in this Commonwealth. The statutes of Henry, Edward, and Elizabeth upon that subject, so far as the Kentucky authorities show, have always been as dead as they were in England after the act of 1875."*.

Says Mr. Bishop (2 Criminal Law, section 233):

“Whatever the language of some of the old cases, no lawyer of the present day would hold it indictable for men simply to associate to promote their own interests, or especially to raise their wages. If the mean's adopted were mutual improvement of their mental or physical powers, mutual instruction in their methods of doing their work, mutual inquiring and imparting information as to the wages paid in other localities, or any thing else of a like helpful nature, severally enabling the members to obtain higher wages, nothing could be more commendable, and nothing further from the inhibition of the law; or, if employers should combine simply to reduce wages, not proposing any unlawful means, perhaps we might not so much commend them, yet still they would stand- under no disfavor from the law,- — the result of which is that a conspiracy to enhance or reduce wages is not indictable per se, while yet it may be so, by reason of proposed unlawful means.”

And this has been the doctrine recognized in this State.

. In Schulten v. Bavarian Brewing Co., 96 Ky., 224, [28 S. W., 504], this court said that it was “not unlawful for séveral persons in trade to confederate together to protect themselves by lawful acts from dishonest debtors.”

In Sayre v. Louisville Union Benevolent Association, 1 Duvall, 145, referring to a New York case, the court said:

“It -seems to have been held [in New York] that combinations of workmen to- raise their wages are necessarily injurious to trade or commerce and indictable as misdemeanors. ...

“It seems to be doubtful whether either of these positions is correct. It is entirely consistent with the interests of the public that labor shall be fairly rewarded. If the employer of a number of workmen should refuse to pay them fair wages, why may they not, if bound by no contract, combine for the purpose of obtaining reasonable prices for their labor? We do not perceive that the public would be injured by it, nor any principle upon which it can be condemned as illegal.”

See, also, Brewster v. Miller’s Sons, 19 Ky. L. R., 593, [41 S. W., 301], citing Bowen Manufacturing Co. v. Hollis, 54 Minn., 223, [40 Am. St. R., 319, 55 N. W., 1119].

And in Hetterman v. Powers, 19 Ky. L. R., 1087, [43 S. W., 180], in an opinion by Judge Hazelrigg, this court distinctly recognized the doctrine that a laborers' union, foriiied for the purpose of maintaining wages, might be protected in the use of a label indicating- that manufactured goods had been made by members of the union.

*' YYe conclude that by the common law of Kentucky it is not an indictable offense to combine for the purpose of maintaining rates of insurance. •*' •

One other question should perhaps be decided, as necessary to determine what order shall be entered in the circuit court as to the foreign insurance companies when the case goes back. That is the sufficiency of the service of summons upon the Insurance Commissioner.. By the statute (Kentucky Statutes, section 631), foreign insurance companies are required to file with the Commissioner a resolution “consenting that service’ of process upon any agent of such. company in this State, or upon the Commissioner of Insurance of this State, In any action brought or pending in this State, shall be a valid service upon said company.”

Section 11 of the Criminal Code provides: “A public offense, of which the only punishment is a fine, may be prosecuted by a penal action in the name of the Commonwealth of Kentucky. . . . The proceedings in penal actions are regulated by the Code of Practice in civil actions.” Section 9 provides: “All public offenses may be prosecuted by indictment, except offenses of public officers,” etc. Chapter 3 of the Criminal Code, on the subject of “Process upon Indictments,” provides, in section 117: “The summons shall be issued and served in the same manner as a summons in civil actions.”

It is urged that as the consent goes no further than to make the service upon the Commissioner sufficient in an action, civil or penal, it can not be extended to an indictment, because tlie action is within the consent given by the company, and the indictment is not.

But we think these statutes, though they might have been better expressed for the purpose, were intended to apply to exactly this class of cases, and to make valid service upon the Commissioner of summons on a misdemeanor indictment, and give jurisdiction of such prosecutions to the Franklin Circuit Court.

/'For the reasons given, the judgment is reversed, with directions to sustain the* demurrer to the indictment.

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Dissenting Opinion

Guffy, J.,

dissents/ except from that part of the opin- . ,. . . ion as to service upon the commissioner.

The whole court considered this case.