Harrell v. Cane Growers Co-Operative Ass'n

160 Ga. 30 | Ga. | 1925

Concurrence Opinion

Russell, C. J.,

concurring specially. I can not agree that the very important questions raised by the present record should be dismissed in the casual and summary manner, as it seems to me, in which they are disposed of in the syllabus. I concur in the conclusions reached in the first and second headnotes. I can not concur in the ruling stated in the third headnote, because it is perfectly plain to me that the assignment of error referred to in the third headnote refers to article 4, section 2, paragraph 4, of the constitution, and it is my opinion that the use of the words “section 1” instead of section 2 is a mere clerical or typographical error which should not be taken advantage of to avoid a decision upon the question whether the provisions of the co-operative marketing act create a monopoly or authorize contracts which are in restraint of trade. Furthermore, the record presents for adjudication several questions not mentioned in the decision of the majority of the court, upon which I feel it my duty to rule as far as I am able by the expression of my individual opinion. My opinion upon the questions involved in this case, stated seriatim, is as follows:

1. The necessities of a great public interest may authorize a reasonable classification of citizens, as between diverse interests or occupations. It is within the power of the legislature to consider and act upon existing or varying conditions as affecting the public welfare in conformity with those economical conditions; and existing economical conditions may of themselves justify or compel legislation classifying farmers as a class requiring, beneficial legislation. The classification of farmers as a producing class, whose labors are individualistic and not by the group, as in many other forms of labor, is a reasonable, just, and proper exercise of the power of classification.

2. The title of the co-operative marketing act is sufficiently broad to include the provisions of sections 3, 4, 5, and 23 of said act; and for that reason said sections are not void as in violation of art. 3, sec. 7, par. 8, of the constitution of Georgia.

3. Section 15 of the co-operative marketing act, supra, which authorizes the by-laws and marketing contract to fix liquidated damages and to require the members to pay all costs; premiums for bonds, expenses and fees, as well as providing for injunction and a decree for specific performance, is not unconstitutional and void as being in conflict with article 3, section 7, paragraph 8, of the constitution of Georgia, upon the ground that there is nothing in the title of said act covering said provisions. Nor is section 15 of said act violative of article 1, section 4, par. 1, of the constitution, which forbids the passage of a special law in any case for which provision has been made by an existing general law.

4. The co-operative marketing act of 1921 is not unconstitutional because it permits one who has contracted to deliver his products to be restrained from breaching and violating the contract to the irreparable injury of the opposite party. The General Assembly in providing the remedy of injunction as provided in the co-operative marketing act only exercised its constitutional powers. The power of providing forms for administering justice by specific remedies is inherent in the General Assembly, and legislative control over forms of remedies is unlimited as long as there is no deprivation of due process of law. The legislature had the power to provide injunction if in its discretion that form of remedy or mode of redress is better adapted to accomplish the object proposed than another form of judicial proceeding. By reason of the declared object and purposes of the association which the General Assembly authorized to be created, associations organized under the co-operative marketing act would be entitled in any event to specific performance in the enforcement of the contract.

5. It plainly appears from the terms of the co-operative marketing act of 1921, as well as from the mode of business to be carried on by the association authorized to be created by said act, and from the contract in evidence, that the Cane Growers CoOperative Association is not intended to create a monopoly, within the meaning of that word as used in art. 4, sec. 2, par. 4, of the constitution. So far as appears from the present record, it will be impossible for it to create0a monopoly (within the ordinary significance of that term) in the agricultural product with which it deals. Nor is the contract between the Cane Growers Co-Operative Association and its members invalid as in restraint of trade.

6. The contract upon which the plaintiff in the lower court based its action is in conformity with the terms of section 15 of the co-operative marketing act, which authorizes the making of a contract whereby the Cane Growers Co-Operative Association may make a sale of the agricultural products of its members, and provides that the purchase-price of the same shall be paid over to its members after deducting necessary selling, overhead and other costs. The mere fact that the association has not completed settlement with the member for the produce sold to it in the preceding year (where all produce has not been sold and the proceeds of sale collected by the co-operative association) is not such a breach of the contract by the association as will relieve the member from his duty to deliver to the association ■ the produce stipulated to be delivered by him for a subsequent year.

7. The plaintiff in error, being a member and officer of the association upon which the act of 1921 confers special benefits and privileges, is not in position to attack the act upon the ground of unconstitutionality.

In 1921 the General Assembly of this State passed a law, the title of which is as follows: “An act to promote, foster, and encourage the intelligent and orderly marketing of agricultural products through co-operation, and to eliminate speculation and waste; and to make the distribution of agricultural products as direct as can be efficiently done between producer and consumer; and to stabilize the marketing problems of agricultural products; and for other purposes.” This act provides that this law shall be referred to as the “co-operative marketing act.” This law is a mere enabling act. The General Assembly, by the express terms of this enabling act under the provisions of which the Cane Growers Association and other similar associations are authorized to be formed, entered a new field of legislation; and since there has been no reason prior to this time for this court to construe the provisions of the law, I deem it proper to advert briefly to some of its main features. The business operations of the associations authorized by the co-operative marketing act are expressly confined to the sale of the products grown by members of the association. Their association can not buy from or sell for producers who are not members of the association,, nor can it perform similar services for dealers or manufacturers. The association has no capital stock. It is forbidden to make any profits. It is obvious from these provisions (not to refer to many similar features of the act) that the law was intended to effect only the purposes set forth in the title of the act; that is, to promote and encourage intelligent and orderly marketing of agricultural products through co-operation and stabilize the marketing problems of agricultural products. Furthermore, since it is our duty prima facie to presume that the General Assembly would not pass any legislation in violation of the constitution, and since for that reason doubts as to the constitutionality of the act must be resolved in favor of its constitutionality, it is well to consider the condition of affairs which led to the evolution, not only of the Georgia co-operative marketing act, but of a mass of practically similar legislation on the' part of other commonwealths.

The legislatures of thirty or more of the principal agricultural States of this Union have enacted enabling acts, practically, if not precisely, identical with the act in question. The validity of this new character of legislation has been upheld in all its phases by the Supreme Courts of North Carolina, Tennessee, Kentucky, Texas, and several other States, and the principles underlying it have been affirmed by the Supreme Court of the United States in rulings made where the provisions of the Sherman act and features of the Clajdon act were involved. There is not a single substantial issue of fact in the case now before us. Each assignment of error will be hereinafter specifically dealt with. However, as if is perfectly plain that, if any of the exceptions.presented by the plaintiff to the judgment in this case aré meritorious, the design of this legislation will be marred, and the Cane -Growers5 Association, and other similar associations designed for the sole purpose of relieving a condition of extreme economic depression in all agricultural pursuits, will be blighted, shrivel and die, it is proper that the basis upon which the General Assembly has attempted to exercise its right to legislate be considered. It may be said, what has this to do with constitutional questions? The reply is that the General Assembly is the author of every law, and it is the only authority to say what shall be enacted. What has current public opinion to do with constitutional inhibitions and guaranties ? Just this: It affords a very proper method of approach to the determination of the meaning of constitutional provisions. The assignment of error that the judgment before us for review was erroneous because the judge issued a mandatory injunction, and because he issued an injunction without any allegation or proof that the defendant was insolvent, prima facie in an ordinary case, might entitle the plaintiff in error to a reversal. But the provisions of law as to insolvency, and to the effect that generally equity does not command but only restrains, are not exhaustive of all situations in which injunctive relief may be applied. Our reports are full of cases where injunction has been applied as a remedy where nothing but injunction would prevent an irreparable wrong. If, as is perfectly plain, the General Assembly in passing an enabling act authorizing the formation of such an association as the defendant in error could not give it actual and effective existence without the remedy of injunction, can it be said that the General Assembly does not possess the constitutional right to provide the remedy of injunction in an altogether new condition, and for the relief of a condition which has never before been the subject of legislative action? To say this, it seems to the writer, would be to assert superiority of authority on the-part of the judiciary, and to destroy that equal independence of the legislative branch of government, which is declared by the organic law of the State. The necessities of a great public interest may evolve legislation and authorize a reasonable classification as between diverse interests and organizations.

It is within the power of the General Assembly to consider and act upon varying conditions as affecting public welfare, in conformity with changing economic conditions; and existing economic conditions may, of themselves, justify or compel legislation classifying farmers as a class requiring beneficial legislation. The New York Court of Appeals in People v. La Fetra, 230 N. Y. 429 (130 N. E. 601, 16 A. L. R. 152), clearly states the principle: “Novelty is no argument against constitutionality. Changing economic conditions, temporary or permanent, may make necessary or beneficial the right of public regulation. The question comes back to what the State may do for the benefit of the community at large. Plere the legislation rests on a secure foundation. The struggle to meet changing conditions through new legislation constantly goes on.” As said by President Harding at the agricultural conference, Jan. 23, 1922: “From the very nature of things farmers can not produce in groups. Their occupation is essentially personal and individualistic. A great manufacturing industry can consolidate under the ownership of a single corporation,. with a multitude of stockholders, a great number of originally separate establishments, and thus effect economies and concentrations and acquire for itself a power in the markets where it must buy, and in the markets where it must sell, such as have not been available to agriculture. The farmer is the most individualistic and independent citizen among us. He comes nearer to being self-sufficient, but precisely because of this he has not means of co-operation, co-ordination, and consolidation which serve so usefully in other industries. A score or more manufacturers consolidate their interests under a corporate organization and attain a great increase of their power in the markets, whether they are buying or selling. The farmer, from the very mode of his life, has been estopped from these combinations; therefore, because he buys and sells as an individual, it is his fate to buy in the dearest, and sell in the cheapest market. . . Take co-operative marketing. American farmers are asking for, and it should be possible to afford them, ample provision of law under which they may carry on in co-operative fashion those business operations which lend themselves to that method, and which, thus handled, would bring advantages to both the farmer and his consuming public.”

The State has the power to reasonably classify its citizens or to recognize and approve an actually existing classification. The classification of farmers as a producing class whose labors are individualistic and not by the group is a reasonable, just, and proper exercise of the power of classification. Classification of persons whose labors or production is by the group has long been recognized, both in the State and Federal courts, as will appear from the authorities hereinafter cited; and it would seem that it would be an equally reasonable exercise on the part of the General Assembly to make another and different classification, including only producers of agricultural products, with the necessary subdivisions embracing all the kinds of agricultural products from cotton to cucumbers. Though the trite statement, “everything rests upon agriculture,” may have been often used for demagogic purposes, I deem it not unjudicial to reaffirm the proposition and to say that even the constitution itself relies for its support upon the pursuit of agriculture under healthful conditions; for if there were no production of food to maintain life, there would be no people for the constitution to serve and no people to support the constitution.

The first insistence of the plaintiff in error is, that the defendant was solvent and able to respond in damages; that the syrup which the court enjoined him from selling was perishable; and that in granting the interlocutory injunction the court made a mandatory injunction which is oppressive, and the grant of a temporary injunction was an abuse of discretion. We shall not deal with this contention at this point, because there is also an insistence that the act is unconstitutional, because the title is too narrow to cover the contents, and because it is a special enactment for which provision has already been made by existing general law. Considering first the second proposition presented by the plaintiff in error, is the act unconstitutional because injunction is provided as a remedy to enforce the performance by the plaintiff in error of an obligation which he had voluntarily assumed? It would seem that this question suggests a preliminary inquiry as to whether the plaintiff in error is in a position to assert that he shall not be prevented from performing a contract which he himself has undertaken and obligated himself to perform. The authorities seem to hold that he is estopped. However this may be, it is plain that the order entered by the trial judge was not mandatory. He did not command Harrell to deliver any syrup to the Cane Growers Association. Had the court ordered Harrell to deliver his syrup to the association, the order would have been mandatory. On the contrary the court merely restrained Harrell from selling or delivering his syrup to any one else, until the validity of his agreement with the association should be determined. We might stop here, but for the fact that the co-operative marketing act specifically provides that a member of the association (as Harrell was) may be required specifically to perform his agreement and undertaking to deliver all of the syrup produced by him to the association. This brings us to the question of specific performance, the question as to whether the General Assembly had the constitutional right to provide that there should be specific performance of the contracts which the association it was authorizing to do business should be entitled to in the event one of its members breached the contract to furnish to the association all of a particular agricultural product derived from crops grown upon his land or upon land under his control. The power of the General Assembly to prescribe remedies can not be questioned. Essential rights and rules of procedure are within the exclusive prerogative of the courts, but the nature of the remedy to be provided has always been held a legislative function. The legislature had the right to determine that under the circumstances and nature of the business which the association was formed to promote, a remedy in damages would be ineffectual-to procure the result which was absolutely essential to make the service of the association effective and to give it real existence.

When the purposes of the act, as stated in the caption, are considered, it will readily appear that a recovery of damages for a breach of the contract entered into between the plaintiff and defendant in this case would so completely fail to furnish relief, in case there was a breach of the contract to deliver produce, that the whole object for which the association was formed would be defeated. Compensation in damages could not be made, because the injury is of such nature that the computation is impossible. The plan upon which the association is conducted makes its success depend, not upon the making of money for the association, but upon having such influence on the market price of the article which the defendant and other cane-growers produced as would be beneficial to the producers within the association and enable each and every one of them to obtain a fair market price. As said by Mr. Chief Justice Clark in Tobacco Growers' Co-Operative Association v. Jones, 185 N. C. 265 (117 S. E. 174, 176, 33 A. L. R. 231), “Damages, of course, are of no real value. The association must have crops to market, or it will go out of business; therefore relief in equity is provided, and it is an essential point in this case.55 Without the provision of section 15 of the co-operative marketing act, affording an injunction preventing the member of the association who has promised to deliver his crop to the association from delivering it to another until a decree of specific performance can be rendered, the entire act would be nothing more than “a sounding brass and a tinkling cymbal.55 The effort of the General Assembly to provide a measure which might tend to enable the great farming class of our people to obtain a fair market price would be completely frustrated by holding that specific performance could not be decreed, and it would be futile to provide specific performance; for after the produce has been delivered to another, under a well settled rule the right of specific performance must be denied, because specific performance is then impossible. As specific performance is generally available in equity in cases where damages can not supply the equivalent to delivery of a specific thing, why may not injunction be applied as an antecedent ancillary proceeding to restrain any disposition of the property which will destroy the right to have the specific property delivered, where one is entitled to specific performance under such circumstances ? It is not necessary to say more upon this point. I have referred to it at this stage merely because I think that, even without the passage of the co-operative marketing act, the judge might have granted an injunction where specific performance ought to have been decreed as to the delivery of a specific article, although, as will appear hereafter, I am of the opinion that the General Assembly had the right to embody in the provisions of the act a remedy both by specific performance and injunction.

Whether the defendant was released because the contract was breached by the plaintiff (the Cane Growers Association) by failure of the plaintiff to carry out its contract must be determined by the stipulations of the contract with reference to the matter. The pith of the defendant’s contention is that the association has not paid him for the syrup furnished by the defendant the amount of money which the association received from the sale thereof. For this reason the defendant contends that he is released from any obligation to furnish the syrup produced by him for the succeeding year. The nature of the contract, which the defendant voluntarily entered into, does not impose any obligation on the association to pay to any one producer the amount received from the sale of that particular article, or pay him the entire proceeds of a sale if the entire crop delivered by him be sold as a whole. The member agrees to enter a pool, and, in consideration of the benefits anticipated as a result of the pooling arrangement, he agrees to accept the best price the association is able to get for the membership as a whole upon produce of the same quality as that furnished .by him, after a complete accounting has been made and payment of all debts and expenses necessary in effecting the sale of the syrup as a whole. The record discloses without contradiction that at the time the defendant refused to deliver the crop produced by him in 1922 there had been no final settlement by the association with its members for the syrup sold by them in 1921, and that in fact the sales for the year 1921 had not been completed. It is very clear that the association was not able to pay Harrell as much for his syrup as it had received, by reason of the expenses of the business. But the association had made him advances, as it'had to other members. Not all the syrup had been sold, and the association was therefore unable to make a final division and settlement for 1921. The amount to be divided could not be determined, by reason of the failure to sell all the syrup. The circumstances did not authorize the conclusion that the plaintiff intended to breach the contract, and its delay in making settlement was in contemplation of the contracting parties at the time Harrell made his contract. The real question, considering the intention of the parties in making the contract, is not whether Harrell received as much money for Ms syrup as the association was paid for it, but whether he will not get a better price than would have ever been received for the syrup if all of the syrup produced by the members of the association had not been pooled. From this it will be apparent that if the contract is valid and enforceable under the provisions of the co-operative marketing act, there is no merit in the insistence of the plaintiff in error.

So we come to consider the objections based on the alleged unconstitutionality of the co-operative marketing act. Is the act unconstitutional as in violation of article 3, section 7, paragraph 8, of the constitution? It is contended that the act in question contains in the body thereof matter different from what is expressed in the title. A substantial and not a literal compliance with this requirement of the constitution is all that is necessary. Macon &c. Ry. Co. v. Gibson, 85 Ga. 1 (11 S. E. 442, 21 Am. St. R. 135). It was never contemplated that the title of the act should give a complete synopsis of the act. The title of the co-operative- marketing act is sufficiently definite to indicate its general purpose and scope. “The body of the act contains nothing that is different from what is expressed in the title of the act” (Hill v. Decatur, 22 Ga. 203), and all of the provisions of the act are in accord with the declared purpose stated in the caption. In Jones v. Columbus, 25 Ga. 610, Judge McDonald, speaking for the court, held that the title, “to raise a revenue for the City of Columbus, is broad enough to admit any provision for that purpose,” holding at the same time that even “the addition” to the language “to raise a revenue,” etc., “of the words ‘amendatory of the act of 1841/ can not restrict the power of the legislature to act as expressed iu its title.” In that case the court held, adversely to the contention that the act contained matter not indicated by the caption, that “the object was expressed in the broadest terms, so as to admit of any taxation by the legislature, or of any provision to authorize taxation by the Mayor and Council of Columbus within its constitutional power to grant.” It may be remarked also, on the question (to which we have already referred) of the power of the State to apparently distinguish upon grounds of public policy, without unlawful discrimination, between individuals environed • and affected by different circumstances and conditions, that this court, in the same case, supra, ruled upon a similar ■ point. The plaintiff in error, who was not a resident of Columbus, contended that “more tax is imposed” on his property in slaves “than on that of residents within the city.”

The reason assigned why the co-operative marketing act offends the above-recited provision of the constitution is that there is nothing in the caption of the act to indicate a purpose on the part of the General Assembly to allow the corporation for the creation of which provision is made to exercise the powers conferred by section 15 of the act in regard to attorney’s fees and other expenses of litigation in addition to the usual costs provided by law. It is contended that there is no allusion in the title to these provisions. Even in the criminal case of Brown v. State, 73 Ga. 38 (and in such cases the law must always be strictly construed), this court held adversely to such a contention. The title of the act in question in that case was, “to provide for the collection of the special taxes imposed by law on dealers in spirituous or malt liquors or intoxicating bitters, and for other purposes.” In the body of the act the non-payment of the tax was made a crime, and it was provided that upon a failure to pay such tax the dealer might be indicted and punished as for a misdemeanor. Yet the court held that the act was not objectionable either as containing matter different from its title or as containing more than one subject-matter. It may be stated as a general rule, based upon the general principle that all legislation is presumptively constitutional, and that he who attacks the constitutionality of a legislative enactment carries the burden of establishing its constitutional invalidity, that an act will not be declared unconstitutional upon

the ground that the substance of the act is too broad to fit the caption, if the language of the caption is broad enough to include permission to do any act which it is necessary to do in order to accomplish the purposes stated in the caption. Thus it has been held in numerous decisions of this court that the mere words “and for other purposes” may be sufficient to call the attention of the General Assembly to the probable contents and consequences of the act proposed to be passed, so as to put the members of the legislature on guard and direct their attention to any matter germane to the general purpose of the act. Marlin v. Broach, 6 Ga. 21 (50 Am. D. 306); Burns v. State, 104 Ga. 544 (30 S. E. 815); Hart v. State, 113 Ga. 939 (39 S. E. 321); Banks v. State, 124 Ga. 15 (52 S. E. 74, 2 L. R. A. (N. S.) 1007). Upon the sub-mane to the general purpose of the act. Marlin v. Broach, 6 Ga. 21 (50 Am. D. 306); Burns v. State, 104 Ga. 544 (30 S. E. 815); Hart v. State, 113 Ga. 939 (39 S. E. 321); Banks v. State, 124 Ga. 15 (52 S. E. 74, 2 L. R. A. (N. S.) 1007). Upon the subject of the sufficiency of the title to include the contents of an act generally, see Martin v. Broach, supra; Pope v. Mayor, 72 Ga. 246; Howell v. State, 71 Ga. 224 (51 Am. R. 259); Goldsmith v. Rome R. Co., 62 Ga. 473; Churchill v. Walker, 68 Ga. 681. As

said in the Pope case, supra, the object of the provision is to insure separate consideration of-each subject presented for legislative action and a declaration of such subject. In Ex parte Connor, 51 Ga. 573, it was said that one of the reasons why a clear statement of enough of the general purpose of the act is required is to prevent “logrolling.” In Robinson v. Bank, 18 Ga. 65, 89, it was held that where the title of an act indicates the legislative purpose to extend the charter of a corporation, provisions in the act setting out the terms and conditions under which the extension is granted are not at variance with the title. A case which seems to be in point upon the precise question now before us is that of Davis v. Bank, 31 Ga. 69, in which it was held, that, in an act granting a charter to a bank, any grant of franchise or franchises may be conferred without embodying matter different from what is expressed in the title of the act. Having already held that the general purposes of the act were not in conflict with, any provisions of law, under the above rulings it was not necessary to state these lawful purposes in the caption of the act. Likewise in the Goldsmith case, supra, it was held that the omission in the title of the act granting a charter did not render that provision of the act unconstitutional.

The exception to the order of the court granting the temporary injunction, as contained in the bill of exceptions, so far as it relates to the ground of unconstitutionality is as follows: “Because the act under which the plaintiff was operating, is unconstitutional on the grounds referred to and set forth in defendant’s answerj and because the contract sued on is not authorized by said act, for the reasons set forth in the answer.” In the answer it is alleged, in paragraph 8, “that so much of section 15 of the act of 1921, page 139, entitled Distribution of Agricultural Products, Co-operative Marketing Act, as seeks to authorize the by-laws and marketing contract to fix liquidated damages and to require the members to pay all costs, premium for bonds, expenses and fees, as well as providing for injunction and a decree of specific performance, is unconstitutional and void as being in conflict with art. 3, sec. 7, page [par. ?-] 8, of the constitution of Georgia, in that there is nothing in the title of said act covering said provisions, and because said provisions are unconstitutional and in violation of art. 1, sec. 4, par. 1, of the constitution, in that the general laws of the State have provided for the issuing of temporary injunction, for the payment' of court costs, and other provisions stated in said section.” In paragraph 10 of the answer, “Defendant shows that the act under which the plaintiff was incorporated and the contract made in this case pursuant thereof are null and void, in that the same is in violation of art. 4, sec. 1, par. 4, of the constitution, in that it was the intention of the plaintiff and the members forming the same to combine all of the cane products grown in southwest Georgia, so as to be able to fix the price at which the same would be sold, and to be able to effect a corner of the syrup manufactured in southwest Georgia, so as to enable the association to dictate the price to be paid for said syrup by the canners who depended upon said crop for their material to operate their canneries.” In paragraph 11 of the answer, “Defendant shows that sections 3, 4, and 5 of said act under which the plaintiff was incorporated is unconstitutional, in that the title of said act does not cover said provisions and does not authorize the creation of an incorporation as set forth therein, and is therefore in violation of art. 3, see. 7, par. 8, of the constitution of Georgia.” It thus appears that aside from the general attack upon the constitutionality of the co-operative marketing act of 1921 as a whole, upon the ground that art. 3, sec. 7, par. 8, is violated, and which we have overruled, the' plaintiff' in error attacks, upon the grounds just quoted, sections 3, 4, 5, 15, and 23 of the act, which are as follows:

“See. 3. Be it further enacted, that an association may be organized to engage in any activity in connection with the marketing or selling of the agricultural products of its members, or with the harvesting, preserving, drying, processing, canning, packing, storing, handling, shipping, ginning, or utilization thereof; or in connection with the manufacturing, selling, or supplying to its members of machinery, equipment, or supplies; or in the financing of the above-enumerated activities; or in any one or more of the activities specified herein.

“Sec. 4. Be it further enacted, that each association incorporated under this act shall have the following powers: (a) To engage in any activity in connection with the marketing, selling, harvesting, preserving, drying, processing, canning, packing, storing, handling, ginning, or utilization of any agricultural products produced or delivered to it by its members; or the manufacturing or marketing of the by-products thereof; or in connection with the purchase, hiring, or use by its members of supplies, machinery, or equipment; or in the financing of any such activities; or in any one or more of the activities specified in this section. No association, however, shall handle the agricultural products of any non-member, (b) To borrow money and to make advances to members, (c) To act as the agent or representative of any member or members in any of the above mentioned activities, (d) To purchase or otherwise acquire, and to hold, own, and exercise all rights of ownership in, and to sell, transfer, or pledge shares of the capital stock or bonds of any corporation or association engaged in any related activity or in the handling or marketing of any of the products handled by the association, (e) To establish reserves and to invest the funds thereof in bonds or such other property as may be provided in the by-laws, (f) To buy, hold, and exercise all privileges of ownership over such real or personal property as may be necessary or convenient for the conducting and operation of any of the business of the association or incidental thereto, (g) To establish, secure, own, and develop ’ patents, trade-marks, and copyrights, (h) To do each and everj’-thing necessary, suitable, or proper for the accomplishment' of any one of the purposes or the attainment of any one or more of the objects herein enumerated, or conducive to or expedient for the interest or benefit of the association; and to contract accordingly; and in addition to' exercise1 and possess all powers, rights, and privileges necessary or incidental to the purposes for which the association is organized or to the activities in which it is engaged; and in addition, any other rights, powers, and privileges granted by the laws of this State to ordinary corporations, except such as are inconsistent with express provisions of this act; and to do any such thing anywhere.

“See. 15. Be it further enacted, that the association and its members may make and execute marketing contracts, requiring the members to sell, for any period of time, not over ten years, all or any specified part of their agricultural products or specified commodities exclusively to or through the association or any facilities to be created by the association. The contract may provide that the association may sell or resell the products of its members, with or without taking title thereto; and pay over to its members the resale price, after deducting all necessary selling, overhead, and other costs and expenses, including interest on preferred stock, not exceeding 8 per cent, per annum, and reserves for retiring the stock, if any; and other proper reserves; and interest not exceeding eight per cent, per annum upon common stock; or other items deemed proper. The by-laws and the marketing contract may fix, as liquidated damages, specified sums to be paid by the member or stockholder to the association, upon the breach by him of any provision of the marketing contract regarding the sale or delivery or withholding of products; and may further provide that the member will pay all costs, premiums for bonds, expenses and fees in case any action is brought upqn the contract by the association; and any such provisions shall be valid and enforceable in the courts of this State. In the event of any such breach or threatened breach of such marketing contract by a member, the association shall be entitled to an injunction to prevent the further breach of the contract, and to a decree of specific performance thereof. Pending the adjudication of such an action and upon filing a verified complaint showing the breach or threatened breach, and upon filing a sufficient bond, the association shall be entitled to a temporary restraining order and preliminary injunction against the member.

“See. 23. Be it further enacted, that no association organized hereunder shall be deemed to be a combination in restraint of trade or an illegal monopoly, or an attempt to lessen competition or fix prices arbitrarily; nor shall the marketing contracts or agreements between the associations and its members or any agreements authorized in this act be considered illegal or in restraint of trade.”

The first exception raises the question, whether the provision as to injunction in the co-operative marketing act of 1921 is constitutional; and second, whether the caption of the act was broad enough to include the provisions of sections 15, and 3, 4, and 5 of said act, so as to authorize the creation of the corporations and the grant of the powers set forth in these sections. It is the purpose of the law to provide a remedy for every wrong; and in determining whether the legislature has the power, which is generally conceded, to provide any remedy which may be necessary to reach and cure the wrong, it may not be amiss to consider that from the very beginning of our judicial history it has been held that the legislature may charter any form of corporation which it may select. In the early case of Dartmouth College v. Woodward, 4 Wheaton, 518 (4 L. ed. 629), it was held that the purpose for which a corporation was created was a matter entirely for the State and such as would carry out some design which the State desired to promote, the benefits to the public constituting the consideration for corporate authority. In the Slaughter-House Cases, 16 Wallace, 36 (21 L. ed. 394), a charter granting the exclusive right to slaughter meat in the city of New Orleans was sustained on the ground that the legislature had plenary powers to charter any form of corporation. To the same effect was the decision of the Supreme Court of the United States in New Orleans Gas-Light Company v. Louisiana Light Company, 115 U. S. 650 (6 Sup. Ct. 252, 29 L. ed. 516). Also, Penobscot Boom Corporation v. Lamson, 16 Maine, 229 (33 Am. D. 656); Killingsworth v. Portland Trust Co., 18 Oregon, 351 (23 Pac. 66, 7 L. R. A. 638, 17 Am. St. R. 737). The attack made upon the provision for injunction is that it is unconstitutional to give the plaintiff injunctive relief. Legislative control over forms of remedies is unlimited so long as there is no deprivation of due process of law. In Iowa Central Railway Co. v. Iowa, 160 U. S. 393 (16 Sup. Ct. 345, 40 L. ed. 467), where the defendant attacked a statute providing for remedy by mandamus without a jury trial, the court held: “The fourteenth amendment in no way undertakes to control the power of a State to determine by what process legal rights may be asserted of legal obligations be enforced, provided the method of procedure adopted for these purposes gives reasonable notice and affords fair opportunity to be heard before the issues are decided. This being the case, it was obviously not a right, privilege, or immunity of a citizen of the United States to have a controversy in the State court prosecuted or determined by one form of action, instead of by another. It is also equally evident, provided the form sanctioned by the State law gives notice and affords an opportunity to be heard, that the mere question of whether it was by a motion or ordinary action in no way rendered the proceeding not due process of law within the constitutional meaning of -those words.” To the same effect are the rulings in State v. Diamond Mills Co., 63 N. J. Eq. 111 (51 Atl. 1019, 1021); Commissioners v. Farmers Bank, 21 Pick. 542, 552 (32 Am. D. 290); Johnson v. Yates, 183 N. C. 24 (110 S. E. 603).

But it is insisted that the injunction provided by the act of 1921 is mandatory, and for that reason section 15 is unconstitutional, because this is a special law in conflict with the general law as to injunctions. Aside from the fact that the general law to which plaintiff in error refers is not pointed out, if, as we have already held, the power of the General Assembly to provide appropriate remedies is within its exclusive jurisdiction as a co-ordinate department of our government, then it is within the power of the General Assembly, as it frequently does by the passage of a general law, to vary or even destroy enactments previously of force. In the act of 1921 the General Assembly has made provision for a new economic condition, for a new class of incorporations, and for a new class of contracts, and is about to provide a remedy in case of violation of such contracts. It seems perfectly plain, under the generally recognized power of the General Assembly to pass upon the form of remedial legislation to be employed in any case, that it may direct the grant of injunctive powers by the court in a new class of cases to which it may determine the remedy is appropriate. As said in the case of State v. Diamond Mills Co., supra, “The legislature not infrequently extends the jurisdiction of courts, both of law and of equity, to new cases, and it assigns them to the one court or the other in conformity with the remedy each is accustomed to administer. . . It is true that heretofore the rule in equity has been not to exercise its jurisdiction to restrain nuisances unless a serious public injury has been shown to exist — an injury not remediable in the ordinary tribunals. The reason is that the remedy at law has been found adequate. Here, however, we are dealing not with the jurisdiction ordinarily exercised by this court, but with a- jurisdiction conferred by statute. To deny the constitutional validity of the act is to assert that the legislature can not afford what is undoubtedly an appropriate remedy for a new and threatening wrong; that it may indeed punish, but can not prevent.” The fact that it has heretofore been held by this court, in dealing with laws passed prior to the act of 1921, that mandatory injunctions should not be granted, affords no reason for denying the power of the General Assembly, in passing an entirely new law upon a subject not heretofore dealt with in all our legislation, to prescribe the remedy of injunction if in the opinion of the General Assembly the most appropriate redress was afforded thereby. As said by Mr. Chief Justice Shaw in Commissioners v. Farmers Bank, supra, “if it is competent for the legislature to accomplish these objects by any mode of judicial proceeding, it may as well be done in the form of a bill in equity as in any other. It seems to be a well settled rule that where the legislature have the power to provide redress for either a public or private wrong, the remedy or mode of redress is wholly a subject of legislative discretion. If an injunction is better adapted to accomplish the object proposed than any other form of judicial process, there seems to be no reason why the legislature should not have power to direct it.” We conclude, therefore, that section 15 of the act is not unconstitutional, but on the contrary is effective for the reasons stated.

Is the association created by the act of 1921, known as the cooperative marketing act, a monopoly, or does the act “encourage monopoly?” And is the contract sub judice, by reason of the fact that it tends to encourage monopoly or for any other reason, in restraint of trade? Art. 4, sec. 2, par. 4, does not undertake to define the word “monopoly,” from which it results that the courts have authority and the right to submit a definition. Citation' of authority is unnecessary to support this proposition; for our reports contain many decisions where the duty devolved upon the courts to construe the meaning of the language employed in various constitutional provisions. A-monopoly may be defined to include any agency which will give to the grantee of such monopoly control of any subject of commerce in its manufacture, sale, or production. This definition is not exhaustive, but it is perhaps sufficient for the purposes of the present adjudication. Do the provisions of the co-operative marketing act give to the association thereby permitted to be created control of the manufacture, sale, or production of syrup, so as to injuriously affect the rights of the consumers’ or "of the public generally? Likewise the same question applies to the Cotton Growers Association and the Peanut Growers Association, who have filed briefs in behalf of these two corporations organized and operating under the provisions of the co-operative marketing act. In ruling upon this question as to the Tobacco Growers Co-Operative Association, a corporation created under an act so similar to the one now under consideration as to be practically identical, Mr. Chief Justice Clark, speaking for the Supreme Court of North Carolina, says, “These conditions make it physically, economically, and financially impossible for the plaintiff to become a monopoly.” Tobacco Growers Co-Op. Assn. v. Jones, 185 N. C. 265 (supra). The association to which he refers is one which embraced the tobacco growers of South Carolina, North Carolina, and Virginia, the latter two States being perhaps the largest tobacco-producing States in the Union, whereas the association with which we are dealing covers only a few counties in extreme southwest Georgia. The substance of the section of the constitution of North Carolina in intent and purpose is practically the same as our own. The language used is that “Monopolies are contrary to the genius of a free State, and ought not to be allowed.” We take this language to be as strong as that employed in our constitution, which says that no act shall pass which will “encourage monopoly.” All of the facts stated by Mr. Chief Justice Clark, as reasons why it is “physically, economically, and financially impossible for the plaintiff to become a monopoly,” apply in the present case, except that the subject dealt with is tobacco instead of syrup, and for this reason and because the constitution of Georgia also reserves the right to repeal all charters granted since its adoption in 1877, I shall adopt the language of the learned and late lamented Chief Justice of our sister State.

“An examination of this statute shows, we think, that this association is authorized for the purpose, not of creating - a monopoly, but to protect the tobacco producers against oppression by a combination of those who buy, and not to authorize, and does not empower, those who produce the raw material to create a monopoly in' themselves. Indeed, it seems to us plain that the plaintiff, under the provisions of its charter, is not and never can become a monopoly, for many reasons: (1) As a corporation of North Carolina, the moment it should become dangerous to the public, if that were possible under the terms of its charter, the General Assembly can at any time repeal its charter (Const., art. vm, sec. 1), and the courts will intervene to prevent it becoming a monopoly. (2) The plaintiff has neither capital stock or surplus, nor credit, except as given it by the statute, and this latter may be withdrawn at any time. It is wholly dependent upon its ability to borrow in large sums, which is necessarily under the control .of the Federal Reserve Banking System, . . which is a function of the Government, only on such terms as that board deems consistent with the public welfare, and that board will not permit hoarding or monopolizing by the plaintiff. The power of the Federal Reserve System was shown in October, 1919, when by mere announcement of its policy it caused the deflation of the stock market. In May, 1920, when the operations of the War Finance Corporation were suspended by direction of the Secretary of the Treasury, so that it could not extend credit for the export of cotton, because cotton was scarce and a cotton famine was threatened, there resulted a drop in cotton of 30 cents a pound in six months. Therefore, were- the plaintiff to attempt to monopolize the sale of tobacco, not only it would fail to control its sale by the large numbers of producers who are not members of the organization, but it would be faced with the power of the General Assembly to repeal its charter, . . and it would be denied the privilege of borrowing from the Federal Reserve Bank or any of its correspondents. It would be subject to the visitorial powers of the Secretary of Agriculture under the anti-trust laws; and finally it would be confronted with the huge increase' in the acreage devoted to tobacco, and, by the holding off from the market the normal production of any one year, the result would be the selling of two crops within a single year. As was well said by Mr. Pou, one of the counsel for the plaintiff, These conditions make it physically, economically, and financially impossible for the plaintiff to become a monopoly/

“The plaintiff will continue to exist only if it provides for a normal, orderly marketing of the tobacco crops, and by putting on the markets of the world annually the production for that year. Its sole purpose is by an orderly marketing of the crop to make large saving, and to secure to the producers a fair and reasonable price therefor without increasing the price the consumer will pay for the manufactured article. The sole object of the association is to protect the producer of the raw article from depression in price by the combination of the large manufacturing corporations controlled by a few men who can at the same time not only decrease the price to the producer, but can increase it at will to the consumer and thereby accumulate in a few hands sums beyond computation. The co-operative association purposes to eliminate unnecessary expenses in selling, and to prevent artificially forced reduction in the price paid to the producers. ■ Instead' of creating a monopoly, the object is by a rational method of putting the raw product on the market from time to time as there is a legitimate demand for its manufacture, and by the extension of credit to farmers to enable this to be done, to prevent a monopoly of the tobacco industry by those who manufacture it.”

Paraphrasing the reasoning of Mr. Chief Justice Clark to the case in hand, the enabling act was only passed “to promote, foster and encourage the intelligent and orderly marketing of agricultural products through co-operation, and to eliminate speculation and waste; and to make the distribution of agricultural products as direct as can be efficiently done between producer and consumer; and to stabilize the marketing problems of agricultural products; and for other purposes.” The provisions of art. 4, sec. 2, 'par. 4, above quoted, refer to specific situations or conditions arising from the conduct of corporations, and the only inhibition is against “monopoly.” It is clear that 'there is nothing in the act of 1921 violative of the inhibition against authorizing a corporation to buy shares of stock in another corporation fox the purpose of defeating or lessening competition, and that the contracts which the association is permitted to make within the scope of its charter powers will not defeat or lessen competition in the business to be carried on by the contracting parties. Unlike other classes of our citizens, farmers are producers only. Unlike other classes of producers the work of a farmer is individualistic, and the result of his labors is not group production as in the case of manufacturers, miners, or skilled labor engaged in manufacturing. It is plain from the caption of the act that the effect of the corporation is not intended to be to “defeat or lessen” competition between dealers or sellers of agricultural products; and that it will not have that effect, but that the intent and purpose of the act is to foster agriculture by providing a stable market, preventing speculative fluctuations and enabling the agricultural producer to sell his crops by degrees, instead of being forced by his necessities to throw the product of his labor in bulk upon a depressed (because overstocked) market, creating thereby a condition which will not lessen the price to the consumer but only enable the speculator or middleman to reap a profit which justly belongs to the producer. Does the co-operative marketing act or the contract submitted in this case “have the effect” or is it “intended to have the effect” to encourage monopoly? A mere - statement of the facts of this case shows that it can not create a monopoly. The Cane Growers Co-Operative Association, which is the defendant in error in this case, covers only a portion of southwest Georgia, and the agreement is dependent upon its controlling or receiving only 25 per cent, of the area cultivated in cane. When we consider and compare the area embraced by this association with the larger areas upon which sugar-cane is grown in other States, and especially in State of Louisiana, it is apparent that it. would be impossible for the incorporation and operation of the defendant in error to create a monopoly in syrup. Prima facie a law is constitutional, and it should not be declared unconstitutional unless it appears beyond any reasonable doubt to be unconstitutional. Under this rule, if the Cane Growers Co-Operative Association, whose headquarters are at Cairo, Georgia, may create a monopoly in the future, the judge correctly granted the injunction until the facts could’ be determined and submitted to the court by the verdict of a jury. Prima facie the contract was not intended to have the effect of creating a monopoly, and there is no evidence submitted in this record to show a contrary intent. The fact that it appears from the defendant’s own answer that all syrup delivered by the defendant and other members of the association had been sold in the ordinary course of trade disposes of the contention that there was intent to create a monopoly, in the absence of any.evidence that the association had bought and resold any syrup other than that produced by its own members.

It is said that the act is unconstitutional and in restraint of trade, because it violates art. 4, see. 1, par. 4, of the constitution. As there is no paragraph 4 in section 1 of article 4 (section 1 consisting of only one paragraph, which relates to taxation), I assume that the plaintiff in error intended to refer to the only place in the constitution where the word “monopoly” is mentioned, to wit, art. 4, sec. 2, par. 4, and that the use of the figure 1 instead of 2 is a mere typographical error. I have heretofore quoted the exception as contained in paragraph 10 of the defendant’s answer. Art. 4, see. 2, par. 4, of the constitution upon the subject of monoplies is as follows: “The General Assembly of this State shall have no power to authorize any corporation to buy shares of stock in any other corporation in this State or elsewhere, or to make any contract or agreement whatever with any such corporation, which may have the effect, or be intended to have the effect, to defeat' or lessen competition in their respective businesses, or to encourage monopoly; and all such contracts and agreements shall be illegal and void.” This paragraph deals only with contracts made on the part of one corporation with another, and only refers to such of these as have the effect or are intended to defeat or lessen competition in their respective businesses. It is plain that there is nothing in the co-operative marketing act which falls within the provisions of this article of the constitution. Section 23 of the co-operative marketing act provides that no association organized under the provisions and in accordance with the terms of that act “shall be deemed to be a combination in restraint of trade, or an illegal monopoly; or an attempt to lessen competition, or to fix prices arbitrarily; nor shall the marketing contracts or the contract between the association and its members or any agreement authorized in this act be considered illegal or in restraint of trade.”

Is the contract in question in restraint of trade? We think not. The question as to whether certain contracts are in restraint of trade has been dealt with by this court in Holmes v. Martin, 10 Ga. 503, Jenkins v. Temples, 39 Ga. 655 (99 Am. D. 482), and Rakestraw v. Lanier, 104 Ga. 188, 196 (30 S. E. 735, 69 L. R. A. 154). In the Bakestraw ease the court applied the yardstick by which the contract is to be measured, saying: “But if, considered with-reference to the situation, business, and objects of the parties, and in the light of all the surrounding circumstances with reference to which the contract was made, the restraint contracted for appears to have been for a just and honest purpose,'for the protection of the legitimate interests of the party in whose favor it is imposed, reasonable as between them, and not specially injurious to the public, the restraint will be held valid. The true test, therefore, of the validity of such a contract is, whether it is supported by a sufficient consideration, and whether the restraint, is reasonable.” Comparatively recent decisions of courts in numerous jurisdictions have added a new test of the validity of a contract alleged to be in restraint of trade, to wit, that a contract which is to the interest of the public can not be held void because a holding that a certain contract is in restraint of trade is itself based upon the principle that it is contrary to public policy because the contract is against the interest of the public. The ruling in the Ralcestraw case has reference to the older classifications of contracts in restraint of trade, which looked merely to the interests of the contracting parties, while here the caption of the act itself relates to a matter of public interest and general concern, — the promotion of agriculture and the orderly marketing of crops as a matter of deep public interest in which 81 per cent, of our population are engaged. However, bearing in mind that the rules which invalidate contracts upon the ground that they are in restraint of trade are based upon public policy, the rules laid down in the Ralcestraw case^ supra, applied to the subject-matter of this contract, cover every phase of this case. Under the rule in that case, the first test to be applied is based upon a consideration of the situation, business, and objects of the parties. In this contract it appears that the plaintiff in error is a cane-grower, a member of the association with which he is contracting, and the business of which is to provide a stable market for cane producers and the best price obtainable for the products of cane. “The objects of the parties” must be the same. The Ralcestraw rule provides a second test — that the contract must be construed “in the light of all the surrounding circumstances with reference to which the contract was made.” The circumstances which surrounded the incorporation of the association in this case and the entrance of the plaintiff in error into its membership and official guidance as vice-president thereof are matters of common knowledge. At the time the association was organized a reversion from the high prices previously paid for agricultural products had ensued. It is known of all men that for the past several years agriculture, no matter what the nature of the produce, has suffered from a depression of prices. The common purpose of both the plaintiff in error and the defendant in error was to obtain higher prices for his produce, in order that the plaintiff in error in common with other producers should share in the benefit to his business which would be realized from receiving the true value - of his products. The circumstances of this case differentiate it from the four classes generally recognized by text-books and each of which has been dealt with previously by this court.

“It has been said that contracts in partial restraint of trade have been upheld when they are agreements: (1) by the seller of property or business, not to compete with the buyer in such a way as to derogate from the value of the property or business sold; (2) by a retiring partner, not to compete with the firm; (3) by a partner, pending the partnership, not to do anything to interfere, by competition or otherwise, with the business of the firm; (4) by the buyer of property, not to use the same in competition with the business retained-by the seller; and (5) by an assistant, servant, or agent, not to compete with his master or employer after the expiration of his time of service. Still an agreement in restraint of trade need not fall within these divisions, to be valid.” 13 C. J. 468, § 411. U. S. v. Addyston Pipe Co., 85 Fed., 271 (46 L. R. A. 122, 29 C. C. A. 141). After providing the tests to which we have already referred, the rule in the Ralcesiraw case declares that if “the restraint contracted for appears to have been for a just and honest purpose for the protection of the legitimate interests of the party in whose favor it is imposed, reasonable as between them and not specially injurious to the public, the restraint will be held valid.” This court and all other courts, as far as we have been able to find, have recognized a distinction, ofttimes controlling, between a contract which is in partial restraint of trade and a contract which is whoEy in restraint of trade. In the Ralcesiraw case this court recognized' this distinction and stated, in the quotation last made, instances under which a contract only partially in restraint of trade may nevertheless be valid and binding. The contract before us is made in strict conformity with the permission and provisions of the'co-operative marketing act; it “appears to have been for a just and honest purpose, for the protection of the legitimate interests of the party in whose favor it is imposed” (or at least it does not lie in his mouth to say to the contrary, because he asserted this to be the truth both in his application for membership and in the contract agreeing to sell all his products). For this reason the contract is “reasonable as between them.” The last provision contained in the quotation from the Ralcestraw case states that if the “restraint contracted for . . is not specially injurious to the public, the restraint will be held to be valid.” In view of the fact that the contract is in strict accord with the act passed by the General Assembly, and this act, as we have held, is not unconstitutional, we can not hold, under the record before us, that the contract is “specially injurious to the public.” The words “the public” as here used, since the jurisdiction of the State of Georgia does not extend beyond its territorial limits, can apply only to the people of Georgia; and this court is not prepared to hold as a matter of law that a contract which might even have the effect of causing the members of the Cane Growers Co-operative Association' to receive more for their products than they have in the past would be inimical to the citizens of Georgia as a whole.

This State is largely agricultural. Agriculture forms the biggest element of its earnings and increased wealth. It must contribute more largely than anything else to the future prosperity of our State. Agricultural prosperity in the future may be largely dependent upon diversification, and a State policy of attracting part of our agricultural population to the production of cane rather than cotton might afford a necessary stimulus to the production of cane. Various considerations well understood by those versed in agriculture, of which the legislature had the right to take notice, may have induced it to hold that this partial restraint of trade would be really beneficial to the public interest. For this reason it does not appear to me “that the restraint contracted for” is “specially injurious to the public interest,” and the contract must be held to be “supported by a sufficient consideration,” and that the restraint is reasonable. Speaking in Horner v. Graves, 7 Bingham, 743, Mr. Chief Justice Tindall said: “We do not see how a better test can be applied to the question whether reasonable or not, than by considering whether the restraint is such only as to afford a fair protection to the interest of the party in whose favor it is given, and not so large as to interfere with the interest of the public. Whatever restraint is larger than necessary to the protection of the parties can be of no benefit to either; it can only be oppressive; and if oppressive, it is in the eye of the law unreasonable. Whatever is injurious to the interest of the public is void on the ground of public policy.” Having held that the restraint has not been shown to be so large as to interfere with the interests of the public, it seems clear that the restraint is no greater than is necessary to afford fair protection to the interests of the association. The purpose of that association, as stated in the caption of the act under which it was given its being, is to foster agriculture, provide a stable market, and' thereby produce better prices than heretofore for the growers of cane in southwest Georgia. The purpose of the associations would be entirely defeated by any other method of conducting their business than that which is dependent upon the contract. Unless the association can control within its territory a sufficient amount of the cane produced to affect the price and produce better prices and effect savings in distribution by holding its syrup until such times as may be most advantageous to sell, it can neither stabilize the market nor produce a higher price. Experience has shown that farmers are compelled by their necessities to sell their products as soon as produced, in order to pay debts which are due. The provision which allows the association to remove this cause of depression by advancing its members sums to discharge liens and other pressing obligations, so that the product can be held, and by the credit of the association providing its members with a credit which they perhaps do not possess, would seem would produce a new era in the fostering of agriculture. Such a new era was badly needed, in the opinion of the General Assembly; and for myself, I concur in the view of the General Assembly.

Manifestly the General Assembly can not by the passage of an act make lawful that which is forbidden by the constitution. But, as said by this court, “in all independent States and nations absolute power rests somewhere. In this country it is neither lodged with the executive nor the legislative nor the judicial branches of the government, nor with all combined; but sovereignty rests with the people of the several States. The ultimate source of legislative power is traceable to them; and in their sovereign capacity they have a right to frame laws for their own government, and for the regulation of human conduct on all matters over which exclusive power has not Ity them been delegated to the Federal government. Acting in their organized capacity, and under the forms of existing laws, they can rend asunder all bonds that are thrown around individual action, unbridle liberty, and make license as free as the ■winds of heaven, and as wild as the waves of the sea. They can, on the other hand, so frame their organic and statute law as to place upon their own necks a yoke as galling as ever serf carried under the edict of a despot. It is eminently in this sense that we live under a free government, which simply means a government created by the people, and which they are absolutely free to change or modify at their pleasure.” Plumb v. Christie, 103 Ga. 686, 693 (30 S. E. 759, 42 L. R. A. 181). Any legislation which offends this organic law emanating from the sovereign power of the people is void, and it is the duty of the courts to declare laws which offend the constitution to be unconstitutional. The ban of our constitution is upon legislation and contracts which may “encourage monopoly.” But the constitution does not define the term “monopoly,” and its definition must be supplied by the courts. Not that a State may not create a monopoly; for it has often been held that this power is within the rights of a State. In the case last cited it was said: “It has often been held that monopolies may be created, even in such business as may fall within the ordinary callings of life, where an indiscriminate conduct thereof by individuals under certain circumstances and in certain places might be injurious to the common welfare. These principles are fully discussed in Tiedeman’s Limitations of Police Power, § 105.” Also: “There is some conflict of authority upon the right of a legislature or a municipality to create a monopoly in a business legal per se, and which requires no license from the State in order to enable individuals to engage therein; but the weight of authority as well as reason seems to us to sustain the view that wherever such a power is exercised in the interests of the public health or morals, it is legitimately within the police powers of a State.” If this is true ordinarily, with how much greater force will the doctrine apply to an industry recognized everywhere as one which the public welfare demands should be continuously under the control and police regulation of the government. ' As' an instance that this principle is fully recognized in this State, we need only point to the amendment of 1913 to article 7, section 3, paragraph 3, of the constitution, whereby an exception is made in behalf of the farmers of this State, in that farm products, raised by them in a preceding-year and which they wish to hold until a better market will enable them to procure a higher price, are specially exempt from taxation, although all other forms of property are subject to taxation. The amendment is as follows: “The General Assembly shall further have power to exempt from taxation farm products, including baled cotton, grown in this State and remaining in the hands of the producer, but no longer than for the year next after their production.” Civil Code (1910), § 6554. Here is an amendment to the constitution placing the produce of the farmer, while in his hands as the producer, in the same place of exemption as are places of religious worship, burial grounds, and charitable institutions, and restricting exemption to one class, the producers; for the same property in the hands of buyer, manufacturer, or other person is subject to taxation.

With the power of the State relating to agriculture thus defined and apparent, and with the term “monopoly” left undefined in article 4, section 3, paragraph 4, of the constitution, speaking for myself, I am prepared to hold that section 33 of the co-operative marketing act is not unconstitutional because it creates a monopoly, or because the association may operate in restraint of trade. The primal question is, has the legislature the right to accomplish the result of fostering agriculture, providing an orderly mode of marketing agricultural products? If so, the doctrine stated by Mr. Justice Miller in the Slaughter-House Cases, 16 Wall. 64 (supra), applies, “that wherever a legislature has the right to accomplish a certain result, and that result is best attained by means of a corporation, it has the right to create such a corporation, and to endow it with the powers necessary to effect the desired and lawful purpose,” and that the proposition just quoted “seems hardly to admit of debate.”

6. However, even were the co-operative marketing act unconstitutional, the plaintiff in error here is not in position to take advantage of that fact. He was one of the signers of the articles of incorporation, and thereby became a member of the Cane Growers Association. If the act is discriminatory, he, as a member and officer of the association, belongs to the class in favor of which the alleged discrimination is made. He is not in position to assert that he is injured by the discrimination. The doctrine is well stated in 19 Ruling Case Law, 109, as follows: “As has been often pointed out, one who seeks to set aside a State antitrust statute as repugnant to the Federal constitution must show that he is within the class with respect to whom the act is unconstitutional, and that the alleged unconstitutional feature injures him. The objection that such a statute unlawfully discriminates in favor of certain classes can not be raised by a member of the favored class, nor by any one not affected by the invalid portion of the act.” In Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 532, 545 (34 Sup. Ct. 359, 58 L. ed. 713), it was held that “One attacking the constitutionality of a State statute must show that he is within the class whose constitutional rights are injuriously affected by the statute.” The cases of Southern Railway Co. v. King, 217 U. S. 524, 534 (30 Sup. Ct. 594, 54 L. ed. 868), Standard Stock Food Co. v. Wright, 225 U. S. 540, 550 (32 Sup. Ct. 784, 56 L. ed. 1197), and Rosenthal v. New York, 226 U. S. 260, 271 (33 Sup. Ct. 27, 57 L. ed. 212, Ann. Cas. 1914D, 71), were cited in support of this rule. Subsequently, in Mallinckrodt v. Missouri, 238 U. S. 41, 54 (35 Sup. Ct. 671, 59 L. ed. 1192), the United States Supreme Court held: “As has been often pointed out, one who seeks to set aside a statute as repugnant to the Federal constitution must show that he is within the class with respect to whom the act is unconstitutional, and that the alleged unconstitutional feature injures him.” In Owen County Society v. Brumback, 128 Ky. 137 (107 S. W. 710), the Supreme Court of Kentucky held that “If it [the act] could be held to be discriminatory, it is clear that that question can not be raised by the defendant. He has not been discriminated against. He has not been denied any privilege or immunity that is granted to any other person or class of persons, nor has he been denied the equal protection of the law.” The proceeding in the Kentucky case was under a co-operative marketing act, such as that now before us. The co-operative association there sued a grower member for injunction upon his failure to deliver tobacco. The plaintiff association was organized under the Kentucky law which permitted farmers co-operative contracts of the same nature as the contract here involved. To the same effect is the decision of the Supreme Court of North Carolina in St. George v. Hardy, 147 N. C. 88 (60 S. E. 920), where the court held that since the party making the attack was not within a class discriminated against, it would not listen to his contentions. Since the plaintiff in error is a member of the Cane Growers Association, he can not attack the constitutionality of the law under which it was organized. “It is a well established general rule that where one contracts with an alleged corporation as such, and in such manner as to recognize its corporate existence de jure or de facto, he will be estopped to deny the fact thus admitted.” 7 R. C. L. 105; Casey v. Galli, 94 U. S. 680 (24 L. ed. 307); Cahall v. Citizens’ Association, 61 Ala. 232; In re Western Bank Co., 163 Fed. 713; Weinman v. Railway Co., 118 Pa. 192 (12 Atl. 288). The same doctrine is asserted in McDonald v. Alabama Ins. Co., 85 Ala. 401 (5 So. 120), and in Beach v. Co-operative Savings Association, 10 S. D. 549 (74 N. W. 889.). In this case the plaintiff association has done business, incurred obligations, and made contracts, all for the benefit of its members. Those who have contracted with the association and any who may have become creditors have done so upon the faith of its legal organization. It follows that Harrell, being a member of the Cane Growers Association, can not attack the law of its creation. The courts will not listen to one who has helped organize this association, who has by his express contract (as appears from paragraph 18-a of the marketing agreement) stated that “this contract is one of a series, dependent for its true value upon the adherence of each and all of the growers to each and all of said contracts,” and who now attempts to deny the legal existence of the very thing which was called into being by his active assistance. To each and all of the stipulations of the contract relating to remedial procedure or to the expenses of the litigation, he has already agreed to be bound. This statement includes an agreement to an injunction and to a decree for specific performance.

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Concurrence Opinion

Beck, P. J.

I concur in the principle of law stated in the sixth division of the concurring opinion of the Chief Justice; and that being true, do not think it is necessary, to pass upon the other constitutional questions of law. I also concur in the rulings made upon the other issues in the case not involving constitutional questions ; and consequently I concur in the judgment rendered.

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Lead Opinion

Per Curiam.

1. The title of the eo-operative marketing act (Acts 1921, p. 139) is sufficiently broad to include the provisions of sections 3, 4, 5, 15, and 23 of said act; and for that reason said sections are not void as in violation of article 3, section 7, paragraph 8, of the constitution of Georgia.

2. So much of section 15 of the acts of 1921, referred to in the preceding division, as seeks to authorize the by-laws and marketing contract to fix liquidated damages and to require the members to pay all costs, premiums for bonds, expenses and fees, ■ as well as providing for injunction and a decree of specific performance, is not unconstitutional and void as being in conflict with article 1, section 4, paragraph 1, of the constitution of Georgia, in that the general laws of the State have provided for the issuing of temporary injunction, for the payment of court costs, and other provisions stated in said section.

3. An attack upon the entire act of the legislature mentioned in the preceding division, - and upon the contract upon which the suit was based, on the ground that they are null and void as being “in violation of article 4, section 1, paragraph 4, of the constitution, in that it was the intention of the plaintiff and the members forming the same to combine all of the cane products grown in southwest Georgia so as to be able to fix the price at which the cane would be sold, and be able to effect a corner of the syrup manufactured in southwest Georgia, so as to enable the association to dictate the price to be paid for such syrup by the canners who depended upon said crop for their material to operate their canneries,” is insufficient to present any question for consideration, there being no section 1 in article 4 of the constitution.

Judgment affirmed.

All the Justices concur, except Gilbert, J., absent for providential cause. 8. P. Gain, for plaintiff in error. Ira Carlisle and Hollins Randolph, contra. Aaron Sapiro, Bryan & Middlebroolcs, and Pottle & Hofmayer, for persons at interest, not parties of record.

Case Details

Case Name: Harrell v. Cane Growers Co-Operative Ass'n

Court Name: Supreme Court of Georgia

Date Published: Feb 27, 1925

Citation: 160 Ga. 30

Docket Number: No. 4171

Court Abbreviation: Ga.