79 F. 627 | U.S. Circuit Court for the District of Texas | 1897
This petition, filed by leave of the court on December 9, 1896, at Waco, in the Northern district of Texas, and subsequently transferred to Dallas for hearing, and filed there December 18, 1896, states:
That the petitioner, Wm. Grice, is a resident of the city and county of Dallas, state of Texas; that he is a citizen of the United States, and is unlawfully restrained of his liberty by John W. Baker, sheriff of McLennan county, Texas, by virtue of a capias issued out of the district court of the 54th judicial district of the state of Texas, at Waco, upon an indictment preferred in the said court against him and other citizens of the United States on the 21st day of November, 1894 (No. 871), and entitled “The State of Texas vs. John D. Bockefeller and others.” Said indictment charges that John D. Rockefeller, Henry M. Flagler, John D. Archbold, Benjamin Brewster, Henry H. Rogers, Westiey H. Tilford, Henry Olay Pierce, Arthur M. Finley, O. M. Adams, J. P. Gruett, E. Wells. Wm. Grice, F. A. Austin, and E. T. Hathaway, did unlawfully agree, combine, conspire, confederate, and engage with Wm. E. Hawkins and clivers other persons, to the grand jurors unknown, in McLennan county, Texas, in a conspiracy against trade, with the said Wm. E. Hawkins, and said other persons, creating a trust, by the combination of their capital, skifi, and acts with the said Wm. E. Hawkins and other persons, for the purpose, design, and effect to create and carry out restrictions in trade. That said indictment and prosecution has for its exclusive and only basis a certain act of the legislature of the state of Texas entitled “An act to define trusts, and to provide penalties and punishment of corporations, firms _and associations of persons connected with them, and to promote free competition in the state of Texas,” approved March 30, 1889, which act is a public law of the state of Texas. That petitioner was arrested upon a capias issued under said indictment, and entered into recognizance for his appearance, and subsequently appeared, on the 2d day of December, 1895, before the said court; and, said cause having been called for trial, the defendants who had been arrested announced a severance, and his 'co-defendant E. T. Hathaway was then placed
The petitioner hied with his petition his exhibits as follows:
fl) Copy of indictment preferred in said cause against your petitioner and others. (2) Copy of judgment of the district court of the 54th judicial district, adjudging his co-defendant Hathaway guilty. (3) A copy of the brief and argument of your petitioner’s co-defendant Hathaway in the court of criminal appeals of the state of Texas. (4) A copy of the opinion of the said court of criminal appeals of the state of Texas. (5) And petitioner refers to the record of this court in matter of the application of ®x parte ®. T. Hathaway, and prays that it may he considered a part and parcel of this petition. And your petitioner prays that these papers filed, herewith may he read and considered by the court upon final hearing hereof; also, as a part of this, his petition for habeas corpus. And, as in 'duty hound, your petitioner will ever pray/
Said petition was duly sworn to by the said petitioner, William Grice, upon the 9 th day of December, Í898, in the presence of Thomas P. Stone, a notary public for McLennan county, Tex. As to the papers filed with and made a part of this petition, the indictment contains six counts, and covers every phase and feature of the said act under which it is drawn. The judgment of the district court of the Fifty-Fourth judicial district of the state of Texas follows the verdict therein. A copy of the brief and argument of petitioner Hathaway in the court of criminal appeals of the state contains the usual matters embodied in such a brief, including the rulings of the trial judge, together with the opening argument of counsel for the state, made at the trial. The copy of the opinion of the said court of criminal appeals of the state of Texas, showing that the court decided:
(1) The judgment is reversed and the cause remanded because the court charged on a phase ot the case not supported by any allegation in the indictment, and because the evidence wholly fails to sustain this verdict. (2) That the decision of the constitutional questions raised by appellant Hathaway was not necessary in that case. (3) That the presumption would be indulged that the decision of the supreme court of the state of Texas sustaining the con-stitutionality of said act was correct.
The petition of E. T. Hathaway for habeas corpus, and the return and amended return of the sheriff thereof, shows substantially the facts as alleged above.
Upon said petition and exhibits being filed, this court on December 9,1896, granted the writ of habeas corpus prayed for, which was duly served on the same day upon John W. Baker, sheriff oil McLennan county, Tex., who upon the same day produced in open court, as directed, the said William Grice, and answered that he held him in custody by virtue of a capias issued out of the district court of the Fifty-Fourth judicial district of the state of Texas upon an indictment (No. 871) entitled “The State of Texas vs. John D. Rockefeller et al.” Said indictment charged said parties with having engaged in a conspiracy against trade. In violation of the act of the legislature of the state of Texas entitled “An act to define trusts,” etc. On the 11th clay of January, 1897, said sheriff of McLennan
Upon the said petition and exhibits, answer and amended answer, and replication thereto, hearing was had.
First, as to petitioner’s demurrer to plaintiff’s plea that he was in the hands of the sheriff by collusion with his sureties at the time of the suing out of the writ of habeas corpus, the court thinks the demurrer should be sustained. While it was early decided in Respublica v. Arnold, 3 Yeates, 263, that the law authorizing the issuance of a writ of habeas corpus did not apply to a person out on bail, and could not be directed to the bail of an offender; and in Wales v. Whitney, 114 U. S. 564, 5 Sup. Ct. 1050, that, in order to make a case for habeas corpus, there must be actual confinement, or the present means of enforcing it, mere moral restraint not being sufficient; also, in the case in 6 Mart. (La.) 569 (Dodge’s Case), and Rex v. Kessel, 1 Burrows, 638, by Lord Mansfield, to the same effect,—yet it has been held in Taylor v. Taintor, 16 Wall. 366, that: When bail is given the principal is regarded as delivered to the custody of his sureties, and their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him, and deliver him up in their discharge, and, if that cannot be done at once, they may imprison him until it can be done. The seizure is not made by virtue of new process; none is needed. The bail have
“The sureties had the control of Ms parson. They were bound to keep him within their jurisdiction, and have liis person ready to surrender when demanded. Though beyond flic jurisdiction of Connecticut, he ivas still in the hands of the law of that state, and held to answer there for the cítense with which he was charged.”
But the petitioner here was in the custody of the officer. He so answers in Ms return, and Ms answer must be taken as true. The petitioner had the perfect right, when first arrested, to refuse to give bail. His sureties had an equal right to surrender him to the state, after it was given, for any cause whatever, and it is not within the province of the respondent, to question the purpose in either case. The court is of the opinion that he had the right to do either one or the other, for the purpose of testing the constitutionality of the law under a writ of habeas corpus, when all the facts of this case are considered.
Two principal questions remain: First, the right of this court to take jurisdiction of this case; second, the constitutionality of the law.
'The court is not inclined to question the contention of the principles laid down by the state, as embodied in the decisions cited by its representatives on the first point, to wit. that the general rule is that parties being prosecuted in state courts will not be released on writs of habeas corpus, but will be left to reach the supreme court of the United States by writ of error. This rule is abundantly sustained by numerous decisions cited, and is scarcely questioned by the relator himself. But it is equally as well established by the same references that the federal court has the power to do so, if special circumstances should require; that it possesses a discretion in the matter which must be governed-by the facts in each case. A brief review of a few of the cases cited will establish the above principle. In the leading case of Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. 734, Justice Harlan, speaking for the court, while refusing to reverse the exercise of the discretion of the circuit court, affirms the power of the federal courts to issue writs of habeas corpus of prisoners held by (he states, and on page 248, 117 U. S., and page 738, 6 Sup. Ct., in that case, says:
“The statute evidently contemplated that cases might arise when the power thus conferred should be exercised during the progress of the proceedings instituted against the petitioner in a state court, or by or under authority of a state, on account of the very matter presented for determination by the writ of habeas corpus.”
And on pages 249 and 250, 117 U. S., and page 739, 6 Sup. Ct.:
“We are therefore of opinion that the circuit court has jurisdiction, upon writs of habeas corpus, to inquire into the cause of the appellant's commitment, and to discharge him, if lie be hold in violation of the constitution.”
But adds:
“As it does not appear that the circuit court might not, in its discretion, and consistently with the law and justice, have denied the applications for the writ at the time they were made, we are of the opinion that the judgment in*634 each ease must be affirmed, but without prejudice to the right of the petitioner to renew his application to that court at some future time, should the circumstances render it proper to do so.”
In Re Wood, 140 U. S. 278, 11 Sup. Ct. 738, the court refuses to review the exercise of the discretion of the circuit court in refusing to grant a writ of habeas corpus, but affirms the doctrine of the authority to grant such writ. In Cook v. Hart, 146 U. S. 183, 13 Sup. Ct. 40, the above doctrine is affirmed in the following language:
“We are unable to see in this case any such special circumstances as were suggested in the case of Ex parte Royall as rendering it proper for a federal court to interpose before the trial of the ease in the state court. While the power to issue writs of habeas corpus to state courts which are proceeding in disregard of rights secured by the constitution and laws of the United States may exist, the practice of exercising such a power before the question has been raised or determined in the state courts is one which ought not to be encouraged. Should such rights be denied, his remedy in the federal court will remain unimpaired.”
Mr. Justice Jackson, speaking for the court in Re Frederich, 149 U. S. 73, 13 Sup. Ct. 795, says:
“While the writ of habeas corpus is one of the remedies for the enforcement of the right of personal freedom, it will not issue as a matter of course, and it should be cautiously used by the federal courts in reference to state prisoners. Being a civil process, it cannot be converted into a remedy for the correction of mere errors of judgment or of procedure in the court having cognizance of the criminal offense.”
He affirms, however, the power of the federal court to grant such writ, in certain cases, in advance of the trial, but says that that discretion should be subordinate to any special circumstances requiring immediate action; and, when the state courts shall have finally acted upon the case, the circuit court has still a discretion whether, under all the circumstances existing, the accused, if convicted, shall be put to his writ of error from the highest court of the state, or whether it will proceed; by writ of habeas corpus, summarily to determine whether the petitioner is restrained of his liberty in violation of the constitution of the United States.
In New York v. Eno, 155 U. S. 90, 15 Sup. Ct. 30, it is decided that the United States should refuse to issue writ of habeas corpus unless it also appears that the case is one of urgency. When the claim of the accused of immunity from prosecution in the state court has been passed upon by the highest court of the state of Hew York in which it could be determined, he may then, if the final judgment of that court be adverse to him, invoke the jurisdiction of this court for his protection in- respect to any federal rights asserted by him, but this may be denied by such judgment.
In Re Belt, 159 U. S. 100, 15 Sup. Ct. 988, Chief Justice Puller, speaking for the court, says:
“Ordinarily the writ will not lie where there is a remedy by writ of error or appeal, but in rare and exceptional eases it may be issued, although such remedy exists.”
In Re Swan, 150 U. S. 648, 14 Sup. Ct. 228, the same judge, delivering the opinion for the court, says :
“We reiterate what has so often been said before, that the writ of habeas corpus cannot be used to perform the office of writ of error or appeal; but when*635 no writ of error or appeal will lie, if a petitioner is imprisoned, or under a judgment of the circuit court wliieh lias no jurisdiction of the person or of the subject-matter, or authority to render tlie judgment complained of, then relief may be acconhul,”—citing In re Frederich, 149 U. S. 70, 13 Sup. Ct. 793, and In re Tyler, 149 U. S. 164, 13 Sup. Ct. 785.
The above cases not only establish the general rule insisted upon by the state, hut also the exceptions thereto, and -refute the argument made bv the state that the only exceptions to that rule were stated in Whitten v. Tomlinson, 360 U. S. 243,16 Sup. Ct. 297.
It is insisted by the state that this is a case where the relator stands indicted In the ordinary way in the state court, and before trial, in which his rights have not been determined, and that, therefore, under the general rule referred to above in regard to the jurisdiction of tlie federal court and the exercise of its discretion, it will not take jurisdiction of the case. What are the facts that this court is called upon to consider on this question of jurisdiction? First, that the petitioner is indicted under this “anti-trust law” in the same indictment with more than a dozen others, some of whom are charged with the commission of crimes in other slates than that of Texas. That one of the petitioner’s co-defendants has been tried and convicted in the district court of the Fifty-Fourth judicial district of Texas, and appealed his case to the court of last resort in said state, raising the questions of (he constitutionality of the law and the jurisdiction of the state. That said court of last resort granted a new Inal, and remanded the co-defendant, for the reason (hat there liad been no testimony offered to sustain a verdict of guilty, and, while deciding it was unnecessary to pass upon the constitutional questions raised, referred favorably to decisions of the supreme court of the state in which the anti-trust law had been sustained in this regard. Said co-defendant was held by the said district court for nearly six months before the state discovered that it had no evidence upon which to hold him longer, and said discovery was only made after the writ of habeas corpus had issued from this court, and he had been brought in for the purpose of having the question of the constitutionality of said law determined. That since the trial of co-defendant Hathaway, in December, 1895, this petitioner has never been called for trial, nor given any chance to have his rights determined by said court. That'the law in question makes an offense under it a felony, and prevents the petitioner from giving bond after conviction, and compels him to submit to incarceration during all the time required for an a p-peal to the court of criminal appeals, and from there to the supreme court of the United States, should it become necessary. These facts, taken together with the rulings of the trial judge in the Hathaway case, as well as the argument of counsel to the jury permitted therein for the state, constitute circumstances under which this court is called upon to exercise its discretion in assuming jurisdiction in a writ of habeas corpus. While the facts that might be produced in the si,ate court on the trial of petitioner might be entirely different from those that the state was able to offer at the trial of Hathaway, judging from the record of the evidence and the rulings of the court, and the wild harangue permitted hv the state’s
“Therefore it is often the proper way to decline to allow the writ, leaving the party to enforce his rights in the state courts. So it is argued that, if it be true that these ordinances are in conflict with the federal constitution, the petitioner has his remedy. He can appeal his case from the police to the district court, from there to the supreme court of the state, and thence to the supremo court of the i'nited States. While that is true, yet he has no adequate relief in that way. He is now under sentence, and he cannot appeal without bond. He will be subjected to trial in the district court, possibly to an inquiry in the supreme court of the state, and Anally in the supreme court of the United States. He must bear the expense and suffer the delay. This is not a casi' prior to trial and judgment. It is a case after irial and after judgment. He has experimented with the state court, and it has decided against him. While he has, of course, the right to appeal, yet this is a burden, and personally to him it is an inadequate protection to say, ‘You can appeal and go through that channel to the supreme court of the United States.’ But that is not the only consideration. If These ordinances are invalid, they are invalid because of an attempt to interfere with commerce, and prevent the free exchange of commodities between citizens of another state and those of this city. Few persons can stand the expense of litigation running through ihafc channel to the supreme court. Length of time would pass before the judgment of that court could be obtained, in the meantime, if these ordinances are enforced,—not only against this petitioner, but against whoever may see At to engage in this business.— there is an interference with exchange of commodities between the citizens of other states and these of this city, and the. result would be to stop such traffic. Now, when that would be the natural result, when that is declared to be the. intended purpose of this legislation, litis court may, in the exorcise of its discretion, properly hold, after a. case has passed to judgment in the state court, that the party has a right to a speedy inquiry and determination in the federal court as to whether such ordinances are in conflict, with the constitution of the United .States. The public as well as the individual are interested in a speedy settlement of this matter.”
The act in question, of March 30, 3889, of (.he state of Texas, is as follows:
“1. A trust is a combination of capital, skill, or acts by two or more persons, firms, corporations or associations of persons, or of either two or more of them, for either, any, or all of the following purposes: First, to create or carry out restrictions in trade; second, to limit or reduce the production, or increase or reduce the price of merchandise or commodities; third, to prevent competition in manufacture, making, transportation, sale or purchase of merchandise, produce or commodities; fourth, to fix at any standard or figure whereby its price to the public shall be in any manner controlled or established, any article or commodity of merchandise, produce, or commerce intended for sale, use, or consumption in this state; fifth, to make or enter into, or carry out or execute any contract, obligation, or agreement of any kind or description, by which they shall bind or have bound themselves not to sell, dispose of, or transport any article or commodity or article of trade, use, merchandise, commerce, or consumption, below a common, standard figure, or by which they shall agree in any manner to keep the price of such article, commodity, or transportation at a fixed or graduated figure, or hy which they shall in any maimer establish or settle the price of any article, or commodity, or transportation between themselves and ethers, to preclude a free and unrestricted competition, among themselves or otiters, in the sale or transportation of any such article or commodity, or by which they shall agree to pool, combine, or imite any interest that they may have in connection with the sale or transportation of any such article or commodity that its price might in any manner he affected.”
“0. Any violation of either or all of the provisions of this act shall be, and. is hereby declared a conspiracy against Irado, and any person who may be. or may become engaged in any such conspiracy, or take part therein, or aid*638 or advise in its commission, or who shall, as principal, manager, director, agent, servant or employe, or in any other capacity, knowingly carry out any of the stipulations, purposes, prices, rates or orders thereunder, or in pursuance thereof shall be punished by fine, not less than fifty dollars, nor more than five thousand dollars, and by imprisonment in the penitentiary, not less than one, nor more than ten years, or by either such fine or imprisonment. Bach day during a violation of this provision, shall constitute a separate offense.
“7. In any indictment for an offense named in this act, it is sufficient to state the purposes or effects of the trust or combination, and that the accused was a member of, acted with, or in pursuance of it, without giving its name or description, or how, when or where it was created.
“8. In prosecutions under this act, it shall he sufficient to prove that a trust or combination, as defined herein, exists, and that the defendant belonged to it or acted for, or in connection with it, without proving all the members belonged to it, or proving or producing any article of agreement or any written instrument on which it may have been based, or that it was evidenced by any written instrument at all. The character of the trust or combination alleged, may be established by proof of its general reputation as such.
“9. Persons out of the state may commit and he liable to indictment and conviction for committing any of the offenses enumerated in this act, which do not in their commission, necessarily require a personal presence in this state, the object being to reach and punish all persons offending against its provisions, whether within or without the state.
“10. Each and every firm, person, corporation or association of persons, who shall in any manner violate any of the iwovisions of this act, shall, for each and every day that such Violation shall be committed or continued, forfeit and pay the sum of fifty dollars, which may be recovered in the name of the state of Texas, in any county where the offense is committed, or where either of the offenders reside, or in Travis county. And it shall be the duty of the attorney general or the district or county attorney, to prosecute for and recover the same.”
“12. The provisions hereof shall be held cumulative of each other, and of all other laws in any way affecting them now iu force in this state.
“13. The provision of this act shall not apply to agricultural products or live stock while in the hands of the producer or raiser.”
That portion of the fourteenth amendment of the constitution of the United States referred to in the argument is the latter part of section 1, and is as follows:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, or deny to any person within its jurisdiction the equal protection of the law.”
While the objection of the petitioner to the act in question, that it is invalid and inoperative as a penal enactment, by reason of its failure to prohibit trusts and declare them illegal, and because of the further failure of said act to declare or propose any punishment, may he well taken in that strict construction required for criminal statutes, yet this objection, if good, can readily be remedied by the legislature; and the supreme court of the state have, in some of their decisions, read into it the intention of the legislature to complete its meaning. It were perhaps better to pass this objection without further comment, in view of the fact that it is not the vital, constitutional question before the court. The fifth paragraph of the said act, in which it is attempted to claim, jurisdiction for offenses committed outside of the state of Texas, is so absurd that a denial thereof is scarcely necessary. It has been decided in emphatic language by Chief Justice Taney, in U. S. v. Booth, 21 How. 524, as follows:
*639 “No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued, and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.”
This principle is elementary, and not only common law, but the commonest of common sense.
It has been properly suggested that, should this feature of this act be carried out and administered, it would be unnecessary for any other state or the nation at large to have any other laws upon the subject, as all persons within the limits of the United States could be regulated in their dealings and in the conduct of their business according to the wishes of the legislature of Texas. The state, in its criminal jurisdiction as to acts committed within its own boundaries, and within the limits prescribed by the federal constitution, is sovereign, and its process should not he interfered with where it does not contravene the said constitution; but, beyond the boundaries of the state, it has no more authority in New York, Missouri, or Ohio than it has in Great Britain or Austria, and that part of the act which proposes this extraterritorial jurisdiction is absolutely null and void. But, under some of the decisions, we think it may properly be contended that paragraph 5 of this act can be omitted as unconstitutional without affecting the remainder.
The vital question, and the most important in this case, remains: Whether or not the said act violates that portion of the fourteenth amendment to the constitution of the United HI ates above, referred to, in that it deprives its citizens of liberty and property without due process of law; and, second, it denies to a considerable number of its citizens the equal protection of the law. This is not a question of the right of taxation, nor is it a question of police power of the state io suppress or regulate nuisances or control the liquor traffic, foreign or domestic. But the two plain questions squarely raised are: First, can the state of Texas prohibit all contracts, of whatever character or nature, among its citizens, when they tend to contravene the intended prohibition of the act? And, second, if they can do so, is it class legislation to exempt 80 per cent, of the whole population from the pains and penalties of the said act, when dealing with the agricultural products or live stock in the hands of the producer or raiser? These are the two vital questions involved in this case.
In regard to the first proposition, the complainant contends that the act is violative of the fourteenth amendment to the constitution of the United Htates, because it denies to citizens of the United States the right to make valid contracts with respect to their business and property, and deprives them of the right of their property in that respect, as well as liberty, without: due. process of law. Home difficulty has been expressed by courts in finding the exact and specific definilion of the expressions "due process of law,” and the “law of the land.” The constitution itself declares:
“Tills constitution, and laws of the United States which shall be passed in pursuance thereof, and all treaties made,'or which shall be made, under the authority of the United States, shall be the supreme law of the land, and judges in every state shall be bound thereby, anything- in the constitution or laws of any state to the contrary notwithstanding.”
“¡Vo proposition is more firmly settled than that it is one of the fundamental rights and privileges of every American citizen to adopt and. follow such lawful and industrial pursuits, not injurious to the community, as he may see fit, without unreasonable regulation or molestation. There is no more sacred right to citizenship than the right to pursue any lawful employment in a lawful manner. It is nothing more nor less than the sacred right of labor.”
The samé sentiment is affirmed in the Slaughterhouse Cases, 16 Wall. 36, and other decisions.
It is not necessary to argue that the constitutional privileges which protect the citizen in his life, liberty, or property entitle him to raise, produce, and manufacture articles of general use; buy and sell; to fix and limit the amount of any article which he will produce or manufacture; to increase or reduce the amount so produced or manufactured at his own will, within the limits of his ability; to fix and limit the price at which he will buy and sell; to bargain and agree with others upon prices, so far as it may be necessary in the business of buying and selling; in fact, to do anything and enter into all contracts usual and necessary in the ordinary avocations of production, manufacture, and trade. Heither the state nor the national legislature possesses any right to limit these natural privileges of contracting or conducting business. Any law which undertakes to abolish these rights, the exercise of which does not involve infringement upon the rights of others, or to limit the exercise thereof beyond what is necessary to provide for the public welfare and general security, cannot be included in the police power of tlie government. “The right of liberty embraces the right of man to exercise his faculties and follow any lawful avocation for the support of life.” Bertholf v. O’Reilly, 74 N. Y. 515. “Liberty,” in its broad sense, as understood'in this country, means the right not only of freedom from servitude, imprisonment, or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. People v. Marx, 99 N. Y. 377, 2 N. E. 29; People v. Gillson, 109 N. Y. 389,17 N. E. 343. ' “The legislature caunot, under the pretense of exercising the police power, or under an37 other claim or pretense, enact laws prohibiting harmless acts not concerning the health, safety, or welfare of society, and the courts may examine into and annul such illegal legislation.” Toledo, W. & W. Ry. Co. v. City of Jacksonville, 67 Ill. 37; Hey Sing Ieck v. Anderson, 57 Cal. 251. “Whenever the prosecution of a particular calling threatens damage to the public or to other individuals, it is a legitimate subject for police regulation, to the extent of preventing the evil, but it is strictly a judicial question whether the trade or calling is of such a nature as - to require or justify police regulation.” Town of Lakeview v. Rose Hill Cemetery Co., 70 Ill. 192. It is also a judicial question
From the title of the act, “Conspiracies against Trade,” and “Trusts,” as well as from the argument for the state, it would seem to be the impression that the ad; was intended only to prevent oppressive and unreasonable combinations. There is no such limit, however, within its four corners, it embraces the combination of two or more persons; consequently, the partnership of two persons. Neither is there any limitation to the amount of capital combined with skill and ads. A small capital, with a minimum of skill, is as much prohibited as the largest amount. We are not permitted to read any such explanation into it, but must take it as the legislature furnished it, and with such construction as the rules of law put upon it. The courts have no more power to exclude what is embraced in it than to include what is not contained in the plain language of the act. Then it is declared that the prohibited coxn
■A few citations showing the law as established by the federal courts, as compared with the Texas act, may he instructive in this connection. The case of U. S. v. Trans-Missouri Freight Ass’n will bear careful'perusal in this connection. The opinion of Biner, district judge, is reported in 53 Fed. 441, and of Sanborn, circuit judge, in 7 C. C. A. 15, 58 Fed. 63. The argument in these opinions is to demonstrate that contracts which restrict competition are not necessarily in restraint of trade, and therefore not embraced in the federal act. The same arguments conclusively demonstrate that any laws preventing all contracts which prevent competition are infringements of the liberty of the citizen. After reviewing the cases which apparently condemn restrictions of competition, Judge Sanborn says (page 74, 7 C. C. A., and page 70, 58 Fed.):
“But in none of these cases were they required to hold, and in none of them did they hold, as we understand the opinions, when read in relation to the facts of the cases, respectively, that every restriction of competition by contracts of competing dealers or carriers was illegal.”
The learned judge then cites a score of cases in which contracts in restriction of competition are held to be illegal, and sustaining his opinion:
“That it is not the existence of the restriction of competition, but the reasonableness of that restriction, that is the test of the validity of the contracts that are claimed to be in restraint of trade.”
This case is followed in Dueber Watch-Case Manuf'g Co. v. E. Howard Watch & Clock Co., 14 C. C. A. 14, 66 Fed. 637:
“Excessive competition may sometimes result in actual injury to the public, and competitive contracts to avert personal ruin may he perfectly reasonable. It is only when such contracts are publicly oppressive that they become unreasonable, and are condemned as against public policy.”
Also, Leslie v. Lorillard, 110 N. Y. 519, 18 N. E. 363, in which the court says:
“It does not think competition invariably a public benefaction, for it may he carried on to such a degree as to he an evil. It is perfectly legitimate to combine capital for all the mere purposes of trade for which capital may, apart from combination, he legitimately used in trade.”
If this right to combine exists, the right to do ordinary business, such as fixing prices, changing prices, agreeing on productions, etc., must follow, and all these things constitute the liberty of the citizen. The vice of the act in question is that it attempts to prevent too much. It does not stop at reasonable limits. It is not content with making criminal general restraint of trade, but it makes criminal all restrictions of trade. It is not content with affixing penalties to acts or contracts which unreasonably restrict competition; it condemns any agreement or arrangement which prevents competition between two or more persons entering into it. It not only prevents competitors from oppressing the public by unreasonable agreements as to production and prices; it also prevents persons associated in interest, joint own
The next question is, does this act of March 30, 1889, deprive any citizen or class of citizens of the equal protection of the law? The fourteenth amendment of the constitution, in declaring that no state shall deny to any person within its jurisdiction the equal protection of the law, imposes a limitation upon the exercise of all the powers of the state which can touch the individual or his property. Whatever the state may do, it cannot deprive any one within its jurisdiction of the equal protection of the laws, and by “equal protection of the laws"’ is meant: equal security under them to every one,- tinder similar terms, in his life, his liberty, his property, and in the pursuit of happiness. It not only implies the right of each to resort, on the same terms with others, to the courts of "the country for the security of his person and property, the prevention and redress of wrongs, and the enforcement of contracts, but also his exemption from any greater burdens and charges than such as are equally imposed upon all others under like circumstances. This subject of equality before the law is a fundamental principle of English and American liberty, which not only has been held sacred in all latter-day constitutions, state and federal, but the principle has been guarded by the courts with jealous watchfulness, to see that the citizen may have guarantied to him tills inestimable privilege and condition, Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357; Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064; Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231; Ex parte Virginia, 100 U. S. 339; Duncan v. Missouri, 152 U. S. 382, 14 Sup. Ct. 570. The supreme court of the United Rtates, in an unanimous opinion on the equality of the citizens, in Dent v. West Virginia, above, says: ,
“Tlie great purpose of the requirement is to exclude everything arbitrary or capricious in legislation affecting the rights of the citizen.”
The same court, speaking through Justice Matthew’s, in Yick Wo v. Hopkins, supra, says:
“When we consider the nature and the theory of cur institutions of. government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not*646 mean to leave room for the play and action of purely personal and arbitrary power.”
And the same court in Barbier v. Connolly put the same thought’in the following language:
“These provisions are undoubtedly intended that there should be no arbitrary spoliation of property, but that equal protection and security should be given to all, under like circumstances, in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one, except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition; and that, in the administration of justice, no different or higher punishment should be imposed- upon one than such as is prescribed to all for like offenses.”
We do not mean to say by this that the state of Texas does not have the power to prescribe regulations to promote the health, peace, morals, education, and good order of its people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity. From the very necessities of society, legislation, sometimes of a special character, having these objects in view, must obtain in certain districts; and special burdens are sometimes necessary for general benefits, such as for supplying water, preventing fires, lighting districts, clearing streets, opening parks,' and many other objects. As said by the courts, occasions for these pui*poses may press with more or less weight on one than upon another; but they are designed not to impose unequal or unnecessary restrictions upon any one, but to promote, with as little inconvenience as possible, :he geheral good. Though, in many respects, necessarily special in their character, these, in proper limitations, do not furnish just grounds of complaint, if they operate alike upon all persons and property under the same circumstances and conditions. This statute under discussion is clearly class legislation, discriminating against some and favoring others. It is not that chai’acter of legislation which, in carrying out a public purpose, is limited in its application, and, within the sphere of its operatioh, affects alike all persons similarly situated. It may affect, and does affect, individuals of the same class in an opposite way. It favors some individuals of a certain class, and denounces other individuals of the same class. This statute exempts no class. On the contrary, it seeks to exempt certain classes of property, which is carrying the doctrine beyond any case to which we have had access. All property in the state is entitled to equal protection, and no special property is entitled to, or ought to receive, any special favors. Discrimination may be as potent against the citizen, in the direction of his property, as if aimed directly against himself personally. The right to hold or sell property, and to make agreements and contracts concerning it, which may be believed by the owner to be for his betterment, is the most essential right of
But it is contended upon the part of the. state that the act is valid in restraint of trade on the ground of public policy; that combinations in restraint of trade are public acts. An additional reason-against the law in this particular, is that, if that be true, all of the acts in restraint of trade are not public, but many of them are private; and, when we look closely to the object of the act, it will be seen that the business of the fanner, in growing vegetables, grain, cotton, wool, or meat, is no more a private occupation than that of the shoemaker, the blacksmith, or the bricklayer. If the anti-trust act of 1889, under discussion, applied only to those occupations where the business implies a trust or public duty, such as railways, telegraphs, telephones, etc., then the argument might be plausible that it is not class legislation, but such is not the case. The penalties are visited not only upon those exercising a public trust or duty, but upon the body of private citizenship, composed of artisans, mechanics, professional men, traders, and the like, giving advantage to certain persons that it refuses to others. Judge Sirirpldns, in the case of Railway Co. v. Wilson (Tex. App.) 19 S. W. 913, in discussing this question, said:
“In those occupations where the business implies a trust or public duty, the government 1ms the power to see that the trust is not abused and the duty is properly performed. On this principle, statutes have been upheld that regulate the charges of railway companies, elevator, telephone, telegraph, and other companies, haokmen, warehousemen, mills, etc.; but we are aware of no well-considered case on which a statute has been upheld that undertook to regulate the dealings between employer and employe.”
The exemption of agricultural products in the hands of the original producer and raiser exempts, upon a rough estimate, four-fifths of the people of Texas from the operation of this act, because four-fifths of the people of Texas are engaged in the business of producing and raising agricultural products and live stock. The penalties are visited upon the remaining one-fifth of the people, without regard to any particular class. This one-fifth comprises all classes and conditions not heretofore exempted. And this in the face of the constitutional guaranties, state and federal, of perfect equality of the citizen before the law. Even in the matter of labor the iniquitous character of the enactment under discussion is apparent. This statute makes no exemption of labor, or of the products of labor. Under its terms and provisions, the laborer is subjected to punishment for doing the very act that the landowner or farmer is authorized to do. The original producer, if a farmer, has authority to combine to fix prices, restrict trade, build up monopolies, while the original producers in other lines of labor are denounced for combining. The agricultural products of the farmer are the fruits of his labor, but no more so than the manufactured articles of the workingman are the fruits of his labor. The blacksmith, the carpenter, and all other artisans purchase their raw material, and the manufactured products constitute the fruits of their
“The rights of every individual must stand or fall hy the same rule of law that governs every other member of the body politic, or land, under similar circumstances; and every partial or private law which directly proposes to destroyer affect individual rights, or does the same thing hy affording remedies leading to similar consequences, is unconstitutional and void. Were it otherwise, odious individuals or corporate bodies would be governed by one law; the most of the community, and those who made the law, hy another; whereas a like and general law, affecting the whole community equally, could not have been passed.” “The idea of people, through their representatives, making laws whereby are swept away the life, liberty, and property of one or a few citizens, by which neither the representatives nor their other constituents are willing to he hound, is too odious to he tolerated in any government where freedom has a name. Such abuses resulted in the adoption of the Magna Oharta in England, which is, and for centuries has been, the foundation of English liberty. Its infraction was a leading cause ‘why we separated from that country, and its value as a fundamental rule for the protection of the citizen against legislative usurpation was the reason of its adoption as a part of our constitution.”
This law that deprives the citizen of many of his rights of contract, and that seeks to divide citizens, not exactly by the calling they follow, but hy the source of the property they-hold, and exempts 80 per cent, of them from the penalties it visits upon the remainder, is not •sustained by any good reason or excuse; is not just; is utterly without support in law, and can have no just purpose; is vicious class legislation, depriving the citizen of his constitutional right of life, liberty, and property without due process of law, contrary to the law of the land; and is therefore declared to be null and void. The relator is discharged.
