Gen. No. 11,268 | Ill. App. Ct. | Oct 6, 1905
delivered the opinion of the court.
It is contended that “the formation of this Retail Coal Dealers’ Association for the mutual benefit and protection of its members was not ‘an illegal act,’ much less a criminal conspiracy” ; that “the protection of the established local dealers and merchants in any locality from competition with ‘scalpers’ and peddlers or those who have no permanent established place of business and who do not therefore pay rent and taxes for local privileges is not opposed to sound public policy; that the constitution of the association “imposes only a partial and reasonable restraint upon the business of its members” ; that the members “had a legal right for their own mutual protection” to agree together not to buy coal of wholesalers' who made it a practice to sell to those in competition with them; that threats not to deal with '"such wholesalers “are not coercive in the sense of being illegal or wrongful”; that “even if the combination or agreement was of such a character that it was void or non-enforceable on grounds of public policy, yet that does not establish that the combination or agreement was an 'illegal act’ or a criminal conspiracy at common law”; that “the expression 'an illegal act injurious to public trade’ when used to define a criminal conspiracy at common law, was understood to mean something more than an act that was simply void or non-enforceable because injurious to. public trade; and therefore this expression in the statute of 1874 must be construed in harmony with this well known common law construction”; that “it is essential to constitute the crime of criminal conspiracy that in the doing of the act. complained of the parties be actuated by criminal intend,” and that no such intent existed in this cáse; that “the Act of 1891 was designed8 expressly to provide for the punishment of all persons who become parties tó 'pools, trusts and combines,’' ”. and that this “operated to repeal so much of the general Criminal Conspiracy Statute of 1874 as provided for the punishment of parties w7ho conspired to do an illegal act injurious to the public trade in becoming parties to a 'pool, trust or combine.’ ” (K. S. p. 639-640, Sec. 269 a, Act of 1891.) It is further claimed that certain counts of the indictment are bad in failing to charge a criminal offense and for the alleged reason that “the General Conspiracy Statute of 1874 embraced and superseded all common law offenses (if any existed) for-conspiring to do any 'act injurious to the public trade.’ ” •
The contention that the Act of 1891 operated to repeal, a part of the criminal code under which certain counts of the indictment were framed is disposed of by the recent decision of the Supreme Court in the case Chicago, Wilmington and Vermilion Coal Company et al. v. The People, 214 Ill., 421" date_filed="1905-02-21" court="Ill." case_name="Chicago, Wilmington & Vermilion Coal Co. v. People">214 Ill., 421, page 445, in which it is held that there is “no repugnancy between the enactments.” In the same opinion (p. 444) that court also disposes of the contention that certain sections of the criminal code superseded or repealed all common-law offenses in relation to the regulation and fixing of prices and conspiring to do acts injurious to the public trade, and holds-“that the common-law offense of conspiracy was not abolished by such statute, but that every conspiracy which was indictable at common law before the passage of the Act was still indictable.”
The object and purposes of the Retail Coal Dealers’ Asso-' ciation, and its methods, are sufficiently apparent from its constitution and by-laws and the conceded facts. It clearly enough appears that it is a combination, the tendency and manifest intention of which are to prevent general competition and so to control the retail coal trade and enable its mem-. bers to control prices. Its object is stated in the first Article of its Constitution to be to prevent wholesalers from shipping coal direct to the consumer and small dealer; in other words, to compel such persons to pay tribute to those whom it defines. as “regular coal dealers.” To constitute such régular dealer and entitle him to membership in the Association he must possess a certain amount of capital, must own or lease a coal yard, keep a set of scales, an office open continuously during business hours involving employment of additional help, must-have storage capacity for one or more cars of coal, etc. To all others the wholesaler is forbidden to- sell coal. Doubtless there are members of the Association who have themselves risen from small beginnings. They are seeking now to shut-the door of opportunity to others who may wish to follow in their steps, to destroy the ladder upon which they have climbed in order to create a monopoly for themselves. Mine-operators, wholesale shippers and jobbers who wish to market their coal may become honorary members of the Association. If they do not become such members, however, the result-so far as the business of members of the Association is concerned is not left open to conjecture. The members of the Association pledge themselves “to purchase goods of only those” wholesale dealers “who recognize the principles of this organization,” and sell their coal “only through the legitimate channels of the trade.” It is sufficiently evident that these channels are intended to run only through the pockets of those _ whom this Association dubs “regular dealers.” Any honorary member who sells coal to any person not a regular dealer is required to pay a penalty of fifty cents a ton for anthracite and twenty-five for bituminous coal, eighty per cent, of which goes to the “regular dealer” at the point of sale. If the sale is made to a consumer in any town where there is a member of the Association the wholesale dealer ipso facto withdraws from the Association and loses the business of all its members. Complaints of all kinds go to the Executive Board and their decision is binding upon all members, honorary or regular. Power is given such Board to suspend or expel any member and there is no appeal. Thus the business of dealing in coal, wholesale and retail, in the States of Illinois and Wisconsin is placed at the mercy of an Executive Board, four members of which constitute a quorum at any meeting. It is argued that to protect “regular dealers” who pay rent and taxes, from competition with those “who do not pay rent and taxes for local privileges,” is not opposed to sound public policy. The legislation which protects established -merchants from the unfair competition of itinerant peddlers and the public, from their impositions rests upon a different basis from combinations in restraint of trade. It has never so far as we are advised been recognized as sound public policy to protect those who are able to pay more rent or taxes against legitimate competition in business of those who may be unfortunately unable to pay as much or any rent or possess as much or any taxable property. It may not in these days be an entirely novel view of sound public policy that combinations, the purpose and tendency of which are to make the rich richer and prevent the poor from bettering their condition, should be encouraged or at least not interfered with; but those who take such view are generally regarded as influenced by selfish considerations rather "than by any conspicuous hunger and thirst after civic righteousness or the public good. Sound public policy refuses to tolerate such combinations and regards them as conspiracies against the general welfare. The law regards them as unlawful and treats them as common law offenses. In People v. North River Sugar Refining Co., 2 L. P. A., 33, referred to in C. W. & V. Coal Co. v. The People, 214 Ill., 421" date_filed="1905-02-21" court="Ill." case_name="Chicago, Wilmington & Vermilion Coal Co. v. People">214 Ill., 421, on p. 442, the Supreme Court of New York said “all the cases, ancient and modern, agree that a combination the tendency of which is to prevent general competition and to control prices is detrimental to the public and consequently unlawful.”
It is argued that the constitution of the Association imposes only a partial and reasonable restraint upon the business of its members, that there was not a total restraint of trade, but only partial and in the interest of the “regular dealer,” that even without any established place of business one could engage in the coal business by paying on the coal he handled fifty cents a ton for hard coal and twenty-five cents a ton for soft coal to the regularly established local dealer to enable such dealer to maintain his place of business all the year around, that “this payment to the established local dealer removed all restrictions on competition,” and that by withdrawing from the Association he could “remove all restraint upon himself whatsoever.” In other words a dealer, wholesale or retail, can graciously be permitted to do business if he can, although contrary to the rules of this Association, provided he will pay a ruinous tribute to one of its members who is a so-called “regular dealer.” By what right, legal or moral, this Association assumes to thus levy tribute we are not advised. As said by Judge Horton in disposing of the case in the Criminal Court, “What legal or vested right have the members of said Association to the patronage of all the consumers of coal in any particular place or locality ?” The argument that this combination exercised only a partial and reasonable restraint over trade is scarcely tenable.- If it was, nevertheless it is not necessary that it should create a monopoly. It is sufficient if it tends to that end and to interfere with free competition. U. S. v. Knight, 156 U.S., 1" date_filed="1895-01-21" court="SCOTUS" case_name="United States v. E. C. Knight Co.">156 U. S., 1. It is, w'e think, clear that such a combination as that under consideration between wholesale and retail dealers and producers of coal, a necessity of life, “is an act inimical to trade and commerce and detrimental to the public and unlawful, and amounts to a common law conspiracy regardless of what may be done in furtherance of the conspiracy.” Such conspiracy to do an unlawful act is indictable at common law, even though the act itself may not be punishable as a crime. C., W. & V. Coal Co. v. The People, 214 Ill., 421-441, et seq., and cases there cited.
The case last cited disposes of most of the contentions of counsel for appellants in the case at bar, and renders it unnecessary for us to review them at length. To do so and consider in detail the views of counsel expressed in elaborate arguments covering several hundred pages would serve no good purpose. The ultimate object of the combination was to give to its members a monopoly in the retail coal business in their respective localities, thus enabling them to regulate prices independent of legitimate and healthful competition. We are of opinion that the verdict and judgment are amply justified by the evidence and the law applicable.
The judgment- of the Criminal Court will therefore be afiirmed.