249 Mo. 702 | Mo. | 1913
Lead Opinion
This was a suit instituted in the circuit court of the city of St. Louis, by the respondent against the appellant, to have its charter forfeited for failure to make and ñle with the Secretary of State, an anti-trust affidavit, as required by sections 10322 and 10323, Eevised Statutes 1909, regarding pools, trusts, conspiracies and discriminations.
A trial was had before the court without the intervention of a jury, which resulted in a decree in favor of the respondent forfeiting the charter of the appellant as prayed.
In proper time all necessary steps for an appeal were duly taken, and thereafter the cause was appealed to this court.
The petition filed in the cause was as follows:
“State of Missouri, City of St. Louis, ss.
“In the Circuit Court of the City of St. Louis, October Term, 1910.
*711 “The State of Missouri, at the Relation of Seebert G. Jones, Circuit Attorney of the City of St. Louis, Relator, v. Mallinckrodt Chemical Works, a Corporation, Respondent.
“Comes now Seebert G. Jones, circuit attorney within and for the city of St. Louis, in the State of Missouri, and states that the respondent is. and at. all times hereinafter mentioned was, a corporation duly organized, incorporated and existing, under and by virtue of the laws of Missouri, located and transacting and conducting business in the city of St. Louis and State of Missouri, and as such corporation, respondent is amenable to the provisions of chapter 98 of the Revised Statutes of Missouri of 1909, entitled ‘Pools, trusts, conspiracies and discriminations.’
“Relator states that on or about the first day of July, A. D. 1910, the Secretary of State of the State of Missouri, in obedience to the requirements of section 10322 of said Revised Statutes, duly addressed and mailed to the president of Mallinckrodt Chemical Works, 3600 North Second street, St. Louis, Missouri, the respondent incorporated company, a letter of inquiry as to whether the said respondent corporation had all or any of its business or interest in or with any trust, combination or association of persons or stockholders, as named in the provisions of article 1 of said chapter 98 of said Revised Statutes, and requiring an answer, under oath, of the president, secretary, or managing officer of said respondent company, and said Secretary of State duly inclosed in said letter of inquiry a form of affidavit, being the same form required by the laws of the State of Missouri and prescribed and set forth in said section 10322 of said Revised Statutes and being in words and figures as follows, to-wit:
*712 (Here the petition sets forth a full copy of the form of affidavit prescribed in section 10322.)
“And thereupon it became the duty of said respondent corporation to make answer to such inquiry by filing or causing to be filed with the said Secretary of State the affidavit prescribed in and required by sections 10322 and 10323 of said Revised Statutes, but respondent corporation, unmindful of its said duty, in disregard of the statutes and laws of this State in respect to pools, trusts and conspiracies and discrimina-tions and in violation of said sections 10322 and 10323, has failed and refused, and still fails and refuses, to make answer to such inquiry, under oath of its president, secretary, treasurer or managing officer, as required by said sections, and has failed, neglected and refused, and still fails, neglects and refuses to file or cause to be filed with the said Secretary of State such affidavit, described and required by said sections to be made and filed, although more than thirty days have elapsed since the date of the mailing of such inquiry to respondent corporation by said Secretary of State, as aforesaid.
“And relator further states that the fact of such failure of respondent corporation and its officers to make such answer and file such affidavit in response to said letter of inquiry, within thirty days from the mailing thereof, has been by said Secretary of State duly certified to relator, the said circuit attorney of the city of St. Louis.
“Relator states that by reason of the premises respondent has forfeited'its charter and subjected itself to the forfeitures and penalties imposed by sections 10322 and 10327 of said Revised Statutes.
“Wherefore, relator prays that respondent’s charter and its certificate of incorporation be declared and adjudged forfeited, void and of no effect, and that the*713 costs of this proceeding he adjudged against respondent.
“Seebert G. Jones,
“Circuit Attorney of the city of St. Louis.
“Forest G. Ferris,
“Assistant Circuit Attorney.”
The appellant filed a demurrer to the petition and assigned numerous grounds therefor, which was by the court overruled; and thereupon the defendant an-, swered, the substance of which is as follows:
1. Plaintiff has no legal capacity to sue in manner and form as in said petition attempted;
2. There is a defect of parties plaintiff;
3. This defendant cites the Fourteenth Amendment of the Constitution of the United States as a bar to the allegations of said petition;
4. This defendant cites section 23 of the second article of the Constitution of the State of Missouri as a bar to the allegations of the petition;
5. Defendant for further defense admits that, on the first day of June, 1910, and from that day to the present time, defendant was and still is a corporation duly organized and existing according to law, and that at the said time mentioned defendant was and is doing business and had and has an office in the city of St. Louis, Missouri.
For further answer defendant denies generally each and every allegation of the petition herein, except as above admitted.
By answering over, counsel for appellant waived the demurrer and the attending rulings thereon, which relieves this court of the duty to review the same.
The facts of the case are few and undisputed.
The evidence showed that on the 13th day of June, 1910, the Secretary of State inclosed in an envelope, properly addressed to the appellant, postage prepaid, the letter and the contents thereof, mentioned in the petition, which was duly registered by the postal au
In order to have a clear conception of this case, it will be necessary for us to copy some of the most important statutes inyolved in the case, and to state the substance of the provisions of certain others, which are incidentally or collaterally involved.
Sections 10322, 10323, 10324 and 10325 read as follows:
Sec. 10322. Secretary of State to make inquiry— form of affidavit. It shall be the duty of the Secretary of State, on or about the first day of July of each year, to address to- the president, secretary or managing officer of each incorporated company in this State, a letter of inquiry as to whether the said corporation has all or any part of its business or interest in or with any trust, combination or association of persons or stockholders, as named in the preceding provisions of article one of this chapter, and to require an answer, under oath, of the president, secretary or managing officer of said company. A form of affidavit shall be inclosed in said letter of inquiry, as follows:
*715 
*716 “And thereupon it shall become the duty of such corporation to make answer to such inquiry by filing or causing to be filed the affidavit prescribed herein. And on refusal to make oath in answer to said inquiry, or on failure to do so within thirty days from the mailing thereof, the Secretary of State shall certify said fact to the prosecuting attorney of the county or the circuit attorney in the city of St. Louis, wherein said corporation is located, and it shall be the duty of such prosecuting attorney or circuit attorney, at the earliest practicable moment, in the name of the State, and at the relation of said prosecuting or circuit attorney, to proceed' against such corporation for the forfeiture of its charter or certificate of incorporation, or its right or privilege to do business in this State: Provided, however, that if such corporation shall file the affidavit required by the provisions of this article prior to the rendition of final judgment in said action, the court may assess against such corporation, in lieu of a judgment forfeiting its charter or certificate of incorporation, or its right or privilege to do business in this State, a fine not to exceed five thousand dollars and not less than one hundred dollars; Provided, however, that any time before final judgment, if such corporation shall file or cause to be filed with the Secretary of State the affidavit herein prescribed, the trial court may, in his discretion, and for good cause shown, upon the payment of all costs, together with the attorney’s fees of ten dollars, to be paid' to the prosecuting attorney or the circuit attorney in the city of St. Louis, remit the penalty herein prescribed.
“Sec. 10323. Affidavit, by and before whom made. The affidavit required by this article shall be made by the president, secretary, treasurer or managing officer of such corporation- in this State, and shall be made before some person authorized to administer oaths in this State.
*717 “Sec. 10324. Penalty for false affidavit. Every person who shall mate, or cause to he made, and file or cause to be filed, said affidavit, knowing the facts stated therein to he false, shall,- on conviction, he adjudged guilty of perjury, and shall be punished hy imprisonment in the penitentiary for a term not exceeding seven years.
“Sec. 10325. Duty of Secretary of State — production of boohs. It shall be the duty of the Secretary of State, at any time upon satisfactory evidence that any company or association of persons duly incorporated under the laws of this or any other State, doing business in this State, has entered into any trust, combination or association, in violation of the preceding sections of this article, to demand that it shall make the affidavit as above set forth in this article as to the conduct of its business. In case of a failure of compliance on the part of the corporation, then the same procedure shall ensue as is provided in section 10322 of this article. Provided, that no person shall be subject to any criminal prosecution on account of any matter or thing truthfully disclosed by the affidavit required by this article; and provided further, that in any prosecution or proceeding brought to enforce the provisions of this article, no witness shall be.permitted to refuse to answer any question material to the matter in controversy, nor shall be permitted to refuse to produce any books or papers material to such inquiry upon the ground that to produce such books and papers or to answer such question might tend to incriminate him or subject him to a penalty or a forfeiture; but no person shall be subject to prosecution or to any action for a penalty or a forfeiture on account of any transaction, matter or thing concerning which he may testify or produce books or papers.”
Upon the reverse side of the sheet of paper previously mentioned, there was printed a blank form of the inquiry, which section 3025, Revised Statutes 1909,
Sections 3026 to 3034, inclusive, provide what shall be stated in reply to said inquiry by said stock companies and associations, and when the same shall be filed with.the Secretary of State. Said sections in so far as the appellant is concerned, provide, either literally or substantially as follows:
Section 3026. That every incorporated company, . . . organized under the laws of this State whose capital stock is divided into shares, shall annually, on the 1st day of July, report to the Secretary of State, the location of its principal business office, the name of its president and secretary, the amount of its capital stock, . . . the par value thereof and its actual value at the time of making the report, the cash value of all of its real and personal property situated in this State, on the 1st day of June, immediately preceding the date of the' report, and the amount of city, county and State taxes, paid by any such company for the year last preceding the report.
Section 3027 relates to foreign corporations doing business in this State; and consequently it is immaterial to the propositions involved in this case.
Section 3028 requires all corporations doing business in this State, both domestic and foreign, to keep their books and accounts in such manner as to enable them accurately and promptly to comply with the requirements of said section 3025 to 3034, both inclusive; also that no such company shall be exempt from the duty of making such report, because perchance it may not have received the blanks, which section 3025 requires the Secretary of State to send to it and all such companies.
Section 3029 prescribes by what officer of the company the report shall be signed and sworn to.
“Sec. 3030. Every incorporation to which sections 3025 to 3034, inclusive, apply, failing, within sixty days from July the 1st in each year to make the report herein provided for, shall be subject to a fine of not less than fifty nor more than one thousand dollars, for each offense, and each succeeding thirty days of such failure shall constitute a separate offense and be subject to a like fine, which said fines shall be cumulative, and one action may be maintained to recover one or more such fines, to be recovered before any court of competent jurisdiction. No suit shall be maintained for any such offense unless brought within six months from September 1st of the year in which the report is due, which date shall be the time when such right of action accrues; and it is hereby made the duty of the Secretary of State, as soon as practicable after the first day of September in each year, to report to the prosecuting attorney of the county in which any such delinquent corporation may be located, the fact of its failure to make the required report, and the prosecuting attorney shall, at the first court term after he receives the report from the Secretary of State, institute proceedings in the name of the State, at the relation of the county, to recover the fine or fines herein provided for, which shall be applied to the county revenue fund, except that for instituting and prosecuting said suits the prosecuting attorney shall receive as his compensation one-fourth of the penalty collected; and in case any such suit shall be taken to either of the Courts of Appeals or the Supreme Court, then the Attorney-General is hereby required to assist the prosecuting attorney, and the Attorney-General shall also be entitled to one-fourth of the amount recovered from the corporation violating the law. The Secretary of State shall,*720 whenever a corporation makes its report after the time provided by law for the making of snch report, certify that fact to the prosecuting attorney.”
Section 3031 has reference to the dissolution of domestic corporations, and the retirement of foreign corporations from the State. Neither of those provisions are material to this case.
Section 3032 requires the assessor of each county in the State, and the president of the board of assessors of the city of St. Louis, to report to the Secretary of State all corporations, domestic and foreign, doing business therein, etc.
Section 3033 requires the Secretary of State to refer all such reports to the Legislature, etc.
And section 3034 confers upon the circuit attorney of the city of St. Louis, the same duties that said sections 3025 to 3033 confer upon the prosecuting attorneys of the various counties of the State.
It was also shown that the appellant in due time and in proper form, made out, swore to and filed with the Secretary of State, the report required by said sections 3025 to 3034, which as previously stated, was printed on the reverse side of the sheet of paper upon which was printed the blank affidavit of innocence of all pools, trusts, combinations, conspiracies, etc., required of said companies by said sections 10322' and 10323; also that appellant declined or refused to make, sign, swear to or file with the Secretary of State, said affidavit of innocence, or as it is sometimes termed the “anti-trust affidavit,” required by said last two sections to be made, signed and sworn to by the president or other officer of the company mentioned therein.
The evidence also showed that the Secretary of State, in compliance with the requirements of said section 10322, notified the circuit attorney of the city of St. Louis that the appellant had not, within thirty days, from the date of his mailing said inquiry to it or at
I. Counsel for appellant, in this court, have assigned twenty-five errors; they have, however, apparently abandoned about one-half of them; and we will devote our time to the consideration of the remainder of them.
If that were true, then counsel should have demurred to it for that reason. In fact, that was one of the grounds stated in the demurrer, as disclosed by the record, which was by the trial court overruled.
If counsel for appellant intended or wished to rely upon that point, they should have declined to plead further and should have stood upon the demurrer, but instead of so doing, they filed an answer to the merits. That action of counsel waived whatever merit there may have been in the question, which cannot be again raised by answer, as was here attempted. This is elementary. [Roberts v. Walker, 82 Mo. 200.]
All objections appearing upon the face of the petition are waived by answering, except first, that it does not state facts sufficient to constitute a cause of action, and second, that the court has no jurisdiction to try the cause. [Sec. 1804, R. S. 1909; Elfrank v. Seiler, 54 Mo. 134.]
We, therefore, rule this question against appellant.
By reading said section 10322 it will be seen that it requires the suit to be brought in the name of the State and at the relation of the circuit attorney.
If I correctly understand counsel they do not differ as to what the law is governing this question, but they differ as to the facts. Counsel for appellant insists that the suit is brought in the name of Jones as circuit attorney, and counsel for respondent contend-that the record shows that it was brought in the name of the State and at the relation of the prosecuting attorney, as required by said statute.
In stating the case, we copied the petition in full, including caption. The latter reads as follows:
“The State of Missouri, at the Relation of Seebert G-.
Jones, Circuit Attorney of St. Louis, Relator, v. Mallinckrodt Chemical Works, a Corporation, Respondent.”
The petition proper, begins by stating: “Comes mow Seebert G. Jones, circuit attorney within and for the city of St. Louis in the State of Missouri, and ¡states that the respondent is,” etc.
Counsel for appellant insist that the caption of the petition constitutes no part thereof; and that the ■character of the suit must be determined from the allegations contained in the body thereof, which determines the parties thereto.
In support of this insistence we are cited to the following cases: State to use of J. D. Tapley v. Mat
The first case mentioned was a suit instituted in. the name of the State to the use of the administrator de bonis non of the estate of Joseph Tapley, deceased, against the securities on the bond of the former administrator. In the caption of the petition the plaintiff was designated as the administrator de bonis non of the estate of Tapley, deceased, but no allegation of that character was stated in the body of the petition. In other words, the petition failed to state that Tap-ley had departed this life intestate, that an administrator of his estate had been duly appointed, qualified and took charge of Ms estate, that said administrator-ship had ceased and that plaintiff had been appointed administrator de bonis non as his successor in office. The insufficiency of the petition was for the first time raised in this court; and after considering the question, the court held that the petition was bad and that because the error appeared upon the face of the record, the judgment of the circuit court should be reversed.
In the case of Higgins v. Railroad, supra, the suit was instituted by an infant through its guardians, to recover the statutory penalty of $5000, for the negligent killing of her father. The caption of the petition was stated in the following language: “Hatty Higgins, Infant, by Eliza Higgins, her Guardian, Plaintiff, v. Hannibal & St. Joseph Railroad Company, Defendant,” but no allegation of that character was stated in the body of the petition. On appeal, this court held the petition insufficient for the failure to state in the body of the petition that the plaintiff was the duly appointed, qualified and acting guardian of the infant plaintiff.
In Headlee, Admr., v. Cloud, supra, the plaintiff in the caption of the petition described himself as the
In the case of Proctor v. Railroad, supra, the railroad was in the hands of the defendants, receivers. In both the caption and the body of the petition, it was stated that they were receivers thereof, that they had been duly appointed as such by Judge Brewer, and that they were in charge of, and were operating the railroad at the times complained of, etc. Service was had upon the station agent, and the receivers moved to dismiss for the reason that service was not had upon them personally. While this case has no special bearing upon the case at bar, yet it recognizes the doctrine announced by this court in the cases previously cited and considered; and if we are to be controlled by the rule therein announced, then the judgment of forfeiture rendered by the circuit court against the appellant will have to be reversed for they are directly in point.
While I have not found any case overruling the cases mentioned in terms, yet the later reports are full of cases holding to- the contrary. The later cases hold that even though it be conceded that a suit was brought in the name of the wrong party, nevertheless, the defendant would be in no position to question that error in this court, for the reason it was apparent upon the face of the petition, and it should have been raised by demurrer, and having failed to so do the error was waived by answering to the merits.
This question was before this court in the case of State ex rel. v. Fidelity and Guaranty Co., 236 Mo. 352, l. c. 365, where many of the authorities are reviewed, and the contrary rule announced.
These cases are in harmony with section 1794, Revised Statutes 1909.
The petitions in the case of State ex inf. v. Evans, 166 Mo. l. c. 349, and State ex inf. v. Tobacco Co., 177 Mo. l. c. 6, are substantially the same in form as this one.
We are, therefore, of the opinion that the earlier cases cited are erroneous, and should be overruled; also that this insistence of counsel for appellant is not well founded.
This contention is untenable for two reasons: first, because this error, if error it is, was waived by answering to the merits; and what has been stated in paragraph two'of the opinion regarding a kindred question is equally applicable and controlling here; and, second, even though it be conceded that the provision of section 10304, which directs all fines and penalties collected under and in pursuance to chapter 98 of the Revised Statutes of 1909, shall be paid into the State Treasury, is unconstitutional, null and void, and that it should be paid to city of St. Louis, for the use of the school fund, as provided for by said section 8 of the Constitution, still it would not necessarily follow therefrom that this suit should abate or be dismissed for that reason. That provision of the section might well be declared unconstitutional, and in no manner would
But independent of that, whatever disposition will be made of the fines and penalties that may be collected from appellant, is a matter for future consideration by those who may make claim to them.
However, in passing, it may not be out of place to state that this court has in a number of cases of this character ordered fines of this character paid into the State Treasury, and has thereby recognized the constitutionality' of said section of the statute.
IV. The fourth assignment of error is stated in this language:
There is no question but what counsel for appellant are correct in the contention that all statutes standing in pari materia should be read and construed together in order to get at the full and clear design of the Legislature. We have so held in numerous cases, and especially in the following: State ex rel. v. Patterson, 207 Mo. 129, l. c. 144; State ex inf. v. Standard Oil Co., 218 Mo. 1, l. c. 354 to 357.
The penalties and forfeitures mentioned in the first articles have reference to those which are imposed for the actual formation of pools, trusts, conspiracies and combinations in restraint of trade, etc., while those mentioned in article three refer to those imposed for failure to file the affidavit, and are en-foreible even though the company may never have entered into any such pool, trust, conspiracy or combination mentioned in the first article.
If the contention of counsel for appellant is correct, namely, that article three imposes no penalties, then there would be no penalty enforcible against a company for a failure to make and file the affidavit required thereby, for the reason that the penalties and forfeitures prescribed by article one, in so many terms, are imposed for the unlawful formations of pools, trusts, etc., and for failure to make and file the report required thereby with the Secretary of State.
This article like all other statutes, in order to make it effectual, the Legislature prescribed by sections 10322 and 10327 contain penalties which should
Tbe penalties and forfeitures prescribed by section 10322 consist of “a forfeiture of its charter or certificate of incorporation, or its right or privilege to do business in this State.” And by section 10327, it is provided, “In all suits instituted under this article to forfeit tbe charter of corporations, or to forfeit tbe right of a corporation to do business in this State where a judgment of forfeiture is obtained . . . tbe court shall allow tbe circuit attorney . . . a fee of not less than $25 nor more than $500.”
From tbe foregoing observations it is perfectly clear, as previously stated, that this article is complete within itself; that is, it imposes certain duties named therein, upon all domestic and foreign corporations doing business in this State, and prescribes tbe manner in which those duties must be discharged, the mode of prosecution in case they fail to do so, and the punishment to be inflicted in case they are convicted of such failure.
We have also considered said section 10304, cited by counsel, which is one'of the sections of the statute composing article 1 of said chapter 98. That chapter is entitled “Pools, Trusts, Conspiracies and Discrim-inations,” and said article is entitled, “Definitions, Procedure and Penalties.” Sections 10298 to 10301, inclusive, thereof, clearly define each and all of said terms. Section 10302 makes it a felony for any person to violate any of the provisions of those sections. Section 10303 designates the courts in which the prosecutions shall be brought and by what officers they shall be instituted, etc., and section 10304 prescribes the fines and forfeitures which shall be imposed against all domestic and foreign corporations doing business in this State, for having violated the provisions of any of the sections of that article.
From this consideration of articles one and three, of said chapter 98, it is obvious that each is complete in itself and independent of each other as to penalties and forfeitures, and consequently said section 10323 of article 3, is not modified or controlled by section 10^04 of article 1 as insisted by counsel for appellant.
Moreover, by reading the two sections it will be seen that the punishment prescribed by each widely differ, and neither is made to depend upon the other, nor is it provided that the one shall be added to or subtracted from the other. But as previously stated, by each are separate punishments imposed for separate offenses.
We, therefore, decide this question against the appellant.
Counsel have not indicated in what manner this section of the statute violates said section of the Constitution, and I have been unable to detect any conflict between them.
The record shows that the appellant was organized and had existed under the laws of this State for many years prior to the date it was required to make the affidavit in question and file it with the Secretary of State, and upon investigation I find that said section 10322 was enacted in the year 1907, some three
An “ex post facto law” is “one which makes an action done before the passage of the law, criminal, which was innocent when committed and which punishes the individual who committed it; or which aggravates a crime and makes it greater than it was when committed; or which changes the punishment and inflicts greater punishment than the law annexed to the crime when committed.” [Calder v. Bull, 3 Dallas (U. S.) 386; Ex parte Bethurum, 66 Mo. 545, l. c. 548.]
If we test this statute by this definition of an ex post facto law, it will be seen that it does no violence to said section of the Constitution, for it neither makes an act done .prior to its passage criminal, which was innocent when committed, nor does it aggravate a crime or make it greater than it was when committed, nor does it change the punishment or inflict greater punishment than the law annexed to the crime at the time it was committed. I say this for the reason tflat the wrong complained of in the petition was the failure of appellant to state under oath, as required by said section 10322, that it had not done any of the things therein prohibited, and declared to be unlawful, within one year immediately preceding the date of the affidavit required thereby to be filed, which would have been for the year beginning on or about August 1, 1909, and ending on or about August 1, 1910, the first
We are, therefore, of tbe opinion that section 10322 in no manner violates said section 15 of tbe Constitution.
There would have been much force in this insistence bad tbe Legislature simply declared tbe matters complained of to be unlawful, without prescribing tbe remedy therefor, for in that case there would have been no remedy known to our law by which that result could have been obtained, except by quo warranto or by an information in tbe nature thereof; but tbe Legislature did not stop at tbe point suggested. It proceeded further and prescribed in detail tbe remedy, even tbe courts in which such prosecutions should be brought, tbe officers by whom they should be instituted, tbe name of tbe plaintiff and at whose relation they should be instituted, tbe acts which should constitute tbe offense as well as tbe kind of judgment that should be rendered, and tbe fines and forfeitures that should be imposed upon tbe offending parties. Also what steps tbe guilty company might take if it saw proper to take any, after tbe institution of tbe prosecution, and before final judgment was rendered to appease tbe law and be restored to its former legal status.
This insistence is without merit and is ruled against appellant.
VII. Counsel also insist that the petition does not state a cause of action against the appellant, for the reason that it was a physical impossibility for it to have made the affidavit mentioned therein.
This insistence is untenable, for the reason that paragraph nineteen of section 8057, Eevised Statutes 1909, provides that where the word “county” is “used in any law, general in its character to the whole State, the same shall be construed to include the city of St. Louis, unless such construction be inconsistent with the evident intent of such law, or of some law specially applicable to such city.”
The application of this statute to the question in hand can in no manner he considered as being inconsistent with the meaning of, and the object to be accomplished by, article three of chapter 98 of the statutes, nor with any law which is specially applicable to the city of St. Louis.
This court has recognized and given force to this rule of construction in so many cases, that it can no longer be considered an open question.
This precise question was presented and ruled on adversely to the contention of appellant in the case of State ex inf. v. Standard Oil Co., 218 Mo. 1. At page 368, we said:
“Their position is that those sections are in violation of the first section of the Fourteenth Amendment to the Constitution of the United States, in that while they denounce the same acts, whether committed by individuals or individuals and corporations, they impose upon the latter a greater and different punishment from that imposed upon individuals.
“In one sense that may be true, but it is not true in a legal sense.
“A corporation is a legal fiction — a creature of the law. It accepts its charter and corporate franchises with a tacit agreement or understanding that it will exercise the powers granted to it by the State, and none other; and that if it misuses those powers, or usurps powers not so granted, it will surrender or forfeit its charter, with all corporate franchises. That the State has the power to enforce this agreement, or law of forfeiture, is not questioned by respondents, but they insist that it is a different and greater punishment than is imposed upon an individual for the commission of the same offense. In answer to that, it may be said that an individual is a natural person, created by his Maker, and not by law, and, therefore, has no franchise to exercise or to forfeit, consequently*734 the same punishment, if yon so term it, could not, in the very nature of things, he measured out to the individual which should he measured unto a corporation.
“While it is true, to forfeit the charter of a corporation for usurpation of power is equivalent to taking its life, as it were; hut we suppose it will not be seriously argued that, because the statute does not demand the life of the individual, as it does of the corporation, as a punishment for his violation of the law, the law should and must be declared unconstitutional and void upon that ground. And, upon the other hand, where a statute denounces certain acts, whether committed by individuals or corporations, or both, it should not he declared unconstitutional because it provides for imprisonment of the former and a fine, or forfeiture of the latter’s charter, as punishments for their violation of the statute. But if the contention of counsel for respondents is sound, then any individual could form an unlawful combination in restraint of trade with any corporation, and when proceeded against for such unlawful conduct either one or both of them could interpose the unconstitutionality of the statute, because the punishment prescribed against each is not the same but different. And we might add that, if their position is tenable, then the Legislature would he powerless to provide for the imprisonment of the one because it could not imprison the other; nor could it provide for the forfeiture of the charter of the corporation, because the individual would have none to forfeit, ergo, there is no punishment the Legislature could provide, excepting a fine against each. Such a contention regarding the proposition here involved if followed to its logical conclusion would lead to an absurdity, and, at the same time, shows the unsoundness of respondents’ contention. ’ ’’
And in passing, we might state that experience has taught the courts, both State and Federal, that
In order to accomplish that end, the strong arm of the criminal law will have to be resorted to, and the guilty be incarcerated.
That case was carried to the Supreme Court of the United States, and was by that court affirmed.
Those cases, as previously stated, decide this question against appellant’s contention here, and we see no reason for changing our views of the law regarding the same.
IX. Counsel for appellant also contend that said section 10322 is unconstitutional, null and void, for the reason that it violates that section of the Constitution which provides that “no person' shall be compelled to testify against himself in a criminal case.”
Their position is stated in this language:
We have carefully considered these cases and are of the opinion that they are not controlling in this case.
In the first case cited, there was no statute of immunity whatever exempting the officer of the corpo
We held in the Standard Oil case, supra, that the immune statute there under consideration was valid and sufficiently broad and comprehensive to exempt from prosecution the parties therein mentioned, from-.all crimes they may have disclosed by the proceedings had in that case. In discussing that question (p. 375), the court used this language:
‘ ‘ Section 8989, Revised Statutes 1899, granted immunity to all the witnesses who were produced by respondents and who testified in compliance with the order of the court. No witness can avail himself of section 23 of article 2 of the Constitution of 1875, nor of the Fifth Amendment of the Constitution of the United States, as to giving oral testimony, because said statute grants him immunity from prosecution; nor can 'he set those constitutional provisions up against an order for the production of books and papers, as the .same statute would equally grant him immunity in respect to matters provided thereby. [Hale v. Henkel, 201 U. S. l. c. 69 to 73.]
“Nor was it intended by section 11 of article 1 of the Constitution, nor the Fourth Amendment of the Constitution of the United States, known as the search- and-seizure clauses, to interfere with the power of courts to compel the production upon trial of docu*737 mentary evidence under a subpoena duces tecum. [Hale v. Henkel, supra, l. c. 73.]
“While an individual may lawfully refuse to answer incriminating questions unless protected by an immunity statute, a corporation is a creature of the State, and there is a reserved right in the Legislature to investigate its contracts and find out whether it has exceeded its powers.
‘ ‘ There is a distinction between an individual and a corporation; the latter, being a creature of the State, has no constitutional right to refuse to produce its books and papers in court for examination in the trial of a proceeding by the State against it; nor can the officer in charge of the corporation charged with a vio^ lation of the statutes plead the criminality of the corporation as a refusal to produce the books. [Hale v. Henkel, supra, pp. 74 to 76.] The rule above announced has the sanction of the highest court in the land and was applied in a criminal prosecution, and a fortiori should the same rule apply to a civil proceeding like the case at bar.”
If we correctly understand counsel, they do not challenge the validity of section 10325, but insist that its provisions are not as broad as is the constitutional guaranty against self-incrimination, or to exempt the officer of appellant from prosecution for every crime the affidavit in question might disclose he might be guilty of. In our opinion this insistence is not well founded. The material part of that section is as follows :
“Section 10325. ... In case of a failure of compliance on the part of the corporation, then the same procedure shall ensue as is provided in section 10322 of this article: Provided, that no person shall be subject to any criminal prosecution on account of any matter or thing truthfully disclosed by the affidavit required by this article; and provided further,*738 that in any prosecution or proceeding brought to enforce the provisions of this article, no witness shall be permitted to refuse to answer any question material to the matter in controversy, nor shall be permitted to refuse to produce any books or papers material to such inquiry upon the ground that to produce such books and papers or to answer such question might tend to incriminate him or subject him to a penalty or a forfeiture; but no person shall be subject to prosecution or to any action for a penalty or a forfeiture on account of any transaction, matter or thing concerning which he may testify or produce books or papers.”
The first proviso of this section, namely, that no person shall be subject to any criminal prosecution on account of any matter or thing truthfully disclosed by the affidavit required by this article, is the immunity that is granted to the officer of the corporation making it and which of course presupposes that he had,thereby disclosed some matter or thing that he and the com' pany had previously done in violation of said chapter 98, commonly known as the “Anti-Trust Laws” of the State; while the second refers to the immunity that is granted to any and all officers, agents, employees and others who may be witnesses in any proceeding, which might be brought against any such “corporation to forfeit its charter or certificate of incorporation or its right or privilege to do business in this State,” for any reason known to said laws.
If we bear in mind the different crimes to which these two immunities refer, much light will be shed upon the apparent confusion that seems to rest in the minds of the learned counsel for appellant. Their position is thus stated: ‘ ‘ The immunity extended to a witness in testifying or producing books or papers, in a prosecution or proceeding to enforce the provisions of this article reaches anything which might tend to incriminate him or subject him to a penalty or for
The inference drawn therefrom is, that the affidavit required by section 10322 might disclose some possible crime, which the immunity granted by section 10325 would not cover, and they suggest, for instance, that the affidavit might disclose some crime which might not be covered by the immunity granted under the first proviso which extends only to “criminal prosecutions,” which would not preclude its use in a proceeding to recover a “penalty or forfeiture” mentioned in the second.
This position is untenable, for the reason previously stated, that the first proviso grants immunity from prosecution for all matters and things which might be “disclosed by the affidavit required [to be made] by this article,” and if we turn to section 10322, the section requiring the affidavit to be made, it will be seen that it prescribes what the affidavit shall contain, namely, all the matters and things which “article one of this chapter” prohibits corporations and certain others from doing, and which, by turning, to sec-' tions 10302 and 10304, it will be seen include penalties and forfeitures therein, and being so included by express words, the affidavit therefore could not (if otherwise competent, which I .seriously doubt) be used either under the first or second proviso. So says the statute, and so say we.
The record shows that both of said blanks were printed upon one piece or sheet of paper; one of which was printed upon one side thereof, and the other upon the other side.
Section 3025 required the Secretary of State to send the one mentioned therein, on or before June 15th of each year; and section 10322, required him to send the one therein mentioned on or' about July 1st of each year.
The record shows that said sheet of paper, with those blank affidavits or reports so printed thereon was by the Secretary of State, sent to the appellant by registered letter, on June 13, 1910, and that it was by the latter received on June 14th, the following day.
The law required the appellant to execute and return this annual report to the Secretary of State within sixty days from July 1st 'of each year, and the antitrust affidavit within thirty days from the date the Secretary of State mailed the blank to it.
The record also shows that the appellant, by its properly constituted officer, dufy executed the for mer and returned the same to the Secretary of State on the 22nd day of July, 1910, with the blank affidavit printed on the. reverse side thereof, as previously stated, unexecuted.
Upon the receipt of said paper the Secretary of State filed said corporation report on said 22nd day of July, and noted said facts upon the records kept in his office for that purpose; and thereupon, the same day, the Secretary of State remailed said paper, with
Appellant declined to execute this affidavit as required by said section 10322, and assigned as a reason therefor, that it did not believe that it was obliged to so do.
In our opinion there is no merit in this contention.
The blanks were in proper form and were sent to appellant in due time, and were by it accepted the next day, which gave it ample time to execute and return them to the Secretary of State, as provided for by said statutes.
Appellant knowingly and intentionally refused to make the anti-trust affidavit, and its secretary, Mr. Oscar L. Biebinger, testified that the reason for not making it was, that, “I did not believe we were obliged to answer it.”
Appellant having knowingly elected to violate the law, there remains nothing to be done, except to enforce the penalties and forfeitures prescribed by the statute for such conduct.
“Provided, however, that if such corporation shall file the affidavit required by the provisions of this article prior to the rendition of final judgment in said action, the court may assess against such corporation in lieu of a judgment forfeiting its charter or certificate of incorporation, or its right or privilege to do business in this State, a fine not to exceed five thousand dollars and not less than one hundred dollars: Provided, however, that any time before final judgment, if such corporation shall file or cause to be filed with the Secretary of State the affidavit herein'prescribed, the trial court may, in its discretion, and for good cause shown, upon the payment of all costs together with the attorneys’ fees of ten dollars, 'to be paid to the prosecuting attorney or the circuit attorney in the city of St. Louis, remit the penalty herein prescribed. ’ ’
The only leniency this statute extends to a corporation which has violated the provisions thereof, is irrevocably withdrawn after the final judgment of forfeiture has been rendered by the trial court. This is in keeping with the strenuous legislation that has been enacted by the Legislature of this and practically of all the other States of the Union; also by the Congress of the United States.
They seem to be determined to put an end to all pools, trusts, conspiracies and combinations in restraint of trade, limiting production and in fixing and maintaining prices.
While some of those provisions seem to be rather severe, yet they have not, so far, been sufficient to
Finding no error in the record, the judgment of the circuit court is affirmed.
Dissenting Opinion
DISSENTING- OPINION.
I am constrained to dissent to the opinion of the majority of the court in this case. As I understand the opinion it concedes that unless certain cases cited therein are overruled, the petition in this case states no cause of action; and, hence, would not warrant the judgment of the trial court. I doubt the wisdom of repudiating these rulings. If the theory can obtain, after a full consideration of all the applicatory statutes, that the simple omission to file a prescribed affidavit is sufficient ground for forfeiting the charter of the defendant, then this court, under its statutory power (R. S. 1909, sec. 2083) to render such judgment as ought to have been rendered in the trial court, should permit the appellant, as requested in its reply brief, to comply with the formality of filing the affidavit under the authority of section 10322, Revised Statutes 1909.
There is not the faintest suggestion in this record that the charter or business of the defendant corporation exists or is conducted in violation of the antitrust law of this State. Nor is there any proof, even arising to the dignity of an inference, to be found in the record which discloses that the failure of the officer of the defendant company to make the affidavit prescribed was caused by any other motive than a declination to answer inquiries which his learned counsel
Under these circumstances I think the case should he reversed and remanded to the circuit court with directions to permit the filing of the affidavit and to enter judgment in the matter according to the provisions of section 10322, Revised Statutes 1909.
