246 Mo. 168 | Mo. | 1912
This is a proceeding by information in the nature of quo warranto instituted by the prosecuting attorney of Jackson county, on his own relation and, in his official capacity, against the People’s Ice, Storage & Fuel Company, Vanderslice-Lynds Mercantile Company, Central Ice Company, Western Ice & Cold Storage Company, Kansas City Breweries Company, Bold Packing Company, John J. Ruddy and Thomas P. Ruddy. The Ruddys are alleged to be partners doing business under the firm name of Ruddy Brothers and also under the name of the Inter-State Ice & Cold Storage Company. Excepting the Jacob Dold Packing Company, the other corporate defendants are Missouri corporations. The Jacob Dold Packing Company is a corporation but it is not alleged in what State it was organized. The circuit court found for the defendants Jacob Dold Packing Company, Western Ice & Cold Storage Company, John J. Ruddy and Thomas P. Ruddy, but entered judgment against the other defendants, assessing a fine of $5000'against the Central Ice Company, a fine of $4500' against Van-derslice-Lynds Mercantile Company, a fine of!5 $5000 against the Kansas City Breweries Company, a fine of $15,000 against the People’s Ice, Storage & Fuel Company and also entered judgment forfeiting the charter of the last named company. From that judgment all four convicted defendants appealed.
The information alleged, in substance, that prior to July lj 1905, the defendants, excepting the People’s
' It is then alleged that defendants and other unknown persons, corporations and copartnerships constitute an unlawful trust and combination for the purpose and with the effect of lessening and destroying competition in the manufacture and sale of ice and of creating a monopoly in the ice business in Kansas City and vicinity.
The Kansas City Breweries Company in its return admitted its incorporation hut denied that it was incorporated prior to July 1, 1905, or engaged in the ice business prior to that time and denied it was ever engaged in the ice business in Kansas City in competition with the other defendants named or any of them; admitted its ownership of a portion of the capital stock of the People’s Ice, Storage & Fuel Company but denied it owned such stock July 1, 1905, or that it was directly interested or participated in the formation of the last mentioned corporation and specifically denied all other allegations of the petition.
The Central Ice Company filed what it termed a motion to dismiss as to it, wherein it denied the allegations of the information affecting it and set forth several pages of correspondence and other evidence of its efforts to furnish ice for the Kansas City market, coupling with this a protest that the pendency of this proceeding will injure its credit. To this were added the afS davits of several officers and employees- of the Central Ice Company as to the truth of the facts set up in the motion and as to the company’s having manufactured all the ice it could. This conglomeration was treated by the trial court as a return and, shorn of its objectionable features, it will be so treated here.
The cause was referred to a commissioner who heard evidence for several weeks, and, in his report, recommended judgment for all the defendants. On exception filed by the prosecuting attorney the court set aside the referee’s findings and, on the evidence reported by the referee, rendered judgment as before indicated, and also requiring the cancellation of certain contracts, to which reference will be made hereafter. Motions for new trial and in arrest of judgment were filed and overruled and the four defendants found guilty appealed.
The findings of the referee were based on that part of the evidence which remained after the exclusion of all evidence relating to transactions occurring prior to July 1, 1905, the date of the organization of the People’s Ice, Storage & Fuel Company. The trial court, in making its findings, took this excluded evidence into consideration.
The evidence disclosed that the People’s Ice, Storage & Fuel Company, capital stock $170,000, was organized about July 1, 1905, and that it took over the assets and assumed the liabilities of the People’s Ice & Fuel Company. This last named company was incorporated in 1898. At that time (1898) the Armour Packing Company, The Ferd Heim Brewing Company, The • Vanderslice-Lynds Mercantile Company, The Kansas City Ice & Cold Storage Company, The Grand Avenue Ice Company, The Woods Ice Company, The Tates Ice Company, The Fowler Packing Company, The Jacob Dold Packing Company and the Standard Ice & Coal Company were in the ice business in Kansas City. The Woods Ice Company and the Yates Ice Company stored and sold natural ice. These seem to have been merely names under which R. W. Woods and James Yates, respectively, carried on the ice busi
The plan was to organize a central distributing company which should contract to buy the ice of the companies entering into the scheme at a price to be determined by subsequent agreement, an amount of stock to be taken by each participating company equal to the proportion the ice sold by such company the preceding year bore to the whole amount sold during that year by all the companies participating in the organization. The capital stock was to be $20,000. The purposes were to stop the cutting of prices and lessen the expense of delivering ice and “to eliminate unreasonable competition.” Mr. Vanderslice said that the purpose of his company was to “get out of the distribution of ice” because it had proved unprofitable. Several meetings were held. One was attended by R. W. Wood of the Wood Ice Company, James Yates, of the Yates Ice Company, Mr. Butt, of the Kansas City Ice & Cold Storage Company, W. D. Miles, representing the Armours, and Trask, Clossen and Thomas Manville, of the Standard Ice & Coal Company. The witness also thought Mr. Heim was present: At other meetings Mr. Rittick or Reddick represented the Grand Avenue Ice Company, Vanderslice represented the Vanderslice-Lynds Mercantile Company, Yates, Woods and Joseph Heim, representing their respective companies, W. D. Miles representing Armours and Mr. Butt and Mr. Menny representing the Kansas City Ice & Cold Storage Company. At the meetings mentioned there was a general discussion of the proposed plan and its purposes. It was finally agreed that a distributing company be organized for the purposes of putting an end to “unreasonable competition,” stopping price cutting and lessening the expense of distribution. The Vanderslice-Lynds Mercantile Company, the Ferd Heim Brewing Company,
There were some changes in the stockholdings as time progressed. The first one of importance was the sale of some stock to J. C. Dold, immediately followed by a contract for the most of the output of the Dold Packing Company ice plant at two dollars per ton, the
In June, 1905, and for some time prior thereto, the stock of the People’s lee & Fuel Company stood in the names of PI. Vanderslice of Vanderslice-Lynds Mercantile Company, J. J. Heim of the Ferd Heim Brewing Company, W. H. Winants of the Western Ice & Storage Company, B. W. Wood of the Wood Ice 'Company, W. D. Miles and A. Menny, manager of the People’s Ice & Fuel Company.»
Some time previously these same gentlemen had acquired what was known as the Grand Avenue plant, having purchased this plant for about $30,000. Considerable improvements were made on that plant prior to July 1, 1905.
In June, 1905, the People’s Ice & Fuel Company had in force several ice contracts of the kind already mentioned. Its contract of February 6, 1903, with the Vanderslice-Lynds Mercantile Company was for 29,700 tons of artificial ice at two dollars per ton, cte-liverable at the Mercantile Company’s plant on board wagons or cars, 9900 tons deliverable in 1903,1904 and 1905, each. Of this annual quantity 600 tons were'to be delivered in April; 750 tons in May; 1500. tons in June; 1800 tons, in July and August, each; 1500, tons
The Kansas City Breweries Company, which, in the fall of 1905, had succeeded and carried out the contract of the Ferd Heim Brewing Company, as well as purchased the stock.the latter had held (in the name of Mr. Heim) first in the People’s Ice So Fuel Company and then in the People’s Ice, Storage & Fuel Company, entered into a contract with the last named company, dated February 26, 1906, whereby it agreed to furnish that company 11,330 tons per annum for three years
The Consolidated Light, Power & Ice Company of Joplin also entered into a contract, dated March 20, 1906, to deliver to the People’s Ice, Storage & Fuel Company, between the date of the contract and September 1, 1906, time of delivery at the option of the latter, 2500 tons of ice at four dollars per ton, f. o. b. Kansas City.
The Inter-State Ice & Cold Storage Company, of which Thomas P. Ruddy was president, contracted under date of February 28, 1906, to deliver f. o. b. wagon or cars at its plant in Kansas City, Kansas, 5520 tons of ice, at $3.25 per ton; 900 tons in the last half of June; 1860 tons in July and a like amount in August, and 900 tons in the first half of September; all to be delivered in 1906. The deliveries under this
The Santa Fe Car Icing Company was also under contract, dated June 29,1906, to deliver 7000 tons of ice f. o. b. cars at its plant in Argentine, Kansas, at $3.50 per ton, the whole amount to be delivered .by September 15,1906, not more than 3500 tons in any one month.
The People’s lee & Fuel Company had in 1905 acquired a ten-year lease on the plant of the Western Ice & Cold Storage Company plant which lease was, July 3, 1905, assigned by it to the People’s Ice, Storage & Fuel Company. The latter, in January, 1906, secured a lease for five years on the plant of the West-port Crystal Ice Company, of Kansas City.
In 1905 and at the time of the trial the capacity of the Ferd Heim Brewing Company’s ice plant was about 110 tons per day when run at full capacity and the brewing company itself on some days, as early as 1898, required as much as fifty tons and on others practically none, Mr. Heim stating that there was no method by which he could arrive at the average daily requirements of the brewery company.
The capacity of the Vanderslice-Lynds Mercantile Company’s ice plant at the same times was somewhat less than seventy-five tons per day in hot weather. The amount of this output required for that company’s own needs, if any, does not appear.
The capacity of the Jacob Dold Packing Company’s plant was nearly 125 tons per day when in running order. The entire actual output during May, June and in July to the time of the hearing (except twenty-eight tons sold to the National Packing Company) was sold and delivered to the People’s Ice, Storage & Fuel -Company, the deliveries in May exceeding the requirements of the contract by more than one hundred tons.
Excepting the original respondents in this case the companies making ice in Kansas City and vicinity were the Crystal Springs Ice Company, Kansas City, Kansas, capacity 50 tons per day; the Leed’s Ice Plant, capacity 30 tons per day; The Armour Packing Company, 150 tons per day; the Santa Fe Car Icing Company, 140 tons per day, located at Argentine, Kansas; the Independence plant, Independence, Missouri, capacity 50 tons. The first named company also handled about two cars (40 tons) of ice from Galena, Kansas, and the Leeds Company handled a car per day from' Paola, Kansas. The Swift Packing Company was installing a 200 ton plant and the Morris Packing Company made about' 100 tons per day, hut neither was selling ice on the Kansas City market at the time of the hearing.
The evidence also disclosed that' what was called “the ice season” extended from about June 15 to September 15 of each year, during which time the demand for ice was enormous. The natural ice crop in the
The Central Ice Company, one of the defendants, was shown to have a capacity of 350 tons per day at the time' of the hearing and it also shipped in ice from outside sources. It operated wagons of its own- and also sold to peddlers who ran their own wagons.
In March, 1906, the price of ice in Kansas City to peddlers and distributors, uniformly made by all producers and importers, was three dollars per ton. On the first day of April this price was raised by all to four dollars per ton and on May 1st it was again uniformly raised by all to five dollars per ton. On the
The Central Ice Company and the People’s Ice, Storage & Fuel Company furnished about seventy-five to ninety per cent of the ice used in the Kansas City market, except that consumed by large plants which, in the main, made their uwn ice.
The Central Ice Company was organized about 1902 or 1903 by W. F. Lyons, who became its president, principal owner and, it seems, manager. He had full control and charge of the company’s business, as his own testimony clearly indicates. This company furnished no ice to the People’s Ice, Storage & Fuel Company but had twenty-seven or twenty-eight wagons of its own which it used in delivering ice. It also sold ice to about thirty or thirty-five peddlers who used their own wagons in delivering. The People’s
O. P. Street was engaged in tbe ice business in Kansas City in 1905; dealing principally in natural ice. A. J. Morris and H. R. Clauss were associated with him and tbe business was done under Abe name of tbe Consumer’s Ice Company. This company pro
Dr. Henry Croskey testified to a conversation) with W. F. Lyon, president of the Central Ice Company, in April, 1906, in which he asked Lyon what; effect the hot weather would have on ice. In the language of the witness:
“He says, ‘Well, it is going to raise the price.’' I says,' ‘Why, yon can manufacture it for ninety cents or $1.25.’ ‘Yes,’ he says, ‘but there is no money in that.’ He says, ‘You can’t buy any natural ice, and you have to depend on artificial ice. Of course, we are going to make something out of it.’ I said, ‘Well, it. will not affect me much; I have been buying my ice from Murphy for eight years. I have only been paying him thirty cents a hundred, and, of course, Murphy will not raise it on me.’ He says, ‘Yes, indeed,, he will, because I have already raised it on him, the price of ice; we will raise it again, and we will have to charge him more for it.’ I says, ‘If Murphy is going to charge me more than that I am going to look around*196 for somebody to buy ice from.’ He says, ‘That will not do you any good either,-because we all intend to raise tbe price of ice, and you cannot get it any cheaper. ’ ” t
Lyons admitted having a conversation with Dr. Croskey at the place Croskey named but said it occurred in May of 1906. Lyons detailed the conversation as follows:
“He called across the corner to me, and said, ‘Have you raised the price of ice, too?’ I said, ‘Yes, I have.’ ‘Well,’ he says, ‘what is your reason for raising the price of ice?’ I told him on account of the hot winter and scarcity -of the product. He says, ‘I don’t believe Murphy will raise on me; I have been buying from him a great many years ’ora1 good long time.’ I don’t remember that he stated eight years or any definite period. He told me he had been buying from him for some time, and that he didn’t believe Murphy would raise his price. He said his price was thirty cents a hundred. I said to him, ‘Neither he nor any one else can furnish you that ice at that price this year, if we should have a hot season, if we get a warm season; on account of the conditions of the ice market today, men who are now manufacturing ice will be glad to get it at thirty cents a hundred in carload lots. I have already raised my price on Mr. Murphy and expect to have to do it again.’ He commenced talking to me about everybody going in and raising the price, and I just finished my dinner and got up and left.”
Mr. Joseph Heim testified that the Kansas City Breweries Company had no agreement with anyone as to the amount of ice it should make nor any agreement as to the price at which it should sell. Mr. Van-derslice gave like testimony as to the Vanderslice-Lynds Mercantile Company. Neither of these gentlemen nor any other, however, though both of them and Mr. Miles seem to have been present at the time, de
It may also be observed here that the action of the trial court in overruling the motion to set aside the appointing order and the motion to strike out the testimony on the ground that the case was not referable and consent had not been given, all of which motions were filed after the report was in, is in full harmony with principles heretofore laid down. [Young v. Powell, 87 Mo. l. c. 130; Conley v. Horner, 10 Okla. l. c. 278.]
Under such circumstances the trial court’s ruling refusing a change of venue could not be disturbed (St. L., C. G. & Ft. S. Ry. Co. v. Holladay, 131 Mo. l. c. 452, 453) even if it could be conceded (which it is not) that the general rule that a case cannot be cut in two by a change of venue after the filing of a ref
(1) This is not a reference by consent and, consequently, the rule in such references with regard to the finality of the referee’s findings of fact (Caruth-Byrnes Hardware Company v. Wolter, 91 Mo. 484; State ex rel. v. Hurlstone, 92 Mo. l. c. 332) is not applicable to this case.
(2) Nor is the rule applicable in references in suits in equity, applicable here. Proceedings by information in the nature of quo warranto not instituted under the statute, owe their origin to the common law (High on Extr. Legal Remedies, sec. 593: State ex inf. v. Standard Oil Co., 218 Mo. l. c. 345;. State ex rel. v. Rose, 84 Mo. l. c. 202; State ex rel. v. Miller, 1 Mo. App. 57, 67, 68) and equitable rules, generally speaking,” are not applicable to them.
The information, rule issued thereon, and relief granted are not consistent with any contention that this proceeding is other than an ordinary proceeding* by information in the nature of quo warranto. The case was tried below on that theory and in their briefs and arguments here appellant’s counsel adhere to the trial theory. There is no contention that the proceeding is one in equity — but the contrary.
We agree with the view of the trial court and counsel on both sides that this is a proceeding by information in the nature of quo tvarranto despite the presence in the information of a prayer for an injunction. The remedy by injunction, if any exist, to restrain corporations from continuing unlawful combinations, and that by quo warranto are wholly incon
There are reasons, also, to question the right of a prosecuting attorney in 1906 to institute injunction proceedings under the statute then in force (R. S. 1899, Sec. 8979) except by direction of the Attorney-General (of which there is no pretense in this case) and certainly he could not proceed outside the statute in a case of this hind by injunction against corporations whose business was not affeeted with a public interest. [Attorney-General v. Insurance Company, 74 N. J. Eq. 372; Cook on Corporations, Sec. 635.]
It is not necessary to elaborate these suggestions, huwever, since the case was tried below and heard here upon the theory that it was purely a proceeding by information in the nature of quo warranto and on that theory it must be decided by us. The rule in equity, therefore, with respect to weighing evidence, is inapplicable.
(3) Nor can we apply the rule laid down by the statute (R. S. 1909, Sec. 2013) for the government of those cases in which the report of the referee was approved by the trial court, for the obvious reason that the report in this case was not approved, but exceptions thereto sustained and independent findings made hy the court.
(4) The question which confronts us in this case really is as to what presumptions support the findings of the trial judge, made on the evidence after the referee’s report has been set aside in the exercise of the court’s unquestionable discretion so to do (Utley v. Hill, 155 Mo. l. c. 276) in a case referred by compul
In such cases it is the settled law of this State that the trial court “may act upon the report of the referee and find therefrom different conclusions of fact from those reported by the referee.” [Utley v. Hill, 155 Mo. l. c. 276.]
Once at least this Division has expressed itself directly upon the point. In the ease of Utley v. Hill, 155 Mo. l. c. 258, it was said that the finding of the trial judge in sustaining exceptions on conflicting evidence, when assailed in this court as against the weight of the evidence, would not be reviewed “because it is the settled practice of this court not to review conflicting evidence, nor to review the rulings or findings of the trial courts on such evidence.”
It is true that the evidence was hot before the court and the point need not have been discussed. The fact that the remark quoted was obiter does not, however, deprive it of all its value.
In the case of Williams v. Railroad, 153 Mo. l. c. 511, it was held by Division Number Two of this court, that in case of a conflict between the findings of the circuit court and the referee the presumption in this court was “in favor of the judicial action of the circuit court whose duty and prerogative it was, in a case like this, to examine the report of the referee in the light of the evidence and affirm or reverse his action.” The court declared that rule to be “in harmony with our practice in reviewing the granting or refusing of new trials,” and held that “the presumption is in favor of the action of the trial court and it is only where we find it has abused, its discretion do we interfere with its judgment
In Caruth-Byrnes Hardware Company v. Wolter, 91 Mo. 484, the reference was by consent and the question presented there was wholly different from that appearing for solution here. Nevertheless the court in that case, in discussing the finality of the referee’s findings of facts, said: “Under the present statute, the constant practice in a large class of cases is for the courts to review the findings of the referee upon the evidence reported by him., and to correct the findings when erroneous. When the evidence is preserved, these findings may be reviewed and corrected on an appeal to this court.” The question presented in that case was as to the power of the circuit court to revise the referee’s findings in a case referred by consent and what is said with respect to findings in other classes of cases is not so authoritative as what is said on the point actually before the court for decision. The cases cited in support of the holding quoted do not support it if it is to be interpreted as laying down a rule that this court will set aside the findings of the trial court in this sort of a case merely on the weight of the evidence. Two of the cases cited were equitable in their nature and in the other the trial court had merely referred the report
But the question before the court in Caruth-Byrnes Hardware Co. v. Wolter, was the right of the circuit court, in a case referred by consent, to make findings contrary to those of the referee and render judgment thereon. Nor did the court in that case lay down any rule that it would examine .and pass upon conflicting evidence in a case like that now at bar and make its own findings in accordance with its own views of the weight of the evidence. It was merely held that findings of the trial court contrary to those of the referee might he “reviewed and corrected on appeal. ’ ’
It is to he noted that the remark there made seems as applicable to the review of the findings of the referee which have not been “corrected” by the trial court as to those which have. The premises considered we conclude that the Wolter case is not an authority for the proposition that this court will weigh conflicting evidence in a case of this kind.
That the language used in that case is not put of harmony with the rule laid down in Williams v. Santa Fe Ry. Co., supra, is shown by the fact that in the latter case the Wolter case is cited in support of this court’s power to review the court’s findings of facts (153 Mo. l. c. 495, 511).
In West v. Bank, 110 Mo. App. 496, the St. Louis Court of Appeals .had before it the question whether the findings of fact by the trial court, after sustaining exceptions to the referee’s findings, ought to be upheld, and Judge Goode, in concluding an opinion in which the Court of Appeals gave its reasons for refusing to interfere, said (speaking of a contested
In an action at law tried before the court, the rule which affirms the finality of the trial court’s findings of facts is no less applicable to cases in which the testimony is wholly by deposition than to any other. Nor does the fact that one judge hears the evidence and another decides the case on the transcript thereof affect the rule (Handlan v. McManus, 100 Mo. l. c. 128, 129). In case of a reference of the kind before us, “The referee’s power is limited to recommending judgment. The duty and responsibility as to the judgment rest upon the court. The reference can aid but not bind the judge.” [Utley v. Hill, 155 Mo. l. c. 277.] If this court is to weigh the evidence in a case of this kind merely because the trial court acted on written evidence alone, then, also, must we, to be consistent, pass upon the evidence in all actions at law-tried to the court on depositions and overrule the cases holding that we will do no such thing. By establishing such a rule we can encumber our reports with the consideration of matters which can have no possible value as precedents. We do not think it wise to encourage appeals to this court on mere questions of fact in actions at law, regardless of the method pursued in determining such questions below.
In discussing a question like that here presented and which arose under a statute somewhat similar to our own, the Supreme Court of Oregon, in Liebe v. Nicolai, 30 Oregon, l. c. 372, 373, said:
“From this it would appear that the power of the court to set aside the findings of a referee is not limited to a question as to the sufficiency of the evidence to justify the conclusion reached by bim, but, in our judgment, extends to all the causes prescribed by the statute for setting a verdict aside; and, if the*206 referee’s findings were, by statute, made special verdicts upon tbe issue, instead of being deemed and considered as sncb, tbe power of tbe court to set them aside could not be questioned, and its action in doing so would not be reviewed on appeal, except for an abuse of discretion; and bence tbe question is narrowed to a consideration of tbe legal effect of tbe court’s modification of a referee’s finding. If tbe court, upon setting aside sncb a report, took tbe evidence anew, and found therefrom tbe facts, and determined tbe law itself, a judgment given tbereon, supported by any evidence, ought not, on principle, to be subject to review on tbe facts; but when tbe court, from a mere examination of tbe evidence taken and reported by tbe referee, reaches a conclusion different from that officer, it may be conceded that tbe variance is not tbe result of superior advantages possessed by tbe court, for it does not possess tbe opportunity afforded tbe referee of seeing tbe witnesses as they appeared upon tbe stand, or of observing tbeir tone, manner and bearing while giving tbeir testimony. It might appear to us, from tbe examination of a bill of exceptions, that tbe findings of fact made by tbe trial court were opposed by tbe great weight of evidence, yet by reason of its intimate knowledge of tbe parties, and its ability to note tbe peculiarities of tbe witnesses, which can never by any means be made a part of tbe record, its conclusions of fact must necessarily be presumed to' have been carefully reached. It is tbe application of this rule that prompts tbe trial court to affirm the report of a referee, although it might have reached a different conclusion from an examination of tbe evidence reported; but to say that tbe findings of fact made by a referee are entitled to greater consideration than tbe conclusions reached by tbe trial court, after an examination of tbe evidence, is to concede that, while tbe court possesses power to set aside such report, its action in that respect is*207 nugatory on appeal, unless its findings are supported by a preponderance of the evidence. Such seems to have been the rule adopted in Merchants’ Nat. Bank v. Pope, 19 Ore. 35, for the learned chief justice in commenting upon the facts, says: ‘I have examined the evidence as to the amount of commissions which the said firm was to receive upon the shipment and sales •of the oil and fish, and am of the opinion that the circuit court very properly made the reduction in the amount found to be due by the referees.’ The effect of such a rule, if applied to an appeal from a judgment in an action at law in which the court had- set aside the findings of a referee and reached conclusions of its own from a mere inspection of the evidence reported, would be to deprive the findings of the court of all presumptions of regularity which may be invoked in their favor, and the cause would come here for trial ■de.novo, as in equity cases.”
And the court further said in the same case:
“The triai court not only possesses the power to set aside the report of a referee, but upon doing so its findings of fact, although derived from an inspection of the evidence so reported by the referee, is, in ■our judgment, a new trial by the court, and, as such, the findings so made are entitled to every intendment and presumption that could be invoked in their favor if made upon an original trial by the court. To reach a different conclusion would be equivalent to holding that the trial court, on setting aside the findings of a referee, must hear the testimony, and take the evidence anew, before it could reach a finding of fact of its own; and, as the statute has not prescribed such a mode, we cannot think a procedure of this kind necessary in order to 'give to the findings and judgment, that presumption of regularity to which it is entitled, and must, therefore, hold that the duty of the referee is to advise the court, when so ordered, but that the power appointing him may disregard his counsels, and*208 make its ciwn conclusions from the evidence submitted. Having reached this conclusion, it only remains to be-said that, while the evidence is conflicting upon this subject, there is, nevertheless, some testimony that, tends to support the court’s findings.”
This ruling was made on a statute which provided that the referee’s report when made should, in the-consideration of exceptions thereto, stand as the verdict of a jury, whereas, in this State, the statute gives the effect of a verdict to the report only when it has-been approved by the trial court.
Judge Brewer in the case of Owen v. Owen, 9 Kan. 91, took occasion to compare the positions of the trial and appellate courts with respect to the matter of passing upon the report of a referee as follows :
“Counsel . . . claims that inasmuch as the judge of that court does not see the witnesses who appear before the referee, does not hear them testify, nor know in what manner their testimony is elicited, his judgment can be based only upon the record of that testimony. Hence the report of the referee should stand unless a great preponderance of the evidence is against it. He further claims that this court has the same opportunity as the district court of weighing' correctly the evidence, and that therefore unless the great preponderance of the testimony seems to us against the report we should reverse the order of the district court setting aside the report, and direct its confirmation. These rules applied strictly would make the approval or disapproval of the report of the referee by the district court a mere matter of form, purely a work of supererogation. We do not so-understand the effect of the action of the district court. We think the district court should not set aside the report of a referee as against the evidence unless it clearly appe'ars to him that the referee has failed to give due consideration to some of the testimony, and that a strong preponderance of the testimony is*209 against the report. He will presume that the referee has given dne weight to all the evidence, and that his conclusions therefrom are correct. He will he slow to interfere with those conclnsions. Bnt if he is convinced of the error of that report, and orders it set aside, snch judgment of the district judge should and will carry great weight with this court, for he is in a better position than we are to determine as to the correctness of the referee’s conclusions. The parties to the suit he may know; the witnesses may have been before him in other trials, or he may have heard their testimony on motions in this case. He may understand peculiarities in the mind of the referee which would cause certain kinds of testimony to have undue weight with him. He may be cognizant of personal friendships or antipathies between the referee and the parties, or counsel. He will probably be aware of any difference between counsel in the manner of eliciting testimony, in their adroitness in presenting and withholding evidence, in short, being nearer to the parties and the proceedings, he is more apt to know whether the report of the referee expresses the absolute truth. And when he has acted upon the report we shall not ignore that action and consider the report as though made originally to this court.”
These remarks were made in considering a question somewhat different from that under consideration here but are valuable as indicating the views of a great jurist upon the reasoning which lies at the foundation of appellant’s contention on the point being discussed.
In South Carolina it is held (Gregory v. Cohen, 50 S. C. l. c. 511) that the Supreme Court will not weigh the evidence in passing upon the correctness of the findings of the circuit court made after exceptions to a referee’s report have been sustained. The Constitution of that State, however, limits the Su
In the case of Merchants’ Bank v. Kern, 193 Pa. St. 67, 88, the Supreme Court of Pennsylvania held that the findings of the common pleas court, after setting aside the report of a referee, could he overturned by “nothing but a clear conviction that the court had erred.” The findings 'of the referee in that case were out of accord with the verdict of a jury on a previous trial.
In North Carolina it is held, unhesitatingly, that the findings of the circuit court, “reversing the findings of the referee” cannot be disturbed if there is any evidence to support them. [Baggett v. Wilson, 152 N. C. 182.]
Certain decisions under statutory provisions differing materially from ours, as in Wisconsin, New York, Iowa and (in some instances) Pennsylvania, are not in point on either side of the question and need not be discussed.
The rule laid down in Utley v. Hill, supra, is thus found to have the support of authority in and out of the State and a careful investigation fails to disclose a well considered decision in point which holds the contrary.
, Were there not express authority given the circuit court to hear, as a court, cases in which juries have been waived, its findings, of law and fact, and judgments could not on appeal be reviewed at all since the judge would in that case act rather as an arbitrator. [Boogher v. Insurance Co., 103 U. S. l. c. 96, 97.] Under the laws of Missouri the referee’s findings of fact cannot be said to have been judicially made until approved by the trial court (Ibid., p. 97; R. S. 1909, Sec. 2013), and the findings of the court in cases in which the referee’s findings have been set aside are the only findings in the case which have been judicially made. We are, therefore, of the opinion that
At any rate, the contention of appellants’ counsel that the trial court had no right to set aside the findings of the referee if those findings were supported by any substantial evidence cannot, in view of the authorities cited and the reasons given, be upheld. Whether there is a discernible difference between the rule laid down by this court that a trial court’s action in setting aside a referee’s report and making new findings of its own on the evidence reported by the referee is supported by the usual favorable presumption and is not to be overturned unless it appears that the court, has abused its discretion (Williams v. Railroad, 153 Mo. l. c. 511), and the rule announced by Judge Maeshall (Utley v. Hill, supra) and in the cases cited, to the effect that the trial court’s findings in such circumstances will not be reviewed at all on the weight of the evidence, need not be decided. In this case the conclusion under both rules must be the same.
(5) It may be added that the rule contended for, even if sound, could not be applied to this case since the referee, after admitting evidence of all transactions from the beginning (1898) reached the conclusion, before making his report, that evidence of happenings prior to the formation of the People’s Ice, Storage & Fuel Company was inadmissible and excluded all such evidence from his consideration in reaching his conclusions of fact. The trial court, on the other hand, took this evidence into consideration, and based its findings of facts on the whole of the evidence- reported. The bases of the two findings are entirely different, therefore, and that is an important fact in considering any apparent conflict between the findings of the referee and those of the court. It
With respect to the effect of the allegation that competitive conditions existed prior to 1905 it is unnecessary, at this stage of the proceedings, to say-more than that the allegation is not that such conditions existed in the ice business in Kansas City at all times prior to July 1, 1905, and that we cannot, rightfully, give it such a construction after judgment, to overthrow findings based upon a construction which its language fully warrants.
The ultimate question in this case is, whether or not such an illegal combination existed at any time covered by the charge in the information; and to prove
Tbe re-incorporation was, according to the testimony of W. H. "Winants, tbe vice-president of tbe People’s Ice, Storage & Fuel Company, effected solely in order to add to tbe purposes of tbe old company— not to subtract therefrom. The new company took over and carried out tbe contracts of tbe old; contracts wbicb tend, on their face, to show a purpose to restrict competition. Tbe People’s' Ice & Fuel Company bad been organized and employed .as a mere agency by and through wbicb tbe purposes of tbe original agreement among tbe several ice companies in business in Kansas City in 1898 might be carried out. It was not, nor could it have been, authorized by its
In State ex inf. v. Continental Tobacco Company, 177 Mo. 1, this court said:
“The laws of this State are broad enough to reach individuals who undertake to organize a corporation that would create a trust in itself, but where the corporation is alleged to be duly organized, then the condemnation of the statute as applicable to it is not in the method of its organization; but by its express*215 'terms it denounces and prohibits the unlawful acts, as a legal existing corporation.”
In this case both these elements of illegality are present in the person of the People’s Ice, Storage & Fuel Company. It was organized with the intent that it should become the instrument by which the unlawful purpose of its promoters should be carried out, and its profits received and distributed to the conspirators. Such an instrument is, in itself, as is well said by this colirt in the language above quoted, a trust. Having been organized, its charter powers .could, no doubt, have been devoted to honest enterprise, but instead, it took up the work to which it had been devoted by its promoters, and became an active member, as well as agent and instrument, of the conspiracy to .eliminate competition in the ice business.
In the case last cited, the grounds on which the court rested its decision are stated in the opinion (l. c. 37) as follows:
“It was a legitimate inquiry by the commissioner as to the integrity and good faith of the transfer by the American Tobacco Company of all its assets to the Continental Tobacco Company, and we have no hesitation in saying, considering the amount involved, the extent and far-reaching scope of the transaction, it was sufficient in itself to arouse in the mind of the Attorney-G-eneral a strong suspicion, yes, even a strong probability, that a trust was being created; and warranted his prompt action in the interest of the public, by filing the information herein.
“However, it must be remembered that this.proceeding partakes, of the nature of a criminal prosecution, severe penalties are imposed, hence it is not sufficient to warrant a finding adverse to respondents, that we may entertain strong suspicions, or even strong probabilities, of their guilt. Such conclusions should only be reached upon a clear showing by the testimony, fully satisfying the minds of the court*216 that they were guilty of the violations of the law as charged in the information.
“The case of Distilling Company v. People, 156 Ill. 448, is distinguished from this case by reason of the facts. In that case there was a trust formed by a number of unincorporated associations, and as was shown by the testimony, to evade the condemnation of the statute.. This same trust of unincorporated associations incorporated and conducted the business along the same lines, and with a similar purpose. The court said: ‘That corporation thus succeeds to the trust, and its operations are to be carried on in the same way, for the same purposes, and by the same agencies, as before.’
“The commissioner, in the case before us, finds the facts just the reverse of the Illinois distilling case. The commissioner, who is one of the circuit judges of this State, has heard the testimony, had the witnesses before him, and reports that from the evidence adduced, there was nothing unlawful in the sale and purchase of the assets of the corporations, as detailed in the report. We will not disturb the finding of the commissioner in that respect.”
That there was in existence July 1, 1905, a conspiracy to lessen competition the evidence tends •strongly to show, and that there is much evidence that the People’s Ice, Storage & Fuel Company, on that date, stepped into the shoes of one of the participants therein cannot be successfully denied. Under the general rule, if a conspiracy exist and another join with the conspirators he “would be deemed a party to all acts done by any one of the conspirators, before or afterwards, in furtherance of the common design” (State v. Walker, 98 Mo. l. c. 105, 106) and no reason appears why this rule is not applicable in this case.
It was held in State ex. inf. v. Standard Oil Company, 218 Mo. l. c. 458, 459, that it made no difference where an unlawful pool, trust or conspiracy in re
The statute of this State leaves scant,room for construction. We are not concerned in this case with any question as to a contract, otherwise lawful, which incidentally restrains trade. The rule applicable in such a case is not applicable in this. Nor is it within our province to give the statute any other meaning than its language imports. Our duty to apply the statute as it is written is as plain as the language of that statute and in that language there is no ambiguity. The statute condemns every direct restraint of trade, great or small. It closes the only door through which doubts as to its construction could enter by positively
The case of Standard Oil Company v. United States, 221 U. S. 1, cannot be relied upon to elicit a. different answer to the contention now being considered. In that case it was said, in effect, that the-act of July 2, 1890 (the Federal Anti-Trust Act') was-inapplicable to combinations and conspiracies in restraint of trade which did not have the effect of restraining trade unreasonably. A considerable portion of the opinion is devoted to the discussion of the question. The court did, however, hold that the Standard Oil Company unreasonably monopolized and restrained trade and, consequently, the reason for its-discussion of the question as to. what rule might apply when some defendant or combination which but reasonably restrained trade might appear at its bar is not apparent. Such discussions under ordinary-circumstances are usually termed obiter dicta and not regarded as authoritative beyond their intrinsic value as arguments. We need not enter into a discussion of the decision in that case, however, since the rule first stated is established in this State and since our statute precludes all question on the subject.
The foregoing opinion of Blair, C., is adopted as the opinion of the court.
