Gambar halaman


Ann. Cas. 1917E, 900, 14 N. C. C. A. statutes at every port, are not difficult 597, and Knickerbocker Ice Co. v. to see. Of course, some within the Stewart (U. S.) supra. They rely states may prefer local rules; but the especially upon Western Fuel Co. v. Union was formed with the very defiGarcia (1921) 257 U. S. 233, 66 L. ed. nite design of freeing maritime com210, 42 Sup. Ct. Rep. 89; Grant-Smith- merce from intolerable restrictions inPorter Ship Co. v. Rohde (1921) 257 cident to such control. The subject is U. S. 469, 66 L. ed. 321, 25 A.L.R. 1008, national. Local interests must yield 42 Sup. Ct. Rep. 157, and State In- to the common welfare. The Constidustrial Commission Nordenholt tion is supreme.” Corp. (1921) 259 U. S. 263, 66 L. ed. And the decision in Farrel v. Water933, 25 A.L.R. 1013, 42 Sup. Ct. Rep. man S. S. Co. (1923) 286 Fed. 284, set 473, 21 N. C. C. A. 862." And after out in the prior annotation, at page reviewing the decisions, the court said, 1042, where the amendment of June in conclusion: “None of the later 10, 1922, to the Judicial Code, was held cases depart from the doctrine of unconstitutional, was affirmed on reSouthern P. Co. v. Jensen, and argument in (1923) 291 Fed. 604, the Knickerbocker Ice Co. v. Stewart, and court holding that Congress has no we think the provisions of the Act of power to lessen the jurisdiction con1922 cannot be reconciled therewith. ferred by the provision of the ConstiWithout doubt Congress has power to tution for jurisdiction as “to all cases alter, amend, or revise the maritime of admiralty and maritime jurisdiclaw by statutes of general application, tion." embodying its will and judgment.

And in the Canadian Farmer (1923) This power, we think, would permit 290 Fed. 601, the Amendment of June enactment of a general employers' lia- 10, 1922, of the Judicial Code, was bility law, or general provisions for held unconstitutional in the case of an compensating injured employees; but injury to one while working on a vesit may not be delegated to the several sel, unloading. The court there said: states. The grant of admiralty and “Concededly, Congress has full genmaritime jurisdiction looks to uniform- eral power to change the form of ity; otherwise, wide discretion is left remedies, determine procedure, and to Congress. Knickerbocker Ice Co. define and declare the maritime law v. Stewart. Exercising another power,

as it shall be administered in the -to regulate commerce,-Congress

United States. If it chooses to so has prescribed the liability of inter- define and classify claims as to make state carriers by railroad for damages some nonmaritime, no doubt its action to employees (Act April 22, 1908, chap. would be effectual. This is very dif149, 35 Stat. at L. 65, Comp. Stat. & ferent from leaving a class of claims 8657, 8 Fed. Stat. Anno. 2d ed. p.

within the maritime field, and pro1208), and thereby abrogated conflict- viding that sometimes the district ing local rules. New York C. R. Co. courts may take jurisdiction, and v. Winfield (1917) 244 U. S. 147, 61

sometimes not, dependent upon whethL. ed. 1045, L.R.A.1918C, 439, 37 Sup. er the states in which the districts Ct. Rep. 546, Ann. Cas. 1917D, 1139, are located have provided other reme14 N. C. C. A. 680. This cause presents dies.”. a situation where there was no attempt

And the Canadian Farmer Case to prescribe general rules. On the was relied on in Bloom v. Furnesscontrary, the manifest purpose was Withy & Co. (1923) 293 Fed. 98, in to permit any state to alter the mari- holding the amendment of June, 1922, time law, and thereby introduce con- above referred to, invalid in so far as ficting requirements. To prevent this it attempted to deprive the district result the Constitution adopted the court of admiralty jurisdiction which law of the sea as the measure of mari. it before possessed. time rights and obligations. The con- And the same amendment was held fusion and difficulty, if vessels were unconstitutional in The Mercedes de compelled to comply with the local Larrinaga (1923, 293 Fed. 251, where

the court said: "It seems clear from would not have jurisdiction over the the history of the clause relating to action against the vessel given by the commerce, and also the clause relating maritime law, because the act provides to admiralty jurisdiction, that the Con- that 'the jurisdiction of the district gress exceeded its power in passing courts shal: not extend to causes aris. the Act of June 10, 1922. It is true ing out of injuries to or death of perthat the Constitution does not require sons other than the master or meminferior Federal courts to be estab- bers of the crew, for which compenlished (U. S. Const. art. 3, § 1), and sation is provided by the workmen's that their jurisdiction may be changed compensation law of any state.' I am from time to time (25 C. J. 690, and of the opinion that under the decisions cases cited; Sheldon v. Sill (1850) 8 of the United States Supreme Court, How. (U. S.) 441, 12 L. ed. 1147; and on account of the constitutional Geiger v. Tacoma R. & Power Co. requirement that the jurisdiction of (1905; C. C.) 141 Fed. 169). But the the Federal courts in admiralty mathistory of the commerce clause and of ters shall be exclusive, the statute is the admiralty courts, together with unconstitutional.” the general acquiescence in the situa- And in O'Hara's Case (1924) tion since 1787, shows that Congress Mass. 142 N. E. 844, it was held has exceeded its power by trying to that the Act of Congress of June 10, give to the states part of its admiralty 1922, chap. 216, 42 Stat. at L. 634, jurisdiction. Martin v. Hunter (1816) Comp. Stat. SS 991 (3), 1233, Fed. 1 Wheat. (U. S.) 304, 330, 4 L. ed. 97, Stat. Anno. Supp. 1922, p. 225, amend103. It has always been held that the ing § 24, cl. 3 and § 256, cl. 3 of the state courts have no jurisdiction in Judicial Code was inoperative in the admiralty. American Ins. Co. v. 356 cases at bar as the injuries occurred Bales of Cotton (1828) 1 Pet. (U. S.) prior to its passage, and the court also 511, 546, 7 L. ed. 243, 256; Rose, Fed. called attention to the fact that the Jur. & Proc. 2d ed. § 130; The Moses aniendment had been held unconstituTaylor (1867) 4 Wall. (U. S.) 411, 18 tional. L. ed. 397. And see 3 Warren, Su- The amendment of the Judicial Code preme Ct., in United States History, p. of October 6, 1917, which was finally 137. A curious result of the statute, decided to be unconstitutional evidently not contemplated by Con- Knickerbocker Ice Co. v. Stewart gress, would be that in cases where (1920) 253 U. S. 149, 64 L. ed. 834, 11 compensation was granted by a state, A.L.R. 1145, 40 Sup. Ct. Rep. 438, 20 all other remedies would be abolished. N. C. C. A. 635, set out in the earlier In the present case the remedy which annotation, at page 1042, was also held the libellant seeks against the vessel unconstitutional in Sudden & Chrisis entirely independent of the Work- tenson v. Industrial Acci. Commission men's Compensation Act, and under s (1920) 182 Cal. 437, 188 Pac. 803, on 15 of chapter 152 of the General Laws the ground that to give it effect would of Massachusetts the longshoreman destroy the uniformity of the maritime may elect this remedy, rather than the law. And the same conclusion was compensation provided by the act. As reached in Zurich General Acci. & Liathe case at bar is one where compen- bility Ins. Co. v. Industrial Acci. Comsation is provided for the injuries of mission (1923) Cal. --, 218 Pac. the longshoreman, the district court 563.

J. T. W.

in (- La. -, 98 So. 748.)

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(- La.

98 So. 748.) Monopolies - laundry business.

1. A laundry business is not trade or commerce within the operation of a statute making it unlawful for one engaged in commerce to make sales or fix prices on condition that purchasers of goods shall not handle competitors' goods, where the effect would lessen competition or tend to create a monopoly.

[See note on this question beginning on page 533.] Indictment effect of indorsement.

the statute or language equivalent to 2. The body of an indictment rather

that used in the statute. than the indorsement upon it must

[See 14 R. C. L. 185; 3 R. C. L. Supp. considered in ascertaining the

191; 4 R. C. L. Supp. 885.] crime charged.

waiver of defects. Criminal law

5. If an indictment does not sufrepugnancy of statutes - effect.

ficiently set forth the acts charged

against the accused, particularly in 3. Where two criminal statutes are

matters of description, he waives the repugnant as to the punishment which

defect if he fails to ask for a bill of may be inflicted, they cannot stand

particulars. together.

Constitutional law who may raise [See 25 R. C. L. 920; 3 R. C. L. Supp.

question. 1434; 4 R. C. L. Supp. 1608.]

6. An accused cannot raise the quesIndictment - sufficiency - statutory

tion of the constitutionality of a statoffense.

ute which is not the basis of the pros4. In prosecutions for purely statu- ecution against him. tory offenses, it is sufficient for the [See 6 R. C. L. 89; 2 R. C. L. Supp. indictment to follow the language of 21; 4 R. C. L. Supp. 379.]

for the State:

APPEAL by the State from a judgment of the Criminal District Court for the Parish of Orleans, Division B (O'Donnell, J.), sustaining a motion to quash an indictment charging defendant with unlawfully attempting to monopolize a certain part of trade and commerce within the limits of the state. Affirmed.

The facts are stated in the opinion of the court.

Messrs. A. V. Coco, Attorney Gen- Geise v. Pennsylvania F. Ins. Co. eral, R. H. Marr, and T. S. Walmsley, Tex. Civ. App. — 107 S. W. 555; State

ex rel. Coleman v. Western U. Teleg. Motion to quash will be granted Co. 75 Kan. 609, 90 Pac. 299; Beall v. when it is clear that the indictment Beck, 3 Cranch, C. C. 666, Fed. Cas. No. would not support a judgment of con- 1,161; Colby v. Dean, 70 N. H. 591, 49 viction, but not otherwise.

Atl. 574; Re Pinkney, 47 Kan. 89, 27 Clark, Crim. Proc. p. 364.

Pac. 179; Re Master Granite s Blue Since the indictment is drawn in Stone Cutters, 23 Pa. Co. Ct. 517; State the language of the statute, it is cer- v. Worth, 116 N. C. 1007, 21 S. E. 204; tain that it would sustain a conviction. Webb Press Co. v. Bierce, 116 La. 905,

State v. Maloney, 115 La. 498, 39 So. 41 So. 203. 529; State v. Apfel, 124 La. 649, 50 So. The charge against an accused is

that which is contained in the indictThose who run steam laundries are ment, and not the mere indorsement engaged in trade or commerce.

of the crime on the indictment.


State v. Daniels, 122 La. 261, 47 So. 599; State v. Pointdexter, 117 La. 380, 41 So. 688; State v. Russell, 33 La. Ann. 135; State v. Rohfrischt, 12 La. Ann. 382; State v. Dehart, 109 La. 570, 33 So. 605; State v. Valere, 39 La. Ann. 1061, 3 So. 186; State v. Smith, 5 La. Ann. 341.

The contention that our Anti-trust Law is unconstitutional because one of the objects contained in the body of the act is not in the title is groundless.

State v. Harwick, 133 La. 545, 63 So. 166; State v. Ferguson, 104 La. 249, 81 Am. St. Rep. 123, 28 So. 917; 1 Sutherland, Stat. Constr. p. 199; Shreveport v. Kahn, 136 La. 380, 67 So. 35; Lacoste v. Department of Conservation, 151 La. 909, 92 So. 381; Tremont Lumber Co. v. May, 143 La. 389, 78 So. 650; State v. Dalcourt, 112 La. 422, 36 So. 479; State V. Abrams, 121 La. 550, 46 So. 623; Ruston v. Fountain, 118 La. 53, 42 So. 644; State ex rel. Mioton v. Baker, 112 La. 801, 36 So. 703; Hope v. New Orleans, 106 La. 345, 30 So. 842; State ex rel. Wynne v. Lee, 106 La. 400, 31 So. 14; Allopathic State Medical Examiners v. Fowler, 50 La. Ann. 1358, 24 So. 809; Soniat v. Supple, 48 La. Ann. 296, 19 So. 128; Williams v. Western Star Lodge, 38 La. Ann. 620; State ex rel. Cobb v. Judges Circuit Ct. of Appeal, 32 La. Ann. 774; Hammond v. Lesseps, 31 La. Ann. 337; New Orleans v. Cazelar, 27 La. Ann. 156; Pierson's Case, 44 La. Ann. 90, 10 So. 400.

Messrs. St. Clair Adams, John C. Davey, and Charles A. Byrne, for appellee:

Act 86 of 1890, and particularly § 3 thereof, have been repealed by Act No. 11 of Extra Session 1915, and particularly by § 2 thereof, for the reason that said statutes are upon the same subject-matter, and the terms of the former statute are repugnant to and in conflict with the terms of the latter statute; and, furthermore, for the reason that the latter statute contains a repealing clause.

16 C. J. 69; Marr, Crim. Jur. (La.) § 6, p. 14; State v. Clay, 12 La. Ann. 431; State v. O'Conner, 13 La. Ann. 486; State ex rel. Carcass v. Judge of First Dist. Ct. 32 La. Ann. 723; Barnard v. Gall, 43 La. Ann. 961, 10 So. 5; State v. White, 49 La, Ann. 127, 21 So. 141; State v. Callahan, 109 La. 946, 33 So. 931; State v. Hickman, 127 La. 442, 53 So. 680.

An attempt to commit a crime is a separate and distinct offense, consid

ered with reference to the crime itself, involving a separate state of facts and a different definition.

16 C. J. pp. 111-117; 1 Bishop, New Crim. Law, SS 435, 437; 1 Clark & M. Crimes, 2d ed. p. 177; State v. Harwick, 133 La. 545, 63 So. 166.

Section 3 of the Act of 1890, and § 2 of the Act of 1915, are unconstitutional, because said sections denounce as offenses acts and offenses not set forth or indicated in their titles, and therefore the bodies of said acts are broader than their titles; and are violative of the Constitution.

1 Lewis's Sutherland, Stat. Constr. 2d ed. S$ 102, 120; State ex rel. Lewis v. Pierson, 44 La. Ann. 90, 10 So. 400; State v. Ferguson, 104 La. 249, 81 Am. St. Rep. 123, 28 So. 917; State v. Duson, 130 La. 488, 58 So. 159; State ex rel. Young v. Capdevielle, 135 La. 669, 65 So. 890; State v. Jackson, 137 La. 741, 69 So. 158; Mason V. New Orleans Terminal Co. 143 La. 616, 79 So. 26; State v. Mayfield, 147 La. 994, 86 So. 421.

The term "trade or commerce" as used in § 2 of the Act of 1915 is defined by $ 4 of the statute, and its purview is limited and restricted by the definition contained in said section, and, therefore, its meaning cannot be broadened by judicial construction in order to extend to cases not clearly intended by the statute.

Lewis's Sutherland, Stat. Constr, 2d ed. § 422; State v. Gardner, 151 La. 874, 92 So. 369; State ex rel. Moose v. Frank, 114 Ark. 47, 52 L.R.A.(N.S.) 1149, 169 S. W. 333, Ann. Cas. 1916D, 983; Rohlf v. Kasemeier, 140 Iowa, 182, 23 L.R.A. (N.S.) 1284, 132 Am. St. Rep. 261, 118 N. W. 276, 17 Ann. Cas. 750.

The steam laundry business is not 'trade or commerce" within the intendment of § 2 of the Act of 1915, but is a personal service or labor merely.

State ex rel. Moose v. Frank, 114 Ark. 47, 52 L.R.A. (N.S.) 1149, 169 S. W. 333, Ann. Cas. 1916D, 983; Rohlf v. Kasemeier, supra; Com. v. Keystone Laundry Co. 203 Pa. 289, 52 Atl. 326; State ex rel. Star Pub. Co. v. Associated Press, 159 Mo. 410, 51 L.R.A. 151, 81 Am. St. Rep. 368, 60 S. W. 91; State v. Duluth Bd. of Trade, 107 Minn, 506, 23 L.R.A.(N.S.) 1260, 121 N. W. 395; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 22 L.R.A. (N.S.) 607, 128 Am. St. Rep. 492, 114 S. W. 997; Muir v. Samuels, 110 Ky. 605, 62 S. W. 481; Re White Star Laundry Co. 117 Fed. 570.

(- La. 98 So. 748.) Thompson, J., delivered the opin- be prosecuted under the repealed ion of the court:

statute, but, as the indictment folThe state appeals from a judg- lows the language of the later act, ment which sustained a motion to it is sufficient, if it is otherwise lequash the indictment against the de- gal and the defendant is brought fendant. The charge is that the de- within its terms. fendant "did unlawfully attempt to Another ground of the motion to monopolize a certain part of the quash is that the indictment is bad trade and commerce within the lim- for uncertainty, because it does not its of this state, to wit, the laundry allege or set out in what manner debusiness in the city of New Or- fendant unlawfully attempted to leans."

monopolize the laundry business in There are two acts of the legisla- the city of New Orleans, or what ture (Act 86 of 1890 and Act 11 of facts and circumstances constituted the Extra Session of 1915) whose said attempts to monopolize. It is purpose was to protect trade and true that neither the indictment nor commerce against unlawful re- the agreed statement of facts instraints, combinations, conspiracies, forms us of the relation which the and monopolies. One of the grounds defendant bears to the laundry of the motion to quash is that the business of New Orleans, and what charge against the defendant is interest he has therein, whether as based on Act 86 of 1890, whereas owner, lessee, manager, or agent. that act was repealed by Act 11 of Nor does the indictment set out in 1915. It is admitted that the dis- what manner the defendant attrict attorney had before him the tempted to bring about a monopoly Act of 1890 when he prepared the of the laundry business. Section 10 indictment, and this is plainly indi- of the Bill of Rights of the Consticated by the indorsement on the tution of 1921 plainly provides that back of the indictment. The lan- in all criminal prosecutions the acguage of the indictment, however, cused shall be informed of the nafollows substantially that of Act 11 ture and cause of the accusation of the Extra Session of 1915, and it against him, and prosecuting officers

is to the body of the would do well more carefully to obIndictment

indictment that we serve this constitutional require. dorsement. must look to ascer- ment; but the rule is well settled tain the crime with which a defend- that, in


Indictmentant is charged, rather than to the tions for

purely sufficiencyindorsement, which is no substan- statutory offenses, statutory tive part of the indictment or it is sufficient for charge. State v. Pointdexter, 117 the indictment or information to La. 380, 41 So. 688; State v. Daniels, follow the language of the statute or 122 La. 261, 47 So. 599.

language equivalent to that used in There can be no doubt that the the statute. State v. Bulloch, 151 Act of 1890 was superseded by the

La. 594, 92 So. 127. And it is anothAct of 1915. The two acts are in- er familiar rule of jurisprudence consistent, the one with the other, that, if the indictin that the latter act makes the ment does not suffi- -walver of de

fects. crime intended to be denounced a ciently set forth the relative felony, while the former acts charged against the defendant made the crime only a misdemeanor. particularly in matters of descrip

Where two criminal tion, he waives the defect, if he fails Criminal lawrepugnancy of statutes are repug- to ask for a bill of particulars. statutes-effect.

nant as to the pun- State v. Cleary, 152 La. 265, 92 So. ishment that may be inflicted, they 892; and cases there cited. cannot stand together. State v. The motion to quash attacks the Hickman, 127 La. 442, 53 So. 680. constitutionality of Act 86 of 1890, Of course, the defendant could not on the ground that said act is re

31 A.L.R.-34.

effect of in

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