« SebelumnyaLanjutkan »
law-who may raise question.
pugnant to article 29 of the Consti- machinery designed for the purpose, tution of 1879, article 31 of the Con- supplemented by manual labor, perstitution of 1898, and § 16 of article formed by men and women. 3 of the Constitution of 1921, which "All materials used in the washprovide that every law shall em- ing, starching, and ironing operabrace but one object, which shall be tion, such as soap, starch, bluing, expressed in its title. The question and other necessary articles, are
is of no importance purchased by the laundry from the Constitutional
and concern to the manufacturers or dealers.
defendant, since he "The laundry requires the use of is not prosecuted under the Act of a large number of wagons and mo1890, and since that act has been re- tor trucks and the services of a large pealed by the Act of 1915. We note number of drivers to transport the in defendant's brief that his learned laundry from and to the residences, counsel argue the same constitution- places of business, ships, hotels, and al objection against the Act of 1915, different agencies in the city. but we do not find any such attack “The laundries trade or deal with in the motion to quash, and there their customers through the truck has been no assignment of errors or wagon drivers who solicit busifiled. But be that as it may, there ness; paid solicitors employed by the is a ground set up in the motion laundries; various agencies estabwhich we regard as fatal to the in- lished throughout the city and in dictment and prosecution against other towns; and the offices of the the defendant, and, this being true, different laundries." it is unnecessary to consider the The title of the act is: "To Proquestion of the constitutionality of tect Trade and Commerce against the act. At all events, the defend- Unlawful Restraints, Combinations, ant, under the conclusion we have Conspiracies, and Monopolies, and reached, is without interest to raise to provide Remedies" and penalties the question of the constitutionality "against Same" of the act. State v. Rogers, 148 La. The 1st section of the act relates 653, 87 So. 504.
to anti-trust contracts : The motion to quash alleges that "That every contract, combinathe indictment and the matters and tion in the form of trust or otherthings therein alleged set forth and wise, or conspiracy, in restraint of charge no crime known to the laws trade or commerce in the state of of Louisiana ; that the laundry busi- Louisiana, is hereby declared to be ness in the city of New Orleans is illegal.” not trade or commerce, and is not "Every person who shall make trade or commerce within the mean any such contract, or engage in any ing and intendment of those words such combination or conspiracy, as used in the statute under which shall be deemed guilty of a misdesaid indictment was drawn.
meanor,” etc. It is admitted in the statement of “Sec. 2. That every person who facts attached to the motion to shall monopolize, or attempt to moquash:
any part of the "That in the laundry business in trade or commerce within the state the city of New Orleans no article of Louisiana, shall be deemed guilis manufactured or sold, said laun- ty,” etc. dries doing no business other than “Sec. 4. That it shall be unlawreceiving dirty clothes, laundering ful for any person engaged in comthem, and returning them, cleansed, merce, in the course of such comto the customer.
merce, to lease or sell, or contract "That the operation of washing, for the sale of goods, wares, merdrying, starching, dampening, and chandise, machinery, supplies, or ironing the laundry is largely me- other commodities, whether patentchanical or by means of steam and ed, or unpatented for use, consump
98 So. 748.) tion, or resale within this state, or reason already stated. A careful to fix a price charged therefor, or reading of $ 4 shows that it does not discount from, or rebate upon such seek to forbid or to make unlawful price, on the condition, agreement, the acts and things therein recited or understanding that the purchaser when committed by any person; but or lessee thereof shall not use or deal only such persons as are engaged in in the goods, wares, merchandise, commerce and in the course of commachinery, or other commodities of
merce, etc., are to be brought under a competitor or competitors of the the condemnation of the section. vendor or lessor, where the effect of And it is only made unlawful for such sale, or contract for sale, or such persons to lease or sell, or to lease, or such condition, agreement, contract for the sale of goods, etc., or understanding may be to sub- for use, consumption, or resale, or to stantially lessen competition or tend fix a price charged therefor on the to create a monopoly in any line of condition or agreement that the purcommerce.”
chaser or lessee shall not use or deal It is clear that the charge as set in the goods, etc., of a competitor of out in the indictment does not bring the said vendor or lessor, where the the defendant within the terms of effect may be to lessen competition the 1st section of the act, for that or to create a monopoly. section relates exclusively to con- When we come, therefore, to contracts, etc., in restraint of trade. sider the section referred to in conSection 2 does not define what acts nection with the business of laundry shall constitute an attempt to mo- as shown by the statement of facts, nopolize any trade or commerce, nor there is left no possibility of doubt what acts shall constitute a monop- that such business is utterly and tooly within the intent and purpose of tally foreign to the “trade and comthat section, which is the only sec- merce" which the lawmakers had in tion of the act that fixes a penalty view, and the restraint of which it for the doing of the things men- was the object and purpose of the tioned in the section as unlawful. statute to prevent.
We must have recourse, therefore, The business of the laundry is not to g 4 for a definition of “an attempt to lease or to sell, nor does a laundry to monopolize trade and commerce,' deal in goods, wares, and merchanif any such definition is to be found dise, or other commodities. Nor has in the act at all. Counsel for the it anything to do with the fixing of state concede that, if the Act of 1915 the prices of commodities. In other consisted of § 4 alone, there might words, there is absolutely nothing in be some force in defendant's conten- connection with the business carried tion, but they say that other things on by the laundry, or the method are forbidden by the other sections pursued in operating the laundry of the act. That is quite true, but business, that would bring the launsearch will be made in vain to find dry within any definition of “trade” any other provision of the act that or “commerce," in the sense in which would bring the case of the defend- those words are used in the statute, ant within the prohibition of $ 2, or or that would even suggest to the connect the laundry business with ordinary mind that such laundry the things therein mentioned, that was a concern engaged in trade and furnishes a definition of the things commerce. We are unable to consought to be prohibited and pun- ceive of any rule of interpretation ished therein.
by which the terms of the statute It can hardly be seriously ques- can be so broadened or enlarged as tioned that, if § 2 was the only sec- to bring the laundry business theretion in the act which made an “at- under. tempt to monopolize
any An examination of the jurisprupart of trade or commerce” a crime, dence of this state fails to discover the prosecution would fall for the any case dealing with the precise price
LAW REPORTS, ANNOTATED. [31 A.L.R. question here involved. The cases graph, or the insurance business, to cited by the learned counsel for the which counsel would apply the words state from other jurisdictions have "trade" and "commerce," come withno important bearing, and certainly in the terms of said statute. cannot be accepted as controlling. An interesting case, and doubtless As a rule the cases apply to particu- the leading case, where the court lar statutes, and the sense in which had under discussion the question the words "trade" and "commerce" as to whether the business of a launare used in those cases has no appli- dry came within the purview of an cation, and furnishes no aid in deter- anti-trust statute, is the case of State mining the instant case. For in- ex rel. Moose v. Frank, 114 Ark. 47, stance, it was said in Geise v. 52 L.R.A.(N.S.) 1149, 169 S. W.333, Pennsylvania F. Ins. Co. - Tex. Civ. Ann. Cas. 1916D, 983, cited by counApp. -107 S. W. 555: “In its sel of defendant. The court, in conbroad and general sense ['trade'] cluding quite a lengthy opinion, covers and embraces all occupations said: “The business of laundering in business, with the possible excep- is a mere service done, whether pertion of the learned professions, and formed by hand or by machinery, those that pertain to the liberal arts and an agreement to regulate the and the pursuit of agriculture.”
therefor is in its last In State ex rel. Coleman v. West- analysis merely an agreement to fix ern U. Teleg. Co. 75 Kan. 609, 90 the price of labor, or services, and Pac. 299: “Intercourse between pri- the legislature of this state has not vate parties by means of telegraphic made such an agreement unlawful.” communications is simply commerce, Other cases cited by counsel along although they are carried over the same line, and which we deem routes which are post roads."
it unnecessary to review in this opinIn Beall v. Beck, Fed. Cas. No. ion, are Rohlf v. Kasemeier, 140 1,161, it was held that a keeping of a Iowa, 182, 23 L.R.A.(N.S.) 1284, 132 boarding house is of itself a trade. Am. St. Rep. 261, 118 N. W. 276, 17 And in one of the cases, Re Pink- Ann. Cas. 750; State ex rel. Star ney, 47 Kan. 89, 27 Pac. 179, it was Pub. Co. v. Associated Press, 159 remarked that "in the broader Mo. 410, 51 L.R.A. 151, 81 Am. St. sense (trade) is any occupation or Rep. 368, 60 S. W. 91; Muir v. Sambusiness carried on for subsistence uels, 110 Ky. 605, 62 S. W. 481. or profit.”
In State v. Fontenot, 112 La. 628, Surely counsel would not for a mo
36 So. 630, it was said: “Unless an ment contend that any such broad
act can be brought within the meanand general definitions and use of ing of the words of the statute, it is the terms could be made to bring the
not a crime, though it comes within
the mischief sought to be remedied business of a laundry under the
by the statute, and is of equal atrocterms of the statute, in the absence
ity with the acts enumerated by the of any language to be found in the
statute.” statute that would remotely indicate
“Courts may be authorized somethat it was the purpose of the law
times to restrain the generality of makers to do so. It might with
the terms of a law so as to exclude equal propriety be said, in a general from its operation exceptional cases, way, as of the telegraph business, or
but not to enlarge the terms of a of the boarding-house business, or limited law." State v. Leo, 108 La. of the insurance business, mentioned 496, 32 So. 447, 15 Am. Crim. Rep. in the cases cited, that in a certain 272. sense laundering clothes is a trade In State v. Gaster, 45 La. Ann. or a business; but it cannot be so 636, 12 So. 739, Mr. Justice Fenner, classed in the sense as used in the as the organ of the court, had this statute we are dealing with. Nor to say:
"All crimes in Louisiana would the boarding-house, the tele- are statutory, and there can be no
98 So. 748.) crime which is not defined and de- Our conclusion is that the laundry nounced by statute. The determina- business operated in the city of New tion and definition of acts which are Orleans, as disclosed by the evipunishable as crimes are purely dence, is not "trade
Monopolieslegislative functions, which cannot or commerce,” in la dry busibe delegated to or exercised by the the sense said words judiciary."
are used in $8 2 and 4 of Act 11 of And in a more recent case, State the extra session of 1915; and that v. Gardner, 151 La. 874, 92 So. 369, said laundry business was not inMr. Justice St. Paul, for the court, cluded within the prohibition of said quoted with approval from United two sections of said act. States v. Reese, 92 U. S. 220, 23 L. The judgment appealed from is ed. 563, as follows: “It would cer- therefore affirmed. tainly be dangerous if the legisla
Rehearing denied by whole Court, ture could set a net large enough to
January 7, 1924. catch all possible offenders, and leave it to the courts to step inside and O'Neill, Dawkins, and Land, JJ., say who could be rightfully detained dissent from refusal to grant reand who should be set at large." hearing.
ANNOTATION. Laundry business as within statute relating to monopolies. The decision in the reported case court referred to authority to the ef(STATE v. MCCLELLAN, ante, 527), fect that the word "commodity” is that a laundry business is not with- ordinarily used in the commercial in the provisions of a statute relating sense of any movable and tangible to monopolies or trusts and applying thing which is produced or used as to persons who attempt to monopolize the subject of barter or sale, and held "trade or commerce," appears to be
that this term did not apply to the a novel one, in so far as the specific laundry business. It was said: "It holding is concerned, although there
is concluded by the state that an are other cases, some of which are agreement to fix the price of laundercited in the opinion in that case, which
ing is not an agreement to fix the throw more or less light on the ques
price of 'any article of manufacture, tion involved. The court took the
mechanism, or merchandise;' but it view, which is supported by other
is contended that the facts here alcases cited in the annotation, that as
leged constitute an agreement to fix the business of a laundry is not to
the price of a commodity, convenience, lease or to sell, or to deal in goods, or repair. And it is not contended by wares, and merchandise, or other the state that the business of laundercommodities, and has nothing to do ing is included in the term 'any artiwith the fixing of prices of commodi- cle or thing whatsoever.' This last ties, its business is not "trade or contention could not be sustained, becommerce" within the prohibition of
cause, if the business of laundering is the statute.
not a commodity, convenience, or reIt was held in State ex rel. Moose pair, then it would not be embraced v. Frank (1914) 114 Ark. 47, 52 L.R.A. in the words 'article or thing whatso(N.S.) 1149, 169 S. W. 333, Ann. Cas.
A study of its terms 1916D, 983, that an agreement to fix makes the fact plain that the legislathe price of laundry work is not with- ture has not included within the inin the operation of a statute declaring hibition of this act agreements relatit to be a conspiracy to become a party ing to the price of labor. The questo an agreement to fix the price of any tion has several times been before the commodity, convenience, or repair, or courts of various states as to whether any article or thing whatsoever. The a laundry was a manufacturing estab
lishment or not, and, so far as we are within the meaning of the section advised, it has been uniformly held quoted. In the common understandthat it is not.
If the business ing the function of a laundry is to of laundering is not a commodity, make clothes clean rather than to then an agreement fixing prices for make clean clothes. But if it were the performance of that service is not true that in the classification of ocwithin the inhibition of the Anti-trust cupations this business should be asAct. No other word or term in that signed to the manufacturing class, act could include that business. The still the statute would have no appliact does use the word 'repair,' but it cation to the case before us. The law cannot be seriously contended that was intended to redress a well-known this word is sufficient to embrace the
evil. It was designed to prevent manbusiness of laundering. It may be ufacturers and dealers in articles of true that to some extent laundries do
commerce from combining for the purrepair clothes which they wash; but it pose of lessening competition, regulatdoes this as a mere incident to that ing production, and increasing profits. business; and by such service they It was intended to secure to the pubmerely repair the damage which lic the benefits of fair competition in they have done in performing their trade, and markets in which prices of service of making the clothes clean.
products would be fixed with reference The business of laundering is a mere to the natural demand and supply. It service done, whether performed by will be observed that all contracts in hand or by machinery, and an agree
restraint of trade are not forbidden, ment to regulate the price to be
but only such as are entered into by charged therefor is, in its last analy
parties who are 'engaged in manusis, merely an agreement to fix the
facturing, selling, or dealing in the price of labor, or services, and the
or any like manufactured or legislature of this state has not made natural products.'” such an agreement unlawful.”
The annotation does not purport to It was held in Downing v. Lewis cover cases where one sold a laundry (1898) 56 Neb. 386, 76 N. W. 900, that business and agreed not to re-enter a laundry was not a manufacturing upon this line of business, and the establishment within the meaning of question was as to the validity of the a statute making it unlawful for any agreement. See, for example, Godperson or corporation engaged in the frey v. Roessle (1895) 5 App. D. C. manufacture or sale of any article of 299; Barrone v. Moseley Bros. (1911) commerce to enter into any contract 144 Ky. 698, 139 S. W. 869; Augusta or combination with any other person, Steam Laundry Co. v. Debow (1904) etc., engaged in the manufacturing, 98 Me. 496, 57 Atl. 845; Southworth selling, or dealing in the same or any v. Davidson (1908) 106 Minn. 119, 19 like manufactured products, whereby L.R.A.(N.S.) 769, 118 N. W. 363, 16 a common price should be fixed for
Ann. Cas. 253; My Laundry Co. v. any such article or product, or where- Schmeling (1906) 129 Wis. 597, 109 N. by the manufacture or sale thereof W. 540. And see, as illustrative of should be limited, or the amount or possibly other cases of the kind, Alnumber of the products to be sold or len Mfg. Co. v. Murphy (1910) 22 Ont. manufactured should be determined, L. Rep. 539, where the question was or whereby the products or profits of
as to the validity and effect of an such manufacture or sale should be
agreement by an employee of a launmade a common fund. The court
dry company that he would not, for said: “It seems perfectly plain that a
three years after leaving the employlaundry, the business of which is to
ment, engage in business of a similar wash and iron linen and other articles kind. of wearing apparel and domestic use The question whether one engaged which have become soiled in the serv- in the laundry business is performing ice for which they were fabricated, acts in interstate trade or commerce, is not a manufacturing establishment where he solicits patronage in one