Iron County register. [volume] (Ironton, Iron County, Mo.) 1867-1965, 1890-03-20
THE ANTITRUST LAW.

ST. Louis. March 12.-Ludge Dillon
yesterday sustained demurrer to the
petition in the case of the State. ex rel
the Circuit Attorney, VS.. the Simmons
Hardware Company, a proceeding in
volving the constitutionality of the
Antitrust law passed by the last State
Legislature. The suit was instituted
to GUST the Simmons Hardware Company
of its charter, because it had failed TO
make affidavit, to be filed in the office
of the Secretary of State, that it was
not in any pool or combination.
The demurrer was to almost every feat
ure in the law. but the principal point
passed upon by the court was the sec
ton that called for the affidavit. which
the Judge holds to be clearly uncon-
stltutional, upon the ground that it is
In effect an attempt to make one crimi
nate himself, which was in opposition to
the spirit of the Constitution and good
government. His opinion i as follows:
Ihe demurrer contains six specifications,
the hrst of which specifically 20 to the con-
Stltutlonality of said act of the General As
Sembly- But of these we need consider only
those which go to the coustitutionality of
said act in so far as it requires the president,
secretary and treasurer or a director of a
SCiiptlhN ~ lIdI!SIIIlt ~ inc '>tSIC-
tary OF State on oath as to whether or not
the company has done any OF the acts pro-
hIbited by the statute ana in 50 far as it au-
thoriZes the Secretary of the State to forfeit
or revoke the charter on the refusal OF the
corporation or Its authorized officer to send
such an affidavit to the Secretary OF State.
The sixth ground of demurrer is general,
that the petition does not state facts suf-
ncient to constitute cause of action. 1t
will be observed that the petition does not
Il. Il
any of the things which by the act are for
hidden. The petition after setting out the
act simply alleges that the Secretary of
state addressed to the dcfcn LIANT company
letter of inquiry as to whether said corpora
ton had done certain things, being the
things prohibited in the act and required an
answer under oath to be made to said in
quiry by the president. secretary, treasurer
or any directors, and that said corporation,
its president, secretary, treasurer and board
of directors failed and refused to make said
affidavit. or any affidavit, and thcreupon the
Secretary of State revoked the charter Of
said company, and under publication there
of as required by said act.
That part of the act authorizing the Sec
rotary of State to revoke the charter on the
refusal of any competent officer of the cor
poratiOn TO make the required act is said to
be unconstitutional for the reason that it is
assumption by the Legislature of judicial
function in violation of that provision of
powers of government into three depart
mentS-the Legislative. Executive, and Jul
dicial-and provides that person charged
with the exercise of powers properly be-
longing to one department shall exercise
any power properly belonging to either of
the other.
The authorities all agree that the forfeit
ure of the charter of a corporation is judi
cial act. This tbcng so, it follows that the
Legislature itself could not legally declare
forfeiture of the charter q a tion
and fortiori, it could not delegate that
power to the Secretary of State any other
individual.
Indeed the Circuit attorney comedies this
and frankly states that he does not claim
that any force effect is to be given to the
act of the Secretary of State in declaring the
charter of this company revoked. But while
he thus admits that the charter of the COM
pany has not yet been revoked. he contends
that the State has in this proceeding brought
the corporation into Il court of competent
jurisdiction, and that this court on the facts
alleged in the petition (they being admitted
to return for the purposes of this demurrer),
should enter n judgment FORGETTING and re-
voking the charter of the defendant COM
pany. Waving the question as to whether
the form of the petition would warrant such
a Judgment, let us see what is the substance
of the petition after emitting. we must do
in this view of the case, all allegations as to
the action of the Secretary of State in de
claring this charter revoked. The onl
charge or complaint of any kind remaining
against the company is that the Secretary of
State required of it this affidavit, and that it
was refused, and the court is asked to forfeit
it's charter for this cause alone.
Defendants contend that the act does not
make the failure to make this affidavit a
ground or cause for which the court is au-
thOrized to adjudge the charter forfeited.
In no part of the act i it said that failure
to make this oath shall forfeit the charter or
be ground for adjudging it forfeited. In the
first part of section it is said that any cor
pOration created under the laws of this State
which shall violate any of the preceding
sections shall thereby forfeit its rights and
franchises. But making this oath is not re-
quircd by any thing in any of the preceding
sections The only thing said as to the effect
of not making this oath is that for failure
to DO the Secretary of State is required to
immediately revoke the charter But we
have seen that that provision must be disre-
garded as clearly unconstitutional.
ShiS being so, the act in express terms ut
least provides no penalty for failure to make
this oath. And the act being clearly penal in
its nature, we are confined within narrow
limits when INDUCING in amendments be-
yond the plain terms of the act. Courts do
not adjudge forfeiture of property except
when the language of the law relied is
clear. \ careful reading of the act does not
satisfy me that the Legislature intended
that Il corporation might be brought into
court and its charter adjudged to be for
feitcd simply for the reason that it refused
to make this affidavit regardless of whether
or not it had been guilty of doing any of the
things prohibited by the act. The directing
of the Secretary of State to declare the char
ter revoked for failure to make this oath
was the particular method provided by the
Legislature for enforcing the previous parts
of the act. And that method being uucon-
stitutional falls to the ground. Ii this view
is correct it dispoSes of the questions raised
by this demurrer, for. as all have seen, the
only charge made against this company IS
that it failed to make this affidavit 1t has
been deliberately argued that that part of
this act which requires an oath as to whether
or not the corporation had done any of the
things prohibited is unconstitutional as be-
ing in violation of those provisions of the
State and Federal Constitutions which
declare that no person shall be COM
peeled to testify against himself in a
criminal cause. Similar provisions are
found in nearly all the Cons titutions, if not
in al the States in the Union. and they have
received liberal constructions at the hands
of the courts. Having reached the conclu-
sion that the demurrer would have to be
sustained for the reason already given, if for
no ether, did not find it necessary to exam
inc the question fully is would other
wise nave been compelled to do. But as far
as l have examined the authorities they tend
TO confirm the impressions had in regard
to the question when it was first presented,
and that is that the provision of the statute
can not be sustained. The demurrer to the
information Will be sustained.
Circuit Attorney Clover, when seen by
reporter and asked what steps he
would take in the matter in view of the
action of Judge Dillon, stated that he
would Immediately appeal the case to
the State Supreme Court on the ground