Southern Ice & Coal Co. v. Atlantic Ice & Coal Corp. , 143 Ga. 810 ( 1915 )

Hill, J.

(After stating the foregoing facts.) By the allegations of the petition a strong case is made out prima facie, tending to show an illegal combination and conspiracy between the defendant company and a similar one outside the State, the purpose of which, by reducing the selling price of ice in the territory covered by the plaintiff, below the cost of manufacture and delivery, was to drive the plaintiff from the territory now occupied by it and the defendant, and then to raise the price of ice unreasonably high and have a monopoly of the business of manufacturing and selling it in that territory. It is alleged that the defendant company is a corporation with $7,000,000 capital, and that the plaintiff is capitalized at only $150,000. The acts complained of are, briefly stated, that the defendant corporation has: (1) Bought and obtained control of various independent ice factories previously owned by individuals and independent corporations in Georgia, Florida, and Tennessee, for the purpose of defeating and lessening competition. (2) Entered into an illegal combination and contract with the Southern Ice Company of Nashville, Tenn., for the same purpose. (3) Intimidated the customers of the plaintiff by refusing to sell them ice when the plaintiff was out of business, if they bought ice from the plaintiff. (4) Beduced the price of ice in the city of Macon, where the plaintiff’s factory is located, below the cost of production. It is alleged that these acts on the part of the defendant company will cause irreparable damage to the plaintiff, which is incapable of estimation. The plaintiff’s prayer is for injunction to prevent the defendant from further reducing the price of ice below the cost of manufacturing and delivering it; but there is no prayer for injunction against the illegal combination or conspiracy alleged to exist and to be in restraint of trade.

The demurrer raises the question of the jurisdiction of the court to determine a question like the one at bar. It will be observed that the relief sought is not to break up or set aside the alleged illegal combination and conspiracy; and hence we will not discuss that phase of the case, but we address ourselves to the question directly made by the petition and demurrer. Can the superior court, on a hearing of this kind, fix the prices at which ice may bo sold, and put a limitation on the price below which the defendant can not sell ? Would it be within the power of the superior court, assuming all of the allegations of the petition to be true, to grant a perpetual injunction forbidding the defendant from ever selling ice below a schedule of prices now fixed by it? We know of no such power vested in the superior court. If such a judgment as prayed (permanent injunction) should be rendered, it would be a final judgment, and there could be no modification of that judgment, without trouble and delay at least, to meet the changing conditions surrounding the manufacture and sale of ice, and to meet the market conditions which affect the price of commodities required to produce the article manufactured and sold. The price below which the defendant could not'sell would become fixed by judgment of the court, and it could not easily be changed, if at all, to meet the varying conditions of trade. It is insisted by the plaintiff that there is no allegation or prayer for the fixing of rates, but that the prayer is for an injunction to prevent the defendant from cutting the price of ice to a rate less than the cost of production, etc. But we think that the grant of the prayer of the plaintiff would in effect be the fixing of a minimum rate or price below which the defendant could not sell; and if the court could name the minimum, it could as well name the maximum — a power which we think the superior court does not possess. It is true that in cases where rate-making bodies, or the legislature, have fixed rates for certain public-service corporations, the courts may say whether a given rate is just and reasonable, or confiscatory, or remunerative, and the like, within the meaning of the law; but that class of eases, where the court has jurisdiction, is very different from one where it is sought, in effect, to confer on the superior court a right primarily to fix and regulate prices of commodities of private corporations, without express constitutional authority to do so. There is no authority of which we are aware which confers such power or jurisdiction upon the superior court, either as a court of law or in the exercise of its equity jurisdiction. The legislature of this State, by virtue of the authority vested in it expressly by the constitution, has created a commission in the nature of a public-service commission, and has conferred on it the right to make just and reasonable railroad and certain other rates, which may be revised from time to time as conditions necessitate (Civil Code, §§ 2615 et seq.) ; but those powers have not as yet been extended by the legislature to any tribunal so as to include a corporation like the present, or on the superior courts to fix and regulate the price at which such corporations may sell the products of their factories.

The case of Brown v. Jacobs Pharmacy Co., 115 Ga. 429 (41 S. E. 553, 57 L. R. A. 547, 90 Am. St. R. 126), cited by the plaintiff, is different in its facts from the present. In that case this court held that a combination of merchants to compel another dealing in similar kinds of merchandise to sell at prices fixed by them, or, upon his refusal to do so, to prevent those of whom its members were purchasing customers from selling to him, was contrary to public policy and void. But the allegations and prayers in that case are different from those in the present.

Basing our decision upon the lack of authority on the part of the superior court to make rates or prices below which a manufacturer of ice can not sell, we think the court below properly sustained the demurrer and dismissed the petition.

Judgment affirmed.

All the Justices concur.