State of Texas v. Laredo Ice Co. , 96 Tex. 461 ( 1903 )

Certified question from the Court of Civil Appeals for the Fourth Supreme Judicial District, as follows:

"This is a suit brought by the State of Texas against the defendants, the Laredo Ice Company, a copartnership composed of H.A. and P.M. Sauvignet, and the Consumers Ice Company, a corporation organized under the laws of the State of Texas, for the purpose of recovering penalties for a violation of the Anti-trust Law of 1899.

"It was alleged that the defendants had entered into a combination or agreement with each other by which they had formed a pool, trust, agreement, combination, confederation, understanding and association with each other to regulate and fix, and that they did regulate and fix, the price of ice in the county of Webb, in the State of Texas; that such agreement was maintained from about the 19th day of June, 1902, to the date of the filing of the petition.

"The defendants filed a general demurrer to plaintiff's petition which presented the question of the constitutionality of the Anti-trust Law of the State of Texas approved March 25, 1899.

"The court, sustaining the demurrer, held the law to be unconstitutional and dismissed the case, from which judgment this appeal was taken.

"Question. — Is the act of the Twenty-sixth Legislature, chapter 146, Acts of 1899, page 246, under which this action is brought, constitutional?"

It is claimed by counsel for appellee that the act referred to, known as the Anti-trust Law of 1899 (Laws 26th Leg., p. 246), is void for the following reasons:

1. Because the fourteenth section has the effect to make it a part of the Act of 1895 and to incorporate into the Act of 1899 the proviso of section 12 of the law of 1895.

2. Because the Act of 1899 prescribes for those who shall violate it excessive fines contrary to section 13, article 1, of the Constitution of this State.

3. Because the provisions of the law, which make the failure of a party to respond to the demand of the Secretary of State for an affidavit prima facie evidence of a violation of the law, is in conflict with section 10, article 1, of the Constitution, in that it makes the accused testify against itself.

The fourteenth section of the Act of 1899, concerning trusts and monopolies, is in this language: "The provisions of the foregoing sections, and the fines and penalties provided for violations of this act shall be held and construed to be cumulative of all laws now in force in this state." Counsel for appellee earnestly contends that the effect of this provision is to consolidate and to make one law of the Act of 1895 and the Act of 1899, and thereby to give exemption from prosecution under the law of 1899 to those persons who are exempted by the provisions of the law of 1895. The term "cumulative" indicates a harmonious coexistence and co-operation rather than a consolidation of two things into one. An amendment to a statute is not "cumulative," because it repeals and takes the place of the part of the law that it amends, thereby becoming a part of the law amended. It is true, that, in seeking the meaning of language used in a statute, it is proper to consider all of the acts of the same legislative body which are in pari materia, because "it is supposed that there has been no change in the legislative intent and purpose," unless it is manifested by some change of language. Suth. Stat. Const., sec. 283. But this is a rule of construction merely and does not constitute each act a part of every other act on the same subject. Laws which are said to be in pari materia are parts of a common system or policy, but are not one and the same law. Counsel press that rule of construction with force and earnestness, stopping little short of the logical conclusion that an unconstitutional provision in one of many laws on the same subject would destroy all of those laws.

Appellee attacks the law of 1899 upon the ground that it makes the accused testify against himself. The eighth section of the Act of 1899 prescribes the form of affidavit which must be required of corporations by the Secretary of State, and provides as follows: "And on refusal to make oath in answer to said inquiry, or on failure to do so within thirty days from the mailing thereof, such failure shall be prima facie proof that such incorporated company is transacting business in the State of Texas, and has violated the provisions of this act every day after the expiration of the thirty days from the mailing of said letter of inquiry." It is unnecessary for us to determine the question presented as to the validity of the clause of the law above quoted, for if it be granted that it does require the corporation to testify against itself in violation of section 10, article 1, of the Constitution of this State, still the obnoxious provision may be eliminated from the statute and the remaining provisions would be sufficient to accomplish the general purpose that the Legislature had in its enactment; therefore, the law would not fall with the unconstitutional provision above quoted. Treating of the effect of an unconstitutional part of a law upon the whole act, Mr. Cooley says:

"In any such case the portion which conflicts with the Constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity. Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. A statute, it has been said, is judicially held to be unconstitutional, because it is not within the scope of legislative authority; it may either propose to accomplish something prohibited by the Constitution, or to accomplish some lawful, and even laudable object, by means repugnant to the Constitution of the United States or of the State. A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the Legislature, and being in form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional. Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it can not be presumed the Legislature would have passed the one without, the other. * * * If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained."

It is also contended by appellee that the Act of 1899 is unconstitutional and void, because it imposes upon persons who may violate its provisions excessive and unreasonable penalties in violation of section 13, article 1, of the Constitution, which provides that, "excessive bail shall not be required nor excessive fines imposed nor cruel nor unusual punishment inflicted." Prescribing fines and other punishments which may be imposed upon violators of the law is a matter peculiarly within the power and discretion of the Legislature, and courts have no right to control or restrain that discretion except in extraordinary cases where it becomes so manifestly violative of the constitutional inhibition as to shock the sense of mankind. 13 Am. and Eng. Enc. of Law, 60; Express Co. v. Walker, 92 Va. 66. In the case cited the court said: "The imposition and regulations of fines belong to the Legislature, and to its discretion and judgment the widest latitude must be conceded. Fines are to be fixed with reference to the object they are designed to accomplish. * * * What is to be the legislative guide, in performance of its duty, but its sound judgment and the wisdom of experience? And how can courts with reason or propriety question the action of the Legislature or control or restrain its discretion except where the minimum penalty is so plainly disproportioned to the offense or act for the violation of which it is affixed as to shock the sense of mankind." There is a wide range for the discretion of the jury between the minimum and the maximum penalties fixed by this act, and we are not able to say that the minimum penalty inflicted upon an individual would be so excessive as to "shock the sense of mankind."

We conclude and answer, that the law of 1899, known as the Anti-trust Law, is not unconstitutional.