« PreviousContinue »
permitted to join the combination. The monopolize, any part of the trade or comevidence shows that the defendants in error merce among the several states or with forafter the formation of the association made eign nations.” The combination in the case efforts to purchase tile from manufacturers before the court was not one such as might in Indiana with whom they had before been lawfully have been made between the residoing business, and that their orders were dents of a single state for the purpose of declined, and they were notified that they regulating the methods of conducting their could not purchase goods from the manu- business or fixing the prices of goods or for facturers unless they became members of other legitimate purposes, such as was susthe association. They could not obtain tained by the court in United States v. E. tile from the local dealers in San Francisco C. Knight Co. 156 U. S. 1, 39 L. ed. 325, unless they paid the "list" price, which was 15 Sup. Ct. Rep. 249, where it was held that more than double the price which members an agreement between manufacturers in a of the association were required to pay. state bore no distinct relation to commerce
We think that, in the light of these facts, between the states or with foreign nations; the association clearly comes within the but it is one that brings within its scope, prohibition of the act of Congress. It has not only local dealers, but all the wholesale a direct tendency to restrain trade between dealers in the same kind of goods in all the different states, and to create a monop the states. Said the court in United States oly. In principle it would be the same if v. E. C. Knight Co. 156 U. S. 16, 39 L. ed. it were an association between all the manu- 330, 15 Sup. Ct. Rep. 255: It is not essenfacturers of the United States in that line tial that the result of the combination be of goods and a single dealer in California, a complete monopoly. It is sufficient if it whereby all other resident dealers were shut merely tends to that end and to deprive out and all competition between local deal. the public of the advantages which flow ers extinguished. Section 1 of the act of from competition. The local members were July 2, 1890 (26 Stat. at L. 209, chap. 647, bound by the articles of the association U. S. Comp. Stat. 1901, p. 3200), provides not to sell goods to nonmembers except as follows: "Every contract, combination at prices which were more than double in the form of trust or otherwise, or con- the prices which the members paid and spiracy in restraint of trade or commerce which all dealers had paid before the assoamong the several states or with foreign ciation was formed, and the manufacturers nations is hereby declared to be illegal;" were bound not to sell to nonmembers at and it proceeds to denounce a penalty any price or under any conditions. The against anyone who shall make any such testimony indicated that the defendants in contract or engage in any such combina- error had been in constant competition tion or conspiracy. Interstate commerce with the San Francisco firms which entered "includes the purchase, sale, and exchange into the association, and had bid against of commodities” (Gloucester Ferry Co. v. them on contracts for work. The formaPennsylvania, 114 U. S. 203, 29 L. ed. 161, tion of the association shut off all such 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. competition. The defendants in error were 828); and every agreement which has the powerless to compete with local firms tendency to restrain the purchase, sale, and which possessed such advantages over exchange of commodities is brought with them. The necessary effect of the combinain the prohibition of the statute. (Addyston tion was to crowd out of business every Pipe & Steel Co. v. United States, 175 U. S. local dealer who was not a member, and 238, 44 L. ed. 146, 20 Sup. Ct. Rep. 96.) thereby to create a monopoly in the hands The combination in the case before the court of those who were. It is argued that the evidently tended to restrain trade. The de defendants in error might have joined the fendants in error who had been regular pur association had they chosen to do so, and chasers of goods from the manufacturers that thereby they might have availed themwere shut out from dealing with them from selves of the privileges of membership. To the time when the association was formed. this it is sufficient to say that it does not Their orders to the manufacturers for appear that they would have been admitted goods were rejected for the express reason, to membership if they had applied. L'nder and for no other reason than, that they the by-laws they were not eligible, for the were not members of the association. reason that they did not at all times carry
The tendency of the combination the requisite amount of stock, and if they also to create a monopoly in the hands of had possessed the necessary amount of stock the local members thereof. Section 2 of they had no assurance that they were “acthe act includes within its prohibition ceptable" to the members. On the contrary, "every person who shall monopolize, the fact that they were not invited to enter attempt to monopolize,
the combination when it was formed was a spire with any other person or persons to distinct intimation to them that they were
not acceptable. But it is immaterial wheth- I live stock instead of agents for the sale er they would or would not have been ad. thereof. There was no association or committed into the combination. To protect bination between such purchasers and the their business and secure their legal rights vendors of the stock, and no monopoly they were not obliged to submit an applica- was created or was intended to be thereby tion for membership in such a combination created. The association itself transacted with the possibility of its rejection, or to no business. The court said: “Those who submit themselves to the rules and are members thereof compete among themactions of the association. It is clear, also, selves and with others who are not memthat the tendency of the combination was bers for the purchase of the cattle, while to prevent others from engaging in the the association itself has nothing whatever business. No one could become a member to do with transportation nor with fixing who had not "an established business," and the prices for which the cattle may be purit is too evident to admit of denial that chased or thereafter sold.
A lessno one could establish a business in compeening of the amount of the trade is neither tition with the members of the association the necessary nor direct effect of its formawho possessed such advantage in dealing tion, and in truth the amount of that trade with the manufacturers.
has greatly increased since the association It is earnestly contended that the case was formed, and there is not the slightest in its principle comes within the doctrine evidence that the market prices of cattle of Hopkins v. United States, 171 U. S. 578, have been lowered by reason of its exist43 L. ed. 290, 19 Sup. Ct. Rep. 40, and ence. There is no feature of monopoly in Anderson v. United States, 171 U. S. 604, the whole transaction." 43 L. ed. 300, 19 Sup. Ct. Rep. 50, but we The difference between those cases and think it is clearly distinguishable from the case at bar is apparent. The resident those cases. In the Hopkins Case the asso- members of the Tile, Mantel, & Grate Association, which was claimed to have been ciation, while they may compete with themformed in violation of the act, was a local selves, have no competition with those who voluntary association of men whose business are not members for the latter are practiit was to receive at Kansas City consign-cally excluded from doing business within ments of cattle shipped from owners in vari- the portion of the state of California which ous states, and to feed, prepare for market, is included in the prescribed area; and, inand sell the same, and pay the owners their stead of being a combination between purportion of the proceeds after deducting chasers only, as was the fact in the Andercharges and expenses. The rules of the son Case, it is a combination between manuassociation forbade members to buy stock facturers and buyers of different states, from one who was not a member or to trans- which brings together, on the one hand, act business with any person who violated all the wholesale dealers in the United its rules and regulations. The court held States in that line of goods, and, on the that the business of the members of the as- other hand, the chosen few who are persociation was not interstate commerce, and mitted to obtain goods and supply the local that the agreements or contracts relating to demand. their business were not in restraint of in. We find no ground for disturbing the terstate trade, for the reason that trade finding of the circuit court concerning the between the states was not affected by the amount of the attorney's fee to be allowed combination, which was a purely local one, to the defendants in error. comprising only members of the state in The judgment is affirmed. which it was formed. The Anderson Case was similar to the Hopkins Case, with the Affirmed by Supreme Court of United exception that the members of the associa- States February 23, 1904. tion were purchasers of certain classes of
COLORADO SUPREME COURT.
Frank ADAMS et al., Appts.,
cases should a court of equity interfere with the enforcement of municipal or
dinances which vitally concern the tranquillDaniel CRONIN.
ity of the community and the good order of
society. (29 Colo. 488.)
A statute forbidding keepers of sa
loons to permit women to enter them in extreme and exceptional for the purpose of being supplied with liquor NOTE.--As to constitutionality of discrimina- | also Gastineau v. Com. 49 L. R. A. 111, and tion against women in police regulations, see
does not deprive them of their property with- can impose such conditions upon its existout due process of law, destroy their right to
ence as it pleases. pursue a lawful calling, or deny them equal rights and privileges under the law, where Pac. 747; State ex rel. Marion v. Reynolds,
Ex parte Christensen, 85 Cal. 208, 24 iiquor cannot be sold without a license. 3. No unconstitutional discrimination
14 Mont. 383, 36 Pac. 449; Bergman v. against women is made by a statute which Cleveland, 39 Ohio St. 651; Mugler v. Kanforbids their entering wine rooms there to be sas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. supplied with liquor.
Ct. Rep. 273.
Messrs. T. J. O'Donnell and Milton (May 5, 1902.)
Smith, for appellee:
In this state proceedings under an ordiA Perhe Alisbrede Cendants from a decrecum: nance are not criminal, but eivid.
Durango v. Reinsberg, 16 Colo. 327, 26 ty in favor of plaintiff in a suit to enjoin Pac. 820; Hughes v. People, 8 Colo. 539, the enforcement of a municipal ordinance. 9 Pac. 50; Greeley v. Hamman, 12 Colo. 97, Reversed.
20 Pac. 1; Oshkosh v. Schwartz, 55 Wis. The facts are stated in the opinion. 487, 13 N. W. 552; Ex parte Hollwedell, 74
Messrs. H. M. Orahood, Halsted L. Mo. 395; Kansas v. Clark, 68 Mo. 589. Ritter, and N. B. Bachtell, for appel- We are not asking merely to have a proslants:
ecution restrained. We are asking to have Equity will not, by injunction, restrain the fire and police board restrained from a prosecution at law, when the question is arresting us, and stationing police officers the same at law as in equity; and an in- upon our premises, and to prevent the dejunction will not issue to restrain a prose-struction of our property. Where there is cution for a violation of a city ordinance a destruction of property rights, or the inon the ground that the ordinance is in- vasion of civil rights, an injunction will valid, or on the ground of irreparable in- stay a criminal prosecution, where there jury, or to prevent a multiplicity of suits. is no adequate remedy at law by the resti
Denver v. Beede, 25 Colo. 172, 54 Pac. tution of the property, or where there is 624; Bainbridge v. Reynolds, 111 Ga. 758, no way of determining the amount of the 36 S. E. 935; Paulk v. Sycamore, 104 Ga. damages. 24, 41 L. R. A. 772, 30 S. E. 417; Forc- M. Schandler Bottling Co. v. Welch, 42 heimer v. Port of Mobile, 84 Ala. 127, 4 Fed. 563; Sheridan v. Colvin, 78 Ill. 237; So. 112; Waters-Peirce Oil Co. v. Little Springhead Spinning Co. v. Riley, L. R. 6 Rock, 39 Ark. 412; New Home Sewing Ma- Eq. 558. chine Co. v. Fletcher, 44 Ark. 139; Garrison There would be no way of restoring this v. Atlanta, 68 Ga. 64; Des Plaines v. Poyer, saloon business if it was allowed to be de123 Ill. 348, 14 N. E. 677; Yates v. Bata- stroyed by the fire and police board. via, 79 Ill. 500; Schwab v. Madison, 49 Port of Mobile v. Louisville & N. R. Co. Ind. 329; Dodge v. Council Bluffs, 57 Iowa, 84 Ala. 115, 4 So. 106; Atlanta v. Gate 560, 10 N. W. 886; Brown v. Catlettsburg, City Gaslight Co. 71 Ga. 126. 11 Bush, 435; Hottinger v. New Orleans, To prevent the invasion of civil rights is 42 La. Ann. 629, 8 So. 575; Kansas City as much the province of a court of equity Cable R. Co. v. Kansas, 29 Mo. App. 89; as to prevent the destruction of private Morris Canal & Bkg. Co. v. Jersey City, 12 property. N. J. Eq. 258; Davis v. American Soc. for Austin v. Austin City Cemetery Asso. Prevention of Cruelty to Animals, 75 N. Y. 87 Tex. 336, 28 S. W. Baltimore v. 362; West v. New York, 10 Paige, 539; St. Radecke, 49 Md. 226, 33 Am. Rep. 239; Peter's Episcopal Church v. Washington, Sylvester Coal Co. v. St. Louis, 130 Mo. 109 N. C. 21, 13 S. E. 700.
330, 32 S. W. 649; Wood v. Brooklyn, 14 The ordinances are not void; they do Barb. 433; Platte & D. Canal & Mill Co. v. not constitute the slightest infringement Lee, 2 Colo. App. 192, 29 Pac. 1036; Re upon the constitutional rights of women, as Sawyer, 124 U. S. 222, 31 L. ed. 410, 8 Sup. those rights are lawfully tested and prop. Ct. Rep. 482; Montgomery v. Louisville & erly understood.
N. R. Co. 84 Ala. 132, 4 So. 626; Davis v. Phillips v. Denver, 19 Colo. 183, 34 Pac. Fasig, 128 Ind. 271, 27 N. E. 726. 902; Ex parte Hayes, 98 Cal. 555, 20 L. R. If, by reason, of the acts of the fire and A. 701, 33 Pac. 337; Foster v. Police Comrs. / police board, Cronin's business was de102 Cal. 483, 37 Pac. 763.
stroyed, or if it was so damaged that it The governing power may prohibit the would not afford him a livelihood for him. manufacture and traffic in liquor altogether, self and family, by reason of the fact that provided it does not interfere with inter the stationing of policemen in and about state commerce; and, if the governing his premises, thereby driving away trade, power can prohibit a thing altogether, it and the arresting of patrons as they come
to his place, was indulged in,-he would Re Maguire, 57 Cal. 604, 40 Am. Rep. have no adequate remedy at law.
125. Sylvester Coal Co. v. St. Louis, 130 Mo. The right of a person to engage in any 328, 32 S. W. 649; M. Schandler Bottling business permitted by law is a substantial Co. v. Welch, 42 Fed. 565; McInerney v. right guaranteed to him by the ConstituDenver, 17 Colo. 302, 29 Pac. 516; Bruner tion of the United States. v. San Francisco City & County Super. Ct. Yick Wo. v. Hopkins, 118 U. S. 356, 30 92 Cal. 239, 28 Pac. 341; 19 Am. & Eng. L. ed. 220, 6 Sup. Ct. Rep. 1064; Re MorEnc. Law, p. 514; Worley v. Columbia, 88 gan, 26 Colo. 415, 47 L. R. A. 52, 58 Pac. Mo. 106; Trammell v. Russellville, 34 Ark. 1071; Ritchie v. People, 155 II).. 98, 29 L. 105, 36 Am. Rep. 1; Walsh v. New York & R. A. 79, 40 N. E. 454. B. Bridge, 96 N. Y. 439.
An ordinance, to be valid as an exercise The police power is limited by constitu- of police power, must be a reasonable regutional provisions of the United States, and lation. other fundamental laws. Rights guaranteed Chicago v. Netcher, 183 Ill. 104, 48 L. R. by the Constitution cannot be violated. If A. 261, 55 N. E. 707; May v. People, i it is obnoxious to vested rights and un- Colo. App. 157, 27 Pac. 2010; Lake reasonable, the courts will declare the law View v. Letz, 44 III. 82; Butchers' Union void; it must be exercised so that all are 8. H. & L. 8. L. Co. v. Crescent City L. S. affected by it, and not one class favored L. & S. H. Co. 111 U. S. 757, 28 L. ed. and another class imposed upon.
591, 4 Sup. Ct. Rep. 652. Tiedeman, Pol. Power, $ 2; 18 Am. & Eng. Enc. Law, p. 742; Yates v. Milwau- Campbell, Ch. J., delivered the opinion kee, 10 Wall. 497, 19 L. ed. 984; People v. of the court: Gillson, 109 N. Y. 389, 17 N. E. 343; Re The district court issued a permanent Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; writ of injunction restraining the defendPeople v. Mars, 99 N. Y. 377, 52 Am. Rep. ants below appellants here, from enforcing 34, 2 N. E. 29; Toledo, W. & W. R. Co. v. the provisions of $8_745 and 746 of article Jacksonville, 67 Ill. 37, 16 Am. Rep. 611; 15 of the general ordinances of the city of Lake View v. Rose Hill Cemetery Co. 70 Denver, upon the ground that they are unIII. 192, 22 Am. Rep. 71; Mugler v. Kansas, constitutional, and that plaintiff had no 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. adequate remedy at law. They read: Rep. 273; Platte & D. Canal & Mill. Co. v. "Sec. 745. Each and every liquor saloon, Lee, 2 Colo. App. 184, 29 Pac. 1036; Platte dram shop, or tippling-house keeper, & D. Canal & Mill. Co. v. Dowell, 17 Colo. who shall have or keep, in connection with 376, 30 Pac. 68.
or as part of such liquor saloon, dram shop, When a constitution guarantees to every or tippling house, any wine room or other person the same privileges and immunities, place, either with or without door or doors, any act of the egislature passed with the curtain or curtains, or screen of any kind, view of protecting the public morals or the into which any female person shall be perpublic health must apply to all individuals, mitted to enter from the outside, or from unless those individuals are under some such liquor saloon, dram shop, or tippling legal disability. Any act of the legislature house, and there be supplied with any kind whereby it discriminates against women is of liquor whatsoever, shall, upon conviction, void.
be fined as hereinafter provided.
having United States v. Cruikshank, 92 U. S. 542, 23 L. ed. 588; Des Plaines v. Poyer, plate where intoxicating or malt liquors
charge or control of any liquor saloon, or 123 nl. 348, 14 N. E. 677.
are sold or given away, or any place adjaThe sale of intoxicating liquors is not an cent thereto or connected therewith in any unlawful business. There is no constitu
manner whatsoever, either by doors or othtional provision prohibiting the sale of erwise, shall suffer or permit any female liquor to either men
person to be or remain in such liquor sathere is a constitutional prohibition a wo- loon, dram shop, tippling house, or other man has as much right, under the Consti- | place where intoxicating or malt liquors tution of the United States and of the state are sold or given away, for the purpose of of Colorado, and the laws of the state of there being supplied with any kind of liquor Colorado, to enter a saloon and purchase whatsoever. No person owning or having a drink of whisky as a man.
charge or control of any liquor saloon, dram To prevent a saloon keeper from selling shop, or tippling house shall employ or proto a woman if she has the right to pur cure, or cause to be employed or procured, chase, and then, under an ordinance, fine any female person to wait or in any manner him for so doing, takes his property with attend on any person in any dram shop, out due process of law:
tippling house, or liquor saloon, or in any
place adjacent thereto or connected there- plaint one calling for the interposition of with, where intoxicating or malt liquors are a court of equity? Second, is the charter sold or given away, nor shall any female provision constitutional? person be or remain in any dram shop, tip- 1. The plaintiff does not contend that he pling house, liquor saloon, or place adja- is entitled to equitable relief by injunction cent thereto or connected therewith, and unless the charter is void. Since, as apwait or attend on any person, or solicit pears later in the opinion, we hold it valid, drinks in any such place."
it is not absolutely necessary to decide This ordinance was before our court of whether the admitted facts of the comappeals in Walker v. People, 5 Colo. App. plaint warrant the granting of an injunc38, 37 Pac. 29, and in Denver v. Domedian, tion. This court does not look with favor 15 Colo. App. 36, 60 Pac. 1107. In the upon the practice of restraining municipal former case, under the evidence, and in the authorities from executing municipal orlatter, upon the stipulated facts, it was dinances which so vitally concern the tranheld that the cases as made did not come quillity of the community and good order within the prohibition. In speaking of these of society. While it is true, as said in the regulations, however, Mr. Justice Wilson, case of Denver v. Beede, 25 Colo. 172, 54 in the latter case, said: “We agree that Pac. 624, that in exceptional cases a court the ordinance is a good one, that its ob- of equity will restrain a prosecution at law jects are most praiseworthy, and that its when the legal question involved is the rigid enforcement would meet with the ap- same at law as in equity, such is not the proval of every good citizen.” The ques. general rule; and a clear case should be tion of its constitutionality was not there made out before such extraordinary relief mooted, but this expression of Judge Wil- is awarded. It is not necessary here to inson, if only dictum, is an indication of what dicate in what cases such relief will, and his view would be had its validity been as- in what it will not, be given. But it is sailed. The chief object of the ordinance doubtful if this complaint is so essentially was there said to be to suppress the evils different from that in the Beede Case as to incident to the "frequenting of saloons by render inapplicable the rule there females, and the attendant results so of. nounced. We mention this point for the fensive to decency and the moral sense of purpose of again emphasizing our view that the public.” The power to make these par- only in extreme and exceptional ticular regulations was expressly conferred should a court of equity interfere with muby the general assembly upon the city coun- nicipal authorities in the enforcement of cil of the city of Denver by the 5th clause such ordinances. of subdiv. 12 of § 20 of the charter, which 2. So far as the question at issue is conprovides “that no liquor saloon, dram shop, cerned, these sections of the ordinance pracor tippling house shall have or keep in tically prevent a saloon keeper from per connection with or as part of such saloon, mitting women to frequent what are called tippling house, or dram shop, any wine wine rooms, there to be supplied with liq. room or other place, either with or with- uor; and it is only with respect to that out doors, curtain or curtains, or screen feature of the ordinance that we of any kind, into which any female person present concerned, although it may be that shall be permitted to enter from the out the principles which govern this particular side, or from such tippling house or dram clause of the enactment equally apply to shop, and there be supplied with any kind the others. As we understand the arguof liquor whatsoever." Plaintiff does not ment of his counsel, plaintiff's position is deny that he has kept a wine room in to that these sections unreasonable bewhich he permits women to enter and there cause they discriminate against be supplied with liquor, and suffers them to solely on account of their sex; that they remain therein for that purpose, contrary to are unconstitutional, in that they deprive the specific provisions of these sections. In- defendant of his property without due deed, he admits that he has violated the process of law, destroy his right to purordinance in both particulars, and pro- sue a lawful calling, and deny to him the poses, unless prevented by the municipal equal rights and privileges which every authorities, to continue to do so. So that citizen has, both under the Federal and our the principal question in the case is as to state Constitutions; that they violate $ the constitutionality of the charter, rather 423, Mills's Anno. Stat., which preserves to than that of the ordinance for the latter all the citizens of the state equal enjoy. confessedly is authorized by the charter. ment of accommodations, advantages, faThe ordinance is good if the charter provi- cilities, and privileges of inns, restaurants, sion is constitutional. Two questions are churches, barber shops, public conveyances, pressed by plaintiff for determination: theaters, and other places of public reFirst, was the case as made by the com- 'sort or amusement. With respect to the