The opinion
Battle, J., (dissenting.) I do not agree with the court as to the construction of the act in question.
The title of the act is “An act providing for the punishment of pools, trusts and conspiracies to control prices, and as evidence and prosecution in such cases.” If the act is ambiguous, it (the title) can be considered for the purpose of construing it. Cooley’s Constitutional Limitations (7 Ed.), 202.
The first part of section 1 of the act enumerates those to whom it applies as follows: “Any corporation organized under the laws of this or any other State, or country, and transacting or conducting any kind of business in this State, or any partnership or individual or other association or other persons whatsoever.”
The remainder of the section specifies the acts it makes a crime, and is as follows: “Who are now, or shall hereafter create, enter into, become a member of, or a party to, any pool, trust, agreement, combination, confederation or understanding, whether the same is made in this State or elsewhere, with any other corporation, partnership, individual, or any other person or association of persons, to regulate or fix, either in this State or elsewhere, the price of any article of manufacture, mechanism, merchandise, commodity, convenience, repair, any product of mining, any article or thing whatsoever, or the price or premium to be paid for insuring property against loss or damage by fire, lightning, or tornado, or to maintain said price when so regulated or fixed, or who are now or shall hereafter enter into, become a member of, or a party to any pool, agreement, contract, combination, association or confederation, whether made in this State or elsewhere, to fix or limit, in this State or elsewhere, the amount or quantity of any article of manufacture, mechanism, commodity, convenience, repair, any product of mining, or any article or thing whatsoever, or the price or premium to be paid for insuring property against loss or damage by fire, lightning, storm, cyclone, tornado or any other kind of policy issued by any corporation, partnership, individual or association of persons aforesaid, shall be deemed and adjudged guilty of a conspiracy to defraud and be subject to the penalties as provided by this act.” The acts made penal consist solely of the creating, entering into, becoming a member of, or a party to any pool, trust, agreement, combination, confederation or understanding, whether the same is made in this State or elsewhere, with any other corporation or association of persons, to regulate or fix, either in this State or elsewhere, prices of articles and things and premiums for insurance. It is insisted that doing business in this State after the formation of such pools, trusts and combinations is made necessary to constitute the offense. The name given to the offense indicates that this is not true. It is called a conspiracy to defraud. Again, the words transacting or conducting business, used in this section of the act, are not used in connection with, and do not apply to, partnerships, individuals, associations or persons, any more than the words “organized under the laws of this or any other State or country,” used in the same connection, and are obviously not elements of the offense when committed by those classes. To make the transacting or doing business necessary to constitute the offense when committed by a corporation, and unnecessary when committed by individuals, partnerships and associations, would make it necessary to place upon the same words two different constructions,— a construction which would make the act “unreasonable and absurd. The Legislature certainly did not intend that the ingredients of the crime should be different when committed by individuals, partnerships, and associations and when committed by corporations. Why should the transacting or conducting of business be treated as a part of-the offense or conspiracy in one case and not in the other? There is no reason, and there is nothing in the act, as I understand it, to indicate that such was intended; and it cannot be made to do so without transposing the words “transacting or conducting any kind of business in this State” to another part of the section and adding other words — something that cannot lawfully be done by the courts. Those words, “transacting or conducting any kind of business in this State,” like the words, “organized under the laws of this or any other State or country,” used in the same connection, are descriptio personae, and the former are used to confine the operation of the act to such corporations as are going, “and not defunct, dead concerns, out of business, and, for all practical purposes, out of existence.”
Sections two and three of the act make the offense defined in the first section punishable by a fine of not less than $200 nor more than $5,000 for each day the offense is continued, and, if the offender be a foreign corporation, by the forfeiture of its right and privilege thereafter to do any business in this State. The effect of the act, if valid, is to make certain acts done outside of this State penal offenses, punishable by fine and forfeiture, which is beyond the power of the Legislature. To that extent, at least, the act is void, and of no effect.
The judgment of the circuit court, I think, should be reversed, and the demurrer to the appellant’s answer should be overruled.