Dukate v. Adams

Smith, J.,

delivered the opinion of the court.

Appellee filed his bill in the court below, alleging that appellants, under the guise of a limited partnership, had entered into a trust and combine for the purpose of controlling the trade in sea foods in Mississippi, and. praying that this partnership be declared to be an unlawful trust and combine, and that appellants be decreed to pay to the state the statutory penalty for having entered into such trust and combine. To this bill a demurrer was interposed and overruled, and this appeal granted to settle the principles of -law governing the case.

The points relied upon by appellants to obtain a reversal of the decree rendered in the court below may be *436 reduced to three: First, that chapter 204 of the Laws of 1908 is unconstitutional, in so far as it attempts to confer jurisdiction upon the chancery court to hear and determine' suits arising out of violations of the antj-trust law, for the reason that this anti-trust law makes the formation of a trust or combine a crime, and that under the Constitution the criminal laws cannot be enforced by the chancery court; second, that the bill is multifarious, for the reason that it unites two distinct and unconnected matters — that is, it seeks to have this limited partnership declared unlawful, and also to have penalties awarded for the violation of the anti-trust statute; third, that the revenue agent is without power to institute this suit.

Under section 147 of the Constitution, the question of the constitutionality of chapter 204 of the Laws of 1908 does not arise, unless we should reverse the decree of the court below for some reason other than that the cause was not of equity jurisdiction. It is true that this is an appeal to settle the principles of the case; but this section of the Constitution, nevertheless, applies, for it is hot limited to appeals from final decrees. Cazeneuve v. Curell, 70 Miss. 525 , 13 South. 32 .

But it is said that this is a criminal and not a civil case, that, consequently, section 147 of the Constitution does not apply, and that the case of Grenada Lumber Co. v. State, 98 Miss. 536 , 54 South. 8 , which held to the contrary, was erroneously decided. Out of deference to counsel, we have re-examined this matter, in view of all of the arguments advanced by them, and see no reason to recede from the views expressed in the (Grenada Lumber Co, case. In reaching this conclusion, we have not left out of view the fact that in section 5004 of the Code the violation of the anti-trust law is referred to as an “offense,” that section 1589 of the Code provides that “the term ‘offense,’ when used in any statute, shall mean any violation of law liable to punishment by crim *437 inal prosecution,” and that by the last sentence of section 5004 it is made “the duty of the several circuit judges of the state to specially call attention of the grand jury of their respective districts to this provision.”

It may be that a person violating the anti-trust law is liable to punishment by criminal prosecution, as to which we express no opinion; but he certainly is not by reason of anything contained in section 5004, which imposes simply a civil liability. The language, “to be recovered by an action in the name of the state, at the relation of the „ attorney-general or district attorney, ’ ’ can be appropriately used only with reference to a civil case.. Civil suits brought by the attorney-general or district attorney in their official, capacity for the benefit of other parties are always brought in the name of such parties on the relation of the attorney-general or district attorney, as the case may be. Criminal prosecutions, under section 27 of the Constitution, and the laws enacted pursuant thereto, must be commenced, if in the circuit court, by indictment, and, if in the court of a justice of the peace, by an affidavit. In neither of these instances is the action thereby begun a proceeding “at the relation of the attorney-general or district attorney.”

Prior to the adoption of the Code of 1906, there was no civil liability of the character now under discussion imposed for violations of the anti-trust law; such violations being punished by fine and imprisonment. "When the Code of 1906 was adopted, the fine and imprisonment features of the statute were omitted, and the present civil liability substituted therefor. Section 5004 of the Code seems to have been adopted as a substitute for the latter part of Sec. 4, Ch: 88, of the Laws of 1900, which provided for a criminal prosecution, and directed the circuit judges to charge the grand juries relative thereto. "Why this provision was brought forward in section 5004 is not clear, for the grand jury has nothing *438 to do with the collection of the penalty thereunder imposed. This may have occurred hy an oversight, or out of a desire to retain as much of the phraseology of the old law as possible, and without due consideration of the effect thereof. But, he that as it may, this direction to the circuit judges cannot have the effect of converting into a criminal what was clearly intended to. be a civil liability.

The hill is not multifarious. The only relief sought hy it is the infliction of a penalty prescribed by section 5004 of the Code. In order that this may he done, the trust and combine alleged to have been entered into by appellants must be declared to be unlawful.

Section 4738 of the Code provides that the revenue agent “shall have power and it shall be his duty to proceed by suit in the proper court against all officers, county contractors, persons, corporations, companies, and associations of persons for all past-due and unpaid taxes of any kind whatever, for all penalties or forfeitures for all past-due obligations and indebtedness of any character whatever owing to the state or any county, municipality or levee hoard, and for damages growing out of the violation of any contract with the state or any county, municipality, or levee hoard, and shall have a right of action and may sue at law or in equity in all such cases where the state or any county, municipality or levee board has the right of action or may sue.”

It is contended hy counsel for appellants that under this section the revenue agent is not empowered to sue for all penalties and forfeitures owing to the state, hut only for penalties and forfeitures for all past-due obligations, etc., owing to the state. This argument is based upon the absence of a comma between the words “or forfeitures” and the words “for all past-due” in the fifth line of the section. They seem to concede that, were this comma not absent, the revenue agent would have power to sue for all penalties and forfeitures. While punctuation is a valuable aid in the construction and in *439 terpretation of a statute, it cannot control the plain meaning thereof, and the courts will disregard the same and repunctuate the statute, if necessary, to give effect to what appears to be the plain meaning thereof. If the contention of appellants is correct, the revenue agent would have no power to sue for penalties or forfeitures owing the state, except such as were incident to past-due obligations to the state; neither would he have any power to sue for past-due obligations, being limited to a suit for the recovery of the penalties and forfeitures incident thereto. It is manifest that, the true intention of the statute is to confer upon the revenue agent the power to sue for all penalties and forfeitures of every character owing the state, and for all past-due obligations and indebtedness of any character whatever owing to the state, and, consequently, the court, carrying out this plain intent,, will insert the comma in the place hereinbefore indicated.

Counsel for appellants also contend that since section 5004, which imposes the penalty sued for, provides that it shall be recovered by an action in the name of the state at the relation of the attorney-general or district attorney, that the grant of power to sue to these officials excludes any power to sue therefor in any other officials, and that, consequently, the revenue agent is without authority to bring this shit. This section, however, and section 4738, are parts of the same Code, were adopted at the same time, and must be construed together, and, so construed, the authority granted to the attorney-general and district attorney by section 5004 is not exclusive. To so hold would practically strip the revenue agent of all power, for in very few, if any, cases is he given the sole authority to collect or sue for money owing the state; such authority being generally also vested in other officials.

The decree of the court below, therefore, is affirmed, and the cause remanded for further proceedings.

Affirmed and remanded.