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Constitutional law-who may

pugnant to article 29 of the Constitution of 1879, article 31 of the Constitution of 1898, and § 16 of article 3 of the Constitution of 1921, which provide that every law shall embrace but one object, which shall be expressed in its title. The question is of no importance and concern to the raise question. defendant, since he is not prosecuted under the Act of 1890, and since that act has been repealed by the Act of 1915. We note in defendant's brief that his learned counsel argue the same constitutional objection against the Act of 1915, but we do not find any such attack in the motion to quash, and there has been no assignment of errors filed. But be that as it may, there is a ground set up in the motion which we regard as fatal to the indictment and prosecution against the defendant, and, this being true, it is unnecessary to consider the question of the constitutionality of the act. At all events, the defendant, under the conclusion we have reached, is without interest to raise the question of the constitutionality of the act. State v. Rogers, 148 La. 653, 87 So. 504.

The motion to quash alleges that the indictment and the matters and things therein alleged set forth and charge no crime known to the laws of Louisiana; that the laundry business in the city of New Orleans is not trade or commerce, and is not trade or commerce within the meaning and intendment of those words as used in the statute under which said indictment was drawn.

It is admitted in the statement of facts attached to the motion to quash:

"That in the laundry business in the city of New Orleans no article. is manufactured or sold, said laundries doing no business other than receiving dirty clothes, laundering them, and returning them, cleansed, to the customer.

"That the operation of washing, drying, starching, dampening, and ironing the laundry is largely mechanical or by means of steam and

machinery designed for the purpose, supplemented by manual labor, performed by men and women.

"All materials used in the washing, starching, and ironing operation, such as soap, starch, bluing, and other necessary articles, are purchased by the laundry from the manufacturers or dealers.

"The laundry requires the use of a large number of wagons and motor trucks and the services of a large number of drivers to transport the laundry from and to the residences, places of business, ships, hotels, and different agencies in the city.

"The laundries trade or deal with their customers through the truck or wagon drivers who solicit business; paid solicitors employed by the laundries; various agencies established throughout the city and in other towns; and the offices of the different laundries."

The title of the act is: "To Protect Trade and Commerce against Unlawful Restraints, Combinations, Conspiracies, and Monopolies, and to Provide Remedies" and penalties "against Same"

The 1st section of the act relates to anti-trust contracts:

"That every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce in the state of Louisiana, is hereby declared to be illegal."

"Every person who shall make any such contract, or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor," etc.

or

"Sec. 2. That every person who shall monopolize, or attempt to monopolize, any part of the trade or commerce within the state of Louisiana, shall be deemed guilty," etc.

"Sec. 4. That it shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or sell, or contract for the sale of goods, wares, merchandise, machinery, supplies, or other commodities, whether patented, or unpatented for use, consump

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tion, or resale within this state, or to fix a price charged therefor, or discount from, or rebate upon such price, on the condition, agreement, or understanding that the purchaser or lessee thereof shall not use or deal in the goods, wares, merchandise, machinery, or other commodities of a competitor or competitors of the vendor or lessor, where the effect of such sale, or contract for sale, or lease, or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce."

It is clear that the charge as set out in the indictment does not bring the defendant within the terms of the 1st section of the act, for that section relates exclusively to contracts, etc., in restraint of trade. Section 2 does not define what acts shall constitute an attempt to monopolize any trade or commerce, nor what acts shall constitute a monopoly within the intent and purpose of that section, which is the only section of the act that fixes a penalty for the doing of the things mentioned in the section as unlawful.

We must have recourse, therefore, to § 4 for a definition of "an attempt to monopolize trade and commerce, if any such definition is to be found in the act at all. Counsel for the state concede that, if the Act of 1915 consisted of § 4 alone, there might be some force in defendant's contention, but they say that other things are forbidden by the other sections of the act. That is quite true, but search will be made in vain to find any other provision of the act that would bring the case of the defendant within the prohibition of § 2, or connect the laundry business with the things therein mentioned, that furnishes a definition of the things sought to be prohibited and punished therein.

It can hardly be seriously questioned that, if § 2 was the only section in the act which made an "attempt to monopolize any part of trade or commerce" a crime, the prosecution would fall for the

reason already stated. A careful reading of § 4 shows that it does not seek to forbid or to make unlawful the acts and things therein recited when committed by any person; but only such persons as are engaged in commerce and in the course of commerce, etc., are to be brought under the condemnation of the section. And it is only made unlawful for such persons to lease or sell, or to contract for the sale of goods, etc., for use, consumption, or resale, or to fix a price charged therefor on the condition or agreement that the purchaser or lessee shall not use or deal in the goods, etc., of a competitor of the said vendor or lessor, where the effect may be to lessen competition or to create a monopoly.

When we come, therefore, to consider the section referred to in connection with the business of laundry as shown by the statement of facts, there is left no possibility of doubt that such business is utterly and totally foreign to the "trade and commerce" which the lawmakers had in view, and the restraint of which it was the object and purpose of the statute to prevent.

The business of the laundry is not to lease or to sell, nor does a laundry deal in goods, wares, and merchandise, or other commodities. Nor has it anything to do with the fixing of the prices of commodities. In other words, there is absolutely nothing in connection with the business carried on by the laundry, or the method pursued in operating the laundry business, that would bring the laundry within any definition of "trade" or "commerce," in the sense in which those words are used in the statute, or that would even suggest to the ordinary mind that such laundry was a concern engaged in trade and commerce. We are unable to conceive of any rule of interpretation by which the terms of the statute can be so broadened or enlarged as to bring the laundry business thereunder.

An examination of the jurisprudence of this state fails to discover any case dealing with the precise

question here involved. The cases cited by the learned counsel for the state from other jurisdictions have no important bearing, and certainly cannot be accepted as controlling. As a rule the cases apply to particular statutes, and the sense in which the words "trade" and "commerce" are used in those cases has no application, and furnishes no aid in determining the instant case. For instance, it was said in Geise v. Pennsylvania F. Ins. Co. - Tex. Civ. App., 107 S. W. 555: "In its "In its broad and general sense ['trade'] covers and embraces all occupations in business, with the possible exception of the learned professions, and those that pertain to the liberal arts and the pursuit of agriculture."

In State ex rel. Coleman v. Western U. Teleg. Co. 75 Kan. 609, 90 Pac. 299: "Intercourse between private parties by means of telegraphic communications is simply commerce, although they are carried routes which are post roads."

over

In Beall v. Beck, Fed. Cas. No. 1,161, it was held that a keeping of a boarding house is of itself a trade. And in one of the cases, Re Pinkney, 47 Kan. 89, 27 Pac. 179, it was remarked that "in the broader sense [trade] is any occupation or business carried on for subsistence or profit."

Surely counsel would not for a moment contend that any such broad and general definitions and use of the terms could be made to bring the business of a laundry under the terms of the statute, in the absence of any language to be found in the statute that would remotely indicate that it was the purpose of the lawmakers to do so. It might with equal propriety be said, in a general way, as of the telegraph business, or of the boarding-house business, or of the insurance business, mentioned in the cases cited, that in a certain sense laundering clothes is a trade or a business; but it cannot be so classed in the sense as used in the statute we are dealing with. Nor would the boarding-house, the tele

graph, or the insurance business, to which counsel would apply the words "trade" and "commerce," come within the terms of said statute.

An interesting case, and doubtless the leading case, where the court had under discussion the question as to whether the business of a laundry came within the purview of an anti-trust statute, is the case of State ex rel. Moose v. Frank, 114 Ark. 47, 52 L.R.A. (N.S.) 1149, 169 S. W. 333, Ann. Cas. 1916D, 983, cited by counsel of defendant. The court, in concluding quite a lengthy opinion, said: "The business of laundering is a mere service done, whether performed by hand or by machinery, and an agreement to regulate the price. therefor is in its last analysis merely an agreement to fix the price of labor, or services, and the legislature of this state has not made such an agreement unlawful."

Other cases cited by counsel along the same line, and which we deem it unnecessary to review in this opinion, are Rohlf v. Kasemeier, 140 Iowa, 182, 23 L.R.A. (N.S.) 1284, 132 Am. St. Rep. 261, 118 N. W. 276, 17 Ann. Cas. 750; State ex rel. Star Pub. Co. v. Associated Press, 159 Mo. 410, 51 L.R.A. 151, 81 Am. St. Rep. 368, 60 S. W. 91; Muir v. Samuels, 110 Ky. 605, 62 S. W. 481.

In State v. Fontenot, 112 La. 628, 36 So. 630, it was said: "Unless an act can be brought within the meaning of the words of the statute, it is not a crime, though it comes within the mischief sought to be remedied by the statute, and is of equal atrocity with the acts enumerated by the statute."

"Courts may be authorized sometimes to restrain the generality of the terms of a law so as to exclude from its operation exceptional cases, but not to enlarge the terms of a limited law." State v. Leo, 108 La. 496, 32 So. 447, 15 Am. Crim. Rep. 272.

In State v. Gaster, 45 La. Ann. 636, 12 So. 739, Mr. Justice Fenner, as the organ of the court, had this to say: "All crimes in Louisiana are statutory, and there can be no

(- La. - 98 So. 748.)

crime which is not defined and denounced by statute. The determination and definition of acts which are punishable as crimes are purely legislative functions, which cannot be delegated to or exercised by the judiciary."

And in a more recent case, State v. Gardner, 151 La. 874, 92 So. 369, Mr. Justice St. Paul, for the court, quoted with approval from United States v. Reese, 92 U. S. 220, 23 L. ed. 563, as follows: "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large."

Our conclusion is that the laundry business operated in the city of New Orleans, as disclosed by the evidence, is not "trade Monopolies

or

commerce," in laundry busithe sense said words

ness.

are used in §§ 2 and 4 of Act. 11 of the extra session of 1915; and that said laundry business was not included within the prohibition of said. two sections of said act.

The judgment appealed from is therefore affirmed.

Rehearing denied by whole Court, January 7, 1924.

O'Neill, Dawkins, and Land, JJ., dissent from refusal to grant rehearing.

ANNOTATION.

Laundry business as within statute relating to monopolies.

The decision in the reported case (STATE V. MCCLELLAN, ante, 527), that a laundry business is not within the provisions of a statute relating to monopolies or trusts and applying to persons who attempt to monopolize "trade or commerce," appears to be a novel one, in so far as the specific holding is concerned, although there are other cases, some of which are cited in the opinion in that case, which throw more or less light on the question involved. The court took the view, which is supported by other cases cited in the annotation, that as the business of a laundry is not to lease or to sell, or to deal in goods, wares, and merchandise, or other commodities, and has nothing to do with the fixing of prices of commodities, its business is not "trade or commerce" within the prohibition of the statute.

It was held in State ex rel. Moose v. Frank (1914) 114 Ark. 47, 52 L.R.A. (N.S.) 1149, 169 S. W. 333, Ann. Cas. 1916D, 983, that an agreement to fix the price of laundry work is not within the operation of a statute declaring it to be a conspiracy to become a party to an agreement to fix the price of any commodity, convenience, or repair. or any article or thing whatsoever. The

court referred to authority to the ef-
fect that the word "commodity" is
ordinarily used in the commercial
sense of any movable and tangible
thing which is produced or used as
the subject of barter or sale, and held
that this term did not apply to the
laundry business. It was said: "It
is concluded by the state that an
agreement to fix the price of launder-
ing is not an agreement to fix the
price of any article of manufacture,
mechanism, or merchandise;' but it
is contended that the facts here al-
leged constitute an agreement to fix
the price of a commodity, convenience,
or repair. And it is not contended by
the state that the business of launder-
ing is included in the term 'any arti-
cle or thing whatsoever.' This last
contention could not be sustained, be-
cause, if the business of laundering is
not a commodity, convenience, or re-
pair, then it would not be embraced
in the words 'article or thing whatso-
ever.'
A study of its terms
makes the fact plain that the legisla-
ture has not included within the in-
hibition of this act agreements relat-
ing to the price of labor. The ques-
tion has several times been before the
courts of various states as to whether
a laundry was a manufacturing estab-

lishment or not, and, so far as we are advised, it has been uniformly held that it is not. If the business

The

of laundering is not a commodity, then an agreement fixing prices for the performance of that service is not within the inhibition of the Anti-trust Act. No other word or term in that act could include that business. act does use the word 'repair,' but it cannot be seriously contended that this word is sufficient to embrace the business of laundering. It may be true that to some extent laundries do repair clothes which they wash; but it does this as a mere incident to that business; and by such service they merely 'repair' the damage which they have done in performing their service of making the clothes clean. The business of laundering is a mere service done, whether performed by hand or by machinery, and an agreement to regulate the price to be charged therefor is, in its last analysis, merely an agreement to fix the price of labor, or services, and the legislature of this state has not made such an agreement unlawful."

It was held in Downing v. Lewis (1898) 56 Neb. 386, 76 N. W. 900, that a laundry was not a manufacturing establishment within the meaning of a statute making it unlawful for any person or corporation engaged in the manufacture or sale of any article of commerce to enter into any contract or combination with any other person, etc., engaged in the manufacturing, selling, or dealing in the same or any like manufactured products, whereby a common price should be fixed for any such article or product, or whereby the manufacture or sale thereof should be limited, or the amount or number of the products to be sold or manufactured should be determined, or whereby the products or profits of such manufacture or sale should be made a common fund. The court said: "It seems perfectly plain that a laundry, the business of which is to wash and iron linen and other articles of wearing apparel and domestic use which have become soiled in the service for which they were fabricated, is not a manufacturing establishment

within the meaning of the section quoted. In the common understanding the function of a laundry is to make clothes clean rather than to make clean clothes. But if it were true that in the classification of occupations this business should be assigned to the manufacturing class, still the statute would have no application to the case before us. The law was intended to redress a well-known evil. It was designed to prevent manufacturers and dealers in articles of commerce from combining for the purpose of lessening competition, regulating production, and increasing profits. It was intended to secure to the public the benefits of fair competition in trade, and markets in which prices of products would be fixed with reference to the natural demand and supply. It will be observed that all contracts in restraint of trade are not forbidden, but only such as are entered into by parties who are 'engaged in manufacturing, selling, or dealing in the same or any like manufactured or natural products.'

The annotation does not purport to cover cases where one sold a laundry business and agreed not to re-enter upon this line of business, and the question was as to the validity of the agreement. See, for example, Godfrey v. Roessle (1895) 5 App. D. C. 299; Barrone v. Moseley Bros. (1911) 144 Ky. 698, 139 S. W. 869; Augusta Steam Laundry Co. v. Debow (1904) 98 Me. 496, 57 Atl. 845; Southworth v. Davidson (1908) 106 Minn. 119, 19 L.R.A. (N.S.) 769, 118 N. W. 363, 16 Ann. Cas. 253; My Laundry Co. v. Schmeling (1906) 129 Wis. 597, 109 N. W. 540. And see, as illustrative of possibly other cases of the kind, Allen Mfg. Co. v. Murphy (1910) 22 Ont. L. Rep. 539, where the question was as to the validity and effect of an agreement by an employee of a laundry company that he would not, for three years after leaving the employment, engage in business of a similar kind.

The question whether one engaged in the laundry business is performing acts in interstate trade or commerce, where he solicits patronage in one

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