A state penal statute which prescribes no standard of conduct
that it is possible to know violates the fundamental principles of
justice embodied in the conception of due process of law.
International Harvester Co. v. Kentucky, ante, p.
234 U. S. 216,
followed to the effect that the provisions in regard to pooling
crops in Chapter 117 of the Laws of Kentucky of 1906 as amended by
Chapter 8 of the Laws of 1908, as construed by the courts of that
state, in connection with the Anti-Trust Act of 1890 and § 198 of
the Kentucky Constitution of 1891 do not prescribe any standard of
conduct, and therefore
Page 234 U. S. 635
amount to a denial of due process of law under the Fourteenth
Amendment.
141 Ky. 565 reversed.
The facts, which involve the constitutionality of provisions of
the statutes of Kentucky of 1906, permitting combinations or pools
of tobacco and other farm products, are stated in the opinion.
MR. JUSTICE HUGHES delivered the opinion of the Court.
The plaintiff in error, Patrick Collins, and other tobacco
growers of Mason County, Kentucky, entered into a pooling contract
with the Burley Tobacco Society and the Mason County Board of
Control whereby they consigned to the society their respective
crops of tobacco (raised in the year 1907), to be sold by the
society as their agent upon such terms as it should prescribe, but
not less than a minimum price. Because Collins disposed of his crop
without the consent of the agents of the pool, he was indicted. He
demurred to the indictment upon both state and federal grounds,
setting forth as the latter that the statutes under which he was
prosecuted contravened the Fourteenth Amendment of the federal
Constitution, in that they denied to him the equal protection of
the laws and deprived him of liberty and property without due
process of law, and also were repugnant to the commerce clause and
the federal Anti-Trust Act of July 2, 1890, 26 Stat. 209, c. 647.
The demurrer was overruled, and trial was had. There was evidence
that the tobacco had been removed by Collins to Cincinnati, Ohio,
and there sold; Collins was found guilty and sentenced
Page 234 U. S. 636
to pay a fine. The Court of Appeals having affirmed the judgment
(141 Ky. 565), this writ of error is prosecuted.
The conviction was under the provisions of § 3941
a of
the Kentucky statutes, being the Act of March 21, 1906 (Laws 1906,
c. 117), as amended by the act of March 13, 1908 (Laws 1908, c. 8).
The Act of 1906 permitted persons to "pool or combine" the crops of
"tobacco, wheat, corn, oats, hay, or other farm products" raised by
them "for the purpose of obtaining a better or higher price
therefor than could or might be obtained by selling said crops
separately or individually." The persons so agreeing were also
allowed to select agents to receive and to sell or dispose of the
crops, so placed, in order to accomplish the object of the
combination. The amendment of 1908, in addition to giving remedies
by way of injunction and damages, provided that the agent, "when so
selected," should have "the sole right to sell said crop so pooled
or combined," that it should be unlawful "for any owner of such
crop to sell or dispose of same, and for any person to knowingly
purchase the same without the written consent of such agent," and
that, "upon conviction thereof," a fine should be imposed.
This statute, as construed by the Court of Appeals of Kentucky,
is not to be regarded as an independent enactment, but is to be
viewed in connection with the Kentucky Anti-trust Act of 1890
(Ky.Stat. § 3915), and in the light of § 198 of the Kentucky
Constitution adopted in 1891. The statute of 1890 forbade the
formation of pools or combinations for the purpose of regulating,
controlling, or fixing the price of merchandise or property of any
kind. Section 198 of the Constitution provided that it should be
the duty of the General Assembly from time to time to enact such
laws as might be necessary
"to prevent all trusts, pools, combinations, or other
organizations from combining to depreciate below its real value any
article,
Page 234 U. S. 637
or to enhance the cost of any article above its real value."
It was held that the constitutional provision did not repeal the
Act of 1890 (
Commonwealth v. Griffinstead, 108 Ky. 59),
and in
Commonwealth v. International Harvester Co., 131
Ky. 551, it was further held (approving the views expressed in
Owen County Burley Tobacco Society v. Brumback, 128 Ky.
137) that the Act of 1906 did not violate § 198 of the
Constitution, inasmuch as it "did not authorize a pool to enhance
the cost of crops above their real value," but that the effect of
the last-mentioned act,
"when considered in connection with the Act of 1890, § 198 of
the Constitution, and the Fourteenth Amendment to the Constitution
of the United States, was to confer, not only upon the farmer, but
upon all others, the right to pool their products, skill, or
capital for the purpose of obtaining the real value thereof."
See Commonwealth v. Hodges, 137 Ky. 233, 241;
International Harvester Co. v. Commonwealth, 144 Ky. 405,
410; 147 Ky. 557, 559; 147 Ky. 564, 565. Section 3941
a is
treated as an amendment to § 3915, and, as was said in
Commonwealth v. International Harvester Co., 147 Ky. 573,
575, the state court
"upheld the validity of both statutes, but also held that the
last amended or modified the first to the extent of legalizing
pools, trusts, combinations, agreements, etc., but that both
statutes are so governed and restricted in their operation by §
198, Constitution, as that they cannot be held to allow, but, on
the contrary, prohibit, persons, associations, copartnerships, or
corporations, engaged or participating in a pool, trust,
combination, or agreement, by means thereof, to fix, control, or
regulate the price of any commodity or article by raising or
depreciating, or attempting to raise or depreciate, it above or
below its real value."
As the present prosecution was under this legislation, thus
construed as constituting in effect a single act, the
Page 234 U. S. 638
question presented is the same as that decided by this Court in
International Harvester Co. v. Kentucky, ante, p.
234 U. S. 216. It
was found that the statute, in its reference to "real value,"
prescribed no standard of conduct that it was possible to know;
that it violated the fundamental principles of justice embraced in
the conception of due process of law in compelling men, on peril of
indictment, to guess what their goods would have brought under
other conditions not ascertainable.
The Harvester Company was prosecuted for being a party to a
price-raising combination; Collins, for breaking a combination
agreement and selling outside the pool which he had joined. With
respect to each, the test of the legality of the combination was
said to be whether it raised prices above the "real value." If it
did -- in Collins' case -- he would be subject to penalties for
remaining in the combination; if it did not, he would be punishable
for not keeping his tobacco in the pool. He was thus bound to
ascertain the "real value;" to determine his conduct not according
to the actualities of life, or by reference to knowable criteria,
but by speculating upon imaginary conditions and endeavoring to
conjecture what would be the value under other and so-called normal
circumstances with fair competition, eliminating the abnormal
influence of the combination itself, and of all other like
combinations, and of still other combinations which these were
organized to oppose. The objection that the statute, by reason of
its uncertainty, was fundamentally defective, was as available to
Collins as it was to the Harvester Company.
In this view, it is unnecessary to consider the objection under
the commerce clause, or the alleged conflict, as to interstate
transactions, with the federal antitrust act.
The judgment is reversed and the cause is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.