Bishop, Crim. Proc. §§ 631-642; Wharton, | whether the measure be called a print or a Crim. Pl. & Pr. §§ 239-241; State v. Decker, package. The words are used synonymously 52 Kan. 193, 34 Pac. 780; State v. Burkett, as to the quantity designated thereby. One 51 Kan. 175, 32 Pac. 925; State v. Hayes, 59 Kan. 61, 51 Pac. 905; State v. Conley, 1 Kan. App. 124, 41 Pac. 980. measure was established under two wellrecognized names. As in the sale of potatoes by measure, an abuse had arisen by The Kansas legislature did not intend the use of a measure of smaller content this act to apply to corporations. Tynan v. Walker, 35 Cal. 634, 95 Am. Dec. 152; Ezekiel v. Dixon, 3 Ga. 146; Atty. Gen. V. Bank of Michigan, Harr. Ch. (Mich.) 315; Storms v. Stevens, 104 Ind. 46, 3 N. E. 401; Woodbury v. Berry, 18 Ohio St. 456; Hadden v. The Collector (Hadden v. Barney) 5 Wall. 107, 18 L. ed. 518; Dudley v. Reynolds, 1 Kan. 285; Tompkins v. First Nat. Bank, 18 N. Y. Supp. 234. than was indicated to the public by the name of the measure used. To correct this abuse the statute in question was enacted. The objection is based upon the assumption that two different measures are designated by the act. The objection therefore is not tenable. Several objections were urged which appear to be criticisms of the language of the complaint even where it follows the exact language of the statute in defining the crime. These objections we will not discuss seriatim. Suffice it to say that the statute is not susceptible of some of the constructions attempted to be placed upon it, and, while probably the crime is not defined therein as clearly as it might be, yet the definition seems to be intelligible, and the complaint follows closely the language Ex parte Dietrich, 149 Cal. 104, 5 L.R.A. thereof. It does not negative the proviso (N.S.) 873, 84 Pac. 770. In order to show that the state is exercising its police power in a reasonable and constitutional manner, the complaint should state the facts. It should state the weight of the package sold, and it would then be a question of law whether, assuming the statements of facts to be true, the statute has been violated. Mr. Z. C. Millikin also for appellee. or exception in the last sentence of the Smith, J., delivered the opinion of the for duplicity is completely answered in the court: A number of objections made to the complaint are argued in the briefs together, and are, in substance, that the complaint is not sufficiently definite and certain as to the facts constituting the alleged offense herein charged. It is especially urged that the statute establishes a certain weight for a print or package of butter, and that the complaint does not inform the accused whether it was a print or a package which is alleged to have been sold short of such weight. It is a matter of common knowledge that formerly butter was retailed in prints of about 1 pound weight each; that more recently, for cleanliness and attractiveness, butter has been put up and sold in packages of about the same weight; and that at and before the passage of the act both (print and package) were generally understood as a measure of the same amount in weight-1 pound. The legislature, in passing the act of which the quoted sections are a part, is presumed to have used the terms in accordance with common usage. In fact, in the latter part of § 15 the word "package" is used in lieu of "print or package," and the word "packages" in lieu of "prints or packages." The act is entitled, "An Act Concerning Weights and Measures and the Regulation Thereof." Laws 1909, chap. 264. Section 14 establishes the size of a measure of butter, case of State v. Sherman, 81 Kan. 874, 135 Am. St. Rep. 403, 107 Pac. 33. The exposing for sale and selling, as charged, appears to have been simultaneous and each as a part of one act. Again, it is contended that even if the statute recites facts which constitute the offense, and if (as has been repeatedly held by this court) the complaint is sufficient so far as it follows the language of the statute in describing the offense, still this complaint is bad in that it does not negative the exception or provision contained in the last sentence of § 15, which reads: "A slight variation from the stated weight, measure or quantity for individual packages is permissible, provided this variation is as often above as below the weight, measure or quantity stated." Laws 1909, chap. 264, Gen. Stat. 1909, § 9752. This is in fact an independent sentence, although as punctuated in the statute it is separated only by a semicolon from the preceding sentence. It forms no part of the definition of the offense charged, but is a proviso, or, at most, an exception thereto. The provision simply excepts sales where the variation in weight is slight, and is as frequently above as below the weight expressly stated, or the weight implied in the absence of the required label. In such case it is not necessary to negative the exception. See State v. Thompson, 2 Kan. 432; Kansas 189. The more serious contentions in this case are: (1) That the statute in question is not in terms made applicable to corporations. (2) If intended to apply to corporations, it is in violation of § 17, art. 2, of the Constitution of Kansas for the reason that it cannot have a uniform operation throughout the state; the penalty prescribed being a fine or imprisonment in jail, or both, in the discretion of the court. (3) That the sections of the act in question are repugnant to the 14th Amendment to the Constitution of the United States in depriving persons of liberty and property without due process of law, etc.; the defendant being a resident of Kansas and of the United States. City v. Garnier, 57 Kan. 412, 46 Pac. 707; | its origin at a time when corporations were State v. Thurman, 65 Kan. 90, 68 Pac. few in number, and limited in their powers 1081; State v. Buis, 83 Kan. 273, 111 Pac. and in the purposes for which they were created. Experience has shown the necessity of essentially modifying it; and the tendency of the more recent cases in courts of the highest authority has been to extend the application of all legal remedies to corporations, and assimilate them, as far as possible, in their legal duties and responsibilities, to individuals. To a certain extent, the rule contended for is founded in good sense and sound principle. Corporations cannot be indicted for offenses which derive their criminality from evil intention, or which consist in a violation of those social duties which appertain to men and subjects. They cannot be guilty of treason or felony; of perjury or offenses against the person. But, beyond this, there is no good reason for their exemption from As to the first objection, it is practically the consequences of unlawful and wrongful conceded by the defendant that if the stat- acts committed by their agents in pursuute in question had expressly or by clearance of authority derived from them. Such intendment been made applicable to corpo- a rule would, in many cases, preclude all rations, and had provided for a fine only, it would have been valid; also, that it devolves upon this court to determine what was the intention of the legislature in enacting the law as to whether or not it was to apply to corporations. It was formerly held that a corporation could only be indicted for a failure to perform some duty, and not for malfeasance; but it is now generally held that corporations may be indicted for malfeasance or misfeasance, and may be civilly held responsible for the acts of their officers and agents. In some of the states this is as far as the law has progressed. In some other states it is held that a corporation may be held criminally responsible for an act denounced by the statute, which does not include, as a necessary ingredient, wrongful intent; it being in some cases remarked that a corporation, having no soul, cannot have a criminal intent. As early as 1854 Justice Bigelow, in the opinion in the case of Com. v. New Bedford Bridge, 2 Gray, 339, said: Since the decision in that case the law "The indictment in the present case is for has rapidly developed in favor of holding a nuisance. The defendants contend that corporations criminally responsible for the is cannot be maintained against them, on commission of acts denounced as criminal the ground that a corporation, although by statutes, especially where a specific inliable to indictment for nonfeasance, or an tent is not an essential ingredient of the omission to perform a legal duty or obliga-crime. This has been held in several Fedtion, is not amenable in this form of prose-eral decisions and by decisions in the courts cution for a misfeasance, or the dog of of last resort in several of the states. In any act unlawful in itself and injurious United States v. New York Herald Co. to the rights of others. There are dicta (C. C.) 159 Fed. 296, it is held: "A corin some of the early cases which sanction poration has capacity to commit the crime this broad doctrine, and it has been thence of mailing obscene, nonmailable matter, copied into text writers, and adopted to prohibited by Rev. Stat. § 3893, as amended, its full extent in a few modern decisions. p. 2658." (Syllabus.) A demurrer to the But, if it ever had any foundation, it has indictment in that case was overruled, al adequate remedy, and render reparation for though the penalty prescribed by the statute | ration, why it should not also include the was a fine or imprisonment at hard labor, or corporation if the same word were used to both. It is further held in that case: "Rev. designate the one guilty or supposed to be Stat. § 3893, as amended, describes certain guilty of the libel. The statute in question nonmailable matter, and provides that any (§ 15) by its language, "a person who, by person who shall knowingly deposit, or cause himself, or his servant or agent, or as the to be deposited, for mailing or delivery, servant or agent of another, uses," etc., seems anything declared by the section to be non-almost to suggest that the word "person" mailable, shall for each offense be fined, on conviction, or imprisoned at hard labor, or both, etc. Held, that such section was applicable to a orporation organized for the purpose of publishing a newspaper, and that proof of the mailing by such corporation of its newspaper, containing obnoxious matter, was sufficient to show that the corporation had knowledge thereof." (Syllabus.) It is said in People v. Palermo Land & Water Co. 4 Cal. App. 717, 89 Pac. 723: "There is no reasonable foundation in the nature of things or such intrinsic difference between corporations and natural persons of which I am aware that requires the application of a measure of jurisdiction over an offense committeed by a corporation different from that to be invoked where an individual is charged with the same or similar crime." It is said in Southern Exp. Co. v. State, 1 Ga. App. 700, 58 S. E. 67: "The responsibility of corporations for violation of penal laws, though developed by gradual evolution, is well settled and necessary. A corporation can be guilty of the offense of furnishing liquors to a minor, if such liquors be delivered to a minor by the agent of the corporation in the course of its business, or if such agent knowingly permits such delivery by another." (Syllabus.) here was intended to include a corporation. The statute was enacted to prevent a particular abuse, and it is a matter of common knowledge in the state that large corporations as well as individuals were practising the abuse of selling butter by print and package containing less weight than is required by the act, and, it may be said, of less weight than the public generally understood such prints or packages to contain. That the individual who, after the passage of the act, should expose for sale or sell a print or package of less than the prescribed weight, should be guilty of a crime, and that a corporation might conduct the practice with impunity, seems revolting to all ideas of justice, and we hold, in accordance with the general trend and development of the law, that the word "person," being the second word in Laws 1909, chap. 264, § 15, as there used, includes a corporation. As to the second objection that the statute, if applied to corporations, cannot have uniform operation in the state, the question was involved in the New York Herald Case, supra, but seems not to have been considered of sufficient importance to merit discussion. In W. H. Small & Co. v. Com. 134 Ky. 272, 120 S. W. 361, it is said: "That an individual guilty of an offense may be both fined and imprisoned, and a corporation likewise guilty only fined, does not affect the validity of the statute. The apparent discrimination grows out of conditions that cannot be avoided, and the corporation that is favored by the discrimination cannot complain." It is true only the penalty of a fine can be applied to a corporation; whether the additional penalty of imprisonment in the jail should ever be applied to an individual is a matter that rests in the discretion of the court. There are many other instances where the same question will be raised; for instance, a corporation may be guilty of contempt of court and can only be fined, while an individual may be fined and imprisoned. 1 Clark & M. Priv. Corp. § 257; Telegram Newspaper Co. v. Com. 172 Mass. 294, 44 L.R.A. 159, 70 Am. St. Rep. 280, 52 N. E. 445. Among the states upholding the doctrine that a corporation may be indicted for misfeasance and for a violation of acts prohibited by statute, cited in 12 Century Dig. § 2138, are Illinois, Kentucky, New Jersey, New York, Ohio, and Tennessee. Other states, notably Indiana and Maryland, hold to the ancient doctrines that a corporation cannot be indicted for misfeasance. In several of the states cited there is a statutory provision that the word "person," where used in the criminal statute, includes corporations. There is no such provision in this state, and we do not find any decision in this state which so holds, although in the case of State v. Williams, 74 Kan. 180, 85 Pac. 938, it was said that the word "person" used in § 314 of crimes and punishments (Gen. Stat. 1909, § 2814), referring to the person libeled, in- The third contention that §§ 14 and 15 in cludes a corporation, The question may question are void because in violation of well be asked, if the word "person" used the 14th Amendment to the Constitution to designate one libeled, includes a corpo- of the United States, is likewise untenable. They are upheld as police regulations, and ants from soliciting the custom of plainsuch regulations of weights and measures tiff's customers as users of trading stamps, have stood upon the statute books of this state practically during the entire existence of the state, and likewise in other states of the Union. For the constitutionality of statutes or ordinances forbidding the use of trading stamps, see notes to Ex parte Drexel, 2 L.R.A. (N.S.) 588; Denver v. Frueauff, 7 L.R.A. (N.S.) 1131; District of Columbia v. Kraft, 39 L.R.A. (N.S.) 957; and State ex rel. Hartigan v. Sperry & H. Co. 49 L.R.A. (N.S.) 1123. In Merchants' Legal Stamp Co. v. Scott, Mass., 107 N. E. 969, which was decided at the same time as MERCHANTS' | LEGAL STAMP Co. V. MURPHY, the court basing its decision upon the MURPHY CASE, holding that the nature of plaintiff's contract was monopolistic in its tendency and therefore void, refused to grant relief against defendant, who was obtaining stamps in exchange for goods from customers of plaintiff who came into his store to trade, instead of buying them from the plaintiff. In Sperry & H. Co. v. Fenster, 219 Fed. 755 (a decision of a Federal district court), from soliciting trading stamps from customers of such customers, and from inducing or attempting to induce any of its customers to break its contracts with it. Affirmed. The facts are stated in the opinion. Messrs. Charles Connor and Lothrop Withington, with Messrs. Whipple, Sears, & Ogden, for appellant: Contracts in restraint of trade are not invalid and void unless unreasonable or prohibited by statute. Anchor Electric Co. v. Hawkes, 171 Mass. 101, 41 L.R.A. 189, 68 Am. St. Rep. 403, 50 N. E. 509; Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Co. [1894], A. C. 535, 63 L. J. Ch. N. S. 908, 11 Reports, 1, 71 L. T. N. S. 489, 6 Eng. Rul. Cas. 413; Diamond Match Co. v. Roeber, 106 N. Y. 473, 60 Am. Rep. 464, 13 N. E. 419; Alger v. Thacher, 19 Pick. 51, 31 Am. Dec. 119; Taylor v. Blanchard, 13 Allen, 370, 90 Am. Dec. 203; Sampson v. Shaw, 101 Mass. 145, 3 Am. Rep. 327; Bishop v. Palmer, 146 Mass. 469, 4 Am. St. Rep. 339, 16 N. E. 299; Dean v. Emerson, 102 Mass. 480; Gamewell Fire Alarm Teleg. Co. v. Crane, 160 Mass. 50, 22 L.R.A. 673, 39 Am. St. Rep. 458, 35 N. E. 98; Com. v. Strauss, 188 Mass. 229, 74 N. E. 308, 191 Mass. 545, 11 L.R.A. (N.S.) 968, 78 N. E. 136, 6 Ann. Cas. 842, decided under Rev. Laws 1902, chap. 56, § 1; United Shoe Machinery Co. v. LaChapelle, 212 Mass. 467, 99 N. E. 289, Ann. Cas. 1913D, 715. Contracts, though in restraint of trade, have been repeatedly upheld as legal. Anchor Electric Co. v. Hawkes, 171 Mass. it appeared that the defendant had obtained plaintiff's trading stamps under conditions equivalent to a purchase from the subscribers for these stamps, and was giving them to his own customers and advertising to do so as an inducement to trade with him, which action plaintiff sought to enjoin, the injunction being resisted by defendant on the ground that plaintiff's practice of seeking to enjoin, or even in some jurisdictions to punish by prosecution, dealers who were using such trading stamps as an inducement to their customers to transact business with them without having subscribed for the right to do so, and without having obtained the stamps by payment therefor to the company issuing them, was contrary to the provisions of the laws forbidding monopoly. The court, in granting a temporary injunc tion, said that the intent and acts of persons taking the stamps and seeking to redeem them for a certain premium, and also the resultant benefits to that person, are entirely different, and are based upon substantially different, rights from those of a L.R.A. 512, 57 Am. St. Rep. 488, 46 N. E. 101, 41 L.R.A. 189, 68 Am. St. Rep. 403, 50 | Gilman v. Dwight, 13 Gray, 356, 74 Am. N. E. 509; Foss v. Roby, 195 Mass. 292, 10 Dec. 634; Dwight v. Hamilton, 113 Mass. L.R.A. (N.S.) 1200, 81 N. E. 199, 11 Ann. 175; Gordon v. Knott, 199 Mass. 173, 19 Cas. 571; United Shoe Machinery Co. v. L.R.A. (N.S.) 762, 85 N. E. 184; Wm. RogKimball, 193 Mass. 351, 79 N. E. 790; ers Mfg. Co. v. Rogers, 58 Conn. 356, 7 Pierce v. Fuller, 8 Mass. 223, 5 Am. Dec. | L.R.A. 779, 18 Am. St. Rep. 278, 20 Atl. 102; Perkins v. Lyman, 9 Mass. 521; Pierce 467; Carnig v. Carr, 167 Mass. 544, 35 v. Woodward, 6 Pick. 206; Vickery v. Welch, 19 Pick. 523; Angier v. Webber, 14 Allen, 211, 92 Am. Dec. 748; Boutelle v. Smith, 116 Mass. 111; Handforth v. Jack son, 150 Mass. 149, 22 N. E. 634; Smith v. Brown, 164 Mass. 584, 42 N. E. 101; Marshall Engine Co. v. New Marshall Engine Co. 203 Mass. 410, 89 N. E. 548; Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Co. [1894] A. C. 535, 63 L. J. Ch. N. S. 908, 11 Reports, 1, 71 L. T. N. S. 489, 6 Eng. Rul. Cas. 413; Underwood v. Barker [1899] 1 Ch. 300, 68 L. J. Ch. N. S. 201, 47 Week. Rep. 347, 80 L. T. N. S. 306, 15 Times L. R. 177; Whitney v. Union R. Co. 11 Gray, 359, 71 Am. Dec. 715; Parker v. Nightingale, 6 Allen, 341, 83 Am. Dec. 632; Schwoerer v. Boylston Market Asso. 99 Mass. 285; Rackemann v. Riverbank Improv. Co. 167 Mass. 1, 57 Am. St. Rep. 427, 44 N. E. 990; Evans v. Foss, 194 Mass. 513, 9 L.R.A. (N.S.) 1039, 80 N. E. 587, 11 Ann. Cas. 171; Brewer v. Marshall, 19 N. J. Eq. 537, 97 Am. Dec. 679, 4 Mor. Min. Rep. 119; New York Bank Note Co. v. Hamilton Bank Note Engraving & Printing Co. 83 Hun, 593, 31 N. Y. Supp. 1060; New York Bank Note Co. v. Kidder Press Mfg. Co. 192 Mass. 391, 78 N. E. 463; Morse Twist Drill & Mach. Co. v. Morse, 103 Mass. 73, 4 Am. Rep. 513; Meyer v. Estes, 164 Mass. 457, 32 L.R.A. 283, 41 N. E. 683; Garst v. Harris, 177 Mass. 72, 58 N. E. 174; party who is seeking to attract customers and to build up him own trade through the privilege of dealing, as it were, in trading stamps, without payment for that privilege, and with no intention of getting the goods for which the stamps are redeemable; that the right to redeem the stamps is a property right transferable by possession, while the license to use them for advertising purposes is not transferable without compensation to the person granting that right. Referring to the Clayton law, approved by the President upon the 15th of October, 1914, which provides in § 3 against the making of a contract or fixing of a price for mer-junction was demanded both by reason and chandise on condition that the lessee or purchaser shall not use or deal in the merchandise of a competitor, if the effect of this contract would be to substantially lessen competition or tend to create monopoly, the court observed that the statute forbids the converse of the acts complained of in the present case: and that it had nothing to do with what might happen if the trading stamp people were seeking to In support of the distinction above made, the opinion in the Fenster Case referred to a decision by Judge Thomas in Sperry & H. Co. v. Benjamin, 221 Fed. 512, which is disposed of by a mere statement that an in authority, and that the objection of multifariousness had been waived, without any discussion of the merits or even statement of the facts upon which the preliminary injunction was granted. Various other phases of the subject of monopolies are treated in notes referred to in the Index to L.R.A. Notes under the title "Monopoly and Combinations." R. L. S. |