U.S. Supreme Court

AIKENS v. STATE OF WISCONSIN, 195 U.S. 194 (1904)

195 U.S. 194

ANDREW J. AIKENS, Plff. in Err.,v.

STATE OF WISCONSIN.

No. 3.

ALBERT HUEGIN, Plff. in Err.,v.

STATE OF WISCONSIN.

No. 4.

MELVIN A. HOYT, Plff. in Err.,v.

STATE OF WISCONSIN.

No. 5.

Nos. 3, 4, 5.

Argued and submitted October 21, 22, 1903

Ordered for reargument. May 31, 1904.

Reargued and Submitted October 17, 18, 1904.
Decided November 7, 1904.

Messrs. W. H. Timlin and George D. Van Dyke for plaintiff in error in Nos. 3 and 4.

Messrs. S. S. Gregory, Conrad H. Poppenhusen,

and Joseph L. McNab for plaintiff in error in No. 5.

Messrs. James G. Flanders and Lafayette M. Sturdevant for defendant in error in Nos. 3 and 4.

Mr. Lafayette M. Sturdevant for defendant in error in No. 5.

Mr. Justice Holmes delivered the opinion of the court:

These are three writs of error to the supreme court of Wisconsin, brought to set aside convictions and sentences of the plaintiffs in error, the defendants below, upon informations filed by the district attorney. 113 Wis. 419, 89 N. W. 1135. The ground of the writs is that the proceedings violated the rights of the plaintiffs in error under the 14th Amendment of the Constitution of the United States. The informations were brought under the Wisconsin statutes of 1898, 4466a, which impose imprisonment or fine on 'any two or more persons who shall combine . . . for the purpose of wilfully or maliciously injuring another in his reputation, trade, business, or profession, by any means whatever,' etc. The plaintiffs in error were severally charged with unlawfully combining to-

gether with the intent of wilfully and maliciously injuring The Journal Company, a corporation, and certain persons named, stockholders and officers of the company, in their trade and business. It was alleged that the company was publisher of a newspaper in Milwaukee, and had notified an increase of about 25 per cent in its charges for advertising, and that thereupon the plaintiffs in error, who were managers of other newspapers in the same place, in pursuance of their combination, and with the intent of wilfully, maliciously, and unlawfully injuring The Journal Company and the others named, agreed as follows: If any person should agree to pay the increased rate to The Journal Company, then he should not be permitted to advertise in any of the other three newspapers except at a corresponding increase of rate; but if he should refuse to pay the Journal Company the increased rate, then he should be allowed to advertise in any of the other three papers at the rate previously charged. It was alleged that this conspiracy was carried out, and that much damage to the business of The Journal Company ensued.

The defendant Hoyt demurred to this information, setting up the 14th Amendment. Aikens and Huegin filed pleas which admitted the combination and intent of injuring The Journal Company, and the resulting damage, but alleged that the combination was entered into in trade competition, and that the parties had the right to make it under the 14th Amendment. The state demurred to the pleas. The demurrer of Hoyt was overruled; those of the state were sustained. The defendants were sentenced and the judgment of the trial court was affirmed by the supreme court of the state on the authority of an earlier decision between the same parties, reported in 110 Wis. 189, 62 L. R. A. 700, 85 N. W. 1046.

The statute, it will be observed, punishes combining for the purpose of wilfully or maliciously injuring another in his business. If it should be construed literally, the word 'wilfully' would embrace all injuries intended to follow from the parties' acts, although they were intended only as the necessary means

to ulterior gain for the parties themselves. Taken in that way the word would hit making a new partnership, if it was intended thereby to hurt someone's else business by competition. We shall not consider whether that branch of the statute, so construed, could be sustained, and express no opinion about it. The supreme court of Wisconsin has intimated that a narrower interpretation will be adopted, and in the present case we have to deal only with the other branch, depending on the word 'maliciously,' as we shall explain in a moment. the last-quoted word we must take as intended to add something to the word 'wilfully,' and we can do so only by taking it in its true sense. We interpret 'maliciously injuring' to import doing a harm malevolently, for the sake of the harm as an end in itself, and not merely as a means to some further end legitimately desired. Otherwise the phrase would be tautologous, since a wilful injury is malicious in the sense familiar to declarations and indictments, where, indeed, the word means no more than foreseen, or even less than that. A death is caused of malice aforethought if, under the circumstances, known to the actor, the probability of its ensuing from the act done is great and manifest according to common experience. Com. v. Pierce, 138 Mass. 165, 178, 52 Am. Rep. 264; 1 East, P. C. 262. See also Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. Div. 598, 613.

The informations alleged a combination for the purpose of wilfully and maliciously injuring others, and therefore brought the case within the latter branch of the statute, if there are two, and if 'or' in the act is not taken to mean 'and.' It is true that the plan is set forth, and some argument was spent on whether that plan might or might not be an instrument of ultimate gain. But while that question may have been open when the state court was discussing the evidence warranting a commitment, in 110 Wis. 189, 62 L. R. A. 700, 85 N. W. 1046, none such is open here. The malevolent purpose is alleged, it is admitted by the demurrer, it is not sufficiently denied by the pleas, whatever we may conjecture would have been done if counsel had had this

decision before them. A purely malevolent act may be done even in trade competition.

We come, then, to the question whether there is any constitutional objection to so much of the act as applies to this case. It has been thought by other courts as well as the supreme court of Wisconsin that such a combination, followed by damage, would be actionable even at common law. It has been considered that, prima facie, the intentional infliction of temporal damages is a cause of action, which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape. Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. Div. 598, 613,