People v. Budd

• Decision Date: 08 October 1889
• Parties: PEOPLE v. BUDD.
• Court: New York Court of Appeals Court of Appeals

117 N.Y. 1

22 N.E. 670

PEOPLE

v.BUDD.

Court of Appeals of New York.

Oct. 8, 1889.

Appeal from supreme court, general term, fifth department.

Spencer Clinton, for appellant.

George T. Quinby, for the People.

ANDREWS, J.

The main question upon this record is whether the legislation fixing the maximum charge for elevating grain, contained in the act, (chapter 581, Laws 1888,) is valid and constitutional. The act, in its first section, fixes the maximum charge for receiving, weighing, and discharging grain by means of floating and stationary elevators and warehouses in this state at five-eighths of one cent a bushel, and for trimming and shoveling to the leg of the elevator, in the process of handling grain by means of elevators, ‘lake vessels, or propellers, the ocean vessels or steam-ships, and canal boats,’ shall, the section declares, only be required to pay the actual cost. The second section makes a violation of the act a misdemeanor, punishable by fine of not less than $250. The third section gives a civil remedy to a party injured by a violation of the act. The fourth section excludes from the operation of the act any village, town, or city having less than 130,000 population. The defendant, the manager of a stationary elevator in the city of Buffalo, on the 19th day of September, 1888, exacted from the Lehigh Valley Transportation Company, for elevating, raising, and discharging a cargo of corn from a lake propeller at his elevator, the sum of one cent a bushel, and for shoveling to the leg of the elevator the carrier was charged and compelled to pay $4 for each thousand bushels. The shoveling of grain to the leg of an elevator at the port of Buffalo is now performed, pursuant to an arrangement made since the passage of the act of 1888, by a body of men known as the Shovelers' Union, who pay the elevator $1.75 a thousand bushels for the use of the steam-shovel, a part of the machinery connected with the elevator, operated by steam, and who for their services, and the expense of the steam-shovel, charge the carrier for each thousand bushels of grain shoveled the sum of $4. The defendant was indicted for a violation of the act of [117 N.Y. 5]1888. The indictment contains single count, charging a violation of the first section in two particulars, viz., in exacting more than the statute rate for elevating the cargo, and exacting more than the actual cost for shoveling the grain to the leg of the elevator.

Before reaching the main question there is a subordinate question to be considered. The defendant on the trial raised the question of the constitutionality of the act of 1888, and also insisted that, as to the alleged overcharge for shoveling, the facts did not show that the defendant had received anything for that service, or that the cargo had been charged more than the actual cost, and excepted to the submission to the jury of that branch of the case. The trial judge overruled both points, and submitted the case to the jury in both aspects, who found a general verdict of guilty, and thereupon the court imposed upon the defendant a fine of $250. It is now urged that, assuming the constitutionality of the act of 1888, the judgment should be reversed, for the reason that no overcharge by the defendant for shoveling was proved, and also that the sum paid for shoveling was paid to the Shovelers' Union, the defendant only receiving thereout, from the union, the rent agreed for the use of the steam-shovel. There are two answers to this proposition. The words ‘actual cost’ used in the statute, were manifestly intended to exclude any charge by the elevator beyond the sum specified for the use of its machinery in shoveling, and the ordinary expenses of operating it, and to confine the charge to the actual cost of the outside labor required for trimming and bringing the grain to the leg of the elevator. The purpose of the act could be easily evaded and defeated if the elevator owners were permitted to separate the services, and charge for the use of the steam-shovel any sum which might be agreed upon between themselves and the Shovelers' Union, and thereby, under color of charging for the use of the steam-shovel, exact of the carrier a sum for elevating beyond the rate fixed by the act.

There is a second answer to the proposition. It was undisputed that the defendant exacted a greater charge for elevating than the sum allowed by the act. This was proven by testimony on the part both of the prosecution and the defendant. The verdict of guilty was followed by the infliction of the lowest penalty for a single offense. The verdict and sentence were justified without considering whether an offense was made out under the second allegation in the indictment. No question as to the form of the indictment was made. The joinder of several distinct misdemeanors in the same indictment is not a cause for the reversal of a judgment, where there is a general verdict, and the sentence is single, and is appropriate to either of the counts upon which the conviction was had. Polinsky v. People, 73 N. Y. 65. Even if the alleged overcharge for shoveling was not made out, the verdict and sentence are supported by the findings of the jury on the other branch of the case, and the refusal of the judge to withdraw from the jury the consideration of the question whether there was an overcharge for shoveling could not prejudice the defendant.

Passing, therefore, this point, we come to the main question, and that is whether legislative power, under the state constitution, exists in the legislature to prescribe a maximum charge for elevating grain by stationary elevators owned by individuals or corporations, who have appropriated their property to this use, and are engaged in this business. The ascertainment of the exact boundaries of legislative power, under the rigid constitutional systems of the American states, is in many cases attended with great perplexity and difficulty. The people have set into the frame-work of the constitution a variety of restrictions upon legislative power, and chief among them is that which ordains that no person shall be deprived of life, liberty, or property without due process of law. There is but little difficulty in determining the validity of a statute under this constitutional principle, in cases where the statute assumes to divest the owner of property of his title and possession, or to actually deprive him of his personal liberty. The state may lawfully take the property or life of the citizen without infringementof the constitutional guaranty. The cases where the right of property is set aside by positive laws are various. Distress, executions, forfeitures, taxes, are of this description, ‘wherein,’ said Lord CAMDEN, in Entick v. Carrington, 19 How. State Tr. 1066, ‘every man, by common consent, gives up that right, for the sake of justice and the general good.’ The state may directly take private property for public use on the condition of making compensation, and the cases where it may be taken in satisfaction of public and private obligations, or for the support of government, or as a return for governmental protection, are determined by general rules, well understood and easily applied. The diffculty in the application of the constitutional principle arises in the main in respect to that class of legislation, not infrequent, which, while it does not in a strict sense deprive an individual of his property or liberty, does, nevertheless, in many cases, by the imposition of burdens and restrictions upon the use and enjoyment of property, and by restraints put upon personal conduct, seriously impair the value of property, and abridge freedom of action. The validity of legislation of this kind, to some extent and within certain limits, is questioned by none. But such legislation may overpass the boundaries of legislative power, and violate the constitutional guaranty; for it is now an established principle that this guaranty protects property and liberty, not merely from confiscation or destruction by legislative edicts, but also from any essential impairment or abridgement not justified by the principles of free government. This court has recently, in several notable instances, vindicated the rights of individuals against unjust and arbitrary legislation restraining freedom of action or imposing conditions upon private business not warranted by the constitution. In re Jacobs, 98 N. Y. 98;People v. Marx, 99 N. Y. 377, 2 N. E. Rep. 29; People v. Gillson, 109 N. Y. 399, 17 N. E. Rep. 343. But the very existence of government presupposes the right of the sovereign power to prescribe regulations demanded by the general welfare for the common protection of all. This principle inheres in the very nature of the social compact. The protection of private property is one of the main purposes of government, but no one holds his property by such an absolute tenure as to be freed from the power of the legislature to impose restraints and burdens required by the public good, or proper and necessary to secure the equal rights of all. This power of government-the power, as expressed by TANEY, C. J., (License Cases, 5 How. 583,) ‘inherent in every sovereignty, the power to govern men and things'-is not, however, an uncontrollable or despotic authority, subject to no limitation, exercisable with or without reason, in the discretion or at the whim or caprice of the legislative body. But within its legitimate domain the power is original, absolute, and indefeasible. It vested in the legislative department of the government at its creation, without affirmative grant or definition, as an essential political power and attribute of government, and personal rights and rights of property are subordinate to this supreme power acting within its appropriate sphere. It may be exercised so as to impair the value of property, or limit or restrict the uses of property, yet in this there is no infringement of the...