190 S.W. 903 (Mo. 1916), The State ex imf. Barker v. Merchants' Exchange of St. Louis

Citation190 S.W. 903, 269 Mo. 346
Opinion JudgeGRAVES, C. J.
Party NameTHE STATE ex inf. JOHN T. BARKER, Attorney-General, v. MERCHANTS' EXCHANGE OF ST. LOUIS
AttorneyJohn T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for relator. Percy Werner for respondent. Frank Hagerman for the Kansas City Board of Trade.
Judge PanelGRAVES, C. J. Walker, J., not sitting.
Case DateDecember 21, 1916
CourtSupreme Court of Missouri

Page 903

190 S.W. 903 (Mo. 1916)

269 Mo. 346

THE STATE ex inf. JOHN T. BARKER, Attorney-General,

v.

MERCHANTS' EXCHANGE OF ST. LOUIS

Supreme Court of Missouri

December 21, 1916

Judgment of ouster entered.

John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for relator.

(1) Every act of the Legislature, duly passed, is presumed to be valid and constitutional. The burden is upon him who attacks its constitutionality to clearly show that it is violative of some constitutional provision. Ex parte Loving, 178 Mo. 203; State v. Cantwell, 179 Mo. 280; State v. Aloe, 152 Mo. 477; Pike v. Thompson, 144 Mo. 322; State ex rel. v. Pike Co., 144 Mo. 280; Railroad v. Andrews, 174 U.S. 96; Atkins v. Kansas, 191 U.S. 223. (2) When there is doubt as to the constitutionality of an act, it will be resolved in favor of the validity of the act. If reasonable minds might differ as to the constitutionality of legislation, it will be upheld as constitutional by the courts. State v. Cantwell, 179 Mo. 280; Ex parte Loving, 178 Mo. 321; State v. Abel, 65 Mo. 357; County v. Griswold, 58 Mo. 192. (3) The expediency or inexpediency of an act is a question for the Legislature and not for the courts. The judiciary cannot inquire into motives and necessities which may have superinduced the passage of the act. Brown v. Cape Girardeau, 90 Mo. 383; County v. Griswold, 58 Mo. 192; State v. Hayes, 49 Mo. 604; Bennett v. Boggs, 1 Baldwin (U.S.), 74; Atkins v. Kansas, 191 U.S. 207; Munn v. Illinois, 94 U.S. 131. (4) The power of the Legislature is unlimited except by express terms of the Constitution. And the Legislature of Missouri has all the powers that belonged to the English parliament, except where there is plain constitutional restraint upon it. Ex parte Berger, 193 Mo. 24; Ex parte Roberts, 166 Mo. 212; Cass County v. Jack, 49 Mo. 196; Munn v. Illinois, 94 U.S. 124. (5) The act does not contravene the Constitution of Missouri or of the United States relative to the taking of property without due process of law, nor is it an unwarranted interference with the right of contract. Munn v. Illinois, 94 U.S. 113; House v. Mayes, 219 U.S. 270, 227 Mo. 617; Davidson v. Sadler, 33 Tex. Civ. App. 600; Wills v. Ft. Smith, 70 Ark. 221. (6) The act does not attempt to regulate interstate commerce, and therefore does not contravene the interstate commerce clause of the Federal Constitution. Coal Co. v. Louisiana, 156 U.S. 590; State v. Coal Co., 41 La. Ann. 465; Turner v. Maryland, 107 U.S. 38; Rasmussen v. Idaho, 181 U.S. 198. (7) The law is a valid exercise of police power. It tends to protect the public and promote the general welfare in that it tends to prevent fraud and imposition in the weighing of grain at public warehouses and elsewhere. Coal Co. v. St. Louis, 130 Mo. 323; St. Charles v. Elsner, 155 Mo. 671; House v. Mayes, 227 Mo. 617, 219 U.S. 270; Lamar v. Weideman, 57 Mo.App. 507; Munn v. Illinois, 94 U.S. 113; Coal Co. v. Louisiana, 156 U.S. 599; Stokes v. Corporation, 14 Wend. (N. Y.) 87; Intendant v. Sorrell, 1 Jones Law (N. C.), 49; O'Malley v. Freeport, 96 Pa. 24; James v. Josslyn, 65 Me. 138; Whitfield v. Compress Co., 26 Tex. Civ. App. 238; Davis v. Anita, 73 Iowa 325; State v. Tyson, 111 N.C. 687; Gaines v. Coats, 51 Miss. 335; Yates v. Milwaukee, 12 Wis. 673; 1 Blackstone's Com. 275; Dillon, Mun. Corp., secs. 390, 391; (8) In passing upon the constitutionality of a given act courts give great weight to history of contemporaneous legislation upon such questions, and the fact that such legislation has long stood upon the statute books unchallenged is strongly persuasive of its constitutionality. The law is a progressive science and adapts itself to changing conditions. The Legislature is the representative body of the Government, and, as all governmental power emanates from the people, this representative body has the right to declare the public policy of the State. Miller v. Oregon, 208 U.S. 420; Patterson v. Bark Eudora, 190 U.S. 169; Coal Co. v. West Virginia, 17 L. R. A. 385; State v. Loomis, 115 Mo. 324; Holden v. Hardy, 169 U.S. 387; McLane v. Arkansas, 211 U.S. 539; Ex parte Loving, 178 Mo. 202.

Percy Werner for respondent.

(1) It may be conceded that every act of the Legislature, if duly passed, is presumed to be constitutional; also that the burden is on the one who attacks its constitutionality to show that it infringes upon some specific provision of the State or Federal Constitution. But, when it is shown that the act does infringe upon specific provisions of the Constitution, and it is sought to justify it on the ground that it comes within the police power of the State, then the burden is on the one so claiming, to show that the act is justified for the reason that it comes within some well-recognized ground upon which the legislative police power rests. 1 Tiedeman on State & F. Control, sec. 1, p. 5; Cooley, Const. Limit (7 Ed.), p. 561; State v. Loomis, 115 Mo. 314; Ritchie v. People, 155 Ill. 98; State v. Cantwell, 179 Mo. 263; Ex parte Berger, 193 Mo. 29. No doubt can exist that, in the absence of such statutory provisions as those of section 63, respondent's members would possess the right to have their grain weighed by any person, public or private, whom they might select. Whether there has been a proper exercise of the police power is a question for the courts. Lawton v. Steele, 152 U.S. 137; State v. Railroad, 242 Mo. 361-2; State v. Loomis, 115 Mo. 307; State v. Vandersluis, 42 Minn. 129, 131; also cases cited supra under this head. (2) Section 63 of the Act of 1913 (Laws 1913, p. 372) is invalid for the reason that its terms are repugnant to sections 4 and 30 of article 2 of the Missouri Constitution, and to section 1 of the 14th Amendment to the Federal Constitution. (a) It arbitrarily classifies those who, in any manner, deal in grain, and arbitrarily and without any just reason restricts their rights, privileges and liberty. State v. Loomis, 115 Mo. 314; State v. Julow, 129 Mo. 172; Door Co. v. Fuelle, 215 Mo. 444; State ex rel. v. Kimmel, 256 Mo. 641; State v. Baskowitz, 250 Mo. 82; State ex rel. v. Railroad, 246 Mo. 512; State v. Miksicek, 225 Mo. 561; Lumber Co. v. Mo. Pac. Ry. Co., 216 Mo. 675; State ex rel. v. Ashbrook, 154 Mo. 394. (b) Section 63 is contrary to the policy of Missouri as shown in Sec. 8431 and in Sec. 8430, R. S. 1909. It deprives one dealing in grain of the very protection given by section 8431 to employees in a mine by having a check weighman. (c) Section 59 of the Grain Inspection Act makes the certificate of the official weigher prima-facie evidence of the correctness of the weighing. Yet, since section 63 takes away the very means by which a buyer or a seller would be able to overcome the prima-facie case made by the official certificate, that certificate becomes conclusive evidence, and no other "basis of settlement" is open to either buyer or seller. To give the official certificate the force of conclusive evidence would be unconstitutional. State ex inf. v. Goffee, 192 Mo. 680. (3) The requirements, prohibition and penalties of section 63 cannot be sustained as constituting a proper and legitimate exercise of the State's police power. All the authorities cited under Point 2 do, to a greater or less extent, sustain this proposition. See, also the following: Bessette v. People, 193 Ill. 334; State v. Railroad, 242 Mo. 376; Fisher Co. v. Woods, 187 N.Y. 90; Grossman v. Caminez, 79 A.D. 15; State ex rel. v. Ashbrook, 154 Mo. 385; St. Louis v. Dreisoerner, 243 Mo. 224; Munn v. Illinois, 94 U.S. 124; Adair v. United States, 208 U.S. 172; Lawton v. Steele, 152 U.S. 137; Ex parte Jentzsch, 112 Cal. 468; 1 Tiedeman on State & F. Control, secs. 1, 3, 90; Cooley, Const. Lim. (7 Ed.), p. 559. The question whether any particular statute is a reasonable and necessary exercise of the State's police power is one to be determined by the courts. State v. Railroad, 242 Mo. 361; Lawton v. Steele, 152 U.S. 137; State v. Cantwell, 179 Mo. 263. The public interest cannot be invoked as a justification for demands which pass the limits of reasonable protection. Railroad v. North Dakota, 236 U.S. 595; State v. Cantwell, 179 Mo. 263; State v. Vandersluis, 42 Minn. 129. And the police power ends where the public interests are not beneficially served. St. Louis v. Dreisoerner, 243 Mo. 224. (4) The question of the expediency or inexpediency of the statute, of its wisdom or necessity, is one which the court may properly consider in a case of the character of the one at bar. Section 63 deprives the persons affected by it of the exercise of natural rights. It can be justified only as a proper exercise of the State's police power. So that the question is whether the court can say that such an enactment is necessary, and is one which is demanded by the public health, comfort, safety or welfare. Ritchie v. People, 55 Ill. 98; State v. Cantwell, 179 Mo. 245. (5) The Missouri Grain Inspection Act imposes a burden on interstate commerce in violation of section 8 of article 1 of the Constitution of the United States. Smith v. Alabama, 124 U.S. 465. A shipment is none the less an interstate shipment because it is transhipped on the way, or is passed through elevators in St. Louis, Kansas City or St. Joseph for the purpose of transferring the grain from one car to another. Bailey v. Railroad, 184 Mo.App. 457; Conkey v. Railroad, 183 S.W. 1111; Terminal Co. v. Interstate Com. Comm., 219 U.S. 527; Railroad Comm. v. Worthington, 225 U.S. 110; Railroad v. La. R. R. Comm., 183 F. 1005, 229 U.S. 336.

Frank Hagerman for the Kansas City Board of Trade.

(1) The act should not be construed as broadly as contended, but the general language should be restricted within its spirit and to the power of the Legislature. Such is the clear result of the previous cases here (State ex rel. v. Smith, 114 Mo. 180; State ex inf. v. Goffee, 192 Mo. 670; Merchants'...

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