The State ex inf. Hadley v. Goffee

• Decision Date: 23 January 1906
• Parties: THE STATE ex inf. HADLEY, Attorney-General, v. GOFFEE et al
• Court: Missouri Supreme Court

91 S.W. 486

192 Mo. 670

THE STATE ex inf. HADLEY, Attorney-General, v. GOFFEE et al

Supreme Court of Missouri

January 23, 1906

Judgment for Respondents.

Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for informant.

(1) The Act of 1893 makes the weighing of grain a part of the inspection of grain and requires that all grain which is "subject for inspection" and is inspected by State Inspectors, should be weighed by State weighmasters, whether such grain goes into or out of public or private warehouses or elevators, or is contained in "cars, barges, wagons or sacks." Sec. 5632, R. S. 1889 (sec. 7650, R. S 1899); sec. 5620, R. S. 1889 (sec. 7638, R. S. 1899); secs 5657a, 5657b, 5657c, 5657d, 5657e, 5657f, Laws 1893, p. 182. (2) Under the facts charged in the information and admitted by respondents in their answer, the law is well settled that it is within the police power of the State to provide such regulations to prevent imposition and injustice to the general public, in the carrying on of a business which, by reason of being a monopoly, is necessarily impressed with a public use. Munn v. Illinois, 94 U.S. 113; Munn v. People, 69 Ill. 80; Cooley's Const. Lim., 870 889, 889; Budd v. New York, 143 U.S. 517; Brass v. N. Dakota, U. S. 391; St. Louis v. McCann, 157 Mo. 301; Morrison v. Morey, 146 Mo. 543; Land & Stock Co. v. Miller, 170 Mo. 240; State v. Tie & Timber Co. 181 Mo. 536; St. Charles v Elsner, 165 Mo. 671; State ex rel. v. Mercantile Co., 184 Mo. 160; 30 Am. and Eng. Ency. Law, 451; Vega Steamship v. Consolidated Elevator Co., 75 Minn. 308; People v. Rochester, 45 Hun 102; Gaines v. Coates, 51 Miss. 335; Pittsburgh Coal Co. v. Louisana, 156 U.S. 590. (3) State inspection laws are not repugnant to section 8, article 1, of the Federal Constitution, even though they may incidentally affect commerce carried on by citizens of the different States. Wilson v. Railroad, 60 Mo. 184; Kenney v. Railroad, 62 Mo. 467; Gilman v. Railroad, 67 Mo. 323; State ex rel. v. Mercantile Co., 184 Mo. 160. (4) It is contended by respondents that "The law is unconstitutional because it is a delegation of legislative power in this, that the Board of Railroad and Warehouse Commissioners is permitted to fix the rules and regulations for weighing grain, and to fix the fees therefor." It might be a sufficient answer to this contention to say that if the power to provide for the weighing of grain by State weighmasters is conferred upon the Board of Railroad and Warehouse Commissioners, the matter of fixing the fee for such weighing would be implied as incident to the power conferred; or, as said in the case of the People v. Harper, 91 Ill. 370, "the difficulties that may be encountered in the practical execution of the law are never regarded as of controlling significance in determining its constitutionality." State ex rel. v. Walbridge, 119 Mo. 383; State ex rel. v. Laclede Gas Light Co., 102 Mo. 472.

Frank Hagerman and Robert F. Walker for respondents.

(1) The Board of Railroad and Warehouse Commissioners has no power to appoint weighmasters to weigh grain that does not go into or out of public ware-houses. So much of article 3 of chapter 117, Revised Statutes 1899, as is contained in sections 7623-7676, is limited to public warehouses or elevators, and under these sections there is no power to appoint inspectors except for the inspection of grain at public warehouses. If such be the true construction of the previous sections of the same article, it would require plain words to show that the subsequent sections were not likewise limited, for "this is a criminal law in part and must be construed strictly." State ex rel. v. Smith, 114 Mo. 194. Section 7676 should be limited to weighing of grain at public warehouses. (a) There is no power to appoint persons to act as weighmasters at points other than where grain inspection is established under section 7655, which was section 5637, Revised Statutes 1889, and section 33 of Laws of 1889, p. 132. The duties of the inspector so appointed are defined in section 7658, Revised Statutes 1899, which was section 5640, Revised Statutes 1889, and section 36 of Laws of 1899, p. 132. All rules, regulations and charges must not, in the language of this section, be "inconsistent with this article," i. e., article 3, chapter 117, Revised Statutes 1899, which in State ex rel. v. Smith, 114 Mo. 180, was held to apply to public warehouses only. Therefore, when section 7676 provided for the appointment of persons to act as weighmasters at points where State grain inspection may be established in accordance with section 7655, the plain meaning is that they can only be appointed to act where the grain is consigned to a public warehouse. The rest of the section confirms this construction, because it provides how the grain is to be weighed, whether there be installed or not what are known as "hopper scales." The warehouse thus referred to is the public warehouse, as defined in section 7625, and provided for in sections 7626 to 7631. Sections 7630 and 7631 leave no doubt about this, because specific provision is made that no grain shall be received by or delivered from the public warehouse, defined by the article, unless it shall have been inspected by the inspectors. To say otherwise, gives the act "such a construction" as "is at variance with the other sections of the law. The act must be construed as a whole." State ex rel. v. Smith, 114 Mo. 187. (b) So far there would probably be no difficulty between counsel. Any doubt which exists arises by virtue of section 7679. No such scales as are contemplated by this section have as yet been provided. Until the railroads have provided scales in accordance with this section, located at places designated by the board, there can be no weighing in accordance with its provisions, and there is no other section of the statute from which the right to weigh grain, other than that going into public elevators, can even be implied. (c) But section 7679 ought not to be construed as contended. What the Legislature had in mind was this: all grain consigned to, or stored in, public warehouses should be weighed before it went into same, and before it left the cars. This was a matter solely between the warehouseman and the owner, and hence the warehouseman should be required to provide the scales used for such purpose. When, however, the grain was shipped out, the railroad company being required to issue a bill of lading showing the weight of the shipment, it was interested in having proper scales provided. Hence for grain consigned to a public elevator, section 7678 expressly provides that the warehouseman should provide the scales. But for grain consigned out of public elevators, section 7679 provided. This made the law consistent. It placed the duty where it belonged. For grain shipped into public elevators, the warehouseman, issuing the warehouse certificate, should provide its own scales; for grain shipped therefrom, the railroad company issuing the bill of lading, showing the weight, was the one interested in providing the scales. It is plain that when the grain was shipped out, whether when sold, or after having been cleaned or mixed in accordance with sections 7632, 7633 and 7635, it was necessary for the railroad company to have it weighed, because, under section 1116, Revised Statutes 1899, it is required to "carefully and correctly weigh the same and issue to the shipper thereof a receipt or bill of lading for such grain, in which shall be stated the true and correct weight." (2) If the statute provides for the appointment of weighmasters for the private business of grain merchants, it is unconstitutional. State v. Tie & Timber Co., 181 Mo. 536; State ex rel. v. Associated Press. 159 Mo. 410. The attempted legislative control of private business which individuals have a natural right to engage in, has been condemned in the following instances: Prohibition against manufacturing and mining concerns paying for labor other than in money: State v. Loomis, 115 Mo. 307; State v. Tie & Timber Co., 181 Mo. 536; Godcharles v. Wigaman, 113 Pa. St. 431; State v. Goodwill, 33 W.Va. 179; State v. Coal & Coke Co., 33 W.Va. 188; State v. Hann, 61 Kan. 146. Prohibiting the discharge of a servant, because a member of a labor organization: State v. Julow, 129 Mo. 163; Coffeyville Vitrified Brick Co. v. Perry, 69 Kan. 306. Requiring operators of coal mines to weigh all coal before it was screened and pay on such weights: Millett v. People, 117 Ill. 294; Ramsey v. People, 142 Ill. 380; Harding v. People, 160 Ill. 459. Prohibiting sale of railroad tickets by ticket brokers: People v. Warden, 157 N.Y. 116. Requiring licenses and bonds from commission merchants selling farm products: People v. Coolidge, 124 Mich. 64. Prohibiting giving of premiums with purchases made of goods: People v. Gillson, 109 N.Y. 389. Prohibiting the location of a laundry in certain districts: Ex Parte Sing Lee, 96 Cal. 354; Yick Wo v. Hopkins, 118 U.S. 356. Providing that when a merchant takes from a minor an assignment of his wages, in consideration of anything but money, the debt shall be at once payable in cash: Dixson v. Poe, 159 Ind. 492. Requiring wages of certain employees to be paid at least every six days: Braceville Coal Co. v. People, 147 Ill. 66. Prohibiting garbage plants within the borough of Brooklyn, where such would not constitute a nuisance: New York Sanitary Utilization Co. v. Dept. Board of Health, 32 N. Y. (Misc.) 577. (3) Even if constitutional power exists to provide for weighmasters in the private business of grain dealers, still section 7676 is unconstitutional. It provides that "the inspection of scales and the action and certificate of such weighmasters in the discharge of their...