House v. Mayes

• Decision Date: 30 March 1910
• Citation: 227 Mo. 617,127 S.W. 305
• Parties: HOUSE v. MAYES.
• Court: Missouri Supreme Court

127 S.W. 305

227 Mo. 617

HOUSE v. MAYES.

Supreme Court of Missouri.

March 30, 1910.

Rehearing Denied April 26, 1910.

1. WEIGHTS AND MEASURES (§ 20) — REGULATION — CONSTRUCTION OF STATUTE.

Act June 8, 1909 (Acts 1909, p. 519) § 1, provides that every sale of grain, etc., shall be made on the basis of the actual weight, and any purchaser who shall deduct any amount from the actual weight or measure, under claim of custom or rule of the board of trade, or any pretense, shall be guilty of misdemeanor and subject to fine; section 2 provides that no agent or broker selling grain, etc., can under claim of custom or rule of the board of trade sell any grain, etc., except on basis of actual weight, and any contract made in violation of the act shall be void. Held, that the statute has both a civil and a criminal aspect; the provisions for sale on the basis of the actual weight, and making the contract void for violation thereof, being civil features, and the provision making it a misdemeanor to deduct from the actual weight, defining a criminal offense.

2. CONSTITUTIONAL LAW (§ 46) — CONSTITUTIONALITY OF STATUTE — NECESSITY OF DECISION.

The Supreme Court will not pass upon the constitutionality of a statute until the rights of some one can be affected by the decision; and hence, on appeal in a prosecution for violation of the criminal feature of the act, the question whether the provision that all sales shall be made on the basis of actual weight is unconstitutional, as violating the right of contract, will not be considered.

3. WEIGHTS AND MEASURES (§ 1) — RIGHT OF REGULATION — POLICE POWER.

Inspection and regulation of weights and measures are within the police power of the states, and laws providing for such inspection and regulation, requiring dealers to conform thereto, and for the appointment or election of inspectors thereunder, are in the nature of police regulations, and Act June 8, 1909 (Acts 1909, p. 519), providing that the sale of grain, etc., shall be made on the basis of actual weight, making one guilty of misdemeanor who deducts any amount from the actual weight under claim of custom, rule of board of trade, or other pretense, prohibiting agents or brokers from selling grain, etc., under claim of right, by reason of a custom or rule of the board of trade, otherwise than upon basis of actual weight, and making such contracts void, designed to prevent brokers from deducting any part of grain without authority from the owner, notwithstanding the existence of a contrary rule or custom, and to prevent the purchaser of wheat on exchanges from deducting from the amount so purchased, where the contract does not authorize such deduction, is a valid exercise of the legislative power.

4. WEIGHTS AND MEASURES (§ 1) — RIGHT OF REGULATION.

A custom or usage as to what shall constitute a "ton" or other unit of weight can be abolished by the Legislature.

5. EXCHANGES (§ 1) — BOARDS OF TRADE — LEGISLATIVE CONTROL.

The business of a board of trade and its members in the handling, buying, and selling of grain is such that the public has an interest therein, and the public is so largely affected thereby that such boards may be controlled by the Legislature.

6. STATUTES (§ 110½) — SUBJECTS AND TITLES.

The title of Act June 8, 1909 (Acts 1909, p. 519), entitled "An act to prevent fraud in the purchase and sale of grain or other commodities," is sufficient to cover a provision prohibiting the deduction by a purchaser of any amount from the actual weight or measure of grain sold, under claim of a custom or rule of a board of trade, or any other pretense.

Valliant, C. J., and Fox and Graves, JJ., dissenting.

In Banc. Petition by R. J. House against Joel B. Mayes, for a writ of habeas corpus. Denied.

Frank Hagerman and Kimbrough Stone, for petitioner. Elliott W. Major, Atty. Gen., and Jno. M. Atkinson, Asst. Atty. Gen., for respondent.

GANTT, J.

An act of the General Assembly of Missouri, approved June 8, 1909 (Acts 1909, p. 519), is in these words:

"An act to prevent fraud in the purchase and sale of grain and other commodities.

"Be it enacted by the General Assembly of the state of Missouri, as follows:

"Section 1. Every sale of grain, seed, hay or coal shall be made on the basis of the actual weight thereof, and any purchaser of grain, seed, hay or coal, who shall deduct any amount from the actual weight or measure thereof under claim of right to do so by reason of any custom or rule of a board of trade or any pretense whatsoever, shall be deemed guilty of a misdemeanor, and shall be subject to a fine of not less than ten dollars nor more than one hundred dollars for each and every offense.

"Sec. 2. No agent or broker selling any grain, seed, hay or coal shall have authority, under claim or right to do so by reason of any custom or rule of board of trade, to sell any grain, seed, hay or coal only on the basis of the actual weight thereof, and any contract of sale of any grain, seed, hay or coal made in violation of this act shall be null and void."

On September 21, 1909, the prosecuting attorney of Jackson county by information in due form charged the petitioner with a violation of the above act as follows: "Now comes Virgil Conkling, prosecuting attorney for the state of Missouri, in and for the body of the county of Jackson, and upon his oath informs the court that R. J. House, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 1st day of September, 1909, at the county of Jackson, state of Missouri did purchase, from one James Anderson, one car load of wheat by weight, and did then and there willfully and unlawfully, from the actual weight of said wheat so by him purchased, take and deduct 100 pounds; he, the said R. J. House, pretending and claiming to have the right to make such deduction, and to have and keep the said 100 pounds of wheat so deducted free of charge and cost to him, under and by virtue of a rule and custom of the Board of Trade of Kansas City, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state." Under a warrant issued upon this information, the petitioner was arrested, and thereafter, on September 23, 1909, was granted a writ of habeas corpus by the Chief Justice, returnable to the October term of this court, and a return was made on October 12, 1909, justifying his detention by virtue of the said information and warrant. The cause has been submitted to this court upon the following agreed statement of facts:

"Without admission of either party as to the relevancy of any particular fact herein set forth, the following facts are agreed between the parties:

"There are competitive grain markets at Galveston, Tex., Chicago, Ill., Omaha, Neb., Atchison and Wichita, Kan., and St. Louis, St. Joseph, and Kansas City, Mo. That Kansas City is a primary grain market. That a very slight difference in price or condition will influence the market course of grain. That the Board of Trade of Kansas City, Mo., is a voluntary organization of buyers and sellers of grain and provisions, supported by dues and assessments, and maintained for the purpose of furnishing a marketing place where such persons can meet and, under rules of safety and convenience, transact such business. Its objects are: `To maintain a board of trade to promote uniformity in the customs and usages of merchants; to inculcate principles of justice and equity in business; to facilitate the speedy adjustment of business disputes; to inspire confidence in the business methods and integrity of the parties hereto; to collect and disseminate valuable commercial and economic information, and generally secure to its members the benefits of co-operation in the furtherance of their legitimate pursuits, and to promote the general welfare of Kansas City.' Its members are governed by rules and regulations enacted by the members, and which form part of the written contract of association between them. This organization provides for the exclusive use of its members a trading floor, where grain is bought and sold only under and according to said rules. Three of these rules are:

"`Sec. 16. The weight supervising committee shall have supervision, through the weight department, of the unloading of all cars unloaded at all elevators, mills, warehouses, transfer and team tracks, within the jurisdiction of this board, and shall cause the same to be thoroughly swept and cleaned when unloaded. Sweeping or cleaning of cars subsequently by any operator or employé of any elevator, mill, warehouse, transfer or team track, or by any person or persons under agreement with the same; or the buying or receiving of any such sweepings or cleanings by any member of this association is prohibited.

"`Sec. 17. Violations of any of the provisions of section 16 of this article shall subject the member so violating to a fine of $50.00 for the first offense, to a fine of $100.00 for the second offense, to expulsion and forfeiture of membership for the third offense.

"`Sec. 18. On all grain bought by members of the Kansas City Board of Trade, and on which Kansas City unloading weights are given, an allowance of one hundred pounds per car shall be made to the buyer, to cover loss on account of dirt and other foreign matter.'

"That said Board of Trade maintains a bureau of weight, which strictly enforces rule 16. That rules 16 and 17 were enacted to secure to the seller the full weight of the entire contents of the car, and rule 18 to secure the buyer from loss through dirt and foreign matter in or swept out with the grain which was unloaded at Kansas City. Before grain is sold it is graded. One of the considerations in grading is the dirt and foreign matter in the grain. Experience has shown that there is a loss from dirt and foreign matter, varying with different cars, which is not fully taken care of in the grade. That there is no method in...