Merchants Exchange of St. Louis v. Knott

• Decision Date: 06 June 1908
• Citation: 111 S.W. 565,212 Mo. 616
• Parties: MERCHANTS EXCHANGE OF ST. LOUIS et al. v. KNOTT et al., Constituting the Board of Railroad and Warehouse Commissioners, Appellants
• Court: Missouri Supreme Court

111 S.W. 565

212 Mo. 616

MERCHANTS EXCHANGE OF ST. LOUIS et al. v. KNOTT et al., Constituting the Board of Railroad and Warehouse Commissioners, Appellants

Supreme Court of Missouri

June 6, 1908

Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.

Affirmed.

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

(1) State inspection and weighing of grain is a valid exercise of the police power of the State, and the court erred in holding the Act of 1907 unconstitutional. State ex inf. v. Goffee 192 Mo. 670; Munn v. Illinois, 94 U.S. 113; Munn v. People, 69 Ill. 80; Cooley's Const. Lim., 870; Budd v. New York, 143 U.S. 517; 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; City of St. Charles v. Elsner, 165 Mo. 671; State ex rel. v. Mercantile Co., 184 Mo. 160. (2) Inspection of weight and quantity is as valid an exercise of the police power as the inspection of quality. State ex inf. v. Goffee, 192 Mo. 670; City of St. Charles v. Elsner, 155 Mo. 671; Coal Co. v. St. Louis, 130 Mo. 323; 22 Cyc. 1365; State v. Pittsburg, etc., Coal Co., 41 La. Ann. 465; Pittsburg, etc., Coal Co. v. La., 156 U.S. 590; Freund on Police Powers, sec. 274. (3) Section 7623 of the Act of 1907, authorizing the Board of Railroad and Warehouse Commissioners to establish State inspection of grain at such places or in such territory as in their opinion may be necessary, is a valid exercise of legislative power, and the court erred in holding the Act of 1907 unconstitutional as an unlawful delegation of legislative power. Land & Stock Co. v. Miller, 170 Mo. 240; State v. Thompson, 160 Mo. 330; 6 Am. and Eng. Ency. Law, 1032; 8 Cyc. 833. (4) The power conferred upon the Board of Railroad and Warehouse Commissioners by the Act of 1907, to fix fees and make rules and regulations for the inspection and weighing of grain, is a valid exercise of legislative power. State ex inf. v. Goffee, 192 Mo. 670; Coal Co. v. St. Louis, 130 Mo. 323; City of St. Charles v. Elsner, 155 Mo. 671; Munn v. Illinois, 94 U.S. 113; 22 Cyc. 1368. (5) The State inspection and weighing of grain provided for by the Act of 1907, is not an unlawful interference with interstate commerce. Munn v. Illinois, 94 U.S. 113; Pittsburg, etc., Coal Co. v. La., 155 U.S. 590; Turner v. Maryland, 107 U.S. 38; 22 Cyc. 1365. (6) The Act of 1907 is not violative of section 1 of the Fourteenth Amendment to the Federal Constitution. Brannon on the Fourteenth Amendment, 222; Munn v. Illinois, 94 U.S. 113.

Robert F. Walker, Judson & Green, Frank Hagerman and Kimbrough Stone for respondents.

(1) State inspection and weighing at other places than public elevators under the Act of 1907, is an unauthorized exercise of the police power and therefore void. State v. Layton, 160 Mo. 498; State ex rel. v. Associated Press, 159 Mo. 437; State ex rel. v. Ashbrook, 154 Mo. 385; Wilkinson v. Leland, 2 Pet. 657; Cooley, Con. Lim. (6 Ed.), 484, 704, 710, 736; State ex rel. v. Mer. Co., 184 Mo. 184; Slaughter House Cases, 111 U.S. 757; State v. Mo. Tie & Timber Co., 181 Mo. 558. (2) The act in question is a delegation of legislative power to the Board of Railroad and Warehouse Commissioners and is consequently unconstitutional and void. Secs. 7623, 7677, pp. 286, 297, Laws 1907; art. 3, and sec. 1, art. 4, Con. Mo.; State v. Field, 17 Mo. 529; Rice v. Foster, 4 Harr. (Del.) 479; Cooley, Con. Lim., 117-123; State ex rel. v. Ashbrook, 154 Mo. 389; St. Louis v. Heitzberg Packing Co., 141 Mo. 388; Yick Wo v. Hopkins, 118 U.S. 356; In re Quong Woo, 13 F. 229; In re Woo Lee, 26 F. 471. (3) The fees authorized by the act to be imposed by the board on grain dealers, are not limited to the actual cost of the service and are in effect taxes, and as such void in not being assessed and levied as required by the State Constitution. Secs. 1, 3 and 4, art. 10, Con. Mo. The power of taxation is legislative and cannot be delegated to ministerial agencies. State v. Shortridge, 56 Mo. 130; Matthews v. City, 68 Mo. 119; Lammert v. Lidwell, 62 Mo. 192; Railroad v. St. Board, 64 Mo. 307. The levying of a tax being the exercise of a high governmental power, there must be distinct authority of law for every exercise of that power. St. Louis v. Apperson, 97 Mo. 306. To constitute a fee, instead of a tax, the right of the State, under its police power, to impose same must exist, and this can only exist when the business for the transaction of which the fee is exacted is charged with a public use or is an expense or a burden or is injurious to the public. Any other fee imposed, whether a license is granted thereunder or not, is simply a tax collected for revenue. St. Louis v. Spiegel, 113 Mo. 88, 75 Mo. 145. Such taxes must be imposed under the constitutional limitations as to uniformity, etc. Am. Union Exp. v. St. Joseph, 66 Mo. 675; St. Louis v. Sternberg, 69 Mo. 289. Upon vocations subject to the State's police power inspection fees, which have been fixed by statute, may be levied. State v. Vickens, 186 Mo. 107; Tenny v. Lentz, 16 Wis. 566. (4) The fees authorized by the act to be imposed by the board are not within the State's police power and can only be classified as a tax for revenue; as such tax they are invalid because not assessed and levied in the manner authorized by the Constitution. Dillon, Munic. Corp., sec. 768; Cooley, Con. Lim., 201, 494; Cooley on Taxation, 403; Sheehan v. Good Samaritan, 50 Mo. 155; Glasgow v. Rowse, 43 Mo. 479; State v. Spiegel, 113 Mo. 88; State v. Vickens, 186 Mo. 107. (5) The act is void for uncertainty in not fixing the terms for which licenses may be granted to warehousemen. Sec. 7626, Laws 1907, p. 286; State v. Railroad, 146 Mo. 155; Darling v. St. Paul, 19 Minn. 392; State v. Partlow, 91 N.C. 552; Comm. v. Bank (Penn.), 3 Watts & Serg. 173; 1 Lewis' Sutherland, Stat. Con., sec. 86, p. 141; Railroad v. Comm., 99 Ky. 132. (6) The act is unconstitutional because it attempts to regulate interstate shipments. Globe Elevator Co. v. Andrews, 144 F. 871; State ex inf. v. Railroad, 176 Mo. 687; 17 Am. and Eng. Ency. Law (2 Ed.), 76; Railroad v. Ry. Comm. (U. S. Cir. Ct.), 19 F. 679; State ex rel. v. Oil, etc., 120 Ind. 575; Baldwin v. Franks, 120 U.S. 678; Poindexter v. Greenhow, 114 U.S. 270; U. S. v. Reese, 92 U.S. 214; Griffin v. State, 119 Ind. 520; N. Y. City v. Miln, 36 U.S. 102; Railroad v. Husen, 95 U.S. 465; Smith v. Md., 59 U.S. 71. (7) Plaintiffs are entitled to equitable relief under their petition. This petition contains all the necessary allegations to authorize the issuance of an injunction. McKenzie v. Wood, 59 Mo. 99; State ex rel. v. Wood, 155 Mo. 425; Robins v. Latham, 134 Mo. 466; Davis v. Gray, 16 Wall. 203; Jacobson v. Mass., 25 S.Ct. 358; Mills v. Green, 67 F. 818; Taylor v. Railroad, 88 F. 350; Pabst Brew. Co. v. Crenshaw, 120 F. 144; City of Hutchinson v. Beckham, 118 F. 399; Western Union v. Myatt, 98 F. 335; Cummings v. Bank, 101 U.S. 153; Pennoyer v. McConnaughey, 140 U.S. 1; Smyth v. Ames, 169 U.S. 466. (8) An action against the Board of Railroad and Warehouse Commissioners as individuals to prevent them from enforcing an unconstitutional act to the injury of plaintiffs is not a suit against the State. (a) Instances of suits against State officers: State ex rel. v. Wilder, 206 Mo. 541; Hartwig v. Davis, 195 Mo. 380; Business Men's L. v. Waddill, 143 Mo. 495; State ex rel. v. Seibert, 130 Mo. 202; Ex parte Marmaduke, 91 Mo. 228; State ex rel. v. Lesueur, 141 Mo. 29; Hannum v. Waddill, 135 Mo. 153; Reichenbach v. Ellerbe, 115 Mo. 588; State ex rel. v. Hays, 49 Mo. 604; State ex rel. v. Walker, 78 Mo. 139. (b) Held, in the following cases, that suits against the State officers named therein were not against the State: Railroad v. Dey, 1 L. R. A. 744; Reagan v. Farmers' Loan, etc., 154 U.S. 362; Taylor v. Railroad, 88 F. 350; Gregg v. Sandford (C. C. A.), 65 F. 151; West. Union v. Henderson (C. C. A.), 68 F. 588; Cobb v. Clough, 83 F. 604; Mills v. Green, 67 F. 818; Smyth v. Ames, 169 U.S. 466. (c) The suit is not against the State, but against the individual defendants to prevent their exercising power prejudicial to the business of plaintiffs without authority of law. Va. Coupon Cases, 114 U.S. 269.

LAMM J. Valliant, J., absent.

OPINION

In Banc.

LAMM, J.

Defendants stood on their demurrer to plaintiffs' bill having for its life injunctive relief. Standing mute and refusing to plead further, they appeal from a judgment, nisi, overruling such demurrer and making perpetual a temporary injunction theretofore granted.

The demurrer challenges the bill in that it fails to state facts sufficient to constitute a cause of action, fails to state facts entitling plaintiffs to the relief prayed for, or to any relief, and shows on its face an adequate remedy at law.

The bill is an elaborate pleading developing in logical order, in more or less interdependent paragraphs, and delivering divers attacks upon the constitutionality of the grain-weighing and grain-inspecting laws in force in this State, to-wit, sections 7654-7-8-9 and 7660-2-5, 7670-3-4 of article 3, chapter 117, Revised Statutes 1899, and an elaborate statute ordaining State inspection and weighing of grain, enacted by the General Assembly in 1907 (Laws 1907, p. 285, et seq.), repealing all of article 3, supra, saving the sections above, and enacting 47 new sections bearing, seriatim, the same numbers as those repealed.

As the demurrer admits all allegations of fact well pleaded in the bill, but not those in effect legal conclusions of the pleader, we shall set down with particularity the allegations of fact and the grounds of alleged unconstitutionality.

The bill, in...