State ex rel. Gaulke v. Turner

• Decision Date: 20 August 1917
• Citation: 164 N.W. 924,37 N.D. 635
• Court: North Dakota Supreme Court

164 N.W. 924

37 N.D. 635

STATE OF NORTH DAKOTA EX REL. M. C. GAULKE v. A. F. TURNER

Supreme Court of North Dakota

August 20, 1917

Proceeding on a writ of habeas corpus.

Writ quashed.

Motion to quash the writ of habeas corpus granted.

O'Connor & Johnson, for petitioner, with brief by E. T. Burke, as amicus curiae.

William Langer, Attorney General, H. A. Bronson, and D. V. Brennan Assistant Attorneys General, and T. B. Elton, States Attorney (with S. L. Nuchols, of counsel) for respondent.

BRUCE Ch. J. ROBINSON, J. (dissenting).

OPINION

BRUCE, Ch. J.

This is a proceeding on a writ of habeas corpus. In it is involved the determination of various constitutional questions arising out of an act passed by the legislative assembly of 1917, numbered senate bill No. 314, to be found on page 188 of the popular edition of the Session Laws, and generally known as the Uniform State Grading Act [Laws 1917, chap. 56]. An attack, indeed, is made upon the constitutionality of the whole law.

Although the question has been somewhat mooted, and although a proceeding in equity is much preferable, as in it various parties may be allowed to intervene and the act may thus be more thoroughly scrutinized, and from all standpoints, it seems now to be well established that the constitutionality of an act may be passed upon on habeas corpus. See 12 R. C. L. 1198; State ex rel. Goodsill v. Woodmanse, 1 N.D. 246, 11 L.R.A. 420, 46 N.W. 970.

The petitioner, M. C. Gaulke, is an operator of a public elevator and warehouse at Thompson, North Dakota. More specifically, he is the agent and buyer of a co-operative farmers' elevator. He was arrested under the provisions of the act under consideration for the offense of having "purchased, weighed, graded, and inspected grain and seeds without first having obtained a license as deputy inspector of such grain and seeds thus purchased, graded, weighed, and inspected, said grain and seed not having first been inspected, weighed, and graded by a deputy state inspector of grades, weights, and measures."

The provisions of the act in question, and under which the arrest was made, are that "it shall be unlawful for any person operating a public warehouse to purchase, weigh, grade or inspect grain or seed who is not licensed as deputy inspector, provided that any person without a license may buy any article that has been graded, weighed and inspected by a deputy state inspector of grades, weights and measures."

The act as a whole is as follows:

"The Commissioners of Railroads, of North Dakota, shall appoint a member of the faculty of the North Dakota Agricultural College (who shall be an expert in the grading and weighing of all kinds of grain, seeds, and other agricultural products) to be the state inspector of grades, weights and measures and shall receive in addition to his other compensation the sum of $ 1,000 per annum. It shall be the duty of said inspector to proceed at once to define and establish proper grades and weights for grain, seeds and other agricultural products, also for flour meal and products made therefrom, which grades and weights shall be approved by the Commissioners of Railroads.

"The Commissioners of Railroads shall authorize the employment of such clerical help as is necessary for carrying out the provisions of this act, and determine the compensation to be paid for such service.

"The state inspector of grades, weights and measures shall cause said formula or scale of grades, weights and measures to be published in not more than five newspapers of general circulation in the state of North Dakota, two of which shall be devoted to the benefits of agriculture and three shall be papers of general circulation.

"The said standards of grades shall be published each year not later than August 1st.

"The state inspector of grades, weights and measures shall have power to appoint skilled and competent deputies who shall be stationed at any town or place where grain, seed and other agricultural products are marketed; provided that the town or community where such deputy is stationed shall at their own expense provide a suitable building and scales for housing said deputy, the upkeep of said building and scales shall be borne by the state out of funds secured on account of fees collected for inspecting and weighing.

"It shall be the duty of the deputy to weigh, inspect and grade all grain, seeds and produce that shall be offered for sale at said market place, and to issue a signed certificate stating the kind, grade and weight of such grain, seeds or produce, also the amount of dockage, if any, and such other facts as he may find relative to its condition. It shall also be the duty of said deputy to accurately sample and grade carload shipments destined for some central market either within or outside the state, and to make and attach a signed inspection certificate to a sealed package containing the sample, and forward same to a deputy in charge of said central market.

"The Railroad Commissioners shall appoint such number of inspectors of public warehouses as may be necessary who shall be men of expert and practical knowledge of the grain business; who shall visit the public warehouses in the state for the purpose of ascertaining whether a sufficient bond is in force to protect the holders of storage tickets for grain stored therein; whether such institution is amply protected by insurance; to advise with local managers and board of directors as to proper methods of accounting; to assist local warehousemen in making proper reports, and to enforce the rendering of annual or other reports required by the Railroad Commissioners; to see that all laws as regards public warehouses are complied with, and to advise and assist local warehousemen in any way that will make for efficiency and for the safety of the grain marketing business of the state. Should such inspectors find any condition prevailing in any public warehouse that would impair the safety of such institution, they shall report same to the Board of Railroad Commissioners and to the local board of directors of the institution in question. Failure to remedy such condition will empower the Board of Railroad Commissioners to suspend the license of such warehouse, or in extreme cases, if after full notice, and reasonable time being allowed to comply with the instructions of the Board of Railroad Commissioners such local warehouse refuses to remedy said complaint; the Board of Railroad Commissioners may cancel the license of such warehouse.

"The Commissioners of Railroads may establish as they see fit central markets for the display of samples of grain, seeds and other agricultural products, and may install a deputy in charge of said central markets at the cities of Duluth, St. Paul and Minneapolis, in the state of Minnesota, also Superior, Wisconsin, Fargo, Fairmont, Wahpeton, and Grand Forks, North Dakota, and such other stations as in the judgment of the Commissioners of Railroads shall be necessary to provide adequate marketing facilities; that said markets shall be open to any and all persons desiring to buy or sell on said market, and that the charges for said services shall be fixed and determined by said Commissioners of Railroads. They shall also establish uniform fees for grading, weighing, inspecting and selling. All of said fees so collected shall be paid into the treasury of the state of North Dakota. They shall also fix the salary or compensation to be paid to deputies and employees. They shall also provide a system of bonding said deputies and other employees. They shall also require that any and all persons purchasing or receiving grain on consignment at central market shall give an indemnity bond in a sufficient sum to fully protect the seller against fraud or loss. They shall also formulate rules and regulations governing the conduct of all public warehouses where grain, seed and other agricultural produce is bought, sold or received for storage, and such warehouses shall be bonded in a sum sufficient to amply protect all persons transacting business with them against loss.

"Said state inspector of grades, weights and measures may with the approval of the Commissioners of Railroads, license as deputy inspector the buyer or agent of a privately owned warehouse, provided that said deputy inspector shall pass such examination as to competency as may be prescribed, and give a bond in a sufficient amount, as required according to regulations prescribed by the state inspector of grades, weights and measures.

"All licenses issued to deputy inspectors in private warehouses shall be for the term of one year.

"The conditions of such licenses shall require the holders thereof to well and truly fix grades and actual dockage of all grains inspected by them at their respective places of business and to correctly weigh the products so inspected and graded.

"Each licensee shall cause his license to be posted in a permanent and conspicuous place at his regular place of business, and shall not be authorized to inspect, grade, or weigh grain at other places, except with the approval of the Commissioners of Railroads.

"The inspector of grades, weights and measures, shall collect a fee of $ 10 for each license issued. Licenses are subject to cancelation by the Commission for violation of rules or other good cause.

"It shall be unlawful for any person operating a public warehouse to purchase, weigh, grade or inspect grain or seed who is not licensed as deputy inspector, provided that any person without a license may buy any article that has been graded, weighed and inspected by a deputy state inspector of grades, weights and measures.

"The state inspector of grades, weights and measures shall receive all...