State v. The Atchison

• Decision Date: 08 June 1912
• Docket Number: 17,598
• Citation: 87 Kan. 348,125 P. 98
• Court: Kansas Supreme Court
• Parties: THE STATE OF KANSAS, ex rel. JOHN S. DAWSON, as Attorney-general, etc., Plaintiff, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al., Defendants

125 P. 98

87 Kan. 348

THE STATE OF KANSAS, ex rel. JOHN S. DAWSON, as Attorney-general, etc., Plaintiff, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al., Defendants

No. 17,598

Supreme Court of Kansas

June 8, 1912

Decided January, 1912.

Original proceeding in mandamus.

SYLLABUS

SYLLABUS BY THE COURT.

1. GRAIN INSPECTION--When Compulsory--When Voluntary--Statute. The statute expressly requires all grain going into or coming out of a public elevator to be inspected by officers of the state grain department; no such express requirement is made with regard to other grain, and upon a consideration of the entire act inspection thereof is held not to be compulsory, the provisions of the statute with regard thereto being construed as referring to inspection made upon request of the owner.

2. GRAIN INSPECTION--"Public Elevator" Distinguished. An elevator in which the grain of different owners is kept entirely separate, but in which the grain of the same owner delivered at different times is mixed together, except where he directs otherwise, is not a public elevator within the meaning of a statute providing "that all elevators or warehouses located in this state in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in which the grain is stored in such a manner that the identity of different lots or parcels can not be accurately preserved, and doing business for a compensation, are hereby declared public warehouses."

3. GRAIN INSPECTION--Same. The fact that the operator of an elevator reserves the right to mix the grain of different owners has the same effect in determining its public character as though the grain were actually mixed.

John S Dawson, attorney-general, S. M. Brewster, special assistant attorney-general, George R. Allen, L. W. Keplinger, J. W. Dana, and C. W. Trickett, for the plaintiff.

M. A. Low, and Paul E. Walker, for defendant The Chicago, Rock Island & Pacific Railway Company.

W. P. Waggener, and J. M. Challiss, for defendant The Missouri Pacific Railway Company and The Kansas City Northwestern Railroad Company.

William R. Smith, for defendant The Atchison, Topeka & Santa Fe Railway Company and The Santa Fe Elevator Company.

R. W. Blair, B. W. Scandrett, and C. A. Magaw, for defendant Union Pacific Railroad Company.

F. H. Wood, and R. R. Vermilion, for defendant St. Louis & San Francisco Railroad Company.

Frank Hagerman, Kimbrough Stone, and A. L. Berger, for defendants John I. Glover et al.

Robert Stone, and George T. McDermott, for defendants E. J. Smiley et al.

MASON, J. JOHNSTON, C. J. dissenting. SMITH, J.:

I concur in the dissent.

OPINION

MASON, J.:

The state brings mandamus against a number of railroad companies and the owners and operators of a number of grain elevators, the purpose of which, in a general way, is to require them to conform to the provisions of the statute providing for the inspection of grain. Evidence has been taken before a commissioner, who has made detailed findings of fact and conclusions of law. The case is submitted upon his report and the evidence.

The state asks that each of the railroad companies be required:

1. To furnish to the state grain inspection department daily manifests of all grain arriving in its freight terminal yards in Wyandotte county;

2. To permit the weighmasters and inspectors of the department to inspect and weigh the grain in cars in such terminal yards;

3. To collect from the proper parties and pay to the department the fees for each inspection and weighing.

And that each of the elevator owners or operators be required:

1. To procure a license to transact business as public warehousemen, giving a bond as such;

2. To make reports to the grain department of the movements of grain in and out of the elevators, and of the issuance and cancellation of warehouse receipts;

3. To permit the weighmasters and inspectors to weigh and inspect all grain moving into or out of the elevators;

4. To pay the fees for such inspection and weighing.

The officers and directors of a voluntary unincorporated association known as the Kansas Grain Dealers' Association, having a membership of three hundred persons, firms and corporations, engaged in buying and selling grain, have intervened and unite with the defendants in contesting the plaintiff's demands.

Questions are raised as to the construction and validity of various parts of the statute. The two principal questions of construction are: Does the statute contemplate a compulsory inspection of any grain except that stored in public elevators? Can any elevator be public in which the grain of each owner is kept entirely separate and distinct from that of all others? The commissioner was of the opinion that the first question should be answered in the negative, the second in the affirmative.

The statute involved is chapter 222 of the Laws of 1907, published as article 1 of chapter 37 (§§ 3327-3363) of the General Statutes of 1909, as amended by chapter 199 of the Laws of 1911. Section 23 of the original act, after making it the duty of public warehousemen, whenever inspection and weighing is established, to receive for storage all grain tendered, proceeds: "such grain to be in all cases inspected, weighed and graded by a duly authorized inspector and weigher . . . and all grain delivered from such warehouse shall be inspected and weighed on its delivery by a duly authorized inspector and weigher of grain." The defendants maintain that this provision compels the inspection of all grain that is stored in public elevators, but that the statute nowhere, either expressly or by fair implication, makes inspection of grain compulsory under any other circumstances. The plaintiff contends that the purpose of the language quoted is not to confer authority to inspect grain, but to impose the duty upon the public warehouseman to refuse to receive or deliver it without inspection; that the inspection contemplated by the act is a compulsory inspection, and that the department has full power to enforce it, irrespective of the wishes of the owner of the grain. To decide the issue so made, the entire statute must be considered. Only the more obviously important features can be presented in a summary.

The act is described in its title as one "in relation to the inspection, storing, weighing and grading of grain." The first section reads:

"A department of record for the inspection and weighing of grain is hereby established, to be called 'the state grain inspection department.' Said department shall have full charge of the inspection and weighing of grain at all railroad terminals, public warehouses, or other points within the state wherever the business transacted will, by the fees provided by law, pay the salary of an assistant inspector and weighmaster, or wherever, upon request by parties interested, to the chief inspector, he may establish inspection and arrange that the officer in charge accept as full compensation for his services an amount equal to the whole revenue obtained at such a place."

The governor is required to appoint a chief inspector of grain for the state (§ 2), among whose duties are: to have supervision of the inspection and weighing of grain "as required by" law; to supervise the handling, inspecting, weighing and storage of grain; to establish rules therefor, and for the management of public warehouses; to keep records of inspecting and weighing done into and out of licensed warehouses; to investigate complaints of fraud or oppression in the grain trade, and correct them as far as able (§ 3). He is authorized to recommend, and the governor is authorized to appoint supervising inspectors and weighmasters wherever there is a public warehouse. These are required to visit the elevators and railroad tracks every day, the former supervising inspection with a view to securing uniformity, the latter supervising all weighmasters, inspecting scales, and the loading and unloading of grain, with a view to securing correct weights on all grain weighed by the department; similar provision is made for the appointment of assistant inspectors and weighmasters (§ 5). Fees for inspection and weighing are fixed (§ 8). The schedule of fees was changed in 1911, the new section including a provision making it a misdemeanor to deny officers of the department access to scales, elevators, warehouses or other places in the performance of their legal duties (Laws 1911, ch. 199, § 1). The charges for inspection and weighing are a lien on the grain; when the grain is in transit they are to be treated as advanced charges and collected and paid by the carrier (§ 9). Fees collected are turned into the state treasury (§ 10), and all expenses of the department are paid out of the fund so created (§ 11). It is a misdemeanor for an officer of the department to be guilty of neglect of duty, or to grade or weigh grain improperly, or to accept reward for a neglect of duty (§ 12). Section 13 reads:

"The inspection or weighing of grain in this state, whether into or out of public warehouses or elevators, or in cars, barges, wagons, or sacks, arriving at or shipped from points where state grain inspection is established, must be performed by such persons as may be duly appointed and qualified according to law, and any person who shall act as inspector or weigher of grain who has not been thus first appointed and qualified shall be guilty of a misdemeanor."

The officers of the department are given "exclusive control" of weighing and inspecting grain at inspection points and their certificates are made conclusive on all parties interested, unless appealed from in the manner provided (§ 14). Nothing in the act is to be construed to prevent any...