227 Mo. 617 | Mo. | 1910
Lead Opinion
An Act of the General Assembly of Missouri approved June 8th, 1909' (Laws 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*629 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 he null and void.”
On September 21, 1909, the prosecuting attorney of Jackson county, hy 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 first day of September, 1909, at the county of Jackson, State of Missouri, did purchase, from one James Anderson, one carload of wheat, hy weight, and did then and there .willfully and unlawfully, from the actual weight of said wheat so hy him purchased, take and deduct one hundred 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 one hundred pounds of wheat so deducted free of charge and cost to him under and hy virtue of a rule and custom of the hoard 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 hy the Chief Justice, returnable to the October term of this court, and a return was made on October 12,1909, justifying his detention hy 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:
*630 “There are competitive grain markets at Galveston, Texas, Chicago, Illinois, Omaha, Nebraska, Atchison, and Wichita, Kansas, and St. Louis, St. Joseph and Kansas City, Missouri. 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, Missouri, 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 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 employee of any elevator, mill, warehouse, transfer or team track, or by any person or persons under agreement with the same; or the buying or receiv*631 ing of any such sweepings or cleanings by any member of this association is prohibited.
“ 'Sec. 17. Violation of any of the provisions of section 16 of this article shall subject the member so violating to a fine of fifty dollars for the first offense, to a fine of one hundred dollars for the second offense, to expulsion and forfeiture of membership for the third.
“ '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 use accurately determining the percentage of such foreign matter and dirt, and the one hundred pounds quantity was taken as a fair average. The members of said board of trade buy and sell sometimes as commission men for outsiders, and sometimes for their own account, and it is impossible to tell without inquiry whether a buyer or seller is acting for himself or for someone else. The buying and selling of grain on the floor of said board of trade is, as in all other markets, based upon the constantly and rapidly fluctuating market price in that and the other principal grain markets. There is no time nor opportunity to ascertain the capacity (principal or agent) in wheh a member is acting when he buys oi sells, and, if he is really acting as agent, no opportunity*632 to investigate the financial standing of the real principal. Because of this condition and also to secure the prompt and faithful performance of such contracts of sale, there is a rule of said board of trade forbidding the disclosure of outside principals and holding the member in all cases as the principal. There are also rules making a membership responsible for the faithful performance of such contracts. That the State Railroad and Warehouse Commisson has in force a rule requiring cars unloaded at Kansas City to be cleanly swept. That the method of making the reduction is to weigh the loaded car; then, after emptying and cleanly sweeping the car, to weigh the car; the difference in these two weights is entered on the account sales as the weight of the carload of grain, the deduction of the one hundred pounds being also noted on that slip and settlement made for this balance. That is, the weight of the entire contents of the car is shown and also the one hundred pound deduction on the face of the account sales given the seller.
“That upon the first day of September, 1909, petitioner bought upon the trading floor of said board of trade and from a member thereof, a carload of wheat on Kansas City unloading weights. In accordance with the above method, and under said rule 18, he deducted one hundred pounds and made settlement for the balance.
“The member selling this grain did not own it, but was acting as a commission man. He, however, dealt with petitioner as in his own right, and petitioner had no notice or knowlege that such seller was not the real owner of the grain. Nothing had been said between the member selling and his principal as to the allowance of the one hundred pounds.
“Both petitioner and the seller understood at the time of sale that it was made subject to this rule.
“The petitioner insists that the above act of the Legislature is void and is.an unauthorized invasion of*633 his liberty as a citizen under tbe Constitution of this State and tbe Constitution of tbe United States, in that, it arbitrarily interferes with Ms right to contract in an unnecessary and unreasonable manner. It will be observed that the information charges an offense under the first section of the act of June 8, 1909, in that, the petitioner did deduct from the actual weight of a carload of wheat, purchased by him on the first day of September, 1909, from James Anderson, one hundred pounds, under a claim of right to do so under and by virtue of a rule and custom of the board of trade of Kansas City, Missouri, contrary to this statute, and under section one of this law this conduct is made a misdemeanor, and the invalidity of the statute is the sole defense to this prosecution.”
By the agreed statement of facts it is admitted that the petitioner bought a carload of wheat from Anderson on Kansas City unloading weights, and under the said rule 18 of the Kansas City board of trade deducted one hundred pounds and made settlement for the balance, and that Anderson did not own the grain himself but was acting as a commission man. And that Anderson, the member selling the said carload had never derived any authority from his principal, the owner of said carload of wheat, to make such allowance of one hundred pounds. It is, however, agreed that the petitioner dealt with Anderson in his own right, and had no knowledge that Anderson was not the real owner of the grain, but that he and Anderson understood the sale was made subject to rule 18. It further appears from the agreed statement of facts, that there is a rule of the said board of trade forbidding the disclosures of outside principals and holding the member in all cases as a principal.
Before proceeding further, it is essential to a clear apprehension of the issues involved in this case and to free it from extraneous discussion, that we first understand the nature of the law upon which the prosecution of petitioner is bottomed. The act is short and can be
That the inspection and regulation of weights and measures are within the police power of the States, and laws passed by the Legislature for such'inspection and regulation requiring dealers and traders to conform thereto, and for the appointment or election of officers or inspectors thereunder, are in the nature of police regulation and not repugnant to the Constitution of the United States or of this State can no longer be doubted. [Pittsburg Coal Company v. Louisiana, 156 U. S. 590; 30 Am. and Eng. Ency. Law (2 Ed.), 451 and cases therein cited.] Legislation along- these lines is found in almost every country, the underlying purpose of which is to secure uniform weights and measures and to guard the people at large against defective and uncertain weights and measures and fraudulent practices connected therewith. "While the act we are called to construe in this case is not aimed at fraudulent and illegal weighing of the commodities named therein, it
The inhibition of this act is against the deduction of any amount from the actual weight or measure under claim of right to do so by reason of any custom or rule of the board of trade, or by any pretense whatsoever. ' This is the unequivocal language of the act itself, and the agreed statement of facts demonstrated that the board of trade, by section 18 of its rules, claims the right to have an allowance of one hundred pounds per car on all grain bought by the members of the board of trade from the Kansas City unloading weights, and in this case, the petitioner deducted one hundred pounds from the carload of wheat bought by him from Anderson on the first day of September, 1909, under and by virtue of this rule 18 alone, and not by virtue of any contract made with the shipper whom Anderson represented in the sale, and the agreed statement further shows that Anderson had never apprised his principal of this rule and this custom and obtained his consent to such a deduction from the actual weight of the wheat. Obviously this legislation is aimed at this rule and this custom which the board of trade has made for itself.
. With all due respect.to my brethren who take a different view of this case, I am clearly of the opinion
Tiedeman in his work on State and Federal Control of Persons and Property, vol. 1, p. 260, says: “A fraud is, of course, a trespass upon another’s private rights, and can always be punished, when committed. It is therefore but rational to suppose that the State may institute any reasonable preventive remedy, when the frequency of the frauds, or the difficulty experienced in circumventing them, is so great that no other means will prove efficacious. "Where, therefore, police regulations are established, which give to private parties increased facilities for detecting and preventing fraud, as a general proposition, these laws are free from, all constitutional objections. Laws which provide for the inspection and grading of flour, the inspection of tobacco, the inspection and regulation of weights and measures, the regulation of weight of bread, requiring all lumber to be surveyed by a public surveyor, providing for the weighing of coal and other articles of heavy bulk on the public scales, are constitutional exercises of police power, so far as they permit one party to compel the other to comply with the regulation, in the absence of their agreement to the contrary. For example, it is permissible for a statutory regulation to provide for standard weights and
But as already said the provision of the act which petitioner is charged with having violated is that part thereof which prohibits any purchaser of grain from deducting any amount from the actual weight under any claim of right to do so by reason of any custom or rule of the board of trade, and it is the rule of the Kansas .City Board of Trade at which this act is really aimed. The petitioner claims that this act is unconstitutional because it prohibits him from deducting an arbitrary amount, to-wit, one hundred pounds, from each and every car of grain irrespective of the fact whether or* not it actually contains any dirt or other foreign substance. While conceding in the agreed statement of facts that there is no method of accurately determining the percentage of such foreign matter and dirt, he assumes that there will be an average of one hundred pounds to each car. He admits that in grading wheat,
The business of the board of trade and its members in the handling, buying and selling of the grain is such that the public has an interest therein and is so largely affected thereby, that the Legislature controlling it is justifiable, under the decisions of the Supreme Court of the United States in Munn v. Illinois, 94 U. S. 113; Budd v. New York, 143 U. S. 517 and Brass v. North Dakota, 153 U. S. 391.
Petitioner insists that by prohibiting him from making the deduction on one hundred pounds his property is taken without due process of law. We agree with the Attorney-General that he has reversed the conditions. To strike down this act will be to permit him to continue to take the shipper’s property without due process of law, and without any compensation therefor.
Without further elaboration, we' are of the opinion that this act is a valid one and it is wisely aimed to prevent unjust and unfair practice and to repeal and nullify a rule of the Board of Trade which is unjust and unfair and contrary to good morals and fair dealings, and the act offends against no provision of the Constitution.
As to the objection that the act does not respond to its title, we think it is without merit or weight. We think the act with which petitioner is charged, to-wit, that of deducting one hundred pounds from the weight of the ordinary carload of wheat purchased by him of Anderson, without any other authority than that of rule 18 of the Board of Trade permitting him to do so, aptly falls within the title of the act, whose purpose is declared therein to prevent fraud in the purchase and sale of grain and other commodities.
• It follows from what we have said that the petitioner is not entitled to be discharged from the information in this case and that he should be remanded to the custody of the marshal in order that prosecution may proceed according to law, and it is so ordered.
Concurrence Opinion
'SEPARATE CONCURRING OPINION.
I concur in the views of Judge Gantt expressed in this case for the additional reasons that the design the Legislature had in passing the act in question was two-fold: first, by section one, to prevent brokers from agreeing with the purchasers of wheat on boards of trade to deduct any part therefrom without authority from the owner to so do, notwithstanding the existence of a rule or custom to the contrary. It cannot be seriously contended that said section is unconstitutional for that reason. The books are full of cases upholding the validity of such laws.
The second purpose the Legislature intended to accomplish by the passage of this act was to prevent the purchaser of wheat on the floors of exchanges from deducting any quantity from the amount so purchased where the contract’ of purchase does not authorize such deduction. In other words, the act was simply designed to prevent one person from taking the property of another without compensation and without his consent. That certainly is a valid law, for the reason that it is based upon express provisions of both the State and Federal constitutions, which provide that private property shall not be taken for private use with or without just compensation.
The clear import and meaning of the rule in question is to authorize the purchaser of wheat1‘ on change ’ ’ to take private property without the owner’s assent and without compensation, which was being done under this rule at the time of the passage of this act. By
In the case at bar, the agreed statement of the facts'show that the broker who sold the wheat mentioned therein had no authority in fact to authorize House, the petitioner, to deduct the hundred pounds of wheat mentioned from the quantity purchased by him. Notwithstanding his lack of authority, the petitioner deducted that hundred pounds and now retains it without paying for it. This act of the Legislature declares that act of the petitioner to be a misdemeanor and punishable by fine. In my judgment that is a valid law and should be enforced.
Suppose, for instance, the rule in question instead of being simply a rule of the board of trade had been an act of the Legislature, and had provided just as the rule in effect does, that all purchasers of wheat “on change” may without authority from the owners thereof deduct from each carload purchase the sum of one hundred pounds without compensation, would or could it be contended that such an act would be constitutional? Certainly not. That being true, then clearly the rule itself for stronger reasons is void, and the Legislature unquestionably has the authority not only to fine but also to imprison all who take property of others without their consent.
If this board of trade has the authority to adopt the rule in question, deducting one hundred pounds from each carload purchase made upon its floors, then clearly by virtue of the same authority it has the power to deduct from each sale two hundred pounds or any other quantity deemed proper, only limited by the avarice and greed of a majority of its members.
In answer to a question propounded by the writer to counsel for the petitioner during the oral argument of this cause, he stated in response thereto that there was sold on an average on the floor of the Kansas City Board of Trade five hundred cars of wheat a day.
This rule is wrong and vicious and should be condemned, as the Legislature has undertaken to do by this act; and this act is wise and just and should be upheld and enforced.
Dissenting Opinion
DISSENTING OPINION.
I cannot concur in the opinion of the majority and my reasons therefor are expressed in the following:
By information duly filed on September 21, 1909, by the prosecuting attorney of Jackson county, Missouri, B. J. House was charged with the violation of a legislative act of this State entitled, “An Act to prevent fraud in the purchase and sale of grain and other commodities.” [Laws 1909, p. 519.] In said information it is charged that he “on the first day of September, 1909, in the county of Jackson, State of Missouri, did purchase from one James Anderson, one carload of wheat by weight, and did then and there willfully and unlawfully, from the actual weight of the said wheat so by him purchased, take and deduct one hundred pounds, by the said B. J. House, pretending and claiming to have the right to make such deduction, and to have and keep the said one hundred pounds 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, Missouri, contrary to the
“"Without admission of either party as to the relevancy of any particular fact herein set forth, the following facts are agreed upon between parties:
“There are competitive grain markets at Galveston, Texas, Chicago, Illinois, Omaha, Nebraska, Atchison and Wichita, Kansas, and St. Louis, St. Joseph and Kansas City, Missouri. 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, Missouri, 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 commercial and economic information, and generally secure to its members the benefits of co-operation in the furtherance of their*647 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 said rules are:
“ ‘Sec. 16. The weight supervising committee shall have supervision, through the weight department, of the unloading of all ears 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 employee 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.
“ ‘See. 17. Violations of any of the provisions of section 16 of this article shall subject the member so violating to a fine of fifty dollars for the first offense, to a fine of one hundred dollars 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 weights which strictly enforces rule 16.
“That rules 16 and 17 were enacted to secure the seller the full weight of the entire contents of the car and rule 18 to secure the buyer from loss through dirt*648 and foreign matter in or swept ont 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 use of accurately determining the percentages of such foreign matter and jlirt, and the one hundred pound quantity was taken as a fair average.
“The members of said board of trade buy and sell sometimes as commission men for outsiders, and sometimes for their own account, and it is impossible to tell without inquiry whether a buyer or seller is acting for himself or for some one else. The buying and selling of grain on the floor of said board of trade is, as in all other markets, based upon the constantly and rapidly fluctuating market prices in that and the other principal grain markets. There is no time nor opportunity to ascertain the capacity (principal or agent) in which a member is acting when he buys or sells, and, if he be in reality acting as agent, no opportunity to investigate the financial standing of the real principal. Because of this condition and also to secure the prompt and faithful performance of all such con-' tracts of sale, there is a rule of said board of trade forbidding the disclosure of outside principals and holding the member in all cases as the principal. There are also rules making a membership responsible for the faithful performance of such contracts.
“That the State Railroad and Warehouse Commission has in force a rule requiring cars unloaded at Kansas City to be cleanly swept.
“That the method of making the reduction is to weigh the loaded car; then, after emptying and cleanly sweeping the car, to weigh the car; the difference in these two weights is entered on the account sales as the weight of the carload of grain, the deduction of one*649 hundred pounds being also noted on that slip and settlement made for this balance. That is, the weight of the entire contents of the ear is shown and also the one hundred pound deduction on the face of the account sales given the seller.
“That upon the first day of September, 1909, your petitioner bought upon the trading floor of said board of trade and from a member thereof, a carload of wheat on Kansas City unloading weights. In accordance with the above method, and under said rule 18, he deducted one hundred pounds and made settlement for the balance.
“The member selling this grain did not own it, but was acting as a commission man. He, however, dealt with petitioner as in his own right, and your petitioner had no notice or knowledge that such seller was not the real owner of the grain. Nothing had been said between the member selling and his principal as to the allowance of the one hundred pounds.
“Both your petitioner and the seller understood at the time of sale that it was made subject to this rule.”
The full statute reads:
“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*650 .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.
“Approved June 8, 1909.”
Counsel for Mr. House urge several reasons against the validity of the law, each of which will be noted in the course of the opinion. His counsel ask his discharge, and the State holds that he should be remanded to be tried under the information. Such sufficiently states the cause for a discussion of the legal questions.
I. We have perhaps set out more of the details in the statement than were required. One point raised is that this law interferes with the sacred right of individuals, sui juris, to contract as they please, so long as such contracts are not condemned upon grounds of public morals, public policy and things of like character. The petitioner contends that this right is violated — the State, through the learned Attorney-General, contra. The question is not one without difficulties. It can only be determined by an analysis of the law, itself. The question can best be discussed by illustrations. Suppose that a member of this court desired to buy a wagonload of wheat upon the streets of Jefferson City, and upon examination found that there was a large amount of foreign substances in said load of wheat, and for that reason demanded that before he would pay the market price of wheat, a certain per cent of allowance in weight should be allowed for the foreign substances, would the statute prevent a contract of that character? That we would have a right to so contract can hardly be doubted, if the seller was sui juris. So, to such a question there can be but one answer and .that in the affirmative. No law, relating to the right of contract, can compel the citizen to pay for a thing which he does not get. Nor can a law
The first section of the statute says that “every sale of grain . . . shall be made on the basis of the actual weight thereof, and every purchaser of grain . . . who shall deduct any amount from the actual weight or measure thereof under ; . . any pretense whatsoever, shall be deemed guilty of a misdemeanor.”
The term “any pretense whatsoever” is a broad one. In the use of it reference is made to a sale of a commodity. A sale presupposes a contract of some kind. Under the statute the sale must be upon the basis of actual weight and a fortiori the contract of sale' must be likewise. In other words, that which limits the sale must limit the contract with reference to the sale. There can’t be a sale, without a contract of sale, and the law which prescribes the terms of one prescribes the terms of the other.
To bring the application closer home, suppose a member of this court desired to purchase a carload of wheat standing upon the unloading track of a railway company in Kansas City, and after such wheat had been graded, and he upon examination found that there were more foreign substances, including dirt, in the wheat than were accounted for by the grading made, could he then, under this law, contract for the deduction of one hundred or two hundréd pounds from the weight of the car of wheat in order to get actual justice in the bargain? We think not. Under the statute “every sale . . . shall be made on the basis of the actual weight,” and to deduct from such actual weight on “any pretense whatsoever” renders a purchaser guilty of a misdemeanor. A sale, as said
So, too, if we were purchasing a load of coal upon the streets, much of which load was made up of slate and other foreign substances, we would be guilty of a misdemeanor should we say to the seller, we will pay your price provided you deduct ten per cent of the weight to cover these foreign substances, and the seller accepted our offer, thus completing the sale and the contract of sale.
The relator in this case is being prosecuted under section 1 of the act, the only criminal section thereof. This section we have analyzed and when we recollect, as we must, that there can be no such thing as a sale without a contract of sale, we are forced to the conclusion that the words “every sale” used in such section are equivalent to “every contract of sale.” Not only so, the section does not limit itself to sales upon boards of trade, but it applies to “every sale” of the commodities therein mentioned, it matters not when nor where made. This statute clearly strikes at the right of private contract. The first clause compels a purchaser to contract on the basis of the actual weight. Not only so, but it precludes such purchaser from so contracting as to make an allowance for foreign substances. It applies to sales made where there is no grain inspection, as well as places where there is grain inspection. It absolutely leaves the purchasers of grain in small towns and in the country at the mercy of the seller.
The first clause of this statute fixes the terms of every contract of sale so far as the commodities named
In those days we recognized that persons sui juris could contract, but in these days it would appear that the State is to assume the right to fix the terms of the contracts between private individuals, whether sui juris or not. Under both the State and the Federal Constitutions this power to thus interfere with private contracts is denied. No stronger condemnation of such a law is found than we find from this court in an opinion by Sherwood, J., in case of State v. Julow, 129 Mo. l. c. 175, whereat it is said:
“Here the law under review declares that to be a Crime, which consists alone in the exercise of a constitutional right, tó-wit, that of terminating a contract, one of the essential attributes of property, indeed property itself, under preceding definitions. Brought to the bar of a court on such a charge, the accused would have been prejudged in so far as the criminality of the act charged is concerned; no question could there be made or admitted as to the quality of the act; that would have been settled by the previous legislative declaration, and it would only remain to find the fact*654 as charged, in order to declare the guilt as charged. But the fact as charged as already seen, is not a crime, and will not be a crime, so long as constitutional guarantees and -constitutional prohibitions are respected and enforced.
“If an owner, etc., obeys the law on which this prosecution rests, he is thereby deprived of a right and a liberty to contract or terminate a contract as all others may; if he disobeys it, then he is punished for the performance of an act wholly innocent, unless indeed the doing of such act guaranteed by the organic law,.the exercise of a right of which the Legislature is forbidden to deprive him, can, by that body, be conclusively pronounced criminal. We deny the power of the Legislature to do this; to brand as an offense that which the Constitution designates and declares to be a right, and therefore an innocent act, and consequently we hold that the statute which professes to exert such a power is nothing more nor less than a “legislative-judgment” and an attempt to deprive all who are included within its terms, of a constitutional right without due- process of law. In support of these views see State v. Loomis, 115 Mo. 307; Com. v. Perry, 155 Mass. 117; Godcharles v. Wigeman, 113 Pa. St. 431; State v. Goodwill, 33 W. Va. 179; In re Jacobs, 98 N. Y. 98; People v. Gillson, 109 N. Y. 389; Millett v. People, 117 Ill. 294; Tilt v. People, 27 Chicago Leg. News, 270.”
Equally strong is the language of Burgess, J., in the more recent case of State v. Tie & Timber Co., 181 Mo. l. c. 559: “The right to labor or employ labor, and make contracts with respect thereto, upon such terms as may be agreed upon, is both a liberty and property right, and is included in the guaranty of the Constitution which provides Ghat no person shall be deprived of life, liberty or property without due process of law.’ [Sec. 30, art. 2, Constitution.] Nor can such right to contract be arbitrarily interfered with, but may be subject to limitations growing out of duties
The section of the statute under review in the Tie & Timber Company case affected the right of an employer to make contracts with his employees. There can be no difference between purchasing labor and purchasing commodities. The right to contract (which is, as said by Sherwood, J., in the Julow case, supra, property, within the constitutional provisions) is involved in both cases. We use the term purchasing labor, because it is so used by Peckham, Justice, in Lochner v. New York, 198 U. S. l. c. 56. In that case the learned justice was discussing the effect of a New York law limiting the hours which bakers should work upon the constitutional right to contract. He there said:
“It must, of course, be conceded that there is a limit to the valid exercise of the police power by the State. There is no dispute concerning this general proposition. Otherwise the Fourteenth Amendment would have no efficacy and the Legislatures of the States would have unbounded -power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext-become another and delusive name for the supreme sovereignty of the State to be exercised free from constitutional restraint. This is not contended for. In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts
“This is not a question of substituting the judgment of the court for that of the Legislature. If the act be within the power of the State it is valid, although the judgment of the court might be totally opposed to the enactment of such a law. But the question would still remain: Is it within the police power of the State? and that question must be answered by the court.
“The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State. Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us. involves neither the safety, the morals nor the welfare of the public, and that ike interest of the public is not in the slightest degree affected by such an act.”
The contention of the State in this case is that the law is a reasonable exercise of the. police power of the State, but as such we cannot so see it. Boiled down to its essence, this law simply says that no contract for the sale and delivery of certain commodities can be made between two persons sui juris unless the actual weight of the carload or other bulk of grain be taken as the basis of the contract. The making of contracts
In the Adair case, supra, a Federal statute relating to employer and employee was under consideration. Adair, who was master mechanic of a railway corporation, was charged with having discharged one Coppage because of his connection with a labor organization in violation of the 10th section of the Act of Congress of date October 1, 1888. In discussing this statute under the Constitution, Mr. Justice Harlan in the Adair case, further said: “While, as already suggested, the rights of liberty and property guaranteed by the Constitution against deprivation without due process of law, is subject to such reasonable restraints as the common good or the general welfare may require, it is not within the functions of government— at least in the absence of contract between the parties —to compel any person in the course of his business and against his will to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another. The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such- labor from
And so say we in the case at bar. Buyers and sellers of the commodities mentioned in our statute are upon equal footing. They should have equal rights in the matter of making contracts of purchase and sale. The State is going beyond a reasonable and legitimate exercise of its police power when it attempts to prescribe the terms or any portion of the terms of such contracts between private individuals. Other cases are cited in the briefs, but we will not further burden this opinion. The very first clause of the statute in question fixes at least one of the terms of every contract of sale as to the commodities mentioned. Such statute is neither a reasonable nor a legitimate exercise of the police power of the State, but in violation of constitutional provisions, as found in both the State and the Federal constitutions, and is one which tramples down the rights of the individual to make contracts for himself.
Not only so, but it does this in the interest of one of the contracting parties, and against the interest of the other. Such statutes have universally been de
II. There is another reason why this statute should be declared void. The body of the act in nowise responds to the title. The title thus reads: “An Act to prevent fraud in the purchase and sale of grain and'other commodities.” The body of the act as we have' shown, simply goes to the character of the contract-which must be made between buyer and seller. In its-: last analysis, the body of the law simply provides thaf the actual weight of the grain shall be taken as the basis of the contract of sale, and if the purchaser does not so take it he is guilty of a misdemeanor. , There is not a line in the act which describes a fraudulent transaction. It is not a fraud for two parties sui juris to-agree that one will sell and the other will buy a carload of grain, provided that 100 or 200 pounds be taken from the weight to cover loss occasioned by the presence of foreign substances. It is not a fraud for two persons to agree that one will sell and the other buy a wagon-load of coal at so much per hundred provided eighty-five pounds instead of eighty pounds be-allowed to the bushel, in order to cover loss from apparent foreign substances in the coal. Yet these are the very transactions involved in the body of this law. There is no reasonable connection between these transactions and the subject-matter of fraud. The law therefore does not fall within the purview of the enacting' clause or title — and such a law cannot stand.
Nor can the Legislature make that a fraud which within itself is not a fraud. To such things- the same-rule will apply as is applied to nuisances. Speaking’ to the question of nuisances, this court in City of Sh Louis v. G-alt, 179 Mo. 1. c. 18, said: “Of course, even under such broad powers, it is not competent for the-city to declare that to be a nuisance which is not, and-cannot from its nature, be a nuisance in fact.”
If the body of this act falls within the purview of its title it is because the Legislature has declared that if two parties enter into a contract for the purchase and sale of grain and other commodities on the basis of weights other than the actual weights, such act of the two parties, sui juris, is a fraud. The Legislature cannot declare and make that a fraud, which in fact is npt a fraud. Nor can the State make an act criminal when the Constitution permits such act to be done. [State v. Julow, 129 Mo. l. c. 175.]
For these reasons the entire act is void.
III. Learned counsel for the State have analyzed the statute and thus state it:
“The whole act, stripped of its verbiage, and * boiled down,’ simply means this:
“First: That all sales of grain, seed, hay.and coal in this State shall be made on the basis of their actual weight.
“Second: That 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 guilty of a misdemeanor and punished by fine.
‘ ‘ Third: That no agent or broker shall have any authority by reason of any custom or rule of a board nf trade, to sell any grain, seed, hay or coal, except on -the basis of the actual weight thereof, and any sale jna.de in violation thereof shall be null and void.”
He adds, however: “The act was not leveled -against the right to contract in any manner or form. ’ ’ At this point the learned counsel tread the pathway .of error. The first subdivision of their analysis shows
If this first clause stood alone, and was not violative of constitutional provisions, no valid sale of the commodities named could be made except on the basis of actual weight, and as all sales presuppose a contract of sale, no valid contract could be made upon any other basis. The more we outline this statute the more firmly fixed become our views to the effect that-it is an unwarranted invasion of the. personal right to contract. If the State cannot make an act, which is authorized by the Constitution, criminal, it cannot declare fraudulent an act likewise authorized by the Constitution.
So concluding, we think the statute, under which relator was arrested, to be void and relator should be discharged.
SEPARATE DISSENTING OPINION.
I fully concur in the views expressed by Judge Graves upon the propositions involved in this proceeding; hence will be content with adding a few words concerning the interpretation of section 1, Laws 1909, p. 519, upon which the prosecution of the petitioner was predicated.
Section 1 provides that “every sale of grain, seed, hay or coal shall be made on the basis of the actual
It is to the provisions of this section that the State must look for support in the prosecution of the petitioner. It is insisted that this section should be divided into sentences and clauses, by reason of which the respective features of the section will be made to appear, that is to say, the civil and criminal aspects embraced in the section.
It is sufficient to say upon this insistence that if that section is divided into sentences or clauses, then it must be done by the court, for manifestly the lawmaking power did not embrace separate clauses, not' even separate sentences. The entire section is embraced within one sentence, and in my opinion can only be construed in its entirety. Clearly the General Assembly sought by the provisions of section 1 to create a misdemeanor concerning the subject of sales of grain, seed, hay or coal, and all the terms employed in that section, have, in their final analysis, application alone to the criminal offense that is sought to be created. The provision of that section that “any purchaser of grain, seed, hay or coal, who shall deduct any amount from the actual weight or measure thereof . . . shall be deemed guilty of a misdemeanor, ’ ’ is embraced in the same sentence and is directly connected with the preceding terms that “every sale of grain, seed, hay or coal shall be made on the basis of the actual weight thereof.” In other words, the purchaser as spoken of in the section has reference to a purchaser by reason of a sale made on the basis as provided by the terms last above quoted. There can be no pur
The provision of section 1 which provides that ‘ ‘ every sale of grain, seed, hay or coal shall be made on the basis of the actual weight thereof” was not intended by the General Assembly to present simply the civil feature of that section, for manifestly it is the violation of that provision which constitutes the essence of the crime created by section 1. Clearly the purchaser is required under this provision in making his purchase to make it on the basis of the actual weight of the commodity so purchased, and a failure to comply with the terms of this provision is the essence of the offense created by section 1; and the provision that “any purchaser of grain, seed, hay or coal, who shall deduct any amount from the actual weight or measure thereof, ” serves only to emphasize that it is the violation of the terms of the statute that every sale shall be made on the basis of the actual weight of the commodity that makes the offense. In other words, section 1 in effect provides that every sale of grain, seed, hay or coal shall be made on the basis of the actual weight, and any purchaser who participates in a sale and who shall purchase upon any other basis than that of the actual weight and measure of the commodity under a claim of right to do so by reason of any custom or rule of a board of trade, or any pretense whatever, shall be guilty of a misdemeanor. The provisions of section 1, which provide that “any purchaser . . . who shall deduct any amount from the actual weight
There can be no such thing as a deduction by a purchaser from the actual weight or measure of the commodity purchased without there was a sale and a contract of sale preceding such deduction, and the sale contemplated is the one suggested by the provisions of the statute that must be made upon the basis of the actual weight of the commodity, and, as heretofore indicated, such sale presupposes some sort of a contract, either express or implied, respecting the commodity sold.
In my opinion, as heretofore indicated, the provisions of section 1 must be construed together, and the terms employed in said section have application to the criminal offense sought to be created by the General Assembly in the enactment of that section.
It is next insisted that section 1 has application alone to sales upon boards of trade. A careful analysis of the provisions of section 1 will demonstrate that its provisions are of much broader significance. It will be observed that this statute in treating of the subject of sales of grain and the other commodities therein mentioned nowhere indicates that it has application alone to sales upon boards of trade. In fact the only instance in which hoards of trade are mentioned is that the purchaser cannot justify his deduction from the actual weight of the commodity purchased by reason of any custom or rule of a boayd of trade or any pretense whatsoever. In other words, the provisions of that section in substance provide, first, that the- sale of the grain shall he upon the basis of the actual weight thereof, and that any purchaser who deducts any amount from the actual weight thereof under claim of right to do so by reason of any custom or rule of
The solution of the proposition confronting us, that is, the proper interpretation of section 1 upon which the prosecution of the petitioner was predicated, must be sought alone by a careful analysis of the terms employed in the statute, and the proposition should not be overshadowed by treating the statute as applicable to the Kansas City Board of Trade and its rules, manner and methods of transacting business.
If this statute invades the rights of the citizens of this State who are fully capable of contracting respecting the sale of their property, then, in my opinion, it should be held invalid. If boards of trade in Kansas City or anywhere else in this State have rulés and methods of transacting business that are not in harmony with public interests and morals, doubtless the law-making power will have no trouble in devising some means to regulate them; but their regulation should not be confounded with the rights of the individual citizen who. is capable of contracting in the sale and purchase of his property in such manner as his best judgment dictates. In my opinion section 1 should be held invalid.