87 Kan. 348 | Kan. | 1912
Lead Opinion
The opinion of the court was delivered by
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
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 ware-housemen, whenever inspection and weighing is estab
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 weigh-master, 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
“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,*353 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 person selling grain by sample, regardless of grade (§17). Sections 19 to 35 relate almost wholly to warehouses. If the owner of grain consigned to a public warehouse is dissatisfied with its inspection, or from any cause desires to withhold it from storage, he may have it delivered to him subject only to such charges as have already accrued (§ 32). Provision is made for a “Grain Grading Commission,” to be appointed by the governor, to establish grades for all kinds of grain bought or handled in the state (§ 36).
Specific arguments are advanced for the construction contended for by the state, which may be thus summarized: The fact that the statute makes it a misdemeanor to deny an officer of the department access to scales, elevators and other places in the performance of his duties implies that his inspection may be against the wishes of the owner of the grain. If grain were to be inspected only on request of the owner it would be needless to provide a lien for the inspection fee, since in such case it would be paid. The provision that at the points' designated no one but an officer shall inspect or weigh grain shows that the will of the legislature and not of the owner was intended to control. The officers could not have “exclusive control” of. inspection if they could act only on invitation. They are required to perform various duties aside from inspecting and weighing grain; they are paid only from the fund produced by fees, and no fees are charged for ■any other services; if they can only weigh and inspect
“It is important to determine whether the present law under which the grain department operates is an inspection law with elevator and warehouse provisions incorporated therein, or a warehouse law with inspection and weighing of grain provided for therein. If the former, then grain inspection and weighing exists state-wide, subject to be placed in actual operation under the provisions of the statute and the chief inspector. If the latter, then only such grain as is in, destined for, or being shipped out of a public elevator or warehouse is subject to inspection.”
Upon a consideration of these arguments, and those of the defendants in reply, the court reaches a conclusion, in harmony with the commissioner’s, that it was not the purpose of the legislature to. make inspection compulsory except as to grain stored in public elevators. There are obvious reasons for requiring an official inspection and weighing of grain, where it is to be mingled with other grain and thereafter bought
The fact that .until late in 1910 or early in 1911 the .state inspection department did not claim the right to Inspect any grain (except that going into or coming -out of a public elevator) against the wish or direction <of the owner, is urged by the defendants as an administrative construction of the statute adverse to the view of the plaintiff. We deem this argument of little weight, because up to that' time such right was not denied, no controversy having arisen, and in fact grain at inspection points was inspected without regard to whether it was intended for storage. Until July, 1911, the department did riot inspect grain transferred from ■one car to another through an elevator, but since then it has claimed the right to do so.
In The State ex rel. Wood v. Smith, 114 Mo. 180, 21 S. W. 493, which is of more importance in connection with another branch of the case, and to which reference will again be made, it was held that under the Missouri statute, which has much in common with that •of Kansas, official inspection was limited to grain in public warehouses. In State ex inf. v. Goffee, 192 Mo. 670, 91 S. W. 486, a subsequent amendment was held not to change the law in this regard, although the court said that its language indicated an assumption by the legislature that some other grain was already .subject to state inspection. The language referred to •as indicating such an assumption is not in our statute. Other cases having some tendency to sustain the position of the defendants are State ex inf. v. Carlisle, 235 Mo. 251, 138 S. W. 513; Puget Sound Warehouse Co. v. Northern P. R. Co., 58 Wash. 322, 108 Pac. 955.
“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 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.” (§ 19.)
While some of the elevators were formerly conducted avowedly as public elevators, under license, at the time this action was begun the licenses had been surrended, and all were professedly private. The grain of each owner stored therein was kept separate from that of other owners, but the grain of the same owner was mingled in one mass, irrespective of its grade or the time of receipt, except where the owner directed otherwise. However, all the elevator operators excepting one reserved the right to store the grain with that of other owners (of the same grade) if they so desired. On December 6, 1911, this practice was abandoned and the clause embodying the reservation was omitted from receipts thereafter issued. Whether the elevators are now conducted as public or otherwise depends upon the construction of1 the clause “in which grain is stored in such a manner that the identity of different lots or parcels can not be accurately preserved.” This in turn depends upon the meaning to be attached to the word “lot” or “parcel.” If the quantity of grain delivered by a single shipment, or at one time, constitutes a separate “lot,” then the elevators are public. If the grain belonging to the same owner, whether delivered at the same or at different times, is regarded as constituting the same “lot,” if so designated by him, then the elevators are not public.
In order to be public an elevator must be one in which grain is stored in bulk, and which does business
We regard the history of the legislation as confirming the conclusion we have reached upon the consideration
“Public warehouses of class A shall embrace all warehouses, elevators or granaries in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in which grain is stored in such a. manner that the identity of different lots or parcels can not be accurately preserved, such warehouses, elevators or granaries being located in cities having not less than one hundred thousand inhabitants. Public warehouses of class B shall embrace all other wareT houses, elevators or granaries in which grain is stored in bulk, and in which the grain of different owners is mixed together. Public warehouses of class C shall embrace all other warehouses or places where property of any kind is stored for a consideration.” (§2.)
The italicized words, or their substantial equivalent, have been incorporated in statutes in Indiana (Acts of 1879, p. 230, Ann. Code of Ind;, 1908, § 10484) ; in Missouri (2 Rev. Stat. Mo., 1909, § 6775) ; in Ne
The language in question seems to have been before
“A proper construction of the expression ‘stored in bulk and the grain of different owners mixed together’ requires they should be read in conjunction as they appear in the act. The language is used in contradistinction to storage of each owner’s grain in kind and without mixing with another’s. In thé large public elevators which invite the public to store with them, the grain goes into a common bulk, and after that the right of its owner is represented by a warehouse receipt certifying to the amount thereof and its grade, and it is the regulation of such a warehouse to which the statute refers when it uses the language ‘stored in bulk and the grain of different owners mixed together.’ But the language of the act forbids the construction that the legislature had in mind those warehouses .in which the owners thereof stored their own property, or in which they leased, to other persons certain bins therein in which they might store their grain and preserve it separate and distinct from others. .In such a case no warehouse receipt is issued. When the grain is sold, the grain itself is delivered. It is not transferred by the assignment of negotiable warehouse receipts, which call for an equal amount of grain of the same grade and kind out of the general bulk. When stored in a rented bin, or in kind, the owner gets the commodity itself as distinguished from its value in money, or its equivalent in other grain of the kind and grade his was inspected and certified to be. . . . It is insisted by the relator that the mixing of two loads of the same grade belonging to the same owner brings the Empire Elevator within the purview of section 3, which denominates a warehouse as public ‘in which grain is stored in such a manner that the identity of different lots can not be accurately preserved.’ Keep*363 ing in mind that this act is a substantial transcript of the Illinois act, it is fair to presume the legislature of this state was actuated by the same purpose that prompted the legislature of Illinois. That act upon its face purports to be in pursuance of the constitutional mandate that the constitution of Illinois required the legislature to pass inspection laws ‘for the protection of producers, shippers and receivers of grain and produce.’ Hence we are [not] left in doubt as to the purpose of the law. This law was designed to protect the owner of wheat who desired to store it in a public warehouse, where, according to the method of transacting business, the identity of his .wheat could not be accurately preserved. It certainly was not intended to apply to a person who rented a bin fob his own use and directed the owner of the warehouse to store two or more loads of grain in the same bin, as was done in the Empire Elevator. Such a construction is at variance with the other sections of the law. The act must be construed as a whole. When the statute speaks of different lots we think it refers to lots belonging to different owners. Moreover, tue hold that the whole of section S refers most clearly to a. public warehouse where the public is invited to come and make use of its storage facilities, akd when the grain loill become mixed in bulk and its identity cannot be accurately preserved.” (pp. 195, 197.)
The Kansas statute under consideration is that of 1907, but the language in controversy was originally used in the act of 1891. (Laws 1891, ch. 248, § 1.)' In neither enactment was the exact language of the Missouri statute followed throughout. The case ■ is therefore not strictly one for the application of the rule that in adopting the statute of another state the legislature is conclusively presumed to adopt also the judicial construction there placed upon it. Nevertheless the reasoning back of that rule argues strongly for our following the Missouri decision. While it is true that the language the meaning of which is in dispute was used by the Kansas legislature in 1891, and is preserved in the present law without change, the enactment of 1907 was a revision of the entire subject. Obviously
These conclusions compel a denial of the writ asked, and make it unnecessary to pass upon the other matters that have been argued. A special order as to costs is necessary because of the fact, already referred to, that the operators of all the elevators involved, excepting the terminal elevators, reserved the right, prior to December 6, 1911, to intermingle the grain of different owners. We agree with the commissioner that the reservation of the right to reduce to a common mass the grain of different owners in store had' the same effect, so far as concerns the public -character of the business, as the actual mixing of the grain. Therefore where this right was reserved the elevators were public and were subject to state control, until the practice was abandoned. Various provisions of the statute have been attacked as unconstitutional. If any of them are in fact invalid they are of such a character that they may be eliminated without affecting the act as a whole, which is valid. The defendants maintain that mandamus is not a proper remedy, that the state is not a proper party plaintiff, and that the relief sought is too general. We think the right to compulsory inspection of grain in public elevators is one enforceable by mandamus at the suit of the state. It is generally' held, although there- are cases to the contrary, that mandamus will not lie to compel the performance of a series of acts. (4 A. & E. Ann. Cas. 198; 20 A. &.
Dissenting Opinion
(dissenting) : The prevailing opinion presents a fair synopsis of the governing statutes and, to my mind, they compel a different conclusion than has been reached. ■ The earlier ' acts related’ to the regulation of warehouses, elevators, and granaries in which grain was stored. In 1897 a radical change was made in the law when the legislature created a department for the inspection and weighing of grain and which made inspection wholly a state affair. That act, and the later revision of 1907, indicate that the legislature thought that the business of dealing'in grain, which is the principal product of the state, should be placed under state supervision, and so a department was created designed to have com
The provision for the punishment of those who refuse access, or prevent the officers from gaining access, to scales, elevators, and warehouses, in order to perform their duties of inspection, indicates that the inspection in mind was compulsory rather than optional, and the same may be said respecting the provision giving a lien on the grain for the fee which is to be collected and paid by the carrier. Section 13 of the act contemplates that there shall be inspection and weighing of grain whether into or out of public warehouses, and it places in the same category with public warehouses, elevators, cars, barges, wagons, or sacks arriving at or shipped from the points named in the first section of the act, and this is to be done by officers of the state provided for that purpose, and that if any one else assumes to act he will be subject to prosecution. No option is given any one and nothing is said of waiting until the officer is invited to inspect the grain taken in or out of the elevators, cars, barges,
Again, a great system for the inspection and weighing of grain has been created, the fees for the service have been prescribed, a revolving fund has been, provided, and the clear purpose of the legislature was that the-department expenses should be paid from the fees collected. It seems quite improbable that the legislature intended to create such a department, supported in such a way, and then make the support of the department depend on the will or caprice of grain dealers. If there is no inspection and weighing of grain no fees will be collected and there will be no fund to support the department. The act was not passed for the benefit of the grain dealers alone nor for the producers alone, but for the benefit of all interested parties and for the welfare of the whole state. If it is optional with grain dealers to have inspection or weighing' of grain it is within their power to thwart the legislative purpose by declining inspection, and In that way deprive the department of fees which is practically the only means provided for maintaining it. Such a purpose can not well be attributed to the legislature.
It is argued that the legislature, by section 23 of the act, made inspection compulsory as to grain stored in public warehouses, and that, not having used equally explicit language as to inspection at other places,' it
Reference is made to a Missouri case but the statutes of the two states-are qttite different in their provisions. Ours is, in the main, an inspection law, while that of Missouri is essentially a warehouse act, and is so characterized by its title, which is, “An act . ' . . providing for the organization of public warehouses, and to regulate the warehousing and inspection of grain in public warehouses.” (Laws of Mo. 1889, p. 124.) Even under that statute the supreme court of Missouri, in citing the case of State ex inf. v. Goffee, 192 Mo. 670, 91 S. W. 486, found language indicating that grain not in public warehouses was subject to inspection, but because the legislature had proceeded on the assumption that a former- statute provided for inspection elsewhere, and was thought to be mistaken in that assumption, that therefore no force could be given to the language in the last act. That case can not be regarded as an authority in this one. In my opinion our legislature undertook to provide compulsory inspection of substantially all of the grain designed for sale in the markets or for storage within the state. It is well known that grain is no longer sold on the markets of this country unless it has been graded, inspected and weighed, and it therefore became a question in this state whether there should be
Another question upon which there is a division of opinion is what, under the law, constitutes a public warehouse? It depends upon the interpretation of section 19 of the act, which has already been quoted, and the language is so plain and direct that it seems-to me there is little room for doubt as to its meaning. An elevator or warehouse in which there is no separation of the grain received, and where all of it is stored in bulk for compensation, is unquestionably a public-warehouse. One in which that or a part of that received from different owners is mixed together and stored for compensation is likewise conceded to be a public warehouse. The legislature intended to extend the application of the act, because, after naming those in which grain was stored in bulk and those in which the grain of different owners is mixed together, it. added a distinct class by employing the phrase “or in-which grain is stored in such a manner that the identity of different lots or parcels can not be accurately preserved.” It is said by the defendants that this phrase was only intended to explain or amplify the preceding ones and that it related solely to the grain received from different owners. Their claim appears to be that the phrase was intended to make it clear that however the grain of different owners might be mixed in the elevator, if its identity could not be accurately preserved it should be regarded as a public warehouse. It seems to me, however, that the' preceding clause, in which the grain of different owners mixed together is referred to, requires no explanation. It is clear and complete of itself. Nothing is said in
Counsel cite and rely on The State ex rel. Wood v. Smith, 114 Mo. 180, 21 S. W. 493, as an authority for their interpretation of the language of the act, and it appears to support the theory for which they contend. The Missouri statute, as we have seen, differs to some extent from our own but the definition of public warehouses is substantially the same. Our statute was enacted, however, before that decision was made, and therefore it can not be claimed that the interpretation of that court was adopted by our legislature. The decision accentuates the words “lots and parcels” employed in the section and gives the law a strained and unnatural construction. It seems clear to me that its interpretation is out of harmony with the main purposes of the act and that the reasoning of the court in support of its interpretation is wholly unconvincing. In my view the commissioner reached a correct conclusion in interpreting section 19 and in holding that the defendant elevators were public warehouses. I feel compelled, therefore, to dissent from the conclusion reached by the court on both propositions, namely, from the conclusion holding that inspection and weigh
I am authorized to say that Mr. Justice Benson joins in this dissent.