The Act of March 7, 1891, c. 126, of North Dakota, "regulating
grain warehouses and weighing and handling of grain," declaring
elevators, etc., to be public warehouses, and their owners to be
public warehousemen, and requiring them to give bond conditioned
for the faithful performance of their duty as such, fixing rates of
storage, and requiring them to keep insured for the benefit of the
owners all grain stored with them, does not apply to elevators
built by a person only for the purpose of storing his own grain,
and not to receive and store the grain of others, and being so
construed, it does not deny the equal protection of the laws to the
owner of an elevator made a public warehouse by it, does not
deprive him of his property without due process of law, does not
amount to a regulation of commerce between the states, and is not
in conflict with the Constitution of the United States.
This case differs in no substantial respect from
Munn v.
Illinois, 94 U. S. 113, and
Budd v. New York, 143 U. S. 517, and
an adherence to the rulings in those cases requires the affirmance
of the judgment of the court below.
Norman Brass, the plaintiff in error, owns and operates a grain
elevator in the Village of Grand Harbor, in the State of North
Dakota. The defendant in error, Louis W. Stoeser, owns a farm
adjoining the village, on which, in the year 1891, he raised about
4,000 bushels of wheat. On September 30, 1891, Stoeser applied to
store a part of his wheat crop for the compensation fixed by
section eleven of chapter 126 of the Laws of North Dakota for the
year 1891, which Brass refused to do unless paid therefor at a rate
in excess of that fixed by the statute. On this refusal, Stoeser
filed in the
Page 153 U. S. 392
District Court of Ramsey County, North Dakota, a petition for an
alternative writ of mandamus. The district court granted an
alternative writ of mandamus, as follows:
"The State of North Dakota to Norman Brass, Respondent:"
"Whereas, the following facts have been made to appear to this
court by the verified petition of the above-named relator, to-wit:
1. That he is the relator in the above-entitled matter; that he
owns and operates a farm containing 540 acres in the vicinity of
the railroad station of Grand Harbor, in the county and state
aforesaid, and during the year 1891 has raised on said farm about
4,000 bushels of grain, principally wheat. 2. That the relator has
not sufficient storage capacity on his farm or elsewhere for said
grain so raised as aforesaid, but is dependent almost wholly upon
the grain elevators and warehouses in the vicinity of said farm for
storage capacity. 3. That fully fifty percent of the grain raised
in said Ramsey County, North Dakota, is dependent for storage
capacity upon the grain elevators and warehouses at the various
towns, villages, and railroad stations in said Ramsey County. 4.
That the respondent, Norman Brass, is now and at all the time
herein stated has owned and operated a grain elevator at the
railroad station of Grand Harbor aforesaid for the purpose of
buying, selling, storing, and shipping grain for profit. 5. That
the relator on the 30th day of September, 1891, hauled fifty-eight
bushels of wheat to the grain elevator of respondent, Norman Brass
at Grand Harbor aforesaid, and tendered the same at said elevator
of said Norman Brass for storage, and requested said Norman Brass
to receive, elevate, insure, and store said grain for twenty days,
and at the time tendered to said Brass two cents per bushel for
compensation for receiving, elevating, insuring, and storing said
grain for twenty days; that said grain, when so tendered as
aforesaid, was dry and in a suitable condition for storage, and
there was in said grain elevator of said Brass at Grand Harbor
aforesaid at said time storage capacity for over twenty-five
thousand bushels of grain not in use and wholly unoccupied. 6. That
said Brass then and there refused to receive said grain for the
purpose aforesaid, and wholly refused to store said grain at said
price.
Page 153 U. S. 393
7. That the relator endeavored to secure storage for said grain
at the only other elevator in operation at said railroad station of
Grand Harbor aforesaid, but said elevator refused to receive
relator's grain, upon the same ground as respondent. 8. That the
relator is informed and believes that the owners of grain elevators
and ware-houses within a radius of fifty miles of Grand Harbor
aforesaid refused to receive grain for storage at said price. Now,
therefore, this Court, in order that justice may be done in this
behalf to him, Louis W. Stoeser, relator, does hereby command and
enjoin you that immediately upon receipt of this writ you do
receive from relator, while your storage capacity at your elevator
herein mentioned is sufficient for that purpose, all grain that may
be tendered you by the relator in a dry and suitable condition for
storage at a rate of compensation not exceeding the following
schedule,
viz., for receiving, elevating, insuring,
delivering, and twenty days' storage, two cents per bushel; storage
rates after the first twenty days, one-half cent per bushel for
each fifteen days or fraction thereof, and shall not exceed five
cents for six months, or that you show cause to the contrary before
this Court at the courthouse in the City of Devil's Lake, Ramsey
County, North Dakota, on the 5th day of October, 1891 at ten
o'clock in the forenoon of said day, or as soon thereafter as
counsel can be heard. And how you have executed this writ make
known to this Court at the time and place aforesaid, and have you
then and there this writ."
"Dated Sept. 30th, 1891."
To which writ appellant made return by answer as follows:
"The return of the respondent to the alternative writ of
mandamus issued in the above-entitled proceeding shows to the
court:"
"1. That the respondent admits the truth of the facts pleaded in
said alternative writ."
"2. For a further return to the said alternative writ, the
respondent alleges that he owns and operates only one grain
elevator in North Dakota or elsewhere; that the said elevator is
the elevator mentioned in said alternative writ, and is situated at
Grand Harbor, a small way station on the line of
Page 153 U. S. 394
the Great Northern Railroad, containing a population of less
than one hundred people; that there are two other elevators owned
and operated by different owners, independently of and in
competition with, each other; that there are about six hundred
grain elevators, flathouses, and warehouses in said State of North
Dakota at which grain is bought and shipped for profit, which said
elevators, warehouses, and flathouses are owned and operated by
over one hundred and twenty-five different owners, independent of
and in competition with, each other; that the owners of said
elevators, warehouses, and flathouses are individuals engaged in
buying and shipping grain, millers who use their elevators to
supply their mills with grain, farmers' shipping associations,
elevator corporations, and individual farmers; that said elevators,
flathouses, and warehouses vary in cost of construction from five
hundred dollars to five thousand dollars, and vary in capacity from
five thousand to fifty thousand bushels; that there are from two to
ten elevators, warehouses, and flathouses operated and owned each
by different owners and operators at every station in North Dakota
at which grain is marketed; that land upon which it is practicable
to erect other elevators at every station in North Dakota at which
grain is marketed is unlimited in area, and can be readily
purchased at prices varying from one dollar and twenty-five cents
per acre to forty dollars per acre; that respondent's said elevator
cost, when constructed and fully equipped, about three thousand
dollars; that the capacity of the same is about 30,000
bushels."
"That respondent's principal business is that of buying wheat at
Grand Harbor, North Dakota, and shipping the same to, and selling
it at, Minneapolis and Duluth, Minnesota, to which business that of
storing grain for third persons has been a mere incident."
"That all grain purchased by respondent at his said elevator is
purchased for the sole purpose of being shipped to and sold at, and
is shipped to and sold at, Minneapolis and Duluth, Minnesota."
"That respondent, in the conduct of his said business, contracts
with millers and other purchasers of grain at said
Page 153 U. S. 395
Minneapolis and Duluth to sell and deliver to said persons at a
future and fixed date, certain quantities of wheat, and operates
and maintains his said elevator for the exclusive purpose of
purchasing grain to fill said contract."
"That in seasons when the grain yield is light, and railroad
facilities are such as to enable grain to be moved rapidly, there
is space and storage capacity in respondent's elevator in excess of
that used by respondent's grain, and particularly when respondent's
contracts for the sale of grain are small, while at other times,
when the yield is enormous, as in the present year, respondent's
contracts are large, and the quantities of grain presented for
shipment are beyond the capacity of the railroads to move, there is
not sufficient storage capacity in respondent's elevator to hold
and store the grain purchased by respondent in the conduct of his
said business."
"That there are located in Minneapolis and Duluth, Minnesota, a
great many corporations, persons, and co-partnerships engaged in a
business known as the 'grain commission' business."
"That those grain commission houses have swarms of agents
traveling throughout the State of North Dakota, going from town to
town and farm to farm, purchasing grain from farmers in some
instances, and in others soliciting farmers to ship their grain to
said houses at Minneapolis or Duluth, Minnesota, to be by the
latter sold on commission."
"That none of said grain commission houses have or own any
storage capacity in North Dakota."
"That if chapter 126 of the Laws of 1891 is valid, and its
effect is to compel respondent to receive all grain that may be
tendered to him for storage by grain commission men, farmers, grain
speculators, and others, without reference to the necessities or
condition of respondent's business at any particular time, the
entire storage capacity of respondent's elevator will be exhausted
in storing grain for third persons, and the principal business of
the respondent, to conduct which his capital was invested in said
elevator, will be utterly ruined and annihilated for want of
storage capacity to contain wheat purchased by him to fill
contracts made by him in the conduct
Page 153 U. S. 396
of his said business, and respondent subjected to suits for
damages for nonfulfillment of his said contracts."
"That the relator only offered to pay respondent for the service
which he requested him to perform the rate fixed by chapter 126 of
the Laws of 1891 -- that is, two cents per bushel; that respondent
refused to perform the service for less than two and one-half cents
per bushel."
"That respondent refuses to comply with the provisions of said
chapter 126 on the ground that it abridges his privileges and
immunities as a citizen of the United States; that it deprives him
of his liberty and property without due process of law, and denies
to him the equal protection of the laws, and amounts to a
regulation of commerce among the states."
"That for thirteen years last past, the rate charged for the
storage of grain has been uniform at all elevators, flathouses, and
warehouses in North Dakota, and during that time did not exceed the
following schedule: for receiving, elevating, insuring, delivering,
and fifteen days' storage, two and one-half cents per bushel; after
the first fifteen days, one-half cent per bushel for each fifteen
days or part thereof, but not to exceed five cents per bushel for
six months."
"That the average farm in North Dakota does not exceed in area
160 acres; that the average yield in grain of a quarter section of
land in North Dakota does not exceed twenty-five hundred bushels;
that a granary sufficient in size to safely and securely store
twenty-five hundred bushels of grain can be erected on any farm in
North Dakota at a cost not exceeding one hundred and fifty
dollars."
"That the business of respondent, and all other persons, firms,
and corporations engaged in the business of operating grain
elevators, warehouses, and flathouses in North Dakota and the
manner in which said business is conducted is not in any manner
unwholesome or deleterious to the health, morals, welfare, or
safety of the community or society."
"That the railroad and warehouse commissioners of North Dakota,
on page 33 of their annual report to the governor for 1890,
said:"
"In view of the fact that, after thorough investigation, the
board deem the charges allowed by section 22, chapter
Page 153 U. S. 397
187 (Laws 1890), and also section 10 of said chapter, as
unreasonable, the following rules of storage are recommended: 1,
for receiving, elevating, insuring, delivering, and fifteen days'
storage, two and one-half cents per bushel; 2, after fifteen days,
one-half cent per bushel for each fifteen days or part thereof, but
not to exceed five cents for six months."
"That the rates referred to by said commissioners as
unreasonable were less than the rate recommended by said
board."
"That the respondent denies that the legislature has any power
whatever to say whether he shall rent the bins in his elevator or
not, and wholly denies the power of the legislature to say what he
shall charge for the use of his said elevator or the bins
therein."
"That since the enactment of section nine of chapter 126 of the
Laws of 1885, the amount of grain shipped directly by farmers
without the intervention of elevators, warehouses, or flathouses
has been increasing, and in 1890, as respondent is informed and
believes, nearly fifty percent of the entire grain product of North
Dakota was shipped to Minneapolis and Duluth, Minnesota, by
farmers; that the amount of grain shipped in that manner is
steadily increasing from year to year."
"That pursuant to section 7 of chapter 122, Laws of 1890, the
railroad commissioners adopted and published the following rules to
govern the distribution of cars and other freight, which rules are
now in operation in said State of North Dakota, to-wit:"
"State of North Dakota"
"Office of Commissioners of Railroads"
" Rules for the distribution of cars between stations and
shippers:"
" 1. In distributing cars to stations for grain loading, they
shall be distributed according to the daily average shipments from
such stations."
" 2. In distributing cars to shippers for grain loading at
stations, agents shall first fill each shipper's order for one car
to each. After this is done, the balance of the cars shall be
distributed among shippers according to the amount of grain in
sight offered for shipment by each shipper. "
Page 153 U. S. 398
" 3. Parties desiring to load grain on track shall be furnished
cars, and shall be allowed for loading time twenty-four hours from
the time the car is set on the side track to complete loading, and
furnish shipping directions. In case shipper fails to complete
loading or furnish shipping directions within twenty-four hours,
then in such case the railway company may collect upon such cars
$3.00 rental for each and every day or part of a day which such
cars are delayed after twenty-four hours."
"The above rule as to time and rental charges shall also apply
to grain delayed in unloading on track."
"In connection with said rules in said report, said
commissioners said:"
"We believe that the railroads have labored faithfully to supply
cars to shippers in accordance with these rules, and so far as
their ability to supply the demand permitted, cars have been
distributed in conformity therewith. From September 15 to December
15, the demand for cars is double the ability of the roads to
supply, and as a necessary consequence delay in supplying cars must
ensue. In all cases of complaint as to failure to get cars
investigated this year, this has been the case, and cars have been
supplied as soon as possible by the railroad companies."
" The liberal policy of the railroads in the distribution of
cars adopted this year has been of great benefit to the farmers of
North Dakota."
"Wherefore, respondent demands judgment quashing the alternative
writ of mandamus, dismissing this proceeding, and for his costs and
disbursements laid out and expended in this action."
To this return Stoeser interposed a general demurrer, which was
sustained, and, Brass electing in open court to stand on his
return, a peremptory writ of mandamus was allowed. From this
judgment an appeal was taken to the Supreme Court of Dakota, which
court affirmed the order and judgment of the district court and
remitted the record to that court. On May 28, 1892, final judgment
was entered in the district court making the judgment of the
supreme court the judgment of the district court, and awarding a
peremptory writ
Page 153 U. S. 399
of mandamus to execute that judgment. Whereupon Brass sued out a
writ of error to this Court.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
In the thirteenth article of the Constitution of the State of
Illinois, adopted in 1870, all elevators or storehouses where grain
or other property is stored for a compensation, whether the
property stored by kept separate or not, were declared to be public
warehouses, and it was made the duty of the General Assembly to
pass all necessary laws to give full effect to that article of the
constitution. By an Act approved April 25, 1871, and entitled "An
act to regulate public warehouses and the warehousing and
inspection of grain, and to give effect to article 13 of the
constitution of the state," the Legislature of Illinois provided
that those who conducted such public warehouses located in cities
containing not less than one hundred thousand inhabitants should
procure licenses and should give bond conditioned for compliance
with the law, prescribed maximum rates for storing and handling
grain, and declared certain penalties for the failure to procure
licenses.
The validity of this law was upheld by the Supreme Court of
Illinois.
Munn v. People, 69 Ill. 80. And that judgment
was affirmed by this Court.
Munn v. Illinois, 94 U. S.
113.
In June, 1888, the Legislature of the State of New York passed
an act entitled
"An act to regulate the fees and charges for elevating,
trimming, receiving, weighing, and discharging grain by means of
floating and stationary elevators and warehouses in this
state,"
whereby maximum charges were fixed for elevating, receiving,
Page 153 U. S. 400
weighing, and discharging grain when the business was carried on
in a city containing 130,000 inhabitants or upwards, and penalties
imposed for disregard of the provisions of the statute. The owner
of an elevator in the City of Buffalo was indicted, found guilty,
and sentenced, in the Superior Court of Buffalo, for exacting
charges for elevating grain in excess of the statutory rates. An
appeal was taken to the Court of Appeals of the State of New York,
which affirmed the judgment of the Superior Court of Buffalo.
People v. Budd, 117 N.Y. 1, 22 N.E. 670, 682 . A writ of
error brought the case to this Court, where the judgment of the
court of appeals was affirmed.
Budd v. New York,
143 U. S. 517.
The Legislature of the State of North Dakota, by an Act approved
March 7, 1891, and entitled
"An act to regulate grain warehouses and the weighing and
handling of grain, and defining the duties of the railroad
commissioners in relation thereto,"
enacted in the fourth section thereof that
"all buildings, elevators, or warehouses in this state erected
and operated or which may hereafter be erected and operated by any
person or persons, association, copartnership, corporation, or
trust for the purpose of buying, selling, storing, shipping, or
handling grain for profit are hereby declared public warehouses,
and the person or persons, association, co-partnership, or trust
owning or operating said building or buildings, elevator or
elevators, warehouse or warehouses which are now or may hereafter
be located or doing business within this state as above described,
whether said owners or operators reside within this state or not,
are public warehousemen within the meaning of this act, and none of
the provisions of this act shall be construed so as to permit
discrimination with reference to the buying, receiving, and
handling of grain of standard grades, or in regard to parties
offering such grain for sale, storage, or handling at such public
warehouses while the same are in operation."
And in the fifth section:
"That the proprietor, lessee, or manager of any public warehouse
or elevator in this state shall file with the railroad
commissioners of the state a bond to the State of North Dakota,
with good and sufficient sureties,
Page 153 U. S. 401
to be approved by said commissioners of railroads, in the penal
sum of not less than $5,000 nor more than $75,000, in the
discretion of said commissioners, conditioned for the faithful
performance of duty as public warehousemen and a compliance with
all the laws of the state in relation thereto,"
and in the eleventh section thereof:
"The charges for storing and handling of grain shall not be
greater than the following schedule: for receiving, elevating,
insuring, delivering, and twenty days' storage, two cents per
bushel. Storage rates, after the first twenty days, one-half cent
for each fifteen days or fraction thereof, and shall not exceed
five cents for six months. The grain shall be kept insured at the
expense of the warehousemen for the benefit of the owner."
And by the twelfth section it is provided that:
"Any person, firm, or association or any representative thereof
who shall fail to do and keep the requirements as herein provided
shall be deemed guilty of a misdemeanor and shall, on conviction
thereof, be subject to a fine of not less than two hundred dollars
nor more than one thousand dollars, and be liable in addition
thereto to imprisonment for not more than one year in the state
penitentiary at the discretion of the court."
In October, 1891, in the District Court of the Second Judicial
District of the State of North Dakota, in proceedings, the nature
of which sufficiently appears in the previous statement of facts,
the validity of this statute was sustained, and the judgment of
that court was, on error, duly affirmed by the supreme court of the
state.
Brass v. North Dakota, 52 N.W. 408.
In the cases thus brought to this Court from the states of
Illinois and New York, we were asked to declare void statutes
regulating the affairs of grain warehouses and elevators within
those states, and held valid by their highest courts, because it
was claimed that such legislation was repugnant to that clause of
the eighth section of Article I of the Constitution of the United
States, which confers upon Congress power to regulate commerce with
foreign nations and among the several states, and to the Fourteenth
Amendment, which ordains that no state shall deprive any person of
life, liberty, or property
Page 153 U. S. 402
without due process of law, nor deny to any person within its
jurisdiction the equal protection of the laws.
In the case now before us, the same contentions are made, but we
are not asked to review our decisions made in the previous cases.
Indeed, their soundness is tacitly admitted in the briefs and
argument of the counsel of the plaintiff in error. But it is said
that those cases arose out of facts so peculiar and exceptional,
and so different from those of the present case, as to render the
reasoning there used, and the conclusions reached, now
inapplicable.
The concession, then, is that, upon the facts found to exist by
the Legislatures of Illinois and New York, their enactments were by
the courts properly declared valid, and the contention is that the
facts upon which the legislature of North Dakota proceeded, and of
which we can take notice in the present case, are so different as
to call for the application of other principles, and to render an
opposite conclusion necessary.
The differences in the facts of the respective cases, to which
we are pointed, are mainly as follows: in the first place, what may
be called a geographical difference is suggested in that the
operation of the Illinois and New York statutes is said to be
restricted to the City of Chicago in the one case and to the cities
of Buffalo, New York, and Brooklyn, in the other, while the North
Dakota statute is applicable to the territory of the entire
state.
It is indeed true that while the terms of the Illinois and New
York statutes embrace in both cases the entire state, yet their
behests are restricted to cities having not less than a prescribed
number of inhabitants, and that there is no such restriction in the
North Dakota law.
Upon this it is argued that the statutes of Illinois and New
York are intended to operate in great trade centers, where, on
account of the business' being localized in the hands of a few
persons in close proximity to each other, great opportunities for
combinations to raise and control elevating and storage charges are
afforded, while the wide extent of the State of North Dakota and
the small population of its country towns and villages are said to
present no such opportunities.
Page 153 U. S. 403
The considerations mentioned are obviously addressed to the
legislative discretion. It can scarcely be meant to contend that
the statutes of Illinois and New York, valid in their present form,
would become illegal if the lawmakers thought fit to repeal the
clauses limiting their operation to cities of a certain size, or
that the statute of North Dakota would at once be validated if one
or more of her towns were to reach a population of 100,000, and her
legislature were to restrict the operation of the statute to such
cities.
Again, it is said that the modes of carrying on the business of
elevating and storing grain in North Dakota are not similar to
those pursued in the eastern cities; that the great elevators used
in transshipping grain from the lakes to the railroads are
essential, and that those who own them, if uncontrolled by law,
could extort such charges as they pleased. And great stress is laid
upon expressions used in our previous opinions, in which this
business, as carried on at Chicago and Buffalo, is spoken of as a
practical monopoly, to which shippers and owners of grain are
compelled to resort. The surroundings in an agricultural state,
where land is cheap in price and limitless in quantity, are thought
to be widely different, and to demand different regulations.
These arguments are disposed of, as we think, by the simple
observation, already made, that the facts rehearsed are matters for
those who make, not for those who interpret, the laws. When it is
once admitted, as it is admitted here, that it is competent for the
legislative power to control the business of elevating and storing
grain, whether carried on by individuals or associations, in cities
of one size and in some circumstances, it follows that such power
may be legally exerted over the same business when carried on in
smaller cities, and in other circumstances. It may be conceded that
that would not be wise legislation which provided the same
regulations in every case, and overlooked differences in the facts
that called for regulations. But, as we have no right to revise the
wisdom or expediency of the law in question, so we would not be
justified in imputing an improper exercise of discretion to the
Legislature of North Dakota. It may be true that in the
Page 153 U. S. 404
cases cited, the judges who expressed the conclusions of the
court entered at some length into a defense of the propriety of the
laws which they were considering, and that some of the reasons
given for sustaining them went rather to their expediency than to
their validity. Such efforts on the part of judges to vindicate to
citizens the ways of legislatures are not without value, though
they are liable to be met by the assertion of opposite views as to
the practical wisdom of the law, and thus the real question at
issue -- namely, the power of the legislature to act at all -- is
obscured. Still, in the present instance, the obvious aim of the
reasoning that prevailed was to show that the subject matter of
these enactments fell within the legitimate sphere of legislative
power, and that, so far as the laws and Constitution of the United
States were concerned, the legislation in question deprived no
person of his property without due process of law, and did not
interfere with federal jurisdiction over interstate commerce.
Another argument advanced is based on the admitted allegation
that the principal business of the plaintiff in error in connection
with his warehouse is in storing his own grain, and that the
storage of the grain of other persons is, and always has been, a
mere incident, and it is said that the effect of this law will be
to compel him to renounce his principal business, and become a mere
warehouseman for others. We do not understand this law to require
the owner of a warehouse, built and used by him only to store his
own grain, to receive and store the grain of others. Such a duty
only arises when he chooses to enter upon the business of elevating
and storing the grain of other persons for profit. Then he becomes
subject to the statutory regulations, and he cannot escape them by
asserting that he also elevates and stores his own grain in the
same warehouse. As well might a person accused of selling liquor
without a license urge that the larger part of his liquors was
designed for his own consumption, and that he only sold the surplus
as a mere incident.
Another objection to the law is found in its provision that the
warehouseman shall insure the grain of others at his own expense.
This may be burdensome, but it affects alike all
Page 153 U. S. 405
engaged in the business, and if it be regarded as contrary to
sound public policy, those affected must instruct their
representatives in General Assembly met to provide a remedy.
The plaintiff in error, in his answer to the writ of mandamus,
based his defense wholly upon grounds arising under the
constitution of the state and of the United States. We are limited
by this record to the questions whether the Legislature of North
Dakota, in regulating by a general law the business and charges of
public warehousemen engaged in elevating and storing grain for
profit, denies to the plaintiff in error the equal protection of
the laws, or deprives him of his property without due process of
law, and whether such statutory regulations amount to a regulation
of commerce between the states. The allegations and arguments of
the plaintiff in error have failed to satisfy us that any solid
distinction can be found between the cases in which those questions
have been heretofore determined by this Court and the present one.
The judgment of the court below is accordingly
Affirmed.
MR. JUSTICE BREWER, with whom concurred MR. JUSTICE FIELD, MR.
JUSTICE JACKSON, and MR. JUSTICE WHITE, dissenting.
I dissent from the opinion and judgment of the Court in this
case. Reliance is placed in that opinion on
Munn v.
Illinois, 94 U. S. 113, and
Budd v. New York, 143 U. S. 517. In
the dissenting opinion I filed in the latter case, I expressed, so
far as was necessary, my views in reference to the general
propositions laid down in the two cases, and I do not desire to
repeat what I there said. It is a significant fact that in
Sinking-Fund Cases, 99 U. S. 700,
99 U. S. 747,
and in
Wabash, St.Louis & Pacific Railway v. Illinois,
118 U. S. 557,
118 U. S. 569,
Mr. Justice Bradley and Mr. Justice Miller, who concurred in the
judgment in
Munn v. Illinois, each sought to limit and
qualify the scope of the language used by the Chief Justice in that
case. These are the words of Mr. Justice Bradley:
"The inquiry there was as to the extent of the police power
Page 153 U. S. 406
in cases where the public interest in affected, and we held that
when an employment or business becomes a matter of such public
interest and importance as to create a common charge or burden upon
the citizen -- in other words, when it becomes a practical
monopoly, to which the citizen is compelled to resort, and by means
of which a tribute can be exacted from the community -- it is
subject to regulation by the legislative power."
And this is the language of Mr. Justice Miller, delivering the
opinion of the Court:
"And in that case, the court was presented with the question,
which it decided, whether anyone engaged in a public business, in
which all the public had a right to require his service, could be
regulated by acts of the legislature in the exercise of this public
function and public duty, so far as to limit the amount of charges
that should be made for such service."
I desire, however, specially to notice the facts disclosed by
this record, and to point out to what extent the decision of this
Court now goes. The case, coming from the Supreme Court of the
State of North Dakota, must be determined upon the record as it is
presented. Nothing can be added to or taken from the facts, as
established by that record. The case was heard and determined upon
a demurrer to the return made by the defendant to the petition and
writ of mandamus, and of course, upon such demurrer, the facts
stated in the return are to be taken as true. From that return it
appears that along the line of the Great Northern Railroad, in the
State of North Dakota, there are about 600 grain elevators; that at
Grand Harbor, a small way station on the line of that road, there
are three elevators, one of them being that owned by the defendant;
that defendant's elevator is a small one, with a capacity of 30,000
bushels, and costing about $3,000. For aught that appears, the
elevator was on the private property of the defendant, though
contiguous to the railroad and at the railroad station. It is
further admitted:
"That respondent's principal business is that of buying wheat at
Grand Harbor, North Dakota, and shipping the
Page 153 U. S. 407
same to, and selling it at, Minneapolis and Duluth, Minnesota,
to which the business of storing grain for third persons is and
always has been a mere incident."
"That all grain purchased by respondent at his said elevator is
purchased for the sole purpose of being shipped to and sold at, and
is shipped to and sold at, Minneapolis and Duluth, Minnesota."
"That respondent, in the conduct of his said business, contracts
with millers and other purchasers of grain at said Minneapolis and
Duluth to sell and deliver to said persons at a future and fixed
date, certain quantities of wheat, and operates and maintains his
said elevator for the exclusive purpose of purchasing grain to fill
said contracts."
"That in seasons when the grain yield is light, and railroad
facilities are such as to enable grain to be moved rapidly, there
is space and storage capacity in respondent's elevator in excess of
that used by respondent's grain, and particularly when respondent's
contracts for the sale of grain are small, while at other times,
when the yield is enormous, as in the present year, respondent's
contracts large, and the quantities of grain presented for shipment
are beyond the capacity of the railroads to move, there is not
sufficient storage capacity in respondent's elevator to hold and
store the grain purchased by respondent in the conduct of his said
business."
"That if chapter 126 of the Laws of 1891 is valid, and its
effect is to compel respondent to receive all grain that may be
tendered to him for storage by grain commission men, farmers, grain
speculators, and others, without reference to the necessities or
condition of respondent's business at any particular time, the
entire storage capacity of respondent's elevator will be exhausted
in storing grain for third persons, and the principal business of
respondent, to conduct which his capital was invested in said
elevator, will be utterly ruined and annihilated for want of
storage capacity to contain wheat purchased by him to fill
contracts made by him in the conduct of his said business, and
respondent subjected to suits for damages for nonfulfillment of his
said contract."
The rates which were established by law were as follows:
Page 153 U. S. 408
"1. For receiving, elevating, insuring, delivering, and fifteen
days' storage, two and one-half cents per bushel."
"2. After fifteen days, one-half cent per bushel for each
fifteen days, or part thereof, but not to exceed five cents for six
months."
It appears from these admissions that the principal business of
defendant was that of buying wheat and shipping it to Minneapolis
and Duluth for sale, and that he operated and maintained his
elevator for the exclusive purpose of purchasing grain to fill his
contracts, and while at the time the elevator was not full, and
there was room for the storage of the grain tendered by the
petitioner, and the defendant had at times used vacant space in his
elevator for the storage of grain of others, yet such use was a
mere incident to, and subordinate to, his principal business of
buying and selling grain, for which principal business he
exclusively maintained and operated his elevator.
Now my first objection is that by this decision, a party is
compelled by the mandate of the Court to engage in a business which
he never intended to engage in, and which he does not desire to
engage in, to-wit, the business of maintaining a public elevator.
His business is that of buying and selling grain, and he operates
and maintains the elevator, which he owns, for the exclusive
purpose of carrying on that business. That he may have sometimes
accommodated his neighbors by the use of his elevator for the
storage of their grain, and thus, to a limited extent, engaged in
that business, does not change the fact, as admitted, that his
principal business was that of buying and selling, and that he
operated and maintained that elevator exclusively for the carrying
on of that business, or the other admitted fact that, if he is
compelled, as he is compelled by this mandate, to receive grain, as
tendered so long as he has storage capacity unoccupied in his
elevator, his principal business, and that for which he built the
elevator, will be utterly ruined and destroyed.
The question is not whether, if he should receive and store in
his elevator grain for others, he might not so far bring himself
within the scope of the law as to be deemed, for that
Page 153 U. S. 409
transaction, engaged in the business of maintaining a public
elevator, and thus bound by the charges fixed by statute, but
whether, when he maintains an elevator exclusively for his own
business, the fact that at times he has used vacant room in it for
the storage of the grain of other persons compels him to receive
grain when tendered, irrespective of the injury which it does to
his own business. And it is admitted that at the time of this
tender, there was not sufficient storage capacity in his elevator
to hold and store the grain purchased by him in the conduct of his
business, and this is a matter of no trifling moment to one engaged
in the business of buying and selling grain. He cannot know in
advance when grain will be tendered at a price which will justify
his purchase with a view to profit. The fact that today there may
be storage capacity does not prove that tomorrow he may not need
the entire capacity of his elevator, and yet if because today there
is room in his elevator, he is bound to receive any grain that
shall be tendered, he may tomorrow be unable to make purchase of
the offered grain. It is a matter of common knowledge that grain is
not put into and taken out of an elevator in an instant, and if
once deposited, the owner cannot be compelled to remove it merely
for the accommodation of the warehouseman, but may leave it there
indefinitely, so long as he pays the legal charges. The petition
was for a writ of mandamus commanding the defendant, "so long as
the capacity of his said elevator is sufficient for the purpose, to
store such grain as may be tendered to him by the relator," and the
decree of the court was that the "writ issue as prayed for," and
that is the decision which is affirmed by this Court.
I dissent, in the second place, because the facts show, in the
words of Mr. Justice Bradley, no "practical monopoly, to which the
citizen is compelled to resort, and by means of which a tribute can
be exacted from the community." Along the line of this single road,
within the limits of this state, there are about 600 of these
elevators, owned and operated by over 125 different persons,
varying in cost of construction from $500 to $5,000. At every
station there is land purchasable by any one at prices varying
Page 153 U. S. 410
from $1.25 to $40 per acre, and a granary sufficient to store
the average product of an ordinary Dakota farm can be erected at a
cost of not exceeding $150. So it is that when any farmer or other
individual can at a cost of less than $200 provide himself with all
the facilities for storing and shipping the entire product of an
ordinary farm; when, along the line of a single railroad, there are
600 elevators already constructed, owned, and operated by 125
different persons; when at every station at which grain is
marketed, there are from two to ten such elevators, it is held that
there exists a monopoly such as justifies control by the public of
the prices at which grain shall be stored in any one of these many
elevators. If this be a monopoly justifying public control of
prices for service, I am at a loss to perceive at what point the
fact of monopoly will cease and freedom of business commence, for
obviously elevators along the line of that road were as plentiful
as other institutions of industry, and as easily and cheaply
constructed, and therefore savoring no more of monopoly.
I dissent, in the third place, because by this law the elevator
man is bound not merely to receive, store, and discharge the grain
which is tendered to him, but also to insure and pay the cost of
insurance, it matters not what that cost may be, whether more or
less than he receives for the whole service. I do not care to
enlarge upon this matter. If the legislature can compel a party,
though confessedly to the disadvantage, injury, and even
destruction of his own special business of buying and selling
grain, to receive and store grain, for whoever may demand it, in an
elevator which he is maintaining and operating for the exclusive
carrying on of his own business at any price which it sees fit to
allow, and at the same time compel him to advance the money to
insure the property thus forced upon him, I can only say that it
seems to me that the country is rapidly traveling the road which
leads to that point where all freedom of contract and conduct will
be lost. For these reasons, thus briefly stated, I am constrained
to dissent from this opinion and judgment.
I am authorized to say that MR. JUSTICE FIELD, MR. JUSTICE
JACKSON, and MR. JUSTICE WHITE concur in this dissent.
