State ex inf. Major v. Carlisle

FERRISS, J. — Action by the State, at the information and upon the relation of the Attorney-General, to recover- from the respondent the sum of $5031.50 fees, for inspecting 10>,063- cars of hay in Kansas City, Missouri, consigned to respondent, at the rate of fifty cents a car, the fee established by the rules and regulations of the Railroad and Warehouse Commissioners, pursuant to the Act of the Legislature of 1905 (Laws 1905, p. 171; now Secs. 6832 and 6833, R. S. 1909), as follows: “Sec. 6832. The board of railroad and warehouse commissioners is required to- supervise the inspection and the weighing of all hay at -points within this State, — 256 — for storage or sale, where state grain inspection or state hay inspection has been established or may hereafter be established by said commissioners. “Sec. 6833. The board of railroad and warehouse commissioners are hereby empowered to prescribe such rules and regulations for the enforcement of the provisions of the preceding section as will as nearly as possible conform to the requirements of law now in force regarding the state inspection and weighing of grain, requiring such a bond of inspectors and weighers of hay for the faithful performance of duty as in the judgment of said commissioners is sufficient, and prescribing such fees for inspection and weighing of hay as shall be reasonable. The penalties now provided by this article for a failure to comply with the law regarding state grain inspection shall also apply to hay inspection as: by the- preceding section required. ’ ’ The petition filed by the Attorney-General states: “Defendant is and was at all dates herein mentioned engaged in the business of buying and selling hay in Kansas City, Missouri, under the name and style of Carlisle Commission Company. “John W. Knott, Frank A. Wightman and Rube Oglesby are and were at the dates herein mentioned the duly elected and qualified members of the Board of Railroad and Warehouse Commissioners' of the State of Missouri. “Prior to the passage and approval of the Act of the Legislature (Session Law® 1905', at page 171), said board had designated Kansas City, St. Joseph and Kansas City as places where, grain should be inspected, and for a long time prior thereto it had been the custom and practice of said board to inspect grain by its appointees, in cars, outside of warehouses, as the cars arrived to be delivered to consignees. “That said board, in pursuance of the powers to them given by the statutes of Missouri in such cases — 257 — made and provided, formulated and made proper rules and regulations for the inspection of hay and in such rules and regulations fixed the charge for the inspection of hay at Kansas City at the price of fifty cents per car; that said board further, in pursuance of the powers vested in it by the laws of the State of Missouri, appointed a chief inspector, deputy chief inspectors "and the assistant inspectors for the inspection of hay at Kansas City and other points, throughout the State of Missouri, and in pursuance of said rules and regulations formulated by said board, as aforesaid, said inspectors inspected from November, 1905, to and including March, 1909', ten thousand and sixty-three cars of hay consigned to defendant at Kansas City, a particular description of which said cars appears from a schedule hereto annexed, marked Exhibit ‘A’ and made a part hereof.. “The -charges for the inspection of said hay as fixed by said Board of-Railroad and Warehouse Commissioners were and are reasonable, just and legal. “Payment of said inspection charges has been demanded from defendant by plaintiff, and payment refused. “Wherefore, plaintiff asks judgment for the sum of five thousand thirty-one dollars and fifty cents, together with interest and costs.” To this petition respondent demurred on the following grounds: “First. That this court has no jurisdiction over the subject-matter of this actipn, in that the statutes under which this action is brought are unconstitutional and void as delegating power unto the Board of Railroad and Warehouse Commissioners, contrary to the provisions of section 1,.article 4, Constitution of Missouri. ‘ ‘ Second. That the petition filed herein by plaintiff does not state facts sufficient to constitute a cause of action against defendant.” — 258 — The demurrer was sustained, and, after due proceedings, the cause comes here upon the State’s appeal. Respondent urges two propositions: (1) That section 6832, Revised Statutes 1909, is unconstitutional and void as a delegation of legislative power; (2) that the petition fails to state a cause of action in that it fails to allege that the hay inspected was going into or out of a public warehouse. The appellant says' nothing upon the contention that the Hay Inspection Act is void. Upon the contention that the act applies only to hay in public warehouses, the appellant insists that the. Act of 1905 contains “the plain legislative intent, to provide for the inspection of hay generally, without any limitation or qualification whatever.” It is stated in appellant’s brief that the trial court sustained the demurrer on the theory that under the law the inspection is limited to hay going into or out of a public warehouse. I. The Hay Inspection Act of 1905 was passed as an amendment to the general Grain Inspection Law (Art. 3, chap. 117, R. S. 1899), under the following title: • “An Act to amend Article 3 of Chapter 117 of the Revised Statutes of Missouri, 1899', by adding two new sections thereto, providing for a state inspection of hay, to be known as section 7681a and 7681b.” There is no provision in the article amended requiring hay to be inspected. The amendatory Act of 1905 does not, except by inference, require such inspection. The first'section (Sec. 6832, R. S. 1909) provides that the board shall “supervise” the inspection of hay. The second section (Sec. 6833, R. S. Í9091) provides that the board shall make rules and regulations “for the enforcement of the provisions of the preceding section;” that is, rules and regulations for super — 259 — vising the inspection of hay. It thus appears that while the Legislature attempted to provide for the supervision of hay inspection, it did not require the inspection itself. With reference to the inspection of grain, the law requires, such inspection in the explicit terms of section 6780', Revised Statutes 1909; also, by the explicit terms of section 6828, Revised Statutes 1909, the law requires grain to be weighed. In the absence of any provision of law requiring hay to be inspected, we must hold that tbe Board of Railroad and Warehouse Commissioners have no power to enforce hay inspection. II. The petition in this ease alleges that the board had designated Kansas City as a place where grain should be inspected. Section 6832 provides for the supervision of hay inspection at points “where state grain inspection or state hay inspection has been established or may hereafter be established by said commissioners.” In Merchants’ Exchange v. Knott, 212 Mo. 616, we held that the Legislature could not delegate to the Board of Commissioners the power to determine where and when inspection should be established, and, so holding, declared void the Act of 1907 (P. 286, Session Laws 1907), which authorized the board to establish inspection at such points as in the opinion of such board should be necessary. The Act of 1905, under consideration, if it be construed to authorize the board to determine the points where grain or hay shall be inspected, falls within this objection, because it is made to depend upon the opinion of the board whether or not hay shall be liable to inspection at any given point; that is to say, the exercise of the police power of the State in this regard is delegated to the board. Under our ruling in the. Knott Case, this cannot be done, and the act of the Legislature which attempts such delegation of power is void. — 260 — .It is interesting and instructive to consider, how this idea of delegating to the commissioners power to determine where inspection shall be established got into the statutes. The first general law covering grain inspection was passed in-1889. [Art. 3, chap-. 87, R. S-. 1889'.] Section 5607 of that article defines public warehouses as embracing all warehouses, elevators and granaries in which is stored grain in bulk for different owrters. Section 5612 provides that all grain received in public warehouses shall be inspected. By these two sections the law required all public warehouses to have grain inspection. The Law of 1889 provides for the appointment of inspectors, and defines their duties, contemplating such a force of inspectors as might be necessary to make the law effective. In 1898. the Legislature changed the law defining public warehouses by repealing section 5607 of the Revision of 18891 and enacting a new section which limited public warehouses to “all buildings, elevators or warehouses wherever state grain inspectors may be established by the State Board of Railroad and Warehouse Commissioners.” Evidently the object of this change was to protect warehousemen at points where there were no inspectors from prosecution for failing to inspect. Under this amendment, the owner of a public warehouse would not be liable to the law until and unless inspectors should be established at that point. In printing this Act of 1893 in the Session Laws, the Secretary of State apparently conceived the idea that the word “inspectors” was erroneous. He therefore bracketed the word “inspection” as a substitute for “inspectors,” a.s explained.in the memoranda published at the end of such Session Laws. The effect of this change of words was to imply in the board power to determine the points where inspection should be had, whereas the law as passed by the Legislature gave the board power only to establish inspectors at various points where — 261 — public warehouses existed. Iu preparing- the Revision of 1899, the revisors adopted the bracketed word, and section 7625 of that revision gives the board the apparent power by implication to determine the points for inspection. In 1907 the Legislature, in terms, gave the board this power to determine the points for grain inspection. [Session Laws 1907, p. 286.] That act was held void, as stated above, in the Knott case. Following this decision, the revisors for 1909, on the0 theory that the original law was still in force, in view of the fact that the amendment of 1907' was held to be void, incorporated in the present revision the section as it stood in the Revision of 1899'; so that, asi the law (section 6775) stands, to-day in the present revisions, we have a power implied to exist in the board which was never intended by the Act of 1898, from whence the section is derived, which power we have held could not be delegated to the board. If we disregard the word “inspection,” interpolated and bracketed by the Secretary .of State in the Act of 1898, as we should do, and disregard also' the acts of the revisors of the two subsequent revisions of 1899 and 1900' in adopting the bracketed word in place of the word “inspectors,” as we should do, then, under the law as enacted in 1889, and as it was in fact amended in 1893, the board has been given no power to fix and determine the points of inspection, but grain in all public warehouses, au points where inspectors have been established, is subject to inspection. Coming back to the hay inspection Act of 1905, it is apparent that the power attempted to be given in section 6832, Revised Statutes 1909, to the board to supervise the inspection of hay is made to depend on the power assumed to belong to the board to determine the points for grain or hay inspection — a power, however, which has never been in fact given to the board, and which the Legislature, as we have decided, could not delegate to the board. — 262 — We, therefore, hold the Hay Inspection Act of 1905 void and of no effect. As the above conclusions dispose of the ease, we will not discuss other points, suggested in the briefs. The judgment is affirmed. All concur.