State ex rel. Dawson v. Atchison, Topeka & Santa Fe Railway Co.

Johnston, C. J.

(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*366píete charge of the inspection and weighing of grain with incidental regulation of warehouses in which it may be stored. It was the manifest purpose of the legislature that the producers and dealers, in grain needed protection, and so provision was made to establish standard grades by which different qualities of grain might be designated and also that the grain designed for sale or storage should be inspected, its quality and weight determined, and its grade fixed, to enable the seller to obtain the real value of the grain sold and so that the purchaser may know what he is buying. It tends to standardize and give credit to the grain products of the state, protects the reputation of its grain markets, and necessarily will tend to secure better prices for the producer. To my mind the purpose of the legislature was not to confine inspection to public warehouses or to cases where it was requested. The statute is not so limited. The first section of the act expressly provides that there shall be inspection at all railroad terminals, at all public warehouses, at all other points where the authorized inspection fees will pay the expense of inspecting and-weighing the grain handled at such points, and at all other places where inspection is requested and an arrangement can be made that the officers of the state will accept, as full compensation, the fees derived from the business at such points. The provision for inspection at public warehouses is explicit, but the statute is equally explicit that there shall be inspection at the three other classes of places mentioned. The law applies to every railroad terminal in the state and compels inspection there although there may be no public warehouse at such terminal. Much grain may be handled and disposed of at terminal markets without passing through public warehouses, and the obvious purpose of the act was to require inspection where grain was sold or stored at this and .all other places named in the act. Many of the provisions of *367the law are incompatible with the theory of invited inspection. The duties imposed upon the chief inspector are mandatory in character and the language used does not indicate that he is only to act at the option of dealers or at public elevators alone. He is required to supervise the inspection of grain at all the places provided for in the act. He must establish rules and regulations, not only for the management of public warehouses, but also for the supervising, handling, inspecting, weighing, and storage of grain. Another provision which is state-wide in its application and is not limited to public warehouses or to invited inspection is that he is required to “investigate all complaints of fraud or oppression in the grain trade, and correct the same, so far as may be in his power.” (Laws 1907, ch. 222, § 3.) This is an important function, and manifestly is to be exercised in every branch of the grain trade, and especially as to the inspection and weighing of grain sold or stored within the state.

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, *368or wagons. In section 14 of the act it' is provided that the officers of the grain department shall have exclusive control of the weighing and inspection of grain at all the places where inspection or weighing is established, namely, at all railroad terminals, public warehouses, self-supporting places, and points where officers will accept the statutory fees for the work done. How can they have exclusive control if they must wait for an invitation before they can act? It was surely not intended that the state should keep a corps of officers at great expense waiting for permission to inspect and whose authority should be subject to the whims of dealers.

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 *369must be inferred that only optional inspection was intended. A careful reading of section 23 indicates to me that the legislature in enacting it did not have in mind and was not declaring distinctions between inspection at warehouses and at other places. It had already, in earlier sections of the act, in mandatory language, provided that there should be inspection at public warehouses and at various other places. The only inference to be drawn from those provisions was that, inspection was compulsory. In section 23 the duties of warehouseman are prescribed and he is enjoined to receive for storage all grain tendered him that is dry and suitable for storage and that no discrimination can be made among persons who offer such grain for storage, and incidentally it is stated that such grain shall, in all cases, be inspected, weighed, and graded by a duly authorized inspector and weigher. The section then provides for keeping grain in separate bins apart from that of other owners, the issuance of warehouse receipts, requires inspection of grain delivered from the warehouse the same as when it is delivered to it, excuses the warehouseman from receiving grain when there is not room to store it properly or when the warehouse is necessarily closed, provides who shall pay the charges for inspection and weighing and authorizes the addition of them to the storage charges, and provides that the chief inspector may bring an action to recover such charges. This section together with those preceding and following it constitute the warehouse part of the act and- is a code of rules governing public warehouses, and evidently was not intended to limit the provisions already made for the inspection and weighing of grain. In the inspection part of the act the legislature had-already stated that there should be inspection at public warehouses, and the clause referred to .in section 23 only imposes*the duty on the public warehouseman to not receive or deliver grain without *370inspection. I think it will be a surprise to the authors of the measure to learn that this brief clause ip a section prescribing the duties of a public warehouseman is regarded as the one which gives the authority to inspect and'weigh grain, and that because of it an inference may be drawn that inspection at points other than public warehouses is not compulsory. If this clause had been omitted entirely from section 23, would it have been contended or held that compulsory inspection could not be had at any place under the act or that there could be no inspection unless an owner of grain asked for it? This is the position to which the contention of defendants leads.

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 *371official inspection under the supervision' of the state or whether it should be left to some board of trade or other self-constituted authority. The legislature, in my view, acted upon the theory that the interest of' producers and owners of grain in the state, as well as. of the general public, would be best subserved by a compulsory state inspection.

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 *372the discussion which makes its meaning more definite and apparent. 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,” if given the meaning attributed to it by the defendants, would add nothing to the preceding clause. We should not assume that unnecessary language was used by the legislature nor that a phrase was inserted in a section without any purpose. The mixing of the grain of different owners and the handling of the lots or parcels of grain brought in by different owners so that its identity is lost would practically amount to the same thing. Ownership of the grain, it is true, is a consideration in the •preceding clause, but after providing for the grain of ■different owners the legislature, with the evident purpose of making the definition of a public warehouse more extended and inclusive, made another class which •included all lots and parcels of grain stored so that the identity of each was preserved whether owned by the same or different persons. There is just as much reason for state supervision of lots and parcels of grain purchased and brought in from different farms .and stations and stored by the same owner as if they were stored by different owners. The maintenance of established grades and the keeping of different grades separated in elevators and warehouses is one of the .leading ideas of the act. Many of its provisions disclose that the purpose is to prevent the mixing of grain .and the deception, injury and loss which might result from it. Provision was therefore made for establishing grades and inspecting each lot of grain to be stored •or delivered in order to determine its grade. Inspection is required when it is put in the elevator as well as when it is taken out. The public is interested in the handling of grain which has been stored and which is to be sold and put into business channels, and it is in as great need of protection against the mixing of grades which had been stored by the same owner as *373if the lots of grain had been stored by several owners. This is apparent in section 23 of the act which defines the duties of public warehousemen. There regulations are prescribed for the storage of grain by single owners and provision is made for keeping the same in separate bins, making it plain that the warehousemen shall not escape supervision by receiving and storing the grain of individual owners in special or separate bins. It provides that all the grain, including that stored in special bins, shall be inspected and weighed when it is delivered from the’ elevator. There is a clause in that section, too, which evidences the general purpose of the act relating to warehousemen, where it provides that the warehousemen shall receive grain from persons without discrimination and that when received it shall always “be stored with grain of a similar grade.”

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*374ing is not compulsory, and as to the definition of a public warehouse.

I am authorized to say that Mr. Justice Benson joins in this dissent.

Smith, J.: I concur in the dissent.