Ex parte House v. Mayes

'SEPARATE CONCURRING OPINION.

WOODSON, J.

I concur in the views of Judge Gantt expressed in this case for the additional reasons that the design the Legislature had in passing the act in question was two-fold: first, by section one, to prevent brokers from agreeing with the purchasers of wheat on boards of trade to deduct any part therefrom without authority from the owner to so do, notwithstanding the existence of a rule or custom to the contrary. It cannot be seriously contended that said section is unconstitutional for that reason. The books are full of cases upholding the validity of such laws.

The second purpose the Legislature intended to accomplish by the passage of this act was to prevent the purchaser of wheat on the floors of exchanges from deducting any quantity from the amount so purchased where the contract’ of purchase does not authorize such deduction. In other words, the act was simply designed to prevent one person from taking the property of another without compensation and without his consent. That certainly is a valid law, for the reason that it is based upon express provisions of both the State and Federal constitutions, which provide that private property shall not be taken for private use with or without just compensation.

The clear import and meaning of the rule in question is to authorize the purchaser of wheat1‘ on change ’ ’ to take private property without the owner’s assent and without compensation, which was being done under this rule at the time of the passage of this act. By *644the second section of this act the Legislature intended to prevent that wrongful practice.

In the case at bar, the agreed statement of the facts'show that the broker who sold the wheat mentioned therein had no authority in fact to authorize House, the petitioner, to deduct the hundred pounds of wheat mentioned from the quantity purchased by him. Notwithstanding his lack of authority, the petitioner deducted that hundred pounds and now retains it without paying for it. This act of the Legislature declares that act of the petitioner to be a misdemeanor and punishable by fine. In my judgment that is a valid law and should be enforced.

Suppose, for instance, the rule in question instead of being simply a rule of the board of trade had been an act of the Legislature, and had provided just as the rule in effect does, that all purchasers of wheat “on change” may without authority from the owners thereof deduct from each carload purchase the sum of one hundred pounds without compensation, would or could it be contended that such an act would be constitutional? Certainly not. That being true, then clearly the rule itself for stronger reasons is void, and the Legislature unquestionably has the authority not only to fine but also to imprison all who take property of others without their consent.

If this board of trade has the authority to adopt the rule in question, deducting one hundred pounds from each carload purchase made upon its floors, then clearly by virtue of the same authority it has the power to deduct from each sale two hundred pounds or any other quantity deemed proper, only limited by the avarice and greed of a majority of its members.

In answer to a question propounded by the writer to counsel for the petitioner during the oral argument of this cause, he stated in response thereto that there was sold on an average on the floor of the Kansas City Board of Trade five hundred cars of wheat a day. *645If we deduct from each car of wheat so sold one hundred pounds for each day in the year, it will show that the owners of wheat are annually, by this rule, deprived of three hundred and four thousand one hundred and sixty-six bushels, and that, too, without their consent and without compensation. If the same rule be extended to St. Louis, St. Joseph and other grain markets of the State, then the quantity will be swollen to probably a million bushels.

This rule is wrong and vicious and should be condemned, as the Legislature has undertaken to do by this act; and this act is wise and just and should be upheld and enforced.

Burgess, Gantt and Lamm, JJ., concur. Valliant, G. J., and Fox and Graves, JJ., dissent.