DISSENTING OPINION.
GBAYES, J.I cannot concur in the opinion of the majority and my reasons therefor are expressed in the following:
By information duly filed on September 21, 1909, by the prosecuting attorney of Jackson county, Missouri, B. J. House was charged with the violation of a legislative act of this State entitled, “An Act to prevent fraud in the purchase and sale of grain and other commodities.” [Laws 1909, p. 519.] In said information it is charged that he “on the first day of September, 1909, in the county of Jackson, State of Missouri, did purchase from one James Anderson, one carload of wheat by weight, and did then and there willfully and unlawfully, from the actual weight of the said wheat so by him purchased, take and deduct one hundred pounds, by the said B. J. House, pretending and claiming to have the right to make such deduction, and to have and keep the said one hundred pounds so deducted free of charge and cost to him under and by virtue of a rule and custom of the board of trade of Kansas City, Missouri, contrary to the *646form of the statute in such eases made and provided, and against the peace and dignity of the State. ’ ’ Upon this information capias was issued and said House, who is and was a member of said board of trade of Kansas City, Missouri, was arrested. Upon his arrest he applied to this court for a writ of habeas corpus, the object and purpose of which was to test the validity of such Act of the General Assembly. Upon' the. filing of such application the writ was issued and made returnable at a date named, and return thereto was duly made. Counsel, much to be commended, have agreed upon a statement of facts, around which all the legal questions cluster. The statement of facts reads:
“"Without admission of either party as to the relevancy of any particular fact herein set forth, the following facts are agreed upon between parties:
“There are competitive grain markets at Galveston, Texas, Chicago, Illinois, Omaha, Nebraska, Atchison and Wichita, Kansas, and St. Louis, St. Joseph and Kansas City, Missouri. That Kansas City is a primary grain market. That a very slight difference in price or condition will influence the market course of grain.
“That the board of trade of Kansas City, Missouri, is a voluntary organization of buyers and sellers of grain and provisions, supported by dues and assessments and maintained for the purpose of furnishing a marketing place where such persons can meet and, under rules of safety and convenience, transact such business. Its objects are: ‘To maintain a board of trade to promote uniformity in the customs and usages of merchants; to inculcate principles of justice and equity in business; to facilitate the speedy adjustment of business disputes; to inspire confidence in the business methods and integrity of the parties hereto; to collect and disseminate commercial and economic information, and generally secure to its members the benefits of co-operation in the furtherance of their *647legitimate pursuits, and to promote the general welfare of Kansas City.’
“Its members are governed by rules and regulations, enacted by the members, and which form part of the written contract of association between them.
“This organization provides for the exclusive use of its members a trading floor where grain is bought and sold only under and according to said rules. Three of said rules are:
“ ‘Sec. 16. The weight supervising committee shall have supervision, through the weight department, of the unloading of all ears unloaded at all elevators, mills, warehouses, transfer and team tracks, within the jurisdiction of this board, and shall cause the same to be thoroughly swept and cleaned when unloaded. Sweeping or cleaning of cars subsequently by any operator or employee of any elevator, mill, warehouse, transfer or team track, or by any person or persons under agreement with the same; or the buying or receiving of any such sweepings or cleanings by any member of this association is prohibited.
“ ‘See. 17. Violations of any of the provisions of section 16 of this article shall subject the member so violating to a fine of fifty dollars for the first offense, to a fine of one hundred dollars for the second offense, to expulsion and forfeiture of membership for the third offense.
“ ‘Sec. 18. On all grain bought by members of the Kansas City Board of Trade, and on which Kansas City unloading weights are given, an allowance of one hundred pounds per car shall be made to the buyer, to cover loss on account of dirt and other foreign matter. ’
“That said board of trade maintains a bureau of weights which strictly enforces rule 16.
“That rules 16 and 17 were enacted to secure the seller the full weight of the entire contents of the car and rule 18 to secure the buyer from loss through dirt *648and foreign matter in or swept ont with the grain which was unloaded at Kansas City. Before grain is sold it is graded. One of the considerations in grading is the dirt and foreign matter in the grain. Experience has shown that there is a loss from dirt and foreign matter, varying with different cars, which is not fully taken care of in the grade. That there is no method in use of accurately determining the percentages of such foreign matter and jlirt, and the one hundred pound quantity was taken as a fair average.
“The members of said board of trade buy and sell sometimes as commission men for outsiders, and sometimes for their own account, and it is impossible to tell without inquiry whether a buyer or seller is acting for himself or for some one else. The buying and selling of grain on the floor of said board of trade is, as in all other markets, based upon the constantly and rapidly fluctuating market prices in that and the other principal grain markets. There is no time nor opportunity to ascertain the capacity (principal or agent) in which a member is acting when he buys or sells, and, if he be in reality acting as agent, no opportunity to investigate the financial standing of the real principal. Because of this condition and also to secure the prompt and faithful performance of all such con-' tracts of sale, there is a rule of said board of trade forbidding the disclosure of outside principals and holding the member in all cases as the principal. There are also rules making a membership responsible for the faithful performance of such contracts.
“That the State Railroad and Warehouse Commission has in force a rule requiring cars unloaded at Kansas City to be cleanly swept.
“That the method of making the reduction is to weigh the loaded car; then, after emptying and cleanly sweeping the car, to weigh the car; the difference in these two weights is entered on the account sales as the weight of the carload of grain, the deduction of one *649hundred pounds being also noted on that slip and settlement made for this balance. That is, the weight of the entire contents of the ear is shown and also the one hundred pound deduction on the face of the account sales given the seller.
“That upon the first day of September, 1909, your petitioner bought upon the trading floor of said board of trade and from a member thereof, a carload of wheat on Kansas City unloading weights. In accordance with the above method, and under said rule 18, he deducted one hundred pounds and made settlement for the balance.
“The member selling this grain did not own it, but was acting as a commission man. He, however, dealt with petitioner as in his own right, and your petitioner had no notice or knowledge that such seller was not the real owner of the grain. Nothing had been said between the member selling and his principal as to the allowance of the one hundred pounds.
“Both your petitioner and the seller understood at the time of sale that it was made subject to this rule.”
The full statute reads:
“An act to prevent fraud in the purchase and sale of grain and other commodities.
“Be it enacted by the General Assembly of the State of Missouri, as follows:
“Section 1. Every sale of grain, seed, hay or coal shall be made on the basis of the actual weight thereof, and any purchaser of grain, seed, hay or coal, who shall deduct any amount from the actual weight or measure thereof under claim of right to do so by reason of any custom or rule of a board of trade or any pretense whatsoever, shall be deemed guilty of a misdemeanor, and shall be subject to a fine of not less than ten dollars nor more than one hundred dollars for each and every offense.
“Sec. 2. No agent or broker selling any grain, seed, hay or coal shall have authority, under claim or *650.right to do so by reason of any custom or rule of board of trade, to sell any grain, seed, hay or coal only on the basis of the actual weight thereof, and any contract of sale of any grain, seed, hay or coal made in violation of this act shall be null and void.
“Approved June 8, 1909.”
Counsel for Mr. House urge several reasons against the validity of the law, each of which will be noted in the course of the opinion. His counsel ask his discharge, and the State holds that he should be remanded to be tried under the information. Such sufficiently states the cause for a discussion of the legal questions.
I. We have perhaps set out more of the details in the statement than were required. One point raised is that this law interferes with the sacred right of individuals, sui juris, to contract as they please, so long as such contracts are not condemned upon grounds of public morals, public policy and things of like character. The petitioner contends that this right is violated — the State, through the learned Attorney-General, contra. The question is not one without difficulties. It can only be determined by an analysis of the law, itself. The question can best be discussed by illustrations. Suppose that a member of this court desired to buy a wagonload of wheat upon the streets of Jefferson City, and upon examination found that there was a large amount of foreign substances in said load of wheat, and for that reason demanded that before he would pay the market price of wheat, a certain per cent of allowance in weight should be allowed for the foreign substances, would the statute prevent a contract of that character? That we would have a right to so contract can hardly be doubted, if the seller was sui juris. So, to such a question there can be but one answer and .that in the affirmative. No law, relating to the right of contract, can compel the citizen to pay for a thing which he does not get. Nor can a law *651prescribe tbe terms of a contract, and tbns prevent one of two parties, fully sui juris, from getting even a shade the better of the deal by contract. Unconscionable contracts do not fall within this rule. Now, to an analysis of this law, as to whether or not it would affect a contract of the character supposed, supra.
The first section of the statute says that “every sale of grain . . . shall be made on the basis of the actual weight thereof, and every purchaser of grain . . . who shall deduct any amount from the actual weight or measure thereof under ; . . any pretense whatsoever, shall be deemed guilty of a misdemeanor.”
The term “any pretense whatsoever” is a broad one. In the use of it reference is made to a sale of a commodity. A sale presupposes a contract of some kind. Under the statute the sale must be upon the basis of actual weight and a fortiori the contract of sale' must be likewise. In other words, that which limits the sale must limit the contract with reference to the sale. There can’t be a sale, without a contract of sale, and the law which prescribes the terms of one prescribes the terms of the other.
To bring the application closer home, suppose a member of this court desired to purchase a carload of wheat standing upon the unloading track of a railway company in Kansas City, and after such wheat had been graded, and he upon examination found that there were more foreign substances, including dirt, in the wheat than were accounted for by the grading made, could he then, under this law, contract for the deduction of one hundred or two hundréd pounds from the weight of the car of wheat in order to get actual justice in the bargain? We think not. Under the statute “every sale . . . shall be made on the basis of the actual weight,” and to deduct from such actual weight on “any pretense whatsoever” renders a purchaser guilty of a misdemeanor. A sale, as said *652above, includes within itself a contract of sale. There can be no sale without a contract of sale, and the prohibition really goes to the contract of sale, and prevents “every sale” (not sales upon boards of trade solely) from being made under a contract by the terms of which the purchaser can agree to give the market price for wheat, provided a reasonable deduction is made for foreign substances.
So, too, if we were purchasing a load of coal upon the streets, much of which load was made up of slate and other foreign substances, we would be guilty of a misdemeanor should we say to the seller, we will pay your price provided you deduct ten per cent of the weight to cover these foreign substances, and the seller accepted our offer, thus completing the sale and the contract of sale.
The relator in this case is being prosecuted under section 1 of the act, the only criminal section thereof. This section we have analyzed and when we recollect, as we must, that there can be no such thing as a sale without a contract of sale, we are forced to the conclusion that the words “every sale” used in such section are equivalent to “every contract of sale.” Not only so, the section does not limit itself to sales upon boards of trade, but it applies to “every sale” of the commodities therein mentioned, it matters not when nor where made. This statute clearly strikes at the right of private contract. The first clause compels a purchaser to contract on the basis of the actual weight. Not only so, but it precludes such purchaser from so contracting as to make an allowance for foreign substances. It applies to sales made where there is no grain inspection, as well as places where there is grain inspection. It absolutely leaves the purchasers of grain in small towns and in the country at the mercy of the seller.
The first clause of this statute fixes the terms of every contract of sale so far as the commodities named *653are concerned. This clause, which we repeat for the present point, reads: “Every sale of grain, seed, hay or coal shall be made on the basis of the actual weight thereof.” No cattle feeder buying light chaffy com, and corn not cleanly shelled, could contract for a greater number of pounds to the bushel under this statute. In this regard the contract between the two individuals has been fixed by statute. This statute ignores the provisions of the general statute upon weights and measures. The general statute, Revised Statutes 1899, section 10576, passed when legislative freaks and fads were not in vogue, so far as applicable reads: “Whenever the articles hereinafter named shall be sold by the bushel, and no special agreement as to the measurement or weights thereof shall be made by the parties, the bushel shall consist of the following number of pounds, vis.
In those days we recognized that persons sui juris could contract, but in these days it would appear that the State is to assume the right to fix the terms of the contracts between private individuals, whether sui juris or not. Under both the State and the Federal Constitutions this power to thus interfere with private contracts is denied. No stronger condemnation of such a law is found than we find from this court in an opinion by Sherwood, J., in case of State v. Julow, 129 Mo. l. c. 175, whereat it is said:
“Here the law under review declares that to be a Crime, which consists alone in the exercise of a constitutional right, tó-wit, that of terminating a contract, one of the essential attributes of property, indeed property itself, under preceding definitions. Brought to the bar of a court on such a charge, the accused would have been prejudged in so far as the criminality of the act charged is concerned; no question could there be made or admitted as to the quality of the act; that would have been settled by the previous legislative declaration, and it would only remain to find the fact *654as charged, in order to declare the guilt as charged. But the fact as charged as already seen, is not a crime, and will not be a crime, so long as constitutional guarantees and -constitutional prohibitions are respected and enforced.
“If an owner, etc., obeys the law on which this prosecution rests, he is thereby deprived of a right and a liberty to contract or terminate a contract as all others may; if he disobeys it, then he is punished for the performance of an act wholly innocent, unless indeed the doing of such act guaranteed by the organic law,.the exercise of a right of which the Legislature is forbidden to deprive him, can, by that body, be conclusively pronounced criminal. We deny the power of the Legislature to do this; to brand as an offense that which the Constitution designates and declares to be a right, and therefore an innocent act, and consequently we hold that the statute which professes to exert such a power is nothing more nor less than a “legislative-judgment” and an attempt to deprive all who are included within its terms, of a constitutional right without due- process of law. In support of these views see State v. Loomis, 115 Mo. 307; Com. v. Perry, 155 Mass. 117; Godcharles v. Wigeman, 113 Pa. St. 431; State v. Goodwill, 33 W. Va. 179; In re Jacobs, 98 N. Y. 98; People v. Gillson, 109 N. Y. 389; Millett v. People, 117 Ill. 294; Tilt v. People, 27 Chicago Leg. News, 270.”
Equally strong is the language of Burgess, J., in the more recent case of State v. Tie & Timber Co., 181 Mo. l. c. 559: “The right to labor or employ labor, and make contracts with respect thereto, upon such terms as may be agreed upon, is both a liberty and property right, and is included in the guaranty of the Constitution which provides Ghat no person shall be deprived of life, liberty or property without due process of law.’ [Sec. 30, art. 2, Constitution.] Nor can such right to contract be arbitrarily interfered with, but may be subject to limitations growing out of duties *655which the individual owes to society, hut such limitation must be upon some reasonable basis, and not arbitrarily. [Ritchie v. People, 155 Ill. 98.]”
The section of the statute under review in the Tie & Timber Company case affected the right of an employer to make contracts with his employees. There can be no difference between purchasing labor and purchasing commodities. The right to contract (which is, as said by Sherwood, J., in the Julow case, supra, property, within the constitutional provisions) is involved in both cases. We use the term purchasing labor, because it is so used by Peckham, Justice, in Lochner v. New York, 198 U. S. l. c. 56. In that case the learned justice was discussing the effect of a New York law limiting the hours which bakers should work upon the constitutional right to contract. He there said:
“It must, of course, be conceded that there is a limit to the valid exercise of the police power by the State. There is no dispute concerning this general proposition. Otherwise the Fourteenth Amendment would have no efficacy and the Legislatures of the States would have unbounded -power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext-become another and delusive name for the supreme sovereignty of the State to be exercised free from constitutional restraint. This is not contended for. In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts *656in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? Of course the liberty, of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor.
“This is not a question of substituting the judgment of the court for that of the Legislature. If the act be within the power of the State it is valid, although the judgment of the court might be totally opposed to the enactment of such a law. But the question would still remain: Is it within the police power of the State? and that question must be answered by the court.
“The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State. Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us. involves neither the safety, the morals nor the welfare of the public, and that ike interest of the public is not in the slightest degree affected by such an act.”
The contention of the State in this case is that the law is a reasonable exercise of the. police power of the State, but as such we cannot so see it. Boiled down to its essence, this law simply says that no contract for the sale and delivery of certain commodities can be made between two persons sui juris unless the actual weight of the carload or other bulk of grain be taken as the basis of the contract. The making of contracts *657of sale contrary to the provisions of this act does not affect the safety, health, morals or general welfare of the pnhlic — the peculiar wards of the police power. It simply affects private contracts and as such violates both State and Federal constitutional provisions. Speaking of the scope of the police power, Mr. Justice Harlan, in Adair v. United States, 208 U. S. l. c. 173, said: “There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated, and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public.”
In the Adair case, supra, a Federal statute relating to employer and employee was under consideration. Adair, who was master mechanic of a railway corporation, was charged with having discharged one Coppage because of his connection with a labor organization in violation of the 10th section of the Act of Congress of date October 1, 1888. In discussing this statute under the Constitution, Mr. Justice Harlan in the Adair case, further said: “While, as already suggested, the rights of liberty and property guaranteed by the Constitution against deprivation without due process of law, is subject to such reasonable restraints as the common good or the general welfare may require, it is not within the functions of government— at least in the absence of contract between the parties —to compel any person in the course of his business and against his will to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another. The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such- labor from *658the person offering to sell it. So the right of the employee to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the services of such employee. It was the legal right of the defendant Adair, however nnwise such a course might have been, to discharge Ooppage because of his being a member of a labor organization, as it was the legal right of Ooppage, if he saw fit to do so, however unwise such a course on his part might have been, to quit the service in which he was engaged, because the defendant employed some persons who were not members of a labor organization. In all such particulars, the employer and employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land. ’ ’
And so say we in the case at bar. Buyers and sellers of the commodities mentioned in our statute are upon equal footing. They should have equal rights in the matter of making contracts of purchase and sale. The State is going beyond a reasonable and legitimate exercise of its police power when it attempts to prescribe the terms or any portion of the terms of such contracts between private individuals. Other cases are cited in the briefs, but we will not further burden this opinion. The very first clause of the statute in question fixes at least one of the terms of every contract of sale as to the commodities mentioned. Such statute is neither a reasonable nor a legitimate exercise of the police power of the State, but in violation of constitutional provisions, as found in both the State and the Federal constitutions, and is one which tramples down the rights of the individual to make contracts for himself.
Not only so, but it does this in the interest of one of the contracting parties, and against the interest of the other. Such statutes have universally been de*659dared vidons in character and tendency. For the reasons above expressed we hold the statutes under which the relator is being prosecuted to be void.
II. There is another reason why this statute should be declared void. The body of the act in nowise responds to the title. The title thus reads: “An Act to prevent fraud in the purchase and sale of grain and'other commodities.” The body of the act as we have' shown, simply goes to the character of the contract-which must be made between buyer and seller. In its-: last analysis, the body of the law simply provides thaf the actual weight of the grain shall be taken as the basis of the contract of sale, and if the purchaser does not so take it he is guilty of a misdemeanor. , There is not a line in the act which describes a fraudulent transaction. It is not a fraud for two parties sui juris to-agree that one will sell and the other will buy a carload of grain, provided that 100 or 200 pounds be taken from the weight to cover loss occasioned by the presence of foreign substances. It is not a fraud for two persons to agree that one will sell and the other buy a wagon-load of coal at so much per hundred provided eighty-five pounds instead of eighty pounds be-allowed to the bushel, in order to cover loss from apparent foreign substances in the coal. Yet these are the very transactions involved in the body of this law. There is no reasonable connection between these transactions and the subject-matter of fraud. The law therefore does not fall within the purview of the enacting' clause or title — and such a law cannot stand.
Nor can the Legislature make that a fraud which within itself is not a fraud. To such things- the same-rule will apply as is applied to nuisances. Speaking’ to the question of nuisances, this court in City of Sh Louis v. G-alt, 179 Mo. 1. c. 18, said: “Of course, even under such broad powers, it is not competent for the-city to declare that to be a nuisance which is not, and-cannot from its nature, be a nuisance in fact.”
*660And in St. Louis v. Packing Company, 141 Mo. l. c. 383, Gantt, J., said: “Notwithstanding the broad terms in which the power is given to declare nuisances, it is not competent for the city to declare that a nuisance which is not so in fact.”
If the body of this act falls within the purview of its title it is because the Legislature has declared that if two parties enter into a contract for the purchase and sale of grain and other commodities on the basis of weights other than the actual weights, such act of the two parties, sui juris, is a fraud. The Legislature cannot declare and make that a fraud, which in fact is npt a fraud. Nor can the State make an act criminal when the Constitution permits such act to be done. [State v. Julow, 129 Mo. l. c. 175.]
For these reasons the entire act is void.
III. Learned counsel for the State have analyzed the statute and thus state it:
“The whole act, stripped of its verbiage, and * boiled down,’ simply means this:
“First: That all sales of grain, seed, hay.and coal in this State shall be made on the basis of their actual weight.
“Second: That any purchaser of grain, seed, hay or coal, who shall deduct any amount from the actual weight or measure thereof, under claim of right to. do so by reason of any custom or rule of a board of trade or any pretense whatsoever, shall be guilty of a misdemeanor and punished by fine.
‘ ‘ Third: That no agent or broker shall have any authority by reason of any custom or rule of a board nf trade, to sell any grain, seed, hay or coal, except on -the basis of the actual weight thereof, and any sale jna.de in violation thereof shall be null and void.”
He adds, however: “The act was not leveled -against the right to contract in any manner or form. ’ ’ At this point the learned counsel tread the pathway .of error. The first subdivision of their analysis shows *661tiie error. This first subdivision we have discussed above, quoting the exact language of the act. That part of the act says that no sale can be made except upon actual weights. No sale can be made without a contract between two parties, sui juris. Under this first clause of the statute parties must contract upon the basis of actual weights. If this is not then a statute fixing the basis of a private contract between two persons, sui juris, we misconceive what we think to be plain English terms.
If this first clause stood alone, and was not violative of constitutional provisions, no valid sale of the commodities named could be made except on the basis of actual weight, and as all sales presuppose a contract of sale, no valid contract could be made upon any other basis. The more we outline this statute the more firmly fixed become our views to the effect that-it is an unwarranted invasion of the. personal right to contract. If the State cannot make an act, which is authorized by the Constitution, criminal, it cannot declare fraudulent an act likewise authorized by the Constitution.
So concluding, we think the statute, under which relator was arrested, to be void and relator should be discharged.
Valliant, C. J., and Fox, J., concur — the latter in a separate opinion, in which Valliant, C. J., and the writer concur.SEPARATE DISSENTING OPINION.
FOX, J.I fully concur in the views expressed by Judge Graves upon the propositions involved in this proceeding; hence will be content with adding a few words concerning the interpretation of section 1, Laws 1909, p. 519, upon which the prosecution of the petitioner was predicated.
Section 1 provides that “every sale of grain, seed, hay or coal shall be made on the basis of the actual *662weight thereof, and any purchaser of grain, seed, hay or coal, who shall deduct any amount from the actual weight or measure thereof under claim of right to do so by reason of any custom or rule of a board of trade or any pretense whatsoever, shall be deemed guilty of a misdemeanor and shall be subject to a fine of not less than ten dollars nor more than one hundred dollars for each and every offense.”
It is to the provisions of this section that the State must look for support in the prosecution of the petitioner. It is insisted that this section should be divided into sentences and clauses, by reason of which the respective features of the section will be made to appear, that is to say, the civil and criminal aspects embraced in the section.
It is sufficient to say upon this insistence that if that section is divided into sentences or clauses, then it must be done by the court, for manifestly the lawmaking power did not embrace separate clauses, not' even separate sentences. The entire section is embraced within one sentence, and in my opinion can only be construed in its entirety. Clearly the General Assembly sought by the provisions of section 1 to create a misdemeanor concerning the subject of sales of grain, seed, hay or coal, and all the terms employed in that section, have, in their final analysis, application alone to the criminal offense that is sought to be created. The provision of that section that “any purchaser of grain, seed, hay or coal, who shall deduct any amount from the actual weight or measure thereof . . . shall be deemed guilty of a misdemeanor, ’ ’ is embraced in the same sentence and is directly connected with the preceding terms that “every sale of grain, seed, hay or coal shall be made on the basis of the actual weight thereof.” In other words, the purchaser as spoken of in the section has reference to a purchaser by reason of a sale made on the basis as provided by the terms last above quoted. There can be no pur*663chaser without a seller, and there can he no sale without a contract, either express or implied, and under the provisions of section 1 the right of the seller and purchaser to make sales is limited to the terms of the statute, that is, the actual weight or measurement, irrespective of what may he the condition of the commodity sold. From this it logically follows that the same limitation upon the right to make a sale is applicable to and is a burden upon the right to make the contract of sale.
The provision of section 1 which provides that ‘ ‘ every sale of grain, seed, hay or coal shall be made on the basis of the actual weight thereof” was not intended by the General Assembly to present simply the civil feature of that section, for manifestly it is the violation of that provision which constitutes the essence of the crime created by section 1. Clearly the purchaser is required under this provision in making his purchase to make it on the basis of the actual weight of the commodity so purchased, and a failure to comply with the terms of this provision is the essence of the offense created by section 1; and the provision that “any purchaser of grain, seed, hay or coal, who shall deduct any amount from the actual weight or measure thereof, ” serves only to emphasize that it is the violation of the terms of the statute that every sale shall be made on the basis of the actual weight of the commodity that makes the offense. In other words, section 1 in effect provides that every sale of grain, seed, hay or coal shall be made on the basis of the actual weight, and any purchaser who participates in a sale and who shall purchase upon any other basis than that of the actual weight and measure of the commodity under a claim of right to do so by reason of any custom or rule of a board of trade, or any pretense whatever, shall be guilty of a misdemeanor. The provisions of section 1, which provide that “any purchaser . . . who shall deduct any amount from the actual weight *664or measure thereof,” etc., is only pointing out in detail the manner and method of the violation of the requirements of the statute which provide that all sales of certain commodities shall be made upon the basis of the actual weight thereof.
There can be no such thing as a deduction by a purchaser from the actual weight or measure of the commodity purchased without there was a sale and a contract of sale preceding such deduction, and the sale contemplated is the one suggested by the provisions of the statute that must be made upon the basis of the actual weight of the commodity, and, as heretofore indicated, such sale presupposes some sort of a contract, either express or implied, respecting the commodity sold.
In my opinion, as heretofore indicated, the provisions of section 1 must be construed together, and the terms employed in said section have application to the criminal offense sought to be created by the General Assembly in the enactment of that section.
It is next insisted that section 1 has application alone to sales upon boards of trade. A careful analysis of the provisions of section 1 will demonstrate that its provisions are of much broader significance. It will be observed that this statute in treating of the subject of sales of grain and the other commodities therein mentioned nowhere indicates that it has application alone to sales upon boards of trade. In fact the only instance in which hoards of trade are mentioned is that the purchaser cannot justify his deduction from the actual weight of the commodity purchased by reason of any custom or rule of a boayd of trade or any pretense whatsoever. In other words, the provisions of that section in substance provide, first, that the- sale of the grain shall he upon the basis of the actual weight thereof, and that any purchaser who deducts any amount from the actual weight thereof under claim of right to do so by reason of any custom or rule of *665a board of trade, or any pretense whatsoever, shall be guilty of the offense provided by that section. That is, that no deduction shall be made by reason of any custom or rule of a board of trade or for any other reason or pretense whatsoever. In other words, the provisions of section 1 are applicable to sales made of the commodities therein mentioned either upon boards of trade or otherwise, and if a purchaser makes a deduction in the weight of the commodity purchased by reason of a custom or rule of a board of trade he is guilty of a misdemeanor; and such purchaser is equally guilty of the offense defined by the statute if he makes a deduction upon the weight of the commodity so purchased at a sale (not upon any board of trade) on any pretense or reason whatsoever.
The solution of the proposition confronting us, that is, the proper interpretation of section 1 upon which the prosecution of the petitioner was predicated, must be sought alone by a careful analysis of the terms employed in the statute, and the proposition should not be overshadowed by treating the statute as applicable to the Kansas City Board of Trade and its rules, manner and methods of transacting business.
If this statute invades the rights of the citizens of this State who are fully capable of contracting respecting the sale of their property, then, in my opinion, it should be held invalid. If boards of trade in Kansas City or anywhere else in this State have rulés and methods of transacting business that are not in harmony with public interests and morals, doubtless the law-making power will have no trouble in devising some means to regulate them; but their regulation should not be confounded with the rights of the individual citizen who. is capable of contracting in the sale and purchase of his property in such manner as his best judgment dictates. In my opinion section 1 should be held invalid.
Valliant, G. J., and Graves, J., concur.