United States Supreme Court Reports

Rep. 529, Ann. Cas. 1918E, 724; Merchants Exch, v. Missouri, 248 U. S. 365, 63 L. ed. 300, 39 Sup. Ct. Rep. 114; Southern P. Co. v. Arizona, 249 U. S. 472, 63 L. ed. 713, P.U.R.1919D, 462, 39 Sup. Ct. Rep. 313; Patapsco Guano Co. v. Bd. of Agriculture, 171 U. S. 345, 43 L. ed. 191, 18 Sup. Ct. Rep. 862.

A state act affecting commerce must

Argued November 14, 1921. Decided Feb- be construed as applying to intrastate ruary 27, 1922.

The facts are stated in the opinion.

Mr. Seth W. Richardson argued the cause, and, with Mr. William Lemke, Attorney General of North Dakota, filed a brief for appellants:

The North Dakota Act applies only to the inspection and grading of grain prior to entering the domain of inter state commerce.

New York L. Ins. Co. v. Deer Lodge County, 231 U. S. 495, 509, 58 L. ed. 332, 34 Sup. Ct. Rep. 167; Arkadelphia Mill Co. v. St. Louis S. W. R. Co. 249 U. S. 134, 151, 63 L. ed. 517, 527, P.U.R. 1919C, 710, 39 Sup. Ct. Rep. 237.

The grain is not in interstate commerce until it has begun to move.

commerce, and not to interstate commerce, if such a construction is possible.

Co. 235 U. S. 151, 59 L. ed. 169, 25 McCabe v. Atchison, T. & S. F. R. U. S. 501, 56 L. ed. 1182, 32 Sup. Ct. Sup. Ct. Rep. 69; Savage v. Jones, 225 Rep. 715; Carey v. South Dakota, 250 U. S. 119, 63 L. ed. 887, 39 Sup. Ct. Rep. 403; Turner v. Maryland, 107 U. S. 39, burg & S. Coal Co. v. Louisiana, 156 27 L. ed. 371, 2 Sup. Ct. Rep. 44; PittsU. S. 590, 39 L. ed. 544, 5 Inters. Com. Rep. 18, 15 Sup. Ct. Rep. 459; Plumley v. Massachusetts, 155 U. S. 461, 39 L. ed. 223, 5 Inters. Com. Rep. 590, 15 Sup. Ct. Rep. 154.

This act was within the police power of the state.

New York L. Ins. Co. v. Deer Lodge County, 231 U. S. 495, 58 L. ed. 332, 34 Sup. Ct. Rep. 167; South Carolina ex rel. Phoenix Mut. L. Ins. Co. v. MeMaster, 237 U. S. 63, 59 L. ed. 839, 35 Sup. Ct. Rep. 504; Engel v. O'Malley, 219 U. S. 128, 55 L. ed. 128, 31 Sup. Ct. Rep. 190; Hendrick v. Maryland, 235 U. S. 610, 59 L. ed. 385, 35 Sup. Ct. Rep. 140; Mutual Film Corp. v. Hodges, 236 U. S. 248, 59 L. ed. 561, 35 Sup. The Daniel Ball, 10 Wall. 565, 19 L. Ct. Rep. 393; Mutual Film Corp. v. ed. 1002; Coe v. Errol, 116 U. S. 517, Industrial Commission, 236 U. S. 230, 59 29 L. ed. 715, 6 Sup. Ct. Rep. 475; Turpin L. ed. 552, 35 Sup. Ct. Rep. 387, Ann. v. Burgess, 117 U. S. 504, 29 L. ed. 988. Cas. 1916C, 296; Sligh v. Kirkwood, 227 6 Sup. Ct. Rep. 835; Kidd v. Pearson, U. S. 52, 59 L. ed. 835, 35 Sup. Ct. Rep. 128 U. S. 1-26, 32 L. ed. 346-352, 2501; Tanner v. Little, 240 U. S. 369, 60 Inters. Com. Rep. 232, 9 Sup. Ct. Rep. 6; United States v. E. C. Knight Co 156 U. S. 1-13, 39 L. ed. 325-329, 15 Sup. Ct. Rep. 249; Southern P. Terminal Co. v. Interstate Commerce Commission. 219 U. S. 498, 55 L. ed. 310, 31 Sup. Ct. Rep. 279; Railroad Commission v Texas & P. R. Co. 229 U. S. 336, 57 L ed. 1215, 33 Sup. Ct. Rep. 837; Texas & N. O. R. Co. v. Sabine Tram Co. 227 U. S. 111, 57 L. ed. 442, 33 Sup. Ct. Rep. 229; Bacon v. Illinois, 227 U. S. 504, 57 L. ed. 615, 33 Sup. Ct. Rep. 299; Illinois C. R. Co. v. De Fuentes, 236 U. S. 157, 59 L. ed. 517, P.U.R. 1915A, 840, 35 Sup. Ct. Rep. 275; Hammer v. Dagenhart, 247 U. S. 251, 62 L. ed. 1101, 3 A.L.R. 649, 38 Sup. Ct.

L. ed. 691, 36 Sup. Ct. Rep. 379; Pitney v. Washington, 240 U. S. 387, 60 L. ed. 703, 36 Sup. Ct. Rep. 385; Keokee Consol. Coke Co. v. Taylor, 234 U. S. 224, 58 L. ed. 1288, 34 Sup. Ct. Rep. 856; Central Lumber Co. v. South Dakota, 226 U. S. 157, 57 L. ed. 164, 33 Sup. Ct. Rep. 66; Otis v. Parker, 187 U. S. 606-610, 47 L. ed. 323-328, 23 Sup. Ct. Rep. 168; Rast v. Van Deman & L. Co. 240 U. S. 342, 60 L. ed. 679, L.R.A.1917A, 421, 36 Sup. Ct. Rep. 370, Ann. Cas. 1917B, 455; Brazee v. Michigan, 241 U. S. 340, 60 L. ed. 1034, 36 Sup. Ct. Rep. 561, Ann. Cas. 1917C, 522; Hutchinson Ice Cream Co. v. Iowa, 242 U. S. 153, 61 L. ed. 217, 37 Sup. Ct. Rep. 28, Ann. Cas. 1917B, 643; Price

v, Illinois, 238 U. S. 446, 59 L. ed. 1400,, 35 Sup. Ct. Rep. 892; Pure Oil Co. v. Minnesota, 248 U. S. 158, 03 L. ed. 180, 39 Sup. Ct. Rep. 35; Standard Oil Co. v. Graves, 249 U. S. 389, 63 L. ed. 662, 39 Sup. Ct. Rep. 320; Missouri P. R. Co. v. McGrew Coal Co. 244 U. S. 199, 200, 61 L. ed. 1081, 1082, 37 Sup. Ct. Rep. 518; Valley S. S. Co. v. Wattawa, 244 U. S. 202, 61 L. ed. 1084, 37 Sup. Ct. Rep. 523; Hall v. Geiger-Jones Co. 242 U. S. 539, 61 L. ed. 480, L.R.A.1917F, 514, 37 Sup. Ct. Rep. 217, Ann. Cas. 1917C, 643; Caldwell v. Sioux Falls Stock Yards Co. 242 U. S. 559, 61 L. ed. 493, 37 Sup. Ct. Rep. 224; Merrick v. N. W. Halsey & Co. 242 U. S. 568, 61 L. ed. 498, 37 Sup. Ct. Rep. 227; Mackay Teleg. & Cable Co. v. Little Rock, 250 U, S. 94, 63 L. ed. 863, 39 Sup. Ct. Rep. 428; Postal Teleg.-Cable Co. v. Richmond, 249 U. S. 252, 63 L. ed. 590, 39 Sup. Ct. Rep. 265; American Mfg. Co. v. St. Louis, 250 U. S. 459, 63 L. ed. 1084, 39 Sup. Ct. Rep. 522; Wagner v. Covington, 251 U. S. 95, 64 L. ed. 157, 40 Sup. Ct. Rep. 93.

There should be no hesitancy in extending protection to state laws providing for the grading and inspection of grain, and the licensing of dealers there

in.

Munn v. Illinois, 94 U. S. 135, 24 L. ed. 87; W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 45 L. ed. 619, 21 Sup. Ct. Rep. 423; House v. Mayes, 219 U. S. 270, 55 L. ed. 213, 31 Sup. Ct. Rep. 234. The United States Grain Standards Act can have no effect whatsoever.

Weigle v. Curtice Bros. Co. 248 U. S. 285, 288, 63 L. ed. 242, 250, 39 Sup. Ct. Rep. 124; Merchants Exch. v. Missouri, 248 U. S. 365, 63 L. ed. 300, 39 Sup. Ct. Rep. 114.

Mr. David F. Simpson argued the cause, and, with Messrs. W. A. McIntyre, 0. B. Burtness, Sveinbjorn Johnson, William A. Lancaster, John Junell, James E. Dorsey, and Harold G. Simpson, filed a brief for appellee:

The North Dakota statute is in violation of the commerce clause of the Federal Constitution.

Gibbons v. Ogden, 9 Wheat. 194, 6 L. ed. 68; The Daniel Ball, 10 Wall. 557, 564, 19 L. ed. 999, 1001; W. W. Montague & Co. v. Lowry, 193 U. S. 39, 48 L. ed. 609, 24 Sup. Ct. Rep. 307; Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678.

The decision of the trial court erroneously attempts to separate the initial purchase from the interstate commerce in grain on the ground that the

purchase precedes the actual transportation, and takes place wholly within the state of North Dakota.

Gibbons v. Ogden, 9 Wheat. 189, 6 L. ed. 68; Brown v. Maryland, 12 Wheat. 419, 446, 6 L. ed. 678, 688; Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681; Re Rahrer, 140 U. S. 545, 35 L. ed. 572, 11 Sup. Ct. Rep. 865; Plumley v. Massachusetts, 155 U. S. 461, 39 L ed. 223, 5 Inters. Com. Rep. 590, 15 Sup. Ct. Rep. 154; Vance v. W. A. Vandercook Co. 170 U. S. 438, 42 L. ed. 1100, 18 Sup. Ct. Rep. 674; Schollenberger v. Pennsylvania, 171 U. S. 1, 43 L. ed. 49, 18 Sup. Ct. Rep. 757; Heyman v. Southern R. Co. 203 U. S. 270, 51 L. ed. 178, 27 Sup. Ct. Rep. 104, 7 Ann. Cas. 1130.

The character and nature of commerce must be determined by the course of that commerce as it actually exists.

Swift & Co. v. United States, 196 U. S. 375, 49 L. ed. 518, 25 Sup. Ct. Rep. 276; Pennsylvania R. Co. v. Clark Bros. Coal Min. Co. 238 U. S. 456, 59 L. ed. 1406, 35 Sup. Ct. Rep. 896; McCall Co. v. J. D. Stiff Dry Goods Co. - Tex. Civ. App. —, 142 S. W. 659.

The very organization and existence of the plaintiff corporation demonstrates that the original purchase of grain in North Dakota is a part of interstate commerce.

The North Dakota statute prohibits anyone from buying grain in North Dakota until such grain has been inspected and graded by a North Dakota deputy inspector. Thereby it interferes with and places a direct burden upon interstate commerce.

Robbins v. Taxing Dist. 120 U. S. 489, 30 L. ed. 694, 1 Inters. Com. Rep. 45, 7 Sup. Ct. Rep. 592; Brennan v. Titusville, 153 U. S. 289, 38 L. ed. 719, 4 Inters. Com. Rep. 658, 14 Sup. Ct. Rep. 829; State v. Chicago G. W. R. Co. 125 Minn. 332, 147 N. W. 109; Minnesota v. Barber, 136 U. S. 313, 34 L. ed. 455, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep. 862.

The North Dakota statute requires the grading of all grain bought or shipped within the state according to state grades. The bulk of this grain moves in interstate commerce. The grading of grain moving in interstate commerce requires a uniform rule. A required state grading interferes with interstate com

merce.

Globe Elevator Co. v. Andrew, 144 Fed. 871; Mobile County v. Kimball, 102 U. S. 697, 26 L. ed. 239.

The existence of a state power to regulate public warehouses does not in any degree tend to establish a state power to directly regulate and control the marketing of grain in interstate

commerce.

Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77; Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557, 30 L. ed. 244, 1 Inters. Com. Rep. 31, 7 Sup. Ct. Rep. 4; Hall v. DeCuir, 95 U. S. 485, 24 L. ed. 457; Budd v. New York, 143 U. S. 517, 36 L. ed. 247, 4 Inters. Com. Rep. 45, 12 Sup. Ct. Rep. 468; Brass v. North Dakota, 153 U. S. 391, 38 L. ed. 757, 4 Inters. Com. Rep. 670, 14 Sup. Ct. Rep. 857; W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 45 L. ed. 619, 21 Sup. Ct. Rep. 423; Merchants Exch. v. Missouri, 248 U. S. 365, 63 L. ed. 300, 39 Sup. Ct. Rep. 114.

Mr. Justice Day delivered the opinion of the court:

This suit was brought by the complainant, a co-operative association in corporated under the laws of North Dakota, and engaged in the business of operating a public elevator and warehouse for the purchase, sale, distribution, and storage of wheat, oats, rye, barley, seeds, and flax at the village of Embden in that state. The association | retains no profit. If there is a surplus over operating expenses at the close of the season, such surplus is distributed among the grain growers according to the amount sold by each. The purpose of the suit is to enjoin the enforcement of the North Dakota Grain Grading and Inspection Act, passed February 11, 1919, chapter 138, North Dakota Laws 1919. The bill, omitting allegations [52] as to certain Federal statutes which have become obsolete, is based upon two grounds: 1st. That the state statute is an unlawful regulation of and burden upon interstate commerce, and, therefore, violates the commerce clause of the Fed eral Constitution. 2d. That the state statute is in conflict with the Federal Grain Standards Act of August 11, 1916, chapter 313, 39 Stat. at L. 482, 485.

ney general of North Dakota on behalf of all the defendants, and later a separate answer was filed on behalf of Ladd and McGovern, officials charged with the execution of the state laws. Upon trial the district court denied the injunction, and held that the state statute did not place a burden upon interstate commerce, and was not in conflict with the Federal Grain Standards Act, and entered a decree accordingly, from which appeal was taken to the circuit court of appeals for the eighth circuit. That court reversed the decree of the district court, held the state statute unconstitutional and invalid as in conflict with the Federal statute, and directed the issuance of a permanent injunction to prevent the enforcement of the state law. 19 A.L.R. 148, 273 Fed. 635.

At the threshold we are met with a question of the jurisdiction of the circuit court of appeals to review the decree of the district court. It is well settled that when the jurisdiction of the district court rests solely upon an attack upon a state statute because of its alleged violation of the Federal Constitution, a direct appeal to this court is the only method of review. Section 238, Judicial Code. [53] Carolina Glass Co. v. South Carolina, 240 U. S. 305, 60 L. ed. 658, 36 Sup. Ct. Rep. 293, and cases cited. It is equally well settled that where the jurisdiction is invoked upon other Federal grounds, as well as the one attacking the constitutionality of a statute of a state, an appeal may be taken to the circuit court of appeals, with ultimate review in this court if the cause is within a class within our jurisdiction. In our view the case falls within the class permitting appeal to the circuit court of appeals. Section 24, Judicial Code, gives to the district court iurisdiction of cases arising under the Constitution or laws of the United States. The attack upon the state statute because of its repugnancy to the Federal statute required a consideration and construction of both statutes, and their application to the facts found. These considerations presented a ground of jurisdiction arising under a law of the United States, and was not dependent solely upon the ap plication and construction of the Federal Constitution. Spreckels Sugar Ref. Co. v. McClain, 192 U. S. 397, 407, 48 L ed. 496, 499, 24 Sun. Ct. Rep. 396; Pomona v. Sunset Teleph. & Teleg. Co. 224 U. S. 330, 56 L. ed. 788, 32 Sup. Ct. Rep. 477. We therefore hold that the circuit court of appeals had juris

Upon filing its bill, complainant moved for a temporary injunction, which application was heard before three Federal judges. A motion to dismiss the suit was also filed. The court denied this motion and granted a temporary injunction, finding that the North Dakota law imposed a substantial burden upon interstate commerce, and was in conflict with the Federal Grain Standards Act. After-diction of the cause. wards an answer was filed by the attor- We pass to a consideration of the

merits. The record discloses that North | This court rejected the conclusion of the
Dakota is a great grain-growing state, state court, and held that the buying, no
producing annually large crops, particu- less than the selling, of grain, under such
larly wheat, for transportation beyond circumstances, was a part of interstate
its borders. Complainant, and other commerce, committed to national control
buyers of like character, are owners of by the Federal Constitution. Applying
elevators and purchasers of grain bought the principle of that decision, and the
in North Dakota, to be shipped to and previous decisions [55] of this court,
sold at terminal markets in other states, cited in the opinon, the complainant's
the principal markets being at Minneap- course of dealing in the buying of grain,
olis and Duluth. There is practically which it purchased and sold under the
no market in North Dakota for the grain circumstances as herein disclosed, was
purchased by complainant. The Min- interstate commerce. Being such, the
neapolis prices are received at the eleva-state could not regulate the business by
tor of the complainant from Minneapolis a statute which had the effect to con-
four times daily, and are posted for the trol and burden interstate commerce.
information of those interested. To these
figures the buyer adds the freight and his
"spread," or margin, of profit. The
[54] purchases are generally made with
the intention of shipping the grain to
Minneapolis. The grain is placed in the
elevator for shipment, and loaded at once
upon cars for shipment to Minneapolis
and elsewhere outside the state of North
Dakota. The producers know the basis
upon which the grain is bought, but who-
ever pays the highest price gets the
grain, Minneapolis, Duluth, or else-
where. This method of purchasing, ship-
ment, and sale is the general and usual
course of business in the grain trade at
the elevator of complainant and others
similarly situated. The market for grain
bought at Embden is outside the state of
North Dakota, and it is an unusual thing
to get an offer from a point within the
state. After the grain is loaded upon
the cars it is generally consigned to a
commission merchant at Minneapolis. At
the terminal market the grain is inspected
and graded by inspectors licensed under
Federal law.

Nor is this conclusion opposed by cases
decided in this court and relied upon by
appellants, in which we have had occa-
sion to define the line between state and
Federal authority under facts presented,
which required a definition of interstate
commerce where the right of state taxa-
tion was involved, or manufacture or
commerce of an intrastate character was
the subject of consideration. In those
cases we have defined the beginning of
interstate commerce as that time when
goods begin their interstate journey by
delivery to a carrier or otherwise, thus
passing beyond state authority into the
domain of Federal control. Cases of that
type are not in conflict with principles
recognized as controlling here. None of
them indicates, much less decides, that in-
terstate commerce does not include the
buying and selling of products for ship-
ment beyond state lines. It is true, as
appellants contend, that after the wheat
was delivered at complainant's elevator,
or loaded on the cars for shipment, it
might have been diverted to a local mar-
ket or sent to a local mill. But such was
That such course of dealing constitutes not the course of business. The testi-
interstate commerce, there can be no mony shows that practically all the wheat
question. This court has so held in many purchased by the complainant was for
cases, and we have had occasion to dis- shipment to and sale in the Minneapolis
cuss and decide the nature of such com- market. That was the cou..e of business,
merce in a case closely analogous in its and fixed and determined the interstate
facts, and altogether so in principle character of the transactions. Swift &
Dalinke-Walker Mill. Co. v. Bondurant. Co. v. United States, 196 U. S. 375, 49
decided December 12, 1921 [257 U. SL. ed. 518, 25 Sup. Ct. Rep. 276; Eureka
282, ante, 239, 42 Sup. Ct. Rep. 106]. In Pipe Line Co. v. Hallanan, decided by
that case the facts disclose that a com- this court December 12, 1921 [257 U. S.
pany organized in Tennessee, and carry-265, ante, 227, 42 Sup. Ct. Rep. 101];
ing on business there, went into Ken-
tucky, and, through an agent there
bought wheat for shipment to the com-
pany's mill in Tennessee. The state court
held that the transaction was merely a
purchase of wheat in Kentucky, and
made the Tennessee company amenable
to the regulatory statutes of the state.

and United Fuel Gas Co. v. Hallanan,
decided the same day [257 U. S. 277,
ante, 234, 42 Sup. Ct. Rep. 105.]

In view of this state of facts, we come
to inquire whether the North Dakota
statute is a regulation of interstate [56]
commerce, and, therefore, beyond the
legislative power of the state. Pertinent

parts of the act are stated in the margin.1

This act shows a comprehensive scheme to regulate the buying of grain. Such

1Authority is given to a state inspector | state inspector of grades, weights and measappointed by the governor,

(a) To appoint a chief deputy inspector of grades, weights and measures; a chief elevator accountant; deputy inspector of grades, weights and measures; state deputy inspector of grades, weights and measures, and warehouse inspectors;

(b) To issue licenses to warehouses, buyers and solicitors of grain and other agricultural products;

(d) To establish uniform grade certificates used in marketing the grain, etc.;

(e) To hear and determine appeals from state deputy inspectors and from deputy inspectors of grades, weights, and meas

(k) To make rules, etc., to carry out the provisions of the act.

Sec. 3. It is made the duty of the inspector of grades, weights and measures to define and establish uniform grades and weights for grain, etc. In establishing such grades, dockage shall be considered as being of two classes: (1st) that having value, (2d) that having no value, the former to be paid for at its market value.

Sec. 4. The term "deputy inspector of grades, weights and measures" under this act means any firm, person, company, corporation or association that buys, weighs and grades grain, etc., and holds a license issued there for by the state inspector of grades, weights and measures.

Sec. 5. The term "state deputy inspector of grades, weights and measures" within the meaning of this act is defined as one who is in the employment of the state of North Dakota and has received an appointment from the state inspector of grades, weights and measures.

Sec. 10. Deputy inspectors weigh, inspect and grade grain that shall be offered for sale or shipment at their market place, according to the provisions of this act and the rules and regulations established by the state inspector. They shall issue a certificate stating the kind of grain, etc., giving the grade, test weight per bushel and the reason for all grades below number 1, and shall deliver to the owner or agent of such grade of said certificate; it is also made their duty to accurately sample grain, etc., in wagon loads, carloads or other containers and forward samples thereof to the

ures when instructed by him to do so.

Sec. 11. The state inspector may issue a license to any person engaged in buying, weighing, inspecting and grading grain, etc., or to the buyer or agent of a privately or publicly owned warehouse, elevator or flour mill provided they pass an examination as to their competency as may be prescribed by the state inspector; the license requires such deputy inspectors to fix grades and dockage of grain, etc., inspected at their respective places of business-and to weigh same according to this act, and the regulations promulgated thereunder. State inspectors may issue licenses to persons soliciting or procuring assignments of grain, etc., after they have passed an examination as to their competency; state inspectors may suspend or revoke licenses when he determines licensee is incompetent; or has knowingly or carelessly graded grain improperly; or has issued any false certificate of grading; or violated act or rules made thereunder, etc.

Sec. 14. Makes it unlawful for any person to buy or grade grain, etc., without a license, as a deputy inspector of grades, weights and measures; or for any person, corporation, association operating a public warehouse to purchase, weigh, grade or inspect grain, etc., without first obtaining a deputy inspector's license, provided that this section shall not prohibit state deputy inspectors from inspecting, weighing and grading grain, etc., under the direction and supervision of the state inspector; and shall not prohibit producers from buying and selling grain, etc., to one another.

Sec. 16. The state inspector after cancelation or suspension of license may permit the business of the licensee to be completed and closed out under the inspection and supervision of a state deputy inspector who shall be stationed at the place of business of such licensee; all expenses to be paid by the licensee.

Sec. 18. The state inspector may estab. lish central markets for the display of samples of grain, etc., at cities or towns within, or without the state of North Dakota. Such markets shall be open to any and all persons desiring to buy and sell on said market and shall be operated and conducted under such rules and regulations as the state inspector may establish.

Sec. 20. Makes it the duty of all deputy inspectors to keep a record showing: names and addresses of patrons of their respective warehouses, elevators, or mills; prices paid for agricultural products; the grades given; prices received and the grades received at

terminal markets or within the state.

Sec. 23. The state inspector is authorized, upon complaint of a producer of grain, etc., that any warehouse, elevator or mill is paying an unreasonable margin, to investigate, determine and establish a reasonable margin to be paid such producer for grain, etc.

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United States Supreme Court Reports, Volum 66;Volumer 257-259