# Budd v. New York

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## Dissenting Opinion

    Brewer
United States Supreme Court
143 U.S. 517
Budd v. New York
PEOPLE OF STATE OF NEW YORK ex rel. ANNAN
v. WALSH, Police Justice et al.
No. 644. PEOPLE OF STATE OF NEW YORK ex rel. PINTO
v.
SAME.
No. 645.
February 29, 1892.
On the 9th of June, 1888, the governor of the state of New York approved an act, chapter 581 of the Laws of New York of 1888, which had been passed by the two houses of the legislature, three-fifths being present, entitled 'An act to regulate the fees and charges for elevating, trimming, receiving, weighing, and discharging grain by means of floating and stationary elevators and warehouses in this state.' The act was in these words: 'Section 1. The maximum charge for elevating, receiving, weighing, and discharging grain by means of floating and stationary elevators and warehouses in this state shall not exceed the following rates, namely: For elevating, receiving, weighing, and discharging grain, five-eighths of one cent a bushel. In the process of handling grain by means of floating and stationary elevators, the lake vessels or propellers, the ocean vessels or steam-ships, and canal-boats, shall only be required to pay the actual cost of trimming or shoveling to the leg of the elevator when unloading, and trimming cargo when loading. Sec. 2. Any person or persons violating the provisions of this act shall, upon conviction thereof, be adjudged guilty of a misdemeanor, and be punished by a fine of not less than two hundred and fifty dollars, and costs thereof. Sec. 3. Any person injured by the violation of the provisions of this act may sue for and recover any damages he may sustain against any person or persons violating said provisions. Sec. 4. This act shall not apply to any village, town, or city having less than one hundred and thirty thousand population. Sec. 5. This act shall take effect immediately.'
On the 26th of November, 1888, an indictment, which had been found by the grand jury of Erie county, New York, in the court of sessions of that county, against J. Talman Budd, for charging and receiving fees for elevating, receiving, weighing, and discharging grain into and from a stationary elevator and warehouse, contrary to the provisions of said statute, came on trial before a criminal term of the superior court of Buffalo, Erie county.
The charge in the indictment was that Budd, at Buffalo, on the 19th of September, 1888, being manager of the Wells elevator, which was an elevator and warehouse for receiving and discharging grain in the city of Buffalo, that city being a municipal corporation duly organized in pursuance of the laws of the state of New York and having a population of upwards of 130,000 people, did receive, elevate, and weigh from the propeller called the 'Oceanica,' the property of the Lehigh Valley Transportation Company, a body corporate, 51,000 bushels of grain and corn, the property of said company, into the said Wells elevator, and unlawfully exacted from said company, for elevating, receiving, weighing, and discharging said grain and corn, the sum of one cent a bushel, and also exacted from said company, for shoveling to the leg of the elevator, in the unloading of said 51,000 bushels of grain and corn, $1.75 for every 1,000 bushels thereof, over and above the actual cost of such shoveling.
The facts set forth in the indictment were proved, and the defendant's counsel requested the court to instruct the jury to render a verdict of acquittal, on the ground that the prosecution was founded on a statute which was in conflict both with the constitution of the United States and with that of the state of New York; that the services rendered by Budd, for which the statute assumed to fix a price, were not public in their nature; that neither the persons rendering them, nor the elevator in question, had received any privilege from the legislature; and that such elevator was not a public warehouse, and received no license. The court declined to direct a verdict of acquittal, and the defendant excepted.
The court charged the jury that it was claimed by the prosecution that the defendant had violated the statute in charging more than five-eighths of one cent a bushel for elevating, receiving, weighing, and discharging the grain, and in charging more than the actual cost of trimming or shoveling to the leg of the elevator, in unloading the propeller; that the statute was constitutional; and that the jury should find the defendant guilty as charged in the indictment, if they believed the facts which had been adduced. The defendant excepted to that part of the charge which instructed the jury that they might find the defendant guilty of exacting an excessive rate for shoveling to the leg of the elevator, and also to that part which instructed the jury that they might convict the defendant for having exacted an excessive rate for elevating, receiving, weighing, and discharging the grain and corn.
The jury brought in a verdict of guilty as charged in the indictment, and the court sentenced the defendant to pay a fine of $250, and, in default thereof, to stand committed to the common jail of Erie county for a period not exceeding one day for each dollar of said fine. The defendant appealed from that judgment to the general term of the superior court of Buffalo, which affirmed the judgment. He then appealed to the court of appeals of New York, which affirmed the judgment of the superior court of Buffalo; and the latter court afterwards entered a judgment making the judgment of the court of appealsits judgment. The defendant then sued out from this court a writ of error directed to the superior court of Buffalo.
The opinion of the court of appeals is reported in 117 N. Y. 1, 22 N. E. Rep. 670. It was delivered by Judge ANDREWS, with whom Chief Judge RUGER and Judges EARL, DANFORTH, and FINCH concurred. Judges PECKHAM and GRAY dissented; Judge GRAY giving a dissenting opinion, and Judge PECKHAM adhering to the dissenting opinion which he gave in the case of People v. Walsh, 117 N. Y. 621, 22 N. E. Rep. 682.
On the 22d of June, 1888, a complaint on oath was made before ANDREW WALSH, police justice of the city of Brooklyn, N. Y., that on the preceding day one Edward Annan, a resident of that city, had violated the provisions of chapter 581 of the Laws of New York of 1888, by exacting from the complainant more than five-eighths of one cent per bushel for elevating, weighing, receiving, and discharging a boat-load of grain from a canal-boat to an ocean steamer, and by exacting from the canal-boat and its owner more than the actual cost of trimming or shoveling to the leg of the elevator, and by charging against the ocean steamer more than the actual cost of trimming the cargo; the services being rendered by a floating elevator of which Annan was part owner and one of the agents. On this complaint, Annan was arrested and brought before the police justice, who took testimony in the case, and committed Annan to the custody of the sheriff of the county of Kings to answer the charge before a court of special sessions in the city of Brooklyn. Thereupon writs of habeas corpus and certiorari were granted by the supreme court of the state of New York, on the application of Annan, returnable before the general term of that court in the first instance, but, on a hearing thereon, the writs were dismissed, and Annan was remanded to the custody of the sheriff. The opinion of the general term is reported in 2 N. Y. Supp. 275. Annan appealed to the court of appeals, which affirmed the order of the general term, (117 N. Y. 621, 22 N. E. Rep. 682,) for the reasons set forth in the opinion in the Case of Budd, 117 N. Y. 1, 22 N. E. Rep. 670; and the judgment of the court of appeals was after wards made the judgment of the supreme court. Annan sued out a writ of error from this court, directed to the supreme court of the state of New York.
Like proceedings to the foregoing were had in the case of one Francis E. Pinto; the cbarge against him being that he had exacted from the complainant more than five-eighths of one cent per bushel for receiving and weighing a cargo of grain from a boat into the Pinto stores, of which he was lessee and manager, the same being a stationary grain elevator on land in the city of Brooklyn, N. Y., and had exacted more than the actual cost of trimming or shoveling to the leg of the elevator. Pinto sued out from this court a writ of error to the supreme court of the state of New York.
B. F. Tracy and W. N. Dykman, for plaintiff in error in 644 and 645.
C. F. Tabor, Atty. Gen., and J. A. Hyland, for defendants in error in 644 and 645.
[Argument of Counsel from pages 521-528 intentionally omitted]
Blair Lee and Spencer Clinton, for plaintiff in error in 719.
C. F. Tabor, Atty. Gen., and G. T. Quimby, for defendant in error in 719.
Mr. Justice BLATCHFORD delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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