# Brass v. North Dakota ex rel. Stoeser

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## Dissenting Opinion

    Brewer
United States Supreme Court
153 U.S. 391
Brass v. North Dakota ex rel. Stoeser
Norman Brass, the plaintiff in error, owns and operates a grain elevator in the village of Grand Harbor, in the state of North Dakota. The defendant in error, Louis W. Stoeser, owns a farm adjoining the village, on which, in the year 1891, he raised about 4,000 bushels of wheat. On September 30, 1891, Stoeser applied to store a part of his wheat crop for the compensation fixed by section 11 of chapter 126 of the Laws of North Dakota for the year 1891, which Brass refused to do unless paid therefor at a rate in excess of that fixed by the statute. On this refusal, Stoeser filed in the district court of Ramsey county, N. D., a petition for an alternative writ of mandamus. The district court granted an alternative writ of mandamus, as follows:
'The State of North Dakota to Norman Brass, Respondent: Whereas, the following facts have been made to appear to this court by the verified petition of the above-named relator, to wit: (1) That he is the relator in the above-entitled matter; that he owns and operates a farm containing 540 acres in the vicinity of the railroad station of Grand Harbor, in the county and state aforesaid, and during the year 1891 has raised on said farm about 4,000 bushels of grain, principally wheat. (2) That the relator has not sufficient storage capacity on his farm or elsewhere for said grain so raised as aforesaid, but is dependent almost wholly upon the grain elevators and warehouses in the vicinity of said farm for storage capacity. (3) That fully fifty per cent. of the grain raised in said Ramsey county, North Dakota, is dependent for storage capacity upon the grain elevators and warehouses at the various towns, villages, and railroad stations in said Ramsey county. (4) That the respondent, Norman Brass, is now and at all the time herein stated has owned and operated a grain elevator at the railroad station of Grand Harbor aforesaid for the purpose of buying, selling, storing, and shipping grain for profit. (5) That the relator on the 30th day of September, 1891, hauled fifty-eight bushels of wheat to the grain elevator of respondent, Norman Brass, at Grand Harbor aforesaid, and tendered the same at said elevator of said Norman Brass for storage, and requested said Norman Brass to receive, elevate, insure, and store said grain for twenty days, and at the time tendered to said Brass two cents per bushel for compensation for receiving, elevating, insuring, and storing said grain for twenty days; that said grain, when so tendered as aforesaid, was dry and in a suitable condition for storage, and there was in said grain elevator of said Brass at Grand Harbor aforesaid at said time storage capacity for over twenty-five thousand bushels of grain not in use and wholly unoccupied. (6) That said Brass then and there refused to receive said grain for the purpose aforesaid, and wholly refused to store said grain at said price. (7) That the relator endeavored to secure storage for said grain at the only other elevator in operation at said railroad station of Grand Harbor aforesaid, but said elevator refused to receive relator's grain, upon the same ground as respondent. (8) That the relator is informed and believes that the owners of grain elevators and ware-houses within a radius of fifty miles of Grand Harbor aforesaid refused to receive grain for storage at said price: Now, therefore, this court, in order that justice may be done in this behalf to him, Louis W. Stoeser, relator, does hereby command and enjoin you that immediately upon receipt of this writ you do receive from relator, while your storage capacity at your elevator herein mentioned is sufficient for that purpose, all grain that may be tendered you by the relator in a dry and suitable condition for storage, at a rate of compensation not exceeding the following schedule, viz. for receiving, elevating, insuring, delivering, and twenty days' storage, two cents per bushel; storage rates after the first twenty days, one-half cent per bushel for each fifteen days or fraction thereof, and shall not exceed five cents for six months,-or that you show cause to the contrary before this court, at the courthouse in the city of Devil's Lake, Ramsey county, North Dakota, on the 5th day of October, 1891, at 10 o'clock in the forenoon of said day, or as soon thereafter as counsel can be heard. And how you have executed this writ make known to this court at the time and place aforesaid, and have you then and there this writ.
'Dated Sept. 30th, 1891.'
To which writ appellant made return, by answer, as follows:
'The return of the respondent to the alternative writ of mandamus issued in the above-entitled proceeding shows to the court:
'(1) That the respondent admits the truth of the facts pleaded in said alternative writ.
'(2) For a further return to the said alternative writ, the respondent alleges that he owns and operates only one grain elevator in North Dakota or elsewhere; that the said elevator is the elevator mentioned in said alternative writ, and is situated at Grand Harbor, a small way station on the line of the Great Northern Railroad, containing a population of less than one hundred people; that there are two other elevators owned and operated by different owners, independently of, and in competition with, each other; that there are about six hundred grain elevators, flathouses, and warehouses in said state of North Dakota, at which grain is bought and shipped for profit, which said elevators, warehouses, and flathouses are owned and operated by over one hundred and twenty-five different owners, independent of, and in competition with, each other; that the owners of said elevators, warehouses, and flathouses are individuals engaged in buying and shipping grain, millers who use their elevators to supply their mills with grain, farmers' shipping associations, elevator corporations, and individual farmers; that said elevators, flathouses, and warehouses vary in cost of construction from five hundred dollars to five thousand dollars, and vary in capacity from five thousand to fifty thousand bushels; that there are from two to ten elevators, warehouses, and flathouses operated and owned each by different owners and operators at every station in North Dakota at which grain is marketed; that land upon which it is practicable to erect other elevators at every station in North Dakota at which grain is marketed is unlimited in area, and can be readily purchased at prices varying from one dollar and twenty-five cents per acre to forty dollars per acre; that respondent's said elevator cost, when constructed and fully equipped, about three thousand dollars; that the capacity of the same is about 30,000 bushels.
'That respondent's principal business is that of buying wheat at Grand Harbor, North Dakota, and shipping the same to, and selling it at, Minneapolis and Duluth, Minnesota, to which business that of storing grain for third persons has been a mere incident.
'That all grain purchased by respondent at his said elevator is purchased for the sole purpose of being shipped to and sold at, and is shipped to and sold at, Minneapolis and Duluth, Minnesota.
'That respondent, in the conduct of his said business, contracts with millers and other purchasers of grain at said Minneapolis and Duluth to sell and deliver to said persons, at a future and fixed date, certain quantities of wheat, and operates and maintains his said elevator for the exclusive purpose of purchasing grain to fill said contract.
'That in seasons when the grain yield is light, and railroad facilities are such as to enable grain to be moved rapidly, there is space and storage capacity in respondent's elevator in excess of that used by respondent's grain, and particularly when respondent's contracts for the sale of grain are small, while at other times, when the yield is enormous, as in the present year, respondent's contracts are large, and the quantities of grain presented for shipment are beyond the capacity of the railroads to move, there is not sufficient storage capacity in respondent's elevator to hold and store the grain purchased by respondent in the conduct of his said business.
'That there are located in Minneapolis and Duluth, Minnesota, a great many corporations, persons, and copartnerships engaged in a business known as the 'grain commission' business.
'That those grain commission houses have swarms of agents traveling throughout the state of North Dakota, going from town to town and farm to farm, purchasing grain from farmers in some instances, and in others soliciting farmers to ship their grain to said houses at Minneapolis or Duluth, Minnesota, to be by the latter sold on commission.
'That none of said grain commission houses have or own any storage capacity in North Dakota.
'That if chapter 126 of the Laws of 1891 is valid, and its effect is to compel respondent to receive all grain that may be tendered to him for storage by grain commission men, farmers, grain speculators, and others, without reference to the necessities or condition of respondent's business at any particular time, the entire storage capacity of respondent's elevator will be exhausted in storing grain for third persons, and the principal business of the respondent, to conduct which his capital was invested in said elevator, will be utterly ruined and annihilated, for want of storage capacity to contain wheat purchased by him to fill contracts made by him in the conduc t of his said business, and respondent subjected to suits for damages for nonfulfillment of his said contracts.
'That the relator only offered to pay respondent for the service which he requested him to perform the rate fixed by chapter 126 of the Laws of 1891,-that is, two cents per bushel; that respondent refused to perform the service for less than two and one-half cents per bushel.
'That respondent refuses to comply with the provisions of said chapter 126 on the ground that it abridges his privileges and immunities as a citizen of the United States; that it deprives him of his liberty and property without due process of law, and denies to him the equal protection of the laws, and amounts to a regulation of commerce among the states.
'That for thirteen years last past the rate charged for the storage of grain has been uniform at all elevators, flathouses, and warehouses in North Dakota, and during that time did not exceed the following schedule: For receiving, elevating, insuring, delivering, and fifteen days' storage, two and one-half cents per bushel; after the first fifteen days, one-half cent per bushel for each fifteen days or part thereof, but not to exceed five cents per bushel for six months.
'That the average farm in North Dakota does not exceed in area 160 acres; that the average yield in grain of a quarter section of land in North Dakota does not exceed twenty-five hundred bushels; that a granary sufficient in size to safely and securely store twenty-five hundred bushels of grain can be erected on any farm in North Dakota at a cost not exceeding one hundred and fifty dollars.
'That the business of respondent, and all other persons, firms, and corporations engaged in the business of operating grain elevators, warehouses, and flathouses in North Dakota and the manner in which said business is conducted is not in any manner unwholesome or deleterious to the health, morals, welfare, or safety of the community or society.
'That the railroad and warehouse commissioners of North Dakota, on page 33 of their annual report to the governor for 1890, said: 'In view of the fact that, after thorough investigation, the board deem the charges allowed by section 22, c. 187 (Laws 1890), and also section 10 of said chapter, as unreasonable, the following rules of storage are recommended: (1) For receiving, elevating, insuring, delivering, and fifteen days' storage, two and one-half cents per bushel; (2) after fifteen days, one-half cent per bushel for each fifteen days or part thereof, but not to exceed five cents for six months.'
'That the rates referred to by said commissioners as unreasonable were less than the rate recommended by said board.
'That the respondent denies that the legislature has any power whatever to say whether he shall rent the bins in his elevator or not, and wholly denies the power of the legislature to say what he shall charge for the use of his said elevator, or the bins therein.
'That since the enactment of section nine of chapter 126 of the Laws of 1885 the amount of grain shipped directly by farmers without the intervention of elevators, warehouses, or flathouses has been increasing, and in 1890, as respondent is informed and believes, nearly fifty per cent. of the entire grain product of North Dakota was shipped to Minneapolis and Duluth, Minnesota, by farmers; that the amount of grain shipped in that manner is steadily increasing from year to year.
'That pursuant to section 7, c. 122, Laws 1890, the railroad commissioners adopted and published the following rules to govern the distribution of cars and other freight, which rules are now in operation in said state of North Dakota, to wit:
"State of North Dakota. Office of Commissioners of Railroads.
"Rules for the distribution of cars between stations and shippers:
"(1) In distributing cars to stations for grain loading, they shall be distributed according to the daily average shipments from such stations.
"(2) In distributing cars to shippers for grain loading at stations, agents shall first fill each shipper's order for one car to each. After this is done the balance of the cars shall be distributed among shippers according to the amount of grain in sight offered for shipment by each shipper.
"(3) Parties desiring to load grain on track shall be furnished cars, and shall be allowed for loading time twenty-four hours from the time the car is set on the side track to complete loading, and furnish shipping directions. In case shipper fails to complete loading or furnish shipping directions within twenty-four hours, then, in such case, the railway company may collect upon such cars $3.00 rental for each and every day or part of a day which such cars are delayed after twenty-four hours.
"The above rule as to time and rental charges shall also apply to grain delayed in unloading on track.'
'In connection with said rules in said report said commissioners said: 'We believe that the railroads have labored faithfully to supply cars to shippers, in accordance with these rules, and, so far as their ability to supply the demand permitted, cars have been distributed in conformity therewith. From September 15th to December 15th the demand for cars is double the ability of the roads to supply, and as a necessary consequence delay in supplying cars must ensue. In all cases of complaint as to failure to get cars investigated this year this has been the case, and cars have been supplied as soon as possible by the railroad companies.
"The liberal policy of the railroads in the distribution of cars adopted this year has been of great benefit to the farmers of North Dakota.'
'Wherefore, respondent demands judgment quashing the alternative writ of mandamus, dismissing this proceeding, and for his costs and disbursements laid out and expended in this action.'
To this return, Stoeser interposed a general demurrer, which was sustained; and, Brass electing in open court to stand on his return, a peremptory writ of mandamus was allowed. From this judgment an appeal was taken to the supreme court of Dakota, which court affirmed the order and judgment of the district court, and remitted the record to that court. On May 28, 1892, final judgment was entered in the district court, making the judgment of the supreme court the judgment of the district court, and awarding a peremptory writ of mandamus to execute that judgment. Whereupon, Brass sued out a writ of error to this court.
Mr. Justice Brewer, Mr. Justice Field, Mr. Justice Jackson, and Mr. Justice White dissenting. 52 N. W. 408, affirmed.
J. F. McGee, A. T. Britton, and A. B. Browne, for plaintiff in error.
C. D. O'Brien and H. E. Paine, for defendant in error.
Mr. Justice SHIRAS, after stating the facts in the foregoing language, 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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