# Brass v. North Dakota ex rel. Stoeser/Dissent Brewer

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Brewer
United States Supreme Court
153 U.S. 391
Brass v. North Dakota ex rel. Stoeser
Mr. Justice BREWER, dissenting.
I dissent from the opinion and judgment of the court in this case. Reliance is placed in that opinion on Munn v. Illinois, 94 U.S. 113, and Budd v. New York, 143 U.S. 517, 12 Sup. Ct. 468. In the dissenting opinion I filed in the latter case, I expressed, so far as was necessary, my views in reference to the general propositions laid down in the two cases, and I do not desire to repeat what I there said. It is a significant fact that in Sinking-Fund Cases, 99 U.S. 700, 747, and in Wabash, St. L. & P. Ry. Co. v. People of Illinois, 118 U.S. 557, 569, 7 Sup. Ct. 4, Mr. Justice Bradley and Mr. Justice Miller, who concurred in the judgment in Munn v. Illinois, each sought to limit and qualify the scope of the language used by the chief justice in that case. These are the words of Mr. Justice Bradley:
'The inquiry there was as to the extent of the police power in cases where the public interest in affected; and we held that when an employment or business becomes a matter of such public interest and importance as to create a common charge or burden upon the citizen,-in other words, when it becomes a practical monopoly, to which the citizen is compelled to resort, and by means of which a tribute can be exacted from the community,-it is subject to regulation by the legislative power.'
And this is the language of Mr. Justice Miller, delivering the opinion of the court:
'And in that case the court was presented with the question, which it decided, whether any one engaged in a public business, in which all the public had a right to require his service, could be regulated by acts of the legislature in the exercise of this public function and public duty, so far as to limit the amount of charges that should be made for such service.'
I desire, however, specially to notice the facts disclosed by this record, and to point out to what extent the decision of this court now goes. The case, coming from the supreme court of the state of North Dakota, must be determined upon the record as it is presented. Nothing can be added to or taken from the facts, as established by that record. The case was heard and determined upon a demurrer to the return made by the defendant to the petition and writ of mandamus; and of course, upon such demurrer, the facts stated in the return are to be taken as true. From that return it appears that along the line of the Great Northern Railroad, in the state of North Dakota, there are about 600 grain elevators; that at Grand Harbor, a small way station on the line of that road, there are three elevators, one of them being that owned by the defendant; that defendant's elevator is a small one, with a capacity of 30,000 bushels, and costing about $3,000. For aught that appears, the elevator was on the private property of the defendant, though contiguous to the railroad, and at the railroad station. It is further admitted:
'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 the business of storing grain for third persons is, and always 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 contracts.
'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 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 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 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 conduct of his said business, and respondent subjected to suits for damages for nonfulfillment of his said contract.'
The rates which were established by law were as follows: '(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.'
It appears from these admissions that the principal business of defendant was that of buying wheat, and shipping it to Minneapolis and Duluth for sale, and that he operated and maintained his elevator for the exclusive purpose of purchasing grain to fill his contracts; and while at the time the elevator was not full, and there was room for the storage of the grain tendered by the petitioner, and the defendant had at times used vacant space in his elevator for the storage of grain of others, yet such use was a mere incident to, and subordinate to, his principal business of buying and selling grain, for which principal business he exclusively maintained and operated his elevator.
Now, my first objection is that by this decision a party is compelled by the mandate of the court to engage in a business which he never intended to engage in, and which he does not desire to engage in, to wit, the business of maintaining a public elevator. His business is that of buying and selling grain, and he operates and maintains the elevator, which he owns, for the exclusive purpose of carrying on that business. That he may have sometimes accommodated his neighbors by the use of his elevator for the storage of their grain, and thus, to a limited extent, engaged in that business, does not change the fact, as admitted, that his principal business was that of buying and selling, and that he operated and maintained that elevator exclusively for the carrying on of that business, or the other admitted fact, that, if he is compelled, as he is compelled by this mandate, to receive grain, as tendered, so long as he has storage capacity unoccupied in his elevator, his principal business, and that for which he built the elevator, will be utterly ruined and destroyed.
The question is not whether, if he should receive and store in his elevator grain for others, he might not so far bring himself within the scope of the law as to be deemed, for that transaction, engaged in the business of maintaining a public elevator, and thus bound by the charges fixed by statute; but whether, when he maintains an elevator exclusively for his own business, the fact that at times he has used vacant room in it for the storage of the grain of other persons, compels him to receive grain when tendered, irrespective of the injury which it does to his own business. And it is admitted that at the time of this tender there was not sufficient storage capacity in his elevator to hold and store the grain purchased by him in the conduct of his business, and this is a matter of no trifling moment to one engaged in the business of buying and selling grain. He cannot know in advance when grain will be tendered at a price which will justify his purchase with a view to profit. The fact that to-day there may be storage capacity does not prove that to-morrow he may not need the entire capacity of his elevator; and yet if because to-day, there is room in his elevator, he is bound to receive any grain that shall be tendered, he may to-morrow be unable to make purchase of the offered grain. It is a matter of common knowledge that grain is not put into and taken out of an elevator in an instant; and if once deposited the owner cannot be compelled to remove it, merely for the accommodation of the warehouseman, but may leave it there indefinitely, so long as he pays the legal charges. The petition was for a writ of mandamus commanding the defendant, 'so long as the capacity of his said elevator is sufficient for the purpose, to store such grain as may be tendered to him by the relator,' and the decree of the court was that the 'writ issue as prayed for,' and that is the decision which is affirmed by this court.
I dissent, in the second place, because the facts show, in the words of Mr. Justice Bradley, no 'practical monopoly, to which the citizen is compelled to resort, and by means of which a tribute can be exacted from the community.' Along the line of this single road, within the limits of this state, there are about 600 of these elevators, owned and operated by over 125 different persons, varying in cost of construction from $500 to $5,000. At every station there is land purchasable by any one at prices varying from $1.25 to $40 per acre, and a granary sufficient to store the average product of an ordinary Dakota farm can be erected at a cost of not exceeding $150. So it is that when any farmer or other individual can, at a cost of less than $200, provide himself with all the facilities for storing and shipping the entire product of an ordinary farm; when, along the line of a single railroad, there are 600 elevators already constructed, owned, and operated by 125 different persons; when, at every station at which grain is marketed, there are from 2 to 10 such elevators,-it is held that there exists a monopoly such as justifies control by the public of the prices at which grain shall be stored in any one of these many elevators. If this be a monopoly, justifying public control of prices for service, I am at a loss to perceive at what point the fact of monopoly will cease, and freedom of business commence; for, obviously, elevators along the line of that road were as plentiful as other institutions of industry, and as easily and cheaply constructed, and therefore savoring no more of monopoly.
I dissent, in the third place, because by this law the elevator man is bound, not merely to receive, store, and discharge the grain which is tendered to him, but also to insure and pay the cost of insurance, it matters not what that cost may be, whether more or less than he receives for the whole service. I do not care to enlarge upon this matter. If the legislature can compel a party, though confessedly to the disadvantage, injury, and even destruction of his own special business of buying and selling grain, to receive and store grain, for whoever may demand it, in an elevator which he is maintaining and operating for the exclusive carrying on of his own business, at any price which it sees fit to allow, and at the same time compel him to advance the money to insure the property thus forced upon him, I can only say that it seems to me that the country is rapidly traveling the road which leads to that point where all freedom of contract and conduct will be lost. For these reasons, thus briefly stated, I am constrained to dissent from this opinion and judgment.
I am authorized to say that Mr. Justice FIELD, Mr. Justice JACKSON, and Mr. Justice WHITE concur in this dissent.
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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