Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1890-08-29

or handling of grain, it will not be further
considered in this opinion. To attempt to
state even in a condensed form the various
provisions of these several laws, or to state
the reasons upon which my conclusions
are based, would extend this opinion be-
fore content myself by simply stating as
briefly as possible the conclusions l have
arrived at with reference to the laws
hereinbefore referred to. In my opinion,
chapter 1877 Of the laws of 1890, being a
complete revision upon the whole subject
of buying, selling and handling of grain of
all kinds in the state of North Dakota,
thereby repealed chapter 1870 of the general
laws Of 1887; chapter 100 OF the laws of
1890 being an amendment of section 4 of
said chapter 1S0 Of the laws of 1887 and
having been passed and approved a long
time prior to chapter 1877 of the laws Of
1890 was also repealed thereby. My first
impression was that chapter 1877 of the
laws of 1890 was itself repealed by the pro-
visions of chapter 1888, which was subse-
quently adopted. Repeats by Implication
are not favored in law; and after careful
and painstaking study of the provisions of
both of said chapters, and keeping in view
the main objects sought to be accom-.
plished in each of said laws, am of the
opinion that chapter 1877 is not repealed by
chapter l8S, but that both may consistently
stand together.
l am therefore of the opinion
that while there are many pro-
visions OF general nature in chapter 1888,
the language of which is broad enough to
apply to any and all elevators and ware
houses in the state, yet such language
when considered in the light of the main
object OF said chapter, can reasonably be
construed as applying only to the public
warehouses defined in said act and located
at Grand Forks, Fargo, Wahpeton and Fair
mount. Said chapter 1888 never having
been put into practical operation by the
commissioners Of railroads for the reason
that the $500 appropriated for that pur-
pose was wholly inadequate to carry out
the provisions OF said law. do not think
the same should be considered in deter
mining regulations for the buying, selling,
storing and handling of grain in North
Dakota. There are some general provis-
ions with reference to the duties and pow
ers of the commissioners of railroads over
the grain interests Of the state that are
undoubtedly in force: This leaves chapter
1877 and chapter 1873 OF the laws of 1890 Still
in force, except 50 far as chapter 1877 is
modified by the provisions of chapter 1888:
section IA of c hapter 1877 requires every
public WarehOuseman TO procure a license
from the the county auditor of the respec.
tive counties at a fee of ST. for 1000
bushels of elevator capacity and chapter
100 lSllAilc CO ouCIl ptlDllC WdiCIlOuSCulan 10
procure state license from the commits
Sioners of railroads and the fee is fixed at
$3.50 per 1000 bushels of elevator capacity
or ma jOr fraction thereof, and that no IL
cense shall be issued for less tnan S25
l am of the opinion that chapter 1873, being
the latter expression of the legislative in
tent, necessarily repeals the provisions of
section IA of chapter 1877 and that the H.
| cense fee now required is at the rate of
$3.50 per 1000 bushels of elevator capacity
as provided in chapter 1873. 1t is claimed
by the elevator companies that the execl,-
ton OF any license fee in addition to the
payment OF their regular taxes
upon the assessed Valuation OF
their property is unjust. 1t is further
claimed that the provisions of section 10 of
chapter 1877, which requires a receipts issued
for any kind of grain the quality Of which
falls below the highest standard, not only
to express and determine the grade, but
shall likewise expressly state how many
cents per bushel below the price for the
highest grade such grain shall be bought
at when sold, is an unlawful restraint of
trade, and therefore void.
They further claim that the maximum
rates fixed in section % of said chapter 1877
for receiving, elevating, insuring, storing
| ana delivering grain are unreasonable and
less than actual cost thereof to them and
that said act Is upon that ground unc0nsti-
tutional. The constitution of the United
States and of this state guarantee to every
person engaged in a public business the
right to receive a reasonable compensation
for the services rendered the public; and
this right is expressly recognized in sec
ton of said chapter 1877, which provides
that such public Warehouseman is entitled
to receive a reasonable charge per bushel
for receiving, handling, storing and insur~
ance charges. II, then, the claim made by
ofOr fInf
rates for WarehOuSing are unreasonable
and less than cost, the law to that extent
would be unconstitutional and void under
the decisions of the United States supreme
court. Or, if the requirements of section
10. requiring such warehousemen to state
upon the face of each receipt how many
cents per bushel below the price for the
rior grade as contained in such receipt is
an unlawful restraint of trade, then to that
extent the law would be void.
These are all proper questions for the
court in any action. civil or criminal.
brought under the provisions Of said act,
The law is now well established that
portions of an act may be Unconstitutional
and void and yet the whole act not fail. l
DO not think that the provisions of sections
related to the rest OF the act that their
being held void would destroy the validity
OF the act, and am therefore Of the opinion
that the balance of said act is valid and
may be enforced, even though for the rea-
sons above suggested the courts should
hold that sections 10 and 22 were unconsti-
tutional and void. | am also of the opinion
that the provisions of chapter 1873, requir.
ing public WarehousemenI to pay a reason
able license fee in addition to their regu-
iarly assessed taxes is a valid exercise of
the legislative power, and that the fee