The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1917-08-08
J. F. T. O'Connor Points Out
Reasons Why Law Is Not
Constitutional
ATTORNEY GENERAL IS
STRONG ON ADMISSIONS
Acknowledge Weakness Of Ger
tain Features; Hopes Oth-
ers Will Stand I'm

July l Is unconstitutional on " counts
was contended by Rep. J. f.. Il. OCOn.
ner Of Grand Forks and former Asso
ciate Justice e. #. Burke of Bismarck
yesterday in arguing the petition for
writ of habeas corpus by which C.
NJ. Gaulke, a Grand Forks grain buyer
arrested for inspecting and grading
grain without a license. seeks his re-
lease from custody of A. +. Turner
sheriff of Grand Forks county. Gaulke
petitioned District Judge Cooley for
a writ Of habcas corpus and appealed
to the supreme court when the writ
was denied. lie is represented by J.
+. IT, O'Connor, and Judge Burke rep
rescntS a number Of track buyers who
believe the purpose of the act is to
legiSlate them out of business. AttOr-
ney General LANCER and his law part
ner, Judge S. l.. NuchOls of Mandan
defended the act, appearing technical
ly as representatives for Sheriff Tur.
nCr.
Why Unconstitutional.
The act is unconstitutional. its as
sailants claimed. because there is
more than one subject in its title; be
cause there arc several subjects in
the bo'y of the act not expressed in
the title; because the act attempts to
delegate legislative powers to officers );
because the act authorizes the state
to engage in private business and
therefore violates fundamental law;
because the act unlaWfully discrimin-
ates and makes an arbitrary classi.
fication because the law attempts to
levy and collect taxes in violation OF
the constitutions; because provisions
of the act make it impossible to know
what part of the present laws will be
repealed; and the act is vague, In
definite and uncertain; because the
act illegally compcls towns to estab.
lish scales and buildings as cOndi
ton precedent to securing deputy
inspector and attempts to tax with.
out benefit; because the apprOpria
tion Of $4,000 for placing the act in
force was not made according to plain
provisions of the constitution; because
the act attempts to regulate inter
state commerce.
Would Save the Pieces.
The attorney general and Judge
Nuchols argued that one feature of
Of i'm,
tional without imperiing the act as
a whole; that the principal purpose
OF the act was the regulation of mar
keting, inspection and grading OF
grain, and that this purpose was ex
pressed in the title; that provisions
relative to cities investing in scales
and scale houses were permissory
rather than mandatory. and that the
admittedly weak feature of the act,
which provides for levying fees for
grading and inspection 2o per cent in
excess of the cost of operating the
aside for the erection of terminal
elevator, was not pertinent and could
be eliminated without affecting the
act as a whole. The state also held
that the act does not discriminate
against track buyers in favor of ele-
vatorS, but that track buyers may
purchase grain which has been in
spected by licensed deputies or may
themselyo IS qualify as licensed deputy
inspectors The state further con-
tended that there was no disCrimna
tion in the fixing Of a fee of so for
lice lsing Of elevator men as deputies
while deputies appointed by the chief
inspector are charged no license fee,
inasmuCh as the former acted in priv
ate and the latter in public Capac-
ity
Provisions Of Act.
The grain grading act provides that
no grain or other farm produce may
be purchased until it has been inspect
ed weighed and graded by deputy
inspector for each of North Dakota S
= 200 elevators, and would place all
of these deputies in charge of DR.. =.
f. Ladd. president of the agricultural
college, as chief inspector DR.. Ladd
has named j A. Mc(;overn of St Paul
as chief deputy inspector, and he and
the railway commission. which is
with responsibility for the
act, have proceeded to place it in oper
alton.
Judge Burke announced in course
of the argument yesterday that Ger
tain features of the act violate the
federal as well as the state rOnStitu
ton. and that the United States Su
preme court ultimately may be asked
to pass on the measure.
Is League Measure.
The act is one passed with the sup
port of the Nonpartisan league last
winter. and it's purpose. as announced
by the league, was to procure just
grades. weights and dockage for the
North Dakota farmers grain. Dr.
Ladd has announced that the newly
established federal grades will be
adopted. Attorney general LANCER. in
a recently published opinion, admitted
that the constitutionality of some fea-
lures of the act were in doubt.
The supreme court is expected to
announce it's ruling. which will clear
up all of these questions, at an early
date.