Statement of the Case.

BUDD v. NEW YORK.

ERROR TO THE SUPERIOR COURT OF BUFFALO, STATE OF NEW YORK.

NEW YORK ex rel. ANNAN v. WALSH.

NEW YORK ex rel. PINTO v. WALSH.

ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.

Nos. 719, 644, 645. Argued November 17, 18, 1891.- Decided February 29, 1892.

An act of the legislature of New York (Laws of 1888, chap. 581) provided that the maximum charge for elevating, receiving, weighing and discharging grain should not exceed five-eighths of one cent a bushel; and that, in the process of handling grain by means of floating and stationary elevators, the lake vessels or propellers, the ocean vessels or steamships, and canal boats, should only be required to pay the actual cost of trimming or shovelling to the leg of the elevator when unloading, and trimming cargo when loading; Held, that the act was a legitimate exercise of the police power of the State over a business affected with a public interest, and did not violate the Constitution of the United States, and was valid.

The case of Munn v. Illinois, 94 U. S. 113, reviewed and adhered to, and its application in cases decided in the state courts considered.

The decision in Chicago &c. Railway Co. v. Minnesota, 134 U. S. 418 explained.

Although the act of New York did not apply to places having less than 130,000 population, it did not deprive persons owning elevators in places of 130,000 population or more, of the equal protection of the laws.

THE case, as stated by the court, was as follows:

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

Statement of the Case.

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 steamships, and canal boats, shall only be required to pay the actual cost of trimming or shovelling to the leg of the elevator when unloading, and trimming cargo when loading. § 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. §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. § 4. This act shall not apply to any village, town, or city having less than one hundred and thirty thousand population. § 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 for 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

Statement of the Case.

discharging said grain and corn, the sum of one cent a bushel, and also exacted from said company, for shovelling to the leg of the elevator, in the unloading of said 51,000 bushels of grain and corn, $1.75 for every 1000 bushels thereof, over and above the actual cost of such shovelling.

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-eights of one cent a bushel for elevating, receiving, weighing and discharging the grain, and in charging more than the actual cost of trimming or shovelling 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 shovelling 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

Statement of the Case.

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 Appeals its 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. 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. 34.

On the 22d of June, 1888, a complaint on oath was made before Andrew Walsh, a police justice of the city of Brooklyn, New York, 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 boatload 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 shovelling 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

Argument for Plaintiff's in Error.

the general term is reported in 50 Hun, 413. Annan appealed to the Court of Appeals, which affirmed the order of the general term, 117 N. Y. 621, for the reasons set forth in the opinion in the case of Budd, 117 N. Y. 1, and the judgment of the Court of Appeals was afterwards 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 charge 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, New York, and had exacted more than the actual cost of trimming or shovelling 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.

Mr. Benjamin F. Tracy and Mr. William N. Dykman for Annan and Pinto, plaintiffs in error.

I. Floating elevators in the port of New York are private. They are not affected with any public interest, and they are not subject to regulation of rates. They are comparable to threshing machines which are moved about the country from one farm to another by horse power. In both machines there is the element of property, but in each case labor predominates.

We are helped in our study of Mr. Annan's status by decisions of the New York Court of Appeals fixing the status of his fellow-laborers in the grain trade.

In Fish v. Clark, 49 N. Y. 122 a canal-boat owner was held not to be a common carrier. The case arose over a cargo lost by the sinking of the boat, and plaintiffs asserted that the defendant canal-boat owner was liable absolutely and without proof of negligence, because, they said, he was a common carrier. The whole case turned on whether he was a public or a private carrier.

It is also settled in New York that the steamboat which