Missouri St. March 20, 1913 (Laws Mo. 1913, pp. 354-373), as amended March 23, 1915 (Laws Mo. 1915, p. 302), not in conflict with the provisions of this chapter. Merchants' Exchange of St. Louis V. State of Missouri ex rel. Baker (1920) 39 S. $ 72. Definitions; "person"; "interstate or foreign commerce." The word "person," wherever used in this chapter, shall be construed to import the plural or singular, as the case demands, and shall include individuals, associations, partnerships, and corporations; the words "in interstate or foreign commerce," wherever used in this chapter, mean, "from any State, Territory, or District to or through any other State, Territory, or District, or to or through any foreign country, or within any Territory or District." (Aug. 11, 1916, c. 313, § 1, 39 Stat. 482.) Historical Note See historical note to section 71, ante, of this title. $73. Liability of principal for act of agent. When construing and enforcing the provisions of this chapter, the act, omission, or failure of any official, agent, or other person acting for or employed by any association, partnership, or corporation within the scope of his. employment or office shall, in every case, also be deemed the act, omission, or failure of such association, partnership, or corporation as well as that of the person. (Aug. 11, 1916, c. 313, § 1, 39 Stat. 482.) Historical Note See historical note to section 71, ante, of this title. § 74. Establishment of grain standards by Secretary; promulgation. The Secretary of Agriculture is hereby authorized to investigate the handling, grading, and transportation of grain and to fix and establish standards of quality and condition for corn (maize), wheat, rye, oats, barley, flaxseed, and such other grains as in his judgment the usages of the trade may warrant and permit, and the Secretary of Agriculture shall have power to alter or modify such standards whenever the necessities of the trade may require. In promulgating the standards, or any alteration or modification of such standards, the Secretary shall specify the date or dates when the same shall become effective, and shall give public notice, not less than ninety days in advance of such date or dates, by such means as he deems proper. (Aug. 11, 1916, c. 313, § 2, 39 Stat. 482.) Historical Note See historical note to section 71, ante, of this title. $75. Designation of official grain standards. The standards fixed and established as authorized in the preceding section shall be known as the official grain standards of the United States. (Aug. 11, 1916, c. 313, § 3, 39 Stat. 483.) Historical Note The grain standards to be established in chapter 10 of this title, by sections 257 under this chapter are adopted for the and 260 of this title. See historical note purposes of the Warehouse Act, contained to section 71, ante, of this title. $76. Compulsory use of official standards; exceptions; inspection and grading after shipment; appeal. Whenever standards shall have been fixed and established under this chapter for any grain no person thereafter shall ship or deliver for shipment in interstate or foreign commerce any such grain which is sold, offered for sale, or consigned for sale by grade unless the grain shall have been inspected and graded by an inspector licensed under this chapter and the grade by which it is sold, offered for sale, or consigned for sale be one of the grades fixed therefor in the official grain standards of the United States: Provided, That any person may sell, offer for sale, or consign for sale, ship or deliver for shipment in interstate or foreign commerce any such grain by sample or by type, or under any name, description, or designation which is not false or misleading, and which name, description, or designation does not include in whole or in part the terms of any official grain standard of the United States: Provided further, That any such grain sold, offered for sale, or consigned for sale by grade may be shipped or delivered for shipment in interstate or foreign commerce without inspection at point of shipment by an inspector licensed under this chapter, to or through any place at which an inspector licensed under this chapter is located, subject to be inspected by a licensed inspector at the place to which shipped or at some convenient point through which shipped for inspection, which inspection shall be under such rules and regulations as the Secretary of Agriculture shall prescribe, and subject further to the right of appeal from such inspection, as provided in section 78 of this chapter: And provided further, That any such grain sold, offered for sale, or consigned for sale by any of the grades fixed therefor in the official grain standards may, upon compliance with the rules and regulations prescribed by the Secretary of Agriculture, be shipped in interstate or foreign commerce without inspection from a place at which there is no inspector licensed under this chapter to a place at which there is no such inspector, subject to the right of either party to the transaction to refer any dispute as to the grade of the grain to the Secretary of Agriculture, who may determine the true grade thereof. No person shall in any certificate or in any contract or agreement of sale or agreement to sell by grade, either oral or written, involving, or in any invoice or bill of lading or other shipping document relating to, the shipment or delivery for shipment, in interstate or foreign commerce, of any grain for which standards shall have been fixed and established under this chapter, described, or in any way refer to, any of such grain as being of any grade other than a grade fixed therefor in the official grain standards of the United States. (Aug. 11, 1916, c. 313, § 4, 39 Stat. 483.) Historical Note See historical note to section 71, ante, of this title. Notes of Decisions 1. Forfeiture under, Food and Drugs Act notwithstanding compliance with Grain Standards Act.-Where oats shipped in interstate commerce contained 23 per cent. of foreign material, a percentage of which was commercial wild oats which had been intentionally added, they were subject to forfeiture under the provisions of sections 1 to 15 of Title 21, Food and Drugs, notwithstanding that the oats were graded by an authorized inspector as sampled oats and so sold, under this section, and Regulatory Announcements No. 46, §§ 1, 13, and 14, authorizing shipment of oats in their natural state containing as high as 25 per cent. of foreign material. U. S. v. 154 Sacks of Oats (D. C. Va. 1922) 283 F. 985. See, also. (D. C. Va. 1923) 294 F. 340. 2. State act as invalid. In Farmers' Grain Co. v. Langer (C. C. A. N. D. 1921) 273 F. 635, 19 A. L. R. 148, motion to vacate stay and supersedeas granted, Lemke v. Farmers' Grain Company of Embden (1921) 42 S. Ct. 95, and affirmed (1922) 258 U. S. 50, 42 S. Ct. 244, 66 L. Ed. 458. Laws N. D. 1919, c. 138, attempting to regulate the shipment of grain by imposing certain license fees and providing for the establishment of uniform grades and weights and for the inspection of grain was held to be invalid as being both contrary to the commerce clause of the Federal Constitution and also as being in conflict with the provisions of this chapter. The court said as to the question of conflict with the federal act: "There remains to be considered the question as to whether the state law conflicts with the United States Grain Stand ards Act. As we have said with reference to the question as to whether the law is a burden on interstate commerce, so we say now that if the purchase of grain in North Dakota under the evidence in this case, and the shipment thereof to the terminal markets mentioned for sale, is a unit in interstate commerce, then of course any attempt to regulate that commerce by the state of North Dakota is in direct conflict with the Grain Standards Act, wherein Congress sought to establish a uniform system for the inspection and grading of such grain moving in interstate commerce. Both acts ought not to be and cannot be enforced, without confusion and embarrassment as the state inspector declared. Section 4 of the Grain Standards Act [this section] heretofore quoted, makes it unlawful to ship or deliver for shipment in interstate or foreign commerce any such grain which is sold, offered for sale, or consigned for sale by grade, unless the grain shall have been inspected and graded by an inspector licensed under the act. By the second proviso of said section such grain may be shipped or delivered for shipment in interstate or foreign commerce without inspection at point of shipment by an inspector licensed under the act to or through any place at which an inspector licensed under the act is located subject to be inspected by a licensed inspector at the place to which shipped or at some convenient point through which shipped for inspection, which inspection shall be under such rules and regulations as the Secretary of Agriculture shall prescribe. This proviso, as we understand it, would authorize a ship ment of grain in interstate commerce from a point in North Dakota where there was no licensed inspector under the federal act to Minneapolis or Duluth, in Minnesota, to be there inspected by a federal inspector. The state law, however, declares that one may not even buy a bushel of wheat for shipment in interstate commerce without taking out a license to do so and promising to obey all the provisions of the state law and the regulations of the state inspector, and the wheat purchased must be inspected in North Dakota and again at Duluth or Minneapolis. This brings the two laws clearly in conflict, if they both have to do with interstate com merce. "As we have said before, the state law authorizes the state inspector to establish grades for grain and the Secretary of Agriculture by the Grain Standards Act is vested with the same power. These powers are directly in conflict, if they both relate to interstate commerce in grain. The United States Grain Standards Act provides that no person licensed by the Secretary of Agriculture to inspect or grade grain during the term of such license or employment shall be interested, financially or otherwise, directly or indirectly, in any grain elevator or warehouse, or in the merchandising of grain, nor shall he be in the employment of any person or corporation owning or operating any grain elevator or warehouse. The state law provides that the term 'deputy inspector of grades, weights and measures,' within the meaning of the law, shall mean any firm, person, company, corporation, or association that buys, weighs, and grades grain, seeds, and other agricultural products who holds a license issued therefor by the state inspector of grades, weights and measures. Thus one law requires that the inspector shall have no interest in the business and the other law requires that he shall. Which law is to prevail? Certainly the federal law, if the business is interstate commerce. It is useless to discuss further the matter of conflict, for the reason that, if both laws relate to the same subject, the state law attempts to regulate something that the state has no power to regulate, and, Congress having acted, the state law is in direct conflict with the federal law." Under contract for sale of grain shipped in interstate commerce providing that "all sales of grain are of Kansas City official grades existing at time of delivery which shall be conclusive between the parties hereto," parties held not bound by grade as established by official grain grader of Kansas City, where no authority was delegated to him directly or indirectly in the contract, and test made was not such as came within the intent of the parties, and certificate of Western Weighing and Inspection Bureau, under United States Grain Standards Act, describing grain as "bulk wheat" being more readily credited. Blum Milling Co. v. Moore-Seaver Grain Co. (Tex. Com. App. 1925) 277 S. W. 78, reversing Moore-Seaver Grain Co. v. Blum Milling Co. (Tex. Civ. App. 1924) 264 S. W. 551. § 77. Misrepresentation respecting grade; reexamination by Secretary of inspected grain; hearing and publication of findings. No person, except as permitted in section 76 of this chapter, shall represent that any grain shipped or delivered for shipment in interstate or foreign commerce is of a grade fixed in the official grain standards other than as shown by a certificate therefor issued in compliance with this chapter; and the Secretary of Agriculture is authorized to cause examinations to be made of any grain for which standards shall have been fixed and established under this chapter, and which has been certified to conform to any grade fixed therefor in such official grain standards, or which has been shipped or delivered for shipment in interstate or foreign commerce. Whenever, after opportunity for hearing is given to the owner or shipper of the grain involved, and to the inspector thereof if the same has been inspected, it is determined by the Secretary that any quantity of grain has been incorrectly certified to conform to a specified grade, or has been sold, offered for sale, or consigned for sale under any name, description, or designation which is false or misleading, he may publish his findings. (Aug. 11, 1916, c. 313, § 5, 39 Stat. 483.) Historical Note See historical note to section 71, ante, of this title. § 78. Appeal to Secretary from official grading; fees for reinspection; conclusiveness of findings on appeal. Whenever standards shall have been fixed and established under this chapter for any grain and any quantity of such grain sold, offered for sale, or consigned for sale, or which has been shipped, or delivered for shipment in interstate or foreign commerce shall have been inspected and a dispute arises as to whether the grade as determined by such inspection of any such grain in fact conforms to the standard of the' specified grade, any interested party mày, either with or without reinspection, appeal the question to the Secretary of Agriculture, and the Secretary of Agriculture is authorized to cause such investigation to be made and such tests to be applied as he may deem necessary and to determine the true grade: Provided, That any appeal from such inspection and grading to the Secretary of Agriculture shall be taken before the grain leaves the place where the inspection appealed from was made and before the identity of the grain has been lost, under such rules and regulations as the Secretary of Agriculture shall prescribe. Whenever an appeal shall be taken or a dispute referred to the Secretary of Agriculture under this chapter, he shall charge and assess, and cause to be collected, a reasonable fee, in amount to be fixed by him, which fee, in case of an appeal, shall be refunded if the appeal is sustained. All such fees, not so refunded, shall be deposited and covered into the Treasury as miscellaneous receipts. The findings of the Secretary of Agriculture as to grade, signed by him or by such officer or officers, agent or agents, of the Department of Agriculture as he may dèsignate, made after the parties in interest have had opportunity to be heard, shall be accepted in the courts of the United States as prima facie evidence of the true grade of the grain determined by him at the |