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keep a record of the wheat bought at the elevator and to show therein the price paid and grades given, and “the price received and the grades received at the terminal markets;” and further requires him to furnish this information to the Supervisor when requested. The twelfth section makes it unlawful for any person to grade wheat who does not have a license therefor under the Act or under the United States Grain Standards Act. And other sections make every violation of the Act a misdemeanor and charge the Attorney General of the State and its other law officers with the duty of prosecuting such violations.

The Act dispenses with grading where the buying is by sample, by type or by certain designations; but this has no bearing here, for the buying for interstate shipment is all by grade. The Act also dispenses with grading by an inspector licensed thereunder, if the grain be graded by an inspector licensed under the United States Grain Standards Act; but this is an idle provision, for there are in North Dakota no inspectors licensed under that Act. Such inspectors are found only at terminal markets, and there is no terminal market in North Dakota.

This statement of the provisions of the Act discloses its full purposes and scope; but some of its features, of speciai importance here, will be noticed again as we proceed.

Buying for shipment, and shipping, to markets in other States when conducted as before shown constitutes interstate commerce—the buying being as much a part of it as the shipping. We so held in Lemke v. Farmers' Grain Company, supra, following and applying the principle of prior cases. Later cases have given effect to the same principle. Stafford v. Il'allace, 258 U. S. 495, 516; Binderup v. Pathe Exchange, 263 U. S. 291, 309.

Wheat-both with and without dockage-is a legitimate article of commerce and the subject of dealings that are nation-wide. The right to buy it for shipment, and

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to ship it, in interstate commerce is not a privilege derived from state laws and which they may fetter with conditions, but is a common right, the regulation of which is committed to Congress and denied to the States by the commerce clause of the Constitution.”

The decisions of this Court respecting the validity of state laws challenged under the commerce clause have established many rules covering various situations. Two of these rules are specially invoked here—one that a state statute enacted for admissible state purposes and which affects interstate commerce only incidentally and remotely is not a prohibited state regulation in the sense of that clause; 3 and the other that a state statute which by its necessary operation directly interferes with or burdens such commerce is a prohibited regulation and invalid, regardless of the purpose with which it was enacted. These rules, although readily understood and entirely consistent, are occasionally difficult of application, as where a state statute closely approaches the line which separates one rule from the other. As might be expected, the decisions dealing with such exceptional situations have not been in full accord. Otherwise the course of adjudication has been consistent and uniform.

In our opinion the North Dakota Act falls certainly within the second of the two rules just stated. By it that




? Crutcher v. Kentucky, 141 U. S. 47, 57; Western Union Telegraph Co. v. Kansas, 216 U. S. 1, 21; Oklahoma v. Kansas Natural Gas Co., 221 U S. 229, 260; Buck Stove Co. v. Vickers, 226 U. S. 205, 215; Adams Express Co. v. New York, 232 U. S. 14, 31; DahnkeWalker Co. v. Bondurant, 257 U. S. 282, 291, 292.

* Sherlock v. Alling, 93 U. S. 99, 102–104; Kidd v. Pearson, 128 U. S. 1, 22 et seq.; Geer v. Connecticut, 161 U. S. 519, 532; Sligh v. Kirkwood, 237 U. S. 52, 59-61.

*Crutcher v. Kentucky, 141 U. S. 47, 56, 58; Western Union Telegraph Co. v. Kansas, 216 U. S. 1, 27; International Paper Co. v. Massachusetts, 246 U. S. 135, 141; Western Union Telegraph Co. v. Foster, 247 U. S. 105, 114; Pennsylvania v. West Virginia, 262 U. S. 553, 596; Air-Way Corporation v. Day, 266 U. S. 71, 81.


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State attempts to exercise a large measure of control over all wheat buying within her limits. About 90 per cent. of the buying is in interstate commerce. Through this buying and the shipping in connection with which it is conducted the wheat which North Dakota produces in excess of local needs—more than 125,000,000 bushels a year-finds a market and is made available for consumption in other States where the local needs greatly exceed the production. Obviously therefore the control of this buying is of concern to the people of other States as well as to those of North Dakota.

Only by disregarding the nature of this business and neglecting important features of the Act can it be said to affect interstate commerce only incidentally and remotely. That it is designed to reach and cover buying for interstate shipment is not only plain but conceded. To conform to recognized commercial practices such buying must be by grade, and it is so conducted. The Act prevents buying by grade, unless the buyer secures from the State a grading license for himself or his agent. The general practice is to buy and ship without separating the dockage from the wheat, the price paid carrying a right to both. The Act requires the buyer to separate the dockage and return it to the producer, unless it be distinctly valued and paid for. A failure to comply with this or any other requirement of the Act is made cause for revoking the grading license. It is practically essential that the buyers have and operate elevators as facilities for handling and loading the wheat. The act requires every such buyer to give to the State, if he buys on credit, a bond securing payment for all wheat so purchased; to keep a record of all wheat bought, showing the grade given and price paid at his elevator and the grade fixed and price received at the terminal market; and to furnish such data to the State Supervisor when requested. The Act also intends and declares that the State Supervisor

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“shall in a general way investigate and supervise the marketing” of the grain with a view of "preventing” various things deemed unjust or fraudulent, including

unreasonable margins of profit” and “confiscation of valuable dockage;” and, to the end that this and other provisions may be made effective, the Act invests him with authority to make and enforce such orders, rules and regulations as may be necessary to carry out all of its provisions.

We think it plain that, in subjecting the buying for interstate shipment to the conditions and measure of control just shown, the Act directly interferes with and burdens interstate commerce, and is an attempt by the State to prescribe rules under which an important part of such commerce shall be conducted. This no State can do consistently with the commerce clause.

The defendants cite several cases as making for a different conclusion, but we do not so read them. In some the commerce clause was in no way involved, and those in which it was involved give no support to what is attempted in the Act now before us. In Munn v. Illinois, 94 U. S. 113, 123, 135, the question was whether, as respects an elevator devoted to storing grain for hire, the State could regulate the storage charge where part of the grain reached the elevator, or was destined to leave it, through the channels of interstate commerce. The Court held such a regulation admissible because of the public, character of the elevator and because interstate commerce was affected only incidentally and remotely. No restriction on buying or shipping was involved. In Cargill Co. v. Minnesota, 180 U. S. 452, the Court had before it a state statute, much of which had been pronounced unconstitutional by the state court. In sustaining a provision which remained, the Court said, p. 470: “The statute puts no obstacle in the way of the purchase by the defendant company of grain in the State or the ship

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ment out of the State of such grain as it purchased.” Plainly the case is not in point here. In Merchants Exchange v. Missouri, 248 U. S. 365, the statute involved required that public weighers appointed for the purpose should do the weighing and issue weight certificates at elevators used for storing or transferring grain for hire, and prohibited any other person from issuing weight certificates at an elevator where a public weigher was stationed. Objection was made to the prohibition on the ground that as applied to grain received from or shipped to points without the State it burdened interstate com

Of course the objection was overruled, the statute being an admissible regulation of the business of conducting an elevator for hire, like the statute considered in Munn v. Illinois.

The defendants make the contention that we should assume the existence of evils justifying the people of the State in adopting the Act. The answer is that there can be no justification for the exercise of a power that is not possessed. If the evils suggested are real, the power of correction does not rest with North Dakota but with Congress, where the Constitution intends that it shall be exercised with impartial regard for the interests of the people of all the States that are affected.

The defendants further contend that the Act is simply an attempt on the part of the State, through inspection regulations, to assist in carrying out the purposes of the United States Grain Standards Act. We think the Act discloses an attempt to do much more. To require that dockage be separated by the buyer and be returned to the producer unless it be distinctly valued and paid for is not inspection. Nor does the federal Act contain or give support to such a requirement. To exclude one from buying by grade unless he secures a grading license for himself or his agent is apart from what usually is comprehended in inspection. Nothing like this is found in the federal Act.

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