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quirement to account and report but the com-der the law unconstitutional Government was mon-law duty of faithful and full disclosure organized, and is supported, to afford protection to his principal of all the agent's doings? and in its organization ample power was conferto the governed against wrong and oppression, Illustrations are submitted in affidavits red on the legislative branch to afford such proshowing how onerous, burdensome, and ex-tection. That branch of the government holds, pensive it would be to make a detailed ac- so to speak, a vast reservoir of legislative power count of the sales of a commission merchant. not arisen requiring it to be exerted; but with never yet exercised, because the exigencies have Thus a barrel of garlic is usually sold in our wonderful increase of population, advancing small quantities; the remainder being kept civilization, and increase and complication of in cold storage until called for. A carload business, that reserved power will certainly be called into action. The Constitution has not of onions containing 470 crates is disposed limited the exercise of legislative power to such of by the commission merchant to perhaps enactments as have hitherto been passed. To so 400 different retail merchants. A barrel of hold would be to embarrass good government, radishes is usually sold in bunches of a few and would prove highly injurious, if not destructive. ⚫ dozen. Many such illustrations are given, "But it is insisted that it restrains and emand while they do show that a strict com- barrasses business. If that were conceded to pliance with the act will necessitate a good be true, what provision of the Constitution fordeal of bookkeeping, we cannot but marvel bids the Legislature from exercising the power? We are aware of none. Most, if not all, of how commission merchants have kept track the states in the Union have required that perof all these details hitherto. Probably the sons in almost every species of business should Legislature was convinced that they did not procure and pay for a license to enable them keep accurate accounts of these innumerable aware, has the constitutionality of such laws to pursue the calling. Nor, so far as we are transactions-not through willful breach of ever been questioned. They were undeniably a faith-but because it was not humanly pos- regulation, if not a restraint, on trade, and yet sible for a man's memory to stand such a exercised." the power was clearly legislative, and properly Pages 307-310 of 109 Ill., 50 Am. strain, and hence the legislative determina-Rep. 610. tion that the memory method, or whatever method it was, should be superseded by an accurate and detailed system of accounting. If this occasions an added expense to the business, the traffic will have to bear it.

A similar act, known as the Commission Merchants' Law, was upheld by the Supreme Court of Washington in State v. Bowen & Co., 86 Wash. 23, 149 Pac 330, and the discussion of the principles upon which such legislation is justified is logical and convincing; although in a later case (State v. J. B. Powles & Co., 155 Pac. 774), the court was constrained to hold the act void because of indefiniteness as to the term "commission merchant," an infirmity which does not exist in the Kansas act.

The Supreme Court of Minnesota in a wellconsidered case upheld a similar statute for the licensing and bonding of commission merchants who sold agricultural products and farm produce. State ex rel. Beek v. Wagener, 77 Minn. 483, 80 N. W. 633, 788, 1134, 46 L. R. A. 442, 77 Am. St. Rep. 681. In Hawthorn et al. v. People, 109 Ill. 302, The case of People v. Berrien Circuit 50 Am. Rep. 610, the Supreme Court of Illi- Judge, 124 Mich. 664, 83 N. W. 594, 50 L. R. nois upheld a statute requiring operators of A. 493, 83 Am. St. Rep. 352, is pressed on butter and cheese factorles on the co-opera- our attention, where an act of the same native plan to give bonds for faithful account-ture requiring a bond for $5,000 to insure ing of property for manufacture. In that the fidelity of commission merchants selling case the court said:

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"It is true the act does require the manufacturer, at the end of each month, 'to make, acknowledge, subscribe and swear to a report, in writing, showing the amount of products manufactured, the amount sold, the prices received therefor, and the dividends earned and declared for the third month preceding the month in which the report is made,' and to file a copy of the same with the clerk of the town or precinct in which the factory is located. This, in terms, falls far short of a conflict, in terms, with that constitutional provision [Illinois Bill of Rights. nor does it conflict in spirit. • • This is not an unusual exercise of power. It has al ways been required that executors and administrators intrusted with the property of estates sball file in a public office a full and complete account of their actions with reference to the property thus intrusted to their management and control. This law only requires the manufacturer to render an account of his management of other people's property. He holds himself out as a factor for the management and sale of other people's property, and in that respect is like a public warehouseman. •

"It is urged that this is an unheard-of species of legislation-that the past has furnished no If this should be conprecedent for the law. ceded to be true, that would not of itself ren

farm and garden and dairy products and live stock on commission was declared to be unconstitutional. Whatever that great court says is always read and studied with profit, but curiously enough, in that case, the particular clause or clauses of the Constitution, state or federal, which the statute was held to infringe are not cited nor even hinted at. The case does not cite a single precedent of any sort; and it neither persuades nor convinces as do the decisions of the Supreme Courts of Minnesota, Illinois, and Washington on this subject. See, also, Freund, Police Power, §§ 296, 297.

[3, 10] Does the act confer Judicial power on the secretary of the state board of agriculture? Judicial power is the power to hear, consider, and determine controversies between rival litigants as to their personal or property rights, and must be regularly invoked at the instigation of one of the litlgants. See definitions in 4 Words and Phrases, 3860. The act of 1915 does not pretend to confer such power on the secre

tary of the state board of agriculture. It the commission merchant is subject to state merely confers upon him administrative pow-control, although the commodities sold by

him may be of an interstate character. Hopkins v. United States, 171 U. S. 578, 19 Sup. Ct. 40, 43 L. Ed. 200; W. W. Cargill Co. v. Minn., 180 U. S. 452, 21 Sup. Ct. 423, 45 L. Ed. 619. Even if it were held that the act of 1915 did not or could not apply to interstate commerce, the state's power over domestic or intrastate commerce is supreme. Certain it is that the federal government may not meddle with purely intrastate business, and it would hardly do to say that where there is a domestic business and an interstate business of the same nature the state may not regulate the domestic business because the federal government does not likewise and similarly regulate the competi

er such as has become common in this state. The state charter board is given similar power to grant or withhold a charter for a bank. Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80, 37 L. R. A. (N. S.) 877, Ann. Cas. 1913A, 254. The insurance commissioner is authorized to grant, withhold, and revoke licenses to transact insurance business in Kansas. The Public Utilities Commission is authorized to grant or deny permits to conduct a public service business. The state board of medical registration and examination is authorized to grant, deny, or revoke licenses to practice medicine. Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247, 1 LR. A. (N. S.) 811. The exercise of such power is merely the exercise of administrative interstate business in the same territive discretion. If this power is abused, the courts are open to the aggrieved party, if not by some statutory review, then by the extraordinary and prerogative remedies of injunction or mandamus. And by no course of reasoning can a distinction be made between the licensing and other administrative powers conferred by this act upon the secretary of the board of agriculture and the similar broad and valid powers conferred upon the many other official boards and functionaries with which the state has provided itself for the proper and effective conduct of its governmental business.

tory. To admit that would be an end of all state government. The point sought to be made is merely one of the inconveniences of our dual form of government, sufficiently compensated, however, by the innumerable benefits which we nevertheless enjoy under our complicated governmental system. Sad indeed would be the situation of a poor truck gardener of the Kaw Valley if he might not apply to some state or local official, but only to some bureau in far-off Washington, D. C., to learn whether John Doe was a licensed and trustworthy commission merchant to whom he might intrust his little stock of garlic and radishes for resale, or for summary aid in bringing a recalcitrant commilssion merchant to a sense of his duty.

[4] Neither does the act confer corporate power upon the board of agriculture. Indeed the act confers no power of any sort upon that board. The state patronizes that board [7, 8] Some other objections to the act as one of its principal educational agencies need no discussion. The act relates to the for the benefit and improvement of the prin- sale of farm produce on commission.. It recipal business of the commonwealth-agrilates to nothing else. This is one subject culture; and it has determined, happily we and the title is fairly and sufficiently indicathink, to select the chief functionary of that tive of its subject-matter. The act is not board to administer this act which so close-special. It is a general act and the classifily touches the chief industry of the state. We think it unnecessary to trace the legis lative history of the creation and development of the state board of agriculture, and deem it sufficient to say that it is not a corporation like a railroad or a dry goods company nor like a municipal corporation, nor do we find any grant of corporate powers to it or to its secretary in this act.

[5,6] The question concerning this act's interference with interstate commerce might well be left until some specific difficulty concerning such commerce arises, for it is familiar law that no act is ever declared to be unconstitutional, except where the party challenging it is directly affected and prejudiced by some specific invasion of his constitutional rights. A commission merchant's business is that of a warehouseman and sales agent. As a warehouseman, his business is subject to state control notwithstanding the goods which he handles may be commodities of interstate commerce. Munn v. Illinois, 91 U. S. 113, 24 L. Ed. 77. As a sales agent,

cation of commission merchants brought under its terms is logical and reasonable. The penalties are not excessive. Indeed, there is some ground for the fear that the mild and modest penalties prescribed by the act may supersede and repeal by implication some of the state's older and more powerful and trade practices. Ilowever that may be, the drastic statutes for the suppression of unfair objection to the penalties cannot be sus


[9] One more question should be noticed. Section 6 of the act reads:

"Certiorari to Review. The action of the secreto grant a license, or in revoking a license granttary of the state board of agriculture in refusing ed under this article, shall be subject to review by a writ of certiorari, and if such proceedings are begun, until the final determination the proof such commission merchant shall be deemed to ceedings and all appeals therefrom, the license be in full force and effect: Provided, the fee for such license shall have been paid and a boud given as herein required."

The remedy by certiorari is criticized as being unknown to our practice. The writ

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of certiorari was abolished in 1868. Gen., single joint board upon a petition presented Stat. 1901, § 5050; Gen. Stat. 1868, c. 80, § to them for the removal of said Crawford 564. It was a writ well known to the com- from the office of director of" a school dismon law. It issued out of some superior trict "which embraces a part of each towncourt having the full judicial power of the ship." We only cite this case to show how state directing some inferior court to certify the uses of certiorari have been enlarged in and transmit to it the records and proceed- its progress from the land and time of Lord ings of a particular case for trial or correc- Coke to the land and time of Judge Cooley. tion of errors. It is still used in the fed- ¦ It will thus be seen that in practical opereral courts and in the older states. But ouration in modern times, either by statute or by Legislature which abolished the writ in 1868 had undoubted power to re-establish it in 1915. The name and style of the writ is unimportant. Long ago this court, in conform ity to the temper of this state, established the doctrine that the substance and not the form of things is the chief object in the administration of justice. Moreover, an examination of the law of other states will show that the modern notice of certiorari is not confined to a judicial examination or review of a certified case from a lower court. It is used to effectuate a judicial review or give a judicial right of action from the acts' or proceedings of any inferior tribunal-not necessarily from an inferior court. 6 Cyc. 710, and note 10; 6 Cyc. 752. This last ci-district court all the original and all the appeltation appends a valuable note:

"The writ will lie to review the action of a town board in removing an assessor (Merrick v. Arbela, 41 Mich. 630, 2 N. W. 922); of a health board in refusing to register births as required by statute (Matter of Lauterjung. 48 N. Y. Super. Ct. 308); of a board of supervisors in directing an election to relocate a county seat (Herrick v. Carpenter, 54 Iowa, 340, 6 N. W. 574); in creating an office and increasing the salaries fixed by statute (Robinson v. Sacramento. 16 Cal. 208) or to set aside any wrongful, illegal, or fraudulent appropriation of public moneys (Shields v. Paterson, 55 N. J. Law, 495, 27 Atl. 803 [followed in Shields v. Grear, 55 N. J. Law, 503, 27 Atl. 807]); of a city council in removing a city officer (Macon v. Shaw, 16 Ga. 172); granting a ferry license (Fay, Petitioner, 15 Pick. Mass.] 2); or to test the lawfulness of a municipal ordinance providing for the payment of an oficial salary (Christie v. Bayonne, 64 N. J. Law. 191. 44 Atl. 887), and of school trustees in uniting and dividing school districts (Miller v. School Trustees, 88 Ill. 26: State v. Whitford, 54 Wis. 150, 11 N. W. 424); but it has been refused to boards of election (Ex parte Carson, 5 S. C. 117), and of road commissioners (Nobies v. Piollet, 16 l'ac. 386), because they were not inferior courts."

In Crawford v. Selo and Webster, 22 Mich. 405, a writ of certiorari was issued "to bring up for review the proceedings of the boards of the two townships, sitting as a

Judicial enlargement of its use, certiorari will lie not alone to an inferior court, but to statutory boards and officers. And surely the Legislature, which has full power to prescribe jurisdiction and procedure, may grant a judicial review or a cause of action from the acts of the secretary of the state board of agriculture, and in so doing the Legislature may label that review or cause of action certiorari or give it any other convenlent name. In Wilson v. Price-Raid Aud. Com.. 31 Kan. 257, 259, 1 Pac. 587, this court said:

"The jurisdiction of the Supreme Court is much more limited by the Constitution than that of the district court, for ruder the Constitution, the Legislature can confer upon the

late jurisdiction which it may choose. Const. art. 3, § 6. It may confer upon the district court jurisdiction in any matters of a judicial character, without reference to where such matters may originate, for if the district court does not take jurisdiction of such matters under or by virtue of its appellate jurisdiction, it may take jurisdiction of the same under or by victue of its original jurisdiction. Any matter judicial in its character can be taken from even a road overseer to the district court, provided the statutes authorize the same, for when the maiter gets into the district court the district court can exercise jurisdiction over it as a court of origi nal jurisdiction."

What court may issue the writ? The district court to be sure. That is our only court of general jurisdiction. It holds praetically all the judicial power of the state. It was no more necessary for the statute to designate the court from which the writ might issue than it is in any other regalatory or penal law or in any other act giving statutory rights of legal redress.

It will thus be seen that whatever may be the demerits of the act, it is free from constitutional infirmities and must stand as a valid statute. As such it should be respected and enforced, and the state is entitled to judgment.

The writ is allowed.

Robert Lee GOLDSBY



No. 39739. (Cite as 86 So. 2d 27)

Supreme Court of Mississippl.

March 5, 1956.

Petition for a writ of error coram nobis by the petitioner who previously had been convicted of murder. From a judgment denying the petition in the Circuit Court, Carroll County, Henry Lee Rodgers, J., the petitioner appeals. The Supreme Court, Hall, J., held that motion for the writ for newly discovered evidence was properly denied, that the record failed to establish a denial of federal constitutional rights on ground of exclusion of Negroes from jury service and that where the question of denial of constitutional rights was not raised in the lower court nor in the Supreme Court on appeal on the merits, the raising of the question by petition for writ of error coram nobis was too late.

Petition denied.

1. Criminal Law 997(15)

4. Criminal Law 304(1)

The Supreme Court cannot take judicial notice of something as to which there is no proof.

5. Criminal Law 997(15)

In murder prosecution, record did not indicate that defendant's constitutional rights were violated on the ground that the defendant was a member of the Negro race and that in county where he was tried Negroes were systematically excluded from jury service.

6. Criminal Law 1192

In murder prosecution, where Negro defendant on appeal to the United States Supreme Court raised the question that his constitutional rights had been denied, because Negroes had been systematically excluded from jury service and the Supreme Court denied certiorari, judgment of that court was res judicata and that question could not again be raised in the state court. 7. Criminal Law 637

In murder prosecution, that defendant was confined in jail at Louisville and not at Vaiden the county seat where the defendant was tried was not error where there was no jail in Vaiden and no place where the defendant could have been incarcerated.

To justify a writ of error coram nobis Code 1942, § 2499. on the ground of newly discovered evidence, burden of proof is on the petitioner.

2. Criminal Law 997(8)

Writ of error coram nobis will not lie for newly discovered evidence going to the merits of the issues tried in the court below.

3. Criminal Law 997(15)

In murder prosecution, evidence did not justify grant of writ of error coram nobis on the ground of newly discovered evidence, that husband of decedent stated after the shooting that he had shot the decedent while attempting to shoot the defendant.

8. Constitutional Law 43(1)

In cases involving federal constitutional questions, it is not necessary that motions raising the questions be made before the return of the indictment where accused has been denied a reasonable opportunity for doing so.

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