up many constitutional objections to the act. I private business. Our statutes relating to Some 30 grain dealers of Wichita who re registration of deeds and mortgages, the ceive consignments of grain from country elevators and sell the same on commission intervene and likewise challenge the constitutionality of the act.

statute of frauds, the mechanic's lien law, and the like are illustrations of the exercise of the state's police power over private business. It is also true that business which has The act under consideration provides that heretofore been considered to be private may all persons who sell farm products on com- by changes and progress in the methods of mission, except sales to the ultimate con- its conduct be transformed into a public or sumer, must have a license issued by the sec- quast public business, and this may make it retary of the state board of agriculture. The desirable and even imperative that the state license costs $10 and is effective for one concern itself in its regulation and control. year subject to revocation by the secretary Of course such regulations must be reasonafter investigation for unfair or improperable, but if they are reasonable they must be business dealings. A judicial review of the obeyed. acts of the secretary is provided. The li The business of commission merchants dealcensee must give a bond to insure his fair ing in farm produce has grown to be one dealing with his consignors. The secretary of great volume and much importance. In may maintain an action on this bond in a its development its tendency seems to be to proper case. Every commission merchant centralize in the larger cities far removed must keep a complete record of all consign- from the points of origin, and where by no ments received and sold by him, with the name of the consignor, date of receipt, kind and quality of the consignment, the price received, name and address of person to whom the goods are sold, and the items of expense, and this record must be forwarded to the consignor within 48 hours after the transac-governmental power over the business. tion, unless otherwise agreed. Such a record shall also be kept by the commission merchant for one year, and shall be open to the inspection of the consignor and the secretary of the state board of agriculture or their agents.

Certain relevant offenses are defined by the act, all designed to standarize the business of commission merchants in consonance with honesty and fair dealing.

practical possibility can the originators of the traffic, the consignors, keep personal check on the doings of the commission merchants who are merely the agents of the consignors. Such a situation would seem to warrant a reasonable extension of the state's

The act does classify commission merchants, but the classification is reasonable. It relates to all who sell farm produce on commission for resale, and this includes “agricultural, horticultural, vegetable, and fruit products of the soil, and meats, poultry, eggs, dairy products, nuts, and honey," but not timber, floricultural products, tea, or coffee. It practically reaches all the important and useful products of farm and truck garden. It specifically exempts matters of little consequence to the Kansas producer. If, as argued, it also exempts live stock, that too is a reasonable exemption, since live stock is almost invariably shipped in carloads and is so valuable as to justify the producer or shipper in the expense of accompanying his shipment to market and personally super

The chief objections to the act may be thus summarized: (a) The act is meddlesome, discriminatory, and class legislation, and so burdensome that it will confiscate and destroy an honorable, useful, and legitimate private business; (b) it confers judicial pow er on an administrative functionary; (c) it confers corporate power on the state board of agriculture; (d) it interferes with intervising the fidelity of the commission merstate commerce or unjustly burdens domes tic commerce; (e) the title is defective and the act contains two subjects; (f) the act is special; (g) the judicial review is anomalous; and (h) the penalties are excessive.

chant who makes the sale for him or in making the sale himself. As modern business is now conducted, it is practically impossible for the ordinary farmer or fruit producer or truck gardener to market his own products without the agency of the commission merchant.

[1] Examining these points in order, the act is to be justified, if at all, as exercise of the state's police power. It is sometimes con- [2] Nor do the exactions of the statute tended that the state cannot regulate private seem unduly burdensome. It exacts a license business, and that unless the business is one of $10 per annum. That fee is not onerous. of public concern it is exempt from legisla- It requires a bond to insure the commission tive interference. Probably this notion is merchant's fidelity and the payment of his due to the fact that the modern American obligations. This is in accord with the genstate has hitherto eft private business large- eral tendency of modern business, relieving it ly to its own devices, and because the state from the uncertainty of fraud or insolvency. in recent years has largely concerned itself It requires the merchant to account and rewith the regulation of business as to which port promptly and completely to the consignthe public's interest was undeniable. Hence or. Perhaps this has always been the law, the elaborate statutes regulating public serv- for what is the relation of consignor and ice corporations. But there can be no doubt commission merchant but that of principal that the state's police power may extend to and agent, and what is this statutory re

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

and in its organization ample power was conferto the governed against wrong and oppression, red on the legislative branch to afford such protection. That branch of the government holds, so to speak, a vast reservoir of legislative power not arisen requiring it to be exerted; but with never yet exercised, because the exigencies have our wonderful increase of population, advancing civilization, and increase and complication of business, that reserved power will certainly be called into action. The Constitution has not limited the exercise of legislative power to such enactments as have hitherto been passed. To so hold would be to embarrass good government, and would prove highly injurious, if not destructive.

to his principal of all the agent's doings? Illustrations are submitted in affidavits showing how onerous, burdensome, and expensive it would be to make a detailed account of the sales of a commission merchant. Thus a barrel of garlic is usually sold in small quantities; the remainder being kept in cold storage until called for. A carload of onions containing 470 crates is disposed of by the commission merchant to perhaps 400 different retail merchants. A barrel of radishes is usually sold in bunches of a few ⚫ 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 er? We are aware of none. Most, if not all, of bids the Legislature from exercising the pow 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 to pursue the calling. Nor, so far as we are keep accurate accounts of these innumerable aware, has the constitutionality of such laws 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." Pages 307-310 of 109 Ill., 50 Am. the power was clearly legislative, and properly 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.

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, 50 Am. Rep. 610, the Supreme Court of Illinois upheld a statute requiring operators of butter and cheese factories on the co-operative plan to give bonds for faithful accounting of property for manufacture. In that case the court said:

"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 shall 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

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 vold because of indefiniteness as to the term "commission merchant," an infirmity which does not exist in the Kansas act.

The case of People v. Berrien Circuit Judge, 124 Mich. 664, 83 N. W. 594, 50 L. R. A. 493, 83 Am. St. Rep. 352, is pressed on our attention, where an act of the same nature requiring a bond for $5,000 to insure the fidelity of commission merchants selling 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 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 L. R. A. (N. S.) 811. The exercise of such power is merely the exercise of administrative 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.

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 competitive interstate business in the same territory. 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 commisslon 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-agri- lates 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 classifi ly touches the chief industry of the state. We think it unnecessary to trace the legislative 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 urises, 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. However that may be, the drastic statutes for the suppression of unfair objection to the penalties cannot be sus

tained.

[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: I'rovided, the fee for such license shall have been paid and a bou given as herein required."

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

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 our ation in modern times, either by statute or by Legislature which abolished the writ in 1868 judicial enlargement of its use, certiorari had undoubted power to re-establish it in will lie not alone to an inferior court, but to 1915. The name and style of the writ is un- statutory boards and officers. And surely the important. Long ago this court, in conform Legislature, which has full power to preity to the temper of this state, established scribe jurisdiction and procedure, may grant the doctrine that the substance and not the a judicial review or a cause of action from form of things is the chief object in the ad- the acts of the secretary of the state board ministration of justice. Moreover, an ex- of agriculture, and in so doing the Legisamination of the law of other states will lature may label that review or cause of show that the modern notice of certiorari is action certiorari or give it any other convennot confined to a judicial examination or re- lent name. In Wilson v. Price-Raid Aud. view of a certified case from a lower court. Com., 31 Kan. 257, 259, 1 Pac. 587, this It is used to effectuate a judicial review or court said: give a judicial right of action from the acts' or proceedings of any inferior tribunal-not necessarily from an inferior court. 6 Cyc. 740, and note 10; 6 Cyc. 752. This last ci-district court all the original and all the appel tation appends a valuable note: late jurisdiction which it may choose. Const. art. 3, § 6. court jurisdiction in any matters of a judicial It may confer upon the district 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 rond overseer to the district court, provided the statuies authorize the same, for when the matter gets into the district court the district court can exercise jurisdiction over it as a court of original jurisdiction."

"The writ will lie to review the action of a town board in removing an assessor (Merrick v. Arbela, 41 Mich. G30, 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. $03 [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.] 23); or to test the lawfulness of a municipal ordinance providing for the payment of an official 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, SS Ill. 26: State v. Whitford. 4 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 (Nobles v. Piollet, 16 l'ac. 386), because they were not inferior courts."

In Crawford v. Scio 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

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

What court may issue the writ? The district court to be sure. court of general jurisdiction. It holds pracThat is our only tically 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.