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products that any warehouse, elevator or mill is paying an unreasonable margin, to investigate, determine and establish reasonable margin to be paid such producer for grain, seeds or other agricultural products."

Under this statute the North Dakota inspector of grades, weights and measures established North Dakota standards for grading wheat, corn, and oats identical with the federal standards effective June 16, 1919. In establishing these standards the Inspector used the following language:

"The federal government has established grades for corn, all classes of wheat and oats, so that all interstate shipments must be graded according to these standards. In order to avoid the confusion of a double standard and a dual inspection, we deem it advisable to adopt these standards; the said grain standards published in the government service and regulatory announcements are hereby adopted and made part of the North Dakota grades."

The North Dakota law provided for a fee of $10 for each license to be paid to the inspector. No person can purchase wheat in North Dakota, without he obtains the license provided by law, and must promise in his application for such license that he will grade wheat and other grains according to the North Dakota law. The conceded. purpose, force, and effect of the state statute is to regulate and control the marketing and distribution of the grain crop of North Dakota. The appellees are the Attorney General of North Dakota, the state inspector of grades, weights and measures, the chief deputy state inspector of grades, weights and measures, and William C. Green, state's attorney of Cass county, N. D. Appellant did not comply with the North Dakota statute, and the revocation of its license and the taking over of its elevator was threatened when this action was brought. The license referred to was obtained by one Gebhart, in the employ of appellant. The appellant refused to pay for dockage or to deliver dockage separated from the grain to the seller.

Three questions of law arise upon the record: (1) Is the purchase of grain in the state of North Dakota for shipment out of the state, as detailed in the evidence, a part of the interstate commerce involved in the shipment? (2) If the foregoing question shall be answered in the affirmative, does chapter 138, Session Laws North Dakota of 1919, impose a direct and unreasonable burden upon that interstate commerce? (3) Is said law in conflict with the United States Grain Standards Act to such an extent as to render it void?

[2] As to the first proposition, the trial court decided that the grain of North Dakota under the facts in the case did not become an article of interstate commerce until actually delivered to the carrier for transportation; that the intention of the owner to transfer the grain to another state, or his appropriation of it for such transportation, did not make it an article of interstate commerce, and therefore the state of North Dakota, under its police power, could lawfully enact the statute complained of-it having only to do with the grain before the commencement of its transfer to another state. With reference to the question of intention, counsel for appellant make no claim that mere intention to transport the grain to another state makes it an article of interstate commerce; but the claim is that, as it appears from

the record that approximately 90 per cent. of the grain annually raised in North Dakota must be and is purchased for shipment out of the state, such course of commerce is a fact, and not a matter of intention; that this course of commerce is a unit, and may not be unreasonably burdened by the state.

There are many decisions of the courts defining the words "commerce" and "interstate commerce"; but it is generally conceded that no arbitrary rule can be laid down as to what is commerce, or interstate commerce, but that each case as it arises must be determined by its own facts. As was said in Public Utilities Comm. v. Landon, 249 U. S. 245, 39 Sup. Ct. 269, 63 L. Ed. 577:

"Interstate commerce is a practical conception, and what falls within it must be determined upon consideration of established facts and known commercial methods. Rearick v. Pennsylvania, 203 U. S. 507, 512; The Pipe Line Cases, 234 U. S. 548, 560."

In the early history of the interpretation of the commerce clause of the Constitution, it was first contended that commerce did not include transportation or navigation, but was confined solely to traffic, buying and selling. This contention, however, was decided to be unsound in Gibbons v. Ogden, 9 Wheat. 229, 6 L. Ed. 23. At this day it seems strange that such a contention was ever made, as now the great and important element in commerce is transportation or navigation. It was next contended that a sale of goods within a state after their transportation into that state was not a part of interstate commerce, but this contention was also decided to be unsound in Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678. In principle it is difficult to conceive any valid distinction between a sale following transportation and a purchase preceding it. It is noteworthy that Mr. Justice Thompson, in his dissenting opinion in Brown v. Maryland, supra, made the same objections in reference to a sale after transportation that is now made in this case to a sale before transportation. In County of Mobile v. Kimball, 102 U. S. 691, 702 (26 L. Ed. 238) it was said:

"Commerce with foreign countries and among the states, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities."

In Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346, it was said:

"Buying and selling and the transportation incidental thereto constitute commerce."

Not many cases are to be found which have considered the element of purchase in reference to interstate commerce, where a violation of the Constitution was involved.

The Supreme Court has, however, in discussing the application of the Sherman Act (Comp. St. §§ 8820-8823, 8827-8830) and federal pure food legislation (Comp. St. §§ 8717-8728), announced principles which we believe to be applicable to the question now under discus

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sion. In U. S. v. E. C. Knight Co., 156 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325, the court said:

"Contracts to buy, sell, or exchange goods to be transported among the several states, the transportation and its instrumentalities, and articles bought, sold, or exchanged for the purposes of such transit among the states, or put in the way of transit, may be regulated, but this is because they form part of interstate trade or commerce."

Justice Harlan, dissenting from the majority in the above case, concurred in the above statement of law, and further contended that manufacture before shipment was a part of interstate commerce.

In the case of Addyston Pipe & Steel Co. v. U. S., 175 U. S. 211, 20 Sup. Ct. 96, 44 L. Ed. 136, the Supreme Court said:

"As has frequently been said, interstate commerce consists of intercourse and traffic between the citizens or inhabitants of different states, and includes, not only the transportation of persons and property and the navigation of public waters for that purpose, but also the purchase, sale, and exchange of commodities. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196-203; Kidd v. Pearson, 128 U. S. 1, 20.”

In Swift & Co. v. U. S., 196 U. S. 375, 25 Sup. Ct. 276, 49 L. Ed. 518, it was said:

"Taking up the latter objection first, commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business. When cattle are sent for sale from a place in one state, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stockyards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the states, and the purchase of the cattle is a part and incident of such commerce."

In Oklahoma v. Kansas Natural Gas Co., 221 U. S. 229, 31 Sup. Ct. 564, 55 L. Ed. 716, 35 L. R. A. (N. S.) 1193, the Supreme Court held a statute of Oklahoma to be unconstitutional which prohibited. the shipment of natural gas in interstate commerce. The court, in discussing the question there involved, remarked:

“And why may not the products of the field be brought within the principle? Thus enlarged, or without that enlargement, its influence on interstate commerce need not be pointed out. To what consequences does such power tend? If one state has it, all states have it; embargo may be retaliated by embargo, and commerce will be halted at state lines. And yet we have said that in matters of foreign and interstate commerce there are no state lines.' In such commerce, instead of the states, a new power appears, and a new welfare, a welfare which transcends that of any state. But rather let us say it is constituted of the welfare of all of the states, and that of each state is made the greater by a division of its resources, natural and created, with every other state, and those of every other state with it. This was the purpose, as it is the result, of the interstate commerce clause of the Constitution of the United States. If there be a turning backward, it must be done by the authority of another instrumentality than a court."

In U. S. v. Reading Co., 226 U. S. 324, the court said on page 367, 33 Sup. Ct. 90, 102 (57 L. Ed. 243):

"The coal contracts acquired when this proceeding was begun aggregated nearly one-half the tonnage of the independent operators. Much of the coal so bought was sold in Pennsylvania, and all of the contracts were made in

that state, and the coal was also there delivered to the buying defendants. That the defendants were free to sell again within Pennsylvania, or transport and sell beyond the state, is true. That some of the coal was intended for local consumption may also be true. But the general market contemplated was the market at tidewater, and the sales were made upon the basis of the average price at tidewater. The mere fact that the sales and deliveries took place in Pennsylvania is not controlling, when, as here, the expectation was that the coal would, for the most part, fall into and become a part of the well-known current of commerce between the mines and the general consuming markets of other states."

In Pennsylvania Railroad Co. v. Clark Coal Co., 238 U. S. 456, 35 Sup. Ct. 896, 59 L. Ed. 1406, it was said:

"In the present case, to repeat, it appears that, for the purpose of filling contracts with purchasers in other states, coal is delivered f. o. b. at the mines for transportation to such purchasers. The movement thus initiated is an interstate movement, and the facilities required are facilities of interstate commerce. A very large part of what in fact is the interstate commerce of the country is conducted upon this basis, and the arrangements that are made between seller and purchaser with respect to the place of taking title to the commodity, or as to the payment of freight, where the actual movement is interstate, does not affect either the power of Congress or the jurisdiction of the Commission which Congress has established."

Section 25, C. J. vol. 12, p. 26, reads as follows:

"That intercourse between citizens and inhabitants of different states which constitutes interstate commerce, and which is subject to federal, but not to state, regulation, includes not only the transportation of persons and property, but also the purchase, sale, and exchange of commodities, the very purpose and motive of that branch of commerce which consists in transportation being that other and consequent act of commerce which consists in the sale or exchange of the commodities transported."

This declaration of law is supported by numerous cases cited in the work referred to. In view of the language of the cases cited under the Sherman Act, it is entirely proper to suppose a combination among all the purchasers of grain in the state of North Dakota for shipment beyond the state to control the price on which the surplus grain of North Dakota should be bought and under the rules in the cases referred to, there scarcely could be a doubt but that the combination would come within the federal Anti-Trust Act. As opposed to the proposition that the purchase of grain in North Dakota under the facts as they appear in the record is not interstate commerce or a part of the transportation, cases involving the right of a state where taxes are regularly levied are cited. Such a case is Coe v. Errol, 116 U. S. 517, 6 Sup. Ct. 475, 29 L. Ed. 715, where it was held that logs cut in New Hampshire were still subject to taxation by that state, although they were being assembled at a station for shipment to Maine, and this because such logs were still a part of the general mass of property within the state, and were therefore subject to taxation in the usual manner in common with other property in the state. Woodruff v. Parham, 8 Wall. 123, 19 L. Ed. 382, and Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091, 29 L. Ed. 257, it was decided that goods brought into a state, after arriving at their destination, may be taxed by the state in the same manner as other goods in the state, although under the rule of Brown v. Maryland, a state regulation of

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the sale of such goods would be void. In Bacon v. Illinois, 227 U. S. 504, 33 Sup. Ct. 299, 57 L. Ed. 615, it was held that grain passing through the city of Chicago and there loaded into an elevator for the purpose of weighing, grading, mixing, etc., became subject to taxation by the state of Illinois. Other cases are cited to the same effect, but in view of what seems to be the established rule that interstate commerce in a case like the one under consideration includes the purchase of goods, we do not think the Supreme Court intended by its decisions in the tax cases to in any way modify the rule which it had established in the cases heretofore cited. Other cases are cited to the effect that the manufacture of goods is not a part of interstate commerce in such goods. There is no occasion in this case to controvert that proposition. Manufacture is a very different element than the purchase of goods for shipment in interstate commerce. The proposition is clearly established by Kidd v. Pearson, supra, U. S. v. E. C. Knight Co., supra, and Addyston Pipe & Steel Co. v. U. S., supra. One of the cases cited by counsel for appellees is Hammer v. Dagenhart, 247 U. S. 251, 38 Sup. Ct. 529, 62 L. Ed. 1101, 3 A. L. R. 649, Ann. Cas. 1918E, 724. This case arose under the federal child labor statute. It followed the decisions in the Kidd, Knight, and Addyston Pipe & Steel Cases to the effect that manufacture is not commerce. Applying the rule that each case must be decided according to its own facts, we cannot avoid the conclusion that a purchase of grain in North Dakota for shipment and sale at the terminal markets of Minneapolis and Duluth, Minn., taken in connection with the fact that the seller knows that the grain is sold for shipment out of the state, makes the purchase and sale in the state of North Dakota for shipment and sale at the above terminal markets a unit in interstate commerce. There is evidence in the record given by one of the managers of appellant that he would sell the grain purchased wherever he could get the highest price; but the undisputed course of commerce in grain, continued over a period of years, shows beyond a doubt that the above markets are the markets where the highest price can be obtained and that grain is bought with reference to those markets alone.

[3] Having answered the first proposition in the affirmative, we come to the question as to whether chapter 138, supra, imposes a direct burden upon such interstate commerce. If the purchase of grain as detailed in the evidence is a part of the unit of interstate commerce in that grain, it necessarily follows that said chapter 138 does impose a burden on that commerce. In Stuart v. Palmer, 74 N. Y. 183, 188 (30 Am. Rep. 289) Earl, J., said:

"The constitutional validity of law is to be tested, not by what has been done under it, but by what may, by its authority, be done."

In Montana Co. v. St. Louis Mining, etc., Co., 152 U. S. 170, 14 Sup. Ct. 506, 38 L. Ed. 398, the Supreme Court, in quoting this language, declared that the test was accurate, provided, of course, it is limited to what may be rightfully done, and does not extend to that which is wrongfully, though under pretense of the statute, done. In re Lambert, 134 Cal. 626, 66 Pac. 851, 55 L. R. A. 856, 86 Am. St.