Page:North Dakota Reports (vol. 2).pdf/519

 sustained. The appellant having made his election to stand upon the answer, the trial court ordered and adjudged that the peremptory writ be issued as prayed for, and from this order an appeal is taken to this court. The principal assignments of error are as follows: “(1) That the court erred in sustaining the relator’s demurrer to the appellant's answer and return; (2) that the court erred in holding chapter 126 of the Laws of 1891, and particularly § 11 of that chapter, constitutional.”

The grain elevator and warehouse in question, as described in the alternative writ as well as in the answer thereto, is confessedly a building which falls within the statutory definition of “public warehouses;” and the appellant, as sole owner and manager of the elevator and of the grain business carried on within it, at the inception of this proceeding and long prior thereto, was clearly a “public warehouseman,” within the terms and meaning of the statute. The answer admits and alleges that “respondent's [appellant’s] principal business is that of buying wheat at Grand Harbor, North Dakota, and shipping the same to and selling it at Minneapolis and Duluth, Minn., to which business that of storing grain for third persons is and always has been a mere incident.” From this it appears that appellant’s warehouse, as well as his grain business, is essentially within the terms and definitions of the act in question. See § 4, c. 126, above quoted. The answer in terms admits all matters of fact set out in the alternative writ, and the demurrer to the answer admits all facts which are well pleaded in the answer to the writ. Hence any averments of mere fact which are embodied in both the writ and the answer are admitted of record to be true as pleaded. It appears that the object of the proceeding is to compel the appellant, as a public warehouseman, to store the relator’s grain in appellant’s warehouse and grain elevator at the rate of compensation fixed by § 11 of the statute. This appellant refused tu do on demand and tender of the prescribed rate of compensation. Appellant’s refusal to receive the grain into his warehouse is not based upon any alleged inadequacy of the statutory rate, but was placed solely upon the ground that he was unwilling to lower his charges for storage below the sum he had been receiving in prior years for the