1. In exercising its right to impose reasonable conditions upon
the bringing of suits, a state properly may treat as a separate
class actions to recover damages resulting to crops from harmful or
deficient fertilizers, and require a chemical analysis as a
condition precedent, without excluding other evidence. P.
264 U. S.
181.
2. A statute of North Carolina (Laws 1917, c. 143) regulating
the sale of fertilizers to prevent deception and fraud and granting
the purchaser new rights and remedies for departures from the
standards fixed without depriving him of any right or cause of
action
Page 264 U. S. 172
or of liberty to contract with the manufacturer on other terms,
provides that no suit for damages from results of the use of
fertilizer may be brought except after chemical analysis showing
deficiency of ingredients, unless it shall appear to the State
Department of Agriculture that, during the season, the manufacturer
has, in other fertilizer offered, employed ingredient outlawed by
the act or offered any kind of dishonest or fraudulent goods. The
act provides opportunity for official chemical analysis, limiting,
however, the time and manner in which samples for analysis may be
taken, and declares that a certificate of the state chemist of an
analysis made by him of any sample drawn under these provisions
shall be
prima facie proof that the fertilizer was of the
value and constituency shown by such analysis.
In an action to recover damage to a crop alleged to have
resulted from fertilizer of inferior quality and containing
deleterious ingredients, in which the plaintiff was nonsuited for
not having procured a chemical analysis as required by the act,
held that the requirement was not arbitrary, but
reasonable, and consistent with the due process and equal
protection clauses of the Fourteenth Amendment. P.
264 U. S.
180.
183 N.C. 338 affirmed.
Error to a judgment of the Supreme Court of North Carolina
affirming a judgment of nonsuit in an action to recover damages to
a tobacco crop alleged to have resulted from the use of fertilizer
bought from the defendant and alleged to have been inferior in
quality and to have contained harmful ingredients.
Page 264 U. S. 176
MR. JUSTICE BUTLER delivered the opinion of the Court.
Plaintiff in error brought this action in the Superior Court of
Rockingham County to recover damages alleged to have resulted to
his tobacco crop from the use of fertilizer manufactured and sold
by defendant in error. A state law (§ 7, chapter 143, Laws of 1917)
provides that no such action shall be brought until after chemical
analysis showing the ingredients of the fertilizer. The plaintiff
in error failed to meet this requirement, and, notwithstanding
evidence tending to show inferior quality of and deleterious
ingredients in the fertilizer and injury to the crop resulting from
its use, the court dismissed the case and entered judgment of
nonsuit. The supreme court of the state affirmed the judgment. 183
N.C. 338. The question here is whether the state law so applied is
repugnant to the due process clause or equal protection clause of
the Fourteenth Amendment.
Page 264 U. S. 177
The facts alleged and on which plaintiff in error seeks to
recover are these. In the spring of 1919, he purchased 51 bags of
fertilizer upon the representation and warranty of defendant in
error that it was good for and conducive to the growth of tobacco.
The weather was propitious, the plants were good and properly set
out, and the land was properly tilled. The fertilizer contained
deleterious ingredients not available as food for plants, and
killed or prevented the growth of tobacco. There was produced 4,469
pounds of tobacco, on which, by reason of inferior quality, there
was a loss of 30 cents a pound, $1,340.70, and, in addition to the
actual yield, there should have been produced 5,281 pounds of the
value of 70 cents per pound, $3,696.70, making total damages
alleged $5,037.40.
In North Carolina, commercial fertilizer is generally used for
the production of crops. Prior to the passage of the act,
litigation between the users and sellers of fertilizers, involving
demands for damages for injuries to crops alleged to have resulted
from the use thereof, became a matter of public concern affecting,
or liable to affect, the general welfare. [
Footnote 1] In earlier cases, the supreme court of the
state held the measure of damages to be the difference between the
actual value and the purchase price of fertilizer, and denied
recovery for diminution of crops on the ground that such a claim
necessarily must be speculative.
Fertilizer Works v.
McLawhorn. (1912) 158 N.C. 274. Later, recovery for diminution
of crops was permitted.
Tomlinson v. Morgan, (1914) 166
N.C. 557;
Carter v. McGill, (1915) 168 N.C. 507,
rehearing, (1916) 171
Page 264 U. S. 178
N.C. 775. In
Hampton Guano Co. v. Live Stock Co.,
(1915) 168 N.C. 442, where the contract of sale of fertilizer
contained a warranty that the seller should not be held responsible
for results in actual use, the court said:
"The warranty was drawn for the very purpose of preventing the
recovery of such damages as are, in their nature, very speculative,
if not imaginary, and out of all proportion to the amount of money
or price received by the seller for the fertilizer. If fertilizer
companies can be mulcted in damages for the failure of the crop of
every farmer who may buy from them, they would very soon be driven
into insolvency or be compelled to withdraw from the state, as the
aggregate damages, if the supposed doctrine be carried to its
logical conclusion, would be ruinous, and the farmers in the end
would suffer incalculable harm."
In 1917, the state legislature dealt with the situation and
passed the act above referred to, comprehensively regulating
fertilizers. Among other provisions, to prevent deception and
fraud, it requires that, before sale, there shall be attached to
each package a brand name, which is required to be registered with
the state department of agriculture the weight, the name, and
address of the manufacturer and the guaranteed analysis, giving the
percentage of valuable constituents -- phosphoric acid, nitrogen
(or equivalent in ammonia), and potash. Change of a registered
brand to a lower grade is forbidden. The use of the terms "high
grade" and "standard" is regulated, and minimum percentages of
valuable constituents are prescribed for each grade. Deleterious
substances are prohibited. Fertilizers offered for sale or sold
contrary to the provisions of the act are liable to be seized and
condemned. Penalties are prescribed for violations of the act or of
the rules and regulations of the department made to carry it into
to effect. Whenever the commissioner of agriculture shall be
satisfied that any fertilizer is five percent below the guaranteed
value in plant food, it is his
Page 264 U. S. 179
duty to require that twice the value of the deficiency shall be
made good by the manufacturer to one who has purchased such
fertilizer for his own use. If ten percent below, it is the duty of
the commissioner to require three times the value of such
deficiency to be paid to the consumer. If the deficiency is due to
intention of the manufacturer to defraud, then there shall be
collected from him double the amounts above stated. If the
manufacturer resists payment, the commissioner is required to
publish the analysis in an official bulletin and also in one or
more newspapers. The department is required to have sufficient
chemists and assistants and the necessary equipment to enable it
promptly to make a report of the chemical analyses of all samples
sent by purchasers or consumers. It is authorized to collect and
analyze fertilizer offered for sale in the state. Samples for
analysis are required to be taken from at least ten percent of the
lot, but from not less than ten bags of any lot or brand. The
drawing of samples is safeguarded by the act, and the department is
authorized to make additional rules and regulations for taking and
forwarding them to the department. No sample shall be taken after
30 days from the actual delivery to the consumer except by the
state inspector. It provides (§ 7) that, in the trial of any case
where the value or composition of any fertilizer is called in
question, a certificate of the state chemist, setting forth the
analysis made by him
"of any sample of said fertilizer drawn under the provisions of
this chapter, . . . shall be
prima facie proof that the
fertilizer was of the value and constituency shown by his said
analysis: . . .
Provided further, that no suit for damages
from results of use of fertilizer may be brought except after
chemical analysis showing deficiency of ingredients, unless it
shall appear to the department of agriculture that the manufacturer
of said fertilizer in question has, in the manufacture of other
goods offered in this state during such season, employed such
ingredients
Page 264 U. S. 180
as are outlawed by the provisions of this act, or unless it
shall appear to the Department of Agriculture that the manufacturer
of such fertilizer has offered for sale during that season any kind
of dishonest or fraudulent goods. That nothing in this act shall
impair the right of contract."
It is not contended that the provision making the certificate of
the state chemist
prima facie evidence is invalid.
[
Footnote 2] The contention is
that the act arbitrarily substitutes the determination of an
executive department for a judicial inquiry, and has the effect of
abolishing all remedies against manufacturers of fertilizer for
damages caused by the use of inferior or deleterious fertilizer,
and is therefore repugnant to the Fourteenth Amendment.
The act does not deprive purchasers of any right or cause of
action. On the contrary, it gives additional rights and remedies to
one who purchases for his own use fertilizer below the guaranteed
value in plant food. The terms of the statute are not made
exclusive. Under the act, the parties were free to deal on other
terms.
Fertilizer Works v. Aiken, (1918) 175 N.C. 398,
402;
Fertilizing Co. v. Thomas, (1921) 181 N.C. 274, 283.
The ingredients of fertilizers can be ascertained definitely by
chemical analysis. The department is required to provide chemists
and equipment and to make and report analyses of all fertilizers
sent in by purchasers or consumers. The requirement imposed is
reasonable, and seems well calculated to safeguard against
uncertainty, conjecture and mistake. The analysis is not made
conclusive. Other
Page 264 U. S. 181
evidence may be introduced by either party. The determination of
the department is not substituted for a trial in court.
The Fourteenth Amendment does not prevent a state from
prescribing a reasonable and appropriate condition precedent to the
bringing of a suit of a specified kind or class so long as the
basis of distinction is real, and the condition imposed has
reasonable relation to a legitimate object.
See Gulf, Colorado
& Santa Fe Ry. Co. v. Ellis, 165 U.
S. 150,
165 U. S. 155;
Truax v. Corrigan, 257 U. S. 312,
257 U. S. 337.
We think it plain that actions to recover damages to crops
resulting from the use of fertilizers may reasonably be
distinguished from other damage suits. Crops depend on the kind and
condition of the soil, the vitality of seeds sown or plants set
out, the cultivation and care given, the weather and many other
things, as well as the kind and amount of the fertilizer applied.
The amount or quality of the yield cannot be known in advance. When
good results are not obtained, it is impossible to discover the
causes and determine how much of the shortage, whether of quantity
or kind, properly may be attributed to any particular thing. In
such actions, peculiar difficulties attend the ascertainment of the
constituent elements of the fertilizer used, and the determination
whether it is inferior in quality or contains ingredients that are
deleterious or harmful to plant growth. To attempt to establish the
kind or quality of fertilizer applied to the land by an inspection
of the crop growing thereon, or by the result of the season's
planting and effort is to indulge in speculation and conjecture. A
state has power to provide for and require a more definite method
of ascertaining the essential facts and a better basis upon which
judicial determinations may be made.
The provision of the state law here under attack is not
repugnant to the Fourteenth Amendment.
Judgment affirmed.
[
Footnote 1]
See Carson v. Bunting, (1911) 154 N.C. 530;
Fertilizer Works v. McLawhorn, (1912) 158 N.C. 274;
Ober v. Katzenstein, (1912) 160 N.C. 439;
Tomlinson v.
Morgan, (1914) 166 N.C. 557;
Hampton Guano Co. v. Live
Stock Co., (1915) 168 N.C. 442;
Carter v. McGill
(1915) 168 N.C. 507,
on rehearing, (1916) 171 N.C. 775.
See also decisions subsequent to its passage.
Fertilizer Works v. Aiken, (1918) 175 N.C. 398;
Fertilizer Co. v. Thomas, (1921) 181 N.C. 274.
[
Footnote 2]
See Pillow v.
Roberts, 13 How. 472,
54 U. S. 476;
Marx v. Hanthorn, 148 U. S. 172,
148 U. S. 182;
Turpin v. Lemon, 187 U. S. 51,
187 U. S. 59;
Adams v. New York, 192 U. S. 585,
192 U. S. 599;
Minneapolis & St. Louis R. Co. v. Minnesota,
193 U. S. 53,
193 U. S. 63;
Mobile, J. & K. C. R. v. Turnipseed, 219 U. S.
35,
219 U. S. 42;
Lindsley v. Natural Carbonic Gas Co., 220 U. S.
61,
220 U. S. 81;
Reitler v. Harris, 223 U. S. 437,
223 U. S. 441;
Luria v. United States, 231 U. S. 9,
231 U. S. 25;
Easterming Lumber Co. v. Pierce, 235 U.
S. 380;
Meeker & Co. v. Lehigh Valley R.
Co., 236 U. S. 412,
236 U. S. 430;
Hawkins v. Bleakly, 243 U. S. 210,
243 U. S. 213;
Hawes v. Georgia, 258 U. S. 1,
258 U. S. 4.