1. In order that federal questions decided by a state appellate
court may be reviewable here, it is not necessary that they should
have been raised in the state trial court. P.
297 U. S.
436.
2. As applied to a citizen of another State, or to a citizen of
the United States residing in another State, a state law forbidding
sale of convict-made goods does not violate the privileges and
immunities clauses of Art. IV, § 2, and the Fourteenth Amendment of
the Federal Constitution if it applies also and equally to the
citizens of the State that enacted it. P.
297 U. S.
437.
3. A judgment upon an indictment containing several counts, with
a verdict of guilty upon each, will be sustained if any count is
good, and sufficient, in itself, to support the judgment. P.
297 U. S.
438.
4. A State may classify as an evil the sale of convict-made
goods in competition with goods made by free labor, and forbid such
sales on the open market. P.
297 U. S.
439.
5. In view of the Act of Congress of June 19, 1929, 49 U.S.C. §
60, commonly called the Hawes-Cooper Act, the power of a State to
forbid sales on the open market of convict-made goods extends to
sales in the original packages of goods shipped in from other
States. Pp.
297 U. S.
438-440.
6. Where goods are shipped from one State to another,
fundamentally the interstate transaction ends with delivery; the
rule that the consignee may sell, free from state interference, in
the original packages is but incidental, and is an impediment to
state regulation which, in the case of convict-made goods, may be
removed by Act of Congress. P.
297 U. S.
440.
7. In providing by the Hawes-Cooper Act that convict-made goods
transported into any State shall upon arrival be subject to the
operation and effect of the laws of such State to the same extent
and in the same manner as though such goods had been manufactured
in such State and shall not be exempt therefrom by reason of being
introduced in the original package, Congress did not delegate power
to the States. P.
297 U. S. 441.
49 Ohio App. 530, 197 N.E. 605; 129 Oh. St. 543, 196 N.E. 164,
affirmed.
Page 297 U. S. 432
Certiorari, 296 U.S. 561, to review a judgment affirming a
conviction and sentence on two counts for violation of an Ohio law
against sales of convict-made goods. The affirmance in the first
instance was by the Ohio Court of Appeals. The Supreme Court of
Ohio dismissed a petition in error.
Page 297 U. S. 434
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
Petitioner was charged in the municipal court of Cleveland with
a violation of § 2228-1 of the Ohio General Code, adopted March 23,
1933, which provides:
"After January 19, 1934, no goods, wares or merchandise,
manufactured or mined wholly or in part in any other state by
convicts or prisoners, except convicts or prisoners on parole or
probation, shall be sold on the open market in this state."
By § 2228-2, a violation of this provision subjects the offender
to a fine of not less than $25 nor more than $50 for the first
offense. An Act of Congress passed January 19, 1929 (effective five
years later), c. 79, §§ 1, 2, 45 Stat. 1084, Title 49 U.S.C. § 60,
commonly called the Hawes-Cooper Act, provides that
"All goods, wares, and merchandise manufactured, produced, or
mined, wholly or in part, by convicts or prisoners, except convicts
or prisoners on parole or probation, or in any penal and/or
reformatory institutions, except commodities manufactured in
Federal penal and correctional institutions for use by the Federal
Government, transported into any State or Territory of the United
States and remaining therein for use, consumption, sale, or
storage, shall upon arrival and delivery in such State or Territory
be subject to the operation and effect of the laws of such State or
Territory to the same extent and in the same manner as though such
goods, wares, and merchandise had been manufactured, produced, or
mined in such State or Territory, and shall not be exempt therefrom
by reason of being introduced in the original package or
otherwise."
The information contains two counts. The first count charges
that petitioner, upon a day named, and within the city of
Cleveland, Ohio,
"did unlawfully sell on the
Page 297 U. S. 435
open market certain goods, wares, or merchandise, to-wit: one
dozen Chambray men's work shirts, which said merchandise was
manufactured in whole or in part by convicts or prisoners at
Wetumpka Prison in the Alabama; said prisoners so manufacturing
said articles at the time of manufacturing same not being on parole
or probation."
By the second count, it is charged that petitioner
"did unlawfully sell for shipment to R. C. Kissack, via railway
express from Wetumpka Prison in the Alabama to R. C. Kissack in the
City of Lakewood, Ohio, . . . six dozen Chambray men's work
shirts,"
manufactured by convicts or prisoners at the same prison in
Alabama. The case was tried before the court upon a stipulation of
facts substantially the same as those set forth in the information,
with the addition, in respect of the first count, that the goods
were sold in the original package as shipped by interstate commerce
into the State of Ohio, and that there is nothing harmful,
injurious, or deleterious about the goods sold; that the six dozen
shirts mentioned in the second count were not delivered to Kissack
at the time of sale, but were to be shipped to his residence in
Lakewood, Ohio, by railway express from the prison in Alabama.
The case was tried without a jury. The court found petitioner
guilty upon both counts, and sentenced him to pay a fine of $25 and
costs.
An appeal was taken to the Court of Appeals of Ohio, Eighth
District, Cuyahoga County, where the judgment was affirmed. 49 Ohio
App. 530, 197 N.E. 605. A petition in error to the Supreme Court of
Ohio was dismissed by that court on the ground that no debatable
constitutional question was involved. 129 Ohio St. 543, 196 N.E.
164. This Court granted certiorari.
Petitioner assails the constitutional validity of the Ohio
statute and also of the Hawes-Cooper Act. The record fails to show
that the points made by petitioner
Page 297 U. S. 436
in this Court were properly raised in the trial court. But it
sufficiently appears from the opinion of the appellate court that
that court considered and passed upon the following contentions:
that the Ohio statute abridged the privileges and immunities of
petitioner as a citizen of the United States in violation of the
Fourteenth Amendment by depriving him of the privilege of selling
goods, manufactured in Alabama by prison labor, in competition with
citizens of Ohio engaged in selling like goods; that the Ohio
statute constituted an unauthorized regulation of and a burden upon
interstate commerce, and that the Hawes-Cooper Act constituted an
unlawful delegation of the power of Congress to the states. These
questions therefore are properly here for consideration.
Home
Ins. Co. v. Dick, 281 U. S. 397,
281 U. S.
405-407;
Erie Railroad Co. v. Purdy,
185 U. S. 148,
185 U. S.
153.
The policy of the state of Ohio for many years, as evidenced by
its Constitution and laws, has been to protect the products of free
labor against competition from similar products brought into
existence by prison labor. A section of the state constitution
(Article II, § 41), adopted in 1912, provides:
"Laws shall be passed providing for the occupation and
employment of prisoners sentenced to the several penal institutions
and reformatories in the state, . . . and goods made by persons
under sentence to any penal institution or reformatory without the
Ohio, and such goods made within the State of Ohio, excepting those
disposed of to the state or any political sub-division thereof or
to any public institution owned, managed or controlled by the state
or any political subdivision thereof, shall not be sold within this
state unless the same are conspicuously marked 'prison made.'
Nothing herein contained shall be construed to prevent the passage
of laws providing that convicts may work for, and that the
products
Page 297 U. S. 437
of their labor may by disposed of to, the state or any political
subdivision thereof, or for or to any public institution owned or
managed and controlled by the state or any political subdivision
thereof."
1. The court below proceeded upon the assumption that petitioner
was a citizen of the United States, and his status in that regard
is not questioned. The effect of the privileges and immunities
clause of the Fourteenth Amendment, as applied to the facts of the
present case, is to deny the power of Ohio to impose restraints
upon citizens of the United States resident in Alabama in respect
of the disposition of goods within Ohio if like restraints are not
imposed upon citizens resident in Ohio. The effect of the similar
clause found in the Fourth Article of the Constitution, as applied
to these facts, would be the same, since that clause is directed
against discrimination by a state in favor of its own citizens and
against the citizens of other states.
Slaughter House
Case, 1 Woods 21, 28;
Bradwell v.
Illinois, 16 Wall. 130,
83 U. S. 138.
As interpreted by the court below, the laws of Ohio passed in
pursuance of the State Constitution prohibit the sale in the open
market of goods made in Ohio by convict labor. The statutory
provision here challenged enforces, without discrimination, the
same rule as to the convict-made goods of other states when they
are brought into Ohio, and the contention in respect of the
privileges and immunities clause must be rejected as without
substance.
Compare Scott v. Donald, 165 U. S.
58,
165 U. S. 100;
Colgate v. Harvey, 296 U. S. 404.
2. A serious question as to the infringement of the commerce
clause of the Constitution is presented by the second count of the
information. That count alleges that the prison-made goods
described were sold to a purchaser in Ohio for shipment via railway
express from a prison in Alabama. Whether the court below intended
to sustain this count is not clear, but the state confines its
Page 297 U. S. 438
argument here to a defense of its asserted power to prohibit and
penalize the sale of such goods upon the open market, and the
statute apparently goes no further than this. In any event, for
present purposes, we lay that count out of the case, and limit our
consideration to the first count. True, the petitioner was found
guilty upon both counts, but the penalty imposed upon him does not
exceed that which might have been exacted under the first count if
it had stood alone. The case therefore falls within the rule,
frequently stated by this Court, that a judgment upon an indictment
containing several counts, with a verdict of guilty upon each, will
be sustained if any count is good and sufficient in itself to
support the judgment.
Claassen v. United States,
142 U. S. 140,
142 U. S. 146;
Evans v. United States, 153 U. S. 584,
153 U. S. 595;
Abrams v. United States, 250 U. S. 616,
250 U. S. 619;
Brooks v. United States, 267 U. S. 432,
267 U. S.
441.
The first count simply charges, in the terms of the statute,
that petitioner unlawfully sold on the open market in Ohio certain
goods made by prison labor in Alabama. These goods, according to
the stipulation of facts, were sold in original packages as they
were shipped in interstate commerce into Ohio. When the goods were
sold, their transportation had come to an end, and the regulative
power of the state had attached, except so far as that power might
be affected by the fact that the packages were still unbroken. But
any restrictive influence which that fact otherwise might have had
upon the state power was completely removed by Congress, if the
Hawes-Cooper Act be valid. That act is in substance the same as the
Wilson Act with respect to intoxicating liquors, passed August 8,
1890, c. 728, 26 Stat. 313, as construed and upheld by this Court.
Rhodes v. Iowa, 170 U. S. 412,
170 U. S.
421-423,
170 U. S. 426;
In re Rahrer, 140 U. S. 545,
140 U. S.
559-560,
140 U. S. 562,
140 U. S. 564.
In effect, both acts provide (the one as construed and the other in
terms) that the subject matter of the interstate
Page 297 U. S. 439
shipment shall, upon arrival and delivery in any state or
territory, become subject to the operation of the local laws as
though produced in such state or territory, and shall not be exempt
therefrom because introduced in original packages. Each statute
simply permits the jurisdiction of the state to attach immediately
upon delivery, whether the importation remain in the original
package or not. In other words, the importation is relieved from
the operation of any rule which recognizes a right of sale in the
unbroken package without state interference -- a right the exercise
of which never has been regarded as a fundamental part of the
interstate transaction, but only as an incident resulting
therefrom.
Rhodes v. Iowa, supra, pp.
170 U. S. 420,
170 U. S.
423-424. The interstate transaction in its fundamental
aspect ends upon delivery to the consignee.
The view of the State of Ohio that the sale of convict-made
goods in competition with the products of free labor is an evil
finds ample support in fact and in the similar legislation of a
preponderant number of the other states. Acts of Congress relating
to the subject also recognize the evil. In addition to the
Hawes-Cooper Act, the importation of the products of convict labor
has been denied the right of entry at the ports of the United
States, and the importation prohibited. Chapter 497, § 307, 46
Stat. 689, Title 19 U.S.C. (1934 Ed.), § 1307. And the sale to the
public in competition with private enterprise of goods made by
convicts imprisoned under federal law is forbidden. Chapter 340, §
3, 46 Stat. 391, Title 18 U.S.C. (1934 Ed.), § 744c.
All such legislation, state and federal, proceeds upon the view
that free labor, properly compensated, cannot compete successfully
with the enforced and unpaid or underpaid convict labor of the
prison. A state basing its legislation upon that conception has the
right and power, so far as the Federal Constitution is concerned,
by nondiscriminating legislation, to preserve its policy
Page 297 U. S. 440
from impairment or defeat, by any means appropriate to the end
and not inconsistent with that instrument. The proposition is not
contested that the Ohio statute would be unassailable if made to
take effect after a sale in the original package. And the statute
as it now reads is equally unassailable, since Congress has
provided that the particular subjects of interstate commerce here
involved "shall be governed by a rule which divests them of that
character at an earlier period of time than would otherwise be the
case,"
In re Rahrer, supra, p.
140 U. S. 562,
namely upon arrival and delivery.
If the power of Congress to remove the impediment to state
control presented by the unbroken package doctrine be limited in
any way (a question which we do not now find it necessary to
consider), it is clear that the removal of that impediment in the
case of prison-made goods must be upheld for reasons akin to those
which moved this Court to sustain the validity of the Wilson Act.
Even without such action by Congress, the unbroken package
doctrine, as applied to interstate commerce, has come to be
regarded, generally at least, as more artificial than sound.
Indeed, in its relation to that commerce, it was definitely
rejected in
Sonneborn Bros. v. Cureton, 262 U.
S. 506,
262 U. S.
508-509, as affording no immunity from state taxation.
"The interstate transportation," this Court there concluded,
"was at an end, and, whether in the original packages or not, a
state tax upon the oil as property or upon its sale in the state,
if the state law levied the same tax on all oil or all sales of it,
without regard to origin, would be neither a regulation nor a
burden of the interstate commerce of which this oil had been the
subject."
Whether that view of the doctrine as applied to state taxation
should now be given a more general application, the Hawes-Cooper
Act, being determinative of the case now under review, makes it
unnecessary for us to decide.
Page 297 U. S. 441
3. That the Hawes-Cooper Act does not constitute a delegation of
Congressional power to the states is made clear by
In re
Rahrer, supra, pp.
140 U. S.
560-561, and by what we have already said under
subdivision 2.
Judgment affirmed.
MR. JUSTICE VAN DEVANTER, Mr. JUSTICE McREYNOLDS, and MR.
JUSTICE STONE concur in the result.