The Act of the Legislature of North Carolina of January 21,
1891, must be regarded as an act providing for the inspection of
fertilizers and fertilizing materials in order to prevent the
practice of imposition on the people of the state, and the charge
of twenty-five cents per ton as intended merely to defray the cost
of such inspection, and as it is competent for the state to pass
laws of this character, the requirement of inspection and payment
of its cost does not bring the act into collision with the
commercial power vested in Congress, and clearly this cannot be so
as to foreign commerce, for clause two of section ten of article
one expressly recognizes the validity of state inspection laws, and
allows the collection of the amounts necessary for their execution,
and the same principle must apply to interstate commerce.
The case is stated in the opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
This was a bill filed in the Circuit Court of the United States
for the Eastern District of North Carolina, April 1, 1892, seeking
to enjoin the collection of an inspection charge of twenty-five
cents per ton on commercial fertilizers, as prescribed by an Act of
the General Assembly of North Carolina of January 21, 1891, and
from taking any steps whatever to enforce that act, on the ground
of its unconstitutionality.
The court entered a restraining order, but, on the coming in of
the answer, a motion to continue the injunction until the
Page 171 U. S. 346
hearing was heard on bill, answer, affidavits, and exhibits, and
denied, and the temporary injunction dissolved. The opinion of the
circuit court, by Seymour, J., is reported in 52 F. 690. Proofs
were taken, and a final hearing had at June term, 1893 at Raleigh.
The bill was dismissed, and complainant thereupon prosecuted this
appeal.
By section fourteen of article nine of the Constitution of North
Carolina of 1875-1876, it was provided that, as soon as practicable
after the adoption of that instrument, the General Assembly should
"establish and maintain, in connection with the university, a
Department of Agriculture, of mechanics, of mining, and of normal
instruction."
By an Act of March 12, 1877 (Laws N.C. 1876-77, p. 506, c. 274),
such a department was established, and, among other things, the
subject of commercial fertilizers dealt with. By the eighth
section, manipulated guanos, superphosphates, or other commercial
fertilizers were forbidden to be sold or offered for sale until the
manufacturer or person importing the same had obtained a license
therefor, on payment of a privilege tax of five hundred dollars per
annum for each separate brand or quality.
By section nine, every bag, barrel, or other package of such
fertilizer offered for sale was required to have thereon a label or
stamp setting forth the name, location, and trademark of the
manufacturer, the chemical composition of the contents, and the
real percentage of certain specified ingredients, and that the
privilege tax had been paid. By section ten, the board was
empowered to collect samples for analysis; by section eleven, to
require railroad and steamboat companies to furnish monthly
statements of the quantity of fertilizers transported; and, by
section twelve, to establish an agricultural experiment and
fertilizer central station in connection with the chemical
laboratory of the university, and the trustees of the university,
with the approval of the board, were directed to employ an analyst,
skilled in agricultural chemistry, whose duty it should be
"to analyze such fertilizers and products as may be required by
the Department of Agriculture, and to aid as far as practicable in
suppressing fraud in the sale of commercial
Page 171 U. S. 347
fertilizers,"
and whose salary was to be paid "out of the funds of the
Department of Agriculture."
The sections bearing on this subject were carried forward in the
Code of 1883, volume II, c. 1, §§ 2190
et seq.
In August, 1890, the Circuit Court for the Eastern District of
North Carolina (Bond and Seymour, JJ.) held that section 2190 of
the Code, declaring that no commercial fertilizers should be sold
or offered for sale until the manufacturer or importer obtained a
license from the treasurer of the state, for which should be paid a
privilege tax of five hundred dollars per annum for each separate
brand, was in violation of the federal Constitution, and void.
American Fertilizing Co. v. Board of Agriculture of North
Carolina, 43 F. 609.
Thereupon, by the Act of January 21, 1891, Laws 1891, 40, c. 9,
volume II, c. 1 of the Code was amended, and sections 2190, 2191,
and 2193 were made to read as follows:
"SEC. 2190. For the purpose of defraying the expenses connected
with the inspection of fertilizers and fertilizing materials in
this state, there shall be a charge of twenty-five cents per ton on
such fertilizers and fertilizing material for each fiscal year
ending November thirtieth, which shall be paid before delivery to
agents, dealers or consumers in this state,
provided, the
board shall [have] the discretion to exempt certain natural
material as may be deemed expedient. Each bag, barrel or other
package of such fertilizers or fertilizing materials shall have
attached thereto a tag stating that all charges specified in this
section have been paid, and the state Board of Agriculture is
hereby empowered to prescribe a form for such tags, and to adopt
such regulations as will enable them to enforce this law. Any
person, corporation or company who shall violate this chapter, or
who shall sell or offer for sale any such fertilizers or
fertilizing material contrary to the provisions above set forth,
shall be guilty of a misdemeanor, and all fertilizers or
fertilizing materials so sold or offered for sale shall be subject
to seizure and condemnation in the same manner as provided in this
chapter for the seizure and condemnation of spurious fertilizers,
subject, however,
Page 171 U. S. 348
to the discretion of the Board of Agriculture to release the
fertilizers so seized and condemned upon the payment of the charge
above specified and all costs and expenses incurred by the
department in such proceeding:
provided, that tags shall
be attached by manufacturers, agents or dealers to all fertilizers
now in the state; those protected under license previously issued
shall be furnished free of charge."
"SEC. 2191. Every bag, barrel or other package of such
fertilizers or fertilizing materials as above designated offered
for sale in this state shall have thereon plainly printed a label
or stamp, a copy of which shall be filed with the Commissioner of
Agriculture, together with a true and faithful sample of the
fertilizer or fertilizing material which it is proposed to sell at
or before delivery to agents, dealers or consumers in this state
and which shall be uniformly used and shall not be changed during
the fiscal year for which tags are issued, and the said label or
stamp shall truly set forth the name, location and trademark of the
manufacturer; also the chemical composition of the contents of such
package, and the real percentage of any of the following
ingredients asserted to be present, to-wit, soluble and
precipitated phosphoric acid, which shall not be less than eight
percent; soluble potassa, which shall not be less than one percent;
ammonia, which shall not be less than two percent, or its
equivalent in nitrogen; together with the date of its analyzation,
and that the requirements of the law have been complied with, and
any such fertilizer as shall be ascertained by analysis not to
contain the ingredients and percentage set forth as above provided
shall be liable to seizure and condemnation as hereinafter
prescribed, and when condemned shall be sold by the Board of
Agriculture for the exclusive use and benefit of the Department of
Agriculture."
Section 2192 refers to the proceedings to condemn.
"SEC. 2193. Any merchant, trader, manufacturer or agent who
shall sell or offer for sale any commercial fertilizer or
fertilizing material without having such labels, stamps and tags as
hereinbefore provided attached thereto, or shall use the required
tag the second time to avoid the payment of the
Page 171 U. S. 349
tonnage charge, or if any person shall remove any such
fertilizer, [he] shall be liable to a fine of ten dollars for each
separate bag, barrel or package sold, offered for sale or removed,
to be sued for before any justice of the peace and to be collected
by the sheriff by distress or otherwise, one-half less the costs to
go to the party suing and the remaining half to the department, and
if any such fertilizer shall be condemned as herein provided it
shall be the duty of the department to have an analysis made of the
same and cause printed tags or labels expressing the true chemical
ingredients of the same put upon each bag, barrel or package, and
shall fix the commercial value thereof at which it may be sold, and
any person who shall sell, offer for sale or remove any such
fertilizers, or any agent of any railroad or other transportation
company who shall deliver any such fertilizer in violation of this
section shall be guilty of a misdemeanor."
Section 2196, which corresponded to section 12 of the Act of
March 12, 1877, was amended by the substitution of the word
"control" for the word "central," and read as follows:
"The Department of Agriculture shall establish an agricultural
experiment and fertilizer control station, and shall employ an
analyst skilled in agricultural chemistry. It shall be the duty of
said chemist to analyze such fertilizers and products as may be
required by the Department of Agriculture, and to aid as far as
practicable in suppressing fraud in the sale of commercial
fertilizers. He shall, also, under the direction of said
department, carry on experiments on the nutrition and growth of
plants, with a view to ascertain what fertilizers are best suited
to the various crops of this state, and whether other crops may not
be advantageously grown on its soil, and shall carry on such other
investigations as the said department may direct. He shall make
regular reports to the said department, of all analyses and
experiments made, which shall be furnished, when deemed needful, to
such newspapers as will publish the same. His salary shall be paid
out of the funds of the Department of Agriculture."
The following was substituted for section 2205:
"Whenever
Page 171 U. S. 350
any manufacturer of fertilizers or fertilizing materials shall
have paid the charges hereinbefore provided his goods shall not be
liable to any further tax whether by city, town or county."
Section 2208 remained unamended, and provided:
"All moneys arising from the tax on licenses, from fines and
forfeitures, fees for registration and sale of lands not herein
otherwise provided for, shall be paid into the state treasury and
shall be kept on a separate account by the treasurer as a fund for
the exclusive use and benefit of the Department of
Agriculture."
The various errors assigned question the decree on the grounds,
in general, that the court should have held the Act of January 21,
1891, to be in violation of the third clause of section 8, and of
the second clause of Section 10, of Article I of the Constitution
of the United States; that the charge required to be paid was so
excessive that the act could not be sustained as a legitimate
inspection law or as a valid exercise of the police power, and that
it was neither, because it was not limited to articles produced in
the state and because it did not relate to the health, morals, or
safety of the community.
The second clause of Section 10 of Article I of the Constitution
reads:
"No state shall, without the consent of the Congress, lay any
imposts or duties on imports or exports, except what may be
absolutely necessary for executing its inspection laws, and the net
produce of all duties and imposts, laid by any state on imports or
exports, shall be for the use of the Treasury of the United States,
and all such laws shall be subject to the revision and control of
the Congress."
The words "imports" and "exports," as therein used, have been
held to apply only to articles imported from or exported to foreign
countries.
Woodruff v.
Parham, 8 Wall. 123;
Pittsburgh Coal Co. v.
Louisiana, 156 U. S. 590,
156 U. S.
600.
The clause recognized that the inspection of such articles may
be required by the states, and that they may lay duties on them to
pay the expense of such inspections, but as it
Page 171 U. S. 351
would be difficult, if not impossible, to determine the
necessary amount with exactness, and to remove and inducement to
excess, it was provided that any surplus should be paid to the
United States. As such laws are subject to the revision and control
of Congress, it has been suggested that whether inspection charges
are excessive or not might be for Congress to determine, and not
the courts, which would also be so where inspection laws operate on
interstate as well as foreign commerce.
Neilson v. Graza,
2 Woods 287;
Turner v. Maryland, 107 U. S.
38.
Considered as an inspection laws and as not open to attack as in
contravention of that clause, the question still remain whether an
inspection law can operate on importations as well as exportations,
and whether, in this instance, the charge was so excessive as to
deprive the act of its character as an inspection law or as a
legitimate exercise of protective governmental power, and made it a
mere revenue law obnoxious to the objection of being an unlawful
interference with interstate commerce. Counsel for plaintiff in
error insists that this result is deducible from the legislation of
North Carolina making appropriations from the funds of the
Department of Agriculture received from the charge on fertilizers
or fertilizing materials, as also from the evidence submitted on
the hearing.
It will be more convenient to first dispose of the latter
contention.
By section 2206 of the Code of 1883, the Board of Agriculture
was directed to
"appropriate annually, of the money received from the tax on
fertilizers, the sum of five hundred dollars for the benefit of the
North Carolina Industrial Association, to be expended under the
direction of the Board of Agriculture."
By chapter 308 of the Laws of 1885, Laws N.C. March 11, 1885,
553, the establishment of an industrial school was provided for, to
the establishment and maintenance of which the board was directed
by the fourth section to apply their surplus funds, not exceeding
five thousand dollars annually.
By chapter 410 of the Laws of 1887, Laws, N.C. March 7,
Page 171 U. S. 352
1887, 718, the name "The Industrial School" was changed to "The
North Carolina College of Agriculture and Mechanic Arts," and the
board was required by section 6 to turn over to that institution
annually "the whole residue of their funds from licenses of
fertilizers remaining over and not required to conduct the regular
work of that department."
But by chapter 348 of the Laws of 1891, Laws, N.C. March 6,
1891, 404, the provision last above given was stricken out, and by
section 5 of the act, $10,000 for the year 1891 and $10,000 for the
year 1892 were appropriated to the college, and by chapter 426 of
the Laws of 1891, Laws, N.C. March 7, 1891, 491, an annual
appropriation of five hundred dollars was made to the North
Carolina Industrial Association. These appropriations were made
from the state treasury, and both acts contained the usual
repealing clauses.
By section 2198 and subsequent section of the act of 1883, the
geological survey of the state, the geological museum, the
appointment of the state geologist, and matters pertaining thereto
were dealt with, and various expenditures connected therewith were
authorized to be paid out of the general fund of the Agricultural
Department, the sources of which were apparently not confined to
what might be derived from the license tax in respect of
fertilizers.
By chapter 409 of the Laws of 1887 (Laws, 1887, 714), so much of
the sections of the act pertaining to the state geologist as
required the department to fix the compensation, to regulate the
expenditures, or pay out of their funds the salary and expenses of
the state geologist was repealed.
Section 14 of this act empowered the department to expend from
the amount arising from the tax on fertilizers for 1887-1888 the
expenses for the completion of the oyster survey, but by chapter
338 of the Laws of 1891 (Laws, 1891, 369), provision was made for
defraying the expenses of the regulation of the oyster industries
of the state from other sources.
We agree entirely with the circuit court that the legislation of
1891 not only amended the Code in the matter of the requirement of
the privilege tax of five hundred dollars,
Page 171 U. S. 353
but repealed all laws making any substantial diversion of the
money to be derived from the charge on fertilizers of twenty-five
cents per ton to any other purposes than those connected with the
necessary expenses of inspection. It is ingeniously argued that, as
section 6 of chapter 410 of the Laws of 1887 repealed by
substitution section 4 of chapter 308 of the Laws of 1885, the
repeal thereof by chapter 348 of the Laws of 1891 revived the
latter section, and hence that $5,000 of the amount arising from
the present charge on fertilizers became appropriated to the
industrial school, it being asserted that the funds of the
department were in fact derived therefrom, and also that the
appropriation out of the state treasury of five hundred dollars to
the industrial association by chapter 426 of the Laws of 1891 was
an additional appropriation, and did not repeal section 2206 of the
Code, which directed the Board of Agriculture to appropriate that
sum to that association.
These positions do not commend themselves to our judgment. As to
the appropriation of five hundred dollars, we think, under the
circumstances, that it was intended to be in lieu of the former
appropriation of that amount; and as to the revival of the act of
1885 by the repeal of the repealing act of 1887, we regard the
doctrine that the repeal of a repealing act revives the first act
as wholly inapplicable. In our opinion, such a conclusion would be
opposed to the obvious legislative intention in the enactment of
the law of 1891. This act imposed a charge of twenty-five cents per
ton on commercial fertilizers, and the purpose of the charge was
declared to be to defray the expenses of inspection only. The
previous laws had imposed a tax of five hundred dollars per brand
upon every brand and description of fertilizer, and declared the
same to be a privilege tax. It is impossible to impute to the
General Assembly the intention, in repealing parts of the Code
which had been declared unconstitutional, to revive earlier laws
which might render the amended law liable to the same
objections.
Entertaining these views of the legislative intention, it does
not appear to us that evidence tending to show that money
Page 171 U. S. 354
collected from this source was applied to other than the
purposes for which it was received should be entered into on this
inquiry into the validity of the act. If the receipts are found to
average largely more than enough to pay the expenses, the
presumption would be that the legislature would moderate the
charge. But treating the question whether the charge of twenty-five
cents per ton was shown to be so excessive as to demonstrate a
purpose other than that which they law declared as a judicial
question, we are satisfied that, comparing the receipts from this
charge with the necessary expenses -- such as the cost of analyses,
the salaries of inspectors, the cost of tags, express charges,
miscellaneous expenses of the department in this connection, and so
on -- we cannot conclude that the charge is so seriously in excess
of what is necessary for the objects designed to be effected as to
justify the imputation of bad faith, and change the character of
the act.
Inspection laws are not in themselves regulations of commerce,
and, while their object frequently is to improve the quality of
articles produced by the labor of a country and fit them for
exportation, yet they are quite as often aimed at fitting them, or
determining their fitness, for domestic use, and, in so doing,
protecting the citizen from fraud. Necessarily, in the latter
aspect, such laws are applicable to articles imported into, as well
as to articles produced within, a state.
Clause two of section ten expressly allows the state of collect
from imports as well as well as exports the amounts necessary for
executing its inspection laws, and Chief Justice Marshall expressed
the opinion in
Brown v.
Maryland, 12 Wheat. 419, that imported as well as
exported articles were subject to inspection.
The observations of Mr. Justice Bradley, on circuit, in
Neilson v. Garza, are quite apposite on this and other
points under discussion, and may profitably be quoted.
That case involved the validity of a law of the State of Texas,
providing for the inspection of hides, and Mr. Justice Bradley
said:
"If the state law of Texas which is complained of is really an
inspection law, it is valid and binding unless it interferes
Page 171 U. S. 355
with the power of Congress to regulate commerce, and if it does
thus interfere, it may still be valid and binding until revised and
altered by Congress. The right to make inspection laws is not
granted to Congress, but is reserved to the states; but it is
subject to the paramount right of Congress to regulate commerce
with foreign nations and among the several states, and if any
state, as a means of carrying out and executing its inspection
laws, imposes any duty or impost on imports or exports, such impost
or duty is void if it exceeds what is absolutely necessary for
executing such inspection laws. How the question whether a duty is
excessive or not is to be decided may be doubtful. As that question
is passed upon by the state legislature when the duty is imposed,
it would hardly be seemly to submit it to the consideration of a
jury in every case that arises. This might give rise to great
diversity of judgment, the result of which would be to make the law
constitutional one day and in one case, and unconstitutional
another day in another case. As the article of the Constitution
which prescribes the limit goes on to provide that 'all such laws
shall be subject to the revision and control of Congress,' it seems
to me that Congress is the proper tribunal to decide the question
whether a charge or duty is or is not excessive. If, therefore, the
fee allowed in this case by the state law is to be regarded as in
effect an impost or duty on imports or exports, still, if the law
is really an inspection law, the duty must stand until Congress
shall see fit to alter it."
"Then we are brought back to the question whether the law is
really an inspection law. If it is, we cannot interfere with it on
account of supposed excessiveness of fees. If it is not, the
exaction is clearly unconstitutional and void, being an
unauthorized interference with the free importation of goods. The
complainant contends that it is not an inspection law; that
inspection laws only apply legitimately to the domestic products of
the country, intended for exportation, and that no inspection is
actually required in this particular case, but a mere examination
to see if the hides are marked, and who imported them, etc. --
duties which belong to the entry of goods, and not their
inspection. "
Page 171 U. S. 356
"No doubt the primary and most usual object of inspection is to
prepare goods for exportation in order to preserve the credit of
our exports in foreign markets. Chief Justice Marshall, in
Gibbons v. Ogden, says:"
"The object of inspection laws is to improve the quality of
articles produced by the labor of a country, to fit them for
exportation, or, it may be, for domestic use."
"9 Wheat.
22 U. S. 203; Story on the
Const., § 1017. But in
Brown v. Maryland, he adds,
speaking of the time when inspection takes place:"
"Inspection laws, so far as they act upon articles for
exportation, are generally executed on land before the article is
put on board a vessel; so far as they act upon importations, they
are generally executed upon articles which are landed. The tax or
duty of inspection is a tax which is frequently, if not always,
paid for service performed on land."
"12 Wheat.
25 U. S. 419; Story on the
Const., § 1017. So that, according to Chief Justice Marshall,
imported as well as exported goods may be subject to inspection,
and they may be inspected as well to fit them for domestic use as
for exportation."
"All housekeepers who are consumers of flour know what a
protection it is to be able to rely on the inspection mark for a
fine or superior article. Bouvier defines 'inspection' as the
examination of certain articles made by law subject to such
examination, so that they may be declared fit for commerce. Law
Dict.
verb. 'Inspection.' 'The removal or destruction of
unsound articles is undoubtedly that power.'
Brown v. Maryland,
supra; Story on the Const., § 1024. 'The object of the
inspection laws,' says Justice Sutherland,"
"is to protect the community, so far as they apply to domestic
sales, from frauds and impositions, and, in relation to articles
designed for exportation, to preserve the character and reputation
of the state in foreign markets,"
"
Clintsman v. Northrop, 8 Cowen 46. It thus appears
that the scope of inspection laws is very large, and is not
confined to articles of domestic produce or manufacture, or to
articles intended for exportation, but applies to articles
imported, and to those intended for domestic use as well."
2 Woods 287, 289.
But in
Turner v. Maryland, 107 U. S.
38, which related only to the laws of Maryland so far as
providing for the preparation
Page 171 U. S. 357
for exportation of tobacco grown in the state, any opinion as to
the provisions of those laws referring to the inspection of tobacco
grown out of Maryland was expressly reserved.
In
Voight v. Wright, 141 U. S. 62,
141 U. S. 66, a
statute of Virginia relating to the inspection of flour brought
into that commonwealth was held to be unconstitutional because it
required the inspection of flour from other states when no such
inspection was required of flour manufactured in Virginia -- an
objection to which the act under consideration is not open, for the
inspection and payment of its cost are required in respect of all
fertilizers, whether manufactured in the state or out of it, and it
is conceded that fertilizers are manufactured in North Carolina,
as, indeed, their many laws incorporating companies for the purpose
of so doing plainly indicate. Mr. Justice Bradley in that case
remarked that the question was
"still open as to the mode and extent in which state inspection
laws can constitutionally be applied to personal property imported
from abroad, or from another state -- whether such laws can go
beyond the identification and regulation of such things as are
strictly injurious to the health and lives of the people, and
therefore not entitled to the protection of the commercial power of
the government, as explained an distinguished in the case of
Crutcher v. Kentucky, ante, 141 U. S.
47, just decided."
Whenever inspection laws act on the subject before it becomes an
article of commerce, they are confessedly valid, and also when,
although operating on articles brought from one state into another,
they provide for inspection in the exercise of that power of
self-protection commonly called the "police power."
No doubt can be entertained of this where the inspection is
manifestly intended, and calculated in good faith to protect the
public health, the public morals, or the public safety.
Minnesota v. Barber, 136 U. S. 313. And
it has now been determined that this is so if the object of the
inspection is the prevention of imposition on the public
generally.
In
Plumley v. Massachusetts, 155 U.
S. 461, it was decided that a statute of Massachusetts
"to prevent deception in the
Page 171 U. S. 358
manufacture and sale of imitation butter," in its application to
the sale of oleomargarine artificially colored so as to cause it to
look like yellow butter and brought into Massachusetts, was not in
conflict with the clause of the Constitution of the United States
investing Congress with power to regulate commerce among the
several states. That decision explicitly rests on the ground that
the statute sought to prevent a fraud upon the general public. It
is true that an article of food was involved, but the sole ground
of the decision was that the state had the power to protect its
citizens from being cheated in making their purchases, and that
thereby the commercial power was not interfered with.
Schollenberger v. Pennsylvania, 171 U. S.
1.
Where the subject is of wide importance to the community, the
consequences of fraudulent practices generally injurious, and the
suppression of such frauds matter of public concern, it is within
the protective power of the state to intervene. Laws providing for
the inspection and grading of flour, the inspection and regulation
of weights and measures, the weighting of coal on public scales,
and the like are all competent exercises of that power, and it is
not perceived why the prevention of deception in the adulteration
of fertilizers does not fall within its scope.
It is apparent that there is no article entering into common use
in many of the states, and particularly the Southern states, the
inspection of which is so necessary for the protection of those
citizens engaged in agricultural operations as commercial
fertilizers. Certain ingredients, as ammonia or nitrogen,
phosphoric acid, and potash, make up the larger part of the value
of these fertilizers, and without the aid of scientific analysis,
the amount of these ingredients cannot be ascertained, nor whether
the fertilizer sold is of a uniform grade. The average farmer was
compelled, without an analysis, to depend on his sense of smell, or
his success or failure during the previous year with the same brand
or name, to determine the relative amounts of the essential
ingredients, and the value of the materials. To protect
agricultural interests against spurious and low-grade fertilizers
was the object
Page 171 U. S. 359
of this law, which simply imposed the actual cost of inspection,
necessarily varying with the agricultural condition of the various
years. The label or tag could only be furnished after an analysis
the result of which was therein stated. In that light, the law
practically required an analysis in every case, and was sustained
as so doing by the Supreme Court of North Carolina in
State v.
Norris, 78 N.C. 443.
The act of 1877, requiring the obtaining of a license to sell
fertilizers on the payment of a privilege tax of five hundred
dollars, was considered in that case at January term, 1878, of that
court, and held valid under the state constitution as intended to
protect the public from being imposed on by adulterated
fertilizers, and to keep the traffic in the hands of responsible
parties, making the means to that end self-sustaining by the
license tax. And it was also decided that the law was not in
conflict with the federal Constitution, on the authority of
Woodruff v.
Parham, 8 Wall. 123, and
Hinson v.
Lott, 8 Wall. 148.
As before remarked, the sections of the act of 1877 relating to
this subject were carried forward into the Code of 1883, and
section 2190 required the license and imposed the privilege
tax.
In
Stokes v. Department of Agriculture (1890), 106 N.C.
439, the supreme court held that section 2190, in prohibiting the
sale or the offering for sale of fertilizers in North Carolina
until the manufacturer or person importing the same should obtain a
license, did not prohibit the use of them in the state, nor the
purchase of them in another state, to be used for fertilizing
purposes by the purchaser himself in North Carolina, and that where
a person acting for himself and others, resident farmers of the
state, ordered from a nonresident manufacturer a number of bags of
fertilizer, a given number being ordered for each purchaser, and
the same was shipped in separate parcels, addressed to different
purchasers separately, and separate bills sent to each purchaser,
there being no intent to evade the statute, the transaction did not
come within the inhibition of section 2190, and the goods were not
liable to seizure at the instance of the Department of
Agriculture.
Page 171 U. S. 360
Similar laws of other states regulating the sale of fertilizers
have been sustained on the same ground.
In
Steiner v. Ray, 84 Ala. 93, it was held that a
statute regulating the sale of commercial fertilizers, when its
controlling purpose was to guard the agricultural public against
spurious and worthless compounds sometimes sold as fertilizers and
to furnish to buyers cheap and reliable means of proving the
deception and fraud should such be attempted, was strictly within
the pale of police regulation, and was constitutional. And this
case was cited with approval in
Kirby v. Huntsville Fertilizer
&c. Co., 105 Ala. 529, where it was ruled that the sale of
commercial fertilizers was void unless each sack, parcel, or
package was tagged as required by statute at the time the right of
property passed from the vendor to the vendee.
In
Vanmeter v. Spurrier, 94 Ky. 22, an act of Kentucky
"to regulate the sale of fertilizers in this commonwealth, and to
protect agriculturists in the purchase and use of the same" was
sustained, and it was held that the statute could not be fairly
construed to authorize the levy of an impost on interstate commerce
beyond what was necessary to inspection. The court said:
"The statute, as its title indicates, was enacted for protection
of farmers of this commonwealth against fraud and imposition of
those having for sale commercial fertilizers. To accomplish that
object, each one selling or offering for sale any fertilizer is
required to submit a sample for analysis and test of its quality at
the experimental station. For that purpose only can the fees
collected by the director be used, and in that way and to that
extent only can farmers of the commonwealth be benefited by the
statute. In our opinion, the law is valid in every respect."
In
Faircloth v. De Leon, 81 Ga. 158,
Goulding
Fertilizer Company v. Driver, 25 S.E. 922, and other cases,
the Supreme Court of Georgia has held that the seller of commercial
fertilizers which had not been inspected as the law required could
not maintain against the buyer an action for the price, but in
Martin v. Upshur Guano Company, 77
Page 171 U. S. 361
Ga. 257, that the statute was not applicable where sale and
delivery were without the state.
The Act of January 21, 1891, must be regarded, then, as an act
providing for the inspection of fertilizers and fertilizing
materials in order to prevent the practice of imposition on the
people of the state, and the charge of twenty-five cents per ton as
intended merely to defray the cost of such inspection. It being
competent for the state to pass laws of this character, does the
requirement of inspection and payment of its cost bring the act
into collision with the commercial power vested in Congress?
Clearly this cannot be so as to foreign commerce, for clause two of
Section ten of Article one expressly recognizes the validity of
state inspection laws, and allows the collection of the amounts
necessary for their execution, and we think the same principle must
apply to interstate commerce.
In any view, the effect on that commerce is indirect and
incidental, and "the Constitution of the United States does not
secure to any one the privilege of defrauding the public."
Decree affirmed.
MR. JUSTICE HARLAN and MR. JUSTICE WHITE dissented.