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346]continue the injunction until the 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 Fed. Rep. 690. Froofs were taken, and a final hearing had at June term, 1893, at Raleigh; the bill was dismissed; and complainants thereupon prosecuted this appeal.

By § 14 of article 9 of the Constitution of North Carolina of 1875-76, 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, 506, chap. 274), such a department was established, and, among other things, the subject of commercial fertilizers dealt with. By the 8th 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 $500 per annum for each separate brand or quality.

(Laws 1891, 40, chap. 9), chapter 1 of volume 2 of the Code was amended, and §§ 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 By 9 every bag, barrel, or other package or offered for sale shall be subject to seizure of such fertilizer offered for sale was required and condemnation in the same manner as is to have thereon a label or stamp setting forth provided in this chapter for the seizure and the name, location, and trademark of the condemnation of spurious fertilizers, subject, manufacturer; the chemical composition of however, to the discretion of the board of[348] the contents, and the real percentage of cer-agriculture to release the fertilizers so seized tain specified ingredients; and that the priv- and condemned upon the payment of the ilege tax had been paid. By § 10, the Board charge above specified and all costs and exwas empowered to collect samples for analy- penses incurred by the department in such sis; by 11, to require railroad and steam-proceeding: Provided, that tags shall be atboat companies to furnish monthly state-tached by manufacturers, agents or dealers ments of the quantity of fertilizers trans-to all fertilizers now in the state; those proported; and by § 12, to establish an agri-tected under license previously issued shall cultural experiment and fertilizer central sta- be furnished free of charge. tion in connection with the chemical labora- "Sec. 2191. Every bag, barrel, or other tory of the University, and the trustees of the package of such fertilizers or fertilizing maUniversity, with the approval of the board, terials as above designated offered for sale in were directed to employ an analyst, skilled this state shall have thereon plainly printed a in agricultural chemistry, whose duty it label or stamp, a copy of which shall be filed should be "to analyze such fertilizers and with the commissioner of agriculture, toproducts as may be required by the depart-gether with a true and faithful sample of the ment of agriculture, and to aid as far as practicable in suppressing fraud in the sale of [347]commercial 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 2, chap. 1, § 2190 et seq.

In August, 1890, the circuit court for the eastern district of North Carolina, Bond and Seymour, JJ., held that § 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 privilege tax of $500 per annum for each separate brand, was in violation of the Federal Constitution and void. American Fertilizer Co. v. North Carolina Bd. of Agri. 43 Fed. Rep. 609 [11 L. P. A. 179, 3 Inters. Com. Rep. 532.]

Thereupon, by the act of January 21, 1891

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 per cent.; soluble potassa, which shall not be less than one per cent.; ammonia, which shall not be less than two per cent.; 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 con- | licenses, from fines and forfeitures, fees for demnation as hereinafter prescribed, and registration and sale of lands not herein when condemned shall be sold by the board otherwise provided for, shall be paid into the of agriculture for the exclusive use and bene-state treasury and shall be kept on a separate fit of the department of agriculture."

Section 2192 refers to the proceedings to condemn.

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 § 8, and of the second clause of § 10, of article 1 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.

"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 herein before provided attached thereto, or shall use the required tag the second time to avoid the payment of the ton[349]nage *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 The second clause of § 10 of article 1 of the to the department; and if any such fertilizer Constitution reads: "No state shall, without shall be condemned as herein provided it shall the consent of the Congress, lay any imposts be the duty of the department to have an an- or duties on imports or exports, except what alysis made of the same and cause printed may be absolutely necessary for executing its tags or labels expressing the true chemical in- inspection laws; and the net produce of all gredients of the same put upon each bag, bar- duties and imposts, laid by any state on imrel or package, and shall fix the commercial ports or exports, shall be for the use of the value thereof at which it may be sold; and Treasury of the United States; and all such any person who shall sell, offer for sale or re-laws shall be subject to the revision and conmove 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 § 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:

trol 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 [19: 382]; Pittsburg & S. Coal Company v. Louisiana, 156 U. S. 590, 600 [39: 544, 549.]

The clause recognized that the inspection "The department of agriculture shall es- of such articles may be required by the states, tablish an agricultural experiment and ferti- and that they may lay duties on them to pay lizer control station, and shall employ an an- the expense of such inspections, but as it alyst, skilled in agricultural chemistry. It would be difficult, if not impossible to de-[351] shall be the duty of said chemist to analyze termine the necessary amount with exactness such fertilizers and products as may be re- and to remove any inducement to excess, it quired by the department of agriculture, and was provided that any surplus should be paid to aid as far as practicable in suppressing to the United States. As such laws are subfraud in the sale of commercial fertilizers. ject to the revision and control of Congress, He shall, also, under the direction of said de-it has been suggested that whether inspection partment, carry on experiments on the nutrition and growth of plants, with a view to as certain 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 § 2205: [350] Whenever any manufacturer of fertilizers or fertilizing materials shall have paid the charges herein before 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 171 U. S. U. S., Book 43.

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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. Garza, 2 Woods, 287; Turner v. Maryland, 107 U. S. 38 [27: 370].

Considered as an inspection law and as not open to attack as in contravention of that clause, the questions 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 make it a mere revenue law obnoxious to the objection of being in unlawful interference with interstate commerce. Counsel for plaintiff in error insists that this result is deducible from the legisla tion of North Carolina making appropriations from the funds of the department of 13

193

agriculture received from the charge on fer-laws making any substantial diversion of the
tilizers 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 $2200 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."

money to be derived from the charge on fer-
tilizers of 25 cents per ton, to any other pur-
poses than those connected with the necessary
expenses of inspection. It is ingeniously ar-
gued that as § 6 of chapter 410 of the laws of
1887 repealed by substitution § 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 indus-
trial school, it being asserted that the funds
of the department were in fact derived there-
from; and also that the appropriation out of
the state treasury of $500 to the industrial

By chapter 308 of the laws of 1885 (Laws
N. Č. 1885, 553), the establishment of an in-
dustrial school was provided for, to the es-
tablishment and maintenance of which the
board was directed by the 4th section to ap-association by chapter 426 of the laws of
ply their surplus funds, not exceeding $5,000
annually.

1891 was an additional appropriation, and
did not repeal § 2206 of the Code, which di-
rected the board of agriculture to appropriate
that sum to that association.

By chapter 410 of the laws of 1887 (Laws [352]N. Č. 1887, 718), *the name of the industrial school was changed to "The North Carolina These positions do not commend themCollege of Agriculture and Mechanic Arts," selves to our judgment. As to the approand the board was required by § 6 to turn priation of $500, we think, under the circumover to that institution annually "the whole stances, that it was intended to be in lieu of residue of their funds from licenses on ferti- the former appropriation of that amount; lizers remaining over and not required to con- and as to the revival of the act of 1885 by the duct the regular work of that department." repeal of the repealing act of 1887, we regard But by chapter 348 of the laws of 1891 the doctrine that the repeal of a repealing (Laws N. C. 1891, 404), the provision last act revives the first act as wholly inapplicaabove given was stricken out, and by § 5 of ble. In our opinion such a conclusion would the act $10,000 for the year 1891 and $10,000 be opposed to the obvious legislative intenfor the year 1802 were appropriated to the tion in the enactment of the law of 1891. college; and by chapter 426 of the laws of This act imposed a charge of 25 cents per ton 1891 (Laws N. C. 1891, 491) an annual ap-on commercial fertilizers, and the purpose of propriation of five hundred dollars was made the charge was declared to be to defray the to the North Carolina Industrial Association. These appropriations were made from the state treasury, and both acts contained the usual repealing clauses.

expenses of inspection only. The previous
laws had imposed a tax of $500 per brand
upon every brand and description of fertil-
izer, and declared the same to be a privilege
tax. It is impossible to impute to the gen-
eral assembly the intention, in repealing
parts of the Code which had been declared un-
constitutional, to revive earlier laws which
might render the amended law liable to the
same objections.

By 2198 and subsequent sections 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 agri- Entertaining these views of the legislative cultural department, the sources of which intention, it does not appear to us that eviwere apparently not confined to what might dence tending to show that money collected[354] be derived from the license tax in respect of | from this source was applied to other than 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.

the purposes for which it was received should be entered into on this inquiry into the validity of this 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 25 cents per ton was shown to be so excessive as to demonstrate a purpose other than that which the 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 seriousWe agree entirely with the circuit courtly in excess of what is necessary for the ob that the legislation of 1891 not only amended the Code in the matter of the requirement of [853]the privilege tax of $500. *but repealed all

Section 14 of this act empowered the department to expend from the amount arising from the tax on fertilizers for 1887-88, 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.

jects 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 | tutional and void, being an unauthorized inregulations of commerce, and while their ob- terference with the free importation of ject frequently is to improve the quality of goods. The complainant contends that it is articles produced by the labor of a country not an inspection law; that inspection laws and fit them for exportation, yet they are only apply legitimately to the domestic prodquite as often aimed at fitting them, or de- ucts of the country, intended for exportatermining their fitness, for domestic use, and tion; and that no inspection is actually rein so doing protecting the citizen from fraud. quired in this particular case, but a mere exNecessarily, in the latter aspect, such laws amination to see if the hides are marked, and are applicable to articles imported into, as who imported them, etc., duties which belong well as to articles produced within, a state. to the entry of goods, and not their inspecClause two of § 10 expressly allows the tion. state to collect from imports as well as ex- *"No doubt the primary and most usual[356] ports the amounts necessary for executing object of inspection is to prepare goods for its inspection laws, and Chief Justice Mar-exportation in order to preserve the credit of shall expressed the opinion in Brown v. our exports in foreign markets. Chief JusMaryland that imported as well as exported | tice Marshall, in Gibbons v. Ogden, says: "The 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:

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 expor tation.

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. 203 [6: 71]; Story, 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 be"If the state law of Texas, which is com- fore the article is put on board a vessel; so plained of, is really an inspection law, it is far as they act upon importations, they are [355)valid and binding unless it interferes with generally executed upon articles which are the power of Congress to regulate commerce, landed. The tax or duty of inspection is a and if it does thus interfere, it may still be tax which is frequently, if not always, paid valid and binding until revised and altered for service performed on land.' 12 Wheat. 419 by Congress. The right to make inspection [6: 678] Story, Const. § 1017. So that, aclaws is not granted to Congress, but is re-cording to Chief Justice Marshall, imported served 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 in- "All housekeepers who are consumers of spection laws, impose any duty or impost on flour know what a protection it is to be able imports or exports, such impost or duty is to rely on the inspection mark for a fine or void if it exceeds what is absolutely superior article. Bouvier defines inspection necessary for executing such inspection as the examination of certain articles made laws. How the question whether a duty by law subject to such examination, so that is excessive or not is to be decided they may be declared fit for commerce. may be doubtful. As that question is Dict. verb, 'Inspection.' The removal or depassed upon by the state legislature, struction of unsound articles is undoubtedly, when the duty is imposed, it would hardly says Chief Justice Marshall, an exercise of be seemly to submit it to the consideration that power. Brown v. Maryland, supra; of a jury in every case that arises. This Story, Const. § 1024. The object of the inmight give rise to great diversity of judg-spection laws,' says Justice Sutherland, ‘is to ment, 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 But in Turner v. Maryland, 107 U. S. 38 is really an inspection law, the duty must [27:370], which related only to the laws of stand until Congress shall see fit to alter it. Maryland so far as providing for the prepara"Then we are brought back to the question *for exportation of tobacco grown in the[357] tion whether the law is really an inspection state, any opinion as to the provisions of law. If it is, we cannot interfere with it on those laws referring to the inspection of toaccount of supposed excessiveness of fees.bacco grown out of Maryland was expressly If it is not, the exaction is clearly unconsti- reserved.

Law

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 Cow. 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."

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 pro

In Voight v. Wright, 141 U. S. 62, 66 [35: | the state to intervene. Laws providing for 638, 640], a statute of Virginia relating to the the inspection and grading of flour, the ininspection of flour brought into that common- spection and regulation of weights and measwealth was held to be unconstitutional, be- ures, the weighing of coal on public scales, cause it required the inspection of flour from and the like, are all competent exercises of other states when no such inspection was re- that power, and it is not perceived why the quired of flour manufactured in Virginia, an prevention of deception in the adulteration of objection to which the act under considera- fertilizers does not fall within its scope. tion 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 in-tection of those citizens engaged in agriculdeed, their many laws incorporating compa- tural operations, as commercial fertilizers. nies for the purpose of so doing plainly indi- Certain ingredients, as ammonia or nitrogen, cate. Mr Justice Bradley in that case re- phosphoric acid, and potash, make up the marked that the question was "still open as larger part of the value of these fertilizers, to the mode and extent in which state inspec- and without the aid of scientific analysis, the tion laws can constitutionally be applied to amount of these ingredients cannot be ascerpersonal property imported from abroad, or tained nor whether the fertilizer sold is of a from another state, whether such laws can go uniform grade. The average farmer was beyond the identification anu regulation of compelled, without an analysis, to depend on such things as are strictly injurious to the his sense of smell, or his success, or failure, health and lives of the people, and therefore during the previous year with the same brand not entitled to the protection of the commer- or name, to determine the relative amounts cial power of the government, as explained of the essential ingredients, and the value of and distinguished in the case of Crutcher v. the materials. To protect agricultural interKentucky, 141 U. S. 47 [35: 649] just de-ests against spurious and low grade fertilicided." zers was the object *of this law, which simply[359] Whenever inspection laws act on the sub-imposed the actual cost of inspection, necesject before it becomes an article of commerce sarily varying with the agricultural condition they are confessedly valid, and also when, of the various years. The label or tag could although operating on articles brought from only be furnished after an analysis, the result one state into another, they provide for in-of which was therein stated. In that light, spection in the exercise of that power of self- the law practically required an analysis in protection commonly called the police power every case, and was sustained as so doing by No doubt can be entertained of this where the supreme court of North Carolina in State the inspection is manifestly intended, and v. Norris, 78 N. C. 443. calculated in good faith, to protect the public health, the public morals, or the public safety. Minnesota v. Barber, 136 U. S 313 [34-455, 3 Inters. Com. Rep. 185]. 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 [39:223], it was decided that a statute of Massachusetts "to prevent deception in the [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 com merce 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 hereby the commercial power was not interfered with Schollenberger v. Pennsylvania, 171 U. S. 1 [ante, 49].

Where the subject is of wide importance to the community, the consequences of fraudu lent practices generally injurious, and the suppression of such frauds matter of public concern, it is within the protective power o

The act of 1877, requiring the obtaining of a license to sell fertilizers on the payment of a privilege tax of $500, 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 selfsustaining 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. 122 [19: 382], and Hinson v. Lott, 8 Wall. 148 [19: 387].

As before remarked, the sections of the act of 1877 relating to this subject were carried forward into the Code of 1883, and § 2190 required the license and imposed the privilege tax.

In Stokes v. Department of Agriculture, 106 N. C. 439 (1890) the supreme court held that § 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, resilent farmers of the state, ordered from a nonresident manufacturer a number of bags of

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