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erty for the purposes stated, when the sus

charge-inspection laws, when valid in

pensive condition ceased to operate by the discharge of the obligations on which it

terstate commerce.

rested, that is, the establishment of the ter- 1. The intention, In repealing parts of the Code

minus at Westwego, the crossing therefrom,

and the location of the shops, etc., at the place fixed in the original ordinance. The

case is aptly illustrated by Roy De L'Ecluse

of a state, to revive earlier laws which might
render the amended law liable to the same
objection as the parts repealed, cannot be im-
puted to the legislature.

et autres, Cassation, 4 Jan. 1858; Journal du 2. An inspection charge of 25 cents per ton on Palais, 1858, 452. There a promise to sell on [344]a suspensive "condition was entered into, but the prospective buyer was allowed to take possession pending the condition. The claim was that this fact destroyed the suspensive

conimercial fertilizers is not so in excess of
what is necessary to pay cost of analysis,
salaries of inspectors, cost of tags, and other
charges, as to justify the imputation of bad
faith and show that it is not a proper exercise
of the police power.

nature of the condition. But the court held 3. Inspection laws are valid when they act on

to the contrary, considering that the fact of

possession was subject to the suspensive condition, as it was upon such condition that the contract had been entered into. Laurent,

vol. 17, No. 33, p. 53.

a subject before it becomes an article of com
merce, 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.

subject to a state inspection law.

[No. 9.]

Ordered for Reargu-
Reargued March 3,

Argued May 7, 8, 1896.
ment May 24, 1897.
4, 1898. Decided May 31, 1898.

APPEAL from a decree of the Circuit Court of the United States for the Eastern District of North Carolina dismissing a suit in equity brought by the Patapsco Guano Company to enjoin the Board of Agriculture of North Carolina et al. from the collection of an inspection charge on fertilizers, etc. Affirmed.

Concluding that the rights on Claiborne 4. Interstate as well as foreign commerce is street and to the batture in front of the park were subject to suspensive conditions, it is manifest from the facts which we have stated that the railroad company was not entitled to possess or enjoy the same. This renders it unnecessary to consider the resolutory condition and leaves only for consideration the subject-matter of the third assignment of errors. This asserts that the rights conveyed by the 4th section of ordinance No. 6938 to wharfage, etc., at Thalia street are not validly held by the corporation. This is based not on the claim of a condition either suspensive or resolutory, but because it is asserted that the grant was ultra vires. The repealing ordinances, however, do not embrace this grant, and except for the argument at bar it does not appear that the city has repudiated the grant. Since this case was argued a suggestion has been made that this grant has been, in effect, ratified by a provision of a new Constitution said to have been rece recently adopted by the state of Louisiana. As we must reverse the decree rendered for the reasons above stated, we deem that the ends of justice will best be subserved by not passing on this assignment, thus leaving the rights of both parties in relation thereto open for further consideration in the court below.

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[345]PATAPSCO GUANO COMPANY, Appt., BOARD OF AGRICULTURE OF NORTH CAROLINA, W. R. Williams et al., Commissioners.

(See S. C. Reporter's ed. 345-361.) Repealing parts of a statute-inspection

NOTE. As to power of Congress to regulate commerce, see notes to Gibbons v. Ogden, 6: 23, and Brown v. Maryland, 6:678.

As to tonnage tax, see note to Inman S. S. Co. v. Tinker, 24:118.

As to interstate commerce; regulation of; power of Congress, how far exclusive, - see note

See same case below, 52 Fed. Rep. 690.
The facts are stated in the opinion.
Messrs. Thomas N. Hill and John W.

Hinsdale for appellant on first argument.

Messrs. F. H. Busbee and R. H. Battle
for appellees on first argument.

Mesxys. Thomas N. Hill and John W.
Hinsdale for appellant on rearguent.
Mess18. R. H. Battle, F. H. Busbee, and
J. C. L. Harris for appellces on reargu-
ment.

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 25 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, bu on the coming in of the answer, a motion to to Gloucester Ferry Co. v. Pennsylvania, 29:158.

As to police power of state, see note to Peo ple v. Budd (N. Y.) 5 L. R. A. 559.

As to power of state to levy taxes; state inspection laws, --see note to American Fertilizing Co. v. North Carolina Bd. of Agri. (С. С. ED. N. C.) 11 L. R. Α. 179.

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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. Proofs were taken, and a final hearing had at June term, 1893, at Raleigh; the bill was dismissed; and complainants thereupon prosecuted this appeal.

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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.

By § 9 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 § 10, the Board was empowered to collect samples for analysis; by § 11, to require railroad and steamboat companies to furnish monthly statements of the quantity of fertilizers transported; and by § 12, 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 [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

(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 or offered for sale shall be subject to seizure and condemnation in the same manner as is provided in this chapter for the seizure and condemnation of spurious fertilizers, subject, however, *to the discretion of the board of [348 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 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 when condemned shail 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.

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 § 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 exer

"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 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, bar-cise of the police power; and that it was rel, or package sold, offered for sale, or re- neither, because it was not limited to articles

moved, 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 an-
alysis made of the same and cause printed
tags or labels expressing the true chemical in-
gredients of the same put upon each bag, bar-
rel 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 re-
move any such fertilizers, or any agent of
any railroad or other transportation com-
pany 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:

produced in the state, and because it did not relate to the health, morals, or safety of the community.

The second clause of § 10 of article 1 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,” 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 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 would be difficult, if not impossible to de-[351] termine the necessary amount with exactness and to remove any inducement to excess, it was provided that any surplus should be paid

"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 to the United States. As such laws are sub

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 § 2205: [350]"Whenever *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 171 U. S. U. S., BOOK 43.

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ject 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. 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 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

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$ 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. Č. 1885, 553), the establishment of an industrial school was provided for, to the establishment and maintenance of which the board was directed by the 4th section to apply their surplus funds, not exceeding $5,000 annually.

money to be derived from the charge on fertilizers of 25 cents per ton, to any other purposes than those connected with the necessary expenses of inspection. It is ingeniously argued 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 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 $500 to the industrial association by chapter 426 of the laws of 1891 was an additional appropriation, and did not repeal § 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 appro

By chapter 410 of the laws of 1887 (Laws [852]N. Č. 1887, 718), "the name of the industrial school was changed to "The North Carolina College of Agriculture and Mechanic Arts," and 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 inten

for the year 1892 were appropriated to the college; and by chapter 426 of the laws of 1891 (Laws N. C. 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 § 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 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 1887-88, 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.

We agree entirely with the circuit court that the legislation of 1891 not only amended the Code in the matter of the requirement of 53]the privilege tax of $500, *but repealed all

tion in the enactment of the law of 1891. This act imposed a charge of 25 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 $500 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 collected[354] 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 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 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 | 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 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 § 10 expressly allows the state to collect from imports as well as exports the amounts necessary for executing its inspection laws, and Chief Justice Marshall expressed the opinion in Brown v: Maryland 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 alidity 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

[355 valid and binding unless it interferes 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, impose any duty or impost on imports or exports, such impost or duty is

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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.

*"No doubt the primary and most usual [356] 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. 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 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. 419 [6:678] Story, 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

void if it exceeds what is absolutely superior article. Bouvier defines inspection necessary for executing such inspection 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. Law 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 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.

that power. Brown v. Maryland, supra; Story, 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 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."

But in Turner v. Maryland, 107 U. S. 38 [27:370], which related only to the laws of Maryland so far as providing for the prepara

"Then we are brought back to the question *for exportation of tobacco grown in the (857)

tion 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 unconsti

state, any opinion as to the provisions of those laws referring to the inspection of tobacco grown out of Maryland was expressly reserved.

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