agriculture received from the charge on fer-laws making any substantial diversion of the 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 It is ingeniously argued that as § 6 of chapter 410 of the laws of 1887 repealed by substitution § 4 of chapter 308 of the laws of 1885, the repeal thereof by chapter 348 of the laws of 1891 revived the latter section, and hence that $5,000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. 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 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 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 [353]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 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. 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. Clause two of 10 expressly allows the 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. 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 of a law of the state of Texas, providing for the inspection of hides, and Mr. Justice Bradley said: 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. 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 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 [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 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. 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 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 857] 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. protect the community, so far as they apply to domestic sales, from frauds and imposi tions; 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." was 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 pay- It is apparent that there is no article enterment of its cost are required in respect of all ing into common use in many of the states, fertilizers, whether manufactured in the state and particularly the southern states, the inor out of it, and it is conceded that fertilizers spection of which is so necessary for the proare 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 beyond the identification and regulation of compened, 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 [38]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 Massa chusetts, 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 deci sion 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, resident farmers of the state, ordered from a nonresident manufacturer a number of bags of fertilizer, a given number being ordered for [360] *Similar laws of other states, regulating the 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 & M. 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. and payment of its cost bring the act into In Mr. Justice Harlan and Mr. Justice White dissented. CONSTANTINE J. SMYTH, Attorney Gen eral, et al., Constituting the Board of Transportation of Nebraska, Appts., v. OLIVER AMES et al. SAME GEORGE SMITH et al. SAME v. HENRY L. HIGGINSON et al. (See S. C. Reporter's ed. 361-365.) Decrees modified-reasonableness of rateswhen to be determined. In Vanmeter v. Spurrier, 94 Ky. 22, an act of Kentucky, "to regulate the sale of ferti lizers 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 1. The decrees of this court are modified, in 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." 2. 3. these cases, by striking out certain restrain. ing words. This court did not in its prevous decree pass judgment upon the reasonableness of the rates on any particular article. The reasonableness of a schedule of rates must be determined by the facts as they exist when it is sought to put such rates into operation. [Nos. 49-51.] Submitted May 9, 1898. Decided May 31, 1898. In Faircloth v. De Leon, 81 Ga. 158; Goulding Fertilizer Company v. Driver [99 Ga. 623],25 S. E. 922, and other cases, the supreme APPEALS from decrees of the Circuit court of Georgia has held that the seller of Court of the United States for the District of commercial fertilizers, which had not been Nebraska. On application for rehearing and inspected as the law required, could not main-modification of decrees. Decrees in the sevtain against the buyer an action for the price; eral cases modified and as modified, affirmed. but in Martin v. Upshur Guano Company, 77 The facts are stated in the opinion. [361]Ga. 257, *that the statute was not applicable See same case, 169 U. S. 466 [42: 819]. where sale and delivery were without the Mr. C. J. Smyth, Attorney General of state. Nebraska, for appellants. Mr. J. M. Woolworth for appellees. Mr. Justice Harlan delivered the opinion of the court: 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 These cases were determined in this court 25 cents per ton as intended merely to defray during the present term and are reported in the cost of such inspection. It being compeNOTE. As to rates, regulation of, by statute, tent for the state to pass laws of this see note to Winchester & L. Turnp. Road Co. v. character. does the requirement of inspection Croxton (Ky.) 33 L. R. A. 177. 169 U. S. 466 [42: 819]. The decree in | States, forasmuch as by the provisions of each case was affirmed. The cases are now said act the said defendant railroad combefore us upon an application by the appel- panies may not exact for the transportation lants the attorney general of Nebraska and of freight from one point to another within his colleagues constituting the State Board this state, charges which yield to the said of Transportation and its secretaries-for a companies, or either of them, reasonable commodification of the decree of the circuit court pensation for such services. It is further orin the respective cases. dered, adjudged, and decreed, that the defendants, members of the board of transportation of said state, may hereafter, when the circumstances have changed so that the rates fixed in the said act shall yield to the said companies reasonable compensation for the services aforesaid, apply to this court by supplemental bill or otherwise, as they may be advised, for a further order in that behalf. It is further ordered, adjudged and decreed that 36 the plaintiffs recover of the said defendants their costs to be taxed by the clerk." The decree in Smyth et al. v. Ames et al., No. 49, which this court affirmed, was as follows: The appellants now ask that the decree of the circuit court in that case be modified by striking therefrom the words, "and below those now charged by said companies or either of them or their receivers," and the words "and particularly from reducing its present rates of charges for transportation of freight to those prescribed in said act." "That the said railroad companies and each and every of them, and said receivers, be perpetually enjoined and restrained from making or publishing a schedule of rates to be charged by them or any or either of them for the transportation of freight on and over their respective roads in this state from one point to another therein, whereby such rates shall be reduced to those prescribed by the act of the legislature of this state, called in the bill filed therein, 'House Roll 33,' and entitled 'An Act to Regulate Railroads, to Classify Freights, to Fix Reasonable Maximum Rates to be Charged for the Transportation of Freight upon each of the Railroads in the State of Nebraska, and to Provide Penalties for the Violation of this Act,' ap- The decrce of the circuit court in Smyth proved April 12, 1893, and below those now et al. v. Smyth et al., No. 50, and the decree charged by said companies or either of them in Smyth et al. v. Higginson et al., No. 51, are or their receivers, or in anywise obeying, ob- substantially the same as the decree in the serving or conforming to the provisions, com- case of Smyth et al. v. Ames et al. The apmands, injunctions and prohibitions of said pellants in Smyth et al. v. Smith et al. now alleged act; and tha: the board of transpor- ask that the words in the decree "and below [363]tation of said state *and the members and sec- those now charged by said companies or retaries of said board be in like manner per- either of them," and the words "and particupetually enjoined and restrained from enter- larly from reducing its present rates of taining, hearing or determining any com- charges for transportation of freight to those plaint to it against said railway companies prescribed in said act." be stricken out; and or any or either of them or their receivers, the appellants in Smyth et al. v. Higginson for or on account of any act or thing by et al. ask that the words "and below those either of said companies or their receivers, now charged by said company," and the their officers, agents, servants, or employees words "and particularly from reducing its done, suffered, or omitted, which may be for-present rates of charges for transportation of bidden or commanded by said alleged act, freight to those prescribed by said act," be and from instituting or prosecuting or caus- stricken from the decree in that case. ing to be instituted or prosecuted any action The court is of opinion that the pres or proceeding, civil or criminal, against either ent application by the appellants in each of of said companies or their receivers for any the above cases should be granted. The genact or thing done, suffered, or omitted, eral question argued before us on the original which may be forbidden or commanded by hearing was, whether the rates established said act, and particularly from reducing its by the Nebraska statute, looking at them as present rates of charges for transportation of an entirety, were so unreasonably low as to freight to those prescribed in said act, and prevent the railroad companies from earning that the attorney general of this state be in such compensation as would be just, having like manner enjoined from bringing, aiding due regard to the rights both of the public in bringing, or causing to be brought, any and of the companies. In our examination proceeding by way of injunction, mandamus, of that question it was appropriate and neccivil action, or indictment against said com- essary to inquire as to the earnings of the repanies or either of them or their receivers for spective companies under the rates which or on account of any action or omission on they had established-looking at those rates, their part commanded or forbidden by the also, as an entirety. In this way we ascersaid act. And that a writ of injunction stained the probable effect of the statute in sue out of this court and under the seal thereof, directed to the said defendants, commanding, enjoining, and restraining them as herein before set forth which injunction shall be perpetual save as is hereinafter provided. And it is further declared, adjudged, and decreed that the act above entitled is repugnant to the Constitution of the United question. We did not intend, by an affirm- |