Turner v. Maryland

delivered the opinion of the court.

The question presented for our consideration on this writ of. error is the constitutional validity of certain provisions in the tobacco inspection statutes of the State of Maryland.

The plaintiff in error, Turner, was- indicted in the Criminal Court of Baltimore. The indictment contained two counts. The first count alleged that Turner packed in a hogshead tobacco grown by him on a farm belonging to him in Charles County, in Maryland* and marked the hogshead with his full name and his place of residence in said county, and shipped it to the city of Baltimore; that it was not delivered at any tobacco warehouse in said city, under- the management or control of any inspector of tobacco appointed for said warehouse by the governor of the State of Maryland, under the Constitution and laws of said State, nor-to any one of said inspectors of tobacco, nor to any one acting under the authority of any one of said inspectors of tobacco, to be weighed, passed, or marked, and it was not weighed, passed, and marked by any' such in

Separate demurrers were filed to each count of the indictment, and then a written' stipulation was filed by the parties, as follows: “It is agreed in this case, 1. That the matters and facts charged in the indictment in this case are true, as thórein stated. 2. That for the more speedy final determination of the questions of law involved in this case the demurrers which the traverser has entered to this indictment shall be overruled proforma by the court. 3. That after such overruling of the demurrers the case shall be forthwith submitted to the court, without the intervention of a jury, upon the admission contained in the, first paragraph of this agreement.” The demurrers were then. overruled. The court then rendered a judgment that Turner pay a fine of $300; On the same day, Turner, by petition to said criminal court, setting forth that he had been adjudged guilty of a misdemeanor, arid by the judgment of said court ordered to pay the sum of $300 to said State, prayed an appeal to the' Court of Appeals of Maryland, assigning errors in the record. That court affirmed the judgment, and Turner has brought the case into this court by a writ of error, alleging that the statutes of Maryland on which the indictment was founded, and the validity of which was sustained by the State court, are repugnant to the Constitution of the United States;

It is claimed by the defendant in error that the statutory provisions the validity of which is denied by the plaintiff in

By chapter 846 of the laws of Maryland of 1864, a new tobacco inspection law was enacted, as part of the. code of public local laws, in place of and expressly repealing certain portions of said code. Sect. 1 provides for the appointment of five tobacco inspectors, one for each State tobacco warehouse in the city of Baltimore. By sect. 5 each tobacco inspector is required to employ such clerks and laborers, and provide and kp.sn_ on hand such books, implements, and materials, as may be necess'ary for the economical and effective discharge of his duties as such inspector, and the salaries of the various clerks and laborers are prescribed, to be paid from the receipts in the respective offices, with the requirement that the inspectors shall at no time employ more labor than shall be necessary for the effective performance of the work to be done: • There are provisions to facilitate the landing of tobacco at the wharves in front of the warehouses, and its removal therefrom, and to secure the safe preservation of the tobacco after its delivery at the warehouse. Sect. 10 is as follows: “ It shall be the duty of each tobacco inspector to cause each hogshead of tobacco landed or delivered at the warehouse to which he is appointed to be numbered in succession as received, and to cause said number to be entered in a book kept for that purpose, together with the time said hogshead was received, the name of the vessel or other conveyance, if known to him, by which said hogshead was brought to the city of Baltimore, and of the owner or consignee of said tobacco, and the initials or other marks on said hogshead, identifying the same ; and, when said hogshead shall be removed from said warehouse, he shall. c.aus.e an entry to be made, in some book kept for that purpose, of the time when the same was so removed, the name of the per

By chapter 36 of the laws of 1872, entitled “ An Act to add a new article to . the code of public general laws regulating'the inspection of tobacco,” some additional regulations were made, and some existing provisions were re-enacted, and some changes were made, and all inconsistent provisions of law were repealed; but the only material additions or changes made, so far as the present case is concerned, were these: By sect. 11, every inspector shall have uncased and break every hogshead of tobacco delivered for inspection, in so many places for Maryland and Ohio, and in so many places for Kentucky and Virginia, and, if the tobacco, is sound, take a sample, and mark the hogshead with it^t, number, the year of inspection, and the initials of the owner on each head and on the bilge, and the tare and net weight on the bilge. By sect. 15, each inspector shall keep in a book “ the name of the owner, the number, gross, tare, and

By chapter 228 of the laws of 1872, the charge for outage ’ is fixed at $2 for every hogshead not exceeding 1,100 pounds, and 12| cents additional on every 100 pounds over 1,100 pounds, to be paid by the shipper of the tobacco, or his agent.

In order to determine whether the statutory provisions in: question are obnoxious to the objection made, their meaning must be ascertained. The act' of 1864 requires the inspector to examine the hogshead to ascertain whether it is of the required dimensions,' and then to inspect the tobacco itself' by sampling the contents, and, when this has been done, and the weight ascertained, the hogshead is passed. In regard to the addition made by the act of 1870, C.-291, to sect. 41 of the act of 1864, the grower or purchaser- of tobacco packed in the county or neighborhood where it is grown is permitted to' export the same without having the hogshead opened for inspection by sampling its contents ; but the act, requires such hogshead to be marked with the name and residence of the -owner, and it is made liable to the charge of outage as in other cases, and any one violating its provisions is subjected to the penalty imposed by sect. 41 of the act of 1864. The act of 1870, in thus permitting the grower' or purchaser of tobacco

The act of 1872, c. 36, changes some of the provisions of the act of 1864, omits others, and in express terms repeals all acts or parts of acts inconsistent with its provisions. The penal clause of the act of 1864, as amended by the act of 1870, which makes it unlawful to carry out of the State in hogsheads tobacco raised in the State, except in hogsheads inspected, passed, and marked according to the provisions of the act, is omitted in the act. of 1872; but there is nothing, either in the title or the general framework of the act, or in the manner in which' the subject-matter is dealt with, to justify the conclusion that the legislature intended the act of 1872 as a substitute for ail prior legislation on the subject. The provisions of such prior

The plaintiff in error contends that sect. 41 of the act of 1864, as re-enacted by the act of 1870, violates the Constitution of the United States, because: 1. It is a regulation of inter-state and foreign commerce, and a law levying a duty on exports, and does not fall within the class of laws known as inspection laws, because the proviso enacts that the tobacco to which it refers need not be opened for inspection. 2. Said section, even though it is an inspection statute, discriminates against the non-resident buyer and manufacturer of leaf tobacco, and in favor of the State buyer and manufacturer, in imposing burdensome regulations on tobacco intended for export, and laying a tax of at least' two dollars a hogshead on such tobacco when exported, while tobacco manufactured within the State is free from such regulations and such tax, and thus it discriminates against inter-state and-foreign commerce in tobacco, and in favor of local manufacturers and the internal trade of the State. 3. Said section discriminates between different classes- of exporters of tobacco, in that it permits tobacco exported by persons who pack it in the county or neighborhood where it is grown, to be exported when marked with the full name and residence of the owner, without inspection other than the examination of the outsides of the hogsheads, while exporters of another class mus.t have the contents of their hogsheads subjected to examination.

The provisions of the Constitution of the United States alleged to be violated are clause 2 of section 10 of article 1, before quoted, and that clause of section 8 of article 1 which provides that the Congress shall have power “ to regulate commerce with foreign nations and among the several States.”

The Maryland court held that the charge of outage in this case was an inspection duty, within the meaning of the Constitution ; that the State had the power to prescribe the dimensions of the hogshead in which tobacco raised in Maryland shall be packed,- and to require .such hogshead to be delivered at one of the State tobacco warehouses, in order that the inspectors .may ascertain whether it conforms to the requirements ’ of the law, and whether it is the true growth of the State and

The contention of the plaintiff in error is, that a law which otherwise would be an inspection law ceases to be such if no provision is made for opening the package containing the article and examining the quality of its contents. On this subject the Maryland court held, that, in order to constitute an inspection law, an examination of the quality of the article itself is not necessary ; but that to prepare the products of a State for exportation it may be necessary that such products should be put in packages of a certain form, and of certain prescribed dimensions, either on account of the nature and character of such products, or to enable the State to identify the products of its own growth, and to furnish the evidence of such identification in. the markets to which they are exported. In opposition to these views, which appear to us to be sound, wé are asked to hold that the provisions under consideration do not fall under the head of inspection laws, in a case where the question is presented without the finding of any facts to show that what may be thus necessary in regard to a product is not necessary in regard to tobacco, and with every presumption to the contrary arising out of the course of legislation as to the inspection of tobacco, by the State of Maryland. The legislature of the State of Maryland, from, the earliest history of the colony and since the formation of the State government, has made the inspection of tobacco raised in that State compulsory. That inspection has included many features, and has extended to the form, size, and weight of the packages containing the tobacco, as well as to the quality of the article. Fixing the identity and weight of tobacco alleged to have been grown in the State, and thus preserving the reputation of the article in markets oqtside of the State, is a legitimate part' of inspection laws, and the means prescribed therefor in the statutes in question naturally conduce to that end. Such provisions, as parts of inspection laws, are as proper as provisions for inspecting quality; and it cannot be said that the absence of the iatter

> Objection is made that the Maryland laws are not inspection

There is another view of the subject which has great force. Recognized elements of inspection' laws have always been quality of the article, form, capacity, dimensions, and weight of package, mode of putting up, and marking and branding of various kinds, all these matters being supervised by a public officer having authority to pass or not pass the article as lawful merchandise, as it did or did not. answer the prescribed requirements. It has never been regarded as necessary, and it is manifestly not necessary, that all of these elements should coexist in order to make a valid inspection law. Quality alone may be the. subject of inspection, without other requirement, or the inspection may be made to extend to all of the above matters. When all are prescribed, and then inspection as to quality is dropped out, leaving the rest in force, it cannot be said to be a necessary legal conclusion that the law has ceased to be an inspection law.'

As is suggested in Neilson v. Garza, 2 Woods, 287 , by Mr. Justice Bradley, it may be doubtful whether it is not exclusively the province of Congress, and not at all that of a court, to decide whether a charge or duty, under an inspection law, is or is not excessive. There is nothing in the record from which it can be inferred that the State of Maryland intended to make its tobacco-inspection laws á mere cover for laying revenue duties upon exports. The case is not like that of Jackson Mining Co. v. Auditor-General, 32 Mich. 488 , where a State tax imposed on mineral ore exported from the State before being smelted was held to be a tax on inter-state commerce, no such

It is urged, however, that the Maryland law is a regulation of commerce and unconstitutional, because it discriminates between the State buyer arid manufacturer of leaf tobacco and the purchaser who buys for the purpose of transporting the tobacco to another State or to a foreign country. But the State, having the right to prescribe the form, dimensions, and capacity of the packages in which its products shall be encased before they are brought to, or sold in, the public market, has enacted that no tobacco of the growth of the State shall be passed or accounted lawful tobacco unless it be packed in hogsheads of a specified size.' Laws of 1872, c. 36, sect. 26. This regulation covers all tobacco grown in the State and packed in hogsheads, without reference to the purpose for which it is packed. If the tobacco is to, be dealt in within- the limits of the State, the. examination as to dimensions is properly left to the contracting parties, probably under the view that the seller for the home market will have a sufficient stimulus to observe the requirement of the law, in a desire to maintain the reputation of his .commodity. But, if the tobacco is to be exported as lawful tobacco, the State may, with equal propriety, prescribe and enforce an exarriination by an officer, within the State, of a hogshead containing tobacco grown in the State, and intended for shipment beyond the limits of the State, in order to ascertain, before the hogshead is carried out of the State, and before it becomes an article of commerce, that it is of the dimensions prescribed as necessary .to make it lawful tobacco. In Cooley v. The Board of Wardens, 12 How. 299 , a law of Pennsylvania provided that a vessel not taking a pilot

The general provision of the Maryland statute is, that it shall not be lawful' to carry out of the State, in hogsheads, any tobacco raised in the State, except in hogsheads which shall have been inspected, passed, and marked agreeably to the provisions of the act. These provisions include the doing of many things in addition to an inspection of quality. If the tobacco is grown in the State, and packed in the county or neighborhood where grown, it may be carried out of the State without having its quality inspected, if it be marked in the manner prescribed. But it still is necessary it should be inspected in all other particulars, and inspected also to ascertain- that it was grown in the State and packed where grown, and is marked as required. If it does not answer the latter requirements it is to be further inspected as to quality. The necessity thus existing for subjecting the hogshead to inspection under all circumstances, a charge of some kind was proper for' outage, that is, a charge payable, on withdrawing the hogshead, for labor connected with receiving and handling it and doing the other things above mentioned. Such charge appears to be a charge for services properly rendered.

The above views cover the objection made that the Maryland law discriminates between different classes of exporters of t-obacco, and favors the person who packs it for exportation in the county or neighborhood where- it is grown, as against other exporters. Whatever discrimination in this respect or in respect of ^purchases for exportation, before referred to, results from any provisions of the law, is a discrimination which, we think, the State has á right to make, resulting, as it does, wholly from regulations which affect the article before it has become an article of commerce, and which attach to it as and when it is grown, and before it is packed or sold. The tobacco is grown with these regulations in force, and the State has a right to say what shall be lawful merchantable tobacco. This is really all that has been done in regard to the tobacco in question;

In this case no inspection is involved except that of tobacco grown in Maryland, and we must not be understood as . express

Judgment affirmed.