Kentucky Whip & Collar Co. v. Illinois Cent. R. Co.

• Decision Date: 01 June 1936
• Docket Number: No. 7235.,7235.
• Citation: 84 F.2d 168
• Parties: KENTUCKY WHIP & COLLAR CO. v. ILLINOIS CENT. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

84 F.2d 168 (1936)

KENTUCKY WHIP & COLLAR CO. v. ILLINOIS CENT. R. CO.

No. 7235.

Circuit Court of Appeals, Sixth Circuit.

June 1, 1936.

Charles I. Dawson, of Louisville, Ky. (A. Shelby Winstead and Woodward, Dawson & Hobson, all of Louisville, Ky., on the brief), for appellant.

Blakey Helm, of Louisville, Ky. (Trabue, Doolan, Helm & Helm, of Louisville, Ky., E. C. Craig, of Chicago, Ill., Charles N. Burch, of Memphis, Tenn., and Edmund F. Trabue, of Louisville, Ky., on the brief), for appellee.

G. E. Dean, of Washington, D. C. (Bunk Gardner and Eli H. Brown, III, both of Louisville, Ky., on the brief), for the United States, amicus curiæ.

U. Bon Geaslin, of Washington, D. C. (Hawes & Walsh, of Washington, D. C., on the brief), for Cordage Institute and American Federation of Labor, amicus curiæ.

John J. Bennett, Jr., and Henry Epstein, both of Albany, N. Y., for state of New York, amicus curiæ.

William McCraw and Joe J. Alsup, both of Austin, Tex., for state of Texas, amicus curiæ.

Before MOORMAN, HICKS, and SIMONS, Circuit Judges.

MOORMAN, Circuit Judge.

The appellant employs convict labor in the manufacture of horse collars and strap goods, including harness, in a state penitentiary at Eddyville, Ky. It tendered to the appellee, a common carrier, at its station at Eddyville, 25 packages of collars and harness manufactured by it for shipment to customers in states other than Kentucky. Some of the packages were consigned to customers in states whose laws prohibit the sale within their borders of any goods or merchandise manufactured or produced by convict labor other than by convicts or prisoners on parole or probation; others were consigned to customers residing in states whose laws do not prohibit the sale therein of convict-made goods but require that any such goods exposed or offered for sale shall be plainly marked so as to indicate that they are convict made; and others to customers residing in states whose laws impose no restrictions upon the sale or possession of convict-made goods within their borders. The appellee refused to accept the packages for shipment, giving as its reasons therefor the prohibitions and requirements of the Act of Congress of July 24, 1935 (49 Stat. 494 49 U.S.C.A. §§ 61-64), the Ashurst-Sumners Act, which declares: (1) It shall be unlawful to transport or cause to be transported any goods, wares, or merchandise manufactured or produced by convicts or prisoners, except convicts or prisoners on parole or probation, from one state or territory to another state or territory in the United States, where such goods, wares, or merchandise are intended by any person interested therein to be received, possessed, or sold, either in the original package or otherwise, in violation of any law of such state or territory; and (2) all packages containing any goods, wares, or merchandise manufactured or produced by convicts or prisoners, except convicts or prisoners on parole or probation, when shipped or transported in interstate commerce, shall be plainly and clearly marked so that the name and address of the shipper, the name and address of the consignee, the nature of the contents, and the name and location of the penal or reformatory institution where produced may be readily ascertained on an inspection of the outside of such package. Following the refusal, the appellant brought this action against the appellee seeking a mandatory injunction requiring the appellee to accept the goods for shipment when rendered to it, and for a decree declaring the Ashurst-Sumners Act an illegal exercise of the legislative power of Congress in violation of the Fifth and Tenth Amendments to the Constitution. The trial court found as a fact that the appellant had not labeled any of the packages so as to indicate that the articles therein contained were convict made, and dismissed the bill. (D.C.) 12 F.Supp. 37.

The decree is attacked on the ground that it gives effect to a statute which the Congress had no power, under the commerce clause of the Constitution (article 1, § 8, cl. 3) to enact. It is alleged in the bill that the articles tendered to the appellee were not "in any particular whatever harmful to health, or to the peace, good order or general welfare of the communities into which they are shipped or in which they are used." The lower court found, without hearing evidence, that they "are useful articles of commerce and are not in themselves in any particular harmful to the health, peace or good order of the communities into which they are shipped or in which they are used." It is upon the theory that the goods are innocuous in their character that the appellant insists that the act in question is invalid. We think a proper analysis of the argument is to be made in the light of the effect of the sale of the goods in competition with goods manufactured by free labor. In this view it is pertinent to consider that a "preponderant number" of the states have enacted statutes either prohibiting the sale of convict-made goods within their borders or requiring such goods, before being offered for sale therein, to be plainly marked so as to indicate the source of their manufacture. "All such legislation," as said in Whitfield v. State of Ohio, 56 S.Ct. 532, 535, 80 L.Ed. ___, decided March 2,...