Amos Bird Co. v. Thompson
| Decision Date | 24 June 1921 |
| Docket Number | 130-E. |
| Citation | 274 F. 702 |
| Parties | AMOS BIRD CO. v. THOMPSON, Atty. Gen. of Washington, et al. |
| Court | U.S. District Court — Western District of Washington |
Kerr McCord & Ivey, of Seattle, Wash., for complainant.
L. L Thompson, Atty. Gen., of Olympia, Wash., and Malcolm Douglas of Seattle, Wash., for defendants.
Before GILBERT, Circuit Judge, and CUSHMAN and NETERER, District judges.
This suit is one by a Connecticut corporation against certain officers of the state of Washington, to enjoin the enforcement of certain legislative acts of the state. The matter is now before the court upon application for a temporary injunction.
The showing of irreparable loss may be sufficient to warrant the injunction, providing the court is satisfied as to the invalidity of the laws in question. The complaint avers:
In 1915, the Washington Legislature passed a law containing the following provisions:
Laws of 1915, c. 94, pp. 274 and 275.
In 1919, a further act was passed, containing still further provisions, as follows:
'Section 1. All eggs imported from foreign countries and offered for sale in the state of Washington shall be sold as such. Each egg offered for sale in this state shall be marked, branded or stamped with the name of the country in which it was produced, and such mark shall be in legible Gothic letters in durable, indelible ink.
'Sec. 2. Broken eggs or eggs offered for sale in other than the original form shall be marked or branded as in section 1, except that such mark or brand shall be stenciled on the can, container, and cover or covers in letters two (2) inches high in black face type and in durable ink or paint, and the words 'Eggs from' shall prefix the mark or brand and such words shall be in similar type and ink or paint.
Session Laws 1919, c. 120, p. 290.
The provision in the latter act for stamping each egg probably repeals that part of the act of 1915 requiring the retailer to inform each purchaser that such eggs are foreign eggs.
While it is complained that these acts are in violation of the Fourteenth Amendment of the Constitution of the United States, in that they and their enforcement would deprive complainant of its property without due process of law, and, further, that they are in violation of section 12, article 1, of the Constitution of the state of Washington, upon the hearing on this application, these grounds have not been stressed, and they will not be further noticed by the court. It was complainant's sole contention upon the hearing that the acts were void because in conflict with section 8, article 1, of the Constitution of the United States, providing:
'Congress shall have power * * * to regulate commerce with foreign nations, and among the several states.'
No question is raised in this case of the conflict of the statute in question with any provision of the Food and Drug Act; nor whether the removal of the tariff on eggs by Congress was in the exercise of its war powers. There is no contention in the present suit that foreign commerce is burdened because of the expense incurred in stamping the eggs and posting the signs.
It appears from the complaint that the first of the foreign egg laws, passed in 1915, has never been enforced. A prosecution was started under it early in 1916, but, upon the act being held unconstitutional by a justice of the peace, no further attempt was made to enforce it until 1919, after the passage of the second act, when a suit similar to the present was begun in the state court, which also held the act unconstitutional. It was appealed to the Supreme Court of the state, where the constitutionality of the act was upheld. Parrott & Co. v. E. F. Benson, (Wash.) 194 P. 986. The remittitur did not come down in that case until about May 1st of the present year.
On account of the Legislature of the state having, in 1921, about the time of the decision in the Parrott Case abolished the office of commissioner of agriculture, against whom the suit had been brought, and created the office of director of agriculture, upon whom the duties of the former office devolved, it was deemed that an appeal would not lie to the Supreme Court of the United States, and the present suit was brought.
There is no doubt that these statutes discriminate against foreign eggs, for they are singled out for the operation of the law. Therefore, unless their enactment is justified under some one of the police powers reserved to the state, they are not operative, even though the provisions in question are limited in application to a time when the eggs are no longer in foreign commerce, nor in the original package, but have become mingled with the general property of the state. Tierman v. Rinker, 102 U.S. 123, 127, 26 L.Ed. 103.
It is also true that these statutes are not rendered invalid by reason of such discrimination, if it only incidentally affects such foreign commerce, if such effect was not the object of the Legislature, but resulted from a legitimate attempt on its part to protect the people of the state in their health, or from fraud or deceit, intentional or otherwise. The remaining question, therefore, is: Is the discrimination against such commerce the incidental result of such a legitimate attempt, or, rather, has it been shown beyond reasonable question that it is not such a result? Savage v. Jones, 225 U.S. 501, at 525, 32 Sup.Ct. 715, 56 L.Ed. 1182; Sligh v. Kirkwood, 237 U.S. 52, 35 Sup.Ct. 501, 59 L.Ed. 835.
Eggs, under ordinary conditions, deteriorate rapidly. Foreign importations, as a general thing, would necessitate their being brought from a considerable distance, ordinarily requiring handling and lapse of time, both of which, it is well known, tend to impair the soundness of an egg. By reason of the nature of its structure, upon casual observation, the quality, condition, and soundness of an egg are not readily disclosed.
If a state law absolutely prohibiting the sale of oleomargarine is valid, because its appearance was so like that of butter as to render it likely that a buyer would be deceived or mistaken, and purchase it for butter (Powell v. Pennsylvania, 127 U.S. 678, 8 Sup.Ct. 992, 1257, 32 L.Ed. 253), it follows, as a matter of course, that a law requiring that reasonable notice be given concerning the origin of a food, similar in such respect, which may reasonably be considered as liable to impairment because of conditions attendant upon its removal from the place of its origin to the place of its consumption, is valid, for the greater must include the less. The power to prohibit includes the power to regulate.
In Corn Products Rfg. Co. v. Eddy, 249 U.S. 427, 431, 432, 39 Sup.Ct. 325, 327, 63 L.Ed. 689, a statute was involved which required a label upon syrup containers disclosing the ingredients. The court pointedly stated:
In Sligh v. Kirkwood, 237 U.S. 52, 35 Sup.Ct. 501, 59 L.Ed. 835, the court held such statutes to be valid, provided they have a real relation to the suitable protection of the people of the state.
While not so directly in point as the three foregoing cases, the ruling in any...
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State v. W. S. Buck Mercantile Co.
... ... v. Sherman, 266 U.S. 497; ... New Mexico v. R. R. Co., 203 U.S. 38; Amos Bird ... Co. v. Thompson, 274 F. 702. Inspection laws are upheld ... as police regulations, ... ...