Barataria Canning Co. v. State

Citation101 Miss. 890,58 So. 769
CourtUnited States State Supreme Court of Mississippi
Decision Date17 June 1912
PartiesBARATARIA CANNING CO. v. STATE EX REL

March 1912

APPEAL from the circuit court of Harrison county, HON. GEO. S DODDS, Special Judge.

Suit by the state, on the relation of the attorney-general and the board of oyster commissioners, against the Barataria Canning Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Louis Goldman, for appellant.

It is held by your honors that this statute embraces the oysters taken from other states; we submit that it is unconstitutional in that it is in violation of Art. 1, Sec. 8 of the Constitution of the United States which vests in Congress exclusive power to regulate commerce between the states, and of Art. 1, Sec. 10, which prohibits any state without consent of Congress, from levying any duties upon imports or exports except such as are absolutely necessary for executing its inspection laws.

In presenting this proposition our search for authority has shown no clearer discussion of the issue than the recent case of D. E. Foote & Co. v. Clagett reported in 81 A. 511, and authorities therein cited. We direct the attention of the court to the fact that this is a Maryland case construing a statute similar to ours and where the oyster industry flourished and is a subject of much contention and litigation. The case before us, in our opinion, is stronger because it is not even contended here that this tax is for inspection purposes, whereas a part of the tax levied in the Foote case was for that purpose.

The first proposition to be considered is whether congress is vested with the exclusive right to regulate commerce. In Gibbons v. Ogden, 8 Wheat. 1, 6 L.Ed. 23, it was declared that this power comprehends every species of commercial intercourse among the several states, and that the grant of power leaves nothing for the state to act upon. See also Phil. & Reading Co. v. Pennsylvania, 15 Wall. 232.

Having determined that congress alone can deal with the subject of commerce between the states, we approach the question of importation with the right to dispose of the article imported. In Brown v. Maryland, 12 Wheat. 419, the right to import comprehended the right to sell. It was expressly held that the power to import was complete and there was no limitation thereof. Also 7 How. 416, this question of the sale of the imported article without restriction was passed upon.

In Railroad Co. v. Pennsylvania, 15 Wall. 276, a tax upon coal brought from another state was held to be tax on commerce and therefore unconstitutional and void.

It will be remembered that the statute which is before us for discussion applies to the oysters that are brought from another state into our state and the tax would be on a sale thereof.

The Maryland court in 81 A. 511, approving the decision rendered in 15 Wall. 276, held it to be analogous to the oyster statute of 1910 of the state of Maryland, similar to ours and construed that act as unconstitutional. As set forth in Art. 1, Sec. 10 of the Constitution of the United States, "no tax can be laid by a state except such as may be absolutely necessary for executing its inspection laws."

The act before us clearly shows that this tax is not for inspection purposes. It is a tax that falls due immediately on receipt by the packer of the oysters from another state. It surely could not be held that the only way he could avoid the tax would be by consuming the oysters himself. There could be no purpose in importing the oyster except to have it packed or canned or sold.

The authorities here presented, if this act is to be held as embracing from another state, to our mind, decide its unconstitutionality; but it is earnestly submitted that this statute never contemplated oysters from another state; by its terms, it does not include them, and by no stretch of the imagination could it be stated that to embarrass the importation of oysters, would assist in the production or conservation of the oysters of this state as evidently contemplated by this and other statutes heretofore enacted.

D. M. Graham, for appellees.

It seems to me that this section 3498, which lays the tax question, is not susceptible of any other construction than that the tax was intended to be laid on all oysters canned and packed in this state. The court will not construe a statute so as to change its clear meaning, and the object of construing a statute is to give it the intent of its framers, and this intent is to be found in the instrument itself. Indeed, there is no reason for a construction of this statute, and the language of it is perfectly clear and unambiguous.

In construing a section of the Constitution in Frank Hawkins v. Board of Supervisors, reported in 50 Miss. 735, the court at pages 758 and 759, uses the following language: "When a statute or section of the Constitution is expressed in general or limited terms, the law makers shall be intended to mean what they have plainly expressed, and consequently no room is left for construction. The object of construction applied to the Constitution is to give effect to the intent of its framers and the people in adopting it. This intent is to be found in the instrument itself."

But we do not have to rely on our construction of the intent of the legislature in laying the three cents tax per barrel, for we have authority from the State of Maryland, from which our own oyster laws were largely drafted, which decides both of appellant's contentions against it. In the case of Applgarth v. The State, reported in 42 A. 941, the identical question before the court here was decided. The law of Maryland required all canners to take out a license and give an estimate of the amount of the oysters that would be canned in one year, and required the canners to pay a tax of one dollar per thousand bushels for each thousand bushels of oysters packed and canned in excess of the amount named in the license issued to him. The defendant, Applegarth, in that case refused to pay on certain oysters that were packed by him in excess of the amount collected for by his license, on the ground that the oysters were brought from the waters of the state of Virginia, and that he was not liable for the tax; and the court stated the question there, which is the same question here, as follows:

"Does the fact that the appellant bought the oysters in the state of Virginia, and had them shipped to him from that state to the state of Maryland, exempt him from the payment of the license fee?"

We quote the following from the opinion in that case: "The appellant contended that the provisions of the act of 1894 relate solely to the oyster industry of the state of Maryland; and, further, that it was not the intention of the legislature to tax the canning of oysters caught in other waters than this state, or to place a burden on the packer for which he did not receive a corresponding benefit in the protection and the preservation of the article to be packed; and further it is contended that such a construction would be unreasonable and would impose an unjust burden, and if the legislature had so intended the tax to apply to other oysters than such as had been caught in Maryland waters, it would have said so in the words of the statute. But we fail to comprehend in what respect the Constitution has been violated by the provisions of this act, etc."

The appellant contends that if the section itself does include oysters from another state, then it is violative of that part of Sec. 8 of the federal Constitution which provides that the congress shall have power "to regulate commerce with foreign nations and among the several states and with the Indian tribes."

There is no doubt that congress has exclusive power to regulate commerce between the states, and that no state has a right to pass a law that interferes with the free intercourse of commerce between the states. The authorities are uniform on that proposition, both in the state and federal courts; but how the tax in question in any manner interferes with or places any burden on interstate commerce, I cannot see.

The tax in question is not laid on the oysters because they come from Alabama; indeed, the oysters could be brought from Alabama for some purpose and not be liable to the tax in question at all; they were not liable for the tax when they were put aboard the schooner; they were not liable for the tax when they reached their point of destination at appellant's canning factory.

The case of D. E. Foote & Co. v. Wm. B. Clagett, reported in 81 A. 511, cited by appellant, is in no respect like the case at bar. In that case the inspectors were required to inspect the oysters, evidently while they were being transported, and the law there required every common carrier to furnish the oyster inspector a copy of his manifest, showing the number of barrels, etc., and the inspection there, and the collection of the tax, evidently did impede the free intercourse of commerce between the states. We quote this from the opinion in that case: "The packer is forbidden to buy oysters in course of transportation, except in the presence of the inspector, who himself certifies the amount of the tax, and thus the payment of the tax becomes a condition precedent to the sale, and consequently an impediment to the prosecution of that branch of commerce."

But in the case at bar no such impediment is placed on commerce. Oysters from Alabama are not interfered with by this inspector; no tax is placed on them because they come from Alabama, and, as before stated, the tax only attached after the oysters are canned and packed in this state.

OPINION

MAYES, C. J.

This suit is instituted by the...

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