Boyce v. French

• Decision Date: 04 October 1923
• Docket Number: 177E.
• Citation: 293 F. 43
• Parties: BOYCE v. FRENCH, Director of Agriculture, et al.
• Court: U.S. District Court — Western District of Washington

293 F. 43

BOYCE v. FRENCH, Director of Agriculture, et al.

No. 177E.

United States District Court, W.D. Washington, Southern Division.

October 4, 1923

Dunworth Todd & Higgins, of Seattle, Wash. (Curtis Nye Smith, of Boston, Mass., of counsel), for plaintiff.

John H Dunbar, Atty. Gen., and E. W. Anderson, Asst. Atty. Gen., for defendants.

Before RUDKIN, Circuit Judge, and CUSHMAN and NETERER, District Judges.

CUSHMAN District Judge.

Plaintiff is engaged in the business of purchasing seeds at wholesale from dealers located in various states of the United States and selling the same at wholesale and retail in the state of Washington. It is alleged that all the seeds dealt in by plaintiff have been transported in interstate commerce. Plaintiff asks for a temporary injunction restraining defendants and each of them from enforcing or attempting to enforce the provisions of section 6 of chapter 137, Laws of the State of Washington for 1923, amending section 2827 of Remington's Compiled Statutes, and from prosecuting the plaintiff or any of his customers for failure to pay the license fees purported to be imposed thereby.

Plaintiff cites and relies upon the following authorities Sonneborn Bros. v. Cureton, 43 Sup.Ct. 643, 67 L.Ed 1095, decided June 11, 1923; Ward v. Maryland, 79 U.S. (12 Wall.) 418, 20 L.Ed. 449; Welton v. Missouri, 91 U.S. 275, 23 L.Ed. 350; Guy v. Baltimore, 100 U.S. 434, 25 L.Ed. 743, 745; Webber v. Virginia, 103 U.S. 344, 26 L.Ed. 565, 567; Walling v. Michigan, 116 U.S. 446, 6 Sup.Ct. 454, 29 L.Ed. 691, 694; Robbins v. Shelby County, 120 U.S. 489, 7 Sup.Ct. 592, 30 L.Ed. 694, 698; Brimmer v. Rebman, 138 U.S. 78, 11 Sup.Ct. 213, 34 L.Ed. 862, 863; Crutcher v. Kentucky, 141 U.S. 47, 11 Sup.Ct. 851, 35 L.Ed. 649, 652; Darnell v. Memphis, 208 U.S. 113, 28 Sup.Ct. 247, 52 L.Ed. 413, 419, 420; Crenshaw v. Arkansas, 227 U.S. 389, 33 Sup.Ct. 294, 57 L.Ed. 565, 569; Sault Ste.

Marie v. International Transit Co., 234 U.S. 333, 34 Sup.Ct. 826, 58 L.Ed. 1337, 1341, 52 L.R.A. (N.S.) 574; Sioux Remedy Co. v. Cope, 235 U.S. 197, 35 Sup.Ct. 57, 59 L.Ed. 193, 197; Bethlehem Motors Corp. v. Flynt, 256 U.S. 421, 41 Sup.Ct. 571, 65 L.Ed. 1029, 1032; Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 Sup.Ct. 106, 66 L.Ed. 239, 243, 244; Southern R. Co. v. Greene, 216 U.S. 400, 30 Sup.Ct. 287, 54 L.Ed. 536; Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 Sup.Ct. 431, 46 L.Ed. 679, 691; In re Schechter (C.C.) 63 F. 695, 697; Compton Co. v. Allen (D.C.) 216 F. 537, 548; Davis v. Wallace, 257 U.S. 478, 42 Sup.Ct. 164, 66 L.Ed. 325, 328; Buchanan v. Warley, 245 U.S. 60, 38 Sup.Ct. 16, 62 L.Ed. 149, 160, L.R.A. 1918C, 210, Ann. Cas. 1913A, 1201.

Defendants, in addition to the authorities cited above, cite and rely upon the following: Southern Ry. Co. v. King, 217 U.S. 524, 30 Sup.Ct. 594, 54 L.Ed. 868; Engel v. O'Malley, 219 U.S. 128, 135, 31 Sup.Ct. 190, 55 L.Ed. 128; Standard Stock Food Co. v. Wright, 225 U.S. 540, 32 Sup.Ct. 784, 56 L.Ed. 1197; Rosenthal v. People, 226 U.S. 260, 271, 33 Sup.Ct. 27, 57 L.Ed. 212, Ann. Cas. 1914B, 71; Jeffrey v. Blagg, 235 U.S. 571, 576, 35 Sup.Ct. 167, 59 L.Ed. 364; Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 545, 34 Sup.Ct. 359, 58 L.Ed. 713; Farmers Bank v. Minnesota, 232 U.S. 516, 630, 34 Sup.Ct. 354, 58 L.Ed. 706; Hatch v. Reardon, 204 U.S. 152, 27 Sup.Ct. 188, 51 L.Ed. 415, 9 Ann.Cas. 736; Smiley v. Kansas, 196 U.S. 447, 457, 25 Sup.Ct. 289, 49 L.Ed. 546; Darnell v. Indiana, 226 U.S. 390, 33 Sup.Ct. 120, 57 L.Ed. 267; Bosley v. McLaughlin, 236 U.S. 385, 395, 35 Sup.Ct. 345, 59 L.Ed. 632; Middleton v. Power & Light Co., 249 U.S. 152, 39 Sup.Ct. 227, 63 L.Ed. 527; Sonneborn Bros. v. Cureton, 43 Sup.Ct. 643, 67 L.Ed. 1095, decided June 11, 1923; Brown v. Houston, 114 U.S. 622, 5 Sup.Ct. 1091, 29 L.Ed. 257; American Steel Co. v. Speed, 192 U.S. 500, 24 Sup.Ct. 365, 48 L.Ed. 538; General Oil Co. v. Crain, 209 U.S. 211, 28 Sup.Ct. 475, 52 L.Ed. 754; Woodruff v. Parham, 8 Wall. 123, 19 L.Ed. 382; Hinson v. Lott, 8 Wall. 148, 19 L.Ed. 387; Howe Machine Co. v. Gage, 100 U.S. 676, 25 L.Ed. 754; Wagner v. Covington, 251 U.S. 95, 40 Sup.Ct. 93, 64 L.Ed. 157; Texas Co. v. Brown, 258 U.S. 466, 42 Sup.Ct. 375, 66 L.Ed. 721; Bowman v. Continental Oil Co., 256 U.S. 642, 41 Sup.Ct. 606, 65 L.Ed. 1139; Lee Co. v. Webster (C.C.) 190 F. 353; Leisy v. Hardin, 135 U.S. 100, 10 Sup.Ct. 681, 34 L.Ed. 128; Pure Oil Co. v. Minnesota, 248 U.S. 158, 39 Sup.Ct. 35, 63 L.Ed. 180; Savage v. Jones, 225 U.S. 501, 32 Sup.Ct. 715, 56 L.Ed. 1182; Red 'C' Oil Co. v. North Carolina, 222 U.S. 380, 32 Sup.Ct. 152, 56 L.Ed. 240; Patapsco Guano Co. v. North Carolina, 171 U.S. 345, 18 Sup.Ct. 862, 43 L.Ed. 191; McLean v. Denver & & R.G. Ry. Co., 203 U.S. 38, 27 Sup.Ct. 1, 51 L.Ed. 78; Standard Stock Food Co. v. Wright, 225 U.S. 540, 32 Sup.Ct. 784, 56 L.Ed. 1197; Willis v. Standard Oil Co., 50 Minn. 290, 52 N.W. 652; State v. McKinney, 29 Mont. 388, 74 P. 1095, 1 Ann.Cas. 579; Littlefield v. State, 42 Neb. 223, 60 N.W. 724, 28 L.R.A. 588, 47 Am.St.Rep. 694.

Section 2811 of Remington's Compiled Statutes prohibits the sale of vegetable seeds below a certain percentage of the standard of germinable viability.

Section 2813 and section 2821 fix certain standards of germination.

Sections 2814, 2815, and 2816 provide generally and in particular cases how packages of seeds shall be marked and labeled.

Section 2817 specifies under what circumstances the act shall not apply.

Sections 2818, as amended, and 2819, as amended in part, prohibit the sale of seeds containing a greater number of weed seed than provided.

Section 2820, as amended, defines impurities and makes provision for labeling seed packages where impurities are present in excess of a certain amount.

Section 2822 defines misbranding.

Section 2823 provides for the maintenance of a laboratory for the analysis, grading and other tests by the director of agriculture.

Section 2824 imposes the duty of enforcing the act upon the Commissioner of Agriculture.

Section 2825, as amended, provides:

'It shall be the duty of the said director of agriculture, either by himself or his inspectors or assistants, to inspect, examine, and take samples of any agricultural seeds, stored, sold, offered or exposed for sale or distribution within this state for seeding purposes, at such time, and place, and to such extent as he may determine.

'The director, supervisor, inspectors, or assistants shall have free access at all reasonable hours upon and into any vessels, ferries, premises or structures, to make examination of any agricultural seeds whether such seeds are upon the premises * * * or in possession of any warehouse, elevator, railway or steamship company; and he is hereby given authority in person or by his inspectors or assistants upon notice to the dealer, his agent or representative of any warehouse, elevator, railway or steamship company, if present, to take for analysis a sample of such agricultural seeds from a parcel, package, lot or other container or number of parcels, packages, lots, or other containers; said sample shall be thoroughly mixed and divided into two samples of at least two ounces each and securely sealed. One of said samples shall be left with, or on the premises of the vendor or party in interest, and the other retained by said director of agriculture or his agent for analysis.

'The said director, supervisor, inspector, and assistants shall be vested with all necessary powers for the proper execution of their duties, including all action or procedure needful to secure evidence of fraud and dishonest dealing in or the fraudulent advertising of seed.

'Prosecutions for violation of this act shall be brought in the proper court by the prosecuting attorney of the county in which said violation occurred, upon complaint of the director, supervisor, inspectors or assistants.

'All moneys received from license fees, fines, costs imposed and recovered under the provisions of this act shall be paid to the director of agriculture, or his agents, and by him paid into the state treasury to the credit of the agricultural seed revolving fund to be used to assist in defraying costs of inspection and analysis and grading of agricultural and vegetable seeds under the provisions of this act.

'The director, supervisor, or inspectors shall have the power whenever he shall deem it necessary to call upon the Attorney General for aid in the prosecution of all cases arising under the provisions of this act.

'Whoever violates any of the provisions named in this act, or who shall attempt to interfere with the inspectors or assistants in the discharge of the duties named herein, shall be guilty of a misdemeanor and upon conviction shall be fined not less than twenty-five dollars ($25.00) and costs for the first offense and not less than one hundred dollars

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