Cloverleaf Butter Co. v. Patterson

• Decision Date: 14 January 1941
• Docket Number: No. 9647.,9647.
• Citation: 116 F.2d 227
• Parties: CLOVERLEAF BUTTER CO. v. PATTERSON, Com'r of Agriculture, etc., et al.
• Court: U.S. Court of Appeals — Fifth Circuit

116 F.2d 227 (1940)

CLOVERLEAF BUTTER CO. v. PATTERSON, Com'r of Agriculture, etc., et al.

No. 9647.

Circuit Court of Appeals, Fifth Circuit.

December 14, 1940.

Rehearing Denied January 14, 1941.

Horace C. Wilkinson, Erle Pettus, and Victor H. Smith, all of Birmingham, Ala., for appellant.

Thomas S. Lawson and C. L. Rowe, both of Montgomery, Ala., for appellees.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

Plaintiff is an Alabama Corporation engaged in Alabama under United States license, in the business of manufacturing for sale and selling in interstate and intrastate commerce, processed or renovated butter. Defendants are officers of the Department of Agriculture of the State of Alabama, and citizens of that state. The suit, invoking federal jurisdiction upon the ground that more than $8,000 is involved, and a right arising under a federal statute is being violated, was against defendants to restrain them from seizing or suspending from use, country or packing stock butter moving in interstate commerce into Alabama and into plaintiff's plant for renovating and processing there.

The claim was that by the congressional enactments¹ relating to processing or renovating butter and the regulations² promulgated pursuant thereto, Congress has preempted the field of manufacture of processed or renovated butter in interstate commerce, and of inspection and regulation of packing stock butter, for use in such manufacture, to the exclusion of the state of Alabama, its officers and agencies. It was alleged that the raw material called country and packing stock butter from which the finished product is processed for sale, is bought in interstate commerce as well as in the state of Alabama and none of it is being held or offered for sale in Alabama; that of the finished product called processed or renovated butter, approximately 90% is sold outside of Alabama; that since 1902, the federal government has fully and completely occupied and preempted the field of sanitary regulations of both the raw materials and finished product as well as the plant and industry; but that, notwithstanding all of this, defendants, as state officers, purportedly acting under the authority of state laws, but in fact acting beyond them, have recently entered into and sought to occupy the field of inspection and regulation of country and packing stock butter already preempted by the United States by attempting to duplicate the work required of the federal agencies and to exercise a kind of dual and, in some respects, exclusive control of the industry; that they have seized and suspended from use large quantities of country or packing stock butter moving in interstate commerce, and in addition, by contacting small producers in Alabama, some of plaintiff's sources of raw material, have intimidated them from selling to plaintiff; that the statutes of Alabama, Agricultural Code Ala.1927, §§ 37, 71, 72, 218, 219, and § 217, as amended by Gen. Acts Ala.1935, p. 1103, under color of which defendants are purporting to act, do not authorize the seizure of packing stock or country butter moving in interstate commerce to plaintiff's plant, they merely make it unlawful for any person within the state to manufacture for sale therein, have in his possession with intent to sell, offer or expose for sale, sell or deliver, any article of food or drugs which is adulterated or misbranded. Upon these and the further allegations that, unless restrained, defendants will continue their unlawful course of conduct to plaintiff's irreparable injury, an injunction was prayed.

It will be noted that it is not claimed that the state statutes are unconstitutional. It is, in fact, insisted that they are not, that they are limited to intrastate commerce and impose no restrictions which interfere with those fixed by Congress for interstate commerce. But the claim is that the system of inspection provided by the federal government exempts plaintiff and its products from state inspection and that state inspection in the face of such exemption is a violation of a federal right. Defendants moved to dismiss and there was a stipulation³ intended to narrow, and in fact narrowing, the legal questions in dispute. The District Judge saying: "The plaintiff contends Congress has preempted the field of inspecting and regulating packing stock and butter * * * the defendants contend otherwise * * *, the chief difference between the parties is whether Congress has preempted the field of inspection and regulation of packing stock butter in Interstate Commerce to the exclusion of the power of the state of Alabama"; and, "that the state of Alabama through its duly authorized officers may inspect the raw material known as packing stock butter, even though said raw material is in Interstate Commerce and is used by the plaintiff in the manufacture of processed or renovated butter to be sold in Interstate Commerce, and if upon inspection said packing stock butter violates any law of the state of Alabama, the same may be disposed of as provided by laws of said state.", held against plaintiff and with defendants.

Thus, there was sharply presented and decided in the court below, and there is as sharply presented for decision here, the question whether this is one of those cases in which the exercise of state police power, otherwise existing and exercisable, is prevented, not by direct congressional provision that it shall not be exercised, but by implication, from the comprehensive nature of federal statutes and regulations, that Congress has completely entered and preempted a field of regulation, and intends to exclude and has excluded the state from it.

Appellees, in limine, question our jurisdiction, insisting: (1) That the attack was upon the constitutionality of a statute and the district judge as a single judge, was without jurisdiction of the case, so that no appeal lies to this court from his decision; (2) that no substantial federal question was presented and there was no federal jurisdiction, and (3) that the suit is one against the state of Alabama and as such is forbidden by the 11th Amendment.

We reject these contentions as wholly without merit. The suit was not one for three judges. It did not attack the constitutionality of the Alabama statutes, it affirmed their constitutionality. It was not a suit against the state but one within the recognized federal jurisdiction against persons purporting to act as officers of a state and, as such, to deprive citizens of rights granted them by the federal constitution and laws. Nor can it be said of it that it did not seriously present a substantial federal question. For, if appellant is right in its contention that the federal statutes and regulations have completely occupied the field, so as to exclude the state of Alabama from the exercise of its police powers, with regard to the inspection and seizure for condemnation of country and packing stock butter, the actions of defendants under purported state authority, would be clearly in violation of a federal right and enjoinable as such.

We agree with the appellees however, that the district judge was right in denying the relief prayed and dismissing the bill as without merit. For, in our opinion, nothing in the act or regulations under it, expressly purports to prevent, or impliedly purports to exclude the state from making and enforcing like regulations with those the United States lays down, for the purity and wholesomeness of ingredients to be used in the process of manufacturing food products in Alabama for sale there and in other states.

Nothing in the act, the regulations, or the practices under the act, purport to expressly grant to plaintiff immunity from state seizure of food products which in the opinion of state officers, are filthy or deleterious in violation of Alabama laws. It must be admitted that the state of the authorities is such that there is much confusion to the casual and no little to the careful reader of them, as to when there is and when there is not such conflict between state and federal regulations of the same subject matter as to exclude the state from the field. This confusion is grounded in and springs in part from, the failure of some of the opinions to clearly apprehend and point out the differentiating facts in each situation. Particularly is it grounded in the failure to draw clearly enough the distinction between those cases where a complainant, subject to federal regulation of some kind, is attempting to magnify and enlarge the actual scope of the federal law, to use it as a shield against, or a cat's-paw to draw his chestnuts from the fire as to state regulations, and those where, confronted with positively inconsistent and conflicting state and federal laws, and ordered, but unable, to comply with both, complainant, because of that inability, invokes, as paramount, the protection of the federal laws. But wanting in clearness as they are, nothing in any of the authorities lends support to the view that merely because Congress has taken cognizance of the business of making and shipping renovated or processed butter in interstate commerce, and has provided regulations for such making and shipment, a state in which the manufacturing plant is situated and in which part the product is sold, may not make and enforce regulations not inconsistent with those of the Congress to insure the purity of the product so manufactured.

Here the imagined conflict between state and federal authorities lies only in the fact that the federal authorities have failed to seize and condemn particular lots of butter which the state has found seizable. There is no complaint on the part of the federal authorities of any interference with them by the authorities of the state. It is not claimed that the state is imposing any higher or other standards than the federal government imposes, indeed it is admitted that it is not. The sole claim...