HANEY, P. J.
The only issue arising in this proceeding is one of law-whether the facts stated in the information upon which the accused was arrested constitute a public offense. The substance of the charge is that the accused, the duly constituted representative of the proprietor of a nursery located in Iowa, solicited and received in this state an order for nursery stock from such nursery to be paid for on delivery in this state; the proprietor of such nursery not having secured a permit to transact business in this state. Whether these facts constitutes a crime depends upon the construction and effect to be given an act of the last Legislature described in its title as “An act relating to the inspection and registration of fruit tree nurseries and regulation of nurser agents,” containing the following provisions:
“Sec. 1. Any person, firm or corporation which owns or operates a nursery in South Dakota or any other state or territory and which desires to sell from the same, either directlyor indirectly, by traveling or local agents, salesmen or representatives, any trees, vines, bushes or other nursery stock, within the limits of the state of South Dakota, shall first secure a permit from the board of agriculture, authorizing such nursery, or its duly constituted representatives, to do business in the state. As conditions precedent to the issuance of such permit, the board of agriculture shall require a certificate of inspection from a competent entomologist, duly authorized to act as an inspector in the state or territory where such nursery is owned and operated, and the board of agriculture shall furthermore, require such references and evidences of integrity as may seem to be necessary to establish the responsibility and good faith of the applicant. The said state board of agriculture shall require of all persons, firms or corporations operating under the provisions of this act, to give a continuing bond in the sum of $5,000.00, running to the state of South Dakota, on which any person who sustains damage by reason of the violation of the provisions of this act may recover.
“Sec. 2. Any person, who, acting as agent or solicitor, within the limits of the state of South Dakota, sells, or offers to sell, trees or any other nursery stock for any person, firm or corporation which may be engaged in the nursery business, shall be required to carry a letter or certificate from his principal, setting forth the fact that he is duly authorized to represent such nursery and that the guarantee is made that any written contract entered into by him, as agent, will be fulfilled if the same is accepted by said nursery and unless notification to the contrary be made in writing to the purchaser within thirty days after such order or contract is made. In addition to the foregoing, each agent or solicitor who sells or offers to sell trees or other nursery stock, that may have been grown in any other state or territory, shall be required to procure and carry a duplicate of the permit issued to his principal.
“Sec. 3. It shall be unlawful to misrepresent nursery stock which is offered for sale, or refuse to state where the same was propagated or the manner of propagation, to sell, offer for sale or deliver nursery stock which is untrue to name or which, because of lack of hardiness, or from the use of tender roots or stocks in propagation are worthless for the locality where they are to be planted or to sell seeds which have been adulterated or seeds by reason of age have become deficient in vitality and germinating power, or containing seeds of any noxious or injurious plants to any greater extent than is alleged or claimed in the seed test of the goods sold.
“Sec. 4. The violation of the provisions of any of the foregoing sections of this act shall be deemed a misdemeanor, punishable by a fine of not less than fifty dollars nor more than three hundred dollars and in addition, any person, firm or corporation engaged in the nursery business or any nursery agent or solicitor who violates the provisions of the foregoing sections of this act shall forfeit the permit which gives the right to do business in the state of South Dakota which may be held by such party or parties and such agent or solicitor shall be disqualified to receive a permit to act as agent for any other nursery which operates in the state of South Dakota.”
Section 5 requires the collection annually of a fee of $10 for each permit, and $2.50 for each agent's duplicate, the money so collected to be paid over to the state treasurer and placed in a separate fund known as the “Nursery Regulation Fund.” Section 6 repeals all statutes in conflict with the provisions of such act. Laws 1907, pp. 414, 415, c. 194.
Relator's contention is (1) that this statute imposes unconstitutional burdens and restraints upon persons engaged in a legitimate and innocuous business; and (2) that it conflicts with the interstate commerce clause of the federal Constitution. The force of this contention necessarily depends upon the nature of the burdens and restrictions imposed, which must be determined by the meaning and effect of the language employed to express the legislative will; the burden of the permit being measured by the prescribed conditions precedent to its issuance.
It is a matter of common knowledge of which this court may take judicial notice that trees and other forms of plant life are subject to destructive communicable diseases. State v. Main, 69 Conn. 123, 37 Atl. 80, 36 L. R. A. 623, 61 Am. St. Rep. 30. Diseases in plants have existed as long as plants themselves-ages before the advent of man. In the earliest historical records, as well as in early Greek and Roman times, some of the more destructive diseases of plants, like rust and mildew or blight of cereals, were widely known and discussed; and, though formerly unreliable theories on the subject may have received more or less general recognition, the recent exhaustive researches of distinguished specialists have placed the pathology of plants on a foundation scarcely less scientific and satisfactory than that occupied by the pathology of animals. Ency. Americana, Diseases in Plants. This being so, the...
