Ex parte Scott

• Decision Date: 04 March 1895
• Citation: 66 F. 45
• Parties: Ex parte SCOTT et al.
• Court: U.S. Court of Appeals — Fourth Circuit

66 F. 45

Ex parte SCOTT et al.

United States Circuit Court, E.D. Virginia.

March 4, 1895

Charles A. Clark, for plaintiff in error.

John H Baldwin filed brief for defendant in error.

HUGHES District Judge.

The petitioners are under arrest for trading in an article of commerce brought from another state. Their business would go to ruin if they were required to await all the proceedings in the state courts incident to appeal, and to reaching a final adjudication of their rights in the state court of final resort. This fact makes these cases cases of emergency demanding immediate action by this court. It was in this view that I directed these writs of habeas corpus to be issued. The facts agreed between the prosecuting officers of the state and the petitioners are as follows:

'The accused (Scott) was at the time of his arrest engaged in Norfolk, Virginia, in the business of a wholesale dealer in oleomargarine, under and in compliance with the laws of the United States regulating the sale of that article. At the time of the arrest of the accused, he had in his possession for sale, and was selling, in the original, unbroken, and imported package, the article known as 'oleomargarine.' The packages containing the same were distinctly stamped with the word 'oleomargarine' in the plain, Roman letters, not less than half an inch square. The said article was manufactured by Swift & Co., in the state of Illinois, and shipped by them from that state to the accused, at Norfolk, Virginia, but is largely manufactured elsewhere, and enters extensively into the trade and commerce of this and other states of the Union. The printed copy of the regulations concerning oleomargarine under the internal revenue laws of the United States may be used as evidence in this case.'

The question in these cases was before me, in the case of Ex parte Rebman, five years ago. 41 F. 867. There the state of Virginia had passed a law, which, stripped of its verbiage was, in essence and purpose, a law forbidding the sale in this state of meats from animals slaughtered in other states. This law was held by me to be obnoxious to the provision of the national constitution giving to congress the exclusive power of regulating commerce between the states. A dealer, in Norfolk, in canned and prepared meats, had been arrested, tried, and imprisoned for violations of this meat law of the state. Upon a writ of habeas corpus, and after a full hearing, I released Rebman. The case was appealed to the supreme court of the United States, and was there accorded a privileged hearing. Whereupon that court unanimously affirmed the decision here. Brimmer v. Rebman, 138 U.S. 78, 11 Sup.Ct. 213. In that case I said:

'Section 8 of article 1 of the constitution gives congress exclusive power to regulate commerce among the several states; and, when congress refrains from exercising that power in relation to any subject, commerce is free, and cannot be interfered with by the states. It was so held in Brown v. Houston, 114 U.S. 631, 5 Sup.Ct. 1091. In quite a number of subsequent cases the supreme court has held the same doctrine, in applying it to a constantly varying condition of facts.'

Mr. Justice Bradley, sitting in circuit court, truly and aptly said in Stockton v. Railroad Co., 32 F. 17:

'The power of congress is supreme over the whole subject of interstate commerce, unimpeded and unembarrassed by state lines or state laws. On this matter the country is one, and the work to be accomplished is national; and state jealousies, state prejudices, and state interests do not require to be consulted. In matters of foreign and interstate commerce, there are no states.'

I went on, in the Rebman Case, to say as follows (but I shall now use the word 'health,' instead of 'inspection,' whenever the latter occurred):

'It is undeniable that a state of this Union, like other self-governing states, has the power to enact health laws for the public safety. It has as clear a right to this power as it has to existence. It may enact and enforce health laws adapted to secure the public safety, even though they trench upon, and more or less obstruct, the freedom of trade between the states. It is equally true, however, that health laws, to be within the sovereign prerogative of the state, and to stand superior to the cardinal provisions of the national constitution, must be essentially and really such, in character, purpose, and operation. To call a law a health law does not make it one, competent to override any tenet of constitutional law. It must be a health law in spirit and in truth. It must be a reasonable law, properly devised for preventing the evil at which it is aimed; so devised as to no more than effectuate that purpose, and as not to subserve other objects not essential to affect trade between the states obstructively or injuriously, it is competent for the national courts-- it is declared to be our solemn duty-- to pronounce them invalid, and to forbid their enforcement. And so it seems to me that the question at bar is resolved into the inquiry, whether or not the meat law of Virginia is reasonable and necessary, is directed against a dangerous evil, has an eye single to the prevention of that evil, and provides for its prevention in a manner less injurious to the constitutional rights of the citizens of our sister states than any other that could be devised.'

In my construction of the Virginia meat act, I held that the negative of the propositions just stated was true of it, and held it, therefore, to be an invalid law, as against the products of sister states. I therefore released the petitioner, who had been imprisoned under that law. When the case was before the supreme court of the United States, that court, in affirming the judgment of this court, said of the Virginia meat law: 'We are of the opinion that the statute of Virginia, although avowedly enacted to protect its people against the sale of unwholesome meats, has no real or substantial relation to such an object, but, by its necessary operation, is a regulation of commerce, beyond the power of a state to establish.'

The Rebman Case is on all fours with the two now under consideration. On March 1, 1892, the general assembly of Virginia enacted a law whose title declared it to be 'An act to prevent the adulteration of butter and cheese, and the sale of the same, and preserve the public health. ' ^[1]

Under this title the act went on to forbid the manufacture and sale of any compound made of substances other than such as are produced from cows' milk, and of any compound made of such other substances as were imitations or semblance of the products of cows' milk, and from coloring such other substances so as to make them similar to butter or cheese. Indeed, the very terms of the provisions of the act excluded the idea of the adulteration of butter and cheese. They referred exclusively to compounds of things other than butter and cheese. As oleomargarine is not composed in any...