Hinkle v. Railway Express Agency
Citation | 6 So.2d 417,242 Ala. 374 |
Decision Date | 22 January 1942 |
Docket Number | 6 Div. 711. |
Parties | HINKLE v. RAILWAY EXPRESS AGENCY. |
Court | Supreme Court of Alabama |
Rehearing Denied March 5, 1942.
H. H. Kinney and Joe V. Knight, both of Cullman and S. A. Lynne, of Decatur, for appellant.
St John & St. John, of Cullman, for appellee.
The complaint, consisting of four counts, is based upon alleged violations of the provisions of sections 301, 302 and 304 of the Alabama Agricultural Code of 1927, Code 1940, Title 2 sections 461, 462 and 464.
Demurrers were sustained to each count of the complaint, and the plaintiff took a voluntary non-suit. Plaintiff filed motion for a new trial, which was overruled by the trial court, and to which ruling plaintiff reserved an exception. The questions presented for review do not call for a discussion of the propriety of this procedure.
For an understanding of the questions presented on this appeal we set forth count one of the complaint:
Count 2, in its material aspects, sets up substantially the same facts, but alleges a violation of section 302 of the Alabama Agricultural Code of 1927, Code of 1940, Title 2, section 462, in that the plants or vine cuttings did not bear the official tag issued by the commissioner or the inspection tag of the Federal Horticultural Board. However, the count appears to be based on an alleged violation of section 304 of the Agricultural Code, supra. Count 3 likewise alleges substantially the same facts set out in count 1, and alleges a violation of sections 301, 302 and 304 of the Alabama Agricultural Code of 1927, Code of 1940, Title 2, sections 461, 462 and 464. Count 4 contains substantially the same allegations of fact as count 1, and alleges a violation of sections 301 and 302 of the Alabama Agricultural Code supra.
Apt grounds of demurrer raise two principal questions for review.
The Act of Congress of August 20, 1912, as amended by the Act of March 4, 1917, 7 U.S.C.A. § 161, provides that the Secretary of Agriculture is authorized and directed to quarantine any state, territory or district of the United States, or any portion thereof, when he shall determine that such quarantine is necessary to prevent the spread of a dangerous plant disease or insect infestation, new to or not theretofore widely prevalent or distributed within and throughout the United States; and, further, that it shall be unlawful to move or allow to be moved any class of nursery stock or any other class of plants, fruits, vegetables, roots, bulbs, seeds or other plant products, or any class of stone or quarry products or any other article of any character whatsoever, capable of carrying any dangerous plant disease or insect infestation from any quarantined state or territory or district of the United States, or quarantined portion thereof, into or through any other state, territory or district, in manner or method or under conditions other than those prescribed by the Secretary of Agriculture.
On April 13, 1926, the Congress further amended said Act as follows: "Provided further, That until the Secretary of Agriculture shall have made a determination that such a quarantine is necessary and has duly established the same with reference to any dangerous plant disease or insect infestation, as hereinabove provided, nothing in this chapter shall be construed to prevent any State, Territory, Insular Possession, or District from promulgating, enacting, and enforcing any quarantine, prohibiting or restricting the transportation of any class of nursery stock, plant, fruit, seed, or other product or article subject to the restrictions of this section, into or through such State, Territory, District, or portion thereof, from any other State, Territory, District, or portion thereof, when it shall be found, by the State, Territory, or District promulgating or enacting the same, that such dangerous plant disease or insect infestation exists in such other State, Territory, District, or portion thereof:
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