In re Barber

Decision Date23 September 1889
Citation39 F. 641
PartiesIn re BARBER.
CourtU.S. District Court — District of Minnesota

W. H Sanborn, for petitioner.

Mr Cole and C. W. Burn, for the State.


The petitioner is brought before me upon a writ of habeas corpus. He alleges in his petition that he is restrained of his liberty by the sheriff of Ramsey county under a warrant of commitment issued by a justice of the peace, being found guilty of violating act of the legislature of the state of Minnesota, approved April 16, 1889, entitled 'An act for the protection of the public health by providing for the inspection, before slaughter, of cattle, sheep, and swine designed for slaughter for human food. ' 'Be it enacted,' etc.:

'Section 1. The sale of any fresh beef, veal, mutton, lamb, or pork for human food in this state, except as hereinafter provided is hereby prohibited.' Section 2 provides for the appointment of local inspectors. Section 3 defines the duties of the inspectors, who must inspect the animals within 24 hours before slaughter.

'Sec. 4. Any person who shall sell, expose, or offer for sale, for human food in this state, any fresh beef, button, lamb, or pork whatsoever, which has not been taken from an animal inspected and certified before slaughter by the proper local inspector appointed hereunder, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by fine of not more than $100, or by imprisonment not exceeding three months, for each offense.'

The petitioner alleges that this act of the legislature is in contravention of the constitution of the United States, and void, and that he is entitled to be discharged. The particular provisions of the constitution relied upon are article 1, Sec. 8, which declares that 'the congress shall have power * * * to regulate commerce * * * among the several states,' and also, article 4, Sec. 2, which provides that 'the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. ' The proper proceedings are taken to form the issue. The counsel appearing on behalf of the state claim that the law was passed as a sanitary regulation under the power reserved to the states in article 10 of the constitution of the United States.

The question of the validity of the act is to be determined under the proceedings. Is the law a valid and lawful exercise of state power to protect the public health, or does it pass beyond the constitutional limit, invade the federal domain, and substantially prohibit or burden interstate commerce, and also violate the rights secured to the citizens of the several states? By its title the act purports to be for the protection of the public health, and it is urged that upon its face it does not deal with commerce, and does not directly invade the domain of interstate commerce, but merely regulates the mode of sale of an article of commerce, after it has become a part of the mass of the property of the state. The states have never yielded to the federal government control over internal commerce or their right to self-protection. They have plenary power to protect the lives, health, comfort, and safety of all persons, and for the protection of all property within the state. Health inspection and quarantine laws are among the recognized lawful legislation of a state, and are necessary and advisable for the public welfare. They are self-defensive, and no federal power is trenched upon by their enactment. Such laws may, in many instances, incidentally affect interstate commerce, yet are not necessarily a regulation of it. If the law of the state of Minnesota is a proper and reasonable exercise of its police power, it violates no provision of the constitution of the United States. There has been a conflict for many years and much litigation in respect to the extent of the powers reserved to the states in the federal constitution. This controversy is perennial. The supreme court of the United States has explained in many later cases its previous decisions in regard to the extent of the police power of the states; yet the line of demarcation between the delegated power of congress and the reserved powers of the states is not defined with such accurate precision that it is easy to determine the boundary limit in all cases. But the supreme court always has stood firm, and tenaciously resisted every attempt of a state to encroach upon the exclusive power of the federal government under the commercial clause of the constitution, and there is a consension of opinion among the judges upon that subject.

The counsel for the state urges that this statute is a reasonably self-protective law. They put it forcibly in this form:

'Whatever the state deems it necessary to do within her own borders for the protection of the health of the citizen she may constitutionally do under the primal and paramount law of self-protection, which is nature's earliest enactment, to which no human legislation ever ran counter. Subject to this only qualification, that from facts apparent on the face of the law or of which the court may take judicial cognizance, the cogent presumptions in its favor are not overthrown by bad faith in its enactment.'

If I clearly understand counsel, this is not an unfair statement of the reserved powers of the states. It is only this, in substance: a law to protect health may be enacted by a state, and is valid unless it is a usurpation upon the general government by the invasion of a power exclusively vested in congress. If a state arrogates power so delegated, and exercises control over a subject exclusively confided by the federal constitution to congress, it certainly is guilty of bad faith, for it violates that covenant by which we became one people. The states, as I said, are clothed with plenary police power and large discretion in its exercise for the protection of the public health and comfort, but in order to determine whether the act of the state is really a usurpation of power, the courts are required to look at the effect and operation of the law, and are not bound by mere form. In Henderson v. Mayor, 92 U.S. 259, Mr. Justice MILLER, speaking of the police power of the states, said:

'Whatever may be the nature and extent of that power, where not otherwise restricted, no definition of it and no urgency for its use can authorize a state to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of congress by the constitution. * * * It is clear, from the nature of our complex form of government, that whenever the statute of a state invades the domain of legislation which belongs exclusively to the congress of the United States, it is void; no matter under what class of powers it may fall, or how closely allied to powers conceded to belong to the states.'

So, in Mayor v. Kansas, 123 U.S. 623, 8 S.Ct. 273, Mr. Justice HARLAN, speaking for the court, says:

'It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the state. There are of necessity limits beyond which legislation cannot rightfully go. * * * The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty, indeed are under a solemn duty, to look at the substance of things whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution. * * * Undoubtedly the state, when providing, by legislation, for the protection of the public health, the public morals, or the public safety, is subject to the paramount authority of the constitution of the United States, and may not violate rights secured or guarantied by that instrument, or interfere with the execution of the powers confided to the general government.'

While it must be admitted that the line of distinction between what is a legitimate police regulation and what constitutes an interference with commerce is 'dim and shadowy,' it is settled that when a law reaches beyond its professed object and into the domain of the federal government, no matter what may be its title, or in what form the details are expressed, it is unconstitutional. The practical effect and operation of this law excludes the importation of all dressed meats to be sold for manufactured food from animals slaughtered outside of the state of Minnesota. It excludes without reference to its quality or condition a commodity known to be an important item of interstate traffic, and practically declares that it does not belong to commerce. It says to all persons engaged in the business of selling dressed meats for food in this state: You must have the animal from which the meat is taken inspected by local inspectors in the state within 24 hours before slaughtered or suffer extreme penalties. It is not questioned that sound, dressed beef is an article of commerce, but this law is attempted to be maintained as a reasonable regulation of the mode of sale after it has become a part of the mass of property of the state, and it is urged that, as it does not forbid the importation of dressed meat, but only the sale for human food after importation, it is valid. In the argument counsel stated that 'private families could import for their own consumption, and that innkeepers and like public resorts are not prevented from buying dressed meat outside of the state and...

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3 cases
  • Territory v. Evans
    • United States
    • Idaho Supreme Court
    • February 12, 1890
    ...territory, but cannot make it lawful to transport and sell fish within the territory and a crime to do so beyond its boundaries. (In re Barber, 39 F. 641; Harvey Huffman, 39 F. 646; Swift v. Sutphin, 39 F. 630; Gibbons v. Ogden, 9 Wheat. 1; Bowman v. Railway Co., 125 U.S. 465, 8 S.Ct. 689, ......
  • In re Beine
    • United States
    • U.S. District Court — District of Kansas
    • June 14, 1890
    ... ... States, and illegal; and this court has the jurisdiction, and ... it is made its duty, to discharge any person so illegally ... held in custody. Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734; ... Cunningham v. Neagle, 10 S.Ct. 658; Ex parte ... Kieffer, 40 F. 399; In re Barber, 39 F. 641, 10 ... S.Ct. 862. A question was raised in the argument as to ... whether the smallness of some of the packages sold by some of ... the petitioners did not deprive them of the protection given ... to vendors of original packages. Single bottles of beer and ... whisky, packed and ... ...
  • City of El Paso v. Jackson, 2586.
    • United States
    • Texas Court of Appeals
    • June 25, 1931
    ... ... Milwaukee, 144 Wis. 371, 129 N. W. 518, 43 L. R. A. (N. S.) 1066, as supporting their position, while appellees assert the correctness of the judgment, and in support thereof cite Minnesota v. Barber, 136 U. S. 313, 10 S. Ct. 862, 34 L. Ed. 455 ...         We cannot agree that the case of Adams v. Milwaukee, supra, is in point. In that case the city council had concluded that milk from tubercular cows was injurious to the health of the citizens of Milwaukee, and had, therefore, ... ...

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