In re Rebman

• Decision Date: 07 April 1890
• Citation: 41 F. 867
• Parties: In re REBMAN.
• Court: U.S. Court of Appeals — Fourth Circuit

41 F. 867

In re REBMAN.

United States Circuit Court, E.D. Virginia.

April 7, 1890

W. J Campbell and Wm. H. White, for petitioner.

R Taylor Scott, Atty. Gen. Va., and Robert M. Hughes, for respondent.

HUGHES J.

William Rebman is the agent of Armour & Co., of Chicago, who are shippers of fresh dressed beef from Chicago to Norfolk for sale to consumers. A recent act of the legislature of Virginia imposes a charge of one cent a pound for inspection upon fresh meat intended for sale at places 100 miles and more from the places of slaughter, requires it to be inspected before it is offered for sale, and imposes a fine of $50 to $100 for selling without inspection. This law was disregarded by Rebman, as violating the constitution of the United States. He made a sale of beef which had not been inspected, was arrested, and tried by a justice of the peace of Norfolk, and fined $50 for the offense. Refusing to pay the fine, he was imprisoned in the city jail of Norfolk. On his petition for the writ of habeas corpus, the case is heard by this court, on the question whether the law of Virginia commonly called the 'Fresh Meat Inspection Act,' is in violation of the federal constitution.

The supreme court of the United States has held in many cases that the clause of section 8, art. 1, of the national constitution, which gives to congress power 'to regulate commerce with foreign nations, and among the several states and with the 'indian tribes,' gives the power exclusively to congress; and that when congress refrains from exercising it in relation to any subject, commerce in that respect is free, and cannot be interfered with by the states. The most important of the cases establishing that principle are cited by the court in Brown v. Houston, 114 U.S.,at page 631, 5 Sup.Ct.Re. 1091, decided in 1884, and need not be enumerated here, In quite a number of subsequent cases, the supreme court has laid down the same doctrine in applying it to a constantly varying condition of facts. The circuit courts of the United States, and the supreme courts of several of the states, have announced this view of the law, and enforced it in many cases coming before them; and no doctrine is more firmly established than this is in American jurisprudence. Indeed, Mr. Justice BRADLEY, in Stockton v. Railroad Co., 32 F. 17, in a circuit court case, has said very compendiously, that--

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

The union of the American states could not have been formed, under the constitution of 1787-89, but for the necessity which was felt for a fundamental provision that should absolutely exempt commerce between the states from all incumbrance and obstruction by any and every state; and the miraculous growth of the American Union in population, wealth, and prosperity is, in all probability, as largely due to the perfect freedom of trade between the states as to any other cause. It is true that this exclusive power of congress over interstate commerce, this absolute freedom of trade between the states, exists concurrently with the inherent and natural power of the states by police, inspection, and even tax laws, to regulate their internal affairs, and to provide for the safety of their own communities. It is also true that this right of the state, in frequent instances, does conflict, or seems to conflict, with the exclusive power of congress over the instrumentalities and commodities of interstate commerce; and therefore, whenever this apparent conflict arises, the courts, both state and federal, are called upon to perform the duty, sometimes difficult and occasionally invidious, of defining the relative powers of the two authorities.

On this subject the supreme court has laid down some general principles as guides in cases of apparent conflict. In Railroad Co. v. Husen, 95 U.S. 465, the court said:

'While we unhesitatingly admit that a state may pass * * * laws * * * for the protection of life, liberty, health, or property within its borders; while it may prevent persons and animals suffering under contagious or infectious diseases, or convicts, etc., from entering the state; while, for the purpose of self-protection, it may establish quarantine and reasonable inspection laws,--it may not interfere with transportation into and through the state, beyond what is absolutely necessary for its self-protection. The police power of a state cannot obstruct foreign * * * or interstate commerce beyond the necessity for its exercise; and, as its range sometimes comes very near to the field committed by the constitution to congress, it is the duty of the courts to guard vigilantly against any needless intrusion.'

In Henderson v. Mayor, etc., 91 U.S. 272, the supreme court said:

'It must occur very often that the shading which marks the line between one class of legislation and another is very nice, and not easily distinguishable. But, however difficult this may be, it is clear * * * 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. The right of a state to protect herself by necessary and proper laws against paupers and convicted criminals from abroad can only arise from a vital necessity for its exercise, and cannot be carried beyond the scope of that necessity.'

In Bowman v. Railway Co., 125 U.S. 506, 8 S.Ct. 689, 1062, Mr. Justice FIELD said:

'It is perhaps impossible to state any rule which would determine in all cases where the right to sell an imported article under the commercial power of the federal government ends, and the power of the state to restrict further sale has commenced. Perhaps no safer rule can be adopted than the one laid down in Brown v. Maryland, (12 Wheat. 439,) that the commercial power continues until the articles imported have become mingled with and incorporated into the general property of the state, and not afterwards.'

In the case in Wheaton, Chief Justice MARSHALL had said:

'Sale is the object of importation, and is an essential ingredient of that intercourse of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, then, as importation itself. It must be considered as a component part of the power to regulate commerce.' In Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, the supreme court said:

'It does not at all follow that every (state) statute, enacted ostensibly for the promotion of (proposed) ends, is to be accepted as a legitimate exertion of the police powers of a state. There are, of necessity, limits beyond which (state) 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.'

In the case of Bowman v. Railway Co., already cited, the supreme court said:

'A state cannot impose such taxes upon property imported into this state from abroad, or from another state, and not yet become a part of the common mass of property therein; and no discrimination can be made by any such regulations adversely to the persons or property of other states; and no regulations can be made directly affecting interstate commerce.'

In Walling v. People, 116 U.S. 446, 6 S.Ct. 454, the supreme court said:

'A tax imposed by a statute of a state upon an occupation which necessarily discriminates against the introduction and sale of the products of another state, or against the citizens of another state, is repugnant to the constitution of the United States.'

It would be quite impracticable on the present occasion to consider all the decisions which the supreme court has rendered on the general subject of conflicts between state and federal laws; and to discriminate between those decisions, in which it has pronounced state laws unconstitutional and void, and those in which it has held them to be valid. From the decisions mentioned in the foregoing paragraphs, I have extracted only such expressions of the court as serve to outline the principles of law which govern the case at bar. While counsel for the petitioner object to the Virginia statute under consideration, chiefly as violating the interstate commerce clause of the constitution, they also maintain that it violates the clause of section 2, art. 4, of the constitution, which declares that 'the citizens of each state shall be entitled to all privileges and immunities of citizens in several states. ' It is chiefly with reference to the interstate commerce clause that I shall consider the Virginia statute complained of by petitioner; the other is a cumulative provision.

The general principles of law governing the case at bar having been set out, I turn to the facts which it presents. I am at liberty to take judicial cognizance of...