In re Sanders

• Decision Date: 14 November 1892
• Parties: In re SANDERS.
• Court: U.S. Court of Appeals — Fourth Circuit

52 F. 802

In re SANDERS.

United States Circuit Court, E.D. North Carolina.

November 14, 1892

Alfred Russell and D. L. Russell, for petitioner.

John D Bellamy, Jr., for the State.

GOFF Circuit Judge.

Simon W. Sanders presents his application for the writ of habeas corpus. In substance, it alleges that petitioner is restrained of his liberty by the sheriff of New Hanover county, North Carolina, who detains petitioner by reason of a certain mittimus or warrant issued by a justice of the peace in and for said county and state founded upon a judgment of conviction rendered by the justice for the violation of a certain statute of the state of North Carolina, passed by the general assembly of that state on the 5th day of March, 1891, entitled 'An act to protect seed buyers in North Carolina,' being chapter 331 of the Acts of the General Assembly of North Carolina for the year 1891 in this: that petitioner, as the agent of D. M. Ferry & Co., a firm composed of citizens of the state of Michigan, and doing business in that state, exposed to sale and sold at Wilmington, in North Carolina, certain seeds, which were shipped to petitioner from the state of Michigan by said firm of D. M. Ferry & Co., to be sold by him as their agent. It also alleges that the seeds so sold by petitioner were in the original packages as received from the state of Michigan, and it admits that the packages were not marked as required by the statute alluded to. Petitioner claims that the act of the general assembly of North Carolina, by virtue of which he was convicted, in so far as it applies to the act done by him, is in violation of the constitution of the United States, and that, therefore, no lawful conviction is possible under it, and that consequently he is restrained of his liberty wrongfully. The writ, as prayed for, was issued on the 8th day of March, 1892. The sheriff made return to the writ on the 24th day of March, 1892, admitting that he had petitioner in his custody, and that he held him in accordance with the terms of a warrant of commitment from a justice of the peace for the state and county mentioned. With his return the sheriff files a certified transcript of the record of the court of the justice, showing the trial, conviction, and commitment of the petitioner, from which it appears that the facts relative to the sale of the seed are correctly set forth in the petition filed in this matter. The sheriff, at the time he filed his return to the writ, produced before the court the petitioner, who was represented by counsel, and, there being no appearance for the sheriff nor for the state of North Carolina by counsel, the court ordered that the hearing of the matter involved in this proceeding be postponed until the next term of the circuit court of the United States at Wilmington, N.C., and committed the petitioner to the custody of the marshal of that district. At the spring term, 1892, of the circuit court at Wilmington the matters arising on the writ and return were argued by counsel for petitioner, for the sheriff, and the state of North Carolina, and submitted to the court.

The petitioner, as a member of the firm of S.W. Sanders & Co., of Wilmington, N.C., contracted with D. M. Ferry & Co., of Detroit, Mich., to sell for them garden, flower, and field seeds on certain terms and conditions set forth in a contract dated October 30, 1891. The seeds ordered were duly shipped by D. M. Ferry & Co. from Detroit, received by S.W. Sanders & Co. at Wilmington, and portions of them sold by petitioner. On the 5th day of March, 1891, the general assembly of North Carolina passed an act of which the following is a copy: 'An Act to Protect Seed Buyers in North Carolina.

'The general assembly of North Carolina do enact: Section 1. That any person or persons doing business in the state, who shall sell seed, or offer for sale any vegetable or garden seed, that are not plainly marked upon each package or bag containing such seed the year in which said seed were grown, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than ten dollars or more than fifty dollars, or imprisoned not more than thirty days, for each and every offense; provided, that the provisions of the act shall not apply to farmers selling seed in open bulk to other farmers or gardeners. Sec. 2. That any person or persons who shall, with intention to deceive, wrongfully mark or label, as to date, any package or bag containing garden or vegetable seed, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than ten or more than fifty dollars, or imprisoned not less than ten or more than thirty days. Sec. 3. That this act shall be in force from and after the 1st day of September, 1891. Ratified this, the 5th day of March, 1891.'

The seeds so sent by D. M. Ferry & Co. were in packages which were not marked with the year when the seeds were grown, as was required by this statute, and the sales made by the petitioner were in the original packages received from Michigan. Petitioner claims that this statute is a regulation of commerce among the states, the power to make which is not possessed by the legislature of a state, but is, by article 1, Sec. 8, cl. 3, of the constitution of the United States, vested exclusively in the congress provided for by that instrument. Counsel for the state of North Carolina contends that the act mentioned, while it may affect commerce, is not a regulation thereof, but is simply the exercise by the state of its police power to protect its citizens from fraud. The clause of the constitution above cited reads as follows: 'The congress shall have power to regulate commerce from foreign nations and among the several states and with the Indian tribes. ' The need of a national regulation of commerce among the states was one of the most influential causes leading to the formation of the constitution of the United States, the desire being to secure uniformity of the commercial regulations against discriminating or burdensome state legislation. It is now well established that congress has the exclusive right to regulate commerce, and that the grant to congress in the constitution relating to that subject carried with it the whole matter, leaving nothing for the state to act upon in cases where the subject is national in character. Gibbons v. Ogden, 9 Wheat. 1; Cook v. Pennsylvania, 97 U.S. 566; Railroad Co. v. Fuller, 17 Wall. 560; Henderson v. Mayor, etc., 92 U.S. 259; Railroad Co. v. Husen, 95 U.S. 465; Leisy v. Hardin, 135 U.S. 108, 10 S.Ct. 681. Is this act of the general assembly of North Carolina, as applied to the sale in question, a regulation of interstate commerce? If so, it is void. The fact that congress has not legislated on this particular subject-- has not especially regulated this character of commerce--does not authorize the state legislature to regulate it, but shows that congress intends such sales to be free in all the states, and not to be restricted or burdened by any state statute. Philadelphia & S.M.S.S. Co. v. Pennsylvania, 122 U.S. 336, 7 S.Ct. 1118;

Bowman v. Railway Co., 125 U.S. 465, 8 S.Ct. 689, 1062. In Robbins v. Taxing Dist., 120 U.S. 489, 7 S.Ct. 592, the court days:

'The power granted to congress to regulate commerce among the states being exclusive when the subjects are national in their character, or admit only of one uniform system of regulation, the failure of congress to exercise that power in any case is an expression of its will that the subject shall be left free from restrictions or impositions upon it by the several states.'

The meaning of the decisions of the supreme court on this question is expressed by William Draper Lewis in his recent instructive work entitled 'The Federal Power over Commerce, and Its Effect on State Action,' (page 123:)

'Whenever the subject effected by state laws is in its nature national, or requires one uniform rule or plan of regulation, then the inaction of congress is evidence to the court of its intention that the commerce in this respect shall be free and untrammeled; but when the subject, from its local nature, does not seem to require a uniform rule of regulation, the inaction of congress is evidence to the court that that body is willing that the states can effect such subjects in the legitimate exercise of their reserved powers.'

In one of the early cases in which this clause of the constitution received careful consideration, (Brown v. Maryland, 12 Wheat. 447,) Chief Justice MARSHALL, in delivering the opinion of the court, used this language:

'What, then, if the just extent of a power to regulate commerce with foreign nations and among the several states? This question was considered in the case of Gibbons v. Ogden, 9 Wheat. 1, in which it was declared to be

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