Jewett Bros. v. Smail

• Decision Date: 29 November 1905
• Citation: 20 S.D. 232,105 N.W. 738
• Parties: JEWETT BROS. & JEWETT v. SMAIL, Food and Dairy Com'r.
• Court: South Dakota Supreme Court

20 S.D. 232

105 N.W. 738

JEWETT BROS. & JEWETT

v.SMAIL, Food and Dairy Com'r.^a4

Supreme Court of South Dakota.

Nov. 29, 1905.

Appeal from Circuit Court, Minnehaha County.

Action by Jewett Bros. and Jewett, a corporation, against E. W. Smail, food and dairy commissioner of the state of South Dakota. From an order granting a temporary injunction, defendant appeals. Affirmed.Philo Hall, Atty. Gen., for appellant. Bailey & Voorhees, for respondent.

HANEY, J.

The purpose of this action is to perpetually enjoin the enforcement of section 11, c. 114, p. 163, Laws 1905, on the ground that it conflicts with certain provisions of the federal Constitution. The appeal is from an order granting a temporary injunction based on the complaint and certain affidavits read by the respective parties. In this court the ultimate issue, the constitutionality of the statute, was ably and exhaustively argued, notwithstanding the only question presented by this appeal is whether the learned circuit court abused its discretion. As there was ground for controversy concerning the validity of the statute, though courts should be slow to enjoin the performance of official duties prescribed by presumptivelyvalid statutes, in view of all the facts and circumstances disclosed by the complaint and affidavits, this court cannot conclude that there was an abuse of discretion in issuing a restraining order pending litigation, and such order should be affirmed. Ordinarily nothing more should be considered on such an apppeal than manifest abuse of discretion, but as the question will necessarily arise in the court below, as the objections to the statute have been argued, and as all parties desire a speedy termination of the litigation, it has been deemed proper to determine at this time whether the complaint states facts sufficient to constitute a cause of action. Its allegations are substantially as follows: That the defendant is the food and dairy commissioner of this state; that the plaintiff is a corporation, created by and existing under the laws of this state, engaged in the wholesale grocery business at Sioux Falls; that it has been so engaged for about 12 years; that during such time the plaintiff has done an extensive and profitable business in this and other states; that the plaintiff purchases the groceries and other articles in which it deals at various places in the United States outside of this state and in foreign countries; that, aside from food products purchased by it from one concern in this state, to wit, the Manchester Biscuit Company, all the articles in which it deals are purchased in states other than this and in foreign countries and shipped into this state for sale to retail merchants in this and other states; that all articles in which it deals and which it has purchased from the Manchester Biscuit Company comply in all respects, as to labels, with the provisions of section 11, c. 114, p. 163, Laws 1905; that the provisions of said section are in violation of section 8, art. 1, and section 1, art. 14, of the Constitution of the United States; that for many years the plaintiff has sold the food and food products in which it deals under certain private brands adopted by it, the principal being its “High Grade” brand and its “Guaranteed” brand, and that the food products and other articles sent out under said brands from year to year have been continually of a uniform grade and quality, and that said brands have constituted and still constitute the plaintiff's guaranty of the purity, grade, and quality of the articles sold under such brands; that the sale of articles under such brands has been established throughout the state, and that said brands possess a commercial value exceeding the sum of $25,000; that the plaintiff now has on hand a stock of groceries, foods, and food products of a value exceeding $100,000, and that the value of the good will of its business in this state exceeds the sum of $100,000; that under the customs and laws adopted and recognized for the carrying on of the wholesale and retail grocery business throughout the civilized world the name and address of the manufacturer, canner, or packer of various articles of food and food products rarely appears upon the box or other package containing any given articles, but that articles of food and food products are in accordance with a general custom, sold by the manufacturer, canner, packer, or other producer, through brokers or warehousemen, to wholesalers by grade, quality, and variety, and that they are then branded according to grade, quality, and variety by the wholesale merchant, and by him distributed under the guaranty of his own private brand to the retail trade; “that it would be impossible to carry on successfully the wholesale grocery business in the state of South Dakota in compliance with the provisions of section 11, c. 114, p. 163, Laws 1905, without first revolutionizing the rules and customs under which the manufacturing, packing, canning, and wholesaling of food and food products is conducted throughout the civilized world”; that after the articles of food and food products prepared or manufactured, as aforesaid, have been purchased in other states and countries by the plaintiff and the other wholesale grocers doing business in this state, and are shipped into this state, the same are sold by the plaintiff in the original packages in which the same come into this state; that on or about June 1, 1905, the defendant notified the retail grocers of this state that all goods purchased or shipped into the state on and after July 1, 1905, must conform strictly to the requirements of the law then in force, both as to quality and labeling, and that food shipped into this state not labeled as required under the provisions of the law is subject to confiscation and that every box, can, carton, or other container must bear the name of the manufacturer and the location of the factory; that since July 1, 1905, the defendant has notified wholesale grocers doing business in this state that they must immediately forward labels for all goods sold in the state since July 1, 1905, which are lacking in respect to the name and address of the manufacturer appearing on the labels, and that, failing to do this, all goods will be ordered shipped back by the retail to the wholesale dealer from whom purchased, and that a repetition will be followed by prosecution; that section 11, c. 114, p. 163, Laws 1905, cannot be violated with impunity and that the defendant will resort to prosecutions to enforce the same; that the defendant is now about to institute prosecutions against the plaintiff and other wholesale grocers of this state for violating the provisions of said section; that, if the defendant proceeds with confiscation and prosecutions for the violation of said section, plaintiff's business will be seriously injured, if not destroyed, the value of plaintiff's private brands will be destroyed, the good will of the plaintiff's business will be seriously impaired, if not wholly destroyed, and the plaintiff will suffer great loss in disposing of its stock of groceries, foods, and food products, and plaintiff will also become involved in a multiplicity of suits both with the defendant and with other authorities of this state, and also with a large percentage of its more than 1,500 customers in this state; that the defendant is wholly unable to respond financially in the damages which would be caused to the plaintiff; that the plaintiff would thereby suffer irreparable injury; and that it has no adequate remedy at law.

Assuming the well-pleaded allegations of the complaint to be true, it clearly appears that the plaintiff has such an interest in the enforcement of the statute as entitles it to attack its validity, and that a court of equity has authority to enjoin its enforcement, if it be unconstitutional, for the purpose of avoiding a multiplicity of suits, and because the plaintiff has no adequate remedy at law. The Supreme Court of the United States is, of course, the one ultimate judicial authority on all questions of interstate and foreign commerce. The difficulty of reconciling all its decisions upon the...