Lasting Products Co. v. Genovese, 4383

• Decision Date: 13 June 1955
• Docket Number: No. 4383,4383
• Citation: 197 Va. 1,87 S.E.2d 811
• Parties: LASTING PRODUCTS COMPANY, A CORPORATION v. PAUL GENOVESE. Record
• Court: Virginia Supreme Court

Page 811

87 S.E.2d 811

197 Va. 1

LASTING PRODUCTS COMPANY, A CORPORATION v. PAUL GENOVESE.

Record No. 4383.

Supreme Court of Appeals of Virginia

June 13, 1955.

P. B. White and C. Dodson Morrisette, for the plaintiff in error.

Norris E. Halpern, for the defendant in error.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

The Lasting Products Company, a Maryland corporation, instituted this action to recover $2,902.90, balance due on the purchase price of paint sold and delivered in Virginia to Paul Genovese, the defendant. The court sustained defendant's motion to strike plaintiff's evidence and entered judgment on a verdict returned by the jury in obedience to the court's ruling. Plaintiff was awarded this writ of error to review that judgment.

The facts are not controverted. Plaintiff manufactures paint and paint products for sale at its plant in Baltimore. It shipped paint from its manufacturing plant and delivered the same to the defendant in Virginia to be used on two projects in Princess Anne County. Defendant in a cross-complaint admitted receiving the paint and paying $500.00 on the contract price and alleged that he refused to pay the balance because the paint was not as represented and was defective. When it appeared from the testimony introduced by plaintiff that it had not complied with the provisions of Chapter 34 of the Acts of 1950, p. 47, codified as Sections 59-61.1 through 59-61.12, and designated the Virginia Paint Law, defendant took a non-suit of his cross-claim and moved to strike plaintiff's evidence with the result above stated.

The questions presented are: (1) whether the Virginia Paint Law is unconstitutional because it creates an undue burden upon interstate commerce; and (2) if the law is constitutional, did the failure of plaintiff to comply with its provisions bar its recovery.

The purpose of the statute is declared to be 'to prevent deception in the sale of paint, paint oil and turpentine; and to require true labels and labeling for the same. ' Code Section 59-61.1.

Section 59-61.3 declares: 'It shall be unlawful for any person to distribute, sell, or offer for sale within this State or, except with authority of the Commission, to deliver for transportation, or transport in intrastate commerce or between points within this State through any point outside this State any of the following:

'(1) Any paint which is not registered pursuant to the provisions of Sec. 59-61.6 . . .

'(2) Any paint unless it is in the registrant's or the manufacturer's unbroken immediate container and there is affixed to such container, and to the wrapper of the retail package, if there be one, a label bearing

'(a) The name and address of the manufacturer, registrant, or person for whom manufactured;

'(b) The name, brand, or trademark under which said article is sold;

'(c) The net measure or weight of the content subject; and

'(d) An ingredient statement. . . .'

Section 59-61.6 requires that 'the name and address of the manufacturer whose name appears on the label, or the name and address of the person whose name appears on the label if other than a manufacturer, of every paint which is distributed, sold or offered for sale within this State, or delivered for transportation or transported in intrastate commerce or between points within this State through any point outside this State shall be registered annually with the Commissioner upon forms furnished' by him.

Section 59-61.8 makes a violation of any of the provisions of the statute a misdemeanor.

Other provisions authorize the Commissioner of Agriculture to apply to the appropriate court for an injunction to restrain any person from violating any provisions of the Act and for seizure and condemnation of paint repeatedly offered for sale without compliance with the provisions of the Act.

The states, by Article I, Section 8, Clause 3, of the Constitution of the United States, have delegated power to Congress 'to regulate commerce with foreign nations and among the several states. . . . ' There remains in the states no power to adopt any act regulating such commerce in conflict with congressional action, or which creates an undue burden upon interstate shipments. But this does not exclude from the states the power to adopt regulations upon matters of local concern to protect the public health, public morals, public safety, and public convenience, provided such acts are local in their character and affect interstate commerce only incidentally, or as the late Chief Justice Stone said in Parker v. Brown, 317 U.S. 341, at 360, 63 S.Ct. 307, 87 L.ed. 315:

'. . . This Court has repeatedly held that the grant of power to Congress by the Commerce Clause did not wholly withdraw from the states the authority to regulate the commerce with respect to matters of local concern, on which Congress has not spoken. . . . A fortiori there are many subjects and transactions of local concern not themselves interstate commerce or a part of its operations which are within the regulatory and taxing power of the states, so long as state action serves local ends and does not discriminate against the commerce, even though the exercise of those powers may materially affect it. . . . ' See article by Dean Ribble, 'National and State Corporation under the Commerce Clause', 37 Columbia Law Review 41.

The late Chief Justice Hughes, in the Minnesota Rate cases, 230 U.S. 352, 408, 33 S.Ct. 729, 48 L.R.A. (N.S.) 1151, 57 L.ed. 1511, stated that the federal Constitution gave authority to Congress to adequately secure the freedom of commercial intercourse from state control and to provide effective regulation of that intercourse as the national interest may demand, and that in the absence of congressional action there remains in the states the exercise of the power appropriate to their territorial jurisdiction in making provisions for local needs. The state may provide local improvements, create and regulate local facilities and adopt protective measures of a reasonable character in the interest of health, safety, morals and welfare of its people, although interstate commerce may incidentally or indirectly be involved. He expressly states, pp. 402 and 403:

'. . . Our system of government is a practical adjustment by which the National authority as conferred by the Constitution is maintained in its full scope without unnecessary loss of local efficiency. Where the subject is peculiarly one of local concern, and from its nature belongs to the class with which the State appropriately deals in making reasonable provision for local needs, it cannot be regarded as left to the unrestrained will of individuals because Congress has not acted, although it may have such a relation to interstate commerce as to be within the reach of the Federal power. . . .

'State inspection laws and statutes designed to safeguard the inhabitants of a State from fraud and imposition are valid when reasonable in their requirements and not in conflict with Federal rules, although they may affect interstate commerce in their relation to articles prepared for export or by including incidentally those brought into the State and held for sale in the original imported packages. . . .'

The mere fact that the Virginia Paint Law declares that its purpose is to prevent deception and fraud does not of itself bring it within the purview of the police power. It must appear that there is some real and substantial connection between the declared purpose of the law and the actual provisions thereof and that such provisions do in some appreciable and appropriate manner tend toward the accomplishment of the object for which the power is exercised. Real Silk Hosiery Mills v. City of Portland, and others, 268 U.S. 325, 45 S.Ct. 525, 69 L.ed 982; Brimmer v. Rebman, 138 U.S. 78, 11 S.Ct. 213, 34 L.ed 862; 10 Michie's Jur., Interstate Commerce, Sec. 6, p. 634; 10 Am. Jur., Commerce, Sec. 94, p. 86.

A North Carolina statute requiring that every bag, barrel, or other package of commercial fertilizer offered for sale in the State should contain a label truly describing its chemical composition, which must comply with a certain formula, and charging 25cents per ton to meet the cost of inspection, was upheld. Patapsco Guano Co. v. North Carolina, 171 U.S. 345, 18 S.Ct. 862, 43 L.ed. 191.

An Indiana statute forbidding the sale in original package of concentrated feeding stuff prior to the...