Mueller v. Comm'r of Pub. Health

• Decision Date: 14 November 1940
• Citation: 30 N.E.2d 217,307 Mass. 270
• Parties: MUELLER et al. v. COMMISSIONER OF PUBLIC HEALTH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 270

30 N.E.2d 217

MUELLER et al.

v.COMMISSIONER OF PUBLIC HEALTH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 14, 1940.

Case Reserved from Supreme Judicial Court, Suffolk County; James J. Ronan, Justice.

Suit in equity by J. Fred Mueller and others against the Commissioner of Public Health and another to enjoin the enforcement of the provisions of G.L. (Ter.Ed.) c. 94, § 270D, as added by St.1939, c. 351, entitled ‘An Act further regulating the sale within the commonwealth of articles of bedding and of upholstered furniture’. The suit was reserved by the single justice on the bill, answer, and agreed facts for the consideration and determination of the full court.

Decree entered enjoining defendants.

Argued before FIELD, C. J., and LUMMUS, DOLAN, COX, and RONAN, JJ.

C. E. Wyzanski, Jr., of Boston, and S. F. Dunn, of Grand Rapids, Mich., for plaintiff.

E. O. Proctor, Asst. Atty. Gen., for defendant.

COX, Justice.

This is a bill in equity brought by a Michigan copartnership having no usual place of business in this Commonwealth and no partner who resides here, against the commissioner of public health and the Attorney General to enjoin against the enforcement of the provisions of G.L. (Ter.Ed.) c. 94, § 270D, inserted by St.1939, c. 351, entitled ‘An Act further regulating the sale within the commonwealth of articles of bedding and of upholstered furniture.’ ^* The suit was reserved by the single justice upon the bill, answer, and agreed facts for the consideration and determination of the full court. G.L. (Ter.Ed.) c. 211, § 6. The constitutionality of the statute is challenged.

From the agreed facts it appears that the copartnership manufactures upholstered furniture in its factory in Michigan and that for more than forty-eight years it has sold such furniture to retail furniture dealers located in this Commonwealth, although no contracts for such sales are at any time entered into here. The copartnership is in active competition with manufacturers of similar furniture located here and elsewhere, and any interruption of its customary dealings with local retailers would result in serious and lasting damage to its business. During the forty-eight years that it has done business here, the copartnership and its predecessors have built up an important ‘clientele’ and have acquired good will of great value among local retail furniture dealers and consumers. Some of the upholstered furniture that is sold in this Commonwealth is manufactured here and some in other States, and some of the manufacturers whose factories are located outside the Commonwealth maintain usual places of business here. The copartnership has not applied for, nor been granted, any permit under the statute in question and does not intend to apply, although it is subject to the provisions of the statute if they are constitutional. The department of public health (hereinafter referred to as the department) has not issued, and does not believe it has authority to issue, any regulations under the statute. It has automatically issued permits under the statute to any ‘foreign’ manufacturer of upholstered furniture who has made application and paid the required fee. It has not made, and does not intend to make, a preliminary examination of the business of any ‘foreign’ manufacturer who is subject to the provisions of the statute, or of his furniture, as a condition precedent to the issuance of a permit. No examination is made of factories located outside the State before or after permits are issued to the manufacturers, and a prospective licensee is not required to submit specimens of furniture to the department for examination before a license is issued. The department never examines upholstered furniture manufactured in other States prior to the time it is offered here by a wholesaler or retailer. The department makes the same examination of furniture offered for sale by a wholesaler or retailer when it has been manufactured here as when it has been manufactured elsewhere. The department interprets the statute as providing that in cases where a prospective licensee has had his permit revoked, he is entitled to secure a new permit immediately upon the payment of the same fee that is required for the original permit, although the department retains the right to revoke the new permit upon further violation of ‘pertinent’ provisions of §§ 270-277, inclusive, of G.L. (Ter.Ed.) c. 94.

Upon the basis of experience during the five months prior to March 9, 1940, and upon the basis of estimates for the future, the department, in addition to what it would have spent had this statute not been enacted, will expend about $1,500 annually to meet the additional cost involved in enforcing it, and it will spend annually in connection with this and other statutes relating to upholstered furniture and bedding an amount not exceeding $6,500. There are several hundred different manufacturers residing without the Commonwealth and having no usual place of business here who manufacture upholstered furniture and ship it to this Commonwealth. The amount reasonably expected to be collected under the provisions of the statute, once it is in full operation, is in excess of $20,000 annually, and in the period from October 10, 1939, to February 23, 1940, before any attempt had been made vigorously to enforce it, $8,850 had been collected from foreign corporations and nonresidents ‘who were forced to comply with its provisions.’ Revenues received for permits under this statute from foreign manufacturers of upholstered furniture are not earmarked for any specific purpose, but are commingled with the general funds of the Commonwealth. The defendants, who are severally charged with administering and enforcing the provisions of the statute, are threatening to enforce its provisions against all retail dealers in the Commonwealth, including those who have dealt with the copartnership for many years, and the defendant commissioner has compiled and published a list of ‘foreign’ manufacturers of upholstered furniture who have obtained permits under the statute and has circulated such a list among the local retail dealers. This list does not contain the name of the copartnership.

The defendants, in their brief, expressly state that no question is raised as to the plaintiffs' right to maintain this suit to determine the constitutionality of the statute. Waiver by the parties cannot confer jurisdiction over a cause where none exists, and it is the duty of the court to consider such a point on its own motion. Warner v. Mayor of Taunton, 253 Mass. 116, 118, 148 N.E. 377;Golden v. Crawshaw, 302 Mass. 343, 19 N.E.2d 67. We are of opinion, however, that the court has jurisdiction. As was said in Criscuolo v. Department of Public Utilities, 302 Mass. 438, at page 440, 19 N.E.2d 708, 709: ‘It is true that a bill in equity will lie to restrain public officers from inflicting damage upon the business or other property of a plaintiff under color of a statute or ordinance which is unconstitutional or otherwise void and so can afford no protection [see cases cited]. So it has been held that equity will enjoin the enforcement of burdensome State restrictions upon interstate commerce. Western Union Telegraph Co. v. Andrews, 216 U.S. 165, 30 S.Ct. 286, 54 L.Ed. 430. See Terrace v. Thompson, 263 U.S. 197, 214, 44 S.Ct. 15, 68 L.Ed. 255.’ Slome v. Chief of Police of Fitchburg, Mass., 23 N.E.2d 133. The court has jurisdiction of the subject matter in dispute and no objection has been made that the plaintiffs have a complete, adequate and plain remedy at law. See First Congregational Society in Raynham v. Trustees of Ministerial Fund, 23 Pick. 148, 153;Hampden National Bank v. Hampden Railroad Corp., 246 Mass. 404, 408, 141 N.E. 107. Furthermore, it is by no means certain that the plaintiffs have an adequate remedy at law. Cook v. Boston, 9 Allen 393;Emery v. Lowell, 127 Mass. 138;Brown v. Nahant, 213 Mass. 271, 100 N.E. 550;Howes Brothers Co. v. Unemployment Compensation Commission, 296 Mass. 275, 282, 5 N.E.2d 720;Bourjois, Inc. v. Chapman, 301 U.S. 183, 57 S.Ct. 691, 81 L.Ed. 1027;Hale v. Bimco Trading, Inc., 306 U.S. 375, 59 S.Ct. 526, 83 L.Ed. 771. See Marconi Wireless Telegraph Co. v. Commonwealth, 218 Mass. 558, 562, 106 N.E. 310, Ann.Cas.1916C, 214;Criscuolo v. Department of Public Utilities, 302 Mass. 438, 19 N.E.2d 708. The plaintiffs have a direct interest in the subject matter of the suit, and we think it sufficiently appears that damage to their business is threatened under such peculiar circumstances as to give the court jurisdiction. Beekman v. Marsters, 195 Mass. 205, 80 N.E. 817, 11 L.R.A.,N.S., 201, 122 Am.St.Rep. 232,11 Ann.Cas. 332;Davis v. New England Railway Publishing Co., 203 Mass. 470, 89 N.E. 565, 25 L.R.A.,N.S., 1024, 133 Am.St.Rep. 318;Lawrence Trust Co. v. Sun-American Publishing Co., 245 Mass. 262, 139 N.E. 655;Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254, 27 A.L.R. 375;Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468.

We are of opinion that the statute in question is in violation of art. 1, § 8, of the Federal Constitution, in that it lays an unreasonable burden on interstate commerce. When the statute was enacted in 1939, said c. 94 already contained provisions relative to the manufacture and sale of articles of bedding or upholstered furniture. Briefly, they required that the articles be marked so as to disclose their contents or component parts; prohibited the use of certain materials; provided for the licensing and regulation of establishments for the sterilization of feathers and other material; and contained provisions for enforcement. See G.L.(Ter.Ed.) c. 94, §§ 270 to 277, inclusive, including the amendment to § 270 by St.1937, c. 176, and §§ 270A to 270C, inserted by St. 1935, c. 439, and St.1939, c. 196, § 2. Said § 270, as amended, provided, among other things, that the...