Parrott & Co. v. Benson

• Decision Date: 10 January 1921
• Docket Number: 16224.
• Citation: 114 Wash. 117,194 P. 986
• Court: Washington Supreme Court
• Parties: PARROTT & CO. v. BENSON et al.

194 P. 986

114 Wash. 117

PARROTT & CO. v. BENSON et al.

No. 16224.

Supreme Court of Washington

January 10, 1921

Department 2.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Action by Parrott & Co. against E. F. Benson and another. Judgment for plaintiff, and defendants appeal. Reversed, with directions to dismiss the action.

L. L Thompson, of Olympia, and Frank P. Christensen, of Olympia for appellants.

Kerr McCord & Ivey, of Seattle, for respondent.

Poe &amp Falknor, of Seattle, amici curiae.

TOLMAN, J.

The respondent, as plaintiff below, brought this action to restrain appellant Benson, as commissioner of agriculture for this state, and appellant Adams, as chief of the division of the department of agriculture having direct charge of such matters, from enforcing the provisions of chapter 120 of the Laws of 1919, and chapter 94 of the Laws of 1915. The trial court reached the conclusion that a portion of subdivision (c) of section 1 of the act of 1915 was unconstitutional, and accordingly entered a decree perpetually restraining appellants and their successors in office from undertaking to enforce that portion of the act of 1915 held to be unconstitutional. This being an appeal by the defendants only, the 1919 act is not now in question, and we are called upon here to consider nothing beyond that portion of the act of 1915 held by the trial court to be unconstitutional. The act in question is entitled:

'An act relating to and regulating the sale of eggs providing for the classification, labeling and marking thereof and providing penalties for violation thereof.'

Section 1 of the act is here set out in full, and that portion thereof found to be objectionable by the trial court is italicized, so that the particular features thought to be unconstitutional may be shown in their relation to the entire section:

'Section 1. For the purposes of this act, eggs shall be classified and branded as follows:

'(a) Code storage eggs shall include all eggs which have been in cold storage for more than ninety days, and before being offered for sale shall be branded or stamped with the words 'storage.'

'(b) Preserved eggs shall include eggs in which the natural deterioration has been prevented or retarded by any means, process or treatment whatsoever, and before being offered for sale shall be branded or stamped with the word 'preserved.'

'(c) All eggs imported into the state of Washington from foreign countries shall be sold as such. The case or container in which they are shipped shall have the words 'foreign eggs' displayed thereon in letters two inches high. All retailers of said eggs shall sell them from the container in which he received them and shall inform each purchaser that said eggs are foreign eggs. All restaurants, hotels, cafés, bakeries and confectioners using or serving foreign eggs must place a sign in letters not less than four (4) inches in size in some conspicuous place where the consumer entering their place of business can see it, to read 'We use foreign eggs.'

'(d) Incubated eggs shall include all eggs which have been subjected to incubation whether natural or artificial for more than forty-eight hours and it shall be unlawful to expose or offer for sale or sell incubated eggs.'

The objections to the act, urged below and here, are that it violates the provisions of the federal Constitution (article 1, § 8) which places the power exclusively in Congress to regulate commerce with foreign nations and among the several states, and that it is an unreasonable restriction, an invalid exercise of the police power, and an unjust discrimination in favor of the citizens of this state.

Two similar cases were relied on and followed by the trial court. Ex parte Foley, 172 Cal. 744, 158 P. 1034, Ann. Cas. 1918A, 180, decided by the Supreme Court of California, and State v. Jacobson, 80 Or. 648, 157 P. 1108, L. R. A. 1916E, 1180, decided by the Supreme Court of Oregon, at about the same time. It appears that both the California and Oregon statutes there under consideration purport to deal only with imported eggs, while our statute by its terms covers all classes of eggs, but we place no special reliance upon that difference. The California case is reasoned upon the theory that the act does not protect the consumer from ignorantly purchasing stale or unwholesome eggs, since eggs not imported and not required to be branded, and whose qualities the law does not require to be made known, may be still more stale and unwholesome; that imported eggs are not necessarily unwholesome or stale, and that therefore the act was not a valid exercise of the police power to prevent imposition and fraud upon the egg-purchasing and egg-consuming public. The Oregon case is reasoned almost wholly upon the theory that the act there involved was an attempt to regulate foreign commerce in violation of the federal Constitution, and it is assumed, rather than reasoned, that it was not thereby intended to prevent the sale of impure or unwholesome food.

We find ourselves unable to agree with either view. We are already committed to the doctrine that the police power includes within its scope, not only the...