State v. Butterfield Live Stock Co.

• Decision Date: 28 December 1909
• Parties: STATE, Respondent, v. THE BUTTERFIELD LIVESTOCK COMPANY, LTD., a Corporation, Appellant
• Court: Idaho Supreme Court

106 P. 455

17 Idaho 441

STATE, Respondent, v. THE BUTTERFIELD LIVESTOCK COMPANY, LTD., a Corporation, Appellant

Supreme Court of Idaho

December 28, 1909

CONSTITUTIONAL LAW-INTERSTATE COMMERCE-INSPECTION LAWS-LICENSE FEE-TAXATION-DISCRIMINATION AGAINST PROPERTY OF ANOTHER STATE.

1. The federal constitution reserves to the states the power to pass inspection laws and to lay imposts and duties upon imports or exports necessary for executing and carrying into effect such inspection laws.

2. A state, however, cannot, under the guise of exercising its police power, enact inspection laws which burden foreign or interstate commerce or impose upon property or products brought into a state from another state burdens or taxes more onerous than are imposed upon like property or products of the state enacting such legislation.

3. A statute with the title, "An act to provide for the payment of a grazing license fee on sheep entering the state of Idaho from other states and territories, and providing a penalty for the violation thereof," which in the body of the act requires all persons, who bring or cause to be brought sheep from any other state or territory within the state of Idaho, to pay a grazing fee of five cents per head is not an inspection law but is a discriminatory tax against property of another state, and an undue interference with interstate commerce and is unconstitutional and void.

4. Such statute cannot be construed into an inspection law by reason of the fact that the fund realized from the payment of the grazing fee is paid into the livestock sanitary fund, out of which the expenses and costs are paid for the enforcement of the laws of the state regulating the sanitary and healthful condition of livestock, where no like fee is required to be paid upon livestock produced within the state and no inspection required under the provisions of said act, or any duty imposed upon those whose duty it is to enforce the livestock laws of the state.

(Syllabus by the court.)

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed L. Bryan, Judge.

An action to recover the grazing license fee upon sheep brought into the state from another state. Judgment for plaintiff. Defendant appeals. Reversed.

Judgment of the lower court reversed, and the trial court directed to sustain the demurrer. Costs awarded to appellant.

Frank Harris, for Appellant.

"When the subject is national and admits of only one plan of regulation, the power of Congress is exclusive, and no part can be exercised by the states, as is the regulation of foreign commerce and commerce among the states; in such cases the states cannot interfere by additional or auxiliary legislation." (Desty's F. Const. (1887), p. 70; note to Gloucester Ferry Co. v. Pennsylvania, 114 U.S 196, 5 S.Ct. 826, 29 L. ed. 158, and cases there cited; Phila. & M. S. S. Co. v. Pennsylvania, 122 U.S. 348 7 S.Ct. 1118, 30 L. ed. 1200; State v. Duckworth, 5 Idaho 642, 95 Am. St. 199, 51 P. 456, 39 L. R. A. 365.)

"A state may lay a tax on imports to pay for services performed in inspecting the articles, if passed in good faith and not for the object of raising revenue." (Desty's F. Const., supra, p. 189.)

If the act in question were intended as an inspection law, the amount of tax that could be imposed could not exceed the amount "absolutely necessary for executing such law." (Passenger Cases, 7 How. 401, 12 L. ed. 751; State v. S. S. Constitution, 42 Cal. 587, 10 Am. Rep. 303.)

"The federal constitution forbids the several states to discriminate in any way against the persons or property of other states or against the use of the products of other states, even after they have become incorporated with the mass of property of the state, or against the sale within the state, either by requiring a license for the sale on more onerous terms and requirements than are imposed on domestic products, or in other ways, or against persons." (7 Cyc. 423, and notes; Guy v. Baltimore, 100 U.S. 434-439, 25 L. ed. 743; Minnesota v. Barber, 136 U.S. 313, 10 S.Ct. 862, 34 L. ed. 455; Peete v. Morgan, 19 Wall. 581, 22 L. ed. 201; Welton v. Missouri, 91 U.S. 275, 23 L. ed. 347; Henderson v. Wickham, 92 U.S. 259, 23 L. ed. 543; Foster v. Master, etc., 94 U.S. 246, 24 L. ed. 122; Leisy v. Harden, 135 U.S. 100, 10 S.Ct. 681, 34 L. ed. 128; Harmon v. City of Chicago, 147 U.S. 396, 13 S.Ct. 306, 37 L. ed. 216; Bridge Co. v. Kentucky, 154 U.S. 204, 14 S.Ct. 1087, 38 L. ed. 962; Austin v. Tenn., 179 U.S. 343, 21 S.Ct. 132, 45 L. ed. 224; McNeill v. So. R. Co., 202 U.S. 544, 26 S.Ct. 722, 50 L. ed. 1142; Farris v. Henderson, 1 Okl. 384, 33 P. 380; Carson River L. Co. v. Patterson, 33 Cal. 334; People v. Raymond, 34 Cal. 492; Sipe v. Murphy, 49 Ohio St. 536, 31 N.E. 884, 17 L. R. A., N. S., 184; see notes on Gibbons v. Ogden, Rose's Notes on U.S. Rep. 213, 242.)

Richards & Haga, and J. L. Richards, for Respondent.

By reference to such sections of the Revised Codes as sec. 1153, providing for a sanitary board; sec. 1158, providing for state veterinary surgeon and livestock inspector; sec. 1176, providing for treatment of diseased animals; sec. 1184, providing restriction and importation of livestock; sec. 1188, providing for inspection of sheep; sec. 1255, providing for a record of slaughtered cattle; sec. 1258, providing for auctioneer's record; and the law of 1909, providing for notice of intended bringing of sheep into the state, from whence they came, etc., it will be seen that to arrive at the intent and purpose of the legislature and to determine whether any of these provisions violate the fundamental or constitutional law, national or state, they should be construed together. (Noble v. Bragaw, 12 Idaho 275, 85 P. 903; Territory v. R. Co., 12 N. M. 425, 78 P. 74; United States v. Freeman, 3 How. 566, 11 L. ed. 724.)

"The terms 'imports' and 'exports' apply only to articles imported from foreign countries or exported to them. The inhibition imposed is the laying of duties on imports from foreign countries and not on such as came from one state to another." (Patapsco Guano Co. v. Board of Agr., 171 U.S. 348, 18 S.Ct. 862, 43 L. ed. 193; Pittsburg & S. Coal Co. v. Louisiana, 156 U.S. 600, 15 S.Ct. 459, 39 L. ed. 549; New Mexico v. Denver & R. G. Co., 203 U.S. 49, 27 S.Ct. 1, 51 L. ed. 86; Woodruff v. Parham, 8 Wall. (U.S.) 123, 19 L. ed. 384; Am. Steel & W. Co. v. Speed, 192 U.S. 500, 24 S.Ct. 365, 48 L. ed. 546.)

"A state may make valid enactments in the exercise of its legislative power to promote the welfare and convenience of its citizens, although in their operation they may have an effect upon interstate commerce." (8 F. Stat. Ann. 393; Penn. R. Co. v. Hughes, 191 U.S. 488, 24 S.Ct. 132, 48 L. ed. 272; In re Lebolt, 77 F. 588; Kohn v. Melcher, 29 F. 435; Sherlock v. Alling, 93 U.S. 103, 23 L. ed. 819; Austin v. Tennessee, 179 U.S. 349, 21 S.Ct. 132, 45 L. ed. 224.)

If the fee allowed in this case by the state law is to be regarded as in effect an impost or duty on imports or exports, still if the law is really an inspection law, the duty must stand until Congress shall see fit to alter it. The federal power cannot interfere with it on account of supposed excessiveness of fees. (Neilson v. Garza, 2 Woods, 287, F. Cas. No. 10,091; Patapsco Guano Co. v. Board of Agr., supra; Turner v. Maryland, 107 U.S. 38, 2 S.Ct. 44, 27 L. ed. 370; Missouri K. & T. R. Co. v. Haber, 169 U.S. 626, 18 S.Ct. 488, 42 L. ed. 883.)

Where there is no denial of any rights and privileges to citizens of other states which are accorded to citizens of Idaho, the law does not violate these constitutional provisions. (Kimmish v. Ball, 129 U.S. 217, 9 S.Ct. 277, 32 L. ed. 697; State v. Rasmussen, 7 Idaho 9, 97 Am. St. 234, 59 P. 933, 52 L. R. A. 78; Rasmussen v. Idaho, 181 U.S. 198, 21 S.Ct. 594, 45 L. ed. 820.)

Taxes in the ordinary sense does not refer to a charge merely incidental to the exercise of police power. (City of Oil City v. Oil City L. Co., 151 Pa. 454, 31 Am. St. 770, 25 A. 124.)

Neither does a tax in the ordinary sense refer to duties on imports. (United States v. Fifty-Nine Dem., 39 F. 402; Territory v. R. Co., 12 N. M. 425, 78 P. 75.) The constitutional provision of this state in regard to equality and uniformity has reference solely to taxation, and does not apply to impositions made under police power of the state. (State v. Doherty, 3 Idaho 384, 29 P. 855; State v. Union Cent. L. Ins. Co., 8 Idaho 240, 67 P. 647; Wright v. Stinson, 16 Wash. 368, 47 P. 761; Kelley v. Rhoades, 7 Wyo. 237, 75 Am. St. 904, 51 P. 593, 39 L. R. A. 594.)

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

This action was brought by the state, respondent, against the defendant, appellant, to recover the sum of $ 265, alleged to be due under the provisions of an act approved March 11, 1909 (Laws of 1909, p. 72), as follows:

"An act to provide for the payment of a grazing license fee on sheep entering the state of Idaho from other states and territories, and providing a penalty for the violation thereof.

"Sec 1. Any person, company or corporation attempting to bring, or causing to be brought, from any other State or Territory any sheep into the State of Idaho in any manner, except by shipping the same through the State by railroad train, shall before crossing the State line, notify the State Live Stock Inspector of the district to be entered or the State Veterinary Surgeon, of such proposed action, which notice shall set forth the number of sheep, the brand thereon, the locality from which such sheep came and through which they have been driven, and accompanying such notice with a grazing fee equal to the sum of five cents (5c) per head for the total number...