State v. Jacobson

• Decision Date: 06 June 1916
• Citation: 157 P. 1108,80 Or. 648
• Parties: STATE v. JACOBSON.
• Court: Oregon Supreme Court

157 P. 1108

80 Or. 648

STATE v. JACOBSON.

Supreme Court of Oregon

June 6, 1916

Department 2.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

J. C Jacobson was convicted of a violation of the statute regulating the sale of food, etc., and he appeals. Reversed and action dismissed.

The defendant was prosecuted and convicted for a violation of section 6 of chapter 272 of the General Laws of Oregon for 1915, and appeals.

The title of the act reads thus:

"An act to regulate the sale of eggs that have been shipped or imported into the state of Oregon from any foreign country requiring the marking of the containers thereof by all persons selling or offering the same for sale; to regulate the sale of food and drink, the ingredients of which are in part composed of eggs shipped or imported into the state of Oregon, from any foreign country, requiring marking of all bills of fare or menu cards placed on tables or counters in establishments, preparing, serving or offering for sale any such food or drink; to regulate the placing of cards in all packages or wrappers inclosing manufactured food products before being sold or offered for sale, which are composed wholly or in part of eggs shipped or imported into the state of Oregon from any foreign country, requiring importers of foreign eggs to report shipments to dairy and food commissioner, and fixing penalties for the violation of any of the provisions thereof."

Section 6 is as follows:

"Every person, firm, company or corporation preparing, serving, selling or offering for sale any food or drink, the ingredients of which are in part composed of eggs shipped or imported into the state of Oregon from any foreign country shall display in a conspicuous place in his or their public salesroom, a sign which shall not be less than six inches in height and three feet in length, bearing the words 'Imported Eggs Used Here' in black-faced letters not less than three inches in height and one-quarter of an inch in width, upon white ground."

The gist of the complaint is that:

The defendant, J. C. Jacobson, did unlawfully offer for sale and sell in a public salesroom "certain food, to wit, a cake, the ingredients of which said cake were then and there in part composed of eggs shipped and imported into the said state of Oregon from said foreign country, to wit, China, and did then and there unlawfully and willfully fail and neglect to display in a conspicuous place or any place in said public salesroom any sign whatsoever bearing the words, 'Imported Eggs Used Here."'

R. R. Johnson, of Portland (Winter, Wilson & Johnson, of Portland, on the brief), for appellant. W. H. Evans, Dist. Atty., and George Mowry, Deputy Dist. Atty., both of Portland, for the State.

BEAN, J. (after stating the facts as above).

In order to avoid a misunderstanding and as a preface, it is stated that the writer believes that the intention of our Legislature in attempting to protect the industries of our commonwealth is highly commendable. That there is a crying need for such legislation may be admitted. The inquiry here is: Where does the power to enact laws designed for such a beneficent purpose reside?

The courts will not declare a statute invalid unless its conflict with the Constitution is plain. Any reasonable doubt will be resolved in favor of a legislative enactment, and the act sustained. Cooley's Const. Lim. (7th Ed.) 252, 253; State v. Schluer, 59 Or. 18, 35, 115 P. 1057.

Whether a statute is unconstitutional or not is always a question of power; that is, a question whether the Legislature in the particular case, in respect to the subject-matter of the act, the manner in which its object is to be accomplished, and the mode of enacting it, has kept within the constitutional limits and observed the constitutional conditions. In any case in which this question is answered in the affirmative the courts are not at liberty to inquire into the proper exercise of the power. They must assume that legislative discretion has been properly exercised. Cooley's Const. Lim. (7th Ed.) 257; State v. Bunting, 71 Or. 259, 269, 139 P. 731.

Counsel for defendant contend that the section of the act under which these criminal proceedings were initiated is in contravention of section 8, art. 1, of the United States Constitution, which provides that the Congress of the United States shall have power to regulate commerce with foreign nations, among the several states, and with the Indian tribes, and that the act is void. Counsel for plaintiff claim that the act in question in this case is a police regulation enacted within the legitimate scope of the police power of the state. "Commerce" as used in the above constitutional provision is held to be a term of the largest import. It comprehends intercourse for the purposes of trade in any and all its forms, including the transportation, purchase, sale, and exchange of commodities between the citizens of our country and the citizens or subjects of other countries and between citizens of different states. Welton v. State of Missouri, 91 U.S. 275, 23 L.Ed. 347.

The power granted to the Congress of the United States by this constitutional provision is necessarily exclusive whenever the subjects of it are national in their character or admit only of one uniform system or plan of regulation. Robbins v. Shelby County Tax. Dist., 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694; Walling v. Michigan, 116 U.S. 446, 6 S.Ct. 454, 29 L.Ed. 691; Welton v. Missouri, supra; Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996; Brown v. Houston, 114 U.S. 622, 5 S.Ct. 1091, 29 L.Ed. 257. That portion of commerce with foreign countries and between the states which consists in the transportation and exchange of commodities is of national importance and admits and requires uniformity of regulation. Such commerce is therefore under the exclusive regulatory power of the Congress of the United States. Henderson v. Mayor of New York, 92 U.S. 259, 23 L.Ed. 543; Welton v. Missouri, supra; Chy Lung v. Freeman, 92 U.S. 275, 23 L.Ed. 550.

The section of the statute in the case at bar deals with a recognized article of international commerce, and by its terms places restrictions upon the sale of such commodity. The fact that the basis of the restrictions of that part of the act in question is solely the place from whence the article is shipped to this state, and not the distance that it has been transported, nor the time consumed in such shipment so as to point to the fact that the freshness of the product may perchance be dimmed, or, in other words, the fact that the quality, condition, or purity of the article of food is not the result aimed at by the law leads to the conclusion, it seems to us, that the act is not designed to prevent the sale of impure or unwholesome food, nor to protect the health of the inhabitants of the state. Therefore it does not call into requisition the police power of the state. Shipments of goods for a distance of 2,000 or 3,000 miles from a sister state into the state of Oregon would not be under the restrictions of the act; while such products imported into the state from a foreign country and transported for a much less distance would be subject to the requirements of the law. Foreign products and those of other states are alike under the protection of the Constitution of the United States. Commerce between the state of Oregon and the Dominion of Canada or the empire of Great Britian or with China is upon the same basis as commerce between Oregon and any of the sister states of the Union; for Congress has so declared. If the state of Oregon should provide that no one could sell eggs from Iowa unless he placed in his salesroom a sign, "These Eggs Shipped from Iowa," and should require no label for any other eggs, would any one doubt that such a statute would be invalid? Trade with foreign nations and the state of Oregon must be just as free as between the latter and any sister state. The restriction in the section of the act in question must necessarily interfere with, impede, and obstruct that freedom of transportation and exchange between this nation and foreign countries which such articles would upon their merits otherwise have. This section of the law is beyond the power of state legislation and is void. The Constitution of the United States in the clause known as the "commerce clause" above referred to has granted to Congress the power to regulate commerce with foreign nations and between the states. Since the...