Turner v. State

• Decision Date: 21 January 1881
• Citation: 55 Md. 240
• Parties: HENRY A. TURNER v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

55 Md. 240

HENRY A. TURNER v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

January 21, 1881

APPEAL from the Criminal Court of Baltimore.

Henry A. Turner, a resident of Charles County in 1879, raised a crop of tobacco; of this crop he packed one hogshead, marked the same with his full name and place of residence and shipped it to Baltimore. On 31st August, 1880, this hogshead was exported by him to Bremen, never having been taken to the State tobacco warehouse. On 18th September, 1880, after presentment duly made by the Grand Jury in the Criminal Court of Baltimore, an indictment was found against him containing two counts, stated in the opinion of the Court.

To both of these counts demurrers were filed, on the 20th September 1880, overruled by the Court, pro forma, and the traverser fined $300.

The case is brought to this Court by a petition in the nature of a writ of error.

The case was argued before BARTOL, C.J., MILLER, ROBINSON and IRVING, J.

E J. D. Cross and J. K. Cowen, for the appellant.

1st. There is no law requiring a compulsory inspection of tobacco grown in this State, either by the producer who may export it upon his own account, or by a purchaser who may buy for the purpose of exportation.

A grower of tobacco in this State, before exporting the same is not required to take it to the State warehouse for any purpose whatever.

2nd. If this be not so, and a grower of tobacco, before exporting the same, is required to take it to the State warehouse for any other purpose than inspection, and is required to pay certain charges for "outage and storage," then such law is in contravention of the Constitution of the United States.

3rd. No penalty is imposed by any law upon a grower of tobacco who marks the same with his full name and residence, and exports it without taking it to the State warehouse or paying outage or storage.

1. The laws in force regulating the inspection of tobacco are those passed in the years 1872, ch. 36, 1874, ch. 394, and 1878, ch. 386.

The Act of 1872, ch. 36, was intended as a substitute for the Act of 1864, ch. 346, as is shown from a comparison of the two Acts.

It appears from such comparison, that the Act of 1872, ch. 36 was intended to systematize and embrace all the legislation upon the subject of the inspection of tobacco.

A close examination of the sections of the Act of 1872, compared with corresponding sections in the original Act of 1864, as amended by subsequent legislation, demonstrates that the former was intended as a substitute for the latter, and that it is impossible to hold that any of the provisions of the Act of 1864 are now in force.

The two laws cannot be in force, and the latter must necessarily repeal the former. Montell vs. Consolidation Coal Co., 39 Md., 164; Stewart vs. Kahn, 11 Wallace, 502; The United States vs Tynen, 11 Wallace, 92; Sacramento vs. Bird, 15 Cal., 294; Swan vs. Buck, 40 Miss., 268; Weeks vs. Walcott, 15 Gray, 54; Commonwealth vs. Kelliher, 12 Allen, 480.

The Act of 1864, in terms, was part of Art. 4, Code of Public Local Laws, when the Act of 1872, ch. 36, entitled an Act to add a new Article to the Code of Public General Laws regulating the inspection of tobacco, was passed, and went off the statute book with its associates.

Section 41 of that Act, as amended by 1870, ch. 291, as sec. 535, Code of Public Local Laws, Art. 4, was the only section providing a penalty for exporting tobacco without inspection. It was the only then existing law forbidding the exportation of tobacco raised in this State, "except in hogsheads, which shall have been inspected, passed and marked agreeably to the provisions of this Act."

The inspection of tobacco grown in this State and exported therefrom, is therefore not compulsory, but voluntary.

The Act of 1872, ch. 36, imposes no penalty. Clearly, then, it was the legislative intent, and so must be construed, that inspection should be optional. No section of 1872, ch. 36, requires that tobacco raised in this State shall be brought to the State warehouses for any purposes whatever.

Section 41, of the Act of 1864, ch. 346, as amended by the Act of 1870, ch. 291, cannot be in force, because it imposed penalties for the doing of acts which are no longer unlawful under the Act of 1872, ch. 36, and required things be done which are now illegal. There is, therefore, no law requiring the compulsory inspection of Maryland grown tobacco, and there is no law prohibiting the exportation of such tobacco from the State without being inspected, passed or marked by State officials. The appellant, therefore, was not required by any law of this State, before exporting his tobacco, to bring the same to the State tobacco warehouses for any purpose whatever.

2. Supposing the Act of 1870, ch. 291, be held to be in force, and in no manner affected by the Act of 1872, it is nevertheless in contravention of Art. 1, secs. 8 and 10, of the Constitution of the United States, so far as it compels growers of tobacco to pay outage and storage charges on tobacco that is not required to be inspected before exporting the same from the State. We admit that the States may pass proper inspection laws, and that such laws may in effect amount to partial regulations of foreign or interstate commerce, or may impose such export duties or imposts as are absolutely necessary to enforce such inspection statutes; but the Act of 1870 levies a duty upon exports and it regulates foreign commerce, and it is not valid as an inspection law. In this case the appellant has complied with the provisions of the law in regard to the marking of his hogshead. He was a grower of tobacco in this State. He packed his tobacco in the county and neighborhood where grown. He marked his hogshead with his name in full, and the place of his residence, and when that was done the law expressly provided that the tobacco so grown and marked could be "exported or carried out of this State without inspection," and likewise provided that while it could be carried out of the State without inspection, it was still subject to the "same charge of outage and storage as in other cases." This law, therefore, expressly provided that the article in question should not be inspected, and after so providing, then required the uninspected article to pay an export duty in the shape of outage and storage. How can such an Act be defended as an inspection law which provides on its very face that the article exported may be carried out of the State without inspection, provided it pays an outage and storage tax. Clintsman vs. Northrop, 8 Cowan, 45, 46; State vs. Fosdick, 21 La. An., 256; Bouvier's Law Dic., """Inspection."

Attention is called to recent and important cases of the Supreme Court where, apparently, the necessary exercise of the police power by States has been held to fall within the inhibition of the Constitution. A State cannot, either by its powers of self-defence in matters of police, or by the reserved power of passing reasonable and adequate inspection laws, impose any burden on commerce. The Cherokee Cattle Cases, 95 United States, 468, 472; Henderson vs. Mayor, &c., of New York, 92 Id., 259; Chy Lung vs. Freeman, et al., 92 Id., 275.

Even discrimination in rates of wharfage at a city wharf, falls under this prohibition. Guy vs. Baltimore, 100 United States, 434.

3. The judgment of the Court below imposing the fine, must in any event be reversed. The penalty referred to in the proviso of section 41 of the Act of 1864, only applies to "any person who shall carry or send out of this State any such tobacco without having it so marked." That is, without having such hogshead marked with the name in full of the owner and the place of his residence. The indictment shows that the hogshead exported by the appellant was "so marked," and hence the appellant could not be subject to the penalty prescribed by section 41. All that he can be required to do is to pay the outage charge, for the non-payment of which no penalty is prescribed by the Act of 1864, or the Act of 1870. The claim, therefore, of the State would be for a simple debt, and that debt can only be recovered in a civil action.

Charles J. M. Gwinn, Attorney-General, for the appellee.

Under the system established by the Public Local Act of 1864, ch. 346, it was unlawful to carry out of the State, in hogsheads, any tobacco raised in the State, except in hogsheads which had been inspected, passed and marked in accordance with the provisions of that Act. The Act required the inspection of the form of each hogshead, as well as its contents. No tobacco was lawful tobacco unless packed in a hogshead of certain prescribed dimensions, to be determined by the inspection of its exterior. No tobacco was merchantable tobacco unless determined to be so by sampling the contents of such hogshead. When the form of the hogshead had been examined, and found to be of the prescribed description, and the full hogshead had been weighed and its gross weight marked and recorded, and when, afterwards, its contents had been sampled, the hogshead was " passed."

When the Act of 1864, ch. 346, was amended by the Act of 1870, ch. 291, a different state of things arose. The grower, or purchaser of tobacco, grown in the county where it was packed, was allowed to carry such tobacco out of the State, or to export it, without having it opened for inspection, provided such tobacco was marked with his name and place of residence. But, under the Act of 1870, ch. 291, the tobacco remained liable to the charge of outage and storage as in other cases.

Tobacco therefore, grown in the county where it was packed, was freed only from those requirements of the Act of 1864, ch. 346, which were incident to the opening of the...