Welch v. Nelson

• Decision Date: 22 November 1915
• Docket Number: 805
• Citation: 152 P. 788,23 Wyo. 409
• Parties: WELCH v. NELSON ET AL
• Court: Wyoming Supreme Court

152 P. 788

23 Wyo. 409

WELCH v. NELSON ET AL

No. 805

Supreme Court of Wyoming

November 22, 1915

ERROR to the District Court, Albany County; HON. V. J. TIDBALL Judge.

Action by E. S. Welch against Aven Nelson et al., constituting the State Board of Horticulture. The plaintiff sought to enjoin the Board from interference with his business as a non-resident dealer in nursery stock, asserting his right to make sales in the state after procuring the license and giving the bond required by statute. From an order sustaining a demurrer to his petition, plaintiff brings error.

Affirmed.

Johnston & Coleman, for plaintiff in error.

Compiled Statutes 1910, Sections 3004, 3005 and 3006, are in conflict with the commerce clause of the Federal Constitution; the sections cannot be upheld as police regulations for the reason that inspection, fumigation and destruction of diseased nursery stock and fruit trees is provided for by Sections 2992, 2996 and 2999, Comp. Stats. 1910, where inspection fees are provided for. The sales were orders taken for future delivery by shipments from another state. The statute requiring a license fee and a bond is therefore void as to foreign nursery stock, as being a burden upon interstate commerce and an impost upon imports upon which Congress has exclusive control. (Brown v. Maryland, 25 U.S. 419, 6 L.Ed. 678; American Fer. Co. v. Board of Agriculture, 43 F. 609; Robbins v. Taxing District, 30 L.Ed. 695; Corson v. Maryland, 30 L.Ed. 699; Kehrer v. Stewart, 49 L.Ed. 663; Stoutenberg v. Hennick, U.S. 32 L.Ed. 638; Lyng v. Michigan, U.S. 34 L.Ed. 150; Brannon v Titusville, U.S. 38 F. 719; Welton v. Missouri, U.S. 23 L.Ed. 347; Leloup v. Mobile, U.S. 32 L.Ed. 311; Crutcher v. Kentucky, U.S. 35 L.Ed. 649.) The foregoing are all federal decisions clearly in point. (See also In re Wilson (N. M.), 60 P. 73, a state decision, and Dozer v. Alabama, 218 U.S. 124; Ames v. People, 55 P. 725; State v. Glosby, 97 P. 735; Smith v. Farr, 104 P. 401; Eaton v. People, 104 P. 407; Wilcox v. People, 104 P. 408; Leonard v. Reed, 104 P. 411; Ex Parte Loeb, 72 F. 657; Asher v. Texas, 128 U.S. 129; McCoy v. California, 136 U.S. 124; State of Minnesota v. Baker, U.S. 34 L.Ed. 455; Brenner v. Rebman, U.S. 34 L.Ed. 862; In re Schecter, 63 F. 695.) On the foregoing authorities we maintain the license fee and bond in question cannot be held to be a reasonable police regulation.

D. A. Preston, Attorney General, for defendants in error.

The case of Brown v. Maryland, cited by counsel for plaintiff in error, is not in point, and if it were that part of the opinion relied upon is merely obiter dictum; goods brought from one state to another are subject to police regulations in the state of destination. (License cases: 5 How. (U.S.) 504, 575, 592, 594, 600, 605; Woodruff v. Parham, 8 Wallace (U.S.) 123; Brown v. Houston, 114 U.S. 622; Pittsburg &c. Coal Co. v. Bates, 156 U.S. 577; American Steel Co. v. Speed, 192 U.S. 500.) The statute involved in American Fer. Co. v. Board of Agriculture, cited by counsel, was construed to be a revenue measure and quite unlike the statute here in controversy. The statute involved in In re Schecter, 63 F. 695, was one prohibiting the sale of nursery stock not grown in the State of Minnesota and was condemned on that ground. Chapter 197, Comp. Stats. 1910, is clearly a police regulation and not a revenue measure, and therefore it is not objectionable on constitutional grounds. (Freund Police Power, pp. 33 and 34; People v. Murray, 149 N.Y. 367; Barbier v. Connolly, 113 U.S. 27, 31; Savage v. Jones, 225 U.S. 501, 524.) It is in that class of police regulations which have been uniformly upheld as a reasonable protection to the preservation of the safety of the public. (Messenger v. Board of Comm., 19 Wyo. 309; McDonald v. State (Ala.), 60 Am. Rep. 158; Osborne v. Mobile, 16 Wall. (U.S.) 479; Railroad Co. v. Fuller, 17 Wall. (U.S.) 560; Turner v. Maryland, 107 U.S. 38; Smith v. Alabama, 124 U.S. 465; Powell v. Pennsylvania, 127 U.S. 678; Machine Co. v. Gage, 100 U.S. 676; Plumley v. Massachusetts, 155 U.S. 461; Pittsburgh Coal Co. v. Louisiana, 156 U.S. 590, 598; Emert v. Missouri, 156 U.S. 296; Patapsco Guano Co. v. N. C. Board Agr., 171 U.S. 345; Asbell v. State of Kansas, 209 U.S. 251; Red. C. Oil Manf. Co. v. Board Agr. N. C., 222 U.S. 380. See also Standard Stock Food Co. v. Wright, 225 U.S. 540.) The license fee is reasonable. (Western Union Tel. Co. v. New Hope, 187 U.S. 425.) It is not an attempted regulation of interstate commerce. It is clear that the license fee of $ 25 is intended to cover the expense of inspection. A reasonable inspection charge is permissible. (Standard Stock Food Co. v. Wright &c., 225 U.S. 540; Vanmeter v. Spurrier &c., 94 Ky. 22; Brown v. Maryland, 12 Wheat. (U.S.) 419; Jacksonville v. Ledwith, 26 Fla. 163, 9 L. R. A. 69; Fayetteville v. Carter, 52 Ark. 301, 6 L. R. A. 509; Van Hook v. Selma, 70 Ala. 361, 45 Am. Rep. 85.) A similar statute was upheld by the Supreme Court of South Dakota in Ex parte Hawley, 115 N.W. 93.

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

The plaintiff in error, who is an outside or non-resident nurseryman and doing business in this state without first having obtained a license so to do, brought this action against the defendants, who collectively constitute the State Board of Horticulture, to restrain them from interfering with his business in the state. A demurrer was interposed by the defendants, which was argued and submitted to and sustained by the trial court, and the plaintiff electing to stand on his petition, the court rendered judgment of dismissal and costs against him and he brings the case here on error.

Sections 2985 to 3006 have reference to the appointment of and who shall constitute the State Board of Horticulture, its organization, and divides the state into four horticultural districts, the residences of the persons so appointed, and that its office shall be located at such place as a majority thereof may determine, and Section 2991 provides: "For the purpose of preventing the spread of contagious diseases among fruit and fruit trees, and for the prevention, treatment, cure and extirpation of fruit pests, and diseases of fruit and fruit trees, and for the disinfection of grafts, scions and orchard debris, empty fruit boxes and packages, and other suspected material or transportable articles dangerous to orchards, fruit and fruit trees, said board may prescribe regulations for the inspection, disinfection, or destruction thereof, which regulations shall be distributed by the board to fruit growers and nurseries in the state and to such other nurseries as may desire the information."

Section 2992 reads as follows:

"The said board shall select from their own number, or appoint from without their number, to hold office at the pleasure of the said board, one competent person in each district, to be known as, and act as inspector of fruit pests. Said inspector shall be selected with reference to the study of, and practical experience in horticulture. Said inspector shall have free access, at all times, to all the premises where any trees, fruits, or horticultural supplies or products are kept or handled, and shall have full power to enforce the rules and regulations of the State Board of Horticulture, and to order the destruction, spraying and disinfection of any or all trees, plants, fruits, pits or horticultural products or supplies found to be infected with any diseases as prescribed or designated by said board."

Section 2993 provides: "It shall be the duty of every outside nursery, holding a license to do business in Wyoming, to notify the secretary of the board, as inspector in chief, of every considerable shipment of nursery stock that it proposes to make into this state, said notice to reach the secretary at least five days before the delivery of said goods, and to state the kind of stock included and the probable time of its delivery, the railroad station and the name of the consignee. It shall be the duty of every nursery, whether within or without the state, to attach to every separate box, bale or bundle of nursery stock consigned to Wyoming, the authorized shipping tag of the board, each individual purchaser's goods to be protected by at least one tag. It shall be the further duty of such nursery to file with the secretary the full address of every agent or solicitor they may employ in the furtherance of their business in the state."

Section 2994 provides: "If any person or persons in charge or control of any nurseries, orchard, store-room, packing house or other place where horticultural products or supplies are handled or kept, shall fail or refuse to comply with the rules and regulations of the said Board of Horticulture of this state or shall fail or refuse to disinfect or destroy any diseased or infected trees, plants, vines, scions, grafts, shrubs or other horticultural supplies or products, when ordered to do so by the inspector of such district, he shall be deemed guilty of misdemeanor, and, upon conviction thereof, shall be fined in any sum not less than twenty dollars ($ 20.00) nor more than two hundred dollars ($ 200.00)."

Section 2999 provides: "The inspectors of fruit pests, appointed or elected by said board, shall receive as compensations for their services, such sum as the board may regulate; Provided, That it is not to exceed five dollars ($ 5.00) per day, for the time actually employed. The members of said board shall receive as compensation for their services only their actual expenses and five dollars ($ 5.00) per day for the time necessarily used in attending the regular or called meetings of the board. The secretary of the board shall receive such sum for...