State v. Lagarde

60 F. 186, 1894 U.S. App. LEXIS 2722

Opinion

PARDEE, Circuit Judge

(after stating the facts as above). Counsel for respondents present no argument — make no assertion, even— that The act in question (No. 51 of the Laws of 1886) is constitutional; nor, on behalf of respondents, is denial made of the matters presented by the evidence read on the bearing, to the effect that the said law, in its operation, is purely a revenue law, and in no sense an inspection law, and that the bureau of agriculture and tlieir agents are threatening and intending to harass and annoy the complainants with civil and criminal prosecutions under the said act until they shall pay the revenue demanded, or be compelled to abandon tlieir business. The whole showing is addressed to the proposition that under the circumstances of the case the court has no power to grant relief. The title of the act under which the respondents have proceeded against the complainants, and threaten to still further proceed by a multiplicity of suits and prosecutions, is as follows:

“An act to protect and advance agriculture by regulating tlie sale and parity of commercial fertilizers and the guarantee and conditions upon which they are to he sold, and by fixing the penalties incurred by tlie violation of such conditions: by providing for practical and other experiments in relation thereto; by reorganizing the board of agriculture, increasing its powers and those of the commissioner of agriculture; by creating an official chemist, defining his duties and powers, and by repealing laws in conflict herewith,” etc.

• The first section of the act provides for the reorganization of the bureau of agriculture, and defines some of its> powers. The second section provides as to the duty of manufacturers and dealers in fertilizers before offering the same for sale; requiring a statement setting forth a description of the brand and package, and the named ingredients which they are willing to guaranty the fertilizer to contain, The third section provides for a certificate of compliance with the second section, to be issued by the bureau of agriculture, and that such certificate shall authorize the manufacture and sale of fertilizers, and further providing, under penalties, that no person who has failed to file the statement shall be authorized to manufacture for sale, or deal in, commercial fertilizers, in the state of Louisiana; the penalty being a. fine of $1,000, recoverable before, any court of competent jurisdiction. The fourth section provides for circulars setting forth the brands of fertilizers sold in the state, and their claimed analysis, to be distributed by the board. The fifth section provides that the commissioner of agriculture, under regulations, shall prepare tags, of suitable material, with certain marks, which shall be furnished to any dealer or manufacturer who has complied with the second and third sections upon payment of 50 cents for» a sufficient! number of tags to tag a ton of fertilizer. The sixth section provides that every person, before offering for sale any commercial fertilizers in the state of Louisiana, shall attach, or cause to be attached, to each package, one of the tags aforesaid, and that any person who sells, or offers for sale, any package which has not been tagged, shall be guilty of a misdemeanor, and, besides, liable to a penalty, and further provides a penalty for counterfeiting the aforesaid tags. The seventh section of the act requires that all fertilizers offered for sale in the state of Louisiana shall have printed up'on each package, in such manner as the commissioner of agriculture shall determine, an analysis of such fertilizer or chemical. The eighth section authorizes the commissioner of agriculture to obtain fair samples of all fertilizers sold, or offered for sale, in the state of Louisiana; to cause the same to be analyzed, and the analyses published. The ninth section provides for the drawing of samples from any package of fertilizer whenever required by the purchaser. The tenth section provides that the copy of the official chemist’s analysis of any fertilizer certified by him shall be admissible as evidence in any court) of the state on the trial of any issue involving the merits of such fertilizer. The eleventh section relates entirely to rules and regulations to be adopted by the board of agriculture for the collection of moneys arising from the sale of tags, and from fines imposed by the act. The twelfth section gives authority to the commissioner of agriculture to employ a competent chemist to carry on and conduct experimental stations, etc. The thirteenth section relates to the compensation of the chemist for the conduct of experiments and experimental stations. The fourteenth section provides that the director of the state experiment station .shall be considered as the official chemist of the bureau of agriculture. • The fifteenth section relates to accounts of tags received and sold, and moneys collected. The sixteenth section defines the terms “commercial fertilizer or fertilizers,” where used in the act. And the seventeenth and last section provides for the act to go into effect at a certain date, and the repeal of conflicting laws.

It is to he noticed that neither in the title nor in any part of the act is the inspection of fertilizers mentioned, or in any wise provided for; the nearest approach to it being in the eighth section, where the commissioner of agriculture is authorized to obtain samples and cause an analysis to be made, and cause publication of the same. Under the terms of the act, a description of the packages of fertilizers, and the statement amounting to a guaranty of the ingredients, must be .filed with the commissioner of agriculture, and a certificate of compliance obtained, before any person is authorized to deliver any commercial fertilizers in the state of Louisiana. There is no provision that this statement shall be made, and such certificate obtained, for each and every year or season, or more than once. The complainants aver in their bill that they have complied with this provision of the act. The tags provided for by the act are to be attached to each package before the same shall be offered for sale, from which it follows that the act contemplates only sales of fertilizers within this state, and by persons having possession or custody of the same. Xow, as the business of complainants is admitted to be purely and simply that of soliciting agents for a manufactory, and that the only sales they negotiate or make are of fertilizers not within the state, nor in their custody, and that the complainants do not manufacture, pack, ship, handle, or even see, said fertilizers; that they do not now and never have had any fertilizers in their possession in this state, and have never exposed any for sale in this state, — it would seem that the act in question was not intended to, and does not, in any way affect their business, and that they are in na wise liable for any of the penalties provided for in the said act. The bill shows, however, that the law officers of the state have otherwise construed the law; and for that reason it is not requisite that this court should at this time, and for the purposes of this case, so hold or declare. The business of complainants is interstate commerce, and it is beyond the regulation of the state of Louisiana. Aor can the state of Louisiana levy any tax upon it. Robbins v. Taxing Dist., 120 U. S. 492, 7 Sup. Ct. 592; Leloup v. Port of Mobile, 127 U. S. 640-648, 8 Sup. Ct. 1380; Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. 1; Stoutenburgh v. Hennick, 129 U. S. 141-148, 9 Sup. Ct. 256. Even if the act in question could be construed as an inspection law, or as an exercise of the police power of the state, the complainants’ business cannot be affected thereby, as complainants do not deal with, nor handle, nor bring to the state, fertilizers; and, even if the complainants were to import into the state original packages of fertilizers, and the act in question could be properly construed as an inspection law, within and under the police power of the state, still the interference with complainants’ business would be in violation of clause 3, § 8, art. 1, of the constitution of the United States. Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681; In re Sanders, 52 Fed. 802.

The case, then, is one within the jurisdiction of this court, and warrants relief according to equity principles and practice. An injunction is the usual relief in such cases, and it is asked for in this case. The respondents say that it cannot be issued, because the suit is one against the state, and tire state cannot be enjoined, nor can it be issued against the law officers of the state, to restrain them from instituting criminal proceedings under the said law, nor can it issue against state officers or state boards, because such an injunction would be equivalent to an injunction against the state. The state of Louisiana was a party to the suit under which complainants’ bül, as a cross bill, was originally filed; and when, by consent of parties and an order of court, the cross bill was permitted to stand as an original bill, the slate of Louisiana was not dismissed, but remained as, practically, a nominal party. The objection that the suit is one against the state, so fár as it has merit, can be eliminated from the case by the formal dismissal of the bill as to the state of Louisiana. . The board or bureau of agriculture, or any of the individual members thereof, and some other persons who cannot be classed as agents', attorneys, or employes of said board, against whom complainants desire relief, should be made parties. Leave will be given to the complainants to amend their bill in these respects.

The state being out of the case, there is only one serious question as to the scope of the injunction that ought to be issued, and that is whether a court of equity can enjoin the law officers of the state from instituting and prosecuting criminal suits or proceedings under a void or unconstitutional law. Many cases on each side of this question have been cited and examined, but I do not think it necessary to review them at this time, for the purposes of this case, nor to determine the yet unsettled question of how far proceedings criminal in their character, taken by individuals or organized bodies of men, tending, if carried out, to despoil one of his property or other rights, may be enjoined by a court of equity. In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482; Lottery Co. v. Fitzpatrick, 3 Woods, 222; Bottling Co. v. Welch, 42 Fed. 561; Texas Railroad Commission Case, 51 Fed. 529. There is only one section of the act in question that in any way calls for or requires the district attorneys of the state, as such, to institute criminal proceedings against the complainants, even if complainants’ business should be construed as being within the act; and that section relates to cases where complainants shall be charged with selling, or offering to sell, any package of commercial fertilizer which has not been tagged as provided in the act. It is not at all probable that the district attorneys of the state will constitute themselves inspectors of fertilizers, or agents of the board of agriculture, and in that way attempt to harass complainants, while it is more than probable that any and all proceedings, civil or criminal, instituted against the complainants for noncompliance with the act in question, will be instigated, instituted, and prosecuted only through the; action of the board of agriculture, its members, officers, agents, and attorneys. There can be no doubt about the power of the court to issue an injunction running to those persons, restraining their action as prayed for in the hill; and, on complainants amending their hill as herein suggested, such injunction may issue, hut not to interfere with the prosecution of any suits, civil or criminal, commenced before the filing of this bill.