Turner v. State

55 Md. 240, 1881 Md. LEXIS 34

• Court: Court of Appeals of Maryland
• Decided: January 21, 1881
• Status: Published

Opinion

Robinson, J.,

delivered the opinion of the Court.

The appellant was indicted for violating the Tobacco Inspection Laws of this State.

The first count in the indictment charges, that the appellant being a grower of tobacco, packed a certain quantity of such tobacco in a hogshead of unknown dimensions, and exported it to Bremen, Germany, without having such hogshead of tobacco inspected and passed according to the laws of this State.

In addition to these facts, the second count charges, that he did not pay the outage due the State on the tobacco thus exported.

To this indictment the appellant filed a demurrer, and the question on this appeal, is whether the facts thus set forth constitute an indictable offence.

This question depends: 1st, upon the construction of the several statutes of this State regulating the inspection of tobacco; and 2ndly, upon the construction of the clause in the Constitution of the United States which provides, that “ No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws.” Art. 1, sec. 10, sub-clause 2.

By the Code of 1860, all prior laws in regard to the inspection of tobacco were codified as part of the “ Public Local Laws,” under the title of “City of Baltimore,” subtitle Tobacco.

These provisions of Public Local Law, were repealed by the Act of 1864, ch. 346, and certain new sections were inserted in lieu thereof.

The Act of 1864, provided for the appointment of Inspectors of Tobacco, defined their duties, and prescribed the mode and manner in which tobacco was to be inspected.

It prescribed the dimensions of the hogshead in which tobacco was to be packed, and required each hogshead of tobacco received at the State Tobacco Warehouse, to be numbered in succession as received, and provided for ascertaining the gross and net weight of each hogshead thus delivered.

Complete provision was made for the inspection of each hogshead by sampling after it was opened for inspection, and for staying and reconditioning unmerchantable tobacco.

It was provided that every hogshead of tobacco should be liable to a prescribed charge for outage in proportion to its weight, and the 41st section declared that it should “ not be lawful to carry out of this State in hogsheads, any* tobacco raised in this State, except in hogsheads which shall have been inspected, passed and marked agreeably to. the provisions of this Act.”

It will thus be seen that it was necessary in the first, place, that the inspectors should examine the hogshead, to ascertain whether it was of the dimensions required by-the Act; and in the next, that they should inspect the tobacco itself by sampling the contents. When this was done and the weight ascertained the hogshead was passed.

By the Act of 1810, ch. 291, the grower or purchaser of tobacco packed in the county or neighborhood, was permitted to export the same without having the hogshead opened for inspection by sampling its contents ; but the-Act required such hogshead to be marked with the name and residence of the owner, and to be liable for the charge-of outage as in other cases, and any one violating its provisions was liable to the penalty imposed by sec. 41 of the Act of 1864.

The Act of 1810, in thus permitting the grower or purchaser of tobacco packed in the county or neighborhood, to export the same without having the hogshead opened for inspection, does not dispense with any other requirement of the Act of 1864, in regard to inspection. It provides in express terms, that each hogshead thus packed shall be marked with the name and residence of the owner, and it was necessary therefore that some one should ascertain whether these requirements were complied with, and whether the tobacco was in fact the growth of the county or neighborhood where it was packed. It also required that such tobacco should be liable for the same charge of outage as in other cases, and as the charge of outage depended upon the weight of the hogshead, it was necessary that some one should ascertain the weight of such hogshead, in order to determine the amount to be paid. It did not change or in any manner dispense with the statutory requirements in regard to the dimensions of the hogshead in which such tobacco was to be packed, and it was necessary that some one should see that these requirements were complied with. These and other duties, it is obvious, were to he performed by the inspectors, and when performed the hogshead was to be passed and marked as provided by the Act of 1864. When the words “such tobacco so carried out of the State ivithoui inspection,” are read in connection with the preceding sentence, which permits the grower or purchaser to export such tobacco “ without having the same opened for inspection,” it is clear the term “ without inspection,” refers to inspection by opening the hogshead and sampling the contents.

While the Act of 1864, as amended by the Act of 1810, was in force, the Legislature passed the Act of 1812, ch. 36, entitled an Act to add a new Article to the Code of Public General Laws, regulating the Inspection of Tobacco.

This Act changes in some respects the provisions of the Act of 1864, omits others, and in express terms repeals all Acts or parts of Acts inconsistent with its provisions.

The penal clause of the Act of 1864, as amended by the Act of 1810, which made it unlawful to carry out of the State in hogsheads tobacco raised in this State, except in hogsheads inspected, passed and marked according to the provisions of the Act, is omitted in the Act of 1812. And the appellant insists, that this Act was intended as a substitute for all prior Acts on the subject; and that there is now no law in force in this State by which the inspection of tobacco is made compulsory. It seems to be well settled, that where the Legislature makes a revision of particular statutes, and passes a general statute upon the subject, and it is evident from the general framework of the statute, and the manner in which the subject-matter is dealt with, that the Legislature intended such general statute to be a complete system of legislation in regard to the matter, the statute thus passed must be considered as a substitute for all prior laws on the subject; and the provisions of such prior laws as are not embraced by the later statute, are thereby repealed.

It was upon this principle that the General Incorporation Act of 1868, framed by commissioners appointed in pursuance of the Constitution of 1861, was held to be a substitute for all prior laws in regard to corporations. Montell & Co. vs. Consol. Coal Co., 89 Md., 164.

We find nothing, however, either in the title, or general frame-work of the Act, or in the manner in which the subject-matter is dealt with, to justify the conclusion that the Legislature intended the Act of 1812, as a substitute for all prior legislation on the subject. By the title, it merely proposes to add a new Article to the Code of General Laws regulating the inspection of tobacco. No reference whatever is made to prior laws, except to repeal all Acts inconsistent with its provisions. If we examine its several sections and compare them with the sections of the Act of 1864, in regard to the same matter, it is apparent, we think, the Legislature did not intend the Act of 1872, to he a revision and substitute for all prior laws regulating the inspection of tobacco. On the contrary, the provisions of such prior laws are absolutely essential to give completeness to the system of which the Act of 1872 is but a part. It does not, it is true, make it unlawful to export tobacco raised in this State, unless the same shall have been inspected and passed, but it does provide, that “ no tobacco, the growth of this State, shall he passed or accounted lawful tobacco, unless the same be packed in hogsheads of certain prescribed dimensions.”

It does not say in so many words, that the tobacco raised in this State, and intended for exportation, shall he delivered at one of the State Tobacco Warehouses, but it does provide for the appointment of inspectors of tobacco, clerks, and other officials, with fixed salaries, and assigns them to the tobacco warehouses, with no other duty to perform, unless it he the inspection of tobacco.

In thus declaring that no tobacco, the growth of this State, shall be accounted lawful tobacco, unless packed in the manner prescribed by the Act, it is plain the Legislature meant it to he the duty of the inspectors appointed by the Act, to ascertain whether such tobacco was thus packed in conformity with the requirements of the statute; and this they could not do, unless such tobacco was delivered at the State Tobacco Warehouses. The Legislature, from the earliest history of the colony, and since the formation of the State government, has made the inspection of tobacco raised in this State compulsory. To this end, the State has expended nearly a million of dollars in the erection of tobacco warehouses in the City of Baltimore, and the very Act now under consideration, and which, it is insisted repeals such laws, appoints a large staff of officers with salaries for the purpose of inspecting tobacco. If then it had been the intention of the Act of 1872 to abandon this policy so long recognized by the State, it is but reasonable to suppose, that the Legislature would have declared such intention in plain and unambiguous terms, and not left it to he ascertained by construction and implication.

With the policy of inspection laws, whether they act as restraints on trade alike injurious to the producer and consumer, are questions for the consideration of the lawmaking power. Our duty is simply to declare what the law is, and the question here is, whether the Act of 1872 was intended as a substitute for all prior laws on the subject ? In our opinion it was not. The Legislature meant, and only meant, to select certain provisions from the Public Local Law in relation to the inspection of tobacco, and to re-enact these in a Public General Law, and to leave such portions of the Local Law which it did not thus re-enact, and did not modify or repeal by inconsistent provisions, as existing parts of the Local Law.

The Act of 1872 did not modify or repeal sec. 41 of the Act of 1864, as modified by the Act of 1870, which constituted part of the Local Law, and under that section it was the duty of the appellant to have delivered the tobacco packed by him to one of the State tobacco warehouses, in order that the inspectors might ascertain whether it was packed in hogsheads of the proper dimensions, and whether it was packed in the county or neighborhood where it was grown, and marked as the statute directed.

And this brings us to the second question, whether the charge of outage is in contravention of the Constitution of the United States, which prohibits any State from levying a tax on imports or exports, except so far as such tax may he absolutely necessary for the execution of its inspection laius. And this question resolves itself into this, whether this charge of outage is an inspection duty within the meaning of the Constitution? If it he an inspection duty, then it is no objection to the duty itself, because it partakes of the nature of a tax on exports.

In considering the powers of a State to pass inspection laws under this clause of the Constitution, Chief Justice Marshall says:

“ If it be a rule of interpretation to which all assent, that the exception of a particular thing from general words proves that, in the opinion of the law-giver, the thing excepted would be within the general clause had not the exception been made, we know of no reason why this general rule should not be as applicable to the Constitution as to other instruments. * * * The exception was made because the tax would otherwise have been within the prohibition.”

■ We come then to the question, whether the charge of outage is an inspection duty ? It is urged on the part of the appellant, that under the Act of 1864, as modified by the Act of 1810, the only duty to be- performed by the inspector in this case, was an examination of the hogshead, to ascertain whether it was of the proper dimensions, and to ascertain further, whether it was packed by the appellant as grower in the county or neighborhood where it was grown; and that the charge of outage under such circumstances is not an inspection duty within the meaning of the Constitution.

The object of inspection laws ordinarily is to improve the quality of the productions of a country, and thereby better fit them for domestic use, or for exportation. But we are by no means prepared to concede, that the inspection must be confined to an examination of the quality ot the article itself. To prepare the products of a State for exportation, it may be necessary that such products should be put in packages of a certain form, and of certain prescribed dimensions.' This may be necessary, either on account of the nature and character of such products, or to enable the State to identify the products of its own growth, and to furnish the evidence of such identification in the markets to which they are exported.

In the brief filed by the Attorney-General, he has industriously collected the several statutes of the States on this subject, and it appears from the earliest period of the government, that nearly every State has prescribed by law the size, form and weight of packages containing articles grown or produced by such States, and has made the size and weight of such packages subject to inspection. Many of these statutes are referred to by Mr. Emmet in his argument in the celebrated case of Gibbons vs. Ogden, 9 Wheaton, 120, and in delivering the opinion of the Court in that case, Chief Justice Marshall nowhere intimates that such statutes are not a valid exercise of legislative power.

We must conclude, therefore, that the State has the power to prescribe the dimensions of the hogshead in which tobacco raised in this State is packed, and to require such hogshead to be delivered at one of the State tobacco warehouses, in order that the inspectors may ascertain whether it conforms to the requirements of the law, and whether it is the true growth of the State, and packed by the grower or purchaser in the county or neighborhood where it was grown. And that the charge of outage, to reimburse the State for the expenses thereby incurred, and in consideration of storage of such hogshead of tobacco, is in the nature of an inspection duty within the meaning of the Constitution of the United States.

There was no error therefore in overruling the demurrer to the indictment.

The objection to the fine of three hundred dollars imposed by the Court is equally untenable. It was the duty of the appellant to have delivered the hogshead of tobacco mentioned in the indictment to one of the State tobacco warehouses, in order that the inspectors might ascertain whether such hogshead was of the dimensions required by the statute, and whether the tobacco was packed as required by the Act of 1810, and upon his failure to do so, the appellant was liable to the penalty prescribed by sec. 41 of the Act of 1864. It was his duty also under the Act of 1810, to mark the hogshead with his full name, hut the Legislature never meant that merely marking thé name of the grower or purchaser on the hogshead, released such grower or purchaser from the other requirements of the Act.

(Decided 21st January, 1881.)

The judgment below must therefore be affirmed.

Judgment affirmed.