()9.Q <ingto $8,71&7A5. llpon his ,certific!l.te:Qf.deposit.:' Butw&,canTIot: iadopt plaintiff, oUnJa.Jll.Uary, 9, 1891,: s;ppeated ,as a daimant befol:'e the: auditor appointecl, tOidisttibute aUlQng the.creditors of the I.awrenge,Bank the balance in:the.hl1nds ofthetrust.e.eunder the deed pi its first and partial account, and t\S the foundation of his clli.im !plleSanted the certificate of deposit fo1' 850,000, heretofore referred to; ,Bl,1¢l1t sametil,lle he submitted to the auditQr evidence similar to that lli:l:wbefQl'6 uB,\explanatoryof thewllole, transaction. .t\.ll the facts were disclosed, and l111owanceto him by the auditor: of the divi{}end Rwarded:was an adjudicationof hi$ right theretonpon all theevidence. H&rein we perceive nogrou,l;}d of estoppetagainst Matthews. It. is clear to.us that he ,was at liberty to proveas·a against the as,Signed estate iQ. the hands, of the· trusteewithol1tprejudicing his rights in the specific 'fun.d. in the hands of the Union Bank. He h.ad a valid elaim agai!lst;the,Lawrence BlUlk for $50,000 and upwards, which originaredprior,tB the voluntftry '1lssignment, His proof before· the auditor was by no.:.means' 800 abandonment ofhisrighHosubrogation. The¢ase didlnot: involve an electic:m, ..for the two claims were not inconsistent. If itappear.ed:tbat the plaintiff'. had .received a larger ·dividend than he could sd lllold.outdecteel1$ to,do,equity; but we do not see that he was He had,we think, ,a 'rigM,to a pro raf:4, dhtideJad upou' the fuU'.faee of his claim,. npon that a creditormay'souse his colll\Wl'als as to .secure his the whole debt. ;lStory, E,q.. JUl'. {12th Ed;)§.564b,' Kittera'8 Estate, 17 Pa.St.41&.; 'Let a decree;be drawn.in favQr of the,plaintiff' in accordtb.eviews expreSsed in:this opinion. Bm'FINGTP.N,
District JwIge" · I, jil
·
do.
AGRICULTUREO,lfNoRTH CAROLINA. 24, 1892.)
. (OirCuit· Cowrt, liJ.· D. North CaroUM. 1.
,JYSPljlHTION LAwll. .:' ." In the absence of any prohibition, a the right, under. t.he gener!!l pt)weril reserved trom tbe gratlt10f other powers,tb 'lihefederal government, Ij,Bd ill: the vell'ula.tion .. lt/l)l1terbal commerCEl. and ;119 protect its citizens fraud, tosa',tli.at certainart\clesshlllinot be sold Withinitslimits witbout inspecsuch. inspection upon'those offeri'ilg such artition, and a.'lBO cles for sale. . . ' , U :: , ,, ; " 2. OF FEDERAL COURTS. A state tonnage' tax upoh'fertillzers td'defray inspe6tidn6Xpeoses wiilnot be de.clared uneolls1litutional. simply upon the grouod of alleged excess, when. such' excess does lIQt, /pllnifest .a 1':I1J1lQse to evade oonstitutiop'IIHnhibitions; ",nd a federal court will not go Into the examination of the question; except. for the purpose of dl.'cidingWb.eth.er the f,ax ,i.s only. colorably or ostensibly.'8<I1 iJlspectio,n charge. or a charge of a kindred nature. S. BAME-J!JXOjlSSlVE TAX.
Tlie 2ri oelits per ton i1nposeq upon fertilizers by 'Pub, Laws N. C. 18111, c. 9. (amen4l/lgCode. § tp defraytbe expenses in itself:so unreasQnable or exceSSIve as to show a purpolleto. eva.dethe, 10hlbltlOn of the federalOODstitutiQD" against the rtaxatidu pUmports 'by the state&. . .
.. . .
I
PATAPSCO .GUANO 00. 11. BOARD' OF AGRICULTURE. .. 0'1 STATUTII-BJ!VIVAI;' O'lrI'BroB STATUTII. " '" ,
691
, Acta N. O. 1885,0. 808, I, ot a&'riculture ,should ,appq to the !Iiaintel1ance of an bidtiiitrial school suen parts' of iis funds e.s Were n'6t needed for the regular work of, the department, not to exceed $5,000 annually. Pub. , Law. 1887, 0. '10,1 6" (amendimrand re-enaeting Code, I 21ilo:> IlJ1posed,a priv!lege tax of $500 on eachsllparate, brand of fertilizer ,sold in the state, and, as a substi· tute' for the act of 1885, prclVi'ded that all the' surplus arising' from this tax shottld be turned over to suell industrial school. In 1890 the act of 1887 was decllll"oo unconstitutJonal as im,posing a burden on interstate commerce. 48 Fed. Rep. 609. Thereaftllr ftsobjeirtiionable features were repealed, and superseded by Pub. Law. 1891,0. 9, which imposes, a charge of 25 cents per ton on fertlIizers, "for the purpose of defra.vlng the expenses connected with the inspection" thereof. Held, that the repeal of the act of 1887 did not re,vive the act of 1885l so as to appropri.ate, $5,000 ot the fert!lizer tax to, the support of such school. ana thus show an intent by the legislature to raise money for that purpose, rather than for the deelared Purpose of defraying tne expenses of inspection. j., f. ·
In EqUity. BiUby the Patapsco Guano Company against the board of agriculture' of North Carolina to perpetually enjoin the latter from enfertilizers. Heard on moforcing againfllt it the state inspection tion to dissC)lve injunction'. Motion granted, and bill dismissed. Thos. N. Hill and J. W. Hi1!$dale, for complainant. BWjbee« :§uabee and, Batas Mordecai, for defendant.
SEYMotm, Distriot Judge. This court, in the case of Americtm pm;,. l.if:im,g Co. v. Boa,rdoj reported in 43 Fed. Rep. 609, decided 8cl umch'ot' section 2190,Ot' the Code of North Carolina as imposed a privilege tax of$500 peranni.lm on every manufacturer or other person importing ,MY' commercial', fertilizer into the I!tate, for each separate brand qu.ality ,to be unconstitutional. The ensuing legislature rapealed'theaection, an<lmodified the entire legislation upon the fIluhject ofcommercill1 fertilizers. ';I:'1;I,i8 legislation is to be found in chapters 9 and 848, Pub. Laws 1891.' 'Chapter 9, quoted in part, reads as follows: "Section 1. That section 2100 of the Code shall be substituted by the folthe expenseBconnected with, the inlowing: ' Forthlil purpose ,of, fertilizing materials in this state. theresball be a spection of charge ottwenty-tivecents per. ton on such fertilizers and fertilizing material 'for each fiscal year. which shall be paid before delivery to agents, dealers, or conSUmers :in this state. · .,.Each barrel, bag, or other package · * * shall have attached thereto a tag stating that all charges specified in this sectipn have belln paid. ,. - · Any person. corporation, or company who sell or offer for sale any such fertilizers contrary to the provisions aboveset forth shall be guilty of a misdemeanor. _ · .' "Sec. 2. 2191 of the Code shall be substituted by the following: 'Every bag, bartel, or other package of sucb fertilizers, · - · offered for sale in this state. shall have thereon plainly printed a label or stamp, a copy of which shaH be tiled with tbe commissioner of agriculture. together a true, and faithful sample of the fertilizer · · · which it is proposed to 8e\I, at Or before the dellvery to dealers. or in this · · · . ,Aiso; the chemical composition of the contents of each package, · - -tOgetherwiththe date of its analyzation, and tbat the re, quirements of·the law have beencetnplied with., -. . . , . . "Sec. 4. Section 2193 of the Code shall be substituted by the ,'AllY ,who Shall, sell or offer for sale any commerciAl fertilizer .without sucb laue18. etc., '" - '" shall be liable to a fine of teD dollars.
692 . . . . An, agent
. FEDERAL
vol. '82.
,','j
o,f
*41 :whoshalldellwr any ferti· shall be guilty of
; Laws 1891, amends the previous legislation of the state inr,egal'd to the and of an industrial school. . By the ,act of (chapter 308" §4;) it was epacted that the, board of should apply to the establishment and maintenance of an industrial.school such part oftheir 'funds as was not required to conduct the work of the department, not to exceed $5,000 annually. Chapter 410, Pub. Laws 1887, § 6, provided that the1,)oard of agriculture should turn over to such industrial school annually the whole residue oL,tl}eir,fJlI,lQs fertilizers and not require.dto the regular. work of tile By. chapter 348, Pub. the Laws 1887, iS8ubstituted above in lieu thereof: "The said [referrIng t& of the ''North Carolina college of agriculture and mechanic arts. which takes the place of the ind:ustrial'SChl)pl;,(,lr.eateQ by s113.11 pQwer to accept, Qn behalf .of property. realqr p.erliPnal, a,nd any ap pr()priatiolls made by congress, ." otc .' otc, f,or t,h,e experiment stations,.. , or agricultural' and ..mechanii:lal , . : ";., 'i '.."'",, , . , , · i
8ection5,M this act appropriates $10,000 annually for the years 1891 al'ld 1892 to'lltltlhcollege of agritiulture and mecnah'io arts. The act of 18911eaves:in f6r(\e section 2t96"oftheCdde, which provides that the chemist oUhe agricultural 'department shall be paid out 6f the funds of the department of agriculture, seotion 2198 of the Oode, which imposes certain duties upon the state geologist, and authorizes the state board ofagricnltl!lrefu pay for the expEmsesof saIril!l, and section 2206 of tll(3Code, which appropriates $500 annuallyo!'themoney received from the, tax op,,fertiUzers to the Northyarolina Ihdustrial Associati9n, to be directiout;)Lthe board of ,!tgricuIture. By section 2208 of tbeCode it is provided ,that all moneys arising from tbe tax on licenses, and from various other sources specified;. shall be paid into the state treastlty,'and shall.bekept in a separJite'aceount by the treasurer ... The ordinarY,repealing as a fund for the department' to the from the Laws of clause 1891.. Although, as has hee,ll,saip, chaptl)r,,348,Laws does not Iepealsecti'on;2206 of section appropriating $500 annually of the money received from the tax on .fertilizers, yet a later act reo fers to the subject of anap:propriation tO'said 'association. ,This is 1891, which: provides ap appropriation of $500 J5e pC to be paid by the state treasurer. This act referf:\ to, no Particyla,r fl.;lnda.s the source froql which euchpayment shall-be derived. The cCin,etitutional objection to this legislation is that it ie, it is claimed, .,
,.:'
......
,
l'ATAPSCO GUANO CO. V. BOARD OF AGRICULTURE.
693
a regulation of commerce. The answer of the state's counsel in sustaining the tax is that it is an inspection law. The reply made to this answer by counsel for plaintiff is, first, that it appears from the whole scope of the legislation that the imposition in question is not intended in good faith to be a com pensation to the state for the cost of inspecting commercial fertilizers; that this appears from the alleged fact that the amount is in excess of what would be necessary to pay such cost; and the court is asked, if it be in doubt as to whether this be true, to direct an investigation of the question of what would be the necessary cost of the inspection of commercial fertilizers under the act of 1891, and whether the imposition of a charr;e of 25 cents per ton be not in excess of what is absolutely necessary to the enforcement of the law. Counselfurther contend that the law callnot be an inspection law because it is directed to the subject of articles not the products of the state enacting the regulation; and, further, if not technically an, inspection law, that it cannot be upheld on the analogous ground of being a police regulation in the nature of an. law, because the police power of the state is confined to the protection of the public health, the public morals, or the public safety. I will consider these contentions in the order above given. 1. I concur with counsel for plaintiff that if the imposition of 25 cents on each ton of commercial fertilizer be not either an inspection impost, or cannot be supported on some analogous ground, it must fail, as being a tax on interstate commerce. The general taxing power of a state extends only to .property within its geographical limits, or owned as the personalty of its residents. A reading of the law now under dis<lussion may leave it questionable whether, as far as it affects or intends to affect fertilizers manufactured outside of North Carolina by citizens and residents of other states, the imposition considered as a tax is not payable before the property taxed comes within the jurisdiction of the state. Under any construction of the statute it is chargeable upon the merchandise before it becomes mingled with the general mass of personalty of the state. Possibly, in the view taken of the subject in the Nw Orleans Coal Case, (Brown v. Houston,) 114 U. S. 622, 5 Sup. Ct. Rep. 1091, this lllightnot he fatal were the imposition a part ofa law taxing at equal rates all taxables; but it is too clear, it would seem, to require any citatiQn of authority that, considered as a specific burden upon a particular article imported from another state, the fertilizers cannot be suhjects of state taxation until they are mingled with the general mass of the goods within the state's limits. By section 1 of the first-cited act of 1891 it is provided that the tax shall be paid before delivery to agents, dealers, or consumel'S in the state, and in various parts. of the act it is made penal for anyone, including a common carrier, to deliver any fertilizer not bearing upon it, in the shape of a tag, evidence that the tux is paid. ' . 2. The opinion of the court being that the imposition cannot be sustained as a tax on merchandise, I pass to the question of whether it can
694
I'EDEltAL REPORTER;
vol. 52.
inepeotion· law,O'l',o'I1 any other ground, as a law l'egulbting tWeI1itlternal " ' ChanceJIor Kent; "regulatiohs of comt'rietce. Theiir' object is to itnprove the qUidity of' articles produced labor of the country, and to'flt: them fOl'exportation or for b(jfore it becomes Iln article of Ja\y!,·. and health laws" as well as internal CO,mmerce of a Btate, are component parts of the mas's of residua'ry B.tate legislation over which congress' has no direct it may it directly interferes with their acknowledged poWers. " 1 Kent, Conlin. *43.9. , The act, imposing a tax,of 8500 perannum for each separate brand of fertilizer'(Code; §2190) tax. Amended section, 1891, c,' ,9,il:l terms not a tax, but," a charge," of 25 ton on ofdefra)'ing the expensesconnected with the of fertilizers." !tis thus expressly inspection tJ\X',,' t4e strong presumption, is that the deP9 ,.Of the,., draftJ.fPf t,.hes,tat,ute is. its .real purpose, ,and no, clare,d, pU."r.,',.. court ,assume the contrary. In fact a doubt is expressed by high the power of the States courtstQpass upon the subject such is to6ltirge for the necessary expenses 'in y. Mr. Justice BRADL,EY aaysJbat.it lilay whetber it is not exclusively the provand 'not at all that ofa court,to decide whether a charge pr dutitirider ail i'n$pection law iSQr is not excessive. Mr. Justice, Gar.?ft! adds. that there was ,nothing ,the ,w1ich it.,could .be iriferred tllat, the state of Maryland hltended' tOms,ke 'its whaecb inspection laws, ,a mere. cover for laying 107U. S. 38, 2 Sup. Ct. Rep. revenue is to froro authority on the subject ofinspect!?u ll.l;)'l's, of the willpl:J,s!l upon the alleged eXcessIVe charge 1m posed by,thelaw,al,l9: that of the whether a state legislature, or perhaps, as it were better, orQ1ore correct to say, the framer of a state statute, has"intepded, the guise of a pretended charge for the expenses Of iiispection,to ,impose a tax on imports or exports, or' COlDmeroe betwe,enthe states; or any subjects not properly liable to Btate taxation·. I thihkthat in cases of ,this character the court is no't required togo into anexl'mination of the question of whe,tber the is excessive, unless for the purpose of deciding whetller the tax is only colorablyan charge, or a charge of a kindred nature. The case in the supreme ,CQurt pfPacket Co.,Y. Aiken, 121 U. S. 444, 7 Sup. Ct. ItElP. 907, the subject. ThEl syllabus IE': . · collectiOD.of a wharfage rate, to bemeasured by tonnage. estimated to 'be sufficient to light the wharves; keep them in repair, and construct ne,,\, wharves as requirl!d, and which may realize'a prolitover expenses, does:notviolatEl the constitution, as a dutY' orbul'den UPOD commerCe.?
or
v.
'
.
PATAPSCO GUANO
co. v.
BOARD OF AGRICULTURE.
695
The supreme .court, expressing its' opinion by BRADLEY, J., says: "We see nothing in the purposes for which the lessees were required to expend or pay money at all foreign to ,the general object of keeping up and maintaining' proper wharves, and providing for the security of. those that use them. * * * In all such cases of local concern.. though incidentally affecting commerce, 'Ye have held that the courts of the United States cannot, as such, interfere with the regulations made by the state, nOfsit in jUdgment on the charges imposed for the services rendered under state authority. It is for congress alone, under its, power to regulate commerce with foreign na· tions and among the several states, to correct any abuses that may arise, or to assume to itself the regulation of the subject. * * * If in any case of this character the courts of the United States can interfere in ad vance of congressional legislation, it is where there is 'a manifest purpose by roundabout ,means to invade of federal authority."
Turne:r v. Maryland, supra, is a caseaf the former class; Brimmer v. Rebman, 138 U. S. 78, 11 Sup. Ct; Rep. 213, ahd Minnesota v.Barbe:r, 136 U. S. 313, 10 Sup. Ct. Rep. 862, are cases where the United States courts interfered with state statutes on' the ground of manifest' purpose to invade the domain of federal authority · It remains to be considered whether the tonnage tax of 25 cents on cQmmercial fertilizers manifests an evident intent, underthe guise ofan inspection law, to impose taxation on interstate commerce. The. fact, were it true,that the ,amount of the tax might upon investigation turn out to exceed the sam required to reimburse the state for the cost of inspection, would not, in the view the court takes orthe principles of law involved, beat all The question would perhaps be somewhat. analogous io the inadequacy in the consideration in a contract of sale, which might be evidence of fraud, but not conclusive of it, unless sufficiently ,at once "shock the conscience." The verified answer of the board states that the amount collected in 1891 under the existing law was $32,894; that $24,000 is all that has been or can be collected during<the year 1892. It further states that the number of brands to be analyzed is 350. If such be the case the amount of the tax under the old law, as it existed before 1891, on fertilizers, at the rate of $500 per brand, would have been $175,000. Doubtless the reduction in the amount of the tax bas been the cause of the introduction into the state of some brands of fertilizer that would not have paid the tax of 1890. Of course, it would have been impossible, in advance of actual results. to have determined the precise imposition which would have covered the cost of inspection. The case has been heard upon bill and answer and certain proofs. 'rhe tax of 25 cents per ton on fertilizers resulted in 1891 in producing about $33,000. . The estimate, which seems a reasonable one to me, for 1892, is that it will pay $24,000. It is, in the account produced, mingled with other receipts of the department of agriculture. There is no provision in the North Carolina statutes for keeping separate accounts of the cost of the work done under the fertilizer law,.and under other branches of the duties of the department of agriculture. The entire -expenses7"""Bctual·. $14,022.47 i estimated about S3,300-of the depart-
696
J'EDERAL REPORTER.
ment of agriculture fortke six months (December 1,1891, to May 31, $17,352.47. These charges include: 1892) J:3011fd.1uidcomxnittee meetings, $1.452 60 2,398 18 's. 1 75 G!ls,apil'wl\ter, - - . aM other office work; 1,435 53 wages,' - ' . · 2.175 00 $N
toperlOdicals, ··' _ '. -. ;. ,freights! i·.· ;". " Ii
.-
,.
534 00 39 0') 5.000 00 98500 40 00
Gas and water, Paper, printing, etc., Analytical, ,
. ;,'
ESTIMATED.
Attorneys':teelli
'total, :-.!
--$17.352 00
3 t OOO 00
200 00
90 00
Some of these charges cannot properly ,be, as a whole, charged to the inspection; of.fenilizersj bowmsnyof' them can, it isimposaible to say. I shonldstlppa8e that on the, wholEl'rthetax on thefertilizerwHl produce enough 1opay,tlie inspectioncliarges"with a cOlasiderable.margin. It is upon such a supposition ipat I pronounce my opinion. If I were to hold that the charge upon fertilizers would be unconstitutional, if it could be shown to produce more than enough to pay the inspection charges, I would' be;compelled either to dlllcide against the state at this stage of the case, or: to direct an inquiry with 'a view. to ,ascertaining the exact amount produced by the tax, and the exact amount of the cost of the department properlyfehargeable to inspectidn. UpoD,the coming in of the report some such questions·as theSt'" :would arise: Does the charge of $8,000 for analysi&Jn, whole orin part belong· to inspection? It is averred by the answer that it does. What part of the general expenses of the board of agriculture ought the board to charge for inspection? In fact, the court would be:compelled to supervise the entire subject of the expenditures of the board. This would be, for many reasons, inconvenient, and, as I think, could produce no good result. The amount of the inspection tax appears a reasonable one; not excessive, of itself, so as to make it probable thatiitwollid check importation. Putting the case, as I do, upon the position that the imposition could not be decided unconstitutional by the ciilcuit court, simply upon the ground of alleged excess, if the excess does not ·show a purpose to evade an inhibition of the constitution, I have come to the conclusion that I cannot say that such intention appears in the amount of the tax. ; I will proceed ito give the facts·of a cnse which sustains fully the principle on whiollthis decision isrbased. It is the leading one in the reports of the United States on the subject ,of inspection laws; that of Tu?'n(fJ' Maryland, 107 U. S. 38,2 Sup. Ct. Rep. 44, which involved the constitutionality of the Maryland inspection laws. The act of tha
PATAPSCO GUANO CO. V. BOARD OF AGRICULTURE.
697
legislature of Maryland of 1864 provided for the appointment of five tobacco inspectors,and a number of clerks, whose salaries were to be paid from the receipts of their respective offices. These inspectors were to cause each hogshead of tobacco to be numbered, and to enter the num ber, time of receipt, etc., the name of owner or consignee, etc., in a book to be kept by each of them. It was further provided that ,the tobacco in each hogshead should be inspected; that each hogshead, with the tobacco it contained, should be separately weighed; and that each hogshead should be branded with the weight of the tobacco and of the hogshead. Provision was made for taking samples from each hogshead; for sealing and delivering to owners certificates of inspection of all merchantable tobacco; and for repacking and reweighing unmerchantable tobacco. It was made unlawful to take out of the state any uninspected tobacco in hogsheads. An amendatory act was passed in 1870, which allowed any grower or purchaser of tobacco to pack the same in counties where grown without having it opened for inspection. However, .by the amendatory act it was provided that such tobacco, whether or not opened for inspection, could only be packed in casks of a specified size, and should be liable to the full charge for outage and storage. By an act of 1872, such charge was fixed at $2 for a hogshead of 1,100 pounds. No inspection of the quality of the tobacco was required, but it was the duty of the grower or packer to have };1is tobacco delivered, packed by him, at some one of the state's tobacco warehouses, that the inspectors might ascertain whether it was packed in hogsheads of the proper dimensions, and whether it had been packed in the neighborhood, and where it was grown, and marked as required hy statute; and for this service, and no other, the owner of sueh tobacco was required to pay a charge of two dollars for every hogshead. No further duty was required of a tobacco inspector than to keep a record of the facts of each case, and to weigh the tobacco, and brand the weight on each hogshead. A question passed upon by the. l;jupreme court in this case was the validity of the law as an inspection law. in view of the fact that the plaintiff contended that the amount of the charge for such inspection was excessive. The of the court was in favor of the constitutionality of the law. . What I have already said disposes of the contention of plaintiff that contingently there ought to be a further inquiry in this case. But it is contended by the plaintiff that the law under consideration in this case shows upon its face, by various provisions made for the expenditure of the money collected under .the law, that the intention of the legislature was to collect a sum more than sufficient to pay the expense of inspection. An ingenious argument was made by Mr. Hill, the purpose of which was to show that certain provisions of law which had the effect of repealing appropriations made from the funds derived from the original fertilizer tax had the effect of reviving certain previous appropria.tion9 of money derived from the proceeds of such fertilizer tax. I am not disposed to deny the truth of the general proposition that the repeal -of a repealing law does, in the absence of any special circumstances,.
698 revive the
hDERAL REPORTER,
voL 52. is laid down "in Dwar,
',This
·N.'O; 628, PEARSON, C. J.,says: ,.' act oH8704871 repaals the' dode of Civil Proced\lre in regard to costs, nb p1ovislons'for costs in ,the ,matter now under consideration; so and theefflJct ill to'l1estoretheRevised COQe,inti)at particular.",
81. p.
But the' question is one of the ititention of the legislature. In the . ca$ebeforethe cml1't the legishl,ture; of North Carolina had, by the lawof1885, made an appropriation to the industrial 'school of $5,000 annUlilly. By an act Of assembly, passed, in 1887, which must be conbe substituted for the, act of 1885, and therefore to be a repealhig1aw 1 the legislat\ll'e of North Carolina 'appropriated to such s'chi)o1 fill the surplue'arlsing from the proceeds 'of the tax on fertilizers. Ih18!H:; an act of was passed', the effect of which, it is copc:ied'ed, was:to repe8l1 :the appropriation made to the state industrial 1887; It is ctlntended by Mr. Hill, for the plaintIff; 'th'litthe' Tepeal in 1891 of the aofof1887 revived the act of 1885, and thlit it'fooults frotIt :thigrevivarthat $5,000 ofthe'fund.arising from the preseht'tax 'on is to the indus!rial schObl. The 'slime argument IS usiKl to show thatbyexlstmg leglslation$500ot,;the' proceedS' of'the tonnage. taxon fertilizers is annually appropriatoo,totheNot'th CarQlinidndtlstrial Assooiation, which is, as the court is informed, anegl'o agricultural fair. The argument drawn frofu tbiscontention istbat the state to-day appropriatesQt least 85,500, 'axlJ;lUally, bf the moneyrderived from the tonnage tax to purposes other than"th@cost'of inspection offertilieers, and that this fact proves that the amount of'the tOl1nage tax waS ,intentionally made larger than was 'necessary; Tpe court i'Softhe opinion that such was not the intention of the hadat its June term, 1890,(43 Fed. Rep. 609,) decided thtl.tthe then Elxisting tax upon commercial fertilizers was unconstitutional, 'Il.tid hadgiven as a reason' for one of its positions, to wit, that the then existing tax on fertilizers could not be supported on the ground of its being'iflininapection tax; the fact that a large portion of the proceeds of such tax was appropriated for other than inspection purposes. At the ensuing sessiori:ofthe legi..slature of North Carolina in January, 1891, an act was passed which has been hereinbefore recited, and which in express termEi'repealEl all laws contlicting with itself. By the first section ofthisMt,which imposes l). 'tax of 25 cents per ton on all commer cial fertilizers, tlle IAgislature declares the purpose of the tax to be for inspectiop.only; The previous law had im.posed a tax of $500 per brand nponevery brand and description of fertilizer, and declared the same to 'be n, privilege tax. The'tonnage,ta6c of 25. bents declared by' the first section of the act of 1891 to!'be substituted' for the $500 privilege tax. This court will not infef, simply for the purpose of enf<lrcing an ancient rule of law having for its basis only the presumed intention of legislatures, that the purpose declared in the act of 1891 is falsely declared, and by contradicts the declared will of the leg. islature, that the repeal of sections of the Code which had been de-
PATAPSCO qUANq
c9. v. .
699
earlier elared unconstitutional should have only the effector equally that were attempted to berepea,led. The court is of the opinion that, under existing legisla:tion,therq is no appropriation of the proceeds of the directly to the support. of the industrial school, now called the "State Agricultul'aland ical College," or the" North Carolina Industrial,Association. " If it should be otherwise, however, it was not 'intended" and therefore does not affect, the. case. Certain appropriations are made, in unrepealed sections of the Code of North Carolina, from the funds of the state board of agriculture, for various purposes,-such as that, under section 2196, for the salary of an analyst;. under section 2198, to a geological museum; and, under some other sections, to various other purposes. But these appropriations are to be paid out of the general funds.of the state board of agriculture, which are derived from other sources, as well as from the. tonnage tax on fertilizers, and are not directly appropriated out of the tonn,age tax. In lieu of the appropriation of the surplUS funds derived from the tax on fertilizers, given by the act of 1887 to the state agricultural college. an annual sum of $10,000 is directed to be paid out of the treasury of the state to such college; and in lieu of the $500 directed to be paid out of the fertilizer tax to the North Carolina Industrial Association, an annual appropriation of $500 from the public treasury is made to the same. Chapter 338, Laws 1891, makes a provision. for the oyster industries of the state from other sources than the fertilizer tax. Chapter 417, Laws 1891, makes an appropriation of $10,000 direct from the treasury to the state geological survey, so that it is evident that the legislature of 1891 repealed all laws making any substantial diversion of the money to be derived from the tonnage tax on fertilizers:to any other purpose than to such as are directly or indirectly connected with the expense of inspection, leaving the real question for the courG only whether the tax of 25 cents per ton appears in itself so excessive as to indicate a purpose other than that declared on the face of the law. Upon this question the court has already declared its opinion. 3. But one question remains to be discussed. In the collation of spection laws given in the note to the case of Turner v. Maryland, no statute is mentioned which, under the guise of an inspection law, imposes an inllpection tax upon things not grown in or produced in state enacting the inspection law, and .there is as yet no decision of the supreme court approving of the validity of any law imposing a charge for the inspection of articles grown or produced outsidd of the state. In the very recent case of Voight v. Wright, 141 U. S. 62,11 Sup. Ct. Rep. 855, BRADLEY, J., in rendering the opinion of the court, says: "The question is still open as to the mode and extent in which state inspection laws (an constitutionally be applied to personal property imported from abroad or from another state." This question was not decided in VOight v.Wright,which was a case arising under the Virginia act of 1867, providing for the inspection of flour brought into the state, and offered for sale therein, and which went off on the ground that the Virginia law in question discriminated
700
FEDERAL REPORTER,
in favor of Virginia-made flour, and against flour manufactured in other states. The point Dlust necessarily be passed upon in the decision ofthis case. I do not think it necessary to expressly state that this law is technically an inspection law, though I see no reason why it should not be so called. Whatever called, it seems to Ilie to be a law that the state of North Carolina has the power to enact under the general powers reserved from the grant of other powers to the United States. It ianot worth while to discuss the question of whether it is one of the police powers of the state. It is, in effect. a law to provide for the security of purchasers in buying an article whose contents and qualities cannot be determined by ordinary inspection, but only by analysis and the use of the knowledge of experts. It would seem that there can be no reason why, in the absence of any constitutional objection, a state should not have the power, in the regulation of its internal commerce, to say that articIesof this description shall not be sold within its limits without inspection. It is a law enacted to protect the citizens of the state from fraud. Neither do I know of any reason why the state should not be permitted to charge the cost of the inspection upon those offering such . articles for sale. The'judgment of the court is that the injunction heretofore granted be dissolved, the bill dismissed, and that the defendant have judgment for costs against the plaintiff and its surety on the prosecution bond·
· B'E'c:K&'P.A:utI LITHOGRAPHING Co. v. COLORADQMILLING & ELE. VATORCO.' (Oircuit Court of Appeals, C£rcuit.
October 31, 1892.)
No.' 141. 1 (ilo'1lt'r1l.iAOTS 01' SALE-RIGHT TO RESOIND-;-TIJ,tE TIlE ESSENCE.
In ontracts of merchants for the sale and delivery or for the ma.nufacture and , sale gf marketable coriul1odities,'a statement descriptive .of the su.biect-matter, ormaterial incident, such aethe time of shipment, IS a condltlOn · 'ulWn the failure or llonperformanlie of which the party aggrieved may repu iat& the 'whole contract. . POR WORK.....TDlE. WHEN THE ESSENOE-DAJ,tAGE8 9 · -llut in contracts for work or skill, a,nd the materials upon WhICh. It IS to .be 1?e-stowed. a. statement llxing the time of of tpe IS not ordlllarlly . of its esserice;aod a failure to perform Wlthm the stIpulated,. followed '!?y ilubstimtial performance after a shom,llela:J:, will n?t ag.grleved party m repudiating- the entire contract, but will SImply gIve hIm hIS actIOn for damages for the breach of the stil;l'ulation. ·
to manufacture and furnish articles for the and peculiar use of another, with special fe!itures which he reqUIres, whICh renhd.ef them of value to him' but useless and unsalable to others,-artIcles whose c Ie cost and value are derived from the labor and skill bestowed upon them, and nOJ from the materials of which they are mMe.-is a contract for work and labor, an not a contract oissle. f.
by a lithographing com'pany to make and. furnish,"1n th.e course of the year," designs of \lOrtain buildings of a manfacturlllg company, WIth sketchea.