864
J'BDERAL REPORTER,
vol. 41.
On the plot of the government survey filed in the case and at the hearing, the southerly end of the fourth line of the first deed is designated by the letter "G." This is the south-easterly corner of the tract conveyed by that deed. .In the second deed the first bound is fixed at a pointin the easterly line of the first.tract 14 from corner G. Commencing at the point thus defined,and running S. 45 deg. E.14rods and 14 links, the course and distance given in the deed, the line would terminate about 40 feet outside of the end of the stone wall mentioned in the deed, which is still in existence, and would include in the government land a strip two rods wide outside of the old wall for its entire length. This is manifestly incorrect, and shows conclusively that a mistake occurred in making the first line of the second deed begin 14 rods from corner G. This distance is evidently too short. The true line must be ascertained by running back from the end of the wall OI!l. a course N. 45 deg. W. (the opposite of the S. 45 deg. E. course of the deed) until it strikes the line of the first lot; and the latter line must be found by running from corner G, N. 53 deg. E. As nearly as I CAn make out from the plot, the effect of this will be to place the point' of departure between 16 and 17 rods from corner G, and to shorten the first line of the second deed between one and two rods. But the end of the old stone wall, which isa visible and known monument, the corner G, the true position of which is fixed with certainty, together with the compass courses, must prevail over measurements in establish· ing the boundaries. 'The stone wall meJ.!tioned in the second deed must constitute the easterly boundary of the tract for a distance of 38 rods, an,d from thence the lines given in the deed must govern. The defendant's entry upon this part of the land in dispute was consequently lawful. I assess the plaintifl"sdamageson the first count at five dollars. Judgment will be fur the plaintiff on the first count for five dollars and costs of suit, and on the second count judgment for the defendant. So ordered. '
HENNING t1. WESTERN UNION TEL. (Cwcuit Oo'U/rt, D.
Co.
Bouth. OwroUna. April 11, 1890.)
1.
NUIl!.A.NOB-TBLBGRAPlI WmBs-MAsTBR AND SBRVANT-PBRSOIUL INlURIBs.
Where employes of a t.elea-raph company negligently allow Its wires to fall on the Wires of an electric light company, and to remain there hanging down, the telegraph company is liable for injurIes sustained by a passenger on the street who ac>cidentally oomes in oontact therewitl1· D..uu.GES. .
...
A perSOD. so inJured is entitled to damages, if the employes acted in a spirit of'mischief or criminal inditference; ana it was known to the company's man. agers t c:lr if:the managers did not exercise proper care in selecting the employes, or if they Knew or had means of knowing that they were not skillful, prudent, or careful.
BENNIl'.G
WESTERN UNION TEL. -CO.
865
8.
BAHl!l-CONTRIBUTORY NEGLIGENCE.
.. NEw
U,howevert the passenger, warned byacompani,on, took hold of the w\t;e, and played wIth it, and was thus injured, he cannot recover, even though the com pany's employes were negligent. . TRIAL-MoTroN-RuLES OF COURT.
Where a rule of court requiring notice of motion for a new trial with the grounds thereof to be "filed with the clerk, served On the opposite party within two . days after the rendition of the verdict, unless the time be enlarged by the court,» is not complied with because of counsel's belief tbat the practice of tbe court forms to that of the state courts, the timefor filing such motion will be enlarged, even after the expiration of such tWo days, when the same can be done at the term .at w.hieh.the verdict was rendered. . .
Ttl'· NEW 'TRIAL·
NOTICE, ()1l' . MOTION FOR A
." :, (J\.prf!. 26; 1890.) ;r.1.'he for injuries ftlml·the wires of a trial term, lasting three days, the jurY, Qf Aprf}, verdiqtof%P:t;POO fQr plaintiff, a minor. As soon as the verdict was render.ed the li,ttorney fO'r the defendant rose in his place, and gave notice of a motiouJor a new trial. He did not, however, under the ;rule, filew'itli.the his notice and the grounds for his motjon, nor serve the mtter, on the plaintiff. He now asks that the time for d.'oirig these acts be Emlarged. . that the. of this court prescribe the time and in be, made" fheae rules h4\fe been inexistence SInce the 24th,Qf Apnl, 1874, the records. of the cd#rts' one one, pC'very in which'the or the' fllieshave been,' observed,. Very mnt;&d:S,elr'ca:nOe found'ih ,hai.e: peen applied for" granted; and,;otners refused. The court has'alw4Ys ,contented itself}yith,seeking administer justice, nqt, by the a,ndElo bat seems toba,-:e lost that sucq requlfements, e.x1st. months new trial i.n. and Greenvple"the court 113 ,·aria.It was atWnt1<¥i .of the bal" to. tl1.e l fact 'that th'e.eJdste,nceof acts' ot 5» this ()ourt. on · rendered pfactice of any statute :od>ractice :of Wfsstate. with ;egard ito such motione" 'Missouri, .etc.', etc., ',U,: ·. 191, Ot: ReP,.. . .Attenbon 18 now called once fdrall to thIS matter,. The rules regulatlDg .
u.s, the
These rules wl1l, be. en-
U. S. V., Biqitv.Strouse,.5 Fed. parte Clv1e;J4:S.. C. 389. present case comes ,up under rUle 34,. .... , . ..·.... .... ; .. ' , . ".N'o party sb.all,'beentitled tomove',t9Jaet aside. a verdict or in arrest of With the groillldsthereof.shalf'})e' filed with the clerk, 8Dd Stlrved o'!'i; the .paftYwitliin two days aftei:' rendition' 'Of the' ve.rdiet; unJeBs theAltme be'enl8,l'ged ,by the coutt... " . " '. J Nb,other j5ititof,'this. rulb . 'observed by the 'Must the 'di.soreition'6fthe court in ehlarging time 'within:"the 'two days? it bellp'pliedilfter- ' -f,iW 'meant for tlii3"convenhince' of the court,' for the orderly dispatch of business, and the prevention ofinjury to th.e opposite party. The court can exercise its discretion in Eirilarging the time after
been.'
can
IN:RE REBMAN.
867
it has expired. This is strictly analogous to the practice ·ofthe ,supreme court of the United States in the service of-papers, and in:;the performance of acts not regulated by statute. Railroad Co. v. BlMr, 100 U. S. 661; Dayton v. Lash, 94 U. S. 112; Davidson v. Lanier,4 Wall. 4p4j Martinv.Hunter, 1 Wheat. 361. ,Even the supreme court of South ,which carefully guards' strict cOlU,pliaJlC6Wdth its rules, peId, in War<lWw v. Er8kiM, 20.S.C. 582, that when notice of appeal was given they had the power, to relieve the appellant from the consequ!;Jnces of other 9mi&sions in, the appeal; and being satisfied there has beetlJ)Qculpable negligebceor intent to delay on'tbe part of appel,. lants,apd as no delay would be caused by granting the relief asked, the court granted the motion. The same court in Tribble .v. Poore" 28 S. C. 564, 6 S. E. Rep. 577, heard a motion under its rule 1, requiring the return to, be filed within 40.days atter the record constituting the return has been completed, held:, ' "The appeal haVing been taken in good faith. and, appellant, having in common with many others hqnestly misconstrued this.rnie,of court. he is flntitlec;l under thel,aw to have his His failure, before the forty, days expirell to give notice of a,motion to have his time for filing the return extended,;does not prevent ttlls court from granting such relief afterwards'" In the present case the attorney for the defenda.nt assures the.court that qmission was occasioned solely by his arising from the convictjt?n that our practice conforms to that of this much as the notice was duly given, and being satisfied that tbeintent to make the.notice is bona fide, not for delay, and that the plaintiff has not sustained any injury whatever by the omisi3ion, and especially this motion is made so long a time before the term will end, leave is granted' to the defendant to file and serVe the groqnds of his motiOIh provided t4at this be done within two days froIIl the date of this order. NOT:E.-1n a case of Blacklock v. Smalls, pending in this court, (April term, 1882,) the complll.inant'ssolicitor had failed to Observe the provisions of eqUity rale69. He went before the next term of the circuit court, WAI'l'E, C. J., presiding, and prayed that he be excepted from the operation of the rule, on the ,801e ground,of his own inadvertence. The p was granted, and the testimony taken. See, also,.Ingle v. Jones, 9 Wall. 486.
In re (cCrcuu
REBMAN.
E. D. Virainia. April 'T, 1800.)
Co1'lS'tIT1lTIOIUL LAW-RllGULATION OpINTERSTATE COMMERCE-MEAT INSPECTION LAW. Aets'Va. 1889-00, Co SO, p.68, requiring all fresh· meat which shall ,hlW8 been
miles or more from the place wherelt ,is olfered for sale} ,to, be iiispected before it is olfered, and providing for payment by the owner 01 I)ne cent per' pound: for suoh inspeotioDl..is' unnecessary and unreasonable, and, siooo. it hss exoluding C\res!JOO meat slaughtered, outside the state, is,\I;noonstitutional,a8 usurping the exolusive power to regulate .Interstate commerce given congress by Const. U. S. art. 1, § 8.
868
FEDERA.L REPORTER,
Pe,tition for a Writ.of Habeas CorpU8. W. J. Campbell and Wm. H. White, for petitioner. R. Taylor Scott, Atty. Gen. Va"and Robert M. Hughes, for respondent·. \',
:'
William Rebman is the agent of Armour & Co., of Chicago, who are shippers of fresh'dtessedbeef from Chicago to Norfolk for sale to'eonsumers. Areoents'Ot of the legislature of Virginia imposes a charge, of one cente's. pound for inspection upon fresh meat intended for sale at places 100 wiles and: more from the slaughter, requires it to be inspected before it ,is offered for sale, and imposes a fine of $50 to $100 for selling without inspection. This law was disregarded by Rebman; as violating the cODstitutionof, the United States. He made a sale of beef which had not been inspected, was arrested,and tried by a justice of the peace of Norfolk" and tined 850 for the offense. Refusing to pay the fine, he was imprisoned in the city jail ot Norfolk. On his petition for the writ .of habeas CofpU8," the 9ase is heard by this court, on the question whether the law of Virginia, commonly called the "Fresh Meat Inspection Act," is in, violatioq of the federal The sqHreQte court of thl;lU'nitedStates has held in many cases that the clause of secti?n 8, art. 1, of the natlolial constitutioo, which gives to congress. power II to regillate commerce with foreign nations, and' among the several'state!'l, /lod with theltldian tribes," gives the power ,exclusively Rt;ld that whencoogress refrains from exercising it in relation to any,'subject, commerce ill that respect is free, and cannbt' be states., The'niost important of the cases establishing that' pti;nciple are dted by:(the court in Brawn v. Houston, 114 U. '8., atpaga,'631,;·o.Sup. Ct.Rep.'10.9l,deciped in and need not .In qtlitea number ofsubsequentca/>es, court has the same doctrine in applying it toa constantly fling of: cirqui,t 90urts of the ynited .su of several qf Ijltates, haveaonouQced thlsVlew of it in many cases <lomingbefore them; and Qodoc·trine is JPore established thal'lthis is in American jurisprudence. J1ndeed, Mr. Ju.sticeBRA.DLEY, in Stockton v. Railroad"CQ" 32'Fedi Rep. 17, in a circiltitt ,ebu'rt case, has said verycompendiously,that'" "The power of congress is supreme over the whole subject [of interstate commerce] unimpeded and unembarrassed.by state Jines or state laws; that, in this matter, the country is one, aud the work to be accomplished is national; and that state interests, state jealousies, and state prejudices do not require to be consulted. In matters of foreign alld.jnterstate commerce, there are no states." HUGHES,J.
va-
The union of'thil 'American states cOl11d not have formed, under the.constitutiou:oC 1787-89, but for tbe necessity which was felt for a fundamental that ·shou1J.absolutely exempt commerce between *e incu:inbranceand .Oq$truction by any' aodevery state; and the,xiIiracu,lo.ui!,growth of the American Union in population, wealth, a.nd as largely due to the perfect freedom of trade betwe'en the states as to any other cause. It is true that this
IN RE REBMAN.
869
exclusive power of congress over interstate commerce, this absolute freedom of trade between the states, exists concurrently with the inherent and natural power of the states by police. inspection, and even tax laws, to regulate their internal affairs, and to provide for the safety of their own communities. It is also true that this right of the state, in frequent instances, does conflict, or- seems to conflict, with the exclusive power of congress over the instrumentalities.and commodities of interstate commerce; and therefore, 'whenever this apparent conflict arises, the courts, both state and federal, are called upon to perform the duty, sometiml;l!'l difficult and occasionally invidious, of defining the relative powers of the two authorities. On this subject the supreme court has laid down some general principles as guides in cases of apparent conflict. In Railroad Co. v. Husen, 95 U. S. 465, the court said: "While we unhesitatingly admit that a state may pass ... ... .jc laws ... ... ... for the protection of life, liberty, health, or property within its borders; while it may prevent persons and animals stiffering under contagious or infectious diseases, or convIcts, etc., from entering the state; while, for the purpose of self-protection, it may establish quarantine and reasonable inspection laws,-it may not interfere with transportation into and through the state, beyond what is absolutely necessary for its self-protection. The police power of a state cannot obstruct foreign ... ... ... or interstate commerce beyond tIie necessity for its exercIse; and, as its range sometimes comes very near to the field committed by the constitution to congress, it is the duty of the courts to guard vigilantly against any needless intrusion."
In Henderson v. Mayor, etc., 92 U. S. 272, the supreme court said: one class of legislation and another is very nice, and not easily distinguishable. But, h()wever difficult this may be, it is clear * * ... that, whenever the statute of a state invades the domain of legislation which belongs exclusively the United States, it is void, no matter under what class of pdwerslt may fall, or how closely allied to powers conceded to belong to the states. The right of a state to protect herself by' necessary and proper laws against paupers and convicted criminals from abrQad can only arise'ffoIn a vital necessity for its exercise, and cannot be carried beyond the scope of that necessity." .. It must occur very often that the shading which marks the line between
In Bowman v. Railway Co., 125 U. S. 506, 8 Sup. Ct. Rep. 689, 1062, :M:r. J nstice FmLD said: "It is perhaps impossible to state any rule which would determine in all cases where the right to sell an imported article under the commercial power of the federal government ends, and the power of the state to restrict further sale bas commenced. Perhaps no safer rule can be adopted than the one laid down in Broum v. Maryland, [12 Wheat. 439,] that the commercial power continues until the articles imported have become mingled with and incorporated into the general property of the state, and not ·afterwards." "Sale Is the object of importation, and is an essential ingredient of that intercourse of which importation constitutes a part. It is as essential an ingredient,as indispensable to the existence of the entire thing, then, as importation itself; It must be considered as a component part of the poWer to regulatecommerce...
In the case in Wheaton, Ohief Justice
MARSHALL
had said:
87{) \;
vol. 41. ,i!: ,', ,")
. In,Muglet'v. Ka?'l8a8" 123 U.8'623, 8. Sup. Otdwp. 273, the SUprell,1e not at' an. follow tha:t every [state] statute,ell/loted ostensibly for theiiproQ)'dtion, of {proposed]6I1ds<.Jis to be accepted as ia :legitimate exertion of the.pPUee,pl>wers of a of necessity, limits beyond whioh *,. are not bOl,lod by D;1el:e they tobetlJisll'l<l!:l[ mere pretenl;les. ,They are at liberty. :':":"irl4eea;4re'uniler asoleuul dutl·...:...to Jook at the substance of things, whenupon the inquirj,'wbetber tIw legislatpre has transcendedthil have been enflim.its'tifits atlthority. If,therefore;'ifstatute ,adted to"pTot!lctithe public healthi:the;publiClnoralsi'orrtbe public safpty'has no real or substantial relation to those objects. or is a palpable invasion of rights S:66,llred by the is the qutyof tbe courts to so adjUdge. a'lp give effect to ,the, cons ti tution... In the case of Bowman v. Railway ao., already bited', the supreme court ,said:',: , ", from mass, ulatioD,e, tiona call 'be J:ijade impose another.;5tll.t,e/ upon t;lot p,l'operty of into this state the common by any and no
. In WaUin!f,f.:.fC()ple, 116 U. S. 4413,6 Sup. the supreme ": r ' , ".',' , court said: 'i, ' "A tax; imposett'bya statllt&of a statenpan an occupatio'!\' which necessarily discrimInates ,against, the ,l:lltl;odnctlonand sale of tlle products of another state, or the citizens of'ahOtllllr state. is repugnant to the constitution " '." ' ," ' of the . . ·,'1
(i .,/: Jh i .. )
,
··
It would be qijite impmcticablE1 on the presentodcasioh to consider all the the supteme court' has rendered on the general substate,andJederallaws;aha,to discriminate bein unconstitutween tion8l and YQiddl.nd those inwbichit has held thll1n:to be valid. From the decisions, mentioned in the foregoing paragraphS', i have extracted only such expressions of the court as serve to outline the principles Of the case atbar.. ; While counsel.fottbe petitionerobject to the Virginia statute under consideration, chiefly as violating the cQUlmerce clause also maintain that it of tart. 4, of the constitution, which declares that "the: citizens of ea:ohatate shall be entitled'to all privileges andimmunities bf'oitizens inWe'several states." HiS' chiefly with ence to that I shall Virginia other is a cunwlative,provision. statute The generl!.Ip,rmciples of law governing the case at, bar having been set out, I turn'tbi1thefacts: which"if presents. , Iam'at 'liberty tota.ke judicial of the factthl1t 'avery large interstate' trade exists in fresh I am to take also of geograph,the fapt the Virginia imposing a charge of one cent per pound on all fresh meats offered for sale at 100
IN RE REBMAN;
871
miles or more from the plnces of slaughter,' imposes this charge on fresh meats broughtfromall other states oftheUnionj and, as to those cities of Virginia having i5,OOOin.habitants, imposes it upon meats brought from all or nearly all thatpor'tion of Virginia lying west of the Blue Ridge mountains. On the subject of the magnitude and importance of the interstate trade in fresh dressed meatll, I adopt the language of the circuit court of the United States for the norlhemdistrict of Illinois, in Swift v. Sutphin, 39 Fed. Rep. 631: "Dressed meats have been, from time hriinemorial, articlesot locttt merce, · · · and theconrts will takejndicial notice that witbin ,tbelast few by means of new appliances for the preservation of sucb meats, and the fOr'. transportation by meanS of raUroads, a large, aod,it: may 1?e.said, anew. ,has grown .up in. the slaughteting · for bumanfoOd to distant from'th,e place, of slaughter; so that this bUsiness bas nOW become an important item of int,erstate commerce. The press teems with accountsand·staMments of the 'magnitude'of the business. The traveler jotirneylngover oUr railr0Ms meets :at almost every point cars constructed and adapte,d exprellsly for;sucbbusines8. The records of the patent-office show the vention aqd patentipg of,many cars (orconductin/:t at the late sessIon or-congress a committee. was appointed by the senate to lDvestigate duringtMrecess. report. · · upon some the phases and methOds of·said buEiiness; so that there can be no doubt. from common knOWledge. that to-day dressed meats for human foodar&articles'CIlf interstate Dressed fresh meats being an article of ReneralinterstatetlOmmerce, of great and grOWing magnitude and importanoe, the facts of the ease at bar seems' these: The petition of the prisoner sets forth, among other things; 'that at ;the time of the passage of the Virginia act there were no persons, firms,or corporations conducting thedressed'beef business anywhere in the state of Virginia, and none anywhere having their slaughter-houses as nea:l.' ,the cities of Richmond and Norfolk as 100 miles; and that the said act applied to nO' other petironsengaged in dressed beef business, except those who Rlaughter l1heircattleand pre:" pare fresh meats'for distant marketl3 outside of the state of Virginia. In: an· affidavit made by the petitioner sUbsequently to the nlingof his tition-'-an affidavit Which I think, under the circt'lm'stances, may be consideredby' the court, this being a habeas corpus case, UP011 a prayer for personal liberty-it is' alleged that Armour & Co. and 'another :firm in Chicago, as well in Kansas City, Mo., Oml1hli; Neb., and Hammond, Ind., are engaged in the business of slaughtering cattle and shipping fresh dressed beef to other states; that Armour & Co. 'andothers were,praviously to the 1st day of March, 1890, selling in the state of Virginia fresh beef from animals slaughtered at Chicago)·that Armour & Co. and Swift &:. Co. were' so selling in the city of 'Norfolk', ha,ve sold since the 4th of March, '1889, respectively, 2,380 and '2,000 carcasses, 1;307,372 and 1,178,000 pounds of Western tOtal 'amount of such beef sold :in NOl'folk:·tor the dressed beef;' that year ending February, 1'890, was ,thesE!itwo firmshavealsci houses for' thess.le ohhis article that
872
FEDERAr, REPORTER, YOl.
41.
the firm of Nelson,. MQrr,is&i Co. had up to .March 1, 1890, a house in this. state; .that the total amount of the this article shipped by houses to Virgini!J.fu.Plto February 28, 1890, the preViOll$ 12,mQpths, was4,587,QOQ· that the average amountof.dresM\lQ!*if in a car-load ;1:6,500 pounds, the freight chargeon whioh, froQl,Ql;licago to Nprfolk, does not 15 cents per 1.00 pounds, oJ.;,Q1.1tll,alf the: ItfIlountof t4.e imposed by Virginia for inspection; that the average price received by Armour & Co. for the fresh peef soldjn:Norfolk and a qUfl,rter .cents.3 pound; that the oowmission'paid for selliugis,twoififths to halfa:cent; and that the net price received on the beef on 'board the cars at Chicago, making no allowance for icing,whichleostf3 $10 per car-load and paid by the ownfour alld a per pound; there are no persons caron beef business, emb.racing slallghtering and shipping in.Yirginia; that the ,time occupied by inspectors in inspecting a load of dressedlDeeft under the Virginia law, is not more than 50 minutes, for whi<lh ttiey'aterallowed law $165; that on the business done in Norfolk in tHe 12 rnouthsezllding 28, 1890, the charge ih1pdsed Jiy this ,$34,850,or.20 per cent, of the price of. the' l>ee,f, and 25 per,cent. ,oftheamqunt received from the beef in and selling. charges; that there aretwoinspectli>r!Lat Norfolk, whose compensation on the sales at Nor.., folk during the 12 months mentioned, after paying into the statEr treas;.· llry one-half of their :fees, ,:would have been $12.,400, or $6,200 eMh; the inspection feeof'Q·necent per ,pouud on the entire business.d?ne in.·the state. of Virginia the period mentionedwoilld have been $45,870j that the said inspection fee oi one cent pel' pound is in' fact. a prohibition against the s$leof Western dressed beef in the markets of Yirgini!J.j that, COming in, competition here, as the shippers of this .cle do, with local isll1ughterers, who are notrequiredtQ pay any inspecti\lll fee, the beef brought from Chicago and, the West, of one cent per pound, is so great as to JUake it impossible to carryon the business,ex,cept. at It loss; that the effect of the act has been to stop the business, and no fresh dressed roeats, slaughtered as described, are now sold in..Norfolk, except, an occasional order filled frdm Baltimore. Finally, that no person, firm or corporation prior tll, at, or since the passage of the Virginia law, had or has been engaged in selling fresh beef slaughtered a hundred miles. distant. at any place in Virginia, having less than 15,000 rnhabitants. .' .. The act of Virginia complained of recites that "whereas, it is believed that unwholesome meats are being offered for sale in this comJUon.. wealth," it therefore enacts. in Election 1, that it shall not be lawful to, offer for sale within this state, gny fresh meats,beef, veal or mutton whioh shall ha'Ve ·beenslaughtered100 miles or over from ,the place at wbiohit is offered for except it has ,been inspeclted and approved ashereinMter provided. In section .2 it provides that each county and ,gorpofll.tioncourt shall appoint one or more inspectors of fresh meats wheopeti,twlled so to do by 20 citizens, and mal,c..es 'it the 1
IN REREBMAN.
873
duty of the inspectors to 'inspect and approve or condemn all fresh meats offered for sale which have been transported 100 miles or more from the place of slaughter. In section 3 it imposes a charge of one cent a pound upon the owner of the meat inspected', payable to the inspectors. In sectior(4 it makes it the duty of an owners of fresh meat, before offer'ing it for sale, to apply to the inspector for the inspection of their meat, and imposes a fine of not less than $50 nor more tha08100 for eMh fl1ilure so to do, recoverable before any justice of the peace; and' providesthat in cities of 15.000 inhabitants or more half df the fees received by the inspectors shall be paid into the state treasury. But the counties of Accomac and Northampton are exempted from the operation of the act.' In section 5it requires the inspectors to mftke oath that they will faithfully perform their duties, aud' allows the eourts appointing to remove them from office; In section 6, and last, it provides that the act sQl111be in force from the '1st of March, .1890. See Acts 1889-90, c.80, p.Ga. ' . UpQri the authorities and case thus presented, I come to consider whetheror not the Virginia "Act to prevent the saleofUnwholesomemeats'" is and bas precedence asaniilspectiori law over constitutional provisions for securing the freedom of trade betWeen the states. ", It is nndeniable that a state of this Union, like all other self-governing states', h8.$tbe power to enact inspection laws for the public safety. It has as a right to this 'power as it has to existence. It may enact and enforce inspection laws, adapted tosectire the public safety, even thotlghthey trench up!,n,and'rnore less obstruct";tbe freedom of trade betweent1:le states. It is equally true, however, tbatinspection laws, to be within ,the sovereign prerogative of the state, and to'stand superior to cardinal provisions of the national constitution, must be essentially and really such in character, purpose,ftlt<! operation. To call a law an inspection law does not make it one competent to override any tenet of constitutionallaw. It must be an inspection law in spirit and in truth, in order that its character 8.$ such snaIl be respected; and even though it be, in its essence arid design. an inspection law, yet, in order that it may not be subordinated to theproyision of the constitutioll establishing the freedom of interstate commerce, it must be a "reasonable" law, properly devised for preventing the evil at which it is aimed; 'so devised' as to'no more than effectuate that purpose, ahdas not to other objects . unessential to the public safety. When inspection laws are abused for the latter ends,and thereby affect fore'ign commerce and trade between 'states, it is, competent for the national courts---it is made our "solemn dl1ty"-topronounce them invalid, and to forbid their enforcement. The framers of the nati()llal constitutiqn indicated their apprehension of the abuses of inspection laws would besusceptible,'8ud of the necessity 'ofeubjecting them to stringent limitation, in'the,'remarklibleclause 2, § 10, art. 1, of that instrument, in which; giving,the states power to .impose' inspectron charges upon foreign' commerCe, they required thatprevions leave should be obtained from congress to impose themj that the laws when passed should be subject 'to corigressionahe-
,874 into
RlilPORTER)
.vol. 41.
eqntrolii.tpfJ.t;theUll;meys IlrJsil}g from SJ:lAllCMrgesflhouldl.>e i, t:Iie ql1ly ,the ·. ,They gave po powi¥' i,n,spectiQll charges upou; commerce tptates;an; irppliesthat they inteptiona11y ·. But whether or IlRh ",as "absolute necessity:? The C:;Qurt .· for llPon intersta,.t(l con;lIpe1;ce we ,requiril1g only that they ,be ..)l d ,4IlQ,,!W,;it SeelI,Is)0:WP, quElStio.o: at l:>ltris resolved intqthe inquiry ,nqt trie law Rf, ,virginia is Mceyil, has an eye single to the prefor the, prevention, mauner less intl;) of, any ;cpuld, be devised, . is this case is within the cognizance of this court. . The act,)l!>t only forher;e qf beef, frqm .being,qffered for sale until ,.It. attacqes, the;:IPt¥\tbefore it O{ while it is ,yet.aQ. pJ.: its insPElq;tion", 8Q9.:..sqRil¥its toJq6;,W:specpioA, pharge, whpe P,\>lll,ffi eJ;ce·.. a,law is em;by: Ohi.af J ,fgr' fthilf if no other, case. Doitig so" tp,e first inquiry is, t8 tqepublic healtll andsafety., ,This ;noG by.,tqe act is, iollo, wBty S}lOWiIl On ,the a nl,atte,r ,9,f )cqrpmon though, dried, cRilned, 4lnd cookl'ld, of poison ,pI' RY qons1,lwers,,y:et,that fresh, \Vhel) unsound, ,:reveal ,tlle fact fl), /lo manp,efso to the senses th,at purchasers are if ,The. .the, tb C3 case, II-ud raw, is in sPlDe, inst,ances 110tq .the naked eye, yet,the the only offresh meat really ,thfeateniI,ig, /1:rpong its subjects ,certainly, sol<l in the state; it ,si!»,ply, thElpe,Aef are offered for .. ,1)0 prevalent epidemic,!J.91.gen e,ral or danger exif:\tedto render ab. a tal,l ... eh as., bl¥l"ne."vel'. bee.n. b,efore IWiE/!!4 does not p1,lrport .. J¥!... of theopiniqn even if it We,rll, a charge to 25 . peJi is ;. ": ; : : : , '
IN RE REtlMAN.
875
We are familiar with the imposition of heavydutiel!lon bf foreign importation, lilid, for the purpose ofl protecting borne ,articles' of the same classesfromoompetitiol1 j but such charges are unknown 'to inspection laws. To impose a charge of 20 to 25 per cent. dn distantly slaughtered fresh meats, aoldin competition with meats slaughtered at home, upon which no:charge is imposed,is tantamount to a prohibition of thesll.le of the commercial meats. Aninspection'law may altogether prohibit the introduction of deleterious articles, (alcoholic spirits, fOT instancej) but if articles ,of general commerce are admitted, then any charge upon them Jor inspectiolJ beyond the cost of executing it is eign to the rightful function and office of inspection laws. The hea\"y charge imposed by the law under consideration itself suggests that its real purpose was prohibition, and it iA difficult to believe that such was not its purpose. If so, ,applying asitdoes to an important, and what become an indispensable, article of commerce betwoonthe states, itiB invalid. Reasonable inspection charges are not objectionable or illegal in their relation to generalcommerce; but when the power to impose them is abused, to the purpose' of .destroying such trade,·, it becomes unconstitutional. Medicine judiciooslyadministered cures the patient, butwhen the practitioner gives it in a dose to destroy life" ,he comIiiits· '& crime. Prohibition of trade is destruction to trade, and 'when prohibitive inspection laws, if such anomalies can be, destroy trade between the states in any commodity Of commerce, they violate the constitution of the United States, and subvert one of the most important objects for which the states, in mutual g90d faith, adopted that instrument. Even if it could be thought that charge imposed by this law is not prohibitisnQt unreasonable. ive, still it may be, asked if the Surely it ought not to cost owners of distantly butchered fresh meats twice as much. to have them inspected as to have them transported in expensive trains, nearly. half way acro$s the continent. Surely' an inspection serv,ice of lesS thallan hour,rendered by eye nostril only, oiight to be rend¢red for a less pensation then $165. ' Without entering into further detail I am of opinion that the burden of trade beimposed by this inspection law upon an important tween the states is unreasonable, unnecessary, and 'therefore tional. ' Though it is hardly to do so, it may be well to'inquire whether this is rea]]yan inspection law. inspection laws are thOse which look only't6 the public health and welfare, and 'employ no other expedients to subserve these ends than sochns are and proper forthe'ptirpose. No charges which such Jaws impose are, as to general trade; legitimate hut such asitierely defray the expellseof executing this expenstfmust not itself be unreasonable.' The law of 'far transcends this , HaJf the moneys paid for 'jnsHcction are given 'to 'the' other half are ordered treasury. .On a year's business such' as that of the last 1'2 niontiisih cities of Norlo1k and RichIIiOlld'alol1e, this half would
876
prodtlQe $25,000 for the public fisc, if the chlirge should not destroy the trade. As to this half of the revenue arising from. the insJ.oection required, what is it but a tax? I know of no better definition of a tax thaI;l that it is a burden imposed by legislation upon persons or property, tOl'tl-ise money for public 'purposes, 01' for the accomplishment of some rightful governmental end. This law treats the money derived from the pwners of the meats as general public revenue, lind there is no provision declaring or implying that it is to be used for sanitary or inspectionpurposes. In terms an inspection law, it is in fact a law, taxing for the benefit of the state treasury a prime necessary .of life, an universalarticle of human food, and an important commodity of general No one will pretend that a tax law which avowedly collectB arevenue for the public treasury of a state from chargesJaid uponarticles of brought into the state for sale, is constitutional.,Suchis:the law under consideration, 'nor can ,y.on change its essential cbarMtel',by calling Han inspection law. , ,I will an order for the disch.arge,of the petiti.oner!, , , I bave., Q,ll-p,this cause ,brought in,to ,the. circuit court, and have heard it there, in Qr4er that it may be taken, dire¢ttQ the -supreme court of the United it will probably be heard as a privileged case.
·'iT:.
In r6 KAUFMAN. (Ci'1'cuU Court, D. MarYland.. April 91, isOO.) .. : . : . . . .
.Ami'r-PtuvA".....ENLIIlTMBNT Oll' MINOBS'-DllSBRTION-H.ulB.&.1 CoRPtrS. !
of. age, andre6eives pay and,clotbing, and afterwards and is arrested 88 a des6rter, aDd, ail tbe'tlJrie of his petition ill held by tbe United Statell awaiting trial ,.by a tbe oriIlle of desex:ti,on, will not be relEl8sed, under a writ of 'h.iJheas corpus, upon'the ground tbat, being a IIlinor, his enlistment was unlawful, . , and contrary to tbe Revised Statutes of the United States. . <S2Ittabusb1l
. A IIlinor who enlists in the United Stat?1 arIllyupon hil representation that he il
T.
Tlws. G,·
of Habeas Corpus. States.
U. S. Atty., for
. .. Kaufman flies. petition, for the writ of habeas corpus,. for. th¢ of his son, an· enlisted soldil:1J,' t1W army of the TJaitedStatel;l, ,WllQ is now at Fort McIIenry. It app,((arll,fr,om the petition and the .proofalso, that Oscar, St. Augus,tine, the ,year and desertedM:l!-rch 20, caJlle to l3altimore, where and he.dby themilitary o( the United States, anl1, ordered. a court-martial sitting at, Fort .McHenry for a deserter. It in proof. tha.t,altho\lgh :Kaufml;tn stated he was ,21 years of a.ge, at the timeo! his