799
In re (OO'ct.iit Court, B.D. Ohio. November 14, No. 630. fI.unIAlI
The action of a court .ill. refnsillg to assign coullsel for aprisoller's defellSB, ill him t9. trial withollt for preparation and witbout opportullity to .seeure,by'compnlsorypr6cess, the presence of material hi vIolation of the :constit'ution and laws! of'tbe state,cannot be considered by a federal 'Coul'tin habeas CO/f.PUB prQCeedings,:ln'Pugbt on the ground tbat the prisoner is 'denied the equal prot,ectiqDllf, the laws, and deprived, liberty without due of law, in violatidn of the fourteenth amendmellt. Ex parte Bllrding, 7. Sup. Ot. Rep. 'l8O, 120 U. B; 782, alia. Ex paIIU m'l'k:h,4$Fed. Rep. 661, followed." ;',;:( ! .
OORP17S--IssUAlfOll.OJ'
THBWRrr-STATB COURTS.
is as follows:
complaint, and respectfully represents to this honorable court that be (relator) is unlawfully restrained and deprived of his liberty, and imprisoned in the Ohio penitentiary BtColumbus, Ohio; that said imprisonment is by Virtue of an order or judgment of the court of the common pleas in and for the county of Wood and state of Ohio; that said imprisonment Is by tbe 'state of Ohio, by C. C. James, Esq., as agent of said state and warden of said penitentiary; that heretofore, to wit, on the 16tb day of January, 1892, relator was indicted by the grand jury of said Wood county, Ohio, and charged with baving committed tbe crime of · forgery and uttering a forged instrument;' that said cbarge was a felony, under the laws of Ohio; that tbereafter,to wit. on tbe 20th'day of said January; relator Was arraigned upon said charge, and entered a plea of · Not guilty' tbereto; that the laws of tbe state of Ohio provide that the court shall, at the time of arraignment, aBsignsaidcause for trial at tbe same term; that said court did not assign said cause for trial atany time; that relator was without counsel, and wholly unable to employ counsel to assist him in his defense, and said court well k new of tbese facts; that the constitution and laws of Ohio provide tbat the court shall, if tbe prisoner 'comes without counsel, before it proceed wltb the case. assign hi m counsel, not more than two, who shall, at the expense of the state, as· list the prisoner in his defense: that the court did not assign any counsel whatever to aflsist the prisuner (relator) in his defense to said cause, but said COUl't did tben and there appoint able counsel to assist the prosecution of said cause on the part of the state ,of Obio; that thereafter, to wit. on the 7th day of Marcb,A. D. 1892. relator was again brought before said court in custody of the sheriff of said' cotinty. and without warning, or said cause being prefor trial, as prOVided by law, was by said court immediately viously placed upon trial of said charge: that relator then and there filed witb said court his written objections thereto. and in accordance with due provisions 9f law'set fllrth the facts tIJRt he (relator) had material witnesses who were ausent, loInd: without whom he could not Bafely proceed to the trial of said
Clt:cuit COurt in andfor the Southern District oj .' . Ohio. .. Ex parte HiramP. McKnight. Complaint, petition, and affidavit for a writ of, habeas corpus and certiorari : "The. above-named Hiram P. McKnigbt, relator herein, makes thisbis
800
Jl'EDERAL l1EPORTBB "vol.
52.
cause, and that he had also been confined in jail, and bad no counsel to assist Qhi,o provide that the accused shall be him; that the constitution allowed compulsory process to procure the altendance of his witnessE's: that compUlsory procells,to,cQ;mpel the attendance of material witnesses was by said court denied to rE'lator; that there is no process due to the laws of the state of Ohio wherewith a person may be charged with crime, arrested, imprisoned, tried, convicted, and sentenced, without first giVing to the accounsel to assist him in nis defense, compulsory process to compel the hiswjinesses. and .thecause assigned for trial a time to allow the accused and his counsel so .assigned to preparE\ for to the cbarge: tbat relator also says that he did not at any. time waive his rIght to have the assistance of inbis defense. nor to have COIQpulsW'y process to procure biswitnesses in his behalf, nor the right to bil\;e' a'aid cause properly assigned for trial, togiv6 him an opportunity to prepare for trial thereof; that he (relator) has made his application in due form of law to each of circuit and supreme courts of the state Ohio for a writ of habeas corpus, and that the cause of said imprisonment be judicia\ll inquired into, and for proppr relief according to law: that the said several state courts of Ohio upon said application suspend' the wl'it of habeas C01'PUS, and refuse to give to relator jUdicial investigation and inquiry into .the cause of Relator further alleges. aud .II:YEll'.s, that said imprisonment Is in violation olthe constltlltionof the United states. and 'sections 1977, 1979, and 1980 of the Revised Statutes of the United States. and other acts of congress 'made ill purs uonce of said constitution; thatrelator is deprived of his liberty by the state of Ohio,without due process of law; and is denied the equal protection of the law w.hiJe within the jurisdiction Qfsaid state of Ohio: that relator has been denied qythe. state of Ohio privileges and immunities secured to the citizens of Ohio and the Upited S:tates:,that said relator 1s a natural·bol'ucitizen of the United States; that the, records and files of, ;said case are the possession of the clerk of the sQpl'&me court of Ohio, Urban H. Hester. Esq., attha city of l.Jolumbus. Ohio. AUoLwhich mQrefullyappears from the l'ecords and files of said cause, Which is entitled 'The State of Ohio vs. HiramP. McKnig.ht.' WheJ:ef,oJe, the said Hltam ·P. McKnight, relator in. tbe :foregoing petition. prays tbat,a. writ of kabeQ,8col'PUS may issue from the honorable U. S. circuit .Cl)ul'tl of tile of Ohio liO C. C..James, as warden of the Ohio penitentiary, at the; city. <if Columbus, Ohio. commanding him .to bring the body of ,the said HiramP. McKnigbt before said United Stales court!n a.ndf.,rthe southern uistrict of Ohio, and show fully for what cause he holds and imprisons ;tbe ,said Hiram P. McKnight: that the cause of said imprisonmentbe,fu'llyinqlliredinto; and that the same be declared in contlictwith the constitution Rnd JalVa of the United States, and tbesaid Hiram P.McKnight be dealt with according to law. Also that a writofc6rtwra1'i may issue to U"'ban H. clerk of the supreme court at the city of Columbus, Obioicommanding him to forthwith forward to the clerk of said United States- oircuit,court for the southern district of Ohio, at the, city 01 CincinnatkObio, to be used upon the hearing of this complaint, all and sin· gular the.Wes and records of said canse. And the said relator will ever pray. "HIRAM P. McKNIGHT, Complainant." Franklin Oounty-:-ss.: Hiram P. McKnight, who. be· according to law, deposetll aud says that he is the comin. tHe petition and complaint, and that the facts set forth therein are t.rue. HIRAM P. McKNIGHT. "SulJscribedand sworn to before me this 1st day of November. A. D. 1892. "GEOltGEW. MEURILL, Justice of the Peace." ing oi.,
IN RE M'KNIGHT.
801
TAFT, ·Circuit· Judge, (after stating the facts.) " The· sections of the statutes under which this cotirt exercises jurisdiction to issue the writ of corpUs have been quoted in the opinion just filed in the case of In re, Fed. Rep. 795. This court has no power to discharge the prisoner in the present case, unless it appears from the petition that the prisoner has been deprived of his liberty by the state of Ohio without due process of'law, and has been denied the equal protection of the law, In violation of the fourteenth amendment to the constitution of the United States, 'and, further, tha.t by reason thereof the sentencing court was without jurisdiction to pronounce the sentence. Before a court can interfere with the judgment of another court by habeas corpus, it must be able to say that the judgment is null and void. It is clear from. the petition that the court which sentenced the prisoner had jurisdiction of the person and of the offense charged in the indictmenti that the indictment was properly found bya grand jurYithat the case proceeded to trial and conviction before a petit jury i that judgment followed thereon; and that no want of jurisdiction in the court to pronounce the sentence appears un the face of the record. The only I ground for denying the power of the court to pronounce the judgment consists in the refusal of the court, as alleged, to assign counsel for peti., tioner's defense, in accordance with the law of Ohio, and in the court's forcing the relator to trial without sufficient time for preparation, and without giving him an opportunity, by the compulsory process of the court, to secure the presence of his material witnesses, who were absent, and without whom he could not safely proceed to trial. Such matters are mere irregularities or errors which cannot be considered or corrected by a court in the collateral proceeding in habeas corpus. They do not go to the jurisdiction of the court to pronounce the sentence. The right to have the assistance of eounsel is not alleged to have been infringed. The averment is that the trial court failed or refused to assign counsel at the expense of the state, which is a very different thing: Failure to furnish counsel to a defendaut is not a want of due process of.law. Ifastate statute accords such a right to an indigent defendant, a denial of it is error, only, which does not affect the jurisdiction of the court, or render its sentence void. Nor is the failure of the court to allow the defendant compulsory process for the attendance of his witnesses ajurisdictional defect which can be considered on habeasC01"JYU8. It is doubtful from the petition whether the petitioner intends to state that the court refused to issue compulsory process, or only that, by denying a continuance, the court failed to give an opportunity to procure the attendance of absent witnesses. conceding that the averment is ora refusal by the court of a compulsory process, the petition does not make a case for habeas corpus. This is conclusively settled by the case of Ex parte Harding, 120 U. S. 782, 7 Sup. Ct. Rep. 780. There it was averred that the prisoner was deprived of his liberty without due process oflaw, because a.t the trial in a court of a territory of the United States the petitioner was deprived of his right to obtain compulsory process for the attendance of his witnesses, in violation of the constitution of the v.52F.no.9-51
802
vol. 52.
United'States".which in article 60f the amendIl}el}tf'! secures such a right t&:persons trie.d ·.in courts of the .United: The court held that theiObjection to, aentenoe only.wen1t the of theproceedingsj and not to thejijiJ,'isdiction of the c,O,1lrt. tp.im,pose the sentence; that fOl1such thedudgJDentwas not VOlPi 1I-nd. the writ oUabtas no PQwer for its AqJ:re<#op. . :.Thecased.'u.& parUl because there thesuptame,coul't thevali4ity of. 11 trial and judg. ment, inaoourt,orgil,nizoo",under, .the·!tuthovity Qf the .Unj ted States, the right>; It viQlation. all8igned as fo:r tl;1e writ, was.in tetmsseeured ,to -thejpetitionerinthatQ!l.se by the fe<Jeral con· stitution. Here the judgment under consideration is that af a state court, and :the rightalleg@d to 'Qe ,violated secured by the federal oonstitution, but only by the cOQstitutiQPJl,nd laws of Ohio. It is:omly indirectly protected by the fourteenth &IPe.n,dment to the federal constitution"'r !JlQ,r!A,Ulnch, 48: Fed. nep·. Oiro.1).it Judge CAWWELL :held. thlillt the dilltl'ietcQurt.of the haq 110 authority , hywrit Of hallea8 tQ,d:eQhue a judgOlentof. a.state court a 'nuUity discharge theJP>riJ!oner from imptisonmentimposed by it,' where'such of the person, place, offenSe, and the oaaevand :ev:ery.thing: con!)bctedwith it. Under these the petitioneridoes nots'tate.At CM8;for the issuancepf a writ:, . · his cation is denied. 'q II;; :",,"
In re SANDERS.
" NOTember 14" 18'42.l , ..' ", ' . ' ;', ·
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gro.wn, except ,selling see'! in open " ,. 'bUilt to'bther- farmers' brgal'l1eners, shall be guilty. of, 1S Un'Conh ': st1tllt1oiJllil iaUd! v011l it-he" ,oh,mse, of with restie9t to the selling seed.tn original packages importetUrom anottier- state;· . . " ...., '. . . , . '. ,r · r , . · : . ' . " .i::..:. isexolush:ely ,W congress by the. con:. . even'if, in the exeroise' of . by i " '., : ,i"
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for 'rlt by, of, New North CamliOfij;wh,o,detailUi.petiti911er by reasqn ofa certain,'{lJ.#timlLsor warrantis8ued
it alleg\'ls
IN R]) 'SA-NDERS.', : ' ,r
803
by ajustice of the peace til and forsitid c6unty and state, fOUllded upon a judgment of conviction rendered by tbejustioe for the violation of a certaiJ.l statute of the state of North 0arolina, passed. py tbe general asthat state on the 5th day of March, 1891, entitled "An act to protect seed,buyers in North Carolina," being chapter 331 olthe Acts A.ssembly of North'Carolina fort1;le year 1891, in this: ,that petitioner, as.the agent oLD. M. Ferry.& Co., a firm composed ofcitizetls of the state of Michigan, and doing business in that state, certain seeds, exposed to sale nndeold at Wilmington, in North which were shipped to petitioner from the state of Michigan by said firm ofD. M. Ferry & Co., to be sold 'by bim as their agent. It also alleges that the seeds:so sold by petitioner were in the original packages as received .from the state of Michigan, .and it admits that the packages were not marked as required by the statute alluded to. Petitioner claims that the act of the general assembly of North Carolina, by virtue of which he was convicted,in safar as it applies to the act done by him, is in violation of the constitution of the United States, and that, therefore, no lawful conviction is possible under it, and thl1t consequently he is restrained of his liberty wrongfully. The writ, as prayed for,was i.ssued on the 8th day of MarCh; 1892. The slietiff madereturh to the writ oli the 24th day of March, 1892, admitting that 'he had petitioner in his custody, and that he held him in accordance with the terms of a warrant of commitment from a jUstice of the peace for the state and county mentioned. With his return the sheriff files a certified transcript of the recordo! the court of t,he justice, showil\g the trial , conviction, and commitment of the petitioner, from which it appears that the facts relative to the sale of the seed are correctly set forth in the petition filed in this matter. The sheriff, at the time he filed his return to the writ, produced before the court the petitioner, who was represented by cbunsel, and, there being no appearance for the sheriff nor for the state of North Carolina by col1nsel, the court ordered that the hearing of the matterinvol\'ed in this proceeding be postponed until the next term of the circuit court of the United States at Wilmington, N. C., and committed' the petitioner to the oustody of the marshal of that district. At the spring term, 1892, of the circuit court at Wilmington the matters arising on the writ and return were argued by counsel for petitioner, for the sheriff, and the state of North Carolina, and submitted to the court. The petitioner, as a, member of the firm of S. W. Sanders & Co., of Wilmington, N. C.; contracted. with 1>. M. Ferry & Co., of Detroit, Mich.; to sell for them garden, flower, and field seeds on certain terms and conditions set forth in a contract dated October 30, 1891. The seeds ordered were duly shipped by D. M. Ferry & Co. from Detroit, received by S. W. Sanders & Co. at Wilmington, and portions of them sold by petitioner. 'On the 5th day of March. 1891, the general assembly of North Carolina passed an act of which the following is a copy:
FEDERAL REPORTER,
IIAn Act to; Proteet8eed Buyer" in North Oarolina. "The general assembly of North Carolina do enact: Section 1. That any person doing in the state, who shall sell sped, or offer for or see!i, that are not plainly marked upon each pacJtage or bag containing such seed the yeal' in which said seed were grown. shall be guilty of a misdllme1\nor, and, upon conviction thereof, shall be fined not lesstbalftendollars or more than fifty dollars, or imprisoned not more than thirty and every offense: provided, that the provisions of the act shall not apply to farmers selling seed in open bulk to other .farmers or gardeners. 8ec,2, any persoll or persons who shall. witbintention to deceive,. wrongfqlly label,as to date, any package or bag containing garden,or vegetl!.ble se'ed,shall be guilty of a misdemeanor, and, upon conviction thereofiElh9ll be fined not less than ten or more than fifty dollars, or itnprisonednot less than ten or more than thirty days, Sec. 3. That this act shall be in' force- ·from and after the 1st day of September,' 1891. Ratified this, the 5tb day of March, 1891,» ,
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, The seeds.so.sent byD.M.Ferry & Co. were in p.ackages which were l)ot, marke,d with the year when the seeds were grown, as was required by this statpte , .and. the sales made by the. petitioner were in the original frqIl1: M;iphigan. Petitioner claims that this statute is a regulation states, the make which is not possessed by of a state, but is, by article I, § 8. cl. 3, States, vested exclusivf;Jly in the congrfss,provideq for : Counsel for the state of North Oarollna mentione<l, while it may affect COll1ll1llrcej is but is.shn,ply the exet:cise by the state of its police power ,QitizensfrQmJraud.The clause of the constitution appve reaPf'l as follows: "The shall have power to regulllte,commerce 'With fQreign Ilations and among the several states and with the Illdiantllib\;lf'l/' of a national regulation of commerceamQllgithe statel'!,Was one oft1}e mos,t influential causes leading to the formaHonof theconl'!Utution,()f the,Up.ited States, the desire being to!!ecure UUif()rmity Qf the commercial regulations against discriminating or, purdeIls.qme state legislation. It. is; .now well established that congress has the exclusiv:erigl,lt,,tQ,regulate<;omIJlerce, and that the grant to congress to that subject carried with it the whole matter, leaving nothing for the state to act upon in cases where the subject is nationa;J.. incharact;er. Gibbons v. Ogden, 9 Wheat. 1; Cook v. Pennsylvania, 97 U. S. 566; Railroad 00. v. Fuller, 17 Wall. 560; HenderBon v. Mayor, etc., 259; Railroad 00. v. Husen, 95 U. S, 465; Leisy v. Hardin; 135 U. S. 10 Sup. Ct. Rep. 681. Is this act of the general assemb)y of North Carolina, as applied to the sale in question, a regulation of interstate commerce? If so, it is void. The fact that congress has not legislated on tpis particular subject-has not especially regulated this character of· commerce-;-does not authorize the state legislature to regulate it, but shows that congress intends such sales to be free in all the states, and not to be restricted or burdened bY,llny state statute. Philadelphia &- S. !If. S. S. Co. v. Pennsylvania, 122 U. S. 336,7 Sup.
IN BE SANDERS.
805
Ct. Rep. 1118; Bowman v. Railway 0>.,125 U. S. 465, 8 Sup. Ct. Rep. 689, 1062. In Robbin8 v. Taxing Di8t., 120 U. S. 489, 7 Sup. Ct. Rep. 592, the court says: "The power granted to congress to regulate commerce among the states being exclusive when the subjects are national in their character, or admit only of one uniform system of regulation, the failure of congress to exercise that power in any case is an expression of its will that the subject shall be left free from restrictions or impositions upon it by the several states." The meaning of the decisions of the supreme court on this question is expressed by William Dr.aper Lewis in his recent instructive work entitled "The Federal Power over Commerce, and Its Effect on State Action," (page 123:) "Whenevertbe subject effected by state laws is in its nature national, or requires one uniform rule or plan of reg1llation, then the inaction of is evidence to the court of its intention that the commerce in this respect shall be free and untrammeled; but when the subject, from its local nature, does not seem to require a uniferm rule of rE'gulation, the inaction of congress is evidence to.the court that that body is willing that the states can effect such subjects in the legitimate exercise of their reserved powers." In one of the early cases in which this clause of the constitution received careful consideration, (Brown v. Maryland, 12 Wheat. 447,) Chief Justice MARSHAJ,L, in delivering the opinion of the court, used this language: "What, then, is the just extent of a power to regulate commerce with eigli nations and among the several states? This question was consIdered in the case of GibbOns v. Ogdm, 9 Wheat. I, In which it was declared to be complete in itself. and to acknowledge no limitations than are prescribed by t.he constitution. The power is coextensive with the subject on which it acts. and cannot be stopped at the extel'llal boundary of a state, but must enter its interior. * * * If this power reaches the interior of a state, and may be t.here exercised, it must be capable of authorlzinK the sale of those articles which it introduces. Commerce Is intercourse. One of Its most ordi· nary ingredients is traffic. It is inconceivable that the power to autho.rize this traffic, when given in the most comprehensive terms, with the intent that its efficacy should be cOll)plete, should cease at the point when its continuance is indispensable to its value.. To what purpose should the power to allow importation be given, unaccompanied with the power to authorize a sale of the thing imported? 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 oithe entire thhlg, then, as importation itself. It must be considered as a component part of the power to regulate commerce. Congress has a right, not only to authorize importation, uut to authorize the importer to sell," If congress should pass an act requiring all seed sold in packages to be marked with the year in which the same were grown, and prohibiting the sale unless so marked, regardless of the country where grown, including imported and domestic seeds, as this act does, it would be the exercise by congress of the power granted by the constitut.ion, and a regulation of commerce among the states. The difficulty of honestly COlliplying with such legislation would be presented to the consideration of that body as a reason why the statute should be amended or repealed.
806)
J'lllDlCRAt"1tBt'dltTEa',
'Vol. 52.
Ifthis be trtle, (and ,carf' it' that' oongress lias the: constitutional·right to legislate on this subject?) and if the' conclusion I reach is correct, that congress has exclusive jurisdiction of such 'regulation, does it not CoUGW'tbllit this legislation by'the general assembly of North Car" If the states can legislate, as to the of ,the absence of legislaby counsel in the argument, woulg :q.pt theprovisions of thatact be held to be so unreasonable,sllchaBufden on t'he'bUsiness of the country,and so interfere with the th,e citizeijs to it void? Itvlrttial1y'pr<:>hlblts the sale In North CarolIna 6f seed Imported from forejg,n (}ountries" for the packages would not be marked, and our dealrnll,I'k tl).em as required by that statute. It preers',could not i'ri of seed lawfully ,into tpat state vents, in themaill;l of the United, States, sent qy and doing business in other states"whopay to the government of the United States the postagei'lrfreight for the transportation of the same, under laws passed by congress. It favors the grower and dealer in seeds doing business .in North Ca.rolina to the detriment of tbe. growers and dealers oLall the states, for ,the farmers,of Nprth Carolina are, in effect,. regarded in seeds, and. exempted from therequirements of the law, and it would follow that all persons desiring purchase.frorn,:them would be "farme1"&o1' gardeners." It would thereby permit ,a certain portion of the citizens of that· state to engage in, that business, and prohibit all the rest from so doing. Why should the farmqepermitted to. sell seed in open bulk to other ers of farmers or D. M. Ferry & Co., or any in that traffic, be prohibited from so citizen who' doing? this protect seed buyers? What is meant by "open bulk?" The natural measingofthe words is, "in the mass; exposed to view; not tied or sealed' up.» Used in the connection they are in this llch they qo P?t relate to the quantity that may oe sold, nor does the statute resfti4tJho' aQOUll,ge .or less, or require a bushel or more to be or seed, not in a package sold. or bag, butinOopen buUq,.may be sold by a farmer toother farmers or 'gardeners, without the mark relating to the year when grown. The ef,fectof this is that all must sell their seeds throngh farmers,or The maY sell seeds, free fforn any be excluded from .the one kinqQf seeds, restrictions or marks, even if from the eiame original mass or bulk, if the same be in packages or bags, must have plliiilly inarked. u.pon'them the year when grown,the words that give purity to the contents, and eliminate all fraud from the sale. This statute Virtually prevents the importation into the state of North Carolina of all' garden and vegetable seeds' inpaper' packages or bags;' fonale iri'the which imported , and destroys that extensive !lnd far as that state is concerned.' If one state can'dothis, aU' Can. I f If'N6rth 'Carolina can impose this burden,dther statescail itnd similar or heavierones,totHegreatdamage
nt BE SANDERs.
807
ofa commerce in which not only this petitioner 'and D. M. Ferry & Co. are interested, but in which many citizens of many of the states have invested their means, and to which they have devoted their time and energies.In&, parte Kieffer, 40 Fed. 399, Mr. Justice BUWEB says: ',' , ' , "The moment you find any act of the legislature or any ordinance of a city which prevents the free exchange of lawful articles of commerce between the find an act or ordinance which contravenes the commercial clause states, of the United states constitution." It was argued that the statute, in question is but the legitimate exercise of the police power of the state. What is the "police power," conceded to: and proper to be exercised by the state? ' About this eminent jurists have differed, and have found it difficult ,to ,draw the line between it and the powers granted to the general government. , Mr. "Tustice STRONG; in delivering the, opinion of the court in' Railroad, :00. v. Husen, 95 U. S. 465, said, on this subject: "It is generally said to extend to making regula.tions promotive of domestic order, morals, health, and safety. As was said in Thorpe v. Railroad 00., 27 Vt. 149: ·It extends to the protection of the lives. limbs, health. comfort, and quiet of all persons, and the protection of all property, within the according to 8ic uteretuo ut alienum non lr.eda8, which being of universal application, it must of course be within the range of legislative action to define the mode and manner in Which one may so use his own as not to injure others.'It was further said that by the general police power of a state persons and property are subjected to all kinds of restraint and burdens in order to secure the general comfort, health, and prosperity of the state. of the perfect right of the legislature to do which no question ever was, or, upon acknowledged general principles, ever can be, made, so far as national per. sons are concerned." It may also be admitted that the police power of a state justifies the adoption of precalitidnarymeasures against social evils. Under it a state may legislate to prevent the spread of crime, or pauperism, or disturbance of the peace. It,may exclude from its limits convicts, paupers, idiots, and lunatics, and persons likely t? become a public charge, as well as persons contag'ious or infectious diseases; aright founded, as intimated in the Passenger Cases, 7 How. 283, by Mr. Justice Gi«il:R, in the sacred ,law of self-defense. The same principle, it may also be conceded, would justify the exclusion of property dangerous to the property of citizens of the state; for example, animals having contagious and infectious diseases. All these exertions_ of power are in immediate connection with the protection of persons and property against noxious acts other persons, or such a use of property as is-injurious to the property of ;others. They are I do not deem it necessary to review the CRseson this subject. It was really disposed of in Gibbons v. Ogden, the reasoning of Chief Justice MARSHALL being; to my l"ind, conclusive, and,as expressed in said case, 'never having been departed from in matters where exclusive jurisdiction is given to congress. As he well says: "The nullity of an act inconsistent with the
of'
808'
FEDERAL
coosti'tutionislproduced by the declaration that the cQl)stitutioq is supreme." :M:rIJustice MILLER, in .Hender8on v. Mayor, U. S. 259, on this QUesti01ii says: ;. . . "ltiiSicleah'1iom the nature()f that whenever the statute ofa state' invades the domain of legi'slation which be-: longsexclusivelr to the congress of the United States, it is void, no matter under whftt'ellislf of powers it·mayfaUt'or how closely allie9to powers conced'etl the states." '.. '.' '!" . I conciude that the police' of"il state cannot to embrace a subject confided exclusively to congress by the constitution of the United 'StaW$, If the subject-matter of state legislation is included in grant of commercial power to congress, then the state enactment is vOitl, 4:iven if it passed in the exercise·of the .police power of the state. Tae authorities in support of this are numerous, and from them lCite :Ra.uroad Co.v. Husen, 95 U. S. 465; Orutcher v. Kentucky, 141 U.S. 47/1-1; Sup. Ct. Rep. 85l; Lei8y v. Hardin, 135 U. S. 108, 10 Sup. Ct. Rep. 681. are submitted };>1 counsel for petitioner, but, holding Other as I do on tbematters I have mentioned, I do not find it necessary to pass upon. them. : . For the reasons that I have given I conclude that the act of the genentitled" An act to protect eral assembly6Hhe state of N seed buyers it(:North Carolina," being chapter 331 of the Acts for the year 1891; 'isjrioperative and void, and that the petitioner is in custody in violatiollof tbe constitution of the United States. :t therefore order that he be diSoharged Jrom custody.
STRAUSKY et al, ".ERHARDT, Collector. (Circuit S. D. Nci»York.
November 17,.1892.)
1.
CU8'l'QMS DU'l'lllIs-AC'l' Ol!'.
Blue' and white kitchen utensils, consisting' of pots, kettles, saucepans, ooffeepots, and similar ware, made of sheet steel, and glazed or enameled, not to be dutiable. as "hoUow ware, coated. glazed. or tinned. n under Sohedule C. i>ar. 201. at 80ents per pound, but dutiable at 45 'per cent. ad as· "manufacturers' articles or wares " * * composed wholly or in part of iron. steel. etc., .. under Schedule C,par. 216, of the act of March 8, 1888. "Hollow ware" means cast-iron ware, in the act of 1888.
8.1888....,HoLLOWWARB· .
2.
SAME.
At Law; Motion for a direction of a verdirt. Granted. Maurice.Strausky & Co. imported into the port of New York, in January,February, and March, 1890, certain steel kitchen utensils, hollow in form, glazed or enameled, blue and white, which he put upon the market, in his ,trade circulars, as "Strausky's Steel Ware." The oollector classified· them· under Schedule Cof the act of March 3, 1883, as manufactures of steel, etc. ,(paragraph 216;) and assessed duties