173 Ga. 703 | Ga. | 1931
Blackshear Manufacturing Company filed its petition against Talmadge, Commissioner of Agriculture, seeking injunction to restrain him from “returning” to it and from “cancelling” registrations of forty-four brands of fertilizer and fertilizer materials “filed” by it with the commissioner on December 27, 1930, for the year 1931. Since 1893 the company has engaged in manufacturing and selling fertilizer and fertilizer materials. The capital invested in plant and equipment amounts to more than $300,000, and its annual output of at least 25,000 tons is worth approximately three quarters of a million dollars. It contends that statutes bearing upon the handling and inspection of fertilizer and fertilizer materials do not authorize the commissioner to “return” or “cancel” its registrations, and attacks portions of the statutes as being in violation of designated provisions of the State and Federal constitutions. At interlocutory hearing demurrers filed by the commissioner were sustained, and the petition was dismissed. The exception is to that judgment.
Petitioner alleges that it is the admitted purpose and intention of the commissioner to return and cancel the registrations, unless he be prevented by the courts from so doing. Section 1 of the act approved August 24, 1929 (Ga. Laws 1929, p. 228), which became effective on January 1, 1930, and by its terms is an enlargement of the existing laws regulating the sale, distribution, and inspection of fertilizers, provides that all persons manufacturing, mixing, selling, or offering for sale the commodities mentioned “shall first file annually with the commissioner, upon forms supplied” by him, a registration of each brand manufactured, stating the places at which registrant will do business, the sources from ■ which the various constituent elements of each brand are derived, and pay a fee of five dollars for each brand. Full compliance -with this provision is alleged. The grounds upon which it is alleged the commissioner claims the right to return and cancel the regis
The question is whether the petition set out a cause of action as against the general demurrer. Under the law a manufacturer of fertilizer must register in the department of agriculture the brands of his product, before they can be lawfully sold. The petitioner company alleges that it complied with the law, including the payment of required fees and the signing of an application on a form provided by the Commissioner of Agriculture, and that its brands of fertilizers were registered in accordance with the law. It further alleges that the commissioner admittedly “purposes and intends” to cancel its registrations and to return the same to petitioner. These alleged facts are of course admitted by the commissioner for the purposes of this case, at this stage. Section 11 of the act of 1929 (Ga. Laws 1929, pp. 228-232) is as follows: “If any manufacturer or mixer shall be subject to a penalty under the terms of this law and shall fail or refuse to pay the same upon demand as provided in the preceding section, the Commissioner of Agriculture is authorized to cancel the registration or registrations of such manufacturer or mixer and to forbid the sale by such manufacturer or mixer of any fertilizer or fertilizer materials in this State until such penalty or penalties have been paid, or final judgment has been obtained.” The only penalties which can be lawfully assessed are those provided in section 9 of this act, where it is provided that “these penalties shall be in lieu of all other penalties now provided by law, and shall not be cumulative.”
Did the General Assembly intend, in this section, to authorize
The necessary legal effect of this procedure, as we have construed it, is that the manufacturer will have the opportunity, after
The construction which we have placed upon sections 9, 10, and 11 of the act of 1929 is in accord with the contention of the defendant in error, as shown by the following excerpt from his brief: “The word ‘subject’ used in this act is evidently used in a qualified and not in an absolute sense. It is used in the sense of being liable or exposed to penalty, but not absolutely penalized. The word seems to be used in the sense that it was used in the constitution of the State of Mississippi in a provision ‘subject to taxation,’ in which it was held that the clause meant liable to taxation, and could not be construed as meaning that the property must be subjected to taxation.” The petitioner alleges that the penalty sought to be imposed by the commissioner is illegal and unauthorized, because the samples analyzed were not taken as provided by law. The question of how these samples should be taken was thoroughly considered in a comparatively recent case. For that reason we deem it unnecessary to discuss that question here. We merely refer to Swift v. Duncan, 154 Ga. 487, 490 (114 S. E. 897), where, among other things, it was said: “The sample which the State Chemist analyzes is not each separate subsample which the inspector lodges with the Commissioner of Agriculture, but ‘a sample of all fertilizers or fertilizer material drawn by the official inspectors and filed’ with the commissioner. It is a composite sample. The State Chemist makes a complete analysis of this composite sample, which' is recorded as the official analysis, and
The brief of the defendant calls attention to the following, which is found in the form furnished by the commissioner, signed by Blackshear Manufacturing Company, and attached to plaintiff’s petition: “In consideration of being allowed to sell and distribute the above-named brands of fertilizers and fertilizer materials, before the official analysis thereof is made, we agree and bind ourselves to cancel all sales thereof, and forfeit all claims for purchase-money thereof, if after the official analysis of any of these brands or materials is made the Commissioner of Agriculture shall prohibit the sale of said brands or materials in accordance with law.” It is insisted in effect that by reason of that signed declaration the company agreed to accept the rulings of the commissioner and to abide the results without contest. Without deciding the extent to which this declaration would bind Blackshear Manufacturing Company or whether it contains the elements of a binding contract, it is only necessary to note that the agreement is that the company will perform the agreements mentioned if and after “the commissioner shall prohibit the sale of said brands or materials in accordance with law.” It would seem that, without these words “in accordance with law,” no contract or agreement would be binding which authorized the commissioner to act without legal authority. The legislature has been careful in framing the fertilizer laws to prohibit fertilizer manufacturers from gaining any unlawful advantage by means of contracts.
The petition, in paragraph 20, including its subparagraphs, contains a lengthy general attack upon the fertilizer laws, particularly as contained in the Civil Code (1910), §§ 1781, 1783, on the .ground that the provisions are unreasonable, unjust, arbitrary, and oppressive. The allegations are elaborate in details and in statements of reasons. The plaintiff in its brief requests the court to decide another question. That request has reference to the claim of penalty for the sale of fertilizer branded “'Brantley’s Tobacco Special.” The petition alleges that the company did not sell any of that brand during 1930, the year in question. That allegation must, on demurrer, be accepted as true. It is not necessary to decide that question or to comment upon the criticisms of the fertilizer laws contained in paragraph 20 of the petition. It is deemed wiser to leave all questions not necessary for decision to be met when proper occasions arise.
The court erred in sustaining the general demurrer.
Judgment reversed.