60 F. 774 | U.S. Circuit Court for the Southern District of Georgia | 1893
(after stating the facts). It will be observed from the averments of the bill that there is no attempt to prohibit the sales of meat, elsewhere than in the market house of the city. The ordinances in question, therefore, are not directed towards the avoidance of green grocers and butcher shops. It cannot, we think, be denied that it is within the power of the city to fix one or more localities for the sale of meats. This may be done to facilitate inspection, but, since, by permission of the city, a very large amount of the meat is sold at the butcher shops and places of business elsewhere than in the market house, it is evident that the prohibition of sales during market hours at such places is not intended to prevent sales of uninspected meat. It is true, in point of fact that the city authorities do not inspect meats except at the market house, yet the ordinance authorizes them so to do. After providing that “no person shall sell any article not wholesome for food,” it provides that “the clerk and inspector shall seize any such article he may find in market, and cause it to be destroyed, and the offender shall be punished,” etc. The meaning of the word “market,” in this sense cannot be “market house,” but it means all articles of food offered for purchase or sale in the city. The city law, therefore, expressly authorizes the maintenance of butcher shops at any other place in the city, and further provides for the inspection of meats at such places. It cannot, then, be satisfactorily argued that these regulations are made either to compel the concentration of the meat bustness'at the market house or to facilitate the inspection of meats. If, in order to facilitate inspection, the ordinance had expressly forbidden the sales of meat in the city elsewhere than at the market house, it might not have been difficult to sustain its constitutionality, even though it might have gravely interfered with interstate commerce. Such an ordinance would seem to be within the legitimate police power of the city. Slaughterhouse Cases, 16 Wall. 36; Butchers’ Union Slaughterhouse Co. v. Crescent City Live-Stock Landing Co., 111 U. S. 746, 4 Sup. Ct. 652. But, the ordinance not being of this character, the argument in its support, based upon that theory, must logically fail. Vide opinion of Sir. Justice Harlan in Minnesota v. Barber, 136 U. S. 329, 10 Sup. Ct. 862. Vide, also, Spellman v. New Orleans, 45 Fed. 3; Ex parte Kieffer, 40 Fed. 399.
It is not disputed that the business conducted by complainants is almost entirely that of selling meats raised in western states. These meats are transported to Macon and stored and offered for sale by means of the refrigerator apparatus. Complainants, thus engaged, must, in obedience to the ordinance, rent a stall in tbe market, and pay $150 therefor. They must, if engaged as wholesale dealers, also pay a license tax of $25 for the privilege of carrying on their business. From these burdens one who deals in meats pro
In the case of Voight v. Wright, 141 U. S. 62, 11 Sup. Ct. 855, the supreme court passed on this state of facts: The state of Virginia had enacted a statute which provided that all flour brought into the state and offered for sale therein must be reviewed, and have the Virginia inspection marked thereon, and imposing a penalty for offering for sale without such review or inspection. The court held this to be repugnant to the commerce clause of the constitution, because it is a discriminating law, requiring the inspection of flour brought from other states, when it is not required for flour manufactured in Virginia.
In the case of Brimmer v. Rebman, 138 U. S. 78, 11 Sup. Ct. 213, Mr. Justice Harlan, delivering the opinion of the court, remarked:
“Undoubtedly a state may establish regulations for the protection of its people against the sale of unwholesome meats, provided such regulations do not conflict with the powers conferred by the) constitution upon congress, or infringe on those granted and secured by that instrument. But it may not, under tlie guise of exerting its police powers, enact inspection laws, and make discriminations against the products and industries of some states in favor of the products a.nd industries of its own or other states. The owner- of the meats here in question, although they were from animals slaughtered in Illinois, had the right, under the constitution, to compete in the markets of Virginia upon terms of equality with the owners of like meats from animals slaughtered in Virginia or elsewhere within one hundred miles from the place of sale. Any regulation which, in terms or by its necessary operation, denies this equality in the markets of the state, is, when applied to the people ard the products or industries of other states, a direct burden upon commerce among the states, and therefore void.”
It is clearly evident that the local regulations of the city of Macon, imposing a tax of $500 or $3 50 and other restrictions on the selling of western meats, and nothing of the kind on the sale by producers of their own meats raised in this state, by their necessary operation deny to the former equality in the markets of this state, and are a direct burden upon commerce among the states, and are therefore void. See, also, Railroad Co. v. Husen, 95 U. S. 465.
The language of the ordinance is:
“All persons not renting a stall at tlie market for tlie sale of meat, and who shall sell any kind of moat on the streets of the city of Macon at any time during the night or day, shall pay a license tax of five hundred dollars per annum, such license to he paid in advance: provided, this section shall not apply to farmers bringing into the city for the purpose of sale the flesh of any animal raised by themselves, after market hours.”
And the tax ordinance of 1893, as follows:
“Be it ordained by the mayor and council of the city of Macon, and it is hereby ordained by the authority of the same, that the following licenses and special taxes shall be levied and collected in the city of Macon for the year 1893: Butchers and others who have no stall in the market, and who shall sell from shop or wagon, other than nonresidents selling meats of their own raising; and no license shall issue for less than five hundred dollars.”
It is true, the tax ordinance excepts from its verbal operation “nonresidents selling meats of their own raising,” but, since it is evident that the only persons who can avail themselves of this privilege are nonresidents who live in the immediate vicinity of Macon, it effectually excludes meat producers from all other states. Nor is this conclusion to be avoided merely because this enactment purports to apply alike to the vendors of meat in this state as well as to meats produced in other states, for “the burden imposed by a state upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to the people of all the states, including the people of the state enacting such statute.” Brimmer v. Kebman, supra. The case of Osborne v. Mobile, 16 Wall. 479, which seems to hold a contrary doctrine, has been overruled in later decisions. See Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 1380; Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. 1; Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851.
It follows, also, that the wholesale tax upon the business of meat selling within the city of Macon is void, the evidence showing that this business depends entirely upon the sale of western meats, there being no pretense of imposing a tax on home-made meats sold in bulk.
For the foregoing reasons the defendants must be enjoined from collecting these taxes. Because their regulations are also unconstitutional as imposing an unlawful restriction upon commerce between the states, they must be restrained from enforcing or endeavoring to enforce against the complainants the penalties provided in the ordinances for selling or offering for sale their meats at their regular
Let the demurrer be overruled. The answer is held insufficient.