100 Neb. 84 | Neb. | 1916
Lead Opinion
Tbe plaintiff in error, Cushman C. Hall, seeks to review the judgment of the district court for Douglas county. He was fined $50 and costs. The first count in the information charges the unlawful selling by the defendant on the 6th day of August, 1915, to Prank C. Mitchell of 500 cubic centimeters of anti-hog cholera serum for the sum of $12; that the defendant at the time of the sale did not hold an uncanceled, unexpired United States veterinary license issued by the United States Department of Agriculture, and did not hold a permit from the Live Stock Sanitary
It is claimed by the defendant that the district court erred in holding that the law under which the prosecution is brought is constitutional. Laws 1915, ch. 170. In the brief of the attorney general it is said that “The state is compelled to concede that the act'contains provisions that are inconsistent, and that the law as passed does not auswer satisfactorily the purpose for which it was enacted.”
Section 2 of the state law is as folloAvs: “No person, firm, or corporation shall sell, barter, exchange, carry, giAm away, ship or deliver for shipment any anti-hog cholera serum or virus within the state of Nebraska unless such person, firm, or corporation shall first hold an uncanceled, unexpired United States government veterinary license, issued by the United States Department of Agriculture, and a permit from the Live Stock Sanitary Board.” Laws 1915, ch. 170.
The Department of Agriculture, realizing the losses that were resulting to the hog raisers of the country from the promiscuous manufacture and distribution of anti-hog cholera serum, secured the enactment of a law intended
It will be seen that the act provides that plants shall be licensed, and that they may not prepare this serum for shipment unless they are licensed. ’A United States veterinary license does not appear to have been provided for the use of a person, but for the use of manufacturers of the serum. The license is to the plant. The Nebraska act seeks to give to those manufacturers the exclusive right to séll the serum, and it denies to the citizen of Nebraska the right to sell it. The manufacturing plant, under the federal act, gets a United States veterinary license issued by the Department of Agriculture. ' The provision of section 2 is that there shall be no permit from the Live Stock Sanitary Board, except to one who holds a license from the United States Department of Agriculture. The effect of this is that no person may have a license, and a license can only be issued to the manufacturing plant, which alone may sell. This provision contained in section 2 creates a monopoly, because it confines the sale of;the serum to the plant which manufactures it.
The attorney, general says: We are compelled to concede that the law as passed contains inconsistent provisions as already pointed out, and we do not argue for the approval of the law in its present form. He then declines to “discuss particularly the constitutional questions so extensively considered in defendant’s brief.” The license issued is to those engaged in the manufacture of serum. The federal permit is designated a “United States government veterinary license.” We do not understand that the federal government undertakes to regulate those
Section 3, art. I of the Constitution, provides: “No person shall be deprived of life, liberty, or property, without due process of law.”
Section 9, ch. 170, Laws 1915, provides, among other things: “No person, firm, or corporation shall give or accept a rebate or commission on any anti-hog cholera serum or virus that is sold or offered for sale within the state of Nebraska. Any person, firm, or corporation, violating any of the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined in any sum, not less than ten dollars ($10) and not more than five hundred dollars ($500).”
This is an additional bar preventing the farmer or veterinary surgeon from purchasing serum with which to treat hogs.
“While every man has a right to require that his own controversies shall be judged by the same rules which are applied in the controversies of his neighbors, the whole community is also entitled, at all times, to demand the protection of the ancient principles which shield private rights against arbitrary interference, even though such interference may be under a rule impartial in its operation.” Cooley, Constitutional Limitations (7th ed.) p. 504.
A person living under the protection of the United States government has the right to adopt and follow any
In Braceville Coal Co. v. People, 147 Ill. 66, 22 L. R. A. 340, the question of the right to enter into contracts by which labor may be performed in such a way as the laborer may deem beneficial to others to employ such labor was considered. The legislature passed an act requiring a regular payment of wages by certain classes of corporations. The court held that this was arbitrary and unconstitutional; that the employer and employee had a right to make lawful contracts regarding the time of payment. In discussing the right to enter into contracts, the court said: “The fundamental principle upon which liberty is based, in free and enlightened government, is equality under the law of the land. It has accordingly been everywhere held that liberty, as that term is used in the Constitution, means not only freedom of the citizen from servitude and restraint, but is deemed to embrace the right of every man to be free in the use of his powers and faculties, and to adopt and pursue such avocation or calling as he may choose, subject only to the restraints necessary to secure the common welfare.” Commonwealth v. Perry, 155 Mass. 117, 14 L. R. A. 325; People v. Gillson, 109 N. Y. 389.
In Commonwealth v. Perry, supra, it was said: “Article I, sec. 10 of the Constitution of the United States-, provides, among other things, that no state shall pass any daw impairing the obligation of contracts.’ The right to acquire, possess, and protect property includes the right to make
Adair v. United States, 208 U. S. 161, and State v. Sperry & Hutchinson Co., 94 Neb. 785, support the views here, expressed. The act creates a combination in restraint of trade. It permits the manufacturers of serum to monopolize the entire business of selling it in the state. It also makes it unlawful for any other person than the makers of serum to sell or vend it.
If this law is permitted to stand, it means that the serum plants in Nebraska which have received a United States government veterinary license have a monopoly of the right to sell anti-hog cholera serum. The law not only seeks to give these serum plants a monopoly on the right to sell serum, but it attempts to fix the price by requiring the manufactures to mark on the outside of the bottle the price at which it is sold, and then provides further that it is a misdemeanor for any one to give or accept a rebate or commission on any serum sold. It creates a monopoly of the right to sell, and then requires those who have the monopoly to fix the price, and then it makes it unlawful for them to change the price.
It is provided in section 1, art. XIY of Amendments to the Constitution of the United States: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The judgment of the district court is reversed, the case dismissed, and plaintiff in error discharged.
Reversed and dismissed.
Dissenting Opinion
dissenting.
The defendant was found guilty of selling anti-hog cholera serum without complying with the statute. Laws 1915, ch. 170. ' He has brought the case to this court, and insists that the statute is unconstitutional and wholly void. The majority opinion appears to so hold. In the first paragraph of the syllabus it is said that section 2 of the act is void, “for the reason that any person has the right to adopt and follow any lawful industrial pursuit which is not injurious to the community.” The second paragraph of the syllabus says: “Such act,” meaning, I take it, the above cited statute, “in effect, gives a monopoly to the serum manufacturing plant.” And the third paragraph says: “No person may have such permit under the Nebraska act, for only a plant is licensed.” In the opinion if is said: “The Nebraska act seeks to give to those manufacturers the exclusive right to sell the serum. * * * A license can only be issued to the manufacturing plant, which alone may sell. This provision contained in section 2 creates a monopoly, because it confines the sale of the serum to the plant which manufactures it.” This idea is repeated several times in the opinion, and it seems that the intention is to hold the entire act void because of the construction that is put upon section 2 of the act. The attorney general concedes that section 2 of the act, construed literally, is inconsistent with other provisions of the act, and contends that the section should be construed in the light of the other provisions, and so render the meaning plain as the legislature intended. This sugges
Congress had undertaken to regulate the manufacture and sale of “virus, serum, toxin, or analogus product” in the territories and in interstate commerce. The object of our statute was to regulate the manufacture and sale of the serum within the state. The intention was to require a state license in those cases that were not, and under the provisions of the Constitution could not be, regulated by the federal government, and so this statute was enacted to supplement the act of congress. It was intended that any one properly authorized by the act of congress to manufacture and sell the serum should be recognized by this statute as authorized to do so, and that other persons might be authorized to manufacture and sell the same within the state. The intention of the legislature was to recognize those who were duly authorized by act of congress as being fully authorized, and to require others who were not governed by that act to obtain a license from the state.
It is stated in the title of the act that the purpose of the act is: “To empower the State Veterinarian, Deputy State Veterinarian, through the Live Stock Sanitary Board, to permit the manufacture, sale, distribution, and to report on application of anti-hog cholera serum and virus, as provided in this act.” The first section of the act prohibits the sale, etc., of the serum “as hereinafter provided,” and by section 9 of the act no one is to sell the serum without the license of the state, or the Department of Agriculture, or both. Section 6 of the act provides that section 1, which is the. section which makes it unlawful to sell the serum, except as provided in the act, “shall not apply to persons, firms, or corporations who
That the manufacture and sale of this serum in this state is a proper subject of regulation within the police power of the state cannot be doubted, and the act of the legislature, which appears to be necessary and proper legislation in all other respects, ought not to be held invalid for the inadvertent use of the wrong conjunction in one of the sections. The fourth paragraph of the syllabus says that section 9 of the state law “is an additional bar preventing the farmer from purchasing serum with which to treat his own hogs, and preventing the veterinary surgeon from purchasing serum with which to treat the hogs belonging to his employers,” and “because of the bar” section 9 is void. I do not think that this section calls