*1 NO. 3067 Under the terms and provislons of Article 5764a, Vernon's Texas Statutes, 193S Sup-

ulement (otherwise lmown es the Texan Clt- .~ ~~~ ..~~~~-~ ~-~ _... - -- _-. _---- ___ ruS Marketing Act, House Bill NO. 654, Acts 1937. 45th Legislature), the State of Texas iS Without the ) power or authority to coa- trol the movement of citrus fruit shipped interstate. or to control and remlate cit- rus fruit going into i&rrutate~&G erce. OFFICEOFTBEATl!CSNEYCE6ERAL June 29. 1939 Honorable J. E. kcDonald, Commissioner of Agriculture, Austin, Texas.

Dear Mr. bWDonald: Opinion No. O-946

3Je: Can the State, under 8. B. 654, control and regulate the citrus fruit .going in- to interstate comerce as well as that going into intrastate commerce? are in receipt of your letter of June 5, 1939, in

which you asked the following question: "... whether or not under the State Enabling

Act, heretofore referred to (Texas Citrus Marketing Act, Acts 1937, 45th Legislature;H. B. No.654, Ch. 362, p. 724, Art. 5764a, Vernon's Texas Statutes, 1938 Supplement), and the Marketing Agreement exist- ing thereunder,~the movement of the citrus fruit shipped interstate can be brought under control and made amendable to the State Marketing Act, or in other Nor&, can the State under this Act control and regulate the citrus fruit going into interstate commerce as well as that going into intrastate corn-- merce?" (Parenthetical insertion ours)

The question relates specifioally to the power of the State, through and by its duly elected and qualified Commissioner of Agriculture, to control end~regulate "citrus fruit shipped interstate," and/or "citrus fruit going into interstate commerce," under the terms and provisions of Article 5764a, Texas Citrus ._ ~. -A*~~- ..A

Although it is our opinion that the language of Article 5764a is determinative of the question, we wish to call attention to Article I, Section 8, Clause 3, of the Constitution of the United States, which provides that Congress shall have the power: *2 Hon. J. E. McDonald, June 29, 1939, Page 2 "To regulate commerce with foreign nations,

and among the several states, or dth the Indian tribes." Countless times the Supreme Court of the United States has held that the Uhited States Congress has the 8xolusfve power, under the COnStitUtiOn, to regulate commerc8 between two or more states. U. S. vs. Railroad Bridge Co., 6 McLean (Il. S.) 517, 27 Fed. Gas. 16, 114.

But although the jurisdiction of Congress over commerce among the states is full and COmpl8t8, it is not questioned that Congress has no authority over eonun8rc8 which is wholly within the State, and therefore none over combinations or agreements so far as they relate to a r8Straint of such trade of OOWs8rOe. Addyston Pipe, etc. 00. vs. U. 9. (1899) 175 U.S. 247, 20 Sup. Ct. 96, 44 L. Rd. 136..

It iS elementary law that, 8V8n in the absence of the Texas Citrus Marketing Aot, the State would be without power t0 OOntrOl or regulate "OitNS fruit shipped interstate," t0 use the language of the request. As for "citrus fruit going into interstate commerce," ussnmtng that this means citrus fruit destined for the channels Of interstate commerce, but fruitwhich has not as yet commenced interstate journey, there might be some question, were it not for the~restriative language of the Texas Citrus Marketing Act, nSJS8ly Art1018 5764a, supra, beyond which we do not have to go in answering your question.

Section 3 of Article 5764a reads as follows: "Subject to the provisions of this Aot. the Commissioner is hereby authorized and empOW8r8d to execute marketing agre8mEnts and to issue liC8nssS under this Act to persons engaged in transactions of intrastate commerce within the areas of this State in the marketing, processing, packing. ship- ping, handling or distributing of citrus fruits." (Underscoring ours) The exclusion by the Act from its coverage or interstate or foreign commerce or any control or regulation which would di-

rectly burden, obstruct, or affect interstate or foreign CommerCe in citrus fruits is brought out clearly in Section 7 Of tb8 Act Which w3 qUOt8 in ruu, under8coring important portions: nFdark8ting agreements eXeOUte& and licenses

issued pursuant to this Act shall contain one or more or the following terms and conditions and no others, except as provided in Section 6 of this Act: "(1) Limiting, or providing methods for the limitation of the total quantity of any VarietY Of citrus fruit, or of any grade, size or quality there- of, produced during any 8peCifisd period Or periods, which may be marketed in, or transported to, EnY or all markets in intrastate commerce.

Hon. J. E. McDonald, June 29, 1939, Page 3. "(2) Allotting. or providing z&hods for allotting, the amount of citrus fruits, or any grade, Variety, six8 or quality thereof, which each handler may market in or transport to any or all

markets Other than in the current of interstate upon (1) the emounts or 8uOh cltrUs rruits, or any grade, variety, size qualitythereor, Which 8aOh such handler has aVailabl8,fOr current shipment, or (21 Upon the amounts shipped by 8aCh such hand- ler in such prior period as the Commissioner deter- mines t0 be repr8SentatiVS, or both, to the end that the total quantity of such citrus fruits, or any grade, variety, size or quality thereof, to be marketed in, or transported to any'or all markets, other than in the current of interstate or foreign commerce, or so as directly to burden, obstruct or affect interstate or foreign comm8rc8 in 8uoA CitNS fruits, during any speciried period or periods, hall be equitably apportioned among all of the hand- :8rs thereof. "(3) Determining, or providing methods for

determining, the existence and extent of the sur- plus of such citrus fruits, or or enygrade, variety, size, or quality thereof, and providing for the con- trol and dispostion of such surplus but so as not to burden or obstruct interstate of foreign CommerC8 in such citrus fruits and for equalizing the burden of 8UCh surplus elimination or control among the pro- ducers and handlers thereof." (Und8rSCOring Ours)

Since Article 5764a, by-its own language, is definit8lY restricted to cover "intrastate commeroe," it iS important to consider the Act's definition, which iS as fOllOwS:

**Intrastate commerce,' as used in this Act, means all conrmeroe other than that which iS in the current interstate or foreign commerce, or which directly burdens, aff8Ot.S Or 0bstNd.S inter- state or roreign c0merc8.n

It is our opinion that it was the legislative intent to authorize the Connnissioner of Agriculture to enter into marketing agreements with parties and to issue licenses only in relation to their intrastate business in citrus fruit. The term ntransaations of intrastate oO~erc8 within the areas of this State," as used in Section 3, is conclusive. Under the Act, the Commissioner of Agri- culture is prohibited from entering into marketing agreements which have as their subject matter the marketing, processing, pack- ing, shipping, handling or distributing of "CitNs fruit shipped interstate," and/or "citrus fruit going into interstate CO?nm8rOe."

Tie Act has been so COllStr'u8d by the courts of this State. McDonald, et al, vs. American Fruit Growers, Inc., et al, 126 s. W. (2d) 23 (Petition for writ of error denied).

Hon. J. E. McDonald, June 29, 1939, Page 4. quote from the above-mentioned opinion: "In the S8OOnd place, the Act prOVid8S In 8ff8Ot

that the Commissioner is not to place any limitation on the quantity of citrus fruit to be transported in interstate or foreign coitmerce. The oommissioner could be justified in fixing a minimum price only on the theory that it would limit the quantity of OitNS fruit to be transported in intrastate commerce and if it would have that 8ff8Ot on intrastate commerce by the same token it would limit the quantity citrus fruit to b8 transported in interstate and foreign commeroe, a thing which the Act itS8lf says he should not do." First, because of the provisions of the Federal Consti- tution granting exclusive power over interstate commerce to the Unit8d States Congress; second, because of the unambiguous res- trictive language the TeXa8 CitNe'kiarketing Act, Article 5764a; and thirdly, because the courts haV8 construed th8 Act to say that the Commission has no power to limit the quantity of citrus fruit to be transported in interstate and foreign commerce, we hold that under the Texas Citrus Marketing Act, the movement of citrus fruit shipped interstate cannot be brought under con- trol, and that the State, under said Act, cannot control and re- gulate the citrus fruit going into interstate commerce. It has been called to our attention that over seventy- five per Cent of the citrus fruit produced in the Oitrus area, consisting of Hidalgo, Cameron, and Willacy Counties, is shipped interstate. Under the Texas Citrus Marketing Act, Article 5764a, the Commissioner of Agriculture is without authority to enter into marketing agreements concerning this fruit. We wish to point out, however, that we are not passing upon the question Of whether or not the Legislature, in the valid exercise of its police power, might enact laws applicable to this fruit before it enters into the channels of commerce. In Article 5764~1 the distinction between interstate and intrastate commerce is so emphasized and repeatedly stated as to leave no doubt that the marketing agreements and licenses provided

for therein should be strictly limited to transactions basically intrastate in nature and transactions which would not directly burden, obstruct or affect interstate commerca. The Act does not appertain to citrus fruit ian the tree or in the orchard disasso- ciated from either interstate or intrastate CommerCe. While we have examined the marketing agreea8nt entered

into pursuant to the Act, on October 11, 1937, W8 deem it UpIleCes- SECY to discuss it further here. It applies to ntransactions of intrastate connneroe within the areas n of the State of Texas. The same definition of "intrastate commerce" as Occurs in the Act is to be found in Article 1, section 1, subsection.9 of the agreement.

Trusting that the above fully answers your inWirY, we are

YOU-S V8lt’y truly ATTORNEY GEhYRAL OF TDKA5 Dy (signed) Dick &out ASSi.5 t8lYt AS:pbp

This opinion has been considered in conference, approved, and ordered recorded.