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called "inspection laws" in those States, it follows that the Constitution, in speaking of "inspection laws," included such laws, and intended to reserve to the States the power of continuing to pass such laws, even though to carry them out, and make them effective, in preventing the exportation from the State of the various commodities, unless the provisions of the laws were observed, it became necessary to impose charges which amounted to duties or imposts on exports to an extent absolutely necessary to execute such laws. The general sense in which the power of the States in this respect has been understood since the adoption of the Constitution is shown by the legislation of the States since that time, as collected in like manner by the attorney-general of Maryland,' covering the
1 Pennsylvania: Beef and pork intended for exportation, when packed or repacked, in Philadelphia: 1 Brightly's Purdon's Digest, 1873, pp. 157, 158; butter and lard, id. 188, 189; domestic distilled spirits, id. 525; flaxseed, id. 708; flour and meal, id. 711; Delaware: Size of casks for exportation of breadstuffs. Revised Statutes, 1874, p. 363. Virginia: Tobacco, Code, 1873, pp. 739, 740; fish, id. 750; pitch, tar, turpentine, salt, staves, shingles, and lumber, id. 751. Rhode Island: Public Statutes, 1882; beef and pork casks, c. 3, p. 294; lime casks, id. 298; fish casks, id., c. 114, p. 299. Maine: Revised Statutes, 1871; lime, c. 39, sect. 3; pot and pearl ashes, id., sect. 9; nails, id., sect. 17; fish, id., c. 40, sects. 7, 8, and 11; cord-wood, id., c. 41, sect. 1; charcoal baskets, id, sect. 7; packed shingles, id, sect. 16; staves and hoops, id., sects. 18 and 19; beef and pork barrels, id., c. 38, sects. 16 and 17. New Hampshire: General Laws, 1878. No salted beef to be exported except in tierces, barrels, or half-barrels of particular quality, weight, and dimensions, and duly branded; c. 126, sects. 4 and 5; butter and lard casks, c. 127, p. 305; fish barrels, tierces, and casks, c. 129, p. 310; casks of pot and pearl ashes, c. 130, p. 114. Massachusetts: General Statutes, 1860; casks for pickled fish, c. 49, sect. 44; alewives, id., sect. 50; staves, id., sect. 85; hogshead hoops, id., sect. 86; casks for pot and pearl ashes, id., sect. 167; kegs for butter and lard, id., sect. 14. Connecticut: General Statutes, 1875; fish barrels, p. 275, sect. 19. Vermont: Revised Laws of 1880, p. 715; barrels of flour, weight, &c. New Jersey: Revision, 1877; beef and pork barrels, flour and meal casks, id. 437; herring casks, id. 478. Geor gia: Code, 1867; flour barrels, sect. 1562; turpentine barrels, id., sect. 1573. Louisiana: Digest of Statutes, vol. ii. 1870; beef and pork barrels, p. 38, sect. 28. Wisconsin: Statutes of; fish casks, p. 856, sect. 22. Michigan: Compiled Laws, 1871, vol. i. pp. 474–485; size and weight of beef, pork, and fish barrels; butter and lard barrels; flour and meal casks; pot and pearl ash casks. South Carolina: General Statutes; flour barrels, p. 275; beef barrels, id. 279; staves and shingles, id. 280. North Carolina: Battle's Revisal; flour barrels, c. 61, sect. 34, p. 496; beef or pork casks, id., sect. 50, p. 499; fish barrels, id., sect. 53, p. 499; turpentine, tar, and pitch barrels, id., sect. 54, p. 500. Tennes see: Statutes, 1871; butter or lard casks, sect. 1832; flour barrels, sect. 1834. Florida: Digest of Laws, 1881, p. 579; sizes of tar and turpentine barrels.
form, capacity, dimensions, and weight of packages containing articles grown or produced in a State, and intended for exportation. These laws are none the less inspection laws because, as was said by this court in Gibbons v. Ogden, they "may have a remote and considerable influence on commerce." It is a circumstance of weight that the laws referred to in the Constitution are by it made "subject to the revision and control of the Congress." Congress may, therefore, interpose, if at any time any statute, under the guise of an inspection law, goes beyond the limit prescribed by the Constitution, in imposing duties or imposts on imports or exports. These and kindred laws of Maryland have been in force for a long term of years, and there has been no such interposition.
Objection is made that the Maryland laws are not inspection
Mississippi: flour and pork barrels; Rev. Code, 1880, sect. 949, p. 280. Ohio: Revised Statutes, 1880, vol. i.; hogsheads of tobacco, p. 264, sect. 391; fish barrels, id., sect. 4300; spirit barrels, sect. 4327; oil barrels, sect. 4293; pot and pearl ash barrels, sect. 4291; beef or pork barrels, sect. 4285; flour and meal barrels, sect. 4281.
The legislation of Maryland, since 1787, affords the following instances: Pot and pearl ashes, intended for exportation from Baltimore, or Georgetown, in Montgomery County, were required to be packed in a particular manner in casks, and to be inspected and weighed. 1792, c. 65. A similar provision was made to prevent the exportation of unmerchantable flour and unsound salted provisions from Havre de Grace, by the act of 1796, c. 21; and from Chester, by the act of 1797, c. 7. By the act of 1781, c. 12, provision was made to prevent the exportation of bread and flour which were not merchantable, from the town of Havre de Grace. This act was enacted for a limited time only, and expired. It was revived and enacted into a permanent law by the act of 1801, c. 102. sect. 2, and is set forth in a note to the section last referred to, in the acts of 1801. By sect. 6 of the act of 1801, c. 102, the size of all flour casks brought to Baltimore Town for exportation, the character of the materials and make, the manner of hooping and nailing such hoops, the particular length of the staves, the diameter of the casks at the heads, and the number of pounds of flour to be in each cask, are specifically prescribed. The size of laths, and the mode of packing them, was regulated by the act of 1811, c. 69. The number and character of hoops upon casks of ground black-oak bark, exported from the port of Baltimore, was prescribed by the act of 1821, c. 77. The gross weight of a hogshead of tobacco, as well as its net weight, was required to be marked on the hogshead by the act of 1789, c. 26, sect. 21. The dimensions of the hogsheads in which tobacco was required to be packed was prescribed by sect. 35 of the act last cited. Further illustration may be found in the following legislation: Weighing wheat, 1858, c. 256, sect. 5; Frazier v Warfield, 13 Md. 300-304; fish barrels and tierces, Public Local Laws, art. 4, sect. 309; flour, id., sect. 352; domestic distilled liquors, id., sect. 360; flour barrels, 1 Md. Code, art. 96, sect. 20.
laws, but are regulations of commerce, because they require every hogshead of tobacco to be brought to a State tobacco warehouse. But we are of opinion that, it being lawful to require the article to be subjected to the prescribed examination by a public officer before it can be accounted a lawful subject of commerce, it is not foreign to the character of an inspection law to require that the article, shall be brought to the officer instead of sending the officer to the article. It is a matter as to which the State has a reasonable discretion, and we are unable to see that such discretion has been exercised in any such manner as to carry the statutes beyond the scope of inspection laws.
There is another view of the subject which has great force. Recognized elements of inspection laws have always been quality of the article, form, capacity, dimensions, and weight of package, mode of putting up, and marking and branding of various kinds, all these matters being supervised by a public officer having authority to pass or not pass the article as lawful merchandise, as it did or did not answer the prescribed requirements. It has never been regarded as necessary, and it is manifestly not necessary, that all of these elements should coexist in order to make a valid inspection law. Quality alone may be the subject of inspection, without other requirement, or the inspection may be made to extend to all of the above matters. When all are prescribed, and then inspection as to quality is dropped out, leaving the rest in force, it cannot be said to be a necessary legal conclusion that the law has ceased to be an inspection law.
As is suggested in Neilson v. Garza, 2 Woods, 287, by Mr. Justice Bradley, it may be doubtful whether it is not exclusively the province of Congress, and not at all that of a court, to decide whether a charge or duty, under an inspection law, is or is not excessive. There is nothing in the record from which it can be inferred that the State of Maryland intended to make its tobacco-inspection laws a mere cover for laying revenue duties upon exports. The case is not like that of Jackson Mining Co. v. Auditor-General, 32 Mich. 488, where a State tax imposed on mineral ore exported from the State before being smelted was held to be a tax on inter-state commerce, no such
tax being imposed on like ore reduced within the State. The question of the right of Maryland, under the Constitution of the United States, to require that the dimensions and gross weight of a hogshead containing tobacco grown upon its soil shall be ascertained by its officers before the tobacco shall be exported, is a question of law, because the question is as to whether such law is an inspection law. Moreover, the question as to whether the charges for such examination and its attendant duties are "absolutely necessary," was not before the State court, and was not passed upon by it, and cannot be considered by this court.
It is urged, however, that the Maryland law is a regulation of commerce and unconstitutional, because it discriminates between the State buyer and manufacturer of leaf tobacco and the purchaser who buys for the purpose of transporting the tobacco to another State or to a foreign country. But the State, having the right to prescribe the form, dimensions, and capacity of the packages in which its products shall be encased before they are brought to, or sold in, the public market, has enacted that no tobacco of the growth of the State shall be passed or accounted lawful tobacco unless it be packed in hogsheads of a specified size. Laws of 1872, c. 36, sect. 26. This regulation covers all tobacco grown in the State and packed in hogsheads, without reference to the purpose for which it is packed. If the tobacco is to be dealt in within. the limits of the State, the examination as to dimensions is properly left to the contracting parties, probably under the view that the seller for the home market will have a sufficient stimulus to observe the requirement of the law, in a desire to maintain the reputation of his commodity. But, the tobacco is to be exported as lawful tobacco, the State may, with equal propriety, prescribe and enforce an examination by an officer, within the State, of a hogshead containing tobacco grown in the State, and intended for shipment beyond the limits of the State, in order to ascertain, before the hogshead is carried out of the State, and before it becomes an article of commerce, that it is of the dimensions prescribed as necessary to make it lawful tobacco. In Cooley v. The Board of Wardens, 12 How. 299, a law of Pennsylvania provided that a vessel not taking a pilot
should pay half pilotage, but that this should not apply to American vessels engaged in the Pennsylvania coal trade. It was held that the general regulation as to half pilotage was proper, and that the exemption was a fair exercise of legislative discretion acting upon the subject of the regulation of the pilotage of the port of Philadelphia. The court said that, in making pilotage regulations, the legislative discretion had been constantly exercised, in this and other countries, in making discriminations, founded on differences both in the character of the trade and in the tonnage of vessels engaged therein. Any discrimination appearing in the present case is of the same character as that in the pilotage case, and fairly within the discretion of the State. Such discretion reasonably extends to exempting from opening for internal inspection an article grown in the State, when it is marked with the name of an ascertained owner, and to requiring that an article grown in the State shall be opened for internal inspection when it is not intended to be put on the market on the credit of an ascertained owner, and is not identified by marks as owned by him. So, too, in the exercise of the same discretion, and of its power to prescribe the method in which its products shall be fitted for exportation, it may direct that a certain product, while it remains "in the bosom of the country" and before it has become an article "of foreign commerce or of commerce between the States," shall be encased in such a package as appears best fitted to secure the safety of the package and to identify its contents as the growth of the State, and may direct that the weight of the package, and the name of the owner of its contents, shall be plainly marked on the package, and may also exempt the contents from inspection as to quality, when the weight of the package and the name of the owner are duly ascertained to be marked thereon. Such a law is an inspection law, and may be executed by imposing a "tax or duty of inspection," which tax, so far as it acts upon articles for exportation, is an exception to the prohibition on the States against laying duties on exports, the exception being made because the tax would otherwise be within the prohibition. Brown v. State of Maryland, 12 Wheat. 419, 438. At the same time we fully recognize the principle, that any inspection law is subject