State v. Clason

ON PETITION FOR REHEARING. In our original opinion we said: "Appellee's brief has been of no aid to the court in the consideration of this case. It contains no helpful propositions, and no points and authorities, beyond the bare assertion that the act upon which the prosecution is based violates Article I, Section 8, Clause 3, of the Constitution of the United States." The appellee, through other counsel, has now presented a petition for rehearing, supported by an able and exhaustive brief. For this reason we deem it proper to express our views with reference to the propositions therein contained.

We find no objection to the statement of general principles contained in appellee's petition, to the effect that in passing upon the constitutionality of an act, its purpose must be determined from its natural and reasonable effect; that the legislative declaration of purpose is not binding, and that whether a regulation of a useful business is a valid exercise of police power is a judicial question.

The appellee has cited a number of cases from this court and from the federal courts to sustain his claim that the statute under consideration constitutes an unauthorized interference with interstate commerce. One of the clearest and most comprehensive statements that we have seen with reference to the authority of the states to legislate upon such subjects, is to be found in the case of Oregon-Washington Railroad Navigation Co. v. Stateof Washington (1926), 270 U.S. 87, 101, 46 S. Ct. 279. In that case Mr. Chief Justice Taft said: "In the relation of the States to the regulation of interstate commerce by Congress there are two fields. There is one in which the State can not interfere at all, even in the silence of Congress. In the other . . . the State may exercise its police power until Congress has by affirmative legislation occupied the field by regulating *Page 467 interstate commerce and so necessarily has excluded state action." In the same case the distinguished jurist further says (p. 93): "In the absence of any action taken by Congress on the subject matter, it is well settled that a State in the exercise of its police power may establish quarantines against human beings or animals or plants, the coming in of which may expose the inhabitants or the stock or the trees, plants or growing crops to disease, injury or destruction thereby, and this in spite of the fact that such quarantines necessarily affect interstate commerce."

If a state may, in the exercise of its inherent police power, adopt quarantine statutes prohibiting the importation of dangerous or noxious articles or objects, we think it may 5. likewise, inferentially, license and regulate the use of its highways to accomplish the same ends, even though such regulation may incidentally affect interstate commerce. Kidd v.Pearson (1880), 128 U.S. 1, 9 S. Ct. 6.

It seems to us that the proper disposition of this appeal is to be found in the answers to these questions: (1) Is Chapter 278, Acts of 1937, a reasonable quarantine regulation within the police power of the State which incidentally affects interstate commerce, or (2) is it a direct interference with interstate commerce, under the guise of an exercise of the police power?

We cannot, in the interest of space and time, review all of the authorities cited by the appellee, but shall point out wherein several of them are not applicable to the situation with which we are here dealing. The cases reviewed are typical of the others relied upon.

In The State, ex rel. Corwin v. The Indiana, etc. MiningCo. (1889), 120 Ind. 575, 22 N.E. 778, this court considered an act prohibiting the transportation of natural gas from any point within this State to any point or place without the State. The court held that *Page 468 the interference with interstate commerce, under the circumstances shown, was direct and not merely incidental. In the opinion Chief Justice Elliott said (p. 580): "The act does not assume to provide for the safety, health, or comfort of the citizens. . . . It is not a regulation of the mode of procuring, transporting, or using natural gas designed to secure the health, safety, or comfort of the citizens of Indiana. . . . The act can not be taken out of the operation of the Federal decisions upon the theory that it is a valid exercise of the police power resident in every sovereign state, for the theory is without foundation."

In Jamieson v. The Indiana Natural Gas Oil Co. et al. (1891), 128 Ind. 555, 28 N.E. 76, this court had under consideration another natural gas statute which prohibited the transportation of gas within or without the State under artificial pressure exceeding 300 pounds per square inch. In holding the statute valid, the court remarked (p. 577): "We do not assume that a State can legislate for the regulation of interstate commerce — that power is undoubtedly Federal — nor do we assume that under the guise of exercising the police power there may be a regulation of commerce between the States, but we do assume that it is settled by the decisions that State legislation is not invalid simply because it operates upon or affects commercial commodities or instrumentalities. So long as there is nothing more than an exercise of the police power, and no regulation of commerce, there is nothing more than the exercise of a State power."

In Manufacturers Gas, etc., Co. v. The Indiana Natural Gas,etc., Co. (1900), 155 Ind. 545, p. 546, 58 N.E. 706, this court held another statute regulating the transportation of natural gas unconstitutional, and said: "Nothing done by the appellee is complained of, excepting only that it removes natural gas out of the State of Indiana. No ground for the exercise of the police power *Page 469 of the State to prevent such removal is shown. Nothing, save the naked right to transport the gas beyond the limits of this State, is contested in this action. The only reason which can be urged in support of the restraint sought to be imposed upon the appellee is that the supply of natural gas being limited, and the article being one of great value and convenience, its use ought to be reserved for and enjoyed by the people of this State, to the exclusion of the inhabitants of any other State."

The appellee has also cited and quoted from Foster-FountainPacking Co. et al. v. Haydel (1928), 278 U.S. 1, 49 S. Ct. 1, 73 L. Ed. 147. This is the so-called Louisiana "Shrimp case" and involved the constitutionality of a statute of that state which prohibited the shipment to other states of shrimp taken from the waters of Louisiana, unless they were processed in its factories. The act related directly to interstate commerce and the court said (p. 13): "But by permitting its shrimp to be taken and all the products thereof to be shipped and sold in interstate commerce, the State necessarily releases its hold, and, as to the shrimp so taken, definitely terminates its control." The act in question was in no sense a health or quarantine measure, and we do not consider it as bearing upon the proposition before us.

In the case of Vandalia Coal Co. et al. v. Special Coal Food Comm. of Indiana et al. (1920), 268 Fed. 572, the court held invalid an order of the Coal and Food Commission of Indiana requiring coal mines which had contracted to deliver their products outside the State to sell them within the State. This was held to be a direct burden on interstate commerce. But the court recognized the presumption that a statute is valid until the contrary is shown, and that a state is free to "meet and combat" wrongs that injure "the safety and welfare of the people."

We adhere to our former opinion that Chapter 278, *Page 470 Acts of 1937, is for the protection of the public health, the health of domestic animals of great economic value, and the 3. prevention of nuisances on the highways. It does not directly or materially place a burden on interstate commerce, and the extent to which it affects commerce of that character may be said to be clearly incidental. We hold that until the Congress of the United States invades the field and legislates upon the subject, the act must be regarded as a proper and valid exercise of the inherent police power of the State of Indiana.

Rehearing denied.