* Corpus Juris-Cyc References: Agriculture, 2CJ, p. 1000, n. 76 New. The Delta Cotton Oil Company, a Mississippi corporation, filed a petition for mandamus against P.P. Garner, secretary of agriculture and commerce for the state of Mississippi. Briefly stated, the plaintiff sought to have Garner, secretary of agriculture and commerce, register the trademark, brand, and tag of the plaintiff for the years 1925 and 1926 as provided for in chapter 138, Laws of 1912, alleging that it had made its application in conformity with such chapter and tendered the fees required to be paid for such service to be performed by said secretary of agriculture and commerce. The petitioner alleged that he had complied with all the requirements of said chapter, and that said Garner refused to register its said brand of fertilizer or to provide the tags in conformity with the statute.
Upon the trial of the cause the said Garner, secretary of agriculture and commerce, defended on the ground that in past years quite a number of samples of this product produced by this company had been examined by the state chemist, and that the report of the state chemist disclosed that this company had sold a product that contained a less percentage of nitrogen than required by law and as shown by the printed guaranty required to be placed upon the packages or bags of the product; in other words, that more than a dozen samples in the past few years of this company's products had disclosed a violation of the law, and that for that reason he had refused and did refuse to register the brand and issue the tags.
The court below held with the plaintiff, directing that the mandamus issue as prayed for, requiring Garner *Page 849 to receive and file according to the statute (chapter 138, Laws of 1912), on a form to be supplied by him, the name of the brand of the cottonseed meal, together with the minimum percentage of nitrogen to be contained therein, also the tax tags required by section 8 of said chapter 138, Laws of 1912.
Section 1, chapter 138, Laws of 1912, is as follows:
"That all manufacturers, jobbers, manipulators or sellers of commercial fertilizers, who offer to sell, or exchange in the state of Mississippi such fertilizer or fertilizing material shall first file each year or season with the state chemist and also with the commissioner of agriculture and commerce on forms to be supplied by them, the name of each brand of fertilizer or fertilizing material, or the name of the fertilizing material when no brand named is used to designate it, which they may desire to sell, either by themselves, their jobbers or agents, together with the name and address of the manufacturer, manipulator, or seller, the grade of the fertilizer, and also the guaranteed analysis thereof, stating in minimum percentages only the amount of water soluble phosphoric acid, citrate soluble phosphoric acid, available phosphoric acid, nitrogen, and potash which such fertilizer or fertilizing material is guaranteed to contain; provided that in castor pomace and cottonseed meal the percentage of nitrogen only shall be guaranteed.
"In bone meal, tankage, phosphatic slags or other products wherein the phosphoric acid is not available by the methods of analysis of the Association of Official Agricultural Chemists of the United States, but which is or may become available after being applied to the soil, the phosphoric acid shall be guaranteed as total phosphoric acid, unless it be desired to guarantee water soluble and citrate soluble and available phosphoric acid, in which case the guarantee must be stated in the form above set forth. The fact that the purchaser waives the guaranteed analysis and the inspection as herein provided shall be no protection to the seller. It is also provided that the *Page 850 state chemist and the commissioner of agriculture and commerceshall have the power to refuse to receive or register theguaranteed analysis of any fertilizer under a name, brand, ortrade-mark, which would be misleading or deceptive, or whichwould tend to mislead or deceive the purchaser as to the actualcharacter of such fertilizer or fertilizing material." (Italics ours.)
The last sentence of this section furnishes the basis for the contention of the commissioner of agriculture that he is authorized to refuse the registration and the tags to the plaintiff in this case. Section 2 of this act, chapter 138, Laws of 1912, provides for the payment of a fee of five dollars. Section 3 of the act provides the form required to be printed on packages of the product. Section 4 provides the name of the brand and the percentage of the various constituent parts of the product, as do sections 5, 6, and 7 of the act. Section 8 provides for the tags. Section 20 of the act, chapter 138, Laws of 1912, is as follows:
"If any manufacturer, importer, jobber, firm, company or person shall offer or expose for sale or exchange any fertilizer, cottonseed meal, or fertilizing material without having attached to or furnished therewith the tax tags as required by this act, or who shall use the tax tags a second time, or use a counterfeit of such tax tags, or a tag not sold to him by the commissioner of agriculture and commerce, or who shall fail to submit annually a guaranteed analysis as required, or who shall fail to attach to each package the information required by section 4, or who shall state the grade, weight, or guarantee incorrectly on the package, or who shall sell a fertilizer containing hoof meal, horn meal, hair or leather in any form without making the fact known on the guaranteed analysis, or who shall impede or obstruct the duly appointed inspector in the performance of his duty, shall be guilty of the violation of this act, and, upon conviction thereof shall be fined not less than fifty dollars and not more than one hundred dollars for each offense." *Page 851
It will be noted that section 20, above set out, provides that a party who shall mislead or deceive by placing an incorrect guaranty on the package is liable to a fine of not less than fifty dollars nor more than one hundred dollars for each offense.
We think the act provides for a penalty to be imposed upon a party who fails to comply with the requirements of the statute, and that the commissioner of agriculture was without authority to refuse to grant the registration because of past violations on the part of the applicant of this section. The legislature did not provide for a refusal to permit the applicant to have registration because of past violations of the law. The court below was correct in holding that the mandamus should issue as prayed for in this case.
Affirmed.