Argued November 10, 1903. Decided December 7, 1903.
Where the jurisdiction of the Circuit Court is invoked on the ground of diverse citizenship it will not be held to rest also on the ground that the suit arose under the Constitution of the United States unless it really and substantially involves a dispute or controversy as to the effect or construction of the Constitution upon the determination of which the result depends, and which appears on the record by a statement in legal and logical form such as good pleading requires; and where the case is not brought within this rule the decree of the Circuit Court of Appeals is final. Where the constitutionality of a police regulation of a State is conceded, the construction placed thereon, and prosecutions commenced in view of such construction thereunder, by an officer of the State in the discharge of his duty, do not in themselves constitute a deprivation of property without due process of law, a denial of equal protection of the law by the State, or any direct interference with interstate commerce, and afford no ground for the jurisdiction of the Circuit Court as a Court of the United States.
Mr. John DeWitt Warner, with whom Mr. Clarence Brown was on the brief, for appellants:
The court had jurisdiction. § 720, Rev. Stat. does not apply as the threatened prosecutions had not been commenced when the bill was filed. Rhodes Co. v. New Hampshire, 70 F. 721; Live-Stock Dealers' Butchers' Assn. v. Crescent City Live Stock Landing Slaughterhouse Co., 1 Abb. (U.S.) 388, 404, 407; Fed. Cas. No. 8408; Fisk v. Railroad Co., 10 Blatchf. 518; Fed. Cas. No. 4830; Louisiana v. Lagarde, 60 F. 186, 193; Yick Wo v. Crowley, 26 F. 207.
This suit is not against the State of Ohio within the intendment of the Eleventh Amendment to the Constitution of the United States. Scott v. Donald, 165 U.S. 58; Tindal v. Wesley, 167 U.S. 204; Western Union Tel. Co. v. Myall, 98 F. 335; Railway Co. v. Dey, 35 F. 866-871; Fitts v. McGhee, 172 U.S. 516; Union Pac. R. Co. v. Alexander, 113 F. 347; Smyth v. Ames, 169 U.S. 466; Prout v. Starr, 188 U.S. 537; Cent. Trust Co. v. Citizens Street Ry. Co., 80 F. 218; 225; Louisiana v. Lagarde, 60 F. 186; L. N.R. Co. v. Brown, 123 F. 946, and cases cited.
In defence of property rights, and when justified by equitable considerations, courts of equity may enjoin criminal prosecution. Snell, Principles of Equity, 12th ed. 648 (Lond. 1898); High on Injunction, ed. 1890, § 68; Lord Auckland v. Westminster Local Board of Works, L.R. Ch. App. Cas. VII, 597; Atlanta v. Light Co., 71 Ga. 106; Mobile v. L. N.R.R. Co., 84 Ala. 115; Birmingham v. Alabama, G.S.R.R. Co., 98 Ala. 134; R.R. Co. v. Attala, 118 Ala. 362; Dinsmore v. Board of Police, 12 Abb. N.C. 436; Manhattan Iron Works v. French, 12 Abb. N.C. 446.
This jurisdiction has been frequently exercised by the Federal courts in restraint of state officials (as well as others) from both civil and criminal prosecutions in state (as well as other) courts. Central Trust Co. v. Citizens St. R. Co., 80 F. 218; Western Union Tel. Co. v. Myall, 98 F. 335; Minneapolis Brewing Co. v. McGillivray, 104 F. 258; U.P.R.R. Co. v. Alexander, 113 F. 347; L. N.R. Co. v. Brown, 123 F. 946; Tindal v. Wesley, 167 U.S. 204; State of Louisiana v. Lagarde, 60 F. 186; Donald v. Scott, 67 F. 854; Scott v. Donald, 165 U.S. 58; Wong Wai v. Williamson, 103 F. 1; Jew Ho v. Williamson, 103 F. 10; Express Co. v. Mayor, 116 F. 756, and cases cited; Wallace v. R.R. Co., 118 F. 422; Smyth v. Ames, 169 U.S. 466.
The bill sets forth causes of action justifying the relief asked. Defendant's circulars and threats of prosecution are in themselves cause of action. Farquahar v. Nat. Harrow Co., 102 F. 714, and numerous cases cited on p. 715; Adriance v. Nat. Harrow Co., 121 F. 827; Hutchinson v. Beckham, 118 F. 399.
The construction of a statute is not a matter of discretion. Defendant-respondent is left equally unprotected, whether by a void statute (if his construction is correct), or by the fact (if his construction is wrong) that the law is not such as he assumes it to be.
Defendant is utterly mistaken in the construction he claims for the Ohio statute, under color of which his threats are made — Ariosa being within the saving clause, and not within the prohibition of such statute. White v. Ohio, 12 Ohio N.P. 659.
To justify acts thereunder as within the police powers of the State, the construction of the statute permitting or requiring such acts must be — ( a) The proper and legal construction of such statute; and ( b) Such as subserve some public end justifying the exercise of such police powers. As to the latter see Matter of Jacobs, 98 N.Y. 98; In re Marshall, 102 F. 323; Black on Interpretation, 304.
( c) Properly construed, the Ohio statute in question is no protection to respondent; and ( d) Respondent's erroneous construction is as utterly futile as a defence here, as can possibly be the statute itself were its effect such as he claims. PreDigested Food Co. v. McNeal, Dairy Comm'r, 4 Ohio S. C.P. Dec. 456.
The statute in question, if construed as respondent claims — and in any case his such construction — is unconstitutional and of no protection to him. It interferes with interstate commerce. Schollenberger v. Pennsylvania, 171 U.S. 1.
Where serious wrong cannot otherwise be righted, equity will neither hesitate to exercise its jurisdiction to the full extent of its scope, nor be nice to seek reasons why it should not do so. Exp. Co. v. Mayor c., 116 F. 756; Niagara Ins. Co. v. Cornell, 110 F. 816, and cases cited supra.
Eggs, sugar and coffee, each being an ordinary and healthful ingredient of food, any citizen of Ohio has a right to sell, purchase or use either, in any shape he sees fit. It is no business of the State how much he values each, the proportion in which he shall mix them, or the manner in which he shall prepare, drink, or otherwise use them. If he chooses to buy them, compounded or mixed, or, if the prosecution prefer, "aggregated," as Ariosa, he has a right to do so. Dorsey v. Texas, 40 L.R.A. (Texas) 201.
Mr. Edmond B. Dillon, with whom Mr. Roscoe J. Mauck was on the brief, for appellee:
There are but two cases exactly in point. Williams v. McNeal, 7 C.C. 280; PreDigested Food Co. v. McNeal, Commissioner, 1 Ohio N.P. 266, both sustain the appellee.
This is really a suit against the State. Cunningham v. R.R. Co., 109 U.S. 446; Davis v. Gray, 16 Wall. 203.
There is no distinction in this case between patented and unpatented articles. Palmer v. State, 39 Ohio St. 236, and cases cited; Patterson v. Kentucky, 7 Otto, 501.
The statute is constitutional. Cooley's Const. Lim.3d ed. 168; Com. v. Huntley, 156 Mass. 236; Powell v. Pennsylvania, 127 U.S. 678, reaffirmed in Schollenberger v. Pennsylvania, 171 U.S. 1; Plumley v. Massachusetts, 155 U.S. 461.
The general food act of Ohio is copied verbatim from a New York statute which, in turn, is copied from a statute of Victoria. The law has stood the test of scores of courts in this country and in England. In Ohio this act has been approved by the Supreme Court in the following cases: State v. Cap. City Dairy Co., 62 Ohio St. 350; Palmer v. State, 39 Ohio St. 236; Meyer v. State, 54 Ohio St. 242; State v. Kelly, 54 Ohio St. 166; State v. Dreber, 54 Ohio St. 115; State v. Ruedy, 57 Ohio St. 224; Hutchinson v. State, 56 Ohio St. 82 . See Gundling v. Chicago, 177 U.S. 183.
The statute does not interfere improperly with interstate commerce. Cases cited, supra; Ferry Co. v. Pennsylvania, 114 U.S. 196; Kimmish v. Pennsylvania, 129 U.S. 217; Patterson v. Kentucky, 7 Otto, 501; Hinson v. Lott, 8 Wall. 148; Turner v. Maryland, 107 U.S. 38.
A court will not interfere in cases where the executive is merely exercising his judgment as to the guilt or innocence of a citizen by causing the arrest or refusing to cause the arrest of any citizen for alleged violation of a valid criminal statute. Perault v. Rand, 10 Hun, 222; Judges v. People, 18 Wendell, 79, 99.
There are cases which hold that the legislature itself cannot invest the judicial department of the government with authority to assume jurisdiction over legislative or executive departments. Sterling v. Doake, 29 Ohio St. 457; State v. Nichols, 26 Ark. 74; State v. Sloss, 25 Mo. 291; Attorney General v. Brown, 1 Wis. 513; Haley v. Clark, 26 Ala. 439; Smith v. Myers, 109 Ind. 1; Cunningham v. R.R. Co., 109 U.S. 446; Davis v. Gray, 16 Wall. 103; Gaines v. Thompson, 7 Wall. 347; Comm. of Patents v. Whitiley, 4 Wall. 522.
The interference of the courts with the performance of the ordinary duties of the executive department would be productive of nothing but mischief. United States v. Seaman, 17 How. 225; United States v. Guthry, 17 How. 284; United States v. Commissioner, 5 Wall. 563; Litchfield v. Register, 9 Wall. 576; Georgia v. Stanton, 6 Wall. 50; Mississippi v. Johnson, 4 Wall. 475; Cohen v. Commissioners, 77 N.C. 2; Fickle v. Commissioners, 66 How. Pr. 318; Hinton v. Sheriff, 46 Ga. 350; Chicago v. Wright, 69 Ill. 318; R.R. Co. v. DeGraaf, 27 Minn. 1; Osborne v. Bank, 9 Wheat. 738; Spelling on Extraordinary Relief, §§ 625, 628.
The action is forbidden by § 720, U.S. Rev. Stat. The cases cited by appellant are inapplicable and can be distinguished from this case.
We are of opinion that this appeal must be dismissed, because the jurisdiction of the Circuit Court was "dependent entirely upon the opposite parties to the suit or controversy being citizens of different States," and the decree of the Circuit Court of Appeals was final. Act of March 3, 1891, 26 Stat. 826, c. 517, § 6.
The Circuit Courts have "original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, . . . or in which there shall be a controversy between citizens of different States, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, . . . " Act of March 3, 1887, 24 Stat. 552, c. 373; Act of August 13, 1888, 25 Stat. 433, c. 866.
In the present case the Circuit Court had jurisdiction on the ground of diverse citizenship, but it is now contended that jurisdiction also rested on the ground that the suit was one arising under the Constitution of the United States.
The rule is firmly established that a suit does not so arise unless it really and substantially involves a dispute or controversy as to the effect or construction of the Constitution, upon the determination of which the result depends, and which appears on the record by a statement in legal and logical form such as is required in good pleading. Defiance Water Company v. City of Defiance, ante, p. 184, and cases cited.
The averments of this bill did not bring the case within that rule for they put forward no existing controversy as to the effect or construction of the Constitution, on which the relief depended, and set up no right which might be defeated or sustained according to such construction.
By the laws of Ohio the office of Dairy and Food Commissioner was created, and it was made the duty of that officer to attend to the enforcement of all the laws against fraud and adulteration or impurities in food, drink, or drugs; to appoint assistant commissioners; and to employ such experts, chemists, agents, inspectors and counsel as he might deem necessary for the proper enforcement of the laws; and it was also made his duty to inspect any articles made or offered for sale as articles of food or drink, and to prosecute, or cause to be prosecuted, any person or persons, firm or firms, corporation or corporations engaged in the manufacture or sale of any article of food or drink adulterated in violation of any laws of the State. 1 Bates' Ohio Statutes (1897), p. 262, Tit. III, c. 18.
By the act of 1884, as amended in 1890, and set out in the bill, it was provided, among other things, that food should be deemed adulterated "if it is colored, coated, polished or powdered, whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is." 2 Bates' Ohio Statutes (1897), p. 2229, Tit. V, ch. A. The proviso excepted mixtures and compounds, recognized as ordinary articles of food, not injurious to health, and labeled as required.
It is not asserted that this police regulation is in contravention of the Constitution of the United States, but it is said that when the commissioner, in the discharge of his duty under the law, reached the conclusion that the coating of Ariosa with a glaze of sugar and eggs was calculated to conceal damage or inferiority, and to make the article appear better or of greater value than it really was, and that the article was not a compound or mixture, and proposed to prosecute, he thereby construed the act in a way, which, if his construction were correct, would render it unconstitutional.
But these were findings of fact which resulted in bringing the article within the prohibition and excluded it from the proviso, and neither findings nor prosecutions would in themselves constitute a deprivation of property, or a denial of the equal protection of the law, by the State, or any direct interference with interstate commerce, and the constitutionality of the statute was conceded.
The suggested controversy was purely hypothetical and based the supposed constitutional objections on the contingency that, on issues of fact, it might be judicially determined that Ariosa came within the statute, which complainants denied.
If the commissioner's conclusions were erroneous, the courts were open for the correction of the error, and the possibility that they might agree with the commissioner could not be laid hold of as tantamount to an actual controversy as to the effect of the Constitution, on the determination of which the result of the present suit depended. Indeed, in the only case called to our attention by counsel involving the status of Ariosa, the Court of Common Pleas of Lucas County, Ohio, held that it was not within the prohibition of the statute. White v. Ohio, 12 Ohio Nisi Prius Decisions, 659.
Reference to the Constitution to strengthen objections to a particular construction, or the pursuit of a certain course of conduct, is not sufficient to invoke jurisdiction. Whatever grounds of equity interposition may have existed here, and we express no opinion on that subject, the jurisdiction of the Circuit Court as a court of the United States depended alone on diverse citizenship. If the allegation of that fact had been omitted from the bill, the jurisdiction could not have been maintained.
MR. JUSTICE DAY took no part in the disposition of the case.