The decree of the Circuit Court dismissing the bill is affirmed, and the same decision is made in No. 165. True copy. Test: inating between different classes of exporters of James H. McKenney, Clerk, Sup. Court,U.S. Argued Jan. 11, 12,1883. Decided Feb. 5, 1888. Cited-114 U. S., 11. HENRY A. TURNER, Piff. in Err., V. STATE OF MARYLAND. (See S. C., 17 Otto, 38-59.) IN ERROR to the Court of Appeals of the State of Maryland. The history and facts of the case fully appear in the opinion of the court. Messrs. John K.Cowen and E.J.D.Cross, for plaintiff in error: We contend that this Act of 1870, ch. 291, which repealed and re-enacted section 41, of the Act of 1864, ch. 346, is unconstitutional. interstate and foreign commerce and a law levyFirst. Because it is clearly a regulation of ing a duty upon exports, and it does not fall within the class of laws known as inspection laws, as it expressly provides that the articles of export are not to be inspected. Second. Because the law, even if it were an inspection statute, is unconstitutional, since it discriminates against the non-resident buyer and manufacturer of leaf tobacco, and in favor of the state buyer and manufacturer. Third. Because it discriminates between different classes of exporters of the same article of commerce. Upon the principles announced by the court in Welton v. Mo., and Webber v. Va., the Act is unconstitutional. Maryland statute-construction of-constitution ality of inspection laws charge for services. *1. Section 41 of chapter 346 of the laws of Maryland of 1864, as amended and re-enacted by chapter 291 of the laws of 1870, provides as follows: "After the passage of this Act, it shall not be lawful to carry out of this State, in hogsheads, any tobacco raised in this State, except in hogsheads which shall have been inspected, passed and marked agreeably to the provisions of this Act, unless such tobacco shall have been inspected and passed before this Act goes into operation; and any person violating the provisions of this section shall forfeit and pay the sum of $300, which may be recovered in any court of law of this State, and which shall go to the credit of the tobacco fund; Provided, That nothing herein contained shall be construed to prohibit any grower of tobacco, or any purchaser thereof, who may pack the same in the county or neighborhood where grown, from exporting or carrying out of this State any such tobacco without having the same opened Woodruff v. Parham, 8 Wall., 123 (75 U. S., for inspection; but such tobacco so exported or car- XIX., 382); State Freight Tax, 15 Wall., 232 ried out of this State without inspection shall in all cases be marked with the name in full of the owner (82 U. S., XXI., 146); Welton v. Mo., 91 Ú. S., thereof, and the place of residence of such owner, 275 (XXIII., 347); Henderson v. Mayor, 92 U. and shall be liable to the same charge of out- S., 260 (XXIII., 543); R. R. Co. v. Husen, 95 age and storage as in other cases, and any person U.S., 465 (XXIV., 527); Cook v. Pa., 97 U. S., who shall carry or send out of this State any such tobacco, without having it so marked, shall be sub- 566 (XXIV., 1015); Machine Co. v. Gage, 100 ject to the penalty prescribed by this section." Un- U. S., 676 (XXV., 754); Guy v. Baltimore, 100 der that proviso, no requirement of the Act of 1864 U. S., 434 (XXV.,743); Packet Co. v. Catlettsis dispensed with, except that of having the hogshead opened for inspection. The hogshead must burg, 105 U. S., 559 (XXVI., 1169); Tiernan still be delivered at a state tobacco warehouse and v. Rinker, 102 Ú. S., 123 (XXVI., 103); Webber there numbered and recorded and weighed and v. Va., 103 U. S., 344 (XXVI., 565); Mobile Co. v. Kimball, 102 U. S., 691 (XXVI., 238); Jackson Min. Co. v. Aud.-Gen., 32 Mich., 488. marked and be found to be of the dimensions pre scribed by statute, and to have been packed and marked as required. 2. Said section 41, as so amended and re-enacted, is not, in its provisions as to charges for outage and storage, in violation of clause 2 of section 10 of article 1 of the Constitution of the United States, as re spects any impost or duty imposed by it on exports, or in violation of the clause of section 8 of article 1 which gives power to the Congress "To regulate commerce with foreign Nations and among the several States." 3. The charge for outage, under the proviso of said section 41, as so amended and re-enacted, is an inspection duty, within the meaning of the Constitution. Mr. Charles J. M. Gwinn, Atty. Gen. of Maryland, for defendant in error: The power of each State to enact inspection laws was recognized by necessary implication, in sub-clause 2, sec. 10, art. I., of the Constitution. Brown v. Md., 12 Wheat., 438; Woodruff v. Parham (supra); Machine Co. v. Gage (supra). Each State was left as much at liberty to provide by law for the improvement of the quality 4. Dispensing with an opening for inspection of of articles produced by its labor, or for identi the hogsheads mentioned in said proviso, does not, in view of the other provisions of the tobacco in-fying them as the growth of its soil, or for fitspection statutes of Maryland, deprive those stat- ting such articles for exportation or domestic utes of the character of inspection laws. 5. The characteristics of inspection laws consid- use, as it was before the Articles of Confederaered, with references to the legislation of the Amer- tion were adopted, or as it was while those Arican Colonies and the States on the subject. ticles remained in force. 6. It is not foreign to the character of an inspec tion law to require every hogshead of tobacco to be brought to a state tobacco warehouse. 7. 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, quære. 8. Said section 41, as so amended and re-enacted, is not a regulation of commerce or unconstitutional, as discriminating 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, or as discrim*Head notes by Mr. Justice BLATCHFORD. Wheat., 203; Ward v. Md., 12 Wall., 428 (79 immense mass of legislation, embracing every Sturges v. Crowninshield, 4 Wheat., 195; Gibbons v. Ogden (supra); N. Y. v. Mïln, 11 Pet., 1882. TURNER V. MARYLAND. 141; Passenger Cases, 7 How., 398; License Tax License Cases, 5 How., 592; Passenger Cases, They are, indeed, the exercise of powers, which do not admit of a uniform system of national legislation. Wilson v. Blackbird Creek Co., 2 Pet., 245. Each State, in exercising its continuing powers under the Federal Constitution to enact inspection laws, has the right to use a fair legislative discretion. Cooley v. Board of Wardens, 12 How., 313. They are laws, which the State enacting them may, under the express terms of art. 1, sec. 10, sub-clause 2, of the Federal Constitution, execute by imposing duties on exports. It may be true that the imposition of this charge has a remote and considerable influence on commerce. The charge is not objectionable on that account. State Tax on Railway Gross Receipts, 15 Wall., 293 (82 U. S., XXI., 167); Sherlock v. Alling, 93 U. S., 103 (XXIII., 820). Even if the charge imposed is a duty on an Gibbons v. Ogden, 9 Wheat., 203; R. R. Co. Mr. Justice Blatchford delivered the opin- This is a writ of error to the Court of Appeals of the State of Maryland, and the question presented for our consideration is the constitutional validity of certain provisions in the tobacco inspection statutes of Maryland. The plaintiff in error, Turner, was indicted in the Criminal Court of Baltimore. The indictment contained two counts. The first count al Brown v. Md., 12 Wheat., 438; Neilson v. Garza, 2 Woods, 290; N. Y. v. Miln, 11 Pet.,leged that Turner packed in a hogshead tobacco 141; Packet Co. v. St. Louis, 100 U. S., 429 (XXV., 690); Vicksburg v. Tobin, 100 U. S., 432 (XXV., 691). grown by him on a farm belonging to him in 371 speedy final determination of the questions of law involved in this case the demurrers which the traverser has entered to this indictment shall be overruled pro forma by the court. 3. That after such overruling of the demurrers, the case shall be forthwith submitted to the court, without the intervention of a jury, upon the admission contained in the first paragraph of this agreement." The demurrers were then overruled. The court then rendered a judgment that Turner pay a fine of $300. On the same day, Turner, by petition to said criminal court, setting forth that he had been adjudged guilty of a misdemeanor, and by the judgment of said court ordered to pay the sum of $300 to said State, prayed an appeal to the Court of Appeals of Maryland, assigning errors in the record. That court affirmed the judgment, and Turner has brought the case into this court by a writ of error, alleging that the Statutes of Maryland on which the indictment was founded, and the validity of which was sustained by the state court, are repugnant to the Constitution of the United States. 66 tobacco, and the initials or other marks on said hogshead, identifying the same; and, when said hogshead shall be removed from said warehouse, he shall cause an entry to be made, in some book kept for that purpose, of the time when the same was so removed, the name of the person to whom the same was delivered, and of the vessel or other conveyance by which the same was taken away." It is provided by section 12 that each inspector shall cause all the tobacco in the warehouse to which he may have been appointed to be inspected as speedily as practicable, in regular order, as numbered; and by section 13 that he shall cause each hogshead of tobacco, before it is uncased, to be weighed, and the tobacco in each hogshead and the cask itself to be separately weighed, and the weight of each hogshead, as first weighed, and the gross and net weight of the tobacco therein contained, after inspection, to be entered in a proper book, with sufficient reference to its marks and numbers as previously recorded; and by section 14, that he shall mark on the side of each hogshead, with a marking iron, its warehouse number and weight, and the net weight of tobacco contained therein, and its warehouse number on each head, with blacking; and, by succeeding sections, that he shall uncase and break all tobacco, in whatever State raised, and draw samples from each hogshead, and tie each lot of samples together, and label it with the warehouse number of the hogshead, and the number of the warehouse, and the date of inspection, and the name of its owner, or, if known, the initials or other marks on the hogshead, and deliver it sealed, if the tobacco be merchantable, to the owner, with a certifi It is claimed by the defendant in error that the statutory provisions, the validity of which is denied by the plaintiff in error, are inspection laws," within the meaning of clause 2 of section 10 of article 1 of the Constitution of the United States, which clause is as follows: "No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net proceeds of all duties and imposts laid by any State on imports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revis-cate stating the date of inspection, the wareion and control of the Congress." By chapter 346 of the laws of Maryland of 1864, a new tobacco inspection law was enacted, as part of the Code of public local laws, in place of and expressly repealing certain portions of said Code. It provides, section 1, for the appointment of five tobacco inspectors, one for each state tobacco warehouse in the City of Baltimore. By section 5 each tobacco inspector is required to employ such clerks and laborers, and provide and keep on hand such books, implements and materials, as may be necessary for the economical and effective discharge of his duties as such inspector, and the salaries of the various clerks and laborers are prescribed, to be paid from the receipts in the respective offices, with the requirement that the inspectors shall at no time employ more labor than shall be necessary for the effective performance of the work to be done. There are provisions to facilitate the landing of tobacco at the wharves in front of the warehouses and its removal therefrom, and to secure the safe preservation of the tobacco after its delivery at the warehouse. Section 10 is as follows: "It shall be the duty of each tobacco inspector to cause each hogshead of tobacco landed or delivered at the warehouse to which he is appointed to be numbered in succession as received, and to cause said number to be entered in a book kept for that purpose, together with the time said hogshead was received, the name of the vessel or other conveyance, if known to him, by which said hogshead was brought to the City of Baltimore, and of the owner or consignee of said house mark and number of the hogshead, the weight thereof, and the net weight of the tobacco in it, and that unmerchantable tobacco shall be re-conditioned, packed, re-weighed and re-inspected, and then sampled and certified; and by section 27, that every hogshead shall be liable to the charge of $1.50 outage, if weighing less than 1,100 pounds, and to 15 cents additional for every 100 pounds, which shall be paid by the purchaser thereof to the inspector, before it is removed. Penalties are imposed by section 40 for erasing, altering or adding to any mark placed by the inspector on any hogshead or any label of any sample, and for fraudulently taking any tobacco from a sample or substituting other tobacco for any in such sample, and for counterfeiting any inspector's certificate or seal. Section 41 is as follows: "After the passage of this Act, it shall not be lawful to carry out of this State, in hogsheads, any tobacco raised in this State, except in hogsheads which shall have been inspected, passed and marked agreeably to the provisions of this Act, unless such tobacco shall have been inspected and passed before this Act goes into operation; and any person violating the provisions of this section shall forfeit and pay the sum of $300, which may be recovered in any court of law of this State, and which shall go to the credit of the tobacco fund." This section was amended by chapter 291 of the laws of 1870, by re-enacting it with the following addition; "Provided, That nothing herein contained shall be construed to prohibit any grower of tobacco, or any purchaser thereof, who may pack the same in the county or neighborhood | The Act of 1864 requires the inspector to examwhere grown, from exporting or carrying out of this State any such tobacco, without having the same opened for inspection; but such tobacco so exported or carried out of this State without inspection shall, in all cases, be marked with the name in full of the owner thereof, and the place of residence of such owner, and shall be liable to the same charge of outage and storage as in other cases, and any person who shall carry or send out of this State any such tobacco, without having it so marked, shall be subject to the penalty prescribed by this section." Section 42 prescribes the, size of the casks in which tobacco raised in Maryland shall be packed, and forbids the inspector to inspect or pass it until packed in a hogshead of proper dimensions. By chapter 36 of the laws of 1872, entitled “An Act to Add a New Article to the Code of Public General Laws Regulating the Inspection of Tobacco," some additional regulations were made, and some existing provisions were reenacted, and some changes were made, and all inconsistent provisions of law were repealed, but the only material additions or changes made, so far as the present case is concerned, were these: by section 11, every inspector shall have uncased, and break, every hogshead of tobacco delivered for inspection, in so many places for Maryland and Ohio, and in so many places for Kentucky and Virginia and, if the tobacco is sound, take a sample, and mark the hogshead with its number, the year of inspection, and the initials of the owner on each head and on the bilge and the tare and net weight on the bilge. By section 15, each inspector shall keep in a book "The name of the owner, the number, gross, tare and net weight of every hogshead of tobacco inspected by him, the State where grown, the consignee of the same, the name of the vessel by which shipped out, and the name of the party shipping the same, and for every hogshead so inspected by him he shall issue his certificate or note, stating in such certificate or note the name or initials of the owner, the number of the hogshead, the State where grown, the date of inspection, and the gross, tare and net weight of the hogshead, and he shall make no delivery of inspected tobacco, from his warehouse except upon surrender of the certificate or note corresponding with the number of the hogshead." By section 26, "No tobacco of the growth of this State shall be passed or accounted lawful tobacco unless the same be packed in hogsheads not exceeding fifty-four inches in length of the staves, nor exceeding forty-six inches across the head, and the owner, or his agent, of tobacco packed in any hogshead of greater dimensions shall repack the same in hogsheads of the size herein prescribed, at his own expense, before the same shall be passed." By chapter 228 of the laws of 1872, the charge for outage is fixed at $2 for every hogshead not exceeding one thousand one hundred pounds, and twelve and one half cents additional on every one hundred pounds over one thousand one hundred pounds, to be paid by the shipper of the tobacco, or his agent. In order to determine whether the statutory provisions in question are obnoxious to the objection made, their meaning must be ascertained. See 17 OTTO. U. S., Book 27. ine the hogshead to ascertain whether it is of the required dimensions, and then to inspect the tobacco itself by sampling the contents and, when this has been done, and the weight ascertained, the hogshead is passed. In regard to the addition made by the Act of 1870, chapter 291, to section 41 of the Act of 1864, the grower or purchaser of tobacco packed in the county or neighborhood where it is grown, is permitted to export the same without having the hogshead opened for inspection by sampling its contents, but the Act requires such hogshead to be marked with the name and residence of the owner, and it is made liable to the charge of outage as in other cases, and anyone violating its provisions is subjected to the penalty imposed by section 41 of the Act of 1864. The Act of 1870, in thus permitting the grower or purchaser of tobacco packed in the county or neighborhood where it is grown, to export the same without having the hogshead opened for inspection, does not dispense with any other requirement of the Act of 1864 in regard to inspection. It provides, in express terms, that each hogshead thus packed shall be marked with the name and residence of the owner. It is necessary, therefore, that some one shall ascertain whether these requirements have been complied with and whether the tobacco was, in fact, the growth of the county or neighborhood where it was packed. It also requires that such tobacco shall be liable to the same charge of outage as in other cases, and, as the charge of outage depends upon the weight of the hogshead, it is necessary that some one shall ascertain the weight of such hogshead, in order to determine the amount to be paid. It does not change or in any manner dispense with the statutory requirements in regard to the dimensions of the hogshead in which such tobacco is to be packed, and it is necessary that some one shall see that these requirements are complied with. These and other duties, it is obvious, are to be performed by the inspectors, and when they are performed the hogshead is to be passed and marked as provided by the Act of 1864. When the words "such tobacco so exported or carried out of this State without inspection" are read in connection with the preceding sentence, which permits the grower or purchaser to export such tobacco without having the same opened for inspection," it is clear that the term "without inspection" refers to inspection by opening the hogshead and sampling the contents. The Act of 1872, chapter 36, changes some of the provisions of the Act of 1864, omits others, and in express terms repeals all Acts or parts of Acts inconsistent with its provisions. The penal clause of the Act of 1864, as amended by the Act of 1870, which makes it unlawful to carry out of the State, in hogsheads, tobacco raised in the State, except in hogsheads inspected, passed and marked according to the provisions of the Act, is omitted in the Act, of 1872; but there is nothing, either in the title or the general framework of the Act, or in the manner in which the subject-matter is dealt with, to justify the conclusion that the Legislature intended the Act of 1872 as a substitute for all prior legislation on the subject. The provisions of such prior laws are essential to give completeness to the system of which the Act of 1872 is but a part. That does not, it requires, in regard to the hogsheads specially mentioned in the proviso enacted in 1870 to section 41 of the Act of 1864, that they be delivered at one of the state tobacco warehouses, and that the provisions of section 10 of the Act of 1864 be observed, that is, that the inspector shall number each hogshead in succession, and enter the number in a book, with the time the hogshead is received, and the name, if known, of the conveyance by which it was brought to Baltimore, and the name of the owner or consignee of the tobacco, and the initials or other marks on the hogshead identifying it; and, on its rethe name of the person to whom it is delivered, and of the conveyance by which it is taken away; that, under section 12 of the Act of 1864, it shall be inspected in all required particulars except opening it; that, under section 13 of that Act, the inspector shall weigh the hogshead unopened and enter such weight in a book, with sufficient reference to its marks and numbers as previously recorded; that, under section 14 of that Act, the inspector shall mark with a marking iron, on the side of each hogshead, its warehouse number and weight, and on each head its warehouse number; and that not until these things have been done is the tobacco to be passed or accounted as lawful tobacco. The plaintiff in error contends that section 41 of the Act of 1864, as re-enacted by the Act of 1870, violates the Constitution of the United States, because; 1. It is a regulation of interstate and foreign commerce, and a law levying a duty on exports; and does not fall within the class of laws known as inspection laws, because the proviso enacts that the tobacco to which it refers need not be opened for inspection; 2. Said is true, make it unlawful to export tobacco raised in the State unless the same shall have been inspected and passed; but it does provide that no tobacco, the growth of the State, shall be passed or accounted lawful tobacco unless the same be packed in hogsheads of certain prescribed dimensions. It does not say, in so many words, that the tobacco raised in the State and intended for exportation shall be delivered at one of the state tobacco warehouses, but it does provide for the appointment of inspectors of tobacco, clerks and other officials, with fixed salaries, and assigns them to the tobacco warehouses, with no duty to perform unless it be the inspec-moval, enter in a book the time of removal, and tion of tobacco. In thus declaring that no tobacco, the growth of the State, shall be accounted lawful tobacco unless packed in the manner prescribed by the Act, it is plain the Legislature meant it to be the duty of the inspectors appointed by the Act to ascertain whether such tobacco was thus packed in conformity with the requirements of the statute, and this they could not do unless such tobacco should be delivered at the state tobacco warehouses. The Legislature meant and only meant to select certain provisions from the public local law in relation to the inspection of tobacco, and to reenact these in a public general law, and to leave such portion of the local law which it did not thus re-enact and did not modify or repeal by inconsistent provisions, as existing parts of the local law. The Act of 1872 did not modify or repeal section 41 of the Act of 1864, as modified by the Act of 1870, which constituted part of the local law; and under that section it was the duty of the plaintiff in error to have delivered the tobacco packed by him at one of the state tobacco warehouses, in order that the inspectors might ascertain whether it was packed in hogs-section, even though it is an inspection statute, heads of the proper dimensions, and whether it was packed in the county or neighborhood where it was grown, and marked as the statute directed. The Legislature did not intend that merely marking the name of the grower or purchaser on the hogshead should release such grower or purchaser from the other requirements of the Act. These views are those which were held by the Court of Appeals of Maryland in its opinion delivered in this case. 55 Md., 240. The result is, that all that the Act of 1870 does in regard to a grower or purchaser of tobacco raised in Maryland, who packs the same in hogsheads in the county or neighborhood where such tobacco is grown, and who exports it or carries it out of the State, is to dispense with the opening of such hogsheads for inspection, but that it does not dispense with any other requirement of the Act of 1864 in regard to inspection; and that it is a part of such inspection for the inspector to see that the hogs-jected to examination. head is marked with the name and place of residence of the owner, and to verify the claimed fact that the tobacco was raised in Maryland and packed in the county or neighborhood where it was grown, and to weigh the hogshead in order to determine the charge for outage, and to see that the hogshead conforms in dimensions to the requirement of the statute, so that the tobacco may be passed and accounted lawful tobacco. It is also apparent that, not until the above and other duties have been performed by the inspectors, can the hogshead be passed and marked as required by the Act of 1864. This discriminates against the non-resident buyer and manufacturer of leaf tobacco, and in favor of the state buyer and manufacturer, in imposing burdensome regulations on tobacco intended for export, and laying a tax of at least $2 a hogshead on such tobacco when exported, while tobacco manufactured within the State is free from such regulations and such tax; and thus it discriminates against interstate and foreign commerce in tobacco, and in favor of local manufacturers and the internal trade of the State; 3. Said section discriminates between different classes of exporters of tobacco, in that it permits tobacco exported by persons who pack it in the county or neighborhood where it is grown, to be exported when marked with the full name and residence of the owner, without inspection other than the examination of the outsides of the hogsheads, while exporters of another class must have the contents of their hogsheads sub The provisions of the Constitution of the United States alleged to be violated are clause 2 of section 10 of article 1, before quoted, and that clause of section 8 of article 1 which provides that the Congress shall have power "To regulate commerce with foreign Nations and among the several States." The Maryland court held that the charge of outage in this case was an inspection duty, within the meaning of the Constitution; that the State had the power to prescribe the dimensions of the hogshead in which tobacco raised in Maryland shall be packed, and to require |