Marshall v. Department of Agriculture

*444 GIVENS, J. Appellants contend that C. S., sec. 2031, as amended by chap. 50, 1923 Session Laws, page 57, and C. S., secs. 2032 and 2033, and the regulations of the Department of Agriculture promulgated thereunder, with reference to white potatoes, are unconstitutional, because unreasonable, unjust, discriminatory, and depriving appellants of their property without due process of law in violation of the 14th amendment of the United States constitution and sections 1 and 13 of art. 1 of the Idaho constitution. These sections, after a preliminary recitation that the business of farm marketing is of public interest and subject to control and regulation by the state, authorized the Department of Agriculture to promulgate rules, regulations and standards for marking, branding and packing of farm products as defined by the act, requiring that the same, when packed in receptacles and sold or offered for sale within this state, be branded according to the standards as laid down by the department and that such products, when so packed and branded, conform to such standards, and making a violation of such requirements a misdemeanor, excepting therefrom such products when to be consumed or used for manufacturing purposes wholly within the state. The rules promulgated by the department fixed four grades for white potatoes, based substantially on the U. S. Standards of the regulations issued by the United States Department of Agriculture, U. S. Grades for potatoes, 1926. Appellants alleged that these state regulations were issued in July, 1926, to be effective on and after January 1, 1927. *445 The authority granted the Department of Agriculture to put the statute in operation by fixing the necessary grades and standards was not a delegation of legislative authority. (12 C. J. 845; Bailey v. Van Pelt, 78 Fla. 337, 353, 82 So. 789; Pierce v. Dolittle, 130 Iowa, 333, 106 N. W. 751, 6 L. R. A., N. S., 143; State v. Atlantic C. L. R. Co., 56 Fla. 617, 47 So. 969, 32 L. R. A., N. S., 639; Williams v. Evans, 139 Minn. 32, 165 N. W. 495, 166 N. W. 504, L. R. A. 1918F, 542; Union Bridge Co. v. United States, 204 U. S. 364, 27 Sup. Ct. 367, 51 L. ed. 523; United States v. Grimaud, 220 U. S. 506, 31 Sup. Ct. 480, 55 L. ed. 563.) The state may not prohibit the sale of an article which is wholesome, innocuous and harmless, but it may establish reasonable grades or standards for farm products when sold in the receptacles or containers usually and ordinarily employed, and require that such products when so packed for sale must conform to the grades or standards so established. (Schmidinger v. Chicago, 226 U. S. 578, 33 Sup. Ct. 182, 57 L. ed. 364; Sligh v. Kirkwood, 237 U. S. 52, Ann. Cas. 1914B, 284, 35 Sup. Ct. 501, 59 L. ed. 835; Town of St. Martinville v. Dugas, 158 La. 262, 103 So. 761; City of St. Louis v. Liessing, 190 Mo. 464, 109 Am. St. 774, 4 Ann. Cas. 112, 89 S. W. 611, 1 L. R. A., N. S., 918; State v. McKay, 137 Tenn. 280, Ann. Cas. 1917E, 158, 193 S. W. 99; State v. Co-operative Store Co., 123 Tenn. 399, Ann. Cas. 1912C, 248, 131 S. W. 867.) Appellant ingeniously argues that the statute in effect has told the producer that he may not sell unless he produces an article of a certain grade or standard; the correct analysis shows, however, that the statute merely provides that the article when sold or offered for sale in such receptacles must be branded showing what grade or specification it comes under and that it must conform thereto. (Sligh v. Kirkwood, supra; Standard Stock Food Co. v. Wright, 225 U. S. 540, 32 Sup. Ct. 784, 56 L. ed. 1197; State v. Weller, 171 Ind. 53, 85 N. E. 761; Steiner v. Ray, 84 Ala. 93, 5 Am. St. 332, 4 So. 172.) *446 It is argued that this law is unconstitutional because of the difficulties of grading and branding potatoes in bulk or in the field. The state statutes and regulations do not apply to potatoes when not packed in such receptacles. Though not clear, appellant evidently intended to allege that there were too few standards; that there was too large a spread as to quality, size, conformation, etc., between No. 1 and No. 2. A determination of this question involves an issue of fact and in the absence of evidence the court could not decide whether the commissioner abused his discretion in limiting the number of standards under which potatoes should be graded and labeled. Such standards must be sufficiently comprehensive to permit the sale of potatoes usually and ordinarily grown in the various producing sections of the state without any necessary interference with the unquestioned right to sell such product. (Burns Baking Co. v. Bryan, 264 U. S. 504, 32 A. L. R. 661, 44 Sup. Ct. 412, 68 L. ed. 813; State v. McKay, supra.) As to this phase of the controversy the demurrer was improperly sustained. The judgment of the lower court is reversed and the cause remanded, with instructions to overrule the demurrer, permit an answer to be filed and evidence taken and findings and conclusions made as to the reasonableness of such standards. Costs awarded to appellants. Wm. B. Lee, C. J., and Budge and T. Bailey Lee, J~J., concur.