98 
THE NATIONAL NURSERYMAN 
IMPORTANT 
Report of Special Committee on Legislation, appointed for the 
Purpose of Studying the Validity of the Nursery License 
Laws of Virginia, West Virginia and Michigan. 
By William Pitkin, Chairman of Sub Committee. 
Rochester, N. Y., June 10, 1904. 
To Mr. C. L. Watrous, 
Chairman of Legislative Committee for 1904-5, 
Des M oines, Iowa. 
Dear Sir:— 
At the Detroit convention of the American Association, a 
resolution was passed referring to the Committee on Legis¬ 
lation the subject of license laws governing the importations 
of nursery stock in Virginia, West Virginia and other states, 
with authority to secure a legal opinion as, to the validity of 
such legislation, and with power to arrange for test cases if 
necessary, and to expend the'necessary funds. 
The Legislative Committee decided to secure a legal opinion, 
and at the request of the chairman of the committee, I se¬ 
cured an opinion from attorneys of Rochester, Messrs. Mc¬ 
Guire & Wood, copy of which is attached. The opinion was 
discussed by yourselves and other members of the committee, 
and it was decided that under the opinion of the attorneys, 
the laws of Virginia were valid and could not very well be 
attacked. It was further decided that there were good 
grounds for opposing the laws of West Virginia and Mich¬ 
igan, and that it was deemed advisable to arrange for test 
cases in those states if possible and after that decision was 
reached the details of the matter were left in my hands, and 
I now beg to report as follows: 
specific report and recommendation—WEST 
VIRGINIA. 
The West Virginia statute requires a payment of a license 
fee of $10.00 in each county, and further, that all stock enter¬ 
ing the state should be fumigated. 
The West Virginia authorities were notified that this 
committee would advise the members of our Association to 
attach to each package going into the state the regular 
inspection certificate, and say to them that we should decline 
to pay the license and should decline to fumigate, believing 
that the provisions of their law were unconstitutional, and 
that we should be glad to arrange for a test case. 
The authorities of West Virginia have evidently not been 
anxious to test the law, and although numerous efforts have 
been made to arrange for a test case it has been impossible 
to secure one. The committee has learned of numerous 
cases in which threats of arrest have been made, but thus 
far it has been impossible to locate any actual arrest and thus 
bring about a test case. 
MICHIGAN. 
The Michigan law requires that every nurseryman or 
dealer doing business in the state, whether resident or non¬ 
resident must file a certificate and pay a license fee of $5.00, 
and our attorneys advise that these requirements are reason¬ 
able and valid and that the members of the Association 
should comply with them. The Michigan law further re¬ 
quires that all nursery stock shipped into the state must be 
fumigated and bear the certificate of the shipper that it has 
been fumigated. This provision does not apply to Michigan 
grown nursery stock, and our attorneys advise us that it is 
unconstitutional and invalid as an attempted regulation of 
inter-state commerce. 
The statute further provides that a bond of $1,000.00 
must be filed, conditioned on full observance of the law in 
all particulars and our attorne}^’ opinion is that this provision 
is invalid and cannot be enforced because filing of the bond 
is not necessary to the proper carrying out of the inspection 
purposes, and further that the bond requires compliance 
with all the provisions of the law, some of which are plainly 
unconstitutional and invalid. They advise us to file the 
certificate, pay the license fee, and decline to give the bond 
as furnished by the Michigan authorities, and also decline 
to fumigate the stock and attach the fumigation certificate. 
Our attorneys suggest that the form of bond furnished by 
Michigan authorities may be modified as follows: The bond 
reads: “Shall fully in every respect comply with all the 
provisions of an act of the legislature of the state of Mich¬ 
igan, etc.” They suggest amending this wording so that it 
will read as follows: “Shall fully and in every respect comply 
with the lawful provisions of an act of the legislature, etc. 
The point being that the insertion of the word “lawful” 
relieves us from any liability for failure to perform any 
act specified by the law, which is invalid and illegal, and 
that if any attempt were made to collect under the bond, 
that it would be necessary for them to show that the pro¬ 
visions of the law requiring fumigation were legal and valid 
before any judgment could be secured. 
Our attorneys advise that it would be safe to file this bond 
with that change, and that if any trouble should be made 
on account of the bond, it would at once bring up the question 
for a test case as to the validity of that part of the statute 
requiring fumigation. 
The Michigan authorities were promptly advised of the 
position of the Association and were told that the nursery¬ 
men had no desire to evade any valid law or any reasonable 
requirement, but that this Association felt that the outside 
nurserymen were discriminated against in favor of the 
Michigan nurserymen, and that in the opinion of our attor T 
neys the law was invalid and unconstitutional, as an attempted 
regulation of inter-state commerce. Numerous attempts 
have been made to arrange for a test case, but the Michigan 
authorities evidently are not auxious to test the law. Sev¬ 
eral of the Rochester nurserymen have declined to file a bond 
and have omitted to fumigate the stock, and although threats 
have been made, no trouble or loss has been suffered. One 
of the members of the Association received a notice during 
April from a party with whom they had arranged to handle 
the delivery, that Mr. L. R. Taft, state inspector, in Michigan 
had served a notice on him forbidding him to handle the 
delivery unless he filed a bond and secured a license. The 
goods for delivery had been shipped and this seemed to be 
an excellent opportunity for arranging a test case, so that 
the attorney of the Association was immediately sent to 
Michigan to handle the matter. Under the instruction of our 
attorney the delivery was made and the attorney general of 
Michigan promptly notified by our attorney that the delivery 
had been made and the law had been violated, and the man 
was ready to be arrested, but the attorney general has taken 
