48 
THE NATIONAL NURSERYMAN 
very carelessly drawn by persons unacquainted with the 
constitutional limitations, or indeed, with little know¬ 
ledge of proper statutory construction. It is, of course, 
impossible in this brief discussion to catalogue all the 
faults of the numerous state nursery stock laws. It is 
sufficient at the present time to cite a few examples of 
state nursery stock laws which appear to offend the con¬ 
stitutional requirements above noted. A Maine nursery 
stock law required “agents” who wished to sell nursery 
stock to take out a license fee of -$10.00. these fees going 
into the general treasury of the state. An agent of a 
New York nurseryman, not paying this fee, was ar¬ 
rested, tried, found guilty, but, on an appeal, the Su¬ 
preme Court of Maine reversed the judgment on the 
ground that the agent was not selling nursery stock. 
The Court did not discuss the constitutional question 
raised, namely, that the license fee was a revenue meas¬ 
ure, and so a burden on interstate commerce. However, 
this law was promptly amended to conform to the criti¬ 
cisms on the constitutional question, thereby recogniz¬ 
ing the justice of the nurseryman’s contention. Cannot 
the same thing be said of the Michigan nursery stock 
law where the license fees are paid into the treasury of 
the state without any provision for the use of such 
moneys for the charges of inspection? 
The state entomologist of Oklahoma has recently re¬ 
quested ex-state nurserymen to file a bond, one of the 
conditions of which is that the nurseryman desiring to 
solicit orders for nursery stock shall buy, sell, etc., only 
such nursery stock as has been duly inspected and cer¬ 
tified by an official state inspector of the state of Okla¬ 
homa, In the first place this bond appears to have a 
fatal defect because the statute from which it must de¬ 
rive its force and effect wholly fails to provide what this 
bond is for and what shall be its conditions. To give it 
life bv judicial construction or administrative regulation 
would practically be a usurpation of legislative func¬ 
tions. Another rather amusing defect of far-reaching 
results is that the bond is required of one who “desires” 
to sell. Now the criminal and mvil law is not interested 
in an intent harbored in the mind and it is not punishable, 
as the Maine Supreme Court decided in the nursery stock 
case above cited, in which the objectionable law penalized 
one who desired to sell nursery stock. 
This Oklahoma bond raises a constitutional question 
which is unanswerable. It requires the agent of ex- 
state nurserymen “desiring” to solicit orders in Okla¬ 
homa, a purely interstate transaction, to buy and sell, 
etc., only Oklahoma inspected stock. This of course is 
physically impossible. Under the limitations imposed 
hv the Federal Supreme Court as above mentioned, this 
requirement is thoroughlv unreasonable, and for the fur¬ 
ther reason, propounded bv the Supreme Court, that the 
inspection would necessarily be beyond the jurisdiction 
of Oklahoma. The regulation is an unwarranted burden 
on interstate commerce. These objections being pre¬ 
sented to the Oklahoma officials a new form of bond has 
been offered to the nurserymen, but still fatallv defec¬ 
tive. though omitting the impossible inspection by Okla¬ 
homa officials in another state. 
The Michigan Nursery stock law provides in one sec¬ 
tion, that all nursery stock imported Into Michigan must, 
before entry, be fumigated by hvdro-cyanic acid gas 
while Michigan grown stock is only required to be fumi¬ 
gated if grown within one-half mile of where San Jose 
scale exists. This is an obvious discrimination against 
interstate commerce, which, under some decisions of the 
United States Supreme Court and in the opinion of some 
attorneys, is unconstitutional. Even if, as is the opinion 
of some lawyers, the writer being one, there can be dis¬ 
criminations against ex-state products under certain con¬ 
ditions, we still have the question whether this is a rea¬ 
sonable regulation of interstate commerce. From 
opinions of those competent to give advice as to the effect 
of this gas on nursery stock if used in sufficient quan¬ 
tities to kill the San Jose scale, it is alleged that certain 
kinds of nursery stock would be destroyed by this fum¬ 
igation process. It is also stated by these experts that 
not all forms of nursery stock are affected by the San 
Jose scale. These facts being true the Michigan law 
requiring the ex-state nurserymen to fumigate all nur¬ 
sery stock offered for importation into Michigan is bur¬ 
dened with conditions not imposed on the Michigan nur¬ 
seryman. Some of his stock which is never affected by 
the San Jose scale has to be fumigated; some of his stock 
though it is free from the San Jose scale cannot, because 
the fumigation process destroys it, be imported into Mich¬ 
igan. The only possible reason whereby this discrim¬ 
ination can be upheld is that this extreme regulation 
against interstate commerce is the only means by which 
this obnoxious San Jose scale can be kept out of Michi¬ 
gan. This is not the case. This scale can be readily 
detected by inspection without any difficulty and by a 
perfectly feasible system of inspection of imported nur¬ 
sery stock. If such inspection discloses the presence of 
San Jose scale, let the authorities take proper action to 
prevent further shipment, or let there be penalties for the 
introduction of nursery stock affected with the San Jose 
scale. The situation is somewhat comparable to the 
Missouri statute which absolutely prohibited the intro¬ 
duction of all cattle fro mcertain states for a large part 
of the year. The statute was designed to keep out of 
Missouri the dreaded Texas fever. The United States 
Supreme Court held this statute an unreasonable burden 
on interstate commerce, because as is evident, it pro¬ 
hibited interstate traffic in healthy cattle. 
If we now consider in the briefest manner what the 
United States Supreme Court has held to be interstate 
commerce, we can conclude these remarks. It is inter¬ 
state commerce: 
(1) When goods are shipped F. 0. B. by the vendor 
in one state to purchasers in another state. Method of 
payment for goods is not a determining factor. 
(2) When orders for goods are solicited in another 
state by advertisements, catalogues, traveling salesmen 
or other methods. 
(3) When, as a result of acceptance of orders se¬ 
cured by traveling salesmen, advertisements, catalogues, 
etc,, the goods are delivered at sellers’ risk and cost at 
purchaser’s residence in another state, method of pay¬ 
ment of goods not being a determining factor. 
In these circumstances or when shipment is Bill of 
Lading to shipper or order, draft attaehed. there is tech¬ 
nically a retention of title in vendor until after arrival of 
goods in the other state, but the United States Supreme 
Court has stated that this is merely an incident of collec¬ 
tion of payment, the contract of sale being consumated 
in the vendor’s state. 
