THE NATIONAL NURSERYMAN 
13S 
LEGISLATION. 
FEDERAL INSPECTION LAWS—AN INQUIRY. 
At the West Baden meeting, the Association, by resolution imposed 
a duty upon the new committee on legislation. The resolution directed 
the committee to inquire under the guidance of the best legal advice 
abtainable, whether or not, under the law as declared by the United 
States Supreme Court, it is advisable for the legislative committee to 
attempt to obtain from Congress a law providing for federal inspection 
of nursery stock; and that when so inspected it might become a subject 
of interstate commerce and not subject to further quarantine and in¬ 
spection in transit from the owner in one state to the possession of the 
purchaser in another state. It was thought that it might lie within 
the power of Congress to so ascertain the condition of nursery stock 
that it could enact with authority that when found to be apparently 
free from objection, it might be free to pass in interstate commerce for 
the owner in one state to the purchaser in another. 
The new committee, not having been named, President Albertson 
has asked me to undertake the inquiry; and here is the result. 
The United States Constitution confers upon Congress, in its broadest 
terms, the right to make rules and regulations affecting commerce 
between states, with foreign nations and with the Indian tribes. And 
this power cannot be in any wise adribged by any state enactment. 
In another section, the Constitution provides that all powers not ex¬ 
pressly granted to Congress are reserved to the several states and to 
the people. The police power has always been held to be one of the 
powers so reserved. Under this power states pass laws protecting the 
health, the comfort, the safety and the lives of citizens and for the 
protection of their property. 
Quarantine and inspection laws affecting persons, animals and goods 
coming from other states or countries are among the means used to 
secure this reasonable protection and reach to the boundaries of the 
state. Under such laws goods may be detained, inspected, fumiga¬ 
ted, denied admittance or even destroyed if deemed necessary. 
Congress, under its power to regulate commerce, may say what may 
not pass in interstate commerce out of a state, but cannot say what 
may pass into a state unless it be of a character so that of itself it 
is not dangerous to the people or the property of the state. If 
goods, when about to enter a state, are in such condition, from 
disease, infestation or other contamination that they are dangerous 
to the health or the property of the citizens of the state they are 
no longer fit subjects of commerce and are not protected by congres¬ 
sional regulations but are subject to be regulated by the state under 
its police powers. “And here is the limit between the sovereign power 
of the state and the federal power: that which does not properly belong to 
commerce is within the jurisdiction of the police powers of the state and 
that which does belong to commecre is within the jurisdiction of the United 
States.” 
The Supreme Court has held that goods may pass in inter¬ 
state commerce within a state to their destination and be free from 
inspection or seizure until they have been sold within the state; but 
they must be merchantable, that is, of such character as not of them¬ 
selves to be dangerous to either the people or their property. A barrel 
of whisky may pass within a prohibition state and be protected in the 
hands of the importer and until he sells it, for in its original condition 
a barrel of whisky makes no man drunk, neither does it contaminate 
any man’s goods. A bale of rags from a small pox hospital would 
undoubtedly fall within the other—the unprivileged class—and might 
be inspected, purified if possible, or destroyed at the border of the state 
under laws passed in pursuance of its police powers. Nursery stock, 
dangerously infested or diseased, so as to be dangerous to the orchards 
and vineyards of the state would undoubtedly be subject to the same 
treatment. 
It would doubtless be within the power of Congress to pass 
an act prohibiting the importation from foreign countries of any 
nursery stock which has not been properly inspected and certified, 
or the passage of such property out of any state into interstate or 
foreign commerce but it cannot, by inspecting and ascertaining the 
probable safe condition of goods, protect such goods across the bor¬ 
ders of and into any state, against the wishes of the people of that 
state duly expressed in a reasonable legislative enactment. If the state 
laws are of such character that they attempt to regulate or hamper 
interstate commerce unreasonably, they are subject to be overthrown 
by a Supreme Court decision. A law of Missouri providing that no 
cattle from certain regions southward should come within the state 
during several months of each year was held to be an unreasonable 
regulation of interstate commerce and overthrown, but the court 
expressly said that if the law had been an inspection law and cattle 1 ^ ^ j 
found to be diseased had been excluded while sound ones were suffered 
to proceed, it would have been undoubtedly constitutional and valid. 
Congress placed a section in an internal revenue law providing that 
naptha mixed with coal-oil or coal-oil inflammable at a temperature 
below a certain degree, should not be sold in any state. The Supreme 
Court said that this, although a reasonable protection of life and prop¬ 
erty, is no more than a police regulation and as such belongs to the 
legislatures of the states. The federal enactment was declared un¬ 
constitutional. 
To reach the conclusions briefly set down here I have read a great 
many decisions, running through numerous volumes of Supreme Court 
reports and have taken the best legal advice available. Some things 
anxiously sought have not been found. Other things not desired, have 
persistently appeared. But the full truth as I have found it, I have 
written down. I have not quoted the names of cases with the volume 
and page because this statement is not for lawyers but for plain people 
but if anyone desires to ask any questions I shall be more than glad to 
quote the authorities from which everything therein stated has been 
derived. 
If we could have secured rigid federal inspection at first and so pre¬ 
vented the fear of nursery stock in interstate commerce, it may reason¬ 
ably be supposed that the most oppressive state legislation, born of 
that fear, might not have been enacted. 
It is too late. No federal statute can touch those state laws now. 
C. L. Watrous. 
PEACH SHIPMENTS. 
The week ending July 22 marked the heaviest receipts of peaches 
from the Texas region in the Chicago markets on record. On Monday, 
no less than 121 cars of peaches were received in Chicago. The market 
was badly shaken though not completely demoralized. The end of 
July practically saw the end of the Texas shipments. These were 
followed by heavy consignments from Arkansas and Oklahoma,. It 
looks, at the present time, as if the publie would have an opportunity 
of satisfying its appetite before the New York and New England 
peaches find their way into the market. 
WHITE-LEADING TREES. 
Our readers will remember that Mr. Alwood reported in the last 
issue of the Nurseryman, strongly in favor of the practice of white- 
eading the stems of fruit trees as a preventative of borers. In the issue 
of July 15 of the Rural New-Yorker Professor Britton of Connecticut 
makes a very adverse statement regarding the influence of white lead 
and oil on trees. Lead such as is ordinarily procurable from dealers 
was used mixed with the commercial grade of linseed oil. This paint 
was applied to the stems of one hundred and twenty-two apple trees 
and five pear trees. The trees varied in age from two to twelve years. 
Out of the hundred and twenty-two apple trees ninety-six died within 
a year while the remainder are unthrifty. This experience suggests 
that the white-leading of trees for the prevention of borers is a practice 
that is worth trying on a small scale before indulging in extensively. 
BEAN RUST IN NEW YORK. 
Bean growers in New York State have been considerably worried 
by the excessive amount of rust (anthracnose) which appeared during 
July and continued more or less during August. This fungous disease 
is much encouraged by humid atmospheric conditions and high tem¬ 
peratures. It may be prevented by spraying and it is altogether likely 
that many of the best bean growers will prepare to spray thoroughly 
next season. 
