Concurring opinion of Webber, J.
How later courts described this case
- Concurring opinion of Webber, J.
Written by the judges who cited it.
The opinion
WEBBER, Justice
(concurring).
I concur with the opinion of the Court with respect to its “Answer to Paragraph 1” as far as it goes. I am fully in accord with the “Answer to Paragraph 2,” My concern is that the first answer may be incorrectly construed as expressing the view of this Court that the “limitations specifically contained therein,” referred to in the answer, are valid and enforceable in their entirety. I have in mind particularly the provisions of 12 M.R.S.A. Secs. 4454 and 4456 which have the effect of excluding from the Maine market fresh lobster meat removed from the shell outside of Maine but possessed and intended for sale in Maine as fresh unprocessed lobster meat. The “Answer to Paragraph 2” makes it abundantly clear that a non-resident cannot obtain the permit from the Commissioner without which he cannot hope to comply with the provisions of 12 M.R.S.A. Sec. 4454. The effect, whether intended or not, is to create a monopoly of the market for Maine residents. Such an obstruction to interstate commerce is clearly in violation of U.S.Const., Art. I, Sec. 8. Polar Ice Cream & Creamery Co. v. Andrews, (1964) 375 U.S. 361 , 84 S.Ct. 378 , 11 L.Ed.2d 389 ; Baldwin v. G. A. F. Seelig, Inc., (1935) 294 U.S. 511 , 55 S.Ct. 497 , 79 L.Ed. 1032 ; Voight v. Wright, (1891) 141 U.S. 62 , 11 S.Ct. 855 , 35 L.Ed. 638 ; Brimmer v. Rebman, (1891) 138 U.S. 78 , 11 S.Ct. 213 , 34 L.Ed. 862 . I recognize that my associates have not expressed a contrary view but have treated the constitutional issue as reserved for decision in the Federal Courts. In my view, however, this Court cannot properly interpret statutes or declare rights thereunder without taking into account the fact that some of the statutory provisions under consideration are clearly invalid and unenforceable for constitutional reasons. I would further amplify the “Answer to Paragraph 1” by stating that the requirements of 12 M.R.S.A. Sec. 4454 with respect to labeling and of Sec. 4456 insofar as it precludes possession and sale are void and of no. effect as applied to fresh lobster meat removed from the shell outside of Maine.
DUFRESNE, Justice.
I join in the within separate concurring opinion of WEBBER, J.