Opinion — Whitfield v. Ohio

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| ~sUPREME COURT OF THE UNITED STATES.

No. 377.—OcrToBer TreR™, 1935.

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VS. Supreme Court of the soe

Asa H. Whitfield, Petitioner, , On Writ of Certiorari to the

The State of Ohio. 7 of Ohio. | “5

[March 2, 1936.] '

Mr. Justice SUTHERLAND delivered the opinion of the-Qourt. _

Petitioner was charged in the Municipal Court of Cleveland with ®

iolation of § 2228-1 of the Ohio ee Code, adopted March ~&

of 1933, which provides: ~~ "

‘After January 19, 1934, no goods, wares or merchandise, manu- b

. factured or mined wholly or in part. in any other state by convicts

or prisorers, except convicts or prisoners on parole or probation,

shall be sold on the open market in this state.’ . 5

By § 2228-2, a violation of this provision subjects the offender to a

fine of not less than $25 nor more than $50 for the first offense.

An Act of Congress passed January 19, 1929 (effective five years

later), c. 79, §§ 1-2, 45 Stat. 1084, Title 49, U. S. C., § 60, comaonly *

called the Hawes-Cooper .Act, provides :

‘That ‘all goods, wares, and merchandise manufactured, pro- -

duced, or mined, wholly or in part,-by convicts or prisoners, except

convicts or prisoners on parole or probation, or in any penal and/or

reformatory institutions, except commodities manufactured in Fed- ©

eral penal and correctional institutions for use by the Federal

Government, transported into ahy Sfateor Territory of the United .

States and remaining therein for use; consumption, sale, or storage,

sha@ upon arrival and delivery in such State or Territory be sub-

ject to the operation and effect of the laws of such State or Terri-

tory to the same extent and in the same manner as though such

goods, wares, and merchandise had been manufactured, produced, |

or mined in such State or Territory, and shall not be exempt there-

from by reason of being introduced in the original package or

otherwise. ’’ ;

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The information contains two counts. . The first count charges

that petitioner, upon a day named, and within the City of Cleve-

land, Ohio, ‘‘did unlawfully sell on the open market certain goods,

2 Whitfield vs. Ohio. '

wares or merchandise, to-wit: one dozen Chambray men’s work

shirts, which said merchandise was manufactured in whole or in

part by conviets or prisoners at Wetumpka Prison in the State of

Alabama; said prisoners so manufacturing said articles at the time

of manufacturing same not being on parole or: probation.” By

the second count it is charged that ‘petitidner ‘‘did uhlawfully

sell for shipment to R. C. Kissack, via railway express from We- .

tumpka Prison in the State of Alabama to R. C. Kissaek in the

‘City of Lakewood, Ohio, . . . six dozen Chambray men’s work

shirts,’? manufactured by convicts’ or prisoners at the same prison -

in Alabama. The case was tried before the court upon a, stipula-

tion of facts substantially” “the same as those set forth in the in-

formation, ‘with the addition, in respect of the first count, that the

goods ‘were sold in the original package as shipped by interstate

‘ commerce into the State of Ohio, and that there is nothing harmful,

injurious, or deleterious about the goods sold; that the six dozen

shirts mentioned in the second count were not delivered to Kissack

' at the time of sale, but were to be shipped to his residence in Lake-

wood, Ohio, by railway express from the prison in Alabama.

The case Was tried without a jury. The court found petitioner

guilty upon both counts, and sentenced him to pay a fine of $25

and costs.

An appeal was ins to the Couri of Appeals of Ohio, Ejzhth

District, Cuyahoga County, where the: judgment was affirmed. 49

Ohio App. 530. A petition in error to the Swpreme Court of Ohio

was dismissed by that court on the ground that no debatable con-

” stitutional question was involved. 129 Ohio St. 548. This court

granted certiorari, 296 U. S. —. . $

Petitioner assails the constitutional validity of the Ohio statute

and also of the Hawes-Cooper Act. The record fails to show that

the points made by petitioner in this court were properly raised

in the trial court. But it sufficiently appears from the opinion of

the,appellate court that that court considered and passed upon the

following contentions: that the Ohio statute abridged the privi-

leges and immunities of petitioner as a citizen of the United States

in violation of the Fourteenth Amendment, by depriving him of

the privilege of selling goods, manufactured in Alabama by prison

labor, in competition with citizens of Ohio engaged in selling like

. goods; that the Ohio statute constituted an unauthorized regula-

tion of and a burden upon interstate commerce; and that the

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Hawes-Cooper Act constituted an unlawful delegation of the power

‘of Congress to the states. These questions, therefore, are properly

here for consideration. Home Ins. Co. v. Dick, 281 U. 8. 397, 405-

-407; Erie Railroad Co. v. Purdy, 185 U. S. 148, 153.

The policy of the state of Ohio for many years, as evidenced by

its constitution and laws, has been’ to protect the produéts of free

labor against competition from similar products brought ixto exist-

ence by prison labor. iA section of the state constitution (Art. IT,

§ 41), adopted in 1918, ‘provides: ; ;

” “Taws shall be passed providing for the occupation wil employ-

ment of prisoners sentenced to the several penal institutions and.

reformatories in the state; ... . and goods made by persons

under sentence to any penal institution or reformatory without the

State of Ohio, and such goods made within’ the State of Ohio, ex-

cepting those disposed of to the state or any political sub- division

thereof or to any public institution owned, managed or controlled

by the state or any political sub-division thereof, shall not be sold’

within this state unless the same are conspicuously marked ‘prison

made.’ . Nothing herein contained shall be construed to prevent the

passage of laws providing that convicts may work for, and that

the products of their labor may be*disposed of to, the state or any

political sub-division thereof, or for or to any public institution’

owned or managed and controlled by the state or any political sub-

division thereof.’’ '

1. The court below sahewatiul upon the assumption that peti-

tioner was a citizen of the United States; and his status in that

regard is not’questioned. The effect of the privileges and immuni-

ties clause of the Fourteenth Amendment, as applied to the facts

of the present case, is to deny the power of Ohio to impose restraints

‘upon citizens of the United States resident in Alabama in respect

of the disposition of goods within Ohio, if like restraints.are not

imposed upon citizens resident in Ohio. The effect of the similar.

clause found in the Fourth Article of the Constitution, as applied *

to these facts, would be the same, since that clause is directed

against discrimination by a state in favor of its own citizens and

against the citizens of other states. The Slauyhter-House,Case,

1 Wood 21, 28; Bradwell v.' The State, 16 Wall. 130, 188. As

interpreted by the court below, the laws of Ohio passed in pur-

suance of the state constitution prohibit the sale in the open market

of goods made in Ohio by convict labor. The statutory provision

here challenged enforces, without discrimination, the same rule as

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«to the convict-made goods: of other states when they are brought

*» into Ohio; and the contention in respect of the privileges and im:

munities clause must be rejected as without. substance. Compare

~ Scott ve Donald, 165 U. 8.58, 100; Colgate v. Harvey (Decemher

‘16, 1935), 296 U. 8. —.

2. A serious question as to the infringement of ‘the commerce

clause of the Constitution is presented by the second count of

the information. That count alleges that the prison-made goods

described were sold to a*purchaser in Qhio for shipment via rail-

. way express from a prison in Alabama. Whether the court below

intended to sustain this count: is not clear ; but the state confines

its argument here to a defense of its asserted power to prohibit

‘and penalize the sale of such goods upon the open market and the

statute apparently goes no further than this. In any event, for

present purposes, we lay that count out of the case, and limit our

consideration to the first count. True, the petitioner was found

guilty upon both counts, but the penalty imposed upon him does

not exceed that which might have been exacted under the first —

count if it had stood alone. The case, therefore, falls within the «

rule, frequently stated by this court, that a judgment upon an —

indictment containing several counts, with a verdict of guilty

upon each, will be sustained if any count is good, and sufficient

in itself to support the judgment. Claassen v. United States, 142

U. S..140, 146; Evans v. United States, 153 U. S. 584, 595; Abrams:

v. United States, 250 U. S. 616, 619; Brooks v. United States, 267

U.S. 432, 441.

‘The first count simply charges, in the terms of the seabeit, that

wee unlawfully sold on the open market in Ohio certain

' goods made by prison labor in Alabama. These goods, according

to the stipulation of facts, were sold in original packages as they ~ —

were shipped in interstate commerce into Ohio. When the goods

oe transportation had come to an end; and the regu-

"3 . lati é of the state had attached, except so far as that power

might be affected by the fact that the packages were still un-

broken. But any restrictive influence which that fact otherwise

‘might have had upon the state power was completely removed by

Congress, if the Hawes-Cooper Act be valid. That act is in sub-

stance the same as the Wilson Act with respect to intoxicating .

‘liquors, passed August 8, 1890, c. 728, 26 Stat. 313, as construed

- ' Whitfield vs. Ohio. ) 5

and upheld by this court. Rhodes v. Iowa, 170 U. S. 412, 421-423,

426; In re Rahrer, 140 U. S. 545, 559-560, 562, 564. _ In effect,

"both acts provide (the one as construed and the other in terms)

“that the subject matter of the interstate shipment shall, upon ar-

rival and delivery in any state or territory, become subject to

the operation of the local laws as though produced in such state

or territory; and shall not be exempt therefrom because intro-

duced in original packages. Each statute simply permits the

jurisdiction of the state to attach immediately upon delivery,

- whether the importation remain in the original package or not.

In other words, the importation is relieved from the operation of

any rule which recognizes a right of sale in the unbroken package

without state interference—a right the exercise of which never has

been regarded as a fundamental ‘part of the interstate transac- .

- tion, but only as an incident resulting therefrom. Rhodes v. Towa,

supra, pp. 420, 423-424. The interstate transaction in its funda-

mental aspect ends upon delivery to the consignee.

The view of the State of Ohio that the sale of convict-made

goods in competition with the products of free labor is an evil,

finds ample support in fact and in the similar legislation of a pre-

ponderant number of the other states. Acts of Congress relating

tothe subject also recognize the evil. In addition to the Hawes-

Cooper Act, the importation of the products of convict labor

has been denied the right-of entry at thé ports of the United

States and the importation prohibited. C. 497, § 307, 46 Stat.

689; Title 19 U. S. C. (1934 ed.), § 13807. And the sale to the

public in competition with private enterprise of goods made by -

convicts imprisoned under: federal law is forbidden. C. 340, § 5,

46 Stat. 391; Title 18 U.S. C. (1934 ed.), § 744.

All such legislation, state and federal, proceeds upon the view

that free labor, properly compensated, cannot compete success-

fully with the enforced and unpaid or underpaid convict labor

of the prison. A state basing its legislation upon that conception

has the right ‘and power, so far as the federal: Constitution is

concerned, by non-diseriminating legislation, to preserve.its policy

- from impairment or defeat, by any means appropriate to the

end and not inconsistent with that instrument. The proposition

is not contested that the Ohio Statute would be unassailable if

made to take effect after a sale in the original package. And the

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statute as it now reads is equally unassailable, since Congress has

provided that the particular subjects of interstate commerce here

involved ‘‘shall be governed by a rule which divests them of that

character at an earlier period of time. than would otherwise be

the case’’, In Rahrer, supra, p. 562, namely upon arrival and

delivery. ; Jeg

If the power of Congress to remove the: impediment. to state

control presented by the unbroken-package doctrine be limited. in

any way (a question which we do not now find it necessary to

consider), it is clear that the removal of that impediment in the

. case of prison-made goods must be upheld for *easons akin to those

which moved this court to sustain the validity of the Wilson. |

Act. Even without-such action by Congress fhe unbroken-package

doctrine, as:applied to interstate commerce, has come to be re-

garded, generally at least, as more artificial than sound. Indeed, in

its relation to that commerce, it was definitely rejected in Sonne-

born Bros. v. Cureton, 262 U. S. 506, 508-509, as affording no

immunity from state ‘taxation. ‘‘The interstate transportation”,

this court there concluded, ‘‘was at an end, and whether in the -

original package or not, a state tax upon the ‘oil as property or

upon its sale in the State, if the state law levied the same tax on

“all oil or ali sales of it, without regard to origin, would be neither

a regulation nor a burden of the interstate commerce of. which this

oil had been the subject.’’ |

Whether that view of the doctrine as applied to state taxation

should now be given a more general application, the Hawes-Cooper

Act, being determinativé of the case now under review, makes

it unnecessary for us to decide.

3. That the Hawes-Cooper Act does not constitute a delegation

of Congressional power to the states is made clear by. Jn re Rahrer,

supra, pp. 560-561, and. by. what we have already said undet sub-

division 2. ,

Judgment affirmed.

Mr: Justice VAN Devanter, Mr. Justice McReynouns, and Mr.

Justice STONE concur in the result.

A true copy.

‘ Test:

Clerk, Supreme Court, U. 8.

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