
    Whitfield v. The State of Ohio.
    (Decided February 18, 1935.)
    
      Mr. Malcolm E. Molner and Mr. Morton M. Stotter, for plaintiff in error.
    
      Mr. Ezra Z. Shapiro, director of law, Mr. Michael A. Picciano and Mr. Stephen S. Qobosy, for defendant in error.
   Levine, J.

Plaintiff in error, Asa H. Whitfield, who was defendant in. the Municipal Court of Cleveland, was convicted upon an affidavit which charged that he unlawfully sold convict-made goods, in violation of Section 2228-1, General Code of Ohio. Error proceedings were instituted in this court seeking the reversal of said conviction. The charge was incorporated in an affidavit in the following form:

“Before me, Paul DeGrandis, Deputy Clerk of the Municipal Court of the City of Cleveland, personally came R. C. Kissack who being duly sworn according to law, deposeth and saith, that on or about the 2nd day of October, A. D. 1934 at the City of Cleveland in said County of Cuyahoga, one Asa H. Whitfield did unlawfully sell on the open market, certain goods, wares or merchandise, to-wit; one dozen Chambray. men’s work shirts, which said merchandise was manufactured in whole or in part by convicts or prisoners at Wetumpka Prison in the State of Alabama; said prisoners so manufacturing said articles at the time of manufacturing samé not being on parole or probation.”

“Second Count

“R. C. Kissack, who being duly sworn according to law, deposetb and saitb, that on or about the 2nd day of October, A. D. 1934, at the City of Cleveland in said County of Cuyahoga, one Asa H. Whitfield did unlawfully sell for shipment to R. C. Kissack, via Railway Express from Wetumpka Prison in the State of Alabama to R. C. Kissack in the City of Lakewood, Ohio, certain goods, wares or merchandise, to-wit: Six dozen Chambray men’s work shirts, which said merchandise was manufactured in whole or in part by convicts or prisoners at the Wetumpka Prison in the State of Alabama; said prisoners so manufacturing said articles at said time not being on parole or probation and further deponent says not, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Ohio.”

A demurrer was filed on the ground that the law on which said affidavit is based is unconstitutional. The demurrer was overruled by the trial court.

Section 2228-1, General Code, provides that:

“After January 19, 1934, no goods, wares or merchandise, manufactured or mined wholly or in part in any other state by convicts or prisoners, except convicts or prisoners on parole or probation, shall be sold on the open market in this state.”

Section 2228-2, General Code, provides:

“Whoever violates any of the provisions of the next preceding section shall be fined not less than twenty-five nor more than fifty dollars for the first offense and not less than fifty nor more than two hundred dollars for each subsequent offense.” (Effective June 23, 1933.)

An agreed statement of facts was submitted to the trial judge, which reads as follows:

“That on the 2nd day of October, A. D. 1934, the defendant, Asa H. Whitfield of Montgomery, Alabama, as agent for the State of Alabama, sold to R. 0. Kissack, in the City of Cleveland, Ohio, on the open market, to-wit, at the Cleveland Hotel, one dozen Chambray men’s work shirts for the consideration of $5.25; that said shirts were manufactured in whole by prisoners, confined in Wetumpka Prison in the State of Alabama; that said prisoners at the time of manufacturing said shirts were not on parole or probation; that said shirts were shipped in to the City of Cleveland, Ohio, via U. S. Parcel Post, from Wetumpka Prison, State of Alabama, to be sold on the open market, in said City of Cleveland, Ohio; that said goods were sold in the original package, as shipped by interstate commerce into the State of Ohio; that there is nothing harmful, injurious or deleterious about the goods sold.”

It is further stipulated:

“That on the 2nd day of October, A. D. 1934, the defendant, Asa H. Whitfield, of Montgomery, Alabama, as agent for the State of Alabama sold to R. 0. Kissack, in the City of Cleveland, Ohio, on the open market, to-wit, at the Hotel Cleveland, six dozen men’s work shirts, for the consideration of $31.50; that the said shirts were not then delivered to the said R. C. Kissack, but the defendant, Asa H. Whitfield, agreed to ship same to the residence of R. C. Kissack which is in Lakewood, Ohio, via Railway Express, from Wetumpka Prison, in the State of Alabama; that the said shirts have been manufactured in whole by prisoners confined in Wetumpka Prison in the State of Alabama; that said prisoners at the time they manufactured said shirts, were not on parole or probation; that said goods were sold in the original package as shipped, by interstate commerce into the State of Ohio; that there is nothing harmful, injurious or deleterious about the goods sold.”

Plaintiff in error relies mainly upon the contention that the judgment rendered 'by the trial court is contrary to the Constitution of the United States, and that Section 2228-1, General Code, is likewise contrary to the Constitution of the United States, in that it violates Article XIV, Section 1, of the Amendments to the Federal Constitution, and also Article I, Section 8, Clause 3 of the Federal Constitution.

Article XIV, Section I, of the Amendments to the Federal Constitution, reads, in part, as follows:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Article I, Section 8, Clause 3, denominated “Interstate Commerce Clause,” reads as follows:

“The Congress shall have Power * * * (3) To regulate Commerce with Foreign Nations, and among the several States and with the Indian Tribes.”

It is urged that Section 2228-1, General Code, when it provides that “goods, wares or merchandise, manufactured or mined, wholly or in part in any other state by convicts or prisoners,” shall be excluded from the open market in the state of Ohio, abridges the privileges and immunities of citizens of the United States, in that it deprives a citizen of the United States, who has merchandise made by convicts of another state, from competing with convict-made goods in the state of Ohio.

It is further urged that the Interstate Commerce Clause' of the Federal Constitution vests sole authority to regulate commerce among the several states in the Congress of the United States, and that the state of Ohio, by virtue of said Section 2228-1, attempts to regulate interstate commerce between itself and other states of the Union.

It is insisted that the power to regulate interstate commerce granted by the Constitution to Congress is exclusive in its character, so as to preclude the states from exercising such right or power. It is likewise insisted that Congress has the power not only to authorize the importation between the states, but also has power to authorize importers to sell, and that the state of Ohio therefore has no power to impose a law which in any way hinders or prohibits the free flow of commerce among the states.

Since Congress has the right to authorize the importation between the states, it also has the power to authorize the importers to sell. The state of Ohio, therefore, it is contended, has no power to impose a law which in any way prohibits the free flow of commerce between the states.

In its final analysis the question presented to us may be summarized as follows: Granting that it is within the exclusive power of Congress to authorize the importation ©f goods and merchandise of other states into the state of Ohio, to what extent, if any, is the state of Ohio possessed of power to regulate the ■ sale of goods that have been so imported from another state?

Section 2228-1, General Code, was enacted in accordance with the spirit of Article II, Section 41 of the Constitution of the state of Ohio, which reads as follows :

“Laws shall be passed providing for the occupation and employment of prisoners sentenced to the several penal institutions and reformatories in the state; and no person in any such penal institution or reformatory while under sentence thereto, shall be required or allowed to work at any trade, industry or occupation, wherein or whereby his work, or the product or profit of his work, shall be sold, farmed out, contracted or given away; 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, excepting those disposed of to the state or any political subdivision thereof or to any public institution owned, managed or controlled by the state or any political subdivision thereof, shall not he 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 subdivision thereof, or for or to any public institution owned or managed and controlled by the state or any political subdivision thereof.” (Italics ours.)

See, also, Section 13170, General Code.

The laws of Ohio prohibit the manufacture of convict-made goods in Ohio, except for use in correctional institution's, and thereby preclude their sale in the open market. The argument of plaintiff in error, to the effect that Section 2228-1 of the General Code deprives citizens of the United States who have merchandise made by convicts of other states from competing with convict-made goods in the state of Ohio, appears to us without force, since the use to be made of convict-made goods in Ohio is limited to correctional and other public institutions.

. As we interpret the laws of Ohio there can be no sale in the open market of goods made by convicts in the state of Ohio; that the use of such manufactured convict-made goods in Ohio is limited so as to preclude their sale in the open market. There is, therefore, no discrimination against citizens of other states when they are prohibited from selling convict-made goods manufactured in another state in the open market in the state of Ohio.

We are cited to the ease of Arnold v. Yanders, 56 Ohio St., 417, 47 N. E., 50, 60 Am. St. Rep., 753, in which the court held that the Act of May 19, 1894, 91 Ohio Laws, 346, entitled “An act to regulate the sale of convict-made goods, wares and merchandise, manufactured by convicts in other states,” is in conflict with Section 8 of Article I of the Constitution of the United States and is therefore void. In the opinion, at page 419, the court said:

“It is not competent for a state legislature to declare that convict made goods are not articles of traffic and commerce, and then to act upon such declaration, and discriminate against such goods, or exclude them from the state by unfriendly legislation. Whatever congress, either by silence or by statute, recognizes as an article of traffic and commerce, must be so received and treated by the several states.

* ‘ There is no act of congress declaring that convict-made goods are not fit for traffic and commerce, and it therefore follows that such goods are the subject of commerce, and when transported from one state to another for sale or exchange, become articles of interstate commerce, and entitled to be protected as such; and any discrimination against such goods in the state where offered for sale is unconstitutional.”

The basis of the decision it will be seen was that Congress had not at that time excluded convict-made goods as articles of traffic and commerce. Further, at page 421 of the opinion in Arnold v. Yanders, supra, the court said:

“The mere silence of congress is not sufficient to authorize a state legislature to legislate upon a subject vested by the constitution in congress, but such silence is to be regarded as evincing the intention of congress that the power shall remain where the constitution has placed it.

“To give a state legislature power to legislate in such cases, requires an act of congress to that effect. Leisy v. Hardin, 135 U. S., 100; Welton v. Missouri, 91 U. S., 275.”

The basis of the decision of the Supreme Court of Ohio in Arnold v. Yanders, supra, no longer exists.

The Act of Congress, approved January 19, 1929, effective January 19, 1934, known as the HawesCooper Act, 45 Stats. at L., 1084, Chapter 79, Section 1; Title 49, Section 65, U. S. Code, supplied authority which empowered the state of Ohio to act. The Hawes-Cooper Act is entitled “An Act to divest goods, wares, and merchandise manufactured, produced, or mined by convicts or prisoners of their interstate character in certain cases.”

The act reads as follows:

“All goods, wares, and merchandise, manufactured, produced, or mined, wholly or in part, by convicts or prisoners, except convicts or prisoners on parole or probation, * * * except commodities manufactured in Federal penal and correctional institutions for use by the Federal Government, transported into any State or territory of the United States and remaining therein for use, consumption, sale, or storage, shall upon arrival and delivery in such State or Territory be subject to the operation and effect of the laws of such State or Territory to the same extent and in the same inanner as though such goods, wares, and merchandise had been manufactured, produced, or mined in such State or Territory, and shall not be exempt therefrom by reason of being introduced in the original package or otherwise.”

The effect of the Hawes-Cooper Act is to place convict-made goods manufactured in another state in the same category as convict-made goods manufactured in the state of Ohio, and subject to the authority and control of the State of Ohio.

We conclude:

First: That Congress, to the exclusion of the states, is vested with power to regulate interstate commerce; and that until Congress exercised its authority and enacted regulation on the subject such commerce was free and unrestricted. It is just as well settled that Congress may carry its regulation of interstate commerce to the point of prohibition of the interstate transportation of such articles as may spread evil or harm to the people of states other than the state of origin. Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S., 311, 37 S. Ct., 180, 61 L. Ed., 326; Brooks v. United States, 267 U. S., 432, 45 S. Ct., 345, 69 L. Ed., 699; Bennett v. United States, 194 F., 630; West Virginia v. Adams Express Co., 219 F., 794; 12 Corpus Juris, 60, Section 72.

Second: Congress may, in the exercise of its power to regulate interstate commerce, place an article under the jurisdiction of the police power of the state upon its arrival in such state. Leisy v. Hardin, 135 U. S., 100, 10 S. Ct., 681, 34 L. Ed., 128.

In Bowman v. Chicago & N. W. Ry. Co., 125 U. S., 465, 485, 8 S. Ct., 689, 31 L. Ed., 700, the court held: “The transportation of commodities between the States shall be free, except where it is positively restricted by Congress itself; or by the States in particular cases by the express permission of Congress.” Third: Since the Hawes-Cooper Act expressly makes convict-made goods in one state transported to another state subject to the jurisdiction and regulation of the state to which they are transported, the state of Ohio, under its police power, may pass laws for the promotion of the general welfare and prosperity of its citizens. The police power of the state is the inherent power to enact laws necessary to protect the order, safety, health, morals and general welfare of the people of the state.

Fourth: The state of Ohio may, by legislation, determine the public policy of the state, and may declare that the sale of prison-made goods in the open market will result in the destruction of the general welfare, prosperity and safety of the citizens of the state.

“There is no more important concern than to safeguard the freedom of labor upon which alone can enduring prosperity be based.” Bailey v. Alabama, 219 U. S., 219, 245, 31 S. Ct., 145, 55 L. Ed., 191.

It is a matter of common knowledge that industries employing free labor, required to pay taxes, interest on capital and other items of overhead which are not included in the cost of prison-made goods, can not compete successfully in the open market with prison-made goods and maintain the standard of wages which enables free labor to earn a decent living, or enables such industries to meet wage standards which have been established under national and state legislation. That prison-made goods can be sold in the open market at a price which is below the actual cost of production of manufacturers employing free labor is patent.

Fifth: Under the terms of the Hawes-Cooper Act the products of prisoners of other states, are, upon their arrival and delivery in Ohio, placed upon the same footing as prison-made goods “produced in such state,” and the Legislature may provide that they shall not be sold in the open market in Ohio.

Sixth: In Arnold v. Yanders, supra, the court declared void the act of the Ohio Legislature which sought to regulate the sale of goods produced by prisoners in other states. The sole basis of the decision was that whatever Congress, either by silence or by statute, recognized as articles of traffic and commerce, must be so received and treated by the several states, and, that, since there is no act of Congress declaring that convict-made goods are not fit for traffic and commerce, it therefore follows that such goods are the subject of commerce, and when transported from one state to another for sale or exchange become articles of interstate commerce, and are entitled to be protected as such; and any discrimination against such goods in the state where offered for sale is unconstitutional. The necessary permission of Congress which was then lacking is now supplied by the Hawes-Cooper Act, and the Legislature therefore may constitutionally, in conformity with long standing public policy, take such steps as may be necessary to prevent the products of prisoners from other states from entering the open markets of Ohio and wielding their evil influence.

In view of the above considerations, the judgment of the Municipal Court is affirmed.

Judgment affirmed.

Lieghley, P. J., and Terrell, J., concur.  