
    Ex parte LYSAGHT.
    (No. 8631.)
    (Court of Criminal Appeals of Texas.
    April 2, 1924.)
    Feed <&wkey;l — Net container aet held unconstitutional.
    Since variance in per cent, of moisture in beans sold in packages arises from a cause over which seller thereof has no control and a variance in weight cannot be attributable to him, Net Container Act, penalizing failure plainly to mark packages of food stuffs with net weight of contents, is unconstitutional as applied to bean's.
    <®=s>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Original application by Ed. H. Lysaght for writ of habeas corpus.
    Relator discharged, and prosecution ordered dismissed.
    Phillips, Brown & Morris, of Port Worth, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Relator is prosecuted for a violation of what is known as the “Net Container Act,” c. 53, Acts 2d Called Sessions, 38th Leg. p. 121. The law is attacked as being unconstitutional and incapable of enforcement in an original habeas corpus proceeding in this court. The facts follow: Relator is president of the Carter Grocer Company, a corporation, located at Port Worth in Tarrant county, Tex., said company being engaged in the wholesale grocery business. Relator has no active interest in the affairs of the concern and no direct management thereof '; he had no knowledge of the transaction of the Carter Grocer Company out of which this prosecution grew. The company in question bought from the Idaho Bean & Elevator Company, located at Troy, Idaho, 400 bales of beans, the bales being made up of 2-pound, 4-ounce sacks or packages, and 300 bales made up of 4-pound, 8-ounce sacks or packages. Before these beans were received at Fort Worth by the Carter Grocer Company they had received an order for four bales from the Hamilton Grocer Company of Mineral Wells, Tex. When the shipment reached Port Worth, the Carter Grocer Company shipped to the Hamilton Grocer Company at Mineral Wells four bales of the beans in the original bales. One of these b.ales contained 20 small sacks or packages marked upon each package “4 pounds and 8 ounces net when packed.” The other three bales contained the smaller packages of beans, each package being marked “2 pounds and 4 ounces net when packed.” While these beans were exposed for sale by the Hamilton Grocer Company at Mineral Wells, an employe of the weights and measures department of the state of Texas weighed 12 of the large packages, one of which weighed 4 pounds 6% ounces; eight, 4 pounds 7 ounces; one, 4 pounds 7% ounces; and two weighed 4 pounds 8 ounces. Of the smaller sacks or packages 20 weighed 2 pounds 3 ounces; thirteen weighed 2 pounds 3% ounces; and the remainder weighed 2 pounds 4 ounces. Sixty-six cases were filed against relator in the justice court at Mineral Wells in each of which, as president of the Carter Grocer Company, he was charged with a violation of the law in question, based on the foregoing facts. When the Carter Grocer Company received the beans at Port Worth, the bales were not broken or weighed, they relying upon the guaranty of the Idaho Bean & Elevator Company from whom they purchased for the correctness of the weights marked upon each package.

The law is attacked upon various grounds, one being that the facts clearly show that the beans in question were an interstate shipment and not subject to the act in question. We do not discuss this feature of appellant’s contention, as the matter will be disposed of upon other grounds.

There is pending before us at this time, and this day decided (cause No. 8578) Overt v. State, 206 S. W. 856, in which the validity of this same law is attacked. It is held in the opinion in that case to be unconstitutional and unenforceable. The relator makes the same attack upon the law as is made in Overt’s Case, supra, and the facts are similar as showing that the moisture content in beans cured and placed upon the market as were the ones here under consideration varies the same as does the moisture content in flour which was the direct point at issue in Overt’s Case. A chemist testified in the present case as follows:

“ * * * I know that beans in general, when dried and packed ready for the market,, contain normally about 10 to 20 per cent, moisture. I know also that the amount of moisture which beans contain depends upon two things: First, upon the extent to which they have been dried or cured from the green stage, after having matured; and, second, the atmospheric conditions to which said beans have been subjected. The amount of moisture in beans dried and packed for shipping and market varies, and when the amount of moisture contained in said beans varies, the weight of a given quantity of said beans will vary correspondingly. It is not practical to so pack beans for shipment and for the market in the way in which they are ordinarily handled by commercial concerns so that they are not subject to atmospheric conditions, the amount of moisture which they contain, varying from time to time according to such atmospheric conditions, and resulting in corresponding vari- ■ ations in weight, although such variations may be only slight at times. I have subjected the beans designated as Serv-us beans, put in paper sacks, same being a small white bean, and being the same character of beans that were sold by the Carter Grocer Company to the Hamilton Grocery Company, of Mineral Wells, and I iind that the beans in the package •which I obtained from the Carter Grocer Company on the 11th day of March, 1924, at Fort Worth, Tex., contain 13.25 per cent, moisture. I find by experiment that by subjecting said beans to change of moisture and atmospheric conditions that the per cent, of moisture contained in said beans can be increased or decreased, according to the amount of moisture in the air in which the beans are placed. The variations in per cent, of moisture may be increased to 19.70 and decreased to 5.88 per cent., and results in a corresponding variation in the weight of a given quantity of beans. These experiments on decreasing the_ moisture content were made while the, beans were in the paper sack or container in which they were at the time I secured them from the Garter Grocer Company. One per cent, equals approximately one-third of an ounce on the 2-pound packages used.”

From the foregoing statement in connection with the other facts heretofore given' it will be seen that everything said by us in Overt’s Oase applies equally to, the facts of the present one, and we think it unnecessary to write further relative to the matter. It is as impracticable for dealers in the commodities discussed in the two cases to comply with the law as it is written as it would be to comply therewith if it had in so many words required them to maintain in the products when offered for sale at all times the same per cent, of moisture content regardless of atmospheric conditions. The variance in the per cent, of moisture is not an act of the wholesaler or dealer. It arises from a cause over which they have no control, and a variance in weight brought about thereby cannot be attributed to them, nor a criminal prosecution based thereon.

For the same reasons stated in the opinion in Overt’s Case, supra, relator is ordered discharged.  