Syllabus.

CAMPBELL, COMMISSIONER OF AGRICULTURE OF GEORGIA, ET AL. v. HUSSEY ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA.

No. 42. Argued November 14-15, 1961.-Decided December 18, 1961. By the Federal Tobacco Inspection Act, Congress provided for the establishment of uniform standards of classification and inspection of tobacco for the protection of interstate commerce and authorized the Secretary of Agriculture "to establish standards for tobacco by which its type, grade, size, condition, or other characteristics may be determined, which standards shall be the official standards of the United States." Pursuant thereto, the Secretary prescribed by regulation that, "Tobacco which has the same characteristics and corresponding qualities, colors, and lengths shall be treated as one type, regardless of any factors of historical or geographical nature which cannot be determined by an examination of the tobacco." The regulations define type 14 as "That type of fluecured tobacco commonly known as Southern Flue-cured or New Belt of Georgia, Florida, and Alabama, produced principally in the southern section of Georgia and to some extent in Florida and Alabama." When the tobacco is offered for sale, the federal regulations require that it be identified by a blue tag which states the type and grade thereof. A Georgia law requires type 14 tobacco grown in Georgia to be identified by a white tag. Held: The federal law pre-empts the field and excludes state regulation, even though the latter does no more than supplement the former. Therefore, the Georgia statute requiring type 14 tobacco to be identified with a white tag when it is grown in Georgia is unconstitutional. Pp. 298-302.

189 F. Supp. 54, affirmed.

G. Hughel Harrison, Assistant Attorney General of Georgia, and Denmark Groover, Jr. argued the cause for appellants. With them on the briefs were Eugene Cook, Attorney General, Gordon Knox, Frank S. Twitty and Chris B. Conyers, Deputy Assistant Attorneys General.

Homer S. Durden, Jr. argued the cause for appellees. With him on the brief were Darius N. Brown and William J. Neville.

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Sherman L. Cohn, by special leave of the Court, argued the cause for the United States, as amicus curiae, urging affirmance. With him on the brief were Solicitor General Cox, Assistant Attorney General Orrick and Alan S. Rosenthal.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

This is a suit brought by owners and operators of tobacco warehouses in Georgia to enjoin officials of Georgia from enforcing certain provisions of the Georgia Tobacco Identification Act. Ga. Laws 1960, No. 557, p. 214. A three-judge court was convened, 28 U. S. C. §§ 2281, 2284, and it granted the relief. 189 F. Supp. 54. The case is here by direct appeal.1 28 U. S. C. § 1253.

The provisions of the Georgia Act that are challenged concern type 14 flue-cured leaf tobacco. It is defined in § 1 of the Act as "that flue-cured leaf tobacco grown in the traditional loose-leaf area which consists of the State[s] of Georgia, Florida, and Alabama." By § 13 (A) of the Act type 14 tobacco received in a warehouse for sale shall be marked with a "white sheet ticket."

2

Sales at these warehouses are sales within the competence of Congress to regulate. As stated in Mulford v. Smith, 307 U. S. 38, 47: "In Georgia nearly one hundred per cent. of the tobacco so sold is purchased by extra-state purchasers. In markets where tobacco is sold to both

1 Of the several infirmities which Georgia's law is alleged to have, only one was reached by the lower court, namely, the constitutionality of the law in light of the requirements of the Commerce Clause. The complaint also challenged the constitutionality of the law on the grounds that it violated both the Equal Protection and the Due Process Clauses of the Fourteenth Amendment. Plainly the case was one to be heard by a three-judge court. See Florida Lime Growers v. Jacobsen, 362 U. S. 73.

2 The manner of sale is described in Townsend v. Yeomans, 301 U. S. 441, 445; Currin v. Wallace, 306 U. S. 1, 7-8; American Tobacco Co. v. United States, 328 U. S. 781, 800.

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interstate and intrastate purchasers it is not known, when the grower places his tobacco on the warehouse floor for sale, whether it is destined for interstate or intrastate commerce. Regulation to be effective, must, and therefore may constitutionally, apply to all sales."

Congress in 1935 enacted the Tobacco Inspection Act, 49 Stat. 731, 7 U. S. C. § 511, and in its declaration of purpose, § 2, 7 U. S. C. § 511a, stated:

the classification of tobacco according to type, grade, and other characteristics affects the prices received therefor by producers; without uniform standards of classification and inspection the evaluation of tobacco is susceptible to speculation, manipulation, and control, and unreasonable fluctuations in prices and quality determinations occur which are detrimental to producers and persons handling tobacco in commerce; such fluctuations constitute a burden upon commerce and make the use of uniform standards of classification and inspection imperative for the protection of producers and others engaged in commerce and the public interest therein." (Italics added.)

By § 511b the Secretary of Agriculture is authorized "to establish standards for tobacco by which its type, grade, size, condition, or other characteristics may be determined, which standards shall be the official standards of the United States. . . ." (Italics added.)

Detailed standards have been prescribed by the Secretary. As to the "type" of tobacco, the regulations state: 66 Tobacco which has the same characteristics and corresponding qualities, colors, and lengths shall be treated as one type, regardless of any factors of historical or geographical nature which cannot be determined by an examination of the tobacco." 7 CFR, 1961 Cum. Supp., § 29.1096. (Italics added.)

Type 14 is defined as "That type of flue-cured tobacco commonly known as Southern Flue-cured or New Belt

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of Georgia, Florida, and Alabama, produced principally in the southern section of Georgia and to some extent in Florida and Alabama." 7 CFR, 1961 Cum. Supp., § 29.1100. (Italics added.)

The regulations also provide that the classification of the tobacco by type be placed on a federal inspection certificate and announced at the time the lot is offered in the auction (7 CFR § 29.80, 7 CFR, 1961 Cum. Supp., § 29.1144)—an identification made by a blue ticket.

The question is whether the federal scheme of regulation has left room for Georgia to identify type 14 tobacco with a white tag when it is grown in Georgia, Florida, or Alabama.

It is earnestly argued that there is no conflict between Georgia's regulation and the federal law, as all that Georgia requires is that type 14 tobacco, grown in Georgia, be labeled as such. In that connection it is pointed out that type 14 tobacco as defined by the federal regulations includes tobacco "produced principally" in Georgia, Florida, and Alabama and that labeling it by its geographical origin merely supplements the federal regulation and does not conflict with it.

We do not have here the question whether Georgia's law conflicts with the federal law. Rather we have the question of pre-emption. Under the federal law there can be but one "official" standard-one that is "uniform" and that eliminates all confusion by classifying tobacco

3 The court below stated:

"The Georgia statute defines Type 14 tobacco on the basis of geographical origin and upon no other basis. If it is grown in Georgia, it would be Type 14 under the Georgia law and be given a white tag; while if it came from the other side of the Savannah River in South Carolina it would not be Type 14 and would be given a blue tag. ...

"Both the purpose and effect of the Georgia enactment were to make a distinction at the markets, by the color tags, between tobacco grown in Georgia and that grown elsewhere. The effect was to create

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not by geographical origin but by its characteristics. In other words, our view is that Congress, in legislating concerning the types of tobacco sold at auction, preempted the field and left no room for any supplementary state regulation concerning those same types. As we have seen, the Federal Tobacco Inspection Act in § 2, 7 U. S. C. § 511a, says that "uniform standards of classification and inspection" are "imperative for the protection of producers and others engaged in commerce and the public interest therein." The House Report No. 1102, 74th Cong., 1st Sess., reviewed at length the harm to growers that resulted from the absence of regulations governing the "grades" of tobacco sold on the auction market. "There are between 60 and 100 grades in a single type of tobacco, and it is not practical for a farmer to familiarize himself with the technical factors on which these grades are based . . . ." Id., p. 2. The need for "a definite standard" of grading, id., p. 2, or of "standard grades," id., p. 4, was repeated over and again. The importance of a "standard grade" was emphasized in the debates on the floor of the House. Congressman Hancock stated that this legislation provided that tobacco on the auction market "would be inspected by competent judges of tobacco in Government employ and graded according to United States standards of quality. . . ." 79 Cong. Rec. 11870. Congressman Mitchell added that "Standard grades would serve as a guide to farmers in classifying their tobacco for market." Id., 11878. The Senate Report No. 1211, 74th Cong., 1st Sess., based its approval of the bill on a report made by the Department of Agriculture. After stating that the purpose of the bill was to provide "uniform standards" for the protection of farmers, the report added: "The bill would authorize the Secretary of Agriculture to establish

a wide disparity of price between the two groups of tobacco, the Carolina growers receiving a much lower amount. This resulted in losses of business to the plaintiff warehousemen." 189 F. Supp. 54, 59.