JONES v. UNION GUANO CO., Inc.

Plaintiff in error brought this action in the superior court of Rockingham county to recover damages alleged to have resulted to his tobacco crop from the use of fertilizer manufactured and sold by defendant in error. A state law (section 7, chapter 143, Laws of 1917) provides that no such action shall be brought until after chemical analysis showing the ingredients of the fertilizer. The plaintiff in error failed to meet this requirement, and, notwithstanding evidence tending to show inferior quality of and deleterious ingredients in the fertilizer and injury to the crop resulting from its use, the court dismissed the case and entered judgment of nonsuit. The Supreme Court of the state affirmed the judgment. 183 N. C. 338, 111 S. E. 612. The question here is whether the state law so applied is repugnant to the due process clause or equal protection clause of the Fourteenth Amendment.

The facts alleged and on which plaintiff in error seeks to recover are these. In the spring of 1919, he purchased 51 bags of fertilizer upon the representation and warranty of defendant in error that it was good for and conducive to the growth of tobacco. The weather was propitious, the plants were good and properly set out, and the land was properly tilled. The fertilizer contained deleterious ingredients not available as food for plants, and killed or prevented the growth of tobacco. There was produced 4,469 pounds of tobacco, on which, by reason of inferior quality, there was a loss of 30 cents a pound, $1,340.70, and in addition to the actual yield there should have been produced 5,281 pounds, of the value of 70 cents per pound, $3,696.70, making total damages alleged $5,037.40.

In North Carolina commercial fertilizer is generally used for the production of crops. Prior to the passage of the act, litigation between the users and sellers of fertilizers, involving demands for damages for injuries to crops alleged to have resulted from the use thereof, became a matter of public concern affecting, or liable to affect, the general welfare.1 In earlier cases, the Supreme Court of the state held the measure of damages to be the difference between the actual value and the purchase price of fertilizer, and denied recovery for diminution of crops on the ground that such a claim necessarily must be speculative. Fertilizer Works v. McLawhorn (1912) 158 N. C. 274, 73 S. E. 883. Later recovery for diminution of crops was permitted. Tomlinson v. Morgan (1914) 166 N. C. 557, 82 S. E. 953; Carter v. McGill (1915) 168 N. C. 507, 84 S. E. 802, on rehearing (1916) 171 N. C. 775, 89 S. E. In Hampton Guano Co. v. Live Stock Co. (1915) 168 N. C. 442, 448, 84 S. E. 774, 776 (L. R. A. 1915D, 875), where the contract of sale of fertilizer contained a warranty that the seller should not be held responsible for results in actual use, the court said:

'The warranty was drawn for the very purpose of preventing the recovery of such damages as are, in their nature, very speculative, if not imaginary, and out of all proportion to the amount of money or price received by the seller for the fertilizer. If fertilizer companies can be mulcted in damages for the failure of the crop of every farmer who may buy from them, they would very soon be driven into insolvency or be compelled to withdraw from the state, as the aggregate damages, if the supposed doctrine be carried to its logical conclusion, would be ruinous, and the farmers in the end would suffer incalculable harm.'

In 1917 the state Legislature dealt with the situation and passed the act above referred to, comprehensively regulating fertilizers. Among other provisions, to prevent deception and fraud, it requires that before sale there shall be attached to each package a brand name, which is required to be registered with the state department of agriculture, the weight, the name, and address of the manufacturer, and the guaranteed analysis, giving the percentage of valuable constituents—phosphoric acid, nitrogen (or equivalent in ammonia), and potash. Change of a registered brand to a lower grade is forbidden. The use of the terms 'high grade' and 'standard' is regulated, and minimum percentages of valuable constituents are prescribed for each grade. Deleterious substances are prohibited. Fertilizers offered for sale or sold contrary to the provisions of the act are liable to be seized and condemned. Penalties are prescribed for violations of the act or of the rules and regulations of the department made to carry it into to effect. Whenever the commissioner of agriculture shall be satisfied that any fertilizer 15 5 per cent. below the guaranteed value in plant food, it is his duty to require that twice the value of the deficiency shall be made good by the manufacturer to one who has purchased such fertilizer for his own use. If 10 per cent. below, it is the duty of the commissioner to require three times the value of such deficiency to be paid to the consumer. If the deficiency is due to intention of the manufacturer to defraud, then there shall be collected from him double the amounts above stated. If the manufacturer resists payment, the commissioner is required to publish the analysis in an official bulletin and also in one or more newspapers. The department is required to have sufficient chemists and assistants and the necessary equipment to enable it promptly to make a report of the chemical analyses of all samples sent by purchasers or consumers. It is authorized to collect and analyze fertilizer offered for sale in the state. Samples for analysis are required to be taken from at least 10 per cent. of the lot, but from not less than 10 bags of any lot or brand. The drawing of samples is safeguarded by the act, and the department is authorized to make additional rules and regulations for taking and forwarding them to the department. No sample shall be taken after 30 days from the actual delivery to the consumer except by the state inspector. It provides (section 7) that in the trial of any case where the value or composition of any fertilizer is called in question, a certificate of the state chemist, setting forth the analysis made by him——

'of any sample of said fertilizer drawn under the provisions of this chapter, * * * shall be prima facie proof that the fertilizer was of the value and constituency shown by his said analysis: * * * Provided further, that no suit for damages from results of use of fertilizer may be brought except after chemical analysis showing deficiency of ingredients, unless it shall appear to the department of agriculture that the manufacturer of said fertilizer in question has, in the manufacture of other goods offered in this state during such season, employed such ingredients as are outlawed by the provisions of this act, or unless it shall appear to the Department of Agriculture that the manufacturer of such fertilizer has offered for sale during that season any kind of dishonest or fraudulent goods. That nothing in this act shall impair the right of contract.'

It is not contended that the provision making the certificate of the state chemist prima facie evidence is invalid.2 The contention is that the act arbitrarily substitutes the determination of an executive department for a judicial inquiry, and has the effect of abolishing all remedies against manufacturers of fertilizer for damages caused by the use of inferior or deleterious fertilizer, and is therefore repugnant to the Fourteenth Amendment.

The act does not deprive purchasers of any right or cause of action. On the contrary, it gives additional rights and remedies to one who purchases for his own use fertilizer below the guaranteed value in plant food. The terms of the statute are not made exclusive. Under the act the parties were free to deal on other terms. Fertilizer Works v. Aiken (1918) 175 N. C. 398, 402, 95 S. E. 657; Fertilizing Co. v. Thomas (1921) 181 N. C. 274, 283, 106 S. E. 835. The ingredients of fertilizers can be ascertained definitely by chemical analysis. The department is required to provide chemists and equipment and to make and report analyses of all fertilizers sent in by purchasers or consumers. The requirement imposed is reasonable and seems well calculated to safeguard against uncertainty, conjecture and mistake. The analysis is not made conclusive. Other evidence may be introduced by either party. The determination of the department is not substituted for a trial in court.

The Fourteenth Amendment does not prevent a state from prescribing a reasonable and appropriate condition precedent to the bringing of a suit of a specified kind or class so long as the basis of distinction is real, and the condition imposed has reasonable relation to a legitimate object. See Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150, 155, 17 Sup. Ct. 255, 41 L. Ed. 666; Truax v. Corrigan, 257 U. S. 312, 337, 42 Sup. Ct. 124, 66 L. Ed. 254. We think it plain that actions to recover damages to crops resulting from the use of fertilizers may reasonably be distinguished from other damage suits. Crops depend on the kind and condition of the soil, the vitality of seeds sown or plants set out, the cultivation and care given, the weather and many other things, as well as the kind and amount of the fertilizer applied. The amount or quality of the yield cannot be known in advance. When good results are not obtained, it is impossible to discover the causes and determine how much of the shortage, whether of quantity or kind, properly may be attributed to any particular thing. In such actions, peculiar difficulties attend the ascertainment of the constituent elements of the fertilizer used, and the determination whether it is inferior in quality or contains ingredients that are deleterious or harmful to plant growth. To attempt to establish the kind or quality of fertilizer applied to the land by an inspection of the crop growing thereon, or by the result of the season's planting and effort is to indulge in speculation and conjecture. A state has power to provide for and require a more definite method of ascertaining the essential facts and a better basis upon which judicial determinations may be made.

The provision of the state law here under attack is not repugnant to the Fourteenth Amendment.

Judgment affirmed.