Charles PAUL, Director of the Department of Agriculture of California, et al. Charles PAUL, Director of the Department of Agriculture of California, et al., Appellants, v. FLORIDA LIME AND AVOCADO GROWERS, INC., et al.
As Amended May 27, 1963.
Rehearing Denied June 17, 1963.
See 374 U.S. 858, 83 S.Ct. 1861.
Isaac E. Ferguson, Van Nuys, Cal., for appellants in No. 45 and for appellees in No. 49.
John Fourt, Sacramento, Cal., for appellees in No. 45 and for appellants in No. 49.
Section 792 of California's Agricultural Code, which gauges the maturity of avocados by oil content, prohibits the transportation or sale in California of avocados which contain 'less than 8 per cent of oil, by weight * * * excluding the skin and seed.'1 In contrast, federal marketing orders approved by the Secretary of Agriculture gauge the maturity of avocados grown in Florida by standards which attribute no significance to oil content.2 This case presents the question of the constitutionality of the California statute insofar as it may be applied to exclude from California markets certain Florida avocados which, although certified to be mature under the federal regulations, do not uniformly meet the California requirement of 8% of oil.
Both parties have brought appeals here from the District Court's judgment: the Florida growers urge in No. 45 that the court erred in not enjoining enforcement of the state statute against Florida-grown avocados; in No. 49 the California state officials appeal on the ground that the action should have been dismissed for want of equity jurisdiction rather than upon the merits. We noted probable jurisdiction of both appeals. 368 U.S. 964, 965, 82 S.Ct. 439, 437, 7 L.Ed.2d 394. We affirm the judgment in the respect challenged by the cross-appeal in No. 49. In No. 45 we agree that appellants have not sustained their challenges to § 792 under the Supremacy and Equal Protection Clauses. However, we reverse and remand for a new trial insofar as the judgment sustains § 792 against appellants' challenge to the statute grounded on the Commerce Clause. We hold that the effect of the statute upon interstate commerce cannot be determined on the record now before us.
The California statute was enacted in 1925. Like the federal marketing regulations applicable to appellants, this statute sought to ensure the maturity of avocados reaching retail markets.4 The District Court found on sufficient evidence that before 1925 the marketing of immature avocados had created serious problems in California.5 An avocado, if picked prematurely, will not ripen properly, but will tend to decay or shrivel and become rubbery and unpalatable after purchase. Not only retail consumers but even experienced grocers have difficulty in distinguishing mature avocados from the immature by physical characteristics alone.6 Thus, the District Court concluded, '(t)he marketing of * * * (immature) avocados cheats the consumer' and adversely affects demand for and orderly distribution of the fruit. 197 F.Supp., at 783.
The federal marketing regulations were adopted pursuant to the Agricultural Adjustment Act, 7 U.S.C. §§ 601 et seq. The declared purposes of the Act are to restore and maintain parity prices for the benefit of producers of agricultural commodities, to ensure the stable and steady flow of commodities to consumers, and 'to establish and maintain such minimum standards of quality and maturity * * * as well effectuate such orderly marketing of such agricultural commodities as will be in the public interest.' § 2(3), 7 U.S.C. § 602(3). Whenever he finds that it would promote these declared policies, the Secretary is empowered upon notice and hearing to adopt federal marketing orders and regulations for a particular growing area, § 8c(3), (4), 7 U.S.C. § 608c(3), (4). Orders thus proposed by the Secretary become effective only when approved by a majority of the growers or producers concerned, § 8c(8), (9), 7 U.S.C. § 608c(8), (9).
In 1954, after proceedings in compliance with the statute, 19 Fed.Reg. 3439, the Secretary promulgated orders governing the marketing of avocados grown in South Florida.7 The orders established an Avocado Administrative Committee, composed entirely of South Florida avocado growers and handlers. 7 CFR § 969.20. This Committee has authority to draft and recommend to the Secretary various marketing regulations governing the quality and maturity of South Florida avocados. The maturity test for the South Florida fruit is based upon a schedule of picking dates, sizes and weights annually drafted and recommended by the Committee and promulgated by the Secretary.8 The regulations forbid picking and shipping of any fruit before the prescribed date, although an exemption from the picking-date schedule may be granted by the Committee.9 The regulations drafted by the Committee and promulgated by the Secretary concern other qualities and physical characteristics of Florida avocados besides maturity. See 22 Fed.Reg. 6205, 7 CFR §§ 51.3050-51.3053, 51.3064. All regulated avocados, including those shipped under picking-date exemptions, must be inspected for compliance with certain quality standards by the Federal-State Inspection Service, a joint authority supervised by the United States and Florida Departments of Agriculture.
Almost all avocados commercially grown in the United States come either from Southern California or South Florida. The California-grown varieties are chiefly of Mexican ancestry, and in most years contain at least 8% oil content when mature.10 The several Florida species, by contrast, are of West Indian and Guatemalan ancestry. West Indian avocados, which constitute some 12% of the total Florida production, may contain somewhat less than 8% oil when mature and ready for market. They do not, the District Court found, attain that percentage of oil 'until they are past their prime.' 197 F.Supp., at 783. But that variety need not concern us in this case since the District Court concluded on sufficient evidence that 'poor shipping qualities and short retail store shelf-life' make it commercially unprofitable, regardless of the oil test, to market the variety in California. On the other hand, the Florida hybrid and Guatemalan varieties, which do not encounter such handicaps, may reach maturity before they attain 8% oil content. The District Court concluded, nevertheless, that § 792 did not unreasonably interfere with their marketability since these species 'attain or exceed 8% oil content while in a prime commercial marketing condition,' so that the California test was 'scientifically valid as applied to' these varieties.
We consider first appellants' challenge to § 792 under the Supremacy Clause. That the California statute and the federal marketing orders embody different maturity tests is clear. However, this difference poses, rather than disposes of the problem before us. Whether a State may constitutionally reject commodities which a federal authority has certified to be marketable depends upon whether the state regulation 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,' Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581. By that test, we hold that § 792 is not such an obstacle; there is neither such actual conflict between the two schemes of regulation that both cannot stand in the same area, nor evidence of a congressional design to preempt the field.
We begin by putting aside two suggestions of the appellants which obscure more than aid in the solution of the problem. First, it is suggested that a federal license or certificate of compliance with minimum federal standards immunizes the licensed commerce from inconsistent or more demanding state regulations. While this suggestion draws some support from decisions which have invalidated direct state interference with the activities of interstate, carriers, Castle v. Hayes Freight Lines, Inc., 348 U.S. 61, 75 S.Ct. 191, 99 L.Ed. 68, even in that field of paramount federal concern the suggestion has been significantly qualified, e.g., Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 447-448, 80 S.Ct. 813, 818, 4 L.Ed.2d 852; Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3; cf. Bradley v. Public Utilities Comm'n, 289 U.S. 92, 53 S.Ct. 577, 77 L.Ed. 1053. That no State may completely exclude federally licensed commerce is indisputable, but that principle has no application to this case.
Second, it is suggested that the coexistence of federal and state regulatory legislation should depend upon whether the purposes of the two laws are parallel or divergent. This Court has, on the one hand, sustained state statutes having objectives virtually identical to those of federal regulations, People of State of California v. Zook, 336 U.S. 725, 730-731, 69 S.Ct. 841, 843-844, 93 L.Ed. 1005; cf. De Veau v. Braisted, 363 U.S. 144, 156-157, 80 S.Ct. 1146, 1152-1153, 4 L.Ed.2d 1109; Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315; and has, on the other hand, struck down state statutes where the respective purposes were quite dissimilar, First Iowa Hydro-Electric Cooperative v. Federal Power Comm'n, 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143. The test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives.
The principle to be derived from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons-either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained. See, e.g., Huron Portland Cement Co. v. Detroit, supra.
A holding of federal exclusion of state law is inescapable and requires no inquiry into congressional design where compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce, cf. Union Bridge Co. v. United States, 204 U.S. 364, 399-401, 27 S.Ct. 367, 379-380, 51 L.Ed. 523; Morgan v. Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317; Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003. That would be the situation here if, for example, the federal orders forbade the picking and marketing of any avocado testing more than 7% oil, which the California test excluded from the State any avocado measuring less than 8% oil content. No such impossibility of dual compliance is presented on this record, however. As to those Florida avocados of the hybrid and Guatemalan varieties which were actually rejected by the California test, the District Court indicated that the Florida growers might have avoided such rejections by leaving the fruit on the trees beyond the earliest picking date permitted by the federal regulations, and nothing in the record contradicts that suggestion. Nor is there a lack of evidentiary support for the District Court's finding that the Florida varieties marketed in California 'attain or exceed 8% oil content while in a prime commercial marketing condition,' even though they may be 'mature enough to be acceptable prior to the time that they reach that content * * *.' 197 F.Supp., at 783. Thus the present record demonstrates no inevitable collision between the two schemes of regulation, despite the dissimilarity of the standards.
The issue under the head of the Supremacy Clause is narrowed then to this: Does either the nature of the subject matter, namely the maturity of avocados, or any explicit declaration of congressional design to displace state regulation, require § 792 to yield to the federal marketing orders? The maturity of avocados seems to be an inherently unlikely candidate for exclusive federal regulation. Certainly it is not a subject by its very nature admitting only of national supervision, cf. Cooley v. Board of Port Wardens, 12 How. 299, 319-320, 13 L.Ed. 996. Nor is it a subject demanding exclusive federal regulation in order to achieve uniformity vital to national interests, cf. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 241-244, 79 S.Ct. 773, 777-779, 3 L.Ed.2d 775.
On the contrary, the maturity of avocados is a subject matter of the kind this Court has traditionally regarded as properly within the scope of state superintendence. Specifically, the supervision of the readying of foodstuffs for market has always been deemed a matter of peculiarly local concern. Many decades ago, for example, this Court sustained a State's prohibition against the importation of artifically colored oleomargarine (which posed no health problem), over claims of federal preemption and burden on commerce. In the course of the opinion, the Court recognized that the States have always possessed a legitimate interest in 'the protection of (their) people against fraud and deception in the sale of food products' at retail markets within their borders. Plumley v. Massachusetts, 155 U.S. 461, 472, 15 S.Ct. 154, 158, 39 L.Ed. 223. See also Crossman v. Lurman, 192 U.S. 189, 199-200, 24 S.Ct. 234, 237, 238, 48 L.Ed. 401; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402; Savage v. Jones, 225 U.S. 501, 525-529, 32 S.Ct. 715, 722-724, 56 L.Ed. 1182.
It is true that more recently we sustained a federal statute broadly regulating the production of renovated butter. But we were scrupulous in pointing out that a State might nevertheless-at least in the absence of an express contrary command of Congress-confiscate or exclude from market the processed butter which had complied with all the federal processing standards, 'because of a higher standard demanded by a state for its consumers.' A state regulation so purposed was, we affirmed, 'permissible under all the authorities.'13 Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 162, 62 S.Ct. 491, 499, 86 L.Ed. 754. That distinction is a fundamental one, which illumines and delineates the problem of the present case. Federal regulation by means of minimum standards of the picking, processing, and transportation of agricultural commodities, however comprehensive for those purposes that regulation may be, does not of itself import displacement of state control over the distribution and retail sale of those commodities in the interests of the consumers of the commodities within the State. Thus, while Florida may perhaps not prevent the exportation of federally certified fruit by superimposing a higher maturity standard, nothing in Cloverleaf forbids California to regulate their marketing. Congressional regulation of one end of the stream of commerce does not, ipso facto, oust all state regulation at the other end. Such a displacement may not be inferred automatically from the fact that Congress has regulated production and packing of commodities for the interstate market. We do not mean to suggest that certain local regulations may not unreasonably or arbitrarily burden interstate commerce; we consider that question separately, infra, pp. 152-154. Here we are concerned only whether partial congressional superintendence of the field (maturity for the purpose of introduction of Florida fruit into the stream of interstate commerce) automatically forecloses regulation of maturity by another State in the interests of that State's consumers of the fruit.
The correctness of the District Court's conclusion that § 792 was a regulation well within the scope of California's police powers is thus clear. While it is conceded that the California statute is not a health measure, neither logic nor precedent invites any distinction between state regulations designed to keep unhealthful or unsafe commodities off the grocer's shelves, and those designed to prevent the deception of consumers.14 See, e.g., Hygrade Provision Co. v. Sherman, supra; Plumley v. Massachusetts, supra. Nothing appearing in the record before us affords any ground for departure in this case from our consistent refusal to draw such a distinction.
Since no irreconcilable conflict with the federal regulation requires a conclusion that § 792 was displaced, we turn to the question whether Congress has nevertheless ordained that the state regulation shall yield. The settled mandate governing this inquiry, in deference to the fact that a state regulation of this kind is an exercise of the 'historic police powers of the States,' is not to decree such a federal displacement 'unless that was the clear and manifest purpose of Congress,' Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447. In other words, we are not to conclude that Congress legislated the ouster of this California statute by the marketing orders in the absence of an unambiguous congressional mandate to that effect. We search in vain for such a mandate.
The provisions and objectives of the Agricultural Adjustment Act bear little resemblance to those in which only last Term we found a preemptive design in Campbell v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299. In the Federal Tobacco Inspection Act involved in that case, Congress had declared 'uniform standards of classification and inspection' to be 'imperative for the protection of producers and others engaged in commerce and the public interest therein.' 7 U.S.C. § 511a. The legislative history was replete with references to a need for 'uniform' or 'official' standards, which could harmonize the grading and inspection of tobacco at all markets throughout the country. Under the statute a single set of standards was to be promulgated by the Secretary of Agriculture, 'and the standards so established would be the official standards of the United States for such purpose.' S.Rep. No. 1211, 74th Cong., 1st Sess. 1.
Nothing in the language of the Agricultural Adjustment Act-passed by the same Congress the very next day15-discloses a similarly comprehensive congressional design. There is but one provision of the statute which intimates any purpose to make agricultural production controls the monitors of retail distribution-the reference to a policy of establishing such 'minimum standards of quality and maturity and such grading and inspection requirements * * * as will effectuate * * * orderly marketing * * * in the public interest.' 7 U.S.C. § 602(3). That language cannot be said, without more, to reveal a design that federal marketing orders should displace all state regulations. By its very terms, in fact, the statute purports only to establish minimum standards.
'The Act itself does not impose regulations over the marketing of any agricultural commodity. It merely provides the authority under which an industry can develop regulations to fit its own situation and solve its own marketing problems.' United States Department of Agriculture, Marketing Agreements and Orders, AMS-230 (rev. ed. 1961), 3. See also United States Department of Agriculture, Agricultural Adjustment 1937-1938 (1939), 71.
Second, the very terms of the statute require that the Secretary promulgate marketing orders 'limited in their application to the smallest regional production areas' which he finds practicable; and the orders are to 'prescribe such different terms, applicable to different production areas and marketing areas' as will serve to 'give due recognition to the differences in production and marketing' between those areas. 7 U.S.C. § 608c(11). While this language is not conclusive on the question before us, it indicates that Congress contemplated-quite by contrast to the design embodied in the Tobacco Inspection Act-that there might be widespread regional variations in the standards governing production and processing. Thus avocado growers in another region could, for example, propose-and the Secretary would presumably adopt-maturity regulations which would gauge the marketability of the fruit not by the calendar, as do the South Florida rules, but by the color of the skin, or the texture and color of the seed-coat, or perhaps even by oil content. Thus if the Congress of 1935 really intended that distribution would be comprehensively governed by grower-adopted quality and maturity standards, and all state regulation of the same subject would be ousted, it does not seem likely that the statute would have invited local variations at the production end while saying absolutely nothing about the effect of those production controls upon distribution for consumption.
'Notwithstanding the authorization of cooperation contained in this section, there is nothing in it to permit or require the Federal Government to invade the field of the States, for the limitations of the act and the Constitution forbid federal regulation in that field, and this provision does not indicate the contrary. Nor is there anything in the provision to force States to cooperate. Each sovereignty operates in its own sphere but can exert its authority in conformity rather than in conflict with that of the other.' H.R.Rep. No. 1241, 74th Cong., 1st Sess. 22-23; S.Rep.No. 1011, 74th Cong., 1st Sess. 15.
Thus the revealed congressional design was apparently to do no more than to invite farmers and growers to get together, under the auspices of the Department of Agriculture, to work out local harvesting, packing and processing programs and thereby relieve temporarily depressed marketing conditions. Had Congress meant the Act to have in addition a pervasive effect upon the ultimate distribution and sale of produce, evidence of such a design would presumably have accompanied the statute, as it did the Tobacco Inspection Act, see Campbell v. Hussey, supra. In the absence of any such manifestations, it would be unreasonable to infer that Congress delegated to the growers in a particular region the authority to deprive the States of their traditional power to enforce otherwise valid regulations designed for the protection of consumers.
This case requires no consideration of the scope of the constitutional power of Congress to oust all state regulation of maturity, and we intimate no view upon that question.18 It is enough to decide this aspect of the present case that we conclude that Congress has not attempted to oust or displace state powers to enact the regulation embodied in § 792. The most plausible inference from the legislative scheme is that the Congress contemplated that state power to enact such regulations should remain unimpaired.
We turn now to appellants' arguments under the Equal Protection and Commerce Clauses.
It is enough to dispose of the equal protection claim that we express our agreement with the District Court that the state standard does not work an 'irrational discrimination as between persons or groups of persons, Goesaert v. Cleary, 335 U.S. 464, 466, 69 S.Ct. 198, 93 L.Ed. 163; cf. Railway Express Agency, Inc., v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533. While it may well be that arguably superior tests of maturity could be devised, we cannot say, in derogation of the findings of the District Court, that this possibility renders the choice made by California either arbitrary or devoid of rational relationship to a legitimate regulatory interest. Whether or not the oil content test is the most reliable indicator of marketability of avocados is not a question for the courts to decide; it is sufficient that on this record we should conclude, as we do, that oil content appears to be an acceptable criterion of avocado maturity.
More difficult is the claim that the California statute unreasonably burdens or discriminates against interstate commerce because its application has excluded Florida avocados from the State. Although Florida and California were competitors in avocado production when the statute was passed in 1925, the present record permits no inference that the California statute had a discriminatory objective.19 Nevertheless it may be that the continued application of this regulation to Florida avocados has imposed an unconstitutional burden on commerce, or has discriminated against another State's exports of the particular commodity. Other state regulations raising similar problems have been found to be discriminatory or burdensome notwithstanding a legitimate state interest in some form of regulation-either because they exceeded the limits necessary to vindicate that interest, Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329, or because they unreasonably favored local producers at the expense of competitors from other States, Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032. Such a state regulation might also constitute an illegitimate attempt to control the conduct of producers beyond the borders of California, cf. Bibb v. Navajo Freight Lines, Inc., supra; Southern Pacific Co. v. Arizona, 325 U.S. 761, 775, 65 S.Ct. 1515, 1523, 89 L.Ed. 1915.
Thus the only evidence which would seem to support an injunction on the ground of burden on interstate commerce has never been formally admitted to the record in this case. For this Court to reverse and order an injunction on the basis of that evidence would be, in effect, to admit the contested depositions and exhibits on appeal without ever affording the appellees an opportunity to argue their seemingly substantial objections.21 To assume the admissibility of the evidence under these circumstances would be to deny the appellees their day in court as to a disputed part of the case on which the trial court has never ruled because its view of the law evidently made such a ruling unnecessary. Cf. Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 533, 78 S.Ct. 893, 898, 2 L.Ed.2d 953; Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971; Globe Liquor Co. v. San Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177. On the other hand, to affirm the District Court would require us to make equally impermissible assumptions as to the state of the record. Cf. State of Florida v. United States, 282 U.S. 194, 215, 51 S.Ct. 119, 125, 75 L.Ed. 291.
In No. 49, the state officers cross-appeal on the ground that the District Court should have dismissed the action for want of equity, rather than for lack of merit. Their contention is that there was insufficient showing of injury to the Florida growers to invoke the District Court's equity jurisdiction. We reject that contention, and affirm the judgment insofar as it is challenged by the cross-appeal.
In Florida Lime & Avocado Growers, Inc., v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568, we held that because of the Florida growers' allegations that California officials had consistently condemned Florida avocados as unfit for sale in California, 'thus requiring appellants (the Florida growers)-to prevent destruction and complete loss of their shipments-to reship the avocados to and sell them in other States', it was evident that 'there is an existing dispute between the parties as to present legal rights amounting to a justiciable controversy which appellants are entitled to have determined on the merits.' 362 U.S., at 85-86, 80 S.Ct. at 576. In view of our mandate in Jacobsen, therefore, the District Court necessarily assumed jurisdiction and heard the case on its merits. Cf. United States v. Haley, 371 U.S. 18, 83 S.Ct. 11, 9 L.Ed.2d 1.
Even on the present ambiguous record, we think that the Florida growers have demonstrated sufficient injury to warrant at least a trial of their allegations. In the California officials' briefs below, it was conceded that the Florida growers has suffered damage in the amount of some $1,500 by reason of the enforcement of the statute. Before the bar of this Court, it was conceded that the State, in objecting to the growers' proffered evidence, did not dispute the claim that some shipments of Florida avocados had in fact been rejected by California for failure to comply with the oil content requirement. Indeed, the State conceded in its pleadings before the trial court that rejections of Florida avocados had averaged in recent years as much as 6.4% of the total shipments of Florida fruit into California. While these concessions were not corroborated by statistical proofs at trial, and thus do not form an adequate basis for the entry of a final injunction, they nevertheless supplied an adequate basis, apart from the requirement of our remand, for the District Court's proceeding to trial on the merits.
In addition, it is clear that the California officials will continue to enforce the statute against the Florida-grown avocados, for the State's answer to the complaint declared that these officials 'have in the past and now stand ready to perform their duties under their oath of office should they acquire knowledge of violations of the Agricultural Code of the State of California.' Thus the District Court, both on the pleadings before it, and in light of our opinion in Jacobsen, properly heard the remanded case on the merits and did not err in refusing to dismiss for want of equity jurisdiction.
The cross-appellants rely upon the court's finding of fact that '(p)laintiffs have neither suffered nor been threatened with irreparable injury.' This finding was, however, adopted pursuant to that court's prior opinion, which stated that '(p)laintiffs' monetary losses as a result of the rejected shipments are not clearly established, but at most do not appear to be over two or three thousand dollars.' 197 F.Supp., at 783-784. We read this finding as importing no more than the District Court's view that whatever harm or damage the Florida growers might have suffered fell short of the 'irreparable injury' requisite for the entry of an injunction against enforcement of the statute.
The judgment of the District Court is reversed and the cause is remanded for a new trial limited to appellants claim in No. 45 that the enforcement of § 792 unreasonably burdens or discriminates against interstate commerce. In the respect challenged by the cross-appeal in No. 49, the judgment is affirmed.
Reversed in part and remanded for limited new trial and affirmed in part.
Mr. Justice WHITE, with whom Mr. Justice BLACK, Mr. Justice DOUGLAS and Mr. Justice CLARK join, dissenting in No. 45.
This is the second time this case has come before the Court. In Florida Lime & Avocado Growers, Inc., v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed. 568, the case was here for review of dismissal of the complaint for want of jurisdiction. The Court reversed and remanded for trial and the case is now here on the merits, after the three-judge District Court refused to enjoin the appellee state officers from enforcing § 792 of the California Agricultural Code against the appellant growers. 197 F.Supp. 780, probable jurisdiction noted, 368 U.S. 964, 965, 82 S.Ct. 439, 437, 7 L.Ed.2d 394. In view of the Court's disposition of the matter today, it is probable that this case like a revenant will return to us within another few Terms with a still more copious record.
Appellants grow, package, and market Florida avocados in interstate commerce, subject to the applicable provisions of § 8c of the Agricultural Adjustment Act, as amended, 7 U.S.C. § 608c, and the regulations of the Secretary of Agriculture promulgated thereunder. An average of 6.4% of the Florida avocados shipped to California each year are barred for failure to satisfy the requirements of California Agricultural Code § 792,1 which provides in pertinent part that '(a)ll avocados, at the time of picking and at all times thereafter, shall contain not less than 8 per cent of oil, by weight of the avocado excluding the skin and seed.'2 Appellants based their claim for relief upon the Equal Protection Clause of the Fourteenth Amendment, the Commerce Clause, and the Supremacy Clause. Since we in the minority have concluded that the Agricultural Adjustment Act and regulations promulgated thereunder leave no room for this inconsistent and conflicting state legislation, we reach only the Supremacy Clause issue.
The California statute was enacted in 1925, when, according to the District Court, practically all the avocados in the United States came from that State. 197 F.Supp., at 782. The purpose of this legislation was to prevent the marketing of immature avocados, which never ripen properly, but decay or shrivel up and become rubbery and unpalatable after purchase by the consumer.3 Ibid. The effect of marketing immature avocados is to 'cheat the consumer,' and thus have 'a bad (economic) effect upon retailers and producers as a whole, since it increases future sales resistance' against buying avocados. Id., at 783.
There is expert opinion to the effect that the best gauge of maturity is the percentage of oil contained in the fruit. Id., at 783. California has adopted that physical-chemical test in § 792. There is also expert opinion that the best test of maturity is the date on which the fruit is picked, and its size and weight at such time. Ibid. The United States Secretary of Agriculture has adopted that test for measuring maturity of avocados for ripening, and has specifically rejected as unsatisfactory all physical and chemical tests. Handling of Avocados Grown in South Florida, 19 Fed.Reg. 2418, 2424-2425 (Dept.Agr.Dkt. No. AO-254). The District Court found the California oil test to be of the latter type.
The Agricultural Adjustment Act, § 8c, 7 U.S.C. § 608c, provides that, whenever the Secretary 'has reason to believe that the issuance of an order will tend to effectuate the declared policy' of the Act, which is 'to establish and maintain such minimum standards of quality and maturity * * * (for fruit) in interstate commerce as will effectuate * * * (the) orderly marketing of * * * agricultural commodities as will be in the public interest,' § 2(3), 7 U.S.C. § 602(3), he shall give notice for and hold a hearing upon a proposed order. In the case of fruits, § 8c(6)(A) provides that the Secretary may limit or provide methods for the limitation of quality of produce 'which may be marketed in or transported to any or all markets in the current of interstate or foreign commerce * * *', or affecting commerce, during any specified period.
Orders proposed by the Secretary under this statute become effective only when approved by a majority of the affected growers. See § 8c(8)-(9). In 1954 the Secretary held hearings and found that a majority of the South Florida avocado growers favored imposition of quality and maturity standards for avocados pursuant to a marketing order promulgated under the Act. 19 Fed.Reg. 3439.5 The order, id., at 3440-3443, as amended (formerly §§ 969.1-969.71), 7 CFR § 915.1-.71, establishes an Avocado Administrative Committee, comprised of South Florida avocado growers and shippers, with the power to recommend marketing regulations to the Secretary relating to quality and maturity standards and prohibiting the marketing of substandard fruits.6 It is specifically contemplated in § .51 that such maturity standards be based on a pickingdate schedule, and other tests are rejected as unsatisfactory. Section .53 provides that exemption from the regular picking-date regulations of § .51 be allowed for portions of avocado crops of particular varieties when they are proved to be mature prior to the prescribed picking date.7 All regulated avocados, including those with so-called picking-date exemption certificates, must be inspected by the Federal-State Inspection Service, a United States Department of Agriculture and Florida Department of Agriculture joint service, and be certified as meeting the prescribed quality and maturity standards before they may be marketed. § .54.8 At various times, other regulations governing Florida avocados have been issued which include more specific quality standards. See 22 Fed.Reg. 6205, 7 CFR §§ 51.3050-51.3053, 51.3058. These quality standards require that the fruit be 'mature,' for all grades of avocados, but, as in the case of the main order, they do not refer to oil content.9 Since 1954, each year the Secretary has issued, maturity regulations fixing the dates when and minimum sizes at which the various varieties of Florida avocados may be packed and shipped.10 These regulations are recommended by the committee, pursuant to 7 CFR §§ 915.50-915.51, approved by the Secretary after consideration and modification if necessary, 7 CFR § 915.52(b), and published in the Federal Register, after which they have the force of law. California Comm'n v. United States, 355 U.S. 534, 542-543, 78 S.Ct. 446, 451-542, 2 L.Ed.2d 470; Standard Oil Co. v. Johnson, 316 U.S. 481, 484, 62 S.Ct. 1168, 1169, 86 L.Ed. 1611; Maryland Cas. Co. v. United States, 251 U.S. 342, 349, 40 S.Ct. 155, 157, 64 L.Ed. 297.
The central and unavoidable fact is that six out of every 100 Florida avocados certified as mature by federal standards are turned away from the California markets as being immature, and are excluded from that State by the application of a maturity test different from the federal measure. Congress empowered the Secretary to provide for the orderly marketing of avocados and to specify the quality and maturity of avocados to be transported in interstate commerce to any and all markets. Although the Secretary determined that these Florida avocados were mature by federal standards and fit for sale in interstate markets, the State of California determined that they were unfit for sale by applying a test of the type which the Secretary had determined to be unsatisfactory. We think the state law has erected a substantial barrier to the accomplishment of congressional objectives.
By contrast, in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, upon which appellees seek to rely, the federal agricultural regulatory scheme was partial and incomplete. It was contended that § 8c of the Agricultural Adjustment Act, by its own force, preempted application of the California Agricultural Prorate Act. The Court held that since no marketing order concerning the affected commodities had been promulgated under § 8c, and since the Act's policies therefore must be deemed by the Secretary not to be effectuated by entry into the field, it followed that there was no preemption: 'It is evident, therefore, that the Marketing Act contemplates the existence of state programs at least until such time as the Secretary shall establish a federal marketing program * * *.' Id., at 354, 63 S.Ct. at 315.14 In the case at bar, of course, the Secretary has entered the field with his own comprehensive regulatory program with which the state program conflicts.
Nor does the California statute further a distinctive interest of the State different from the one which the federal scheme protects. Compare Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852; Union Brokerage Co. v. Jensen, 322 U.S. 202, 64 S.Ct. 967, 88 L.Ed. 1227. There is no health interest here. The question is, as the District Court recognized, 197 F.Supp., at 782-783, a purely economic one: the marketing of immature avocados, which do not ripen properly after purchase by the consumer but instead shrivel up and decay, has a substantial adverse effect on consumer demand for avocados. According to the testimony of appellees' expert from the California Department of Agriculture, § 792 was 'deemed to be necessary by representatives in the industry due to deplorable marketing conditions'-the sale of immature avocados, which was severely 'damaging the reputation of the industry by providing consumers with undesirable avocado fruits.' Despite the repeated suggestions to this effect in the Court's opinion, there is no indication that the state regulatory scheme has any purpose other than protecting the good will of the avocado industry-such as protecting health or preventing deception of the public-unless as a purely incidental by-product. Similar findings on damage to the industry because some growers marketed immature avocados are contained in the United States Department of Agriculture order which preceded the issuance of the federal regulations. 19 Fed.Reg., at 2419, 2424. These two regulatory schemes have precisely the same purpose, which is purely an economic one; they seek to achieve it, however, by applying different tests to the same avocados.
'It is declared that the disruption of the orderly exchange of commodities in interstate commerce * * * destroys the value of agricultural assets which support the national credit structure * * * and burden(s) and obstruct(s) * * * commerce.
'It is declared to be the policy of Congress * * * to establish and maintain such minimum standards of quality and maturity and such grading and inspection requirements for agricultural commodities * * * as well effectuate * * * orderly marketing * * *.' §§ 1, 2, 7 U.S.C. §§ 601, 602.
The language of the statute is buttressed by the Committee Reports, H.R.Rep.No. 1241, 74th Cong., 1st Sess., at 22; S.Rep. No. 1011, 74th Cong., 1st Sess., at 15, where it is said in explanation of § 10(i) that the Secretary is authorized to negotiate with state authorities in order to secure their voluntary compliance in carrying out the declared policy of the Act f uniformity of regulatory programs.
It is also suggested that the use of the term 'minimum standards' indicates a lack of desire for uniformity. This reads too much into a phrase, for it is a commonplace that when the appropriate federal regulatory agency adopts minimum standards which on balance satisfy the needs of the subject matter without disproportionate burden on the regulatees, the balance struck is not to be upset by the imposition of higher local standards. See for example Southern R. Co. v. Railroad Comm'n, 236 U.S. 439, 35 S.Ct. 304, 59 L.Ed. 661. And when the cumulative operation of more strict local law is to be continued in such circumstances, despite the congressional balance struck, Congress has so provided in express terms. For example, in Rice v. Board of Trade, 331 U.S. 247, 255, 67 S.Ct. 1160, 1164, 91 L.Ed. 1468, it was noted that the federal statute provided that 'nothing in this section or section 4b shall be construed to impair any State law applicable to any transaction enumerated or described in such sections.' See, to the same effect, Plumley v. Massachusetts, 155 U.S. 461, 15 S.Ct. 154, 39 L.Ed. 223; Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 161-162, 62 S.Ct. 491, 498-499, 86 L.Ed. 754.
Nothing in the Act, marketing order, or legislative history shows any congressional intention to accommodate or permit state controls inconsistent with federal law or marketing orders issued thereunder. The authorization contained in § 10(i) to seek the cooperation of state authorities in pursuit of the goal of uniform standards of quality and maturity carries no implication that state standards contrary to the federal are to stand. The Secretary was not directed to defer to any State. The fact is that he did work out a cooperative scheme with the State of Florida where the avocados involved in this case are grown. These avocados, which California rejected, were jointly inspected by federal and state authorities applying the same standards in order to move mature avocados into the stream of interstate commerce. To read into an authorization to the Secretary to cooperate with the States a direction that he cooperate with, or that his regulatory scheme defer to, not only the State directly affected by a marketing order but every other State in which avocados might be sold would clearly frustrate the federal purpose of the orderly marketing of avocados in interstate commerce.
The conflict between federal and state law is unmistakable here. The Secretary asserts certain Florida avocados are mature. The state law rejects them as immature. And the conflict is over a matter of central importance to the federal scheme. The elaborate regulatory scheme of the marketing order is focused upon the problem of moving mature avocados into interstate commerce. The maturity regulations are not peripheral aspects of the federal scheme. Compare International Assn. of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018. On the contrary, in the Department of Agriculture order which preceded issuance of the avocado regulations, it was found that the marketing of immature avocados was one of the principal problems, if not the principal problem, faced by the industry and that there regulations should be adopted to solve this problem which was demoralizing the industry. 19 Fed.Reg., at 2419, 2424.16 The conflict involved in this case therefore cannot properly be deemed 'too contingent, too remotely related to' (356 U.S., at 621, 78 S.Ct., at 925) the policy and purpose of the Act of call for requiring the inconsistent state scheme to defer or be accommodated to the federal one.
California nevertheless argues that it should be permitted to apply its oil test cumulatively with the federal test to insure that only mature avocados are offered in its markets. The Court accepts this contention as 'a well-settled proposition, in the name of Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 62 S.Ct. 491, and the uncited 'all the authorities,' which appear to be nonexistent, ante, p. 144, and n. 13. There are at least three answers to this contention.17 First, it ignores the limitations of the 8% oil test as applied to the inherently less oily Florida avocados, which the District Court indicated were 'acceptable prior to the time that they reach that content.' As applied to California avocados, the 8% oil figure leaves an ample tolerance for individual variation, but it is otherwise as applied to the less oily Florida varieties. Second, if the argument is that the federal test is unsatisfactory and that the California test is a better one-as it would appear to be in view of the reliance on 'a higher standard,' which in this case means only a more accurate standard because no one asserts that some avocados can be less highly mature than others and therefore ripen less fully-it must be remembered that the Secretary, to whom Congress delegated its power, made a legislative finding in his order adopting the picking-date-size method of determining maturity and specifically rejecting physical chemical tests of the California type. That finding cannot be impeached collaterally in this proceeding. Adopting one maturity test rather than another 'is a legislative, not a judicial, choice' and its validity 'is not to be determined by weighing in the judicial scales the merits of the legislative choice and rejecting it if the weight of evidence presented in court appears to favor a different standard.' South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177, 191, 58 S.Ct. 510, 517, 82 L.Ed. 734. See Federal Security Administrator v. Quaker Oats Co., 318 U.S. 218, 63 S.Ct. 589, 87 L.Ed. 724; United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234. Neither California nor this Court has any place second-guessing the wisdom of Congress or its delegate. Third, Congress did not limit its interest to the picking of avocados, nor even to their transportation in commerce to markets in other States. It expressly declared its intention to regulate the maturity and quality of produce 'which may be marketed in * * * any and all interstate markets.' Congress sought to regulate marketing from the beginning through the end of the stream of commerce, in order to eliminate impediments at any part of that stream. The Court ignores the plain words of the statute in concluding that the California law does not frustrate the federal scheme.
Even if the California oil test were an acceptable test for the maturity of the Florida avocados, which the Secretary found it was not, the cumulative application of that test solely for the purpose of a second check on the maturity of Florida avocados, solely to catch possible errors in the federal scheme, would prove only that the particular avocados actually tested (and thereby destroyed) were immature, and it would not justify the rejection of whole lots from which these samples came. If Florida avocados are to be subjected to this test, the alternatives are to leave the California market to the California producers (at least, to producers of Mexican varieties) or else, in order to avoid the hazard of rejection, to leave the Florida avocados on the trees past the normal (and federally prescribed) picking date, thereby shortening the post-picking marketing period and thus frustrating the federal scheme aimed at moving avocados mature under federal standards into all interstate markets.18 A reasonable balancing of the state and federal interests at stake here requires that the former give way as too insubstantial to warrant frustration of the congressional purpose.
In such circumstances, the state law should give way; it 'becomes inoperative and the federal legislation exclusive in its application.' Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 156, 62 S.Ct. 491, 496. Accord, McDermott v. Wisconsin, 228 U.S. 115, 33 S.Ct. 431, 57 L.Ed. 754; Hill v. Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782. The conclusion is inescapable that the California law is an obstacle to the accomplishment and execution of the congressional purposes and objectives, and that the California law and the Agricultural Adjustment Act, as supplemented by the regulations promulgated thereunder, cannot be reconciled and cannot consistently stand together.21 The Court should not allow avocados certified as mature under the federal marketing order to be embargoed by any State because it thinks that they are immature. We would therefore reverse with instructions to grant the injunction requested.
Avocados not meeting this standard may not be sold in California. Id., § 784. Substandard fruits are 'declared to be a public nuisance,' and they may be seized, condemned, and abated. Id., § 785. Violators may be punished criminally, id., § 831 ($50 to $500 fine or imprisonment for not more than six months, or both), and by civil penalty action, id., § 785.6 (market value of fruits).
The orders are approved by the Secretary pursuant to § 8c of the Agricultural Adjustment Act, 7 U.S.C. § 608c. The basic marketing agreement provisions were initially adopted, in substantially their present form in the 1935 amendments to the Agricultural Adjustment Act, 49 Stat. 750, 753-761. These sections were reenacted in 1937, 50 Stat. 246, as the Agricultural Marketing Agreement Act of 1937, virtually unchanged. Concerning the reasons for the reenactment, and the extent of the changes, see United States Department of Agriculture, Agricultural Adjustment 1937-1938 (1939), 72-73.
The evidence in the record concerning the actual effect of the California maturity test upon Florida avocados is sketchy at best. The appellants introduced only one witness, a marketing expert in the United States Department of Agriculture, who testified concerning the relative scientific and other merits of the federal and California maturity tests. He gave no testimony concerning the actual impact of the California regulation upon shipments from Florida. One of appellees' witnesses at trial made cursory references to the fact that California inspectors had rejected and excluded some Florida shipments, but there was no testimony concerning the dates and quantities of any rejections. In a motion for dismissal and an accompanying affidavit before the District Court, the appellees presented certain figures concerning the percentage of Florida avocados which failed to comply with the California regulation during the years 1954 through 1957. There was, however, neither data for years after 1957 nor statistical proof at the trial which would corroborate these summary figures.
See Roche, Regulations for Marketing Avocados in California, in California Avocado Assn. 1937 Yearbook (1937), 88-89, concerning the purpose of the California oil-test statute. It has not been contended that the purpose of this statute is to ensure a certain caloric or nutritional value in avocados which reach the consumer. No health issue has been raised in this case. See 197 F.Supp., at 785-786.
See also Church and Chace, Some Changes in the Composition of California Avocados During Growth (U.S. Dept. of Agriculture Bull. No. 1073, 1922), 2; Hodgson, The California Avocado Industry (Calif. Agricultural Extension Service Circular No. 43, 1930), 54-55; Hodges, Immature Avocado Selling Illegal, 111 Pacific Rural Press, Apr. 3, 1926, p. 435. And for a discussion of the particular problems encountered in the marketing of immature avocados in California, see Roche, supra, note 4, at 88-89.
The nature of the avocado and its ripening process make it very difficult for any but the expert to gauge its maturity, and an avocado which may appear satisfactory at the time of purchase may later fail to ripen properly because it was prematurely picked. See, e.g., Ruehle, The Florida Avocado Industry (Univ. of Fla. Agr. Expt. Stations Bull. No. 602, 1958), 69; Avocado Maturity Tests, 37 California Citrograph, Dec. 1951, p. 87; Roche, Look Out for Immature Avocados, 87 California Cultivator, Nov. 2, 1940, p. 590; Church and Chace, supra, note 5, at 2.
This order is applicable only to avocados grown in the South Florida growing area. The California growers have not adopted a federal marketing order or agreement.
The findings of the United States Department of Agriculture, contained in its order determining what terms should be contained in the avocado regulations, were that the marketing of immature fruits increases consumer resistance and materially impairs the marketing of the entire crop, that there was no satisfactory physical or chemical test for determining maturity, and that maturity can satisfactorily be determined by the picking-date-size method. Handling of Avocados Grown in South Florida, 19 Fed.Reg. 2418, 2424-2425.
Each year since 1954, the Secretary has issued maturity regulations fixing the dates upon which each variety of Florida avocados may be picked and shipped. See, e.g., 27 Fed.Reg. 5135-5136, 6705, 8264-8265, 9174-9175, 10090-10091.
Section .53 of the regulations, 7 CFR § 969.53, provides that an exemption certificate shall be granted to a grower 'who furnishes proof, satisfactory to the committee, that his avocados of a particular variety are mature prior to the time such variety may be handled under such regulation.' Such a certificate authorizes the recipient to 'handle' the certified fruit, i.e., to 'sell, consign, deliver, or transport avocados within the production area or between the production area and any point outside thereof * * *.' 7 CFR § 969.10.
See Traub et al., Avocado Production in the United States (U.S. Dept. of Agriculture Circular No. 620, 1941), 6-8. Occasionally, however, even California growers have experienced difficulty in meeting the oil content requirement, and sizable shipments have had to be destroyed. See Demand for Avocados, 74 California Cultivator Feb. 8, 1930, p. 167; Roche, Look Out for Immature Avocados, 87 California Cultivator, Nov. 2, 1940, p. 590; California Avocado Assn. 1937 Yearbook (1937), 88.
Compare Hodgson, The California Avocado Industry (Calif. Agricultural Extension Service Circular No. 43, 1930), 39.
See 19 Fed.Reg. 2418, 2424-2425; compare Harding, The Relation of Maturity to Quality in Florida Avocados, 67 Florida State Horticultural Society Proceedings, 276 (1954).
It might also be argued that the California statute, having been designed to test the maturity only of California avocados, bears no rational relationship to the marketability of Florida fruit. Such a contention would seem untenable, however, in the face of the District Court's express finding of fact, supportable on the testimony before it, that '(a) standard requiring a minimum of 8% of oil in an avocado before it may be marketed is scientifically valid as applied to hybrid and Guatemalan varieties of avocados grown in Florida and marketed in California.' And there is considerable dispute as to the oil content of Florida avocados which have been certified as mature under the federal regulations. See note 21, infra.
The marketing agreement provisions were enacted among the 1935 amendments to the Agricultural Adjustment Act, 49 Stat. 750, 753-761. These amendments were accepted by Congress the day following the enactment of the Tobacco Inspection Act, 49 Stat. 731-735.
For further evidence that the avocado marketing agreement was undertaken chiefly as a 'self-help program,' designed only to regulate South Florida production and ensure maturity of the produce from that growing area, see Krome, The Federal Avocado Marketing Agreement, 67 Florida State Horticultural Society Proceedings 268 (1954).
Compare, e.g., Oregon-Washington R. & Nav. Co. v. Washington, 270 U.S. 87, 46 S.Ct. 279, 70 L.Ed. 482; McDermott v. Wisconsin, 228 U.S. 115, 33 S.Ct. 431, 57 L.Ed. 754. See generally Note, Federal Inspection Legislation-A Partial Remedy for Interstate Trade Barriers, 53 Harv.L.Rev. 1185 (1940).
Nor have we any occasion to consider the possible applicability to the Supremacy Clause issue of the provisions of 21 U.S.C. § 341, since neither party has made any reference to that statute either before the District Court or in this Court.
The District Court assumed that in 1925 California growers faced no meaningful competition from Florida growers. It appears, however, that the Florida industry was well developed when the California industry was in its infancy, see Collins, The Avocado, A Salad Fruit From the Tropics (U.S. Dept. of Agriculture Bureau of Plant Industry, Bull. No. 77, 1905), 35-36. Not only does there appear to have been vigorous competition between Florida and California producers for all markets in 1925, see Popenoe, The Avocado-California vs. Florida, 61 California Cultivator, Nov. 3, 1923, p. 459; but in some years during the 1920's the Florida production exceeded that of California. See Traub, supra, note 10, at 2. See generally Hodgson, supra, note 5, at 60, 82-83.
The passage of the California statute was immediately and vigorously protested by Florida producers, and a United States Senator from Florida filed an informal complaint with the Department of Agriculture, see, e.g., California Avocado Law Unfair to Florida: New Pacific Coast Maturity Standards Practically Ban All Shipments from this State, 32 Florida Grower, Nov. 7, 1925, pp. 4, 22. See also, id., Nov. 21, 1925, p. 15. Even in California there was contemporaneous recognition that passage of the statute severely restricted the access of Florida growers to the markets at least of Northern California, see Hodgson, The Florida Avocado Industry-A Survey II, 66 California Cultivator, June 26, 1926, pp. 721, 743. And see 80 American Fruit Grower, Feb. 1960, p. 64.
On the other hand, there have been suggestions that neither the adoption nor the application of the California statute reflected any discriminatory or anticompetitive purpose. In some years California growers themselves experience great difficulty meeting the oil content requirement, and sizable shipments must be destroyed-see Demand for Avocados, 74 California Cultivator, Feb. 8, 1930, p. 167; Roche, Look Out for Immature Avocados, 87 California Cultivator, Nov. 2, 1940, p. 590; California Avocado Assn., 1937 Yearbook (1937), 88-even though the oil content of mature California avocados in good years runs substantially above 8%, see Traub, supra, note 10, at 6-8. Moreover, the California Growers' Association has regarded its ability to market Florida fruit during the months when California fruit is not available as strengthening rather than weakening its own market position. See Fourteenth Annual Report of the General Manager of the Calavo Growers of California (1937), 20. Plainly the questions indicated by these conflicting materials can be resolved only at a trial fully developing the Commerce Clause issue.
Specifically, appellees offered to show that in measuring the oil content of avocados the Florida experimental test procedures did not employ the same equipment as is used in California, the former, so it was contended, extracting less oil than the California equipment would obtain from the same avocado. They claimed that the average variation amounted to a failure of the Florida equipment to remove 2.9% of the oil from the fruit, and, further, that the Florida results were erratic. In addition, appellees asserted that the avocados used in the Florida experiments were not representative of the graded, sized, and inspected fruit that appellants would normally market.
There is no question in this case as to whether the California oil content law keeps out of California Florida avocados which pass the federal test. It their motion to dismiss and the accompanying sworn affidavit below, the appellee state officers gave 6.4% as the average rejection figure per year, over a four-year period, basing the percentage on the official records of the California Department of Agriculture. Rejections reached a high of 16.4% in the 1955-1956 season. It is hard to understand the Court's refusal to consider the figures because of the way they entered the record. See ante, p. 136 and n. 3, and p. 157. We believe appellees' sworn statements as to the State's official records are properly before the Court now, and that in any event they will come into the record shortly, since it is clear that on remand the same data will come in via deposition. If the majority actually has any doubt on this score, and believes that accepting as a fact that California rejects six out of every 100 Florida avocados as immature would have an effect on the result, it should remand for further findings on preemption as it does on burden on commerce. The same papers below, and the opinion of the District Court, 197 F.Supp., at 783, reveal that about 5% of the appellants' shipments to California have been rejected for failure to attain the 8% oil content required under California law. The record is silent on the in terrorem effect of the California law on interstate commerce in Florida avocados, and we therefore do not consider it here.
Avocados not meeting this standard may not be sold in California, are 'declared to be a public nuisance,' and they may be seized, condemned, and abated. Violators may be punished criminally and by civil penalty action. See ante, p. 134, at n. 1.
It is not contended that the purpose of the 8% minimum oil content requirement is for the purpose of insuring a high caloric or other nutritional content in the fruit. No health issue has been raised in this case. Cf. 197 F.Supp., at 785-786. Nor has it been contended at any stage of the proceedings that the statutory purpose is directly to protect local consumers from fraudulent and deceptive practices; moreover, there is no evidence to support that view.
'Mexican varieties of avocados contain (generally speaking) the highest oil content of any varieties, when mature. Hybrid varieties attain the next highest oil percentages, and West Indian the lowest. Hybrid varieties generally attain oil content in excess of 8% if left on the trees long enough, but they do not necessarily attain such an oil content by the time that they may be marketed under the Florida Avocado Order. They are mature enough to be acceptable prior to the time that they reach that content, according to plaintiffs' witnesses.' 197 F.Supp., at 783.
While it would appear to be theoretically feasible to determine the proper oil content to gauge maturity for each different variety of avocado, this is highly impracticable, as the District Court pointed out; over 40 varieties of avocado are marketed in Florida. Id., at 785.
The findings of the United States Department of Agriculture, contained in its order determining what terms should be contained in the avocado regulations, were that the marketing of immature fruits increases consumer resistance and materially impairs the marketing of the entire crop, that there was no satisfactory physical or chemical test for determining maturity, and that maturity can satisfactorily be determined by the picking-date-size method. Handling of Avocados Grown in South Florida, 19 Fed.Reg. 2418, 2424-2425 (Dept. Agr. Dkt. No. AO-254).
California has a statute similar to the federal law, the California Marketing Act, Cal.Agr.Code §§ 1300.10-1300.29, which allows the Director of Agriculture to promulgate marketing orders when a majority of the affected handlers or producers assent. Id., § 1300.16(a). The purpose of the Act is to restore and maintain adequate purchasing power for California agricultural producers, establish orderly marketing, provide uniform grading, develop new and larger markets and maintain present markets for produce grown within the State, eliminate trade barriers which obstruct the free flow of such produce to the market, and permit the issuance of marketing orders which assure stabilized and orderly distribution of produce. Id., §§ 1300.10, 1300.29; Brock v. Superior Court, 109 Cal.App.2d 594, 598, 241 P.2d 283, 286. The Director promulgated an avocado marketing order in 1960 and it has been upheld as valid in the state courts. Child v. Warne, 194 Cal.App.2d 623, 15 Cal.Rptr. 437.
This is the customary method of administering marketing orders under the Act. See, e.g., 7 CFR §§ 905.51, 906.39, 907.51, 907.63, 908.51, 908.63, 909.51, 909.52, 910.51, 910.65, 911.51. In the case of the avocado order, supra, note 5, the Department specifically determined that this would be the appropriate method to administer the regulatory program. 19 Fed.Reg., at 2422-2423.
Section .53 provides that such exemption shall be granted under procedural rules approved by the Secretary. Section .52(b) would appear to provide for review of particular determinations before the Secretary, taken by a party aggrieved thereby or taken by the Secretary sua sponte. Exemption under § .53 is allowed only from the picking-date-size standards prescribed under § .51(a) (1), and not from other regulations such as quality (§ .51(a)(2)), container and packaging (§ .51(a)(3)), or grading and labeling (§ .51(a)(4)). And inspection by the Federal-State Inspection Service for these standards and those set out as the terms and conditions of advance release under § .53 is, of course, required.
Violation of the order is punishable by a fine of from $50 to $500. 7 U.S.C. § 608c(14). Violations of regulations may also be made punishable by the Secretary by a penalty not to exceed $100. 7 U.S.C. § 610(c).
These regulations and others, 7 CFR §§ 51.3055-51.3069, govern in exhaustive detail the size and shape of avocados, their color, skin condition, stem length, and the manner in which they may be shipped.
27 Fed.Reg. 5135-5136, 6705, 8265, 9175, 10091; 26 Fed.Reg. 3692, 4928, 5418-5419, 6429, 7694, 8663; 25 Fed.Reg. 5476, 7712, 8903, 9170, 9888; 24 Fed.Reg. 1152, 3105, 4050, 4828, 5824-5825, 6904, 7354, 8444, 9123, 9262; 23 Fed.Reg. 1025-1026, 4351-5352, 5477, 6318, 7344, 7943, 8047, 9056, 9689; 22 Fed.Reg. 3652, 4251-4252, 5680, 6746, 7173-7174, 7357-7358, 8118; 21 Fed.Reg. 3307-3308, 3488, 6329-6330; 20 Fed.Reg. 3427, 4178-4179, 6699-6700, 7876, 8328-8329, 8688; 19 Fed.Reg. 4404-4405, 4601, 4862, 5469, 5966, 5967, 6368, 6604, 6625, 7477. Similar orders have been issued from time to time concerning maturity of imported avocados. See, e.g., 25 Fed.Reg. 5445; 24 Fed.Reg. 4134, 4829, 5825, 5996; 23 Fed.Reg. 4352, 6027; 22 Fed.Reg. 3957; 21 Fed.Reg. 4257.
'There is not-and from the very nature of the problem there cannot be-any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This Court, in considering the validity of state laws in the light of * * * federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula. Our primary function is to determine whether, under the circumstances of this particular case, Pennsylvania's law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404. (Emphasis added.) Compare ante, p. 141.
We do not imply that these regulations governing the fitness of avocados in terms of maturity would preclude application of local regulations concerning, for example, bacteria content or DDT content. Cf. Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852. Neither health regulation nor safety considerations, cf. Lyons v. Thrifty Drug Stores Co., 105 Cal.App.2d 844, 234 P.2d 62, are involved in this case. And there is no finding that there is anything fraudulent, deceptive, or unmarketable about a Florida avocado which is mature enough to be introduced into interstate commerce under a federal certificate evidencing its quality. Compare Plumley v. Massachusetts, 155 U.S. 461, 472, 15 S.Ct. 154, 158, 39 L.Ed. 223, quoted ante, p. 144.
It was suggested that there is a gap in the federal scheme through which immature avocados may enter commerce bearing an exemption certificate issued 'seemingly * * * in the unfettered discretion of the growers' own 'Committee.' This contention omits the requirement of § .53 that exemption from the normal picking-date-size provisions be allowed only to avocados inspected and proved mature because they satisfied special maturity tests prescribed under procedures approved by the Secretary, and the fact that such avocados carry a federal certificate as to maturity and quality. It also omits the Secretary's general review power over regulatory determinations provided by § .52(b). No contention has been made that actual abuses have occurred under the exemption certificate provisions nor has any basis upon which they may be anticipated been suggested.
It also came out, by representation of the Solicitor General as amicus curiae before this Court, that the Department of Agriculture had collaborated in drafting the state raisin program, and had taken other actions which 'must be taken as an expression of opinion by the Department of Agriculture that the state program * * * is consistent with the policies of the Agricultural Adjustment and Agricultural Marketing Agreement Acts.' Id., at 358, 63 S.Ct. at 317. Hence, in holding 'We find no conflict between the two acts (state and federal) and no such occupation of the legislative field by the mere adoption of the (federal) Act, without the issuance of any order by the Secretary putting it into effect, as would preclude the effective operation of the state act,' the Court expressly declared, 'We have no occasion to decide whether the same conclusion would follow if the state program had not been adopted with the collaboration of officials of the Department of Agriculture * * *.' Id., at 358, 63 S.Ct. at 317.
Under the reasoning suggested to us the California law should be construed not to apply to Florida avocados marketed under a federal order. And see Local No. 8-6, etc., Oil Workers Union v. Missouri, 361 U.S. 363, 370, 80 S.Ct. 391, 396, 4 L.Ed.2d 373; Allen-Bradley Local v. Wisconsin Board, 315 U.S. 740, 746, 62 S.Ct. 820, 824, 86 L.Ed. 1154; Pearson v. Probate Court, 309 U.S. 270, 277, 60 S.Ct. 523, 527, 84 L.Ed. 744; Carey v. South Dakota, 250 U.S. 118, 122, 39 S.Ct. 403, 404, 63 L.Ed. 886.
'Probably the most important single factor of quality is that of maturity.' 19 Fed.Reg., at 2424.
To the extent that this contention is to be understood to be limited to 'all the authorities' supporting 'a higher standard for consumers,' we have already indicated, pp. 168-169, supra, that the California law is not aimed at consumer protection but at avocado grower protection.
The avocado may remain hard and in perfect condition on the tree for some time after reaching maturity, for the fruit does not soften until after it is picked. But the harvesting and shipping of fruit which has reached the fullest possible degree of maturity on the tree is not recommended. The seed may sprout while the fruit is on the tree or the fruit may ripen so rapidly after harvesting that it cannot be shipped satisfactorily. Ruehle, The Florida Avocado Industry, 70 (Univ. of Fla. Agr. Expt. Sta. Bull. No. 602, 1958); Wolfe, Toy and Stahl, Avocado Production in Florida, 83 (Ruehle rev. ed., Fla., Agr. Ext. Serv. Bull. No. 141, 1949).
There is no indication in the record as to how many Florida avocados are kept out of the California market by the prudence of growers and handlers who voluntarily avoid the risks of the California oil test. Nor are we advised as to whether other States have adopted avocado legislation, so that the cumulative burden on commerce is further increased. In any event, 6% is a not insubstantial figure in terms of restraints upon commerce.
It is suggested that the regulations involved here are 'simply schemes for regulating competition among growers * * * initiated and administered by the growers and shippers themselves.' From this proposition it is in some way reasoned that 'the self-help standards of this marketing program' should not be deemed to preclude application of state law which conflicts with and interferes with the operation of the comprehensive federal marketing program. The 'simply' part of the proposition overlooks, however, the fact that these are the Secretary's regulations, promulgated under congressional authority. It also overlooks the Secretary's extensive supervisory powers and his statutory duty under 7 U.S.C. § 602(3) to insure that regulations be carried on 'in the public interest.' And no case has been cited to us which indicates that the delegation to the regulatees of the power to propose regulations in the first instance violates any provision of general law. See Parker v. Brown, 317 U.S. 341, 352, 63 S.Ct. 307, 314, 87 L.Ed. 315; Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263; United States v. Rock Royal Co-op., 307 U.S. 533, 577-578, 59 S.Ct. 993, 1014-1015, 83 L.Ed. 1446; Currin v. Wallace, 306 U.S. 1, 16, 59 S.Ct. 379, 387, 83 L.Ed. 441; Johnson & Co. v. Securities & Exchange Comm'n, 198 F.2d 690, 695 (C.A.2d Cir.).
And see Castle v. Hayes Lines, Inc., 348 U.S. 61, 75 S.Ct. 191, 899 L.Ed. 68; First Iowa Hydro-Elec. Coop. v. Federal Power Comm'n, 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143; Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23; Dumont Labs v. Carroll, 184 F.2d 153 (C.A.3d Cir.). The suggestion, ante, p. 141, that the doctrine of Gibbons v. Ogden is limited to carriers is unwarranted in view of such cases as First Iowa.


text: See also Mishler v. MAC Systems, Inc., 771 N.E.2d 92, 98–99 (Ind. Ct. App. 2000) (condemning a preliminary injunction issued “after only the most preliminary of determinations by the trial court”); St. Margaret Mercy Healthcare Centers, Inc. v. Ho, 663 N.E.2d 1220, 1223–24 (Ind. Ct. App. 1996) (dissolving a preliminary injunction on First Amendment grounds, because speech cannot be restricted “before an adequate determination that it is unprotected by the First Amendment”); Hartman v. PIP-Group, LLC, __ S.E.2d __ (Ga. Ct. App. 2019) (“We have found no Georgia case upholding an interlocutory injunction prohibiting speech. Our Supreme Court has noted that although ‘it has never been held that all injunctions against publication are impermissible,’ such an injunction has been upheld only when it ‘was entered subsequent to a verdict in which a jury found that statements made by [the defendant] were false and defamatory.'”); Anagnost v. Mortgage Specialists, Inc., 2016 WL 10920366, *3 (N.H. Super. Ct.) (“[B]y asking for a preliminary injunction, the plaintiffs seek to enjoin Gill from making statements that have not yet been found to be unprotected.”); Paradise Hills Assocs. v. Procel, 1 Cal. Rptr. 2d 514, 519 (Cal. Ct. App. 1991) (“A preliminary injunction is a prior restraint.”); Cohen v. Advanced Med. Group, 496 S.E.2d 710, 710-11 (Ga. 1998) (overturning a preliminary injunction against libel on the grounds that the injunction was not “‘entered subsequent to a verdict in which a jury found that statements made by [defendant] were false and defamatory'” (quoting High Country Fashions, Inc. v. Marlenne Fashions, Inc., 357 S.E.2d 576, 577 (Ga. 1987))); Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993) (stressing that an injunction of charitable solicitation was permitted only “after a final adjudication on the merits that the speech is unprotected”).

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In this chapter we have, I. The title of the book (v. 1) and a preface demanding attention (v. 2). II. Warning given of desolating judgments hastening upon the kingdoms of Israel and Judah (v. 3, 4), and all for sin (v. 5). III. The particulars of the destruction specified (v. 6, 7). IV. The greatness of the destruction illustrated, 1. By the prophet's sorrow for it (v. 8, 9). 2. By the general sorrow that should be for it, in the several places that must expect to share in it (v. 10–16). These prophecies of Micah might well be called his lamentations.
Here is, I. A general account of this prophet and his prophecy, v. 1. This is prefixed for the satisfaction of all that read and hear the prophecy of this book, who will give the more credit to it when they know the author and his authority. 1. The prophecy is the word of the Lord; it is a divine revelation. Note, What is written in the Bible, and what is preached by the ministers of Christ according to what is written there, must be heard and received, not as the word of dying men, which we may be judges of, but as the word of the living God, which we must be judged by, for so it is. This word of the Lord came to the prophet, came plainly, came powerfully, came in a preventing way, and he saw it, saw the vision in which it was conveyed to him, saw the things themselves which he foretold, with as much clearness and certainty as if they had been already accomplished. 2. The prophet is Micah the Morasthite; his name Micah is a contraction of Micaiah, the name of a prophet some ages before (in Ahab's time, 1 Ki. 22:8); his surname, the Morasthite, signifies that he was born, or lived, at Moresheth, which is mentioned here (v. 14), or Mareshah, which is mentioned v. 15, and Jos. 15:44. The place of his abode is mentioned, that any one might enquire in that place, at that time, and might find there was, or had been, such a one there, who was generally reputed to be a prophet. 3. The date of his prophecy is in the reigns of three kings of Judah—Jotham, Ahaz, and Hezekiah. Ahaz was one of the worst of Judah's kings, and Hezekiah one of the best; such variety of times pass over God's ministers, times that frown and times that smile, to each of which they must study to accommodate themselves, and to arm themselves against the temptations of both. The promises and threatenings of this book are interwoven, by which it appears that even in the wicked reign he preached comfort, and said to the righteous then that it should be well with them; and that in the pious reign he preached conviction, and said to the wicked then that it should be ill with them; for, however the times change, the word of the Lord is still the same. 4. The parties concerned in this prophecy; it is concerning Samaria and Jerusalem, the head cities of the two kingdoms of Israel and Judah, under the influence of which the kingdoms themselves were. Though the ten tribes have deserted the houses both of David and Aaron, yet God is pleased to send prophets to them.
II. A very solemn introduction to the following prophecy (v. 2), in which, 1. The people are summoned to draw near and give their attendance, as upon a court of judicature: Hear, all you people, Note, Where God has a mouth to speak we must have an ear to hear; we all must, for we are all concerned in what is delivered. "Hear, you people'' (all of them, so the margin reads it), "all you that are now within hearing, and all others that hear it at second hand.'' It is an unusual construction; but those words with which Micah begins his prophecy are the very same in the original with those wherewith Micaiah ended his, 1 Ki. 22:28. 2. The earth is called upon, with all that therein is, to hear what the prophet has to say: Hearken, O earth! The earth shall be made to shake under the stroke and weight of the judgments coming; sooner will the earth hear than this stupid senseless people; but God will be heard when he pleads. If the church, and those in it, will not hear, the earth, and those in it, shall, and shame them. 3. God himself is appealed to, and his omniscience, power, and justice, are vouched in testimony against this people: "Let the Lord God be witness against you, a witness that you had fair warning given you, that your prophets did their duty faithfully as watchmen, but you would not take the warning; let the accomplishment of the prophecy be a witness against your contempt and disbelief of it, and prove, to your conviction and confusion, that it was the word of God, and no word of his shall fall to the ground.'' Note, God himself will be a witness, by the judgments of his hand, against those that would not receive his testimony in the judgments of his mouth. He will be a witness from his holy temple in heaven, when he comes down to execute judgment (v. 3) against those that turned a deaf ear to his oracles, wherein he witnessed to them, out of his holy temple at Jerusalem.
III. A terrible prediction of destroying judgments which should come upon Judah and Israel, which had its accomplishment soon after in Israel, and at length in Judah; for it is foretold, 1. That God himself will appear against them, v. 3. They boasted of themselves and their relation to God, as if that would secure them; but, though God never deceives the faith of the upright, he will disappoint the presumption of the hypocrites, for, behold, the Lord comes forth out of his place, quits his mercy-seat, where they thought they had him fast, and prepares his throne for judgment; his glory departs, for they drive it from them. God's way towards this people had long been a way of mercy, but now he changes his way, he comes out of his place, and will come down. He had seemed to retire, as one regardless of what was done, but now he will show himself, he will rend the heavens, and will come down, not as sometimes, in surprising mercies, but in surprising judgments, to do things not for them, but against them, which they looked not for, Isa. 64:1; 26:21. 2. That when the Creator appears against them it shall be in vain for any creature to appear for them. He will tread with contempt and disdain upon the high places of the earth, upon all the powers that are advanced in competition with him or in opposition to him; and he will so tread upon them as to tread them down and level them. High places, set up for the worship of idols or for military fortifications, shall all be trodden down and trampled into the dust. Do men trust to the height and strength of the mountains and rocks, as if they were sufficient to bear up their hopes and bear off their fears? They shall be molten under him, melted down as wax before the fire, Ps. 68:2. Do they trust to the fruitfulness of the valleys, and their products? They shall be cleft, or rent, with those fiery streams that shall come pouring down from the mountains when they are melted. They shall be ploughed and washed away as the ground is by the waters that are poured down a steep place. God is said to cleave the earth with rivers, Hab. 3:9. Neither men of high degree, as the mountains, nor men of low degree, as the valleys, shall be able to secure either themselves or the land from judgments of God, when they are sent with commission to lay all waste, and, like a sweeping rain, to leave no food, Prov. 28:3. This is applied particularly to the head city of Israel, which they hoped would be a protection to the kingdom (v. 6.) I will make Samaria, that is now a rich and populous city, as a heap of the field, as a heap of dung laid there to be spread, or as a heap of stones gathered together to be carried away, and as plantings of a vineyard, as hillocks of earth raised to plant vines in. God will make of that city a heap, of that defenced city a ruin, Isa. 25:2. Their altars had been as heaps in the furrows of the fields (Hos. 12:11) and now their houses shall be so, as ruinous heaps. The stones of the city are poured down into the valley by the fury of the conqueror, who will thus be revenged on those walls that so long held out against him. They shall be quite pulled down, so that the very foundations shall be discovered, that had been covered by the superstructure; and not one stone shall be left upon another.
IV. A charge of sin upon them, as the procuring cause of these desolating judgments (v. 5): For the transgression of Jacob is all this. If it be asked, "Why is God so angry, and why are Jacob and Israel thus brought to ruin by his anger?'' the answer is ready: Sin has done all the mischief; sin has laid all waste; all the calamities of Jacob and Israel are owing to their transgressions; if they had not gone away from God, he would never have appeared thus against them. Note, External privileges and professions will not secure a sinful people from the judgments of God. If sin be found in the house of Israel, if Jacob be guilty of transgression and rebellion, God will not spare them; no, he will punish them first, for their sins are of all others most provoking to him, for they are most reproaching. But it is asked, What is the transgression of Jacob? Note, When we feel the smart of sin it concerns us to enquire what the sin is which we smart for, that we may particularly war against that which wars against us. And what is it? 1. It is idolatry; it is the high places; that is the transgression, the great transgression which reigns in Israel; that is spiritual whoredom, the violation of the marriage-covenant, which merits a divorce. Even the high places of Judah, though not so bad as the transgression of Jacob, were yet offensive enough to God, and a remaining blemish upon some of the good reigns. Howbeit the high places were not taken away. 2. It is the idolatry of Samaria and Jerusalem, the royal cities of those two kingdoms. These were the most populous places, and where there were most people there was most wickedness, and they made one another worse. These were the most pompous places; there men lived most in wealth and pleasure, and they forgot God. These were the places that had the greatest influence upon the country, by authority and example; so that from them idolatry and profaneness went forth throughout all the land, Jer. 23:15. Note, Spiritual distempers are most contagious in persons and places that are most conspicuous. If the head city of a kingdom, or the chief family in a parish, be vicious and profane, many will follow their pernicious ways, and write after a bad copy when great ones set it for them. The vices of leaders and rulers are leading ruling vices, and therefore shall be surely and sorely punished. Those have a great deal to answer for indeed that not only sin, but make Israel to sin. Those must expect to be made examples that have been examples of wickedness. If the transgression of Jacob is Samaria, therefore shall Samaria become a heap. Let the ringleaders in sin hear this and fear.
V. The punishment made to answer the sin, in the particular destruction of the idols, v. 7. 1. The gods they worshipped shall be destroyed: The graven images shall be beaten to pieces by the army of the Assyrians, and all the idols shall be laid desolate. Samaria and her idols were ruined together by Sennacherib (Isa. 10:11), and their gods cast into the fire, for they were no gods (Isa. 37:19); and this was the Lord's doing: I will lay the idols desolate. Note, If the law of God prevail not to make men in authority destroy idols, God will take the work into his own hands, and will do it himself. 2. The gifts that passed between them and their gods shall be destroyed; for all the hires thereof shall be burnt with fire, which may be meant either of the presents they made to their idols for the replenishing of their altars, and the adorning of their statues and temples (these shall become a prey to the victorious army, which shall rifle not only private houses, but the houses of their gods), or of the corn, and wine, and oil, which they called the rewards, or hires, which their idols, their lovers, gave them (Hos. 2:12); these shall be taken from them by him whom (by ascribing them to their dear idols) they had defrauded of the honour due to him. Note, That cannot prosper by which men either are hired to sin or hire others to sin; for the wages of sin will be death. She gathered it of the hire of the harlot, and it shall return to the hire of a harlot. They enriched themselves by their leagues with the idolatrous nations, who gave them advantages, to court them into the service of their idols, and their idols' temples were enriched with gifts by those who went a whoring after them. And all this wealth shall become a prey to the idolatrous nations, and so be the hire of a harlot again, wages to an army of idolaters, who shall take it as a reward given them by their gods. It shall be a present to king Jareb, Hos. 10:6. What they gave to their idols, and what they thought they got by them, shall be as the hire of a harlot; the curse of God shall be upon it, and it shall never prosper, nor do them any good. It is common that what is squeezed out by one lust is squandered away upon another.
We have here a long train of mourners attending the funeral of a ruined kingdom.
I. The prophet is himself chief mourner (v. 8, 9): I will wail and howl; I will go stripped and naked, as a man distracted with grief. The prophets usually expressed their own grief for the public grievances, partly to mollify the predictions of them, and to make it appear that is was not out of ill-will that they denounced the judgments of God (so far were they from desiring the woeful day that they dreaded it more than any thing), partly to show how very dreadful and mournful the calamities would be, and to stir up in the people a holy fear of them, that by repentance they might turn away the wrath of God. Note, We ought to lament the punishments of sinners as well as the sufferings of saints in this world; the weeping prophet did so (Jer. 9:1); so did this prophet. He makes a wailing like the dragons, or rather the jackals, ravenous beasts that in those countries used to meet in the night, and howl, and make hideous noises; he mourns as the owls, the screech-owls, or ostriches, as some read it. Two things the prophet here thus dolefully laments:—1. That Israel's case is desperate: Her wound is incurable; it is ruin without remedy; man cannot help her; God will not, because she will not by repentance and reformation help herself. There is indeed balm in Gilead and a physician there; but they will not apply to the physician, nor apply the balm to themselves, and therefore the wound is incurable. 2. That Judah likewise is in danger. The cup is going round, and is now put into Judah's hand: The enemy has come to the gate of Jerusalem. Soon after the destruction of Samaria and the ten tribes, the Assyrian army, under Sennacherib, laid siege to Jerusalem, came to the gate, but could not force their way any further; however, it was with great concern and trouble that the prophet foresaw the fright, so dearly did he love the peace of Jerusalem.
II. Several places are here brought in mourning, and are called upon to mourn; but with this proviso, that they should not let the Philistines hear them (v. 10): Declare it not in Gath; this is borrowed from David's lamentation for Saul and Jonathan (2 Sa. 1:20), Tell it not in Gath, for the uncircumcised will triumph in Israel's tears. Note, One would not, if it could be helped, gratify those that make themselves and their companions merry with the sins or with the sorrows of God's Israel. David was silent, and stifled his griefs, when the wicked were before him, Ps. 39:1. But, though it may be prudent not to give way to a noisy sorrow, yet it is duty to admit a silent one when the church of God is in distress. "Roll thyself in the dust'' (as great mourners used to do) "and so let the house of Judah and every house in Jerusalem become a house of Aphrah, a house of dust, covered with dust, crumbled into dust.'' When God makes the house dust it becomes us to humble ourselves under his mighty hand, and to put our mouths in the dust, thus accommodating ourselves to the providences that concern us. Dust we are; God brings us to the dust, that we may know it, and own it. Divers other places are here named that should be sharers in this universal mourning, the names of some of which we do not find elsewhere, whence it is conjectured that they are names put upon them by the prophet, the signification of which might either indicate or aggravate the miseries coming upon them, thereby to awaken this secure and stupid people to a holy fear of divine wrath. We find Sennacherib's invasion thus described, in the prediction of it, by the impressions of terror it should make upon the several cities that fell in his way, Isa. 10:28, 29, etc. Let us observe the particulars here, 1. The inhabitants of Saphir, which signifies neat and beautiful (thou that dwellest fairly, so the margin reads it), shall pass away into captivity, or be forced to flee, stripped of all their ornaments and having their shame naked. Note, Those who appear ever so fine and delicate know not what contempt they may be exposed to; and the more grievous will the shame be to those who have been inhabitants of Saphir. 2. The inhabitants of Zaanan, which signifies the country of flocks, a populous country, where the people are as numerous and thick as flocks of sheep, shall yet be so taken up with their own calamities, felt or feared, that they shall not come forth in the mourning of Bethezel, which signifies a place near, shall not condole with, nor bring any succour to, their next neighbours in distress; for he shall receive of you his standing; the enemy shall encamp among you, O inhabitants of Zaanan! shall take up a station there, shall find footing among you. Those may well think themselves excused from helping their neighbours who find they have enough to do to help themselves and to hold their own. 3. As for the inhabitants of Maroth (which, some think, is put for Ramoth, others that it signifies the rough places), they waited carefully for good, and were grieved for the want of it, but were disappointed; for evil came from the Lord unto the gate of Jerusalem, when the Assyrian army besieged it, v. 12. The inhabitants of Maroth might well overlook their own particular grievances when they saw the holy city itself in danger, and might well overlook the Assyrian, that was the instrument, when they saw the evil coming from the Lord. 4. Lachish was a city of Judah, which Sennacherib laid siege to, Isa. 36:1,2. The inhabitants of that city are called to bind the chariot to the swift beast, to prepare for a speedy flight, as having no other way left to secure themselves and their families; or it is spoken ironically: "You have had your chariots and your swift beasts, but where are they now?'' God's quarrel with Lachish is that she is the beginning of sin, probably the sin of idolatry, to the daughter of Zion (v. 13); they had learned it from the ten tribes, their near neighbours, and so infected the two tribes with it. Note, Those that help to bring sin into a country do but thereby prepare for the throwing of themselves out of it. Those must expect to be first in the punishment who have been ringleaders in sin. The transgressions of Israel were found in thee; when they came to be traced up to their original they were found to take rise very much from that city. God knows at whose door to lay the blame of the transgressions of Israel, and whom to find guilty. Lachish, having been so much accessory to the sin of Israel, shall certainly be reckoned with: Thou shalt give presents to Moresheth-gath, a city of the Philistines, which perhaps had a dependence upon Gath, that famous Philistine city; thou shalt send to court those of that city to assist thee, but it shall be in vain, for (v. 14) the houses of Achzib (a city which joined to Mareshah, or Moresheth, and is mentioned with it, Jos. 15:44) shall be a lie to the kings of Israel; though they depend upon their strength, yet they shall fail them. Here there is an allusion to the name. Achzib signifies a lie, and so it shall prove to those that trust in it. 5. Mareshah, that could not, or would not, help Israel, shall herself be made a prey (v. 15): "I will bring a heir (that is, an enemy) that shall take possession of thy lands, with as much assurance as if he were heir at law to them, and he shall come to Adullam, and to the glory of Israel, that is, to Jerusalem the head city;'' or "The glory of Israel shall come to be as Adullam, a poor despicable place;'' or, "The king of Assyria, whom Israel had gloried in, shall come to Adullam, in laying the country waste.'' 6. The whole land of Judah seems to be spoken to (v. 16) and called to weeping and mourning: "Make thee bald, by tearing thy hair and shaving thy head; poll thee for thy delicate children, that had been tenderly and nicely brought up; enlarge thy baldness as the eagle when she casts her feathers and is all over bald; for they have gone into captivity from thee, and are not likely to return; and their captivity will be the more grievous to them because they have been brought up delicately and have not been inured to hardship.'' Or this is directed particularly to the inhabitants of Mareshah, as v. 15. That was the prophet's own city, and yet he denounces the judgments of God against it; for it shall be an aggravation of its sin that it had such a prophet, and knew not the day of its visitation. Its being thus privileged, since it improved not the privilege, shall not procure favour for it either with God or with his prophet.

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