                           NO. 3067


          Under the terms and provislons of Article
          5764a, Vernon's Texas Statutes, 193S Sup-
          ulement
          .~   ~~~ (otherwise
                   ..~~~~-~ ~-~ lmown
                                _... - es
                                       -- the
                                           _-. Texan
                                               _----   Clt-
                                                       ___
          ruS Marketing Act, House Bill NO. 654, Acts
          1937. 45th Legislature), the State of Texas
          iS Without the) power or authority to coa-
          trol the movement of citrus fruit shipped
          interstate. or to control and remlate cit-
          rus fruit going into i&rrutate~&G          erce.




                      OFFICEOFTBEATl!CSNEYCE6ERAL

                                                        June 29. 1939

Honorable J. E. kcDonald,
Commissioner of Agriculture,
Austin, Texas.
Dear Mr. bWDonald:

                                Opinion No. O-946
                                3Je: Can the State, under 8. B.
                                     654, control and regulate
                                     the citrus fruit .going in-
                                     to interstate comerce as
                                     well as that going into
                                     intrastate commerce?
          We are in receipt of your letter of June 5, 1939, in
which you asked the following question:
         "... whether or not under the State Enabling
    Act, heretofore referred to (Texas Citrus Marketing
    Act, Acts 1937, 45th Legislature;H. B. No.654, Ch.
    362, p. 724, Art. 5764a, Vernon's Texas Statutes,
    1938 Supplement), and the Marketing Agreement exist-
    ing thereunder,~the movement of the citrus fruit
    shipped interstate can be brought under control and
    made amendable to the State Marketing Act, or in
    other Nor&, can the State under this Act control
    and regulate the citrus fruit going into interstate
    commerce as well as that going into intrastate corn--
    merce?" (Parenthetical insertion ours)
            The question relates specifioally to the power of the
State, through and by its duly elected and qualified Commissioner
of Agriculture, to control end~regulate "citrus fruit shipped
interstate," and/or "citrus fruit going into interstate commerce,"
under   the terms
._ ~. -A*~~-..A and provisions of Article 5764a, Texas Citrus

          Although it is our opinion that the language of Article
5764a is determinative of the question, we wish to call attention
to Article I, Section 8, Clause 3, of the Constitution of the
United States, which provides that Congress shall have the power:
Hon. J. E. McDonald, June 29, 1939, Page 2


          "To regulate commerce with foreign nations,
     and among the several states, or dth the Indian
     tribes."
          Countless times the Supreme Court of the United States
has held that the Uhited States Congress has the 8xolusfve power,
under the COnStitUtiOn, to regulate commerc8 between two or more
states. U. S. vs. Railroad Bridge Co., 6 McLean (Il.S.) 517, 27
Fed. Gas. 16, 114.
          But although the jurisdiction of Congress over commerce
among the states is full and COmpl8t8, it is not questioned that
Congress has no authority over eonun8rc8which is wholly within
the State, and therefore none over combinations or agreements so
far as they relate to a r8Straint of such trade of OOWs8rOe.
Addyston Pipe, etc. 00. vs. U. 9. (1899) 175 U.S. 247, 20 Sup.
Ct. 96, 44 L. Rd. 136..
          It iS elementary law that, 8V8n in the absence of the
Texas Citrus Marketing Aot, the State would be without power
t0 OOntrOl or regulate "OitNS fruit shipped interstate," t0
use the language of the request.
          As for "citrus fruit going into interstate commerce,"
ussnmtng that this means citrus fruit destined for the channels
Of interstate commerce, but fruitwhich has not as yet commenced
interstate journey, there might be some question, were it not
for the~restriative language of the Texas Citrus Marketing Act,
nSJS8lyArt1018 5764a, supra, beyond which we do not have to go
in answering your question.
          Section 3 of Article 5764a reads as follows:
         "Subject to the provisions of this Aot. the
    Commissioner is hereby authorized and empOW8r8d to
    execute marketing agre8mEnts and to issue liC8nssS
    under this Act to persons engaged in transactions
    of intrastate commerce within the areas of this
    State in the marketing, processing, packing. ship-
    ping, handling or distributing of citrus fruits."
    (Underscoring ours)
          The exclusion by the Act from its coverage or interstate
or foreign commerce or any control or regulation which would di-
rectly burden, obstruct, or affect interstate or foreign CommerCe
in citrus fruits is brought out clearly in Section 7 Of tb8 Act
Which w3 qUOt8 in ruu, under8coring important portions:
          nFdark8tingagreements eXeOUte& and licenses
     issued pursuant to this Act shall contain one or
     more or the following terms and conditions and no
     others, except as provided in Section 6 of this Act:
         "(1) Limiting, or providing methods for the
    limitation of the total quantity of any VarietY Of
    citrus fruit, or of any grade, size or quality there-
    of, produced during any 8peCifisd period Or periods,
    which may be marketed in, or transported to, EnY or
    all markets in intrastate commerce.
Hon. J. E. McDonald, June 29, 1939, Page 3.



          "(2) Allotting. or providing z&hods for
     allotting, the amount of citrus fruits, or any
     grade, Variety, six8 or quality thereof, which each
     handler may market in or transport to any or all
     markets Other than in the current of interstate


     upon (1) the emounts or 8uOh cltrUs rruits, or any
     grade, variety, size or qualitythereor, Which 8aOh
     such handler has aVailabl8,fOr current shipment,
     or (21 Upon the amounts shipped by 8aCh such hand-
     ler in such prior period as the Commissioner deter-
     mines t0 be repr8SentatiVS, or both, to the end
     that the total quantity of such citrus fruits, or
     any grade, variety, size or quality thereof, to be
     marketed in, or transported to any'or all markets,
     other than in the current of interstate or foreign
     commerce, or so as directly to burden, obstruct
     or affect interstate or foreign comm8rc8 in 8uoA
     CitNS fruits, during any speciried period or periods,
      hall be equitably apportioned among all of the hand-
     :8rs thereof.
          "(3) Determining, or providing methods for
     determining, the existence and extent of the sur-
     plus of such citrus fruits, or or enygrade, variety,
     size, or quality thereof, and providing for the con-
     trol and dispostion of such surplus but so as not to
     burden or obstruct interstate of foreign CommerC8 in
     such citrus fruits and for equalizing the burden of
     8UCh surplus elimination or control among the pro-
     ducers and handlers thereof." (Und8rSCOring Ours)
          Since Article 5764a, by-its own language, is definit8lY
restricted to cover "intrastate commeroe," it iS important to
consider the Act's definition, which iS as fOllOwS:
         **Intrastate commerce,' as used in this Act,
    means all conrmeroeother than that which iS in
    the current of interstate or foreign commerce, or
    which directly burdens, aff8Ot.SOr 0bstNd.S  inter-
    state or roreign c0merc8.n
          It is our opinion that it was the legislative intent to
authorize the Connnissionerof Agriculture to enter into marketing
agreements with parties and to issue licenses only in relation to
their intrastate business in citrus fruit. The term ntransaations
of intrastate oO~erc8 within the areas of this State," as used in
Section 3, is conclusive. Under the Act, the Commissioner of Agri-
culture is prohibited from entering into marketing agreements
which have as their subject matter the marketing, processing, pack-
ing, shipping, handling or distributing of "CitNs fruit shipped
interstate," and/or "citrus fruit going into interstate CO?nm8rOe."
          Tie Act has been so COllStr'u8d
                                        by the courts of this
State. McDonald, et al, vs. American Fruit Growers, Inc., et al,
126 s. W. (2d) 23 (Petition for writ of error denied).
Hon. J. E. McDonald, June 29, 1939, Page 4.


           We   quote   from the above-mentioned opinion:
           "In the S8OOnd place, the Act prOVid8S In 8ff8Ot
      that the Commissioner is not to place any limitation
      on the quantity of citrus fruit to be transported in
      interstate or foreign coitmerce. The oommissioner could
      be justified in fixing a minimum price only on the theory
      that it would limit the quantity of OitNS  fruit to be
      transported in intrastate commerce and if it would have
      that 8ff8Ot on intrastate commerce by the same token it
      would limit the quantity of citrus fruit to b8 transported
      in interstate and foreign commeroe, a thing which the Act
      itS8lf says he should not do."
          First, because of the provisions of the Federal Consti-
tution granting exclusive power over interstate commerce to the
Unit8d States Congress; second, because of the unambiguous res-
trictive language or the TeXa8 CitNe'kiarketing Act, Article
5764a; and thirdly, because the courts haV8 construed th8 Act to
say that the Commission has no power to limit the quantity of
citrus fruit to be transported in interstate and foreign commerce,
we hold that under the Texas Citrus Marketing Act, the movement
of citrus fruit shipped interstate cannot be brought under con-
trol, and that the State, under said Act, cannot control and re-
gulate the citrus fruit going into interstate commerce.
          It has been called to our attention that over seventy-
five per Cent of the citrus fruit produced in the Oitrus area,
consisting of Hidalgo, Cameron, and Willacy Counties, is shipped
interstate. Under the Texas Citrus Marketing Act, Article 5764a,
the Commissioner of Agriculture is without authority to enter
into marketing agreements concerning this fruit. We wish to
point out, however, that we are not passing upon the question Of
whether or not the Legislature, in the valid exercise of its police
power, might enact laws applicable to this fruit before it enters
into the channels of commerce.
          In Article 5764~1the distinction between interstate and
intrastate commerce is so emphasized and repeatedly stated as to
leave no doubt that the marketing agreements and licenses provided
for therein should be strictly limited to transactions basically
intrastate in nature and transactions which would not directly
burden, obstruct or affect interstate commerca. The Act does not
appertain to citrus fruit ian the tree or in the orchard disasso-
ciated from either interstate or intrastate CommerCe.
          While we have examined the marketing agreea8nt entered
into pursuant to the Act, on October 11, 1937, W8 deem it UpIleCes-
SECY to discuss it further here.  It applies to ntransactions of
intrastate connneroewithin the areasn of the State of Texas. The
same definition of "intrastate commerce" as Occurs in the Act is
to be found in Article 1, section 1, subsection.9 of the agreement.
           Trusting that the above fully answers your inWirY, we
are
                                           YOU-S   V8lt’y   truly

                                       ATTORNEY GEhYRAL OF TDKA5
                                       Dy (signed) Dick &out
                                                       ASSi.5t8lYt
AS:pbp
          This opinion has been considered in conference, approved,
and ordered recorded.
