Note inspection prescribed prevent the introduction into the state of sound meats, the product of animals slaughtered in other states. A statute of Virginia, entitled "An act to prevent the selling of unwholesome meat," approved February 18, 1890, (Laws of Virginia, 1888-1890, p. 63, chap. 80) declares it to be unlawful to offer for sale, within the limits of that state, any beef, veal, or mutton from animals slaughtered one hundred miles or more from the place at which it is offered for sale, unless it has been previously inspected and approved by local inspectors appointed under that act. It provides that the inspector shall receive as his compensation one cent per pound to be paid by the owner of the meats. The act does not require the inspection of fresh meats from animals slaughtered within one hundred miles from the place in Virginia at which such meats are offered for sale. Held, that the act is void, as being in restraint of commerce among the states, and as imposing a discriminating tax upon the products and industries of some states in favor of the products and industries of Virginia. The owner of meats from animals slaughtered one hundred miles or over from Virginia has the right to compete in the markets of that state upon terms of equality with the owners of meats from animals, slaughtered in that state or elsewhere, within one hundred miles from the place at which they are offered for sale. In Brimmer v. Rebman, 138 U. S. 78, HARLAN, J., said: "Undoubtedly, a state may establish regulations for the protection of its people against the sale of unwholesome meats, provided such regulations do not conflict with the powers conferred by the constitution upon congress, or infringe rights granted or secured by that instrument. But it may not, under the guise of exerting its police powers, or of enacting inspection laws, make discriminations against the products and industries of some of the states in favor of the products and industries of its own or of other states. The owner of the meats here in question, although they were from animals slaughtered in Illinois, had the right, under the constitution, to compete in the markets of Virginia upon terms of equality with the owners of like meats, from animals slaughtered in Virginia or elsewhere within 100 miles from the place of sale. Any local regulation which, in terms or by its necessary operation, denies this equality in the markets of a state, is, when applied to the people and products or industries of other states, a direct burden upon commerce among the states, and therefore void. Welton v. Missouri, 91 U. S. 275, 281; Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465; Minnesota v. Barber, 136 U. S. 313. The fees exacted under the Virginia statute for the inspection of beef, veal, and mutton, the product of animals slaughtered 100 miles or more from the place of sale, are, in reality, a tax; and 'a discriminating tax imposed by Note a state, operating to the disadvantage of the products of other states when introduced into the first-mentioned state, is, in effect, a regulation in restraint of commerce among the states, and, as such, is a usurpation of the powers conferred by the constitution upon the congress of the United States.' Walling v. Michigan, 116 U. S. 446, 455, 11 Am. & Eng. Corp. Cas. 383. Nor can this statute be brought into harmony with the constitution by the circumstance that it purports to apply alike to the citizens of all the states, including Virginia; for, 'a burden imposed by a state upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to the people of all the states, including the people of the state enacting such statute.' Minnesota v. Barber, above cited; Robbins v. Shelby Taxing Dist., 120 U. S. 489, 497, 16 Am. & Eng. Corp. Cas. 1. If the object of Virginia had been to obstruct the bringing into that state, for use as human food, of all beef, veal, and mutton, however wholesome, from animals slaughtered in distant states, that object will be accomplished if the statute before us be enforced. It is suggested that this statute can be sustained by presuming as, it is said, we should when considering the validity of a legislative enactment that beef, veal, or mutton will or may become unwholesome, 'if transported one hundred miles or more from the place at which it was slaughtered,' before being offered for sale. If that presumption could be indulged consistently with facts of such general notoriety as to be within common knowledge, and of which, therefore, the courts may take judicial notice, it ought not to control this case, because the statute, by reason of the onerous nature of the tax imposed in the name of compensation to the inspector, goes far beyond the purposes of legitimate inspection to determine quality and condition, and, by its necessary operation, obstructs the freedom of commerce among the states. is, for all practical ends, a statute to prevent the citizens of distant states, having for sale fresh meats (beef, veal, or mutton,) from coming into competition, upon terms of equality, with local dealers in Virginia. As such, its repugnancy to the constitution is manifest. The case, in principle, is not distinguishable from Minnesota v. Barber, where an inspection statute of Minnesota, relating to fresh beef, veal, mutton, lamb, and pork, offered for sale in that state, was held to be a regulation of interstate commerce and void, because, by its necessary operation, it excluded from the markets of that state, practically, all such meats-in whatever form, and although entirely sound and fit for human food-from animals slaughtered in other states." It In Ex parte Keiffer, 40 Fed. Rep. 399, BREWER, J., held that an Moore v. Mayor, etc., of Town of Jonesboro ordinance of the city of Topeka which provided that animals must be inspected before slaughtered and must be slaughtered within one mile of the city limits, was unconstitutional as interfering with interstate commerce, the effect of the ordinance being to exclude dressed meat brought from a distance. The judge in this case deemed the question to be so well settled that he declined to enter into any extended discussion of the subject. See also In re Christian (Minn.), 27 Am. & Eng. Corp. Cas. 669. MOORE v. MAYOR, ETC., OF TOWN OF JONESBORO. (Supreme Court of Georgia, May 29, 1899.) Ordinances - Judicial Notice.* - Unless expressly directed by statute, neither this court nor the superior court can take judicial cognizance of a municipal ordinance; hence an exception to a judgment rendered by a municipal court, which alleges in general terms that the judgment is contrary to law (the point intended to be made being that the judgment was contrary to an alleged ordinance), cannot be considered, when the ordinance in question does not appear in the record. Failure to Work Streets-Penalties-Tender of Street Tax.-After failure to perform a public duty, to which failure a penalty is attached, it is not competent for a defaulter to acquit himself of the default by tendering a sum of money, the payment of which is fixed by law as the alternative of such performance. He must, in the first instance, perform the work required, or make payment of such The penalty attaches on his failure to do the one or the other when lawfully required. (a) The evidence in the municipal court warranted the conviction of the accused of the offense charged, viz. a default in working the streets. sum. (Syllabus by the Court.) ERROR by defendant from Clayton county superior court. Affirmed. J. B. Hutcheson, for plaintiff in error. W. L. Watterson, for defendant in error. *See State v. Cruickshank, 1 Mun. Corp. Cas. 399, and note 399. Moore v. Mayor, etc., of Town of Jonesboro Case Stated. LITTLE, J. By his petition for certiorari, the plaintiff in error makes it appear that he was tried in the mayor's court for the town of Jonesboro for failure to pay his street tax to said town, and was fined in the sum of four dollars, to be discharged by eight days' work on the public streets of that town. After his conviction, he appealed to the council of the town, and the judgment of the mayor was sustained. He presented a petition for certiorari to the judge of the superior court. On the hearing the certiorari was dismissed, and to that ruling he excepted. From the answer of the mayor and council made to the writ of certiorari, it appears that on July 9th the plaintiff in error was summoned to work on the streets. of the town; that he appeared in answer to the summons, and worked a half day, and did not reappear for the prosecution of the work; that a case was made against him, as he was in default for 11⁄2 days' work, or the payment of the sum of 75 cents in lieu of such work. On the next day the plaintiff in error came and tendered the sum of 75 cents, which was refused, on the ground that a case had already been made against him as a defaulter. On the trial before the mayor, the plaintiff in error alleged that he was sick, and not able to work, and that, on the morning afterwards, he carried the money to an officer of the town, who refused to accept the same. Ordinances- 1. It was submitted on the argument here that the ordinance of the town of Jonesboro under which the defendant was convicted and sentenced did not authorize the judgment rendered by the mayor, and the Judicial Notice. petition for certiorari alleges that such judgment is contrary to law. The record does not contain any copy of the ordinance in question. Attached to the brief of the plaintiff in error is a certified copy of what purports to be an ordinance of the town of Jonesboro. In the considera tion of cases presented, this court can only look to the record for the facts, and we are not at liberty to accept or consider as evidence anything which does not appear in the record. It being admitted in the argument that there was an ordi Moore v. Mayor, etc., of Town of Jonesboro nance of the town of Jonesboro requiring persons resident therein to work on the streets of the town, and the defendant by his bill of exceptions complaining that the judgment against him by the municipal authorities was in violation of the ordinance, it is incumbent upon him to show such viola tion. The courts of this state cannot, unless authorized by statute, take judicial cognizance of the ordinances of a municipal corporation. It is required by express statute, in the case of one or more of the cities of this state, that such judicial cognizance shall be taken, but, as a general rule, a municipal ordinance must be proven, when it is desired that its terms be considered. Inasmuch, therefore, as the ordinance of the town of Jonesboro which it is complained was violated does not appear in the record, we are unable to consider the question whether the sentence imposed was in violation of law. Failure to Work 2. The evidence set out in the answer of the mayor and council is sufficient to sustain the conviction of the plaintiff in error. In his statement he admitted that he was summoned to work the streets, to commence on Monday, July 11th; that he appeared in response to the summons; that he was unwell, and not able to work; that at noon he was requested by a gentleman to work for him; that that gentleman gave him the money to pay his street tax; and that next morning he tendered it. According to this statement and the evidence which was submitted, the plaintiff in error had the alternative either to work the streets, or, in lieu thereof, to pay a given sum of money. When summoned, he elected to do the work, and appeared, but worked only for a short time. Not appearing again, the case was made against him, and properly so, we think. When summoned, or at least when the time came for him to commence work, it was his duty to make his election. He chose to work, and when he subsequently stopped working, before the expiration of the time he was required to work, he was a defaulter, and then became liable for the penalty imposed on a defaulter. Hav |