Supreme Court of the United States



Authenticated copy of opinion record strictly followed, except as to such reference words and figures as are inclosed in brackets.]


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GEORGE E. PAUL, Plff. in Err.,



J. OTIS PAUL, Plff. in Err.,



(See S. C. Reporter's ed. 1-30.)

4. As Congress taxes oleomargarine and recog nizes it as a proper subject of commerce, it cannot be totally excluded from a state simply because the state decides that, for the purpose of preventing the importation of an impure or adulterated article, it will not permit the introduction within its borders of the pure and unadulterated article.

5. A sale of a 10-pound package of oleomargarine manufactured, imported, and sold by the importer under the circumstances found in the special verdict in this case, was a valid sale, although to a person who was a con


6. An importer may sell original packages of oleomargarine by an agent as well as person


Oleomargarine a subject of commerce-inspection power of state-cannot be excluded from state-ten-pound packagessale by agent-sale to consumers-Penn- 8. sylvania statute invalid.


An importer has the right to sell oleomargarine in original packages to consumers as well as to wholesale dealers, and the exercise of this right will not be prevented by the fact that the packages are suitable for retail trade.

The Pennsylvania statute of 1885, to the extent that it prohibits the introduction of oleomargarine from another state, and its sale in the original package as described in the speIclal verdict in this case, is invalid.

[Nos. 86-88.] Argued March 23, 24, 1898. 23, 1898.

Decided May

1 Oleomargarine, having been recognized by the act of Congress of 1886 as a proper subject of taxation and of traffic and exportation and importation, and being a well-known article of food, is a proper subject of commerce among the states and with foreign nations. 2. The fact that inspection or analysis of the article imported is somewhat difficult and IN ERROR to the Supreme Court of the burdensome will not justify a state in totally excluding a pure and healthy food product. State of Pennsylvania to review a judgment 8. A state cannot absolutely prohibit the in- of that court reversing the judgment of the troduction within its borders of an article of trial court for the defendant in each of these commerce which is not adulterated, and cases and in favor of the Commonwealth of which in its pure state is healthful, simply Pennsylvania convicting in pursuance of the facture may be adulterated by dishonest special verdict said defendants severally of a manufacturers, for the purpose of fraud or il-violation of a statute of said state prohibiting legal gains.

because such article in the course of its manu

NOTE.-As to implied warranty on sale of food, see note to McQuaid v. Ross (Wis.) 22 L. R. A. 195.

the sale of oleomargarine, and remanding the

visions sold to a consumer,-see note to Craft v. Parker (Mich.) 21 L. R. A. 139.

As to power of Congress to regulate commerce, see note to State, Corwin, v. Indiana & (). Oil, Gas & Min. Co. (Ind.) 6 L. R. A. 579. As to state tax or license as affecting com

As to prohibition of sale of oleomargarine,— Bee note to Com. v. Miller (Pa.) 6 L. R. A. 633. As to liability of vendor in cases of tort for sale of unwholesome food or drug; personal merce, see note to Rothermel v. Meyerle (Pa.) damages from negligent sale of drug; pro-9 L. R. A. 366.

171 U. S.

U. S., Book 43.



cases for sentence. The cases were similar July, 1893, paid to the collector of internal and the three cases were argued together. revenue of the first district of Pennsylvania Judgments of the Supreme Court reversed, the sum of four hundred and eighty dollars as and the cases remanded for further proceed- and for a special tax upon the business, as ings. agent for the Oakdale Manufacturing Company, in oleomargarine, and obtained from said collector a writing in the words following:

See same case below, Com. v. Paul, 170 Pa. 284 [30 L. R. A. 396].

Statement by Mr. Justice Peckham: [2] *The questions in these three cases are the same, and they arise out of the selling of certain packages of oleomargarine.

United States internal revenue.

Stamp for
per year.
No. A 434.
Received from

Special tax,

The plaintiffs in error were indicted for per year. No. A 434. and convicted of a violation of a statute of Pennsylvania prohibiting such sale. The act agent for the Oakdale Manufacturing ComGeorge Schollenberger, was passed on the 21st of May, 1885, and is pany, the sum of four hundred and eighty to be found in the volume of the laws of Penn-dollars for special tax on the business of sylvania for that year, page 22. It provides wholesale dealer in oleomargarine, to be caras follows: ried on at 219 Callowhill street, Philadelphia, "That no person, firm, or corporate body state of Pennsylvania, for the period represhall manufacture out of any oleaginous sub-sented by the coupon or coupons hereto atstance or any compound of the same, other than that produced from unadulterated milk, or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk, or cream from the same, or of any imitation or adulterated butter or cheese, nor shall sell or offer for sale, or have in his, her, or their possession with intent to sell the same as an article of food."


Dated at Philadelphia, Pa., July first, 1893.
William H. Doyle,
$480. Collector, First District of Penna.

margin of the above:
"The following clauses appear on the [4}

due the government, and does not exempt the "This stamp is simply a receipt for a tax A violation of the act is made a misde-vided for by the law of any state for carrying holder from any penalty or punishment promeanor and punishable by fine and imprison


on the said business within such state, and does not authorize the commencement nor the continuance of such business contrary to the laws of such state or in places prohibited by a municipal law. See § 3243, Revised Statutes, U. S.

The jury found a special verdict in each case. The only difference between the facts stated in the verdict in number 86 and those contained in the other cases is that in the latter the package sold was 10 pounds instead of 40 pounds and was sold by the plain- or refusal to place and keep this stamp con"Severe penalties are imposed for neglect tiffs in error in those cases as agents of a dif-spicuously in your establishment or place of ferent principal, carrying on the same kind of business. Act of August 2, 1886.' business in the state of Illinois, and the package was sold to a different person and upon a different date.

[3] *The following facts were set out in the special verdict in number 86:


Knode Island.

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"Attached to this were coupons for each month of the year in form as follows:



dealer in oleomargarine for October, 1893.' 'Coupon for special tax on wholesale (5) On or before the said second day of (1) The defendant, George Schollenberger, October, 1893, the said Oakdale Manufacturis a resident and citizen of the commonwealth ing Company shipped to the said defendant, of ennsylvania, and is the duly authorized their agent aforesaid, at their place of busiagent in the city of Philadelphia of the Oak-ness in Philadelphia, a package of oleomardale Manufacturing Company of Providence, garine separate and apart from all other packages, being a tub thereof containing forty (2) The said Oakdale Manufacturing Company is engaged in the manufacture of oleo-branded in accordance with the requirements pounus, packed, sealed, marked, stamped, and margarine in the said city of Providence and of the said act of Congress of August second, state of Rhode Island, and as such manufact-1886. The said package was urer has complied with all the provisions of package, as required by said act, and was of an original the act of Congress of August 2, 1886, entitled such form, size, and weight as is used by pro'An Act Defining Butter; also Imposing a ducers or shippers for the purpose of securing Tax upon and Regulating the Manufacture, both convenience in handling and security in Sale, Importation, and Exportation of Oleo- transportation of merchandise between margarine.' dealers in the ordinary course of actual commerce, and the said form, size, and weight were adopted in good faith and not for the purpose of evading the laws of the commonwealth of Pennsylvania, said package being one of a number of similar packages forming one consignment shipped by the said company to the said defendant. Said packages forming said consignment were unloaded from the

"(3) The said defendant, as agent aforesaid, is engaged in business at 219 Callowhill street, in the city of Philadelphia, as wholesale dealer in oleomargarine, and was so engaged on the 2d day of October, 1893, and is not engaged in any other business, either for himself or


"The said defendant, on the 1st day of


cars and placed in defendant's store and then offered for sale as an article of food.

"(6) On the said second day of October, 1893, in the said city of Philadelphia, at the place of business aforesaid, the said defendant, as wholesale dealer aforesaid, sold to James Anderson the said tub or package mentioned in the foregoing paragraph, the oleomargarine therein contained remaining in the original package, being the same package, with seals, marks, stamps, and brands unbroken, in which it was packed by the said manufacturer in the said city of Providence, Rhode Island, and thence transported into the city of Philadelphia and delivered by the carrier to the defendant; and the said tub was not broken or opened on the said premises of the said defendant, and as soon as it was [5] purchased by the said James Anderson it was removed from the said premises.

its citizens the question whether it is wholesome and nondeceptive, and neither the Congress of the United States nor the legislatures of other states can deprive it of this right, and that being such newly discovered article it does not belong to the class universally recognized as articles of commerce, and hence the legislation of Pennsylvania does not regulate or affect commerce; that nondiscriminative legislation enacted in good faith for the protection of health and the prevention of deception, not hampering the actual transportation of merchandise, is not presumptively void but is conclusively valid.

(2) That if the right of citizens of another state to send oleomargarine into the commonwealth of Pennsylvania be admitted, it can only be introduced in original packages suitable for wholesale trade, and where the article imported is intended and used for the supply of the retail trade or is sold by retail directly to the consumer, the package in which it is imported from another state is not an "original package" within the protection of the interstate commerce provision of the Constitution of the United States.

"(7) The oleomargarine contained in said tub was manufactured out of an oleaginous substance not produced from unadulterated milk or cream, and was an article designed to take the place of butter, and sold by the defendant to James Anderson as an article of food; but the fact that the article was oleo- These are the main grounds upon which the margarine and not butter was made known conviction is sought to be sustained. The by the defendant to the purchaser, and there supreme court of the state upheld the statute was no attempt or purpose on the part of the upon the ground that it was a legitimate exdefendant to sell the article as butter, or any ercise of the police power of the state not inunderstanding on the part of the purchaser consistent with the right of the owner of the that he was buying anything but oleomar-product to bring it within the state in approgarine, and the said oleomargarine is recog-priate *packages suitable for sale to the whole-[7] nized by the said act of Congress of August sale dealer and not intended for sale at retail 2, 1886, as an article of commerce.

"(8) The above transaction specifically found by the jury is one of many transactions of like character made by the defendant during the last two years."

Upon this special verdict the trial court directed judgment to be entered for the defendant. The case was taken by the commonwealth to the supreme court of the state, where, after argument, the judgment was reversed and judgment was entered in favor of the commonwealth, and the record remanded that sentence might be imposed by the court below. The plaintiffs in error have brought these judgments of conviction before this court for review by virtue of writs of error.

The opinion of the supreme court of the state is to be found reported under the name of Commonwealth v. Paul, in 170 Pa. 284 [30 L. R. A. 396].

Messrs. William D. Guthrie, Richard C. Dale, Henry R. Edmunds, and Albert H. Veeder for plaintiffs in error.

Mr. John G. Johnson for defendant in


Mr. Justice Peckham delivered the opinion of the court:

Counsel in behalf of the commonwealth rests the validity of the statute in question upon two principal grounds:

(1) That oleomargarine is a newly invented or discovered article, and that each state has the right in the case of a newly invented or discovered food product to determine for

by the importer to the consumer, and that in the cases under consideration the packages were not wholesale original packages and their sale amounted to a mere retail trade.

Upon the first ground for sustaining the conviction in these cases the argument upon the part of the commonwealth runs somewhat as follows: It may be admitted that actually pure oleomargarine is not dangerous to the public health, but whether it be pure depends upon the method of its manufacture, and its purity cannot be ascertained by any superficial examination, and any certain and effective supervision of the method of its manufacture is impossible. It is manufactured to imitate in its appearance butter, with a view to deceiving the ultimate consumer as to its character, and this deception cannot be avoided by coverings, labels, or marks upon the product; the legislature of Pennsylvania was therefore so far justified in protecting its citizens against oleomargarine by prohibiting its sale; that the legislation in question does not discriminate in favor of the citizens of Pennsylvania or in any manner against any particular state or any particular manufacturer of the article, and, as there is nothing in the case tending to prove the contrary, it must be assumed that the legislation was enacted in good faith for the protection of the health of the citizens and for the prevention of deception, and as such legislation did not hamper the actual transportation of merchandise, the statute must be held to be within the power of the legislature to enact, and is therefore valid; at all events,

the state has a right in cases of newly invent- sioner of Internal Revenue is to decide in ed food products to determine for its citizens such cases as to the taxation, and his decithe question whether they are wholesome and sion is to be final. The Commissioner is also nondeceptive, and that oleomargarine is one empowered to decide "whether any substance of that class of products and is necessarily made in imitation or semblance of butter, subject to the right of the state, either to and intended for human consumption, conregulate or absolutely to prohibit its sale. tains ingredients deleterious to the public In the examination of this subject the first health; but in case of doubt or contest his question to be considered is whether oleomar- decisions in this class of cases may be apgarine is an article of commerce? No affirm-pealed from to a board hereby constituted for ative evidence from witnesses called to the stand and speaking directly to that subject [8] is found in the record. *We must determine the question with reference to those facts which are so well and universally known that courts will take notice of them without particular proof being adduced in regard to them, and also by reference to those dealings of the commercial world which are of like notoriety.

the purpose, composed of the surgeon general of the army, the surgeon general of the navy and the commissioner of agriculture, and the decisions of this board shall be final in the premises." Provision is also made for the removal of oleomargarine from the place of its manufacture for export to a foreign country without payment of tax or affixing of stamps thereto, and there is a penalty denounced against any person engaged in car

This act shows that Congress at the time of its passage in 1886 recognized the article as a proper subject of taxation and as one which was the subject of traffic and of exportation to foreign countries and of im

facture was recognized as a lawful pursuit, and taxation was levied upon the manufacturer of the article, upon the wholesale and retail dealers therein, and also upon the article itself.

Treasury, which show that the tax receipts from its manufacture and sale in the United States under the act above mentioned during the nine years, beginning with 1887, amounted to over $10,000,000.

Any legislation of Congress upon the sub-rying on the business of oleomargarine who ject must, of course, be regarded by this court should defraud or attempt to defraud the as a fact of the first importance. If Congress United States of the tax. has affirmatively pronounced the article to be a proper subject of commerce, we should rightly be influenced by that declaration. By reference to the statutes we discover that Congress in 1886 passed "An Act Defining Butter, also Imposing a Tax upon and Regu-portation from such countries. Its manulating the Manufacture, Sale, Importation, and Exportation of Oleomargarine." 24 Stat. at L. 209, chap. 840. In that statute we find that Congress has given a definition of the meaning of oleomargarine and has imposed a special tax on the manufacturers of the As to the extent of the manufacture and article, on wholesale dealers and upon retail its commercial nature, it is not improper to dealers therein, and the provisions of the Re-refer to the reports of the Secretary of the vised Statutes in relation to special taxes are, so far as applicable, made to extend to the special taxes imposed by the 3d section of the act, and to the persons upon whom they are imposed. Manufacturers are required to file with the proper collector of internal reve- When we come to an inquiry as to the nue such notices, and to keep such books and properties of oleomargarine and of what the conduct their business under such supervision substance is composed, we find that answers as the Commissioner of Internal Revenue, to such inquiries are to be found in the vawith the approval of the Secretary of therious encyclopædias of the day, and in the e [10] Treasury, may by regulation require. Pro- official reports of the commissioner of agrivision is made for the packing of oleomargar- culture and in the legal reports of cases actine by the manufacturer in packages con-ually decided in the courts of the country. taining not less than 10 pounds and marked In brief, every intelligent man knows its as prescribed in the act, and it provides that general nature, and that it is prepared as an all sales made by manufacturers of oleomar- article of food, and is dealt in as such to a garine and wholesale dealers in oleomargar- large extent throughout this country and in ine shall be in the original stamped pack-Europe. ages. A tax of 2 cents per pound is laid Upon reference to the Encyclopædia Britupon oleomargarine to be paid by the manu-annica it is said that "pure oleomargarine facturer, and the tax levied is to be repre- butter is said to contain every element that sented by coupon stamps. Oleomargarine enters into cream butter, and to keep pure imported from foreign countries is taxed in much longer; but there is the defect of not addition to the import duty imposed on the knowing when it is pure or what injurious same an internal revenue tax of 15 cents per ingredients, or objectionable processes, may be pound. Provision is made for warehousing, used in its manufacture by irresponsible and a penalty imposed for selling the oleo- parties." The article also says: "We append a margarine thus imported if not properly comparative analysis of natural and artificial [9] stamped. Provision is *also made for the ap- butter, which shows that, when properly pointment of an analytical chemist and mi-made, the latter is a wholesome and satiscroscopist by the Secretary of the Treasury, factory substitute for the former." and such chemist or microscopist may examine the different substances which may be submitted in contested cases, and the Commis

There is contained in the 17th volume of the Encyclopædia Britannica an extract from a report by the secretary of the British em


bassy at Washington, in 1880, describing the Inent French scientist who had been employed
method of obtaining oleomargarine oil.
This shows the article was then well known.
In Ex parte Scott and others, the circuit
court for the eastern district of Virginia
(66 Fed. Rep. 45), speaking by Hughes, dis-
trict judge, said: "It is a fact of common
knowledge that oleomargarine has been sub-
jected to the severest scientific scrutiny, and
has been adopted by every leading govern-
ment in Europe as well as America, for use by
their armies and navies. Though not origi-
nally invented by us, it is a gift of American
enterprise and progressive invention to the
world. It has become one of the conspicuous
articles of interstate commerce, and furnishes
a large income to the general government
annually... It is entering rapidly into
domestic use and the trade in oleomargarine
has become large and important. The atten-
tion of the national government has been at-
tracted to it as a source of revenue.
Provincial prejudice against this now staple
article of commerce is natural, but a city of
the size and prospects of Norfolk as a world's
entrepot ought not to be foremost in mani-
festing such a prejudice."

by the French government to devise a sub-
stitute for butter." This extract from the
opinion in the New York case, speaking of
the testimony given before the trial judge, is
not quoted for the purpose of proving the
facts therein stated, but for the purpose of
showing that as long ago as the time when [12]
that case was decided-June, 1885—the ar-
ticle was then well known as an article of
food, and manufactured as a substitute for
butter, and we may notice from some of the
histories of the article the fact (which is
stated in the opinion) that it was first de-
vised as long ago as 1872 or 1873 by a French
gentleman who had been employed by the
French government to devise a substitute for
butter. The article is a subject of export,
and is largely used in foreign countries.
Upon all these facts we think it apparent that
oleomargarine has become a proper subject
of commerce among the states and with for-
eign nations.

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such police power does not include the total exclusion even of an article of food.

ticle of food was not a rightful exercise of the police power of the state if the inspection prescribed were of such a character or if it were burdened with such conditions as would wholly prevent the introduction of the sound article from other states. This was held in relation to the slaughter of animals whose meat was to be sold as food in the state passing the so-called inspection law. The principle was affirmed in Brimmer v. Rebman, 138 U. S. 78 [34: 862, 3 Inters. Com. Rep. 485], and in Scott v. Donald, 165 U. S. 58, 97 [41: 632, 644].

The general rule to be deduced from the decisions of this court is that a lawful article of commerce cannot be wholly excluded from importation into a state from another state *In People v. Marx, 99 N. Y. 377 [52 Am. where it was manufactured or grown. A Rep. 34], which was a prosecution under the state has power to regulate the introduction New York statute (chap. 202, Laws of 1884) of any article, including a food product, so as prohibiting the manufacture or sale of oleo-to insure purity of the article imported, but margarine, the court of appeals of New York held the act unconstitutional. It appears from the opinion that on the trial of that ac- In Minnesota v. Barber, 136 U. S. 313 tion on the part of the defendant "it was [34: 455, 3 Inters. Com. Rep. 185], it was proved by distinguished chemists that oleo-held that an inspection law relating to an armargarine was composed of the same elements as dairy butter. That the only difference between them was that it contained a smaller proportion of fatty substance known as butterine. That this butterine exists in dairy butter only in a small proportion-from three to six per cent. That it exists in no other substance than butter made from milk and it is introduced into oleomargarine butter by adding to oleomargarine stock some milk, cream, or butter, and churning, and when this is done it has all the elements of natural butter, but there must always be a smaller percentage of butterine in the manufactured Is the rule altered in a case where the inproduct than in butter made from milk. The spection or analysis of the article to be imonly effect of the butterine is to give flavor to ported is somewhat difficult and burdensome? the butter, having nothing to do with its Can the pure and healthy food product be wholesomeness. That the oleaginous sub- totally excluded on that account? No case stances in the oleomargarine are substantially has gone to that extent in this court. The identical with those produced from milk or nearest approach to it was the case of Peirce cream. Professor Chandler testified that the v. New Hampshire, 46 U. S. 5 How. 504 only difference between the two articles was [12: 256], involving the importation of intoxthat dairy butter had more butterine. That icating liquors. But in Leisy v. Hardin, 135 oleomargarine contained not over 1 per cent U. S. 100 [34: 128, 3 Inters. Com. Rep. 36], of that substance, while dairy butter might the New Hampshire case was overruled, contain four or five per cent, and that if four and it was stated by the present Chief Jusor five per cent of butterine were added to the tice, in speaking for the court, that "what- [13] oleomargarine, there would be no difference; ever our individual views may be as to the it would be butter; irrespective of the deleterious or dangerous qualities of parsources, they would be the same substances. ticular articles, we cannot hold that any According to the testimony of Professor Mor- articles which Congress recognizes as subton, whose statement was not controverted or jects of interstate commerce are not such, or questioned, oleomargarine, so far from being that whatever are thus recognized can be conan article devised for purposes of deception in trolled by state laws amounting to regulatrade, was devised in 1872 or 1873 by an emi-tions, while they retain that character; al

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