tion upon the subject, and he claimed that
it excluded any legislation on the same sub-
ject by the state, but it was held that there
was no ground to suppose that Congress in-
tended by that enactment to interfere with
the exercise by the states of any authority
they could rightfully exercise over the sale
within their respective limits of the article
defined as oleomargarine, and, as § 3243 of
the Revised Statutes was referred to in the
act, it was held that the section was incor-nary course of actual commerce, and the said
porated in the act for the purpose of making
it clear that Congress did not intend to re-
strict the power of the states over the sub-
ject of the manufacture and sale of oleomar-
garine within their respective limits.

cial verdict in this case shows what the court
*said was lacking in the case just cited, for it [20]
appears in the verdict that the package in
which the oleomargarine was sold was an
original package, as required by the act of
Congress, and was of such "form, size, and
weight as is used by producers or shippers
for the purpose of securing both convenience
in handling and security in transportation
of merchandise between dealers in the ordi-

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." It also appears from the special verdict that the defendant was engaged in business in the city of Philadelphia as a wholesale dealer in oleomargarine as agent for the manufacturer; that he had paid the special tax upon the business as a wholesale dealer, and had otherwise complied with all the requirements of the act of Congress, and the article was openly sold as oleomargarine, and that fact was made known to the purchaser, and he understood that he was buying oleomargarine and as soon as the tub was purchased it was removed unbroken from the place of sale by the purchaser thereof.

The taxes prescribed by that act were held to have been imposed for national purposes, and their imposition did not give authority to those who paid them to engage in the manufacture or sale of oleomargarine within any [19] state which lawfully *forbade such manufacture or sale, or to disregard any regulations which a state might lawfully prescribe in reference to that article. It was also held that the act of Congress was not intended as a regulation of commerce among the states. By the reference which we have already made to this statute we have not intended to claim that it was a regulation of commerce among the states further than the provisions of the act distinctly applied to its manufac- Upon the facts found in the special verture and sale. We refer to it for the purpose dict, it is said in the opinion of the court beof showing that the article itself was therein low (170 Pa. 291 [30 L. R. A. 396]) that "it recognized as a proper and lawful subject of is very clear that this sale was a violation commerce with foreign nations and among of our statute. The conviction was eminentthe several states under such lawful regula-ly proper, therefore, and should be sustained, tions as the state might choose to impose. We think that what Congress thus taxes and recognizes as a proper subject of commerce cannot be totally excluded from any particular state simply because the state may choose to decide that, for the purpose of preventing the importation of an impure or adulterated article, it will not permit the introduction of the pure and unadulterated article within its borders upon any terms whatever.

unless the sale can be justified as one made of an original package within the proper meaning of that phrase. The nonresidence of the manufacturer does not play any important part in this case, for he comes into this state to establish a 'store' for the sale of his goods, pays the license exacted by the revenue laws, and puts his agent in charge of the sale of his goods from his store, not to the trade, but to customers. We have, therefore, a Pennsylvania store, selling its stock of goods to its customers for their consumption, from its own shelves; and unless these Nor do we think the conviction can be goods are in such original packages as the sustained upon the ground taken in the opin-laws of the United States must protect, the sale is clearly punishable under our statute. The question is whether [21] a package intended and used for the supply of the retail trade is an 'original package,' within the protection of the interstate com

We are therefore of opinion that the first ground for upholding the conviction in these cases cannot be sustained.

ion of the supreme court of Pennsylvania.

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merce cases.

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What are the rights of one engaged in interstate commerce in regard to the introduction of a lawful article of commerce into a state? Those rights have been declared by various decisions of this court, some of them made at a very early date, and coming down to the present time.

The question in regard to packing the oleomargarine first arose in the case of Common wealth [Philadelphia County] v. Schollenberger, 156 Pa. 201 [22 L. R. A. 155]. The defendant in that case was an agent of a nonresident manufacturer of oleomargarine, and he sold at his store in Pennsylvania a package of the article weighing eighty pounds, made and stamped and branded in Rhode Island for use as an article of food. It was held that the case did not show that the sales were made in the original package of commerce. And it was said that a jury In the leading case of Gibbons v. Ogden, would be justified in finding that the mode 22 U. S. 9 Wheat. 1, 193 [6: 23, 69], it was of putting up the package was not adapted said by Marshall, Chief Justice, that the comto meet the requirements of actual interstate merce clause extends to every species of comcommerce, but the requirements of an un-mercial intercourse among the several states, lawful intrastate retail trade. But the spe- and that it does not stop at the external

boundary of a state, and that this power to regulate included the power to prescribe the rule by which commerce is to be governed, and it was held that navigation was included within that power.

"Under our

in speaking for the court, said: decision in Bowman v. Chicago & N. W. R. R. Co. supra, they had the right to import this beer into that state, and in the view which we have expressed they had the right InBrown v. State of Maryland, 25 U. S. to sell it, by which act alone it would become 12 Wheat. 419 [6: 678], it was stated that mingled in the common mass of property withthis power to regulate commerce could not in the state. Up to that point of time, we hold be stopped at the external boundary of a that, in the absence of congressional permisstate, but must enter its interior, and that if sion to do so, the state had no power to interthe power reached the interior of the state fere by seizure or any other action, in prohiand might be there exercised, it must be ca- bition of importation and sale by the foreign pable of authorizing the sale of those articles or nonresident importer." The right of the which it introduces. It was said that "sale state to prohibit the sale in the original packis the object of importation, and is an essen- age was denied in the absence of any law of tial ingredient of that intercourse, of which Congress upon the subject permitting the importation constitutes a part. It is as essen- state to prohibit such sale. There is no such [23] tial an ingredient,as indispensable to the exist-law of Congress relating to articles like oleoence of the entire thing, then, as importation margarine. Such articles are therefore in itself. It must be considered as a component like condition as were the liquors in the case part of the power to regulate commerce." above cited.

Years after the decision of the last case Subsequent to the decision in the Leisy and after many other decisions had been Case and on the 8th of August, 1890 (26 made upon the general subject of the com- Stat. at L. 313, chap. 728), Congress passed merce clause, this court in Bowman v. Chica- an act commonly known as the Wilson act, go & Northwestern Railway Company, 125 which provided that upon the arrival in any U. S. 465 [31: 700, 1 Inters. Com. Rep. 823], state or territory of the intoxicating liquors held that the state could not for the purpose transported therein they should be subject to of protecting its people against the evils of the operation and effect of the laws of the intemperance pass an act which regulated state or territory enacted in the exercise commerce by forbidding any common carrier of its police power to the same extent and in to bring intoxicating liquors into the state the same manner as though such liquors had from another state or territory, excepting been produced in such state or territory, and upon conditions mentioned in the act. Such that they should not be exempt therefrom by act was held to be repugnant to the Constitu- reason of being introduced therein in original tion of the United States as affecting inter-packages or otherwise. This was held to be [22] state commerce in an essential and vital part. a valid and constitutional exercise of the But whether the right to transport an article power conferred upon Congress. Re Rahrer, of commerce from one state to another includ-Petitioner [Wilkerson v. Rahrer] 140 U. S. ed by necessary implication the right of the 545 [35: 572]. In the absence of Congres consignee to sell it in unbroken packages at sional legislation, therefore, the right to imthe place where the transportation terminated port a lawful article of commerce from one was not decided. In Brown v. Maryland, su- state to another continues until a sale in the pra, it was said that the right of transporta-original package in which the article was intion did include the right to sell, as to for- troduced into the state. eign commerce, and in the course of his opinion Chief Justice Marshall said that the conclusion would be the same in the case of commerce among the states; but as it was not necessary to express any opinion upon the point, it was simply held in the Bowman Case that the power to regulate or forbid the sale of a commodity after it had been brought into a state does not carry with it the right and power to prevent its introduction by transportation from another state.

The case of Emert v. Missouri, 156 U. S. 296[39: 430, 5 Inters. Com. Rep. 68], involved the validity of a statute of Missouri providing that peddlers of goods, going from place to place within the state to sell them, should take out and pay for licenses. The statute was held not to violate the commerce clause of the Constitution of the United States because it made no discrimination between residents or products of the state and those of other states. The conviction of the plaintiff The case of Leisy v. Hardin, 135 U. S. 100 in error for a violation of the statute was up[34: 128, 3 Inters. Com. Rep. 36], went a held, although he was an agent of a corporastep further than the Bowman Case, and held tion which manufactured the property in anthat the importer had the right to sell in a other state and sent it to him to sell as its state into which he brought the article from agent. It was held to be within the police another state in the original packages or power of the state to regulate the occupation kegs, unbroken and unopened, notwithstand-of itinerant peddlers and to compel them to ing a statute of the state prohibiting the sale obtain licenses to practice their trade, and of such articles except for the purposes there- such power had been exerted from the earliest in named and under a license from the state. times. The remark of Chief Justice Marshall Such a statute was held to be unconstitution in Brown v. Maryland, supra, was quoted, al as repugnant to the clause of the Constitu- that "the right of sale may very well be antion granting power to Congress to regulate nexed to importation, without annexing to commerce with foreign nations and among it also the privilege of using the officers lithe several states. Mr. Chief Justice Fuller, censed by the *state to make sales in a pecul- [24]

iar way." Page 313 [39: 434]. It was the | cur in this judgment, and will state, as briefly privilege of selling in a peculiar way, as a as may be, some of the grounds of our dissent. peddler, which was licensed in the Emert The question at issue appears to us to be so Case, and such a person, it was therein de- completely covered by two or three recent cided, could properly be made to pay a li- judgments of this court, as to make it uncense for selling in that way an article manu- necessary to cite other authorities. factured in another state and sent into Missouri, as well as for selling in the same way articles manufactured in Missouri, so long as there was no discrimination between the two classes of goods.

As has been said by this court, speaking by the present chief justice: "The power of the state to impose restraints and burdens upon persons and property, in conservation and promotion of the public health, good orThe Emert Case does not overrule or affect der and prosperity, is a power originally and the cases above cited as to the right to sell. always belonging to the states, not surrenWe are not aware of any such distinction|dered by them to the general government, as is attempted to be drawn by the court be- nor directly restrained by the Constitution of low in these cases between a sale at whole- the United States, and essentially exclusive. sale to individuals engaged in the wholesale And this court has uniformly recognized trade or one at retail to the consumer. How state legislation, legitimately for police pursmall may be an original package it is not poses, as not, in the sense of the Constitunecessary to here determine. We do say that tion, necessarily infringing upon any right a sale of a ten-pound package of oleomargar-which has been confided, expressly or by imine, manufactured, packed, marked, imported plication, to the national government." and sold under the circumstances set forth in Rahrer's Case [Wilkerson v. Rahrer], 140 detail in the special verdict, was a valid sale, U. S. 545, 554 [35: 572, 574]. although to a person who was himself a consumer. We do not say or intimate that this right of sale extended beyond the first sale by the importer after its arrival within the state. Waring v. The Mayor [Waring v. Mobile], 75 U. S. 8 Wall. 110-122 [19: 342-346]. The importer had the right to sell not only personally, but he had the right to employ an agent to sell for him. Otherwise his right to sell would be substantially valueless, for it cannot be supposed that he would be personally engaged in the sale of every original package sent to the different states in the Union. Having the right to sell through his agent, a sale thus effected is valid.

The statute of Pennsylvania of May 21, 1885, under which the plaintiffs in error were indicted and convicted for selling in Pennsylvania oleomargarine in the original packages *in which it had been sent to them [26] from other states, provides that "no person, firm, or corporate body shall manufacture out of any oleaginous substance or any compound of the same, other than that produced from unadulterated milk, or 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." Penn. Stat. 1885, chap. 25.

The right of the importer to sell cannot depend upon whether the original package is suitable for retail trade or not. His right to sell is the same, whether to consumers or to In Powell v. Pennsylvania, 127 U. S. 678 wholesale dealers in the article, provided he [32: 253], the defendant was indicted, under sells them in original packages. This this very statute, for selling, and for having does not interfere with the acknowledged in his possession with intent to sell, oleoright of the state to use such means as may be margarine manufactured in Pennsylvania benecessary to prevent the introduction of an fore the passage of the statute; and, at the adulterated article, and for that purpose to trial, in order to show that the statute was inspect and test the article introduced, pro- not a lawful exercise of the police power of vided the state law does really inspect and the state, offered to prove that the articles [25] does not substantially *prohibit the introduc- which he sold, and those which he had in tion of the pure article and thereby interfere his possession for sale, were, in fact, wholewith interstate commerce. It cannot, for the some and nutritious, and were part of a large purpose of preventing the introduction of an quantity manufactured by him before the impure or adulterated article, absolutely pro- passage of the statute, by the use of land, hibit the introduction of that which is pure buildings, and machinery, purchased by him and wholesome. The act of the legislature at great expense for carrying on this busiof Pennsylvania, under consideration, to the extent that it prohibits the introduction of oleomargarine from another state and its sale in the original package, as described in the special verdict, is invalid. The judgments are therefore reversed, and the cases remanded to the supreme court of Pennsylvania for further proceedings not inconsistent with this opinion.

ness, and the value of which would be destroyed if he were prevented from continuing it. The evidence offered was excluded, and the defendant was convicted; and his conviction was affirmed by the supreme court of Pennsylvania, and by this court upon writ of error."

This court in its opinion upholding this statute as a constitutional and valid exercise of the police power of the state, after mentioning the defendant's offer to prove that the articles which he sold or had in his Mr. Justice Harlan and myself cannot con-possession for sale were in fact wholesome

Mr. Justice Gray, with whom concurred Mr. Justice Harlan, dissenting:

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and nutritious, proceeded as follows: "It is establishes that the statute in question is a entirely consistent with that offer, that many, constitutional exercise of the police power of indeed, that most, kinds of oleomargarine the state, unless it can be considered as afbutter in the market contain ingredients that fected by the power to regulate commerce, are or may become injurious to health. The as granted to or exercised by Congress under court cannot say, from anything of which it the Constitution of the United States. may take judicial cognizance, that such is The act of Congress of August 2, 1886, chap. not the fact. Under the circumstances dis- 840, imposing internal revenue taxes upon closed in the record, and in obedience to set-manufacturers and sellers of oleomargarine, tled rules of constitutional construction, it and defining what shall be considered as oleo27 must be assumed that *such is the fact. margarine for the purposes of that act, exWhether the manufacture of oleomargarine pressly provides, in § 3, that § 3243 of the Reor imitation butter, of the kind described in vised Statutes, so far as applicable, shall apthe statute, is, or may be, conducted in such ply to such taxes and persons. 24 Stat. at L. a way, or with such skill and secrecy, as to 209. By § 5243 of the Revised Statutes, "the baffle ordinary inspection, or whether it in- payment of any tax imposed by the internal volves such danger to the public health as to revenue laws for carrying on any trade or require, for the protection of the people, the business shall not be held to exempt any perentire suppression of the business, rather son from any penalty or punishment provided than its regulation in such manner as to per- by the laws of any state for carrying on the mit the manufacture and sale of articles of same within such state, or in any manner to that class that do not contain noxious in- authorize the commencement or continuance gredients, are questions of fact and of public of such trade or business contrary to the laws policy, which belong to the legislative de- of such state or in places prohibited by municpartment to determine. And as it does not ipal law; nor shall the payment of any such appear upon the face of the statute, or from tax be held to prohibit any state from placany facts of which the court must take judi- ing a duty or tax on the same trade or busicial cognizance, that it infringes rights se-ness, for state or other purposes." cured by the fundamental law, the legislative As was said by this court in Plumley v. determination of those questions is conclu-Massachusetts, 155 U. S. 461 [39:223]: "It sive upon the courts. It is not a part of is manifest that this section was incortheir functions to conduct investigations of porated into the act of August 2, 1886, to facts entering into questions of public policy make it clear that Congress had no purpose merely, and to sustain or frustrate the leg-to restrict the power of the states over the islative will, embodied in statutes, as they subject of the manufacture and sale of oleomay happen to approve or disapprove its de-margarine within their respective limits. termination of such questions. The The taxes prescribed by that act were imposed legislature of Pennsylvania, upon the fullest for national purposes, and their imposition investigation, as we must conclusively pre- did not give authority to those who paid sume, and upon reasonable grounds, as must them to engage in the manufacture or sale of be assumed from the record, has determined oleomargarine in any state which lawfully that the prohibition of the sale, or offer- forbade such manufacture or sale, or to dising for sale, or having in possession to sell, regard any regulations which a state might for purposes of food, of any article manufact- lawfully prescribe in reference to that article [29] ured out of oleaginous substances or comNor was the act of Congress relating pounds, other than those produced from un- to oleomargarine intended as a regulation of adulterated milk, or cream from unadulter-commerce among the states. Its provisions do ated milk, to take the place of butter pro- not have special application to the transfer of duced from unadulterated milk, or cream oleomargarine from one state of the Union to from unadulterated milk, will promote the another. They relieve the manufacturer or public health, and prevent frauds in the sale seller, if he conforms to the regulations preof such articles." 127 U. S. 684-686 scribed by Congress or by the Commissioner [32: 256, 257]. of Internal Revenue under the authority conThat decision appears to us to establish ferred upon him in that regard, from penalty that the courts cannot take judicial cogni- or punishment so far as the general governzance, without proof, either that oleomargar-ment is concerned, but they do not interfere ine is wholesome or that it is unwholesome; and we are unable to perceive how judicial cognizance of such a fact can be acquired by referring to the various opinions which have found expression in scientific publications, or in testimony given in cases before other courts and between other parties. 28] *Evidence that the articles sold were wholesome and nutritious having been excluded as immaterial, when offered in defense in Powell's Case, it necessarily follows that the commonwealth in the case at bar had no oc-products. Such legislation may, indeed, incasion to offer evidence to prove the contrary.

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The decision in Powell's Case conclusively


with the exercise by the states of any authority they possess of preventing deception or fraud in the sales of property within their respective limits." 155 U. S. 466, 467 [39: 225]. "If there be any subject over which it would seem the states ought to have plenary control, and the power to legislate in respect to which it ought not to be supposed was intended to be surrendered to the general gov ernment, it is the protection of the people against fraud and deception in the sale of food

directly or incidentally affect trade in such products transported from one state to another state. But that circumstance does not


show that laws of the character alluded to are inconsistent with the power of Congress to regulate commerce among the states." 155 U. S. 472 [39: 227].

In Plumley's Case, it was accordingly adjudged by this court, affirming the judgment of the supreme judicial court of Massachusetts, that a statute of Massachusetts, imposing a penalty on the manufacture, sale, offering for sale, or having in possession with intent to sell, "any article, product, or compound made wholly or partly out of any fat, oil, or oleaginous substance or compound thereof, not produced from unadulterated milk, or cream from the same, which shall be in imitation of yellow butter produced from pure and unadulterated milk, or cream from the same," was constitutional and valid, as applied to sales in Massachusetts of oleomargarine made in another state, artificially colored so as to look like yellow butter, and imported in the packages in which it was sold.

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A state law which necessitates and provides for adulteration of an article of commerce. and enforces upon the importer the necessity of adding a foreign substance to his article, which is thereby rendered unsalable, in order that he may be permitted lawfully to import and sell it, is an unlawful restriction of commerce.

3. In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect.

4. Although under the wording of such statute the importer is permitted to sell oleomargarine freely and to any extent, provided he colors it pink, yet the permission to sell, when accompanied by the imposition of a condition which, if complied with, will effectually prevent any sale, amounts in law to a prohibition.


The statute of New Hampshire making it unlawful to sell or keep in possession, with intent to sell in said state, any oleomargarine unless it is of a pink color, when applied to oleomargarine imported into that state from another state for sale, is invalid.

[No. 17.]

Argued March 23, 24, 1898. Decided May 23, 1898.

The facts are stated in the opinion.

The necessary result of the decisions in Powell's Case and in Plumley's Case and of the reasoning upon which those decisions [30] *were founded, and by which alone they can be justified, appears to us to be that each state may, in the exercise of its police power, without violating the provisions of the Con- State of New Hampshire to review the judg IN ERROR to the Supreme Court of the stitution and laws of the United States con-ment of that court sustaining a conviction cerning interstate commerce, make such regu- of Clarence E. Collins of a violation of the lations relating to all sales of oleomargarine statute of that state prohibiting the sale of within the state, even in original packages oleomargarine unless it is of a pink color. brought from another state, as the legislature Reversed, and case remanded for further pro of the state may deem necessary to protect ceedings. the people from being induced to purchase articles, either not fit for food, or differing in nature from what they purport to be; that the questions of danger to health, and of likelihood of fraud or deception and of the preventive measures required for the protection of the people, are questions of fact and of public policy, the determination of which belongs to the legislative department, and not to the judiciary; and that, if the legislature is satisfied that oleomargarine is unwholesome, or that, in the tubs, pots, or packages in which it is commonly offered for sale, it looks so like butter that the only way to protect the people against injury to health, in the one case, or against fraud or deception, in the other, is to absolutely prohibit its sale, it is within the constitutional power of the legislature to do

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(See S. C. Reporter's ed. 30-34.)

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

No brief filed for defendant in error but Mr. John G. Johnson was for the defendant in error in Schollenberger v. Fennsylva nia, 171 U. S. 1 (ante, 49), which was argued with this case.

Mr. Justice Peckham delivered the opinion of the court:

This case comes here by virtue of a writ of error to the supreme court of the state of New Hampshire, by which we are called upon to review the judgment of that court sustaining a conviction of the plaintiff in error in the court of first instance of a violation of the public statutes of the state, prohibiting the sale of oleomargarine as a substitute for butter unless it is of a pink color. The law is to be found in §§ 19 and 20, chap. 127, Fublic Statutes 1891. The two sections are set forth in the margin.†

Power of a state-purpose of a statute re for sale, or keep in possession with intent to † Sec. 19. It shall be unlawful to sell, offer striction of commerce-sale of oleomargar-sell, in this state, any substance or compound ine-statute of New Hampshire.

1 Where the state has not the power to absolutely prohibit the sale of an article of com merce, like oleomargarine in its pure state, it has no power to provide that such article shall be colored, or rather discolored, by add ing a foreign substance to it, in the manner described in the New Hampshire statute.

made wholly or in part of fats, oils, or grease, not produced from milk or cream, in imitation of, or as a substitute for, butter or cheese, unless the same is contained in tubs, firkins, boxes, or other packages, each of which has upon it, to indicate the character of its contents, the words "Imitation cheese" as the case may be, in plain "Adulterated butter," "Oleomargarine," or Roman letters not less than one half inch in length, and so placed and made or attached

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