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tion upon the subject, and he claimed that | cial verdict in this case shows what the court

it excluded any legislation on the same subject 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 Kevised Statutes was referred to in the act, it was held that the section was incorporated in the act for the purpose of making it clear that Congress did not intend to restrict the power of the states over the subject of the manufacture and sale of oleomargarine within their respective limits.

*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-
nary 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 Pennsyl-
vania, said package being one of a number
of similar packages forming one consignment
shipped by the said company to the said de-
fendant." 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 pur-
chaser, and he understood that he was buy-
ing oleomargarine and as soon as the tub was
purchased it was removed unbroken from
the place of sale by the purchaser thereof.
Upon the facts found in the special ver-

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 thestates. 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 manufacture 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 eminent

ly proper, therefore, and should be sustained, 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

the several states under such lawful regulations 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 this state to establish a 'store' for the sale of

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.

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

Nor do we think the conviction can be sustained upon the ground taken in the opin ion of the supreme court of Pennsylvania.

The question in regard to packing the oleomargarine first arose in the case of Commonwealth [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 would be justified in finding that the mode of putting up the package was not adapted to meet the requirements of actual interstate commerce, but the requirements of an unlawful intrastate retail trade. But the spe

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, there-
fore, a Pennsylvania store, selling its stock
of goods to its customers for their consump-
tion, from its own shelves; and unless these
goods are in such original packages as the
laws of the United States must protect, the
sale is clearly punishable under our statute.
is whether [21]

The *question

a package intended and used for the supply
of the retail trade is an 'original package,'
within the protection of the interstate com-
merce cases."

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.

In the leading case of Gibbons v. Ogden, 22 U. S. 9 Wheat. 1, 193 [6:23, 69], it was said by Marshall, Chief Justice, that the commerce clause extends to every species of commercial intercourse among the several states, 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.

in speaking for the court, said: "Under our
decision in Bowman v. Chicago & N. ۱۳. 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
to sell it, by which act alone it would become
mingled in the common mass of property with-
in the state. Up to that point of time, we hold
that, in the absence of congressional permis-
sion to do so, the state had no power to inter-
fere by seizure or any other action, in prohi-
bition of importation and sale by the foreign
or nonresident importer." The right of the
state to prohibit the sale in the original pack-
age was denied in the absence of any law of
Congress upon the subject permitting the
state to prohibit such sale. There is no such [23]
law of Congress relating to articles like oleo-

InBrown v. State of Maryland, 25 U. S. 12 Wheat. 419 [6: 678], it was stated that this power to regulate commerce could not be stopped at the external boundary of a state, but must enter its interior, and that if the power reached the interior of the state and might be there exercised, it must be capable of authorizing the sale of those articles which it introduces. It was said that "sale is the object of importation, and is an essential ingredient of that intercourse, of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence 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."

Years after the decision of the last case and after many other decisions had been made upon the general subject of the commerce clause, this court in Bowman v. Chicago & Northwestern Railway Company, 125 U. S. 465 [31: 700, 1 Inters. Com. Rep. 823], held that the state could not for the purpose of protecting its people against the evils of

above cited.

Subsequent to the decision in the Leisy Case and on the 8th of August, 1890 (26 Stat. at L. 313, chap. 728), Congress passed an act commonly known as the Wilson act, which provided that upon the arrival in any state or territory of the intoxicating liquors transported therein they should be subject to 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

power conferred upon Congress. Re Rahrer, Petitioner [Wilkerson v. Rahrer] 140 U. S. 545 [35:572]. In the absence of Congressional legislation, therefore, the right to import a lawful article of commerce from one state to another continues until a sale in the original package in which the article was introduced into the state.

But whether the right to transport an article of commerce from one state to another included by necessary implication the right of the consignee to sell it in unbroken packages at the place where the transportation terminated was not decided. In Brown v. Maryland, supra, it was said that the right of transportation did include the right to sell, as to foreign commerce, and in the course of his opinThe case of Emert v. Missouri, 156 U. S. ion Chief Justice Marshall said that the con- 296[39: 430, 5 Inters. Com. Rep. 68], involved clusion would be the same in the case of com- the validity of a statute of Missouri providing merce among the states; but as it was not that peddlers of goods, going from place to necessary to express any opinion upon the place within the state to sell them, should point, it was simply held in the Bowman Case take out and pay for licenses. The statute that the power to regulate or forbid the sale was held not to violate the commerce clause of a commodity after it had been brought of the Constitution of the United States beinto a state does not carry with it the right cause it made no discrimination between resiand power to prevent its introduction by transportation from another state.

The case of Leisy v. Hardin, 135 U. S. 100 [34: 128, 3 Inters. Com. Rep. 36], went a step further than the Bowman Case, and held that the importer had the right to sell in a state into which he brought the article from another state in the original packages or kegs, unbroken and unopened, notwithstanding a statute of the state prohibiting the sale of such articles except for the purposes therein named and under a license from the state.

dents or products of the state and those of other states. The conviction of the plaintiff in error for a violation of the statute was upheld, although he was an agent of a corporation which manufactured the property in another state and sent it to him to sell as its agent. It was held to be within the police power of the state to regulate the occupation of itinerant peddlers and to compel them to obtain licenses to practice their trade, and such power had been exerted from the earliest 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 noxed 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 privilege of selling in a peculiar way, as a peddler, which was licensed in the Emert Case, and such a person, it was therein decided, could properly be made to pay a license for selling in that way an article manufactured 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.

The Emert Case does not overrule or affect the cases above cited as to the right to sell. We are not aware of any such distinction as is attempted to be drawn by the court below in these cases between a sale at wholesale to individuals engaged in the wholesale

cur in this judgment, and will state, as briefly
as may be, some of the grounds of our dissent.
The question at issue appears to us to be so
completely covered by two or three recent
judgments of this court, as to make it un-
necessary to cite other authorities.

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 or-
der and prosperity, is a power originally and
always belonging to the states, not surren-
dered by them to the general government,
nor directly restrained by the Constitution of
the United States, and essentially exclusive.
And this court has uniformly recognized

trade or one at retail to the consumer. How state legislation, legitimately for police pur

small may be an original package it is not necessary to here determine. We do say that a sale of a ten-pound package of oleomargarine, manufactured, packed, marked, imported and sold under the circumstances set forth in detail in the special verdict, was a valid sale, 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 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 wholesale dealers in the article, provided he sells them in original packages. This does not interfere with the acknowledged

poses, as not, in the sense of the Constitu-
tion, necessarily infringing upon any right
which has been confided, expressly or by im-
plication, to the national government."
Rahrer's Case [Wilkerson v. Rahrer], 140
U. S. 545, 554 [35:572, 574].

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 com-
pound 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 un-
adulterated 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.

In Powell v. Pennsylvania, 127 U. S. 678 [32: 253], the defendant was indicted, under this very statute, for selling, and for having in his possession with intent to sell, oleo

right of the state to use such means as may be margarine manufactured in Pennsylvania be-
necessary 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, whole-
with 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 busi-
of Pennsylvania, under consideration, to the ness, and the value of which would be de-
extent that it prohibits the introduction of stroyed if he were prevented from continu-
oleomargarine from another state and its sale ing it. The evidence offered was excluded,
in the original package, as described in the and the defendant was convicted; and his
special verdict, is invalid. The judgments conviction was affirmed by the supreme court
are therefore reversed, and the cases remand- of Pennsylvania, and by this court upon writ
ed to the supreme court of Pennsylvania for of error.
further proceedings not inconsistent with
this opinion.

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

Mr. Justice Harlan and myself cannot con

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 possession for sale were in fact wholesome

i

and nutritious, proceeded as follows: "It is establishes that the statute in question is a

entirely consistent with that offer, that many, indeed, that most, kinds of oleomargarine butter in the market contain ingredients that are or may become injurious to health. The court cannot say, from anything of which it may take judicial cognizance, that such is not the fact. Under the circumstances disclosed in the record, and in obedience to settled rules of constitutional construction, it

27 must be assumed that *such is the fact. Whether the manufacture of oleomargarine or imitation butter, of the kind described in the statute, is, or may be, conducted in such a way, or with such skill and secrecy, as to baffle ordinary inspection, or whether it involves such danger to the public health as to require, for the protection of the people, the entire suppression of the business, rather than its regulation in such manner as to permit the manufacture and sale of articles of that class that do not contain noxious ingredients, are questions of fact and of public policy, which belong to the legislative department to determine. And as it does not appear upon the face of the statute, or from any facts of which the court must take judicial cognizance, that it infringes rights secured by the fundamental law, the legislative determination of those questions is conclusive upon the courts. It is not a part of their functions to conduct investigations of facts entering into questions of public policy merely, and to sustain or frustrate the legislative will, embodied in statutes, as they may happen to approve or disapprove its de termination of such questions.

[28]

The

legislature of Pennsylvania, upon the fullest investigation, as we must conclusively presume, and upon reasonable grounds, as must be assumed from the record, has determined that the prohibition of the sale, or offering for sale, or having in possession to sell, for purposes of food, of any article manufactured out of oleaginous substances or compounds, other than those produced from unadulterated milk, or cream from unadulterated milk, to take the place of butter produced from unadulterated milk, or cream from unadulterated milk, will promote the public health, and prevent frauds in the sale of such articles." 127 U. S. 684-686 [32:256, 257].

That decision appears to us to establish that the courts cannot take judicial cognizance, without proof, either that oleomargar 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.

*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 occasion to offer evidence to prove the contrary.

The decision in Powell's Case conclusively

constitutional exercise of the police power of the state, unless it can be considered as affected by the power to regulate commerce, as granted to or exercised by Congress under the Constitution of the United States.

The act of Congress of August 2, 1886, chap. 840, imposing internal revenue taxes upon manufacturers and sellers of oleomargarine, and defining what shall be considered as oleomargarine for the purposes of that act, expressly provides, in § 3, that § 3243 of the Revised Statutes, so far as applicable, shall apply to such taxes and persons. 24 Stat. at L. 209. By § 3243 of the Revised Statutes, "the payment of any tax imposed by the internal revenue laws for carrying on any trade or business shall not be held to exempt any person from any penalty or punishment provided by the laws of any state for carrying on the same within such state, or in any manner to authorize the commencement or continuance of such trade or business contrary to the laws of such state or in places prohibited by municipal law; nor shall the payment of any such tax be held to prohibit any state from placing a duty or tax on the same trade or business, for state or other purposes."

As was said by this court in Plumley v. Massachusetts, 155 U. S. 461 [39:223]: "It is manifest that this section was incorporated into the act of August 2, 1886, to make it clear that Congress had no purpose to restrict the power of the states over the subject of the manufacture and sale of oleomargarine within their respective limits. The taxes prescribed by that act were 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 in any state which lawfully forbade such manufacture or sale, or to disregard any regulations which a state might lawfully prescribe in reference to that article [29]

Nor was the act of Congress relating to oleomargarine intended as a regulation of commerce among the states. Its provisions do not have special application to the transfer of oleomargarine from one state of the Union to another. They relieve the manufacturer or seller, if he conforms to the regulations prescribed by Congress or by the Commissioner of Internal Revenue under the authority conferred upon him in that regard, from penalty or punishment so far as the general government is concerned, but they do not interfere 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 government, it is the protection of the people against fraud and deception in the sale of food products. Such legislation may, indeed, indirectly 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 2. A state law which necessitates and provides

inconsistent with the power of Congress to regulate commerce among the states." 155 U. S. 472 [39:227].

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 com

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, impos- 3. In whatever language a statute may be

merce.

framed, its purpose must be determined by its natural and reasonable effect.

ing 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

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 same," was constitutional and valid, as 5. The statute of New Hampshire making it.

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.

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.

The necessary result of the decisions in Powell's Case and in Plumley's Case and of the reasoning upon which those decisions

[No. 17.]

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

The facts are stated in the opinion.

[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, IN ERROR to the Supreme Court of the without violating the provisions of the Con- State of New Hampshire to review the judgstitution and laws of the United States con- ment of that court sustaining a conviction cerning interstate commerce, inake 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 satis fied 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, of 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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STATE OF NEW HAMPSHIRE.
(See S. C. Reporter's ed. 30-34.)

Power of a state-purpose of a statutere
striction of commerce-sale of oleomargar
ine-statute of New Hampshire.

1 Where the state has not the power to absolutely prohibit the sale of an article of commerce, 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.

Messrs. William D. Guthrie, Richard C. Dale, Henry R. Edmunds, and Albert H. 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. Pennsylva 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, Public Statutes 1891. The two sections are set forth in the margin.t

† Sec. 19. It shall be unlawful to sell, offer for sale, or keep in possession with intent to sell, in this state, any substance or compound 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 Adulterated butter," "Oleomargarine," "Imitation cheese" as the case may be, In plain Roman letters not less than one half inch in length, and so placed and made or attached

or

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