though, at the same time, if directly danger- | in its pure state is healthful, simply because ous in themselves, the state may take appro- such an article in the course of its manufac. priate measures to guard against injury be- ture may be adulterated by dishonest manu. fore it obtains complete jurisdiction over facturers for purposes of fraud or illegal them. To concede to a state the power to gains. The bad article may be prohibited, exclude, directly or indirectly, articles so but not the pure and healthy one. situated, without congressional permission, In the execution of its police powers we is to concede a majority of the people of a admit the right of the state to enact such state, represented in the state legislature, the legislation as it may deem proper, even in repower to regulate commercial intercourse be- gard to articles of interstate commerce, for tween the states, by determining what shall the purpose of preventing fraud or deception be its subjects, when that power was distinct- in the sale of any commodity and to the exly granted to be exercised by the people of tent that it may be fairly necessary to prethe United States, represented in Congress, vent the introduction or sale of an aduland its possession by the latter was considerated article within the limits of the state. ered essential to that more perfect union But in carrying out its purposes the state which the Constitution was adopted to cre- cannot absolutely prohibit the introduction ate."

within the state of an article of commerce To the same effect, we think, is the case of like pure oleomargarine. It has ceased to Hannibal & $1. J. Railroad Company v. Hu- be what counsel for the commonwealth has sen, 95 U. S. 465 (24:527], in which it was termed it, a newly discovered food product. said that "whatever may be the power of a An article that has been openly manufactured state over commerce that is completely inter- for nearly a quarter of a century, where the nal, it can no more prohibit or regulate that ingredients of the pure article are perfectly well which is interstate than it can that which is known and have been known for a number of with foreign nations.” The court, therefore, years, and where the general process of manuwhile conceding the right of the state to en-facture has been known *for an equal period, [15] act reasonable inspection laws to prevent the cannot truthfully be said to be a newly disimportation of diseased cattle, held the law covered product within the proper meaning of Missouri there under consideration to be of the term as here used. The time when a invalid, because it prohibited absolutely the newly discovered article ceases to be such canintroduction of Texas cattle during the time not always be definitely stated, but all will named in the act, even though they were per- admit that there does come a period when fectly healthy and sound.

the article cannot be so described. In this The court said that a state could not, un particular case we have no difficulty in holdder the cover of exerting its police powers, ing that oleomargarine has so far ceased to be substantially prohibit or burden either for a newly discovered article as that its nature, eign or interstate commerce. Reasonable and mode of manufacture, ingredients, and effect appropriate laws for the inspection of arti- upon the health are and have been for many cles, including food products, were admitted years as well known as almost any article of to be valid, but absolute prohibition of an un-food in daily use. Therefore, if we admit that adulterated, healthy, and pure article has a newly discovered article of food might be never been permitted as a remedy against wholly prohibited from being introduced the importation of that which was adulterat. within the limits of a state, while its proped and therefore unhealthy or impure.

erties. whether healthful or not, were still un[14] *We do not think the fact that the article is known, or in regard to which there might

subject to be adulterated by dishonest per still be doubt, yet this is not the case with
sons in the course of its manufacture, with oleomargarine. If properly and honestly manu-
other substances, which it is claimed may factured it is conceded to be a healthful and
in some instances become deleterious to nutritious article of food. The fact that it
health, creates the right in any state through may be adulterated does not afford a founda.
its legislature to forbid the introduction of tion to absolutely prohibit its introduction
the unadulterated article into the state. The into the state. Although the adulterated ar-
fact that the article is liable to adulteration ticle may possibly in some cases be injurious
in the course of manufacture, and that the to the health of the public, yet that does not
articles with which it may be mixed may furnish a justification for an absolute prohi.
possibly and under some circumstances bebition. A law which does thus prohibit the
deleterious to the health of those who con introduction of an article like oleomargarine
sume it, is known to us by means of various within the state is not a law which regulates
references to the subject in books and ency. or restricts the sale of articles deemed injuri.
clopædias, but there was no affirmative evious to the health of the community, but is
dence offered on the trial to prove the fact. one which prevents the introduction of a per-
From these sources of information it may be fcctly healthful commodity merely for the
admitted that oleomargarine in the course of purpose of in that way more easily prevent-
its manufacture may sometimes be adultering an adulterated and possibly injurious ar.
ated by dishonest manufacturers with arti. ticle from being introduced. We do not
cles that possibly may become injurious to think this is a fair exercise of legislative dis-
health. Conceding the fact, we yet deny the cretion when applied to the article in ques-
right of a state to absolutely prohibit the in. tion.
troduction within its borders of an article of It is claimed, mowever, that the very stat-
commerce which is not adulterated and which ute under consideration has heretofore been

171 U. S.

1 1


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held valid by this court in the case of Powell | 205], in which case it was said that it did not 5. Pennsylvania, 127 U. S. 678 [32: 253]. involve any question arising under the comThat case did not involve rights arising merce clause of the Constitution of the United under the commerce clause of the Federal States. The last cited case was followed in Constitution. The article was manufactured Kidd v. Pearson, 128 U. S. 1 [32: 346, 2 In. and sold within the state, and the question ters. Com. Rep. 232].

was one as to the police power of the state Nor is the question determined adversely (16)acting upon a subject always *within its jur to this view in the case of Plumley v. Mas.

isdiction. The plaintiff in error was convicted sachusetts, 155 U. S. 462 [39:223]. The state of selling within the commonwealth two cases ute in that

prevented the sale containing 5 pounds each of an article of food of this substance in imitation of yellow butdesigned to take the place of butter, the sale ter produced from pure unadulterated milk having taken place in the city of Harrisburg, or cream of the same, and the statute con. and it was part of a quantity manufactured tained a proviso that nothing therein should in and, as alleged, in accordance with the be "construed to prohibit the manufacture or laws of the commonwealth. The plaintiff in sale of oleomargarine in a separate and diserror claimed that the statute under which tinct form, and in such manner as will adhis conviction was had was a violation of the vise the consumer of its real character, free 14th Amendment to the Constitution of the from coloration or ingredient that causes it United States. This court held that the stat- to look like butter.” This court held that a ute did not violate any provision of that conviction under that statute for having sold amendment, and therefore held that the con- an article known as oleomargarine, not proviction was valid.

duced from unadulterated milk or cream, but The Powell Case did not and could not in- manufactured in imitation of yellow butter volve the rights of an importer under the produced from pure unadulterated milk or commerce clause. The right of a state to en- cream, was ralid. Attention was called in act laws in relation to the administration of the opinion to the fact that the statute did its internal affairs is one thing, and we right not prohibit the manufacture or sale of all of a state to prevent the introduction within oleomargarine, but only such as was colored its limits of an article of commerce is another in imitation of yellow butter produced from and a totally different thing. Legislation unadulterated milk or cream of such milk. which has its effect wholly within the state If free from coloration or ingredient that and upon products manufactured and sold caused it to look like butter, the right to sell therein might be held valid as not in violation it in a separate and distinct form and in such of any provision of the Federal Constitution, manner as would advise the consumer of the when at the same time legislation directed real character was neither restricted nor protowards pronubiting the importation within hibited. The court held that under the statthe state of the same article manufactured ute the party was only forbidden to practice outside of its limits might be regarded as ille in such matters a fraud upon the general pubgal because in violation of the rights of citi- lic; that the statute seeks to suppress false zens of other states arising under the com- pretenses and to promote fair dealing in the merce clause of that instrument.

* sale of an article of food, and that it compels [18] Referring what is said in the opinion in the sale of oleomargarine for what it really is Powell's Case to the facts upon which the case by preventing its sale for what it is not; that arose, and in regard to which the opinion was the term “commerce among the states" did based and the case decided, there is nothing not mean a recognition of a right to practice whatever inconsistent with that opinion in a fraud upon the public in the sale of an ar. holding, as we do here, that oleomargarine is (ticle even if it had become the subject of trade a legitimate subject of commerce among the in different parts of the country. It was said states, and that no state has a right to total. (that the Constitution of the United States ly prohibit its introduction in its pure condi- did not take from the states the power of pretion from without the state under any exer: venting deception and fraud in the sale within cise of its police power. The legislature of their respective limits of articles, in whatever the state has the power in many cases to de- state manufactured, and that that instrument termine as a matter of state policy whether did not secure to anyone the privilege of to permit the manufacture and sale of arti committing a wrong against society. cles within the state or to entirely forbid such It will thus be seen that the case was based

manufacture and sale, so long as the legisla entirely upon the theory of the right of a (17] tion is confined to the manufacture *and the state to prevent deception and fraud in the

sale within the state. Those are questions of sale of any article, and that it was the fraud public policy which. as was said in the case oi and deception contained in selling the article Powell, belong to the legislative department for what it was not, and in selling it so that to determine; but the legislative policy does it should appear to be another and a different not extend so far as to embrace the right to article, that this right of the state was upabsolutely prohibit the introduction within held. The question of the right to totally the limits of the state of an article like oleo- prohibit the introduction from another state margarine, properly and honestly manufac- l of the pure article did not arise, and, of tured.

course, was not passed upon. The act of Con. The Powell Case was, in the opinion of the gress, above cited, was referred to by the court, governed in its important aspect by counsel for the appellant in the Plumley that of Mugler v. Kansas, 123 U. Ş. 623 [31: Case as furnishing a full system of legisla171 U. S.


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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 sub- *said was lacking in the case just cited, for it (20) ject by the state, but it was held that there appears in the verdict that the package in was no ground to suppose that Congress in which the oleomargarine was sold was an tended by that enactment to interfere with original package, as required by the act of the exercise by the states of any authority Congress, and was of such "form, size, and they could rightfully exercise over the sale weight as is used by producers or shippers within their respective limits of the article for the purpose of securing both convenience defined as oleomargarine, and, as § 3243 of in handling and security in transportation the kevised Statutes was referred to in the of merchandise between dealers in the ordiact, 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 form, size, and weight were adopted in good it clear that Congress did not intend to re- faith, and not for the purpose of evading strict the power of the states over the sub- the laws of the commonwealth of Pennsylject of the manufacture and sale of oleomar. vania, said package being one of a number garine within their respective limits. of similar packages forming one consignment

The taxes prescribed by that act were held shipped by the said company to the said deto have been imposed for national purposes, fendant.”. It also appears from the special and their imposition did not give authority verdict that the defendant was engaged in to those who paid them to engage in the man- business in the city of Philadelphia as a

ufacture or sale of oleomargarine within any wholesale dealer in oleomargarine as agent [19) state which lawfully *forbade such manufac- for the manufacturer; that he had paid the

ture or sale, or to disregard any regulations special tax upon the business as a wholesale which a state might lawfully prescribe in dealer, and had otherwise complied with all reference to that article. It was also held the requirements of the act of Congress, and that the act of Congress was not intended the article was openly sold as oleomargarine, as a regulation of commerce among the states and that fact was made known to the pur

By the reference which we have already chaser, and he understood that he was buy. made to this statute we have not intended to ing oleomargarine and as soon as the tub was claim that it was a regulation of commerce purchased it was removed unbroken from among the states further than the provisions the place of sale by the purchaser thereof. 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 be. of 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. unless the sale can be justified as one made We think that what Congress thus taxes and of an original package within the proper recognizes as a proper subject of commerce meaning of that phrase. The nonresidence cannot be totally excluded from any particu- of the manufacturer does not play any im. lar state simply because the state may choose portant part in this case, for he comes into 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 his goods, pays the license exacted by the article, it will not permit the introduction revenue laws, and puts his agent in charge of the pure and unadulterated article within of the sale of his goods from his store, not to its borders upon any terms whatever. the trade, but to customers. We have, there

We are therefore of opinion that the first fore, a Pennsylvania store, selling its stock ground for upholding the conviction in these of goods to its customers for their consumpcases cannot be sustained.

tion, 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 ion of the supreme court of Pennsylvania. sale is clearly punishable under our statute. The question in regard to packing the oleo

The *question

is whether (21) margarine first arose in the case of Common- a package intended and used for the supply wealth (Philadelphia County] v. Schollen- of the retail trade is an original package, berger, 156 Pa. 201 [22 L. R. A. 155). The within the protection of the interstate comdefendant in that case was an agent of a nonresident manufacturer of oleomargarine, What are the rights of one engaged in inand he sold at his store in Pennsylvania a terstate commerce in regard to the introducpackage of the article weighing eighty tion of a lawful article of commerce into a pounds, made and stamped and branded in state? Those rights have been declared by Rhode Island for use as an article of food.various decisions of this court, some of them It was held that the case did not show that made at a very early date, and coming down the sales were made in the original package to the present time. 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- I and that it does not stop at the external

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merce cases.

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boundary of a state, and that this power to in speaking for the court, said: “Under our regulate included the power to prescribe the decision in Bowman v. Chicago & N. IN. R. rule by which commerce is to be governed, R. Co. supra, they had the right to import and it was held that navigation was included this beer into that state, and in the view within that power.

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 with: this 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 prohi. and 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 pack. is 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 intoxicati 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. (à 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 Congresconsignee 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 ono 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 opin- The 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 dents or products of the state and those of transportation from another state.

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 need to importation, without annexing to commerce with foreign nations and among it also the privilege of using the officers lthe several states. Mr. Chief Justice Fuller, I 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 un. cense for selling in that way an article manu- necessary to cite other authorities. factured in another state and sent into Mis- As bas been said by this court, speaking souri, as well as for selling in the same way by the present chief justice: “The power of articles manufactured in Missouri, so long as the state to impose restraints and burdens there was no discrimination between the two upon persons and property, in conservation classes of goods.

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 surren

We 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, the national government." and sold under the circumstances set forth in Rahrer's Case (Wilkerson v. Kahrer), 110 detail in the special verdict, was a valid sale, U. S. 545, 554 (35: 572, 574). although to a person who was himself a con- The statute of Pennsylvania of May 21, sumer. We do not say or intimate that this 1885, under which the plaintiffs in error right of sale extended beyond the first sale by were indicted and convicted for selling in the importer after its arrival within the state. Pennsylvania oleomargarine in the original Waring v. The Mayor [Waring v. Mobile), 75 packages *in which it had been sent to them

[26] U. S. 8 Wall. 110–122 [19: 342–346). The from other states, provides that “no person, importer had the right to sell not only per- firm, or corporate body shall manufacture sonally, but he had the right to employ an out of any oleag ous substance

any comagent to sell for him. Otherwise his right pound of the same, other than that produced to sell would be substantially valueless, for from unadulterated milk, or cream from the it cannot be supposed that he would be per: same, any article designed to take the place sonally engaged in the sale of every original of butter or cheese produced from pure unpackage sent to the different states in the adulterated milk, or cream from the same, or Union. Having the right to sell through his of any imitation or adulterated butter or agent, a sale thus effected is valid.

cheese, nor shall sell or offer for sale, or have The right of the importer to sell cannot delin his, her or their possession with intent to pend upon whether the original package is sell the same, as an article of food.” Penn. suitable for retail trade or not. His right to Stat. 1885, chap. 25. 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 ness, and the value of which would be deextent that it prohibits the introduction of stroyed if he were prevented from continuoleomargarine 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 court in its opinion upholding this this opinion.

statute as a constitutional and valid exer

cise of the police power of the state, after Mr. Justice Gray, with whom concurred mentioning the defendant's offer to prove Mr. Justice Harlan, dissenting:

that the articles which he sold or had in his Mr. Justice Harlan and myself cannot con- ' possession for sale were in fact wholesomo

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