MR. JUSTICE WHITE, concurring. Practically the only argument relied upon in support of the theory that these packages of ten cigarettes are original packages is derivable from the Revised Statutes, section 3392, which requires that manufacturers shall put up all cigarettes made by or for them, and sold or removed for consumption or use, in packages containing ten, twenty, fifty or one hundred cigarettes each. This, however, is solely for the purpose of taxation-a precaution taken for the better enforcement of the internal revenue law, and to be read in connection with section 3243, which provides that "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." As was said in Plumley v. Massachusetts, 155 U. S. 461, 466, it is manifest this section was adopted to make it clear that Congress had no purpose to restrict the power of the State over the manufacture and sale of particular articles. "The taxes prescribed by that act were 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 and sale." The question is not in what packages the law requires the cigarettes to be packed for the purpose of taxation, but what are the packages in which they are usually transported from one State to another where the transaction is bona fide and for the legitimate purposes of trade and commerce. We are satisfied the conclusion of the Supreme Court of Tennessee was correct, and it is therefore MR. JUSTICE WHITE, concurring. Affirmed. I do not understand that anything in the opinion of the court impairs the doctrine protecting original packages from interference by the police or any other power of a State, as announced by so many opinions of this court, especially as ex JUSTICES BREWER, SHIRAS, PECKHAM and the CHIEF JUSTICE, dissenting. pounded in Leisy v. Hardin, 135 U. S. 100, and Rhodes v. Iowa, 170 U. S. 412, and the authorities which are cited in the opinions of the court in both of those cases. If I thought either the opinion of the court just announced or the conclusion which it reaches had the effect of weakening the doctrine upheld by the authorities to which I have just referred, I should be unable to concur. Indeed, as I understand the case as now decided, all the questions adverted to are merged in the solution of the one decisive issue, which is, Was each particular parcel of cigarettes an original package within the constitutional import of those words as defined by the previous adjudications of the court? I am constrained to conclude that this question is correctly answered in the negative, not only from the size of each particular parcel, but from all the other surrounding facts and circumstances, among which may be mentioned the trifling value of each parcel, the absence of an address on each, and the fact that many parcels, for the purpose of commercial shipment, were aggregated, thrown into and carried in an open basket. Thus associated in their shipinent, they could not, under all the facts and circumstances of the case, after arrival be segregated so as to cause each to become an original package. MR. JUSTICE BREWER, with whom concurred the CHIEF JUSTICE, MR. JUSTICE SHIRAS and MR. JUSTICE PECKHAM, dissenting. I dissent from the opinions and judgment in this case. The plaintiff in error was convicted of a violation of the following act of the General Assembly of Tennessee: "Be it enacted by the General Assembly of the State of Tennessee, That it shall be a misdemeanor for any person, firm or corporation to sell, offer to sell, or to bring into the State for the purpose of selling, giving away, or otherwise disposing of any cigarettes, cigarette paper or substitute for the same; and a violation of any of the provisions of this act shall be a misdemeanor punishable by a fine of not less than fifty dollars." The facts shown by the testimony, as appears from the record, are as follows: "This defendant was on the 1st day of November, 1897, a JUSTICES BREWER, SHIRAS, PECKHAM and the CHIEF JUSTICE, dissenting. resident of and merchant in the town of Madisonville, said Monroe County, Tennessee, and in no way connected with the American Tobacco Company, as agent or otherwise; that just prior to said November, 1897, the defendant purchased, in the State of North Carolina, from the American Tobacco Company, a corporation of the State of New Jersey, and having a factory for the manufacture of cigarettes in Durham, N. C., and similar factories at other points in the United States, but having no factory, office, nor warehouse in the State of Tennessee, a number of packages, each containing 10 Duke of Durham cigarettes; that these cigarettes were manufactured by the American Tobacco Company at its factory in said town of Durham, and were packed by it in quantities of 10 in pasteboard slide-boxes, upon each of which such box or package were printed the names of the manufacturers of the cigarettes therein contained, the name or brand of the cigarettes therein contained, the number of the factory and internal revenue collection or manufacturing district in which said factory was located, the number of cigarettes contained in the box or package, the caution notice required by the laws of the United States, the internal revenue stamp for 10 cigarettes pasted across the end of such box or package, so as to act as a seal thereon and thereof, and which had to be broken and destroyed to open said box or package, and all the other requirements of the laws and regulations of the United States governing the packing and sale of cigarettes. A package in all respects similar to those bought by defendant at Durham, N. C., is hereto attached, marked 'Exhibit A.' These packages were packed and manufactured by said American Tobacco Company at Durham, N. C., and were by it shipped from said town of Durham, N. C., to defendant by the Southern Express Company, without case, covering, or enclosure of any kind around or about any of said packages, but were by said American Tobacco Company piled upon the floor of its warehouse in Durham, N. C., and said Southern Express Company notified to come and get them, and said express company, by its agent, took them, the said enclosed packages, and placed them in an open basket, already and heretofore in the possession of said Southern Express Company; that these JUSTICES BREWER, SHIRAS, PECKHAM and the CHIEF JUSTICE, dissenting. packages were brought to the place of business of defendant by an agent of said express company in the same open basket in which they had been placed by said express company at Durham, N. C., and by said agent lifted from said basket on to the counter in the place of business of defendant, and so delivered to and receipted for by the defendant; that said basket was not left with defendant at all, but was carried away from defendant's business by said agent of said express company immediately upon the delivery of said packages of cigarettes; that defendant immediately upon his receipt of said packages, as aforesaid, put them on sale, without breaking, and sold one of them on said November 1, 1897, to W. G. Brown, an adult resident of said Monroe County, Tennessee, said sale being in Monroe County, Tennessee, and within one year before the finding of this indictment." Upon these facts the Supreme Court of Tennessee sustained the conviction, and thereupon the defendant sued out this writ of error. His contention is that the act is, as applied to the importation of cigarettes and subsequent sale th reof in the packages in which they were imported, in conflict with the Constitution of the United States. It will be perceived that the statute in terms expressly prohibits the sale of cigarettes, or the bringing them into the State for the purpose of sale. If valid, it not only prohibits an individual within the State from selling cigarettes manufactured therein, but also prohibits any one bringing cigarettes from another State into Tennessee for the purpose of sale. It will, therefore, stop all importations of cigarettes for sale, and the only permissible importations will be those for personal use. The power of the State, therefore, to put an end to commerce between other States and itself, except so far as the importation is for the use of the importer, is broadly and distinctly asserted by this statute. Claiming the right to determine absolutely what shall be sold within its limits, Tennessee attempts to prohibit the sale, or the importation for sale, of cigarettes. As said by its Supreme Court: "The statute under which the conviction was had unconditionally prohibits all sales of cigarettes, whether manufactured in this State or elsewhere." JUSTICES BREWER, SHIRAS, PECKHAM and the CHIEF JUSTICE, dissenting. It may be well to consider what this statute is not. It has none of the elements of inspection. It does not attempt to distinguish between cigarettes made of tobacco free from any drug, wrapped in paper untouched by any poison, from those (of which we are assured by counsel in their argument there are many) whose tobacco has been mixed with opium or some other drug, and whose wrapper has been saturated in a solution of arsenic. There is no attempt to distinguish between the pure and impure; no attempt to protect a purchaser from the purchase of an adulterated article. On the contrary, it stamps tobacco wrapped up in the form of a cigarette as in and of itself noxious, and to be wholly forbidden. The Supreme Court of Tennessee rightly interpreted this statute as an absolute prohibition of the sale of cigarettes, no matter what the character of the paper wrappers or the condition of the tobacco within them, and it asserted the power of the State to enact the statute on the ground that cigarettes are "inherently bad, and bad only." I quote from its opinion: "Are cigarettes legitimate articles of commerce? We think they are not, because wholly noxious and deleterious to health. Their use is always harmful, never beneficial. They possess no virtue, but are inherently bad, and bad only. They find no true commendation for merit or usefulness in any sphere. On the contrary, they are widely condemned as pernicious altogether. Beyond question, their every tendency is toward the impairment of physical health and mental vigor. "There is no proof in the record as to the character of cigarettes, yet their character is so well and so generally known to be that stated above, that the courts are authorized to take judicial cognizance of the fact. No particular proof is required in regard to those facts which by human observation and experience have become well and generally known to be true, Schol lenberger v. Pennsylvania, 171 U. S. 1; 1 Greenl. Evi. sec. 6; 1 Whart. Evi. sec. 282; 1 Jones' Evi. secs. 129 and 134; Lanfear v. Mestier, 18 La. Ann. 497; S. C., 89 Am. Dec. 658 and note 693; State v. Goyette, 11 R. I. 592; Watson v. State, 55 Ala. 158; nor is it essential that they shall have been formally recorded in written history or science to entitle courts to take |