these laws are so written that they will advance the interests of the industry and fully protect the consumer.

The CHAIRMAN. You will note, gentlemen, that provision is made later for the discussion of these papers on bread laws.

INTERSTATE STATUS OF PACKAGE GOODS

By J. B. HORIGAN, Office of Solicitor, U. S. Department of Agriculture In its legal aspects the subject of this paper is quite relevant in the consideration by this conference of standard bread legislation, in view of the fact that attention has been directed both to State and prospective Federal legislation on the subject of the standardization of bread loaves, in particular the Nebraska bread law recently declared unconstitutional by the Supreme Court, and the Brand bill now pending in Congress for the standardization of bread loaves shipped in interstate commerce.

Discussion of the status of interstate food packages, including bread, involves the consideration of the interrelation of the commerce clause of the Federal Constitution and the sovereign power of the State to pass regulations for the health and safety of its citizens, for the protection of their property and for the suppression of frauds, which are commonly referred to as police laws. This field of judicial inquiry and interpretation is covered by many decisions by the Supreme Court. The broad governing principles thereof are quite clear, but their application to particular types of legislation in concrete cases frequently presents difficulties that require careful distinctions to be made.

As regards the respective spheres of Federal and State action, the principles derived from the decisions of the Supreme Court may be briefly recapitulated thus: The States have plenary power to regulate the manufacture and sale of articles within their borders and the scope of the regulation is solely confided to the State, subject to the qualifications of the fourteenth amendment that the legislation be not so arbitrary as to amount to a deprivation of property without due process of law, nor so discriminatory as to be tantamount to a denial of the equal protection of the laws.

Under its police power it is for the State exclusively to decide with reference to the manufacture and sale of articles produced and consumed within the State, and the States may even prevent the shipment in interstate commerce of articles which their public policy regards as unfit or improper to be shipped beyond the State limits. Thus the Supreme Court in Sligh v. Kirkwood, 237 U. S. 52, decided that Florida might validly prohibit the shipment of immature citrus fruit to another State. Moreover, Congress may not, under the guise of regulating interstate commerce, undertake to regulate the manufacture or production of commodities within the State. This was decided recently in the case of Hammer v. Dagenhart, 247 U. S. 251, declaring the first Federal child labor law unconstitutional as an invalid attempt by Congress to encroach upon the police power of a State. And later the Supreme Court decided the second Federal child labor law, which was based upon the taxing power of Congress, was also unconstitutional, as a like invasion of State rights.

When we come to the realm of interstate commerce it is well established that the sending of a food article or other commodity from one State to another, there to be sold in its original unbroken package, is an interstate transaction and subject to be regulated by Congress in the exercise of its constitutional power over interstate commerce. Such regulations are paramount to any State police regulation touching the subject. The Federal regulation covers an article in interstate commerce not only while being actually transported, but persists until the goods have been so acted upon by the importer as to be commingled with the property of the State. The point when the goods have ceased to be in interstate commerce has not been expressly defined, but decisions of the courts have indicated that the limits set forth in section 10 of the food and drugs act of June 30, 1906 (34 Stat., 768) constitute for practical purposes the boundary between inter and intrastate commerce; that is to say, goods are in interstate commerce so long as they remain unloaded, unsold, or in the original unbroken package. It was early determined in Brown v. Maryland, 25 U. S. 419, that the right to import goods in foreign commerce carried with it the right of the importer to make one sale of the article in its package of importation for the reason that this was the object of its importation. The same holding was made with reference to packages passing from one State to another in Vance v. Vandercook, 170 U. S. 438. In this connection, however, the qualification must be observed that where an article has been introduced in interstate commerce in violation of a law of Congress, the article may properly be pursued and condemned wherever found as a contraband of interstate commerce irrespective of the fact that its interstate character had been lost. Hipolite Egg Co., v. U. S., 220 U. S. 45; McDermott v. Wisconsin, 228 U. S. 115.

While the authority of Congress over articles in interstate commerce is paramount and it necessarily follows that Federal regulations, in case of conflict, must prevail over the incidental police regulations permitted to the States, yet this does not mean that a State is absolutely prohibited from making a regulation concerning an interstate package of food. Long ago in the case of oleomargarine the right of a State to enact legislation which would prevent fraud or deception upon its citizens was upheld in the case of Plumley v. Massachusetts, 155 U. S. 462, which prohibited the sale of oleomargarine in a State in such a way as to be misleading and deceptive. The reasoning of that case has been applied in a number of instances to State statutes alleged to be in conflict with the Constitution and has only been qualified to the extent that a State might not in the exercise of its police power lay a direct burden upon interstate commerce or so legislate as to absolutely prohibit a healthful article which was legitimate in commerce from being introduced into a State, Schollenberger v. U. S., 171 U. S. 1, nor indirectly prohibit a healthful article from being introduced into a State by requiring, as did a New Hampshire statute, construed in Collins v. New Hampshire, 171 U. S. 30, that oleomargarine be colored pink. The cases, however, seem to support the reasonable exercise by the State of its sovereign police power upon articles introduced from another State on the theory, applicable to the case of short-weight bread, that the right to conduct interstate commerce without burdensome legislation

by the State does not secure to anyone the right to defraud or to deceive the citizens of another State nor to ship into a State articles or commodities which are dangerous to the health or to the property of the citizens of the State of destination; and as said by the Supreme Court in the case of Patapsco Guano Co. v. North Carolina, 171 U. S. 345, 357, 358:

Whenever inspection laws act on the subject before it becomes an article of commerce they are confessedly valid, and also when, although operating on articles brought from one State into another, they provide for inspection in the exercise of that power of self-protection commonly called the police power. And again referring to the decision in Plumley v. Massachusetts: Where the subject is of wide importance to the community, the consequences of fraudulent practices generally injurious, and the suppression of such frauds matter of public concern, it is within the protective power of the State to interLaws providing for the inspection and grading of flour, the inspection and regulation of weights and measures, the weighing of coal on public scales, and the like, are all competent exercises of that power, and it is not perceived why the prevention of deception in the adulteration of fertilizers does not fall within its scope.

vene.

With reference to the interrelation of State and Federal food laws the Supreme Court has, in effect, applied the foregoing principles. In Savage v. Jones, State chemist of Indiana, 225 U. S. 501, and the Standard Stock Food Co. v. Wright, State food and dairy commissioner of Iowa, 225 U. S. 540, State statutes subjecting stock feed to labeling requirements supplemental to the labeling requirements of the Federal food and drugs act were upheld as valid by the Supreme Court against the allegation that they conflicted with the interstate regulations of Congress governing these articles. In Armour v. North Dakota, 240 U. S. 510, the Supreme Court held the State statute requiring lard not sold in bulk to be put up in pails or other containers holding a specified number of pounds net weight or even multiples thereof, was not unconstitutional and not in conflict with the food and drugs act. The State law was there construed as applying only to the retail sales. In Hebe v. Shaw, 248 U. S. 297, the State law of Ohio against condensed skim milk was upheld. It forbade the retail sales of a compound of vegetable oil and skim milk even though properly labeled and legitimate under the Federal food and drugs act. In Weigle v. Curtis Bros., 248 U. S. 285, the State law of Wisconsin prohibiting the sale of foods containing benzoic acid or benzoate of soda was upheld as not being in conflict with the Federal food and drugs act which permitted the use of this preservative in foods. In Corn Products Refining Co. v. Eddy, 249 U. S. 427, a State regulation of Kansas respecting the labeling of sirup compounds and requiring compound sirups to state definitely on the principal label the percentage of each of the ingredients thereof was held not in conflict with the commerce clause of the Constitution nor repugnant to the Federal food and drugs act.

An example, however, of State legislation which did conflict with the Federal food and drugs act is illustrated by the case of McDermott v. Wisconsin, 228 U. S. 115, wherein it was held that a State statute of Wisconsin which required a product containing corn sirup mixed with glucose to bear the label required by the State law and no other, was invalid. The labeling prescribed by the State statute required the ingredients, which the Federal regulations permitted to

be called corn sirup, to be designated glucose. The statute was declared invalid for the reason that the label which was on the retail cans was the means whereby compliance with the requirements of the Federal food and drugs act must be ascertained. As expressed by the court, it was said that the labeling of the article was the means of vindication of the lawfulness of the shipment or the means of punishment of the shipper; that the State law was invalid in that it defeated the right of Federal inspection while the goods were unsold in the hands of the original consignee.

The foregoing cases furnish a background for considering the legal aspects of any bread-standard legislation. It is believed that in application these principles would allow a fair field of operation for both State and Federal legislation upon the subject. In so far as bread in packages is now concerned, it is subject to the net-weight requirements of the Federal food and drugs act which, in substance, are that food in package form must bear a true declaration of the quantity of contents in terms of weight, measure, or numerical count, with an allowance for reasonable variations and tolerances.

It is competent for Congress to supersede this existing legislation by more specific and effective legislation which would have the same object in view, namely, to prevent fraud or deceit upon the consumer as to the weight or quantity of bread purchased. Such legislation could be made to operate within the same limits as the present food and drugs act; that is, on the article while it remained unloaded, unsold, or in the original unbroken package; or Congress, if it saw fit, could in such legislation provide that bread upon entering the State might be subject to the said legislation even while technically in interstate commerce; that is, unloaded, unsold, and in the hands of the original consignee, or in the original unbroken package; but the congressional legislation on this point would have to be very definite and specific, as in the case of the Wilson law declared constitutional in the case of In re Rahrer, 140 U. S. 545, and in the WebbKenyon Act upheld in Clark Distilling Co. v. Western Maryland Railroad, 242 Ú. S. 311. It is important to note in this connection that if the State legislation prescribing a standard loaf is intended to operate upon other than retail sales of the loaf, the conditions must obtain that the legislation be reasonable and not lay a direct burden upon interstate commerce in the article, and it must not be in conflict with any legislation of Congress upon the subject. Meeting these conditions, the State legislation would possibly be upheld upon the same theory that animal quarantine laws were upheld in the cases of Reid v. Colorado, 187 U. S. 137, and Aswell v. Kansas, 209 U. S. 251, where State and Federal legislation upon the same subject were construed as permitting a fair field of operation for both statutes without conflict. In Reid v. Colorado the court held:

It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the States, even when it may do so, unless its purpose to effect that result is clearly manifested. This court has said-and the principle has been often reaffirmed-that "in the application of this principle of supremacy of an act of Congress in a case where the State law is but the exercise of a reserved power, the repugnance or conflict should be direct and positive, so that the two acts could not be reconciled or consistently stand together."

In this connection the suggestion occurs that the most certain and preferable method of preventing conflict between Federal and State standard-bread legislation would be to incorporate a suitable provision in any prospective Federal legislation upon the subject which in clear and positive terms would insure the free operation of the State law at destination upon bread introduced from another State.

Viewed from a practical standpoint, it would seem expedient that Federal and State legislation in respect to package food in commerce should be made to harmonize all along the line, so as to bring about a complete and uniform system of regulation, which would simplify and make certain the legal requirements for a standard package. Such a system would tend to the common advantage of both seller and consumer.

THE RECENT DECISION OF THE UNITED STATES SUPREME COURT ON NEBRASKA BREAD LAW

By F. S. HOLBROOK, Bureau of Standards

A little more than a month ago the Supreme Court of the United States handed down a decision of the utmost importance to weights and measures officials, to the bread industry, and to the consumers of this commodity throughout the United States. At first it was believed that a veritable bombshell had been exploded in the ranks of the advocates of standard-weight bread legislation, and for a short time extreme pessimism reigned among them. It was thought by many of them that the work which had been carried on for years by the weights and measures officials and by one of the groups of the baking industry had in a trice been nullified; that they had spent their time and energy unavailingly; and that their sincere efforts to better the bread situation had come to naught. This feeling was the result, we believe, of their belief that the principle of standard-weight bread legislation had been declared unconstitutional by the court of last resort in the United States. It was based on the fragmentary and, perhaps, somewhat misleading press dispatches sent out in reference to the decision.

Some there were who did not take so dark a view of the situation. Having in mind the case of Schmidinger v. Chicago, in which the standard-weight bread ordinance of that city had been upheld by the same court a number of years ago, these more optimistic men were content to abide their time in patience; to wait until the full decision of the court was available, and until it had become possible carefully to analyze its language; to reserve judgment until the smoke had been cleared away, a careful check of the casualties made, and the new alignment of the opposing forces disclosed by careful scrutiny of the entire field.

It seems that a sufficient time has now elapsed to make possible this analysis of the situation, to make preparations to rectify mistakes, if any, made in the past, to re-form the lines of the advocates of standard-weight legislation, and to inaugurate a new campaign planned on the sound basis of the recent decision on the subject. It seems that this decision has cleared the air, has given us a better understanding both of our powers and our limitations, and that we

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