not for the Federal government. In the third section there is a further recognition of this limitation, wherein it is made. an offense to "sell or offer for sale in the District of Columbia or the Territories of the United States any such adulterated or misbranded foods or drugs, or export or offer to export the same to any foreign country." This clause, of course, covers the insular possessions. Within these districts Congress is supreme-more so than a Legislature is within the boundaries of the State for which it legislates-for such Legislature is limited in a way by the Constitution of the United States, while Congress, in respect to the insular possessions, is unlimited. Congress has legislated concerning distilled and fermented liquors, oleomargarine, renovated butter and filled cheese, and has regulated their manufacture, but the legislation is only concerning Federal taxation, and the regulation of the manufacture is only incidental to such taxation.

§ 86. Commerce Within a State.

Section two of the Food and Drugs Act is very carefully drawn, so as to limit its application within a State to the strict line of foreign and interstate commerce. To constitute an act an offense under this section, it must relate to the introduction into the State, aside from the introduction into the District of Columbia or into a Territory, of an adulterated or misbranded article of food or a drug "from any other State or Territory or the District of Columbia, or from any foreign country." This is prohibited. This section also forbids the shipment or delivery "for shipment from any State or Territory, or the District of Columbia, to any other State or Territory or the District of Columbia, or to a foreign country," any adulterated or misbranded food or drug, and it inflicts a penalty upon any one "who shall receive in any State or Territory or the District of Columbia, from any other State or Territory or the District of Columbia, or foreign countries, and having so received, shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person, any such article so adulterated or mis

branded." If a person purchase and receive within the State adulterated or misbranded food or drugs, and deliver it or them, whether in original or broken packages, to another person or dealer within the State, he commits no offense under this statute. But if he has received such food or drugs from without the State, and delivered it or them, even in the original packages, to a person or dealer within the State, he will be liable if the delivery be in the original package. If the package be broken, then it falls within the mass of State property, and becomes subject to the State's laws. The mere receipt of an adulterated or misbranded drug or food does not constitute an offense in the person receiving them if he has not delivered or offered to deliver the drug or food in unbroken packages. Nor is it an offense in the receiver if he has received adulterated or misbranded food or drugs. and, having opened the original packages and tested their contents, he then properly brands them and then offers them for sale, and such food or drugs are not liable to forfeiture if he has done this before their seizure.'

991

§ 87. Constitutionality of Act of 1906.

It has been held that the Food and Drugs Act of June 30, 1906, is constitutional. A milling company of the State of Kansas brought a bill in equity to restrain the District Attorney and United States Marshal for the District of Kansas. seizing certain sacks of bleached flour, charging that this statute was unconstitutional, and that they were, therefore, proceeding without warrant of authority. The court stated the question thus: "In the one case before the court, the bill of complaint recites that several seizures of flour were made in this judicial district, and after a number of efforts by the complainant to have the cause submitted to the court with or without injury for a hearing on its merits, the government dismissed the cause, after the flour thus seized had deteriorated in quality and value. In the cause now before the court, as property rights are involved, bills in equity will

1 United States v. Five Boxes of Assafoetida, 181 Fed. 561.

be entertained, provided the statute under which the government claims the right to proceed is not a valid one. Herein is the question in the case. That is to say, is the pure food statute of June 30, 1906, a valid enactment? Did Congress have the power to enact it? Is it within the commerce clause of the Constitution, or is it a mere police regulation erroneously garbed and cloaked as a regulation of commerce?" "Congress is given the power to provide for the general welfare of the United States. But, without doubt, if this legislation is sustained, it is because of that provision of the Constitution that provides that the Congress shall have the power to regulate commerce among the several States. That provision is the life of the nation, and to adopt which was the great concern of the convention of 1787. Important as it is, it is ever before the courts. It gives great comfort to all who believe in one common country, and yet is antagonized oftener than any other provision of the Constitution by those whose shield of defense is articles 9 and 10 of the amendments, as to the reserved power of the States." "It is conceded that police regulations alone are for the State, and not for Congress to deal with. But it does not follow that if the subject matter to be regulated is one of commerce, that it is for the State alone to deal with, because such subject matter is also one that pertains to the morals, health or good order of the community. Thus when the question arose as to the inspection of meats for food, Legislatures claiming that they alone could determine when and to what extent police regulations should be carried, the Supreme Court decided that such inspections also infringed upon the rights of commerce and were therefore void.1

"It will serve no purpose to discuss the principle upheld in Wilson v. Blackbird Creek Company, that the State can regulate certain interstate commerce of a local character, if Congress had not acted, nor of that other principle upheld

by Congress that the State can legislate with reference to liability when doing an interstate business when Congress has not acted.3

"The complete answer to those suggestions is that in the matter now before the court, Congress has acted. The question now for consideration is not as to the power of the States relating to commerce, as held in Smith v. Alabama, upholding a State statute requiring a locomotive engineer, even though operating an interstate train, to submit to tests for color blindness.5

"The question here is as to the power of Congress over articles of interstate commerce, even though such articles in the end become subject to State statutes. No one doubts but that wheat and flour, as well as all articles of food, are subjects of commerce, and when carried over and across State lines, are subject to be regulated by Congress. And it is no answer to say, that when adulterated, or wrongly labeled, because in the end they will fall under a State statute, that they when being shipped can not be covered by a Congressional enactment. The liquor cases illustrate this. Because of all the subjects of commerce there is no one thing more peculiarly and distinctly and appropriately subject to regulation by the State even to the extent of prohibition than are intoxicating liquors. And yet Congress legislates with reference to liquors. The Wilson Act of 1890 provided that when liquors arrived in a State they should be subject to State laws. This statute was upheld in the case of In re Rahrer, thereby modifying the practical effect of the holding in Leisy v. Hardin,' that the State could not interfere by

3 Sherlock v. Alling, 93 U. S. 99, 23 L. Ed. 819, affirming 44 Ind. 184. 4 124 U. S. 463, 31 L. Ed. 508, 8 Sup. Ct. 564, affirming 76 Ala. 69. 5 "The power of Congress to pass the statute is derived solely from its authority to regulate merce, and it must have uniform operation throughout the United

com

States. It deals with articles of food which enter into interstate commerce." N. J. 990.

6140 U. S. 545, 11 Sup. Ct. 865, 55 L. Ed. 572, reversing 43 Fed. 566, 10 L. R. A. 555.

7 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128, reversing 78 Iowa 286, 43 N. W. 188.

legislation as to liquors shipped interstate as long as the liquors were in the original packages. While in Rhodes v. Iowa, it was held that the liquors must be in fact and actually delivered to the purchaser before the State laws became effective as to such interstate shipment. No one should doubt but that legislation by Congress can control the interstate subject of commerce for a time at least, and then the State by a police regulation can control. If liquors do not sufficiently illustrate the question, lottery tickets will. Louisiana Lottery was conducted by men of high repute and much renown. But it became a national scandal. It was struck at by denying it the use of the mails. The Legislature of the State gave it encouragement; even its life. But Congress provided in addition that it should be a crime to carry lottery tickets from one State to another by means other than through the mails. Can any person doubt but that the Louisiana Lottery was or could have been made subject to the laws of Louisiana? And yet this Congressional enactment was upheld in the Lottery Case. But little need be said of that case. It was argued by counsel of great eminence. It was argued upon two separate occasions. It received the fullest consideration by the Supreme Court. Apparently no other case that was ever before that court received more attention and fuller consideration. Counsel for complainants herein concede all these things. And the only answer that has been made, or that can be made to that case, is in the statement that the case was decided by a divided court, four justices dissenting. It may be, or it may not be, that that weakens the case as an authority. It is barely possible, that later on, that court changing as to its personnel, the decision may be overruled. But such reasoning is a mere speculation. On the other hand, the fact that the court was so divided emphasizes the fact that the court gave great consideration to the question. But be these things as they may, it is not for this court to usurp the prerogative

8170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088, reversing 99 Iowa 496, 58 N. W. 887, 24 L. R. A. 245.

9 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492.