ten cigarettes, and sealed and stamped with the revenue stamp, whether shipped in a basket or loosely, not boxed, baled or attached together, and not separately or otherwise addressed but for which the express company has given a receipt and agreement to deliver them to a person named therein in another State, are not original packages and are not protected under the commerce clause of the Federal Constitution from regulation by the police power of the State." From a consideration of all the decisions and upon the basis of common understanding of the words, it seems that an original package within the meaning of the food and drugs Act is the unit, complete in itself, delivered by the shipper to the carrier, addressed to the consignee, and received by him in the identical condition in which it was sent, without separation of the contents in any manner. This unit may be a hogshead containing 500 bottles of wine, or a single can of tomatoes, or it is a small ounce phial of some drug if shipped to the consignee in that form; and if the consignee sells or gives away any one of the three in the unaltered condition in which he received it, if the contents be adulterated or misbranded, he has violated the Act.

This presentation of the decisions of the courts would not be complete, and certainly not satisfactory, if some reference were not made to three very important decisions, two of the Supreme Court of the United States, 28 and one of the Circuit Court of Appeals of the Sixth Circuit.29 But they are referred to here simply to show that, so far as the food and drugs Act of June 30, 1906, is concerned, they are in a sense obsolete. These decisions were rendered prior to the passage of the aforesaid Act, and asserted the right of the States to prohibit the sale and traffic in adulterated and misbranded foods and drugs even in original packages. They were rendered in the absence of Congressional action covering the

28 Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223, affirming 156 Mass. 236, 15 L. R. A. 839, 30 N. E. 1127; Crossman v. Lurman, 192 U. S. 189,

24 Sup. Ct. 234, 48 L. Ed. 40, affirming 171 N. Y. 329, 98 Am. St. 599, 63 N. E. 1097.

29 Arbuckle Bros. v. Blackburn Dairy Food Co., 113 Fed. 616.

entire subject matter of interstate commerce in foods and drugs. Since then Congress has assumed its full authority over the subject by the passage of the Act of June 30, 1906. The decisions proceeded upon the well recognized principle that in the absence of complete Federal regulation of interstate and foreign commerce effect will be given to the legitimate exercise of the police powers of the States, even though incidentally affecting that commerce. There can scarcely be a doubt that since the enactment of the food and drugs Act all power of the States over interstate commerce in foods and drugs, including the regulation of importations and sales in original packages, has been abrogated, and the subject is entirely and exclusively under the control of the Federal government. That such is the state of the law is clearly and succinctly shown by the following quotation from the opinion of Justice Harlan in the case of Reid v. Colorado:30

"It is quite true, as urged on behalf of the defendant, that the transportation of live stock from State to State is a branch of interstate commerce and that any specified rule or regulation in respect of such transportation, which Congress may lawfully prescribe or authorize and which may properly be deemed a regulation of such commerce, is paramount throughout the Union. So that when the entire subject of the transportation of live stock from one State to another is taken under direct national supervision and a system devised by which diseased stock may be excluded from interstate commerce, all local or State regulations in respect of such matters and covering the same ground will cease to have any force, whether formally abrogated or not; and such rules and regulations as Congress may lawfully prescribe or authorize will alone control. The power which the States might thus exercise may in this way be suspended until national control is abandoned and the subject be thereby left under the police power of the States." This case involved the validity of a certain Act of the State of Colorado designed to prevent the introduction of infectious and con30 187 U. S. 137, 47 L. Ed. 108, 23 Sup. Ct. 92.

tagious diseases among the cattle of the State. The defendant contended that the Act was void as an interference with interstate commerce, and because the subject matter had already been covered by an Act of Congress. The Supreme Court sustained the validity of the act of Colorado, because a legitimate exercise of the police power in the absence of complete regulation by Congress covering the matter. The Act in force at that time did not attempt a full and complete regulation of interstate transportation of animals. In a recent case the United States District Court for the Northern District of West Virginia considered at some length the meaning of the words "original package." The defendant was a corporation and had its warehouse and laboratory and finishing department at Wheeling in the State of West Virginia. It was the proprietary of a preparation for the hair which it marketed in bottles of three, six and twelve ounces, under the trade name of "Danderine," the formula of which was a trade secret and comprised liquid extracts and other ingredients. Manufacturing pharmacists at Detroit, Michigan, contracted with the defendant to compound this formula and to cause it to be transported and delivered in bulk in carloads at the corporation's warehouse in West Virginia. The liquid was put in casks made of wood bound with iron hoops. Each cask held fifty gallons of liquid, and when emptied were returned to the pharmacists to be again refilled and reshipped as before. There were sixty-five of them. All of these casks were marked in the same manner, with the exception that the figures, some of which showed the number of gallons contained therein, and others of the number of casks, were marked in the same manner when shipped, and were marked wholly upon one end of the cask. There were no other marks on them. It was claimed that the car in which these casks were shipped was the "original package,' and not each cask. But the court held that each cask was an original package, saying: "The term 'original package' as employed by law, admits of no precise definition applicable to all. Generally it is said to be a parcel, bundle, bale, box, or can made up of or packed with some commodity with

a view to its safety and convenient handling and transportation. It does not necessarily mean that goods shall be inclosed in a tight or sealed receptacle. It relates wholly to goods as prepared for transportation, and has no necessary reference to the package originally prepared or put up by the manufacturer. Indeed, the idea of the 'original package' may well be made to cover certain forms of property which do not ordinarily admit of being packed or incased in any other manner than in the car or vessel in which they are transported, such, for instance, as steel beams, threshing machines, and other bulky articles.81 This definition has been quoted as being the most favorable I have found to the , contention of respondent in this case.32 Without prolonging the discussion, it seems to me clear that in this case the cask is the original package,' for the very simple reason that the car was wholly incompetent to 'package' the liquid itself; the cask was a complete entity of itself, not connected or bound up with any other article, but capable of and in fact containing some fifty gallons of this liquid, an amount capable thereby of being safely and conveniently handled and transported; each cask was marked to the consignee, and if separated from the car was capable of shipment independent thereof without either loss or inconvenience; the casks were shipped independently from Detroit to Sandusky by vessel, and then transferred to the car for shipment to Wheeling, their final destination."'33

§ 89. Extent of Power of Congress over Food and Drugs Made Subjects of Interstate Commerce.

It is advisable here to consider the extent of the power of

31 Citing Cook v. Marshall County, 119 Iowa 384, 93 N. W. 372, 104 Am. St. 283.

32 "Many others have been carefully collected in 6 Words and Phrases 5059, and the terms have been fully discussed in Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 224."

PURE FOOD—11.

33 United States V. Knowlton Danderine Co., 170 Fed. 449 (F. I. D.) But see United States v. Hipolite Egg Co., N. J. 508.

To open a package in order to test its contents does not destroy it as an original package. United States v. Five Boxes of Assafoetida, 181 Fed. 561.

Congress over food and drugs transported into a State from another State or Territory, the District of Columbia, or a foreign country, and those remaining. And it may be stated that the control of Congress over food and drugs, so transported, continues, after their arrival in the State, so long as they are in the original package.

In Brown v. Maryland' it was decided that the law of Maryland imposing a license tax upon all importers of foreign articles, dry goods, and merchandise by bale or package, and upon other persons selling the same, was unconstitutional so far as it undertook to require such license tax from an importer of goods from a foreign country for the sale thereof in the original packages in which they were imported; and. that such a tax was an interference with foreign commerce, which, under the Constitution of the United States, was committed to Congress to regulate. The conclusion of the court. is contained in the following syllabus: "An Act of a State Legislature, requiring all importers of foreign goods by the bale or package, etc., and other persons selling the same by wholesale, bale, or package, etc., to take out a license, for which they shall pay $50, and in case of neglect or refusal to take out such license, subjecting them to certain forfeitures and penalties, is repugnant to that provision of the Constitution of the United States which declares that 'no State shall, without the consent of Congress, lay any impost or duty on imports or exports, except what may be absolutely necessary for executing its inspection laws;' and to that which declares that Congress shall have power to regulate commerce with foreign nations, among the several States, and with the Indian tribes.' The goods in this case were imported from a foreign country, but the court said: "It may be proper to add, that we suppose the principles laid down in this case, to apply equally to importations from a sister State."

999

This dictum was afterwards affirmed as law in the case of Leisy v. Hardin, decided in 1899, which overruled Pierce v.

1 12 Wheat. 419, 6 L. Ed. 678.

2 135 U. S. 100, 10 Sup. Ct. 681,

34 L. Ed. 128, reversing 78 Iowa 286, 43 N. W. 188.