shelter of the interstate commerce clause of the Constitution, until by a sale in the original packages they have been commingled with the general mass of property in the State." In the case of Heyman v. Southern Railway Company it was said: "In the absence of Congressional legislation goods moving in interstate commerce cease to be such commerce only after delivery and sale in the original package." From these decisions it will be seen that merchandise brought into a State is protected from State interference only so long as it remains in the original package, unbroken, and in the hands of the importer. If the importer sells the article in the identical condition and form in which imported, or if he breaks the package, it is no longer an original package, but has become merged in the mass of property in the State and subject to its laws. Let these decisions be applied to a hypothetical case under the food and drugs Act: A, a wholesale dealer in New York City, ships by express to B, in Hoboken, N. J., a box containing one dozen cans of adulterated condensed milk. B receives them into his store and shortly thereafter sells the box, just as received, to C. B in this example would be liable to the penalties prescribed by the Act, because he is the importer and sold the original packBut, should C, in due course, sell this identical box to D in Hoboken, he could not be successfully prosecuted under the Act because he is not the importer. When the box was sold by B it lost the character of an original package and became merged in the property of the State, and the State can only regulate its disposition by C. Suppose B, after receipt of the box, opens it and removes a can of the milk, which he sells to C. B is exempt from prosecution under the food and drugs Act for the sale of this can or for a subsequent sale of the remaining eleven, even though he sells the eleven in the box. By this act of removing one can he has broken the original package and in consequence destroyed the jurisdiction of the United States over it and over him. But suppose B simply removes the top of the box to 4 203 U. S. 270, 27 Sup. Ct. 104, 51 L. Ed. 178, reversing 122 Ga. 608, 50 S. E. 342. permit inspection, in no way disturbing the contents, replaces the top, and sells box and milk to C. Has B incurred the penalties prescribed by the food and drugs Act? Such a question has not been presented to the Supreme Court, but two cases very similar have been decided by the lower Federal Courts. The first case, United States v. Fox,5 decided in 1869, was a suit by the United States under the internal revenue Act of July 13, 1866 (14 Stat., 144), to recover the penalties therein prescribed for the sale of perfumery without affixing a proper stamp thereon. A proviso in the Act prescribed that when imported perfumery was sold in the original and unbroken package in which the bottle or other inclosure was packed by. the manufacturer the person so selling should not be liable to the aforesaid penalty. Fox sold one small box containing twelve one and a half ounce bottles of hair oil and a similar but larger box containing twelve bottles of pomade. He opened both boxes so that the purchaser might examine the contents. The top of the smaller box was put on again before delivery without change of the contents. In the larger box, containing pomade, Fox, at the request of the purchaser, substituted three smaller bottles taken from the shelf of the store, and nailed up the box. In respect to the smaller box of oil the court said: "Although the top of this box was taken off by the defendant Fox, it was only for the purpose of enabling the witness Quivey to ascertain the kind and quality of its contents, and before the sale and delivery to him it was put on again, with the contents unchanged in kind or quantity. Under these circumstances the defendant must be considered as selling an unbroken package, the contents of which were not then required to be stamped." But as to the sale of the box of pomade, the court said: "The package was opened, and three bottles being taken out of it, it was sold with only the remaining nine bottles in it. This was a broken package, and so the court instructed the jury." The verdict of the jury in favor of the defendant Fox, was set aside on motion of the United States upon the ground that the package of 5 Fed. Case No. 15155. pomade was not an original package, the court holding: "Goods are sold 'in the original and unbroken package' within the meaning of the act of July 13, 1866 (14 Stat., 144), although the package is opened for inspection, if closed again before delivery without its contents being changed." In the other case, In re McAllister, decided in 1892, the facts were these: Two men, emissaries of a butter dealer in Baltimore, went to the store of McAllister, a dealer in oleomargarine, and sought to buy butter. McAllister stated that he had none, but could supply oleomargarine. They requested him to remove the lid from the tub of oleomargarine that they might look at it. He did so, stating that he could not sell less than ten pounds, as it reached him in the tub from Chicago. They purchased the tub and forthwith informed on him. He was duly tried in the State court and convicted. The State Court of Appeals affirmed the conviction, and McAllister applied to the Circuit Court of the United States for a writ of habeas corpus, on the ground that the sale of the tub of oleomargarine was a sale of an original package and beyond the power of the State to prohibit, which it sought to do in an Act of the Legislature. The court granted the writ and announced the proposition of law involved, in the following syllabus to the case: "Removing the lid of an original package of oleomargarine, so that a prospective buyer may examine its contents, is not such a breaking of the package as will destroy its original character." In reaching the above conclusion the court said: "It is argued that the taking the lid from the tub containing this oleomargarine was a breaking of the package so as to destroy its original character. This in no sense did it do. The goods had in no way become commingled with his property or the general property of the State (Low v. Austin, 13 Wall., 29). Anyone calling for oleomargarine with an honest purpose would have purchased this package as an original one, even if he knew it had had its lid lifted off once to see whether or not it held another substance than it purported to hold. The laws of the United States recognize oleomar 651 Fed. 282. garine as a merchantable article. Being such, while a State may perhaps regulate its sale, it can not prohibit its importation. The statute in question does this, and is unconstitutional, and in this respect void. The petitioner is discharged." Upon the authority of these two cases, and following their reasoning, it must be concluded that B, in the last example (p. 8), is amenable to the penalties prescribed by the food and drugs Act. The first of these cases has another and important significance in connection with this decision, namely, the use of the word "unbroken" as synonymous with "original," thus substantiating the statement in the preliminary part of this discussion that the courts used the words interchangeably. An example may be profitably introduced at this point to show how far goods moving in interstate commerce may be subjected to seizure under section 10 of the food and drug Act. A, a wholesale dealer in New York City, ships fifty barrels of flour to B in St. Louis, Mo. This flour may be seized, if adulterated or misbranded, at New York City after delivery to the carrier, or at any point along the route, and may likewise be seized in St. Louis in the hands of the carrier before delivery to B, regardless of the question of whether or not it still remains in original packages, which, in the illustration, are the barrels. After delivery of the flour to B it may still be seized, in his hands, if it remains in the barrels (the original packages) as shipped. But if B, after delivery to him, transfers the flour to five-pound sacks, or otherwise breaks the barrels and commingles the flour with his stock of goods, the original packages have been destroyed, and it is no longer subject to seizure by the United States; nor are the barrels liable to seizure by the United States after B disposes of them to C in Missouri, even though no alteration is made in their condition. § 91. Transported from One State to Another for The second section of the food and drugs Act provides that "Any person who shall ship or deliver 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, or who shall receive from any other State or Territory or the District of Columbia, or foreign country, and having so received shall deliver, in original and unbroken packages, for pay or otherwise, or offer to deliver to any other person any such article so adulterated or misbranded within the meaning of this Act, or any person who shall sell or offer for sale in the District of Columbia or the Territories of the United States any such adulterated or misbranded food or drugs, or export or offer to export the same to any foreign country, shall be guilty of a misdemeanor." Section ten provides that "Any article of food, drug or liquor that is adulterated or misbranded within the meaning of this Act, and is being transported from one State, Territory, direct or insular possession of the United States, or if it be imported from a foreign country for sale, or if it is intended for export to a foreign country, shall be liable to be proceeded against in any District Court of the United States within the district where the same is found, and seized for confiscation by a process of libel for condemnation." In one case the defendant had a warehouse, laboratory and finishing department in West Virginia, and was the proprietor of a preparation for hair which it marketed in three, six and twelve-ounce bottles, under the trade name of "Danderine," the formula of which was a trade secret and comprised liquid extracts and other ingredients. Certain manufacturing pharmacists in Detroit, Michigan, were under contract with the defendant to compound this formula and to cause the product to be transported and delivered in bulk in car lots to the defendant in West Virginia. No sale of the danderine was made to the public or any outside purchasers until the casks containing it were emptied and their contents placed in properly marked bottles. This was the practice of the defendant. Six of the casks containing the danderine were seized by the government and libel proceedings brought against them, for the reason that the product |