cars and placed in defendant's store and then its citizens the question whether it is wholeoffered for sale as an article of food. "(6) On the said second day of October, 1893, in the said city of Philadelphia, at the place of business aforesaid, the said defend some and nondeceptive, and neither the Congress of the United States nor the legislatures of other states can deprive it of this right, and that being such newly discovered article ant, as wholesale dealer aforesaid, sold to it does not belong to the class universally James Anderson the said tub or package men-recognized as articles of commerce, and hence tioned in the foregoing paragraph, the oleo- the legislation of Pennsylvania does not regumargarine therein contained remaining in the late or affect commerce; that nondiscriminoriginal package, being the same package, ative legislation enacted in good faith for the with seals, marks, stamps, and brands un- protection of health and the prevention of broken, in which it was packed by the said deception, not hampering the actual transpor manufacturer in the said city of Providence, Rhode Island, and thence transported into the city of Philadelphia and delivered by the carrier to the defendant; and the said tub was not broken or opened on the said premises of the said defendant, and as soon as it was [5] purchased by the said James "Anderson it was removed from the said premises. "(7) The oleomargarine contained in said tation of merchandise, is not presumptively void but is conclusively valid. (2) That if the right of citizens of another state to send oleomargarine into the commonwealth of Pennsylvania be admitted, it can only be introduced in original packages suitable for wholesale trade, and where the article imported is intended and used for the supply of the retail trade or is sold by retail directly tub was manufactured out of an oleaginous to the consumer, the package in which it is substance not produced from unadulterated milk or cream, and was an article designed to take the place of butter, and sold by the defendant to James Anderson as an article of food; but the fact that the article was oleomargarine and not butter was made known by the defendant to the purchaser, and there was no attempt or purpose on the part of the defendant to sell the article as butter, or any understanding on the part of the purchaser that he was buying anything but oleomar imported from another state is not an "orig inal package" within the protection of the interstate commerce provision of the Constitution of the United States. These are the main grounds upon which the conviction is sought to be sustained. The supreme court of the state upheld the statute upon the ground that it was a legitimate exercise of the police power of the state not inconsistent with the right of the owner of the product to bring it within the state in appro garine, and the said oleomargarine is recog- priate packages suitable for sale to the whole-[7] nized by the said act of Congress of August sale dealer and not intended for sale at retail 2, 1886, as an article of commerce. "(8) The above transaction specifically found by the jury is one of many transactions of like character made by the defendant during the last two years." Upon this special verdict the trial court directed judgment to be entered for the defendant. The case was taken by the commonwealth to the supreme court of the state, where, after argument, the judgment was reversed and judgment was entered in favor of the commonwealth, and the record remanded that sentence might be imposed by the court below. The plaintiffs in error have brought these judgments of conviction before this court for review by virtue of writs of error. The opinion of the supreme court of the state is to be found reported under the name of Commonwealth v. Paul, in 170 Pa. 284 [30 L. R. A. 396]. Messrs. William D. Guthrie, Richard C. Dale, Henry R. Edmunds, and Albert H. Veeder for plaintiffs in error. Mr. John G. Johnson for defendant in error. Mr. Justice Peckham delivered the opinion of the court: Counsel in behalf of the commonwealth rests the validity of the statute in question upon two principal grounds: (1) That oleomargarine is a newly invented or discovered article, and that each state has the right in the case of a newly invented or discovered food product to determine for by the importer to the consumer, and that in the cases under consideration the packages were not wholesale original packages and their sale amounted to a mere retail trade. Upon the first ground for sustaining the conviction in these cases the argument upon the part of the commonwealth runs somewhat as follows: It may be admitted that actually pure oleomargarine is not dangerous to the public health, but whether it be pure depends upon the method of its manufacture, and its purity cannot be ascertained by any superficial examination, and any certain and effective supervision of the method of its manufacture is impossible. It is manufactured to imitate in its appearance butter, with a view to deceiving the ultimate consumer as to its character, and this deception cannot be avoided by coverings, labels, or marks upon the product; the legislature of Pennsylvania was therefore so far justified in protecting its citizens against oleomargarine by prohibiting its sale; that the legislation in question does not discriminate in favor of the citizens of Pennsylvania or in any manner against any particular state or any particular manufacturer of the article, and, as there is nothing in the case tending to prove the contrary, it must be assumed that the legislation was enacted in good faith for the protection of the health of the citizens and for the prevention of deception, and as such legislation did not hamper the actual transportation of merchandise, the statute must be held to be within the power of the legislature to enact, and is therefore valid; at all events, the state has a right in cases of newly invent-sioner of Internal Revenue is to decide in ed food products to determine for its citizens such cases as to the taxation, and his decithe question whether they are wholesome and sion is to be final. The Commissioner is also nondeceptive, and that oleomargarine is one empowered to decide "whether any substance of that class of products and is necessarily made in imitation or semblance of butter, subject to the right of the state, either to and intended for human consumption, conregulate or absolutely to prohibit its sale. tains ingredients deleterious to the public In the examination of this subject the first question to be considered is whether oleomargarine is an article of commerce? No affirmative evidence from witnesses called to the stand and speaking directly to that subject (8) is found in the record. We must determine the question with reference to those facts which are so well and universally known that courts will take notice of them without particular proof being adduced in regard to them, and also by reference to those dealings health; but in case of doubt or contest his decisions in this class of cases may be appealed from to a board hereby constituted for the purpose, composed of the surgeon general of the army, the surgeon general of the navy and the commissioner of agriculture, and the decisions of this board shall be final in the premises." Provision is also made for the removal of oleomargarine from the place of its manufacture for export to a foreign country without payment of tax or affixing of the commercial world which are of like of stamps thereto, and there is a penalty denotoriety. nounced against any person engaged in car should defraud or attempt to defraud the United States of the tax. This act shows that Congress at the time of its passage in 1886 recognized the article as a proper subject of taxation and as one which was the subject of traffic and of exportation to foreign countries and of importation from such countries. Its manufacture was recognized as a lawful pursuit, and taxation was levied upon the manufacturer of the article, upon the wholesale and retail dealers therein, and also upon the article itself. Any legislation of Congress upon the sub-rying on the business of oleomargarine who ject must, of course, be regarded by this court as a fact of the first importance. If Congress has affirmatively pronounced the article to be a proper subject of commerce, we should rightly be influenced by that declaration. By reference to the statutes we discover that Congress in 1886 passed "An Act Defining Butter, also Imposing a Tax upon and Regulating the Manufacture, Sale, Importation, and Exportation of Oleomargarine." 24 Stat. at L. 209, chap. 840. In that statute we find that Congress has given a definition of the meaning of oleomargarine and has imposed a special tax on the manufacturers of the article, on wholesale dealers and upon retail dealers therein, and the provisions of the Revised Statutes in relation to special taxes are, so far as applicable, made to extend to the special taxes imposed by the 3d section of the act, and to the persons upon whom they are imposed. Manufacturers are required to file with the proper collector of internal revenue such notices, and to keep such books and conduct their business under such supervision as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may by regulation require. Provision is made for the packing of oleomargar As to the extent of the manufacture and its commercial nature, it is not improper to refer to the reports of the Secretary of the Treasury, which show that the tax receipts from its manufacture and sale in the United States under the act above mentioned during the nine years, beginning with 1887, amounted to over $10,000,000. When we come to an inquiry as to the properties of oleomargarine and of what the substance is composed, we find that answers to such inquiries are to be found in the various encyclopædias of the day, and in the [10] official reports of the commissioner of agriculture and in the legal reports of cases act ine by the manufacturer in packages con- ually decided in the courts of the country. taining not less than 10 pounds and marked In brief, every intelligent man knows its as prescribed in the act, and it provides that all sales made by manufacturers of oleomargarine and wholesale dealers in oleomargarine shall be in the original stamped packages. A tax of 2 cents per pound is laid upon oleomargarine to be paid by the manufacturer, and the tax levied is to be represented by coupon stamps. Oleomargarine imported from foreign countries is taxed in addition to the import duty imposed on the same an internal revenue tax of 15 cents per pound. Provision is made for warehousing, general nature, and that it is prepared as an article of food, and is dealt in as such to a large extent throughout this country and in Europe. Upon reference to the Encyclopædia Britannica it is said that "pure oleomargarine butter is said to contain every element that enters into cream butter, and to keep pure much longer; but there is the defect of not knowing when it is pure or what injurious ingredients, or objectionable processes, may be used in its manufacture by irresponsible and a penalty imposed for selling the oleo- parties." The article also says: "Weappend a margarine thus imported if not properly comparative analysis of natural and artificial [9] stamped. Provision is also made for the ap- butter, which shows that, when properly pointment of an analytical chemist and mi-made, the latter is a wholesome and satiscroscopist by the Secretary of the Treasury, and such chemist or microscopist may examine the different substances which may be submitted in contested cases, and the Commis factory substitute for the former." There is contained in the 17th volume of the Encyclopædia Britannica an extract from a report by the secretary of the British em [11] bassy at Washington, in 1880, describing the method of obtaining oleomargarine oil. This shows the article was then well known. In Ex parte Scott and others, the circuit court for the eastern district of Virginia (66 Fed. Rep. 45), speaking by Hughes, distriet judge, said: "It is a fact of common knowledge that oleomargarine has been subjected to the severest scientific scrutiny, and has been adopted by every leading government in Europe as well as America, for use by their armies and navies. Though not originally invented by us, it is a gift of American enterprise and progressive invention to the world. It has become one of the conspicuous articles of interstate commerce, and furnishes a large income to the general government annually. It is entering rapidly into domestic use and the trade in oleomargarine has become large and important. The attention of the national government has been attracted to it as a source of revenue. Provincial prejudice against this now staple article of commerce is natural, but a city of the size and prospects of Norfolk as a world's entrepot ought not to be foremost in manifesting such a prejudice." *In People v. Marx, 99 N. Y. 377 [52 Am. Rep. 34], which was a prosecution under the New York statute (chap. 202, Laws of 1884) prohibiting the manufacture or sale of oleomargarine, the court of appeals of New York held the act unconstitutional. It appears from the opinion that on the trial of that action on the part of the defendant "it was proved by distinguished chemists that oleomargarine was composed of the same elements as dairy butter. That the only difference between them was that it contained a smaller proportion of fatty substance known as butterine. That this butterine exists in dairy butter only in a small proportion-from three to six per cent. That it exists in no other substance than butter made from milk and it is introduced into oleomargarine butter by adding to oleomargarine stock some milk, cream, or butter, and churning, and when this is done it has all the elements of natural butter, but there must always be a smaller percentage of butterine in the manufactured product than in butter made from milk. The only effect of the butterine is to give flavor to the butter, having nothing to do with its wholesomeness. That the oleaginous substances in the oleomargarine are substantially identical with those produced from milk or nent French scientist who had been employed by the French government to devise a substitute for butter." This extract from the opinion in the New York case, speaking of the testimony given before the trial judge, is not quoted for the purpose of proving the facts therein stated, but for the purpose of showing that as long ago as the time when [12] that case was decided-June, 1885-the article was then well known as an article of food, and manufactured as a substitute for butter, and we may notice from some of the histories of the article the fact (which is stated in the opinion) that it was first devised as long ago as 1872 or 1873 by a French gentleman who had been employed by the French government to devise a substitute for butter. The article is a subject of export, and is largely used in foreign countries. Upon all these facts we think it apparent that oleomargarine has become a proper subject of commerce among the states and with foreign nations. The general rule to be deduced from the decisions of this court is that a lawful article of commerce cannot be wholly excluded from importation into a state from another state where it was manufactured or grown. A state has power to regulate the introduction of any article, including a food product, so as to insure purity of the article imported, but such police power does not include the total exclusion even of an article of food. In Minnesota v. Barber, 136 U. S. 313 [34:455, 3 Inters. Com. Rep. 185], it was held that an inspection law relating to an article of food was not a rightful exercise of the police power of the state if the inspection prescribed were of such a character or if it were burdened with such conditions as would wholly prevent the introduction of the sound article from other states. This was held in relation to the slaughter of animals whose meat was to be sold as food in the state passing the so-called inspection law. The principle was affirmed in Brimmer v. Rebman, 138 U. S. 78 [34:862, 3 Inters. Com. Rep. 485], and in Scott v. Donald, 165 U. S. 58, 97 [41: 632, 644]. Is the rule altered in a case where the inspection or analysis of the article to be imported is somewhat difficult and burdensome? Can the pure and healthy food product be totally excluded on that account? No case has gone to that extent in this court. The nearest approach to it was the case of Peirce cream. Professor Chandler testified that the v. New Hampshire, 46 U. S. 5 How. 504 only difference between the two articles was [12:256], involving the importation of intoxthat dairy butter had more butterine. That icating liquors. But in Leisy v. Hardin, 135 oleomargarine contained not over 1 per cent U. S. 100 [34: 128, 3 Inters. Com. Rep. 36], of that substance, while dairy butter might the New Hampshire case was overruled, contain four or five per cent, and that if four and it was stated by the present Chief Jusor five per cent of butterine were added to the tice, in speaking for the court, that "what- [13] oleomargarine, there would be no difference; ever our individual views may be as to the it would be butter; irrespective of the deleterious or dangerous qualities of parsources, they would be the same substances. ticular articles, we cannot hold that any According to the testimony of Professor Mor- articles which Congress recognizes as subton, whose statement was not controverted or jects of interstate commerce are not such, or questioned, oleomargarine, so far from being that whatever are thus recognized can be conan article devised for purposes of deception in trolled by state laws amounting to regulatrade, was devised in 1872 or 1873 by an emi-tions, while they retain that character; al [14] over ture may be adulterated by dishonest manufacturers for purposes of fraud or illegal gains. The bad article may be prohibited, but not the pure and healthy one. though, at the same time, if directly danger-in its pure state is healthful, simply because ous in themselves, the state may take appro- such an article in the course of its manufac priate measures to guard against injury before it obtains complete jurisdiction them. To concede to a state the power to exclude, directly or indirectly, articles so situated, without congressional permission, In the execution of its police powers we is to concede to a majority of the people of a admit the right of the state to enact such state, represented in the state legislature, the legislation as it may deem proper, even in repower to regulate commercial intercourse be- gard to articles of interstate commerce, for tween the states, by determining what shall the purpose of preventing fraud or deception be its subjects, when that power was distinct- in the sale of any commodity and to the exly granted to be exercised by the people of tent that it may be fairly necessary to prethe United States, represented in Congress, vent the introduction or sale of an aduland its possession by the latter was consid-terated article within the limits of the state. ered essential to that more perfect union But in carrying out its purposes the state which the Constitution was adopted to cre- cannot absolutely prohibit the introduction ate." To the same effect, we think, is the case of Hannibal & St. J. Railroad Company v. Husen, 95 U. S. 465 [24:527], in which it was said that "whatever may be the power of a state over commerce that is completely internal, it can no more prohibit or regulate that which is interstate than it can that which is with foreign nations." The court, therefore, while conceding the right of the state to enact reasonable inspection laws to prevent the importation of diseased cattle, held the law of Missouri there under consideration to be invalid, because it prohibited absolutely the introduction of Texas cattle during the time named in the act, even though they were perfectly healthy and sound. The court said that a state could not, un der the cover of exerting its police powers, substantially prohibit or burden either for eign or interstate commerce. Reasonable and appropriate laws for the inspection of articles, including food products, were admitted to be valid, but absolute prohibition of an unadulterated, healthy, and pure article has never been permitted as a remedy against the importation of that which was adulterated and therefore unhealthy or impure. within the state of an article of commerce like pure oleomargarine. It has ceased to be what counsel for the commonwealth has termed it, a newly discovered food product. An article that has been openly manufactured for nearly a quarter of a century, where the ingredients of the pure article are perfectly well known and have been known for a number of years, and where the general process of manufacture has been known for an equal period, [15] cannot truthfully be said to be a newly discovered product within the proper meaning of the term as here used. The time when a newly discovered article ceases to be such cannot always be definitely stated, but all will admit that there does come a period when the article cannot be so described. In this particular case we have no difficulty in holding that oleomargarine has so far ceased to be a newly discovered article as that its nature, mode of manufacture, ingredients, and effect upon the health are and have been for many years as well known as almost any article of food in daily use. Therefore, if we admit that a newly discovered article of food might be wholly prohibited from being introduced within the limits of a state, while its properties, whether healthful or not, were still unknown, or in regard to which there might still be doubt, yet this is not the case with oleomargarine. If properly and honestly manufactured it is conceded to be a healthful and nutritious article of food. The fact that it may be adulterated does not afford a founda *We do not think the fact that the articleis subject to be adulterated by dishonest persons in the course of its manufacture, with other substances, which it is claimed may in some instances become deleterious to health, creates the right in any state through its legislature to forbid the introduction of tion to absolutely prohibit its introduction the unadulterated article into the state. The into the state. Although the adulterated arfact that the article is liable to adulteration ticle may possibly in some cases be injurious in the course of manufacture, and that the to the health of the public, yet that does not articles with which it may be mixed may furnish a justification for an absolute prohipossibly and under some circumstances be bition. A law which does thus prohibit the deleterious to the health of those who con- introduction of an article like oleomargarine sume it, is known to us by means of various within the state is not a law which regulates references to the subject in books and ency- or restricts the sale of articles deemed injuriclopædias, but there was no affirmative evious to the health of the community, but is dence offered on the trial to prove the fact. one which prevents the introduction of a perFrom these sources of information it may be fectly healthful commodity merely for the admitted that oleomargarine in the course of purpose of in that way more easily sily preventits manufacture may sometimes be adulter- ing an adulterated and possibly injurious arated by dishonest manufacturers with arti-ticle from being introduced. We do not cles that possibly may become injurious to think this is a fair exercise of legislative dishealth. Conceding the fact, we yet deny the right of a state to absolutely prohibit the introduction within its borders of an article of commerce which is not adulterated and which cretion when applied to the article in question. It is claimed, However, that the very statute under consideration has heretofore been ters. Com. Rep. 232]. held valid by this court in the case of Powell | 205], in which case it was said that it did not v. Pennsylvania, 127 U. S. 678 [32:253]. involve any question arising under the comThat case did not involve rights arising merce clause of the Constitution of the United under the commerce clause of the Federal States. The last cited case was followed in Constitution. The article was manufactured Kidd v. Pearson, 128 U. S. 1 [32:346, 2 Inand sold within the state, and the question was one as to the police power of the state Nor is the question determined adversely [16] acting upon a subject always within its jur- to this view in the case of Plumley v. Masisdiction. The plaintiffin error was convicted sachusetts, 155 U. S. 462 [39:223]. The statof selling within the commonwealth two cases ute in that case prevented the sale containing 5 pounds each of an article of food of this substance in imitation of yellow butdesigned to take the place of butter, the sale ter produced from pure unadulterated milk having taken place in the city of Harrisburg, or cream of the same, and the statute conand it was part of a quantity manufactured tained a proviso that nothing therein should in and, as alleged, in accordance with the be "construed to prohibit the manufacture or laws of the commonwealth. The plaintiff in sale of oleomargarine in a separate and diserror claimed that the statute under which tinct form, and in such manner as will adhis conviction was had was a violation of the vise the consumer of its real character, free 14th Amendment to the Constitution of the from coloration or ingredient that causes it United States. This court held that the stat- to look like butter." This court held that a ute did not violate any provision of that amendment, and therefore held that the conviction was valid. The Powell Case did not and could not involve the rights of an importer under the commerce clause. The right of a state to enact laws in relation to the administration of conviction under that statute for having sold an article known as oleomargarine, not produced from unadulterated milk or cream, but manufactured in imitation of yellow butter produced from pure unadulterated milk or cream, was valid. Attention was called in the opinion to the fact that the statute did its internal affairs is one thing, and we right not prohibit the manufacture or sale of all of a state to prevent the introduction within oleomargarine, but only such as was colored its limits of an article of commerce is another in imitation of yellow butter produced from and a totally different thing. Legislation unadulterated milk or cream of such milk. which has its effect wholly within the state If free from coloration or ingredient that and upon products manufactured and sold caused it to look like butter, the right to sell therein might be held valid as not in violation it in a separate and distinct form and in such of any provision of the Federal Constitution, manner as would advise the consumer of the when at the same time legislation directed real character was neither restricted nor protowards prombiting the importation within hibited. The court held that under the statthe state of the same article manufactured ute the party was only forbidden to practice outside of its limits might be regarded as ille- in such matters a fraud upon the general pubgal because in violation of the rights of citi- lic; that the statute seeks to suppress false zens of other states arising under the com- pretenses and to promote fair dealing in the merce clause of that instrument. *sale of an article of food, and that it compels [18] Referring what is said in the opinion in Powell's Case to the facts upon which the case arose, and in regard to which the opinion was based and the case decided, there is nothing whatever inconsistent with that opinion in holding, as we do here, that oleomargarine is a legitimate subject of commerce among the states, and that no state has a right to total ly prohibit its introduction in its pure condition from without the state under any exer cise of its police power. The legislature of the state has the power in many cases to determine as a matter of state policy whether to permit the manufacture and sale of articles within the state or to entirely forbid such manufacture and sale, so long as the legisla[17] tion is confined to the manufacture and the sale within the state. Those are questions of public policy which, as was said in the case of Powell, belong to the legislative department for what it was not, and in selling it so that to determine; but the legislative policy does it should appear to be another and a different not extend so far as to embrace the right to article, that this right of the state was upabsolutely prohibit the introduction within held. The question of the right to totally the limits of the state of an article like oleo- prohibit the introduction from another state margarine, properly and honestly manufac tured. The Powell Case was, in the opinion of the court, governed in its important aspect by that of Mugler v. Kansas, 123 U. Ş. 623 [31: It will thus be seen that the case was based entirely upon the theory of the right of a state to prevent deception and fraud in the sale of any article, and that it was the fraud and deception contained in selling the article of the pure article did not arise, and, of course, was not passed upon. The act of Congress, above cited, was referred to by the counsel for the appellant in the Plumley Case as furnishing a full system of legisla |