in its pure state is healthful, simply because
such an article in the course of its manufac
ture may be adulterated by dishonest manu-
facturers 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-
ous in themselves, the state may take appro-
priate measures to guard against injury be-
fore it obtains complete jurisdiction over
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 re-
power 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 ex-
ly granted to be exercised by the people of tent that it may be fairly necessary to pre-
the United States, represented in Congress, vent the introduction or sale of an adul-
and 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


within the state of an article of commerce

To the same effect, we think, is the case of like pure oleomargarine. It has ceased to Hannibal & St. J. Railroad Company v. Hu-be what counsel for the commonwealth has sen, 95 U. S. 465 [24:527], in which it was termed it, a newly discovered food product. said that "whatever may be the power of a An article that has been openly manufactured state over commerce that is completely inter- for nearly a quarter of a century, where the nal, it can no more prohibit or regulate that ingredients of the pure article are perfectly well which is interstate than it can that which is known and have been known for a number of with foreign nations." The court, therefore, years, and where the general process of manuwhile conceding the right of the state to en- facture has been known *for an equal period, [15] act reasonable inspection laws to prevent the cannot truthfully be said to be a newly disimportation of diseased cattle, held the law covered product within the proper meaning of Missouri there under consideration to be of the term as here used. The time when a invalid, because it prohibited absolutely the newly discovered article ceases to be such canintroduction of Texas cattle during the time not always be definitely stated, but all will named in the act, even though they were per-admit that there does come a period when fectly healthy and sound. the article cannot be so described. In this

The court said that a state could not, un-particular case we have no difficulty in holdder the cover of exerting its police powers, ing that oleomargarine has so far ceased to be substantially prohibit or burden either for a newly discovered article as that its nature, eign or interstate commerce. Reasonable and mode of manufacture, ingredients, and effect appropriate laws for the inspection of arti- upon the health are and have been for many cles, including food products, were admitted years as well known as almost any article of to be valid, but absolute prohibition of an un-food in daily use. Therefore, if we admit that adulterated, healthy, and pure article has a newly discovered article of food might be never been permitted as a remedy against wholly prohibited from being introduced the importation of that which was adulterat- within the limits of a state, while its proped and therefore unhealthy or impure. erties, whether healthful or not, were still un[14] *We do not think the fact that the article is known, or in regard to which there might subject to be adulterated by dishonest per- still be doubt, yet this is not the case with sons in the course of its manufacture, with oleomargarine. If properly and honestly manuother substances, which it is claimed may factured it is conceded to be a healthful and in some instances become deleterious to nutritious article of food. The fact that it health, creates the right in any state through may be adulterated does not afford a foundaits 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 evi- ous 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 preventits manufacture may sometimes be adultering an adulterated and possibly injurious arated by dishonest manufacturers with articles that possibly may become injurious to health. 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

ticle from being introduced. We do not
think this is a fair exercise of legislative dis-
cretion when applied to the article in ques-

It is claimed, Mowever, that the very stat-
ute under consideration has heretofore been


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 ters. Com. Rep. 232]. was one as to the police power of the state [16] acting upon a subject always *within its jurisdiction. The plaintiff in error was convicted of selling within the commonwealth two cases containing 5 pounds each of an article of food designed to take the place of butter, the sale having taken place in the city of Harrisburg, and it was part of a quantity manufactured in and, as alleged, in accordance with the laws of the commonwealth. The plaintiff in error claimed that the statute under which his conviction was had was a violation of the 14th Amendment to the Constitution of the United States. This court held that the statute did not violate any provision of that amendment, and therefore held that the conviction was valid.

Nor is the question determined adversely to this view in the case of Plumley v. Massachusetts, 155 U. S. 462 [39:223]. The stat ute in that case prevented the sale of this substance in imitation of yellow butter produced from pure unadulterated milk or cream of the same, and the statute contained a proviso that nothing therein should be "construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form, and in such manner as will advise the consumer of its real character, free from coloration or ingredient that causes it to look like butter." This court held that conviction under that statute for having sold an article known as oleomargarine, not produced from unadulterated milk or cream, but The Powell Case did not and could not in- manufactured in imitation of yellow butter volve the rights of an importer under the produced from pure unadulterated milk or commerce clause. The right of a state to en-cream, was valid. Attention was called in act laws in relation to the administration of the opinion to the fact that the statute did its internal affairs is one thing, and me 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 prohibiting 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 commerce clause of that instrument.

pretenses and to promote fair dealing in the *sale of an article of food, and that it compels [18] Referring what is said in the opinion in the sale of oleomargarine for what it really is Powell's Case to the facts upon which the case by preventing its sale for what it is not; that arose, and in regard to which the opinion was the term "commerce among the states" did based and the case decided, there is nothing not mean a recognition of a right to practice whatever inconsistent with that opinion in a fraud upon the public in the sale of an arholding, as we do here, that oleomargarine is ticle even if it had become the subject of trade a legitimate subject of commerce among the in different parts of the country. It was said states, and that no state has a right to total-that the Constitution of the United States ly prohibit its introduction in its pure condi-did not take from the states the power of pretion from without the state under any exer- venting deception and fraud in the sale within 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- entirely upon the theory of the right of a [17]tion is confined to the manufacture and the state to prevent deception and fraud in the sale within the state. Those are questions of sale of any article, and that it was the fraud public policy which. as was said in the case of and deception contained in selling the article 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-of the pure article did not arise, and, of 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:

their respective limits of articles, in whatever state manufactured, and that that instrument did not secure to anyone the privilege of committing a wrong against society.

It will thus be seen that the case was based

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

tion upon the subject, and he claimed that
it excluded any legislation on the same sub-
ject by the state, but it was held that there
was no ground to suppose that Congress in-
tended by that enactment to interfere with
the exercise by the states of any authority
they could rightfully exercise over the sale
within their respective limits of the article
defined as oleomargarine, and, as § 3243 of
the Kevised Statutes was referred to in the
act, it was held that the section was incor-nary course of actual commerce, and the said
porated in the act for the purpose of making
it clear that Congress did not intend to re-
strict the power of the states over the sub-
ject of the manufacture and sale of oleomar-
garine within their respective limits.

cial verdict in this case shows what the court
*said was lacking in the case just cited, for it [20]
appears in the verdict that the package in
which the oleomargarine was sold was an
original package, as required by the act of
Congress, and was of such "form, size, and
weight as is used by producers or shippers
for the purpose of securing both convenience
in handling and security in transportation
of merchandise between dealers in the ordi-

form, size, and weight were adopted in good
faith, and not for the purpose of evading
the laws of the commonwealth of Pennsyl-
vania, said package being one of a number
of similar packages forming one consignment
shipped by the said company to the said de-
fendant." It also appears from the special
verdict that the defendant was engaged in
business in the city of Philadelphia as a
wholesale dealer in oleomargarine as agent
for the manufacturer; that he had paid the
special tax upon the business as a wholesale
dealer, and had otherwise complied with all
the requirements of the act of Congress, and
the article was openly sold as oleomargarine,
and that fact was made known to the pur-
chaser, and he understood that he was buy-
ing oleomargarine and as soon as the tub was
purchased it was removed unbroken from
the place of sale by the purchaser thereof.

The taxes prescribed by that act were held to have been imposed for national purposes, and their imposition did not give authority to those who paid them to engage in the manufacture or sale of oleomargarine within any [19] state which lawfully *forbade such manufacture or sale, or to disregard any regulations which a state might lawfully prescribe in reference to that article. It was also held that the act of Congress was not intended as a regulation of commerce among the states. By the reference which we have already made to this statute we have not intended to claim that it was a regulation of commerce among the states further than the provisions of the act distinctly applied to its manufac- Upon the facts found in the special verture and sale. We refer to it for the purpose dict, it is said in the opinion of the court beof showing that the article itself was therein low (170 Pa. 291 [30 L. R. A. 396]) that "it recognized as a proper and lawful subject of is very clear that this sale was a violation commerce with foreign nations and among of our statute. The conviction was eminentthe several states under such lawful regula-ly proper, therefore, and should be sustained, tions as the state might choose to impose. We think that what Congress thus taxes and recognizes as a proper subject of commerce cannot be totally excluded from any particular state simply because the state may choose to decide that, for the purpose of preventing the importation of an impure or adulterated article, it will not permit the introduction of the pure and unadulterated article within its borders upon any terms whatever.

unless the sale can be justified as one made of an original package within the proper meaning of that phrase. The nonresidence of the manufacturer does not play any important part in this case, for he comes into this state to establish a 'store' for the sale of his goods, pays the license exacted by the revenue laws, and puts his agent in charge of the sale of his goods from his store, not to the trade, but to customers. We have, therefore, a Pennsylvania store, selling its stock of goods to its customers for their consumption, from its own shelves; and unless these Nor do we think the conviction can be goods are in such original packages as the sustained upon the ground taken in the opin-laws of the United States must protect, the sale is clearly punishable under our statute. The question is whether [21] a package intended and used for the supply of the retail trade is an 'original package,' within the protection of the interstate commerce cases.'

We are therefore of opinion that the first ground for upholding the conviction in these cases cannot be sustained.

ion of the supreme court of Pennsylvania.

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What are the rights of one engaged in interstate commerce in regard to the introduction of a lawful article of commerce into a state? Those rights have been declared by various decisions of this court, some of them made at a very early date, and coming down to the present time.

The question in regard to packing the oleomargarine first arose in the case of Commonwealth [Philadelphia County] v. Schollenberger, 156 Pa. 201 [22 L. R. A. 155]. The defendant in that case was an agent of a nonresident manufacturer of oleomargarine, and he sold at his store in Pennsylvania a package of the article weighing eighty pounds, made and stamped and branded in Rhode Island for use as an article of food. It was held that the case did not show that the sales were made in the original package of commerce. And it was said that a jury In the leading case of Gibbons v. Ogden, would be justified in finding that the mode 22 U. S. 9 Wheat. 1, 193 [6: 23, 69], it was of putting up the package was not adapted said by Marshall, Chief Justice, that the comto meet the requirements of actual interstate merce clause extends to every species of comcommerce, but the requirements of an un-mercial intercourse among the several states, lawful intrastate retail trade. But the spe- and that it does not stop at the external

boundary of a state, and that this power to regulate included the power to prescribe the rule by which commerce is to be governed, and it was held that navigation was included within that power.

"Under our

in speaking for the court, said: decision in Bowman v. Chicago & N. W. R. R. Co. supra, they had the right to import this beer into that state, and in the view which we have expressed they had the right InBrown v. State of Maryland, 25 U. S. to sell it, by which act alone it would become 12 Wheat. 419 [6: 678], it was stated that mingled in the common mass of property withthis power to regulate commerce could not in the state. Up to that point of time, we hold be stopped at the external boundary of a that, in the absence of congressional permisstate, but must enter its interior, and that if sion to do so, the state had no power to interthe power reached the interior of the state fere by seizure or any other action, in prohiand might be there exercised, it must be ca- bition of importation and sale by the foreign pable of authorizing the sale of those articles or nonresident importer." The right of the which it introduces. It was said that "sale state to prohibit the sale in the original packis the object of importation, and is an essen- age was denied in the absence of any law of tial ingredient of that intercourse, of which Congress upon the subject permitting the importation constitutes a part. It is as essen- state to prohibit such sale. There is no such [23] tial an ingredient,as indispensable to the exist-law of Congress relating to articles like oleoence of the entire thing, then, as importation margarine. Such articles are therefore in itself. It must be considered as a component like condition as were the liquors in the case part of the power to regulate commerce." above cited.

Years after the decision of the last case Subsequent to the decision in the Leisy and after many other decisions had been Case and on the 8th of August, 1890 (26 made upon the general subject of the com- Stat. at L. 313, chap. 728), Congress passed merce clause, this court in Bowman v. Chica- an act commonly known as the Wilson act, go & Northwestern Railway Company, 125 which provided that upon the arrival in any U. S. 465 [31: 700, 1 Inters. Com. Rep. 823], state or territory of the intoxicating liquors held that the state could not for the purpose transported therein they should be subject to of protecting its people against the evils of the operation and effect of the laws of the intemperance pass an act which regulated state or territory enacted in the exercise commerce by forbidding any common carrier of its police power to the same extent and in to bring intoxicating liquors into the state the same manner as though such liquors had from another state or territory, excepting been produced in such state or territory, and upon conditions mentioned in the act. Such that they should not be exempt therefrom by act was held to be repugnant to the Constitu- reason of being introduced therein in original tion of the United States as affecting inter-packages or otherwise. This was held to be [22] state commerce in an essential and vital part. a valid and constitutional exercise of the But whether the right to transport an article power conferred upon Congress. Re Rahrer, of commerce from one state to another includ-Petitioner [Wilkerson v. Rahrer] 140 U. S. ed by necessary implication the right of the 545 [35: 572]. In the absence of Congres consignee to sell it in unbroken packages at sional legislation, therefore, the right to imthe place where the transportation terminated port a lawful article of commerce from one was not decided. In Brown v. Maryland, su- state to another continues until a sale in the pra, it was said that the right of transporta-original package in which the article was intion did include the right to sell, as to for- troduced into the state. eign commerce, and in the course of his opinion Chief Justice Marshall said that the conclusion would be the same in the case of commerce among the states; but as it was not necessary to express any opinion upon the point, it was simply held in the Bowman Case that the power to regulate or forbid the sale of a commodity after it had been brought into a state does not carry with it the right and power to prevent its introduction by transportation from another state.

The case of Emert v. Missouri, 156 U. S. 296[39: 430, 5 Inters. Com. Rep. 68], involved the validity of a statute of Missouri providing that peddlers of goods, going from place to place within the state to sell them, should take out and pay for licenses. The statute was held not to violate the commerce clause of the Constitution of the United States because it made no discrimination between residents or products of the state and those of other states. The conviction of the plaintiff The case of Leisy v. Hardin, 135 U. S. 100 in error for a violation of the statute was up[34: 128, 3 Inters. Com. Rep. 36], went a held, although he was an agent of a corporastep further than the Bowman Case, and held tion which manufactured the property in anthat the importer had the right to sell in a other state and sent it to him to sell as its state into which he brought the article from agent. It was held to be within the police another state in the original packages or power of the state to regulate the occupation kegs, unbroken and unopened, notwithstand-of itinerant peddlers and to compel them to ing a statute of the state prohibiting the sale obtain licenses to practice their trade, and of such articles except for the purposes there- such power had been exerted from the earliest in named and under a license from the state. times. The remark of Chief Justice Marshall Such a statute was held to be unconstitution in Brown v. Maryland, supra, was quoted, al as repugnant to the clause of the Constitu- that "the right of sale may very well be antion granting power to Congress to regulate nexed to importation, without annexing to commerce with foreign nations and among it also the privilege of using the officers lithe several states. Mr. Chief Justice Fuller, censed by the *state to make sales in a pecul- [24]

iar way." Page 313 [39: 434]. It was the cur in this judgment, and will state, as briefly
privilege of selling in a peculiar way, as a as may be, some of the grounds of our dissent.
peddler, which was licensed in the Emert The question at issue appears to us to be so
Case, and such a person, it was therein de- completely covered by two or three recent
cided, could properly be made to pay a li-judgments of this court, as to make it un-
cense for selling in that way an article manu- necessary to cite other authorities.
factured in another state and sent into Mis-
souri, as well as for selling in the same way
articles manufactured in Missouri, so long as
there was no discrimination between the two
classes of goods.

poses, as not, in the sense of the Constitu-
tion, necessarily infringing upon any right
which has been confided, expressly or by im-
plication, to the national government."
Rahrer's Case [Wilkerson v. Rahrer], 140
U. S. 545, 554 [35: 572, 574].

As has been said by this court, speaking by the present chief justice: "The power of the state to impose restraints and burdens upon persons and property, in conservation and promotion of the public health, good orThe Emert Case does not overrule or affect der and prosperity, is a power originally and the cases above cited as to the right to sell. always belonging to the states, not surrenWe are not aware of any such distinction dered by them to the general government, as is attempted to be drawn by the court be- nor directly restrained by the Constitution of low in these cases between a sale at whole-the United States, and essentially exclusive. sale to individuals engaged in the wholesale And this court has uniformly recognized trade or one at retail to the consumer. How state legislation, legitimately for police pursmall may be an original package it is not necessary to here determine. We do say that a sale of a ten-pound package of oleomargarine, manufactured, packed, marked, imported and sold under the circumstances set forth in detail in the special verdict, was a valid sale, although to a person who was himself a consumer. We do not say or intimate that this right of sale extended beyond the first sale by the importer after its arrival within the state. Waring v. The Mayor [Waring v. Mobile], 75 U. S. 8 Wall. 110-122 [19: 342-346]. The importer had the right to sell not only personally, but he had the right to employ an agent to sell for him. Otherwise his right to sell would be substantially valueless, for it cannot be supposed that he would be personally engaged in the sale of every original package sent to the different states in the Union. Having the right to sell through his agent, a sale thus effected is valid.

sell the same, as an article of food." Penn.
Stat. 1885, chap. 25.

The statute of Pennsylvania of May 21, 1885, under which the plaintiffs in error were indicted and convicted for selling in Pennsylvania oleomargarine in the original packages in which it had been sent to them from other states, provides that "no person, firm, or corporate body shall manufacture out of any oleaginous substance or any compound of the same, other than that produced from unadulterated milk, or cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk, or cream from the same, or of any imitation or adulterated butter or cheese, nor shall sell or offer for sale, or have The right of the importer to sell cannot de-in his, her or their possession with intent to pend upon whether the original package is suitable for retail trade or not. His right to sell is the same, whether to consumers or to wholesale dealers in the article, provided he sells them in original packages. This does not interfere with the acknowledged right of the state to use such means as may be necessary to prevent the introduction of an adulterated article, and for that purpose to inspect and test the article introduced, provided the state law does really inspect and [25] does not substantially prohibit the introduction of the pure article and thereby interfere with interstate commerce. It cannot, for the purpose of preventing the introduction of an impure or adulterated article, absolutely prohibit the introduction of that which is pure and wholesome. The act of the legislature of Pennsylvania, under consideration, to the extent that it prohibits the introduction of oleomargarine from another state and its sale in the original package, as described in the special verdict, is invalid. The judgments are therefore reversed, and the cases remanded to the supreme court of Pennsylvania for further proceedings not inconsistent with this opinion.

In Powell v. Pennsylvania, 127 U. S. 678
[32: 253], the defendant was indicted, under
this very statute, for selling, and for having
in his possession with intent to sell, oleo-
margarine manufactured in Pennsylvania be-
fore the passage of the statute; and, at the
trial, in order to show that the statute was
not a lawful exercise of the police power of
the state, offered to prove that the articles
which he sold, and those which he had in
his possession for sale, were, in fact, whole-
some and nutritious, and were part of a large
quantity manufactured by him before the
passage of the statute, by the use of land,
buildings, and machinery, purchased by him
at great expense for carrying on this busi-
ness, and the value of which would be de-
stroyed if he were prevented from continu-
ing it. The evidence offered was excluded,
and the defendant was convicted; and his
conviction was affirmed by the supreme court
of Pennsylvania, and by this court upon writ
of error.

This court in its opinion upholding this
statute as a constitutional and valid exer-
cise of the police power of the state, after
mentioning the defendant's offer to prove
that the articles which he sold or had in his
Mr. Justice Harlan and myself cannot con-possession for sale were in fact wholesome

Mr. Justice Gray, with whom concurred Mr. Justice Harlan, dissenting:


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