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pose of protecting the people against unwholesome made and sold within the State, no question as to products become invalid when they are directed interstate commerce arises, and the regulation or solely against imported goods, although they would prohibition is valid (26). be unobjectionable if this feature of discrimination Upon the same principle State laws providing were eliminated (20).

for the inspection of commercial fertilizer (27), If the statute seeks to prohibit the introduction and coal in the original barges (28), are valid, and sale of articles of food “colored, coated or although affecting goods which are imported and polished,” whereby damage or inferiority is con- remain in the orignal package or receptacle. cealed, the law is good, even though its application Similarly, in order to protect the people of the may affect articles imported from another State in State against imposition in the collection of warethe original packages (21).

house rates, these charges may be regulated by the But an

act which requires all baking power legislature (29), as may the fees exacted by interpackages containing alum to exhibit a statement state stock yards companies (30). to that effect, plainly stamped upon the wrapper, It has been properly held that a State statute is unconstitutional as an unwarranted interference requiring all packages of seeds sold in the State to with interstate trade (22).

be marked with the year in which the seeds were

grown, is an interference with interstate commerce, ENACTMENTS AGAINST FRAUD AND IMPOSITION.

because it practically discriminates against the forThe States have attempted to regulate interstate eign importer and in favor of the domestic farmer, commerce by invoking that elastic branch of the who, under the express terms of the law, need not police power by which laws are passed protecting label the seed he has grown and offers for sale (31). the citizen from fraud and imposition. Foremost

ENACTMENTS FOR PHYSICAL Safety. in importance among these statutes is the legislation against oleomargarine. The result of the de

The physical safety of the public is protected by cided cases is that if there is an absolute prohibition laws, which, though they impose heavy restrictions upon the importation and sale of this substance in upon interstate communication, are permitted as the original package, without regard to whether police regulations. Thus the State may demand it purports to be butter or whether it is colored in that engineers employed upon railway locomotives imitation thereof, the restriction is unconstitutional, shall be examined for color blindness and may forfor the reason that congress by taxing it has re

bid the employment within the State of such as are garded oleomargarine as a legitimate article of found deficient in this regard (32). Enactments commerce, and hence its sale cannot be altogether allowing cities to prescribe the rate of speed at forbidden by a State (23). So, if the law purports which all trains (local and interstate) may run only to regulate, but, in fact, prohibits, it is invalid, through the city limits are held unobjectionable as where the sale of oleomargarine in original (33), and the Supreme Court of the United States packages is forbidden, unless it is colored a bright has sustained a State law forbidding all railroads, pink (24).

running within the State, to heat their cars by If, however, the object of the statute is not the stoves or furnaces kept inside or suspended from

the coaches. exclusion of all oleomargarine, but only such as is

The court remark that while the

seriously inconcolored in imitation of butter, and hence is likely railway companies might be to impose upon buyers, the prohibitory legislation venienced by inconsistent regulations imposed by is a valid exercise of the police power, even as to

the different States through which they pass, yet, that sold in the original packages (25).

in the absence of congressional action, the police As said by the court in the case of In re Scheit- power of the States over this subject remains un

impaired (34). lin: “It simply singles out one color and enacts that that color, because of the likelihood that its ENACTMENTS PROTECTING Public MORALS. use would deceive the unwary into purchasing what

The courts have repeatedly been called upon to they do not desire, shall be prohibited.”

determine how far State legislation is constituWhere the statute relates only to oleomargarine

(26) In re Worthen, 58 Fed. Rep., 467. (20) Voight v. Wright, 141 U. S., 62. (Flour.)

tra, Ex parte Scott, 66 Fed. Rep., 45. (21) Arbuckle v. Blackburn, 113 Fed. Rep., 616.

(27) Patapsco Guano Co. v. N. Car., 171 U. S., 345. (22) In re Ware, 53 Fed. Rep., 783.

(28) Pittsburg Coal Co. v. La., 156 U. S., 590. (23) In re Gooch, 44 Fed. Rep., 276; In re McAllister, (29) Brass v. Stoeser, 153 U. S., 391. 51 Fed. Rep., 282; Schollenberger v. Penn., 171 U. S., 1. (30) Cotting v. Kansas City Co., 82 Fed. Rep., 850. (24) Collins v. New Hampshire, 171 U. S., 30.

(31) Re Saunders, 18 L. R. A., 549. (25) Armour Packing Co. v. Snyder, 84 Fed., 136; In (32) Smith v. Alabama, 124 U. S., 465; Nashville v. re Scheitlin, 99 Fed. Rep., 272; Plumley V. Mass., 155 Alabama, 128 U. S., 96. U. S., 461; Contra, In re Worthen, 58 Fed. Rep., 467; (33) Erb v. Morarch, 177 U. S., 584. In re Brundage, 96 Fed. Rep., 963.

(34) N. Y. R. R. Co. v. N. Y., 165 U. S., 628.

But see con


tional which purports to protect the public morals. the purchaser” is only nominally such and is It was decided that the States might not, under really the agent of the importer, the goods their police power, forbid the importation and sale 'arrive” within the State and become subject to of intoxicants in the original package (35), although ; local laws when they are delivered to the agent at such prohibitory laws were valid when applied only the railway station (43). to the manufacture and sale of domestic goods (36). At every point of the transit the liquors, is in the

Subsequently, in 1890, congress passed a law original package, are protected from prohibitory which allowed the States to deal with imported laws; and this has been held where the goods liquors after that had “arrived ” within the State, have reached the city to which they were exactly as if they were of domestic manufacture. signed and are removed by the agent of the Accordingly it was held that upon the withdrawal carrier from the station platform to a warehouse of the constitutional bar by congress liquors im- a few feet distant. The agent cannot be punished ported in the original packages were subject to under a stringent prohibitory law, although he local police regulations as soon as they arrived knew he was aiding in the introduction of liquors, within the State (37).

for the transit was not ended until the goods had This regulation, the courts say, must be a bona fide reached the warehouse and delivery had been made exercise of the police power. If it take the form to the consignee (44). of a license tax for the privilege of conducting As it is only by virtue of the Wilson act that beer depots and applies also to those in which States may prohibit the traffic in liquors remaining liquors in the original package are stored, and, if it in the original package, and as that act requires is evidently a revenue measure and not a police "arrival" within the State before constitutional regulation, the enactment is unjustifiable under the protection is withdrawn, it would follow that a Wilson act of 1890 above referred to (38).

State cannot forbid the soliciting within the State Nor can the State, even by virtue of the latter of orders for liquors to be imported in the original act, forbid the sale of liquors imported and sold wrappers by a foreign principal, nor could a disin the original package until they have arrived criminating license fee be exacted for such solicitwithin its boundaries. This has been held to mean ing (45). that the goods must have reached their destination It should be said, however, that the case cited and the transit must have been completed. Hence below was based upon the decision in Leisy v. Hara law forbidding the introduction of liquors into din (46), and did not recognize any change in the the State is void, because it operates beyond the law produced by the later decision of In State line and before the transit has ended (39). Rahrer (47). So it has been determined that goods have not

A large body of law has arisen from the enact"arrived ” within a State if they were brought by ment of dispensary acts by some of the Southern a vessel which is lying at a wharf located in the States. By these statutes it is sought to confine State, but the cargo has not been discharged (40); the retailing of liquors to agencies of the State, that the term “arrive ” means a cessation of the and thus eliminate the saloon as it is ordinarily transit, for “goods shipped from Virginia to Ala- conducted. The dispensary acts impliedly regard bama cannot be said to arrive in North Carolina, the sale and use of intoxicants as legal and proSouth Carolina or Georgia. They arrive' when tected by law, but seek to control such sale and they reach their destination in Alabama" (41).

consumption through State depots. It has, accordWhile it has been decided that a State (recogniz- ingly, been held that where such legal recognition ing liquors as articles of commerce) cannot forbid

accorded to the sale of liquors, the tate cannot their importation in the original package and de- forbid the importer from introducing his liquors livery to a purchaser who has bought directly from in the original package and storing them, preparathe foreign importer for his own use (42), yet, if tory to their sale in the original receptacles (48),

nor can the agents of the foreign dealer be pro(35) Bowman v. Chicago R. Co., 125 U. S., 465; Leisy v. Hardin, 135 U. S., 100.

hibited from soliciting orders from residents within (36) Kidd v. Pearson, 128 U. S., 1.

the State who thus purchase foreign liquors for (37) In re Spickler, 43 Fed. Rep., 653; In re Van Fleet, their own consumption (49). 43 Fed. Rep., 761; In re Rahrer, 140 U. S., 545. (38) Pabst Brewing Co. v. Terre Haute, 98 Fed. Rep.,

Likewise it has been held that where dispensary 330.

(39) Ex parte Edgerton, 59 Fed., 115; Ex parte (43) Stevens v. Ohio, 93 Fed. Rep., 793. Jervey, 66 Fed. Rep., 957.

(44) Rhodes v. Iowa, 170 U. S., 412. (40) Jervey v. The Carolina, 66 Fed. Rep., 1013.

(45) In re Lebolt, 77 Fed. Rep., 587 (1896). (41) In re Langford, 57 Fed. Rep., 570; Rhodes v. (46) Leisy v. Hardin, 135 U. S., 100. Iowa, 170 U. S., 412.

(47) In re Rahrer, 140 U. S., 545. (42) Ex parte Loeb, 72 Fed. Rep., 657; Scott v. Don- (48) Moore v. Bahr, 82 Fed. Rep., 19. ald, 165 U. S., 58.

(49) Ex parte Loeb, 72 Fed. Rep., 657.


acts are in force the State cannot forbid the im- If in single bottles, shipped singly, or, if in packportation of liquors by a citizen for his own use, ages of three or more securely fastened together as this is a discrimination in favor of domestic and and marked, or, if in a box, barrel, crate or other against foreign goods (50), as is also a law requir- receptacle, the single bottle, in the one instance, ing residents of the State who desire to import the barrel, box, crate or other receptacle, respecliquors for their own consumption to notify the tively, constitute the original package. If sold or State officers of their intent and obtain a certifi- delivered, it must be sold or delivered as shipped cate from such officers as to the purity of the and received” (55). liquors to be introduced (51).

In accord with this definition it has been decided The dispensary acts in their general features that where goods are inclosed together in a receptahave been sustained by the courts, the Supreme cle, each individual article being wrapped separCourt of the United States holding that the States, ately, the general case or box is the "original by authorizing the sale of liquors through dis- package" and not the distinct parcels inclosed (56). pensers, do not prevent themselves from regulating So it has been decided that where bottles of the traffic, even though such regulation relates to liquor are wrapped separately in tissue paper and interstate trade; provided there is no discrimina-labelled “ Original Package" and shipped in an open tion against producers who reside in other States. wooden box, with hay laid between the bottles, The same court also decided that the law is not and each box is marked with the number of bottles discriminating in permitting the dispensary officer contained, with their sizes, the outside receptacle to purchase liquors wherever he pleased, though, is the original package. But, if the carrier furas a matter of fact, he may and will buy only from nishes the case and it is fastened to the car in producers within his own State (52).

which are piled the bottles, corked and separately It is to be remembered that the State may pass wrapped and placed in bags separately directed, the many laws. which regulate the liquor traffic, even bags and the bottles they contain are the original in jurisdictions where there can be no absolute packages (57). prohibition of importation in the original package. As indicated by the above decisions, size has The time, place and quantity of sales may be pre- nothing to do with determining what is an original scribed under the police power (53), but such package (58), and it is immaterial whether the sale, restrictions must subject domestic and imported protected by the Constitution, is a sale to the liquors to the same burdens, otherwise the dis- wholesaler by the importer, or to a retailer, or to a crimination against the foreign product renders

consumer (59). the law unconstitutional (54).

But the transaction

be bona fide, and Closely related to the topic of intoxicants is the whether the package is to be regarded as origiquestion "what constitutes an original package?” nal” and, therefore, protected will depend upon This becomes important, even under the Wilson the size of packages in which bona fide transactions act of 1890, because if the State recognizes that are carried on between manufacturers and wholethe sale of liquors within its borders is lawful under sale dealers residing in different States. As said any circumstances (as by a dispensary act), it must by the Supreme Court of the United States in a treat sales of goods in the original package as recent case: · The whole theory of the exemption exempt from prohibition. If the goods have ceased of the original package from the operation of the to be interstate in their nature and have become State laws is based upon the idea that the proppart of the mass of property within the State, their erty is imported in the ordinary form in which, sale, outside of dispensaries, may be prohibited. from time immemorially, foreign goods have been The determination of the true meaning of the brought in the country.” The importation must phrase "original package " is of vital importance be made “in the usual manner prevalent among in regard to all goods from which congress has honest dealers and in a bona fide package of a not withdrawn its protection.

particular size” (60). The term in question has been thus defined: If the package is an “ original” one, merely “The original package is the package delivered

(55) Guckenheimer v. Sellers, 81 Fed. Rep., 997, 1000. by the importer to the carrier at the place of ship

(56) State v. Chapman, 10 L. R. A., 442, 438 (South ment in the exact condition in which it was shipped. Dakota, 1890); In re Harmon, 43 Fed. Rep., 372; In re


May, 82 Fed. Rep., 422; May v. New Orleans, 178 U. S., (50) Scott v. Donald, 165 U. S., 58. (51) Vance v. Vandercook Co., 170 U. S., 438.

(57) Keith v. Alabama, 10 L. R. A., 430 (Alabama, (52) Vance v. Vandercook Co., 170 U. S., 438.

1890). (53) Jacobs Pharmacy Co. v. Atlanta, 89 Fed. Rep., (58) State v. Winters, 10 L. R. A., 616 (Kansas, 244.

1890); Schollenberger v. Penn., 171 U. S., 1. (54) Minn. Brewing Co. v. McGillivray, 104

(59) Schollenberger v. Penn., 171 U. S., 1. Rep., 258.

(60) Austin v. Tenn., 179 U. S., 343.



lifting off the cover to see if it contains what it interstate commerce, but rather in aid thereof. The purport to hold is not a breaking of the bulk and court say: “ (Such laws) are not, in themselves, does not render it domestic (61).

regulations of interstate commerce, although they

control, in some degree, the conduct and liability ENACTMENTS FOR THE GENERAL WELFARE.

of those engaged in such commerce. So long as Many restrictions are sought to be imposed upon congress has not legislated upon the particular interstate traffic by reason of the broad and ill- subject, they are rather to be regarded as legisladefined branch of the police power known astion in aid of such commerce, and as a rightful “regulation for the public welfare.” Thus a State exercise of the police power of the State to regumay pass a game law forbidding the transportation late the relative rights and duties of all persons of all game to points without the State, when it and corporations within its limits” (69). has been killed lawfully or unlawfully within its

Laws regulating rates to be charged by railboundaries; the theory being that as the State owns

roads have been upheld where they apply only to all game before it is killed, and as game is not domestic traffic, but not where they relate to transstrictly an article of interstate commerce, the sov

portation between States (70). ereign may allow the slaughter of it on such terms

Statutes have been passed attempting to compel as it sees fit (62).

the stopping of railroad trains at county seats. If But this, it is held, does not permit the legisla

the railroad be a local one, though connecting with ture to forbid trafficing in game, lawfully killed in interstate lines at the borders of the State, the law another State (63).

is good (71), but where sufficient accommodations The regulation of the business of buying and sell

are provided by the carrier for all local traffic and ing cattle on commission for foreign principals, fast interstate trains are run through the State for where the cattle are within the State in which the the convenience of interstate passengers, the latter agent resides is not interference with interstate trains cannot be compelled to stop at all county commerce, but only incidentally affects it (64).

seats, nor can they be required to go out of their Laws regulating railroads have often been pre-way in order to reach stations not located on their sented to the courts and many restrictions have direct line (72). been laid upon the powers of the States. That It has been decided that State laws are invalid power is ample where the termini of the railroad which seek to abrogate the common-law rule reare both in the enacting State, though for a part quiring carriers to receive all persons who may of its course it runs through another, for such a apply for accommodation, so far as such laws apply railroad is not engaged in interstate commerce, if to interstate commerce (73); nor can a State rethere is no transfer or breaking of the bulk in the quire that railroads furnish separate coaches for latter State (65).

white and colored persons where the traffic is interIf, however, the corporation carries passengers state (74), though such regulations are proper when from one State to another, no tax can be levied they relate to domestic commerce only (75). upon its gross income from interstate business (66),

Acts forbidding sales of merchandise from the nor car the State, as a condition precedent to a cars in which they have been carried or from sheds carrier doing business within its borders, tax the of the carrier are held invalid as amounting to a receipts which represent the business done within restraint on interstate trade and intended to proits limits, where such is part of the carrier's inter-tect the local dealer against the non-resident state traffic (67).

importer (76). The running of freight trains on Sunday may be Many laws have been passed which exact fees prohibited by a State, although it relates to inter- or privilege taxes from corporations engaged both state, as well as local traffic (68).

in interstate and infrastate business. If the tax or Enactments forbidding all common carriers to license fee is imposed for engaging in local trade exempt themselves from their common-law lia- within the State, there is no constitutional objecbility are valid, as this is not an interference with tion to be made against it, even though the cor

(61) In re McAllister, 51 Fed. Rep., 282. (62) Geer v. Conn., 161 U. S., 519.

(63) In re Davenport, 102 Fed. Rep., 540; contra, In re Deininger, 108 Fed. Rep., 623.

(61) Hopkins v. U. S., 171 U. S., 578.
(65) Lehigh R. R. Co. v. Pa., 145 U. S., 192.
(66) Phila. Co. v. Pa., 122 U. S., 326.

(67) State of Indiana v. Pullman Co., 16 Fed. Rep., 193.

(68) Hemington v. Georgia, 163 U. S., 299.

(69) Ry. Co. v. Solan, 169 U. S., 133.

(70) L. & N. R. R. Co. v. R. R. Comrs., 19 Fed. Rep., 679; Wabash Co. v. Ill., 118 U. S., 557.

(71) Gladson v. Minn., 166 U. S., 426.

(72) Ill. Cent. R. R. v. Ill., 163 U. S., 142; C., C., C. & St. L. Ry. Co v. Ill., 177 U. S., 514.

(73) Brown v. Memphis Co., 5 Fed. Rep., 499.
(74) Anderson v. Louisville Co., 62 Fed. Rep., 46.
(75) Louisville Co. v. Minn., 133 U. S., 587.
(76) Spellman v. New Orleans, 45 Fed. Rep., 3.



poration is also employed in interstate traffic (77), may be made to take out a license before he can but, if the tax relate to both interstate and local canvass, although he acts for a foreign house (84). business and the different assessments cannot be A tax

on all “transient merchants" has been separated, or if it refer only to interstate business, upheld where there is no discrimination against the law is invalid (77a).

domestic and non-resident dealers (85). An important class of cases is that involving the Intimately connected with the subject last disright of a State to require a license fee for solicit- cussed is that of a State's right to tax imported ing orders within the State for a foreign principal. goods located within the State and remaining in Some courts have held that if there is no dis- the same condition in which they were when they crimination against the foreign dealer, but the tax arrived, and its right to license the sale of such is levied upon him as upon the representatives oi goods. While it is usually said that a license is a a domestic trader, the law is good (78).

tax, yet the two classes of cases above referred to The great weight of authority is against these are very different. If the State may impose a decisions. The principle is stated to be that the license fee for selling certain classes of goods imposition of such a fee is taxation without repre- within its limits, it may effectually burden intersentation, so far as foreign merchants are state

and discriminate against the cerned. “The idea of a citizen of the United States products of sister States. Thus Massachusetts being challenged anywhere in this nation by any might require a heavy license fee from all growers, power other than his own is decidedly absurd and manufacturers and importers of tobacco, and, as ridiculous" (79).

Massachusetts merchants do not manufacture, and The same rule has been sustained even where the Massachusetts farmers do not cultivate tobacco, foreign principal has a branch store within the tax- ! the whole tax would fall upon the importer; so ing State from which the merchandise is sent out South Carolina might impose similar burdens upon to fill orders taken by canvassers within the all manufacturers and importers of cotton State (80).

cloth (86). If the solicitor is not engaged in interstate com- This objection cannot be urged against a tax merce, he may be subjected to the tax, although upon all goods within the State, even though the he represents a foreign principal. Hence the local burden falls upon goods in the original package, agent of a foreign laundry (81), the representatives which have been iniported and have never become of an insurance company (82), and an emigrant a part of the mass of property within the State. agent engaged in employing laborers to work be- Thus it has been held that coal brought in barges yond the State, may all be required to pay a

from another State and which has reached its license fee before they are allowed to conduct their destination and has been put up for sale may be business (83) and, if the solicitor carries around | taxed as part of the property within the State, alwith him the imported article which he cells, he though it is still in the original vessels (87).

A tax very different in its nature is to be dis(77) Memphis Co. v. Nolan, 14 Fed. Rep., 532; Web- criminated from the one just considered, namely, ster V. Bell, 68 Fed. Rep., 183; Southern R. Co. v. Asheville, 69 Fed. Rep., 359; Horn Silver Mining Co. a tax upon the capital invested by a merchant in v. New York, 143 U. S., 305; Osborn v. Florida, 164 his business, where the amount of such capital is U. S., 650.

ascertained by taking the largest stock on hand (77a) Phila, Co. v. Pa., 122 U. S., 326.

during the year and adding it to the smallest stock (18) In re Rudolph, 2 Fed. Rep., 65; Ex parte Thornton, 12 Fed. Rep., 538; Ex parte Hanson, 28 Fed. Rep.. and dividing the total by two, thus obtaining an 127; Singer Mfg. Co. v. Wright, 33 Fed. Rep., 121; In average for the year. Even though the entire re Schechter, 63 Fed. Rep., 695 (act discriminating stock consists of imported goods in the original against foreign goods).

(79) In re Watson, 15 Fed. Rep., 511; Ex parte packages, the imposition is valid, for it is not a Stockton, 33 Fed. Rep., 95; In re White, 43 Fed. Rep., privilege tax for the right to exercise the trade of 913; In re Spain, 47 Fed. Rep., 208; In re Houston, 47 a merchant dealing in imported wares, nor need Fed. Rep., 539; In Rozelle, 57 Fed. Rep., 155; Louisiana v. Lagarde, 60 Fed. Rep., 186; In re Mit

(84) Emert v. Missouri, 156 U, S., 296. chell, 62 Fed. Rep., 576; Ex parte Hough, 69 Fed. Rep., 330; In Tuisman, 95 Fed. Rep., 648; Welton

(85) Ottumwa v. Zekind, 29 L. R. A., 734 (Iowa, 1895). Missouri, 91 U. S., 275; Walling v. People, 116 U. S., (86) American Fertilizing Co. v. Board, 11 L. R. A., 446; Robbins v. Shelby Dist., 120 U. S., 489; Corson v. 179; (s. c., 43 Fed. Rep., 609); Re Wilson, 48 L. R. A., Md., 120 U, S., 502; Asker v. Texas, 128 U. S., 129;

417 (N. M., 1900); Pabst Brewing Co. v. Terre Haute, Brennan v. Titusville, 153 U. S., 289.

98 Fed. Rep., 330; contra, see Preston v. Finley, 12 Fed.

Rep., 850; Oliver Co. (80) In re Nichols, 48 Fed. Rep., 164; In re Tyer

v. Speed, 87 Fed. Rep., 408,

semble. man, 48 Fed. Rep., 167. (81) Smith v. Jackson, 47 L. R. A., 416 (Tenn., 1899).

(87) Ex parte Brown, 48 Fed. Rep., 435, and, see

Woodruff v. Parham, 8 Wall. (U. S.), 123, and Hinson (82) Paul v. Virginia, 8 Wall. (U. S.), 168.

v. Lott, 8 Wall. (U. S.), 118 Brown v. Houston, 114 (83) Williams v. Tears, 179 U. S., 270.

l'. S., 622; Pittsburg Co. v. Bates, 156 U. S., 577.




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