If the statute seeks to prohibit the introduction and sale of articles of food colored, coated or polished," whereby damage or inferiority is concealed, the law is good, even though its application may affect articles imported from another State in the original packages (21).

But an act which requires all baking power packages containing alum to exhibit a statement to that effect, plainly stamped upon the wrapper, is unconstitutional as an unwarranted interference with interstate trade (22).

ENACTMENTS AGAINST FRAUD AND IMPOSITION. The States have attempted to regulate interstate commerce by invoking that elastic branch of the police power by which laws are passed protecting the citizen from fraud and imposition. Foremost in importance among these statutes is the legislation against oleomargarine. The result of the decided cases is that if there is an absolute prohibition upon the importation and sale of this substance in the original package, without regard to whether it purports to be butter or whether it is colored in imitation thereof, the restriction is unconstitutional, for the reason that congress by taxing it has regarded oleomargarine as a legitimate article of commerce, and hence its sale cannot be altogether forbidden by a State (23). So, if the law purports only to regulate, but, in fact, prohibits, it is invalid, as where the sale of oleomargarine in original packages is forbidden, unless it is colored a bright pink (24).

If, however, the object of the statute is not the exclusion of all oleomargarine, but only such as is colored in imitation of butter, and hence is likely to impose upon buyers, the prohibitory legislation is a valid exercise of the police power, even as to that sold in the original packages (25).

As said by the court in the case of In re Scheitlin: "It simply singles out one color and enacts that that color, because of the likelihood that its use would deceive the unwary into purchasing what they do not desire, shall be prohibited."

Where the statute relates only to oleomargarine

(21) Arbuckle v. Blackburn, 113 Fed. Rep., 616. (22) In re Ware, 53 Fed. Rep., 783.

(23) In re Gooch, 44 Fed. Rep., 276; In re McAllister, 51 Fed. Rep., 282; Schollenberger v. Penn., 171 U. S., 1. (24) Collins v. New Hampshire, 171 U. S., 30.

(25) Armour Packing Co. v. Snyder, 84 Fed., 136; In re Scheitlin, 99 Fed. Rep., 272; Plumley v. Mass., 155 U. S., 461; Contra, In re Worthen, 58 Fed. Rep., 467; In re Brundage, 96 Fed. Rep., 963.

Upon the same principle State laws providing for the inspection of commercial fertilizer (27), and coal in the original barges (28), are valid, although affecting goods which are imported and remain in the orignal package or receptacle.

Similarly, in order to protect the people of the State against imposition in the collection of warehouse rates, these charges may be regulated by the legislature (29), as may the fees exacted by interstate stock yards companies (30).

It has been properly held that a State statute requiring all packages of seeds sold in the State to be marked with the year in which the seeds were grown, is an interference with interstate commerce, because it practically discriminates against the foreign importer and in favor of the domestic farmer, who, under the express terms of the law, need not label the seed he has grown and offers for sale (31).

ENACTMENTS FOR PHYSICAL SAFETY.

The physical safety of the public is protected by laws, which, though they impose heavy restrictions upon interstate communication, are permitted as police regulations. Thus the State may demand that engineers employed upon railway locomotives shall be examined for color blindness and may forbid the employment within the State of such as are Enactments found deficient in this regard (32). allowing cities to prescribe the rate of speed at which all trains (local and interstate) may run through the city limits are held unobjectionable (33), and the Supreme Court of the United States has sustained a State law forbidding all railroads, running within the State, to heat their cars by stoves or furnaces kept inside or suspended from the coaches. The court remark that while the railway companies might be seriously inconvenienced by inconsistent regulations imposed by the different States through which they pass, yet, in the absence of congressional action, the police power of the States over this subject remains unimpaired (34).

ENACTMENTS PROTECTING PUBLIC MORALS. The courts have repeatedly been called upon to determine how far State legislation is constitu

(26) In re Worthen, 58 Fed. Rep., 467. But see contra, Ex parte Scott, 66 Fed. Rep., 45.

(27) Patapsco Guano Co. v. N. Car., 171 U. S., 345. (28) Pittsburg Coal Co. v. La., 156 U. S., 590. (29) Brass v. Stoeser, 153 U. S., 391.

(30) Cotting v. Kansas City Co., 82 Fed. Rep., 850. (31) Re Saunders, 18 L. R. A., 549.

(32) Smith v. Alabama, 124 U. S., 465; Nashville v. Alabama, 128 U. S., 96.

(33) Erb v. Morarch, 177 U. S., 584.

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

66

to the manufacture and sale of domestic goods (36). Subsequently, in 1890, congress passed a law which allowed the States to deal with imported liquors after that had "arrived" within the State, exactly as if they were of domestic manufacture. Accordingly it was held that upon the withdrawal of the constitutional bar by congress liquors imported in the original packages were subject to local police regulations as soon as they arrived within the State (37).

This regulation, the courts say, must be a bona fide exercise of the police power. If it take the form of a license tax for the privilege of conducting beer depots and applies also to those in which liquors in the original package are stored, and, if it is evidently a revenue measure and not a police regulation, the enactment is unjustifiable under the Wilson act of 1890 above referred to (38).

Nor can the State, even by virtue of the latter act, forbid the sale of liquors imported and sold in the original package until they have arrived within its boundaries. This has been held to mean that the goods must have reached their destination and the transit must have been completed. Hence a law forbidding the introduction of liquors into the State is void, because it operates beyond the State line and before the transit has ended (39). So it has been determined that goods have not "arrived" within a State if they were brought by a vessel which is lying at a wharf located in the State, but the cargo has not been discharged (40); that the term "arrive" means a cessation of the transit, for "goods shipped from Virginia to Alabama cannot be said to arrive in North Carolina, South Carolina or Georgia. They arrive' when they reach their destination in Alabama" (41). While it has been decided that a State (recognizing liquors as articles of commerce) cannot forbid their importation in the original package and delivery to a purchaser who has bought directly from the foreign importer for his own use (42), yet, if

(35) Bowman v. Chicago R. Co., 125 U. S., 465; Leisy v. Hardin, 135 U. S., 100.

(36) Kidd v. Pearson, 128 U. S., 1.

(37) In re Spickler, 43 Fed. Rep., 653; In re Van Fleet,

43 Fed. Rep., 761; In re Rahrer, 140 U. S., 545.

(38) Pabst Brewing Co. v. Terre Haute, 98 Fed. Rep., 330.

(39) Ex parte Edgerton, 59 Fed., 115; Ex parte Jervey, 66 Fed. Rep., 957.

(40) Jervey v. The Carolina, 66 Fed. Rep., 1013.

(41) In re Langford, 57 Fed. Rep., 570; Rhodes v. Iowa, 170 U. S., 412.

(42) Ex parte Loeb, 72 Fed. Rep., 657; Scott v. Donald, 165 U. S., 58.

At every point of the transit the liquors, if in the original package, are protected from prohibitory laws; and this has been held where the goods have reached the city to which they were consigned and are removed by the agent of the carrier from the station platform to a warehouse a few feet distant. The agent cannot be punished under a stringent prohibitory law, although he knew he was aiding in the introduction of liquors, for the transit was not ended until the goods had reached the warehouse and delivery had been made to the consignee (44).

As it is only by virtue of the Wilson act that States may prohibit the traffic in liquors remaining in the original package, and as that act requires "arrival" within the State before constitutional protection is withdrawn, it would follow that a State cannot forbid the soliciting within the State of orders for liquors to be imported in the original wrappers by a foreign principal, nor could a discriminating license fee be exacted for such soliciting (45).

It should be said, however, that the case cited below was based upon the decision in Leisy v. Hardin (46), and did not recognize any change in the law produced by the later decision of In re Rahrer (47).

A large body of law has arisen from the enactment of dispensary acts by some of the Southern States. By these statutes it is sought to confine the retailing of liquors to agencies of the State, and thus eliminate the saloon as it is ordinarily conducted. The dispensary acts impliedly regard the sale and use of intoxicants as legal and protected by law, but seek to control such sale and consumption through State depots. It has, accordingly, been held that where such legal recognition is accorded to the sale of liquors, the State cannot forbid the importer from introducing his liquors in the original package and storing them, preparatory to their sale in the original receptacles (48), nor can the agents of the foreign dealer be prohibited from soliciting orders from residents within the State who thus purchase foreign liquors for their own consumption (49).

Likewise it has been held that where dispensary

(43) Stevens v. Ohio, 93 Fed. Rep., 793. (44) Rhodes v. Iowa, 170 U. S., 412. (45) In re Lebolt, 77 Fed. Rep., 587 (1896). (46) Leisy v. Hardin, 135 U. S., 100. (47) In re Rahrer, 140 U. S., 545. (48) Moore v. Bahr, 82 Fed. Rep., 19. (49) Ex parte Loeb, 72 Fed. Rep., 657.

The dispensary acts in their general features have been sustained by the courts, the Supreme Court of the United States holding that the States, by authorizing the sale of liquors through dispensers, do not prevent themselves from regulating the traffic, even though such regulation relates to interstate trade; provided there is no discrimination against producers who reside in other States. The same court also decided that the law is not discriminating in permitting the dispensary officer to purchase liquors wherever he pleased, though, as a matter of fact, he may and will buy only from producers within his own State (52).

It is to be remembered that the State may pass many laws which regulate the liquor traffic, even in jurisdictions where there can be no absolute prohibition of importation in the original package. The time, place and quantity of sales may be prescribed under the police power (53), but such restrictions must subject domestic and imported liquors to the same burdens, otherwise the discrimination against the foreign product renders the law unconstitutional (54).

Closely related to the topic of intoxicants is the question "what constitutes an original package?" This becomes important, even under the Wilson act of 1890, because if the State recognizes that the sale of liquors within its borders is lawful under any circumstances (as by a dispensary act), it must treat sales of goods in the original package as exempt from prohibition. If the goods have ceased to be interstate in their nature and have become part of the mass of property within the State, their sale, outside of dispensaries, may be prohibited. The determination of the true meaning of the phrase "original package" is of vital importance in regard to all goods from which congress has not withdrawn its protection.

In accord with this definition it has been decided that where goods are inclosed together in a receptacle, each individual article being wrapped separately, the general case or box is the original package" and not the distinct parcels inclosed (56). So it has been decided that where bottles of liquor are wrapped separately in tissue paper and labelled "Original Package" and shipped in an open wooden box, with hay laid between the bottles, and each box is marked with the number of bottles contained, with their sizes, the outside receptacle is the original package. But, if the carrier furnishes the case and it is fastened to the car in which are piled the bottles, corked and separately wrapped and placed in bags separately directed, the bags and the bottles they contain are the original packages (57).

As indicated by the above decisions, size has nothing to do with determining what is an original package (58), and it is immaterial whether the sale, protected by the Constitution, is a sale to the wholesaler by the importer, or to a retailer, or to a consumer (59).

As said

But the transaction must be bona fide, and whether the package is to be regarded as "original" and, therefore, protected will depend upon the size of packages in which bona fide transactions are carried on between manufacturers and wholesale dealers residing in different States. by the Supreme Court of the United States in a recent case: "The whole theory of the exemption of the original package from the operation of the State laws is based upon the idea that the property is imported in the ordinary form in which, from time immemorially, foreign goods have been brought in the country." The importation must be made "in the usual manner prevalent among honest dealers and in a bona fide package of a particular size" (60).

If the package is an "original" one, merely

(55) Guckenheimer v. Sellers, 81 Fed. Rep., 997, 1000. (56) State v. Chapman, 10 L. R. A., 442, 438 (South Dakota, 1890); In re Harmon, 43 Fed. Rep., 372; In re May, 82 Fed. Rep., 422; May v. New Orleans, 178 U. S., 496. (57) Keith v. Alabama, 10 L. R. A., 430 (Alabama, 1890).

(58) State v. Winters, 10 L. R. A., 616 (Kansas, 1890); Schollenberger v. Penn., 171 U. S., 1. (59) Schollenberger v. Penn., 171 U. S., 1. (60) Austin v. Tenn., 179 U. S., 343.

lifting off the cover to see if it contains what it purport to hold is not a breaking of the bulk and does not render it domestic (61).

ENACTMENTS FOR THE GENERAL WELFARE. Many restrictions are sought to be imposed upon interstate traffic by reason of the broad and illdefined branch of the police power known as "regulation for the public welfare." Thus a State may pass a game law forbidding the transportation of all game to points without the State, when it has been killed lawfully or unlawfully within its boundaries; the theory being that as the State owns all game before it is killed, and as game is not strictly an article of interstate commerce, the sovereign may allow the slaughter of it on such terms as it sees fit (62).

But this, it is held, does not permit the legislature to forbid trafficing in game, lawfully killed in another State (63).

The regulation of the business of buying and selling cattle on commission for foreign principals, where the cattle are within the State in which the agent resides is not interference with interstate commerce, but only incidentally affects it (64).

Laws regulating railroads have often been presented to the courts and many restrictions have been laid upon the powers of the States. That power is ample where the termini of the railroad are both in the enacting State, though for a part of its course it runs through another, for such a railroad is not engaged in interstate commerce, if there is no transfer or breaking of the bulk in the latter State (65).

If, however, the corporation carries passengers from one State to another, no tax can be levied upon its gross income from interstate business (66), nor car the State, as a condition precedent to a carrier doing business within its borders, tax the receipts which represent the business done within its limits, where such is part of the carrier's interstate traffic (67).

The running of freight trains on Sunday may be prohibited by a State, although it relates to interstate, as well as local traffic (68).

Enactments forbidding all common carriers to exempt themselves from their common-law liability are valid, as this is not an interference with

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

interstate commerce, but rather in aid thereof. The court say: "(Such laws) are not, in themselves, regulations of interstate commerce, although they control, in some degree, the conduct and liability of those engaged in such commerce. So long as congress has not legislated upon the particular subject, they are rather to be regarded as legislation in aid of such commerce, and as a rightful exercise of the police power of the State to regulate the relative rights and duties of all persons and corporations within its limits" (69).

Laws regulating rates to be charged by railroads have been upheld where they apply only to domestic traffic, but not where they relate to transportation between States (70).

Statutes have been passed attempting to compel the stopping of railroad trains at county seats. If the railroad be a local one, though connecting with interstate lines at the borders of the State, the law is good (71), but where sufficient accommodations are provided by the carrier for all local traffic and fast interstate trains are run through the State for the convenience of interstate passengers, the latter trains cannot be compelled to stop at all county seats, nor can they be required to go out of their way in order to reach stations not located on their direct line (72).

It has been decided that State laws are invalid which seek to abrogate the common-law rule requiring carriers to receive all persons who may apply for accommodation, so far as such laws apply to interstate commerce (73); nor can a State require that railroads furnish separate coaches for white and colored persons where the traffic is interstate (74), though such regulations are proper when they relate to domestic commerce only (75).

Acts forbidding sales of merchandise from the cars in which they have been carried or from sheds of the carrier are held invalid as amounting to a restraint on interstate trade and intended to protect the local dealer against the non-resident importer (76).

Many laws have been passed which exact fees or privilege taxes from corporations engaged both in interstate and infrastate business. If the tax or license fee is imposed for engaging in local trade within the State, there is no constitutional objection to be made against it, even though the cor

(64) 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.

(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), but, if the tax relate to both interstate and local business and the different assessments cannot be separated, or if it refer only to interstate business, the law is invalid (77a).

An important class of cases is that involving the right of a State to require a license fee for soliciting orders within the State for a foreign principal. Some courts have held that if there is no discrimination against the foreign dealer, but the tax is levied upon him as upon the representatives of a domestic trader, the law is good (78).

may be made to take out a license before he can canvass, although he acts for a foreign house (84). A tax on all transient merchants" has been upheld where there is no discrimination against domestic and non-resident dealers (85).

Intimately connected with the subject last discussed is that of a State's right to tax imported goods located within the State and remaining in the same condition in which they were when they arrived, and its right to license the sale of such goods. While it is usually said that a license is a tax, yet the two classes of cases above referred to are very different. If the State may impose a license fee for selling certain classes of goods within its limits, it may effectually burden inter

The same rule has been sustained even where the foreign principal has a branch store within the taxing State from which the merchandise is sent out to fill orders taken by canvassers within the State (80).

If the solicitor is not engaged in interstate commerce, he may be subjected to the tax, although he represents a foreign principal. Hence the local agent of a foreign laundry (81), the representatives of an insurance company (82), and an emigrant agent engaged in employing laborers to work beyond the State, may all be required to pay a license fee before they are allowed to conduct their business (83) and, if the solicitor carries around with him the imported article which he sells, he

(77) Memphis Co. v. Nolan, 14 Fed. Rep., 532; Webster v. Bell, 68 Fed. Rep., 183; Southern R. Co. v. Asheville, 69 Fed. Rep., 359; Horn Silver Mining Co. v. New York, 143 U. S., 305; Osborn v. Florida, 164 U. S., 650.

(77a) Phila. Co. v. Pa., 122 U. S., 326.

(78) In re Rudolph, 2 Fed. Rep., 65; Ex parte Thorn

ton, 12 Fed. Rep., 538; Ex parte Hanson, 28 Fed. Rep., 127; Singer Mfg. Co. v. Wright, 33 Fed. Rep., 121; In re Schechter, 63 Fed. Rep., 695 (act discriminating against foreign goods).

(79) In re Watson, 15 Fed. Rep., 511; Ex parte Stockton, 33 Fed. Rep., 95; In re White, 43 Fed. Rep., 913; In re Spain, 47 Fed. Rep., 208; In re Houston, 47 Fed. Rep., 539; In re Rozelle, 57 Fed. Rep., 155; Louisiana v. Lagarde, 60 Fed. Rep., 186; In re Mitchell, 62 Fed. Rep., 576; Ex parte Hough, 69 Fed. Rep., 330; In re Tuisman, 95 Fed. Rep., 648; Welton v. Missouri, 91 U. S., 275; Walling v. People, 116 U. S., 446; Robbins v. Shelby Dist., 120 U. S., 489; Corson v. Md., 120 U. S., 502; Asker v. Texas, 128 U. S., 129; Brennan v. Titusville, 153 U. S., 289.

(80) In re Nichols, 48 Fed. Rep., 164; In re Tyerman, 48 Fed. Rep., 167.

(81) Smith v. Jackson, 47 L. R. A., 416 (Tenn., 1899). (82) Paul v. Virginia, 8 Wall. (U. S.), 168. (83) Williams v. Tears, 179 U. S., 270.

products of sister States. Thus Massachusetts might require a heavy license fee from all growers, manufacturers and importers of tobacco, and, as Massachusetts merchants do not manufacture, and Massachusetts farmers do not cultivate tobacco, the whole tax would fall upon the importer; so South Carolina might impose similar burdens upon all manufacturers and importers of cotton cloth (86).

This objection cannot be urged against a tax upon all goods within the State, even though the burden falls upon goods in the original package, which have been imported and have never become a part of the mass of property within the State. Thus it has been held that coal brought in barges from another State and which has reached its destination and has been put up for sale may be taxed as part of the property within the State, although it is still in the original vessels (87).

A tax very different in its nature is to be discriminated from the one just considered, namely, a tax upon the capital invested by a merchant in his business, where the amount of such capital is ascertained by taking the largest stock on hand during the year and adding it to the smallest stock and dividing the total by two, thus obtaining an average for the year. Even though the entire stock consists of imported goods in the original packages, the imposition is valid, for it is not a privilege tax for the right to exercise the trade of a merchant dealing in imported wares, nor need

(84) Emert v. Missouri, 156 U. S., 296.

(85) Ottumwa v. Zekind, 29 L. R. A., 734 (Iowa, 1895). (86) American Fertilizing Co. v. Board, 11 L. R. A., 179; (s. c., 43 Fed. Rep., 609); Re Wilson, 48 L. R. A., 417 (N. M., 1900); Pabst Brewing Co. v. Terre Haute, 98 Fed. Rep., 330; contra, see Preston v. Finley, 72 Fed. Rep., 850; Oliver Co. v. Speed, 87 Fed. Rep., 408, semble.

(87) Ex parte Brown, 48 Fed. Rep., 435, and, see Woodruff v. Parham, 8 Wall. (U. S.), 123, and Hinson v. Lott, 8 Wall. (U. S.), 148 Brown v. Houston, 114 U. S., 622; Pittsburg Co. v. Bates, 156 U. S., 577.