THE DECISIONS OF THE Supreme Court of the United States AT OCTOBER TERM, 1897. Authenticated copy of opinion record strictly followed, except as to such reference words and figures as are inclosed in brackets.] 4. As Congress taxes oleomargarine and recognizes it as a proper subject of commerce, it cannot be totally excluded from a state simply because the state decides that, for the purpose of preventing the importation of an impure or adulterated article, it will not permit the introduction within its borders of the pure and unadulterated article. 5. A sale of a 10-pound package of oleomargarine manufactured, imported, and sold by the Importer under the circumstances found in the special verdict in this case, was a valid sale, although to a person who was a con sumer. 6. An importer may sell original packages of oleomargarine by an agent as well as person 7. Oleomargarine a subject of commerce-inspection-power of state-cannot be excluded from state-ten-pound packagessale by agent-sale to consumers-Penn- 8. sylvania statute invalid. 1 Oleomargarine, having been recognized by the act of Congress of 1886 as a proper subject of taxation and of traffic and exportation and importation, and being a well-known article of food, is a proper subject of commerce among the states and with foreign nations. 2. The fact that Inspection or analysis of the article imported is somewhat difficult and burdensome will not justify a state in totally excluding a pure and healthy food product. 3. A state cannot absolutely prohibit the introduction within its borders of an article of commerce which is not adulterated, and which in its pure state is healthful, simply facture may be adulterated by dishonest manufacturers, for the purpose of fraud or 11legal gains. because such article in the course of its manu NOTE. As to implied warranty on sale of food, see note to McQuaid v. Ross (Wis.) 22 L. R. A. 195. ally. An Importer has the right to sell oleomargarine in original packages to consumers as well as to wholesale dealers, and the exercise of this right will not be prevented by the fact that the packages are suitable for retail trade. The Pennsylvania statute of 1885, to the extent that it prohibits the introduction of oleomargarine from another state, and its sale in the original package as described in the speclal verdict in this case, is invalid. [Nos. 86-88.] Argued March 23, 24, 1898. Decided May 23, 1898. IN ERROR to the Supreme Court of the State of Pennsylvania to review a judgment of that court reversing the judgment of the trial court for the defendant in each of these cases and in favor of the Commonwealth of Pennsylvania convicting in pursuance of the special verdict said defendants severally of a violation of a statute of said state prohibiting the sale of oleomargarine, and remanding the visions sold to a consumer,—see note to Craft v. Parker (Mico.) 21 L. R. A. 139. As to power of Congress to regulate commerce,-see note to State, Corwin, v. Indiana & O). Oil, Gas & Min. Co. (Ind.) 6 L. R. A. 579. As to state tax or license as affecting com As to prohibition of sale of oleomargarine, see note to Com. v. Miller (Pa.) 6 L. R. A. 633. As to liability of vendor in cases of tort for sale of unwholesome food or drug; personal merce, see note to Rothermel v. Meyerle (Pa.) damages from negligent sale of drug; pro-9 L. R. A. 366. 171 U. S. U. S., Book 43. 4 49 cases for sentence. The cases were similar | July, 1893, paid to the collector of internal and the three cases were argued together. revenue of the first district of Pennsylvania Judgments of the Supreme Court reversed, the sum of four hundred and eignty dollars as and the cases remanded for further proceed- and for a special tax upon the business, as ings. agent for the Oakdale Manufacturing Company, in oleomargarine, and obtained from said collector a writing in the words following: See same case below, Com. v. Paul, 170 Pa. 284 [30 L. R. A. 396]. Statement by Mr. Justice Peckham: [2] *The questions in these three cases are the same, and they arise out of the selling of certain packages of oleomargarine. United States internal revenue. Stamp for Special tax, $480 $480 per year. per year. The plaintiffs in error were indicted for No. A 434. No. A 434. and convicted of a violation of a statute of Received from George Schollenberger, Pennsylvania prohibiting such sale. The act agent for the Oakdale Manufacturing Comwas passed on the 21st of May, 1885, and is pany, the sum of four hundred and eighty to be found in the volume of the laws of Penn-dollars for special tax on the business of sylvania for that year, page 22. It provides as follows: "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 of 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 in his, her, or their possession with intent to sell the same as an article of food." wholesale dealer in oleomargarine, to be car- Dated at Philadelphia, Pa., July first, 1893. "The following clauses appear on the| margin of the above: e [4] "This stamp is simply a receipt for a tax due the government, and does not exempt the holder from any penalty or punishment proA violation of the act is made a misde-vided for by the law of any state for carrying meanor and punishable by fine and imprison ment. The jury found a special verdict in each case. The only difference between the facts stated in the verdict in number 86 and those contained in the other cases is that in the latter the package sold was 10 pounds instead of 40 pounds and was sold by the plaintiffs in error in those cases as agents of a different principal, carrying on the same kind of business in the state of Illinois, and the package was sold to a different person and upon a different date. [3] *The following facts were set out in the special verdict in number 86: 66 on the said business within such state, and does not authorize the commencement nor the continuance of such business contrary to the laws of such state or in places prohibited by a municipal law. See § 3243, Revised Statutes, U. S. "Severe penalties are imposed for neglect or refusal to place and keep this stamp conspicuously in your establishment or place of business. Act of August 2, 1886.' "Attached to this were coupons for each month of the year in form as follows: "Coupon for special tax on wholesale dealer in oleomargarine for October, 1893.' (5) On or before the said second day of (1) The defendant, George Schollenberger, October, 1893, the said Oakdale Manufacturis a resident and citizen of the commonwealth ing Company shipped to the said defendant, of ennsylvania, and is the duly authorized their agent aforesaid, at their place of busiagent in the city of Philadelphia of the Oak-ness in Philadelphia, a package of oleomardale Manufacturing Company of Providence, garine separate and apart from all other packages, being a tub thereof containing forty Rhode Island. (2) The said Oakdale Manufacturing Com- pounds, packed, sealed, marked, stamped, and pany is engaged in the manufacture of oleo-branded in accordance with the requirements margarine in the said city of Providence and of the said act of Congress of August second, state of Rhode Island, and as such manufact- 1886. The said package was an original urer has complied with all the provisions of the act of Congress of August 2, 1886, entitled 'An Act Defining Butter; also Imposing a Tax upon and Regulating the Manufacture, Sale, Importation, and Exportation of Oleo-transportation margarine.' "(3) The said defendant, as agent aforesaid, is engaged in business at 219 Callowhill street, in the city of Philadelphia, as wholesale dealer in oleomargarine, and was so engaged on the 2d day of October, 1893, and is not engaged in any other business, either for himself or package, as required by said act, 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 of merchandise between dealers in the ordinary course of actual commerce, and the said form, size, and weight were adopted in good faith and not for the purpose of evading the laws of the commonwealth of Pennsylvania, said package being one of a number of similar packages forming one consignment shipped by the said company to the said defendant. Said packages forming said consignment were unloaded from the cars and placed in defendant's store and then | its citizens the question whether it is wholeoffered for sale as an article of food. some and nondeceptive, and neither the Con"(6) On the said second day of October, gress of the United States nor the legislatures 1893, in the said city of Philadelphia, at the of other states can deprive it of this right, place of business aforesaid, the said defend- 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, tation of merchandise, is not presumptively Rhode Island, and thence transported into void but is conclusively valid. 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. (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 to the consumer, the package in which it is imported from another state is not an "original package" within the protection of the interstate commerce provision of the Constitution of the United States. "(7) The oleomargarine contained in said tub was manufactured out of an oleaginous 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 oleo- These are the main grounds upon which the margarine and not butter was made known conviction is sought to be sustained. The by the defendant to the purchaser, and there supreme court of the state upheld the statute was no attempt or purpose on the part of the upon the ground that it was a legitimate exdefendant to sell the article as butter, or any ercise of the police power of the state not inunderstanding on the part of the purchaser consistent with the right of the owner of the that he was buying anything but oleomar- product to bring it within the state in approgarine, 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]. 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 (1) That oleomargarine is a newly invent- legislation did not hamper the actual transed or discovered article, and that each state portation of merchandise, the statute must be has the right in the case of a newly invented held to be within the power of the legislature or discovered food product to determine for to enact, and is therefore valid; at all events, 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 opin ion of the court: Counsel in behalf of the commonwealth rests the validity of the statute in question upon two principal grounds: |