which are exempt from taxation while in the original packages and in the hands of the importer.

In later cases the ruling in Woodruff v. Parham has been reaffirmed. The principle was applied to shipments of coal from Pennsylvania by water to New Orleans, to be sold in open market there. It was held1 that, though still on the river at New Orleans, it was intermingled with the general property in the State and subject to taxation, although it might be sold from the vessel, without being landed, and for the purpose of being taken out of the country on a vessel bound for a foreign port. It was subject to the taxing power of the State, because when the tax was levied, the coal was held in New Orleans for sale, and it was immaterial that thereafter some of it might have been sold for export. "A duty on exports must either be a duty levied on goods as a condition, or by reason of their exportation, or, at least, a direct tax or duty on goods intended for exportation." 2

In Brown v. Houston, the court also said, at pp. 633, 634:

"When the assessor of taxes goes his round, must he omit from his list of taxables all goods which have come into the city from the factories of New England and New Jersey, or from the pastures and grain fields of the West? If he must, what will be left for taxation? And how is he to distinguish between those goods which are taxable and those which are not? With the exception of goods imported from foreign countries, still in the original packages, and goods in transit to some other place, why may he not assess all property alike that may be found in the city, being there for the purpose of remaining there till used

1 Brown v. Houston, 114 U. S. 622; Pittsburgh, etc., Coal Co. v. Bates, 156 U. S. 577.

2 The court added, p. 629: "Whether the last would be a duty on exports it is not necessary to determine."

or sold, and constituting part of the great mass of its commercial capital-provided always, that the assessment be a general one, and made without discrimination between goods the product of New York, and goods the product of other States?"

§ 112. Tax must be without discrimination.

But the tax must be without discrimination as between the domestic and non-domestic goods. While property brought in from other States, although remaining in the original packages, can be taxed, it must be taxed as property in common with other property in the State, and there must be no discrimination against it. On this point the court said, at page 634, in the case last cited:

"We do not mean to say that if a tax collector should be stationed at every ferry and railroad depot in the city of New York, charged with the duty of collecting a tax on every wagon load, or car load of produce and merchandise brought into the city, that it would not be a regulation of, and restraint upon interstate commerce, so far as the tax should be imposed on articles brought from other States. We think it would be, and that it would be an encroachment upon the exclusive powers of Congress. It would be very different from the tax laid on auction sales of all property indiscriminately, as in the case of Woodruff v. Parham, which had no relation to the movement of goods from one State to another. It would be very different from a tax laid, as in the present case, on property which had reached its destination, and had become part of the general mass of property of the city, and which was only taxed as a part of that general mass in common with all other property in the city, and in precisely the same

manner.

66

When Congress shall see fit to make a regulation on the subject of property transported from one State to

another, which may have the effect to give it a temporary exemption from taxation in the State to which it is transported, it will be time enough to consider any conflict that may arise between such regulation and the general taxing laws of the State."

§ 113. Taxability of goods from other States not affected by decision in Leisy v. Hardin.

After the decision of the Supreme Court in Leisy v. Hardin, supra, wherein the whole subject of the power and jurisdiction of the State over property brought in from other States in the course of interstate commerce was examined, and the freedom of interstate commerce in the absence of congressional legislation asserted, the court was urged to overrule Brown v. Houston, on the ground that it had been in effect overruled by Leisy v. Hardin and other later decisions of the Supreme Court. In this case the coal, which had been brought down the river from Pittsburgh, was afloat at Baton Rouge in the original barges in which it had been exported from Pennsylvania. The court however reaffirmed its decision. It said that as the coal was subjected to no discrimination in favor of the products of Louisiana, but treated in exactly the same way, the tax was valid. It was not a tax imposed upon the coal as a foreign product, nor by reason of its being brought to Louisiana, nor while it was in a state of transit through Louisiana.2

§ 114. Original package in interstate commerce as to State police authority.

It will be observed that there is a distinction between the taxing power of the State and its police power with refer

1 Pittsburgh Coal Co. v. Bates, 156 U. S. 577.

2 In American Fertilizing Co. v. Board of Agriculture of Nor. Car., 43 Fed. Rep. 609, decided in 1890, the opinion was expressed that "Woodruff v. Parham, as well as the License cases, may be considered overruled by Leisy v. Hardin."

ence to the original packages in interstate shipments. Under the rulings referred to, Leisy v. Hardin and Bowman v. Railway Co., supra, in the absence of legislation by Congress, commerce between the States must be free. The State therefore in the exercise of its police power cannot exclude the products of other States, even though it may conclude that they are injurious to its people; but when these products are admitted into the State, they become subject to its taxing power equally with its own products. Thus, in a recent case,1 the act of the State of Pennsylvania prohibiting the introduction of oleomargarine from another State and its sale in the original package was held void as an interference with interstate commerce. held that oleomargarine is a lawful article of commerce, and that, while a State can regulate its introduction so as to insure purity, it cannot wholly exclude it. The right of the importer to sell in the original package does not depend upon whether such package is suitable for retail trade or not. The court said however, at page 24: "We do not say or intimate that this right of sale extended beyond the first sale by the importer after the arrival of the oleomargarine in the State."

It was

But in a later case2 the court sustained a conviction under the laws of Tennessee, for the sale of cigarettes in what were claimed to be original packages, on the ground that the size of the package was such as to indicate, under the circumstances, that it was prepared for the purpose of evading the law.

§ 115. What is an original package?

It is therefore necessary to determine what is an "original package," in regard both to importations from abroad

1 Schollenberger v. Pennsylvania, 171 U. S. 1, Justices Harlan and Gray dissenting.

2 Austin v. Tennessee, 179 U. S. 343.

and shipments from one State to another. In the case of foreign importation, the State cannot exclude nor can it tax either the business or the import, so long as the latter is in the hands of the importer in its original package. The State cannot exclude nor prevent the sale of shipments from another State in the original packages, but it can tax them, provided it does so without discrimination between that and the other property of the State. The determination of what is an original package therefore becomes important, both with reference to the police and the taxing authority of the State.

"

In a recent case from Louisiana the Supreme Court held that the original package" means the box or case in which the goods are shipped, and not the package in which they were placed by the manufacturer when manufactured, and before they were encased in the larger boxes for shipment.1 Thus packages of laces, household linens, etc., were held to lose their exemption when taken out of the boxes or cases in which they were shipped. The court said that to extend the exemption to the manufacturer's packages would mean that the power of the State to tax imported goods would depend upon the form in which the European manufacturer or packer shipped them to this country. Thus if he shipped fifty Geneva watches, all he need do would be to put each watch in a separate case.

In the Pennsylvania oleomargarine case, supra, a ten pound package of oleomargarine was held to be 66 an original package." But in Austin v. Tennessee the paper packages containing ten cigarettes unboxed or thrown loosely into baskets were held not to be "original packages within the meaning of the court's decisions. Justice

1 May v. New Orleans, 178 U. S. 496, affirming 51 La. Ann. 1064, four judges dissenting, Chief Justice Fuller and Justices Brewer, Shiras and Peckham.

2 In this case Justice White concurred in a separate opinion, and Justices Brewer, Shiras and Peckham and Chief Justice Fuller dissented.