the state has a right in cases of newly invented food products to determine for its citizens the question whether they are wholesome and nondeceptive, and that oleomargarine is one of that class of products and is necessarily subject to the right of the state, either to regulate or absolutely to prohibit its sale. sioner of Internal Revenue is to decide in such cases as to the taxation, and his decision is to be final. The Commissioner is also empowered to decide "whether any substance made in imitation or semblance of butter, and intended for human consumption, contains ingredients deleterious to the public In the examination of this subject the first health; but in case of doubt or contest his question to be considered is whether oleomar decisions in this class of cases may be apgarine is an article of commerce? No affirm-pealed from to a board hereby constituted for ative evidence from witnesses called to the the purpose, composed of the surgeon genstand and speaking directly to that subject eral of the army, the surgeon general of the [8] is found in the record. *We must determine navy and the commissioner of agriculture, the question with reference to those facts and the decisions of this board shall be final which are so well and universally known that in the premises." Provision is also made for courts will take notice of them without par- the removal of oleomargarine from the place ticular proof being adduced in regard to of its manufacture for export to a foreign them, and also by reference to those dealings country without payment of tax or affixing of the commercial world which are of like of stamps thereto, and there is a penalty denotoriety. nounced against any person engaged in car This act shows that Congress at the time of its passage in 1886 recognized the article as a proper subject of taxation and as one which was the subject of traflic and of exportation to foreign countries and of im facture was recognized as a lawful pursuit, and taxation was levied upon the manufac turer of the article, upon the wholesale and retail dealers therein, and also upon the article itself. Treasury, which show that the tax receipts from its manufacture and sale in the United States under the act above mentioned during the nine years, beginning with 1887, amounted to over $10,000,000. Any legislation of Congress upon the sub-rying on the business of oleomargarine who ject must, of course, be regarded by this court should defraud or attempt to defraud the as a fact of the first importance. If Congress United States of the tax. has affirmatively pronounced the article to be a proper subject of commerce, we should rightly be influenced by that declaration. By reference to the statutes we discover that Congress in 1886 passed "An Act Defining Butter, also Imposing a Tax upon and Regu-portation from such countries. Its manulating the Manufacture, Sale, Importation, and Exportation of Oleomargarine." 24 Stat. at L. 209, chap. 840. In that statute we find that Congress has given a definition of the meaning of oleomargarine and has imposed a special tax on the manufacturers of the As to the extent of the manufacture and article, on wholesale dealers and upon retail its commercial nature, it is not improper to dealers therein, and the provisions of the Re-refer to the reports of the Secretary of the vised Statutes in relation to special taxes are, so far as applicable, made to extend to the special taxes imposed by the 3d section of the act, and to the persons upon whom they are imposed. Manufacturers are required to file with the proper collector of internal reve- When we come to an inquiry as to the nue such notices, and to keep such books and properties of oleomargarine and of what the conduct their business under such supervision substance is composed, we find that answers as the Commissioner of Internal Revenue, to such inquiries are to be found in the vawith the approval of the Secretary of the rious encyclopædias of the day, and in the [10] Treasury, may by regulation require. Pro- official reports of the commissioner of agrivision is made for the packing of oleomargar-culture and in the legal reports of cases actine by the manufacturer in packages con-ually decided in the courts of the country. taining not less than 10 pounds and marked In brief, every intelligent man knows its as prescribed in the act, and it provides that general nature, and that it is prepared as an all sales made by manufacturers of oleomar-article of food, and is dealt in as such to a garine and wholesale dealers in oleomargar- large extent throughout this country and in ine shall be in the original stamped pack- Europe. ages. A tax of 2 cents per pound is laid Upon reference to the Encyclopædia Britupon oleomargarine to be paid by the manu- annica it is said that "pure oleomargarine facturer, and the tax levied is to be repre- butter is said to contain every element that sented by coupon stamps. Oleomargarine enters into cream butter, and to keep pure imported from foreign countries is taxed in much longer; but there is the defect of not addition to the import duty imposed on the knowing when it is pure or what injurious same an internal revenue tax of 15 cents per ingredients, or objectionable processes, may be pound. Provision is made for warehousing, used in its manufacture by irresponsible and a penalty imposed for selling the oleo-parties," The article also says: "We append a margarine thus imported if not properly comparative analysis of natural and artificial [9] stamped. Provision is also made for the ap- butter, which shows that, when properly pointment of an analytical chemist and mi-made, the latter is a wholesome and satiscroscopist by the Secretary of the Treasury, factory substitute for the former." and such chemist or microscopist may examine the different substances which may be submitted in contested cases, and the Commis There is contained in the 17th volume of the Encyclopædia Britannica an extract from a report by the secretary of the British em [11] bassy at Washington, in 1880, describing the tracted to it as a source of revenue. nent French scientist who had been employed such police power does not include the total exclusion even of an article of food. ticle of food was not a rightful exercise of the police power of the state if the inspection prescribed were of such a character or if it were burdened with such conditions as would wholly prevent the introduction of the sound article from other states. This was held in relation to the slaughter of animals whose meat was to be sold as food in the state passing the so-called inspection law. The principle was affirmed in Brimmer v. Rebman, 138 U. S. 78 [34: 862, 3 Inters. Com. Rep. 485], and in Scott v. Donald, 165 U. S. 58, 97 [41: 632, 644]. The general rule to be deduced from the decisions of this court is that a lawful article of commerce cannot be wholly excluded from importation into a state from another state *In People v. Marx, 99 N. Y. 377 [52 Am. where it was manufactured or grown. ▲ Rep. 34], which was a prosecution under the state has power to regulate the introduction New York statute (chap. 202, Laws of 1884) of any article, including a food product, so as prohibiting the manufacture or sale of oleo-to insure purity of the article imported, but margarine, the court of appeals of New York held the act unconstitutional. It appears from the opinion that on the trial of that ac- In Minnesota v. Barber, 136 . S. 313 tion on the part of the defendant "it was [34: 455, 3 Inters. Com. Rep. 185], it was proved by distinguished chemists that oleo-held that an inspection law relating to an ar margarine was composed of the same elements as dairy butter. That the only difference between them was that it contained a smaller proportion of fatty substance known as butterine. That this butterine exists in dairy butter only in a small proportion-from three to six per cent. That it exists in no other substance than butter made from milk and it is introduced into oleomargarine butter by adding to oleomargarine stock some milk, cream, or butter, and churning, and when this is done it has all the elements of natural butter, but there must always be a smaller percentage of butterine in the manufactured Is the rule altered in a case where the inproduct than in butter made from milk. The spection or analysis of the article to be imonly effect of the butterine is to give flavor to ported is somewhat difficult and burdensome? the butter, having nothing to do with its Can the pure and healthy food product be wholesomeness. That the oleaginous sub- totally excluded on that account? No case stances in the oleomargarine are substantially has gone to that extent in this court. The identical with those produced from milk or nearest approach to it was the case of Peirce cream. Professor Chandler testified that the v. New Hampshire, 46 U. S. 5 How. 504 only difference between the two articles was [12: 256], involving the importation of intoxthat dairy butter had more butterine. That icating liquors. But in Leisy v. Hardin, 135 oleomargarine contained not over 1 per cent U. S. 100 [34: 128, 3 Inters. Com. Rep. 36], of that substance, while dairy butter might the New Hampshire case was overruled, contain four or five per cent, and that if four and it was stated by the present Chief Jusor five per cent of butterine were added to the tice, in speaking for the court, *that “what- [13] oleomargarine, there would be no difference; ever our individual views may be as to the it would be butter; irrespective of the deleterious or dangerous qualities of parsources, they would be the same substances. ticular articles, we cannot hold that any According to the testimony of Professor Mor- articles which Congress recognizes as subton, whose statement was not controverted or jects of interstate commerce are not such, or questioned, oleomargarine, so far from being that whatever are thus recognized can be couan article devised for purposes of deception in trolled by state laws amounting to regulatrade, was devised in 1872 or 1873 by an emi-tions, while they retain that character; al though, at the same time, if directly danger- | in its pure state is healthful, simply because ous in themselves, the state may take appro- such an article in the course of its manufac priate measures to guard against injury be- ture may be adulterated by dishonest manufore it obtains complete jurisdiction over facturers for purposes of fraud or illegal them. To concede to a state the power to gains. The bad article may be prohibited, exclude, directly or indirectly, articles so but not the pure and healthy one. 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 repower 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 exly granted to be exercised by the people of tent that it may be fairly necessary to prethe United States, represented in Congress, vent the introduction or sale of an aduland 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 create." 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 dis importation 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 he 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 evious 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 arti- ticle from being introduced. We do not cles that possibly may become injurious to think this is a fair exercise of legislative dishealth. Conceding the fact, we yet deny the cretion when applied to the article in quesright of a state to absolutely prohibit the in- tion. troduction within its borders of an article of It is claimed, owever, that the very statcommerce which is not adulterated and which 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 In. and 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 stat-to look like butter." This court held that a ute 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 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 uue 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 probiting 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 com- pretenses and to promote fair dealing in the merce clause of that instrument. *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 their respective limits of articles, in whatever the state has the power in many cases to de-state manufactured, and that that instrument termine as a matter of state policy whether did not secure to anyone the privilege of to permit the manufacture and sale of arti- committing a wrong against society. cles within the state or to entirely forbid such manufacture and sale, so long as the legisla[17]tion is confined to the manufacture and the sale within the state. Those are questions of public policy which, as was said in the case of Powell, belong to the legislative department to determine; but the legislative policy does not extend so far as to embrace the right to absolutely prohibit the introduction within the limits of the state of an article like oleomargarine, properly and honestly manufac tured. The Powell Case was, in the opinion of the court, governed in its important aspect by that of Mugler v. Kansas, 123 U. S. 623 [31: It will thus be seen that the case was based entirely upon the theory of the right of a state to prevent deception and fraud in the sale of any article, and that it was the fraud and deception contained in selling the article for what it was not, and in selling it so that it should appear to be another and a different article, that this right of the state was upheld. The question of the right to totally prohibit the introduction from another state of the pure article did not arise, and, of 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 | cial verdict in this case shows what the court it excluded any legislation on the same sub- *said was lacking in the case just cited, for it [20] ject by the state, but it was held that there appears in the verdict that the package in was no ground to suppose that Congress in- which the oleomargarine was sold was an tended by that enactment to interfere with original package, as required by the act of the exercise by the states of any authority Congress, and was of such "form, size, and they could rightfully exercise over the sale weight as is used by producers or shippers within their respective limits of the article for the purpose of securing both convenience defined as oleomargarine, and, as § 3243 of in handling and security in transportation the Kevised Statutes was referred to in the of merchandise between dealers in the ordiact, 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 form, size, and weight were adopted in good it clear that Congress did not intend to re-faith, and not for the purpose of evading strict the power of the states over the sub- the laws of the commonwealth of Pennsyl ject of the manufacture and sale of oleomar- vania, said package being one of a number garine within their respective limits. of similar packages forming one consignment shipped by the said company to the said defendant." It also appears from the special verdict that the defendant was engaged in business in the city of Philadelphia as 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 purchaser, and he understood that he was buying oleomargarine and as soon as the tub was purchased it was removed unbroken from the place of sale by the purchaser thereof. a 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 im portant 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. 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 |