1911 Encyclopædia Britannica/Original Package

ORIGINAL PACKAGE, a legal term in America, meaning, in general usage, the package in which goods, intended for interstate commerce, are actually transported wholesale. The term is used chiefly in determining the boundary between Federal and state jurisdiction in the regulation of commerce, and derives special significance by reason of the conflict between the powers of Congress to regulate commerce and the police legislation of the several states with respect to commodities considered injurious to public health and morals, such as intoxicating liquors, cigarettes and oleomargarine. By the Federal constitution Congress is vested with the power “to regulate commerce with foreign nations and among the several states, and with the Indian tribes,” and each state is forbidden, without the consent of Congress, to “lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws,” and the basis of the law on the subject of “original package” was laid when, in 1827, Chief Justice Marshall interpreted these clauses in his decision of the case of Brown v. Maryland,^[1] which tested the constitutionality of an act of the legislature of Maryland requiring a licence from importers of foreign goods by bale or package and from persons selling the same by wholesale, bale, package, hogshead, barrel or tierce. After pronouncing such a licence to be in effect a tax, the chief justice observed that so long as the thing imported remained “the property of the importer, in his warehouse, in the original form or package in which it was imported,” a tax upon it was too plainly a duty on imports to escape the prohibition of the Constitution, that imported commodities did not become subject to the taxing power of the state until they had “become incorporated and mixed with the mass of property in the country,” that the right to sell a thing imported was incident to the right to import it, and consequently that a state tax upon the sale was repugnant to the power of Congress to regulate foreign commerce; and he added that the court supposed the same principles applied equally to interstate commerce. Later decisions agree that the right to import commodities or to ship them from one state to another carries with it the right to sell them and have established the boundary line between Federal and state control of both foreign imports and interstate shipments at a sale in the original package^[2] or at the breaking of the original package before sale for other purposes than inspection.^[3] A state or a municipality may, however, tax while in their original packages any commodities which have been shipped in from another state provided there be no discrimination against such commodities; this permission being granted on the theory that a general non-discriminating tax is not a regulation of commerce and therefore not repugnant to the power of Congress to regulate interstate commerce.^[4] The first cases involving a serious conflict between the power of Congress to regulate interstate commerce and the police powers of the several states were the Licence Cases adjudicated by the Supreme Court of the United States in January 1847.^[5] They were to test the constitutionality of a law of Massachusetts requiring a licence for the sale of wines or spirituous liquors in a less quantity than 28 gallons, of a law of Rhode Island requiring a licence for the sale of such liquors in a less quantity than 10 gallons, and a law of New Hampshire requiring a licence for the sale of wines or spirituous liquors in any quantity whatever, and in this case a barrel of gin had been bought in Boston Mass., carried to Dover, N.H., and there sold in the same barrel. Although the justices based their opinions on different principles, the court pronounced the laws constitutional. The justices did not even agree that the power of Congress to regulate an interstate shipment included the power to authorize a sale after shipment, which is the basis of the original package doctrine as applied to interstate commerce, and Chief Justice Taney with two other justices who were of this opinion held that a state might nevertheless in the exercise of its police powers regulate such sales so long as Congress did not pass an act for that purpose. In this confused and uncertain state the matter rested until the adjudication of Leisy v. Hardin^[6] in 1889. In this case beer had been shipped from Illinois into Iowa and then sold in the original kegs and cases by an agent of the Illinois firm when Iowa had a law absolutely prohibiting the sale of intoxicating liquors within its limits except for pharmaceutical, medicinal, chemical or sacramental purposes. None of the justices now denied that the power of Congress to regulate an interstate shipment included the power to authorize a sale after shipment, and although there was disagreement with reference to the right of a state to regulate the sale in the absence of an act of Congress for that purpose, the majority of the court were of the opinion that: “Whenever a particular power of the general government is one which must necessarily be exercised by it, and Congress remains silent, this is not only not a concession that the powers reserved by the states may be exerted as if the specific power had not been elsewhere reposed, but, on the contrary, the only legitimate conclusion is that the general government intended that power should not be affirmatively exercised, and that the action of the states cannot be permitted to effect that which would be incompatible with such intention. Hence, inasmuch as interstate commerce, consisting in the transportation, purchase, sale and exchange of commodities, is national in its character and must be governed by a uniform system, so long as Congress does not pass any law to regulate it, or allowing the states so to do, it thereby indicates its will that such commerce shall be free and untrammelled.” The opinion of Chief Justice Taney in Pierce v. New Hampshire was therefore in part overruled and the Iowa law in so far as it applied to the sale in the original packages of liquors shipped in from another state was pronounced unconstitutional. As a consequence of this decision, Congress, in 1890, passed the Wilson Act providing that all fermented, distilled, or other intoxicating liquors or liquids transported into any state or Territory for use, consumption, sale or storage therein should, even though in the original packages, be subject to the police laws of the state or Territory to the same extent as those produced within the state or Territory. Even with this act, however, a state is not permitted to interfere with an interstate shipment of liquor direct to the consumer.^[7]

What constitutes an original package was the principal question in Austin v. Tennessee^[8] which was decided in November 1900. The general assembly of Tennessee had in this case made it a misdemeanour for any party to sell or to bring into the state for selling or giving away any cigarettes. The defendant had purchased at Durham, North Carolina, a quantity of cigarettes. They were packed in pasteboard boxes containing ten cigarettes each. The boxes were then placed in an open basket and in this manner the cigarettes were delivered at the defendant’s place of business in Tennessee where he sold a package without breaking it. The court decided against the defendant because it held that the manner of transportation was evidently for the purpose of evading the state law and that the boxes were not original packages within the meaning of the Federal law, and in this connexion it observed that “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 to time immemorial, foreign goods have been brought into the country. These have gone at once into the hands of the wholesale dealers, who have been in the habit of breaking the package and distributing their contents among the several retail dealers throughout the state. It was with reference to this method of doing business that the doctrine of the exemption of the original package grew up.” In the case of Schollenberger v. Pennsylvania,^[9] however, the court decided that the state of Pennsylvania could not prohibit the sale of oleomargarine by retail when it had been shipped from Rhode Island in packages containing only 10 ℔ each, and the original package doctrine has been sharply criticized because of the difficulty in determining what constitutes an original package as well as because of the conflict between the doctrine and the police powers of the several states. It has been urged that the doctrine be abandoned and that commodities shipped into one state from another “be treated just like other goods already there are treated.”

See J. B. Uhle, “The Law Governing an Original Package,” in The American Law Register, vol. xxix. (Philadelphia, 1890); Shackelford Miller, “The Latest Phase of the Original Package Doctrine,” and M. M. Townley, “What is the Original Package Doctrine?” both in The American Law Review, vol. xxxv. (St Louis, 1901); also F. H. Cooke, The Commerce Clause of the Federal Constitution (New York, 1908).

---

1. 12 Wheaton 419.
2. Waring v. Mobile, 8 Wall. 110.
3. May v. New Orleans, 178 U.S. 498 and in re McAllister (C.C.Md.), 51 Fed. 282.
4. Woodruff v. Parham, 8 Wallace 123, and Hinson v. Lott, 8 Wallace 148.
5. 5 Howard 504.
6. 135 U.S. 100.
7. See Vance v. W. A. Vandercook Company, 170 U.S. 438.
8. 179 U.S. 343.
9. 171 U.S. 1.