NOTES. 353 not have been gained had the less searching common-law system been used, are the only adequate means to be rejected in order to be in strict accord with the spirit of our law? There certainly is some room for argument on either side, and it is, perhaps, worthy of serious considera- tion whether after all it might not be better, in political investigations of this nature, to use the Continental instead of the common-law mode, — the rule best calculated to benefit the public rather than that best fitted to protect the individual. Leisy v. Hardin and Plumley v. Massachusetts. — Intoxicating liquor is regarded by the majorities which pass prohibition laws as some- thing the open sale of which " may cheat the people into purchasing something which they do not intend to buy, and which is wholly different from what its condition and appearance import." At least prohibition tracts are full of men lured into rum-shops, buying there something of whose real nature they are ignorant. Yet according to the very last de- cision of the Supreme Court, Dec. lo, 1894, in the case of Plumley v. Massachusetts (15 Sup. Ct. Rep. 154), Leisy v. Hardin (135 U. S. 100), known as the "original package" decision, "does not justify the broad contention that a State is powerless to prevent the sale of articles manufactured in, or brought from another State and subjects of traffic or commerce, if their sale may cheat the people into purchasing some- thing they do not intend to buy, and which is wholly different from what its condition and appearance import." Accordingly, a statute of Massachusetts which forbids the sale of oleomargarine in color resem- bling butter (and that even if vendor and purchaser know it to be oleomargarine, as a late Massachusetts decision shows) is upheld as constitutional, " The Constitution," says Mr. Justice Harlan, delivering the opinion of the court, " does not secure to any one the privilege of defrauding the public," and " it is within the power of a State to exclude from its markets any compound manufactured in another State . . . the sale of which may . . . cheat the general public into purchasing that which they may not intend to buy, and which is wholly different from what its condition and appearance import" (15 Sup. Ct. Rep. 158). One is put by this decision rather into a quandary. Why is oleomar- garine so bad and liquor so good? One can more easily see why free rum should be bad and free oleomargarine good, and if Leisy v. Ilardin and Plumley v. Massachusetts are to stand together, it will indeed be hard to tell how the Supreme Court will treat the next article of interstate com- merce which is excluded from some State. The more reasonable supposi- tion is that the earlier case is overruled. "It is sufficient to say of Leisy V. LLardin^^ says Mr. Justice Harlan, " that it did not in form or sub- stance present the particular question now under consideration." If this is not the polite distinguishing away which will entitle the next editor of Greenleafs overruled cases to include Leisy v. Hardin, it is hard to say what Plumley . Massachusetts dQcidQS, or upon what principle the Supreme Court intends to go. Fuller, C. J., Field and Brewer, JJ., dissent, holding, as Fuller, C J., neatly puts it, that " the concession destroys the rule by an unnecessary exception." It will be noticed that the dissenters are a majority of the five judges still on the bench who sat on the case of Leisy v. Hardin, and that the four latest additions to the bench are in the present majority which decides Plumley v. Massachusetts.
