This principle is clearly laid down in Coe v. Errol.23 In this case the court held that certain logs cut in New Hampshire and hauled to a river town for transportation to the State of Maine, but not yet actually started upon their final way to that State, had not become articles of interstate commerce. The court say:

"Does the owner's state of mind in relation to the goods, that is, his intent to export them, and his partial preparation to do so, exempt them [as articles of interstate commerce] from taxation? . . There must be a point of time when they ceased to be governed exclusively by the domestic law and begin to be. governed and protected by the national law of commercial regulation, and that moment seems to us to be a legitimate one for this purpose, in which they commence their final movement from the State of their origin, to that of their destination."

§ 299. Interstate Commerce Includes the Sale of the Articles Imported.

It has been seen that interstate commerce does not begin until, by some definite act, the goods have started upon their trip outside the State of origin. As to the termination of interstate transportation it has been established that this does not occur until the goods transported have reached their destination, been delivered, and, either sold or taken out of their original packages in which shipped, and thus commingled with the other goods of the State.

The right to import including the right of the importer to sell the goods imported, and the right to engage in interstate and foreign commerce being a federal right, the States have no more constitutional power to restrain or regulate the sale of imported commodities by the importer than they have to prevent or regulate their being brought within the State.

This principle was first clearly declared by Marshall in Brown v. Maryland. "Sale," declared the Chief Justice, "is the

24

result that the duty would devolve on Congress to regulate all of these delicate, multiform and vital interests - interests which in their nature are and must be local in all the details of their successful management."

23 116 U. S. 517; 6 Sup. Ct. Rep. 475; 29 L. ed. 715.

24 12 Wh. 419; 6 L. ed. 678.

object of importation, and is an essential ingredient of that intercourse of which importation constitutes a part. Congress has a right not only to authorize importation, but to authorize the importer to sell."

The case of Brown v. Maryland had to deal with foreign commerce and it seemed for a number of years that its application would be limited to that commerce. Indeed, that this was so was intimated as late as 1886 in Robbins v. Taxing District.25 But in Bowman v. Northwestern Railroad,26 decided in 1887, the reasoning indicated that the doctrine would be applied to interstate commerce, and in Leisy v. Hardin,27 decided in 1890, this was squarely declared and has since been repeatedly affirmed.

The fact that the right to engage in commerce carries with it the right to sell the goods transported, does not, it has been held, exclude the right of the State to tax goods brought from another State still unsold, and still in their original packages, provided such goods be not discriminated against because of their having been brought into the State from another State. As to imports from foreign countries, however, the rule is that until sale in the original package, or until the breaking of the package, no state tax may be imposed. This prohibition is, however, not drawn from the commerce clause but from the express provision of the Constitution that "No State shall, without the consent of Congress, lay any impost or duty on imports or exports (Art. I, Sec. X)."

This branch of the subject will be more fully discussed elsewhere in this treatise.

§ 300. The Original Package Doctrine.

From the foregoing sections it has appeared that the State's authority over articles brought in from the other States does not attach, except for purposes of taxation, until the articles so brought in have been sold. It will also have appeared, however, from the quotations which have been made, that this rule is 25 120 U. S. 489; 7 Sup. Ct. Rep. 592; 30 L. ed. 694. 26 125 U. S. 465; 8 Sup. Ct. Rep. 689; 31 L. ed. 700. 27 135 U. S. 100; 10 Sup. Ct. Rep. 681; 34 L. ed. 128.

modified by the doctrine that, whether sold or not, the articles brought in lose their interstate commercial character, and full state authority at once attaches, as soon as these articles have in any way become mixed with the general mass of the property of the State to which they have been transported. As a convenient test for determining when this commingling takes place, the Supreme Court early developed the so-called "Original Pack- ¦

"doctrine. This doctrine is that so long as the commodity is kept in the unbroken package in which it was delivered to the carrier for transportation, no commingling with the state goods has taken place. At times this has been stated by the courts and by commentators as an absolute rule. In fact, however, as will appear from the cases which will be reviewed, the doctrine does not state a right to which the exporter is entitled, but a test which the court frequently finds it convenient to apply for determining when commingling of the imports with state goods has taken place, but which in other cases may be held inapplicable because of the character of the goods transported.

The original package doctrine was first stated by Marshall in Brown v. Maryland 28 with reference to the prohibition laid upon. the States as to the taxation of exports and imports. "There must be," says the Chief Justice, "a point of time when the prohibition ceases, and the power of the State to tax commences; we cannot admit that this point of time is the instant that the articles enter the country ... it is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State; but while remaining the property of the importer, in his warehouse. in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the Constitution." And,

28 12 Wh. 419; 6 L. ed. 678.

29 As already observed, and will later be more fully discussed, articles of interstate commerce are, while in their original packages and in the hands of the importer, subject to taxation by the State in which they are.

it is in this case, it will be remembered, that the doctrine is laid down that sale is the object of, and an essential ingredient of

commerce.

In Bowman v. Railway Co.30 the court had held that a State could not forbid a common carrier to bring intoxicating liquor into the State from another State or Territory except upon the conditions mentioned in the act. In Leisy v. Hardin" the court took the further step of declaring that the importers had the right to sell in the original packages, unopened and unbroken, articles brought into the State from another State or Territory, notwithstanding a statute of the State prohibiting the sale of such articles except for the purposes mentioned therein and under a license from the State. This statute the court held unconstitutional, saying: "Under the decision in Bowman v. Railway Co. they had the right to import beer into that State, and, in the view which we have expressed, they had the right to sell it, by which act alone it would become mingled in the common mass of property within the State. Up to that point of time, we hold that, in the absence of congressional permission to do so, the State had no power to interfere, by seizure or any other action, in prohibition of importation and sale by the foreign or non-resident importer." 32 In Schollenberger v. Pennsylvania33 the original package test was applied to interstate shipments of oleomargarine.

§ 301. Difficulties in Applying Original Package Doctrine

The original package doctrine, simple in itself, becomes at times difficult, and, indeed, impossible of strict application because it is not easy to determine what is to be considered the original package which, until broken, preserves the commodity from state control. In some cases, indeed, there is no package whatever to be broken. These difficulties are illustrated in the cases which follow.

20 125 U. S. 465; 8 Sup. Ct. Rep. 689; 31 L. ed. 700.

31 135 U. S. 100; 10 Sup. Ct. Rep. 681; 34 L. ed. 128.

32 Three justices dissented on the ground that the state law was a legitimate exercise of the police power.

23 171 U. S. 1; 18 Sup. Ct. Rep. 757; 43 L. ed. 49.

In May & Co. v. New Orleans34 it was contended as to certain foreign imports, that the original packages were not the larger boxes, cases, or bales in which the goods were imported, but the smaller packages contained therein, and that until these latter were broken, the commingling with the other goods of the States to which they had been brought did not take place. The court, however, held that the larger case or bale was the original package.3

35

34 178 U. S. 496; 20 Sup. Ct. Rep. 976; 44 L. ed. 1165.

35 “Let us first inquire as to the consequences that may follow from the interpretation of the clause of the Constitution relating to state taxation of imports, upon which the plaintiff's rest their case. In the view taken by them it would seem to be immaterial whether the separate parcels or packages brought from Europe were left in the shipping box, case, or bale after it was opened, or were taken out and placed on the shelves or counters in the store of the importer for delivery or sale along with goods manufactured or made in this country. In other words, they argue that the importer may sell each separate package either from the box in which it was transported, after it is opened, or from the shelves or counters in his store, without being subjected to local taxation in respect of any packages so brought into the country, provided such separate packages be sold or offered for sale in the form in which it was when placed in the box, case, or bale by the European manufacturer or packer. This means that the power of the State to tax goods, the product of other countries depends upon the particular form in which the European manufacturer or packer of his own accord or by direction of the importer, has put them up in order to be sent to this country. The necessary result of this position is that every merchant selling only goods of foreign manufacture, in separate packages, although enjoying the protection of the local government acting under its police powers, may conduct his business, however large, without any liability whatever to state or local taxation in respect of such goods, provided he takes care to have the articles imported separately wrapped and placed in that form in a box, case, or bale for transportation to and sale in this country. In this view, if a jeweller desires to buy fifty Geneva watches for the purpose of selling them here without paying taxes upon them as property, he need only direct them to be placed in separate cases, however small, and then put them all together in one box. After paying the import duties on all the watches in the box, and receiving the box at his store, he may open the box and the watches, each one being in its own separate case, may then be exposed for sale. According to the contention of the plaintiffs, each watch, in its own separate case, would be an original package, and could not be regarded as part of the mass of property of the State and subject to local taxation, so long as it remained in that form and unsold in the hands of the importer. Other illustrations arising out of the business