STATE INSPECTION LAWS
The application of State inspection laws to imports from outside the State has been sustained as warranted by local interests and as not discriminating against out-of-state products, in the following instances: A North Carolina statute providing that "every bag, barrel, or other package" of commercial fertilizer offered for sale in the State should bear a label truly describing its chemical composition, which must comply with certain requirements, and charging 25 cents per ton to meet the cost of inspection;[914] an Indiana statute forbidding the sale in the original package of concentrated feeding stuffs prior to inspection and analysis for the purpose of ascertaining whether certain minimum standards as to composition had been met;[915] a Minnesota statute requiring as a precondition of its being offered for sale in the State, the inspection of illuminating oil and gasoline;[916] a Kansas statute forbidding any moving picture film or reel to be exhibited in the State unless it had been examined by the State Superintendent of Instruction and certified by him as moral and instructive and not tending to debase or corrupt the morals.[917] A Minnesota statute, on the other hand, which forbade the sale in any city of the State of any beef, mutton, lamb, or pork which, had not been inspected on the hoof by local inspectors within twenty-four hours of slaughter, was held void.[918] Its "necessary operation," said the Court, was to ban from the State wholesome and properly inspected meat from other States.[919] Also a Virginia statute which required the inspection and labelling of all flour brought into the State for sale was disallowed because flour produced in the State was not subject to inspection;[920] likewise a Florida statute providing for the inspection of all cement imported into the State and enacting a fee therefor, but making no provision for the inspection of the local product, met a like fate;[921] as did also a Madison, Wisconsin ordinance which sought to exclude a foreign corporation from selling milk in that city solely because its pasteurization plants were more than five miles away.[922]
STATE PROHIBITION LAWS; THE ORIGINAL PACKAGE DOCTRINE
The original package doctrine made its debut in Brown v. Maryland,[923] where it was applied to remove imports from abroad which were still in the hands of the importer in the original package, out of the reach of the State's taxing power. This rule the Court, overriding a dictum in Marshall's opinion in Brown v. Maryland,[924] rejected outright after the Civil War as to imports from sister States.[925] However, when in the late eighties and early nineties State-wide Prohibition laws began making their appearance, the Court seized on the rejected dictum and began applying it as a brake on the operation of such laws with respect to interstate commerce in intoxicants, which the Court denominated "legitimate articles of commerce." While holding that a State was entitled to prohibit the manufacture and sale within its limits of intoxicants,[926] even for an outside market—manufacture being no part of commerce[927]—it contemporaneously laid down the rule, in Bowman v. Chicago and Northwestern Railroad Co.,[928] that so long as Congress remained silent in the matter, a State lacked the power, even as part and parcel of a program of Statewide prohibition of the traffic in intoxicants, to prevent the shipment into it of intoxicants from a sister State; and this holding was soon followed by another to the effect that, so long as Congress remained silent, a State had no power to prevent the sale in the original package of liquors introduced from another State.[929] The effect of the latter decision was soon overcome by an act of Congress, the so-called Wilson Act, repealing its alleged silence,[930] but the Bowman decision still stood, the act in question being interpreted by the Court not to subject liquors from sister States to local authority until their arrival in the hands of the person to whom consigned.[931] Not till 1913 was the effect of the decision in the Bowman case fully nullified by the Webb-Kenyon Act,[932] which placed intoxicants entering a State from another State under the control of the former for all purposes whatsoever.
OLEOMARGARINE AND CIGARETTES
Long before this the immunity temporarily conferred by the original package doctrine upon liquors had been extended to cigarettes[933] and, with an instructive exception, to oleomargarine. The exception referred to was made in Plumley v. Massachusetts,[934] where the Court held that a statute of that State forbidding the sale of oleomargarine colored to look like butter could validly be applied to oleomargarine brought from another State and still in the original package. The justification of the statute to the Court's mind was that it sought "to suppress false pretenses and promote fair dealing in the sale of an article of food." Nor did Leisy and Co. v. Hardin[935] apply, said Justice Harlan for the Court, because the beer in that case was "genuine beer, and not a liquid or drink colored artificially so as to cause it to look like beer." That decision was never intended, he continued, to hold that "a State is powerless to prevent the sale of articles manufactured in or brought from another State, and subjects of traffic and commerce, if their sale may cheat the people into purchasing something they do not intend to buy * * *."[936] Obviously, the argument was conclusive only on the assumption that a State has a better right to prevent frauds than it has to prevent drunkenness and like evils; and doubtless that is the way the Court felt about the matter at that date. On the one hand, the liquor traffic was a very ancient, if not an altogether, venerable institution, while oleomargarine was then a relatively novel article of commerce whose wholesomeness was suspect. On the other hand, laws designed to secure fair dealing and condemnatory of fraud followed closely the track of the common law, while anti-liquor laws most decidedly did not. The real differentiation of the two cases had to be sought in historical grounds. Yet the State must not put unreasonable burdens upon interstate commerce even in oleomargarine. Thus a Pennsylvania statute forbidding the sale of this product even in the unadulterated condition was pronounced invalid so far as it operated to prevent the introduction of such oleomargarine from another State and its sale in the original package;[937] as was also a New Hampshire statute which required that all oleomargarine marketed in the State be colored pink.[938] A little later in the case above mentioned involving cigarettes, the Court discovered some of the difficulties of the original package doctrine when applied to interstate commerce, in which the package is not so apt to be standardized as it is in foreign commerce.[939]
DEMISE OF THE ORIGINAL PACKAGE DOCTRINE
What importance has the original package doctrine today as a restraint on State legislation affecting interstate commerce? The answer is, very little, if any. State laws prohibiting the importation of intoxicating liquor, have since the passage of the Twenty-first Amendment consistently been upheld, even when imposing a burden on interstate commerce or discriminating against liquor imported from another State.[940] Indeed the Court has, without appealing to the Twenty-first Amendment, even gone so far as to uphold a statute requiring a permit for transportation of liquor through the enacting State.[941] In Whitfield v. Ohio,[942] moreover, the Court upheld a State law prohibiting the sale in open market of convict-made goods including sales of goods imported from other States and still in the original package. While the decision is based on the Hawes-Cooper Act of 1929,[943] which follows the pattern of the Webb-Kenyon Act, Justice Sutherland speaking for the Court, takes pains to disparage the "unbroken-package doctrine, as applied to interstate commerce, * * *, as more artificial than sound."[944] Indeed, earlier cases make it clear that the enforcement of State quarantine and inspection acts, otherwise constitutional, is not to be impeded by the doctrine in any way.[945]
CURBS ON THE INTERSTATE MOVEMENT OF PERSONS
Prior to the Civil War the slaveholding States, ever fearful of a slave uprising, adopted legislation meant to exclude from their borders free Negroes whether hailing from abroad or from sister States, and in 1823 a South Carolina Negro Seamen's Act embodying this objective was held void by Justice William Johnson, himself a South Carolinian, in a case arising in the Carolina circuit and involving a colored British sailor.[946] The basis of the ruling, which created tremendous uproar in Charleston,[947] was the commerce clause and certain treaties of the United States. There followed two rulings of Attorneys General, the earlier by Attorney General Wirt, denouncing such legislation as unconstitutional;[948] the latter by Attorney General Berrien, sustaining it;[949] and in City of New York v. Miln[950] the Court, speaking by Justice Barbour of Virginia, asserted, six years after Nat Turner's rebellion, the power of the States to exclude undesirables in sweeping terms, which in the Passenger Cases,[951] decided in 1840, a narrowly divided Court considerably qualified. Shortly after the Civil War the Court overturned a Nevada statute which sought to halt the further loss of population by a special tax on railroads on every passenger carried out of the State.[952] This time only two Justices invoked the commerce clause; the majority, speaking by Justice Miller held the measure to be an unconstitutional interference with a right of national citizenship—a holding today translatable, in the terminology of the Fourteenth Amendment, as an abridgment of a privilege or immunity of citizens of the United States.