by blindly declining to follow that decision. That decision stands, and as long as it stands, it is the law of the country, and this court not only must, but does cheerfully observe it in all its phases. Much more could be said. Cases commencing with Gibbons v. Ogden, 10 and then to date, could be reviewed. The question could be illustrated in many ways. But all that would be to no purpose: it would be academic. Congress has enacted a safety appliance law for the preservation of life and limb. Congress has enacted the anti-trust statute to prevent immorality in contracts and business affairs.

"Congress has enacted the live stock sanitation Act to prevent cruelty to animals.

"Congress has enacted the cattle contagious disease Act to more effectively suppress and prevent the spread of contagious and infectious diseases of live stock.

"Congress has enacted a statute to enable the Secretary of Agriculture to establish and maintain quarantine districts. "Congress has enacted the meat inspection Act. "Congress has enacted the employers' liability Act. "Congress has enacted the obscene literature Act. "Congress has enacted the lottery statute above referred to. "Congress has enacted (but a year ago) statutes prohibiting the sending of liquors by interstate shipment with the privilege of the vendor to have the liquors delivered c. o. d., and to prohibit shipments of liquors except when the name and address of the consignee and the quantity and kind of liquor is plainly labeled on the package.

"These statutes, police regulations in many respects, are alike in principle to the Act of June 30, 1906, under consideration. Can it be possible they are all void? This statute by its title, and by its very provision plainly shows that it is with reference to commerce, and that it is not with reference to local police regulations. It is also contended that so much of Section 7 of the statute as relates to food is void because no standard has been fixed. That argument is made

10 9 Wheat. 1 6 L. Ed. 23, reversing 17 Johns 488.

because drugs are fixed by a standard recognized by the United States Pharmacopoeia or National Formulary, and as to confectionery a standard is fixed by declaring what confectionery shall not contain. Whereas as to foods no standard has been fixed. It is a fact most obvious that no standard could be fixed other than was done by Congress. The one provision as to food is, that it shall not be mixed so as to reduce or lower or injuriously affect its quality or strength. Another provision is that some substance shall not be substituted wholly or in part for the article. Another provision is that no valuable constitutent of the article shall be abstracted. Another provision is that it shall not be mixed, colored, powdered, coated, or stained in a manner whereby damage or inferiority is concealed. Another provision is that poisonous or other deleterious ingredients shall not be added. Still another provision is that filthy, decomposed, or putrid substances shall not be added. And so on more in detail than herein enumerated. These provisions present questions of fact as to every alleged contraband article. This objection is without merit. ''11

Section 9 of the Act concerning guaranty of food products is not unconstitutional as applied to a wholesaler who sells adulterated or misbranded goods within the State to a dealer under a guaranty of conformity to the pure food and drug statute, with knowledge that such guaranty is exacted to further the sale of goods in interstate commerce, they having been actually shipped out of the State by the dealer relying on the guaranty.12

11 Shawnee Milling Co. v. Temple, 179 Fed. 517; Notice of Judgment 497; United States v. Seventy-four Cases of Grapejuice, 181 Fed. 629. See also The Lottery Cases, 188 U. S. 321, 23 Sup. Ct. 321, 47 L.

Ed. 492.

The statute is not void because no standard of food is fixed by it. That is left to the courts under proper pleading and the evidence.

United States v. Four hundred and Twenty Sacks of Flour, 180 Fed. 518; United States v. Two Barrels of Dessicated Eggs, 185 Fed. 302. On the point in this note see also Kench v. O'Sullivan, 20 N. S. W. L. R. 353, 16 W. N. (N. S. W.) 137.

12 United States v. Charles L. Heine Specialty Co., 175 Fed. 299.

There is a mere allusion to the

§ 88. An Original Package-Broken Package.

To constitute an offense under this statute, so far as relates to an offense committed within a State, the adulterated or misbranded food or drug must be delivered to another person in the original unbroken package as it came from another State or Territory or District of Columbia, or from a foreign country. If the package be broken, and then a part of its contents be delivered to another person, no offense is committed against the provisions of this Federal statute. It then becomes important to inquire "what is an original unbroken package?" The question has been answered by No. 2 of the rules and regulations for the enforcement of this Act, adopted by the Secretary of the Treasury, the Secretary of Agriculture and the Secretary of Commerce and Labor, which is as follows: "The term 'original unbroken package' as used in this Act is the original package, carton, case, can, box, barrel, bottle, phial, or other receptacle put up by the manufacturer, to which the label is attached, or which may be suitable for the attachment of a label, making one complete package of the food or drug article. The original package contemplated includes both the wholesale and the retail package." It may be noted that within the second section of the Act the term "original unbroken package" is used, while in the third section the term used is "unbroken package." For the purpose of determining what is an "original unbroken package" or an "unbroken package" we can not resort to the common and popular understanding of these words, for the reason that they have received a special meaning and import when applied to the state of interstate and

foreign commerce through numerous judicial decisions upon the commerce clause of the Federal Constitution. In that special sense they were employed in this statute. As used in this connection they are of restricted import. The word "original package" was used for the first time in 1827. In many subsequent cases no modification was made in the term. But in the statute under discussion the word "unbroken" has been added in sections two and ten; and in section three this word has been substituted for the word "original," without qualifying effect, just as the courts have used the words "unbroken" and "original" as synonymous. It may therefore be considered that their combination or substitution effects no change in significance.1

The National Board of Food and Drug Inspection, in a lengthy opinion, which has been approved by the Secretary of Agriculture, and in which many cases have been examined, restrict these words as used in this Act "to such a package containing the food and drug product as has been prepared for shipment or transportation and shipped or transported, as an entirety or unit, from a State, Territory, or the District of Columbia, or a foreign country, into another State, Territory, or the District of Columbia, and delivered to the consignee, remaining his property in the identical form and condition in which it was shipped or transported. After arrival in a State," it is said, "and delivery to the consignee, if any part of the contents of the package be removed, or if the package be opened and commingled with other property, or if the package be transferred by the consignee, it is no longer an original package. The retail package is not an original package unless it bears the characteristics set forth above."

1 Consult Low v. Austin, 13 Wall. 29, 20 L. Ed. 517, and United States v. Fox, Fed. Case No. 15155.

2 F. I. D. 86. "It is not practicable to form a universally ac curate and satisfactory definition of an original package.' No stat

The Supreme Court of the

ute has done so, and the Department disclaims any attempt to do so in its construction of the terms. The question must be determined largely upon each case as it arises, with the guidance of the authoritative decisions of the courts."

United States has held that "original packages are such as are used in bona fide transactions carried on between the manufacturer and wholesale dealer residing in different States. ''3 This is that court's first definition of an original package. It is scarcely an accurate test to determine what is an original package in every case; and certainly does not restrict that term as used in the food and drugs Act to transactions wholly between the manufacturer and wholesale dealer. If this be so, then the plain intent of the Act could be very easily defeated in the case of sales by importers in original packages. Take as an illustration the shipment of a can of corn by a person in no way connected with the manufacture or preparation of canned corn, from one State to a person in another State in no way engaged in the general sale of such commodities. This is a shipment and receipt of an original package; and if the recipient disposes of it in any way, in the form in which it comes to him, he has violated the food and drugs Act, although the definition quoted above does not fully cover such a transaction. A more accurate definition is one given by one of the Circuit Courts. "An original package," said the court, "within the meaning of the law of interstate commerce, is the package delivered by the importer to the carrier at the initial point of shipment, in the exact condition in which it was shipped." The size of the package has little to do with. the question, and in one case it was said that "It is not perceived why, in the absence of a regulation by Congress to the contrary, the importer may not determine for himself the form and size of the package he puts up for export.'

3 Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 244 affirming 101 Tenn. 563, 50 L. R. A. 478, 70 Am. St. 703, 48 So. 305. 4 Guckenheimer v. Sellers, 81 Fed. 997.

5 In re Beine, 42 Fed. 545.

In speaking of the right of an importer to sell foods in the original package when no Federal stat

ute prohibited such sale, although a State statute attempted to do so, the Supreme Court has said: "The right of the importer to sell can not depend upon whether the original package is suitable for retail trade or not. His right to sell is the same whether to consumers or to wholesale dealers in the article, provided he sells them in the orig