Thus, it is stated by Mr. Justice Catron, 5 How. 608, that "to hold that the State license law [of New Hampshire] was void, as respects spirits coming in from other States as articles of .commerce, would open the door to an almost entire evasion, as the spirits might be introduced in the smallest divisible quantities that the retail trade would require; the consequences of which would be that the dealers in New Hampshire would sell only spirits produced in other States, and that the products of New Hampshire would find an unrestrained market in the neighboring States having similar license laws to those of New Hampshire." And also in the opinion of Mr. Justice Woodbury, rendered in the same case (p. 625): "If the proposition was maintable, that, without any legislation by Congress as to the trade between the States (except that in coasting, as before explained, to prevent smuggling), anything imported from another State, foreign or domestic, could be sold of right in the package in which it was imported, not subject to any license or any internal regulations of a State, then it is obvious that the whole license system may be evaded and nullified, either from abroad or from a neighboring State. And the more especially can it be done from the latter, as imports may be made. in bottles of any size, down to half a pint, of spirits or wines; and if its sale cannot be interfered with and regulated, the retail business can be carried on in any small quantity, and by the most irresponsible and unsuitable persons, with perfect impunity." These words are certainly prophetic in their applicability to this case.

Similar questions have arisen in the federal Courts of original jurisdiction, whose decisions have generally been in favor of the position taken by the plaintiff in error in this case. The same question has been considered in the Courts of several States, and their decisions have been with almost equal unanimity the other way.

In Commonwealth v. Zelt, 138 Penna. St. 615, a distiller manufacturing over the State line established a store or agency within the State, put up his liquors in bottles ranging in capacity from one quart down to one-half pint, and, packing them in unsealed barrels, sent them to the Pennsylvania store, where they were taken from the barrels, put upon the shelves and sold to customers. The question was submitted to the jury, which, as stated by the court, evidently regarded defendant's method as a trick and an evasion of the state statute. The judgment was affirmed. In Com. v. Schollenberger, 156 Penn. St. 201, (not the case reported in 171 U. S. 1), an original package is defined to be "such from the size of package as is used by producers or shippers for the purpose of securing both convenience in handling, and security in transportation of merchan

dise between dealers in the ordinary course of actual commerce."

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The real question in this case is whether the size of the package in which the importation is actually made is to govern; or the size of the package in which bona fide transactions are carried on between the manufacturer and the wholesale dealer residing in different States. We hold to the latter view. The whole theory of the exemption of the original package from the operation of State laws is based upon the idea that the property is imported in the ordinary form in which, from 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 packages 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.

There could hardly be stronger evidence of fraud than is shown by the facts of this case, which we quote from the opinion of the

court:

"The defendant purchased from the American Tobacco Company, at its factory, in Durham, North Carolina, a lot of cigarettes manufactured by that company at that factory, and there by it put into pasteboard boxes, in quantities of ten cigarettes to each box; that each of these boxes, known as packages, was separately stamped and labeled, as prescribed by the United States revenue statute; that after defendant's purchase the American Tobacco Company piled upon the floor of its warehouse, in Durham, North Carolina, the number of boxes or packages sold, and, having done so, notified the Southern Express Company to come and get them, and said company, by its agent, took them from the floor and placed them in an open basket already and previously in the possession of the Southern Express Company, and in that basket had them transported by express to the defendant's town in Tennessee, and there an agent of the same express company took the basket to defendant's place of business and lifted from it on to the counter of the defendant the lot of detached boxes or packages of cigarettes, and thereupon took a receipt and departed with the empty basket. Thereafter the defendant sold one of these boxes or packages without breaking it, and for that sale he stands convicted."

And yet we are told that each one of these packages is an original package, and entitled to the protection of the Constitution of the United States as a separate and distinct importation. We can only

look upon it as a discreditable subterfuge, to which this court ought not to lend its countenance. If there be any original package at all in this case we think it is the basket, and not the paper box.

We are satisfied the conclusion of the Supreme Court of Tennessee was correct, and it is therefore

Mr. Justice WHITE Concurring:

Affirmed.

I do not understand that anything in the opinion of the Court impairs the doctrine protecting original packages from interference by the police or any other power of a State, as announced by so many opinions of this Court, especially as expounded in Leisy v. Hardin, 135 U. S. 100, and Rhodes v. Iowa, 170 U. S. 412. and the authorities which are cited in the opinions of the Court in both of those cases. If I thought either the opinion of the Court just announced or the conclusion which it reaches had the effect of weakening the doctrine upheld by the authorities to which I have just referred, I should be unable to concur. Indeed, as I understand the case as now decided, all the questions adverted to are merged in the solution of the one decisive issue, which is, Was each particular parcel of cigarettes an original package within the constitutional import of those words as defined by the previous adjudications of the court? I am constrained to conclude that this question is correctly answered in the negative, not only from the size of each particular parcel, but from all the other surrounding facts and circumstances, among which may be mentioned the trifling value of each parcel, the absence of an address on each, and the fact that many parcels, for the purpose of commercial shipment, were aggregated, thrown into and carried in an open basket. Thus associated in their shipment, they could not, under all the facts and circumstances of the case, after arrival be segregated so as to cause each to become an original package.

Mr. Justice BREWER with whom concurred the CHIEF JUSTICE, Mr. Justice. SHIRAS and Mr. Justice PECKHAM, dissenting.

CHAPTER V.

GENERAL POWERS OF CONGRESS OVER WATERWAYS AND HIGHWAYS OF COMMERCE

SECTION 1. FEDERAL CONTROL OVER WATERWAYS

CORFIELD v. CORYELL (1823)

4 Wash. C. C. 371; Federal Case No. 3230.

A citizen of one State has the right to pass through or reside temporarily in another State for purposes of trade or commerce. This does not entitle him to the use of, or participation in, the rights of citizens of the State in the common property of the State, which includes lands under navigable waters.

A statute of the State of New Jersey regulating the taking of oysters from beds within the State provided, inter-alia, "that it shall not be lawful for any person, who is not, at the time, an actual inhabitant and resident of this State, to gather oysters in any of the rivers, bays, or waters in this State, on board of any vessel, not wholly owned by some person, inhabitant of, or actually residing in this State; and every person so offending, shall forfeit $10, and shall also forfeit the vessel employed in the commission of such offense, with all the oysters, rakes, etc., belonging to the same."

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Mr. Justice WASHINGTON: The first question then is, whether this act, or either section of it, is repugnant to the power granted to congress to regulate commerce? Commerce with foreign nations, and among the several States, can mean nothing more than intercourse with those nations, and among those States, for purposes of trade, be the object of the trade what it may; and this intercourse must include all the means by which it can be carried on, whether by the free navigation of the waters of the several States, or by a passage over land through the States, where such passage becomes necessary to the commercial intercourse between the States. It is the intercourse which Congress is invested with the power of regulating, and with which no State has a right to interfere. But this power, which comprehends the use of, and passage over the navigable waters of the several States, does by

no means impair the right of the State governments to legislate upon all subjects of internal police within their territorial limits, which is not forbidden by the Constitution of the United States, even although such legislation may indirectly and remotely affect commerce, provided it do not interfere with the regulations of congress upon the same subject. Such are inspection, quarantine, and health laws; laws regulating the internal commerce of the State; laws establishing and regulating turnpike roads, ferries, canals, and the like.

In the case of Gibbons v. Ogden, 9 Wheat 1, which we consider as full authority for the principles above stated, it is said, "that no direct power over these objects is granted to Congress, and consequently they remain subject to State legislation. If the legislative power of the Union can reach them, it must be for national purposes; it must be when the power is expressly given for a specified purpose, or is clearly incident to some power which is expressly given."

But if the power which congress possess to regulate commerce does not interfere with that of the State to regulate its internal trade, although the latter may remotely affect external commerce, except where the laws of the State may conflict with those of the General Government; much less can that power impair the right of the State governments to legislate, in such manner as in their wisdom may seem best, over the public property of the State, and to regulate the use of the same, where such regulations do not interfere with the free navigation of the waters of the State, for purposes of commercial intercourse, nor with the trade within the State, which the laws of the United States permit to be carried on. The grant to Congress to regulate commerce on the navigable waters belonging to the several States, renders those waters the public property of the United States, for all the purposes of navigation and commercial intercourse; subject only to congressional regulation. But this grant contains no cession, either express or implied, of territory, or of public or private property. The jus privatum which a State has in the soil covered by its waters, is totally distinct from the jus publicum with which it is clothed. The former, such as fisheries of all descriptions, remains common to all the citizens of the State to which it belongs, to be used by them according to their necessities, or according to the laws which regulate their use. "Over these," says Vattel, (book 1, c. 20, sect. 235, 246,) "sovereignty gives a right to the nation to make laws regulating the manner in which the common goods are to be used." "He may