petency of Mr. McIlvain to handle them, and the circumstances attending the accident, as to justify the court in submitting the case to the jury on these alleged admissions alone, the meaning of which is at least doubtful, and outside of them there was nothing which could properly cause the court to hesitate to grant the instructions given. We will therefore affirm the judgment.

Judgment affirmed, costs below and in this court to be paid by the appellants.

NEGLIGENCE AGAINST THE OWNER OR DRIVER OF A HORSE is not presumed from the fact that a horse, while attached to a cart and in charge of the driver, ran away and injured a person, notwithstanding the driver's efforts to control him: O'Brien v. Miller, 60 Conn. 214, 25 Am. St. Rep. 320.

ACCIDENT-PRESUMPTION OF NEGLIGENCE IN CASE OF. In general, the happening of an accident does not raise a presumption of negligence, yet in many instances, notably in respect to carriers of persons, a contrary rule is invoked: Note to Huey v. Gahlenbeck, 6 Am. St. Rep. 792-795. For cases where this doctrine has been applied, see note to Philadelphia etc. R. R. v. Anderson 20 Am. St. Rep. 490-495.

Fox v. STATE.

[89 MARYLAND, 881.]

POLICE POWER-OLEOMARGARINE.-A state may prohibit the manufacture of oleomargarine within its borders, and the sale of oleomargarine manufactured therein.

COURTS OF UNITED STATES-DECISIONS OF.-Upon a question arising under the constitution of the United States, the state courts are bound by the decisions of the United States supreme court.

INTERSTATE COMMERCE-OLEOMARGARINE.—A state legislature cannot prohibit the importation and sale within the state of a pure article of commerce, so long as it remains in the original package. Hence a state cannot prohibit the importation and sale in the state of oleomargarine made in imitation and semblance of butter.

INTERSTATE COMMERCE POLICE POWER-SALE OF OLEOMARGARINE.-A state may pass all laws necessary to prevent deception and fraud in the sale, within its limits, of articles in whatever state manufactured or from whatever state imported or introduced. Hence a state may prohibit the sale of impure and deleterious oleomargarine, whether made in the state or elsewhere, and whether sold as butter or oleomargarine.

OLEOMARGARINE - EVIDENCE. - Where an indictment charges that the defendant kept and offered for sale impure and deleterious oleomargarine made in part out of acids and other deleterious substances, testimony is insufficient and is properly excluded AM. ST. REP., VOL. LXXIII.-13

which is offered to prove merely that the oleomargarine in question was an article of commerce in semblance and imitation of natural butter, that it was manufactured in another state out of animal fats and vegetable oils, that it was not sold as butter, but as oleomargarine.

CRIMINAL LAW-PLEADING.-A plea which does not answer the whole indictment or all of the counts to which it is pleaded is defective.

Edgar H. Gans and T. C. Ruddell, for the appellant.

George R. Gaither, Jr., attorney general, and Henry Duffy, state's attorney for Baltimore City, for the appellee.

883 FOWLER, J. The traverser was indicted in the criminal court of Baltimore City for selling oleomargarine contrary to law. There are three counts in the indictment. The first charges the

sale of "a certain article in imitation and semblance of natural butter produced from unadulterated milk and cream of the same, the said article then and there being rendered and manufactured out of animal fats and animal and vegetable oils not produced from unadulterated milk or cream from the same." The sec

ond count alleges that the traverser kept for sale and offered for sale the article or substance described in the first count. And the third is based upon the allegation of unlawfully keeping and offering for sale ten pounds of a certain compound in imitation of natural butter, produced by compounding with and adding to milk, cream, and butter "certain acids and other deleterious substances, animal fats, and animal oils not produced from milk or cream." To this indictment the traverser pleaded a special plea. It was pleaded to each of the three counts and therefore to the whole of the indictment. The state demurred, and its demurrer was sustained. The traverser pleaded the general issue, and, having been tried before a jury on all three counts of the indictment, a general verdict of guilty was found, and the traverser was adjudged to pay a fine of one hundred dollars and costs.

After introducing evidence in support of the allegations of the indictment, the state rested, and the traverser offered to prove the facts which he pleaded in his special plea. These facts, so far as it is necessary to rehearse them for the purposes of the present discussion, are as follows: That the oleomargarine, the subject of the sale charged in the indictment, was shipped from Chicago by William J. Moxley, a citizen of Illinois, to his agent, the traverser, in Baltimore, in a package separate and apart from all other packages, being a ten pound package, packed, sealed, marked, stamped, and branded according to the act of

Congress of August 2, 1886; that this package was an original package which was 384 sold by the traverser at his place of business in the city of Baltimore to the purchaser; that said package was not broken or opened on said premises of the traverser; that the said oleomargarine was an article in imitation and semblance of natural butter, the said article having been manufactured out of animal fats and animal and vegetable oils; but the fact that the article was not butter was made known by the traverser to the purchaser, and there was no attempt or purpose of the traverser to sell the article as butter and that said oleomargarine is recognized by said act of Congress of August 2, 1886, as an article of commerce. Upon the objection of the state, this evidence was ruled out and the traverser excepted, and has appealed. Upon this appeal both the ruling upon the demurrer and on the evidence are open for review: Act 1892, c. 506; Avirett v. State, 76 Md. 510; State v. Floto, 81 Md. 600.

The same question, however, is presented by both branches of the case, and that is, so far as the first and second counts of the indictment are concerned, whether the prohibition contained in section 89 of article 27 of the code against the sale of any article made "in imitation or semblance of natural butter" is a valid exercise of legislative power, when applied to the sale here of oleomargarine in the original package manufactured in another state. We will presently consider the third count of the indictment.

1. First, then, the question as it is presented by the ruling upon the testimony. It is conceded by the state, and it is apparent from the counts of the indictment we are now considering, that they are based upon the first part of section 89 of article 27, known as the oleomargarine law of this state. This and other sections of our code prohibiting the sale and manufacture of oleomargarine have been several times before this court for construction, and their validity has been again and again upheld, so far as they prohibit the manufacture of oleomargarine within this state, and the sale within this state of oleomargarine manufactured herein: Wright v. State, 88 Md. 436, decided at November term, 1898; 885 McAllister v. State, 72 Md. 390; Pierce v. State, 63 Md. 592. But now for the first time we are required to decide whether these provisions of our statute prohibiting the sale of an article made in imitation and semblance of natural butter are valid as applied to such an article made in another state and offered for sale here in the orig

inal package. On the part of the state it is contended that these provisions of our statute are valid as prohibitions of the sale of oleomargarine made in imitation and semblance of natural butter, whether such article be made in or outside of this state, and the case of Plumley v. Massachusetts, 155 U. S. 462, and Powell v. Pennsylvania, 127 U. S. 685, are relied upon to sustain this position. On the other hand, the traverser contends that the decision of the case now before us is controlled by the more recent case of Schollenberger v. Pennsylvania, 171 U. S. 1; and that our statute is void under the commerce clause of the constitution of the United States, so far as it attempts to prevent the introduction and prohibit the sale within this state of oleomargarine in the original package. It will, therefore, be necessary to examine the cases relied on by the state and the traverser respectively to ascertain how far they are applicable to the questions here presented. For, whatever our own views may be, we must, when, as we are here, confronted with a federal question be governed by the decisions of that tribunal, which, by the constitution of the United States, is made the court of last resort in the determination of questions arising under its provisions. It is sufficient to say in regard to Plumley v. Massachusetts, 155 U. S. 462, as well as Powell v. Pennsylvania, 127 U. S. 685, that in neither of them did the question here presented arise. "The Powell case," says Justice Peckham, in delivering the opinion of the court in Schollenberger v. Pennsylvania, 171 U. S. 1, "did not and could not involve the rights of an importer under the commerce clause. The right of a state to enact laws in relation to the administration of its internal affairs is one thing, and the right of a state to prevent the introduction within its limits of an article of commerce is another and a totally different thing. Legislation which has its effect 386 wholly within the state, and upon products manufactured and sold therein, might be held valid as not in violation of any provision of the federal constitution, when, at the same time, legislation directed toward prohibiting the importation within the state of the same article manufactured outside its limits might be regarded as illegal, because in violation of the rights of citizens of other states arising under the commerce clause of that instrument." And after an elaborate examination of Plumley v. Massachusetts, 155 U. S. 462, the same learned judge continues: "It will thus be seen that the case [of Plumley] was based entirely upon the theory of the right of a state to prevent deception and fraud in the sale of

any article, and that it was fraud and deception contained in selling the article for what it was not, and in selling it so that it should appear to be another and a different article, that this right of the state was upheld." "The question," he continues, "of the right to totally prohibit the introduction from another state of the pure article did not arise, and of course was not passed upon." Much has been, and doubtless more will be, said in reference to the alleged conflict between Schollenberger v. Pennsylvania, 171 U. S. 1, and the other cases to which we have just referred. But whether such conflict be real or only apparent it is clear that in the Schollenberger case the supreme court has reiterated in emphatic terms what has been so often declared by that court, that no state legislature can validly prohibit the importation and sale within the state of a pure article of commerce, so long as it remains in the original package.

2. The question then arises whether the article which is charged in the first and second counts of the indictment to have been unlawfully sold and kept for sale by the traverser is an article of commerce, as defined by the supreme court of the United States. Since the decision of Schollenberger v. Pennsylvania, 171 U. S. 1, there can be no doubt as to the result of this inquiry, if we are to be bound by the views expressed in that case. The act of Congress of August 2, 1886 (24 Stats., p. 209, sec. 2), defines oleomargarine as an article "made in imitation

7 and semblance of butter." These are the very words used in our statute to describe and define the article the sale of which is thereby (absolutely) prohibited. After a full discussion of the effect of the act of Congress, and having given the history of the origin and of the manufacture of oleomargarine, the article "made in imitation and semblance of butter," the court declares: "Upon all these facts we think it apparent that oleomargarine has become a proper subject of commerce among the states and with foreign nations." This being so, it is not within the power of the state to prohibit the importation and sale here of oleomargarine made in imitation and semblance of butter, because such legislation would be a clear violation of the commerce clause of the constitution of the United States so far as it regulates interstate commerce.

But it must not be forgotten that the state may pass all laws necessary to prevent deception and fraud in the sale, within its limits, of articles in whatever state manufactured or from whatever state imported or introduced. This right is recognized by all the authorities and by no decision more fully than by the