I do not perceive that they have any bearing upon what I have said or upon the case at bar.

I am authorized to say that the CHIEF JUSTICE, MR. JUSTICE BREWER and MR. JUSTICE PECKHAM concur in this dissent

COOK v. MARSHALL COUNTY, IOWA.

ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.

No. 98. Argued December 9, 12, 1904.-Decided Jauuary 16, 1905.

The term original package is not defined by statute and while it may be impossible to judicially determine its size or shape, under the principle upon which its exemption while an article of interstate commerce is founded, the term does not include packages which cannot be commercially transported from one State to another.

While a perfectly lawful act may not be impugned by the fact that the person doing it was impelled thereto by a bad motive, where the lawfulness or unlawfulness of the act is made an issue, the intent of the actor may be material in characterizing the transaction, and where a party, in transporting goods from one State to another, selects an unusual method for the express purpose of evading or defying the police laws of the latter State the commerce clause of the Federal Constitution cannot be invoked as a cover for fraudulent dealing.

This court adheres to its decision in Austin v. Tennessee, 179 U. S. 343, that small pasteboard boxes each containing ten cigarettes, and sealed and stamped with the revenue stamp, whether shipped in a basket or loosely, not boxed, baled or attached together, and not separately or otherwise addressed but for which the express company has given a receipt and agreement to deliver them to a person named therein in another State, are not original packages and are not protected under the commerce clause of the Federal Constitution from regulation by the police power of the State.

A classification in a state taxation statute in which a distinction is made between retail and wholesale dealers is not unreasonable and § 5007, Iowa Code, imposing a tax on cigarette dealers is not invalid as denying equal protection of the laws to retail dealers, because it does not apply to jobbers and wholesalers doing an interstate business with customers outside of the State.

THIS was a petition by the owner and the tenant of a certain

Argument for Plaintiffs in Error.

196 U. S.

room in the city of Marshalltown, Iowa, addressed to the board of supervisors, for the remission of a tax of $300, imposed upon the business of selling cigarettes, which business was carried on by Charles P. Cook, one of the plaintiffs in error. The petition being denied, an appeal was taken to the District Court, where a demurrer was interposed, which was sustained by that court, and an appeal taken to the Supreme Court, where the judgment of the District Court was affirmed. Iowa, 384.

119

Mr. Junius Parker, with whom Mr. W. W. Fuller and Mr. Frank S. Dunshee were on the brief, for plaintiffs in error: There is a distinguishing difference between Austin v. Tennessee, 179 U. S. 343, and this case in that in the Austin case many parcels were aggregated, and thrown into an open basket and so carried. Thus associated in their carriage they could not be segregated after arrival so to make each an original package. Immunity is given to original packages alike to the retailer and wholesaler. Nor will immunity given to large package be denied to a small one on account of its size. Cigarette packages vary as to size. The ordinary original package of cigarettes is frequently of the size of the packages in this case. The fact that the manufacturer hoped to be able to introduce cigarettes in these packages into Iowa without violating the state statute does not deprive him of the protection of the interstate commerce provisions of the Federal Constitution.

Under Austin v. Tennessee, supra; Brown v. Maryland, 12 Wheat. 419; Bowman v. Railroad Co., 125 U. S. 465; Leisy v. Hardin, 135 U. S. 100; Vance v. Vandercook, 170 U. S. 438; Rhodes v. Iowa, 170 U. S. 412, and Schollenberger v. Pennsylvania, 171 U. S. 1, cigarettes that are manufactured without the State of Iowa are, from the time they are put in transit until the importer in Iowa breaks the original package, or after he has himself disposed of such original package, under the exclusive regulation of Congress. This power of regulation

196 U. S.

Argument for Plaintiffs in Error.

includes the power to absolutely prohibit this interstate traffic in them, Lottery Case, 188 U. S. 321. While this status continues and this authority of Congress may be exercised, the legislature of Iowa is as utterly powerless to regulate such transit and first disposition-if made before breaking of original package—as it would be powerless to regulate affairs in Illinois or Nebraska, or any other adjacent or non-adjacent State.

Congress has not legislated in regard to trade in cigarettes and this silence means that the trade so far as it is interstate and under congressional control shall be free and unrestrained. Robbins v. Shelby Taxing District, 120 U. S. 489, 493.

These cigarettes were in packages prescribed by the internal revenue law and were original packages entitled to immunity from state regulation. Washington v. Coovert, unreported, but see 164 U. S. 702; In re Minor, 69 Fed. Rep. 233; The McGregor Case, 76 Fed. Rep. 956. If a legislature may prohibit sale of cigarettes it may prohibit that of coffee. Tiedeman on Police Power, 2. Only where Congress abdicates its power may the States control a traffic as is the case in regard to liquor. Wilson Act construed in In re Rahrer, 140 U. S. 545; Gibbons v. Ogden, 9 Wheat. 1, 190. The state statute involved is void as it amounts to a denial of equal protection of the laws. The classification excepting jobbers and wholesalers doing an interstate business with customers outside the State is arbitrarily unequal and unjust. Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Cotting v. Stockyards Co., 183 U. S. 79, 112. Section 5007, Iowa Code, is also void as against the owner as a taking of property without due process of law in that it fixes a lien and a personal judgment without any sort of notice against the owner of the real estate in which the cigarettes are sold. McMillan v. Anderson, 95 U. S. 37, and Hagar v. Reclamation District, 111 U. S. 701, distinguished. A party leasing a building for building purposes has no knowledge that it may be used for a sale in violation of the statute. McBride v. State, 70 Mississippi, 516; as to what is due process of law,

Argument for Defendant in Error.

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see Low v. Kansas, 163 U. S. 81; Hurtado v. California, 110 U. S. 516.

Mr. F. E. Northup for defendant in error in this case and Mr. Henry Jayne for defendant in error in No. 150, argued simultaneously herewith.1

Section 5007, Code of Iowa, is not void as an attempt to regulate interstate commerce.

Whatever article of commerce is recognized as fit for barter or sale, when its manufacture is made subject to Federal regulation and taxation, must be regarded as a legitimate article of commerce although it may be within the police power of the States. In re Rahrer, 140 U. S. 559; Brown v. Maryland, 12 Wheat. 419; Leisy v. Hardin, 135 U. S. 100; Austin v. Tennessee, 101 Tennessee 563. And if Congress authorizes its importation, no State can prohibit its introduction. License Cases, 5 How. 504.

A State, however, is not bound to furnish a market for such articles, or to abstain from passing any law which may be necessary or advisable to guard the health or morals of its citizens, although such law may discourage importations or diminish profits of the importer. Boston Beer Co. v. Kansas, 97 U. S. 25; Mugler v. Kansas, 123 U. S. 623; Foster v. Kansas, 112 U.S. 201.

Police power may be lawfully resorted to for the purpose of preserving public health, safety and morals; a large discrimination is necessarily vested in the legislature to determine what the public interests require and what measures are necessary for the protection of such interests. Cases supra and Holden v. Hardy, 169 U. S. 366, 392; Barbmeyer v. Iowa, 18 Wall. 129; Powell v. Pennsylvania, 127 U. S. 678; Plumley v. Massachusetts, 155 U. S. 161; Vanderbilt v. Adans, 7 Cow. (N. Y.) 349; Wilson v. Blackbird &c. Co., 2 Peters, 245; Sherlock v. Alling, 93 U. S. 99; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Mo. Pac. Ry. Co. v. Finley, 38 Kansas, 550;

1See Hodge v. Muscatine County, post, p. 276.

196 U.S.

Argument for Defendant in Error.

Kimmish v. Ball, 129 U. S. 217; Waterbury v. Newton, 50 N. J. L. 534.

A State cannot prohibit the sale of articles of lawful commerce, when imported, by the importer, when such articles. do not become a part of the common mass of property within the State, and so long as they remain in the original packages in which they were imported. Leisy v. Hardin, 135 U. S. 100; Schollenberger v. Pennsylvania, 171 U. S. 1; Bowman v. Chicago &c. Ry. Co., 125 U. S. 465; State v. Winters, 25 Pac. Rep. 237; May v. New Orleans, 178 U. S. 496. But the original package must be of such form and size as is so used by producers or shippers for the purpose of securing both convenience in handling and security in transportation of merchandise between dealers, in the ordinary course of actual commerce. Commonwealth v. Schollenberger, 156 Pa. St. 201; McGregor v. Cone, 104 Iowa, 465.

Where the mode of putting up a package is not adapted to meet the requirements of interstate commerce, but those of an unlawful domestic retail trade, the dealer will not be protected on the ground that he is selling an original package. Austin v. Tennessee, 101 Tennessee, 563; Commonwealth v. Bisham, 138 Pa. St. 639; Haley v. Nebraska, 42 Nebraska, 556; S. C., 60 N. W. Rep. 962; Commonwealth v. Fisherman, 128 U. S. 687; Commonwealth v. Paul, 170 Pa. St. 284; State v. Chapman, 47 N. W. Rep. 411. The size of the package is immaterial where bona fide transactions are carried on. 5 How. 608; Commonwealth v. Zelt, 138 Pa. St. 615; Austin v. Tennessee, 101 Tennessee, 563; S. C., 179 U. S. 343.

Section 3392, Rev. Stat., as to size of cigarette packages is for the purpose solely of taxation and the better enforcement of the internal revenue law.

The court must consider in determining this question that the transaction was not in good faith, and the packages were not shipped in the usual and ordinary manner and according to the customary usages of trade and commerce.

The act should not be held unconstitutional unless it is a