81 F. 997 | U.S. Circuit Court for the District of South Carolina | 1897
These four cases, differing somewhat in detail, have been heard together. They all present the same question, what is an original package? and before any of these can be decided, this question must be first settled.
It has been established by decisions which cannot now be questioned that liquors imported into a state are subject to the exercise of its police power, whether brought in in original packages or otherwise, and that when the use of intoxicating liquors as a beverage has been forbidden by state law as injurious to the health, welfare, or safety of the state, no sale of such liquor can be made within that state, for such purpose, by any one, either resident or importer. It has further been established hv the decision of the supreme court that the dispensary law of South Carolina does not declare the use of intoxicating liquors as a beverage injurious to the health, welfare, and safety of the state; that, on the contrary, the state itself imports in quantities, and sells at a profit, intoxicating liquors for use as a beverage; that the prohibition by the state against ¡he importation of such liquors by any one except the state itself, or with the consent of the state, is not the exercise.of the police power, but an interference with, and a regulation of, interstate commerce; that, under the constitution of the United States, such interference and regulation are void. But the police power begins when interstate commerce ends. The imported^ article, when it comes into a .state and becomes mingled with the other property of the state, becomes subject to all infra-state commerce regulations; and in South Carolina the state, in the full and lawful exer
An examination of the large number of cases which have been quoted by counsel shows that the question under discussion is largely a question of fact, determinable by the circumstances of each casa A text writer in the American and English Encyclopedia of Law (volume 17, page 275, note) says:
“An original package, within the sense of the interstate commerce regulations, is the unbroken package imported into a state from another state or a foreign country, before, by sale or otherwise, it gets into the mass of the general property in the state.”
The form or size of the package the importer determines for himself. State v. Winters (Kan. Sup.) 25 Pac. 235. However small the package may be, so long as it is an original package, it is protected. In re Beine, 42 Fed. 545. If, however, the package, as put up by the importer, contain a number of other and smaller packages, each sealed, such as beer bottles in a barrel, or wine or whisky in a case, to which would the term “original package” apply, — the bottles (each), or the barrel or box? The decided cases are not uniform in their answer to this question. In Keith v. State, 91 Ala. 2, 8 South. 353, these were the facts: The liquor was shipped by Lowenthal & Co., wholesale •and retail liquor dealers, residing in Hashville, Tennessee, in half pint, pint, and quart bottles. The bottles were separately wrapped in tissue paper, each labeled “original package,” with the name of the importer and shipper, in an open box, with hay laid between them,
The federal cases are few in number. Judge Hall, of the district of Mississippi, held, in Re Harmon, 43 Fed. 372, that: when bottles of whisky were put in a wooden box, and so imported, the box, and not the bottles, was the original package. The circuit court of appeals of the Seventh circuit, in U. S. v. One Hundred and Thirty-Two Packages of Spirituous Liquors and Wines, 22 C. C. A. 228, 76 Fed. 364, discuss the meaning of the word “package,” as used in section 3449, Rev. St. U. S.: “The term ‘package’ means every box, barrel, or other receptacle into which distilled'spirits have been placed for shipment or removal, either in quantity or in separate small packages, as bottles or jugs.” Although none of these authorities are conclusive, they greatly assist in reaching a decision. These shipments look for their protection to the law of interstate commerce. It is that unit, the thing which the carrier receives, transports, and delivers as an article of commerce, which is protected. The protection of the law is given to that which is imported through those channels, and in this way. The importer decides for himself the size and form of the package which he seeks to import. He puts it up in the shape in which he wishes to import it, gives it the initial steps which put it in transit, and so makes it the subject of interstate commerce. “The original package was and is the package as it existed at the time of its transportation from one state to another.” State v. Winters (Kan. Sup.) 25 Pac. 237. “An original package is a bundle put up for transportation or commercial handling, and usually consists of a number of things bound together, convenient for handling and conveyance.” State v. Board of Assessors (La.) 15 South. 10. The case of State v. Keith, 91 Ala. 2, 8 South. 353, expresses this idea clearly:
*1000 “Merely labeling each bottle ‘original package’ does not-make it one, if it was not really the, original package. The term ‘to pack,’ in its ordinary signification, especially when used in reference to carriage, means to place together and prepare for transportation, — as to make up a bundle, or bale, or box, or other receptacle. They do not form as many and separate packages as there are articles, though they may he wrapped separately. The case or hale in which separate articles are placed together for transportation constitutes the original package.”
So, In re Beine, 42 Fed. 546, which holds that the importer will be protected in his importation, however small may be the bulk of the package, decided that bottles could be original packages when they ■were sealed and nailed up separately, not packed in any other box,’ but shipped singly and separately. This case, by the way, is at variance with the Pennsylvania cases quoted by the attorney general, (Com. v. Paul, 170 Pa. St. 284, 33 Atl. 82; Com. v. Schollenberger, 156 Pa. St. 201, 27 Atl. 30), and its conclusion is preferred to them. Retail trade, as well as wholesale trade, is included in the idea of commerce.
Considering all these cases and the others quoted in argument, it appeal’s that the original package is the package delivered by the importer to the carrier at the initial place of shipment, in the exact condition in which it was shipped. If in single bottles, shipped singly, or if in packages of three or more securely fastened together and marked, or if in a box, barrel, crate, or other receptacle, the single bottle, in the one instance, the three or more bottles, in another instance, the barrel, box, crate, or other receptacle, respectively constitute the original package. If sold or delivered, it must be sold or delivered as shinned and received. If the package be broken after such deliver)7, it comes within the police regulations of the state, and any sale or delivery in such case is unlawful.
Let an order be prepared in each case in accordance with this opinion.