51 F. 282 | U.S. Circuit Court for the District of Maryland | 1892
The petitioner has been arrested and indicted by the proper authorities of the city of Baltimore, and is now in jail, his bail having surrendered him. The indictment is for a violation of Code Pub. Gen. Laws Md. art. 27, §§ 88-91, inclusive, relating to the . sale of oleomargarine.
That a person may import an article from a foreign country or one of the states of the Union, and sell it in the condition in which it was imported, is not to bo disputed now, after a long line of decisions by the supreme court, running as far back as Chief Justice Marshall’s day. A stale may regulate the sale and storage of articles dangerous to the health of the citizen, but it cannot prohibit the importation. The statute under which McAllister is indicted makes no allusion to the fact that it has a hygienic purpose, and it does not regulate the sale of oleomargarine, hut prohibits its possession altogether in the hands of the importer. It is argued that the taking the lid from the tub containing this oleomargarine was a breaking of the package so as to destroy its original character. This in no sense did it do. The goods had in no way become commingled with his property or the general property of the state. Law v. Austin, 13 Wall. 29. Any one calling for oleomargarine with an honest purpose would have jmrohased this package as an original one, even if he knew it hadhad its lid lifted off once to see whether or not it held another substance than it purported to hold. The laws of the United States recognize oleomargarine as a merchantable article. Being such, while a state may perhaps regulate its sale, it cannot prohibit its importation. The statute in question does this, and is unconstitutional, and in this respect void. The petitioner is discharged.
Code Md. art. 27, § 90, provides, with respect to oleomargarine, that no person “shall have the same in his possession with intent to sell the same, or shall sell or offer the same for áale. ”