Commerce
eral regulations
branded foods.

Mr. H. O. Fairchild argued the cause and filed a brief for plaintiffs in error:

In

box containing the packages intended to be purchased by the consumer, does not render the statute invalid as in excess of the power There is a recognized field of regulation of Congress over interstate commerce. incidentally affecting interstate commerce, [For other cases, see Commerce, IV. b, 1, in Digest Sup. Ct. 1908.] over which the state and the Federal govconflicting state and Fed-ernment have concurrent jurisdiction. adulterated or mis- this field the states are permitted to legislate until Congress assumes to legislate upon the same subject, when the power of the states in that respect ceases, to the extent that Congress itself assumes to occupy the field; but when Congress acts, since its power is supreme and exclusive, any attempt thereafter by the state to adopt regulations covering the same subject is absolutely futile and void from the beginning.

3. Permitting a sale of cans of a mixture of glucose and refiner's syrup shipped into the state only when the labels prescribed by Wis. Laws 1907, chap. 557, governing the sales of food products, are substituted for those affixed in an honest attempt to comply with the food and drugs act of June 30, 1906, is an unlawful attempt by the state to discredit and burden legitimate Federal regulations of interstate commerce, to destroy rights arising out of the Federal statute which have accrued both to the govern

ment and the shipper, and to impair the

effect of a Federal law which has been enacted under the constitutional power of Congress over the subject.

[For other cases, see Commerce, 65-67, 399,
in Digest Sup. Ct. 1908.]
Commerce
branded foods
original packages

power of Congress

state regulation. 4. Congress having, by the food and drugs act of June 30, 1906, made adulterated and misbranded articles contraband of interstate commerce, could, in order to make the legislation effective, authorize, as it did in § 10 of that act, seizures for confiscation and condemnation so long as the articles remained unsold, whether in the original packages or not; and such means of enforcement may not be thwarted by state legislation, like Wis. Laws 1907, chap. 557, under which cans of a mixture of glucose and refiner's syrup which have been removed from the boxes in which they were shipped in interstate commerce, and are held upon the shelves of the importers for sale, must bear only the labels required by the state law, to the exclusion of those affixed conformably to the Federal law.

[For other cases, see Commerce. 65-67, 399, 425-437, in Digest Sup. Ct. 1908.]

[Nos. 112 and 113.]

Argued January 17 and 20, 1913. Decided
April 7, 1913.

T

WO WRITS OF ERROR to the Supreme Court of the State of Wisconsin to review judgments of affirmance of convictions in the Circuit Court of Dane County, in that state, of violations of the pure food

law. Reversed and remanded for further proceedings.

Morgan's L. & T. R. & S. S. Co. v. Board of Health, 118 U. S. 455, 30 L. ed. 237, 6 Sup. Ct. Rep. 1114; Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204, 212, 38 L. ed. 962, 966, 4 Inters. Com. Rep. 649, 14 Sup. Ct. Rep. 1087; Gulf, C. & S. F. R. Co. v. Hefly, 158 U. S. 98, 104, 105, 39 L. ed. 910, 912, 913, 15 Sup. Ct. Rep. 802; Interstate Commerce Commission v. Detroit, G. H. & M. R. Co. 167 U. S. 633, 642, 42 L. ed. 306,

309, 17 Sup. Ct. Rep. 986; Keller v. United States, 213 U. S. 138, 146, 53 L. ed. 737, 739, 29 Sup. Ct. Rep. 470; Southern R. Co. v. Reid, 222 U. S. 424, 436, 443, 56 L. ed. 257, 260, 262, 32 Sup. Ct. Rep. 140; Northern P. R. Co. v. Washington, 222 U. S. 370, 377–379, 56 L. ed. 237, 239, 240, 32 Sup. Ct. Rep. 160; Savage v. Jones, 225 U. S. 501, 56 L. ed. 1182, 32 Sup. Ct. Rep. 715.

The lower court holds the state statute to

cover both interstate and intrastate commerce.

McDermott v. State, 143 Wis. 29, L.R.A. (N.S.) 126 N. W. 888, 21 Ann. Cas. 1315.

This construction of the state statute by the court is conclusive upon this court.

Illinois C. R. Co. v. Illinois, 163 U. S. 142, 152, 41 L. ed. 107, 110, 16 Sup. Ct. Rep. 1096; W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 45 L. ed. 619, 21 Sup. Ct. Rep. 423; Olsen v. Smith, 195 U. S. 332, 342, 49 L. ed. 224, 229, 25 Sup. Ct. Rep. 52.

Assuming a conflict between the state statute and the food and drugs act, the state statute, if inoperative and void as to interstate commerce, must be held void as to intrastate commerce also, within the ruling of all the cases, and therefore wholly inoperative and void as to both the defendants, whether their acts complained of con

stituted interstate or intrastate traffic.

United States v. Ju Toy, 198 U. S. 253, 262, 263, 49 L. ed. 1040, 1043, 1044, 25 Sup.

See same case below, 143 Wis. 18, 126 Ct. Rep. 644; Employers' Liability Cases N. W. 888, 21 Ann. Cas. 1315.

The facts are stated in the opinion.

(Howard v. Illinois C. R. Co.) 207 U. 8. 463, 497, 498, 509, 52 L. ed. 297, 308, 309,

813, 28 Sup. Ct. Rep. 141; Illinois C. R. Co., ing which accords with such standards, at

the time of its introduction into interstate commerce, continues a legal branding until the article ceases longer to be in interstate commerce; that is, until after sale by the importer in the original package, the article being retained by the importer in such package.

v. McKendree, 203 U. S. 514, 529, 530, 51 L. ed. 298, 304, 305, 27 Sup. Ct. Rep. 153; El Paso & N. E. R. Co. v. Gutierrez, 215 U. S. 87, 98, 54 L. ed. 106, 111, 30 Sup. Ct. Rep. 21; International Text-Book Co. v. Pigg, 217 U. S. 91, 112, 113, 54 L. ed. 678, 687, 688, 27 L.R.A. (N.S.) 493, 30 Sup. Ct. Rep. 481, 18 Ann. Cas. 1103; Trade-Mark Cases, Heyman v. Southern R. Co. 203 U. S. 270, 100 U. S. 82, 25 L. ed. 550; Connolly v. 276, 51 L. ed. 178, 27 Sup. Ct. Rep. 104, 7 Union Sewer Pipe Co. 184 U. S. 540, 25 L. Ann. Cas. 1130; Adams Exp. Co. v. Kened. 550, 22 Sup. Ct. Rep. 431; State v. Chi-tucky, 206 U. S. 129, 137, 51 L. ed. 987, 992, cago M. & St. P. R. Co. 136 Wis. 417, 19 27 Sup. Ct. Rep. 606. L.R.A. (N.S.) 326, 117 N. W. 686; GilbertArnold Land Co. v. Superior, 91 Wis. 357, 64 N. W. 999; Huber v. Martin, 127 Wis. 445, 3 L.R.A. (N.S.) 653, 667, 115 Am. St. Rep. 1023, 105 N. W. 1031, 1135, 7 Ann. Cas. 400.

The view taken by the state court of the Federal act is a palpable misconception of its scope and purpose.

Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678; Greek-American Sponge Co. v. Richardson Drug Co. 124 Wis. 475, 109 Am. St. Rep. 961, 102 N. W. 888; Schollenberger v. Pennsylvania, 171 U. S. 1, 43 L. ed. 49, 18 Sup. Ct. Rep. 757; McDermott v. State, 143 Wis. 30, L.R.A. (N.S.) ―, 126 N. W. 888, 21 Ann. Cas. 1315.

In the absence of congressional legislation the right to import a lawful article of commerce from one state to another continues until a sale (by the importer) in the original unbroken package in which the article is introduced into the state.

An article declared by Congress to be a lawful subject of interstate commerce cannot be declared otherwise, by state courts or legislatures, whatever the character of the article may be.

Leisy v. Hardin, 135 U. S. 110, 125, 34 L. ed. 132, 138, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681; Lottery Case (Champion v. Ames) 188 U. S. 361, 47 L. ed. 503, 23 Sup. Ct. Rep. 321, 13 Am. Crim. Rep. 561.

One who imports and sells in the orig inal unbroken package an adulterated or misbranded article of food or drugs certainly "received," within the meaning of the act, such article from another state, and having received it delivers it to another "for pay," and is therefore subject to the penalty of the act. So he who offers for sale, offers to deliver the article, and he who sells delivers it, "for pay" to another, within the meaning of the act. A completed sale or offer to sell includes and contemplates a delivery "for pay."

Butler v. Thomson, 92 U. S. 412, 414, 23 L. ed. 684, 685; 7 Words & Phrases, 629; Iowa v. McFarland, 110 U. S. 471, 478, 28 L. ed. 198, 200, 4 Sup. Ct. Rep. 210; Pitts

Schollenberger v. Pennsylvania, 171 U. S. 1, 43 L. ed. 49, 18 Sup. Ct. Rep. 757; Greek-American Sponge Co. v. Richardson Drug Co. 124 Wis. 475, 109 Am. St. Rep. 961, 102 N. W. 888; Bowman v. Chicago &burg Melting Co. v. Reese, 118 Pa. 355, 12

N. W. R. Co. 125 U. S. 465, 31 L. ed. 700, 1 Inters. Com. Rep. 823, 8 Sup. Ct. Rep. 689, 1062; Leisy v. Hardin, 135 U. S. 100, 125, 34 L. ed. 128, 138, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681; Lottery Case (Champion v. Ames) 188 U. S. 321, 361, 47 L. ed. 492, 503, 23 Sup. Ct. Rep. 321, 13 Am. Crim. Rep. 561; American Steel & Wire Co. v. Speed, 192 U. S. 500, 522, 48 L. ed. 538, 547, 24 Sup. Ct. Rep. 365; American Exp. Co. v. Iowa, 196 U. S. 133, 142, 49 L. ed. 417, 421, 25 Sup. Ct. Rep. 182; Heyman v. Southern R. Co. 203 U. S. 270, 51 L. ed. 178, 27 Sup. Ct. Rep. 104, 7 Ann. Cas. 1130; Savage v. Jones, 225 U. S. 501, 56 L. ed. 1182, 32 Sup. Ct. Rep. 715.

Atl. 362; Parker v. Donaldson, 2 Watts &
S. 19; Com. v. Williams, 6 Gray, 6.

The protection of purchasers and consumers in the states as well as in the territories and District of Columbia is the purpose of the Federal act.

United States v. Charles L. Heinle Specialty Co. 175 Fed. 299; United States v. 65 Casks Liquid Extracts, 170 Fed. 453; United States v. 68 Cases of Syrup, 172 Fed. 783; United States v. 100 Cases of Tepee Apples, 179 Fed. 987.

Whether an article is misbranded or not is a judicial question under the Federal act,

one of fact, to be determined in a judicial proceeding upon proofs, and by a jury if Congress having passed no statute au- the defendant so elects; while under the thorizing the state to set aside the stand-state statute the question is legislative,ards of the food and drugs act as to brands is determined conclusively and arbitrarily or labels, or to prescribe a branding of any by the statute itself. Under the state other character than that prescribed by it, while the article remains in interstate commerce, it necessarily follows that the brand

statute the accused has no day in court as to the truthfulness of the name he uses for the article or its ingredients. He may not

in any case of dispute show by proofs that wholesaler for delivery to the consumerthe label under which he sells or holds in possession for that purpose is truthful, because that is not the test of his guilt. Under the Federal act judicial proceedings are provided for, in which the burden of showing that the label or brand is in fact false, deceptive, or misleading to the consumer is cast upon the government, which must assert and prove the fact.

The necessity for varying regulations as Lottery Case (Champion v. Ames) 188 to when interstate shipments shall become U. S. 321, 355, 356, 357, 47 L. ed. 492, 500- incorporated into the mass of the property 502, 23 Sup. Ct. Rep. 321, 13 Am. Crim. of the state must, of course, be admitted Rep. 561; Buttfield v. Stranahan, 192 U. S. as the character of the property or the pur470, 492, 495, 48 L. ed. 525, 534, 535, 24 Sup. Ct. Rep. 349; Interstate Commerce poses of regulation shall be different. If Commission v. Brimson, 154 U. S. 447, 473, the protection of consumers of foods and 38 L. ed. 1047, 1056, 4 Inters. Com. Rep. drugs from deceptive branding or harmful 545, 14 Sup. Ct. Rep. 1125; United States v. adulteration is the purpose of a statute, as 43 Gallons of Whiskey, 93 U. S. 188, 194, here, it is apparent that the package or 23 L. ed. 846, 847; Louisville & N. R. Co. container in which the consumer is to rev. Mottley, 219 U. S. 467, 480, 55 L. ed. 297, ceive the article he purchases should be, or 34 L.R.A. (N.S.) 671, 31 Sup. Ct. Rep. 265. at least may be, if Congress so wills, the Congress may declare, as we think it has package that is to bear the label or brand in the food and drugs act, that the package | that is to inform him what he is buying of food put up by the manufacturer or and the ingredients of it; otherwise the

statute is ineffective to accomplish its evi-| (N.S.) 486, 128 Am. St. Rep. 1061, 116 N. dent and conceded purpose.

when he has made the first sale thereof, in | merely to receive the article in the unbroken the original package so received.

Cook v. Marshall County, 196 U. S. 261, 49 L. ed. 471, 25 Sup. Ct. Rep. 233; Austin v. Tennessee, 179 U. S. 343, 45 L. ed. 224, 21 Sup. Ct. Rep. 132; May v. New Orleans, 178 U. S. 496, 44 L. ed. 1165, 20 Sup. Ct. Rep. 976; Greek-American Sponge Co. v. Richardson Drug Co. 124 Wis. 469, 109 Am. St. Rep. 961, 102 N. W. 888.

package.

United States v. 5 Boxes of Asafoetida, 181 Fed. 564.

The term "original unbroken package," as used in §§ 2 and 10 of the act, and "unbroken package," as used in § 3 of the act, had, prior to its adoption, been judicially treated as synonymous.

Low v. Austin, 13 Wall. 29, 20 L. ed. 517; United States v. Fox, Deady, 579, Fed. Cas. No. 15,155.

An original package within the meaning of the food and drugs act is the unit, com

the carrier, addressed to the consignee, and received by him in the identical condition in which it was sent, without separation of the contents in any manner.

Thornton, Foods & Drugs, p. 971.

The foregoing was the judicially accepted definition of "original package," "original unbroken package," and "unbroken package," at the time of the adoption of the act.

Congressional regulation does not exclude state regulation except so far as the former, lawfully exercised, conflicts with the latter. Reid v. Colorado, 187 U. S. 137, 47 L. ed. 108, 23 Sup. Ct. Rep. 92, 12 Am. Crim. Rep.plete in itself, delivered by the shipper to 506; Asbell v. Kansas, 209 U. S. 251, 52 L. ed. 778, 28 Sup. Ct. Rep. 485, 14 Ann. Cas. 1101; Crossman v. Lurman, 192 U. S. 189, 48 L. ed. 401, 24 Sup. Ct. Rep. 234; State v. Chicago, M. & St. P. R. Co. 136 Wis. 416, 19 L.R.A. (N.S.) 326, 117 N. W. 686; Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133, 42 L. ed. 688, 18 Sup. Ct. Rep. 287; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 624, 42 L. ed. 878, 18 Sup. Ct. Rep. 488; Gulf, C. & S. F. R. Co. v. Hefley, 158 U. S. 98, 104, 39 L. ed. 910, 912, 15 Sup. Ct. Rep. 802; Western U. Teleg. Co. v. James, 162 U. S. 650, 654, 40 L. ed. 1105, 1106, 18 Sup. Ct. Rep. 934; Patapsco Guano Co. v. Board of Agriculture, 171 U. S. 345, 43 L. ed. 191, 18 Sup. Ct. Rep. 862; Pennsylvania R. Co. v. Hughes, 191 U. S. 477, 48 L. ed. 268, 24 Sup. Ct. Rep. 132; Savage v. Scovell, 171 Fed. 566; Northern P. R. Co. v. Washington, 222 U. S. 370, 379, 56 L. ed. 237, 32 Sup. Ct. Rep. 160; Southern R. Co. v. Reid, 222 U. S. 424, 442, 56 L. ed. 257, 262, 32 Sup. Ct. Rep. 140; Savage v. Jones, 225 U. S. 501, 56 L. ed. 1182, 32 Sup. Ct. Rep. 715. It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the states, even when it may do so, unless its purpose to effect that result is clearly manifested. The repugnance or conflict should be direct and positive, so that the two acts could not be reconciled or consistently stand together.

Reid v. Colorado, 187 U. S. 137, 148, 47 L. ed. 108, 23 Sup. Ct. Rep. 92, 12 Am. Crim. Rep. 506; Asbell v. Kansas, 209 U. S. 251, 257, 52 L. ed. 778, 28 Sup. Ct. Rep. 485, 14 Ann. Cas. 1101.

As to the importer in any state, the penalty only reaches him who, having received an interstate shipment, delivers or offers to deliver the same in the "original unbroken package" to any other person, thus making the original importer alone subject to the penalty, and then only when he shall sell or offer to sell the article in the original unbroken package in which he received it. It is not a violation of the statute'

Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678; Low v. Austin, 13 Wall. 29, 20 L. ed. 517; Cook v. Pennsylvania, 97 U. S. 566, 24 L. ed. 1015; Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681; Vance v. W. A. Vandercook Co. 170 U. S. 438, 42 L. ed. 1100; Austin v. Tennessee, 179 U. S. 343, 45 L. ed. 224, 21 Sup. Ct. Rep. 132; Guckenheimer v. Sellers, 81 Fed. 997; May v. New Orleans, 178 U. S. 496, 44 L. ed. 1165, 20 Sup. Ct. Rep. 976; Re Harmon, 43 Fed. 372; Cook v. Marshall County, 196 U. S. 261, 49 L. ed. 471, 25 Sup. Ct. Rep. 233; Schollenberger v. Pennsylvania, 171 U. S. 1, 43 L. ed. 49, 18 Sup. Ct. Rep. 757; State ex rel. Gelpi v. Board of Assessors, 46 La. Ann. 145, 49 Am. St. Rep. 318, 15 So. 10; Com. use of Philadelphia County v. Schollenberger, 156 Pa. 201, 22 L.R.A. 155, 36 Am. St. Rep. 32, 4 Inters. Com. Rep. 488, 27 Atl. 30; Thornton, Foods & Drugs, 1912, pp. 143, 150-177; United States v. Fox, Deady, 579, Fed. Cas. No. 15,155.

The object of the law is to keep adulterated articles out of the channels of interstate commerce; or, if they enter such commerce, to condemn them while being transported, or when they have reached their des tination, provided they remain unloaded, unsold, or in unbroken, original packages.

Hipolite Egg Co. v. United States, 220 U. S. 45, 55 L. ed. 364, 31 Sup. Ct. Rep. 364; Savage v. Jones, 225 U. S. 501, 58 L. ed. 1182, 32 Sup. Ct. Rep. 715.

The Federal act in question is not to be construed as displacing state authority to regulate the adulteration or branding of foods which have been shipped from without the state, and thereby become subject