Cook v. Marshall Cnty.

Decision Date02 February 1903
Citation93 N.W. 372,119 Iowa 384
CourtIowa Supreme Court


Appeal from district court, Marshall county; G. W. Burnham, Judge.

The opinion states the case. Affirmed.Dunshee & Dorn (J. Parker, of counsel), for appellants.

Henry Stone, for appellee.


The appellant Cook is a dealer in tobacco, cigars, and cigarettes, carrying on his business in a building owned by Plunkett, the other appellant, in the city of Marshalltown. A mulct tax having been assessed against Cook under the provisions of section 5007 of the Code, appellants petitioned the board of supervisors to remit and cancel such tax on the ground that no cigarettes had ever been kept, sold, or given away by Cook except in the original packages made by the manufacturer in another state, and in that form shipped directly to him in this state, and that, therefore, the section of the Code referred to as applied to such sales is in violation of the constitution of the United States, which reserves to congress the right and power to regulate interstate commerce. This petition was supported by affidavit of an employé of the shipper at St. Louis, in the state of Missouri, that the cigarettes sold and shipped to Cook were done up in pasteboard boxes containing 10 cigarettes each (the printed record leaves a blank for the number in each box, but counsel for appellants state the number to be 10, and we will so consider it). The affidavit further states that the packages were separately sealed and stamped with a revenue stamp, and adds that: “These packages were shipped to C. P. Cook absolutely loose, or at least neither the American Tobacco Company nor myself or any one of its other employés for it furnished any box, bale, wrapping, or other covering for these packages, nor in any way attached them together. These packages were not separately addressed, nor were any of them addressed, but at the time they were delivered to the driver of the U. S. Express Co., which express company was the common carrier to whom the delivery was made, the said driver took a duplicate of the receipts he had given. These receipts showed the number of packages and the name of the person to whom they were to be sent, and from its duplicate receipts I suppose the express company had notice of the number to be delivered and the name of the consignee and his address.” This petition being refused, an appeal was taken to the district court, where an amendment was filed, alleging that the statute providing for the mulct tax is invalid, because the subject-matter of said section 5007 is not expressed or indicated in the title to the act in which it is found, as provided in the constitution of this state, and because it discriminates in favor of jobbers and wholesalers doing an interstate business. A demurrer to the amended petition, as stating no ground or fact entitling petitioners to the relief demanded, having been sustained, and judgment entered against them for costs, the petitioners appeal.

1. We first consider whether the petitioners show themselves entitled to the protection afforded by the interstate commerce clause of the federal constitution. It is asserted that the traffic in which Cook was engaged was the receiving and selling of cigarettes in the original packages as shipped from the manufacturer in another state, and is therefore lawful under the rule applied in Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128, and other cases of the same general nature, decided by the supreme court of the United States. So far as this branch of the case is concerned the question is whether 10 cigarettes, put up, handled, shipped, and sold in the manner indicated by the petition, is such an “original package” as is meant by the authorities which the appellant relies upon. As an original proposition, addressed to common sense, aided by a conscience of average enlightenment, and uncomplicated by precedent, there would seem to be no room for doubt that this question should be answered in the negative. It must be admitted, however, that authorities are not wanting affording the appellants some ground to believe that any scheme or device, no matter how transparent the fraud, is sufficient to baffle the power of a sovereign state so long as it bears the magic legend “original package.” This theory is founded upon what has been supposed to be the holding of the court of last resort in the cases already referred to; but, as we view it, those decisions do not justify the deductions made. The term “original package” is not to be found in the constitution, and has come into use simply as a convenient term or expression for one of the incidents ordinarily inseparable from interstate commerce. The term “imports” or “foreign commerce” or “interstate commerce” always implies the idea of goods, wares, or merchandise manufactured, produced, or prepared in one jurisdiction, and carried into another for the purpose of sale. There can be no such commerce without transportation or carriage. For convenience and safety in such transportation, most articles of commerce being shipped to an importer or buyer are combined into packages, encased in boxes or other wrapping, and directed to the proper consignee. In this form they do not ordinarily enter into the retail or general trade of the community, and the fact that the package is unbroken is an indication that the goods have not yet lost their distinctive character as imports, or become mingled with the mass of property subject solely to the jurisdiction of local authority. The recognition of this feature by Chief Justice Marshall in Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678, is the foundation on which all subsequent “original package” decisions in the various courts of the land are sought to be justified. In this, as in some other notable instances, the principle then announced has been so distorted and wrested from its original simple meaning that, if the great jurist were permitted to return to the scene of his historic labors, he would doubtless hesitate long before acknowledging the legitimacy of the descent of the modern doctrine. It should not be overlooked that the pronouncement of Chief Justice Marshall upon which such reliance is placed was made in reference to foreign commerce only, and that the words so often quoted were employed in discussing the constitutional prohibition of duties and imposts by state authorities, and did not involve any consideration of interstate commerce. Woodruff v. Parham, 8 Wall. 123, 19 L. Ed. 382. This distinction is noted and emphasized in the majority opinion in the late case of Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 224, hereinafter more particularly referred to. The term “original package,” as employed in law, admits of no precise definition applicable to all cases. Generally, it is said to be a parcel, bundle, bale, box, or case made up of or “packed” with some commodity with a view to its safety and convenient handling in transportation. Keith v. State, 91 Ala. 2, 8 South. 353, 10 L. R. A. 430;State v. Board of Assessors, 46 La. Ann. 146, 15 South. 10, 49 Am. St. Rep. 318;Austin v. State, 101 Tenn. 563, 48 S. W. 305, 50 L. R. A. 478, 70 Am. St. Rep. 703;Com. v. Schollenberger, 156 Pa. 201, 27 Atl. 30, 22 L. R. A. 155, 36 Am. St. Rep. 32. It does not necessarily mean that goods shall be inclosed in a tight or sealed receptacle. McGregor v. Cone, 104 Iowa, 465, 73 N. W. 1041, 39 L. R. A. 484, 65 Am. St. Rep. 522;State v. Chapman, 1 S. D. 114, 47 N. W. 411, 10 L. R. A. 432. It relates wholly to goods as prepared for transportation, and has no necessary reference whatever to the package originally prepared or put up by the manufacturer. Indeed, the idea of an original package may well be made to cover certain forms of property which do not ordinarily admit of being “packed” or encased in any other manner than in the car or vessel in which they are transported. Such, for instance, as steel beams, threshing machines, and other bulky articles. Whether, in such cases, the unit or package for the purposes of interstate commerce is the car load, or cargo, or the entire consignment, or the individual articles of which the consignment is composed, is unnecessary for us to consider. Fortunately, as regards the very class of goods now in controversy, we are not left without a controlling precedent.

Austin v. Tennessee, supra, recently decided by the supreme court of the United States, upholds the constitutionality of a statute of Tennessee prohibiting the sale of cigarettes in that state. There, as here, the nonresident manufacturer and the resident agent or dealer, aided by a superserviceable common carrier, undertook to convert the interstate commerce privilege afforded by the federal constitution into a shield behind which to violate the law of the state with impunity. The plan adopted may be explained as follows: To conform to the internal revenue law of the United States, the manufacturer put the cigarettes into small pasteboard boxes of 10 each. These boxes are about 3 inches in length and 1 1/2 inches in width, a convenient size for the vest pocket of the schoolboy or man addicted to the use of tobacco in that form. In filling an order for these goods from a state where the traffic is unlawful, the seller, instead of packing the requisite dozens or hundreds or thousands of boxes in a larger box or package, as would be done in legitimate commercial transactions generally, placed the small boxes in a loose pile upon the floor of his warehouse, and notified the carrier, who came, gathered up the consignment in a basket, and put it in course of transportation to the consignee. By this device it was claimed that each box of 10 cigarettes was to be considered an original package, which the importer might lawfully receive, hold, and sell without let or hindrance by the state authorities. The adoption of this doctrine would, of...

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