ORIGINAL PACKAGE, a legal term in America, meaning the package in which goods, intended for inter-State commerce, are actually transported wholesale. The term is used chiefly in determining the boundary between Federal and State jurisdiction in the regulation of commerce, and derives special significance by reason of the conflict between the powers of Congress to regu late commerce and the police legislation of the States with respect to commodities considered injurious to public health and morals.
By the Federal Constitution Congress is vested with the power "to regulate commerce with foreign nations and among the several States, and with the Indian tribes," and each State is forbidden, without the consent of Congress, to "lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws," and the basis of the law on the subject of "original package" was laid when, in 1827, Chief Justice Marshall interpreted these clauses in his decision of the case of Brow? v. Maryland ( T2 Wheaton 419), which tested the constitutionality of an act of the legislature of Maryland requiring a licence from importers of foreign goods by bale or package and from persons selling the same by wholesale, bale, package, hogs head, barrel or tierce. After pronouncing such a licence to be in effect a tax, the chief justice observed that so long as the thing imported remained "the property of the importer, in his ware house, in the original form or package in which it was imported," i a tax upon it was too plainly a duty on imports to escape the prohibition of the Constitution.
Later decisions agree that the right to import commodities or to ship them from one State to another carries with it the right to sell them, and have established the boundary line between Fed eral and State control of both foreign imports and inter-State shipments at a sale in the original package (Waring v. Mobile, 8 Wall. II()) or at the breaking of the original package before sale for other purposes than inspection (May v. New Orleans, 178 U.S. 498). A State or a municipality may, however, tax while in their original packages any commodities which have been shipped in from another State, provided there be no discrimination against such commodities.
The term occasioned considerable confusion prior to the adop tion of the 18th (prohibition) amendment to the Constitution in 1919. The Supreme Court in Jan. 1847, in the licence cases,
upheld the constitutionality of Massachusetts, New Hampshire and Rhode Island laws requiring licences for the sale of intoxi cating liquors, the liquor having been shipped in the inter-State commerce (5 Howard 504). The justices based their decisions on different opinions and did not even agree that the power of Congress to regulate inter-State commerce included the power to authorize a sale after shipment. The Supreme Court held in Leisy v. Hardin, in 1889, where a keg of beer sold in Iowa, a prohi bition State, had been shipped from Illinois by order of an agent of an Illinois firm, that so long as it was sold in the original package, it remained a matter for Federal regulation only (135 U.S. Ioo). This overruled in part the doctrine in the licence cases. Congress passed in 1890 the Wilson Act, which provided that where intoxicants were shipped into a State or Territory, they were subject to the police laws of such State or Territory. Even with this act, however, a State was not permitted to inter fere with an inter-State shipment of liquor direct to the consumer. The Webb Act, passed by Congress in 1913, did prohibit the ship ment of liquor into any State in violation of its police laws.
What constitutes an original package was the principal question in the case of Schollenberger v. Pennsylvania (1 7 1 U.S. I), the court deciding that. the State of Pennsylvania could not pro hibit the sale of oleomargarine by retail when it had been shipped from Rhode Island in packages containing only ten pounds each, and the original package doctrine has been sharply criticized because of the difficulty in determining what constitutes an origi nal package, as well as because of the conflict between the doctrine and the police powers of the several States.
See J. B. Uhle, "The Law Governing an Original Package," in The American Law Register, vol. xxix. (Philadelphia, 189o) ; Shackel ford Miller, "The Latest Phase of the Original Package Doctrine," and M. M. Townley, "What is the Original Package Doctrine ?" both in The American Law Review, vol. xxxv. (St. Louis, 1900 ; also F. H. Cooke, The Commerce Clause of the Federal Constitution (Igo8).