ORIGINAL PACKAGE. The casing in which imported merchandise is kept and handled in course of transportation, whether hogsheads, bales, bottles, or boxes.
The package delivered by the shipper to the carrier at the initial point of shipment in the exact condition in which It was ship ped. In the case of liquors in bottles, if the bottles are shipped singly, each is an origi nal package, but if a number are fastened together and marked, or are together in a box, etc., such box, etc., constitutes the origi nal package; Guckenheimer v. Sellers, 81 Fed. 997; State v. Winters, 44 Kan. 723, 25 Pac. 235, 10 L. R. A. 616.
An original package is a bundle put up for transportation and usually consists of a number of things bound together and con venient for handling ; State v. Board of As sessors, 46 La. Ann. 145, 15 South. 10, 49 Am. St. Rep. 318, a case of imports and not of interstate commerce.
An original package, trade in which is protected by the federal constitution, is such form and size of package as is used by pur chasers or shippers for the purpose of secur ing both convenience in handling and securi ty in transportation of merchandise between dealers in the ordinary course of commerce; Com. v. Schollenberger, 156 Pa. 201, 27 Atl. 30, 22 L. R. A. 155, 36 Am. St. Rep. 32.
"The term original package is not defined by any and is simply a convenient form of expression * * * to indicate that a license tax could not be exacted of an importer of goods from a foreign country, who disposes of such goods in the form in which they were imported." Cook v. Mar shall Co., 196 U. S. 261, 25 Sup. Ct. 233, 49 L. Ed. 471. The size of the package does not seem to be capable of definition, but it cannot be held that any package which could not be commercially transported from one state to another as a separate importation could be considered as an original package. Id.
A definition which is quoted as "common ly accepted and believed by us to be correct" is that "it is a bundle put up for transporta tion or commercial handling and usually con sisting of a number of things bound together convenient for handling and conveyance"; McGregor v. Cone, 104 Ia. 465, .73 N. W. 1041, 39 L. R. A. 484, 65 Am. St. Rep. 522; where there is possibly as good an expres slon of the matter as may be found: "Tbe original package then, is that package which is delivered by the importer to the carrier at the initial point of shipment in the exact condition in which it was shipped." The phrase "original package," though more in common use in connection with liti gation over the state liquor laws, was in fact originated by Marshall, C. J., in Brown V.
Maryland, where it was held that a "license tax could not be exacted of an importer of goods from a foreign country who disposes of such goods in the form in which they were imported" ; Brown v. Maryland, 12 Wheat. (U. S.) 419, 442, 6 L. Ed. 678, where it was held that a license tax for disposing of the property "in the original form or package in which it was imported is a duty on im ports and unconstitutional." That case related to imports from a for eign country, and it was also held that the thing imported did not lose its distinctive character as an import until it had become "incorporated and mixed up with the mass of property in the country." The same doc trine was afterwards applied to interstate commerce and was expressed in very nearly the same terms in Vance v. Vandercook Co., 170 U. S. 438, 18 Sup. Ct. 674, 42 L. Ed. 1100. In that case the court stated as elementary propositions, entirely concluded by previous adjudications: (a) The states have plenary power to regulate the sale of intoxicating liquors within their borders depending solely on the judgment of the legislatures, provided always they do not invade rights secured by the United States constitution, or discrimi nate, against the rights of residents or citi zens of other states. (b) The right to send liquor§ from one state into another, and the act of sending the same, is interstate com merce, the regulation whereof is committed to congress, and, hence, a state law which denies such a right, or substantially inter feres with or hampers the same, is unconsti tutional. (c) An incident of the power to ship merchandise from one state into anoth er is the right, in the receiver of the goods, to, sell them in the original packages, any state regulation to the contrary notwith standing; that is to say, the goods received by Interstate commerce remain under the shelter of the commerce clause until by a sale in the original package they have been com mingled with the general mass of property in the state. This last phraseology, first ex pressed by Marshall, C. J., and repeated al most in the same words 70 years after, ha• been criticised as unsatisfactory ; Cooke, Commerce Clause, sec. 17. But the expres sion would seem to have been repeated in effect too often to make it probable that it would be abandoned. It occurs as late as 1906 in Rearick v. Pennsylvania, 203 U. S. 507, 27 Sup. Ct. 159, 51 L. Ed. 595.