The form and size of a package the im porter determines for himself, and its size has no bearing on the question whether it is "original" ; In re Seine, 42 Fed. 545; State v. Winters, 44 Kan. 723, 25 Pac. 235, 10 L. R. A. 616. It has varied from the small boxes containing ten cigarettes ; Iowa v. McGregor, 76 Fed. 956; McGregor v. Cone, 104 Ia. 465, 73 N. W. 1041, 39 L. R. A. 484, 65 Am. St. Rep. 522 ; In re May, 82 Fed. 422; to carload lots of coal ; McNeill v. R. Co., 202 U. S. 543, 26 Sup. Ct. 722, 50 L. Ed. 1142; but where liquor in casks was shipped in carload lots the cask was the original pack age ; U. S. v. Liquid Extracts, 170 Fed. 449, where it was said: "The idea of the orig inal package may well be made to cover cer tain forms of property which do not ordi narily admit of being packed or incased in any other manner than in the car or vessel in which they are transported, such, for in stance, as steel beams, threshing machines and other bulky articles." Where an agent procured orders for en larging photographs and delivered them with frames fitted to them which he tried to sell, the pictures having been ordered and the frames not, he was convicted of peddling without a license, the picture and frame to gether not being an original package ; State v. Montgomery, 92 Me. 433, 43 Atl. 13.
Labelling a bottle or small bundle "orig inal package" has no effect ; Keith v. State, 91 Ala. 2, 8 South. 353, 10 L. R. A. 430, where small bottles of liquor, wrapped in paper and so labelled, were packed in an open box, the box was the original package and not the bottle. But where cigarettes were transported in small paper packages containing ten each not being boxed but thrown loosely into baskets, held that such paper parcels were not original packages, and that the importations were made for the purpose of evading the law of the state prohibiting their sale; Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 224, where it was established that the court may consider the bone fides of the construction of the packages and refuse to permit an in tentional invasion of the state law ; and to the same effect; Com. v. Zelt, 138 Pa. 615, 21 Atl. 7, 11 L. R. A. 602 ; Haley v. State, 42 Neb. 556, 60 N. W. 962, 47 Am. St. Rep. 718; State v. Chapman, 1 S. D. 414, 47 N. W. 411, 10 L. R. A. 432; Smith v. State, 54 Ark. 248, 15 S. W. 882. The case of Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 224, affirmed Blaufield v. State, 103 Tenn. 593, 53 S. W. 1090, on the point stated supra, but disagreed with the decision of the Tennessee court that cigarettes are not legit imate objects of commerce and their sale in original packages is not protected by the commerce clause ; on this point it was also held contra in State v. Lowry, 166 Ind. 372, 77 N. E. 728, 4 L. R. A. (N. S.) 528, 9 Ann.
Cas. 350.
Where the goods are in bottles, or small packages contained in boxes or crates, the bottles were held to be the original packages in Com. v. Bishman, 138 Pa. 642, 21 Atl. 12; State v. Coonan, 82 Ia. 400, 48 N. W. 921 (sealed bottles in open barrels and boxes) ; State v. Miller, 86 Ia. 638, 53 N. W. 330 (the same ; in both cases the act was prior to Aug. 14, 1890, date of Wilson Act) ; and the small packages in Re May, 82 Fed. 422; Sawrie v. Tennessee, 82 Fed. 615 (all cases applying to cigarettes in small boxes) ; but the cases generally hold that the box is the original package; Guckenneimer v. Sellers, 81 Fed. 997; Smith v. State, 54 Ark. 248, 15 S. W. 882 (bottles of liquor in open and closed boxes); Haley v. State, 42 Neb. 556, 60 N. W. 902, 47 Am. St. Rep. 718 (small bottles of liquor in closed boxes) ; State v. Chapman, 1 S. D. 414, 47 N. W. 411, 10 L. R. A. 432 (open box) ; In re Harmon, 43 Fed. 372 ; May v. New Orleans,, 51 La. Ann; 1064, 25 South. 959 (small packages in packing boxes, box furnished by carrier and to be returned) ; State v. Parsons, 124 Mo. 436, 27 S. W. 1102, 46 Am. St. Rep. 457 (medi cine) ; McGregor v. Cone, 104 Ia. 465, 73 N. W. 1041, 39 L. R. A. 484, 65 Am. St. Rep. 522 (cigarettes). In the case of patent medi cines, it is the small individual package or bottle and not the box in which they are packed; Kentucky Board of Pharmacy v. Cassidy, 115 Ky. 690, 74 S. W. 730, 25 Ky. L. Rep. 102. There is said to be no differ ence whether the box be covered or uncover ed; Keith v. State, 91 Ala. 2, 8 South. 353, 10 L. R. A. 430 (supra) ; and if the ship ment is in bottles, its character is not chang ed by the carrier's putting it in a box or boxes for his own accommodation; Tinker v. State, 96 Ala. 115, 11 South. 383. The fact that the box was owned by the carrier is im material ; Austin v. State, 101 Tenn. 563, 48 S. W. 305, 50 L. R. A. 478, 70 Am. St. Rep. 703; id., 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 224, where packages of cigarettes were shipped in open baskets, the latter held the original package. A ten pound package of oleomargarine, made and packed in one state and sent into another, is an original package, and the importer may sell it per sonally or by an agent directly to the con sumer. The protection of the commerce clause does not depend on whether the pack age is suitable for retail trade or not ; Schol lenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. 757, 43 L. Ed. 49, reversing Com. v. Paul, 170 Pa. 284, 33 Atl. 82, 30 L. R. A. 396, '50 Am. St. Rep. 776. The right to import a lawful article of commerce from another state continues until the sale in the original package; Schollenberger v. Pennsylvania, 171 TJ. S. 1, 23, 18 Sup. Ct. 757, 43 L. Ed. 49.