principle was upheld by the U. S. Supreme Court in the case of Powell v. Pennsylvania (127 U. S. 678).

Just as the prohibitory principle became firmly rooted in the state laws, Congress enacted a law (August 2, 1886) imposing a tax of two cents per pound on oleomargarine, and special annual taxes of $600, $480, and $48 on manufacturers, wholesale dealers, and retail dealers, respectively. This act made the prohibitory principle embodied in the oleomargarine law of many states unconstitutional. The fact that the United States government imposed an internal revenue tax on oleomargarine caused the courts to hold that Congress recognized the product as a lawful article of commerce. Laws of states, therefore, prohibiting the admission of oleomargarine into their territory were in conflict with the constitutional interstate commerce clause. The prohibitory principle which had been upheld by the U. S. Supreme Court in the case of Powell v. Pennsylvania was now declared unconstitutional in the case of Schollenberger v. Pennsylvania (171 U. S. 1) decided May 23, 1898.

The decision of the U. S. Supreme Court swept the prohibitory principle off the statute books and forced a recession to the original restrictive principle. The restrictive principle was supplemented with rigorous administration, a system of license fees, and conspicuous branding or marking. For a more detailed view of the development of the oleomargarine law, a study of the successive changes made in the law of Pennsylvania will prove useful. Not only is the oleomargarine legislation of this state fairly typical, but two important cases that came up from the Pennsylvania courts and involved the constitutionality of the law were passed upon by the U. S. Supreme Court. These of course had an important

influence upon the development of the oleomargarine law of the country.

RESTRICTIVE AND PROHIBITORY LAWS OF PENNSYLVANIA

The restrictive principle in the oleomargarine law of Pennsylvania, entitled "For the protection of dairymen and to prevent deception in sales of butter and cheese," and enacted in 1883, allowed the manufacture and sale of oleomargarine, but required that all packages containing it should be branded or marked, and that retailers selling oleomargarine must give a printed label bearing the words "oleomargarine butter" to the purchaser. The law reads as follows:

I

Section I. Be it enacted, . . . . . That every person who shall manufacture for sale, or who shall offer or expose for sale, or who shall export to a foreign country, by the tub, firkin, box or package, or any greater quantity, any article or substance in semblance of butter or cheese, not the legitimate product of the dairy, and not made exclusively from milk or cream, but into which any oil, lard or fat not produced from milk or cream, enters as a component part or into which melted butter or any oil thereof has been introduced to take the place of cream, shall distinctly and durably stamp, brand or mark upon the side of every cheese, and also upon the top and side of every such tub, firkin, box or package of such article or substance, the words " oleomargarine butter," or if containing cheese the words "imitation cheese" only, where it can be plainly seen in Roman letters, which shall be burned in or painted thereon with permanent black print in a straight line, and shall not be less than one-half inch in length, and if for export shall also invoice the same and clear the same through the custom house as " oleomargarine butter" or if cheese as "imitation cheese," and in case of retail sales of such articles

'Laws of Pennsylvania, 1883, p. 43.

or substances in parcels, the seller shall, in all cases, sell or offer or expose the same for sale from the tub, firkin, box or package stamped, branded, or marked, as herein stated, and shall also deliver therewith to the purchaser, printed label having the plainly printed words "oleomargarine butter,"

ete.

In 1885, the above law was repealed, and the manufacture and sale of oleomargarine were completely prohibited in the act' entitled "For the protection of the public health, and to prevent adulteration of dairy products and fraud in the sale thereof." Section I. of this act is as follows:

Be it enacted, . . . . . That no person, firm or corporate body shall manufacture out of any oleaginous substance or any compound of the same, other than that produced from unadulterated milk or of cream from the same, any article designed to take the place of butter or cheese produced from pure anadulterated milk, or cream from the same, or of any imitation, or adulterated butter or cheese, nor shall sell or offer for sale, or have in his, her or their possession with intent to sell the same as an article of food.

THE CASE OF POWELL V. PENNSYLVANIA

The validity of the Pennsylvania law of 1885 was tested in the case of Powell v. Pennsylvania (127 U. S. 678). The facts in the case are as follows: The defendant sold on July 10, 1885, in the city of Harrisburg, two original packages of butterine as such, and not as butter made from pure unadulterated milk or cream. The packages were marked "Oleomargarine Butter" as prescribed by the Pennsylvania statute. The defendant also had in his possession 100 pounds of the same article with intent to

1Laws of Pennsylvania, 1885, p. 22.

sell it as an article of food. A verdict of guilty was returned by the Court of Quarter Sessions of the Peace in Dauphin County, Pennsylvania. The defendant was adjudged to pay a fine of one hundred dollars and costs of prosecution. The judgment was affirmed by the Supreme Court of the State, and the case was brought before the U. S. Supreme Court on a writ of error.

The defendant contended that the sale in question was not in violation of the laws of 1878 and 1883, and that the law of 1885 upon which the prosecution was based, was in conflict with the Fourteenth Amendment of the Federal Constitution in that it denied to him equal protection guaranteed to others in the pursuit of an ordinary calling or trade; and this inequality deprived the defendant of his property without that compensation required by law.

Mr. Justice Harlan, who wrote the opinion of the Court, held that "the objection that the statute is repugnant to the clause of the Fourteenth Amendment forbidding denial by the State to any person within its jurisdiction of the equal protection of the laws, is untenable. The statute places under the same restrictions, and subjects to like penalties and burdens, all, who manufacture, or sell, or offer for sale, or keep in possession to sell, the articles embraced by its prohibitions; thus recognizing and preserving the principle of equality among those engaged in the same business."

The opinion further states that reference to the laws of 1878 and 1883 is irrelevant in as much as the prosecution is founded on the law of 1885; and that the question of regulation of the oleomargarine industry as provided for in the laws of 1878 and 1883, or that of complete prohibition as provided for in the law of 1885, is a matter of public policy, and is within the power of

the state legislature to determine. Appeal can not be had to the judiciary but must be addressed to the state legislature through the ballot-box.

The opinion also holds that the Fourteenth Amendment was not designed to interfere with the exercise of the police power by the state for the protection of health, the prevention of fraud, and the preservation of public morals.

Upon these grounds the U. S. Supreme Court affirmed the judgment of the Supreme Court of Pennsylvania.

THE FEDERAL LAW OF 1886.

The federal law defines butter and oleomargarine as follows:

Sec. I. That for the purpose of this act the word "butter' shall be understood to mean the food product usually known as butter, and which is made exclusively from milk or cream, or both, with or without common salt, and with or without additional coloring matter.

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Sec. II. That for the purposes of this act certain manufactured substances, certain extracts, and certain mixtures and compounds, including such mixtures and compounds with butter, shall be known and designated as oleomargarine," namely: All substances heretofore known as oleomargarine, oleo, oleomargarine-oil, butterine, lardine, suine, and neutral; all mixtures and compounds of oleomargarine, oleo, oleomargarine-oil, butterine, lardine, suine, and neutral ; all lard extracts and tallow extracts; and all mixtures and compounds of tallow, beef-fat, suet, lard, lard-oil, and vegetable-oil, annotto, and other coloring matter, intestinal fat, and offal fat made in imitation or semblance of butter or when so made, calculated or intended to be sold as butter or for butter.

It is seen that the federal law does not recognize such