after the alleged commission of the act, did not, when he left the state, render him a fugitive from justice within the meaning of the statute. There is no evidence or claim that he then committed any act which brought him within the criminal law of the state of Tennessee, or that he was indicted for any act then committed. The proof is uncontradicted that he went there on business, transacted it, and came away. The complaint was not made, nor the indictments found, until months after that time. His departure from the state after the conclusion of his business cannot be regarded as a fleeing from justice within the meaning of the statute. He must have been there when the crime was committed, as alleged, and if not, a subsequent going there and coming away is not a flight.

*

Judgment affirmed.

1

ESTABLISHMENT OF REPUBLICAN GOVERNMENT 1

LUTHER v. BORDEN.

(Supreme Court of United States, 1849. 7 How. 1, 12 L. Ed. 581.) See ante, p. 38, for a report of this case.

STATE EXECUTIVE POWER 2

MISSISSIPPI v. JOHNSON.

(Supreme Court of United States, 1867. 4 Wall. 475, 18 L. Ed. 437.) See ante, p. 35, for a report of this case.

LUTHER v. BORDEN.

(Supreme Court of United States, 1849. 7 How. 1, 12 L. Ed. 581.) See ante, p. 38, for a report of this case.

STATE JUDICIAL POWER'

See the cases ante, pp. 18-34, under The Three Departments of Government.

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 117-119. 2 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 125, 126. * For discussion of principles, see Black, Const. Law (3d Ed.) §§ 128, 134.

STATE LEGISLATIVE POWER

SHARPLESS v. MAYOR, ETC., OF CITY OF PHILADEL PHIA.

(Supreme Court of Pennsylvania, 1853. 21 Pa. 147, 59 Am. Dec. 759.) See ante, p. 12, for a report of this case.

AUSTIN v. TENNESSEE.

(Supreme Court of United States, 1900. 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 224.)

[Error to the Supreme Court of Tennessee. A state statute forbade the selling of cigarettes. Austin purchased from a factory in North Carolina a lot of cigarettes in pasteboard boxes containing 10 each, each box separately stamped and labeled as prescribed by the federal revenue laws. The vendor piled the boxes sold upon the floor of its warehouse, and an express company by its agent took them from the floor, put them in an open basket already in its possession, shipped them to Austin's town in Tennessee, and delivered from the basket, upon the counter in Austin's place of business, the whole lot of detached boxes. Austin sold one of these boxes, unbroken, and was convicted of violating the statute.]

Mr. Justice BROWN, * * * [After deciding that cigarettes were a legitimate article of commerce:] There is no reason to doubt the good faith of the legislature of Tennessee in prohibiting the sale of cigarettes as a sanitary measure, and if it be inoperative as applied to sales by the owner in the original packages, of cigarettes manufactured in and brought from another state, we are remitted to the inquiry whether a paper package of 3 inches in length and 11⁄2 inches in width, containing ten cigarettes, is an original package protected by the Constitution of the United States against any interference by the state while in the hands of the importer? This we regard as the vital question in the case.

The whole law upon the subject of original packages is based upon a decision of this court, in Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678, in which a statute of Maryland, requiring all importers of foreign articles, "by bale or package," or of intoxicating liquors, and other persons selling the same, "by wholesale, bale or package, hogshead, barrel or tierce," to take out a license, was held to be repugnant to that provision of the Constitution for

4 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 137, 139.

bidding states from laying a duty upon imports, as well as to that declaring that Congress should have power to regulate commerce with foreign nations. There was thought to be no difference between a power to prohibit the sale of an article while it was an import and the power to prohibit its introduction into the country. The one would be the necessary consequence of the other. No goods would be imported if none could be sold. But, in delivering the opinion of the court, Mr. Chief Justice Marshall observed: "It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the state; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the Constitution." This sentence contains in a nutshell the whole doctrine upon the subject of original packages, upon which so formidable a structure has been attempted to be erected in subsequent cases. Whether the decision would have been the same if the original packages in that case, instead of being bales of dry goods or hogsheads, barrels or tierces of liquors, had been so minute in size as to permit of their sale directly to consumers, may admit of considerable doubt. Obviously the doctrine of the case is directly applicable only to those large packages in which from time immemorial it has been customary to import goods from foreign countries. It is safe to assume that it did not occur to the Chief Justice that, by a skilful alteration of the size of the packages, the decision might be used to force upon a reluctant people the use of articles denounced as noxious by the legislatures of the several states. * * *

Most pertinent to this case, and, as we think, covering its principle completely, is the opinion of this court in May v. New Orleans, 178 U. S. 496, 44 L. Ed. 1165, 20 Sup. Ct. 976, decided at the last term. This involved the validity of certain tax assessments made by the city of New Orleans upon the merchandise and stock in trade of the plaintiff, which consisted of dry goods imported from foreign countries, upon which duties had been levied by and paid to the general government. The goods were put up and sold in packages, a large number of such packages being inclosed in wooden cases or boxes for the purposes of importation. Upon arrival at New Orleans the boxes were opened, the packages taken. out and sold unbroken. The question was whether the box or case containing these packages, or the packages themselves were the original packages within the case of Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678. It was conceded that, so long as the packages remained in their original cases, they were not subject

to taxation, but the court held that this immunity ceased as soon as the boxes were opened. As stated by Mr. Justice Harlan in delivering the opinion of the court (p. 508, L. Ed. p. 1169):

"In our judgment, the 'original package' in the present case was the box or case in which the goods imported were shipped, and when the box or case was opened for the sale or delivery of the separate parcels contained in it, each parcel of the goods lost its distinctive character as an import, and became property subject to taxation by the state as other like property situated within its limits. The tax here in question was not in any sense a tax on imports nor a tax for the privilege of bringing the things imported into the state. It was not a tax on the plaintiff's goods because they were imported from another country, but because at the time of the assessment they were in the market for sale in separate parcels and therefore subject to be taxed as like property, in the same condition, that had its origin in this country. We cannot impute to the framers of the Constitution a purpose to make such a discrimination in favor of property imported from other countries as would result if we approved the views pressed upon us by the plaintiffs. When their goods had been so acted upon as to become a part of the general mass of property in the state the plaintiffs stood, with respect to liability to state taxation, upon the same basis of equality as the owners of like property, the product of this country; the only difference being that the importers paid a duty to the United States for the privilege of importing their goods into this country, and of selling them in the original packages-a duty imposed for the purpose of raising money to carry on the operations of the government, and, in many instances, with the intent to protect the industries of this country against foreign competition."

The case under consideration is really the first one presenting to this court distinctly the question whether, in holding that the state cannot prohibit the sale in its original package of an article brought from another state, the size of the package is material, although some of the expressions in the License Cases seem to foreshadow the consequences likely to result from the argument of the defendant. * * * [Here follow quotations from the opinion of Catron, J., 5 How. at 608, 12 L. Ed. 303, and from Woodbury, J., Id. at 625, 12 L. Ed. 311, and also a discussion of various state cases dealing with the matter.]

The real question in this case is whether the size of the package in which the importation is actually made is to govern; or, the size of the package in which bona fide transactions are carried on between the manufacturer and the wholesale dealer residing in different states. We hold to the latter view. The whole theory of the exemption of the original package from the operation of state laws is based upon the idea that the property is imported in

the ordinary form in which, from time immemorial, foreign goods have been brought into the country. These have gone at once into the hands of the wholesale dealers, who have been in the habit of breaking the packages and distributing their contents among the several retail dealers throughout the state. It was with reference to this method of doing business that the doctrine of the exemption of the original package grew up. But taking the words "original package" in their literal sense, a number of so-called original package manufactories have been started through the country, whose business it is to manufacture goods for the express purpose of sending their products into other states in minute packages, that may at once go into the hands of the retail dealers and consumers, and thus bid defiance to the laws of the state against their importation and sale. In all the cases which have heretofore arisen in this court the packages were of such size as to exclude the idea that they were to go directly into the hands of the consumer, or be used to evade the police regulations of the state with regard to the particular article. No doubt the fact that cigarettes are actually imported in a certain package is strong evidence that they are original packages within the meaning of the law; but this presumption attaches only when the importation is made in the usual manner prevalent among honest dealers, and in a bona fide package of a particular size. Without undertaking to determine what is the proper size of an original package in each case, evidently the doctrine has no application where the manufacturer puts up the package with the express intent of evading the laws of another state, and is enabled to carry out his purpose by the facile agency of an express company and the connivance of his consignee. This court has repeatedly held that, so far from lending its authority to frauds upon the sanitary laws of the several states, we are bound to respect such laws and to aid in their enforcement, so far as can be done without infringing upon the constitutional rights of the parties. The consequences of our adoption of defendant's contention would be far reaching and disastrous. For the purpose of aiding a manufacturer in evading the laws of a sister state, we should be compelled to recognize anything as an original package of beer from a hogshead to a vial; anything as a package of cigarettes from an importer's case to a single paper box of ten, or even a single cigarette, if imported separately and loosely; anything from a bale of merchandise to a single ribbon, provided only the dealer sees fit to purchase his stock outside the state and import it in minute quantities.

There could hardly be stronger evidence of fraud than is shown by the facts of this case. * And yet we are told that each one of these packages is an original package, and entitled to the protection of the Constitution of the United States as a separate and distinct importation. We can only look upon it as a discred