In re WARE. (CIrcuit Conrt. D. MI.J:mesota, Third Di\·lslon.
brTERSTATE COMMERCE-LABELING BAKING POWDER.
.Tune 29. 1892.)
In the absence of proof that alum in baking powder I.s deleterious to · health, <kn. Laws Minn. 1889, c. 7, § 1, as amended by Gen Laws :Minn. 1891, c. 119, declaring it a misdemeanor to sell baking powder containing alum,. unless the package have a label stating that it contains alum, violates Const. U. S. art. 1, § 8, granting to congress the power to regulate interstate commerce, in so tar as it relates to original packages imported from another state. .
At Law. Application of R. B. Ware for writ of habeas corpus. Writ granted. M.. D. Mmm, for petitioner. SANBORN, Circuit Judge. Dellafield, McGovern & Co., who were ill that state, and placed in a citizens of illinois,' package which was not marked with the words, "This Baking Powder Contains Alum," a quantity. of baking pOWder, and shipped the same to the prisoner, in Minnesota, who W88 their agent for the purpose of selling it. The prisoner, as such agent at St. Paul, in the state of Minnesota, sold this original package in the same condition in which he received it. There was no charge that this baking powder was pois()'nous, or in any way dangerous, or that its use W88 in any "'ay deleterious to the publichealtb. For this sale the prisoner was committed to the county jail by the municipal court of the city. ()f St. Paul, because it was a violation of section 1 of chapter 7 of the General Laws of Minnesota for 1889, as amended by chapter 119 of the General Laws of Minnesota for 1891, which declares it to be a misdemeanor to sell baking powder containing alum in Minnesota, unless the package containing it is labeled, "This Baking Powder Contains Alum," and imposes a penalty by fine or imprisonment for such misdemeanol.". Article 1 of section 8 of the constitution of the United States provides that "the congress shall have power to late commerce among the several states." This power to regulate commerce was by this provision of the constitution granted by the people and the states to and vested in the congress exclusively, and no state, by virtue of any power reserved to the states, can lawfully infringe upon this grant. Any act of a state which interferes with interstate commerce in a well-known and sound, article of commel"ce is unconstitutional and void. Railroad Co. v. Husen, 95 U. S. 465, 471--473; Bowman v. Railway Co., 125 U. S. 474, 475, 479--481, 484, 485, 488, 489, 497, 507, 508, 8 Sup. Ct. Rep. 689, 1062; Henderson v. Mayor, 92 U.S. 271, 272; Foster v. Commissioners, 7 Minn. 140, (Gil. 84;) Hall v. De Coir. 95 U. S. 485. There is no question that a state, in the exercise of the police power reserved to it, may pass sanitary laws, and laws for the protection of life, liberty, or property within borders, and, for the purpose of self-protection, may pass reasonable quarantine and inspection laws, but it cannot, under the cover of the police powers, subEltantially, prohibit or burden st.ate commerce. Thull it may prohibit the importation into the state.
or the sale therein, of putrid, diseased, or dangerous articles of food; but it cannot prohibit or substantially burden commerce among the states in wholesome or healthful articles of commerce. The reason of this rule is that putrid, and dangerous articles of food do not belong to commerce. They are not commercial articles, and hence the power to regulate them was not granted to the congresf; but every article that does belong to sound com· merciaJ article-is, so fuas intel'l(ltate commerce in it is concerned, subject to reguIationbythe congress alone. The line which determ.bies whether interstate 'commerce in an article is subject to regulation by the state or the congress is perhaps nowhere more clearly sta#d than by· Mr. Jus.tice Matthews in, B()wman v. Railway Co., 125 U. S., at page 490,8 Sup. Ot. Rep. 689, 1062, where he says:
"It trom its nature it does not belong to commerce, or It its oondition, from putrescence or other cause, is such when it is' about to enter the state that it no longer belongs to commerce, or, in other words, Is not a commercial article, ·tIlen.the!state may exciudetts intioduetion, and asantncident to this power it mlo/. to ascertatn.the fact:And here is the limit between the of· ,the .sta,t!'l8.Dd the feq.eral power; that is .to say, that whlchdoes not· belong to commerce is within thepoUce power of the lltate, and that Which dOe!! belong·· to oommeroe is within the jurisdiction of the UDited States."
powder is ,,"well-known . of commerce .among the ,It belongs toconunerce.1'h.esale ot an article impoIied state faa. of interstate commerce, and may not be or burdened. by the states. Brown v. Wheat. 419, 447; Bowman v. Railway 00.,125 U. S. 465, Sup. at. Rep. 6$9, 1062. The stltte law, SQ far as it requires oiiginaJ, of baking powder, not deleterious to health, manuby citizens of another state in that state, and imp,orted into for sale, to be labeled in any particular manner, and so far as. itiInposes a penaJtyfor the sale of such packages when not so labeled, is an unreasonable and vexatious burden upon commerce among the states, and is to that extent in violation of the commercial clause of the constitution. Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ot. Rep. 681; Lyng v. Michigan, 135 U. S. 161, 10 Sup. at. Rep. 725; State v. Gooch, 44 Fed. Rep. 276. Let the prisoner be discharged.
.UNITED STATES v. MARCUS.
(Circuit Court, S. D. New York.
January 20, 1893.)
Act Aug. 5, 1861, (12 St. at Large, p. 313, § 3,), llUthOrized the Issue of flvEHlolliir trell.SUry notes, and an indictment charging the uttering of & oounterfelt of such .R note is good.
Wl:1ere an Jndictm«mt for. passing oounterfelt. money sets forth the oounterfeit note by itS teI,lOf,. but it as a treasury note, when in fact it is a Unlteq. States note, the misdescription is immaterial. U. S. v. Bennett, 17 Blatchf.:a57. followed. 1]. S. T. Mason, 12 Blawht. 497, d1&