facturer. When no display is made except a device, then the word "Oleomargarine" shall be impressed on such brick, print, or roll in letters not less than one-fourth of an inch square, and in all cases the word "Oleomargarine" shall be equally displayed with any brand or word used by the manufacturer, in close proximity thereto, and on the same surface of such brick, print, or roll.

2. The same rule shall be observed where any device or brand is used upon the wrapper covering any brick, print, or roll of oleomargarine. 3. Manufacturers will be permitted to impress upon their rolls, prints, or bricks marks or embellishments in the way of a finish for the same, without the word "Oleomargarine" appearing thereon, provided said marks or embellishments are first presented in duplicate photographic copies, serially numbered, to this office for approval. The wrappers for these rolls, prints, or bricks may be in blank, but if any mark, device, or brand is used the word "Oleomargarine" must appear in letters one-fourth of an inch square and in close proximity thereto and on the same surface of each brick, print, or roll.

4. Under no circumstances will any manufacturer or dealer be permitted to impress, brand, or mark upon any print, brick, or roll of oleomargarine, or on any wrapper covering the same, any device, word, or words calculated to induce the public to believe that it is a product of the diary or butter, even though the word "Oleomargarine" appears on the same.

5. Manufacturers are not permitted to put up oleomargarine in wooden, tin, pressed-fiber, stone, or other vessels as subdivision packages for domestic use. It is only in the case of oleomargarine packed for export that such subdivision packages are permitted.

6. In case of small packages inclosed in statutory packages for export, the marks and brands required on the inner packages must be placed on the packages proper and not upon an outer covering or additional or false top or bottom.

In reply to the contention that this office is not authorized to make regulations as to the devise, mark, or brand upon prints, bricks, or rolls of oleomargarine, or the wrapper covering the same, this office holds that the law contemplates that oleomargarine shall be packed in packages of not less than 10 pounds each, and that those who avail themselves of the privilege granted by the regulations of this office to put up oleomargarine in prints, bricks, or rolls, and to pack the same in statutory packages, instead of packing the oleomargarine solid in statutory packages, shall not use this privilege to deceive the public, but must comply with the regulations made in pursuance thereof.

Collectors will advise manufacturers that all oleomargarine found upon the market shipped from the place of manufacture after June 1, 1900, which is not packed, marked, stamped, and branded in accordance with the regulations will be seized as subject to forfeiture.

G. W. WILSON, Commissioner.

(127.) Oleomargarine.

The obligations of a retail dealer in oleomargarine stated.--The primary object of the oleomargarine law is to raise revenue, and the law is constitutional. --Decision in the case of the United States v. Daniel E. Dougherty.

TREASURY DEPARTMENT,

OFFICE OF COMMISSIONER OF INTERNAL REVENUE,

Washington, D. C., May 14, 1900.

To collectors of internal revenue and others concerned:

The appended opinion of the United States district court for the eastern district of Pennsylvania, relating to the obligations of retail dealers in oleomargarine and the constitutionality of the law regulating the manufacture and sale of oleomargarine, is published for the information of officers of internal revenue and others concerned.

G. W. WILSON, Commissioner.

UNITED STATES DISTRICT COURT-EASTERN DISTRICT OF PENNSYL

VANIA-AUGUST SESSIONS, 1899-No. 20.

United States v. Daniel E. Dougherty.—Motions in arrest of judgment and for a new trial. Two positions are taken in support of the motion to arrest the judgment-first, that the indictment does not set out an offense under the act of 1885 (1 Supp. Rev. Stat., 505), and, second, that the statute is unconstitutional, in so far as it provides for the marking of packages used by retail dealers in oleomargarine, the allegation being that in this respect it is not a revenue measure, but is a police regulation which Congress is said to have no power to enact.

The indictment charges the defendant with unlawful sale, unlawful delivery, and unlawful packing; and in each count the package is described as not a 66 new "" and suitable" wooden or paper package. The first position is based upon the contention that no such offense is created by the act as a sale, or delivery, or packing, by a retail dealer in other than "new and suitable" packages, and therefore that the indictment does not set forth a criminal act. It is argued that the first penal clause of section 6, so far as it affects a sale or delivery of oleomargarine, can only apply to the manufacturer or the wholesale dealer, because it is the manufacturer who is expressly required, by an earlier clause of that section, to pack in wooden packages "not before used for that purpose"—that is, in packages that are not new-and because all sales by manufacturers or wholesale dealers are directed by the same section to be made in "original stamped packages"—that is, in new packages—while the retail dealer is permitted to sell in a "suitable" wooden or paper package, and, it is said, may therefore sell in a package that is not new."

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It is further argued that the second penal clause of section 6, which forbids the packing of oleomargarine in any manner contrary to law, does not forbid the retail dealer to pack in 66 a new and suitable" package, but only forbids him to sell in a package not "suitable," because in his case no other manner of packing is contrary to law, and, therefore, that a packing charged to have been made not in "new and suitable" packages, is not an indictable offense. The conclusion sought to be

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drawn is that, as the indictments charge the defendant, as a retail dealer, with packing, selling, or delivering in packages that were not new as well as not "suitable," wooden or paper receptacles, acts thus set forth do not lay him open to a criminal proceeding.

The dispute at the trial was over the marking of packages, and there was not a word of controversy concerning either their newness or their suitability. As a consequence, if the indictments are technically defective for the reason now urged, the defendant has already had one chance of escape before a jury in a trial upon the merits, and must now be given a second chance upon a trial of the same issue under new indictments framed to meet his objections. For I do not agree with the argument that section 6 has been so faultily drawn that a retail dealer is not within its provisions at all, and, therefore, that no subsequent indictment could be successfully sustained. On the contrary, I think that the duties of a retail dealer are described with sufficient plainness by the section in question, and that an indictment in some form or other is maintainable. The present question is whether the indictments now under consideration are good. Let us consider the obligations of a retail dealer. He must not remove the oleomargarine from the original stamped package that has been delivered to him by the manufacturer or by the wholesale dealer until he has agreed with a customer upon the terms of a sale at retail. (The regulations of the Commissioner of Internal Revenue permit him to prepare the article in retail packages, but these must remain in, or at most upon, the original stamped package.) After such agreement to sell, the dealer must pack the pound, or other quantity less than 10 pounds, in a "suitable" wooden or paper package, and the sale becomes complete when delivery is made. What a "suitable" package may be is not defined by the act, but I think the meaning is that a suitable package is such as the dealer himself may reasonably find to be convenient and proper, according to the usages and demands of the trades. Thus far, the retailer's package is not described as "new," although I venture to affirm that no one would regard such a package as "suitable" unless it was also "new;" but when the statute comes to impose penalties for the violation of its provisions, it then declares that "" every person"-and this inclusive phrase certainly embraces the retail dealer-must sell and deliver in a "new" wooden or paper package, or suffer the consequences declared by the section. That "every person" includes the retail dealer appears clearly from the considerations that all who sell "in any other form than in new wooden or paper packages" are embraced by the express language of the clause, and that no other person than a retail dealer is allowed to sell in a package made of paper, the manufacturer and wholesale dealer being confined to sales in packages made of wood.

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I think there is no inconsistency or contradiction between the two sentences now being considered. In one sentence the package is described as "suitable" (whatever this somewhat vague expression may include), and in the succeeding sentence "suitable" is declared, at least in one of its aspects, to mean new." When, therefore, the Government used both these words in referring to the defendant's packages, I think it may fairly be said that the newness was only spoken of as one element of suitability, and that there was nothing objectionable in such use of language, in view of the collocation of sentences in the section.

Moreover, I think the very indefinite word "suitable" serves no purpose in the indictment, as it served no purpose at the trial, and may be properly disregarded as surplusage. If the pleader had described the package as not of a proper color or texture or size, no attention would

be paid to such an immaterial averment, and in my opinion no more weight should be given to the averment of suitability. If the defendant is punishable for failure to sell or deliver in a new package—as I think he is-and is not punishable for failing to sell or deliver in a suitable package, the averment of suitability is wholly foreign to the charge and may be disregarded (1 Wharton Crim. Law, 7th ed., sec. 622). But even if the counts concerning sale and delivery are defective, the counts concerning packing are, I think, unquestionably good. These counts charge him with packing in a manner contrary to law, namely, in packages not marked in accordance with the regulations of the Commissioner. Where this is the charge, it is immaterial what kind of a package is used, for section 6 declares it to be an offense to pack in any package (without further describing it) any oleomargarine in any manner contrary to law; and, therefore, if the package is not properly stamped or branded, the offense of unlawful packing is committed, whether the package be new or old, suitable or unsuitable. To describe the package as "new and suitable" in such counts is, to my mind, so plainly surplusage that I think nothing further need be said to show that these words may properly be treated as nonexistent. I am not deciding, of course, that the prohibition of unlawful packing may not include more than the use of unmarked packages, but surely that the use of such packages is at least one of the acts that are forbidden by the prohibition.

The defendant's second position may, I think, be sufficiently answered by quoting a short extract from the opinion of Chief Justice Fuller in a recent case arising under the act now in controversy:

"The act before us is, on its face, an act for levying taxes, and although it may operate in so doing to prevent deception in the sale of oleomargarine as and for butter, its primary object must be assumed to be the raising of revenue. * **The oleomargarine legislation does not differ in character from laws relating to distilled spirits and tobacco, and the object is the same in both, namely, to secure revenue by internal taxation and to prevent fraud in the collection of such revenue. Protection to purchasers in respect of getting the real and not a spurious article can not be held to be the primary object in either instance, and the identification of dealer, substance, quantity, etc., by marking and branding must be regarded as means to effectuate the objects of the act in respect of revenue. (In re Kollock, 165 U. S., 536-537.)

If the principal object of the act is the raising of revenue and not protection to purchasers, as the Supreme Court has thus declared, the argument that Congress has unlawfully invaded the police power of the States must fall to the ground.

The motions in arrest of judgment and for a new trial are both overruled. To the overruling of the motion in arrest of judgment an exception is sealed for the defendant.

(211.)

Regulations governing the marking and branding of packages of oleomargarine for export.

[Regulations No. 9, revised January, 1900.-Supplement No. 1.]

TREASURY DEPARTMENT,

OFFICE OF COMMISSIONER OF INTERNAL REVENUE,
Washington, D. C., September 11, 1900.

To collectors of internal revenue:

In order to secure greater uniformity in the marking and branding of packages of oleomargarine for export the following additional regulations are promulgated, under the authority conferred by section 20 of the act of August 2, 1886:

Section 16 of the above-mentioned act provides that oleomargarine may be removed from the place of manufacture for export to a foreign country without payment of tax, under such regulations and the filing of such bonds and other security as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe. It also requires every person who shall export oleomargarine to brand upon each tub, firkin, or other package containing such article, the word "Oleomargarine" in plain roman letters not less than one-half inch square.

In accordance with the provisions of the above-mentioned section, oleomargarine may be removed from the place of manufacture for export to a foreign country in tubs, firkins, or other packages containing not less than 10 pounds of such article, of such material and form as the exporter may elect, provided that the package so used is capable of being and is marked, branded, and stamped as required by law and regulations.

Before the tub, firkin, or other package containing oleomargarine for export is nailed, sealed, or otherwise closed for shipment, it shall be inspected by the collector or his deputy, who shall examine to see that it contains the number of vessels of the kind and capacity set forth in the application for withdrawal, and that the inner packages are branded with the word "Oleomargarine," and if found by him to agree with the statement contained in such application, and otherwise to be in accordance with regulations, he will allow the package to be closed, and shall see that the required marks, brands, and stamps are immediately affixed in the manner prescribed by regulations.

INNER PACKAGES.

Manufacturers may put up oleomargarine in wooden, tin, or other vessels containing not less than one-half pound each, which must, however, be packed in tubs, firkins, or other vessels capable of being marked, branded, and stamped as required by the law and regulations.