The original package doctrine, simple in itself, becomes at times difficult, and, indeed, impossible of strict application be-cause it is not easy to determine what is to be considered the original package which, until broken, preserves the commodity from state control. In some cases, indeed, there is no package whatever to be broken These difficulties are illustrated in the which follow.

30 125 U. S. 465; 8 Sup. Ct. Rep. 689: 31 L. ed. 700. 31 135 U. S. 100; 10 Sup. Ct. Rep. 681: 34 L. ed. 128.

32 Three justices dissented on the ground that the state law was a legitimate exercise of the police power.

33 171 U. S. 1; 18 Sup. Ct. Rep. 757: 43 L. ed. 49.

In May & Co. v. New Orleans34 it was contended as to certain foreign imports, that the original packages were not the larger boxes, cases, or bales in which the goods were imported, but the smaller packages contained therein, and that until these latter were broken, the commingling with the other goods of the States to which they had been brought did not take place. The court, however, held that the larger case or bale was the original package.35

34 178 U. S. 496; 20 Sup. Ct. Rep. 976; 44 L. ed. 1165.

35 "Let us first inquire as to the consequences that may follow from the interpretation of the clause of the Constitution relating to state taxation of imports, upon which the plaintiffs rest their case. In the view taken by them it would seem to be immaterial whether the separate parcels or packages brought from Europe were left in the shipping box, case, or bale after it was opened, or were taken out and placed on the shelves or counters in the store of the importer for delivery or sale along with goods manufactured or made in this country. In other words, they argue that the importer may sell each separate package either from the box in which it was transported, after it is opened, or from the shelves or counters in his store, without being subjected to local taxation in respect of any packages so brought into the country, provided such separate packages be sold or offered for sale in the form in which it was when placed in the box, case, or bale by the European manufacturer or packer. This means that the power of the State to tax goods, the product of other countries depends upon the particular form in which the European manufacturer or packer of his own accord or by direction of the importer, has put them up in order to be sent to this country. The necessary result of this position is that every merchant selling only goods of foreign manufacture, in separate packages, although enjoying the protection of the local government acting under its police powers, may conduct his business, however large, without any liability whatever to state or local taxation in respect of such goods, provided he takes care to have the articles imported separately wrapped and placed in that form in a box, case, or bale for transportation to and sale in this country. In this view, if a jeweller desires to buy fifty Geneva watches for the purpose of selling them here without paying taxes upon them as property, he need only direct them to be placed in separate cases, however small, and then put them all together in one box. After paying the import duties on all the watches in the box, and receiving the box at his store, he may open the box and the watches, each one being in its own separate case, may then be exposed for sale. According to the contention of the plaintiffs, each watch, in its own separate case, would be an original package, and could not be regarded as part of the mass of property of the State and subject to local taxation, so long as it remained in that form and unsold in the hands of the importer. Other illustrations arising out of the business from loose piles of such packages at the factory by the express company in baskets furnished by it, transported in such baskets, and emptied therefrom on the counters of the consignees in the States to which shipped. Here, though there was no larger tax or bale, the court declined to hold the small packages to be the "original" packages,and said that the original package, if there were one, was the basket.

In Austin v. Tennessee,36 decided six months after the May case, the court was confronted by a case in which there was no larger bundle or case, the articles in question - cigarettes -being shipped and transported in small paper packages, without, however, being separately addressed, these packages being taken of American merchants will readily occur to everyone. result would be that there might be upon the shelves of a merchant in this country, ready to be used and openly exposed for sale, commodities or merchandise consisting of articles separately wrapped and of enormous value that could not be reached for local taxation until after he had sold them, no matter how long they had been kept by the importer before selling them. It cannot be overlooked that the interpretation of the Constitution for which the plaintiffs contend would encourage American merchants and traders seeking to avoid state and local taxation, to import from abroad all the merchandise and commodities which they would need in their business. There are other considerations that cannot be ignored in determining the time at which goods imported from foreign countries lose their character as imports and may be properly regarded as part of the general mass of property in the State, subject to local taxation. If, as the plaintiffs insist, each parcel separately wrapped and marked and put in the shipping box, case, or bale, is an original package which, until sold, no matter when, would retain its distinctive character as an import, although the box, case, or bale containing them had been opened and the separate parcels all exposed for sale, what stands in the way of European manufacturers opening branch houses in this country, and selling all their goods put up in the form of separate parcels and packages, without paying anything whatever by way of taxation on their goods as property protected by the laws of the State in which they do business? Indeed, under plaintiff's view, the Constitution secures to the manufacturers of foreign goods imported into this country an immunity from taxation that is denied to manufacturers of domestic goods. An interpret? tion attended with such consequences ought not to be adopted if it can be avoided without doing violence to the words of the Constitution. Undoubtedly the payment of duties imposed by the United States on imports gives the importer the right to bring his goods into this country for sale, but he does not, simply by paying the duties, escape taxation upon such goods as property after they have reached their destination for use or trade, and the box, case, or bale containing them has been opened and the goods exposed to sale." "In our judgment," the court conclude," the 'original package' in the present ease 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 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."

Four justices dissented without, however, stating their reasons.

36 179 U. S. 343; 21 Sup. Ct. Rep. 132; 45 L. ed. 224.