him across a state line, an "original package," within the meaning of that phrase as used by the United States courts in the interstate commerce cases. The character of the package appears to have been submitted to the jury, who convicted the defendant. The defendant appealed to this court, and we said, through Paxson, chief justice: "Whether a box or a barrel of beer can be separated and sold in single bottles as original packages will be formally decided when the question squarely arises. The jury evidently regarded it as a trick and an evasion of our statute." The judgment was accordingly affirmed. The question which it was not necessary to decide in Commonwealth v. Zelt, 138 Pa. St. 615, is fairly involved in this case so far as oleomargarine is concerned. The case stated concedes that the package was sold by this defendant for consumption as "an article of food," but asserts that it was sold in the form in which the maker put it up at his factory. It is not said that it was an "original package" 215 in express words, nor that it was in the form usually adopted in the trade for purposes of transportation. It is reasonable to infer that when the defendant was admitting the sale, and setting up his justification for a violation of the law, he would do this as strongly as the facts would sustain him had he gone into the proof upon a trial before a jury.

What the case stated does tell us is that the defendant sold at his store in Philadelphia, to one John H. Berry, the keeper of a coffee-house at 606 Lombard street, Philadelphia, a package of oleomargarine weighing eighty pounds, made and stamped and branded in Rhode Island, for use as an article of food. This is almost identical with the defense in Commonwealth v. Zelt, 138 Pa. St. 615, which was that the bottles sold by the defendant were put up and shipped in another state, and sold in the same form in which they were received. This does not go far enough. The defendant in this case, as in Zelt's case, was, prima facie, a lawbreaker. It was incumbent on him to show his right to violate the police laws of the state in which he lived, or carried on his store, affirmatively and clearly. It is not enough to hint or suggest the existence of such a right. It must be set up, and his ability to escape the penalty of the broken law depends on the sufficiency of the justification. The fact alleged as a justification is that the package sold was "made, stamped and branded" in Rhode Island. To enable the defendant to stand on this statement

it is necessary for us to go with him to his legal conclusion, viz., Whatever package is put up at a factory outside the state is an "original package" within the meaning of the interstate commerce doctrine. This we distinctly refuse to do. The United States courts have not so held, as we understand the cases, and such a conclusion could not be sustained on principle, as the question presents itself to us. The consequences of such a holding are obvious. In this case the owners of the store in Philadelphia are the owners of the factory in another state. As merchants, they understand the needs of their retail trade, and the forms and sizes of rolls, tubs, or packages, that will best suit the wants of their customers. As manufacturers they can put their product in packages of such size and shape as shall meet their own needs as merchants. They have both ends of the traffic in their hands, and may do, as they undoubtedly are in the habit of doing, whatever their 216 profits as retailers require them to do as manufacturers. A jury would be justified in finding in such a case, as the jury found in Zelt's case, that the mode of putting up the package was not adapted to meet the requirements of actual interstate commerce, but the requirements of an unlawful intrastate retail trade. In this case the facts are found for us as by the parties. We are to determine their legal effect. The defendant is found to have made sales of oleomargarine as an article of food, contrary to the provisions of our statute.

It is also found that he made these sales for a nonresident employer. But the residence or business of the owner, standing alone, is wholly immaterial. Our law deals with the local trade, regardless of the nationality or residence of the trader. It is further found that the sales are made in packages put up by the trader at his factory, and sent to his store in this city for sale. This, as we have said, does not amount to an assertion that the sales are made in the "original packages" of commerce. If it shows anything upon the subject, it shows that they are not so made.

One who plants his feet squarely upon the police laws of his state, and defies its officers to suppress or to punish his unlawful trade, must show a clear legal right to take and maintain his position as a public enemy, or suffer the penalty of the broken law.

To hold otherwise would make it impossible for the people of any state to protect themselves from evils that by common

consent throughout the civilized world need to be restrained and removed by suitable legislation. It would also strike a blow of absolutely crushing weight at the existence of the police power in the several states, and render all attempts at its exercise ineffectual and useless.

The judgment of the court below is reversed, and judgment is now entered on the case stated in favor of the plaintiff for the sum of one hundred dollars, for the costs of suit. After judgment is properly entered, let the record be remitted for purposes of execution.

INTERSTATE COMMERCE-WHAT IS NOT.-States may, in the exercise of their police power, enact laws, which, though they affect commerce between the states, are not to be considered regulations of that commerce within the meaning of the constitution of the United States: Gulf etc. Ry. Co. v. Dwyer, 75 Tex. 572; 16 Am. St. Rep. 926; extended note to People v. Wemple, 27 Am. St. Rep. 564. A tax on an occupation carried on in a state, or on property therein, is valid unless it discriminates against articles brought from other states, or taxes the sale of such articles in the original package: State v. French, 109 N. C. 722; 26 Am. St. Rep. 590, and note; State v. Emert, 103 Mo. 241; 23 Am. St. Rep. 874; Rash v. Farley, 91 Ky. 344; 34 Am. St. Rep. 233. The negotiation of the sale of goods which are in other states, for the purpose of introducing them into the state in which the nego. tiation is made, is interstate commerce, and cannot be interfered with by the state in which the negotiation is made: City of Bloomington v. Bouland, 137 Ill. 534; 31 Am. St. Rep. 382; McClellan v. Pettigrew, 44 La. Ann. 356. For a full and complete discussion of the subject of interstate commerce, and the constitutionality of state regulations concerning it, see the monographic note to People v. Wemple, 27 Am. St. Rep. 547-568.

INTERSTATE COMMERCE-ORIGINAL PACKAGE-WHAT Is: See note to People v. Wemple, 27 Am. St. Rep. 553. A sale is not in the original packages when the purchaser retains the right to examine the goods in such packages and return them if not satisfactory, because under such circumstances the sale cannot be complete until the packages are broken: Wasserboehr v. Boulier, 84 Me. 165; 30 Am. St. Rep. 344.

HOOVER V. PENNSYLVANIA RAILROAD.
[156 PENNSYLVANIA STATE, 220.]

RAILROAD CORPORations-Discrimination, WHEN A QUESTION OF LAW.
If the facts of an alleged unlawful discrimination are conceded, or are
established by undisputed testimony, whether an unreasonable dis
crimination was made, such as is forbidden by statute, is a question of
law for the court.
RAILROAD CORPORATIONS.-A DISCRIMINATION MADE BETWEEN MANUFAO-
TURERS and dealers in coal in charges made for the transportation of
such coal is not forbidden by a statute prohibiting discrimination be-
tween persons in like conditions and under similar circumstances, if, by

reason of the coal so transported for the manufacturers, they produce larger amount of freight for the carrier, while such a result does not follow the coal carried for the dealers. RAILWAY CORPORATIONS-DISCRIMINATION.-UNDER A STATUTE PROHIBITING UNREASONABLE PREFERENCE OR ADVANTAGE a railway corpora tion may lawfully enter into a contract for the carriage of goods for a particular individual or corporation at a lower rate in respect to large quantities of goods and for longer distances than for one who sends them in small quantities or short distances. RAILWAY CORPORATIONS-DISCRIMINATION IN FAVOR OF A MANUFACTURING CORPORATION, and against retail dealers, in the price charged for shipping coal, though justified on the ground that such corporation is engaged in a business necessarily resulting in an increase of the business of the carrier, must be discontinued if such manufacturer engages in the business of selling coal, and thus becomes a competitor with other dealers in that commodity. RAILWAY CORPORATIONS.-THE DAMAGES TO A SHIPPER FOR UNJUST DISCRIMINATION between him and other shippers is not necessarily the difference between the prices charged him and them, under a statute giving him treble the amount of injury suffered. The railway corporation has a right to clear and definite proof as to what the actual damage was. RAILWAY CORPORATIONS.-A DISCRIMINATION IN FAVOR OF A MANUFACturing CorporATION, and against a dealer in coal arising from the railway corporation making an agreement in advance of the establishment of the manufacturing corporation to ship coal to it for a specific time and at specified rates, in order to induce such establishment, and increase the railroad's freight and earnings thereby, is not a discrimination between persons in like conditions and under similar circumstances. The railway corporation is not obliged to abandon its agreement, nor, while maintaining it, to carry freight for other shippers on the terms therein stipulated.

David W. Sellers, and W. and J. D. Dorris, for the appellant. George B. Orlady, for the appellee.

226 GREEN, J. The third section of the seventeenth article of the constitution of 1874 is in the following words:

"SEC. 3. All individuals, associations and corporations shall have equal right to have persons and property transported over railroads and canals, and no undue or unreasonable discrimination shall be made, in charges for, or in facilities for, transportation of freight or passengers, within the state, or coming from, or going to, any other state. Per sons and property transported over any railroad shall be delivered at any station, at charges not exceeding the charges for transportation of persons and property of the same class, in the same direction to any more distant station; but excursion and commutation tickets may be issued at special rates."

For the purpose of enforcing the foregoing provision of the constitution the legislature enacted the law of the 4th of June,

1883, Public Laws, 72. The first and second sections are as follows:

"SECTION 1. That any undue or unreasonable discrimination by any railroad company or other common carrier or any officer, superintendent, manager or agent thereof in charges for or in facilities for the transportation of freight within this state or coming from or going to any other state is hereby declared to be unlawful.

"SEC. 2. No railroad company or other common carrier engaged in the transportation of property shall charge, demand or receive from any person, company or corporation, for the transportation of property, or for any other service, a greater sum than it shall receive from any other person, company or 227 corporation for a like service from the same place upon like conditions and under similar circumstances; and all concessions in rates and drawbacks shall be allowed to all persons, companies or corporations alike, for such transportations and service, upon like conditions, under similar circumstances and during the same period of time. Nor shall any such railroad company or common carrier make any undue or unreasonable discrimination between individuals or between individuals and transportation companies, or the furnishing of facilities for transportation. Any violation of this provision shall make the offending company liable to the party injured for damages treble the amount of injury suffered."

The action in the present case was brought to recover treble damages under the second section of the Act of 1883, for an alleged unjust and unreasonable discrimination against the plaintiffs, in charges for freights on coal shipped from Snow Shoe to Bellefonte within this state, over lines of railroad owned or controlled by the defendant company. The period of time covered by the claim of the plaintiffs was from September, 1889, to April, 1891, and it was alleged that the plaintiffs were overcharged twenty cents per ton on ten thousand six hundred and seven tons carried over the defendant's road during the time named. Substantially the defense set up by the defendant was, that in the year 1881 certain citizens, of Bellefonte and vicinity, having in contemplation the erection. of a manufacturing plant at Bellefonte, for the manufacture of nails, waited upon the defendant company through Governor A. G. Curtin, who represented them, and endeavored to make, and did make, a special contract, that if the plant was erected the company should not charge them more than thirty