OLEOMAEGABINE. 395 



You will observe that in this Scott v. Donald case the Supreme 

 Court luid before it for consideration and construction the act upon 

 which the first section of this act is framed. It related to intoxicating 

 liquors. Justice Shiras emphatically protests that he was confining 

 himself in deciding the case, which had been cited as a precedent, to 

 the fact that it was intoxicating liquors that were dealt with, and he 

 said it was never intended to reach the manufacture and sale of arti 

 des the manufacture and sale of which were not injurious, and which 

 were therefore the legitimate subject of commerce. 



Now, in the Schollenberger case, which has already been cited to you 

 in 171 U. S., the Supreme Court distinctly declared oleomargarine to be 

 a healthful and nutritious article of food and a proper subject of com 

 merce, and in his concurring opinion in the case of Mugler v. Kansas, 

 123 U. S., 623, at page 676, Justice Field states this unanswerable 

 proposition : 



If one State can forbid the sale within its limits of an imported article, so may 

 all the States, each selecting a different article. There would then be little uni- 

 formity of regulations with respect to articles of foreign commerce carried into dif- 

 ferent States, and the same may also be said of regulations in respect to articles of 

 interstate commerce, and we know it was one of the objects of the formation of the 

 Federal Constitution to secure uniformity of commercial regulations against dis- 

 criminating State legislation. 



Mr. Justice Shiras, in this case I have already referred to, the case 

 of Vance against the Vaudercook Company, vigorously protests 

 against any suggestion that in delivering the opinion of the court in 

 the case of Scott v. Donald he was assenting to the validity of the act 

 of August 8, 1890, as to all articles of commerce. I read you his exact 

 words: 



1 am altogether unwilling to attribute to Congress an intention to abandon the 

 protection of interstate commerce in articles of food or drink, whether for personal 

 use or for sale, where similar articles are treated by a State as lawful subjects of 

 domestic commerce. If such were the intention of Congress in the act of August, 

 1890, I should be compelled to regard such legislation as invalid. The control and 

 regulation of foreign and interstate commerce are among the most important powers 

 possessed by the National Legislature, and, as has often been said by this court, 

 were among^the most potent causes which led to the establishment of the Constitu- 

 tion. The conceded purpose of protecting commerce from hostile action between 

 the States would be defeated if Congress could withdraw from the exercise of its 

 powers in such matters and turn them over to the legislatures of the States, but 

 there is no reason to suppose that Congress intended any such act of abnegation in 

 the present instance. Reasonable meaning and effect can be given to the act of 

 August 8, 1890, without giving it such a construction as would raise the serious 

 question of its constitutionality. 



I have not time to read the rest of this opinion, but Judge Shiras 

 goes into this act over again, and he points out how the act can be 

 sustained without any reference to its constitutionality, and he makes 

 his vigorous protest against being counted among those who at any 

 time would be supposed to believe this act constitutional if it had ref- 

 erence to anything else but intoxicating liquors. 



I commend this opinion to your most careful consideration. Of 

 course in ordinary I would not cite from a dissenting opinion; but, as 

 I say, this is a unique case. Here is a case in which the justice, deliv- 

 ering the opinion of the majority of the court, finds that opinion turned 

 to a meaning which he never entertained when delivering it, and in 

 justice to his intelligence and his own constitutional views he puts his 

 protest on record at the first opportunity. 



Senator DOLLIVER. Who would be the judge whether the article 

 interdicted was properly subject to the police powers of the State in 

 relation to public health ? 



