OLEOMARGARINE. 397 



Senator DOLLIVER. No; I think Mr. Justice Harlan made the same 

 proposition in the cigarette case. 



Mr. DAVIS. I am perfectly ready to admit that. 



Senator DOLLIVER. In other words, I want to get at how far the act 

 of 1886 concludes Congress upon the question of wholesomeness. 



Mr. DAVIS. Excuse me, sir; I do not say it does. I leave that alto- 

 gether. I care nothing about it. What I do say is this, that the power 

 that has the largest office in declaring the law of this land, namely, the 

 Supreme Court of the United States, has said that this is an article that 

 ought not to be touched by the police power because it is wholesome 

 and nutritious; that it ought not to be given over. 



Senator DOLLIVER. That was in the nature, then, of mere admonitory 

 advice to the legislatures of the States. 



Senator ALLEN. Is not that carrying the doctrine of judicial notice 

 to quite an extent? 



Mr. DAVIS. I can only answer you by saying, Senator, that they have 

 carried it to that extent; and until the Supreme Court changes its 

 view that stands as its opinion in regard to the wholesomeuess of this 

 article. 



Senator DOLLIVER. Does not the principle you have stated collide 

 with the proposition that the State is the supreme judge of the welfare 

 and convenience of its inhabitants as regards the exercising of its 

 police power? 



Mr. DAVIS. On the contrary, Justice Shiras said that in delivering 

 that main opinion he thought he was guarding that very proposition. 

 I am very glad of this interruption, because it gives me a chance to 

 refer to the matter twice. Inasmuch as the Supreme Court of the 

 United States has said that this is a wholesome and a nutritious arti- 

 cle of food, it will not lie in the mouth of the legislative branch of the 

 Government to throw the glove in the face of the Supreme Court and 

 say, " Here, we are going to pass laws subjecting to exclusion from the 

 States the very thing that you say is wholesome and nutritious or to 

 subject it to unreasonable regulations in the States;" and I submit 

 that this committee will not recommend to the Senate of the United 

 States that it put itself into the position of being rebuked by the 

 Supreme Court of the United States. 



Senator DOLLIVER. We want to avoid that, and yet we do not want 

 to be constrained by the opinions of the court on a question of law. 



Mr. DAVIS. I recognize the distinction between the legislature and 

 the judiciary, I take it, quite fully ; but in the subsequent part of this 

 memorandum I make the suggestion that when we are making law we 

 are entitled to take into account those considerations which we might 

 not take into account after a law has been placed upon the statute 

 books, for then we look at the letter of it. 



Senator ALLEN. I do not know that I am wholly prepared to accept 

 the doctrine that the Supreme Court can bind the legislative depart 

 ment of the Government in determining the desirability or the qualifi- 

 cation of any food product. In other words, is it not a legislative 

 question rather than a judicial one ? 



Mr. DAVIS. May 1 put a question to you in return, Yankee fashion, 

 if Senator Proctor will excuse me? 



Senator ALLEN. Yes, sir. 



Mr. DAVIS. What would you think of any legislature attempting to 

 regulate the size and shar^e of hats? I say that the legislature has no 

 more right to deal with this subject of oleomargarine, except within the 

 limits of the Coustnution that is, to inspect it and see that it is pure 



