The court say: "The case under consideration is really the first one presenting to this court distinctly the question whether, in holding that the State cannot prohibit the sale in the original package of an article brought from another State, the size of the package is material."After citing cases, in which, however, this question had been foreshadowed, the court continue: "The real question in this case is whether the size of the package in which the importation is actually made is to govern; or, the size of the package in which the bona fide transactions are carried on between the manufacturer and the wholesale dealer residing in different States. We hold to the latter view. The whole theory of the exemption of the original package from the operation of state laws is based upon the idea that the property is imported in the ordinary form in which, from time immemorial, foreign goods have been brought into the country. These have gone at once into the hands of the wholesale dealers, who have been in the habit of breaking the packages and distributing their contents among the several retail dealers throughout the State. It was with reference to this method of doing business that the doctrine of the exemption of the original package grew up. But taking the words 'original package' in their literal sense, a number of so-called original package manufactories have been started through the country, whose business it is to manufacture goods for the express purpose of sending their products into other States in minute packages, that may at once go into the hands of the retail dealers and consumers, and thus bid defiance to the laws of the State against their importation and sale. In all the cases which have heretofore arisen in this court the packages were of such size as to exclude the idea that they were to go directly into the hands of the consumer, or be used to evade the police regulations of the State with regard to the particular article. No doubt the fact that cigarettes are actually imported in a certain package is strong evidence that they are original packages within the meaning of the law; but this presumption attaches only when the importation is made in the usual manner prevalent among honest dealers, and in a bona fide package of a particular size. Without undertaking to determine what is the proper size of an original pack-age in each case, evidently the doctrine has no application where tHe manufacturer puts up the package with The express intent of evading the laws of another State, and is enabled to carry out his purpose by the facile agency of an express company and the connivance of his consignee. . . . Practically the only argument relied upon in support of the theory that these packages of ten cigarettes are original packages is derivable from the Revised Statutes, § 3392, which requires that manufacturers shall put up all cigarettes made by or for them, and sold or removed for consumption or use, in packages containing ten, twenty, fifty, or one hundred cigarettes each. This, however, is solely for the purpose of taxation - a precaution taken for the better enforcement of the internal revenue law, and to be read in ion with Section 3243, which provides that 'the payment of any tax imposed by the internal revenue laws for carrying on trade or business shall not be held to exempt any person from any penalty or punishment provided by the laws of any State for carrying on the same within such State, or in any manner to authorize the commencement or continuance of such trade or business contrary to the laws of such State.' "37

In this Austin case, it is clear that the court is not at all sure that from the very circumstances of the case the original package doctrine was applicable; and this became still clearer in Cook v. Marshall,38 decided in 1905, in which there was not even a basket, the small packages being shipped absolutely loose, and, presumably, shoveled into and out of the car. and delivered in that condition to their consignees. The court, however, held these small packages, even before opening, subject to the police and taxing powers of the State.

37 Four justices dissented.

38 196 U. S. 261 ; 25 Sup. Ct. Rep. 233: 49 L. ed. 471.

These cases sufficiently establish the fact that the original package doctrine is not so much a rule necessarily to be followed by the court for fixing precisely the time at which interstate commercial transactions end and the full state authority over the articles transported attaches, as it is a test which in many cases may conveniently be applied for determining this fact. And that when the nature of the case is such as to render this test inapplicable, the court will have to ascertain from other circumstances whether or not interstate commerce has ended.39