Original Package Doctrine
ORIGINAL PACKAGE DOCTRINE
in brown v. maryland (1827) the Supreme Court had before it a challenge to a state statute requiring all importers of goods from foreign countries to take out a $50 license. Instead of simply holding that such a license tax imposed only on importers from foreign countries violated the constitutional clause prohibiting states from laying "any imposts or duties on imports or exports," Chief Justice john marshall used the occasion to decide just when goods imported from abroad ceased being imports exempted from taxation by the states. He concluded that no tax could be imposed on the goods or their importer so long as the goods had not been sold and were held in the original packages in which they were imported. He also said the principles laid down "apply equally to importations from a sister state."
The original package doctrine had a long career as applied to goods imported from abroad. In Low v. Austin (1872) the Court held that a state could not collect its uniform property tax on cases of wine which the importer held in their original package on tax day. Much later, in Hooven Allison Co. v. Evatt (1945), the Court applied the doctrine to immunize bales of hemp from state property taxation, so long as the importer held them in their original package—the bales. Along the way, not surprisingly, the Court struggled in many cases with such problems as what constitutes the original package, and when it is broken.
Finally, in michelin tire corp. v. wages (1976) the Court upheld the imposition of a nondiscriminatory property tax upon tires imported from abroad and held in their original packages. It discussed at length the decision in Low v. Austin, overruled it, and appeared to be saying that only taxes discriminating against foreign commerce will be held invalid. Hence, it appears that the rules governing taxation of imports will now be similar to those applied to taxing such goods from other states, with the original package doctrine playing no part in the decisions.
Marshall's suggestion in Brown v. Maryland that the original package doctrine applied to state taxation of goods imported from other states was early rejected. In woodruff v. parham (1869) the Court upheld a state sales tax applied to an auctioneer who brought goods from other states and sold them in the taxing state in the original and unbroken packages. The importexport clause was determined to apply only to traffic with foreign nations, not to interstate traffic. The Court indicated its feeling that it would be grossly unfair if a resident of a state could escape from state taxes on all merchandise that he was able to import from another state and keep in its original package.
In 1890, however, the Court held that the original package doctrine applied to invalidate state regulations of goods imported from other states until the goods were sold or the package broken. The decision, leisy v. hardin (1890), invalidated a state prohibition law as applied to sales within the state by the importer of kegs and cases of beer. Federal statutes were then enacted permitting states to exclude alcohol even in original packages. But the original package doctrine persisted with reference to other state regulations for nearly half a century. The Court found reasons in many cases to avoid applying the doctrine but did not effectively repudiate it until 1935. In Baldwin v. G. A. F. Seelig (1935) the Court, after reviewing the cases applying the original package doctrine said:
"In brief, the test of the original package is not an ultimate principle.… It makes a convenient boundary and one sufficiently precise save in exceptional conditions. What is ultimate is the principle that one state in its dealing with another may not place itself in a position of economic isolation. Formulas and catchwords are subordinate to this overmastering requirement."
Today the original package doctrine is of interest only to historians.
Edward L. Barrett, Jr.
Powell, Thomas R. 1945 State Taxation of Imports: When Does an Import Cease to Be an Import? Harvard Law Review 58:858–876.