Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1896-06-24
UNCONSTITUTIONAL.
The Cigarette Law" Held 10 Be of No
Force
BY Judge Campbell, in Decision
Made Yesterday in the Local
Cases Appealed From the Grim
iral Court The Small Boxes
Original Packages"

In the Circuit Court, Judge Campbell,
yesterday, in the cases Of State VS.. J. b..
Mckee and CharIesR. Goetze, indicted,
convicted and fined in the Criminal
Court for violation of the cigarette
law. a decision was handed down by
the Court declaring the law unconstf-
tutional and setting aside the verdict
and sentence Of the Court below as void
and of no effect The purport of the
decision is that an original package"
of cigarettes is the ordinary small box
of ten. as sold at retail. and such boxes
cannot he restricted or prevented OF sale
by the State law In the course of his
decision the Court said:
"a tax imposed on the assessed value
Of these cigarettes after they have be-
come mingled with and a part OF the
common property Within the State
would not be q regulation Of commerce
But tax on 4 license TO sell goods is
simply a special tax on the goods so
authorized to be sold. J conclude that
said section &c. as amended by the Leg.
islature of West Virginia, passed Febru-
airy 81. 1895, entitled an act to amend
and re-enact sections one. two, sixty
eight, eighty-four Of chapter 80, OF the
Code insofar as it applies to sales or
cigarettes in packages of ten imported
by the manufacturer of another State
and sold by his agent in West Virginia
is an original package, as we'll as the
sale by the resident importer in original
packages, is burden upon commerce
among the States. and in direct vio-
lation Of the commercial clause of the
Constitution Of the United States. Art
l. Sec. |: that said law Of West Virgin.
ia. insofar as it prohibits, without first
having paid a State license therefor.
the sale by the resident importer or
agent Of the nonresident manufacturer
and importer Of a slide pastebOard box
containing 10 paper wrapped cigar
cites (said box being duly stamped
with caution notice required by law.
which box was received from without
the State inc,osed in common with
other like boxes in a common pine ship
ping case) is null
Ihls court will not undertake to give
the various decisions OF the authorities
from which it deduces the conclusion
that packages that are essentially re-
tail packages. as these are, are ve5 pro
tected as being original statutory PACK
ages 1t cannot escape the logic Of
Congressional legislation and judicial
Interpretation thereof and if a pack
age Of 100 is statutory package. and
hence protected under the commercial
clause of the Constitution. a pa :l;aga CT
ten is likewise a statutory package and
likewise protected.
"The elaborate arguments o. Mr.. 5.
G. Smith, for the defendants. and the
Attorney General for the Stare. as 10
this act being in conflict with Sec %.
Art 6, of the Constitution of West Vfr-
ginia, 1t will not be necessary to discuss.
Therefore the judgment of the Grim
inal Court of Ohio county in these cases
are reversed and the findings set aside
and cases directed TO be dismissed"
Other orders made by Judge Campbell
were as follows:
Scott & McGraw VS.. Anna Fox; motion
for new trial oyerTuled.
David White, trustee. VS.. James and
w T. Embler; same order
House & Hermann VS.. Laura Farnes-
worth; same order.