Mr. M. S. Gunn for plaintiff in error.[ Hammond Packing Co. v. State of Montana 233 U.S. 331 (1914) ]
[233 U.S. 331, 333] Mr. D. M. Kelly, Attorney General of Montana, and Mr. J. H. Alvord for defendant in error.
Mr. Justice Holmes delivered the opinion of the court:
This is an action to recover a license tax of 1 cent per pound sold for carrying on the business of selling oleomargarin. The answer, with some allegations not now material, admitted the facts and set up that 4064 of the Political Code of Montana, as amended, by which the tax was imposed, violates the 14th Amendment. That is the only question raised here, so that other incidental or preliminary matters need not be mentioned. Judgment was entered for the state on the pleadings and the judgment was affirmed by the supreme court of the state.
The argument for the plaintiff in error is that, the tax being pronounced or assumed by the state courts to be a tax for revenue, it is unjustifiable to put oleomargarin in a class by itself and to discriminate, for instance, between it and butted. But we see no obstacle to doing so in the Constitution of the United States. Apart from interference with commerce among the states, a state may restrict the manufacture of oleomargarin in a way in which it does not hamper that of butter. Capital City Dairy Co. v. Ohio, 183 U.S. 238, 245 , 246 S., 46 L. ed. 171, 175, 176, 22 Sup. Ct. Rep. 120. It even may forbid the manufacture altogether. Powell v. Pennsylvania, 127 U.S. 678 , 32 L. ed. 253, 8 Sup. Ct. Rep. 992, 1257. It may express and carry out its [233 U.S. 331, 334] policy as well in a revenue as in a police law. Quong Wing v. Kirkendall, 223 U.S. 59, 62 , 56 S. L. ed. 350, 351, 32 Sup. Ct. Rep. 192. The case really has been disposed of by previous decisions of this court. McCray v. United States, 195 U.S. 27, 62 , 63 S., 49 L. ed. 78, 98, 99, 24 Sup. Ct. Rep. 769, 1 Ann. Cas. 561.