United States v. Dewitt
ON certificate of division in opinion between the judges of the Circuit Court for the Eastern District of Michigan; the case being this:Section 29 of the act of March 2d, 1867,  declares,
'That no person shall mix for sale naphtha and illuminating oils, or shall knowingly sell or keep for sale, or offer for sale such mixture, or shall sell or offer for sale oil made from petroleum for illuminating purposes, inflammable at less temperature or fire-test than 110 degrees Fahrenheit; and any person so doing, shall be held to be guilty of a misdemeanor, and on conviction thereof by indictment or presentment in any court of the United States having competent jurisdiction, shall be punished by fine, &c., and imprisonment,' &c.
Under this section one Dewitt was indicted, the offence charged being the offering for sale, at Detroit, in Michigan, oil made of petroleum of the description specified. There was no allegation that the sale was in violation or evasion of any tax imposed on the property sold. It was alleged only that the sale was made contrary to law.
To this indictment there was a demurrer; and thereupon arose two questions, on which the judges were opposed in opinion.
(1.) Whether the facts charged in the indictment constituted any offence under any valid and constitutional law of the United States?
(2.) Whether the aforesaid section 29 of the act of March 2d, 1867, was a valid and constitutional law of the United States?
Mr. Field, Assistant Attorney-General, for the United States.
Instances of the exercise of police power over certain instruments or agencies of commerce, for the protection of life and property, are found in various acts of Congress. 
In the License Tax Cases,  it is held that the provisions of the internal revenue laws requiring the payment of a license tax, and prohibiting under penalties the exercise of certain kinds of business within a State without such tax having been paid, are only modes of enforcing the payment of excise taxes; that the payment of such special tax or license tax conveys to the licensee no authority to carry on the business licensed within a State which prohibits its being carried on; but that such provisions of law as incidental to the taxing power are not unconstitutional.
So far as appears, there was no law of the State of Michigan regulating the sale of oil made from petroleum at the time when the alleged offence was committed. There is no decision of this court that Congress cannot enact a law regulating trade in a State, in the absence of any regulation by the State, when the articles of the trade thus regulated may enter into commerce with other States or with foreign countries. It has been decided by this court that Congress may prohibit the exercise of a trade within a State under a penalty, in aid of, or for the purpose of collecting excise taxes levied upon the exercise of such trade.
One reason for the enactment may have been the protection of transportation companies between the States and between the United States and foreign countries from danger to property and life in transporting oil, mixed or sold in violation of this statute; and the protection of revenue officers in the examination, gauging, marking, and storing of such oil, and the proper distinction between and classification of different kinds of mineral oils made necessary for the convenient assessment and collection of excise taxes. If this was the reason, then the regulations are fairly incidental to the exercise of the power to regulate commerce or of the taxing power, and, as such, constitutional.
Mr. Wills, contra.
The CHIEF JUSTICE delivered the opinion of the court.
^1 14 Stat. at Large, 484.
^2 Acts of March 3, 1843, 5 Stat. at Large, 626; August 30, 1852, 10 Id. 61; May 5, 1864, 13 Id. 63; July 25, 1866, 14 Id. 228.
^3 5 Wallace, 462.