Transcript of Record — United States v. Lexington Mill & Elevator Co.
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SUPREME COURT OF THE UNITED STATES.
Oocroser TsRM, 1913.
No. 548.
THE UNITED STATES OF AMERICA, PETITIONER,
vs.
LEXINGTON MILL AND ELEVATOR COMPANY.
ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT
OF APPEALS FOR THE EIGHTH CIRCUIT.
INDEX
Original. Print.
Paints sccwecsuaees bse sosccnscuctepnbesedbuaviecccdoccsccceacase a a
Stipulation to omit parts of record in printing. .. 1 1
Transcript from the District Court of the United ‘States ‘for the Western
Peers 0 MRO. ooo sccc cnc de es cei ccdeccwcewccctesccccsccccccce 2 2
Citation on writ of error and acceptance of service.................. 2 2
Writ of error and clerk’s return....................22.02222-00000- 3 3
Citation on appeal and acknowledgment of service [xb dpewebaachign x6 + 4
hee ee a ee 5 5
Reeord entry of filing of libel, etc.................22..2222222000- 6 6
Ds Hikchaebeideehnahirs ocles het <be unbveceseun binders ceacvecivi 7 7
Order for issuance of process and monition, ete..................... & 8
Warrant and marshal’s return... ......... 22.2.2... 222.22 2e cece eee 9 9
Demand of claimant for jury trial... Sesseacssesdcerccesecccess 2
Record entry of filing of amended libel... deweshsinwViWers<cavenhenb ll ill
ED ianbainnss tno ee sit pitaldidess dn dariiuewesesecusenh ll wu
Answer to.amended libel.......... 2... 2.2.26. .c cen c eee se eeeeeeeee 6b 4b
PE iidntivcstbscwn tenes sep vabaeGSthe sce mbeunddeevevencecécesse 19 6«69
Jury impaneled;. trial June B, 1910. .....................-222.0--5. 20 «20
EEE My HEN coddagnindssausuducchGuarteychquecidcebiauccesses 20 2
ET Eh: MDa suiicknsecdscdctunardctapevegdssbibiesecccusnens 20 «2
ee a re Sia Saieaeh gna Sidwawaocosase bn 2 ©«=62l
iit cicinilinpniathtaater dotethid exh inieeaebtiiene, ec. 2B 2
Fee Cian wees cide ctcncuscticewveschodendescconcevecces 25
Evidence forthe Government......................-0202-2005 2 «6
Testimony of John E. Mitchell........................00 20— 28
B. O. Terty............... 3282
James H. Shepard............... ps 3s 38
Onerton. W. Dwckeatisuni..cnccscssccccesescce 122 122
Daniel M. Walgh.... 2... 2... .0.....cceeeeee 45 145
Dr. Andrew I. Winton. ............-...2005 49 149
Transcript from the District Court of x. guaetaiun ts of eiatesona
District of Missouri—Continued.
Testimony of Andrew 8. Mitchell
Dr. Andreq 8. -Gyestmesenpsie
Dr. Gustave Mann (recalled)
Samuel Thruston Ballard....................
Delbert R. Athey
Charles J. Wolaver
A. C. Leflang (recalled)...
Merton F. Dennison (recalled)...
John E. Mitchell (recalled)
Victor Albrecht
Arthur C. Comstock (recalled)......
Victor Albrecht (recalled)
oo
SRRESERSSBES
Proceedings upon motion to permit jury to inspect machines. . .
INDEX.
Transcript trom the District Court of the United States for the Western
gr ~~ eben nnclly rae
Addie Buck
Mrs. Charles Kidwell
GUUEEREUEEREEEEER Eas!
1500
} 1503
1518
1534
1557
1580
1582
1590
1628
1640
1666
1667
1686
1689
1710
17%
1791
1887
1866
1878
1920
wv INDEX.
eS eee
District of Missouri—Continued.
Bill of exceptions—Continued. Original, Print.
Evidence for the Government in rebuttal....-....++++-++-s+9++ 1944 1944
Testimony of Frank W. Liepsner.......------- svcovsesses 1044 1044
Ay B. ACTOO.. cc cece cece cen eneseneweseeeee 1949 1949
Recital that record contain all ofthe evidence. pe abev esate 1962 1962
Government's exhibits.......... 1962 1962
1. Certified copy of Letters Patent No. "750651 “to James N.
Alsop, May 10, 1904. ......s0sseseceeesseseeeeeeeens 1962 1962
2. Certified copy of Letters Patent No. 758883 to James N.
Aleop, May 3, 1904. ....+.+-ssssceensseseeceseserens 1975 1975
8. Certified copy of Latter Patent No, 768884 to James N.
Alsop, May 3, 1904. .......scsceecessceeseessesse ees 1985 1985
4. Order for shipment of flour to B. O. Terry, February 17,
WDIO. cc ccccccccccccccctesentannecencrsosccecssccecs 1997 1997
* &. Guaranty of Lexington Mill & Blevator Co. to B. 0.
Terry, February 17, 1910........++.++++---+++00e0*5* 1997 1997
7. Certified copy of Letters Patent No. 812764 to John E.
Mitchell, February 13, 1906..........¢..-+-+eeeeeees 1997 1997
Claimant’s exhibite..........ssseeeeeseeeeceeecreccessreeses 2005 2005
204. Statement showing reseite of examination of bleached
and unbleached flour. .......s+..ess+-seeeeeeeeeee 2005 2005
Motion to avect verde or iment ad exception tring
se ameeee deseo sPRRderoeevedabdbedeccacccesenee 2007 2007
‘gitate requests for instructions and exceptions to rulings
thereon. .......-sseeeseees peeseoovcrenes beeG Raab esssuseséme 2007 2007
Charge to the jury.... beeen 2012 2012
Statement with reference to furnishing jury with the charge ot
the court. ......---+---eeeeeee itak Gu@eRBrd eGiccdccesccsesse 2027 2027
Exceptions to charge to the jury err Sea ta ee seqwpeneees 2027 2027
Bee ot the Government for peremptory instructions peséesoue 2038 2038
WenGieth. ..cccococesecccccscscncocecctetscccsstencccccccocces 2038 2038
Judgment. ......----++e+sse00° Stbotsenshes Hishsodpaweeses'sy 2089 2039
Motion for new trial eaeeeeeeeee Bebesoeecetetor tt eeeeeeeeewreeere 2041 2041
Motion in arrest of judgment... ....-.-+-seseere--serecereeres 2084 2084
Order as to time for preventing motions for new tial and in arrest
of judgment. .........ce--eccneneccesteseeerecerereseeees 2084 2084
Assdevite tn eupport of motion for maw tzidla.uy--.---+- seceeee- 2085 2085
Broce 6. Eiiet, A. B. Holm, end Ewan’ © ® Scarritt.. nett 2085 2085
R. R. Jenkins pesees risguvens ‘ikipigsehssotbensseseaaeqeca 2087 2087
J. ©. Grmves......ccc sce ccen seen erscesccneerscccccescsers 2088 2088
Thomas T. Arnette........- ghsepnbes cpesinds dsesidneced es 2089 2089
Notice of writ of error and appeal... ... pidvdivebisecadaesiuene 2090 2090
Stipulation to destroy exhibits, ete.....-....---+--- 2091 2091
Order extending time for hearing on motion for new trial, etc. 2091 2001
Consent of libellant to modification of judgment and objections
to affidavits in support of motion for new trial......--------- 2002 2092
of libellant to settlement of bill of exceptions......- 2093 2093
Ruling on motion for new trial, ete.....-.-+-----+----++-+**"" 2005 2095
Certificate of.judge to bill of exceptions......-- Rivcdachaweast 2005 2095
Patition for writ of error........------++-+--s2-08+- Sibacgipaan ile 2096 2096
. Amsignment of errore.....-...-----++e+e2eeeeee8ee* scannucecvesene 2007 2097
| Trapt tom the Diet Our the United States for the Western
of Missouri—Continued.
Clerk’s certificate to
Appearance of counsel for plaintiff in error in cause No. 3533
ape sree tapon ing Leslie J. Lyons as counsel for defendant in error in
2 Appearancé of counsel for appellant in cause No. 3534.. eatin
a — of Mr. Leslie J. Lyons as counsel for appellee in cause No.
“roovabsapr rs Pierce Butler as counsel for appellee in cause No. 3534.
~ Motion to dismiss appeal in cause No. 3534
"Opinion of United States Circuit Court of Appeals
Judgment in cause No. 3533
2153
2153
g EEEEEEEGE
_~ ' mere CER
attitlaes FA tills a= =
8 Pleas and proceedings in the United States Circuit Court of
Appeals for the Eighth Circuit, at the December term, 1912,
of said court, before the Honorable Walter H. Sanborn, circuit
udge, and the Honorable William H. Munger and the Honorable
John A. Marshall, district judges.
Attest:
Seal JOHN D. JORDAN,
United States Circuit Clerk of the United States
Court of Appeals Circuit Court of Appeals
Eighth Circuit for the Eighth Circuit.
Be it remembered that heretofore, to wit, on the seventh day of
January, A. D. 1911, a transcript of record, pursuant to a writ of
error directed to the District Court of the United States for the
Western District of Missouri, was filed in the office of the clerk of
the United States Circuit Court of Appeals for the Eighth Circuit
in a certain cause wherein the Lexington Mill and Elevator Com-
pany, claimant, is plaintiff in error and The United States of Amer-
ica is defendant in error, which said cause was docketed in said
Circuit Court of Appeals as No. 3533, which also contains an addi-
tional transcript, pursuant to an appeal allowed by the District
Court of the United States for the Western District of Missouri in
- a certain cause, wherein the Lexington’ Mill and Elevator Company,
claimant, is appellant, and The United States of America is appellee,
which said cause was docketed in said Circuit Court of Appeals as
No. 3534, which said transcript, as printed pursuant to the stipula-
tion of the parties for the use of the court upon the hearing of said
causes, is in the words and figures following, to wit:
vir
oatipneer ees
*
at en tg nnn e phoned memengmepeaiein pet
a United States Circuit Court of Appeals for the Eighth
Circuit. °
Lexington Mill & Elevator Company, Claimant, Plaintiff in
Error,
No. 3533. vs.
United States of America, Defendant in Error,
And
Lexington Mill & Elevator Company, Claimant, Appellant,
4 No. 3534. vs.
"3 United States of America, Appellee.
Stipulation.
3 Whereas, the record proper in the above entitled causes con-
ae tains a copy of the motion for new trial; motion in arrest of
i judgment, notice of writ of error and appeal; order as to time
for presenting motions for new trial and in arrest of judg-
aa ment; affidavits in support of motion for new trial; stipula-
Nie tion to destroy perishable exhibits, etc.; order extending time
ee for hearing on motion for new trial, etc.; consent of libellant
ee to modification of judgment, etc.; and objections of libellant
to settlement of bill of exceptions.
And Whereas, each of the above mentioned matters ap-
b pears in full in the bill of exceptions, which is a part
of the transcript.
Therefore, it is now here stipulated and agreed for the pur-
pose of avoiding duplication, that the foregoing matters shall
be printed where they appear in the bill of exceptions, but
shall be omitted where they appear at pages sixty-two to one
hundred and twenty, inclusive, of the transcript.
E. L. SCARRITT,
Of counsel for plaintiff in error, and appellant.
LESLIE J. LYONS,
United States Attorney.
No. 3533. Lexington Mill and Elevator Co., Claimant, Plain-
tiff in Error, vs. United States of America. No. 3534. Lexing-
ton Mill and Elevator Co., Claimant, Appellant, vs. United
‘States of America. Stipulation to omit certain portion of tran-
script of record from printed record. Filed Jan. 18, 1911.
John D. Jordan, Clerk.
1—3533-3534
ad
2 LEXINGTON MILL AND ELEVATOR OO. VS, U. 8. OF A.
c Citation.
In the United States District Court for the Western
Division of the Western District of Missouri.
United States of America,
No. 285. vs.
Six Hundred and Twenty-five (625) Sacks of Flour, Lexing-
ton Mill & Elevator Company, Claimant.
United States of America—sct.
To the United States of America, Mr. Pierce Butler, Special
Counsel, and Mr. Leslie J. Lyons, District Attorney—
Greeting:
You, and each of you, are hereby cited and admonished to
be and appear in the United States Circuit Court of Appeals
for the Eighth Circuit at the City of St. Louis, Missouri, sixty
days from and after the day this citation bears date, pursuant
to a writ of error filed in the Clerk's office of the District
Court of the United States for the Western Division of the
Western District of Missouri, wherein the Lexington Mill and
Elevator Company, a corporation, claimant and defendant in
the above entitled cause, is plaintiff in error, and you are de-
fendants in error, to show cause, if any there be, why the judg-
ment and decree rendered against the said plaintiff in error
and its property, as in said writ of error mentioned, should
not be corrected, and why speedy justice should not be done
the parties in that behalf.
Witness the Honorable Smith McPherson, Judge of the Dis-
trict Court of the United States for the Western Divi-
sion of the Western District of Missouri, this 11th day
of November, in the year of Our Lord, 1910.
SMITH McPHERSON, Judge.
d Service of the within citation accepted, this November
llth, 1910.
PIERCE BUTLER,
LESLIE J. LYONS,
United States Attorney and Special Asst.
Atty. General.
Approved and allowed :
SmirH McPuHerson, Judge.
No. 285. United States of America vs. Six Hundred Twenty-
five Sacks of Flour, Lexington Mill & Elevator Co. Filed Nov.
11, 1910. Howard N. McCreary, Clerk. Scarritt, Scarritt, &
Jones, Attorneys at Law, Scarritt Bldg., Kansas City, Mo.
LEXINGTON MILL AND ELEVATOR ©O. VS. U. 8. OF A.
United States of America—sct.
The President of the United States of America to the
Honorable Judge of the District Court of the
United States for the Western Division of the
Western District of Missouri—Greeting:
Because, in the records and proceedings, as also in the ren-
dition of the judgment of a plea which is in the said District
Court before you, at the April Term, 1910, thereof, between
United States of America and Six hundred and twenty-five
(625) sacks of flour and the Lexington Mill and Elevator Com-
pany (a Corporation), Claimant and defendant, a manifest
error hath happened, to the great damage of the said flour and
to the said Claimant and defendant Lexington Mill and Bie.
vator Company, as by its complaint appears.
We being willing that error, if any hath been, should be
duly corrected, and full and speedy justice done to the par-
ties aforesaid in this behalf, do command you, if judgment
be therein given, that then, under your seal, distinctly and
openly, you send the record and proceedings aforesaid, with
all things concerning the same, to the United States Circuit
Court of Appeals, for the Eighth Circuit, together with this:
writ, so that you have the said record and proceedings afore-
said at the City of St. Louis, Missouri, and filed in the office
of the Clerk of the United States Circuit Court of Appeals,
for the Eighth Circuit, on or before the tenth day of January,
1911, to the end that the record and proceedings aforesaid be-
ing inspected, the United States Circuit Court of Appeals may
cause further to be done therein to correct that error, what of
right, and according to the laws and customs of the United
States, should be done,
Witness, The Honorable John M. Harlan, Senior Associate
Justice of the Supreme Court of the United States, and
the seal of the Circuit Court of the Western Division of
the Western District of Missouri.
Issued at office in Kansas City, this 11th
Seal day of November, in the year of
U. 8. Circuit Court our Lord one thousand nine hun-
Western Division dred and ten.
Western District
Missouri. ADELAIDE UTTER,
Clerk of the Circuit Court of the
United States for the Western
Division of the Western District
of Missouri.
Allowed by SmrrH McPHERson, Judge.
ohs
ry
+ Y
4 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
United States of America,
Western Division of the Western
District of Missouri—sct.
In obedience to the command of the within Writ, I herewith
transmit to the United States Cireuit Court of Appeals, a
duly certified transcript of the record and proceedings in the
within entitled case, and with all things concerning the same,
except exhibits heretofore destroyed by stipulation and order
of court.
‘In Witness Whereof, I hereto subscribe my name and affix
the seal of said District Court of the United States for
the Western Division of the Western District of Mis-
souri.
Issued at office in Kansas City, this 6th
Seal day of January, A. D. 1911.
U. 8. District Court
Western Division HOWARD N. McCREARY,
Western District Clerk.
Missouri. Re eee peer D.C.
United States District Court, Western Distriet of Missouri,
Western Division. United States of America, vs. Six hundred
twenty five sacks of flour, Lexington Mill & Elevator Com-
pany, Claimant and defendant. Writ of Error. Filed Novem-
ber 11th, 1910. Howard N. McCreary, Clerk.
f Citation.
In the United States District Court for the Western
Division of the Western District of Missouri.
United States of America,
No, 285. vs.
Six Hundred and Twenty-five (625) Sacks of Flou:.
Lexington Mill & Elevator Company, Claimant.
United States of America,—Sct.
The President of the United States to United States of America,
and to Mr. Pierce Butler, Special Counsel, and Mr.
Leslie J. Lyons, United States District Attorney,—
Greeting: |
You and each of you are hereby cited and admonished to be
3 appear at the United States Circuit Court of Appeals for
Righth Cireuit at the City of St. Louis, Missouri, sixty days
from and after the day this citation bears date, pursuant to an
_ order allowing an appeal duly entered, filed and of record in
_ the Clerk's office of the District Court of the United States -
3 pe ,
LEXINGTON MILL AND ELEVATOR OO. YS. U.S. OF A. 5
for the Western Division of the Western District of
wherein Lexington Mill & Elevator Company is appellant, and
you are appellee, to show cause, if any there be, why the de-
cree and judgment rendered against the said appellant as in
said appeal and in the said order allowing said appeal mention-
ed should not be corrected and why speedy justice should
‘be done to the parties in that behalf. ;
Witness the Honorable Judge of the District Court of the
United States for the Western Division of the Western
District of Missouri this 17th day of December in the
year of our Lord, 1910.
ARBA 8S. VAN VALKENBURGH, Judge.
SMITH McPHERSON, Judge.
We hereby acknowledge due service of the within cita-
tion this 17th day of December, 1910.
PIERCE BUTLER and
LESLIE J. LYONS,
Attorneys for Libellant and Appellee.
No. 285. United States of America, vs, Six Hundred and
Twenty-Five Sacks of Flour. Lexington Mill & Elevator Co.
Claimant. Citation. Filed Dec. 17, 1910, Howard N. McCreery,
Clerk. Scarritt, Scarritt & Jones, Attorneys at law.
h In the United States District Court for the Western
Division of the Western District of Missouri.
United States of America,
No. 285. vs,
Six Hundred and Twenty-five (625) Sacks of Flour.
_ Lexington Mill & Elevator Company, Claimant.
Order Allowing Appeal.
On this 17th day of December, 1910, upon the petition for
/-,~ appeal of claimant and appellant, Lexington Mill & Elevator
~ Company, and application therefor, with assignment of errors
filed therewith, on this day, praying for the allowance of an ap-
in the above entitled cause te the United States Circuit
‘ourt of Appeals for the Eighth Circuit, all parties appearing
hy their respective attorneys, and it appearing to the court that
said appellant has filed on November 11, 1910, its assignment
of errors as required by the rules of the Circuit Court of Appeals
~ for = — Circuit, and has duly served and filed notice of
PR pped rein,
6 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8S. OF A.
It is ordered that the said appeal be and the same is allowed
as prayed for, and it is further ordered that a supersedeas bond
on said appeal be and the same is hereby fixed in the sum of
$2500.00; which said bond is now filed, signed by said appellant
Lexington Mill & Elevator Company as principal, and America
Surety Company of New York, a surety company, as surety;
which bond and surety are now approved by the court and said
bond is ordered to be filed and made a part of the record in this
cause, and it is further ordered that the said bond shall operate
and be a supersedeas bond and shall stay all further proceedings
_ with reference to the judgment and decree in this cause
i during the pendency of this appeal in the United States
Circuit Court of Appeals for the Eighth Judicial Cir-
cuit.
And it is ordered that a writ of citation issue in accordance
with the allowance of this appeal, which said citation is now and
here issued. Thereupon the said claimant and defendant and
appellant, Lexington Mill & Elevator Company, files and duly
serves in open court the libellant and its attorneys with the
citation herein allowed and ordered, which citation is duly ac-
cepted by said libellant and its attorneys.
Dated 17th, 1910.
SMITH McPHERSON,
ARBA 8S. VAN VALKENBURGH, Judges.
rl United States of America—sct.
Be It Remembered, That heretofore, to-wit, at the reg-
ular November Term of the United States District Court for
the Western Division of the Western District of Missouri, and
on the 9th day of April, 1910, the following entry appears of
record, to-wit:
United States
No. 285. vs.
Six Hundred Twenty-five Sacks of Flour.
This day comes A. 8. Van Valkenburgh, United States Dis-
trict Attorney, who prosecutes on behalf of the United States,
and by leave of Court files a libel herein, whereupon a war-
rant of seizure is issued and delivered to the Marshal, return-
able on the 30th day of April, 1910, at ten o’clock in the fore-
noon.
Said Libel, filed April 9th, 1910, is in words and figures as
follows, to-wit:
2 In the District Court of the United States for the West-
ern Division of the Western District of Missouri.
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
United States of America
vs.
Six Hundred and Twenty-five (625) Sacks of Flour.
The United States of America, by Arba S. Van Valkenburgh,
United States Attorney for the Western District of Missouri,
who prosecutes for and on behalf of the United States of
America, hereby gives the court to understand and be informed
that there are now in the possession of and held by B. O.
Terry, of Castle, Sullivan County, Missouri, certain original
unbroken packages and sacks each containing forty-eight (48)
pounds more or less of flour; that said flour so contained in
said packages and sacks is adulterated within the meaning of
the Act approved June 30, 1906, entitled “An Act for prevent-
ing the manufacture, sale, or transportation of adulterated or
misbranded or poisonous or deleterious foods, drugs, medi-
cines, and liquors, and for regulating traffic therein, and for
other purposes.”
And the United States Attorney aforesaid, further gives the
court to understand and be informed that said packages and -
sacks of flour consist of six hundred and twenty-five (625)
sacks or packages, each containing forty-eight (48) pounds
more or less of flour, branded and labeled as follows, to-wit:
L 48 Pounds Lexington Cream X X X X X Fancy Patent.
This Flour is Made of Finest Quality Hard Wheat. Lexing-
ton Cream. Lexington, Nebraska, Lexington Mill and Elevator
Company”, and were received by the said B. O. Terry, as afore-
said, on or about the 7th day of April, A. D. 1910, from
3 the Lexington Mill and Elevator Company, a corpora-
tion duly organized and existing under and by virtue of
law, and engaged in the manufacture and sale of flour and
other food products at Lexington, in the State of Nebraska;
that the same were sold and shipped to the said B. O. Terry,
of Castle, Sullivan County, Missouri, by the said Lexington
Mill and Elevator Company, a corporation as aforesaid, of
Lexington, Nebraska, on or about the Ist day of April, A. D.
1910, and were sent by common carriers engaged in interstate
commerce, to-wit, from Lexington, in the state of Nebraska, to
Council Bluffs, in the State of Iowa, over the Union Pacific
Railway Company, and by it delivered to the Chicago, Bur-
lington & Quincy Railroad Company at Council Bluffs, Iowa,
and by it carried to Osborn, in the State of Missouri, and
there delivered to the Quincy, Omaha and Kansas City Rail-
road Company, from which point said Quincy, Omaha and
Kansas City Railroad Company transported said shipment to
Castle, Sullivan County, Missouri, and there delivered the
same to the said B. O. Terry; that all of said railroads are
8 LEXINGTON MILL AND ELEVATOR ©O. VS. U. 8. OF A.
common carrier corporations engaged in interstate commerce
between the States of Nebraska, Iowa and Missouri, and among
the other states and territories of the United States.
The United States Atterney aforesaid, further gives the
court to understand and be informed that the flour so con-
tained in said packages and sacks os aforesaid was and is
adulterated in the following manner, ‘o-wit:
(a) That said flour was and is mixed and packed with an-
other: substance, to-wit, peroxide of nitrogen, so as to reduce
and lower and injuriously affect its quality and strength.
wide (b) That said flour was and is mixed, colored and stained
with another substance, to-wit, peroxide of nitrogen in a man-
ner whereby damage and inferiority was and is concealed.
(c) That said flour contains an added poisonous substance
and added deleterious ingredient, to-wit, peroxide of nitrogen,
which rendered and renders said flour injurious to
4 health.
, (d) That said flour was subjected to a treatment where-
by said peroxide of nitrogen was mixed and packed in and
added to said flour in such a manner as to render said flour
deleterious to health; that the said adulteration of said flour
in. the manner and by the method aforesaid was designed and
intended to defraud and deceive, as aforesaid, and constitutes
an adulteration of the contents of said packages and sacks, as
aforesaid, in violation of said law.’
Wherefore, it is prayed that process issue and that the United
States Marshal of this district be commanded by order of this
court to seize the packages and sacks of flour aforesaid for
confiscation, destruction or sale, and the same hold to be dealt
with as this Honorable Court may order and determine.
A. 8. VAN VALKENBURGH,
United States Attorney.
5 On the said 9th day of April, 1910, the following order
appears of record, to-wit:
In the District Court of the United States for the Western
Division of the Western District of Missouri.
United States of America
vs.
Six Hundred and Twenty-five (625) Sacks of Flour.
Order.
Now on this day comes A. S. Van Valkenburgh, United
States Attorney, for the Western District of Missouri, and
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 9
presents to the Court an information and complaint of the
United States against Six Hundred and Twenty-five (625)
Sacks of Flour, property therein described, and now in the
possession cf B. O. Terry, of Castle, Sullivan County, Mis-
souri, praying that the said goods may be seized for confisca-
tion, destruetion or sale and may be held to be dealt with as
this eourt may order and determine, and that the usual process
and monition of the court in that behalf be made,—
And the Court having considered said complaint and ap-
plication and being fully advised in the premises, doth order
that so much of the said goods as may still be in the original
packages charged to have been adulterated shall be seized
by the Marshal of this district and that the usual process and
monition of the court be issued by the Clerk of this court for
the Western Division of the Western District of Missouri, and
that the Marshal of this court shall publish a citation giving
notice generally unto all persons having or pretending to
have any right, title or interest in said property to appear
before this court in the city of Kansas City, Jackson County,
Missouri, in said Division and District, on the 30th day
6 of April, next, if it be a court day, or else on the next
court day thereafter, at ten o’clock in the forenoon of
said day, then and there to make known their claims and al-
legations in said matter, and that the said Marshal publish
said citation for at least fifteen (15) days, exclusive of Sun-
days, prier to said return day in the Kansas City Journal, a
daily newspaper published and printed in Kansas (City, Mis-
souri, aforesaid, and within the Division and Distriet in which
said property is situated.
INO. F. PHILIPS, Judge.
Kansas City, Missouri, April 9, 1910.
The Warrant issued by the Clerk of said Court, April
9th, 1910, is in words and figures as follows, to-wit:
In the District Court of the United States for the Western
Division of the Western District of Missouri.
United States of America
vs.
Six Hundred and Twenty-five (625) Sacks of Flour.
The President of the United States of America to the Marshal
of the Western District of Missouri—Greeting:
Whereas, an information has been filed in the District Court
of the United States for the Western Division of the Western
District of Missouri, on the 9th day of April, A. D. 1910, by
A. 8. Van Valkenburgh, United States Attorney for the West-
_ ern District of Missouri, on behalf of the United States of
10 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
America, against certain property, goods, wares, and merchan-
dise, to-wit: Six Hundred and Twenty-five (625) Sacks of
Flour, each containing 48 pounds, more or less, for the reasons
and causes in said information mentioned, and praying the
‘usual process and monition of the said court in that behalf
to be made, and that all persons interested in the said property
may be cited in general and special to answer the premises,
and all proceedings being had that said property may for the
causes in said information mentioned be condemned, destroyed,
and dealt with according to law,—
You are, therefore, hereby commanded to attach the said
y and to detain the same in your custody until the fur-
ther order of the court respecting the same and to give due
notice to all persons claiming the same, or owning or having
anything to say why the same should not be confiscated, de-
stroyed or sold pursuant to the prayer of said information,
that they be and appear before the said court to be held in
and for the Western Division of the Western District of Mis-
souri, 25th day of April, A. D. 1910, at ten o’clock in the fore-
noon of the same day, if the same shall be a day of jurisdic-
tion, otherwise on the next day of jurisdiction there-
8 after, then and there to interpose a claim for the same,
and to make all allegations in that behalf, and what you
shall have done in the premises do you then and there make
return thereof, together with this writ.
Witness the Honorable John F. Philips, Judge of said Court,
and the seal thereof hereto affixed, at Kansas City, in
said District, on the 9th day of April, A. D. 1910.
(Seal) HOWARD N. McCREARY, Clerk.
On the 12th day of April, 1910, the said Warrant was re-
turned by the Marshal with his return thereon, in words and
figures as follows, to-wit :
I executed the within warrant in Green Castle, Sullivan
County, Missouri, on April 11, 1910, by seizing 597 sacks of
flour as within described and storing them subject to the fur-
ther order of the Court.
All done in the Western Division of the Western District
of Missouri.
E. R. DURHAM,
U. 8. Marshal.
By H. C. Miller, Deputy.
Marshal’s fees.
B WVNED gow ck hac cc des 2.00
Expenses .............. 10.30
LEXINGTON MILL AND ELEVATOR CO. V8. U. 8. OF A. ll
16 On the 18th day of May, 1910, the Demand of Claimant
for Jury is filed and is in words and figures as follows,
to-wit :
In the District Court of the United States, for the Western
Division of the Western District of the State of Mis-
souri.
United States of America, Libellant,
vs.
Six Hundred Twenty-five Sacks of Flour.
Demand for Jury.
To the Honorable, the Judge of the District Court of the United
States, for the Western District of the State of Mis-
souri:
Comes now the Lexington Mill & Elevator Company, claim-
ant and answering defendant herein, and files this its demand
for a jury to try the issues of fact in the above entitled cause.
LEXINGTON MILL & ELEVATOR
COMPANY,
By Ed. P. Smith, Bruce 8. Elliott, Its Attorneys. —
17 On the 19th day of May, 1910, the following entry ap-
pears of record, to-wit:
United States
/ No, 285. vs.
Six Hundred and Twenty-five Sacks of Flour.
This day comes A. 8. Van Valkenburgh, United States -At-
torney, and by leave of Court files an amended libel in this
_ cause.
Said Amended Libel, filed May 19th, 1910, is in words and
figures as follows, to-wit:
In the District Court of the United States for the Western
Division of the Western District of Missouri. .
United States of America,
vs.
Six Hundred and Twenty-five (625) Sacks of Flour.
Amended Libel.
The United States of America, by Arba 8. Van Valkenburgh,
United States Attorney for the Western District of Missouri,
who prosecutes for and on behalf of the United States of
12 LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A.
America, hereby gives the court to understand and be informed
that there are now in the possession of and held by B. 0.
Terry, of Castle, Sullivan County, Missouri, certain original
unbroken packages and sacks each containing forty-eight (48)
pounds more or less of flour; that said flour so contained in
said packages and sacks is adulterated within the meaning of
the Act approved June 30, 1906, entitled “An Act for preventing
the manufacture, sale, or transportation of adulterated or
misbranded or poisonous or deleterious foods, drugs, medi-
cines, and liquors, and for regulating traffic therein, and for
other purposes.”
18 And the United States Attorney aforesaid, further gives
the court to understand and be informed that said pack-
ages and sacks of flour consist of six hundred and twenty-five
(625) sacks or packages, each containing forty-eight (48)
pounds more or less of flour, branded and labeled as follows,
te-wit: “L 48 Pounds Lexington Cream X X X X X Fancy
Patent. This Flour is Made of First Quality Hard Wheat.
Lexington Cream. Lexington, Nebraska, Lexington Mill and
Elevator Company”, and were received by the said B. O. Terry,
as aforesaid, on or about the 7th day of April, A. D. 1910,
from the Lexington Mill and Elevator Company, a corporation
duly organized and existing under and by virtue of law, and
engaged in the manufacture and sale of flour and other food
products at Lexington, in the State of Nebraska; that the
same were sold and shipped to the said B. O. Terry, of Castle,
Sullivan County, Missouri, by the said Lexington Mill and
Elevator Company, a corporation as aforesaid, of Lexington,
Nebraska, on or about the Ist day of April, A. D. 1910, and
were sent by common carriers engaged in interstate commerce,
to-wit, from Lexington, in the State of Nebraska, to Council
Bluffs, in the State of Iowa, over the Union Pacifie Railway
Company, and by it delivered to the Chicago, Burlington &
Railroad Company at Council Bluffs, Iowa, and by it
carried to Osborn, in the State of Missouri, and there delivered
to the Quincy, Omaha, and Kansas City Railroad Com-
pany, from which point said Quincy, Omaha and Kansas
City Railroad Company transported said shipment to Castle,
Sullivan County, Missouri, and there delivered the same to the
said B. O. Terry; that all of said railroads are common
carrier corporations engaged in interstate commerce between
the States of Nebraska, Iowa, and Missouri, and among the
other states and territories of the United States.
The United States Attorney aforesaid further gives the Court
to understand and be informed that the flour so contained in
said packages and sacks as aforesaid was treated by a process
, for the bleaching of flour known as the Alsop Process, which
Fa
a
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 13
said process consists of the generation by means of
19 electricity of nitrogen peroxide gas, which is mixed with
atmospheric air, and the mixture brought into .contact
with the flour; and your libelant charges that by this treat-
ment the flour contained in said six hundred and twenty-five
(625) sacks, and each and every part thereof, has been caused
to be adulterated within the meaning of the Act of Congress,
in the following manner and particulars, to-wit:
(a) In that a substance known as nitrites or nitrite re-
acting material has been mixed and packed with the said
flour so as to reduce and lower and injuriously affect its quality
and strength, in these respects, among others, namely: That
the capacity of the said flour to change and improve, as it would
have changed and improved if aged and conditioned by natural
processes, has been destroyed; that by direct action the elas-
ticity of the gluten has been lessened and impaired, so as to
injuriously affect the bread-making qualities of the flour; that
by direct action other ingredients of the said flour have been in-
jurously affected, so as to reduce, lower and impair its bread-
making qualities.
(b) In that by the treatment as aforesaid the said flour has
been mixed, colored and stained in a manner whereby damage .
and inferiority is concealed in these respects, among others,
namely: That the inferiority of freshness or newness [as] in-
feriority which is present in flour made from new wheat or in
flour freshly milled from wheat that is either old or new, and an
inferiority which manifests itself, among other things, in in-
feriorities of color, of elasticity of gluten, and of the quality
of other ingredients which affect its value for bread-making
purposes, is thereby concealed; and that said flour has been
caused to simulate the appearance of flour made from wheat
which has been properly aged and conditioned by natural pro-
cesses and of flour which has been properly aged and condition-
ed by natural processes, after being milled from wheat that is
either old or new; and this treatment by the Alsop Process, as
aforesaid, has concealed the inferiority of said flour, and has
given it the appearance of a better grade of flour than it
20 ~—si really is.
And further, that the flour contained in said six hundred
and twenty-five (625) sacks, and treated by the Alsop Process
as aforesaid, was when milled, and now is, of a grade of flour.
inferior. to a patent flour, and was when milled, and now is,
of a grade of flour inferior to the grade known as finest quality
of hard wheat; and that the said flour, inferior in these re-
spects, has been caused to have the appearance of a patent
- flour and of flour made from the finest quality of hard wheat,
14 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8S. OF A.
and thereby the inferiority contained in said flour was and is
concealed, and in other respects also the inferiority of said flour
was and is concealed.
(c) In that by the treatment as aforesaid the said flour has
been caused to contain added poisonous or other added deleteri-
ous ingredients, to-wit, nitrites or nitrite re-acting material,
nitrogen peroxide, nitrous acid, nitric acid and other poison-
ous and deleterious substances, which may render said flour
injurious to the health.
The United States Attorney aforesaid further gives the Court
to understand and be informed that the flour contained in the
aforesaid packages and sacks was and is misbranded within
the meaning and intent of the act of Congress of June 30, 1906,
in the following manner and particulars, to-wit:
(a) First, in this, that the packages and sacks containing
such flour were labeled as aforesaid, “L, 48 Pounds, Lexington
Cream X X X X X Fancy Patent. This Flour is made of first
quality hard wheat. Lexington Cream. Lexington, Nebraska,
Lexington Mill and Elevator Company”; that in truth and in
fact a patent flour is and is known and recognized to be the
best grade of flour, and consists only of that portion of the
flour content of the wheat known as the middlings; and your
libelant charges that the flour, contained in said sacks is not a
patent flour, but is a grade and quality of flour inferior to a
patent ficur, being a mixture of the middlings, together with a
commercially inferior grade of flour, and a flour which
21 before bleaching was darker in color than a patent
flour, and inferior in grade, quality and strength to a
patent flour, and that this mixture shipped into Missouri and
labeled as aforesaid was sold under the distinctive name of
another article than itself, and was labeled as aforesaid so as to
deceive and mislead the purchaser, in the respect that it pur-
ported to be a patent flour, whereas in truth and in fact it was
not a patent flour.
(b) Second, in this, that the sacks containing said flour
were labeled as aforesaid, “L. 48 Pounds. Lexington Cream
X X X X X Fancy Patent. This flour is made of first quality
hard wheat. Lexington Cream. Lexington, Nebraska, Lex-
ington Mill and Elevator Company,” whereas in truth and in
fact the said flour was not made of finest quality of hard wheat,
but was milled, in whole or in part, from a grade or grades of
soft wheat, and that the flour thus labeled as aforesaid, “This
Flour is made of first quality hard wheat” was sold under the
distinctive name of another article than itself; that it pur-
ported to be made from the first quality of hard wheat, where-
LEXINGTON M1LL AND ELEVATOR CO. VS. U. 8. OF A. 15
as in truth and in fact it was made in whole or in part of soft
wheat, and, therefore, was sold under the distinctive name of
another article than itself, and misbranded within the meaning
and intent of the Act of Congress.
Wherefore, it is prayed that process issue and that the United
States Marshal of this district be commanded by order of this
court to seize the packages and sacks of flour aforesaid for con-
fiseation, destruction or sale, and the same hold to be dealt with
as this Honorable Court may order and determine,
A. 8. VAN VALKENBURGH,
United States Attorney.
~ * an . . *
24 On the said 31st day of May, 1910, the Answer of The
Lexington Mill & Elevator Company to the Amended
Libel, is filed and is in words and figures as follows, to-wit:
In the District Court of the United States for the Western
Division of the Western District of Missouri.
United States of America, Libellant,
vs.
625 Sacks of Floup.
Answer of The Lexington Mill & Elevator Company to the
Amended Libel.
To the Honorable, the Judge of the District Court of the
United States for the Western Division of the Western
District of Missouri:
Comes now the Lexington Mill & Elevator Company, a cor-
poration organized under the laws of the State of Nebraska,
and a citizen and resident of the State of Nebraska, and shows
to the Court:
1. That it is interested in the property seized under the
writ issued in this cause, to-wit, six hundred and twenty-five
sacks of flour, more or less, which interest is more fully set
forth hereafter, and it prays that it may be made a defendant
in this cause and permitted to defend against the seizure, for-
feiture and condemnation of said merchandise.
2. This claimant shows to the court that it manufactured
said flour at its mill in the City of Lexington, State of Ne-
braska, and sold the same to B. O. Terry of Castle, in the
State of Missouri, and caused said flour to be shipped from the
City of Lexington, in the State of Nebraska to the said B. O.
Terry at Castle in the State of Missouri; that said flour was
~ sold by said Lexington Mill & Elevator Company under a guar-
16 LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A.
antee that the same was not adulterated within the meaning of
the Act of Congress known as the Food and Drug Act of June
30, 1906; that this defendant did not receive pay for said
flour, and after the seizure of said flour by the process
25 issued in this cause this defendant was required to
and did furnish to the said B. O. Terry other flour in
lieu of that seized in this cause, by reason whereof the flour
seized in this cause has become and is the flour of this answer-
ing defendant; and if said flour is by the order and judgment
of this court seized, forfeited and condemned this answering
defendant will suffer loss to the extent of the price and value
of said flour, to-wit, the sum of Seven Hundred and Fifty
Dollars.
3. This answering defendant admits that said flour was
manufactured and shipped from the State of Nebraska into
the State of Missouri by the lines of railroad set forth and de-
scribed in the amended libel herein.
4. This answering defendant admits that said sacks and
each of them were branded and labeled as described in the
amended libel, except that instead of being branded “This
flour is made of finest. quality hard wheat,” the said sacks
were branded, “This flour is ‘made from first quality hard
wheat.”
5. This answering defendant admits that the flour so con-
tained in said packages and sacks were treated by a process
known as the Alsop Process, but this defendant denies that
said sacks or the contents thereof, or any portion thereof, has
been cansed to be adulterated within the meaning of the act
of Congress as alleged in said amended libel. This defendant
denies that a substance known as nitrites or nitrite reacting
material has been mixed or packed with said flour, or any
part thereof, so as to reduce or lower or injuriously affect
its quality or strength in any respect whatsoever. This de-
fendant denies that by said treatment said flour has been
mixed, colored or stained in any manner whereby damage er
inferiority is concealed in any respect whatsoever. It denies
that said flour, or any part thereof, has been so treated, or
has been treated in any manner whereby the grade or quality
of said flour, or any part thereof, has been concealed, and
denies that by such treatment the said flour, or any part there-
of, has been given an appearance of a better grade of
26 flour than it really is.
6. This defendant denies that the said flour, or any part
thereof, is inferior to a patent flour, and denies that the same,
or any part thereof, was when milled, or now is, of a grade
f flour inferior to a grade of flour known as the finest quality
S
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 17
of hard wheat, and denies that the quality of said flour, or of
the wheat from which it was made has been in any manner
concealed. This defendant denies that by the treatment of
said flour, the same, or any portion thereof, has been caused
to contain any added poisonous or other deleterious ingredients,
which may render said flour injurious to health.
7. This defendant admits that said sacks containing said
flour were labeled as alleged in said libel, except that the
same was labeled as being made from first quality hard wheat
instead of being labeled made of the finest quality of hard
wheat. This defendant denies that the so-called patent flour
is known or recognized to be a grade of flour consisting only
of that portion of the content of the wheat known as mid-
dlings, and says it is not true that the flour contained in
said sacks is not a patent flour, or that it is of a grade or
quality inferior to a patent flour, or that it is a mixture of
middlings together with a commercially inferior grade of flour,
or of a flour which was at any time of a color darker than a
patent flour or inferior in grade, or quality or strength to
a patent flour, and this defendant denies that the same has
been mixed and shipped into the State of Missouri and sold
under a distinctive name of another article than it is, or that
the same was labeled in any manner so ds to deceive or mis-
lead the purchaser, or that it did deceive or mislead the pur-
chaser in any respect whatsoever.
8 This defendant admits that said sacks were labeled
showing that the said flour was made of the first quality of
hard wheat, and this defendant alleges that the same was
made from the first quality of hard wheat, and denies that the
same was made in whole or in part from a grade or grades of
soft wheat, and that it was sold under a name of any ar-
27 ticle different from what it really was, or that the same
was in any respect misbranded.
10. Further answering said amended libel this defendant
admits that said flour has been treated by the Alsop process,
and in this connection alleges that the process by which it has
thus been treated consists of generating in rapid su ion a
flaming electric discharge in a current of air in proximity to
such electric discharge, and in conducting the air as modified
by such discharge into the presence of the flour as it is being
continuously passed through a revolving reel or agitator, but
this defendant denies that the flour thus treated is in any way
adulterated or that by said process any peisonous or other del-
eterious ingredient is in any manner added thereto, or im-
parted thereto, or that the flour thus treated is in any way
2—3533-3534
4"
18 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
injurious to health or contains any added deleterious in-
gredient or that the same is in any manner adulterated or that
by such process any damage or inferiorty in said flour is in any
manner concealed or that the quality or strength of said flour
is in any manner affected, reduced or lowered.
11. Further answering said complaint and libel this de-
fendant and claimant states that it is informed and believes,
and therefore avers, that this court is without right or
authority of law and the officers of this court are without right
or authority of law vo seize the flour so manufactured and
shipped into interstate commerce by this claimant, for the
reason that the Food and Drug Act of June 30th, 1906, under
which pretended authority is exercised and under which the
seizure of the flour in controversy herein was made, is wholly
invalid, unconstitutional and void, in that it deprives this
answering claimant of its property without due process of law,
and is in violation of Artical 1, Section 8, Paragraph 3 of the
Constitution of the United States giving to Congress the right
to regulate commerce among the several states, and is in viola-
tion of Article 10 of the Amendments to the Constitition of the
United States which provides that—
28 “Powers not delegated to the United States by the
Constitution nor prohibited by it to the states, are re
served to the state, respectively, or to the people.”
And thig answering claimant further shows to the Court
that it is informed and believes, and therefore so avers, that
the said Act known as the Food and Drug Act of June 30th,
1906, is wholly illegal and void, for the reason that said Act is
uncertain and indefinite, particularly in this, that said law
does not define any standard of grade, quality or purity, and
in this regard delegates legislative functions to the courts
clothed with jurisdiction of cases of a civil or criminal nature
brought under said law in violation of Article 1 of the Con-
stitution of the United States providing that—
“All legislative powers herein granted shall be vested in
a congress of the United States, which shall consist of a senate
and house of representatives.”
Wherefore, having fully answered, this claimant asks that
said complaint and libel be dismissed, that said flour seized
under the writ issued by this court be released and restored,
LEXINGTON MILL AND ELEVATOR CO. V8. U. 8. OF A. 19
and for such further and different relief as may be just in the
and that this defendant and claimant may recover
its costs herein expended.
LEXINGTON MILL & ELEVATOR COMPANY,
By E. L. Scarritt,
BRUCE 8. ELLIOTT,
ED. P. SMITH,
Its Attorneys.
State of Missouri,
County of Jackson—ss.
E. M. F. Leflang, being first duly sworn, deposes and says
that he is the president of the Lexington Mill & Elevator Com-
pany, a corporation; that he has heard read the foregoing
answer and the statements therein contained are true as he
verily believes.
E. M. F. LEFLANG.
Subscribed in my presence and sworn to before me this 31st
day of May, 1910.
HOWARD N. McCREARY,
U, 8. District Clerk.
29 On the ist day of June, 1910, the Reply of the United
States to the Answer of Claimant to the Amended Libel
was filed and is in words and figures as follows, to-wit:
In the District Court of the United States for the Western
Division of the Western District of Missouri.
United States of America,
No. 285. vs.
Six Hundred and Twenty-five (625) Sacks of Flour.
Reply.
Now on this Ist day of June, 1910, comes Pierce Butler,
Esq., Special Assistant Attorney General, and A. 8. Van
Valkenburgh, United States Attorney for the Western Dis-
trict of Missouri, on behalf of the United States of America,
and for their reply to answer filed by the Lexington Mill and
Elevator Company, claimant in the above entitled cause, state
that they deny each and every allegation of new matter con-
tained in said answer.
PIERCE BUTLER,
Special Assistant Attorney General.
A. 8. VAN VALKENBURGH,
United States Attorney.
30 On the Ist day of June, 1910, the following entry ap-
pears of record, to-wit:
20 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
United States
No. 285. vs.
Six Hundred and Twenty-five Sacks of Flour.
This day comes A. 8. Van Valkenburgh, United States Dis-
trict Attorney and Pierce Butler on behalf of the United
States, also comes the claimant the Lexington Mill and Ele-
vator Company by its counsel E. P. Smith, Bruce Elliott, A.
E. Helm and E. L. Scarritt, and this case coming on for trial
it is ordered that a jury come, to-wit: W. F. Tuttle, John
M. Ellis, Fielding Hudson, Henry C. Crow, John W. Thoma-
son, Wm. R. Smith, Geo. W. Ragan, J. C. Graves, M. G. Har-
man, R. R. Jenkins, Thos. T. Arnett and H. C. Kellerman,
twelve good and lawful men who are duly empaneled and
sworn to well and truly try the issues joined, statements are
made by counsel, and the hour of adjournment having arrived
further proceedings are postponed until tomorrow merning.
= = * * * * *
57 On the 2nd day of July, 1910, the following entry ap-
pears of record, to-wit :
United States
No. 285. vs.
Six Hundred and Twenty-five Sacks of Flour.
This day again come the parties to this cause, Leslie J.
Lyons, United States District Attorney, and Pierce Butler, on
behalf of the United States, also comes the Lexington Mill and
Elevator Company, claimant herein, by its counsel Bruce El-
liott, A. E. Helm and E. L. Scarritt, thereupon the matters
pertaining to the courts charge and the law governing the
issues in this case were argued and submitted to the court, and
by the court taken under advisement.
58 On the 5th day of July, 1910, the following entry ap-
pears of record, to-wit: .
United States
No. 285. vs.
Six Hundred and Twenty-five Sacks of Flour.
This day again come the parties to this cause, Leslie J.
Lyons, United States District Attorney, and Pierce Butler on
behalf of the United States, also comes the Lexington Mill
and Elevator Company, claimant herein, by its counsel Bruce
Elliott, A. E. Helm, and E. L. Scarritt, and the jury sworn to
try this case as on Friday last, arguments are made by coun-
sel, thereupon the claimant presented in writing seventeen
written requests to charge the jury, which requests were by
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 21
the court overruled, to which the claimant at the time in open °
court excepts, and after hearing the charge of the court the
jury retire to consider what verdict they shall render in the
premises, and not having reached a verdict at the hour of ad-
journment, it is ordered that the marshal furnish said jury
with supper at the expense of the government, and that fur-
ther consideration of this case be postponed until tomorrow
morning.
59 On the 6th day of July, 1910, the following entry of the
verdicts and judgment in this case appear of record, to-
wit:
United States
No. 285. vs.
Six Hundred and Twenty-five Sacks of Flour.
This day again come the parties to this cause, Leslie J.
Lyons, United States Attorney, and Pierce Butler, Esq., Spe-
cial Assistant Attorney General, on behalf of the United
States, also comes the Lexington Mill and Elevator Company,
claimant herein by its counsel, Bruce 8. Elliott, Judge A, E.
Helm, and Judge E. L. Scarritt, and the jury sworn to try
this case as on yesterday, and thereupon the jury came into
court under the charge of the sworn bailiff and returned two -
verdicts signed by their foreman, which said verdicts are in
words and figures following, to-wit:
“In the District Court of the United States, Western District
of Missouri, Western Division.
United States of America
; No. 285. vs. ;
Six Hundred Twenty-five (625) Sacks of Flour, Lexington
Mill and Elevator Company, Claimant.
Verdict.
We, the jury, find that the flour seized in this case is
adulterated.
July 6, 1910.
JOHN W. THOMASON,
Foreman.
60 In the District Court of the United States, Western Dis-
. trict of Missouri, Western Division.
United States of America
No. 285. vs.
Six Hundred Twenty-five (625) Sacks of Flour, Lexington
Mill and Elevator Company, Claimant.
22 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
Verdict.
We, the jury, find that the flour seized in this case is
misbranded.
July 6, 1910.
JOHN W. THOMASON,
Foreman.”
and announced that the same are the verdicts of the jury.
Thereupon, the Court orders said two verdicts and each
of them filed and recorded on the records of this court, which
- ig accordingly done, to which the said claimant, the Lexington
Mill and Elevator Company at the time in open court objects
and excepts. ¢
Thereupon, on motion of the United States Attorney it is
ordered, considered and adjudged that the Lexington Mill and
Elevator Company pay the taxable costs herein made to be
taxed by the Clerk, for which a writ of execution will issue,
to which ruling, order and judgment the said Claimant at
the time in open court excepts.
It is further considered, Ordered and adjudged that the
flour seized herein and now in the possession of the United
States Marshal for this District, be and the same is hereby con-
demned and confiscated to the United States of America; as
food adulterated and misbranded within the meaning of
the Act of Congress approved June 30, 1906, and that all of
the same be destroyed by the United States Marshal.
61 From the foregoing as to the confiscation and destruc-
tion is excepted the flour heretofore released by order
of the court, to each, all and every of the foregoing orders,
directions, judgment, and findings, the Claimant, the Lexing-
ton Mill and Elevator Company in open court excepts.
And said Claimant, the Lexington Mill and Elevator Com-
pany is given twenty (20) days from this date to file a motion
for a new trial, or a motion to modify any or all of the fore-
going, and a motion to vacate or set aside any or all of the
foregoing, and by the word motion is meant to include any
exceptions or objections to any of the foregoing, or all of the
same; and also the right and privileges is hereby given to said
Claimant to serve and file Bill of Exceptions or notice of ap
peal from any or all of said orders within the time allowed
by statute and the rules of Court. No process or writ shall
issue until the motion for new trial is ruled on, if filed with-
in said 20 days.
SMITH McPHERSON, Judge.
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 23
121 On the 11th day of November, 1910, the following order
was filed and entered of record, to-wit:
In the District Court of the United States for the Western
Division of the Western District of Missouri.
United States of America
WE
625 Sacks of Flour. Lexington Mill & Elevator Company,
Claimant.
Order.
On this 11th day of November, 1910, in open court, come the
parties in the above entitled cause, by their respective attorneys,
and the motion for a new trial herein heretofore filed by claim-
ant, Lexington Mill & Elevator Company, is presented to the
Court.
Thereupon the libellant, in writing filed herein, which writ-
ing is made a part of the bill of exceptions and records in this
case, consented and prayed the Court that the judgment here-
tofore entered herein be modified as in said writing stated;
that the claimant objected to libellant filing its said writing, or
any writing, and objected to any modification of the judgment —
whatsoever, either as prayed by the libellant or otherwise; and
the Court, in view of such objection on the part of the claim-
ant, declines to modify the same as prayed by the libellant;
and by said writing the libellant objected to the receiving in
evidence the affidavits filed herein, namely, that certain affi-
davit of Bruce 8. Elliott, A. E. Helm and E. L. Scarritt, that
certain affidavit of juror Henry C. Crow, that certain affidavit
of juror R. R. Jenkins, that certain affidavit of juror J. C.
Graves, that certain affidavit of juror James T. Arnett, all
bearing date of July 22, 1910, and filed herein, upon the ground
that the said affidavits are and each of them is incompe-
122 __ tent, irrelevant and immaterial, and inadmissible to im-
peach, modify, explain or define the verdicts and findings
of the jury herein, and upon the ground and for the reason that
the charge of the Court to the jury, herein, was wholly in writ-
ing, and was read in its entirety by the Court to the jury in
open court and in the presence of counsel, after the Court
had handed to counsels of the parties respectively, a complete
copy of such charge, and for the reason that said written charge
was immediately upon the completion of the reading thereof
by the Court to the jury handed to the jury by the Court or
under its direction, in open court, openly and in the presence
of counsel for the parties, respectively ; and for the reason that
no objection thereto was made by counsel on either side, or
__ by any other person; and libellant moved to strike all of the
24 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
said affidavits from the files; and the Court, having considered
the same, sustained the objections of said libellant, to each of
the said affidavits, and ordered that the same be stricken from
the files herein; to which action of the Court in striking said
affidavits from the files the claimant objected and excepted at
the time, and still excepts, which exceptions are allowed.
And the Court having considered the claimant’s motion for
a new trial, and being duly advised thereon, doth overrule and
deny said motion; to which-action and ruling of the Court in
overruling and denying said motion for a new trial, the claimant,
at-the time, duly excepted and still excepts, which exceptions
~ are allowed.
Thereupon the motion in arrest of judgment heretofore filed
herein by said claimant, being submitted to the Court, the Court
having considered the same, and being duly advised thereon,
doth overrule and deny said motion; to which action and rul-
ing of the court in overruling and denying said motion in ar-
rest of judgment the claimant duly excepted at the time
123 and still excepts, which exceptions are allowed.
Thereupon said claimant presents to the Court its bill
of exceptions herein, preserving its exceptions to all actions,
rulings, decisions, judgments and decrees of the Court had at
and during the trial and progress of this cause.
Thereupon the libellant, in writing, presented to the Court
certain objections, amendments and modifications to the bill
of exceptions proposed by the claimant, which writing was on
this day filed in court. The libellant withdrew the objections
stated in the paragraph numbered (1) of said writing, which
writing is included in the bill of exceptions herein. After due
consideration, and the Court being fully advised thereon, the
Court doth approve, sign, seal and allow the Bill of Exceptions,
and hereby orders that the same be and is duly filed herein as a
part of the record in this cause.
Thereupon the claimant herein files and presents to the
Court its application for a writ of error herein to the United
States Circuit Court of Appeals for the Eighth Judicial Cir-
cuit, and there is filed with said application for writ of error an
assignment of errors, and also a bond in the sum of $2,500.00,
signed by claimant, Lexington Mill & Elevator Company, a8
principal, and the Bankers Surety Company of Cleveland, Ohio,
a corporation, as surety. Therefore, it is ordered that said as-
signment of errors be and the same is hereby ordered filed as a
part of the record herein, and that a writ of error is allowed in
the above entitled cause to the United States Cireuit Court of
Appeals for the Eighth Judicial Circuit as prayed for in the
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 25
said application and that the bond presented herewith in the
sum of $2,500.00, signed by the claimant, Lexington Mill &
Elevator Company, as principal, and the Bankers Surety Com-
pany, as surety, is approved and ordered to be filed and made
a part of the record in this cause; and it is further order-
124 ed _ that the said bond shall operate and be a supersedeas
bond and shall stay all further proceedings with refer-
ence to the judgment and decree in this cause during the pend-
ency of this writ of error in the United States Circuit Court
of Appeals for the Eighth Judicial Circuit, and that a writ
of citation issue in accordance with the allowance of this writ
of error, which said citation is now and here issued.
Thereupon the said claimant files and duly serves in open
court the libellant and its attorneys with a citation herein al-
lowed and ordered, which citation is duly accepted by said
libellant and its attorneys.
SMITH McPHERSON, Judge.
125 The Bill of Exceptions, filed November 11, 1910, is in
words and figures as follows, to-wit:
Volume 1.
In the United States District Court for the Western Division
of the Western District of Missouri.
United States of America,
No. 285. vs.
Six Hundred and Twenty-five (625) sacks of Flour. Lexington
Mill and Elevator Company, Claimant.
Bill of Exceptions.
The above entitled cause on to be heard before Hon. Smith
McPherson and a jury at Kansas City, Missouri, on Tuesday,
May 31, 1910, at ten o’clock A. M. Mr. Pierce Butler, Special
Counsel, and Mr. Leslie J. Lyons, Assistant District Attorney,
appeared on behalf of the United States of America; and
Messrs. Ed. P. Smith, Bruce 8. Elliott, A. E. Helm and
E. L. Scarritt appeared on behalf of the claimant and defend-
ant, and the property seized.
_ Whereupon on said day the jury was impanelled and on the
following day the opening statements of the respective counsel
were heard, and thereafter, on Thursday, June 2, 1910, at ten
o'clock A. M. of said day, the taking of testimony in the said
arg was begun, and the following proceedings were
d.
96 LEXINGTON MILL AND ELEVATOR ©O. VS. U. 8. OF A. |
126 Thursday June 2nd, 1910.
At ten o’clock A. M. of the above day and date, Court
met, pursuant to adjournment as hereinbefore set out.
The Court: Now, gentlemen, we have impaneled the jury,
and we have heard the opening statements of what each side
contends, and we are ready to put in this evidence. I do not
desire to hurry either side, but I feel, now, we ought to get
along. I am inclined to think that, after a day or two, when
you gentlemen have -had your consultations and little con-
ferences with your witnesses that we ought to have somewhat
longer court hours. I will not do that for a day or two until
you have had the requisite conferences with your witnesses,
especially your experts, but, after a day or two, I think we will
have to have longer Court hours.
Counsel for the Government may proceed.
Mr. Lyons, you furnished me a few days ago a copy of
this statute of June 30th, 1906, but it has been mislaid, or
something and if you have an extra copy I will be glad to have
it before me.
Mr. Butler: I think we have one.
(Document referred to produced, and handed to the Court)
The Court: You rely on paragraphs one, four and five of
what sections?
Mr. Butler: Seven.
The Court: All right.
Mr. Butler: Government Exhibit “A” being a certified copy
of letters patent to James N. Alsop, No. 759651 granted May
10th, 1904, for an improvement on process of bleaching flour,
is offered in evidence.
Mr. Scarritt: How do you designate that Mr. Butler?
Mr. Butler: Government Exhibit A, Judge Scarritt.
127. The Court: I would suggest—I have found it most con-
venient, where there is likely to be a good many exhibits,
to have the exhibits of the plaintiff numbered commencing with
No. 1 and the defendant’s exhibits commencing with No. 101,
or 201, and then you will always know by the mere mentioning
of an exhibit whose exhibit it is. I have found that in my
practice. We will call this Exhibit 1 Mr. Reporter, and when
we commence with the defendant we will say 201. Then we
always know, immediately whose exhibit it is. When the de-
fendant offers the first one that will be 201, and on up, and the
government commencing with 1 on up.
Mr. Smith: The defendant objects to Exhibit 1 as incom-—
petent, irrelevant, immaterial, and in no way tending to prove
any of the issues in this case, and the defendant separately
and specially objects to that part of said Exhibit No. 1 being
the printed part, commencing with the words, “United States
Patent Office. J. N. Alsop of Owensboro, Kentucky”, and
down to and including the remainder of the printed portion,
as being incompetent, irrelevant and immaterial, and being
statements made by a person not a party to the case, not made
in the presence of this defendant, and is, in no wise, binding
on this defendant.
The Court: Now, what is that printed matter, Mr. Smith?
Mr. Smith: Well, it is his description and his claim.
oS The Court: Well, the claims on which the patent was is-
sued?
Mr. Smith: I don’t know.
The Court: I assume so.
Mr. Smith: I assume so. I don’t know it, but I assume
so, and I further specifically. object to that part of the printed
portion, commencing on what is marked page 4, commencing
with the words, “Having thus fully described my invention
what I claim as new is,” and from this down to and including
the words, “J. N. Alsop,” for the reason that it is in-
128 competent, irrelevant and immaterial being declarations
made by a party not a party to this suit, not being made
in the presence of the defendant, The Lexington Mill and
- Elevator Company, and in no wise binding upon it.
The Court: The objection is overruled.
Claimant excepts.
The Court: Now, just a moment. I am not familiar with
these terms. Let’s see. You are a proctor,—not a lawyer, 1
believe?
Mr. Smith: Well, I should hate to have it told in Court
Iam not a lawyer. Maybe I am not. I hate to have you make
it public.
The Court: Well, I mean all of you. I don’t mean you
_ individually. I mean Mr. Butler likewise.
Mr. Smith: Yes, I know what your Honor means.
The Court: Now, what is this party called,—the claimant?
Mr. Smith: Yes, the claimant,
LEXINGTON MILL AND ELEVATOR CO. VS. U.8. OF A. 27”
28 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
Mr. Lyons: In the answer he asks to be made a defendant.
The Court: Well, “Claimant” I suppose is all right, and
“Claimant excepts.”
Mr. Smith: Yes.
The Court: I never tried an Admiralty case in my life.
Mr. Butler: Neither did I.
The Court: I see that. ’
Mr. Butler: Government’s Exhibit 2 is offered in evidence.
- It is a certified copy of letters patent of James N. Alsop,
- numbered 758883, granted May 3rd 1904, for improvements in
methods of generating gaseous medium from air.
Mr. Smith: The whole Exhibit is objected to as incom-
petent, irrelevant and immaterial, and in no wise binding upon
the defendants in this case, nor tending to prove any of the
issues in this case, and especially we object to that part’ of
it commencing with the words, “United States Patent Office,”
thence down to and including the words “J. N. Alsop”,
129 for the feason it is incompetent, irrelevant and im-
material, not tending to prove any issue in this case, and
being statements made by a party not a party to the record,
not being made in the presence of the claimant, and in no wise
binding upon it; and we specifically object to that part of it
commencing on page 4 of the printed portion with the words,
“Having thus fully described my invention, what I claim as
new, and desire to secure by letters patent of the United States
is,” and from thence down to and including the words,
“J, N. Alsop,” as being incompetent, irrelevant and immaterial,
statements made by one not a party to the record, and not
made in the presence of the defendant, and in no wise binding
wpon it.
The Court: The objection overruled, and the claimants ex-
cept.
Mr. Butler: Government’s Exhibit 3 being a certified copy
of Letters Patent to James N. Alsop, No. 758854, granted May
$rd, 1904, for improvements in apparatus for generating gas-
eous medium from air, is offered in evidence.
Mr. Smith: The whole exhibit is objected to as incompetent,
irrelevant and immaterial, not tending to prove any issue
in this cause, and specifically object to that portion of it com-
~ mencing with the words “United States Patent Office”, being
~ the! printed portion down to and including the words, “J. N.
Alsop,” for the reason that that portion is incompetent, ir-
. relevant and immaterial, not tending to prove any issue in
EE REE Ie
*
*
At)
et,
tee
a)
be
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8, OF 4. 29
this cause, and we specifically object to that part commencing
with the word, on page 3 of the printed part, “Having thus
fully described my invention, what I claim as new, and desire
to secure by letters patent of the United States is,” and from
thence down to and including the signature, “James N. Al-
sop,” as incompetent, irrelevant and immaterial, being state-
ments made by persons not a party to the record, not being
made in the presence of this claimant, and in no wise binding
on it.
130 The Court: Objection overruled, and claimant excepts.
Mr. Butler: Mr. John Mitchell will be sworn.
John E. Mitchell, called as a witness on behalf of the gov-
ernment, being first duly sworn, testified as follows:
Direct Examination
By Mr. Butler:
Q. Mr. Mitchell, what is your business?
A. Manufacturing business.
Q. What line?
A. Manufacture electrical and milling machinery especial-
ly ES
Q. —aAre you alone in the business, or are you connected
with a company?
A. Tam associated with two companies.
Q. What two companies?
A. The Mitchell-Parks Manufacturing Co. and the Alsop
Process Company,
Q. The Alsop Process Company? A. Yes, sir.
Q. Are you an officer of that company?
A. Iam general manager of that company ; yes, sir.
Q. Are you an officer of the company,—president or sec-
retary? A. No, I am not.
Q. You are in charge of its affairs? A. I am, yes, sir.
Q. And its principal managing officer or agent?
A. Iam the manager; yes, sir.
Q. That company is associated in the defense of this suit,
and employing counsel herein, is it?
Mr. Smith: I object to that as immaterial, Pardon me.
1 don’t know what the rules of this court require; whether it
requires counsel to stand when they examine witnesses and
rise when they make objections?
The Court: I think so.
Mr. Smith: I will conform to that rule.
131 Mr. Butler: I am not in your way, am I?
Mr. Smith: Oh, no.
30 LEXINGTON MILL AND ELEVATOR CO. VS, U. 8. OF A.
Mr. Butler: This is a very convenient place.
Mr. Smith: Yes, sir, that is all right.
The Court: He may answer.
A. We have an attorney here, yes, sir. Mr. Elliott repre-
sents us.
By Mr. Butler:
Q. Mr. Bruce 8. Elliott, who is one of the attorneys of rec-
ord is employed by your company to defend this case?
A. Not altogether.
* Q. ‘Associated with the other gentlemen here?
A.\we pay half of his—
Q. I don’t care for that.
A. —the millers pay the other half.
Q. I hope that he is paid enough, but I merely wanted to
show your connection,—the Alsop Process Company’s connec-
tion with the case. Does the Alsop Process Company own the
bleacher that bleached the flour that was seized?
A. Yes, sir, it does.
Q. That, I believe is located in the mill of the Wellington
—is it?
Mr. Lyons: Lexington.
Mr, Butler (Continuing): Lexington Mill and Elevator Com-
pany at Lexington, Nebraska.
A. I should say that the Alsop Process owns the patents
covering that. Of course, they bought the rights, and it now
belongs to them.
How many bleachers does your company Own at that
mill? A. We don’t own any at that mill.
Q. I misunderstood you.
A. Well, I explained, Mr. Butler, that we owned the rights
under the patent, and we sold those rights to this mill that
you refer to; and the machinery and the rights, so far as that
particular mill was concerned, of course, now belongs to them.
Q. Does the Alsop Process Company receive a royalty
132 upon flour bleached in that mill. A. It does not.
Q. By those machines? A. It does not.
Mr. Butler: That is all.
The Court: Any cross-examination?
Mr. Smith: I think not.
Mr. Elliott: I want to ask Mr. Mitchell one question. Does
the Alsop Company receive a royalty from the use of any of
the machines from any mill?
.
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 31
Mr. Butler: Objected to as irrelevant and immaterial, and
not cross-examination.
The Court: He may answer.
It does not.
. Butler: Did it ever?
Yes, soon after—
(Interrupting) Well, I will just ask you another ques-
When did it cease to collect royalties?
I couldn’t state exactly.
About when?
It has been perhaps three years ago, and there were
only three or four mills that did that, and that was done at
their request, but that was discontinued when they purchased
the rights the same as the other mills.
Q. What do you mean by “purchased the rights”? Do yon
mean to distinguish between the ordinary sale of an article
that is protected by patent, as, for instance, the plows in
farm machinery are, or used to be patented, and they were
sold to the farmers, and became the property of tie farmers
to use. Now, do—what do you mean by selling the rights?
A. Well, I mean this: That we had patents on a process
for treating flour with electricity, and we sold rights under
that process, to use it in the various mills, and the company
originally sold those rights before it was in the business of
manufacturing the machinery.
Q. The machinery would be manufactured by somebody
else? A. In the beginning.
Q. So that, with respect to this particular—how many
bleachers are in the mill, of the Alsop Process type.
A. How many bleachers?
133 Q. Yea
A. You mean how many machines do they have for
practicing the process?
Q. Yes. Do you know?
A. I don’t know. I know they must have one, and they
may have two. Most mills have an extra machine—an emer-
gency machine.
Q. Iam not talking about any other mill.
A. Iam speaking about that one.
Q. They have one, and maybe two.
A. Yes, a good many do.
Q. The rate of pay, the compensation, or money received by
the Alsop Company from this particular claimant,—is that
measured in any way hy the extent of use of the process?
A. Absolutely not, now. The price in the beginning was
based on their output, of course.
32 LEXINGTON MILL AND ELEVATOR CO. V8, U. 8. OF A.
Q. That is, the price of the machine is based upon their
daily capacity.
A. The price of the rights to use the process is based upon
their daily capacity.
Q. Yes, and their daily capacity in this particular case is
how much?
A. Well, I don’t remember, Mr. Butler.
Q. Well, about how much, Mr. Mitchell.
A. Idon’t know, I do not know.
Q. Yes, you done hold that in mind particularly?
A. I can’t remember no. I can’t remember, no,—there
are so many.
Q. But, for example, the price of such a bleacher to a
miller we will say of one hundred barrels a day output, would
be less than if in a case of a mill of five hundred?
A. It would.
g Yes? And so on up. A. Yes, sir.
So the price of the right to use the process depends
upon the capacity or output of a mill? A. That’s right.
Q. Now, upon which? The capacity or the output.
A. The capacity of the mill for 24 hours.
Yes?
A. —is the basis on which the right to use the process is
Q. Yes? And even though the mill wasn’t running to full
capacity, the price would be the same as if it was.
A. Exactly.
134 Q. Yes.
Mr. Butler: That is all.
(Witness excused )
Mr. Butler: Mr. B. O. Terry.
B. O. Terry, a witness of lawful age, being produced, sworn
and examined on behalf of the government, testified as follows.
Direct Examination.
By Mr. Butler:
Q. Where do you live, Mr. Terry?
A. I live at Greencastle, Missouri.
Q. What is your business?
A. Iam in the general merchandise business now.
Q. That is a general store at Greencastle. A. Yes, sir.
The Court: Greencastle, Missouri?
A. Yes, sir.
Q. Are you the same B. O. Terry who is named in the
papers in this suit?
LEXINGTON MILL AND ELEVATOR CO. VS, U. 8. OF A. 33
I suppose so. [ am the only B. O. Terry there.
How long have you been a storekeeper at Greencastle?
Just went into business there a year ago last March.
Do you deal in flour. A. Yes, sir.
Sell flour at retail? A. Yes, sir.
Prior to your going into this business had you ever
dealt in flour? <A. Noe, sir.
Q. Can you give us about the volume of your business in
flour—about how much flour you have sold since you have been
in business there, bought and sold?
A. Well, I think about three carloads a year.
Q. At the rate of about three corloads a year, and you
have been about fifteen or sixteen months in the business?
A. 15 months.
Q. B8o, altogether, about four carloads?
A. Yes, sir.
Q. What was your occupation before you were storekeeper?
A. I was a farmer.
Q. In that vicinity? A. Yes, sir.
135 Q. Prior to the receipt of the flour which was seized
in this cuse had you ever procured any flouf from the
claimant, the Lexington Mill and Elevator Company of Lex-
ington, Nebraska? A. No, sir.
Q. How was the order for this flour given,—to a salesman,
or otherwise. A. To a salesman.
The Court:
you?
The Witness: Yes, sir.
OOOrOP
What we call a commercial traveler called on
Q. And was the order given in writing? Was there a writ-
ten order? A. Well, yes. He gave me a duplicate.
Q. Yes. He wroie out an order and gave you a duplicate
of it? A. Yes, sir.
Q. Have you ihat writing with you? A. Yes, sir.
Q. Will you produce it please, and all the writings that
this company gave you with respect to this particular trans-
action? A. (Producing paper) Here is the order itself.
Q. Yes. Was there any other writing?
A. Here is the guarantee, I believe. This is the guarantee.
They gave me that.
(Documents referred to marked respectively 4 and 5)
Mr. Butler: (To the clerk) Have you a pin, please? Have
you a pin please to fasten Exhibits 4 and 5 together?
Mr. Scarritt: Here is one.
38—3533-3534
ae yee : *
= 84 LEXINGTON MILL AND ELEVATOR 00, VS. U. 8. OF A.
Mr. Butler: Thank you very much. Government Exhibits
4 and 5 are offered in evidence.
va Mr, Smith: No cbjection.
~ @__- How many sacks of flour did you receive from this com-
pany? A. 625. .
Be Q. What size sacks? A. 48 pound sacks.
_ ‘he Court: Sir?
: A. 48 pounds sacks.
‘The Court: Forty eight.
pos Q. When did you receive them.
136 A. It arrived the 7th day of April?
; The Court: Of—
Mr. Butler: April last?
* The Witness: 1910.
Q. How many sacks were seized by the marshal in this case?
A. Well, he took just what I had, the morning of the 11th.
He came in, we had sold a few out, the Friday and Saturday
before, I think—
Q. (Interrupting) About how many in all.
A. I think he counted them 597.
Q. Yes? So it was about that. A. Yes, sir, about that.
The Court: You had sold twenty or thirty?
A. Yes, sir,—
The Court: Something like that?
A. Yes.
Mr. Scarritt: Twenty-eight?
Was the flour seized by the marshal in the same sacks
that it was shipped to you in? A. Yes, sir.
Q. Had the sacks been opened or broken at all?
A. No, sir.
Q. Did you know prior to the seizure in the case that this
flour had been bleached by the Alsop Process? .
A. N
Q.
A.
Q.
if! wi RE GAd ie
HO, LEAS) ORRIN le 1%
ih
uh OL
0, sir, I knew nothing about it.
What was the price paid for this flour?
Five dollars a barrel.
That was the price agreed to be paid? A. Yes, sir.
The Court: Counting four sacks to the barrel?
A. Yes, sir.
Q is stated in the answer in this case, that it was not
fact paid for, but that they have since furnished you other
=
Raia Seed Rint See ARLEN
CSA RROD ie Re PRR Eh EC
LEXINGTON MILL AND ELEVATOR OO. VS. U. 8, OF A.’ a
flour im place of this. What was the price of patent flour, by
car loads, at Greencastle at the time you gave this order? |
Mr. Smith: That is objected to as incompetent, irrelevant
and immaterial.
The Court: He may answer it.
A. Will you please state the question again.
The Court: The gentleman will read it.
137 (Last question read)
A. To the best of my recollection other mills that I
was figuring with asked me $5.30, $5.25,—and five dollars
and thirty-five cents maybe, along there.
The Court: What was the price of this that was seized?
The Witness: Five Dollars.
The Court: Delivered?
The Witness: Yes, sir.
The Court: Free on Board at your station?
The Witness: Yes, sir.
Q. With respect to the flour which they allege in their an- -
swer they furnished you in place of this flour that was seized,
what was the name or label upon that flour?
Mr. Smith: I object to that as not the best evidence, and in-
competent.
The Court: My mind was on another matter. Will you
please read this to une. ‘
(Last question read)
Mr. Smith: I object to that as not the best evidence, and
immaterial.
The Court: Sustained.
Q. Was that flour bleached or not?
Mr. Smith: I object to that.
Q. Or, did the elevator company make any representations
to you upon that subject?
Mr. Smith: I object to that as immaterial, incompetent and
irrelevant.
The Court: He may answer.
A. This second car that I bought was specified to be un-
bleached.
-
36 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
Q. Was it the same or different; was it labeled the same
or differently from the other?
Mr. Smith: I object to that as not the best evidence, incom-
petent, irrelevant and immaterial.
138 Mr. Butler: What is the point? That we must go and
get the bags?
The Court: That ought to be [any] plain to any “proctor”.
Mr. Butler: Maybe it is, to a proctor. I am just a lawyer.
Mr. Smith: The Court said we were not.
Mr. Butler: He took it back about me.
Mr. Smith: Well, that is all right. Possibly the govern-
ment is the only one that has got lawyers.
Mr. Butier: I guess so.
Cross-Examination
By Mr. Smith:
Q Mr. Terry, you say in the original shipment there were
625 sacks? A. Yes, sir. 2
Q. They were counted as they were unloaded, were they?
A. Yes, sir, they were checked up.
Q. And prior to the time that the marshal seized them, a
certain number had been sold? A. Yes, sir.
And, when the marshal seized them, were they counted?
Well, he counted them.
In your presence? A. Yes, sir.
And your recollection is there were 597?
Yes sir.
. Now, had any of those which had gone out been re-
turned by the customer who bought it? A. No, sir.
Q. Were any of them ever returned by the customers who
bought them? A. No, sir.
. Calling your attention to this written guarantee, gov-
ernment Exhibit 5, I notice it says: “We, the undersigned, do
hereby guarantee cream 5-x and 4-x patent flour sold and made
by us to give the purchaser, B. O. Terry, entire satisfaction as
to quality, and to be within the meaning of the state and
national pure food laws. We, the undersigned, do further
agree if cream 5-x and 4-x patent flour do not give
139 satisfaction to customers of B. O. Terry, refund to pur-
chaser the purchase price of flour, if paid for, and if
unpaid for remove flour from his possession at our expense.”
You may state whether any of the parties to whom the flour
was sold by you returned it, and made complaint of the flour,
and asked reclamation. A. They did not.
ereore
LEXINGTON MILL AND ELEVATOR CO. YS. U. S. OF A. 37
Mr. Butler: I think I will object to that, if it please the
Court as immaterial and irrelevant.
The Court: Objection sustained.
By Mr. Smith:
Q. You may state whether or not, Mr. Terry, so far as you
know, and so far as any of your customers know, to whom the
flour was sold, whether it conformed to this guarantee. as to
giving satisfaction?
Mr. Butler: The same objection.
The Court: Objection sustained.
Q. Prior to the purchase of this flour did you have any con-
versation with the representative of the mills who sold it, as
to whether or not it was or was not bleached?
A. I had no conversation about that. I didn’t think any-
thing about that.
Q. As a matter of fact you bought the flour on the strength
of this guarantee that they gave you?
A. Yes, sir. :
Q. And you sold it the same way?
Mr. Butler: Objected to as immaterial.
The Court: Oh, I think so.
Mr. Smith: Sir?
The Court: I think how he sold it is immaterial.
Mr. Butler: Is that all, gentlemen?
Mr. Smith: Yes, I guess so.
Mr. Butler: We will excuse Mr. Terry from further attend-
ance unless you gentlemen want him. We will call him later
on, but I won’t ask that he remain here all this time.
Mr. Smith: You will come if requested by telegraph or
otherwise, during the trial?
The Witness: From home?
Mr. Butler: Yes.
140 The Witness: Yes, I will if I have to.
The Court: They are simply allowing you to go now as
an accommodation to you. How far is Greencastle from here?
The Witness: .One hundred and forty-eight miles.
The Court: If Mr. Smith or any of his associates wire you
you will please come. Of course, your attendance, and all that
38 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A-
will be arranged. Those matters can be covered by arrange-
ment entirely satisfactory to you. If they wire you please
come back, and they will make it satisfactory with you.
(Witness excused.)
James H. Shepard, called as a witness on behalf of the gov-
ernment, being first duly sworn, testified as follows:
Direct Examination
. By Mr.Butler:
Q Your name is James H. Shepard? A. It is.
Q. State your age, place of residence, occupation, educa-
tion, and technical or special training, if any?
A. My residence is Brookings, South Dakota.
Q. Now, this room, I find the acoustics are bad here?
The Court: Speak up please. Put a little volume in your
voice.
Mr. Butler: And, if you will, speak plainly, so we all can
hear.
The Court: You live somewhere in South Dakota, but I
didn’t catch the place.
The Witness: Brookings.
The Court: Brookings?
The Witness: Brookings, South Dakota.
The Court: Your age is what?
The Witness: My age is fifty years. I am professor of
chemistry of the South Dakota State College, and the chemist
of the agricultural experimet station at Brookings, 8. D., and
I have held these positions for the last twenty-two years.
The Court: Now, Brookings,— is that the location of your
State University?
The Witness: The State Agricultural College.
141 The Court: State Agricultural College?
The Witness: Yes, sir.
The Court: The same as Columbia Misouri, and Ames Iowa,
and so on?
The Wtiness: Yes, sir.
The Court: All right; excuse me—has that institution got
a land right from the government, the same as the other in-
stitutional colleges?
The Witness: It is a land right college, and that experi-
mental station which investigates all agricultural problems,
is located there in connection with the college.
LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. 39
The Court: The same as Columbia, Missouri, and Ames,
Iowa?
The Witness: Same thing, yes, sir.
The Court: All right.
Q. Now, what education and experience as a teacher have
you had in the line of chemistry, and state whether or not you
have written any books upon the subject, and what research
and so forth? I want you to state just your professional quali-
fications.
The Court: Yes,—throw off all modesty and tell just what.
you have done. They want to know.
A. For nine years I have been chemist to the South Dakota
Pure Food Commission. I was educated at Michigan Univer-
sity. I have written several text books on chemistry. I have
been engaged for the last twenty-two years in original investiga-
tion along the lines of water, and all kinds of foods, plants and
grains that are produced. I have been engaged for the last
five years in determining the digestive co-efficient of our
grains, and grasses, to see how much will digest; and I have
made many researches along the line of pure food work. I
have done a considerable experimenting along the lines of mak-
ing digestion experiments to test out some of these new things
that are prohibited by the pure food law, and of late I have—
well, again,—I have issued a great many bulletins of
142 all these different subjects in addition to other things
which I have published (Laughing) Isn’t that enough?
By Mr. Butler:
Q. Now, have you made any special study of bleaching flour
by means of a bleaching medium? A. I have.
Q. Composed of nitrogen peroxide gas mixed with atmos-
pherie air, such as is referred to in the patents in evidence.
A. I have.
Q. Give the Court and the jury a general idea of the ex-
tent of your investigations. The time consumed, whether or
not you have taken part in any public hearings, trials, in this
country or abroad involving an examination of bleaching of |
flour with nitrogen peroxide gas, and air mixed together, as
a bleaching medium?
A. About two or three years ago I commenced an investi-
gation on nitrogen peroxide, as an antiseptic reagent. Not
long after that I was called to North Dakota as a witness in
the behalf of the State cf North Dakota in a suit to restrain the
pure food commissioner from enforcing the law forbidding the
sale of bleached flour. I was also called to Washington D. C.,
and took part in the hearing before the Secretary of Agricul-
40 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8S. OF A. ©
ture at the time the hearing was held there, when this re-
sulted in a restraining order from shipping bleached flour in
Interstate Commerce. Again I was called to London,
England,—
The Court: (Interrupting) Just wait a moment. The
bailiff wants to make an inquiry.
(The bailiff made the inquiry mentioned, and the witness
proceeded as follows.)
(Continuing) I was called to London, England in another
case involving the validity of the Andrews patent.
The Court: Now, right there. I don’t want to interrupt.
Now, the Andrews and Alsop is practically the same thing?
The Witness: The result of their machine is the same
thing.
Mr. Scarritt: If your Honor please, we object to these
143 conclusions. The question was what experience he had
bad to show that he could act—
The Court: (Interrupting) Oh, of course, we have all read
the opinion in the 167th Federal or whatever it is, and he was
talking about the Alsop, and now he is talking about the
Andrews, and I supposed the jury would not know what he
meant by that.
Mr. Scarritt: I am not objecting to your Honor’s question.
It was the—
The Court: As I understand it the Andrews and the Alsop
for practical purposes are the same thing, but I am not seek-
ing to dictate to this witness. The opinion so recited.
Mr. Scarritt: What I was objecting to was reciting his
attendance on certain things which resulted in certain legal
propositions.
Mr. Butler: Oh, no. He didn’t mean that. The result of
the treatment is the same. ‘
Mr. Scarritt: Oh, I understand the judge. I simply object-
ed to the witness stating the conclusion which were arrived
at, by-reason of these things.
The Court: Oh, of course. You need not state that, as
yet, Mr. Witness.
Mr. Searritt: He has stated twice, your Honor, what I
objected to.
he Court: Perhaps it was subject to your criticism.
LEXINGTON MILL AND ELEVATOR CO. YS, U. & OF A. 41
Mr. Searritt: Mr. Butler didn’t call for that in his
question.
The Court: I knew what the witness meant, when he said
Alsop, and when he said Andrews patent, but I assumed the
jury didn’t know; you can explain that in a general way.
The Witness: I shall explain that?
The Court: Yes,—in a very general way, what you mean by
saying, sometimes, Alsop, and sometimes Andrews.
A. Andrews generates his peroxide gas by chemical means,
by using peroxide gas with the metal. The Alsop people
generate theirs by electrical means, by means of a_ strong
current, but they both use the gas.
144 The Court: Now, the Frenchman, Frichot—
The Witness: (Interrupting) Frichot had a machine
wherein he used electricity, but he was using a different prod-
uct.
The Court: Yes.
The Witness: (Continuing) He used a very high tension
current, and his points were a good ways apart, and, instead
of making the flame discharge like the Andrews people it made
just a gentle glow across the space, and the wheat went through
there. That generated ozone. The Andrews process generates
nitrogen peroxide.
The Court: And so does the Alsop, does it? -
The Witness: And the Alsop process generates nitrogen
peroxide. .
The Court: All right.
The Witness: (Continuing) And that is what the claim
was over there. They were trying to prove that the Frichot,—
Mr. Scarritt (Interrupting): Now, we object to that.
The Court: Never mind that. That isn’t it.
Mr. Smith: Unless he permits us to show the results,—
Mr. Butler: No, we didn’t call for that, nor your Honor
didn’t, and the witness is wholly excusable—
The Court: Yes, if there was any wrong done by me—I
thought I would clear that up in a general way.
By Mr: Butler:
Q:. You are familiar with the process for bleaching flour,
referred to in the pleadings in this case as the Alsop process?
A. I am.
42 LEXINGTON MILL AND ELEVATOR CO. VS. U. &. OF A.
Q. I would like to have [—] explain to the court and jury
the essential features of that process for bleaching flour. Make
it as plain and distinct as possible.
A. The essential apparatus in the Alsop process is a cham-
ber—a small chamber—with two electrodes. One is made
to approach the other,—one is stationary and one is raised up
and down by suitable crank motion. These electrodes
145 are charged with a heavy current of electricity. There
is a considerable quantity of this current, so when these
points touch the current flows just for a second, and when
they are pulled apart in this way (indicating) there is a flam-
ing discharge takes place between the two; this flaming dis-
charge is of a very high temperature. It is of a high tem-
perature,—so much higher than the ordinary temperature of
combustion, where gold or gas or anything of that kind burns,
that it causes the nitrogen that is in the air,—and you know
there are two gases in the air that concern us,—one is nitro-
gen. About three-quarters of the air is nitrogen, and about
a quarter of it is oxygen. Well, this temperature is so high
that this nitrogen and oxygen combines,—they actually burn,
as we might say, and the result of it is a product that you
will hear a great deal about, called nitrogen peroxide. That
is the name of the compound. Now, this compound is gener-
ated in this small box. As soon as the electrode has been sep-
arated, a portion of this peroxide is formed. Now, while the
electrode is returning a current of air sweeps out what was
made in there and draws in a fresh supply of air; so that each
flash has a fresh supply of air, and the peroxide that is made
is swept along. That is carried by a tube to a box that is
provided with rotating apparatus, and the stream of flour,
—the finished flour from the mill comes into this agitator, and
it is spread all out like that (Indicating) and falls down
through the air, and it the air, and this nitrogen peroxide com-
ing up through, and during this passage the bleaching is ef-
fected.
. I find in the specifications of the patent which is here
marked Exhibit 1,—it is marked Exhibit A but I will change
that to 1 under your Honor’s suggestion.
The Court: Yes,—1.
Q. (Continuing) This statement: “I mean to identify ac-
curately by chemical formula this gaseous medium. It has
been determined by chemical analysis however that the air,
treated in the manner hereinafter described, contains
146 ~=nitrogen peroxide”, then in parenthesis “NOo2” and
“N204” a trace of ozone, and is in a state of ionization,
that is to say the air is separated into atoms, or compounds
of atoms—
LEXINGTON MILL AND ELEVATOR CO. VS, U. 8S. OF A. 43
(Interrupting) Once more? The air is separated in-
to—
Q. (Continuing) “Atoms, or compounds of atoms, which
are electrically charged, some negatively and some positively,
and are thus in a condition to enter into new compounds.”
Now, first, I desire to ask you whether NO2 and N204 are
chemical formulae for nitrogen peroxide gas, referred to by
you in your description of this process. A. They ure.
Q. Yes? And 03? Is that the chemical formula for ozone?
A. It is.
Q. And, that the jury may see how it is written, I have
written them correctly on this paper (exhibiting paper)?
A. That is correct. The NO2 is this nitrogen peroxide
gas, at a rather high temperature, and N204, it-may assume
that form, at a lower temperature. The O3 is the ozone,—that
is, pure oxygen. There is a deep-seated change, some way.
The air molecule of oxygen, just as it occurs here in the air,
is represented by 02—that is, 2 atoms are combined, here,
together. There is one thing, with very few exceptions,—no
atom can exist alone. That ozone—O3—exists only at a low
temperature, at the ordinary temperatures of the atmosphere,
and about like that. Heat, or anything, breaks it all up, and
it goes into common oxygen again.
Q. Now, I want you to describe the substance known as
nitrogen peroxide, as to its color, weight, and chavacteristics.
A. This nitrogen peroxide that is formed in the Alsop
Process, when we have it pure, and not mixed with air—con-
centrated—just the pure gas, is a dark brownish red gas, that
is heavier than air. It is powerfully corrosive. It is extreme-
ly poisonous, and, being inhaled in small quantities, produces
‘ an irritation of the lining membranes of the nose and the
throat, and, if it were inhaled in sufficient quantities, it would
result in death. If this gas, however, be diluted with
147.__— air, the same time that you dilute the gas w‘th air, you
dilute the color, and it keeps growing lighter colored,
and lighter colored, because you put more air with it, the air
is colorless, and you can go on and dilute this peroxide to
such a point that you may not be able to recognize it, really;
but you can’t dilute it very well beyond the point where the
odor—the odor remains. The odor is there. You can detect it
in the atmosphere, in very minute quantities, by the odor, on
account of its great pungency.
By the Court:
Q. What do you mean by “corrosiveness’’?
A. I mean that it eats—bites in.
By the Court:
Q Iron—metals?
,
44 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8S. OF A.
A. Oh, it will eat metals. Yes, it will. It will eat up
most of the ordinary metals, especially in the presence of water.
Gold and platinum would not be attacked.
By the Court:
Q. Would not? A. Would not be attacked.
By the Court:
Q. Gold and platinum?
A. No, they would not. But, all the common metals, such
as iron, and zinc,—
By the Court:
Q. (Interrupting) Tin?
A. Well, tin more slowly. Tin isn’t attacked by nitric acid
very well, because it doesn't make a soluble salt. It makes an
insoluble compound, tin oxide. It makes a tin oxide. It coats
it over.
Q. Now, further, as respects nitrogen peroxide gas, with-
out dilution, did I understand you to say that it was a heavy
gas? A. I did that.
Q. Yes? Now, with respect to the weight of air—heavier
or lighter than air?
A. Oh, it is heavier. It is considerably heavier. It is
148 so heavy that one could take a cup of it, like this, and
turn it into another cup—decant it, or turn it up, just
as you would a liquid, that is, using the same motion—the
same principles. It is heavier than air.
Q. Have you, yourself, visited mills and observed therein
the use of the Alsop process fo> bleaching flour?
A. I have.
Q. Many, or few?
A. Well, quite a good many.
Q. Quite a good many? And have you yourself, observed
the nitrogen peroxide gas, after dilution by the atmosphere,
into the condition that it was used for bleaching by the Alsop
process? A. I have.
Q. With what respect to that, [ would like to have your de-
scription?
A. It appears—if the generating box has glass sides, which
it sometimes does, sometimes one can readily detect by the eye
a slight color in there, and sometimes it is almost impossible
to see the peroxide as it is formed. But there is always a little
leakage around the agitator, and the odor is quite marked.
Q. The odor of it is observable?
A. Is observable, ves, sir.
Q. Now, it is not the same, then, as pure air, as was de-
scribed by Mr. Smith in his opening, yesterday?
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 45
Mr. Smith: I object to this as leading and suggestive.
By Mr. Butler:
Q. Well, is it the same as the pure air described by Mr.
Smith in his opening, yesterday?
Mr. Smith: I object to that as incompetent, irrelevant and
immaterial, leading and suggestive.
The Court: Sustained.
By Mr. Butler:
Q. Is it pure air? A. It is not pure air.
Q. Now, have you observed the pipes employed to conduct
the gaseous medium from the Alsop generator to the flour, to
be bleached by it, in the agitator?
Mr. Smith: Pardon me, I want to object to this, Your Honor,
as incompetent, irrelevant and immaterial, the witness
149 =not having shown himself at all familiar with the mill
in which this flour was bleached. Now, that: simply
raises the question, if the Court please, as to whether or not we
are to deal specifically or generally, in this case, and, what-
ever the ruling of the court, why, I am willing to take our
chances on that; but I want to call Your Honor's attention,
now, SO We may know where our bearings are to be.
The Court: Well, without committing myself for or against
that proposition, I assume that these Alsop processes, made by
this concern at St. Louis, are all made of one and the same
patterns.
Mr. Smith: Well, I don’t know on what theory Your Honor
assumes that. There is no evidence of it, nothing to show how
they are installed in the mill, as to how far this air is carried
after the electrodes have generated this, or what would be the
effect of carrying it a small distance or a long distance, I don’t
think we have a right to assume any of these things.
The Court: IT am not, except on the basis of the evidence of
this gentleman from St. Louis, who told in a general way, that
pure air was brought into this cylinder, or compartment,
where these electrodes are, one stationary, and the other mov-
ing vertically by crank motion, and, from there carried through
a pipe to a box called an agitator. This is what the gentleman
from St. Louis said, as T understand it. If I am wrong in that,
—if I am confusing that with—
Mr. Butler: (Interrupting): It was this witness, who de
scribed the process, I think.
=
46 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
Mr. Smith: The gentleman from St. Louis didn’t testify to
it, at all.
The Court: Oh.
150 Mr. Butler: No, but they come in and say that this proc-
ess treated this flour, and we have the right—well,
Your Honor has ruled.
The Court: Of course, as I said to you gentlemen, in Daven-
port, I don’t want to be confusing this with what— I went and
saw one of these things.
“Mr. Smith: Yes.
The Court: But I am not testifying. I went and saw myself,
how it is done, I think I am confusing that with this.
Mr. Smith: I think you are confusing your general know!-
edge with what has been testified here, Your Honor.
Mr. Butler: No, the witness has said that sometimes there is
a glass you can see in.
The Court: Now, I saw that. Now, the agitator, I didn’t
see in it, and I don’t know as anybody says you can.
Mr. Smith: My objection goes to the point that this wit-
ness hasn’t shown that he ever saw or knows anything, person-
ally, about this mill from which this flour came. Now, the
question presented, Your Honor, is, whether or not this wit-
ness will be permitted to testify about conclusions which he
derived from the inspection of some other mill, or, is it to be
limited to a knowledge derived from the inspection of this mill?
The Court: It will be limited to the Alsop process, but to
that extent general. The Alsop or Andrews process. We will
call it Alsop, for short.
Mr. Smith: Yes.
The Court: Go ahead.
The Witness: Judge, I believe I am confused on the ques-
tion, now.
The Court: The objection is overruled, and the defendant
excepts.
Mr. Helm: If Your Honor please, I notice Mr. Smith has
not been saving his exceptions, at all times. May it be
151 understood that the exceptions are saved, at all
times?
LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A. 47
The Court: No, but, as a matter of courtesy to counsel,
{ have saved them for him.
Mr. Helm: So that, you desire to have them stated?
The Court: I want the exceptions, on the pivotal points
saved, of course, but I can’t give you general authority to fill
in objections, in the record, without any limitation.
Mr. Smith: No. I: you don’t make the exception, and [
want it, I will put it in the record,
The Court: Yes, because I assume they are matters of im-
portance, and I want the exceptions saved.
Mr. Smith: Yes, and if you don’t save them, and I think
they ought to be saved, I will state them.
The Court: Very well.
A. (continuing) Yes, I have observed the pipes.
By Mr. Butler:
Q. And what did you observe about that?
A. Well, it depends largely on how long the pipes. have
been in the mill, and of the material of which they are con-
structed. These pipes wear out, after a time: They become
rotten, so you can take them right in your fingers, and erumble
them all up, and they have to be replaced by new pipes, un-
less they are made of some material that is not attacked by
the gas. If made of the common iron, or galvanized iron, their
life is not so very long.
By the Court:
Q. How long? A. Well, from a year to—
Mr. Smith: (Interrupting) What did he say?
A. (Continuing) Sometimes vary. Of course, it depends
on the thickness of the iron. It is simply a quantitative ques-
tion. It is eating all the time, and the bigger the iron, the
longer it will last; that is all.
Q. Now, tell us how this air, modified by electricity,
152 = and containing nitrogen peroxide gas, destroys iron
pipes. A. How it destroys iron pipes?
Yes, just make that as plain as you can.
Helm: Does he say that it will destroy them?
. Butler: Yes. sir, it does.
. The peroxide of nitrogen, when it comes in contact with
water, immediately splits up, and it forms two acids, one of
them nitrous acid, and the other is nitric acid, one of the most
48 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A.
powerful acids known to chemistry, one of the most corrosive,
one of the greatest solvent reagents that we use in chemistry,
is nitric acid, and of course this nitric acid will act. in time,
anywhere, and every time that it has an opportunity to act.
Comes in contact with these pipes, and it acts. That is all
there is to it.
Q. And, in the ordinary use of the Alsop process, is it the
gas passing through, or the medium—the air and the gas mixed,
together, passing through the iron pipe, which goes into the
agitator for the purpose of bleaching the flour? A. It is.
Q. And it is at the same degree of dilution in the pipe as
- in the agitator?
A. Same degree. Well, let me see. Now, wait a minute.
I want to be right about this.
Q. Or, does the opening of it into the agitator further di-
lute it? A. It further dilutes it, Mr. Butler.
Q. Further dilutes it? Now, generally speaking, about how
large are these agitators, or boxes, or, do they vary? I want
to know, is it as large as a barrel, or a hogshead?
A. Oh, it is larger than that. They are usually made—
well, those that I have seen, for instance, take the upright
agitators, they are like this-(indicating).
By the Court:
Q. Well, now, say how many feet.
A. Oh, four or five feet in diameter, or four feet, we will
say, in diameter, or three feet, along there. It depends alto-
gether on the size of the mill, and bow large a stream is
treated.
153. By the Court:
Q. Well, you have given the diameter. How long?
A. Well, they would be from six to eight feet high—as high
as a man could reach.
By Mr. Butler:
Q. Now, with respect to nitrogen peroxide gas, may it be
produced other ways than by the flaming are which you have
described as a part of the Alsop Process?
A. Almost innumerable other ways, yes, sir.
Q. And, for example, can you—
A. (Interrupting) For example—
Mr. Smith: (Interrupting) I object to that, Your Honor,
as immaterial. It is shown how it is produced in this instance.
We are not investigating methods which are not in controversy
here, are we?
Mr. Butler: Well, no, that isn’t the purpose, Your Honor
may see. But this witness has given a good deal of time and
LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. 49
study and research to the effect of the application of oxygen
upon flours and other things.
The Court: You may answer.
Mr. Smith: We save an exception.
The Court: Claimant excepts.
A. (Continuing) One specific instance, anyway. For in-
stance, like this was a piece of iron, and immerse it in nitric
acid, and warm it, and peroxide fumes will come off, or bet-
ter, take copper, and nitric acid, just about take the common
copper and nitric acid,—it is an experiment that any one can
make,—and you will see the same dark, brownish red fumes,
with suffocating odors, come off. They are peroxide fumes,
and there are so many different ways, I don’t suppose, per-
haps, a jury would be interested in how we get the absolutely
pure. It is complicated, and—
Q. (Interrupting) Well, what I want to call out, is this:
are the characteristics of nitrogen peroxide gas exactly
154 the same, however produced,—whether by the Alsop
process, the flaming arc, or by chemical methods, or
other methods?
A. Nitrogen peroxide is always nitrogen peroxide, wherever
you find it, and under whatever circumstances made or pro-
duced, the same as water is water. It is a definite chemical
compound. :
Q. Yes, that is what I was trying to make clear.
Q. In your work have you become familiar with the process
of the manufacture of flour from wheat? A. TI have.
Q. And with respect to the fitness of new wheat, as com-
pared with old wheat, for milling purposes? A. I have. -
Q. Characteristics of the flour made from both?
A. I have.
The Court: Speak up, please.
A. (Continuing) I have, yes sir.
By Mr. Butler:
Q. And the effect upon wheat flour, by the lapse of time,
storage,—called aging? A. I have.
Q. I would like to have you describe to the jury the mill-
ing process, having regard to the use of wheat, new and old?
A. Any kind of wheat?
Q. Yes, both ways, so as to make comparison between the
two, if that is convenient, or, just describe the process, if you
like. Describe the milling process, first, and then perhaps.
by more appropriate question, I can call for what I am trying
to get at.
4—3533-3534
50 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
A. Well, in the milling process, the first step, of course,
is to clean the wheat, and clean it very clean; and that is done,
even, if necessary, with scrubbing. The next point, in the
modern roller mill, is to temper the wheat. That is what the
miller calls “tempering” it. He allows it to go through a suit-
able box, and blows in a certain quantity of steam. Now, that
is a very important part in the process. The reason is that
that toughens the outside. It makes it tough, so that, when
he goes to put it through his rolls, it won’t break all up
155 _—siin fine particles, and go through his sieve with his flour.
Well, as soon as the wheat is tempered, it is run, then,
into a set of rolls. The rolls may be divided, roughly, in two
classes. Some of these rolls have little corrugations on them,
and those rolls, one of them turns this way (indicating), and
the other runs in the opposite way, so they are both going
in the same direction, but one goes faster than the other;
and the second class of roll is a roll that is polished per-
fectly smooth, and they run, by means of belts, just in the
same way. Well, when the wheat is caught between them,
you can see, then, that it is caught,—it is pulled,—it is
crushed. Well, now, the first step, without going into all
the numerous details,—there wouldn’t be time, today, to tell
them all,—the first step is, then, they go into these rough,
corrugated rolls, and they touch very lightly, indeed. The
bran is, almost all of it, loosened at this point, or a large
part of it, at least, and it takes away some of the flour, and
the shorts, also; and the grain, itself, is cracked into coarse
kernels, like sand. You could take it in your fingers, you
know, and rub it. These coarse pits, now, that are made in
this first roll, are called “middlings”. That is the technical
term. They are known as “middlings”, and it is by grinding
these middlings that the best flour,—that is, the highest priced
flour,—is made. It is from the grinding of those. Well, these
middlings are purified. They put them through a_ purifier,
and that cleans them all off. It takes off the bran,—blows
the bran all away, and leaves them. Sometimes this is put
on the market and sold, under various names, as breakfast
foods—just that better part of the wheat. Well, now, at
the time that these middlings are made depending on the wheat
that you are grinding,—if it is a real starchy wheat, the very
first time through the break-rolls, it shakes out a little white
flour, that the miller calls the “break” flour. This break flour
is usually run into the patent flour, or, just as the
156 miller may choose. Well, now, when these middlings
have been cleaned all up, and made as pure as possible,
it is carried on over to these smooth rolls, and these smooth
rolis begin to crush them, and makes them fine; and from
there the stream is put through a bolting cloth, and things
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 51
like that, and some of the branny portions, or the inside coats,
are removed, and we get a stream, then, of patent flour. And
that is called patent flour, made from the best, or middlings.
Well, as I said, in the first break-rolls, the bran has some flour
adhering. They don’t throw that away, these days. The mill-
ers are grinding very close. As an illustration, I heard one
man say—
Mr. Smith: (Interrupting) I object to that. I object to
the witness testifying to what some one else told him. He was
starting in to relate what he heard some one say. I object to
that, as hearsay testimony.
The Witness: I will take it back, and say it, myself.
Mr. Smith: TI didn’t intend to scare the reporter, but it
seems I did.
Mr. Butler: Yell before you get up.
Mr. Smith: No, I'll get up and then yell; Pll warn you.
The Witness: Well, it was immaterial, anyway.
Mr. Smith: Yes, sir,—thet was just what I was going to
object. for.
A. (Continuing) Well, it is immaterial. That is taken
again, understand. The flour is used again. You can take
it from me that there is no: flour left. Well, that flour is
saved, and some of the latter flour, on the reduction of those
middlings, is also saved, and it goes into a flour that they
eall “clear” flour. Now, we have got the highest—the patent
flour, came from the middlings, and the remaining flour is
called “clear” flour, but there’s some of it almost shorts.
* They are near shorts. It is almost cattle feed. There’s
157 _—stthree or four per cent of that, sometimes,—depends on
the wheat, and that isn’t put on the market, as a rule.
It isn’t sold. The miller has got a contemptible name for it,
because he despises it. He calls it “red dog” flour, and that
red-dog flour,—but sometimes it flours very high, and if it’s
very low they save up this red-dog flour until they get a very
large quantity of it, and then they regrind it, and get baker’s
flour, or something like that. I don’t know.—it depends on
the miller. There isn’t any uniformity.
The Court: For us lawyers to eat at hotels?
The Witness: Yes.
The Court: TI see.
52 LEXINGTON MILL AND ELEVATOR Co. VS. U. 8S. OF A.
Mr. Smith: I don’t know whether that is the case where
they are in the hotel,—the jurors—but I don’t think it is, at
the one we are stopping, Your Honor.
The Court: I don’t know. I cannot say about that.
A. (continuing) Now, those are not the only kind of flour
that are known, or that the miller makes. Now, very often he
begins in this way: He unites the stream—the patent flour
and the clear flour; he runs the two together. That takes all
the flour there is in the wheat, and he has got a good name
for it. He calls it “straight” flour. It is straight flour.
The Court: We will take—
A. (Continuing) And it includes all the flour in the wheat.
The Court: I always have a mid-session recess, gentlemen,
but a very short one—five minutes. Please be back in five
minutes.
(Recess then taken for five minutes.)
The Court: Call the jury at the door, Mr. Bailiff.
James H. Shepard, resuming the stand, was examined fur-
ther, and testified as follows:
158 By Mr. Butler:
Q. I think, at the time we paused, you had concluded,
Professor, a description of the general features of the milling
process. A. I had.
Q. In your laboratory work, do you mill flour?
A. Oh, yes. I have milled very many samples.
By the Court:
Q. You what?
A. T have milled very many samples. IT have an experi-
ment mill, and I carried on an investigation, on all of. the
new things that the government introduced to this country.
I milled them out, and made flour from them. I made these
middlings, and employed those for making macaroni. That is,
these new Durum wheats, and in comparison with our spring
wheats, and the Kansas red wheats, and work of that kind. I
have done a very large amount of that kind of work.
Q. Now with respect to the conditioning of wheat for mill-
ing I would like to have you—
Mr. Butler (interrupting): Oh, I didn’t observe you were
absent, Judge Scarritt. We had just spoken of his experi-
mental mill, with which you are familiar.
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 53
Q (Continuing) With respect to the shipment of new
wheat, as compared with old wheat, for milling, other things
being the same? A. I would like to get your question.
Q. Well, what I am trying to get at, is this. Is new wheat,
taken right from the harvest field and threshed out from the
shock, as fit for milling, or as well adapted for milling, as
would the same wheat become, if stacked before threshing, and
if stored, after threshing, for a time?
A. No, it would not.
Q. Well, now, explain that to the jury, about the condi-
tioning—that is what I am trying to get at.
A. Well, when a wheat is first harvested, the best prac-
tice is, to cut it,—especially, that is, we cut it, as we say,
a little bit on the green side.. We allow it to dry in the
shock.
Mr. Butler: Can you hear him, Judge Scarritt?
. Searritt: I heard him say “with us”.
. Lyons: That is, South Dakota.
. Butler: He says he cuts it a little on the green side.
Just a little before ripe, I think?
Mr. Searritt: In South Dakota?
Mr. Butler: The best read men, I am asking about.
A. (Continuing) Then, after the wheat is dried in the
shock we put it in the stacks. Well, as soon as it gets in the
stacks, it begins, in a very few days, to sweat. It becomes
warm. The straw is tough. You could take it, and wring it,
this way, and the wheat undergoes a change while it is going
through this sweat in the stack. It comes out plumper and
it has a better color, and it has a better taste, and better
flavor, and it is better adapted for milling purposes. Well,
now then, as soon as the wheat has become dry in the stack,
it is threshed and put in bins. Now, the wheat undergoes the
second sweat, in the bin, and when it becomes dry, there, it is
in prime condition for milling. It is in prime condition for
milling. It makes a good flour, and that is what we call a prop-
erly aged and conditioned wheat. Now, as to the cause of
these changes, we have been in the habit of looking at them
just as—we say they sweat. That is, the physical—the ex-
ternal evidence that some kind of changes are going on. We
now know that these changes are due to very minute quantities
of bodies—
54 _—« LEXINGTON MILL AND ELEVATOR CO. VS, U.S.°OF A.
The Court (Interrupting): Professor, don’t lean back. I
am afraid you will fall back. .
The Witness: No, I won’t.
The Court: Well, you keep me nervous.
A. (continuing) Well, these bodies are called enzymes.
Called enzymes.
160 By Mr. Smith:
. Q. What are they called, Doctor?
. A. Enzymes.
Mr Butler: Enzymes—e-n-z-y-m-e-s—I had the same trouble
learning the words.
A. (Continuing) Now, these are secreted from Durum grain,
and these plants decrease these enzymes, and their office is a
digestive one—to digest, and change over. For instance, when
the wheat is planted in the ground, these enzymes begin to act
on the starch that is stored up in the wheat, and they will turn it
into sugar, and it becomes soluble, and the new plant that, has
thrown its root into the ground, and its leaf into the air, can
drink up this sugar, and build it over into plant issue. There
is another enzyme, in there, that attacks the protein, and makes
what you cali the gluten in the flour, or the protein in the
wheat, and renders that more soluble. Now, whenever you
change or alter the condition of a kernel of wheat, there is im-
planted in it an instinct, as we might say, to germinate—to
reproduce itself, again. Now, you place it in the stack, and it is
dark, in there, and warm. It is somewhat warm, and it im-
mediately endeavors to germinate. There is a change going on—
modification going on of the contents, but there isn’t enough
water, there, and sufficient to cause the wheat to germinate,
and when it finds it is useless to try to grow in there, it quits.
It subsides. The sweating stops. The stack dries out, and the
same thing happens again when the wheat is stored in the bin.
It tries once more. It has got in another place, and it wants to
germinate. Once more it endeavors to do it. Now, if it is taken
to the mill—the wheat, at this point, and ground into flour the
general impression is that the life is all ground out of that
kernel. Well there can’t be a worse misconception. It is ab-
solutely untrue. There are millions and millions of cells in the
flour that are absolutely intact. They have got the enzymes
there. They have got the whole machinery—the whole proto-
plasmic matter, and when we come to the form of flour
161 _ there is once more in these cells an endeavor to grow, if
you please, and the flour undergoes another sweat. It
developes agreeable odors, and so on, like that, and it improves
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 55
in quality and in color, and like that; and this, we call natural
aging. Now, as an illustration, just before I left home, I sent
my man down to the mill, to bring up some loads of feed. He
brought up some sacks, there. When we went to open the
shorts it had been standing there in the sacks, until once more
this sweat,—this enzymotic work had begun, and it had got so
warm that when I ran my hand down there it was almost un-
comfortable. Quite a large amount of heat is developed in this
natural aging. Well, if you take a raw wheat, and grind it,—
that is one that hasn't gone through this natural aging,—you
will get some flour but that flour will not be as good as the flour
from the properly aged and conditioned wheat. Everybody
knows that, and if you happen to bring home a sack of it, as I
have done, sometimes, you will surely hear from your wife,
because it won't bake right. It won’t make a good loaf vol-
ume, and she will say “There is something the matter with
this flour, now, and I want you to take this flour back,
or have it sent back. There is something wrong with it.
It don't work right. It don't raise right. When
the bread is baked, it don't have the loaf volume, and it
is altogether unsatisfactory.” Now, you take that flour, and
leave it a while, and it will go through this aging, or sweating
process, and it will improve wonderfully, and I have known
where flour like that had been sen: back, and stored in the mill
for a while, and sent right back to the house, and it was perfect-
ly satisfactory. It would not be so good, though, as flour that
had been made from wheat that had been handled and treated
just right. Well, now, then, even when wheat has been handled
and ground into flour—I mean properly aged wheat,— when
the flour is first ground, it is not so good. It needs this
162 other conditioning. This natural aging that it’ goes
through, after it has been made into flour.
Q. Do I understand the aging and conditioning of wheat
for milling, by going through the sweat as you have. described
it, is due to the action of enzymes, as you have described?
A. Yes. Of course, there are other cell forces at work—
this protoplasmic matter in the cells, and there is a balance.
One tears down, and the other builds up, but there are chemic-
al changes,
Q. Now, as to the flour, or quality of flour made from new
wheat—that is, wheat that has not been aged or conditioned,
compared with flour made from the same wheat, other things
being equal, that has been aged and conditioned, what can you
say as to that—the quality or flavor of ‘the flour?
A. We ean say that the flour made from the aged and con-
ditioned wheat is a better flour than that made from the raw
wheat, I tried to make that plain to the jury.
56 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
Q. Yes. Now, as respects the flour, or quality of flour,
freshly milled, whether made from new or old wheat, as com-
pared with the quality of the same flour, after the lapse of
time and storage under normal and proper conditions?
A. The stored and properly aged flour is always the
better flour than the freshly milled flour, no matter what source
it comes from.
Q. What changes take place in this natural aging of flour,
_as respects its appearance, and the various constituents of the
flour, if you know?
A. In the first place, there is 2 change in color. The flour
grows a little lighter colored. It grows to a beautiful, creamy
white color. In regard to the gluten, the gluten is improved
in it’s toughness, in its elasticity, and it makes a better volume
of bread. In regard to its flavor, by going through these sweats,
or these enzymotic processes, there are agreeable flavors and
odors that are developed, and these appear in the bread, when
the bread is baked.
163 Q. Now, as respects the color and appearance of flour,
made from new wheat, as compared with flour made
from light wheat, which has been conditioned, I would like to
get you to speak of that. ;
A. The color of the aged, properly conditioned wheat, is
lighter, and of a more desirable shade, than that made from
the unconditioned wheat.
Q. You said the color of the wheat—you meant the—
A. (Interrupting) I mean the color of the flour.
By Mr. Elliott:
Q. The what?
A. The color. This is what I mean to say, Mr. Elliott,
that the color of the flour made from properly aged and con-
ditioned wheat, is better than that of flour made from new
wheat, right from the shock to the—
By Mr. Butler:
Q. (Interrupting) And when you say “better’—the flour
is comparatively light in color, or white. I would like to
have you say in what respect the color is different, as to hue.
A. It is a difference in the shade of the color. The best
patent flours have a very—that is, our best patent, from num-
ber one Durum, a number one, wheat, are of a very light,
creamy tint, and that has been used as a standard, and that
flour is very good flour, and consequently, anything that more
nearly approaches that peculiar color, is, generally speaking,
called better. Now, as far as I am concerned, myself, I like
the one, or some of the Durums, better, because it is a great
deal darker than all these, but it isn’t my say-so. We are
talking, now, about commercial processes, and the commercial
LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. 57
usages—what the millers understand, and what the people
understand by preferable colors.
Q. What effect upon the color of flour, has the application
of the Alsop process. A. It bleaches out the color.
Q. Makes it lighter in color,—of lighter hue—of whiter
164 hue?
A. Makes it lighter in color. Sometimes it will almost
‘ approach chalky whiteness, depending on how it has been
handled.
Q. Will it have the effect you have just described upon
flour made from new wheat, which has not been aged and con-
ditioned? A. On any flour.
Q. On any flour? A. Yes, sir.
Q. And, the effect upon color of flour is the same, without
regard to the grinding of the wheat?
Mr. Elliott: I object to Mr. Butler testifying.
Mr. Smith: That is leading.
Mr. Butler: Well, I think it is a proper question.
The Court: You may answer it. Go ahead Professor.
A. It tends to bleach. It tends to bleach them to a stand-
ard color, irrespective of the age of the wheat, or previous
condition,
By Mr. Butler: °
Q. What effect would it have upon a clear flour, as re-
spects color? A. It would make it lighter.
Q. What is the difference, in color, between a clear flour
and a patent flour, when neither is bleached. Which is the
lighter. A. The patent flour will be the lighter.
(. What is the difference in color between a clear flour and
a straight flour? Which is lighter?
A. A well milled straight flour should have a somewhat
lighter color than clear.
Q. What effect does the bleaching process have upon the
straight flour, as respects color?
A. It will make it lighter in color.
Q. By the application of the Alsop process for bleaching
flour, have you ascertained whether or not any substances are
added to the flour, or imparted to it? A. T have.
What is the truth in that regard?
The truth of the matter is, in regard to that, that the
nitrogen peroxide, of course, is added to the flour. (Cer-
tain chemical changes, as it unites with the water, makes
the two acids, and, therefore, we have nitrates from
58 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A.
the nitric acid that has been added, and we also have nitrites,
or nitrous acid, itself, which has been added.
Q). Is there water in flour? A. There is.
Q. How much, ordinarily?
A. Well, with us, it runs from ten per cent to twelve per
cent, depending on how the flour has—
Q. (Interrupting) In bulk, or weight? A. By weight.
Q. By weight? That is, one hundred pounds of flour, or,
we will say a barrel,—call it two hundred pounds,—would
have twenty pounds of water—twenty to twenty-four pounds
of water? A. Yes, sir.
Q. And is capable of being extracted directly from the
flour? <A. It can be extracted directly from the flour.
Q. And, when this gaseous medium—atmosphere and nitro-
gen peroxide mixed,—is introduced into the agitator, where
the flour is in a state of agitation, what chemical changes take
place then, by reason of the presence of the nitrogen peroxide
gas?
A. It immediately united with the water, and changes into
two acids, one nitrous acid, and the other nitrie acid. That
is the first step.
Q. Describe nitrous acid.
A. Nitrous acid is a rather weak acid, as we describe it.
It has never been prepared, pure, only in water solution. If
placed in an open dish, or in an open bottle, it is constantly
giving off peroxide of nitrogen fumes, reddish fumes, arising
in the air. If it is exposed to the air, it will take up oxygen,
and go into the next, the higher acid,—go to nitric acid,—to
the stronger acid. It will unite with the alkalies, too, from
salts, called the nitrites, and with the metals, to form salts,
called the nitrites.
Q. Now, that is nitrous acid? A. That is nitrous acid.
Q. Now, as to its character—whether poisonous, or not?
A. It is a poisonous substance.
Q. As to the character of the nitrites, which are
166 = formed by a combination of nitrous acid with the bases
to which you have referred?
A. They are poisonous, also.
Are such nitrites formed in flour, by the application
of the bleaching process—the Alsop process, referred to in
these pleadings?
A. There has been some controversy as to whether nitrites
have been formed or whether it is the nitrous acid. It is salts
that is there, and we have been in the habit of speaking ot
the two as nitrite reacting material.
Mr. Elliott: Now, who does the witness mean by “we"?
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 59
The Witness: I mean, by “we”, the chemists of the United
States, and the honorable attorneys who are engaged in this
flour—in prosecutions and in their investigations. We have
always referred to it as nitrite reacting material. There is
some evidence, I think, that will be brought before this jury,
to show that this is principally nitrous acid that is in the flour.
By Mr. Butler:
Q. Now, do I understand this interchange between you
and Brother Elliott, on his interruption, that nitrite react-
ing material is the broader term, and includes a nitrite—that
ix the combination of nitrous acid with the bases, and would
also include the nitrous acid, itself? A. It would.
Q. Yes?
A. Anything that will give the reaction for nitrous acid,
whether it is a pure acid, or whether it is a salt of that acid.
Q. And, by “we”, you referred to yourself, and Mr, Elliott,
among others, as referring to that condition of affairs as
nitrites?
A. Well, that was what was uppermost in my mind. T was
thinking of Mr. Elliott. I must confess we have talked about
it that way.
Q. You mean, in the suit of the Russel Milling Company,
against the Pure Food Commissioner of North Dakota?
Mr. Smith: I object to that as incompetent and irrele-
vant.
>
167 The Court: T can't see the materiality of that.
Mr. Smith: You can't go into the question of where
these gentlemen have met together.
The Court: No, that might be unsafe.
Mr. Smith: Your Honor, I don’t think we had better go into
that.
The Witness: That lets us out, Mr. Elliott.
Mr. Butler: Your Honor will observe that it isn’t our side
that is afraid.
Mr. Smith: Well, I don't care about embarrassing the Doe-
tor, too much.
The Court: Well, this is only thrown in as a little bit of
witticism. Perhaps it is just as well left out. Of course, I
mean nothing objectionable to either side, here. Mr. Elliott, I
guess, understands that.
a ee . Pie a sod a Pas 3) a hate STL RPT. EOC ASSERT FRR =
60 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A.
By Mr. Butler:
Q. Now, as to the nitric acid. Now about that? Is that eapa-
ble of isolation? Is it [staple],or weak, or strong, or what does
that do, in flour, when introduced by the Alsop process.
A. Nitric acid is one of the three most important acids
known to chemistry.
Q. By the way, is that sometimes called aqua fortis?
A. Aqua fortis, or strong water. That is the name for it.
It is a very corrosive acid, and you can buy it at any drug store,
anywhere in the United States, probably, and it is a very cor-
rosive acid, a great solvent, and it unites with metals to form
salts, that we call nitrates—a common one that everybody
knows is silver nitrate, or lunar caustic, and potassium nit-
rate, or saltpeter is well known to everybody, and sodium nitrate
is known to every farmer in the country that uses fertilizer—
Chili saltpeter. These are very common compounds, that are
formed from nitric acid. Now, this acid is one of the most cor-
rosive acids known. If you get the least mite of it on your fin-
gers, it will turn them to a yellow color, and if it is dropped
on clothes, it will burn holes through the clothes, It
168 will disolve all the metals, excepting gold and platinum,
and some of the rarer enes, that is to say tin; it doesn't
work very well on tin, but all the common metals, it will eat
them up, as we say. It will dissolve them, and make them into
salts.
Q. Now, is there any difference in the changes made in
wheat flour by bleaching by the Alsop process, and the changes
which take place in natural aging?
A. They are not at all comparable.
Q. Will you compare them, to the jury, for the purpose of
contrasting them?
A. In the first place, they are both—both the natural aging
and the bleaching by the Alsop process, causes the color to be-
come lighter, and, in so far, they are comparable. When we
have gone that far, that is as far as we can go. If that is push-
ed to its ultimate analysis, the color that is made—the color
that is made is always uniform, on the natural bleaching. It
doesn’t assume the chalky whiteness that the bleached flour
does, when it is bleached, very frequently, at least. Then,
again, as IT have already explained. This enzymic action that
goes on while the flour is naturally aging, produces agreeable
flavors and odors, while on the other hand, the Alsop process
introduces disagreeable odors and flavors. By natural bleach-
ing, the flour begins to improve, and goes on and improves, and
improves, and improves until it gets better—until it reaches,
its highest point, we will say. This will last over a period,
sometimes, of two or three months or even longer, if it is proper-
|
PTR NE a AUN EEN RI: —
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 61
ly handled. The flour that has been bleached by the Alsop
process is just as good, the minute it comes out of the bleacher,
as it ever will be. There can be no change in that flour, that
has been bleached. There will be no enzymotic changes. The
introduction of these strong acids has caused the enzymes to
quit work, They don’t go on, They can't do any more work,
and the result is, that the only change that can come to the
flour, bleached by the Alsop processes, will be, away
169 along at some time when it is said bacterial action sets
in, and the flour begins to go back and decay. The same
thing will happen to flour that is naturally aged. All flour
has its life. It doesn't live forever, It can't live forever. And
the time will come when both of them are attacked by molds
and fungae, and various things of that kind, and will begin to
decay and deteriorate.
Q. Is the digestibility of flour affected favorably or injuri-
ously, or at all, by bleaching it by the Alsop process, at the
time it is milled?
A. LT have made a great many experiments along that line,
and I have learned that the digestibility of the bread, made
from flour bleached by the Alsop process, is damaged—is in-
jured.
Q. As to digestibility?
A. Its digestibilty is injured.
Q. Can you give us an idea of the quantities of these nitrites
or nitrite reacting material, that is added by the bleaching by
the Alsop process, or that is required to effect substantial
bleaching?
A. That will depend on a number of factors. Some grades
of wheat that are very good grades of wheat, and naturally
produce a rather light colored flour, only need small quanti-
ties. Other wheats, that produce dark colored flour—yellow
flour—requires larger quantities, and the truth of the matter
is that nobody knows—the miller, himself, doesn’t know how
much peroxide he adds. He simply adds enough to reach a cer-
tain color, be it little or be it great. Tn my own experiments,
I used from two and a half parts per million, along down the
scale—or up the scale, to one hundred eighty parts of nitrogen
peroxide.
Rv The Court:
Q. One hundred eighty out of a million?
A. Yes, that is, in a million anything,—a million pounds
would be a hundred and eighty pounds of the peroxide,
Q. Yes, TL understand.
A. (Continuing) Or, in a million grains or a million any-
thing, by weight. And we went all the way from two and a
SRT ENTREE ORE SPREE ATA PRINCE AOR ETENGLE BN PE SCIOH LS E IPI
62 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF a.
half parts per million up to one hundred eighty parts
170 ~=per million. In the flours with which I was working,
I reached the points where the flour began to become
very white, when I was using from—well, from twenty to forty
or sixty parts per million.
y. And did you observe the effect upon the color?
A. I did.
Q. Of the application of various quantities? A. I did.
Q. From this two and a half parts per million, up to one
hundred eighty parts per million? A. I did.
Q Now, will you explain to the jury what the color is,—
that is, what are the primary colors, alone or in combination,
in the wheat flour? ‘
A. The coloring matter of wheat flour, or the color of
wheat flour, as we see it, is not a simple color. It is owing
to a mixture of two colors. We all know how different colors
can be mixed, and they will produce another color. Take
two colors, mix them together, and you will have something
of a different color. Now, the color of the wheat flour con-
sists of two of the primary colors. One is yellow, and the other
is orange. Now,—
Q. (Interrupting) In what relation? Well, go ahead.
A. (Continuing) Now, the darker colored wheats have
more of the orange. The darker colored flours have more of
the orange and the lighter colored have more of the yellow.
The yellow isn’t so pronounced, you know, just a light yellow
—a very light yellow, and the rage, of course, has quite a
deeper shade, as you all know.
Q. Well, now, is the effect upon both primary colors, the
same, upon the application of this bleaching medium used in
the Alsop process—that is, does the orange and yellow reduce
equally, as the process goes on? A. No, they do not.
Q. Can you give the—
A. (Interrupting) They both begin to fade. Would you
like the exact figures.
Q. Well, generally, the substance of them, and later T will.
A. Yes. The orange begins to fade away. It fades away,
first. The yellow also fades away, but you will soon reach a
point, if you keep on adding more peroxide, where the orange
disappears entirely, and, no matter how much you add
171. += after that, that orange color never will come back
again; but, when you get down very near to the zero
point on your yellow, when your flour is almost chalky white,
you put in some more peroxide, and the yellow will begin to
come back again, and, as you add more, you will notice an in-
crease of the yellow color. There is a point, but it is not of
practical importance, IT am sure, in this case, because the
millers don’t go to that point, because they couldn't sell their
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 63
flour. If it were overbleached, you would find you had
very much more yellow, in overbleached flour. That is, where
it was away over-treated. You would have very much more
yellow, than the flour when you first started.
Q. That is, by keeping the flour exposed long enough, in
one of these agitators, it will turn yellow?
A. Yes, and by adding more gas to it.
Q. Yes, or by more gas, owing to either the increase of
the strength of the medium, or the increase of the time of
the exposure, I suppose?
A. That would be immaterial. It would be immaterial
ax to that. Either one would affect it, provided you main-
tained a constant supply of your gas, at the one common dilu-
tion.
Q Now, I want to get the effect upon the quality—the
odor—the color of the flour, the odor, and the taste, and the
smell and so forth, after this bleaching has eliminated all of
the orange, and has reached such a stage that the yellow begins
to increase.
A. Well, the odor of flour is destroyed when it is bleached,
ne matter how much you put in, Just two and a half parts
per million, will give to that flour an odor that is very dis-
agreeable, to me, and at the point you have mentioned, it is
simply a question of intensity, and not a question of kind.
It keeps smelling a little worse and worse, because a little
stronger and a little stronger, that is all.
Q. Now, have you prepared figures, showing the result of
vour color measurements, its against applications of different
amounts of bleaching, by this process?) A. I have.
172 +. You may refer to them.
A. (Producing paper) T use two kinds of flour. First,
patent flour. That is, a genuine patent flour, and also st raight
flour. My criginal patent flour, unbleached, had twelve points
in the orange, and thirteen in the yellow.
Q. That is, the amount of primary color?
A. Of the primary color.
Q. As of twelve to thirteen?
A. Yes, when I added two and a half.
By Mr. Searritt:
(). How was that? A. Twelve. It is a decimal.
By Mr. Butler:
Q. It has a point before it?
A. Twelve hundredths, and thirteen hundredths, on the
Lovebond scale, but we can speak of these as points, and that
will make it plain te everybody.
By Mr. Helm:
Q. Twelve of orange, and thirteen of yellow? A. Yes.
64 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8S. OF A.
By Mr. Helm:
Q. That is, twelve and thirteen, before any of the flour
Was treated?
A. That is the natural color of the flour.
By Mr. Butler:
Q. Which flour was that—the straight or the patent?
A. That was a patent flour, made from Dakota number one
winter wheat.
Q. Go on.
A. I added four and a half—four and five tenths parts
_ per million of peroxide. My orange sank to two. That is, .02
—two points, in the orange, and my yellow, which was thir-
teen, sank to eleven. You see, there is a great difference.
The orange goes faster. When I use—I won't name all of
them. It will illustrate it, when I used as high as eighteen
parts peroxide, per million my orange didn’t seem to
173 be affected, there. It may have been .02 and my yel-
low fell to .06. That would have been probably the op-
timum point for bleaching that flour. Eighteen parts per mil-
lion would have brought that flour down to about what I un-
derstand the standard color is, that they are working to.
Now, when I used seventy-two parts per million of peroxide,
my orange fell to zero, and my yellow rose to eleven. I will
give one other figure. When I used one hundred eighty parts
of peroxide per million, the orange still remained zero, and
the yellow had risen to thirteen—, just -the point where I
started from, on the vellow.
Q. You started at thirteen?
A. I started at the point, thirteen, and it came back to
thirteen when T had used one hundred eighty. On the straight
flour, the natural color of the straight flour is fifteen points
in the orange, and twenty in the vellow.
The Court: Twenty?
A. Twenty, ves, sir. It is darker, you see. As compared—
it is made from the same wheat.
The Court: I understand.
By Mr. Butler:
Q. That is, straight?
A. Straight flour.
Q. Yes?
A. I will only give two more. When I used forty parts—
when I used [seven-two] parts per million on the straight flour,
my orange sank to .04, and my yellow came down from twenty
to fourteen, with one hundred eighty parts. Once more, my
orange became zero, but my vellow had risen to nineteen. I
started with twenty, and I got it back again.
REGO LEE DBE OE NE CONES LIOR RHE PS Te
LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A.
Mr. Helm: How many parts did you use, there?
Mr. Butler: One hundred eighty.
The Court: One hundred eighty per million?
A. Yes sir.
By Mr. Butler:
Q. Now, suppose ihat flour subjected to this process had
eighteen parts applied—eighteen parts — per million,—what
amount of nitrite reacting material would be recoverable by
treating the flour by water, if the analysis was made
174 immediately afterwards? Have you studied that so as
to be able to transpose that into other terms? For ex-
ample, take eighteen parts per million of nitrogen-peroxide.
You have told us that that produces nitrite reacting material,
in the flour. Now, suppose you analyze the flour immediately,
or soon?
A. Within a day or two?
Q. Yes. How much of these eighteen parts of nitrogen
peroxide would be accounted for?
A. In my analysis?
Q. In your nitrite reacting material, so recovered, is what
I am trying to get at.
A. Yes. Well, IT made a great many experiments along that
line, and, under no circumstances can [ recover it all—that
is, the theoretical amount. But I have been able to recover,
as nitrites, from ten to fourteen per cent, From ten to four-
teen per cent_as nitrites, of all the peroxide used. That is,
if I use eighteen parts peroxide, I could get back ten parts of
it as nitrites reacting material—ten per cent of it, I would say.
Q. Ten per cent of it? ‘
A. Yes. That would give me 1S as nitrite reacting
material.
Q. For example, then, if by testing for nitrite reacting
material, the flour, a day or two after it had been bleached,
vou would find two parts per million of the nitrite reacting
material, that would indicate how many parts of nitrogen
peroxide added?
A. Well, in a general way, but not absolutely and scientifi-
cally, because there are changes going on all the time and
these changes depend on two things: First, how strong 18
your acid, How strong is your peroxide. The second, what is
the temperature and, third, under what condition has it been
stored? But there is a constant loss of this nitrite reacting
material, all the while. That is, it disappears as nitrite react-
ing material, only to hob up as something else, a little farther
5— 3533-3534
66 LEXINGTON MILL AND ELEVATOR CO. VS, U. 8S. OF A.
on, as we will see. So if we should find, say two parts of
175 __—sinitrite reacting material, and we know that the flour
was freshly bleached, we would be pretty safe in saying
that at least twenty parts of peroxide had been used in bleach-
ing the flour, and, if the flour had been stored for a longer
time, and the conditions were unknown, it might be not only
twenty times that, but it might be five times twenty times,
of it might mean anything on earth. We couldn't tell anything
much about it.
Q. And what is the effect of lapse of time, upon the amount
of nitrite reacting material recoverable by this test?
- A. It is constantly reduced.
Q. That is, under any ordinary conditions?
A. Under any conditions.
Q. Under any conditions? A. Under any conditions.
Q. And what becomes of it. Can that be told?
A. I believe we know what becomes of it.
Q. Well, tell us what becomes of it.
Mr. Smith: I didn’t catch the answer.
Mr. Butler: He said, “I believe we know’, as | understand
it.
The Witness: Yes, sir.
The Court: Repeat vour answer; the gentleman didn’t
hear it.
The Witness: I was just thinking about how I wanted to
state it.
Mr. Butler: But, vour answer was,—lI asked you if it| was
known what became of it, and vou said that it was.
The Witness: Yes, I did. Well, [ think—well, I went to
say, I think—I know—“know it”, that the nitrous acid and the
nitrite reacting material is being constantly changed — into
nitric acid and that will account for the disappearance of our
nitrite material. But there are other ways by which it disap-
pears. Some of it will evaporate. That you can’t help. Some
of it will be lost by evaporation.
176 Q. Some of it will?
A. Yes, but not a very large quantity, that way. This
gas seems to be held by the water that is in the flour, and also
by coming in physical contact with the flour, itself. And, so
far as I know, we haven’t any evidence now, that this nitrite
reacting material, as we call it, is much of anything — else,
except free nitrous acid.
Mr. Helm: Did you say nitrous acid?
A. Nitrous acid, yes sir.
SR eee et ee ETP ROR TI,
LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 67
The Court: I guess, Mr. Butler, we will stop at this point,
il two o’clock, to which time Court is in recess,
(Recess taken accordingly )
Two o’clock P. M. Thursday, June 2, 1910.
The Court: That gentleman may assume the witness chair.
James H. Shepard, resuming the stand, was examined
further, and testified as follows:
The Court: Read the last question and answer, please.
(Question and answer read as requested )
The Witness: I didn’t quite finish.
Mr. Butler: You may go on, and finish.
A. It may be that some of the nitrous acid could be combin-
ed with metallic bases, but the probabilities are somewhat
against it.
Q. (Handing the witness a bottle) 1 will call your atten-
tion to a bottle, which may be marked, “Government's Ex-
hibit 6”, and ask you if you know what it contains?
A. I do.
Q. What does it contain?
Mr. Scarritt: I can't quite hear your questions,
The Court: He asks what this bottle contains. The
177. ~—witness says he knows.
By Mr. Butler:
Q. What does it contain? :
A. It contains a mixture of nitrogen-peroxide, and air,
about one part—approximately one part of nitrogen-peroxide,
to four of air.
The Court: One to four?
A. One to four.
By Mr. Butler:
Q. About one to four?
A. It is dilute.
Q. And that is the same substance that is generated by the
flaming are in the Alsop process?
A. It is the same substance.
Q. And the same substance which you described this morn-
ing, ax a heavy poisonous gas? A. Yes, it is.
The Court: Is it offensive, Doctor?
A. It is offensive.
Nee Ree ae ne ea er a a le ee AOY ‘ Bae 5 DEEN NAAT
68 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A.
By Mr. Butler:
Q. Gas, like all gases, it can be poured from that bottle
into a cup or beaker, like that? A. It will.
By Mr. Butler:
Q. Perhaps there ought to be a tag or something, put on
that bottle, if it is desired it be retained. What is your wish
about that, gentlemen?
Mr. Smith: I don’t know as I have any.
Mr. Butler: Well, then, I will ask that you open the bottle
and show the substance to the Court, as it will pour from
that bottle into the other vessel. Maybe the Court or Jury
would like to—
The Court: (interrupting) You say that is | one — part
peroxide and four of air?
The Witness: Of air, yes, sir. It isn’t pure peroxide. That
is, what I mean by that, it isn’t concentrated peroxide.
The Court: Doctor, would you please stand around here,
so both the jury and counsel can see you.
178 The Witness: Now, the light, of course, is not very
favorable. If the gentlemen of the jury will notice, I
think you can see the color begin to show in the bottle.
Mr. Butler: If you would put a white sheet of paper back
of it, perhaps it would show up better.
The Witness: I would suggest it would be a good plan to
raise that shade, there, s
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