# Transcript of Record — United States v. Lexington Mill & Elevator Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0194%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1914 - **Citation:** 232 U.S. 399 ## Text LEXINGTON MILL AND ELEVATOR ©O. VS. U. 8. OF A. 1075 Morning Session. Kansas City, Missouri, Tuesday, June 21, 1910. Court met pursuant to adjournment and the further hear- ing of this cause was resumed as follows: Dr. John Wesener, in continuation of his cross-examination, further testified as follows: By Mr. Butler: Q. How many samples of unbleached flour have you analyz- ed since bleaching commenced by the Alsop process? A. I couldn’t say the exact number; I would say between one and three thousand. Q. One to three thousand? A. Yes, in round numbers. Q. Of unbleached flour? A. Unbleached flour. Q. Would three thousand be conservative, or will we make it two? A. Well, two would be conservative. Q. What is the expense of having a sample of flour .~ 1461 examined by the Columbus Laboratory? Judge Scarritt: We object to that as immaterial and irrelevant. The Court: You may answer, not go into the details. To which ruling of the court claimant then and there duly excepted. Q. No, it is either one dollar or ten or forty or a hundred; one word will answer. A. With reference to the value of the flour as flour, you mean. Q. I wanted to find out what you charge for examining each sample of thefifteen thousand samples of bleached flour you examined since bleaching commenced. Judge Scarritt: I renew the objection. The Court: He may answer. To which ruling of the court claimant then and there duly excepted. A. Wecharge two dollars and a half a sample. Q. Speak a little louder? A. Two dollars and a half a sample. Q. In your analysis of the patent flour how much ash do you find? _A. That depends on— 1076 LEXINGTON MILL AND ELEVATOR OO. VS. U. S. OF A. Q. - In the soft wheats of the South, the soft winter wheats of Missouri, Kentucky, Southern Illinois, and that territory, the whitest flour? A. Well, our standard is .35 per cent, our standard. Q. .35 of one cent is what you find? A. Yes. Q. You have established a patent standard? A. Which we change every year. Q. Oh, of course. Phas We change every year when the new wheat crop comes Q. In the spring wheats, the spring hard wheats, what 1462 is your standard ash for patent flour? A. Well, from .42 to .45. Q. Yes, and the winter hard? A. From .40 to about .42. Q. This flour that was seized did you examine—did you make an ash determination? A. Yes. Q. How much did you get? A. .46 Q. .46. Now, assume that Miss Wessling and the others were right and got .57, is it a patent flour? A. Well, it is not a high grade patent, according to our own standard, it may be a patent the way that method turns it out. Q. That is, if it is true that everything is a patent which a miller calls a patent, then this seized flour is a patent? A. Well, of course, the way you use the word “patent” it is absolutely meaningless, absolutely meaningless. Q. Well, aceording to the standard as fixed by your own best judgment, isn’t it? A. We say that a flour that is properly cleaned and will mill, and nicely bolted, and so on, should have only so much ash froin a given weight. By the Court: Q. Let me ask you, do you mean “patent” is meaningless or indefinite? A. I mean it is meaningless and also indefinite, and I can explain that to you fully that is, if you wish. The Court: Well, you have gone over that; I didn’t think you meant to use the word “meaningless”. A. Meaningless because it refers to the patented roller Bys- The Court: That is forty odd years old. By Mr. Butler: - Q. In the Dixie Miller of October, 1907, at page 36, you are reported to have said in substance as follows: “Now, should the miller be prevented from bleaching flour when he LEXINGTON MILL AND ELEVATOR 00. V8. U. 8. OF A.- 1077 can give the consumer and the baker and everyone a better fiour, improve the flour, age it rapidly, standardize it better, it contains more nutriments, and there is more gluten 1463 present, and makes a larger loaf, increases absorption.” Did you so state in substance and effect? A. I don’t know whether I stated that; I may have state- ed that. Q. Those are your views? A. Those are my views; those are my views; yes, sir. Q. Im the Dixie Miller of October, 1907, at page 36 you are reported to have said: “We have examined the gluten very minutely. We have never found any nitrite in combination with the gluten. We have never found any variation in the gluten, and we have never found any variation as yet in the oil; the only change that we have found is the coloring matter of the flour.” Did you so state? [Q] 1 don’t know whether I did or not, but that would be true. Q. Those are your views? A. Yes, sir. Q. The American Miller of 1909, at page 885, reports you as saying: “Not all of the flour contained in the grain can be in the form of middlings of such a character that they can be sufficiently purified to make a better grade of flour. The re- maining portion is mixed with fine fragments of bran, and even the germ, which is the embryo of the kernel. This por- tion of the flour is generally named clear grade flour; it is darker in color than the patent flour, and when separated in this way is inferior for bread making purposes because of the impurities it contains. When the clear flour and the patent flour are united in one, they constitute a high grade flour much more superior to the flour made by the old stone mill process, has more of everything, its same general character but from a good and economic character the clear flour is superior to the patent flour because it contains more protein, more of the fat and less of the starch. The same is true of the straight grade flour for it contains the excess of these ingredients more than in clear, and at the same time objectionable qualities of the clear are largely removed because the impurities more il- uted; except as regards color, more beneficial than injurious.” Did you so state? 1464 A. In what paper? Q. The American Miller of 1909, page 885? A. I don’t know anything about that, but I did state it in the Industrial Journal of Engineering and Chemistry published by the American Chemical Society; it originally was in that Scientific Journal. Q. Those are your views? A. They are. 1078 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. Q. The Dixie Miller of October, 1907, at page 736, reports you as having stated as follows: “There cannot be any decep- tion practiced taking the law as it reads unless you substitute an inferior for a superior article. I will just explain to you that the reverse is true, that you are substituting a superior article for an inferior article. The old-fashioned patent flour was the white portion of the wheat. The starchy portion that did uot contain the food value that is contained in the germ, colored middlings or the more colored middlings, it does not contain the food value or the strength. Now, by grinding up these middlings and purifying them and simply taking out the color, you are making a better flour than the old-fashioned patent, better for the baker, better for the miller, better for the consumer.” Did you so state? A. I don’t know whether I said that in that particular publication but those views are mine. Q. Those views are yours? A. I approve of them. People are getting better flour and cheaper flour. Q. I am asking if these are your views. Judge Scarritt: Let him-explain if he wants to explain. Mr. Butler: He explained yesterday that he did not change it. We will leave it that way until you get him. Judge Scarritt: Do you desire to explain? The Court: That is a very simple and elementary rule. This is equivalent to asking the witness if he upon another oc- casion stated so and so. If he admits it that ends it; 1465 if he denies it, why then they have a right to bring their proof forward. Judge Scarritt: Certainly. The Court: In other words, it is a foundation for the im- peachment. If he admits ii that ends it. If he denies it they have a right to show they said it. Judge Scarritt: He can explain it if it is an impeaching question. The Court: Yes. By Mr. Butler (resuming) : Q. The Dixie Miller of October, 1907, at page 736 reports you to have said as follows: “The thing (meaning bleaching) is either right or it is wrong; it cannot be half way. In this particular we have never found anything wrong. We have found that the bread was, if anything, increased in volume; it gave a larger loaf; it increased the absorption and benefited LEXINGTON MILL AND ELEVATOR 00. v8. U.8. OF A. 1079 the baker thereby. From a food standpoint it is better. Why, because you put in a little bit of the second patent, a longer patent, that is a better part of the wheat kernel, why shouldn’t it go in? It makes you a larger loaf, makes you more loaf and gives the consumer more for his money. There is no reason why this should not go in provided it is equal and superior to the patent.” Did you so state? A. I don’t remember of making that statement in the Dixie Miller, but that is, as a whole, is nearly correct. Q. That expresses your views? A. Nearly so, not entirely so. I would like to explain why it does not entirely meet my views. Q. There are others of a similar nature that I call to your attention, and maybe your counsel will give you an opportunity to explain. In the American Miller of 1909 at page 974 did you state as follows: “The average value which in our report is based upon the color of the flour, the character of the 1466 bread, the amount of the bread and the size of the loaf, was a little higher for the bleached flour than the un- bleached, because the color of the flour and the color and qual- ity of the bread was improved.” Did you so state? A. Well, I don’t know whether I stated; possibly my as- sociate Professor Tullar did. Q. Are those your views? A. They are my views. Q. The. Dixie Miller of October, 1907, at page 736 reports you as saying: “I know a miller in Ohio who makes a hundred per cent patent and it analyzes a hundred per cent patent, and he sells it for 100 per cent patent; he has a right to sell it for 100 per cent patent because it is 100 per cent patent.” Did you so state? A. I stated that. Q. You stated that before the Bakers’ Association? A. And that is absolutely true, he is doing that, but ac- cording to your rule you call that a straight. Q. And in the Bakers’ Helper reporting your speech, which I have not in my hand at this moment, you state: “Hats off to the miller who can make a 100 per cent patent that will analyze a hundred per cent patent” didn’t you? A. I say that to any man that will get all the flour out of his wheat. Q. You say that now to the jury don’t you? A. Itisa pretty good thing for the consumer and the people; it gives us cheaper bread. Q. And if it has .57 of one per cent ash as the seized flour has, you still say “Hats off to that kind of a patent”, don’t you? A. No, I say that miller ought to be taught to make prob- ably a little better flour, to get out more of the impurities; it doesn’t mean that the flour is bad. 1080 LEXINGTON MILL AND ELEVATOR CO. V8. U. 8. OF A. Q. To convict him of misbranding would help to teach him? A. I don’t know what you mean by misbranding in this case. Judge Scarritt: We object to that. 1467 The Court sustained the objection. Q. The Operative Miller of 1907 at page 432 reports you as saying: “The knowledge possesssed by the average flour jobber and user without analysis in a chemical and technical sense is of little value. The opinion of any baker unless he has had scientific and technical training is hardly a sound basis for a scientific conclusion.” Did you so state? A. I did, and that is true too about these gentlemen. Q. So a gentleman like Mr. Freeman would not appeal to you as having had much sense about this matter? A. I don’t know that, I don’t know who you refer to. Counsel for Claimant objected. Q. The Operative Miller of 1907, at page 432 reports you as saying: “Bakers cannot detect the slightest difference in bleached and unbleached flour.” Did you so state? A. I did so state, and when I addressed the National As- sociation of Master Bakers, 250 present, and not a one there knew they had been using bleached flour and they had been using it for three years. Q. So they were deceived to that extent by it, weren’t they? A. Not at all. Q. They didn’t know it but they were not deceived, well we won’t go into the psychology of it. At the hearing before the Secretary of Agriculture, the transcript furnished to me by the Department represents you as having said as follows: “The more I go into the subject of bleached flour the more interesting it becomes and the more convinced I am that it is not only a legitiniate process, not only for the miller but also for the consumer. It is a very fine advance in the art of milling.” Did you so state? A. I did, and I meant every word in it too. Q. The American Miller of 1906, at page 997, refers to an article which you wrote for the Bakers’ Review, and represents you as saying as follows: “He” (meaning you) states 1468 that the color is a very valuable index to the grade of the flour when in the natural condition.” Did you so state? A. I would have to see that. Q. Are those your views? A. The color is an indication of the grade and the way that flour has been—or that wheat has been milled, but the LEXINGTON MILL AND ELEVATOR CO. vs. U.S. OF A. 1081 color is only one factor in grading the flour—wait till I finish my answer, and— Q. Just a moment. A. I have not finished my answer. Mr. Butler: I move to strike out his answer as not re- sponsive to the question. The Court: Yes; he has asked you the question, and I re- peat, that this is for the purpose of impeachment. Now you can affirm or deny. If you affirm, that ends it, the Govern- ment has a right to bring forward witnesses. Q. I ‘will restate the question so there will be no doubt about it, if you will permit me, and give you time to make your. objection, Judge Scarritt: All right. Q. Is this statement, to-wit, that the color is a very valu- able index of the grade of the flour when in a natural condi- tion, a fair representation of your views? Mr. Scarritt: Now that is not an impeaching question; therefore he has a right to explain what his views are. The Court: Certainly, he was asked if he stated that before the Secretary of Agriculture. * Judge Scarritt: Not in this last question. Mr. Butler: As stated in the article written for the Bakers Review. The Court: Of course, I was mistaken about it. Judge Scarritt: I would suggest that he answer that ques- tion yes if he remembers it so, or no, if he is satisfied that it is not so, but if he is indefinite about it, he can ex- 1469 plain what his views really are. The Court: He has asked him to state whether or not those are his views. Now he can say they are or they are not. Answer. To which ruling of the court claimant then and there duly , excepted. A. I would want to have what precedes that. The Court: No, he asked you if those are your views. A. I have to know what: precedes and what follows that; it may be my views as far as that particular statement goes, but that view may not be the right view when [when] what comes before or after. : 1082 LEXINGTON MILL AND ELEVATOR OO. VS. U. S. OF A. The Court: That answer is sufficient; that enables the Gov- ernment now to bring the proof, he says no, that is equivalent to a denial. Judge Scarritt: I would like to except to that, being equiva- lent to a denial. The Court: What I mean by that, that will allow the Gov- ernment to bring forward the proof that he did say that. By Mr. Butler: (resuming) Q. As printed on page 252 of the transcript you are repre- sented as saying the following: “There is virtually no dif- ference between the bread making qualities of bleached flour and that of the unbleached flour. It is true that if you have flour made from new wheat and you are bleaching it, you season tha¢ flour and you put it in a condition so that it can be put op the market immediately, whereas if it is not bleached you are liable to have more or less trouble if you send it out on the market because the moisture of that unbleached flour still contains may be the cause of mustiness or mold because the fungi and mold grow very rapidly if you give them the right degree of moisture, whereas the aeriation process he!ps remove some moisture, dries out the flour, it removes the moisture to the extent of .14 of one per cent.” And the 1470 transcript represents Dr. Dunlap as asking you: “Out of a total of how much?” And represents you as an- swering about 12 per cent; and Dr. Dunlap is saying: “And that is sufficient to make a difference between that flour in which fungi would occur and one that would not produce them?” And represents you as answering: “Not that par- ticular evaporation, but it will continue evaporating after it goes into the sacks.” Did you so state? A. I think I nearly stated it in just about that way, yes. Q. Those are your views? A. Yes. Q. Flour treated by nitrogen peroxide gas will not con- tinue evaporating after it goes into the sack? A. It will continue evaporating, it will dry out but this aeriation is not due to the peroxide of nitrogen; that is due to good air; that takes out the moisture and immediately con- ditions it for the market in that way which of course means cheaper flour and cheaper bread. Q. Larger volume and better for consumer and better for baker? A. Well, the larger volume might not always take piace but it will be as large and even larger than the unbleached flour of fresh milled wheat, it would be larger. Q. How about corrosive sublimate, would that also destroy the mold and fungi if you put in enough corrosive sublimate in- to the flour? , LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1083 Judge Scarritt: We object to that. There is no conten- tion that there is any corrosive sublimate in this flour; we object to it for that reason, not a proper question on cross-ex- amination. The Court: He may answer. To which ruling of the court claimant then and there duly excepted. A. Why, corrosive sublimate will stop the growth of mold, but peroxide of nitrogen is excellent food for mold to grow on, peroxide of nitrogen, it is excellent food. Q. Would carbolic acid destroy the fungi and mold? Same objection. The Court: He may answer. To which ruling of the court claimant then and there duly excepted. Certainly it would. Would embalming fluid ordinarily used by undertakers? Same objection. The Court: He may answer. To which ruling of the court claimant then and there duly excepted. A. I think it would, yes, but peroxide don’t stop molds, they grow beautifully on that. Q. If peroxide is used to kill the vermin, the peroxide which is made by the Alsop process is used to kill vermin, the Mediter- ranian moth and other things ef that sort, about a mill, you think that vermin in four would thrive on it and would the nitrites of it be necevsary to life? A. Gas as made by the Alsop process would not kill any vermin, Q. You tried that on them, have you? A. I have aot tried it, but I know from the strength pres- ent— Q. Oh, you know ‘t? A. It would net have any effect on them. Q. You know that? So you know that Mr. Dennison who does use it only for the killing of vermin was not telling the truth? A. I did not recognize that he used it for that purpose— Counsel for claimant objected. The Court: That is objectionable. > Ph ey ¢ 1084 LEXINGTON MILL AND ELEVATOR 00. VS. U. S. OF A. Q. The American Miller, at page 886, represents you as say- ing: “The coloring matter of the flour is the one material that shows the great avidity for uniting of the gases which are used in bleaching. But the coloring matter is in such case and the amount required for the purpose of bleaching the flour is very minute. If an excess of the gas is used it will eventually com- bine with the other substances, primarily with the gluten, and finally with the oil until the flour is overbleached and ruined that action on these constitutents is sufficient to be de- 1472 tected by chemical or physical property.” Did you so state? A. I recognize stating that in the Industrial Chemical Journal. Q. But it represents your views, does it? A. Oh yes, yes sir. Q. That is all we care about. A. Well, what you are reading is always a copy of my orig- inal article which is published in the scientific paper, it is copied by these different journals; I did not publish in the trade journals. Q. At Washington before the Secretary at the hearing, did you say as represented by the-transcript at page 246 as fol- lows: “The yeast and also the process of preparing the bread removes the nitrites.” Judge Scarritt: Now, if your Honor please, we object to that and all similar questions, and to those that have gone be- fore of the same nature, for the reason that they are not dif- ferent from what the witness has already stated his views were. Mr. Butler: I am glad you made that point, because I want to remind you that this witness took his solemn oath in ques- tions framed to elicit the answer, by Mr. Elliott, that the flour or the bread did not contain nitrites. Judge Scarritt: That is what he says there. The Court: He may answer. To which ruling of the court claimant then and there duly excepted. (Question read.) A. I said that at that tine, because I.thought they were ni- trites, but I know now they are not nitrites but act like nitrites. Q. Did you further say on that occasion: “There is an ex- to that particular statement in so far as once in a while some of the bread contains minor numbers of nitrites but LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1085 they are [infinitisemal] they can not be grasped by the hu- 1473 man mind; the highest amount we have found is .25 of : one part per million nitrite nitrogen.” Did you so state A. I did not state that last, no, because I don’t understand what you mean. «y .25 of one part per million? A. Oh yes, .26 parts. Q. That is .25 parts is as much as you have had? A. At that time in 1908 about as much as I would find once in a while in bread of this nitrite reacting material. Q. Now, how much is in the air, that the human mind can not grasp, what is in the bread, how much is in the air now? A. I don't know, Dr. Marshall is the only man made those tests. Q. You have not tested that at Kansas City since you came here? A. No, I have not tested that. Q. We will come to that a little later. If there was one part in the billion in the air, could the human mind grasp it? A. Well, I think you could grasp that just as much as the twenty-five ten millionth of one per cent in bread. Q. If there was one part in the million, and you told us the truth when you say that flour in your room for 18 hours took a recoverable nitrite reacting material to the extent of 1.8; do you know how many cubic feet of air would have to through a kilogram of flour and give to it all of this nitrite making material in 18 hours to produce that? A. I never made that statement. Q. No. A. I never made that statement. Q. Yes. A. Yesterday. Q. But what was the statement, how much in your room did you get in 18 hours then? A. I have not assumed that there is; I said that was 18 hours room exposure, but I never said it took up 1.8 parts in the million. Q. Well, you said you did find four parts per million in your kitchen? A. I did say that, yes, sir. 1474 Q. Now by one part to the million how much air would have to be passed through that flour? A. You mean the same that you gave me, that problem re- cited one billion cubic feet to one, that is one cubic foot to one billion cubic feet. Q. Assume a kilogram of flour, say, how much would it take? A. Figure as NO2, 4 parts of a kilogram of flour, and figure that. Q. But you did not figure it as NO2, four parts in a kilo- gram of flour, you gave that to us in terms of nitrogen yes- terday? 1086 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. A. But I know what you gave me. Q. I withdraw the question then. A. That is what I am talking about. Q. And from my investigation, see if I can’t repeat it, if it takes 25 cubic centimeters uf NO2 to bleach the seized flour So as to produce 1.18 nitrite reacting material, computed as nitrogen, then to produce four parts of nitrite nitrogen, it would take 5514 cubic centimeters of NO2 to bleach the kilogram of flour, a little more than twice as much as that contained in 51. Now if there was one part to the billion in air, would it not take to effect the bleaching of the kilogram of that flour in your kitchen all of the nitrite producing ma- terial in one million three hundred thousand cubic feet of - air? A. Well, I would say I would have to go over those figures very carefully, but that does not at all correspond with the problem you gave me, and I think the one you gave me yester- day would be the one that we ought to confine it to, I would not attempt to answer it now. Q. And we will not wait. A. I will take those figures though, if you want me to, and report on them this afternoon. Q. If the air at Kansas City is found to contain 9%4 milligrams per million cubic feet, then it will take the NO2 or equivalent in two million six hundred thousand cubic feet of air to hold four parts per million of nitrite reacting ma- terial computed as nitrite in a kilogram of flour, is that not true? A. I don’t know, I would have to study those figures. 1475 Q. Well, all right, you may study them hereafter? A. My figures don’t correspond with yours either with the question you gave me, but I am ready to report on that right now if you want to. Q. Do you think it would be possible in 18 hours time to put—in your bed room—to put a quarter or a half a million cubic feet of air through a kilogram of flour? A. I should say not. Q. No, blow tlie hotel down, wouldn’t it, there would be a cyclone there, wouldn’t it? A. I don’t know what would happen. Q. In the patent, “Government’s Exhibit 1” it is stated among other things as follows: “The second analysis of the flour was conducted by the Henry Professor of Physics at Princeton University, and his assistant Professor, and it was found that while the untreated flour contained 54/1000 of a gram of nitrogen to one gram of flour, the treated flour con- tained 75,1000 of nitrogen to one gram of flour” In your analysis of bleached flours did you ever get any such result? LEXINGTON MILL AND ELEVATOR CO. vs. U. 8. OF A. 1087 A. Most certainly not. Q. That statement can not be true chemically, can it? A. It is not true, sir. Q. In order to do that this flour would have to be treated with sixty-six thousand parts of NO2, would it not, per gram? A. I don’t know, I would have to go over that. Q. Never figured it out, I suppose you could do that for us? A. I could. Q. Is the statement in this patent to the effect that it in- creases the water true, in flour? A. I should say not. Q. Is it true that it increases the food value, the nutritive value? A. No, it does not. Q. It does not. Is it true when it says it bleaches it, that NO2 bleaches it? . No, I don’t think NO2 bleaches it. Not true in that regard? A. No, sir. Q. Is it true when it says that process bleaches it? A. The process bleaches it, yes. Q. Is it true when it says gases bleaches it? The gases I think generate— The gases generated by the flaming arc bleaches it, does it? A. Yes, some gas generated by the flaming arc bleaches it. Q. Is it true when it says it bleaches it dead white? A. Well, I don’t know what you mean by dead white. Q. You couldn’t tell what dead white means? A. No, I seen so many dead people, I don’t know what dead white is. Q. You don’t know what dead white is? A. I knew what chalky white is; I don’t know what dead white means, because I seen too many different colors in dead people. Q. I see. Did you know Mr. Alsop? A. Never met him. Q. You know Mr. Mitchell? A. Yes, sir, very well. Q. You didn’t have anything to do with preparing these patent specifications? A. No, I didn’t know anything about that at that time at all. Q. Is there any ammonia gas in air? iN Sati Ens he 1120 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. flour, are not changed. Of course, by passing flour through an agitator, and air coming in contact with the flour, a certain amount of moisture is eliminated, but that is not a change in any constituent of the flour. That is simply taking out some of the water. The only change is in the coloring matter, in that flour. Q. And in naturally aged flour, does the same change occur? A. The same change takes place,—loss of water, and the change in the coloring matter, which is a change, of course, in one of the constituents of the flour. Q. I have understood from those quotations and excerpts from remarks, or testimony you have given, that you are on record as stating that bleaching produces the same change that aging does. I will ask you if that is your present opinion. Mr. Butler: We object to Mr. Elliott's recital of his inter- pretation and understanding of the proof, and we object — to that question particularly because it is leading. The Court: Well, it is leading, but, nevertheless, he may answer, (Last question read by the reporter) A. It is my present opinion. By Mr. Elliott: Q. Now, Mr. Butler has interrogated you in reference to this flour that was exposed in your kitchen, and as to the possible volume of air that was used, or that would be necessary 1518 to be brought in contact with that flour, to produce four parts per million of nitrite nitrogen. IT want to ask you how long did you expose that flour in your kitchen, A. That one was exposed about two weeks. Two weeks, and other flours that I have exposed for twenty-four hours, have taken up as high as one part nitrite nitrogen in a million. Q. You were asked about ammonium nitrite. I will ask you if, in your opinion, there is any ammonium nitrite in flour. A. Not as far as I know. Q. Is ammonium nitrite a volatile substance, easily volatile, or not? A. No, it is not very easily volatile. It is a solid, at a low temperature, and a liquid at other temperatures, I believe. Q. Now, I understand from Mr. Butler, he has been trying to bring out by you and other witnesses that this process: in- troduces a poison into flour. Now, I will just ask you to assume that it does, and, on that assumption, I will ask you if, in your opinion, nature, on exposure of the flour to air, would introduce the same substance into the flour. D RAT a, Ree Oe ts bs LEXINGTON MILL AND ELEVATOR CO. VS. U.S. OF A. 1121 A. It certainly would do that, or does do that. Q. You have also been interrogated at length in reference to the presence of poisons, in this N203 material, in the gas of the Alsop machine. I will ask you if it is a fact, well known in chemistry, that two substances may be together in what is called a state of dissociation. That is well known, is it? A. Yes, sir. Q. Take this nitrous acid gas. I will ask you if that has ever been isolated, as such. A. Not to my knowledge. Q. Now, I want to ask you to further assume that the air passing through this Alsop machine, and treated by this electric discharge, is, or contains a poisonous gas. Just as- sume that. Does that fact have any bearing on the poisonous character of any compound or substance which may be found in the flour, as result of treatment with that gas? 1519 A. It would not have any bearing on any substance or compound formed in the flour with this particular gas, by the Alsop machine. Q. Chemically speaking, would it be possible to take a perfectly harmless gas, and treat this flour with it, and pro- duce poisonous compounds in it, on dissociation occurring? A. Well, I don’t know whether that would be possible or not. It might be. Q. I just say chemically,—theoretieally. A. Yes, I would not say it would not be? Q. Theoretically? A. I would not say it might not be possible. It might be. Q. And theoretically, it would be possible to take a poison- ous gas, and have compounds from it, that were perfectly harm- less, would it not? A. Absolutely so, yes, sir. Mr. Elliott: I believe that is all. Recross Examination By Mr. Butler: Q. What harmless gas will poison flour? A. I do not know of any, right off-hand. Q. What poisonous gas will not poison flour? A. Well, N208. Q. That is a poisonous gas? A. That is, in sufficient concentration, it is a poisonous gas, but, in mild concentration it is not that. That would produce a harmless compound. Q. What other poisonous gases will not poison flour? A. Well, chlorine gas, in concentration, is a poisonous gas, but, in a diluted condition, it would not be a poisonous gas, 3533-3534 SHINN TOR RCIY TOS PANY HIRE ST CORSETS RD THIELE TR OTE Na 1122 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8S. OF A. and that, however, would also make a harmless compound with the coloring matter of the flour. Q. Can you name a poisonous gas that will poison flour? A. I cannot, no. 1520 Q. So, no poisonous gas will poison flour, but harm- less gases will poison flour, but you cannot think of which harmless gas will do it. Is that a fair statement of your testimony? A. No, I do not think that is a fair statement. Mr. Elliott: I understood him to say he could not name one, on the moment. Mr. Butler: Well, that is what I say. Q. What is the name of the enzyme in yeast, which reduces nitrates to nitrites? A. I do not know as that enzyme has ever been named, but Professor Buckner, a German scientist, has extracted an enzyme which will convert sugar into alcohol, and carbon dioxide, without any live yeast cell figuring on the reaction. Mr. Butler: I move to strike out the answer as not Tre- sponsive. The Court: Yes. That is not responsive. By Mr. Butler: Q. Do you know the name of the enzyme which you say will reduce nitrates to nitrites? A. I do not know the name, but I know it is the enzyme in the yeast that does it. Q. Can you cite me to any authority which says that en- zymes in the yeast change nitrates to nitrites. I mean, any published text book, or work. I do not mean anything that some of these witnesses have gotten up, to advertise bleached flour. A. I am the authority on that statement. Q. You are the only authority known? A. Yes. I can prove it to you, right here. Q. I propose to take your word for it, if you say you are the only living man who knows that. A. I do not say I am the only living man, but IT am one of the authorities, because I have proved it myself. Q. All right. State in detail your proof, scientifically, chemically, now, so that any chemist will know it, so we will have another addition to the chemical learning of the world. 1521 A. Thank you. Q. To put along-side of the discoveries of the new kind of terpene. eae 4 SALAS I ee NRE 7 PND PLAT LID TY AMBER ER OER LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1123 A. Thank you. You are very complimentary, and I as- sure you I appreciate it. If you take the live yeast cell, and grow it upon nitrates, it would reduce them to nitrites. If you take that same live yeast cell, and stop its growth, with chloroform, and add nitrates in there, the cell does not develop any nitrites. It stops. The enzyme in that yeast cell will change the nitrates to nitrites. That is pretty good proof. Q. And the same cell will change, and will destroy the ni- trites? A. If the cell is alive, it will eat up the nitrites, or destroy them. 1 think they feed on them. Q. That is, this cell eats nitrites? A. I think it is good food for the yeast cell. Q. Is there any authority that you know of, aside from yourself, which says that nitrites are, as such, consumed by the yeast cell? A. Well, I think if you will take the culture media, prob- ably, of Louis Pasteur, you will find that the way he fed his yeast cells— Mr. Butler: (Interrupting) I move to strike that out as not responsive to the question. e The Court: No. Answer the question, please. A. (Continuing) I do not know whether Louis Pasteur said, as such, that the nitrites—or, said in so many words, that nitrites were food for the veast, but I know he has fed mix- tures of that kind, for yeast. Mr. Butler: Wait a moment. I move to strike out the an- swer, as not responsive. Mr. Scarritt: I object to it being stricken out, if Your Honor please, because it is responsive. The Court: Well, now Doctor, go on and make your 1522. own explanation, and then go back to the question which, to me, is a very simple one. John Smith, or Richard Roe, wrote such a book, or nobody did. John Smith, or Richard Roe is an authority for that, or they are not. Mr. Searritt: Or somebody demonstrated it. The Court: No, that is not the question. Some man liv- ing, or dead is or is not an authority. Mr. Scarritt: Well, the question is unfair, then, if it does not include that, in the answer. The Court: Well, let him say he cannot answer it. A. (Continuing) T cannot say, in just so many words, just now, Whether he did that exact thing, that yeast would live of LEOGRLINA NL EN INTESTINE MY IE RO SA —— > The Court: Sir? A. I never advertise; the goods is all the advertising I have. 1146 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. By Mr. Butler: Q. Do you, yourself, handle the dough, now? A. I look after it, a great deal. I do not work in it, at all. Q. You do not work in it at all? A. No. Q. How long since you ceased to? A. Oh, I worked in it, now and then, but I don’t make a: hand, in the shops. Sometimes a man is sick, and I work, Q. I mean, regularly. How long since you worked regular- ly? A. About ten years, . What was your daily output, ten years ago? I could not remember. About. A. I think in the neighborhood of about 500 loaves of bread. Q. And it is about 2000 now? No sir, you asked me my capacity. Oh. No, sir; my trade now is light. A little light. . About how many loaves? . Somewhere in the neighborhood of 700 a day. In the winter, about 1000 to 1100. I have a hot bread proposition. I sell more in cold weather than I do in hot. Q. Hot bread? A. Yes. I sell a good deal of hot bread. I bake often. Q. You never were in a flour bin filled with bleached flour, were you? A. Which? Q. Were you ever in a flour bin that was filled with bleached flour? A. No. Q. So, you do not know how the bin containing the bleached flour smells? A. No, I do not know anything about it. I run it through a sieve and mix it through a mixer, and it raises a big dust, and it looks like if there is any smell there, I would get it. Mr. Butler: That is all. Redirect Examination By Mr. Elliott: Q. Mr. Vodrie, I understood you to say, in answer to Mr. Butler’s question, that you sell a good deal of hot bread? A. Yes. . Q. I will ask you if you have ever had any complaints from any source from your hot bread having a bad odor? A. No. Mr. Butler: Just a moment. We will object to that as hearsay, and as incompetent, irrelevant and immaterial. I have not understood, and I will not repeat the objec- 1553 tions, if the Court has indicated this position, but I have not understood that it has been ruled in this case LEXINGTON MILL AND ELEVATOR CO. V8. U. 8. OF A. 1147 that these dealers or brokers in flour may testify to what their customers say about it. Mr. Elliott: I will withdraw the question, The Court: Very well. By Mr. Elliott: Q. I will ask you if such hot bread has any unpleasant odor? A. None, Reeross Examination By Mr. Butler: Q. Do you think bleaching improves the odor? A. Odor? I do not see that it has any odor about it, either bleached or unbleached, Q. You never detected any odor in any bread, from flour bleached or unbleached? A. Well, when the dough is in bad shape, I have. Q. But I mean good bread? A. No, I did not, any unpleasant odor, Q. So, you say the bread hot or cold has no odor, if it is made either from bleached or unbleached? A. It has a smell, as a matter of course, but not a bad odor. Q. Now, does the bleaching of flour improve the smell? A. I would not think it would. Q. I wouldn’t, either. A. No, I do not think it would. Witness Excused. 1554 Frank Earl Roth, called as a witness on behalf of the claimants, being first duly sworn, was examined, and testified as follows: Direct Examination By Mr. Elliott: Q. Mr. Roth, please state your full name. A. Frank Ear! Roth. Q. Where is your residence? A. Lincoln. Q. What is your occupation? A. Secretary and Manager of the Cootch Milling & Ele- vator Company. And where is that located? A. Lincoln, Nebraska. What is the capacity of your mill? 300 barrels. We are now remodeling to make it 700. Do sou use an Alsop bleacher in that mill? Yes, sir. How long have you been using it? Since we started, nineteen months, Nineteen months? A. Yes, sir. That is, when the mill was started? A. Yes, sir. POPOPOPOO 1148 LEXINGTON MILL AND ELEVATOR CO. VS, U. 8. OF A. Q. Have you, since the machine was installed, had to make any change of the piping, at all? A. No, sir. Q. Or have you made any such change? A. No, sir. Q. Do you still bleach your flour? Are you bleaching it now? A. We did, up to the time we shut down to remodel. Q. Now, I will ask you why you bleach your flour. Mr. Butler: That is objected to as irrelevant and imma- terial. The Court: He may answer. A. We bleach it because the trade demands flour that will make white bread, and because it enables us to put our flour on the market, aged, rather than to leave it in the mill, un- bleached, until it ages properly to make white bread. 1555 The Court: Well, then, you simply do that to save time over natural bleaching; is that it? Yes, sir. . Scarritt: Time and money? Time and aging. By Mr. Elliott: Q. You are not, yourself, a practical miller? A. No, sir. Q. You are the Secretary and Manager of this mill? A. Yes, sir. Q. Now, have you a sample of the bread made from the flour you grind, bleached and unbleached? A. Yes, sir. Q. I hand you Exhibit 243 and 244 and ask you to state what they are. A. Exhibit 243 is bread made out of unbleached flour, and Exhibit 244 is bread made out of bleached flour. Q. Made out of the same flour? A. Both made out of the same kind of wheat, from the mill, one taken before the bleacher, and one taken after the bleacher, made a little over a week ago. ( Where were those loaves made? A. At the Southwestern Flour Testing Laboratories in the Exchange Building, at Kansas City. Q. And by whom, if you know? A. Mr. Esterbrook. Mr. Butler: Who made that bread? A. Mr. Esterbrook. Mr. Butier: Here in Kansas City? A. Yes, sir. LEXINGTON MILL AND ELEVATOR OO. V8. U. 8S. OF A. 1149 By Mr. Elliott: Q. Exhibit No. 244 is, you say— A. (Interrupting) This is the bleached flour, and this is the unbleached flour. Q. 243 is the unbleached? POPOLOOD - Direct Examination By Mr. Elliott: State your full name. Alva Edgecomb. Where do you live, Mr. Edgecomb? A. Omaha. What is your business? A. Milling. In what capacity are you now engaged in business? Manager and Secretary of the Updike Milling Company. And where is that company located? A. Omaha. Are you a practical miller? A. Yes, sir. How long have you been engaged in milling? A. 30 years. Q. What is the capacity of the mill of the Updike Milling Company? A. 500 barrels. A day? A. Yes, sir. 500 barrels per day. Does [you] mill use an Alsop bleacher? A. Yes, sir. Q. How long have you been using it? A. It will be three years in October. eo 3 pLeEPeLOPES 1160 LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A. Q. Have you, yourself, had experience with that Alsop bleacher? A. Yes, sir. Q. Have you had experience with it in any other mills than the Updike Milling Company? A. At two other points. Q. State what others, and how long. A. We had about two years, at Missouri Valley, Iowa, and about six months at Logan, Iowa, and the rest at Missouri Valley. The Court: You mean the rest in Omaha? A. Yes, sir. The Court: You said Missouri Valley. By Mr. Elliott: Q. Now, I will ask you to tell us what, in your judgment, is the effect on flour of bleaching it. A. It whitens it in color, and ages the flour. Q. And what? A. Ages the flour. Q. Now, tell us what you mean by “ages the flour”. A. I mean that, before the use of the Alsop bleacher, we always carried large stocks of flour in the storehouse— Mr. Butler: I object to that as not responsive to the ques- tion and move to strike it out. The Court: That is not responsive, and is stricken out. Mr. Butler: We do not need to talk about Alsop bleachers, telling what aging is. By Mr. Elliott: Q. What do you mean by aging flour? A. I mean that flour is better by having some age 1571 on it, between the time of milling and the time it is baked. Q. Now, suppose you bleach flour from new wheat, how does that flour compare with the same flour, if you should let it age, for 30 to 60 or 90 days? Mr. Butler: Justa moment. It seems to me that is drawing a false issue. It is not new wheat flour. ‘ Mr. Elliott: Why, you have put witness after witness on to tell about that. The Court: He may answer it. A. The new wheat flour, bleached, is, to all appearances, and to all practical purposes, aged at least 60 days. LEXINGTON MILL AND ELEVATOR OO. V8. U. 8. OF A. 1161 Q. I will ask you to answer that, in terms of quality. Do you mean by that that it possesses the characteristics of flour that has been aged that long, or what? A. I mean that it possesses all the qualities of aged flour. Q. Now, how do you know that? Tell us how you know that? A. I know it from experience, and from the fact that we are able to hold our trade with flour, particularly from-— Mr. Butler: (Interrupting) I move to strike out his hold- ing his trade. The Court: That is stricken out. By Mr. Elliott: Q. Now, you can answer my question. I asked you, how do you know ‘that this flour possesses the characteristics of naturally aged flour? Upon what do you base that opinion? A. Do I understand that my answer was stricken out? Mr. Scarritt: Only part of it. Mr. Butler: That part relating to his trade was stricken out. By Mr. Elliott: Q. Is there anything in your experience that will enable you to tell us how you know that? 1572 A. By the baker’s test. Q. Now tell us how that is. A. We keep continually someone in our employ, who is bak- ing our flour, at least twice a week. And on the baking test, we rely largely for results. . Q_ I will ask you if you have ever had experience in de- livering, or giving bleached flour and unbleached flour to bak- ers? A. Yes, sir. Q. And if there has been any difference in the way that flour has been received by any bakers, you can tell what it is. Mr. Butler: Wait a moment. I have understood it to be indicated that we could not go into what the customers said. The Court: One of the issues in this case is, not whether the customers are satisfied, so much, because it is charged that customers are satisfied by fraudulent methods, to-wit, in the language of the statute: “If it be mixed, colored, stained, and so forth, in a manner whereby damage or inferiority is con- cealed’”’, is one of the things charged, and, secondly, where a poisonous ingredient has been inserted; so that the customer, the bread eater—not the bread seller, may be deceived; in- feriority may be concealed. That is one of the very issues. A man might hold his trade, and his bakers be absolutely Saha Seed ex eeen om 24 1162 LEXINGTON MILL AND ELEVATOR CO. VS. U. S. OF A. satisfied, but it would be in contravention of the Pure Food law, if they are satisfied, because they have been deceived, and inferiority is concealed, just as I may get a coat, suppos- ing it to be a Scotch import, and be perfectly satisfied with it, but, upon analysis or investigation, it might be American shoddy. So, how can you make that the test, Mr, Elliott? I have been satisfied with the bread I was eating, if I knew nothing about the bleached flour process. The inferiority may have been concealed from the ordinary housewife or servant, or purchaser for the family. They may be perfectly 1573 satisfied, but, if inferiority is concealed, or the poison injected, is it not in violation of the Pure Food Law, precisely as my ham that I buy may be loaded with preserva- tives, or maple sugar that I buy may smell and taste to me like maple sugar, but an analysis may show that it is made out of brown sugar, and yet, the purchaser in the one case is entirely satisfied. So, how are you going to get at it in that way? Mr. Butler; Let me suggest the further point that it is merest conclusion and hearsay. The Court: I was simply saying, now, that in my judgment, it is not the test, to show by the miller, or by the baker that, because— Mr. Scarritt: (Interrupting) If vour Honor please, we cer- tainly must be permitted to object and except to the state- ments made by the Court at this time. The Court: You may take exception, but nevertheless, I will make my statement, just as I understand the law that, if it comes within either of these provisions of this statute, then this is contraband. Otherwise, it is not. I mean the two issues that I am now dealing with. There are two other is- sues. “If it be mixed, colored, powdered, coated, or stained, in any manner whereby damage or inferiority is concealed”, then it is contraband, and in violation of the Pure Food Law, under which this trial is progressing. Mr. Scarritt: Now, let me suggest on that— The Court: All right. Now, you go on and talk, Judge, and then I will go on. Mr. Scarritt: I do not want to talk. I just want to sug- gest that this is one of the ways that your Honor has sug- gested, two or three times in this trial, that it goes to the question of the weight of the testimony, and not the 1574 admissibility of it, because it is one of the ways to .. determine whether there is inferiority there. People do not generally accept and take inferior things, without mak- LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. Or A. 1163 ing some protest or kick, and this goes to that extent, to show ~ that it is not inferior, that there is nothing concealed, that the superiority of the product is revealed, and not concealed. ae shee neey is satisfied with a certain thing, and so express ~ themselves, either en masse, or as individuals, why that is ' testimony going to show that that article, or whatever it is, _. that meets the public approval, is a superior article, and not an inferior article. | Mr. Butler: The point is this: If the baker is satisfied with _ it, let us have him here, and we will ask him. If the house- _ wife is satisfied, bring her here, and we will ask her. But, to have a man who is a miller testify by mere hearsay that it does so-and-so, does not appear to me to prove anything. Mr. Scarritt: Is not the chain complete? The miller af- fords to the dealer what the dealer necessarily requires for the public consumption, _ __Mr. Butler: No miller can testify that I am satisfied or ~~ dissatisfied as to the flour, without hearsay. Mr. Scarritt: Yes, he can. It is a matter of notoriety. Mr. Butler: The miller might want to cheat the person who buys the loaf of bread, and he may want the bleached flour, and still [pray] for it. The Court: Just a moment, gentlemen. Here is what I - am trying to get at: I have not expressed any views in this case, and do not intend to, as yet, at least, as to what the evidence tends to show: I mention that, in answer to the criticism of Judge Scarritt, but sometime, sooner or ‘1575 later, you have got to get to the issues here, as pre- ! sented by the statute, two of which issues are: “If 7’, in this case meaning flour, “be mixed, colored, powdered, coat- _ ed, or stained, in a manner whereby damage or inferiority is _ concealed” ; if the verdict is solely under that, one result fol- + lows. Another issue that ‘will be submitted to the jury later > on, is: “If it”,—meaning flour—“containing any added poison- _ ous or other added deleterious ingredient which May render -- such article injurious to health.” Now, then, take it under _ the first one, particularly. Let me illustrate. I may buy or -_ order at the cigar store a Havanna cigar, sold to me as a _ Havanna cigar. I may think it is the finest cigar I have ever es in my life, but it turns out that it was native growth to- cco, one inferior to the other. Mr. Scarritt: Not necessarily. The Court: Now, Judge, I would like a good deal if I could talk once without interruption. 1164 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. Mr. Scarritt: All right; I beg your pardon, your Honor. The Court: I may be satisfied in any supposed. case—I don’t care what you take—I may be satisfied, and yet if the inferiority has been concealed, then it is a fraud, and much like all frauds, the fraud is concealed, otherwise the man would not purchase it. The horse with the heaves or other disorder, is concealed from me; I buy him, would not buy him, but for the concealment of the fraud. Now, the point I am getting at here, is it for the miller to say that the trade is satisfied? That is what I am getting at. The trade may be or may not be satisfied by the very concealment of the inferiority. I am not saying it is inferior. Later on that will be submitted to the jury, whether new wheat flour, concealed as old flour, sweated in the sack, sweated in the bin, gone through 1576 the natural processes, if that is inferior, if that in- feriority is concealed by the process, then, is it not in violation of this statute? ' Mr. Scarritt: We must object and except in the same way, your Honor. The Court: Sir? Mr. Scarritt: I say, we must object and except, as we did before, to the remarks of the Court at this time. The Court: Which particular remark? Mr. Scarritt: The remarks with reference to— The Court: (Interrupting) My reading the statute? Mr. Scarritt: Reading the statute, and making the argu- ment on this proposition. aan The Court: Very well. I repeat, I have not expressed my views about the evidence in this case. Mr. Scarritt: In this view, your Honor. Your Honor has said we must all keep our minds free from any conclusion, un- til we get through. The Court: Yes, sir. Mr. Searritt: I think it is perfectly right. The Court: Yes, sir. I have not expressed it, but I am trying to get back, because, sooner or later, this case is going to be submitted to the jury under the provisions of the statute, to which I will draw specific attention, If inferiority is con- cealed by the bleaching process, then what follows? If a poi- sonous gas—if it is poisonous—was injected in this flour, and the flour is made white, then, if that is harmful, and so forth, in _ & LEXINGTON MILL AND ELEVATOR 00. vs. U.8. OF A. 1165 ‘the language of the statute, then what? Now, I see you gen- ‘tlemen are all anxious to make a speech and I am not anxious to hear you this evening. Court is adjourned until tomorrow morning. (Thereupon Court was adjourned until ten o’clock a. m. Wednesday, June 22nd, 1910.) 1577 Volume 3. Pursuant to adjournment, Court met at ten o'clock a. m., Wednesday, June 22, 1910, and proceeded with the trial of said cause further as follows: The Court: When we adjourned last evening, we were talk- ing about certain matters. I do not know whether there was anything further counsel desired to say about that, or not. If there is, I will hear you, briefly. Mr. Elliott: If your Honor please, I do not want to weary you with this talk, but I merely want to make this observation, because I think my question was not understood. As I un- derstand it, Mr. Butler has been endeavoring to show that, if a new flour is bleached—that is, flour from new wheat we will say, is bleached, and whitened in color, and, if it possesses, notwithstanding the bleaching, all the properties of a new flour, and is unworkable, a person might buy that flour, think- ing it was a naturally aged flour, and it had the properties of a natural aged flour, and be deceived. Well now let us pass that for a minute. Now, I have been endeavoring to show by this witness that, in his judgment, flour from a new wheat that is bleached, not only is lightened in color, but that its quality is improved, and that it is aged and conditioned. That is what he testified. Now, it seems to me it is germane to that, to show the difference in the way flour hag been received by his customers, whether it was bleached or unbleached. The Court: Who do you mean by customers? Mr. Elliott: The man he has sold it to—the baker, for in- stance. If he has sold them flour, bleached and unbleached, has there been any difference in the way they have been re- ceived, and if so, what? That is what I have been trying to bring out. Mr. Butler: The last question is: “If there has been any difference in the way that flour has been received, by any bak- er, you can state what it is”. Now, maybe the baker 1578 paid less for it than he would have paid if it had been aS naturally aged flour. Maybe it is a matter of adjust- ent, commercial considerations, and in any event, it is purely a) for him to testify as to the states of mind of a baker, 1166 LEXINGTON MILL AND ELEVATOR OO. VS. U.S. OF A. as to this. Let the bakers tell how this flour does. Let them say what kind of bread it makes. It is not for a miller to get off, in sweeping remarks, that it gives satisfaction to bakers, or somebody else. Let somebody else who has used it, who knows, say and some one we can cross-examine. It won’t do to bring witnesses here, who do not know anything and let him give their conclusions, that we cannot cross-examine- ~matters of hearsay. That might do in a town meeting, but it won’t do to try a law suit that way. The Court: Now, let me say a few things. No one doubts the importance of these matters, and I am not speaking only of the present question. So far as that one question is concerned, it may or may not be pivotal, but, on the 30 day of June, 1906, four years ago, congress, with the approval of President Roose- velt, carried this measure forward into a statute known as the Pure Food and Drugs Act. That is the statute under which we are proceeding and under which this trial is being conducted. That congress had the authority and power to so enact, I have already adjudicated in another forum,:in part, the same parties, perhaps, and, in part, independent parties, but I have an abiding conviction on that question, as expressed in my opinion. I am not speaking as to the reasons for my opinion, but the conclusions. I could better that opinion, I think, if I had the time in which to do it, but I have seen no reason whatever to modify my conclusions as to an interstate shipment like this, from Lexington, Nebraska, to Castle, or Greencastle, or whatever it may be, in Missouri, being an in- terstate shipment, gives this court jurisdiction to hear and de- termine the question as to the particular flour now under seizure. This pure food statute seems to me is for the benefit of the consumer, in this case the bread eater, which comprises the entire human family. This statute is not for the 1579 benefit of the baker, or the middleman, nor for the miller, nor for the wheat grower. It is for you, and it is for me, and every one else who eats bread, and probably we all do, three times a day, and, quite likely, that is true of the entire human family. Now, this statute is divided into three grand divisions. One is with reference to drugs and medicines, in which a distinct, specific test is made. With that, we are rot now dealing. The second division is with reference to con- fectionery eaten, perhaps, by all children and quite a percentage of adults. That fixes a specific test in not what the confec- tionary shall contain, but what the confectionery shall not contain. The third and last division, being the one under which we are now proceeding, is with reference to food stuffs, including flour made up into bread, pastry, and so on. Most obviously there could be no specific test made with reference , LEXINGTON MILL AND ELEVATOR OO. VS. U.S. OF A. 1167 - to foods, and the more one thinks about that, the more strongly it grows on him, and it necessarily follows that congress was - compelled to use some general terms in the statute. One is with reference to misbranding. To that, for the present, I shall not allude. But this statute refers in this way, aside from the interstate shipment proposition, which is a question of law “That, for the purpose of this [set], an article shall be deemed to be adulterated”, passing by drugs and confectionery, “in the case of food, first if any substance has been mixed and packed with it, so as to reduce or lower, or injuriously affect its quality or strength.” The pleadings under that clause, present an issue that is now being tried. Passing by the second and third, as not being germane to any inquiry here, the fourth “If it be mixed”—it meaning flour—“colored, powdered, coated, or”’—disjunctive “or”’—“stained, in a man- ner whereby damage or inferiority is concealed.” Now, under that, these pleadings present a distinct issue. Fifth “If it” meaning flour, in this case—“Contain any added poisonous, or other added deleterious ingredient, which may render 1580 such article injurious to health.” Now, there are the four issues we are trying. First, with reference to mis- branding, that I have passed to one side for the time being. Here are the other, three. Mr. Scarritt: Is Your Honor charging the jury, now? The Court: No, sir. I am giving my reasons, being an ex planation of my ruling. Why that question, Judge, I do not understand. Mr. Scarritt: Well, it seems to me it does not appertain to the ruling, as to whether these bakers shall testify as to what effect this flour has. They are part of the community. You cannot exclude them as a part of the community. They are consumers, a8 well as purchasers. The Court: My belief is, this statute is for the benefit and ' protection of consumers. Mr. Scarritt: I agree with you, and they are consumers. We are all consumers, but it seems to me it is unnecessary at this time, if Your Honor please, with all due regard and respect for Your Honor, I have, to go over the whole ground of this pure food law. That is what occurs to me. It is anticipating the charge to the jury. I say that, because I think that it is my - duty to say it in the interest of my clients. The Court: I was trying to analyze the issues, and what __ leads up to it. ‘% Mr. Scarritt: I understand, Your Honor. 1168 LEXINGTON MILL AND ELEVATOR CO. YS. U. 8S. OF A. The Court: Now, there are two theories here with reference to the poison. One, by the government, and one by the defend- ant, concerning which I now have nothing to say, but will, later on, in my charge to the jury. But the question now before the court goes to clause four, which I repeat “If it”—meaning flour in this case—“be mixed, colored, powdered, coated, or stained, in a manner whereby damage or inferiority is concealed.” Con- cealed from whom? That is the ultimate question that I am to charge this jury concerning. Now, any evidence on 1581 the part of the government that tended to show that in- feriority of flour is concealed by the bleaching process, was admissible. Any evidence tending to show that inferiority of flour is not concealed by the bleaching process, is legitimate evidence for the claimants to offer. Now, I am not saying but what you can take it, step by step, and show that the baker is not deceived, or that the inferiority, if there is an inferiority— and that is a question of fact for the jury—I ami not saying but that you can show by the baker that the inferiority, if any, is not concealed from him, the baker. The question is, is that enough? I am not now saying. I will cover that in my final charge to the jury. I am not charging the jury here, at all, yet. I am giving the reasons for the analysis I have made in my own mind, of this statute. Therefore, I think you can take, and, step at a time, show that, if there is any inferiority, that such inferiority is not concealed from the baker, but the ques- tion remains, will that be enough? I shall wait for further arguments on that. But I have no doubt in my own mind, at this time, subject to any change of opinion, about it, that this ‘statute is for the benefit of the consumer. Therefore, I will allow this question to be answered. Mr. Scarritt: If Your Honor please, we desire to except to the remarks of the court in making the ruling on this ques- tion, and save our exceptions. The Court: Very well. The witness Edgecomb thereupon resumed the stand and the direct examination by Mr. Elliott was continued as follows: Q. I will ask you this question. Suppose you bleach flour from new wheat, how does that flour compare with the same flour, if you should naturally age it? Mr. Butler: That was not the question pending. Mr. Elliott: Oh, no. 1582 Mr. Butler: Have you withdrawn the question pend- ing? Mr. Elliott: Not at all. LEXINGTON MILL AND ELEVATOR O00. V8. U.8. OF A. 1169 _ Q. Then, I asked you if you had had any experience in de- livering or selling unbleached flour and bleached flour to bakers, and you said you had. Mr. Butler: What is this recital for? To help the witness? Mr. Elliott: No, I just wanted to get the matter clear. Q. Then, I asked you, if there has been any difference in the way that such flour has been received by any bakers, you ean state what it is. A. Ido not know as I exactly understand the question. Q. In your experience as a miller, have yor sold bleached and unbleached flours to bakers? A. Yes, sir. Q. Now, has there been any difference in the way such fiours have been received by the bakers? A. Yes, sir. Q. Now, you may state what that is. A. The bakers want the bleached flour. Mr. Butler: I move to strike that out as giving his con- clusion, and hearsay. - The Court: Well, it may stand. By Mr. Elliott: Q. On what do you found that statement? A. In their purchases, they specify that they want the flour bleached. Q. I will ask you what benefits, Mr. Edgecomb, do you de- rive—I do not mean financially,—what benefits do you derive from bleaching that flour, as to improving it or otherwise? Mr. Butler: Objected to as irrelevant and immateriaf. The Court: You may answer. Mr. Butler: We except. A. We get a good deal better color by bleaching, and we age it by bleaching. By Mr. Elliott: Q. Can you conceal the impurities in flour, if there be 1583 any in it? Can you conceal the impurities in flour by bleaching it? A. No, sir. Q. Suppose a miller should bleach a flour coniaining im- purities, and add such flour to his high grade flour. What ef- fect would that have on the latter? A. It would lower the grade. Q. Now, in your judgment, could a miller profit by euch a proceeding? 74—3533-3534 1170 LEXINGTON MILL AND ELEVATOR OO. VS. U. S. OF A. Mr. Butler: Objected to as immaterial. Are we going to try the economics and all the arts of the craft? If you can- not make profits by it, does that make adulterations, and if you can make profits, does that change the effect? Mr. Elliott: I withdraw it. The Court: The question is withdrawn. By Mr. Elliott: Q. Mr. Edgecomb, I will ask you if you have ever noticed any foreign or unnatural odor in flour that has been bleached by the Alsop process. A. No, sir. Q. Have you ever compared bread made from bleached and unbleached flour, to ascertain if there was any difference in the odor, and taste, or flavor? A. Yes, sir. Q. What is your opinion in that respect? A. I don’t detect any difference. By Mr. Butler: Q. What? A. I don’t detect any difference. By Mr. Elliott: Q. Any difference in the smell or the taste? A. No, sir. Q. Have you ever had any dough balls in your mill, Mr. Edgecomb? A. No, sir. The Court: I suppose you mean in the flour? Mr. Elliott: In the process of manufacturing flour, I mean. Q. Have you ever had any dough balls in any of the ap- paratus? A. No, sir. 1584 Q Do you use bleached flour in your own family, Mr. Edgecomb? A. Yes, sir. Q. I will ask you over what period of time you have been using bleached flour in your family. A. Between five and six years. Q. During that time, I will ask you if there has been any sickness in your family from eating such bread. Mr. Butler: Objected to as calling for his conclusion, im- materia’. He has not shown himself a diagnostician. The Court: Caused by eating this bread? Mr. Butler: (continuing) Or pharmacologist. Mr. Scarritt: That is what he said. If he knows. The Court: He may answer, Mr. Elliott: If he knows. A. No, sir. LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A. 1171 Cross-Examination By Mr. Butler: Q. Well, have they had some sickness, from anything else, Mr. Edgecomb, during that period? Mr. Elliott: I beg your pardon. I wanted to introduce some samples with this witness, which I forgot. Redirect Examination By Mr. Elliott: Q. Have you some samples of bread with you, Mr. Edge- comb? A. Yes, sir. (Witness produces the samples.) The samples produced by the witness were here marked by the reporter “Claimants’ Exhibit 247” and “248”. By Mr. Elliott: Q. I hand you two loaves of bread, marked “Claimants’ Exhibit 247” and “248”, and ask you to state from what flours these loaves were made, and by whom. They were made by the Updike Milling Company. That is, the flour? A. The flour. Did you bring the flour here? A. Yes, sir. To whom did you give it? A. To Mr. Ballinger. Q. You mean Br. Billings? A. Billings. Q. What instructions, if any, did you give Mr. Bill- ings? A. I instructed him to bake them separately. Mr. Butler: Well, I will object to his instructions to Bill- ings, a8 immaterial. -The Court: That may stand until we see what will come of it. Mr. Elliott: Now, Your Honor, expecting to introduce Mr. Billings, to prove how he baked these loaves, I would like to introduce them. . Mr. Butler: Is there any need of introducing them until Mr. Billings can testify? Mr. Elliott: No special need. Mr. Butler: Then, just lay them aside. The Court: Of course, Mr. Elliott’s word is good. Mr. Butler: Oh, yes. Mr. Elliott: Well, I cannot have Mr. Billings baking bread and in court at the same time. _ The Court: Goon. You say you will supply the necessary proof? 1172 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. Mr. Elliott: I will. The Court: - That is sufficient for me. By Mr. Elliott: Q. Now, will you kindly cut those loaves in half? But, before you cut those, which is 247? A. Well, I would not know. By Mr. Butler: Q. You cannot tell which is which, without cutting the loaf? Is that it, Mr. Edgecomb? A. I would not know which was which, from the outside. By Mr. Elliott: Q Now, cut them open, Mr. Edgecomb. ‘(Witness does as requested.) Q. Now, I hand you these loaves, marked “247” and 1586 “248”, and ask you to state what they are. A. One of them is a bleached, eighty per cent, and the other is an unbleached, eighty per cent. By Mr. Lyons: Q. Which is which? 248 is which, and 247 is which? A. I do not know. By the Court: Q. Well, look at the exhibit marks, and ray which 247 is and which 248 is. A. This is 247 and this is 248. By the Court: Q. Which is the bleached? A. I do not know. By the Court: Q. Which is the unbleached? A. I do not know. The Court: Well, he says he doesn’t know. | Anything further? By Mr. Elliott: Q. How old was the flour from which the unbleached bread was made? A. It is between five and six months. By the Court: Q. How old, the bleached flour? A. The bleached flour was made last Friday. By the Court: cee Q. The baking was done yesterday, or this morning, which? A. I do not know. Mr. Elliott: I introduce these exhibits. LEXINGTON MILL AND ELEVATOR CO. VS. U.8. OF A. 11738 - I want to know first, as to your family. How large is your family, Mr. Edgecomb? A. Three sons at home. And their ages? Twenty, twenty-four and twenty-six. Occupations? One of them is a mechanical engineer, the other is a civil engineer, and the other is an [electric] engineer. Q. Yourself, and Mrs. Edgecomb, I suppose. A. I am a miller. That is your whole family? That is the whole family, except the wife. Have any of you been sick in the last five or six years? The wife has been sick. Any one else in the family? Not barring bad colds, or something like that. Congestions about the throat? A. No. The lungs? A. No. ‘Well, how did this cold manifest itself? Just a bad cold. Well, how did that manifest itself? When I get a bad cold, my throat and lungs congest, and I cannot breathe as freely and my throat gets sore, and my nose inflamed. Now, did it manifest itself that way with the gentlemen members of your family, who had colds? A. No throat trouble. Q. Any lung trouble? A. No, sir. Q. Any head trouble? A. Some head trouble, yes. Q. Do you know the effect of nitric acid fumes upon that sort of thing? A. No, sir. 2. Did you ever have any colds, yourself? Yes, sir. Quite frequently? A. No, sir. Just occasionally? A. Yes, sir. seg - ever have any doctor, at all, during that time? 0, Q. So, then, do you, by this testimony that your family has eaten the flour that you, yourself, have made for five or six years, and because the civil engineer, the electrical engineer, _ and the other engineer and yourself have not been sick, that, ts. _ therefore, the flour must be improved and made beneficial to gee _ health? Is that your reason? Q. A. Q. A. Q. A. Q. A. Q. Q. Q. A. Q. ete dernier ona nea 1174 LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A. Mr. Scarritt: We object to that as not based upon testi- mony at all. Mr. Butler: Well, what was his testimony put in here for? The Court: He may answer. 1588 Mr. Scarritt: To show they had been eating this flour for five years and nobody had died. By Mr. Butler. Q. Because you haven’t been poisoned to death, or because you haven’t been able to diagnose sickness to these engineers, who are your sons—is that the reason you bleach, and say it improves flour? A. No, sir. ; Q. Is that the reason you say that it is good to put poison- ous gas described by your chemist as N203, into flour? A. I do not say that, sir. Q. Did you know this gas was poisonous? A. No, sir. Q. Did you hear your chemist testify yesterday that N203 was poisonous? A. Yes, sir. Q. You never knew that before, did you? Mr. Scarritt: I object to the reference to “his chemist” if your Honor please, and this line of examination,—nothing but a bull-dozing process. The Court: It is not his chemist. By Mr. Butler: Q. Is the Updike Company interested in the mill that manufactured this flour that was seized? This flour that was seized? Yes. A. No, sir. Is the Updike Milling Company financing this law suit? No, sir. In whole, or in part? Not to my knowledge. Well, would you have knowledge? I think I would. What is your business connection with that company? I am the manager. Do you say that the Updike Milling Company is not paying part of the expenses of this law suit? A. Not to my knowledge. Q. Well, would you say that you do know, and that it is not the fact? PPOPOPOPOOP _Mr. Scarritt: He says not to his knowledge, if Your Honor please. LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A. 1175 a 1589 Mr. Butler: Well, I know, but maybe he does not know what they are spending their money for. The Court: He may answer. By Mr. Butler: ; Q. Now, will you swear that Ed P. Smith is not being paid, in whole or in part, by the Updike Milling Company, for defending this law suit? We will see whether it is his chemist or not. The Court: Answer the question. Mr. Scarritt: He says he does not know, and it is an un- fair and improper question to ask him, when he says he does not know. The Court: He may answer. Mr. Scarritt: And we except to the ruling. The Court: Answer the question, please. A. I don’t know that he is, By Mr. Butler: Q. Do you know that he is not, and will make your solemn oath that he is not, without any qualification? A. No, sir. I do not know that he is not. Q. Did you employ Ed P. Smith? A. No, sir. Q. Wait a moment. (continuing) To bring a law suit, or suit in equity, in the coerts of lowa? A. No, sir. Q. For the Updike Milliug Company, to enjoin the marshal and district attorney of Iowa, from stopping the Alsop bleach- . ing? A. I do not. Q. Did the Updike Milling Company? A. The Updike Milling Company has a president. The Court: He did not ask you that. He asked you if you hired a lawyer. The Witness: I wanted to define my position. By Mr. Butler: Q. Did you know that? A. Will you repeat the question, please. 1590 Q. Did the Updike Milling Company hire Ed P. Smith, the lawyer who was defending this law suit, to bring a suit in equity in the United States Court, in the Southern District of Iowa, for the purpose of having adjudged the pure food law of this country unconstitutional, and an invasion of the rights of citizens? sits Mr. Scarritt: We object to that as incompetent, irrele- ~ vant and immaterial. 1176 LEXINGTON MILL AND ELEVATOR Co. VS. U. S. OF A. The Court: He may answer. A. I don’t know. By Mr. Butler: Q.. Well, you do not know much about this Alsop litiga- tion, do you? Don’t you know that this suit was argued before this judge, by these lawyers and Ed P. Smith and myself? A. Yes, sir, Q. And the law held constitutional? Mr. Scarritt: We object to that as incompetent and im- material. The Court: He may answer. Mr. Scarritt: We except to the ruling of the court, By Mr. Butler: - Don’t you know that? A. Yes, sir. Don’t know who your lawyer was? A. Yes, sir. Wasn’t it Ed P. Smith? A. Yes, sir. Didn’t you hire him to do it? A. No, sir. Who did? A. I don’t know. Q. Oh. So, the Updike Milling Company loaned its name for general attack upon the constitutionality of the pure food law, to somebody else, who hired lawyers? Is that it? Mr. Scarritt: We object to that as immaterial. The Court: The holding of the court is, anything showing prejudice or interest is allowable on cross-examination, and for that reason, I think these questions are proper. Mr. Scarritt: We save an exception to the ruling of the. court, 1591 A. Will you repeat the question? (Last question read by the reporter) A. Not to my knowledge. Q. How do you explain that the Updike Milling Company brought this suit to have this law adjudged unconstitutional, and had these lawyers arguing it for them, unless they hired the lawyers? Mr. Scarritt: We object to that as purely argumentative, if Your Honor please, incompetent, irrelevant and immaterial. The Court: You may answer. : A. What the president of our company might have done, in that line, I don’t know. That is the reason. That is the ex- planation. j OOLLO LEXINGTON MILL AND ELEVATOR CO. V8. U. 8. OF A. 1177 - By Mr. Butler: Q. So, the president of the company—Mr. Updike, I be- lieve? A. Yes, sir. Q. May be hiring these lawyers, here, to defend the prac- tices of Mr. Leflange, up in Lexington, Nebraska, in making the flours? A. Possibly. Q. So, for that reason, you say that the Updike Milling Company is disinterested here. Is that it? A. In this case. Mr. Helm: He haz not said that. By Mr. Butler: Q. Well, you do say that the Updike Milling Company is not interested in this case? A. Not to my knowledge. Q. And that you are not? A. No, sir. Q. And you come here as a non-partisan, without any feel- ing on one side or the other, do you? A. No, sir. Q. .You come here as a partisan, with feeling against the government, and for bleaching, don’t you? A. No, sir. Q. Do you come here as a non-partisan, with no feeling on the subject? A. No, sir. Q. Then you come here as a partisan with feeling on the ' subject? A. Not necessarily. Q. Well, now, how is that? How can that be? 1592 The Court: Oh, I think we have gone far enough. By Mr. Butler: Q. Did you attend the millers’ meeting here yesterday? A. No, sir. Q. You did not take part [it] it? A. No, sir. Q. Is color an impurity in flour, the natural color associated with the oil content of the flour? A. I think not. Q. Why not? Never heard that it was did you? A. No, sir. Q. Never heard that natural color, in the interior of the wheat kernel, was an impurity, did you? A. No, sir. Q. So, then, bleaching that out cannot be purifying it, can it? A. I don’t know. Q. Well, purifying is removing impurities, isn’t it? A. I understand it so. Q. If the color is not an impurity, the destruction of the color cannot be purifying it, can it? A. I would not think so. Q. No. Neither would I. Does this gas that you bleach your flour with give off an odor? A. Yes, sir. Q. At the agitator? A. Yes,*sir. Q. Inthe flour bin? A. Yes, sir. ae Q. Same in the flour bin, as it is in the gas machine where _ the gasis made? A. I think so. 1178 LEXINGTON MILL AND ELEVATOR OO. VS. U. S. OF A. Q. Are you a practical miller? A. Yes, sir. Q. That is your business, is it? A. Yes, sir. Q. What is a “Cut straight”? The Court: Let us get along, Mr. Witness. If you know, answer. If you do not know, say so. A. I do not know. By Mr. Butler: Q. What is a “straight”? A. A straight is composed of all the flour in the wheat If you take ten or fifteen or twenty per cent of the patent streams, is that which is left a “cut straight”’. Q. Well, you know as to what I refer, don’t you? You know what I refer to, don’t you? A. Yes, sir. What is that practice called in milling? I don’t know of the term “cut straight”, . What is the practice called in milling, where you are milling a straight flour, to take out some of the patent streams —a small per cent? A. Percentages. Q. Percentages? Suppose you take out twenty-five per cent of the patent, and run all the rest together. Will the twenty-five per cent of the patent which is taken from the heart of the kernel produce lighter flour than the rest, in color? A. Yes, sir. Q. The straight, so cut, will be darker in color, than if the straight had not been so cut, because the whitest has been taken out? A. Yes. Q. Now, bleaching makes flour white, doesn’t it? A. Yes, sir. Q. Color, before bleaching, indicated something of the qual- ity of the flour, didn’t it—was an index of quality, to a de- gree? A. Not necessarily, Q. Not necessarily, but it was, in fact, wasn’t it? A short patent is lighter than a long patent, isn’t it? A. Yes, sir. Q. A patent is lighter in color than a straight, if you do not bleach it, isn’t it? A. Yes, sir, Q. A straight is lighter in color than a clear, if you do not bleach it, as a rule? A. Yes, sir. Q. Yelloy berry produces a yellower flour than the turkey free from yellow berry, doesn’t it? A. Yes, sir. Q. The bleaching of a yellow-berry wheat brings it to a lighter color, doesn’t it? A. Yes, sir. Q. And, if you make a yellow-berry flour, and bleach it, and lay it a little, or much, as [it] necessary to match it up with flour that is made from turkey that has no yellow berry in it, they will look alike in color, won’t they? A. Yes. LEXINGTON MILL AND ELEVATOR CO. VS. U.8. OF A. 1179 Q. Now, wheat fresh from the harvest fields, makes a dark- er flour and a poorer flour, than the wheat of the same 1594 kind and quality that has been put through the sweat, in the stack, and in the bin, and conditioned by nature, for milling, doesn’t it? A. Not darker, Q. Not darker? A. No, sir. Q. But, better? A. Yes, sir. Q. No difference in color? Do you say that the aging and conditioning of wheat does not affect the color of flour? No, sir. It does not? A. I do not say that. But it does affect the color, then, doesn’t it? Yes, sir. Q. The color of the flour made from the wheat that has been aged and conditioned, is lighter, is it not? A. Yes, sir. Q. So that you can take the flour from the fresh wheat, and bleach it, and make it look like flour from old wheat that has been conditioned? A. Yes. Q. And if the bleaching is used, it brings together the colors of all kinds of wheat, or brings them closer together, doesn’t it? A. Yes, sir. Q. Do you say that the bleaching of a flour made from a poor wheat—the bleaching of that flour makes the flour as good as the flour made from a good wheat? A. No, sir. Q. It makes it look the same color, doesn’t it, if they are both bleached wheat? A. No, sir. Q. They do not? A. No. Q. But they will look nearer alike, won’t they? A. Yes. Q. So, it will take the experienced eye of an expert, by com- parison, to tell which is bleached and which is not, won't it? Se Wem ae. Q. I have some samples of flour in evidence, here, some bleached and some unbleached. Will you undertake to tell which is which, without comparison with some standard? A. No, sir. Q. You cannot even tell the bread, can you? A. Sometimes. Q. Well, you cannot, in this bread you brought in here, can you? A. No, sir. Q. So that the upshot of it is, this bleaching makes all flours look nearer alike than they did before the bleaching, doesn’t it? A. Yes, 1595 Q. The good flours and the bad flours, the short pat- ents and the long patents, the flours from the new wheat, and from the old wheat, from the yellow berry and from every other kind of wheat, makes them look nearer alike, and one cannot be told from the other, unless an expert tests them, or compares them? A. Makes them look more alike. 1180 LEXINGTON MILL AND ELEVATOR 00. VS. U. 8. OF A. Q. Yes, sir? Do you advertise bleaching for your flour that moves in interstate commerce, in this country, on the sacks that carry the flour? A. No, sir. Q. Give me the names of the bakers, and produce the let- ters, if they are in writing, who order bleached flour, Tell me their names and their addresses, every one of them. A. I cannot name them all, Q. Well, name all you can. A. U. P. Steam Bakery at Omaha. Q. By letter, or orally? A. Orally. Q. What persons, so we can see them and bring them here and ask them why? A. Mr. Peterson. Q. What is his first name? A. I do not know. What is his address? A. Omaha. What is the location of that bakery? I cannot tell you. Did he say this to you? A. What is that? Q. Did he say this to you, personally, that he wanted the bleached flour? A. Yes, sir. Q. When? A. Well, we have been making his flour—making flour for him for— Q. (interrupting) I don’t eare about that. I asked you when he told you that. Sometime within two or three years, How much flour does he buy in a year from you? Approximately one thousand barrels a month. From you? What brand? A. Eighty per cent. Eighty per cent what? Righty per cent of the entire flour in the berry. Is it branded on the bag “Eighty Per Cent’? No, sir. I asked you what brand. A. He uses his own brand. What is the name of his own brand? A. He has no brand. Q. He uses his own brand, you told me. A. Yes, sir. And he has no brand. Yes, sir,—his own sack, I should have said. - Some other baker, now, besides Peterson. Have you got any letters in your files, calling for bleached flour, from these bakers who received it so well? A. We have, at the office. Q. Will you produce them? A. I can, but not now. Q. Well, you will be here long enough to wire to Omaha and get, those letters. A. Well, now, wait. I don’t want to get—I think that I LEP OoPooPOD> LEXINGTON MILL AND ELEVATOR OO. V8. U. 8, OF A. 1181 Q. Now, can you give us the names of any other bakers, be- sides Peterson? A. Now, let me explain. We are not baker millers. We are millers for the family trade. We haven’t much baker trade. Q. Oh, I see. Can you name any other baker, besides Pe- terson, who said to you, or wrote that he wanted bleached flour? Pee 1220 LEXINGTON MILL AND ELEVATOR Co. VS. U. S. OF A. Q. What kind of flour is the best? A. Well, that all depends on what a baker considers the best. Q. Well, I am asking you, because you are the baker. A. A short patent flour. Q. So that you have flours that act differently? I am not going into details, or bother you long about this matter, but here is what I am trying to get at: You get flour from a good many different mills? A We do. Q. And the flours do not act exactly alike, do they? A. No. Q. Maybe from the same mill it would act differently, and maybe two different mills would act alike, and so on. and may- be they would act differently, and so on. Isn't that true? A. ‘Yes. Q. If you have a good flour, and handle it right, vou can make good bread and ‘cake out of it, if it is any good? A. Sure we can. Q. That is what you are there for, isn’t it? A. Yes, sir. Q. Now, what I am trying to get at is this: How do vou know that you have bleached flour, at all? How can you tell the flour? Can you tell it by looking at it? No. I am not an expert on flour. Can you tell it by tasting it? A. No. Can you tell it by smelling it? You want to know how T know when we have it? Yes, A. Tam down at headquarters, usually, and hear any con- versation about flour, and when flour is brought for our branches, I know whether it is bleached or unbleached. Q. You know by what somebody else tells vou? A. Yes. Q. Or what you hear somebody sav? But what T am 1644 trying to get at is this: The flour is not branded! “bleached” j is it? A. Notas T know of. Q. Some of it is branded “unbleached”, perhaps? A. No, sir. 4 None that vou buv? A. T haven't even noticed that. Now, from the handling of the flour, ean vou tell whether it is | from the new wheat or the old wheat? A. Yes. Q. Well, if it is bleached, T mean—if it is bleached. from the wheat, can you tell then that it is different from the old wheat? A. No. Can’t tell it. Q. So that, by handling flour, or tasting it, or smelling it, or looking at it, vou cannot tell whether it is bleached or not. can you? A. Cannot, no, sir. Q. So, vou have said to Mr. Elliott that vou have never no- ticed any difference? A. T have not. no * ~ - “ 2 ® LO ONE AEP. PERNA YE LET MPT CE LIOR a O>OO> LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1221 At all? But you think it does help the new crop? The new crop. You are not a practical miller? A. Not at all. You don’t know how it goes, when they work a part of the old crop in with the new crop, at the mill? A. No, sir, I don’t understand that. Q. And you have never seen any of these bleachers work- ing? A. I have not, Q. You are not familiar with that? A. No, sir. Q. All you go by, is that you have never no.iced any dif- ference? You cannot tell one flour from the other, by smelling it, tasting it, or anything else, can you? A. We can tell it in the baking test. Not as to the bleached and unbleached. I mean as to quality. Q. You do not believe that bleaching will change a poor flour and make a good flour out of it? A. No, the baker would soon discover it. Q. Yes? The Lord has not done that yet? Now, about this taste. Is the flavor of bread an important thing? 1645 are Py at gens ox ll LEXINGTON MILL AND ELEVATOR CO. VS. U.S. OF A. 1231 A. Yes, I think I would. Q. Have you one of these slicker-downs in your pocket? A. No, sir. Q. Every miller carries one of them, doesn’t he? A. Iam not a miller. Q. Then, I guess there isn’t much use examining you. Did you come up here to testify about your mill? A. Iam an office man. Q. You are the office man, and you came here all the way from Abilene to Kansas City, to testify in this case? A. Yes, sir. Q. To tell about the Alsop process? And you don't know how many horse-power of current ed used to make the gas, or bleach the flour? A. No, si 1658 Q. Do you know how many re of flour vou make? A. Yes, sir. Q. How many? A. 600. Q. Every day? A. Twenty four hours. Q. That is your capacity, or your output? A. That is our output. Q. 600, every twenty-four hours? Do you know how many bleachers you have? A. One. Q. Do you know how many aparkers, or electrifiers there are, to that bleacher? A. Well, as to the details of the machine, I am not familiar with it. Q. Do you know how many agitators there are? A. Yes, sir. Q. How many? A. Two. Q. Two agitators? What percentage of clear do you bleach? A. 35 per cent. Q. Does it hurt it? A. IT don’t think so. Q. Does it improve it? A. Improves the color. Q. In any other respect? A. No; ages it. Q. What is “aging it’? TI have been trying to find out. You told Mr. Elliott that bleaching ages the flour, but does not affect it as to quality or strength. Did I understand you right? LEXINGTON MILL AND ELEVATOR ©O. V8, U. 8 OF A. 1235 A. Ninety-five to ninety-eight. Q. Ninety-five to ninety-eight per cent patent? Do you make a straight? A. We do not make it in any longer percentage than— Q. (interrupting) The ninety-eight? A. Ninety-five or ninety-eight, out of the present run. Q. So, in 1909, you were accustomed to make a flour, the ninety-eight per cent—ninety five to ninety-eight per cent of all the flour content of the wheat. Now, when you make it ninety-eight per cent, what did you do with the other two per cent? Was that a clear or a low grade? A. It was a low grade, put in the feed. Q. Now, a straight flour is all of the flour, except the low grade, is it not? A. Yes, sir. Q. So, then, this ninety-eight per cent, or ninety-five per cent, as the case may be, was all of the flour except the low grade, was it not? A. Yes, sir. Q. It was, therefore, a straight flour, within your defini- tion of that term, just now, was it? A. No, sir. The low grade is considered a flour. q). fell, you told me that a straight flour was all of the flour, except the low grade. Do you want to change 1663 that? A. Yes, sir. Q. How do you want to change that? A. The straight flour would include the low grade. Q. So that, if you put in this two to five per cent that you put in the feed, then it would be a straight flour? . It would be a full straight, yes, sir. Now, did you bleach this ninety-eight per cent flour? It would depend on what our customers wanted. Well, I mean generally. A. Generally, we did. Generally you did, and that was your “Silver Leaf Pat- ? A. Yer, sir. And so branded? Was it branded “Bleached”. In Kansas. @. In interstate commerce? A. No, sir. The law of Kansas, or the order of its health depart- ment, requires flour sold in Kansas that is bleached, to be branded “Bleached”, does it not? A. .Yes, -sir, Q. So, the health department of Kansas requires bleached flour to be labeled as bleached? A. Yes, sir. Q. But, as soon as vou sent it outside of Kansas, you left the label off? A. Yes, sir. Q. Now, then, bleaching this flour, what was its color— this ninety-eight per cent flour, as compared with sixty-five per cent flour made out of the same wheat—same kind of wheat? Lighter or darker, or the same? _ A. It would be slightly darker. 1236 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. Q. Slightly darker? After you bleached the ninety-eight per cent patent, as you labeled it, how did the color then com- pare with the sixty five per cent that was not bleached? A. It would not be the same. Q. Would it be lighter or darker? A. It would be lighter. Q. It would be lighter? So that the bleaching process made the longer patent lighter colored than the natural un- bleached, shorter patent? A. Yes, sir. Q. When you bleached them both, which would be lighter? Did you ever notice that? 1664 A. The sixty-five per cent. Q. So that the effect of this bleaching was to make the bleached, long pateni, lighter than the unbleached short pat- ent, wasn’t it? A. Yes, sir. Q. And it was to make the fresh flour, as light in color as the naturally aged flour, and therefore, look like it? A. No, it won’t look like it. Q. It doesn’t look like it? A. No. Q. So, this bleaching doesn’t make the flour look the same as the natural aging does? A. Not exactly. Q. Not exactly? So, therefore, it is not exactly the same as natural aging, because, if it was the same, they would look the same, wouldn’t they? Mr. Elliott: Are you asking a question, or making a statement? _ Mr. Butler: Please read the record. (Record read as requested) A. They won’t look exactly the same. By Mr. Butler: Q. They don’t look exactly the same? A. No, sir. Q. Therefore, they are not the same, or they would look the same, wouldn’t they—as an expert, now? Mr. Elliott: He doesn’t happen to be an expert. The Court: Go on and answer. A. I said no. By Mr. Butler: Q. So, the statement that you make, that bleaching .as the same as natural aging, was inaccurate, wasn’t it? A. I stated it had the same effect as natural aging. Q. Yes, the same general effect—made it lighter in color? A. Yes. Q. But not in degree? LEXINGTON MILL AND ELEVATOR ©O. V8. U. 8. OF A. 1287 Mr. Scarritt: Same in quality and strength. 1665 Mr. Butler: Wait a minute, Judge Scarritt. I will put you on, sure, if you try to help this witness. The Court: Let us get along, Mr. Witness. By Mr. Butler: Q. The same in kind, but not in degree? That is what you mean, isn’t it? A. Yes. Q. You don’t mean to say that any living human being can so adjust an Alsop bleacher on the varying kinds of flour that come down the spout, as to be the same as three weeks, or six weeks, or three months, or six months time, do you? A. I think it will have the same effect in the baking process. Q. Does it make any difference how hard they bleach it? A. Well, we have never been able to bleach it hard enough to spoil it. Q. Have you tried? A. Yes, sir, all the machine will carry. Q. Do you get the yellow color, xanthoproteic reaction, —the yellow poisonous action in the proteids? A. I never noticed it. (). You never looked, did you? A. No, sir. Q. Never took any pains to clean that out of your packing rooms, did you? A. I left that to the miller. Q. Did you ever smell the gas in that room? In the packing room? Yes. -A. No, sir. Did you ever go in there when they were bleaching? Yes, sir. Your packing room doesn’t smell of bleaching gas? Our packing room is below our bleacher. And your flour runs down? A. Yes, sir. Mr. Scarritt: He is talking about another room. 1666 By Mr. Butler: Q. Well, the bin where it goes out of the agitator, that is about six by six by ten in the Updyke Mill. I want to know whether you can smell the gas, while you are bleaching. A. You can smell the gas, if you open up the door. Q. Did you ever observe the yellow flour? A. No, sir, I never did. Q. Have you given any orders to have that cleaned out? A. No, sir. Q. Did you ever see any yellow flour around your mill, as the result of this bleaching, as yellow as sulphur? A. No, sir. Q. And, no matter how hard you bleach, you cannot hurt it? And you say you have never been able to do it by bleaching? . A. No, sir. OP Soroor 1238 LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A. Q. And you don’t know how many horse-power you gave it? You could not hurt it? Couldn’t turn it vellow, could you? A. No, sir. Q. Well, now, when you bleached it as hard as you could, to see whether you could hurt it or not, how much natural ag- ing was that equivalent to? [Q]. I told you I was not a salesman. I do not know. LEXINGTON MILL AND ELEVATOR OO. VS. U.S. OF A. 1249 Q. Now, have you given to the jury all of the details that you can, with respect to the refusal to take unbleached flour? Have you given all of the details? A. I guess I have. Q. All of the details as to price? A. Yes, I have told you everything, I guess. Q. Now, tell me a consumer who refuses to buy unbleached flour. A. We do not sell to consumers, I do not know anything about that. Q. Do you know of any other? A. No. Q. Then, the sum total of it is this, that all that you can tell us about is that one groceryman, named Walker, at some point in Iowa, refused to buy some flour of Wells, Abbott & Behman Company, which was unbleached, because they had got other Nebraska flour that was bleached? A. Yes. 1680 Q. And you do not know the price they got that at, or the price you offered them Wells, Abbott & Behman’s flour at? A. No. Q. And therefore, you say— A. (Interrupting) I can send you down quite a list of them, though, if you want them. Q. You had better bring them back, because I might ask you some questions about that. A. All right. Q. Better go and bring them back. A. All right. Q. So, therefore, on that information, you say, in answer to Mr. Elliott’s questions, that you prefer to buy the bleached “be- cause my trade demands it”? A. I said because they preferred it. Q. And the only instance you can give is one, and you can- not tell the kind of flour that was in competition with it, or the price? (No response.) Mr. Butler: That is all. Redirect Examination By Mr. Elliott: Q. Notwithstanding my brother Butler's question, I will _ ask you if you know the fact to be as you have stated? Mr. Butler: Now, just wait. That is objected to as leading and repetition. It is perfectly outrageous to bring these men here, who don’t know anything, to testify to what other people say. Mr. Scarritt: We object to that, if Your Honor please, _ Mr. Elliott: I don’t know why you say that. “a 79—3533-3534 1250 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8S. OF A. Mr. Butler: I do say that. Mr. Helm: A man may know the fact, without being told. The Court: Now, gentlemen, there are four of you. Now, who is to talk for the defense? Mr. Scarritt: Mr. Elliott. The Court: All right. Now, Mr. Elliott, go on. Mr. Elliott: I simply state, your Honor, it seems to me a witness can give his testimony as a fact within his knowledge, although he may not be able to indicate every specific in- stance of it, and call the name. That is what I mean. 1681 The Court: I understand what the witness has testt- fied to. By Mr. Elliott: Q. Do you know, of your knowledge the fact to be as you have stated, although you cannot name every specific instance? A. Yes, sir. Q. Did you ever hear of a grocer advertising bleached sugar? No, sir. Mr. Butler: That is objected to as immaterial and irre- levant, Mr. Elliott: Well, you have been asking if he advertised bleached flour and I want to ask him if he ever knew of a gro- cer advertising bleached sugar. The Court: He may answer that question. A. No, sir. By Mr. Elliott: Q. Did you ever hear of a grocer advertising bleached but- ter? A. No, sir. Recross Examination By Mr. Butler: Q. Are you a grocer? A. No, sir. Q. You don’t know anything about that? You are an office man, I understand? A. Yes, sir. Witness Excused. T. J. Holderidge, called as a witness on behalf of claimant, being first duly sworn, was examined, and testified as follows: Direct Examination By Mr. Elliott: Q. What is your name? A. T. J. Holderidge. 1682 Q. What is your occupation? LEXINGTON MILL AND ELEVATOR CO. VS. U.S.OF A. 125] I am Mill Manager—milling business. How long have you been in the milling business? Eighteen or twenty years. The Court: Where does he reside? A. Kingman, Kansas. Pop By Mr. Elliott: What is the capacity of your mill? 600 barrels in 24 hours. How long has your mill been running? A little over five years. Do you use an Alsop bleacher? A. Yes, sir. Have you used an Alsop bleacher all the time? Ever since the mill started, yes, sir. How many grades of flour do you make? Well, we make an 80 per cent patent, and we make a straight grade, what we call a straight grade, and a baker’s, 17 or 18 per cent. POPCOPoPoO Mr. Lyon: We cannot hear you, Mr. Holderidge. A. We make a baker’s of 17 or 18, per cent. By Mr. Elliott: Is that the same as you have heard called as a “clear”? Yes, it-means the same thing, I guess. Now, what grades do you bleach? We bleach our patent, and our straight grade. Q. How do you brand them? A. The patent is branded “High Patent” and the straight is branded “patent”. Q. Do you bleach your clear? A. Seldom ever. Q. I will ask you, can you change the grade of a flour by bleaching it? A. No, we cannot change the grade. Q. Can you bleach a lower grade, and make it look like a higher grade? A. No, sir. Q. Do you sell flour to the family trade? -A. Yes, sir. Q. Do you use it in your own family? A. Yes, sir. 1683 Q. When I said flour, I meant bleached flour. A. Yes, sir. We use bleached flour in my own family. Q. Have you replaced any pipes, valves, or rubber hose, connected with this Alsop bleacher, since it was installed? A. No, sir. No new ones. ae QQ. How does flour bleached by the Alsop process compare, in quality and strength with flour that is naturally bleached? _ A. Well, they are about the same thing, I think. POrPO 1252 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. Cross Examination By Mr. Butler: Q. When did you first hear the word “natural bleaching” used? A. Well, that is the way they always used to bleach it. Q. I am not asking you that. Mr. Butler: I move to strike that out. The Court: Yes, that is not an answer. By Mr. Butler: They used to call it “aged” wasn’t it? A. Yes. The word “naturally bleached” was not a common word in the milling art, before the artificial bleaching commenced? No, I think not. It is not yet, is it? A. No, I don’t think so. That is coined out of the litigation, isn’t it? Yes, it used to explain the difference. That is coined out of the litigation, isn’t it? Yes, I think so. That is not a word of the trade? A. No, sir. Is an 80 per cent patent a higher grade than a straight? Yes, sir. If they be made dut of the same wheat, and under like conditions, Mr. Holderidge, will the 80 per cent patent natur- ally be lighter in color than the straight? A. Yes, sir. Q. Is it true that, generally speaking, before the arti- 1648 ficial bleaching commenced, that the color of flour was an important consideration in flour? A. Yes, sir. And is it also true, Mr. Holderidge, that, formerly, be- fore the bleaching came in, the color of flour indicated, not exactly as to percentages, but, in a broad way, the quality of the: flour? A. Well, certain wheat has a yellow cast, makes a yellow east of flour. Well, Turkey wheat makes a whiter flour—much whiter; a whiter flour sells for the best price in the market. Q. Now, see that I understand this right: Different kinds of wheat make different color flours—different shades, we will say, instead of different colors? A. Yes, sir. Q. So that the natural color would indicate, roughly speak- ing, if you knew the kind of wheat that was used—would in- dicate the length of the patent, or whether it was a straight or a clear? A. Well, yes, sir, to a certain extent it would. Q. And ‘still more widely speaking, they tell me that, in southeast Missouri, and in the southern country of Kentucky, it has appeared here, there is a soft winter wheat that makes a very white flour? oe A. Q. Q. A. Q. A. Q. Q. A. Q. LEXINGTON MILL AND ELEVATOR OO. VS. U.S. OF A. 1253 Yes, I think so, Whiter, perhaps, than even the Turkey? Yes, soft wheat is whiter. So that the color would be one of the indexes by which you could tell the quality of the flour, and the kind of wheat, or class of wheat, out of which it was made? A. Yes, sir. Q. Now, that is true? A. Yes, sir. Q. So that, before the bleaching, color was an index to the kind of flour, and the kind of wheat from which the flour was made—not an exact index, but of some flour, to an experienced eye? A. What is that? Q. I-say, before the bleaching, the natural color of the flour was of some flour, an index of quality of the flour, and of the kind of wheat it was made from? A. Yes. 1685 Q. Now, you, yourself, are familiar with the bleacher, are you? A. I do not handle it. I use it. I have it done. Q. Well, that is unfortunate, I think. I don’t want to annoy you with questions that you do not know about. But, if you are intimately familiar with the Alsop bleacher, I would like to ask you. Now, are you intimately familiar with it? A. I have had it working in the mill all the time; I see it every day or two—see it working. Q. Do you adjust it? A. No, sir, I do not. Q. Do you know how to make a stronger gas, or a weaker gas? Do you understand that yourself? A. No, I do not think they change that, very often. Q. No, but do you understand about that? A. No, sir. Q. And you do not know how the miller, or the man who actually does the milling, does that? ' A. It is set, and it runs the same way all the time. They do not change that. Q. Well, you can control the flow of the air, can’t you? A. No, I don’t think so. Q. No means of controlling the flow of the air? A. They can shut off a little, I think, of the air. Q. Then, are you aware that it makes a stronger gas—that it is more concentrated, I mean? We take a given amount of gas, and then, if you dilute it with a large volume of air, the mixture will be more dilute, and, #* you shut off the air, it is stronger? A. Yes, sir. A. Yes, sir. Q. Then, are you familiar, too, with the fact that they can control bleaching, that is, I don’t mean with the finest exact- hess, but they can bleach light, or heavier? A. Yes, sir. _ Q. So that, then, this bleacher helps you control the color _ of your product? A. That is what we use it for. » Q. And, by bleaching, the natural color is modified, or changed, or eliminated? Isn’t that true? 1254 LEX s@TON MILL AND ELEVATOR OO. VS. U. 8. OF A. 1686 A. Changed some, to a certain extent, yes, sir. Q. And if you would hit it hard enough, it would probably drive it all out, wouldn’t it? A. Idon’t think so; we don’t bleach very hard; we bleach lightly. Q. So that, as I get your meaning, -the truth of the matter is this, We will say your straight flour, if bleached, would be lighter in color than your patent flour, unbleached. A. Well, not very much difference, I don’t think. Q. Would make it look— A. (interrupting) It makes a greyish color, instead of a white. Q. Creamy color? A. Creamy color. Q. The natural color of flour is creamy? That is, a tinge of yellow? A. Yes. Where they have some yellowberry wheat, it makes a creamy colored, or yellow. Q. The yellow is strongest? A. No, sir, I do not think so. I think the Turkey is the strongest. Q. Strongest yellow? A. No, the strongest flour? Q. I mean the color in the flour is strongest? A. I don’t think so. ' Q. Now, in the case of the yellowberry, is it? A. No. I think the Turkey wheat makes the strongest flour. Q. Iam not speaking of the strength of the flour, but the color. The light, yellow—creamish? A. No, sir. Q. Now, what I am trying to get at is this: Some flours have a little more creamy color, or stronger yellow, than others? A. Yes, sir. ; Q. Now, the Turkey wheat, or the yellowberry—which has the stronger yellow color? A. The yellowberry has the more yellow. Q. The more yellow? A. Yes. - Q. Now, then, by bleaching, we will say a straight flour, if you bleach it, it could be brought down to the color of a 70 per cent patent, we will say, made from the same wheat, couldn’t it? 1687 A. Not exactly. . Not to exactly the same color, but it could be made lighter, even? A. That is right. Q. So that, if you bleach your clear—which you do not do very often, you tell us? A. No, sir. —and mix it with your patent, which was bleached, | then, the whole mixture would be lighter colored, than if you . had not bleached it? | - A. Yes, it would be lighter. Q. Now, in the old days, before this bleaching commenced, when you knew the wheat, the lighter the color, the more desirable and valuable and better the flour? A. Yes, sir, selling qualities. Q. I mean the more valuable in the market? A. Yes, sir. Q. The more desirable to the consumer? A. Yes, sir. Q. So that this bleaching will take the flour which, before bleaching, was less desirable in appearance, less marketable, less value in the market, and bring it near to the appear- ance of the more desirable and more valuable flour in the market? A. Yes, sir. Q. That is, in fact, the purpose of bleaching, isn’t it? A. Yes, sir, it is to whiten it, and to age it. Q. I will come to the aging a little later on. Of course, the aging part is also a whitening process, is it not? A. Yes. ; Q. Now, in the natural aging, the flour still retains some of this beautiful creamy color, does it not, or does it become ‘a dead, ashen white, like the bleached flour? A. No, it don’t become ashen white. It gets whiter, the longer it stands, to a certain length of time. Q. Now, does this bleaching—it does noit give it exactly the same shade as natural aging? A. Not exactly. Q. You can slick them down, and bring them together, and they are not the same, are they? 1688 A. Not exactly, no, sir. Q. You never in your life saw bleaching match up with naturally aged color, did you, exactly, so you could not tell which-was which? A. No, sir, not exactly. Q. An experienced eye, with the standard to go by, knowing _ that one is bleached and one is not, can always tell which was 2 agg and which was not, if he knows one is and the other 't? A. Well, I think they can very nearly. . - Q. But, if you do not know whether either is bleached; or _ whether both are bleached, then nobody can tell which is which, can they? _ Well, that ain’t always the way flour is tested—by the - color. Q. No, but I am speaking, now, of the color. I will come to the other part later. I will be perfectly fair to the other part. Now, that is true with respect to the color, isn’t it? A. Well, to a certain extent, yes, sir. ae LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A. 1255 1256 LEXINGTON MILL AND ELEVATOR OO. VS. U. 8. OF A. Q. So that it is fair to generalize, from these details that .you have given, that the bleaching does not exactly duplicate the color of natural aging? A. No, sir. Q. That is true, isn’t it? A. Yes, sir. Q. And that is true in all of these cases of bleaching that you have observed, isn’t it? A. Well, yes, I think so. Q. Now, then, we will go to the natural aging process. Let us see, now, if we understand yet, some of the truths of milling. It is true, is it not, that, other things being equal, that wheat which has been through the sweat in the stack, and again in the bin, and given some time to condition, is then in the best condition for milling? A. Yes, sir. Q. You have been in the milling business for a good while, have you? A. Yes, sir. How long? Eighteen to twenty years. Always in Kansas? Kansas and northern Oklahoma. Q. Was it ever customary in that territory, in your time, to stack the grains before threshing? A. Some of them,-and some threshed right out of the And it goes through a sweat in the stack? In the stack. And give it time enough? And give it time enough. And again in the bin? In the bin, if it goes through in the stack, they don’t need to in the bin. Q. But it will, to some extent, in the bin? A. To some extent, yes, sir. Q. And this sweat means it gives off a little moisture, around each kernel, does it not, and it warms up a little—not enough to heat, or enough to sprout. A. It is dried. It will not sprout. Q. If there is water from the outside, it will rot, or sprout, and must? A. Yes. Q. But, if there is nothing but the natural moisture there, it will just sweat a little, and perhaps warm up a little? A. Yes, come out of it all right. Q. But the heat would not be perceptible, if you plunge your arm into it? A. No. Q. Now, taking wheat of that kind that is aged right, and been through the sweat, a good wheat, and make your flour from it, that flour, when fresh, is not quite as good as it will become a little later on, is it? A. No, sir; if it stands two or three months it gets better. rs LEXINGTON MILL AND ELEVATOR CO. VS. U.8. OF A. 1257 — Q. That is the natural aging? A. Yes, sir. Q. Now, if the natural aging of flour—and, from now on, . _we will call it “old wheat”,—the flour made from old wheat, makes its color a little whiter, does it not? A. Natural aging? Yes. A. Makes it dryer, the longer it stands, to a certain length of time. Q. And then it begins to break, and go back? I do not mean as to color, but as to quality? A. Well, I think so, to a certain extent. 1690 Q. Well, it will spoil, if kept too long? A. Yes, it won’t keep through hot weather, every year. Q. Spoil in a year, asa rule? A. Yes, sir. Q. The unbleached flour? A. Yes, sir, anywhere. Q. Any flour, except this Wells, Abbott & Behman’s that was bleached? Mr. Helm: That will spoil in three months, according to the testimony. — Mr. Butler: No; he had it fifteen months. Q. Now, are you familiar with the doughing of this flour, after it is naturally aged, made from old wheat, and naturally aged flour? Are you familiar with the changes that take place in the bread making qualities? A. No, sir; I am not an expert. Q. You do not dough it up? A. We do sometimes, yes, sir. Q. Now, is it known to you that the bread made from the naturally aged flour is better bread than if it was made from the fresh flour, even if that flour was made from old wheat? A. Yes, sir. Q. That has been the general understanding, has it not, of housewives, and millers, and bakers? A. Yes, sir. Q. Ever since you knew anything about flour? A. Yes, sir. Q. But now, as to what chemical changes take place to bring that about, you do not know? A. Well, it becomes whiter, and works better. Q. Now, what change takes place in the substance, to make it work better, is what I mean, by my question. A. No, I am not familiar with that. Q. You don’t know whether that is in ‘the gluten or in the starch or what part? A. No. Q. But it is a matter of common knowledge that it does _ change, isn’t it? A. Yes. Q. And that is called the aging of flour, isn’t it? A. Yes, sir. armnarnnantpnrnidiliiats wnrtpapmnininomants 1258 LEXINGTON MILL AND ELEVATOR CO. VS. U. 8. OF A. 1691 Q. Now, in bleaching the flour, when it comes from the mill, you can make it look very nearly like the naturally aged flour, can’t you? A. Yes, sir. Q. Now, did you ever take that flour that was bleached, and made careful baking tests, to compare its baking qualities with the same kind of fiour that was not bleached, but which was naturally aged? A. No, sir, I have not made any such tests. Q.. And you are not able to state about that? A. No, sir. Q. Now, if you take the flour made from wheat that is fresh from the harvest—new wheat—that is darker than the flour made from the same wheat, after it has been conditioned, isn’t it? A. Yes, sir. Q. Inecolor? A. It won’t make up so good. Q. But, if you bleach it, you can make it look about the same, can’t you? A. Yes, sir. Q. You can not only make it look the same as flour made from the old wheat, but you can make it look the same as flour made from the old wheat which has been aged after making? Do you follow me? A. No, I do not know as I understand the last part of it. Q. When you take the flour from the new wheat, fresh from the harvest, make it, and bleach it, you can make that look as good as the flour made from old wheat, after that flour has aged three months, or four? A. Yes, sir, practically as good. Q. Now, have you ever made any tests of that? You do not know what chemical changes take place in this bleaching? A. No, sir. Q. And you do not know whether they are the same chemical changes that take place by the natural aging? A. No, I do not know whether it is the same or not. Q. But you do.know that the artificial color, or bleaching, is a good deal like the natural color, with aging, do you? A. Not exactly the same. Q. Now, do you know how many horse power of current 1692 you use. A. How many. what? Q. Horse power of current you use to make this bleach- ing gas? A. I don’t think it is measured that way. Q. Well, kilowatts,—or amperes? A. That is what they call so many kilowatts. We buy a bleacher to bleach so many barrels of flour in a mill of 500 ba [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0194%3A2. Public record. Not legal advice.