Transcript of Record — United States v. 95 Barrels of Vinegar

Supreme Court brief1924

Ask Donna

What actually matters in this document.

Text

TRANSCRIPT OF RECORD.

SUPREME COURT OF THE UNITED STATES.

Ootoprr TERM, 1923. 4

No. 559.

THE UNITED STATES OF AMERICA, PETITIONER,

vs.

NINETY-FIVE BARRELS, MORE OR LESS, ALLEGED

APPLE CIDER VINEGAR, DOUGLAS PACKING COM-

PANY, CLAIMANT.

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE SIXTH CIRCUIT.

WIR PORES RIT TOE AEBS TC aa

SUPREME COURT OF THE UNITED STATES.

OctoBEeR TERM, 1923.

No. 559.

THE UNITED STATES OF AMERICA, PETITIONER,

v8.

NINETY-FIVE BARRELS, MORE OR LESS, ALLEGED

APPLE CIDER VINEGAR, DOUGLAS PACKING COM-

PANY, CLAIMANT. &

TNE, OOM RS OS Sry at aetna ag

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE SIXTH CIRCUIT.

INDEX. #

Original. Print. .

Record from U. S. District Court, Northern District of Ohio_______ 1 pt

eee ommiteen 10 DriNtIimMe yn ok ene e eee 1 1 He

nee Of information in farfelturc.........................<- 2 1 4

Sueeetenrann, MONON Niels oe 5 3 “4

IIIT “MIS ERI ko a aa die isla nl pemen eens " 5 4 Pa

man of Dovsiad Packing Cb... 6 4 e

ee C2 RMON EOCKING OO. oo i cckacaenneccumacneenwes = 8 5 E

meneton, £0 WIKDGIEW ONOWO?........ 25 coon ce nese 11 6 :

Order granting motion to withdraw answer__________________ 11 ‘ i’

ES 2 [ene ae le ge Ve ke Deranaences : 11 7

Re Or CONtt ON CMMINCOR gan ome cone dae ones aa 12 z 4

mraer overrtiling deniurrer.................... dmage bank letegions 15 10 i

ren -GORUMINGIT OL TROON. Sooke oc aie work neccmmewnsnm oe 16 10

SE NEN ga ts An a da aa goes wen aeeeee 19 13 ,

Stipulation waiving trial to jury.................._- = 19 3

Order directing that exhibit of claimant be niece’: in cota 3

storage ______ EPR a Rent See ep LA Eee ey Oe SEE SE PND roel 20 14 ;

Opinion, Womenhaver, an tn Cea aaa cee pasa Race 20 1+ ‘

ne ONGre Of JUUCINONE no. cece ncnwatm emma aie 28 20 4

rn tO0-@ HOW CAl.. o.oo Leann emsmaconancuenmenes 30 22 4

Order withdrawing claimant's exhibit... ee oe 31 22 :

NG S00- PIE “OF OPPOR Qe ois nema nena cmadnniendeeumae 31 23

ERENT ND os aia as x em bin eae pms ani OS 82 23

Order allowing writ prepara ic Saat ene eae 33 24

83133-—24--—-1 I

u INDEX.

Original. Print.

Record from U. S. District Court. Northern District of Ohio—Con.

Bond on writ of error on appeal [omitted in printing] -~------ 34

Writ of error__.__----------------------------------------- 35

Citation and service [omitted in printing]~-----..----------- 37

Stipulation as to certification of OO ae at eles ee Sen ee ee 89

Praecipe for transcript——-~-~--~- pao oS Re Re om eae Soe rene 40

Clerk’s certificate._........-~.-..--- Fe a Ne NT NE ee 41

Proceedings in Circuit Court of Appeals : ie ah ZA 42

Motion and order advancing cause—_- tes : P 42

Appearance . . i sensei nivda Stig 44

Order continuing cause_ es eee arate Re 44

Order granting leave to file brief as winicus curve ss Sipedctaeen ste’ 45

Argument and submission oa om zoe ee gas 45)

pO | Ee ee ena ksentig Te Pa eer et 45

Opinion, Donahue, J_----. op Ge LR EP Se Sa cry See Pf 47

Petition for rehearing_-—----------------------------------------- 56

Orders extending time__---.----------------------------------- 62

Order denying petition for rehearing-~----~-~-~-~-~--------------- 62

Order extending time...__..................--.---- scacae ete clonic 63

Clerk's cortificate.............................-..-..-=------+=-- 64

Writ of certiorari and return__.-..----------------------------- 65

o_o SE SRE ORES 8 HG) TOBE OAME PER TOA EDIE LE ERS OG CLEAR AY DISS PEPE IE NE PEON: — a

UNITED STATES VS. DOUGLAS PACKING CO. 1

1 {Caption omitted. |

2 In United States District Court.

Libel of information in forfeiture.

Filed Jan. 12, 1920.

E. S. Wertz, United States attorney for the Northern District

of Ohio, who, for the United States in this behalf prosecutes, ex-

hibits this, his information against ninety-five barrels, more or less,

alleged apple cider vinegar, heretofore shipped in interstate commerce

by the Douglas Packing Co., from Fairport, N. Y., to Fisher Bros.,

Cleveland, in the State of Ohio, by way of the New York Central

Railroad Company, a common carrier, engaged in carrying freight

from one State of the United States to another State of the United

States, and particularly from said Fairport, N. Y., to said Cleveland,

Ohio; said ninety-five barrels, more or less, alleged apple cider

vinegar, received as aforesaid, in interstate commerce into the said

city of Cleveland, by way of the said New York Central Railroad

Company, are now in the possession of Fisher Bros. at Cleveland,

Ohio: and thereupon said United States attorney does allege and

give the court to understand and be informed as follows:

That the aforesaid barrels of vinegar are labeled on one top of

the barrel as follows:

“ Douglas Packing Company

Excelsior vinegar made from selected apples

Four per centum

Rochester, N. Y.”

that the other end of the aforesaid barrels of vingar are labeled as

follows:

“ Manufactured to comply with all pure food laws

Douglas Packing Company,

Rochester, N. Y.”

That analysis of the sample shows the product consists wholly or

in part of vinegar made from evaporated or dried apples; which

said vinegar is adulterated and misbranded within the meaning of

and contrary to the provisions of the act of Congress of June 30,

1906, commonly known and designated as the food and drugs act,

in the following particulars, viz:

(a) That the said ninety-five barrels, more or less, alleged apple

cider vinegar, labeled as aforesaid, are adulterated, in that

3 vinegar made from evaporated or dried apple products has

been mixed and packed with and substituted wholly or in part

for the article, contrary to and in violation of paragraphs first and

second under food, of section 7, of the food and drugs act aforesaid.

Soprano santrnt mycis

HECHT SPMANN

"SRN OE RS SETS RAS SP

ay Se HERA

Pes: et

2 UNITED STATES VS. DOUGLAS PACKING CO.

(b) That the said ninety-five barrels, more or less, alleged ap-

ple cider vinegar, labeled as aforesaid, are misbranded, in that the

statements on label “ Vinegar made from selected apples and manu-

factured to comply with all pure food laws,” are false and mislead-

ing and deceive and mislead the purchaser, since analysis shows the

above results, contrary to and in violation of paragraphs second and

fourth under food, of section 8, and general paragraph, of section

8, of the food and drugs act aforesaid.

cider vinegar, labeled as aforesaid, are further misbranded, in that

it is an imitation of and offered for sale under the distinctive name

of another article, to wit, apple cider vinegar, contrary to and in

violation of paragraph first, of section 8, of the food and drugs

act aforesaid.

And wherefore said attorney says that the said ninety-five barrels,

more or less, alleged apple cider vinegar, labeled as aforesaid, are

adulterated and misbranded within the meaning of the said act of

Congress and are subject to seizure and confiscation within the

meaning of and intent of section 10 of the said act.

II.

That the said ninety-five barrels, more or less, alleged apple cider

vinegar, as aforesaid, were shipped on or about November 24, 1919,

in interstate commerce from the Douglas Packing Co., Fairport,

N. Y., via the New York Central Railroad Company to Fisher Bros.,

Cleveland, Ohio, in the division and district aforesaid, and within

the jurisdiction of this court.

That the said attorney of the United States who prosecutes as

aforesaid for the United States, says that all and sigular the pre-

mises are true, and that the said ninety-five barrels, more or less,

alleged apple cider vinegar, are now within the jurisdiction of the

United States and of this court.

Wherefore, for the United States, said attorney prays that a writ

of attachment and monition in due form of law according

4 to the course of this court in such cases, may be issued against

said product, and that all persons having any interest in the

same may be cited to appear and answer all and singular the mat-

ters aforesaid, and that said products may be seized for confisca-

tion by process of libel of condemnation, and that if such product

contained therein is condemned as being adulterated and misbranded

within the meaning of said food and drugs act of June 30, 1906,

that the same may be disposed of by destruction or sale as the court

may direct, and that the proceeds thereof, if sold, less the legal costs

and charges, may be put into the Treasury of the United State.

E. S. Werrz,

United States Attorney.

[ Jurat showing the foregoing was duly sworn to by FE. S. Wertz.

omitted in printing.]

ONITED STATES VS. DOUGLAS PACKING CO. 3

Praecipe.

Filed Jan. 12, 1920.

To the Clerk:

Please issue warrant of seizure and monition herein against ninety-

five barrels, more or less, alleged apple cider vinegar, and summons

for service to the Douglas Packing Co., Fairport, N. Y., and to

Fisher Bros., of Cleveland, Ohio, and all other persons concerned

herein. This _--- day of January, 1920.

E. S. Wertz,

United States Attorney.

STOWE RH RUS ae SR RRR PR et RRS eR Sa

5 In United States District Court.

ee ews

Stipulation, amending libel.

It is hereby stipulated and agreed by and between the undersigned &

counsel for the respective parties hereto that the libel filed herein 3

for the United States may be corrected and amended in the following :

particulars:

1. Insert on page one in lieu of the label quoted the following cor-

rected recital of the label appearing in said barrels of vinegar herein

described :

“ Douglas Packing Company

Excelsior Brand apple cider vinegar made

from selected apples a

Reduced to 4 per centum 3

Rochester, N. Y.

Guaranteed to comply with all pure food laws

Douglas Packing Company

Rochester, N. Y.”

2. Insert on page two, line twenty-two subparagraph (b) the word

“ guaranteed ” in lieu of the word “ manufactured.”

It is further stipulated and agreed by said counsel that the de-

murrer heretofore filed herein may stand to the libel as above

amended, and that the hearing and argument proceed thereon on

April 1, 1922, as originally set.

JoserpH C. BrEITENSTEIN,

Asst. U. 8. States Attorney.

Wuirte, Jounson, CANNon & SPIETH,

Attorney for Douglas Packing

Company, Claimant.

PRES EL RES VISCO EE IRE

EPPA BIS CO,

nega

eran BRD Bot nek Rat SEALE LONI RUT LEG DBCS LA LEASE LEME Vit PRO icty ES ay

Saran aA

4 UNITED STATES VS. DOUGLAS PACKING CO.

In United States District Court.

Amendments to lihel.

Now comes FE. 8. Wertz, attorney for the libellant, and in accord-

ance with the stipulations filed herein amends the libel of information

heretofore filed, in the following particulars :

6 I.

By inserting on page 1 od 2. in lien of the label quoted, the fol-

lowing recital of the label appearing on said barrels of vinegar de-

scribed therein:

* Douglas Packing Company

Excelsior Brand apple cider vinegar made

from selected apples

Reduced to 4 per centum

Rochester, N. Y.

Guaranteed to comply with all pure food laws

Douglas Packing Company

Rochester, N. Y.”

II.

By inserting on page 2, line 22, subparagraph “b.” the word

“ guaranteed ” in leu of Pe word “* manufactured.”

Josrru C. Brerrenstein,

Asst. 1’. S. States Attorney.

In United States District Court.

Claim of Douglas Packing Company.

Filed April 12, 1920.

Comes now the Douglas Packing Company and represents unto

this court that it is the owner of the ninety-five barrels, more or less,

apple cider vinegar seized in the above entitled action, and that no

other person, firm, or corporation has any interest in said vinegar

other than itself, and prays this honorable court that said claimant

shall have restitution of the said ninety-five barrels, more or less,

apple cider vinegar, and for such other and further relief as to the

court may seem meet.

Doverias Packine Company,

By Wurre, Jounson, Cannon & Spreru,

Its Attorneys and Proctors.

| Jurat showing the foregoing was duly sworn to by Earl J.

Neville omitted in printing. |

ak ae ee eee ee eens ba eee ee: eee eee a

UNITED STATES VS. DOUGLAS PACKING CO. 5

In United States District Court.

Answer of Douglas Packing Company, Claimant.

Filed April 16, 1920; refiled August 22, 1922.

And now comes the claimant, the Douglas Packing Company, by

White, Johnson, Cannon, and Spieth, its attorneys, and for answer

to the libel of the United States of America filed herein, says:

That it is a corporation organized and existing under and by

virtue of the laws of the State of New York, and a citizen and

resident of said State.

Claimant denies the averments in Article I of said libel in the man-

ner and form as therein set forth, and avers the fact is that said

barrels of vinegar. libeled herein, are labeled on one end of the barrel

as follows:

* Douglas Packing Company

Excelsior Brand apple cider vinegar

Made from selected apples

Reduced to 4 per centum

Rochester, New York.”

and that the other end of said barrels of vinegar are labeled as

follows: .

* Guaranteed to comply with all

Pure food laws.

Douglas Packing Company,

Rochester, New York.”

Claimant admits that evaporated apples were used in the manu-

facture of said vinegar, but alleges the fact to be that said vinegar

is nevertheless pure apple cider vinegar.

It denies that said vinegar is adulterated and misbranded, within

the meaning of and contrary to the provisions of the act of Con-

gress of June 30, 1906, commonly known and designated as the food

and drugs act, and particularly denies:

(a) That said vinegar, though evaporated apples were used in the

manufacture thereof. is adulterated contrary to and in violation of

paragraphs first and second under food, of section 7 of the food and

drugs act, aforesaid.

4 (b) That said vinegar is misbranded contrary to and in

violation of paragraphs second and fourth under food of sec-

tion 8 and general paragraph of section 8 of the food and drugs

act, as aforesaid: and alleges the fact to be that the statements on said

labels

“Excelsior Brand apple cider vinegar

Made from selected apples ~

FRNA LORE YES EOS AR RPE

2A aS! PETS

eit Ae ee

SOK RSENS I A A NPIL LT OR

6 UNITED STATES VS. DOUGLAS PACKING CO.

and

“ Guaranteed to comply with all

Pure food laws”

are true and correct, and claimant denies that said words and figures

are false and misleading, and deceive and mislead the purchaser as

alleged in subhead B of paragraph I of said libel.

tion of and offered for sale under the distinctive name of another

article, to wit: “ Apple cider vinegar,” contrary to and in viola-

tion of paragraph first of section 8 of the food and drugs act, afore-

said.

Claimant again avers and insists that said vinegar is pure apple

cider vinegar, and denies that it is subject to seizure and contfisca-

tion within the meaning and intent of Section 10 of said Act.

Il.

Claimant admits that said barrels of apple cider vinegar, as afore-

said, were shipped in interstate commerce by it from Fairport, New

York, to Fisher Brothers, Cleveland, in the State of Ohio, in the

division and district aforesaid, via the New York Central Rail-

road Company on or about November 24, 1919, as averred in para-

graph II of said libel, and that said apple cider vinegar was at the

time of the commencement of this action, and still is, within the

jurisdiction of the United States and of this court.

II.

It denies that the averments of said libel are true, save as herein-

before admitted, and avers that the charges in relation thereto are

as hereinbefore set forth.

Therefore, claimant prays that this honorable court will pronounce

against the demand of the libelant in this libel mention, with costs.

Wuirtr, Jounson, Cannon & Spreru,

Attorneys for Plaintiff.

10 | Jurat showing the foregoing was duly sworn to by Earl

J. Neville omitted in printing. ]

11 In United States District Court.

Application by claimant, Douglas Packing Company.

Filed Jan. 30, 1922.

Now comes the claimant, The Douglas Packing Company, and

moves the court for an order permitting it to withdraw the answer

which it heretofore filed in this case and granting leave to file its

demurrer instanter.

Wuirr, Jounson, Cannon & Spiern,

Attorneys for Douglas Packing Co.

SEEN ALM Pe MECN Ec BOI ALA NGA VOL SERN A Me PS EIN BRED BLASS LBP PEE HEE LO ASABE

UNITED STATES VS. DOUGLAS PACKING CO.

In United States District Court.

Order granting motion to withdraw answer.

Entered Jan. 30, 1922, by D. C. Westenhaver, Judge.

This matter came on this day to be heard, on the application of

The Douglas Packing Company for leave to withdraw its answer

and to file a demurrer, and on due consideration, the court being

fully advised in the premises, said motion is granted.

In United States District Court.

Demurrer by Douglas Packing Company to libel of information.

Filed Jan. 30, 1922.

Now comes the claimant, Dove.as Packing Company, by its at-

torneys, Wurrr, Jounson, Cannon & Srreru, and demurs to the

libel of information in forfeiture, and for cause says :—

Said libel does not state facts constituting a cause of action and

warranting the relief prayed for.

Wuirr, Jounson, CANNON & SPIETH,

Attorneys for Douglas Packing Co.

12 In United States District Court.

Opinion of court on demurrer.

Filed April 29, 1922.

WesTENHAVER, J.

The Court: This case was argued and submitted on a general de-

murrer by the defendant to the libel. At the time it was submitted

counsel for defendant announced that the defendant desired a trial

of the case on the merits at the time the case was assigned for trial

on the calendar, in the event this demurrer should be overruled.

Whether that trial can be had, even if the demurrer is overruled, de-

pends upon the state of the trial calendar, and if the trial is to be

before a jury, and upon oral testimony, I foresee that it will not be

possible to meet with the wishes of counsel. However, in order that

the case may be placed in condition for trial as soon as possible, I

have decided to dispose of the demurrer now by an oral announce-

ment, foregoing my original purpose of making an extended con-

sideration of the authorities cited and filing a written memorandum.

BONILLA Pate Ee LIFE hen?! CO RL Manel URN OT NS LR CORBIN nl ROO AN Ri Be RONEN Khanh aan Heats

8 UNITED STATES VS. DOUGLAS PACKING CO,

The libel charges that the ninety-five barrels of vinegar in questior

were adulterated and misbranded under the pure food and drugs

act. The libel shows that branding to be as follows:

* Douglas Packing Company

Excelsior Brand apple cider vinegar made

from selected apples

Reduced to four per centum,

Rochester, N.Y.

Guaranteed to comply with all pure food laws

Douglas Packing Company,

Rochester, N.Y.”

The libel further alleges that the product thus labeled consisted

in whole, or in part, of vinegar made from evaporated or dried fruit,

and that vinegar thus made from evaporated or dried fruit is an

adulteration of vinegar within the meaning of the food and drugs

act. Whether this is in fact an adulteration, | am not at this time

prepared to say. The case of adulteration is not so strong as is the

case made by the libel as to the misbranding, and it is on this latter

ground that I feel the demurrer must be overruled.

Respecting the misbranding. the allegations of the libel are that

these ninety-five barrels of alleged apple cider vinegar are mis-

branded in that the statements of label represent that it 1s

3 apple cider vinegar made from selected apples and manufae-

tured to comply with all pure food laws, including therein |

State as well as national food laws: that these allegations are false

and misleading and tend to deceive and mislead the purchaser, since

the analysis shows that the vinegar was made in part, at least, from

evaporated or dried fruit: also that this label is misleading in that

the product to which the label is applied is an imitation of, and

offered for sale under the distinctive name of another article. to wit,

apple cider vinegar. These allegations of the libel characterize and

interpret, ina general way. the alleged misleading brand.

It is further averred that cider, or vinegar made from evaporated

or dried apples, is not the same thing as apple cider vinegar made

from the fresh juice of fresh apples, and that this label conveys to

the ordinary purchaser, the general public which buys and uses vin-

egar, the false. erroneous and misleading impression that it is made

from the fresh juice, or cider, of fresh apples. It is true that these

general allegations are an interpretation, or characterization, of the

words of the label, but at the same time it is settled law that general

allegations are sufficient in the absence of an allegation to make more

definite and certain, and will sustain a pleading against a general

demurrer. In the face of these allegations I could not well, on de-

murrer, hold that there is not at least a charge in the libel of mis-

branding. These allegations do charge that vinegar made from

evaporated or dried apples is not the same thing as vinegar made

from the fresh juice of apples, or cider, in the ordinary acceptation

of the word. In substance this is a charge that there is substituted

for apple cider vinegar made from cider, as that word is conmmonly

—

1 een

UNITED STATES VS. DOUGLAS PACKING CO. i)

understood, another and a different product, or, at least, a product

made by a process other and different from that which the ordinary

purchaser would understand from this label was used. Upon this

interpretation of the libel I feel myself bound to overrule the de-

murrer,

IT can not well take judicial notice of the facts urged in support of

the demurrer, as tending to show that there was no adulteration or

wisbranding. Defendant’s contentions, | understand. are these: that

apples are first selected, that they are then dried and evaporated,

that the process used in drying and evaporating does nothing to the

apples except to extract therefrom the water contained in the

14 upples and present in fresh cider: that in the drying. or

evaporating process, sulphuric acid, or another chemical,

is used in small quantities, but that later when these apples are

to be used they are then put through some process: that this new

process consists merely in restoring the water originally extracted;

that cider of the same taste, kind and quality as fresh cider can,

and is, then made from these apples, and that the amount of sul-

phuric acid, or other acid, is eliminated by precipitation. This. it is

claimed, produces cider in the same sense as the word is understood

when applied to the fresh juice of apples. It is further claimed that

this cider has the same constituent qualities and is of the same taste

as fresh apple juice and is, in fact, that product which the common

man, has from time immemorial understood is meant by the word

cider. It is further contended that this cider passes through the

same process of fermentation, thereby producing alcohol, and

through the further processes of chemical changes, whereby the alco-

hol is destroyed and converted into acetic acid, and that the resultant

product is vinegar conforming with the Government’s standards for

vinegar, that is, therefore, apple cider vinegar in the same sense in

which that phrase is understood and within the meaning of the label.

Whether if these facts were proved and this process disclosed

these results the charge of adulteration or misbranding would still

be sustained is the meritorious question which the parties desire the

court to decide. If I had these facts before me in such a way as to

make them a part of the record, | would be willing to decide it. I ;

do not, however, feel at liberty upon this demurrer to assume these

facts to be true and then express an opinion thereon. I would not

thereby be deciding any question involved in the case. If, upon such

an assumption of the facts I should sustain the demurrer, and the

Government should then elect to stand upon its demurrer and prose-

cute error, the defendant would, in the Circuit Court of Appeals,

be confronted, as IT am confronted with the allegations of the libel,

and if that court took the view that I take as to the meaning of the

allegations of the libel, a reversal would result with no expression

of opinion upon the question of merit. If, on the other hand, upon

that assumed state of facts I should overrule the demurrer and the

plaintiff should elect to stand thereon and a final judgment were

rendered, then on error the parties would be confronted in the Cireuit

En ee

RESET MIA GS AU? GPL SRI Pat LASS

10 UNITED STATES VS. DOUGLAS PACKING CO. |

Court of Appeals with the same difficulty. The defend.

15 ~—s ant _~would not, in that event, be able to get an expression of

opinion in that court upon the merits. The fact is, that the

question which the parties wish decided is now presented only in

moot form.

For these reasons I am of the opinion that the demurrer should

be overruled. It seems to me that the parties should have no diff-

culty in stipulating or agreeing upon these facts. If they are un-

willing or unable to agree, then the best suggestion I can make,

in order to get the question promptly decided, is that they file a

stipulation in writing, waiving the right to a jury trial and consent

that the testimony may be taken before a master. If this were done,

no doubt I could find an open hour some day in the near future

when the case could be presented and heard.

In taking testimony it does not seem to me that it would be

helpful to bring in the testimony of jobbers and merchants to testify

how they interpret, or understand, this label or brand. That kind

of testimony seems to have been produced before Judge Geiger.

I leave, however, counsel to determine the range of testimony if

they should agree to have it taken before a master. If the case

were heard before me, I am inclined to think I should sustain an

objection to testimony of that kind.

The demurrer is overruled and an exception may be noted.

Steatictiatkt haan atin aber eh ee cea ee

In United States District Court.

a mh 3

Order overruling demurrer.

Entered April 29, 1922, by D. C. Westenhaver, Judge.

This cause having been submitted to the court on a previous term

of this court, on the demurrer of the Douglas Packing Company,

on consideration thereof the court overruled said demurrer, to which

_ ruling of the court the Douglas Packing Company, by its attorneys,

excepts.

oh ee Cay YOR

Pepe,

16 In United States District Court.

Agreed statement of facts.

Filed Aug. 22, 1922.

Libellant and claimant herein, desiring to submit this case to the

court, upon the pleadings and an agreed statements of facts, hereby

stipulate and agree that:

(1) Claimant, the Douglas Packing Company, is a New York

corporation, with its principal office in the city of Rochester, New

York, and with factories at Fairport and Canastota, New York. It

is now and has been since January first, 1906, engaged in manu-

ity rss

UNITED STATES VS. DOUGLAS PACKING CO. 11

facturing food products from evaporated and unevaporated apples.

From fresh apples it manufactures apple cider and apple cider

vinegar, and from the evaporated apples it manufactures, by a proc-

ess which is fully described in the section numbered (4) hereof

products which it designates as “apple cider” and “ apple cider

vinegar.” From the pulp of unevaporated apples and the pulp of

the evaporated material it manufactures a product which it calls

* Pectin.”

(2) During the apple season, between about September 25th and

December 15th, sound, mature, unevaporated apples are used by

claimant, and for the balance of the year evaporated apples of like

quality, including as large a portion thereof as claimant can manu-

facture in its own evaporating plants, located one in Vermont, one

in Massachusetts, and one at Canastota, New York.

(3) With such apples as are evaporated by claimant the most ap-

proved process for dehydrating fruits is used. In dehydrating, small

quantities of sulphur fumes are used to prevent rot, fermentation,

and the consequent discoloration. The principal result of the dehy-

dration process is the removal of about eighty per cent (80%) of

the water. Whether and to what extent any other constituents of

the apple »re removed by the process of dehydration is not. wholly

beyond controversy; in the present state of chemical science no ac-

cepted test or method of analysis is provided, so far as the parties

to this controversy are advised, for determining to what extent

any constituents of the apple other than water are removed by the

process of dehydration. Only mature, sound fruit, free from rot

and fement, can be economically and advantageously used.

(4) In manufacturing from evaporated apples, claimant places

in a receptacle a quantity of such evaporated apples to which

17 an amount of pure water substantially equivalent to that re-

moved in the evaporating process has been added. A weight

of more than one (1) ton is then placed on top of the apples and a

stream of water, under a sufficient head, introduced through a pipe

at the top of the receptacle, is applied until the liquid, released

through a vent at the bottom of the receptacle, which vent opens

as the stream of water is applied and closes as it ceases, has carried

off in solution such of the constituents of the evaporated apples

as are soluble in cold water and useful in the manufacture of

vinegar.

Such liquid, which is substantially equivalent in quantity to that

which would have been obtained had unevaporated apples been used

carries a small and entirely harmless quantity of sulphur dioxide,

which is removed during the process of fining and filtration, by

the addition of barium carbonate, or some other proper chemical

agent, which by precipitation eliminates such sulphur compounds.

The liquid is then subjected to aleoholic and subsequent acetic

fermentation in the same manner followed by the manufacturer of

apple cider vinegar made from the liquid content of unevaporated

apples.

“re

“et

CM rt Se ES, OA

BEAMS ES DI

emg

aN Gabe

Neat

RSET AE,

Se OLRM SG LEW Tie, REM RRL eo NAL TL TAI SS WG OLVERA URE IOS FOR RAS YIP LOREEN OEY 7

t _—

12 UNITED STATES VS, DOUGLAS PACKING CO,

Claimant employs the same receptacles, equipment, and process of

manufacturing for evaporated as for unevaporated apples except

that in the case of evaporated apples pure water is added as afore-

said, and in the process of fining and filtration an additional chem-

ical agent is used to precipitate any sulphur compounds present and

resulting from dehydration.

After fining and filtration, the resultant liquid obtained by claim-

ant upon chemical analysis will give results similar to those obtained

by chemical analysis of apple cider made from unevaporated apples,

except that the liquid made from evaporated contains a trace of

barium incident to the process of manufacture. There is no claim

by the libellant that this trace of barium renders the product deleter-

ious or injurious to health.

The vinegar made from the resultant liquid is similar in taste and

in composition to the vinegar made from unevaporated apples, ex-

cept that the vinegar made from evaporated apples contains a trace

of barium incident to the process of manufacture. There is no

claim by the libellant that this trace of barium renders the produet

deleterious or injurious to health.

It is conceded that the vinegar involved in this proceeding is

vinegar made from dried or evaporated apples by substantially the

foregoing process.

18 (5) There is no claim by libellant that the vinegar manu-

factured by claimant, and seized in the respective actions in

this jurisdiction, is inferior to that made from unevaporated apples.

(6) Since January 1, 1906, until the commencement of this action,

claimant has sold, throughout the United States, its product, manu-

factured from unevaporated as well as evaporated apples, as “ apple

cider” and “apple cider vinegar,” selling its vinegar under the

brand “Excelsior Brand apple cider vinegar made from selected

apples,” or “Sun Bright Brand apple cider vinegar made from

selected apples.” At the time of the commencement of this action

claimant was so manufacturing and selling about 100,000 barrels of

vinegar a year.

(7) Each of the parties hereto may submit such exhibits, properly

labeled and identified, as they desire of the liquids from unevaporated

apples and evaporated apples, including samples of the vinegar

seized in this jurisdiction.

(8) It is not disputed or questioned in this case that the juice of

unevaporated apples, when subjected to alcoholic and subsequent

acetous fermentation, is entitled to the name “apple cider vinegar.”

(9) For several years prior to the enactment of the Federal food

and drugs act and subsequent thereto, vinegar in large quantities

and to a certain extent a beverage, made from evaporated apples,

were sold in various parts of the United States as “apple cider

vinegar” and “apple cider,” respectively, by many manufacturers,

including the American Fruit Products Company, of which company

_ FY MAN MOEA ESRI SO A ANT Et OWE MPR NED SAIN te 4 aS! WW, Ae ie ee Sua var nent ret TE

UNITED STATES VS. DOUGLAS PACKING CO. 13

Robert Douglas, president of claimant company, had been produc- t

tion manager. The American Fruit Products Company operated i

eleven plants located in New England, New York, and Michigan. ;

(10) Since January 1, 1906, the claimant has manufactured such E-

products and sold them labeled “ Apple cider vinegar” and “Apple *

cider,” respectively, and in doing so acted in good faith. f

The United States Department of Agriculture has never sanctioned b

such labeling, and its attitude with reference thereto is evidenced by 3

the definition of “ apple cider vinegar” set forth in cireulars 13, 17, €

19, and 136 of the Office of the Secretary of the United States De-

partment of Agriculture and Food Inspection Decision 140.

19 (11) From the report of the United States Census Bureau

it appears that in 1910 there were 430 manufacturers of cider

and vinegar, and the value of the product manufactured was $2,-

254,000.00, and from the report of the Census Bureau of 1920 there

were 720 engaged in the manufacture of cider and vinegar, and the

value of the product manufactured was $24.671,000.00.

Gerarp J. Piiiop,

Assistant United States Attorney.

United States Attorney, for Libellant.

Wuirr, Cannon & Spiern,

Attorneys for Claimant.

In United States District Court.

Answer.

Refiled Aug. 22, 1922.

(See page 8 of this record.)

In United States District Court.

Stipulation waiving trial to jury.

| Filed Sept. 14, 1922.

The undersigned, libelant and claimant in this action, agree that

a jury is waived on the trial of this cause and that the same shall

be submitted to the court in lieu of a jury to find upon the issues

of fact arising therein.

Dated, September 14th, 1922.

E. S. Werrz,

U.S. Attorney.

Wuirtr, Cannon & Spteru,

Attorneys for Claimant, The Douglas Packing Company.

RPT LALA MEEPS NEE

oh 4

_— . —

14 UNITED STATES VS, DOUGLAS PACKING CO,

20 In United States District Court.

Order directing that exhibit of claimant be placed in cold storage.

Entered Sept. 27, 1922, by D. C. Westenhaver, judge.

It appearing to the court that the claimant, the Douglas Packing

Company, has filed herein an exhibit consisting of sample bottles

of cider, sweet and fermented, and vinegar, under an agreed state-

ment of facts, and that said sample, in order to be preserved in

{

3 its present state, should be placed in cold storage until such time as

4 it is to be used in the hearing of this case.

: It is hereby ordered that such exhibit be placed in the cold storage

department of the Sheriff Street Market, Cleveland, Ohio, the

claimant herein, the Douglas Packing Company, to pay the storage

4 and expenses incident thereto.

In United States District Court.

O pinion.

Filed Nov. 1, 1922.

Wesrennaver, District Judge:

The Government has seized and libeled. and now seeks to condemn

95 barrels of vinegar shipped in interstate commerce, on ‘ .e ground

that this vinegar is adulterated and misbranded. The shipper,

Douglas Packing Company. has appeared and claimed the vinegar,

and makes defense. A jury trial has been waived in writing, and

the case tried to the court on an agreed statement of facts.

None of the material facts is in dispute. The vinegar is labeled

“Excelsior Brand apple cider vinegar made from selected apples

reduced to four per centum. Guaranteed to comply with all pure

food laws.” This vinegar is not made from the expressed juice of

fresh apples as pure cider vinegar is commonly understood to

21 be made, but is made from evaporated apples. Claimant, it

is agreed, selects mature, sound fruit, free from rot and fer-

ment, and dehydrates same by the most approved processes. In

the process of dehydrating, small quantities of sulphur fumes are

used to prevent rot and fermentation and subsequent discoloration.

The principal result of dehydration is the removal of about eighty

per cent of the water content of the apples. Whether in dehydration

any other constituents of the apple are removed, is not beyond con-

troversy, as in the present state of chemical science no accepted test

or method of analysis is known to the parties for determining that

problem. In manufacturing vinegar from apples thus evaporated,

claimant places in a suitable receptacle a given quantity of evapo-

rated apples, to which is then added an amount of pure water sub-

stantially equal to the amount previously removed by evaporation.

PREEE SS PS GSD AEA DEBS BAAD ME POETS ENCE EOL, Ee AN os ete ee Pat APL LWIE ES LA DAPI SEI ©

UNITED STATES VS. DOUGLAS PACKING CO. 15

Pressure is applied at the top of this mass, and a stream of water

under sufficient head is introduced at the top through a pipe and

is applied until the liquid released through a vent at the bottom

has carried off in solution such constituents of the evaporated apples

as are soluble in cold water and useful in the manufacture of vinegar.

The liquid product thus obtained, it is agreed, is substantially equal

in quantity to that which would have been obtained had fresh

apples been used. This liquid carries a small and entirely harmless

quantity of sulphur dioxide, which is removed later in the process

of fining and filtration by the addition of barium carbonate or some

other proper chemical agent which by precipitation eliminates the

sulphur compound. The liquid, after this treatment. gives, upon

chemical analysis, results similar to those obtained by the chemical

analysis of apple cider made from fresh apples, except that it con-

tains a trace of barium. No claim is made that this trace of barium

renders the product deleterious or injurious to health. The subse-

quent process of aleoholic and acetic fermentation is the same as

that commonly followed in making vinegar from the expressed juice

of fresh apples. The vinegar thus made is similar in taste and

composition to the vinegar made in the usual way from fresh apples,

except that it contains a trace of barium. No claim is made that

this trace of barium renders the product deleterious or injurious to

health. Claimant uses in making vinegar in this Way, the same

receptacles, equipment, and process as is used in making cider and

vinegar from unevaporated apples. It has been making and

22 selling apple cider and apple cider vinegar thus produced,

continuously from a period antedating January 1, 1906,

Other cider and vinegar makers have been doing the same. The

total amount thus produced and sold has been and is very large.

The United States Department of Agriculture has, however, never

sanctioned such labeling and its attitude with respect thereto is

evidenced by circulars 13, 17, 19, and 136, and Food Inspection De-

cision 140. Exhibit samples of cider fermented and unfermented

made from fresh and evaporated apples, and vinegar made from both

kinds of cider, have been submitted and were personally examined

by me. There are slight differences in appearance and taste. but

all have the appearance and taste of cider and vinegar. The fore-

going are all the facts material to the determination of this con-

troversy.

The Government claims that the Vinegar in question thus manu-

factured is adulterated, in that there is substituted for genuine apple

cider vinegar « manufactured product from evaporated apples. in

violation of par. 1 and 2, sec. 7, food and drug act, June 30, 1906:

also that it is misbranded. in that the statements on the label,

“Apple cider vinegar made from selected apples and guaranteed to

comply with all pure food laws,” are false and misleading, in viola-

tion of general paragraph, sec. 8, and par. 2 and 4, sec. 8 of said

act; and also that it is misbranded, in that it is labeled in imitation

83183—24——_2

ASB SEIS

ch a ak

ORAM E EAENR SS NIS PYEATY ey

16 UNITED STATES VS. DOUGLAS PACKING CO,

of and offered for sale under the distinctive name of another article,

to wit, apple cider vinegar, in violation of par. 1, sec. 8 of said act.

Claimant vigorously and earnestly disputes each and all of these

contentions.

This case has received the careful consideration which the magni-

tude of the interests and the importance of the question involved

have demanded. My conclusion is in accord with the unreported

decision of Judge Geiger of the Eastern District of Wisconsin. In

my opinion, this vinegar is misbranded, if not adulterated, within

the meaning of said act.

Vinegar is a food product, as defined in sec 6 (U.S. Comp. Stat.

1916, sec. S722) of said act. It is probably not adulterated within

the meaning of par. 1, sec. 7. Whether it is adulterated within the

meaning of par. 2, sec. 7, will not be determined by me. The ques-

tion of whether it is adulterated within the meaning of that para-

graph turns on whether or not vinegar manufactured by the process

above described is a substitution in whole or in part of one

2: article for another: that is, a spurious vinegar for apple cider

vinegar. Claimant’s contention is that apple cider made by

expressing the juice of fresh apples, and its liquid product produced

as above described, from evaporated apples, are both apple cider,

and that the difference resolves itself merely to a controversy over

the process by which apple cider and apple cider vinegar are made,

However, as I am content to dispose of this case upon the question

of misbranding alone, no opinion need or should be expressed upon

this aspect of the controversy.

The applicable provisions of the food & drug act with respect to

misbranding, are sec. 8, general paregraph, and paragraphs 1 and 2

and 4 of sec. 8. The general paragraph of sec. 8 provides: * The

term ‘ misbranded* as used herein shall apply to all * * *. ar

ticles of food, or articles which enter into the composition of food,

the package or label of which shall bear any statement, design, or

device regarding such article, or the ingredients or substances there-

in contained which shall be false or misleading in any particular.”

Thus is appears that the false or misleading statement which is for-

bidden applies as much to the food article as to the ingredients or

substances of which it is made: hence any statement regarding the

article which is false or misleading, is within the definition of “ mis-

branding.” Par. 2 provides that in case of foods an article shall be

deemed to be misbranded * if it be labeled or branded so as to deceive

or mislead the purchaser.” Par. 4 says it shall be deemed to be iis

branded “if the package containing it, or its labels, shall bear any

statement, design, or device regarding the ingredients or the sub-

stance contained therein, which statement, design, or device shull be

false or misleading in any particular.” In this paragraph the false

or misleading statement applies only to the ingredients or substance

of the article, but the language used emphasizes that the objcet of

the law was to prevent the purchasing public from being misled or

deceived in the sale and distribution of food products. Par. 1 says

ree REREAD CLIC DOOR DEIN AT i EL LEAL ORES Bi a \ DEEN OIG

UNITED STATES VS, DOUGLAS PACKING Co. 17

an article shall be deemed to be misbranded “if it be an imitation

of or offered for sale under the distinctive name of another article.”

The general purpose, as well as the explicit prohibitions of the law,

is to be determined from these statutory provisions.

These provisions have been often considered by the courts. The

food & drug act, although penal in its nature, is not given a strict

construction, but one which will reasonably tend to acecom-

4 plish its general object and purposes, U.S. vs. Antikamnia

Co., 231 U. S. 654, 665. 666; Frank vs. U.S. (6C.C. A.) 192

Fed. 866, 869-70. All the words and terms used therein should be

given their proper and usual signification and effect. U.S. Vs.

Lexington Mill Co., 232 U.S. 399. 409-10. The courts take judicial

notice of the usual meaning and definition of familiar words. Nix

vs. Hedden, 149 U. S. 304. As regards misbranding, Mr. Justice

Day, in U.S. vs. Lexington Mill Co.. supra, says: “* The legislation,

as against misbranding, intended to make it possible that the con-

sumer should know that an article purchased was what it purported

to be; that it might be bought for what. it really was and not upon

misrepresentations as to character and quality.” In U.S. vs. Anti-

kamnia Co., supra, 231 U. S. 654. Mr. Justice McKenna, at p. 665,

siys: “ The purpose of the act is to secure the purity of food and

drugs and to inform purchasers of what they are buying. Its pro-

visions are directed to that purpose and must be construed to effect

it.” Numerous Circuit Court of Appeals and District Court cases

have been decided, declaring the same rules and emphasizing more

particularly that the prohibition of misbranding is designed to pre-

vent deceiving or misleading the purchasing public, even though the

article sold is in itself equally good or not injurious to health. See

Brina vs. U. S. (2 C. C. A.), 179 Fed. 373: Frank va. U.S (06°C. C.

A.), 192 Fed. 866, 869-70: U. S. vs. Tepee Apples (D. C.), 179 Fed.

85; U. S. vs. Scanlon (D. C.), 180 Fed. 485: U. S. vs. 10 Bar-

rels of Vinegar (D. C.), 186 Fed. 399: U. S. vs. 100 Barrels of Vine-

gar (D. C.), 188 Fed. 471. The decisions of State courts under pure

food laws of similar character, are to the same effect. See People

vs. Girard, 145 N. Y. 105: People vs. Niagara Fruit Co., 77 N.Y. S.

805, affirmed, 173 N. Y. 629: People vs. Douglas Packing Co., 194

N.Y. S. 638. Such, in brief outline, are the rules of law applicable

to this controversy.

Claimant’s label does, in my opinion, tend to mislead and deceive

the ordinary purchaser and user of vinegar. Cider is defined by

Webster as “the expressed juice of apples.” By the word “ex-

pressed * is meant expelled or forced out. From time immemorial

apple cider has been understood to mean the expressed juice of fresh

apples and not of dried apples. Apple vinegar or apple cider vinegar

likewise in the popular mind has from time immemorial been under-

stood as meaning vinegar produced from apple cider thus de-

fined. Claimant’s label conveys the impression that this

2% vinegar is made from that kind of apple cider and that this

apple cider is made in the common and familiar way from

ga RS EC EN

eattee

on es

SRC ELE PUT

Nae Gi be td Nags EE ah

18 UNITED STATES VS. DOUGLAS PACKING CO.

fresh or undried apples. The mere fact that the words “apple

cider ” and “ selected apples ” are brought together in the same label,

conveys unmistakably this impression and repels any other or dif-

ferent impression. Apple cider is a well-known product. Apples

are a well-known fruit. Cider means nothing else to the ordinary

mind than the expressed juice of fresh and undried apples. Apples

mean nothing else to the ordinary mind than fresh and unevaporated

apples. A merchant who advertises and offers apples for sale could

not compel a purchaser to accept dried or evaporated apples. The

latter are not apples as that word is understood in the trade or bya

person of ordinary intelligence, but are a manufactured product, an

entirely different article. Nor, in my opinion, could a merchant who

offers apple cider for sale, compel a purchaser to accept a liquid

made from evaporated apples in the manner above described, even

though it does possess substantially the same chemical constituents

and has substantially the same taste as the expressed juice of fresh

apples. Claimant's label consequently misleads and deceives. I

makes a statement with respect to an article of food which conveys

the false notion that this article is vinegar made from the expressed

juice of fresh apples.

Claimant earnestly contends that its product is vinegar because it

conforms to the chemical tests prescribed for vinegar by circulars

of the United States Department of Agriculture, No. 13, 17, 19, and

136. It also contends that it is made from apple cider because appk

cider is only the juice of apples, and that its process first merely

extracts the surplus water, and later restores it. and hence the re

sulting liquid obtained by pressure is apple juice or apple cider.

even if it is not the expressed juice of fresh apples. This being s0,

it further contends that the board of food & drug inspection pro

vided by the pure food & drug act, have no power under the law ti

declare, as it did, by Food Inspection Decision 140, that vinegar

made from dried or evaporated apples is not entitled to be called

vinegar without further designation. It may be admitted that thi

board has no power to add to or to take from the law. It does not

however, follow that claimant's label is true and does not tend to mis

lead or deceive, or that what the Government is complaining of i

not misbranding but a process of making apple cider and appl

cider vinegar. Claimant’s argument overlooks certain mate

26 rial and controlling considerations. One is that apple cide

as defined in the dictionaries and as commonly and popular!

understood, is the expressed juice of fresh apples, and that appl

vinegar is commonly and popularly understood to be produced by th

alcoholic and acetic fermentation of that kind of cider. Another !

that the law was designed to prevent the ordinary purchaser fro

being deceived and misled as to what he is buying, and that ther

fore the test of misbranding is the effect of the label or statemer

upon the ordinary purchaser. A statement that an article is app

cider vinegar made from selected apples can convey no other ide

we COPY BOUND

FG ANG NIE ABATE At ALG PEA ARLE DEAS

to such a person in the present state of common knowledge than that

the vinegar is made from the expressed juice of fresh apples and not

by the manipulation of dried or evaporated apples. If it does, and

the ordinary purchaser is or may be thereby misled or deceived, it is

no answer to say that he gets a vinegar which is equally good. The

object of the law is to let the purchaser know just what he is buying

and to let him decide whether he wants it or not. One may not take

advantage of his prejudices or want of information to sell him some-

thing different from what he thinks he is buying.

Several authorities have been cited which, while involving facts

somewhat different, tend to support my conclusion. Claimant's label

was under consideration recently in People vs. Douglas Packing

Co. 194 N. Y.S. 633. The decision was upon demurrer and is not a

final adjudication of any point in controversy, but the reasoning of

the opinion impresses me as sound. The New York statute defines

cider vinegar and apple vinegar as a product made exclusively from

the pressed juice of apples, by alcoholic and subsequent acetic fer-

mentation. These terms, it is said, should be taken in their ordinary

and familiar meaning. It is further said: “ The statutory definition

of ‘cider vinegar’ and ‘apple vinegar’ means by this test vinegar

made from apple cider. Even if those terms had been undefined in

the statute, they nevertheless would have had in the popular mind a

well-defined meaning, in that apple cider is known in every house-

hold, and cider vinegar is known to be made from it, though the

chemical processes by which the one becomes the other are generally

unknown. Other vinegars may be perfectly harmless, chemically

undistinguishable, it may be, but calculated to deceive, if marketed

under a false label. The popular notion of cider vinegar and

2% = the ordinary and obvious meaning attached to the words, ex-

clude the notion of making this common article of domestic

use from cider pressed from dried apples. The statute is designed to

enable consumers to get what they believe they are getting under

the labels ‘ cider vinegar’ and ‘apple vinegar’.” In U. S. vs. 100

Cases of Tepee Apples, McPherson, District Judge, held that canned

Arkansas apples and blackberries were misbranded because the label

on the cans gave Michigan cities as the place of manufacture, thereby

conveying the misleading impression that the apples and blackberries

were Michigan fruit. It was contended that Michigan apples and

blackberries were superior in quality to the Arkansas fruit, but this

consideration was disregarded as immaterial, Judge McPherson say-

ing: “ The other purpose (of the law) was to enable a purchaser to

obtain what he called for and was willing to pay for. And under

this latter view, it is immaterial whether Michigan fruits are better

than those grown in Arkansas. A purchaser of canned goods may

prefer Michigan fruits. He may believe them to be better than

Arkansas fruits. He has the right to call for them, and when he

pays or is debited for them, he has the right to have Michigan fruits.

The purchaser has the right to determine for himself which he will

SLOSE IN CENTER ae

UNITED STATES VS, DOUGLAS PACKING Co. 19.

2 ET RRR RS MRE DEL ON TET Chae! P

"a Been

ite

ee TO eee

20 UNITED STATES VS. DOUGLAS PACKING CO,

buy and which he wil! receive and which he will eat. The vendor

cannot determine that for the purchaser. He, of course, can make his

arguments, but they should be fair and honest arguments.” Tp

Brina vs. U. S. (2 C. C. A.) 179 Fed. 373, cottonseed oil was labeled

in large Italian letters “ oil for salad” and in small English letters

“cotton salad oil extra quality “; and this was held to be misbranded,

The trial judge, without evidence, charged the jury that “as a no-

torious fact salad oil prima facie means olive oil” and that mis-

branding resulted, unless evidence were produced to show a different

meaning in the trade. This ruling was assigned as error. In the

opinion of the Cireuit Court of Appeals it is pointed out that salad

oil is defined as olive oil in Worcester’s, Stormont’s Imperial, Eney-

clopedia, and Century Dictionaries, and that no error was com-

mitted in thus charging. Compare U.S. vs. 10 Barrels of Vinegar

(D. C.) 186 Fed. 399; U.S. vs. Seanlon, 180 Fed. 485: Frank ys.

U.S. (6 C. C. A.) 192 Fed. 866, 869-70.

Upon authority, as well as upon principle, it must be held

28 that the charge of misbranding is sustained. The label does

bear statements regarding the article and the ingredients or

substance thereof which are false and misleading, and the vinegar

must be held to be offered for sale under the distinctive name of an-

other article as that name is popularly and commonly understood.

Judgment of forfeiture and condemnation will be entered.

D. C. Wesrennaver,

Judge.

November 1, 1922.

In United States District Court.

Journal entry of judgment.

Entered Nov. 13, 1922, by D. C. Westenhaver, Judge.

The parties, by their attorneys come, a jury trial having been

waived in writing. and submit this cause to the court on the plead-

ings and an agreed statement of facts, which facts are hereby found

by the court to be the facts of this case: on consideration whereof.

the court, being fully and duly advised in the premises, finds on the

issues joined that the ninety-five barrels, more or less, of vinegar

seized herein were shipped in interstate commerce by claimant,

Douglas Packing Company, from Fairport, New York, to Fisher

Brothers, Cleveland, in the State of Ohio, Northern District of

Ohio, Eastern Division, via the New York Central Railroad Com-

pany, a common carrier engaged in carrying freight from one

State of the United States to another State of the United States,

particularly from said Fairport, New York, to said Cleveland,

Ohio; that said ninety-five barrels of vinegar, more or less, were

seized while in the possession of said Fisher Brothers, at Cleveland,

UNITED STATES VS. DOUGLAS PACKING CO. 21

in the said State and district, as aforesaid, and within the jurisdic-

tion of the United States and of this court.

29 The court further finds that all of the allegations of the

libel respecting charges of misbranding are true and correct

and that said ninety-five barrels of vinegar, more or less, seized are

misbranded, contrary to and in violation of general paragraph of

section eight and paragraphs first, second. and fourth of section

eight of the provisions of the act of Congress approved Aune 50,

1806. commonly known and designated as the food and drugs act,

as charged and set forth in said libel.

The court further finds that the allegations of seid libel respecting

the charge of adulteration, within the meaning of paragraph first,

under food, of section seven of said food and drugs act, is unsup-

ported. The charge in respect to adulteration, in violation of para-

graph second, under food, of section seven of said act, no finding

is made.

Therefore, it is ordered, adjudged, and decreed that said nineiy-

five barrels of vinegar, more or less. with their contents, be and the

same are hereby, declared to be misbranded. in violation of general

paragraph of section eight and paragraphs first, second, and fourth

of section eight of the provisions of the act of Congress approved

June 30, 1906, commonly known and designated as the food and

drugs act, as charged and set forth in said libel.

And it is further ordered, adjudged, and decreed that said

ninety-five barrels of vinegar, more or less, labeled and branded

as in said libel set forth, be and the same are hereby condenmed

and forfeited as prayed for in said libel and as provided for in

said act of Congress, and the United States marshal for the North-

ern District of Ohio is hereby ordered and directed to sell, within

twenty (20) days of the date hereof, the said ninety-five barrels of

vinegar, more or less, under such terms and conditions as are not in

violation of said food and drugs act: provided, however. that in the

event of the United States marshal being unable to dispose of said

vinegar by sale, as herein provided, then the said marshal is hereby

ordered and directed to dispose of said vinegar by destruction,

under such terms and conditions as are provided and approved in

said act.

And it is further ordered that if said vinegar be disposed of,

as herein provided, then the proceeds thereof shall be deposited and

disposed of as provided by said food and drugs act.

30) It appearing to the court, however, that said ninety-five

barrels of vinegar, more or less, may be relabeled in such

manner as to render the shipment thereof not in violation of the

said food and drugs act or contrary to the laws of any State, Terri-

tory. or insular possession.

It is, therefore. further ordered, adjudged, and decreed that, upon

the payment of the costs of the libel proceedings herein and upon the

execution and delivery to libelant by claimant, Douglas Packing

r wees ; game: ' — i

“

22 UNITED STATES VS. DOUGLAS PACKING CO.

; Company, of a good and sufficient bond in the sum of one thousand

td dollars ($1,000.00), conditioned that said ninety-five barrels of

ie vinegar, more or less, labeled and branded as aforesaid in said libel,

Ps shall not be sold or otherwise disposed of, contrary to the provisions

of said act or to the laws of any State, Territory, or insular posses-

sion, the marshal shall redeliver and surrender the ninety-five bar-

rels of said vinegar, more or less, so labeled and branded as set

forth in said libel, to said Douglas Packing Company, in lieu of

disposing thereof by sale as aforesaid.

Claimant, Douglas Packing Company, excepts to such finding,

se judgment, and order of forfeiture and condemnation.

The motion by claimant, Douglas Packing Company, to set »side

the finding, judgment. and order of forfeiture and condemnation

and for a new trial is heard and refused, to which ruling claimant,

Douglas Packing Company, excepts.

In United States District Court.

Motion by claimant, Douglas Packing Company, for a new {rial

Filed Nov. 13, 1922.

Now comes the claimant, Douglas Packing Company, by White,

Cannon, and Spieth, its attorneys, and moves the court to set aside

the finding, judgment, and order of forfeiture and condemnation

entered herein, and for a new trial, and for cause of said motion,

says:

31 (1) That the finding of the court, judgment, and order en-

tered herein is not sustained by the evidence.

(2) That the finding of the court, judgment, and order entered

herein is contrary to law.

(3) That the finding of the court, judgment, and order entered is

in favor of libelant, when it should have been in favor of claimant.

be Wuirr, Cannon & Srieru,

rs Attorneys for Douglas Packing Company, Claimant,

See ein

ER ey

In United States District Court.

Order withdrawing claimant's exhibit,

Entered Noy. 13, 1922, by Judge Westenhaver.

It being represented to the court that claimant’s, Douglas Pack-

ing Company, exhibit, consisting of sample bottles of cider, sweet

and fermented, and vinegar, filed in this cause cannot be conveniently

% duplicated, it is ordered by the court that said exhibit be withdrawn

& from the files of this court and forwarded to the clerk of the United

5 States Circuit Court of Appeals for the Sixth Circuit, with the

a transcript of record in this cause, for use at the hearing of this

4 cause in said Cirenit Court of Appeals.

es Nae META AE St Oe i RM aE MEA ROY A Res DESL S KEIO SO pe te SOE HOR See a |

UNITED STATES VS. DOUGLAS PACKING CO. 238

In United States District Court.

Petition for writ of error. .

Filed Nov. 13, 1922. ¢

Now comes Douglas Packing Company, claimant herein, by its :

attorneys, White, Cannon and Spieth, and says that on or about the :

13th day of November, 1922, this court entered a finding, judgment,

and order of forfeiture and condemnation herein in favor of

32 ~—s the libelant and against the defendant, ninety-five barrels,

more or less, alleged apple cider vinegar, and claimant, Doug-

las Packing Company, in which finding, judgment, order of forfei-

ture and condemnation, and the proceedings had thereto in this

cause, certain errors were committed to the prejudice of said defend-

ant and this claimant, all of which will more in detail appear from

the assignment of errors which is filed with this petition.

Wherefore, this claimant prays that writ of error may issue in its

behalf out of the United States Circuit Court of Appeals for the

Sixth Circuit for the correction of errors so complained of and for

such other and further relief in the premises as may be just, and that

a transcript of the record, proceedings, and papers in this cause,

duly authenticated, may be sent to the said United States Circuit

Court of Appeals.

Wuirr, Cannon & Spieru,

Attorneys for Claimant, Douglas Packing Company.

In United States District Court.

Assignment of errors.

Filed Nov. 13, 1922.

Now comes the Douglas Packing Company, claimant in this ae-

tion, and in connection with its petition for a writ of error, assigns

the following errors in the trial and finding, judgment, and order

of forfeiture and condemnation of said District Court in said cause,

as follows:

(1) Said court erred in that the finding, judgment, and order of

forfeiture and condemnation of the court entered herein is not sus-

tained by the evidence.

3 (2) Said court erred in that the finding, judgment, and

order of forfeiture and condemnation of the court entered

herein is contrary to law.

(3) Said court erred in that the finding, judgment, and order of

forfeiture and condemnation was entered against claimant, whereas

the finding and judgment ought to have been rendered in favor of

claimant and against the libelant.

24 UNITED STATES VS. DOUGLAS PACKING CO.

(4) Said court erred in overruling claimant's motion to set aside

the finding, judgment, and order of forfeiture and condenmation,

and for a new trial.

(>) For other errors manifest and apparent upon the record,

Wherefore, claimant prays that said finding, judgment, and order

of forfeiture and condemnation may be reversed.

Wurrr. Cannon & Sripri,

Attorneys for Claimant. Douglas Packing Com pany.

In United States District Court.

Order allowing weit of error.

Entered Nov. 13, 1922, by D. C. Westenhaver, Judge.

This 13th day of November, 122, came the claimant, Douglas

Packing Company, by its attorneys, and tiled herein and presented

to the court its petition praying for the allowance of a writ of error,

an assignment of errors intended to be urged by it, praying also Chat

a transeript of the record, proc vedings. nnd papers upon which the

finding, judgment, and order of forfeiture and condemnation herein

was rendered, duly authenticated, may be sent to the United States

Circuit Court of Appeals for the Sixth Judicial Cireuit, and that

such other and further proceedings may be had as may be proper in

the premises.

On consideration whereof, the court does allow the writ of error

upon the claimant giving bond, according to law. in the sum of five

hundred dollars (3500.00), which shall operate as a supersedeas bond.

34 Bond on writ of error or appeal for S500,

Approved and filed Nov. 13, 1922.

{Omitted in printing. |

35 In United States District Court,

Writ of error.

Filed Nov. 1, 1922.

United States Cireuit Court of Appeals for the Sixth Circuit.

Unrrep States or AMERICA,

Sirth Judicial Circuit, ss:

The President of the United States, to the honorable the Judge of

the District Court of the United States for the Northern District

of Ohio, Greeting:

Because in the record and proceedings, as also in the rendition of

the judgment of a plea which is in the said District Court, before

_————— eae a pede ”

UNITED STATES VS. DOUGLAS PACKING CO. 25 F

;

you, or some of you, between the United States of America, plaintiff,

against Ninety-five barrels, more or less, alleged apple cider vinegar,

defendant, and Douglas Packing Company, claimant, a manifest

error hath happened, to the great damage of the said Douglas Pack-

ing Company, as by its complaint appears. We being willing that

error, if any hath been, should be duly corrected, and full and speedy

justice done to the parties aforesaid in this behalf, do command you,

if the judgment be therein given, that then under your seal, distinctly

and openly, you send the record and proceedings aforesaid, with all

things concerning the same, to the United States Circuit Court of

Appeals for the Sixth Circuit, together with this writ, so that you

have the same at Cincinnati, in said cireuit, on the * 13th day of

December next, in the said Cireuit Court of Appeals, to be then and

there held, that the record and proceedings aforesaid being inspected,

the said Cireuit Court of Appeals may cause further to be done

therein to correct that error, what of right, and according to the

laws and customs of the United States should be done.

36 Witness the Honorable William Howard Taft, Chief Justice

of the United States, the 13th day of November, in the year

of our Lord one thousand nine hundred and twenty-two, and of the

Independence of the United States of America the one hundred and

forty-seventh.

[ SEAL. ] B. C. Miter,

Clerk of the District Court of the United States

for the Northern District of Ohio.

By M. E. Bauman,

Deputy Clerk.

Allowed by

D. C. WesTenuaver,

Judge of the District Court.

37-38 Citation in usual form showing service on Gerard J.

Pilliod.

{Omitted in printing. ]

39 In United States District Court.

Stipulation re certification of record.

Filed Nov. 13, 1922.

In accordance with section 7 of rule 44 of the general rules of this

court, it is hereby agreed that the record as presented to the clerk

by the printer, may be certified by the clerk as required by law and

the rules of the appellate court, as a true, full, and complete copy

of the original pleadings, papers, and orders used on the trial of this

* Not exceeding 30 days from the day of signing the citation.

SAE SERA ER eS init >

LEE BREN LAS EE IS as

DY oe ete

EON ote

sect

RAO LED

eae PIAS ENR PIII SE EE LESSEE REE AIA I NGOS TIDE IIGE SE «DRE OEE SEI REO GEIST SBIRE BD ROU Li Bt BEM op eT. Pate ere

Bs UNITED STATES V8, DOUGLAS PACKING CO,

cause, as set forth in the precipe for transcript, without further com-

parison by the clerk.

Gerarp J. Priviop,

Asst. U. S. Atty.,

Attorney for Libelant.

Wuirr, Cannon & Spieru,

Attorneys for Claimant.

40 In United States District Court.

Precipe for transcript.

Filed Noy. 13, 1922.

To the Clerk:

Please prepare transcript of record for the Circuit Court of

Appeals in the above-entitled cause, and include therein the follow-

ing papers and orders:

Title page.

Caption.

Libel.

Claim of Douglas Packing Co.

Answer of Douglas Packing Co.

Application to withdraw answer,

% Order granting motion to withdraw answer.

fe Demurrer.

B Opinion of court on demurrer.

Order overruling demurrer.

Agreed statement of facts.

Answer refiled.

Stipulation waiving trial to jury.

Order directing that exhibit of claimant be placed in cold storage.

Opinion.

Journal entry.

Motion for a new trial.

Order withdrawing claimant’s exhibit.

Petition for writ of error.

Assignment of errors.

Order allowing writ of error.

Bond on appeal.

Writ of error.

Citation.

Stipulation as to printing record.

Precipe for transcript.

Clerk’s certificate.

And deliver all papers to the Gates Legal Publishing Company

for printing.

Wuirr, Cannon & Spiern,

Attorneys for Claimant, Douglas Packing Co.

Fe TTT

WERT NY a Brey ES AIR RENO A Ain EL sid a teguemetteres “

¢ co eh inks ¥ te eh an Ne ANRC NN

UNITED STATES VS. DOUGLAS PACKING CO. 27

41 In United States District Court.

Certificate of clerk.

NorrHern Disrricr or Ou10, 8s:

I, B. C. Miller, clerk of the District Court of the United States

for said district, do hereby certify that the annexed and foregoing

pages contain a full, true, and complete copy of the final record,

including the petition for writ of error, assignment of errors and

bond on writ of error, and all proceedings in said cause, in accord-

ance with the praecipe for transcript filed by plaintiff in error, the

originals of which, except a certain exhibit withdrawn by leave of

court, are now in my custody as clerk of said court.

There is also annexed to and transmitted with such transcript of

record the writ of error and the citation issued and allowed in this

case.

In testimony whereof, I have hereunto signed my name and affixed

the seal of said court, at Cleveland, in said district, this 16th day of

November, A. D. 1922, and in the 147th year of the Independence

of the United States of America.

B. C. Miter,

Clerk.

| SEAL. ] By M. E. Bauman,

Deputy Clerk.

42 Proceedings in the United States Circuit Court of Appeals

for the Sixth Circuit.

Motion to advance cause.

Filed Nov. 17, 1922.

Now comes plaintiff in error, by White, Cannon and Spieth, its

attorneys, and moves the court for an order to advance the within

case for hearing in January, and for cause thereof says:

The question involved arises under the pure food and drugs act,

and relates to the labeling of vinegar made from evaporated and

unevaporated applies.

In the District Court of the United States for the Northern Dis-

trict of Ohio, Eastern Division, there are ten pending cases; in the

District Court at Columbus and Cincinnati there are several similar

cases; and in various other District Courts of the United States

there are about fifty cases, all involving the same question, which

are dependent upon the final determination of the within case.

Plaintiff in error is one of the largest manufacturers of

43 _- vinegar in the United States, and until the present contro-

versy in regard to the labeling of vinegar is settled it is very

seriously handicapped in the manufacture and distribution of its

product. Other manufacturers are in the same situation. The dis-

LAT PETER AT eS ES

28 UNITED STATES VS. DOUGLAS PACKING CO.

tributors of vinegar and the purchasing public are also much in-

terested in having this question of labeling finally determined.

The question involved is, therefore, of general interest and an

early hearing of this case will not only assist in disposing of a large

number of pending cases, but will also be of great benefit and re-

lieve an uncertainty which now exists in the vinegar trade.

Wurrr, Cannon & Sprern,

Attorneys for Plaintiff in Error.

Consent is hereby given for the granting of the above motion.

Gerarp J. Priiiop,

Asst. United States District Attorney for Defendant in Error.

November 16th, 1922.

44 United States Circuit Court of Appeals for the 6th Circuit.

Order advancing cause for hearing.

Filed Nov. 17th, 1922.

This cause is advanced and assigned for hearing at the January

session, 1923.

United States Circuit Court of Appeals for the 6th Circuit.

Appearance of counsel.

Filed Nov. 20, 1922.

Arruur B. Mussman,

Clerk of said court:

Please enter my appearance as counsel for the plaintiff in error.

Wurre, Cannon & Spreru.

United States Circuit Court of Appeals for the 6th Circuit.

Order continuing cause.

Filed Jan. 8th, 1923.

This cause is continued until the February session pursuant to

stipulation of counsel.

45 United States Circuit Court of Appeals for the 6th Circuit.

Order granting leave to file amicus curiae.

On application of Mr. Judson Harmon leave is granted to file

brief as amicus curiae.

REA PAA UCI TaD iN aE. . PDN LI BT ERS ASR ETE sR

UNITED STATES VS. DOUGLAS PACKING Co. 29

United States Circuit Court of Appeals for the 6th Circuit.

Cause argued and submitted.

February 6th, 1923—before Knappe, Denison, and Donahue, JJ.

This cause is argued by Mr. L. C. Spieth on behalf of the plaintiff

in error and is submitted on brief on behalf of the defendant in

error.

United States Circuit Court of Appeals for the 6th Cireuit.

Judgment.

Filed April 3, 1923.

Error to the District Court of the United States for the Northern

District of Ohio. This cause came on to be heard on the transcript

of the record from the District Court of the United States for the

Northern District of Ohio, and was argued by counsel.

46 On consideration whereof it is now here ordered and ad-

judged by this court, that the judgmont of the said District

Court in this cause be and the same is horeby reversed and the cause

remanded for further proceedings in accordance with the opinion

of this court. In accordance with paragraph 2 of rule 27, no costs

are allowed.

United States Circuit Court of Appeals for the 6th Circuit.

O pinion.

Filed April 3, 1923.

47 [Title omitted. ]

Donanut, Circuit Judge:

The United States filed a libel in the District Court for the

seizure and condemnation of ninety-five barrels of alleged apple

cider vinegar, labeled “ Excelsior Brand apple cider vinegar made

from selected apples,” charging that this vinegar is both adulterated

and misbranded in violation of the food and drugs act of June 30,

1906. The Douglas Packing Company, the manufacturer and owner

of this vinegar, intervened and denied that it was either adulterated

or misbranded and asked restitution.

A written waiver of trial by jury was filed and the case was sub-

mitted to the court upon an agreed statement of facts. The

48 trial court found that the vinegar was not adulterated, but

was misbranded in violation of general paragraph of sec-

tion 8 and subparagraphs 1, 2, and 4 as to foods of section 8 of the

‘

£2:

;

PPAR RL WO BTL speietieteanateiedaniniimeiantaas eens ae

30 UNITED STATES VS. DOUGLAS PACKING CO. 1

food and drugs act of June 30, 1906, as charged in said libel and

ordered its condemnation and forfeiture as provided by that act.

It appears from the agreed statement of fact that claimant, the

Douglas Packing Company, is engaged in thesnanufacture of apple

cider and apple cider vinegar: that during the apple season, from

about September 25th to December 15th of each year, sound, mature,

unevaporated apples are used by it in the manufacture of its prod-

ucts, and for the balance of the year evaporated apples of like

quality are used,

The principal result of the evaporation process is the removal of

so% of the water contained in the natural fruit. While it is not

admitted that there are no other constitutents of the apple removed

by this process, yet it is admitted, in effect, that if any other con-

; stituents are removed by evaporation, the amount thereof is so

3 negligible that the science of chemistry is unable to determine that

fact. When the apple season is over and the evaporated apples are

2 used by the claimant, in the manufacture of its products, sub-

stantially the same amount of pure water is added to the evaporated

apples that was removed by the evaporating process. In all other

respects the claimant employs the same receptacles, equipment, and

process as in the manufacture from the unevaporated apple.

Kg In the evaporating process small quantities of sulphur fumes are

54 used to prevent rot, fermentation, and decomposition. This is wholly

4 removed therefrom by the addition of barium carbonate, or some

other chemical that eliminates itself and the sulphur compound by ?

precipitation. After fining (clarifying) and filtration the cider or

liquid obtained from the evaporated apple, upon chemical analysis,

will give results similar to those obtained by chemical analysis of

apple cider made from unevaporated apples, except a trace of ®

barium—in other words, an amount too small to be quantitively

measured. No claim is made that this trace of barium renders the

| product injurious or deleterious to health, and, except for this

: trace of barium, the vinegar made from this cider or liquid obtained

$ from the evaporated apple is similar in taste and composition to the

vinegar made from the cider of the unevaporated apples.

* 49 It was evidently the purpose and intent of the Government

i and the claimant, in subscribing to the agreed statement of :

‘ facts, to eliminate from consideration all unimportant matters and

& confine the issues to important basic questions affecting the substan-

¢ tial rights of the parties. These issues must be determined solely

upon consideration of the facts admitted, regardless of the possibility ¢

that facts might have been established by evidence, at variance there-

: with and more in harmony with a supposed public opinion upon this

subject.

: The libel charges that this vinegar is adulterated in violation of }

3 paragraphs 1 and 2, under food, of section 7 the food and drug

3 act of June 30, 1906, which paragraphs read as follows:

3 “1. If any substance has been mixed and packed with it so as to

2 reduce or lower or injuriously affect its quality or strength.”

EEE, RETR ANB CALE OTR IES LE DH IH EE OS CERI, RED alle AS Seer at ~ -

UNITED STATES VS. DOUGLAS PACKING CO. 31 §

“Ss if any substance has been substituted wholly or in part for

the article.”

It is clear that this trace of barium, which is admitted to be neither

injurious or deleterious, does not constitute adulteration within the

meaning of either of the paragraphs of section 7 of the food and

drug act above quoted. U.S. v. Lexington Mill and Elevator Co.,

232 U. S. 399.

The question whether some other substance has been substituted

wholly or in part for the article known as “ apple cider vinegar” in

violation of the second paragraph of this section will be considered

and discussed in connection with the charge of misbranding.

j It is insisted, however, upon the part of the Government that the

barrels are also labeled “ Guaranteed to comply with all pure food

laws”; that this means not only the Federal food and drug act, but

also the pure food laws of the State where this vinegar is intended

} to be sold at retail, after it passes beyond the jurisdiction of the

Federal authorities. The libel, however, is based solely upon the

adulteration and misbranding of this vinegar in violation of the

Federal food and drug act. While it is alleged that the vinegar was

\ shipped from Fairport, N. Y., to Fisher Brothers, Cleveland, Ohio,

there is no allegation that the vinegar is to be sold in the State of

Ohio or that it is adulterated or misbranded in violation of the

Qhio Statutes, nor is there anything in the agreed statement.

, 50 — of facts in reference to its final destination and place of sale at

retail.

If, however, it were conceded that this libel could be construed as

charging that this vinegar is adulterated or misbranded in violation —

of the terms and provisions of the Ohio law, the same result must

follow. Substantially the same questions are presented under the ~—

Ohio Statute (sec. 5789, G. C.) in reference to misbranding, as are

presented under the Federal food and drug act, which questions will

, be discussed later in this opinion. Upon the question of adulteration

under the Ohio law, no claim is made that this vinegar contains less

than 4% by weight of absolute acetic acid, nor is a mere trace of

barium, which is neither deleterious or injurious to health, a * foreign

substance ” within the contemplation, intent or purpose of sec. 5786

of the General Code of Ohio. U.S. v. Lexington Mill and Elevator

Co., supra.

Section 8 of the food and drug act provides, among other things,

that. in a case of foods, an article shall be deemed to be misbranded

€ if it be labeled or branded so as to deceive or mislead the purchaser,

or it be an imitation of, or offered for sale under the distinctive

name of another article.

The important question in each case is whether the product is the

> identical thing that its brand indicates. If it is the identical thing

indicated by the brand, the method of its manufacture, regardless

of the information of the general public upon that subject, is wholly

unimportant.

§3133—24--——-38

UNITED STATES VS. DOUGLAS PACKING CO,

It appears from the agreed statement of facts that the cider from

which this vingear was made, was manufactured from apples and

from nothing else. The process of its manufacture differed from

the usual method only in so far as necessary to preserve the fruit.

This was accomplished by the evaporation process above described.

When a quantity of water equal to the amount evaporated is added

to the evaporated apples and pressed therefrom it combines with

and carries the solvent properties of the apples just the same as in

the original state, or if not exactly and identically the same, so near

as to defy the science of chemistry to discover the difference. This

is the full scope and effect of the dehydrating process as appears by

the agreed statement of fact.

The conservation, of our food products is of some concern to the

public and, perhaps, second in importance only to the demand

51 for pure and unadulterated food. It is perfectly apparent

that the apple season is altogether too short for the economical

manufacturing of the crop, during the season, into cider vinegar

in sufficient quantities for public consumption. Therefore an

efficient and harmless method of preserving the fruit until it can be

used for this purpose is in the direct interest of the public, and if this

method has accomplished that object without change in the product,

it should be encouraged rather than condemned.

If, after cider has been pressed from unevaporated apples, a large

amount of the water that is a constituent part thereof, is evaporated

therefrom and later an equal amount of water is added thereto, the

constituent elements of cider yet remains and it would hardly be

contended that vinegar made therefrom would not be apple cider

vinegar, yet so far as the agreed statement of facts discloses, there

is substantially no difference between the evaporation of water from

the cider and evaporating the water from the apple before the cider

is pressed therefrom. The water is not all evaporated, leaving

only a hard dried fruit, as may approximately result from sun dry-

ing; 20% of the water remains and this continues to be the condensed

juice of the fruit ready for restoration by pure water dilution to its

original volume. This was the underlying idea of the Allen patent,

No. 268,972, for a dry mince pie compound, in which it appears that

the water was evaporated from the apple for the purpose, as stated

by the patentee, “so that I have the cider in my compound without

useless water, which may be added when the consumer wishes to use

it.” Dougherty v. Doyle, 63 Fed. 475.

It must also be assumed that legislation upon any subject has

some definite and substantial object in view, and is not in furtherance

of technical purposes or barren idealities. It was declared by the

Supreme Court in U. S. v. Lexington Mill and Elevator Co., 232

U. S. 399, that the primary purpose of Congress in enacting the food

and drug act of 1906 was to prevent injury to the public health

by the sale and transportation in interstate commerce of misbranded

and adulterated food. That case involved the manufacture of flour

by a new process, called the “Alsop process,” and while the charge

S.eetertos

UNITED STATES VS. DOUGLAS PACKING Co, 33

there was adulteration, by adding to articles of food consumption,

poisonous and deleterious substances, a much more serious matter

than misbranding, yet the court held that in order to condemn

52 a food product upon the ground that it is adulterated it is

incumbent upon the Government to establish the fact that the

added substances may render the article injurious to health. This

conclusion was reached evidently upon the theory that the legislative

intent was to accomplish a substantial and beneficial result to the

public and not merely for the purpose of exercising an arbitrary con-

trol over private business.

It is undoubtedly true that vinegar not made from apple cider,

even though chemically equal to cider vinegar, may not be branded as

such. On the other hand, Vinegar made from apple cider is not mis-

branded by reasen of its failure to meet the chemical test.

Misbranding is included in the Statutory prohibition because it

bears some relation to the conservation of the public health and not

primarily because a purchaser’s whims were to be protected: and.

though doubtless the test of misbranding a product is Whether it is

true to name, there is no occasion for Overstrictness in applying this

» test ina case where the public health can not possibly be jeopardized.

In the Standard Encyclopedia, under the caption, “ Cider,” it is

said, “Apples commonly used for making cider are by no means

tempting to the palate and are, in fact, unfit for eating raw or ordi-

pary cooking. * * * Jn the United States it is considered that

acertain proportion of decay in fruit improves the flavor,” Keeping

in mind the underlying purpose to protect the public health and the

admissions in this case that the present article is made wholly from

; “sound and mature apples, free from rot and ferment,” it is clear

that condemnation should not be made unless the statute impera-

tively requires it.

Definitions of cider, which include the method or process of its

, manufacture, written long before public needs required the conser-

vation of our food products, are not helpful to the determination of

the question presented in the instant case. Even these definitions

call only for the juice of apples, and do not literally exclude the

pressing of apples dehydrated and later hydrated in equivalent pro-

portions. The missing and essential element for the Government’s

case is found only in the supposed judicial knowledge that the pop-

war definitions have reference only to fresh apples. Such knowl-

edge was declared in the court below, and the judgment based there-

on. The danger of reliance on judicial knowledge founded on past

impressions is well illustrated by the salad oil cases. The very

538 branding which the court, in Brina v. U. S.. 179 Fed. 373, said

it judicially knew was so untrue as to compel the conclusion

of misbranding, two years later, was shown to the same court in

Von Bremen v. U. S., 192 Fed. 904, to be so true as to require an

instructed verdict for the respondent. In the present case it is con-

ceded that this identical product has been sold and accepted by the

trade under this name in great quantities for many years and with-

Seas

Dp AD ciate oti har EONee Rear

‘

34 UNITED STATES VS. DOUGLAS PACKING CO.

out challenge until now. While there is nothing in the agreed state-

ment of facts to show how far this acceptance has been with knowl-

edge, yet the court can not judicially know that this acceptance

was so wholly without knowledge of the facts as to be unimportant.

It is not seriously contended on the part of the Government that

the fluid obtained from pressing the evaporated apples, after the

water taken therefrom has been restored, is not apple cider. It is

suggested that possibly there is some constituent element of the

apple removed by the dehydrating process that is never restored

thereto. There is no proof of that fact, but there is an admission

that even if such consistituent element is removed it is so immate-

rial and inconsequential in quantity that the science of chemistry

can not disclose it. This brings this case clearly within the doctrine

announced in U. S. v. Lexington Mill and Elevator Co., supra, to

the effect that the burden is upon the Government to establish by the

evidence, not merely a technical, but a substantial violation of the

Federal food and drug act, which may render the article injurious

to health or mislead the public to its prejudice or harm or induce

the purchase of a different article than the article desired.

Nor should the fact be overlooked that this is a highly penal

statute. The Government in this proceeding is asking the con-

demnation and forfeiture of ninety-five barrels of vinegar because

it is adulterated and misbranded and the burden is upon the Govern-

ment to establish one or both of these alleged facts.

While the Government is practically conceding in the agreed

statement of facts that the liquid obtained from evaporated apples

by this method is apple cider, identical in taste, substance, and

chemical test with apple cider pressed from the unevaporated apples,

except that there may, perhaps, be some constituent element lacking,

the quantity, if any, being so small that its absence is not shown by

chemical tests, and further conceding that the same has been sold

upon the market for many years as apple cider, and that

54 vinegar made therefrom has been an article cf commerce, at

least since January 1, 1906, under the name and brand of

apple cider vinegar and sold in quantities by this one manufacturer

alone, aggregating 100,000 barrels a year; nevertheless, it is now

insisting that the branding of this product as apple cider vinegar

is calculated to deceive and mislead the purchaser into buying an

article other than the brand implies.

It may be true that a large part of the purchasing public has no

knowledge whatever in reference to the manufacture of cider from

evaporated apples and for that reason might have a distinct preju-

dice against such a method of manufacture. Undoubtedly the pure

food and drug act contemplates the protection of the public in this

regard, but only to the extent that the public shall not be deceived

or misled by the brand into buying an imitation of the article ora

substitute for the article indicated by the brand. If, however, it is

in truth and in fact buying the identical article indicated by the

brand, manufactured from the same basic elements and none other.

JNITED STATES VS, DOUGLAS PACKING Co.

the purpose of the statute is accomplished and the process of manu- ‘

facture is of no importance.

manufacture of maple syrup. The water is partially evaporated

from the sap of a maple tree in order to produce maple syrup. If

the evaporation process is continued until sufficient of the water is A

evaporated, the product is maple sugar. If to this sugar there is

added as much water as was evaporated therefrom in the process —

of reducing maple syrup to maple sugar, and the sugar is dissolved

and held in solution, the product again becomes maple syrup. It

has been held by the pure food department (Circular 136) that

maple syrup manufactured in this way may be properly branded

“Maple syrup.”

Yet, notwithstanding such syrup responds to the chemical tests.

and doubt might be suggested that possibly a constituent element

was removed from the maple syrup in the process of reducing it to

maple sugar that could not be wholly restored thereto. It is also

possible that there might be a popular prejudice against maple

syrup manufactured in this way, yet it would hardly be contended

that Congress is expending its time in the enactment of laws in fur-

therance of perpetuating prejudices founded upon mistake and mis-

understanding and at war with the conceded facts of the ease.

5d Another illustration may test the soundness of the proposi-

tion that there is a misbranding of this vinegar. Cream is

a substance which, by the unaided process of nature, rises to the

top of milk. A generation or two ago this would have been the

popular definition. The process of its development was well known

and required, at the least, some hours of time and favorable condi-

tions. Then it was discovered that the butterfat can be separated

from the milk in a few minutes by a centrifugal separator and that

the product is really cream: yet it is at least probable that for some

time a substantial part of the public would have refused to buy

butterfat in this form unless it had been labeled “ cream” and with-

out disclosing the substitution of artificial for natural methods. So

the catalogue of present-day foods and those that may fairly be

developed will disclose frequent instances of great change in methods

of manufacture, or treatment, without any resulting necessity of

changing the name of the product.

We get no controlling direction from the decided cases. The

salad-oil cases have been mentioned. In the Vinegar Case, 186

Fed. 399, the product was in fact distilled vinegar with a dash of

apple cider. It was labeled as a blend of cider vinegar and distilled

Vinegar. From the view that the court took of the meaning of

the label the misb ‘randing was obvious.

In the Tee Pee Apple Case, 179 Fed. 185, the label was considered

to mean that the apples were grown in Michigan, and this became

a geographical misrepresentation expressly forbidden by the act.

We do not overlook that the New York Supreme Court and the

United States District Court for the Eastern District of Wisconsin

a et ASN atin PAPI Sa ONE ICRE NS 1 DUR: See A : ‘

35 7

£,

ree

sia be ie Si

rece r

qatar ss

Sitiey

pee a

DEE Se EP

36 UNITED STATES VS. DOUGLAS PACKING CO,

have held that claimant’s vinegar is misbranded. In each cage

the opinion seems to be based in part upon inferences and testimony

not presented by this record and in part upon judicial knowledge

that nothing is apple cider unless it is pressed from fresh apples—

an inference wholly inconsistent with the facts here conceded.

For the reasons above stated a majority of the court is of the

opinion that the judgment of the district court is not sustained

by the agreed statement of facts. The judgment is reversed and

cause remanded for further proceedings in accordance with this

opinion.

56 In the United States Circuit Court of Appeals, Sixth

Circuit.

| Title omitted. }

Petition for rehearing.

To the honorable the United States Circuit Court of Appeals for

the Sixth Circuit:

Your petitioner, the United States of America, defendant in error,

by its attorneys, respectfully prays this honorable court to grant a

rehearing of the above-entitled case for the following reasons:

1. Because the judgment and decision of this honorable court filed

herein April 3, 1923, is contrary to law;

2. Because the question thereby decided is of very great

57 public importance in the administration and enforcement of

the Federal food and drugs act, and the officials of the United

States Department of Agriculture, charged by law with the adminis

tration of said statute, believe that there are phases of the issue

involved which were not presented for consideration to this court

at the hearing or in the briefs or the arguments of counsel here-

tofore considered, and that a rehearing would afford opportunity

for a more adequate presentation of the issue from the Government's

standpoint and contribute to a correct settlement of said isste in

this and in other Federal jurisdictions where the same is now being

litigated.

3. Because counsel for the producers of vinegar from evaporated

apples were heard in their behalf amicus curiae in opposition to the

Government’s contentions: while counsel for producers of vinegar

from unevaporated apples, owing to lack of seasonable notice of the

time of hearing this case, was unable to apply to this court for a

like opportunity to be heard amicus curiae in behalf of the Govern-

ment’s contentions.

4. Because there are trade and economic problems and _ phases

intimately connected with the issue, which due to the aforesaid man-

ner of argument have not been heretofore presented to the court in

the briefs and arguments of counsel; and said producers of vinegar

from unevaporated apples respectfully submit that their interests

UNITED STATES VS. DOUGLAS PACKING Co. 87

are adversely affected and their business jeopardized by the rendi-

tion of this honorable court’s decision without a full presentation

and discussion of the issue from the standpoint of their important

food industry. That in the event that this honorable court shall be

pleased to grant a rehearing of this case said producers will be repre-

sented by the general counsel of their trade organization, the Ameri-

can Cider and Vinegar Manufacturers’ Association, with head-

quarters at Rochester, New York, who will apply to be heard herein,

amicus curiae.

58 5. Because this honorable court erred by holding and de-

ciding in substance and effect, that the judgment of the Dis-

trict Court was not sustained by the facts stipulated, inasmuch as

those facts contained in the stipulation which were material to the

issue were alleged in petitioner's libel and were held sufficient upon

demurrer, which said ruling of the District Court upon demurrer,

though excepted to, is not referred to or overruled in the opinion and

decision rendered herein by this honorable court.

6. Because this honorable court erred by failing to sustain the

finding of the District Court that the vinegar libelled was not cider

vinegar, identical with that vinegar represented by exhibits sub-

mitted to said court and conceded to be genuine apple cider vinegar,

inasmuch as said finding was a reasonable inference of fact fairly

deducible from the admitted facts and not subject to be set aside by

this court because it disagreed with said conclusion.

7. Because this honorable court erred by failing to hold and de-

cide that misbranding under the food and drugs act must be deter-

mined by construing descriptive words appearing upon labels of

food and drug articles according to the ordinary meaning and popu-

lar signification of such words to the mind of the purchasing public

rather than according to the technical or trade meaning which said

words may have acquired among manufacturers and vendors of

these commodities,

8. Because this honorable court erred in holding and deciding in

substance and effect that the definition of the terms “Apple cider

vinegar” in their ordinary and popular signification is not properly

a subject of judicial notice.

9. Because this honorable court erred in holding and decid-

59 ing that the definition of the terms, “Apple cider vinegar”

judicially noticed by the District Court and applied by said

court in the determination of the issue before it. was incorrect in

any particular.

10. Because this honorable court erred in holding and deciding in

substance and effect upon the pleadings and stipulated facts herein

that the trade or technical meaning or any secondary meaning what-

soever of the terms “Apple cider vinegar” was involved as a ma-

terial issue in this case.

11. Because this honorable court erred in holding and deciding as

a matter of law upon the record herein that the ordinary and popu-

lar signification of the terms “Apple cider vinegar” could be altered

38 UNITED STATES VS. DOUGLAS PACKING CO,

by the trade practice or usage of manufacturers or vendors of vine-

gar of labeling vinegar produced from evaporated apples as “Apple

cider vinegar,” without a disclosure to the purchasing public of the

fact that such vinegar was made from evaporated apples.

12. Because this honorable court erred in holding and deciding as

a matter of law upon the record herein that the character of raw

material used in the production of the vinegar libelled, the chemical

treatment to which it was subjected, and the process by which it

was manufactured, were negligible factors in determining the com-

mercial identity of the article with the concept of genuine apple cider

vinegar, held by the purchasing public.

13. Because this honorable court erred by holding in substance and

effect that in order to constitute a misbranding under the Federal

food and drugs act the label must be such as to deceive the purchaser

of an article of food or drugs to his substantial injury.

14. Because this honorable court erred by holding in substance and

effect that it was not the purpose of Congress in legislating against

misbranding, to protect ultimate purchasers of articles of food

60 or drugs against deceit, when exercising their right of choice

or selection among different brands, grades or varieties of the

same commodity, even though the exercise of this choice be gov-

erned by whim or prejudice, and not upon considerations of com-

position and quality. —

15. Because this honorable court erred in failing to hold that the

vinegar libelled was both adulterated and misbranded within the

meaning of the food and drugs act, June 30, 1906.

16. Because this honorable court erred by not affirming the judg-

ment of the District Court in this case.

A. E. Bernsteen,

United States Attorney in and for the

Northern District of Ohio.

Gerrarp J. Pr.io0p,

Assistant United States Attorney in

and for the Northern District of Ohio.

Attorneys for Petitioner.

61 {Jurat showing the foregoing was duly sworn to by A. E.

Bernsteen and Gerard J. Pilliod omitted in printing. |

62 United States Circuit Court of Appeals for the 6th Circuit. —

Order extending time to file brief as amici curiae.

Filed May 19th, 1923.

Counsel for the producers of vinegar from unevaporated apples are

rmitted, as amici curiae, to file within fifteen days a brief in sup-

port of the Government’s petition for rehearing.

‘ UNITED STATES VS. DOUGLAS PACKING Co.

Order extending time to file brief as amici curiae.

Filed June 4, 1923.

The time for filing brief on behalf of the producers of vinegar

from unevaporated apples, as amici curiae, upon the petition for re-

hearing herein is hereby extended for a period of ten days.

United States Circuit Court of Appeals for the 6th Circuit.

Order denying petition for rehearing.

Filed June 29, 1923.

The petition for the rehearing of this cause is hereby denied.

63 United States Circuit Court of Appeals for the 6th Circuit.

Order extending time to file petition for rehearing.

Filed April 27, 1923.

Upon application of the United States attorney the time within

which to file petition for rehearing is extended to and including the

i5th day of May, 1923.

Petition for rehearing.

Filed May 14th, 1923.

64 United States Cirenit Court of Appeals for the Sixth Circuit.

Clerk's certificate.

I, Arthur B. Mussman, clerk of the United States Circuit Court of

Appeals for the Sixth Circuit, do hereby certify that the foregoing

is a true and correct copy of the record and proceedings in the case

of Ninety-five barrels of vinegar, etc., vs. United States of America,

No. 3835, as the same remains upon the files and records of said

United States Circuit Court of Appeals for the Sixth Circuit, and of

the whole thereof.

In testimony whereof, I have hereunto subscribed my name, and

affixed the seal of said court, at the city of Cincinnati, Ohio, this

26th day of July, A. D. 1923.

[SEAL. ] Aegruur B. Mussman,

Clerk of the United States Circuit Court of Appeals

for the Siath Circuit.

iat

40 UNITED STATES VS. DOUGLAS PACKING CO.

65 Writ of certiorari and return.

Filed Nov. 6, 1923.

Unirep Srares or AMERICA, 88!

The President of the United States of America, to the honorable the

Judges of the United States Circuit Court of Appeals for the

Sirth Circuit, Greeting:

Being informed that there is now pending before you a suit in

which Ninety-five barrels, more or less, alleged apple cider vinegar

(Douglas Packing Company, claimant), is plaintiff in error, and the

United States of America is defendant in error, No. 3835, which suit

was removed into the said Circuit Court of Appeals by virtue of a

writ of error to the District Court of the United States for the

Northern District of Ohio, and we, being willing for certain reasons

that the said cause and the record and proceedings therein should be

certified by the said Circuit Court of Appeals and removed into

the Supreme Court of the United States,

66 Do hereby command that you send without delay to the

said Supreme Court, as aforesaid, the record and proceedings

in said cause, so that the said Supreme Court may act thereon as of

right and according to law ought to be done.

Witness the Honorable William H. Taft, Chief Justice of the

United States, the twenty-sixth day of October, in the year of our

Lord one thousand nine hundred and twenty-three.

[ SEAL. | Wm. R. Sranspury,

Clerk of the Supreme Court of the United States.

Unirep Srates Crrcurr Court or Apreats, ror THE Sixtu Crr-

CUIT, 88:

I, Arthur B. Mussman, clerk of the United States Circuit Court of

Appeals for the Sixth Circuit, do hereby certify that the transcript

of the record of the proceedings of this court in the within-entitled

case heretofore certified by me for filing in the Supreme Court of the

United States was correct and complete as the same then appeared in

this court.

In pursuance of the command of the foregoing writ of certiorari

I now hereby certify that on the 3rd day of November, A. D. 1923,

there was filed in my office a stipulation in the above-entitled case in

the following words, to wit:

In the Supreme Court of the United States, October Term, 1923.

[Title omitted.]

» UNITED STATES VS, DOUGLAS PACKING co, 41

Stipulation as to return io writ of certiorari.

It is hereby stipulated by counsel for the parties to the above-

entitled cause that the certified copy of the transcript of the record

now on file in the Supreme Court of the United States shall con-

stitute the return of the clerk of the United States Circuit Court of

Appeals for the Sixth Circuit to the writ of certiorari granted

therein.

James M. Beck,

Solicitor General.

Joun G. Wurrr,

A. V. Cannon,

L. C. Sprern,

Wuirr, Cannon & Spreru,

Counsel for Respondent.

Oct. 30, 1923.

I further certify that the above is a true and correct copy of said

stipulation and of the whole thereof. Witness my official signature

and the seal of said Cireuit Court of Appeals at the city of Cinein-

nati, Ohio, in said circuit this 3rd day of November, A. D. 1923.

[SEAL. | Arruvur B. Mussman,

Clerk United States Circuit Court

of Appeals, Sixth Circuit.

67 [ File endorsement omitted. ]

68 [File endorsement omitted. ]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.