Transcript of Record — Arbuckle v. Blackburn
Supreme Court brief1903
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SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1902
No. 350. |
JOHN ARBUCKLE, WILLIAM V. R. SMITH, JAMES N.
JARVIE, AND WILLIAM A. JAMISON, APPELLANTS,
vs.
JOSEPH E. BLACKBURN, DAIRY AND FOOD COMMIS-
SIONER OF THE STATE OF OHIO.
APPEAL FROM THE UNITED STATES CIRCUIT COURT OF APPEALS
FOR THE SIXTH CIRCUIT.
INDEX.
Original. Print.
0 EEE Peers ee Te eT ee ee ee ee a 1
Transcript from the circuit court of the United States for the south-
ee NE ONES Ski SS'G0 as asks Fie c046e2 8s REUSE ROeS bx 1 1
SIN Gi sce cok SS6KEACMAS SSK ct Sdn Se keSeESb¥ DNs ene Kae ae 1 1
We i ee { “<keSee’ 356 2 2
ee ee ey ee ee Wake saab. thoknaae cae shw es 16 13
Notice of application for injunction ...............-.- .-..4- 17 14
Return of service................ MCAULSMERS SREASESS NOLES AAAS 18 14
Amended bill of complaint........ chawe ashe ede Lisanne sae 19 15
Affidavit of Joseph E. Blackburn.... ...........00--- ees eee 20 17
ME SMR cs ou Sak awnsinnancicesssscis 24 20
John De Witt Warner. .............. ..00. ceale 28 23
Bi i. WD oko vassccns as ss kRG KARE SL EAS eNORA NS 30 25
fe PTT eee eee 36 30
Exhibit A—Letter of Dayton Spice Mills Company, Feb-
PD DO, Wt 5b 0s 6 Ra eeanead) nandaicrins 37 30
B—Test blank sent out by Dayton Spice Mills Co.. 38 31
C©—Order blank of Dayton Spice Mills Co......... 39 32
D—Circular of Dayton Spice Mills Co...... hese 40 33
Joop & DerwetLer, Painters, Wasuincron, D. C., Jung 9, 1902.
RSS RING LURE SL REIS MLS ITE LE DT
a
Original. Print
Affidavit of Henry A. Weber... .............. ccc cee cece e eens 42 34
Exhibit A—Wrapper of package of ‘‘Ariosa” coffee...... 45 37
Affidavit of John Kinsella. ............... cece cee e cece ecees 46 38
Affidavit of James Turner... .............0 cece cee eee eee eeee 48 39
Exhibit—Advertisement of ‘‘ Lion”? Coffee. ............. 51 41
Exhibit—Advertisement of ‘“ Berdan’s package coffee”... 51 42
Affidavit of George Davis.... 2.0.2.0 00.0 c eee eee aoe a 52 42
John Donovon ....... ....... Peach Aceeemewess 53 43
DUCTS os GA conta Le Rd. bon eae ns 55 45
Exhibit A—Copy of circular letter issued by the Ohio
Dairy and Food Commissioner, Jan. 1, 1901.. 59 48
B—Letter of Commissioner Blackburn, February
Me UE os inaic Faeia COs Ans hawks Cha bbs ae oes 60 49
C—Circular letter of Woolson Spice Co., February
PES O55 Ek Shek Cae obo Sera eo aaee Bike 60 50
Affidavit of Annie Plunket [LAGU ERES cas Ries eee eee th kee 61 50
MND BURN Ce Use asisu ANG agus siseuce nes 63 51
EEE ik Soon Sanigks Es. akkwkon sig exe Kokwe 64 53
Philip Schrantz......... 0 .... Ce eee on 66 54
MRCS WS cuts t cakes, wclneiice Seas heat 67 55
IR Neca itis S cated ge Xu ss oxic ce Gbn SekS s 69 56
Addie Ehlers..... LR REeRS Jee ene Cc Kea eae 70 57
a COO nt 50 Akad dps Saeaenavan> es 71 58
Letters patent No. 73486, granted John Arbuckle, Jr., January
MAL CRE AG SANS Rie ee baRee RS ae CAS EA GL AS AS Saale cekan cus 7 61
Affidavit of John H. Culbertson................. ..... pe 78 63
Pe ee ee 79 64
SOE MI EG ok needa ne cae ake) contac pwns 80 65
SPUN irclichuke hb icc ess be Kae eb aca kee aedt bs x dakansuk an St 68
Allowance of appeal to United States circuit court of appeals. . 84 68
PERL Dic sch shee Sebnanas pa sKawannk oo xeke 85 69
ee ee eae cae beste e 86 7
III ctx ecg abe uss cat aswwiashans scene) Cates 87 71
Order allowing appeal, hee. ee Po eet rey 90 73
Stipulation for reduction of record on appeal ....... i sieans 91 74
IN ons Ae eg ede ns sobiac enix smorman paaendoe 91 74
ees Gis PPCM OE WORWIED. 2. nm cas vie ccccasenusous 92 75
Minute entry of argument and submission. nawha where ees oF 76
DC ES SAN Fake wey euren tan. cies ee ua cee beanies pieces 95 7
MMR Leena sa enerw/ a uubaannatth osbene ss. pan® aeaanceeeerans 97 77
Petition for allowance of appeal........... Mr hee eee ooh 112 89
Re NE MINION ci cn cc ack nss Sect nscnsesse pees! sce seebaaswn 113 90
NNR EEP INN Sc sca cve ke cua! sca cca! oo cksnadacc twit ieee 115 91 |
Order granting leave to amend assignment of errors.......... .... 117 92
Amendment to assignment of errors............ 2... .eeceeeeeeeee 118 92
II cantare cca tases ote ces ie he eb satin che eeban ts 121 93
Clerk’s certificate .. ................ Bc oe oe Reka ee ek KORE
JOHN ARBUCKLE ET AL. V8. JOSEPH K. BLACKBURN, COM’R, ETC.
a United States Circuit Court of Appeals, Sixth Circuit.
Joun ARBUCKLE ET AL., Appellants,
_ a No. 973
Joseru E. Biracksurn, Dairy and Food Commissioner ( ~~ i
of the State of Ohio, Appellee.
Appeal from the circuit court of the United States for the southern
district of Ohio.
Record.
Original transcript filed April 25, 1901.
Filed May 6, 1901.
FRANK O. LOVELAND, Clerk.
1 Transcript of Record.
Tue Unirep Srates or AMERICA, \ as:
Southern District of Uhio, Eastern Division, ;
At a stated term of the circuit court of the United States of
America, within and for the eastern division of the southern district
of Ohio, in the sixth judicial circuit, of the United States of America,
begun and had in the court-rooms at the city of Columbus, Ohio, in
said district, on the first Tuesday of December, being also the fourth
day of that month, in the year of our Lord, one thousand nine hun-
dred, and of the American Independence the one hundred and
twenty-fifth.
Present: The Honorable Albert C. Thompson, district judge, sit-
ting and holding circuit court.
Among the proceedings had were the following, to wit:
Joux ArpuckLe, WittiamM V. R. Sra,
James N. Jarvie, and William A. Jamison,
Complainants, No.985. In Equity.
v8.
Josepu E. Bracksury, Dairy and Food Com-
missioner of the State of Ohio, Respondent. )
Be it remembered that heretofore, to wit, on the 20th day of Feb-
ruary, A. D. 1901. came the complainants by their solicitors, and
filed in the clerk’s office of said court, their certain bill of complaint,
against the defendants herein, said bill of complaint is clothed in
the words and figures following, to wit:
me
2 JOHN ARBUCKLE ET AL. VS.
2 Bill of Complaint.
In the Circuit Court of the United States for the Southern District
of Ohio, Eastern Division.
JoHn ARBUCKLE, WitLIaAM V. R. Situ,
James N. Jarvie, and William A. Jamison,
Complaipants, No. 985. In Equity.
vs. Bill of Complaint.
Josepu E. BLackBuRN, Dairy and Food Com-
inissioner of the State of Ohio, Respondent.
To the honorable the judges of the circuit court of the United States
for the southern district of Ohio, eastern division :
John Arbuckle, William V. R. Smith, James N. Jarvie and Wil-
liam A. Jamison, each and all of whom are citizens and residents of
the State of New York, bring this their bill against Joseph E.
Biackburn, dairy and food commissioner of the State of Ohio, and a
citizen and resident of said State, and of the eastern division of the
southern district thereof.
And thereupon your orators complain and says:
I. Complainants are partners under the firm name of Arbuckle
Brothers, and manufacturers of, dealers in and vendors of roasted
coffee and other food products, having manufactories and places of
business in the States of New York and Pennsylvania. The re-
spondent, Joseph E. Blackburn, is the dairy and food commissioner
of the State of Ohio, duly elected, qualified and acting.
II. By an act of the General Assembly of the State of Ohio, passed
in the year 1584, entitled, “An act to provide against the adultera-
tion of food and drags,” as amended by an act passed in the year
1890, entitled, “An act to amend section 3 of an act entitled ‘An act
to provide against the adulteration of food and drugs,’ passed March
20, 1884,” which said act is still in full foree and virtue, it is pro-
vided that no person shall, within said State of Ohio, manufacture
for sale, offer for sale, or sell any article of food which is adulterated
within the meaning of the said act, and that the term “food” used
therein shall include all articles used for food or drink by man,
whether simple, mixed or compound. It is further provided by
said act that food shall be deemed adulterated.
(1.) If any substance, or substances, have been mixed with
3 it so as to lower, or depreciate, or injuriously affect its quality,
strength or purity ;
(2.) If any inferior, or cheaper substance, or substances have been
substituted, wholly or in part, for it;
(3.) If any valuable or necessary constituent, or ingredient, has
been, wholly or in part, abstracted from it ;
(4.) If it is in imitation of, or is sold sinder the name of another
article ;
(5.) If it consists, wholly or in part, of a diseased, decomposed,
putrid, infected, tainted, or rotten animal, or vegetable substance, or .
aaa ae ee ORR ee PL EO GERI Be FETE LINE REINS BIL GLEN BRL STE, SF MES Se
7"
JOSEPH E. BLACKBURN, DAIRY AND FOOD COM’R, ETC.
article, whether manufactured or not—or in the case of milk, if it
is the produce of a diseased animal ;
(6.) If it is colored, coated, polished, or powdered, whereby dam-
age, or inferiority is Reema 8 9 or if, by any means, it is made to
appear better, or of greater value than it really is ;
(7.) If it contains any added substance, or ingredient, which is
poisonous or injuri-us to health.
It is further provided by said act that:
“The provisions of this act shall not apply to mixtures or com-
pounds recognized as ordinary articles or ingredients of articles of
food, if each and every package sold or offered for sale be distinctly
labeled as mixtures or compounds, with the name and per cent. of
each ingredient therein, and are not injurious to health.”
Certain penalties, to wit, a fine or imprisonment, are imposed by
said act for the violation thereof.
III. For more than thirty years last past, complainant, Joha
Arbuckle, and his successive copartners,and for many years last
past, these complainants have been and still are, engaged in the
manufacture and sale throughout the United States, including the
State of Ohio, of a certain compound or mixture known as “Ariosa ”
composed of roasted coffee compounded and mixed with eggs and
sugar, originated, invented, patented, manufactured and sold solely
by said complainants and their predecessors and by them denomi-
nated “Ariosa.” Ariosa consists of roasted coffee compounded and
mixed with eggs and sugar, packed in sealed packages, ready for
use by the consumer. In nit to preserve said product from de-
terioration through the period intervening between its manufacture,
sale and actual use by the consumer thereof, and to retain in said
coffee its original strength and aroma, the said complainant, Jolin
Arbuckle, more than thirty years ago, invented and thereafter he
and his associates duly patented, adopted and used, and complain-
ants still use, a certain process, whereby the coffee, there-
4 after to be sold as the compound or mixture known as Ariosa
was, and still is, mixed, compounded and the separate beans
thereof coated, and, to a large extent hermetically sealed after roast-
ing, with a compound of certain other wholesome articles and in-
gredients of food, to wit, sugar and eggs; at first in composition with
small amounts of Irish moss, also a wholesome ingredient of food,
and for 20 years last past without such Irish moss. In the year
1868, letters patent of the United States of America were duly
granted to complainant, John Arbuckle, for the said process of glaz-
ing and coating which said letters patent contained in force of
seventeen years. By reason thereof, and during the said period,
complainants’ predecessors acquired valuable and lasting property
rights in said compound or mixture known as “Ariosa,” which said
rights continued after the expiration of said patent and still do con-
tinue in the said complainants, the value of which said property
rights has since largely increased and still continues to increase by
reason of the increase in repute and sale of the said Ariosa and the
good will of said business of manufacturing and vending said
"
OND 2, rey, LO PIONS py Oh CRIN ee: ether
CERO TENT ERROR LIT LOR TR SOL ILE ET EEE
4 JOHN ARBUCKLK ET AL. VS.
Ariosa, and has become, and now is, wholly dependent upon the
repute and sale of the said Ariosa, and the good will aforesaid.
IV. Complainants, furthermore, have, for many years, at large
expense, widely advertised the fact of the use of the aforesaid process
and of the compounding, mixing and coating of coffee with the
aforesaid ingredients, in order that the pyrchasers and users thereof
might be advised thereof, and might by use become informed of the
good qualities of such coffee, so mixed, compounded and coated, and
of the benefit to the consumer accruing from the use of complain-
ants’ aforesaid process.
V. To that end, for many years prior to 1894, complainants’
predecessors caused to be printed upon each package of Ariosa, in
conspicuous type, a certain label, statement and affidavit setting
forth the use of said process and the purpose and effect thereof.
And in or about 1894, complainants caused, ever since have caused,
and still cause, to be printed in conspicuous type upon every package
of Ariosa, a certain label, statement and formula — cing a true state-
ment of the process and formula by and according to which said
compound is manufactured and the purpose and effect thereof, in
the words and figures following, to wit:
“ Ariosa
“Ts a compound made from coffee, sugar and eggs. The coffees
“are selected especially for their strength, flavor and superior
5 “drinking qualities, are pure, sound coffees and absolutely
“free from all the poisonous coloring substances which are
“now so largely used to improve the appearance of coffee. Coffee,
“when roasted, is porous, and unless prevented, loses ‘ its best quali-
“ties, and absorbs others which are inferior to it. By our process of
“hermetically sealing the pores of roasted coffee, we secure a three-
“fold object.’
“1st. The retention of the full strength and aroma for any length
“of time.
“2nd. The prevention, through absorption, of any injurious
“ flavors.
“3rd. The saving to the consumer of the additional expense of
“exes incurred when any other coffee is used.
“Ariosa is self-settling.
“Choice eggs and pure granulated sugar are the only articles
“used in hermetically sealing Arbuckle’s Ariosa coffee.
“ Formula.
WR cis scsnacanssvanscscicthastnccenshchsesabseraninses sndsnesasonsesinas 99278
Pica rncnihs Cine Gdtncdvunsieninvguieneaawteien shenshldbavernanienia sche 00361
“BARE asscccsavconsuescsseccssecconsstessbeps svvccevssesdvesssciodesssunens 00361
“Four pounds roasted coffee go as far as five pounds green, as
“ coffee loses 20 per cent. in roasting.”
VI. Being thus fully advised of the composition and preparation
of the said compound or mixture known as Ariosa, and as a result
of favorable experience in the use thereof, great numbers of people ‘
—
JOSEPH E. BLACKBURN, DAIRY AND FUOD COM’R, ETC.
throughout the United States, and especially in Ohio, have pre-
ferred, and do prefer Ariosa to other brands, mixtures or compounds
of coffee so treated, and have purchased, and do purchase, the same
for the qualities imparted to it by the use of the above-described
process ; so that, for more than thirty years last past, said compound
or mixture has been generally used in Ohio, and throughout the
United States. By reason of the qualities imparted to it, by the
above-described process, said compound has gained a great repute
and sale amongst the people of the United States, and particularly
in Ohio, as a healthful, palatable, whulesome and agreeable food
product, to wit, a compound or mixture of roasted coffee, eggs and
sugar, prepared for most convenient and economical use. The ex-
tent and profit of the complainants’ business of manufacturing and
vending said Ariosa has become, and is now, wholly dependent
upon the good will thereof, to wit, the confidence of the pur-
6 chasers and consumers of Ariosa, that, so long as same shall
be manufactured and sold by complainants, it shall be iden-
tical in quality and composition with that which, under the same
brand and appearance they have been, heretofore, wont to purchase
and use.
VII. Throughout the United States, and particularly in Ohio,
there are commonly exposed for sale, in competition with the com-
pound or mixture known as Ariosa, large quantities of roasted
coffee, of various brands, grades and qualities, respectively treated
and prepared for sale as follows, te wit:
(a.) Mixed, compounded, or coated, with some substance not
transparent, and such as either to conceal, or to misrepresent the
real condition thereof, or falsely to simulate other grades, or classes
of coffee ;
(b.) So treated as to retain in, or return to, the coffee after roast-
ing, the whole, or some portion, of the water, which naturally would
be eliminatad therefrom in the process of roasting, to the material
increase in weight of said coffee, while decreasing its worth in pro-
portion thereto ;
(c.) So treated, mixed, compounded, or coated, with substances of
less value, in proportion to the weight of roasted coffee, as to ma-
terially increase the weight of said coffee, while decreasing its worth
in proportion thereto ;
(d.) Mixed, c-mpounded, or coated, with ingredients, the presence
of which in roasted coffee, or their use in its preparation, is un-
healthful and constitutes a dangerous adulteration thereof.
VIII. Complainants’ process does not include any of the fore-
going aoa or methods of treatment. It differs from the prac-
tices above set forth, in that it was adopted and is used solely for
the purpose, and with the effect of (1) retaining in the coffee the
full strength and aroma thereof, for the period during which the
same may remain unused after roasting ; (2) preventing the absorp-
tion by the coffee of any injurious or noxious gases or flavors; (3)
settling in the same when prepared for consumption. Said process
was not adopted and is not used for the purpose, nor with the effect,
of lowering or depreciating or injuriously affecting the quality,
ay
6 JOHN ARBUCKLE ET AL, VS.
strength, or purity of the coffee ; nor of substituting any inferior or
cheaper substance or substances, wholly or in part, for it; nor of ab-
stracting from it in any valuableor necessary constituent or ingredi-
ent, either wholly or in part ; nor of concealing damages or inferior-
ity in the coffee, or making it appear better or of greater value than
it really is; nor in any way whatsoever violating the provisions of
the said statute of Ohio above set forth. On the contrary,
7 the coffee used in said compound or mixture is of good qual-
ity and undamaged; said articles of food used in the process
above described for coating said coffee are, in themselves, pure, whole-
some, ‘nealntal wnd mmovacus; said preparation of egg wird sagar,
used in the said process for coating said coffee is colorless and trans-
parent, and does not in any way conceal the true nature, grade, or
original appearance of said coffee; and said process was adopted
and used, and still is used, at great expense, for the benefit of the
consumer only, the cost and value of the said ingredients used
therein greatly exceeding in proportion to weight and bulk, the
worth and value of roasted coffee.
IX. Ariosa is exclusively exposed for sale in sealed paper pack-
ages and the purchaser thereof is advised of its quality and compo-
sition; (1) by the general repute of the said compound ; (2) by his
former personal experiences in the use of the same, and (3), by the
statement or affidavit setting forth its quality and composition printed
on said packages as aforesaid ; and is not and cannot be misled by the
appearance of the coffee, at the time of the sale, which appearance is
not disclosed until after purchase.
X. Complainants now and at all times have on hand at various
points throughout the United States large stocks of the compound
or mixture known as Ariosa. Said stocks now in Ohio amount to
one million pounds, more or less, of the value of one hundred thou-
sand dollars, and in the United States to ten million pounds, more
or less, of the value of one million dollars. Complainants have a
large number of agents in Ohio and elsewhere, engaged in the sale
of said Ariosa, and in addition thereto, as complainants are informed
and believe, a great number of dealers, to wit, more than ten thou-
sand in Ohio, have in their possession large quantities of Ariosa for
sale, have heretofore sold and still are, and will continue, selling
the same to consumers, in preference to other brands of coffee, not
similarly prepared, to the profit ef complainants, and the increase
of their aforesaid business and of the good will thereof.
XI. The respondent herein, Joseph E. Blackburn, dairy and food
commissioner as aforesaid, without authority of law, and falsely and
erroneously construing the provisions of said statutes above set forth,
notwithstanding the fact that the process used in the manufacture
of the said compound or mixture known as Ariosa is not in viola-
tion of the said statute and that the said statute is not appli-
8 able to the premises, and that there is no law of the State of
Ohio, warranting his acts hereinafter set forth, and further
notwithstanding the healthful character of said Ariosa, the benefits
accruing to the consumers thereof by reason of the aforesaid process
used in its manufacture, and the fact that the use of said process, its
OAR FET ew mre
JOSEPH E. BLACKBURN, DAIRY AND FOOD CoM’R, ETC.
objects and effect, and the ingredients and formula thereof are
plainly and expressly stated, printed and advertised upon each
package thereof, both poe weep and through his agents has hereto-
fore, does now and will unless restrained by the order of this honor-
able court, continue to widely advertise, give out and state that said
process used in the manufacture of said Ariosa, is within the pro-
hibition of, and in violation of, the aforesaid statute. Respondent
fulsely claims and pretends that said sixth clause of the aforesaid
statute wholly forbids the glazing of the coffee used in the manu-
facture of Ariosa. Yet, in fact, said process does not conceal, dam-
age or inferiority, nor make said coffee appear to be better or of
greater value than it really is; but,on the contrary, is essential and
’ exclusively used for the purposes and with the effect hereinbefore
set forth and particularly lected in the statement printed on each
package of Ariosa. Said process is not used to affect or change the
appearance of said coffee; any change in the appearance thereof
due to said glazing being a- incidental and immaterial consequence
of the use thereof, not such as to assimilate said coffee in appearance
to other or better grades but such as to accentuate and render more
clearly distinguishable any defects or imperfections which may exist
in the same.
XII. Respondent has menaced and threatened with prosecution,
and still menaces and threatens to prosecute dealers in, and vendors
of, said Ariosa within in Ohio, for a violation of the aforesaid stat-
ute, and as complainants verily believe, will, unles- restrained there-
from by the order of this honorable court, institute a large number s
of prosecutions against such dealers in and vendors of said Ariosa,
upon the wrongful and erroneous charge that the treatment of said
Ariosa by the process above described is a violation of the statute
aforesaid, and that said Ariosa is an adulterated food product within \
the said statute and the prohibition thereof. By reason of the afore-
said official capacity of the said respondent. and the fact that he
claims to act under the said statute intended to prevent the adultera-
sion of food products, said respondent’s statements and threats of pros-
ecution have led, do lead, and will hereafter continue to lead, the
dealers in, and consumers of, said Ariosa throughout the United
States and more particularly in Ohio, to doubt the healthful
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9 character and proper preparation of the said food product and
the integrity of the complainants, as manufacturers thereof,
and have deterred, do deter and will hereafter deter, both wholesale ¢
and retail dealers and consumers in Ohio and elsewhere from pur-
chasing, vending or using Ariosa, thereby greatly decreasing the
repute and sale thereof, to the great and irremediable damage of
complainants, the decrease in market value of the stocks of A riosa,
already manufactured and in the possession of the complainants,
and of the aforesaid dealers and vendors thereof, and the great im-
pairment of the good will of the aforesaid business of complainants.
XIII. On or about the fifth day of February, 1901, said respond-
ent, in pursuance of his wrongful, erroneous and unlawful construc-
tion of the statute aforesaid, and without any authority of law :
therefor, and as complainants are informed and believes for the k
macrerenoremendih
aie
a
§ JOHN ARBUCKLE ET AL. Vs.
purpose of intimidating the customers of the complainants and de-
terring them from purchasing or dealing in said Ariosa, issued, or
caused to be issued, over his signature, to dealers in and vendors of,
Ariosa, and others, within Ohio, a certain circular letter or statement
in the words and figures following, to wit:
“STATE OF OHIO,
“OrFrice oF Datry AND Foop CoMMISSIONER.
“Dear Sirs: Replying to your inquiry about the coffee situation,
“would say that this matter is now under consideration and inves-
“tigation by the chemists of this department. As soon as conclu-
“sions are reached, a circular notice will be sent to all the jobbers in
“Ohio, and a sufficient number will be furnished to supply all their
“salesmen.
“T might say that the following firms have agreed to accept the
“law as construed by this department: Andrus, Scofield & Co., Co-
“lumbus; Dayton Spice Mills, Dayton ; Woolson Spice Co., Toledo.
“W. PF. McLaughlin & Co., of Chicago, have agreed to comply
“with the laws as soon as construed by the court.
“The only firm that has refused, and still refuses to accept the
“ruling of this department, or abide by the laws of the State as
“construed by our supreine court, is Arbuckle Bros., of New York.
“Very truly yours, J. E. BLACKBURN,
“ Dairy and Food Commissioner.
“Columbus, Ohio, February 5, 1901.”
10 Said circular letter or statement is wholly false in this, to
wit, that complainants have not at any time rerefused, and
still refuses, to accept said construction of — Ohio, as construed
by the supreme court of said State, and that, as complainants are
informed and believe, the Woolson Spice Company has not agreed
to accept the said law as construed by mbites: He but on the con-
trary, has refused, and still refuses, to accept said construction of
said law, and still continues to sell, in the State of Ohio, coffee pre-
pared and glazed by processes for a long time used by them.
Said circular, while purporting to be an answer to an inquiry, was in
fact by said respondent sent generally to jobbers and dealers in food
products within Ohio, few, if any, of whom had, in fact, inquired as
therein stated ; and as complainants are informed and believes, was
so circulated without such inquiry, -or the purpose of intimidating
complainants and their customers, and with the effect of injuring
complainants and their property.
Said circular, by falsely and wrongfully singling out complain-
ants as alone refusing to accept the ruling of the respondent and to
abide by the laws of Ohio as construed by the supreme court thereof
necessarily and inevitably implies that of the food products manu-
factured and sold by the manufacturers therein mentioned, those
manufactured and sold by complainants, and more particularly the
product Ariosa, alone fall short of the standard of purity and whole-
someness imposed by said statute; thus further wrongfully and falsely
implying that said product Ariosa is inferior in quality, grade, purity
LPC PAMEEN PELE ILI AG
AEE INL S
JOSEPH FE. BLACKBURN, DAIRY AND FOOD COM’R, ETC.
and wholesomeness to the products manufactured and sold by such
other manufacturers, whereas in fact the standard of said Ariosa as
a pure, wholesome, healthful and nutritious article of food and as
conforming to the requirements of said statute, properly and rightly
construed, is at least as high as that of any like products manufact-
ured and sold by the manufacturers aforesaid.
In pursuance of his wrogful and unlawful intention of intimidat-
ing the complainants and their customers in Ohio, and of deterring
them from the purchase and sale of Ariosa, respondent, unless re-
strained therefrom by an order of this honorable court, will, as au-
nounced in his aforesaid circular, issue other and further circulars
to dealers in food products in Ohio in large quantities, and will
cause the same to be widely published and distributed throughout
Ohio and elsewhere; and such subsequent circular will be directed
against the complainants alone, with the intent, purpose and
11 effect of discriminating against complainants and their said
product and of irreparable injury — the sale thereof, the
value of the existing — thereof and the trade of complainants and
the good will of their business.
By said circular the respondent accused and threatened to ac-
cuse complainants and the dealers in Ohio, in complainants’ pro-
ducts of a crime punishable by law, and to do an injury to the
property of complainants and of the dealers aforesaid, with intent
to compel complainants and the dealers aforesaid to do acts against
their will, to wit: to cease from selling and offering for sale said
Ariosa, within Ohio.
XIV. Any prosecutions, as threatened by said respondent, under
his false and erroneous construction of the said statute, will be
wholly without authority of law, and will deprive complainants of
their property, to wit: the value of the Ariosa already manufactured,
now in the possession of complainants and awaiting sale, and the
value of such Ariosa in the hands of dealers and vendors thereof
throughout the United States, and more particularly in Ohio, and
complainants’ trade and the good will of their business of vending
said product within said State of Ohio, without due process of law.
XV. The unauthorized, unlawful and erroneous statements,
menaces and threats of prosecution made by respondent as aforesaid
by intimidating complainants and their customers and the vendors
or dealers in, and consumers of, Ariosa, within Ohio and elsewhere
and by deterring them from vending, purchasing or using said
Ariosa, thus decreasing the repute and sale of the said Ariosa and
diminishing complainants’ trade and the good will of their said
business, have worked, do and will hereafter unless restrained by
the orders of this honorable court, work irreparable injury to the
said property rights of the complainants, and st''l further and ir-
reparable injury will accrue thereto if respondent be permitted to
institute or conduct proceedings or prosecutions against the vendors
of, and permitted to institute or conduct proceedings or prosecutions
against the vendors of, and dealers in, said Ariosa, as he has threatened
and still threatens to do.
XVI. Said statute, construed as respondent claims it should be, is
PO en
a
10 JOHN ARBUCKLE ET AL. VS.
in conflict with the fourteenth amendment to the Constitution of the
the United States, and void, in that it would deprive complainants
of their aforesaid property by prohibiting them from selling in Ohio,
and dealers in, and vendors of, food products from purchasing from
the complainants pure food products, which are ordinary ar-
12 ticles of food and are not injurious to health, to wit: coffee,
sugar and eggs and a mixture of compound recognized as an
ordinary article and ingredient of food and not injurious to health
and all the ingredients of which are recognized as ordinary articles
of food and are not injurious to health, and from dealing in the
sane, in Ohio, and by destroying the value of said product as an
article of commerce by prohibiting the purchase and sale thereof,
and thus would deprive complainants not only of the just and law-
ful benefits accruing to them by reason of their property rights ac-
quired in said food products as aforesaid, but, further, would largely
k Neil the market value of the existing stock of Ariosa in the pos-
session of complainants in Ohio and elsewhere and would deny to
these complainants and to the dealers in, and vendors of, said Ariosa,
within the jurisdiction of the State of Ohio, equal protection of the
law.
XVII. Ariosa is manufactured and treated, according to the afore-
said process, at complainants’ factories in New York and Pennsyl-
vania, and not in Ohio. After being so manufactured and treated,
it is at said factories packed in packages, and is, in said original
packages, shipped by complainants into Ohio; and is sold in such
original packages ; and said statute, if construed as the respondent
herein claims it should be, is a regulation by the said State of Ohio
of interstate commerce, and is repugnant to, and in violation of the
third clause of section eight of article one of the Constitution of the
United States, and void.
XVIII. Owing to the number of dealers in, and vendors of, Ariosa
in Ohio, who will, under the respondent’s wrongful and erroneous
construction of said statute, be liable to prosecution, and will be so
prosecuted, if the said respondent be permitted to carry out his
aforesaid threats and menaces, a multiplicity of suits will neces-
sarily arise involving identical questions, relating to the existence,
constitutionaiity, construction, scope and effect of said statute and to
the complainants’ rights of property in Ohio, and to the effect
thereon of said statute; and thereby complainants’ rights of prop-
erty in Ohio, and to the effect thereon of said statute ; and thereby com-
plainants’ property rights will be determined in litigations to which
complainants will not be, and cannot be, parties.
The ituterests of such dealers are, in many cases, not in common
with, nor representative of, the interests of complainants, and, there-
fore, there is great and imminent danger that in many of such
13 suits and prosecutions no defense will be made by the defend-
ants therein, either through lack of interest, or in wrongful
collusion and conspiracy with the respondent, and that thereby the
question of the construction of said statute will in many of said suits
and prosecutions not be properly or skillfully presented and passed
upon; all to the great and lasting prejudice and damage of com- ‘
“RG
ne RTS ct FIMO LICL TREY NE
—
JOSEPH E. BLACKBURN, DAIRY AND FOOD COM’R, ETC. 11
plainants, who have not now, and will not thereafter have any ade-
quate remedy at law in the premises.
Although such prosecutions shall uniformly result in the acquittal
of the persons thereby charged, yet by reason of the multiplicity
thereof and the avowed determination of the respondents to prose-
cute all persons selling or offering for sale, in Ohio, complainants’
said product, the mere wrongful prosecutions will result in deterring
many, if not all dealers in good products, in Ohio, from dealing in
Ariosa, and thereby prevent complainants from selling their said
product in said State, to complainants’ great and irreparable injury.
XIX. The matter in dispute herein, exclusive of interest and
costs, largely exceeds the sum of or value of two thousand doliars in
this, to wit: that by the said statements, menaces and threats of the
respondent and the prosecutions threatened to be instituted by hita,
complainants’ trade, in Ohio and elsewhere, the good will thereof,
and the market value of the existing stocks of Ariosa, now in the
possession of complainants have been, and will be, damaged, depre-
ciated and diminished in value to the extent of more than one hun-
dred thousand dollars.
In consideration whereof, and forasmuch as your orators are with-
out remedy in the premises at law, and are relievable only in a court
of equity, where matters of this kind are properly cognizable and
forasmuch as the true construction of the said statute is:
(a.) That said statute was not intended to,and does not, make un-
lawful such preparation and display of food products, sold, or offered
for sale in Ohio, as does not constitute a fraudulent misrepresenta-
tion of the quality, amount, or some characteristic thereof ;
(6.) That, so long as any food product, or compound or mixture,
being an ordinary article, or ingredient of article of food shall be
distinctly labeled as a mixture or compound, in accord with the
fact, and with the formula giving the ame and per cent. of each
ingredient therein, and shall not be injurious to health, such article
of food product, mixture or compound is not within the prohibition
of the said statute.
14 And forasmuch as the sale and offering for sale of Ariosa
so treated and labeled, as above set forth, and as to make and
leave plain and visible, and not to hide, the quality or characteris-
tics of coffee thus treated and coated, is not prohibited on the ground
that damage, or inferiority, is concealed, or that by any means it is
made to appear better, or of greater value, than it really is.
And forasmuch as Ariosa is, and each of its ingredients is, an or-
dinary article, or an ordinary ingredient of article of food and said
Ariosa is distinctly labeled in such manner as to set forth the name
and per cent. of each and every ingredient therein, and is not inju-
rious to health; and the manufacturing for sale, the offering for
sale, or the selling of the same, is not forbidden by said statute.
And to the end that your orators may have all proper relief and
that said respondent may answer in the premises, but not under
oath, an answer under oath being expressly waived ;
Your orators pray that said Joseph E. Blackburn, dairy and food
pot ee eee SELLY eT gine A SESS RLS DOERR EMIT RL EME EY 9 Se OS: Ee SINT “ER
Sy ane any vat PBR % TOM ; : ' Fat i
——
12 JOHN ARBUCKLE ET AL. VS.
commissioner of the State of Ohio, respondent herein, be provision-
ally and perpetually enjoined :
1. From stating or charging that complainants’ said food product.
Ariosa, being a compound of pure roasted coffee, mixed, treated,
coated and glazed with a preparation of sugar and eggs, according
to the formula and by the process hereinbefore set forth, is an article
of food adulterated within the meaning of said statute, and that the
use of complainants’ said process of coating and glazing the coffee,
constituting the chief ingredient of Ariosa, with a preparation of
sugar and eggs, as hereinbefore more particularly described, consti-
tutes a violation of said statute, and that the importation of said
Ariosa into Ohio, or the selling of, or offering for sale, the same con-
stitutes a violation of said statute.
2. From charging the complainants herein, or any of them, or
said firm of Arbuckle Brothers, or any dealer in Ariosa, with vio-
lating said statute by selling, or offering for sale, Ariosa, or with
adulterating food, in violation of said statute, by reason of the afore-
said treatment and coating of the coffee forming an ingredient of
Ariosa with a preparation aforesaid.
3. From charging the complainants, or any of them, or said firm
of Arbuckle Brothers, with violating the said statute by adopting
and using said process of coating above described or by selling, or
offering for sale, Ariosa, so glazed.
15 4. From charging any dealer in Ariosa with the possession,
offering for sale, or sale of, an adulterated food product,
within the meaning of said statute, in having in their possession,
offering for sale, or selling Ariosa, so glazed.
5. From menacing and threatening any dealer in Ahiosa so glazed
with prosecution for having in his possession, offermg for sale, or
selling such Ariosa.
6. From iustituting, or commencing, against any person, partner-
ship or corporation, having in his, their, or its possession, offering
for sale, or selling Ariosa, any action, suit, proceeding or prosecu-
tion, based upon the treatment and coating of the coffee forming an
ingredient of said Ariosa with a preparation of sugar and eggs, ac-
cording to the formula and by the process, more particularly above
described ; and
7. That your orator may have such further relief as to the court
shall seem equitable and proper in the premises.
And inasmuch as serious, immediate and irremediable damage
will otherwise ensue to your orators, your orators pray that a tem-
porary restraining order be issued upon the filing of this bill, to the
same effect and purpose as hereinbefore prayed for, to continue in
force until an application can be heard in due course for the grant-
ing of a preliminary injunction.
May it further please your honors to grant unto your orators a
writ of subpoena, issuing out of and under the seal of this honorable
court, directed to the said respondent, Joseph E. Blackburn, dairy
and food commissioner of the State of Ohio, commanding him, ona
day certain, to appear and answer unto this bill, and to abide and
AIEEE —
ae
13
perform such decree, in the premises, as to the court shall seem
proper and required by the principles of equity.
PECKHAM, WARNER & STRONG anpb
BROWN & GEDDIS,
Solicitors for Complainants.
CLARENCE BROWN, Of Counsel.
February 20, 1901.
JOSEPH E. BLACKBURN, DAIRY AND FOOD vOM’R, ETC,
Tuk Stare or New York,
County of New York, }
John Arbuckle, being duly sworn, says that he is one of the com-
plainants above named ; that he has read the foregoing bill of com-
plaint and knows the contents thereof; that all the matters and
things therein set forth are true, except as the same are
16 therein alleged to be on information and belief and as to
them he believes the same to be true.
JOHN ARBUCKLE.
Subscribed in my presence and sworn to before me this 18th day
of February, 1901.
[SEAL. JOHN HALL JONES,
Notary Publig in and for New York County, New York.
And afterwards, to wit: on the 21st day of February, A. D. 1901,
there was issued out of the clerk’s office of said court, our certain
subpeena in chancery, directed to the marshal of the district and
against the defendant herein, said subpeena is clothed in the words
and figures following, to wit:
Subpena in Chancery.
Tue Unirep States or AMERICA,
Southern District of Ohio, Eastern Division,
The President of the United States of America to the marshal of
the southern district of Ohio, Greeting :
You are hereby commanded to summon Joseph E. Blackburn,
dairy and food commissioner of the State of Ohio, citizen of and
resident of the State of Ohio, if he be found in your district, to be
and appear in the circuit court of the United States, for the eastern
division of the southern district of Ohio, aforesaid, at Columbus, on
the first Monday in May next, to answer a certain bill in chan-
cery, filed and exhibited in said court, against him by John Ar-
buckle, William V. R. Smith, James N. Jarvie and William A.
Jamison, partners as Arbuckle Brothers, citizens of and residents of
the State of New York.
Hereof you are not to fail under penalty of the law thence en-
suing.
And have you then and there this writ.
a
Witness the Honorable Melville W. Fuller, Chief Justice of the
United States, this 21st day of February, A. D. 1901, and in the
125th year of the Independence of the United States of America.
Attest:
[SEAL.] B. R. COWEN, Clerk,
By C. P. WHITE, Deputy.
14 JOHN ARBUCKLE ET AL. Vs.
17 Memorandum.
The said defendant is required to enter his appearance in this
suit in the clerk’s office of said court on or before the first Monday
of April, 1901, otherwise the said bill may be taken pro confesso.
B. R. COWEN, Clerk,
By C. P. WHITE, Deputy.
Endorsed: Fifty dollars deposited security for all costs for which
the plaintiff may be liable in this suit.
And afterwards, to wit: on the 21st day of February, A. D. 1991,
the following notice was filed in the clerk’s office of said court,
clothed in the words and figures following, to wit:
Notice, &c.
In the Circuit Court of the United States for the Southern District
of Ohio, Eastern Division.
JoHN ARBUCKLE ET AL.
v8.
JosepH E. BiacksBury, Dairy and Food Com-
-Notice. No. 985.
missioner of the State of Ohio. |
Joseph E. Blackburn, respondent :
Please take notice that an application for a preliminary injunction
will be made in the above-entitled case before the Honorable A. C.
Thompson, district judge, at chambers, in the United States court-
rooms, in the city of Cincinnati, Ohio, on Saturday, the 23rd day of
February, A. D. 1901, at ten o’clock a. m., or as soon thereafter as
counsel can be heard; and that affidavits will be read upon said
application.
Columbus, O., February 21, 1901.
PECKHAM, WARNER & STRONG,
BROWN & GEDDES,
HARRISON, OLDS axp HENDERSON,
Solicitors for Complainants
18 Return of Service.
THE State or Onto,
ee
Franklin County, { -
William G. Brossman, of lawful age, being first duly sworn, says
that on the 21st day of February, 1901 at two minutes before 10 ‘
LIARS AR AS BSP REM EAN BoA TIEN OLE TERED SPIE GI
_—
JOSEPH E. BLACKBURN, DAIRY AND FOOD COM’R, ETC. 150
o'clock a. m., he served the within notice upon said Joseph E.
Blackburn, respondent in the within-entitled case, by personally
handing to him a full and true copy of said notice.
WILLIAM G. BROSSMAN.
Sworn to before me and subscribed in my presence by said Wil-
liam G. Brossman, this 21st day of February, 1901.
[sEAL.] JOHN T. ROGERS,
Notary Public in and for Franklin County, Ohio.
And afterwards, to wit: on the 25th day of February, A. D. 1901,
cune the marshal of the district to whom the aforesaid subpeena
was in form directed and returned the same into the clerk’s office of
said court, with his proceedings thereon endorsed, clothed in the
words and figures following, to wit:
Marshal’s Return.
Return.
Received this writ at Columbus, Ohio, on the 21st day of Feb-
ruary, 1901, and on the same day of February, 1901, I served the
same on the within-named Joseph E. Blackburn, dairy and food
commissioner of the State of Ohio, by personally handing to him a
true copy of the same, with all the endorsements thereon.
V. J. FAGIN,
U.S. Marshal, 8S. D. O.,
By ALBERT BAUERM, Deputy.
Fees—total : $2.22.
And afterwards, to wit: on the 9th day of March, A. D. 1900, the
following amended bill was filed in the clerk’s office of said court,
clothed in the words and figures following, to wit:
19 Amended Bill of Complaint.
In the Cireuit Court of the United States for the Southern District
of Ohio, Eastern Division.
v8. - .
Josepu E. Biackpurn, Dairy and Food Commissioner No. 985.
of the State of Ohio, Respondent.
JoHN ARBUCKLE ET AL., Complainants, |
Amendment to bill of complaint.
To the honorable the judges of the circuit court of the United States
for the southern district of Ohio, eastern division :
Said complainants farther and by way of amendment of, and ad-
dition to, their bill of complaint herein, say.
XX. The wrongful acts which said respondent threatens to do,
and unless restrained, will do, as in complainants’ said bill of com-
a ¢ im RAT RMS ~ Sa
eee ea AE NE ROLES EE ME ME Ta ree
—— LEER ELIOT AE LE LORIN PUREE EEL LEI BT, FLL RE LEP OTIPEE LE WILE IE TERN EAN ATM
16 JOHN ARBUCKLE KT AL. VS.
plaint alleged, will make unmarketable in Ohio, and to a very large
extent impair and destroy the market value of the large stocks of
Ariosa which complainants now have on hand in Ohio, and will, to
a large extent, deprive them of their said business, and the good
will thereof, in Ohio, and greatly injure if not wholly destroy, the
value of the same, and enable nt. arate competitors, selling in
Ohio coffees treated by processes similar to, but not identical with,
complainants’ said process, to obtain complainants’ said business,
which can only be regained after long time and at great expense, and
complainants will be put to other great expense in defending their
said property rights in Ohio. And if, _— the final determina-
tion of this cause, said respondent shall be permitted to commit the
threatened wrongs, the same will, as complainants are informed and
believe, damage complainants to the extent of more than one hun-
dred thousand dollars, an amount largely in excess of respondent’s
ability to respond in judgment and thereby complainants will suffer
irreparable injury unless a preliminary injunction shall be granted
herein.
And, therefore, as well as because of the facts alleged in their said
bill of complaint, complainants, pray that said respondents be pro-
visionally enjoined, as in and by their said bill prayed.
PECKHAM, WARNER & STRONG,
BROWN & GEDDES,
Solicitors for Complainants.
JOUN DELBITT WARNER,
CLARENCE BROWNE,
Of Counsel.
20 THe STATE OF sia ;
88
County of Lucas,
Frederick L. Geddes, being duly swurn, says that he is one of the
solicitors of the complainants above named ; that he has read the
foregoing amendment of, and addition to, said complainants’ bill of
complaint, and knows the contents thereof; that al] the matters and
things therein set forth are true, except so far as the same are therein
alleged to be on information and belief and as to them he believes
them to be true.
FREDERICK L. GEDDES.
Subscribed in my presence and sworn to before me this eighth
day of March, 1901.
HENRY C. TRUSDALL,
[sEAL. ] — inand for Lucas County, Ohio.
And afterwards, to wit, on the 16th day of March, A. D. 1901, the
following affidavit was filed in the clerk’s oftice of said court, clothed
in the words and figures following, to wit
— . ———— —
ERAN RS UNITE ache NEES HEIR EIA PONE SONORA oe FIN EPR
64
JOSEPH KE. BLACKBURN, DAIRY AND FOOD COM’R, ETC. 17
Affidavit of Joseph E. Blackburn, Respondent.
In the Circuit Court of the United States for the Southern District
of Ohio, Eastern Division.
JoHN ARBUCKLE ET AL., Complainants,
v8.
Joseph E, Bracksurn, Dairy and Food ?In Equity. No. 985.
Commissioner of the State of Ohio, Re-
spondent.
Affidavit of Joseph E. Blackburn.
SraTE OF OHIO, :
Franklin County, ‘
Joseph E. Blackburn, being first duly sworn, deposes and says
that he is the respondent herein in official capacity and dairy and
food commissioner of the State of Ohio, duly elected, qualified and
acting.
Affiant further says that he is unable, from his own knowledge,
to adinit or deny the three allegations of the complainants’ bill of
complaint, with respect for the number of years last past that
21 the complainants have vended their coffee, called “Ariosa,”
but that the truth and fact is that the coffee purporting to be
“Ariosa”” which has been brought to affiant’s notice is not a “ com-
pound ” as that word is used in the statutes of the State of Ohio
known as section 4200-6, but that on the contrary the said “Ariosa ”
consists of a cheap and inferior grade of coffee which is coated and
covered with glutinous mixture, for what purpose, affiant deems it
unnecessary to state, but with the manifest result that by such glu-
tinous coating and covering, the inferiority of said coffee, is con-
cealed, and it is made to appear better and of greater value than it
really is. Affiant further says that the naming and designing of
said coffee as “Ariosa” is a mere trick and subterfuge adopted by
the complainants for the purpose of enabling them to defeat the said
statute and that the name “Ariosa” 1s known to the entire trade
and especially the grocery trade as the designation of Arbuckle’s
brand of coffee.
Affiant further says that no good, high and meritorious grades
of coffee are so coated or covered, but the same are all sold on the
market, in their natural state, without any coating or covering what-
ever, and that it is not necessary, in order to preserve the product
from deterioration so to coat and cover the said coffee; and that if
the object of said coating and covering were to preserve said product,
many much more economical and expeditious methods could easily
be used which would not cause the amount of deception and conceal-
ment which is caused by the complainants’ method.
As to the seventh allegation of the complaint, affiant says that in
addition to the four methods of adulteration therein described, there
are many other methods of treatment, all of which the affiant is en-
> « od
a mr? 3) TKI ELE RTD RATER RSIS EIN BL RAL IE SOT TRONS PL PONT IOS Pe Sy EE
18 JOHN ARBUCKLE ET AL. VS.
deavoring to correct and prevent, in so far as they violate the laws
of the State of Ohio.
In regard to the complainants’ eighth allegation, affiant denies
that the practices of complainants are used solely for the purpose
and with the effect as therein stated, but further says that the great-
est effect of said process as is well known is to cause the said coffee
to appear to be of greater value than it really is, and to conceal its
ross inferiority, but whether or not affiant may be right and may
e rightly advised by the testimony of those competent to judge
and give e\ ence, it is the sole desire of this aftiant to enforce the
laws of the State of Ohio impartially, honestly and with the due
regard for the rights of all citizens and persons, including the com-
plainants.
22 In answer to complainants’ tenth allegation, affiant says
that he is unable to state as to how many millions of pounds
of the stock is now in Ohio, or how many hundreds of thousands of
dollars may be invested in the State of Ohio, or how many millions
of dollars may be invested in the State of Ohio, or how many mil-
lions of dollars may be invested in the United States, but affiant be-
lieves that the laws of the State of Ohie should be enforced as
against such product in the same impartial manner as if the com-
plainants’ stock were much less and of more insignificant amount,
for the reason that the statutes of said State do not discriminate in
favor of persons who have a large trade and against persons who
have a small trade, or in any other manner.
In regard to the eleventh allegation in the bill of complaint,
the affiant says that the duty of construing the provisions of the
statutes of Ohio, are for the various courts and that it is merely the
duty of affiant to institute such actions as sound discretion and good
advice would suggest and to abide at all times with the decisions
and construction of the provisions of the statute as held by the
courts of proper jurisdiction.
Affiant denies that he has menaced and threatened to prosecute
dealers and vendors of “Ariosa” in Ohio. Affiant avers that the
only expressions which he has made regarding “Ariosa ” have been
given in answer to requests for ruling from his department made by
complainants, or in answer to similar requests made by jobbers in
the State of Ohio; that all expressions made and acts performed by
affiant have been actuated solely by affiant’s wish and determina-
tion to perform the duties devolving upon him by law as dairy and
food commissioner of the State of Ohio.
Affiant further says that personally he does not prosecute vendors
of foods, but that the two assistant commissioners aiid the inspectors
who are appointed and employed according to law, have the disere-
tion and the duty imposed upou them of taking samples of food at
such times and places as in their judgment suggests and the prosecu-
tions are made upon the advice of the attorneys of the department,
located in various parts of the State; and affiant does not know and
cannot admit that dealers in the complainants’ article of food may
doubt the healthful character of said food, nor that they may cease
et
why te oe ae og Ec A ORS oy Sa A * r St a a
19
to purchase the complainants’ particular brand of food, and affiant
therefore denies the same.
Affiant says that in regard to said cireular in the thirteenth
23 allegation, he denies all the allegations following said circu-
lar, especially that part thereof contained on page fourteen
of the printed bill of complaint.
Aftiant denies the statements contained in the fourteenth allega-
tion of the bill of complaint.
Affiant denies the statements contained in the fifteenth allegation
of the bill of complaint.
Affiant denies the statements contained in the sixteenth allegation
in the bill of complaint, except in so far as the same contains mere
descriptive and irrelevant matter.
Affiant denies the statements contained in the nineteenth allega-
tion.
And coming now to the amendment to the bill of complaint filed
herein March 9th, 1901, affiant denies each and all of the state- ;
ments and allegations therein contained. 3
4
JOSEPH E. BLACKBURN, DAIRY AND FOOD COM’R, ETC.
H
’
é
ca
#
f;
§
4
*
%
Affiant further says that he could not at this time make any
statement as to what prosecutions may be made by the department
or the number of such prosecutions, and especially is affiant unable 4
to admit or to now predict what might be the duty of the depart- }
ment and course of action in regard to the complainants’ products, 3
except in this, that it will at all times, in so far as it is able, seek to
carry out and execute in a proper and lawful manner, the laws of
the State of Ohio, and further to perform the duties upon the various x
subjects under its particular province from day to day as circum-
stances may require.
JOSEPH E. BLACKBURN.
Sworn to before me and signed in my presence by the said Joseph
KE. Blackburn, this 13th day of March, A. D. 1901.
[SEAL. ] DAVID A. JONES,
Notary Public, Franklin County, Ohio.
24 And afterwards, to wit, on the 26th day of Mareh, A. D.
1901, the following affidavit was filed in the clerk’s office of
said court, clothed in the words and figures following to wit:
ener
JOHN ARBUCKLE ET AL. VS.
Affidavit of William A. Jamison.
Circuit Court of the United States, Southern District of Ohio, Eastern
Division.
JoHN ARBUCKLE, WiLLIaM V. R. Smitu, James N. Jarvir, and
William A. Jamison, Complainants, |
v8.
JosepH E. Biacksurn, Dairy and Food Commissioner of the
State of Ohio, Respondent. |
Affidavit of William A. Jamison.
State or New York, bss.
County of New York, j ~°
William A, Jamison, being first duly sworn, says that he is a resi-
dent of the city of New York, borough of Brooklyn, State of New
York, and is, and has been since the year 1891, a member of the
firm of Arbuckle Brothers, one branch of whose business consists in
the manufacture and sale of roasted coffee of the quality and brand
known as “Ariosa.”
The deponent is, and since the year 1891 has been, on behalf of
his said firm an extensive dealer in green coffee and since said time
has been, and still is, familiar with the various grades of green
coffee on the market, and their relative characteristics and worth.
Since the year 1891, when deponent first became a member of the
firm aforesaid, he has been familiar with the method of manufacture
of the said “Ariosa,” including the processes by which, and the
formula according to which, the said secret was, and still is, roasted,
treated and packed; and that, for the last six years, deponent has
been in responsible charge of the manufacture of the said “Ariosa,”
having the personal direction of each branch thereof, including the
process of glazing, or coating, at the New York manufactory of the
said firm where most of the “Ariosa” sold in the State of Ohio is
manufactured.
That during the whole of the time that deponent has been a
member of the said firm, as aforesaid, the said “Ariosa” has
25 been exclusively composed of sound coffee, well and evenly
roasted, and carefully and uniformly glazed and coated with
a preparation of sugar and eggs of good quality and in equal pro-
portions.
That said process of coating and glazing was, and still is, adopted
and used by said firm for the purposes, and with the effect follow-
ing, to wit:
(1.) Hermetically sealed the pores of the roasted coffee and thus
retaining in said coffee its original strength and aroma any length
of time.
(2) Preventing the absorption of said coffee of any noxious, in-
jurious or unwholesome flavors.
igh eR RR Si ste tata kee ere POSTON SE —
JOSEPH E. BLACKBURN, DAIRY AND FOOD COM’R, ETC.
(3.) Saving to the consumer the additional cost of eggs for settling
said coffee, when prepared for consumption.
That said glazing or coating is composed of healthful and whole-
some ingredients, as aforesaid, and is wholly transparent, and was
not by said firm intended to, and does not, in any way, conceal, or
misrepresent, the true appearance, grade or quality of said coffee,
but on the contrary, brings out more strongly the original grain
and characteristics of said coffee, making it easier to detect any im-
perfect black or yellow beans therein contained.
That during the time deponent has been a member of said firm,
every effort has been made to maintain the grade of the coffee used
in the manufacture of said “Ariosa” and that said grade has been
maintained, subject to inevitable slight changes therein, caused by
the variation in quality of the coffee crops of the different years in
which such brand has been manufactured.
That most of the “Ariosa” sold in the State of Ohio is roasted
and prepared at the manufactories of deponent’s said firm in -the
city and State of New York, and is there packed in one-pound pack-
ages, in which original packages it is shipped into said State of
Ohio, and sold to the private consumer.
That prior to the year 1894, a certain statement and affidavit was
printed upon each one-pound package of the said “Ariosa ” being
in words and figures as follows, to wit:
“ Ariosa
“Ts made from coffees selected especially for their strength, flavor,
“and superior drinking qualities. Coffee, when roasted, is porous,
“and, unless prevented, loses its best qualities and absorbs others,
“which are injurious to it. By our process of hermetically sealing
“the pores of roasted coffee we secure a threefold object :
“Ist. The retention of the full strength and aroma for any length
“ of time.
26 “2nd. The prevention through absorption of any injurious
“ flavors.
“3rd. The saving to the consumer of the additional expense of
“eggs incurred when any other coffee is used.
“*Ariosa ’ is self-settling.
“Choice eggs and pure ‘A’ sugar are the only articles used in ob-
“taining these three important results.
“Four pounds of roasted coffee go as far as five pounds green, as
“coffee loses 20 per cent. in roasting.”
“ Personally appeared before me, James J. Ferris, a notary public
“of New York and Kings counties, ss., Charles Arbuckle and John
“Arbuckle, and, both being duly sworn, do depose and say, that
“every one-pound package of roasted coffee, bearing the name ‘Ar-
“buckle, is made from pure, sound coffee, and is absolutely free
“from all poisonous coloring substances which are now being so
“largely used to improve the appearance of coffee. They further
“depose and say that coffee, when roasted, is porous, and loses its
“strength and flavor; to prevent which they hermetically seal the
ICSE TRL NEEM PRP TRONPTNT ES § (OT GLEE RONNIE, EIT
21
ve yee
BOLE LE OE IMIS LLL A BOL
LAL DE EDO Fe
22 JOHN ARBUCKLE ET AL. VS.
“berries with a preparation composed solely of choice eggs and pure
“ white sugar, and that this preparation also clarifies or settles the
“liquid coffee.
(Signed) “CHARLES ARBUCKLE.
“JOHN ARBUCKLE.
“Sworn and subscribed before me this the second day of August,
“1888, and I further certify that the above affiants are personally
“known to me.
“In testimony whereof, witness my hand this day and date above
“ written.
“JAMES J. FERRIS,
“Notary Public, Kings and New York Counties.”
and that since said year of 1894, the following statement has been
printed on every package of “Ariosa” manufactured and sold by
deponents’ said firm, to wit:
“ Ariosa
“Ts a compound made from coffee, sugar and eggs. The coffees are
“selected especially for their strength, flavor and superior drinking
“qualities, are pure, sound coffees, and absolutely free from all
“poisonous coloring substances which are now so largely used to
“improve the appearance of coffee. Coffee, when roasted, is porous,
“and, unless prevented, loses its best qualities, and absorbs
27 =“others which are inferior to it. By our process of her-
“metically sealing the pores of roasted coffee, we secured a
“three-fold object.
“Ist. The retention of the full strength and aroma for any length
* of time.
“2nd. The prevention, through absorption, of any injurious fla-
“ vors.
“ 3rd. The saving to the consumer of the additional expense of
“eggs, incurred when any other coffee is used.
““Ariosa’ is self-settling.
“Choice eggs and pure granulated sugar are the only articles
“used in hermetically sealing Arbuckle’s Ariosa cotfee.
“ Formula.
IB a cnscasvernnccccescensccccsusscccccesenanessgeenssncessencanscecesecee 99278
Gs cvencsnnienscvcsscansncseccasavensciscarsssascscnsssssscnssesescantace 00361
PE nascncccrsncsonsacesasscesscanecesvacasensescensseanasaveséusascesavens 00361
“Four pounds roasted coffee go as far as five pounds green, as
“ coffee loses 20 per cent. in roasting.”
That the facts stated in each of the affidavits or statements, above
set forth, are true, and are a true statement of the process and
formula, by and according to which the said “Ariosa” has been
heretofore, and now is, manufactured, and the reasons for, and the
effect of, the use of said process of coating and glazing.
WILLIAM A. JAMESON.
Ran AUR ALTE Ay men a
V7”_
ao —
Shy ae wees BERRIES TIO EN TOI SE TT TON
JOSEPH Kk. BLACKBURN, DAIRY AND FOOD COM’R, ETC. 23
Sworn to before me and subscribed in my presence this 18th day
of February, A. D. 1901.
[sea] JOHN HALL JONES,
Notary Public in and for New York County, New York.
28 And afterwards, to wit, on the 26th day of March, A. D.
1901, the following affidavit was filed in the clerk’s office of
said court, clothed in the words and figures following, to wit :
Affidavit of John De Witt Warner.
Circuit Court of the United States, Southern District of Ohio, Eastern
Division.
Jous Arpuckee, Wittram V. R. Sarr, James N. Jarvin, and }
William A. Jamison, Complainants,
vs.
Joseru E. BiuackBURN, yt and Food Commissioner of the |
State of Ohio, Respondent.
Affidavit of John De Witt Warner.
Srare or New York, | a:
New York County, .
Jolin De Witt Warner, being duly sworn deposes and says, he is
upwards of twenty-one years of age ; that he resides in the city,
county and State of New York, and is an attorney and counsellor
at law, having his office at No. 111 Broadway, city and county of
New York; that he is one of the legal advisors of the firm of Ar-
buckle Brothers, of the city of New York, manufacturers and ven-
dors of “Ariosa.”
Respondent was informed on or about the 2nd day of January,
1901, that Joseph E. Blackburn, dairy and food commissioner of the
State of Ohio, had issued to the vendors of and dealers in coffee in
the State of Ohio a certain circular, reading as follows :
To whom it may concern :
Notice is hereby given that on and after thirty days from date
hereof, the statutes (Bates’ R. S. sec. 4,200-’6), against the practice of
adulterating coffee by manipulation, such as coloring, coating, pol-
ishing or powdering, whereby damage and inferiority is concealed,
or whereby it is made to appear better and of greater value than it
really is, will be strictly enforced.
The following is the law on this subject (Bates’ R. S. see 4,200-’6,
paragraph 6): ;
(6.) If it is colored, coated, polished or powdered whereby
29 damage or inferiority is concealed, or if by any means it is
made to appear better or of greater value than it really is.
The department holds that it is not a compliance with the fore-
going to simply label the article “compound” when coffees are
filled, coated and glazed to make them appear better or of greater
%
o
EEE RISER IS
24 JOHN ARBUCKLE ET AL. Vs.
value than they really are, and to retain water that has been added
to increase weight.
Additional information will be furnished on request.
Respectfully submitted,
J. E. BLACKBURN,
Dairy and Food Commissioner.
Columbus, Ohio, Jan. 1, 1901.
Deponent further says that, pursuant to the request of said Ar-
buckle Brothers, he visited said Blackburn at his office in the capi-
tol, at Columbus, Ohio, on the 7th day of January, 1901, to inquire
as to his purpose in issuing such circular, especially as to said
“Ariosa,” a deponent offered then to.give or to arrange to furnish
promptly to said Blackburn such information as he might require,
regarding the quality, grade and characteristics of said “Ariosa,”
and the processes of its manufacture, and to provide all facilities he
might require for investigating personally or by representatives, the
grade, quality and characteristics of said “Ariosa” and the processes
of its manufacture, packing, marketing, et cet-ra, and to give him
any other information which he might desire in connection there-
with.
That upon said 7th day of January, 1901, after full and repeated
interviews with said Blackburn, and after having peo ta with
him the contents of a package of “Ariosa,” which said Blackburn
had secured, said Blackburn informed deponent that prior to con-
sulting his counsel, and making such tests and inquiries as he might
thereafter see fit to make, he, said Blackburn, proposed to “ hold his
mind open,” and not to state or to conclude whether or not said
“Ariosa” as manufactured, packed, sold or exposed for sale in Ohio,
was objectionable or illegal, or whether or not such manufacture,
packing, sale or exposure for sale wasa violation of the law of the
State of Ohio in the premises.
That deponent thereupon renewed his said offer to furnish said
Blackburn all possible information and every facility in the premises,
and returned to the city of New York, and advised said Arbuckle
Brothers of the facts and circumstances above stated,
JOHN DE WITT WARNER.
30 Subscribed and sworn to before me this 16th day of Febru-
ary, 1901.
[sEAL. ] JOHN HALL JONES,
Notary Public, New York County, New York.
And afterwards, to wit: on the 26th day of March, A. D. 1901,
the following aflidavit was filed in the clerk’s oflice of said court,
clothed in the words and figures following, to wit:
passes
JOSEPH E. BLACKBURN, DAIRY AND FOOD coM’R, ETC.
Affidavit of I. W. Wiley.
Circuit Court of the United States, Southern District of Ohio,
Eastern Division.
JoHn Arpuckie, Wittiam V. R. Surrn, James N. JARvIE, and
William A, Jamison, Complainants,
vs.
Joseru E, Buacksury, Dairy and Food Commissioner of the
State of Ohio, Respondent.
Affidavit of H. W. Wiley.
District OF COLUMBIA, 88:
we
¥.
Ilurvey W. Wiley, being duly sworn, deposes and says: I am of
full age,and reside in the District of Columbia; Iam, and for the
past 18 years have been the chief of the Division of Chemistry in
the United States Department of Agriculture. For 15 years last
past it has been my occupation to examine food products marketed
for consumption in the United States, with special reference to their
purity and healthful character; and for that purpose to keep myself
informed by analysis, inspection, and all practicable tests as to food
products in general, and the conditions which determine their purity
or healthful character, both in this country and elsewhere. During
the World’s Exposition, lately held in Paris, France, I represented
the United States Department of Agriculture in charge of the
United States Government exhibit of beverages, sugars, candies and
other food products.
At the request of Mr. John Arbuckle, one of the complainants in
the above-entitled cause, I visited the borough of Brooklyn,
31 New York city, on Wediesday, February 6th, 1901, and there e
made a careful examination of the “Ariosa ” manufactory of &
Messrs. Arbuckle Brothers, and of the processes by which and the é
condition under which “Ariosa” was there manufactured and :
packed for the market. 2
Said “Ariosa” is a compound or mixture of roasted coffee, eggs ‘
and sugar; by far the greater part of its bulk and weight consist- ;
ing of roasted coffee. ;
I examined particularly the apparatus for cleaning the green *
coffee, and investigated the method by which stones and sticks are
separated on the one hand, and the dust and light and imperfect :
berries on the other. I then made an examination of the roasting .
furnaces to determine the care with which uniformity in the quality {
of the roasted berries is secured. I found in both these apparatus- a
perfect adjustment to the desired object, and a method of working ;
which could leave nothing to be desired in the way of securing as vs
near as possible a perfect product. Pa
iN}
SPRY LEE IEP OOE REE
I next inspected the methods of preparing the coating substances
with which the aroma and good qualities of the roasted berries are e
a
26 JOHN ARBUCKLE ET AL. Vs.
reserved. The eggs which are used for — purpose are all perfectly
Seadied, so that any spoiled ones may be removed. The good eggs
are then broken and the contents allowed to fall upon a strainer
which retains the shells and allows the semi-liquid contents of the
eggs to pass through.
The contents of the eggs are mixed with sugar, and enough water
to dissolve it, and the whole is beaten into a uniform mass in a
mixer. I secured a sample of this mass and subjected it to a chem-
ical examination.
In order to determine the effect of coating the coffee with this
material, 1 took a sample of the roasted coffee as it entered the coat-
ing apparatus, and also a sample from the same charge after the
coating had been applied and the berries dried for ten minutes ina
current of warm air. I brought the two samples, representing the
roasted berries before coating — the berries after coating, to Wash-
ington for further chemical examination.
I also bought in the open market in Washington, for further com-
parison, three samples of coffee, viz:
1. A package of Arbuckle’s “Ariosa.”
2. A package of high-priced coffee, sold as a mixture of Mocha
and Java for thirty-five cents per pound.
3. A package of coffee, brand Jay-Mar-Mo.
To determine the effect of the action of hot water upon these
samples, they were treated as follows:
32 One hundred gran of each of the samples were placed in
a breaker of convenient size. Over each sample 200 ¢. ¢. of
boiling water were poured. All of which samples were thoroughly
stirred with a glass rod, at intervals of a minute for ten minutes.
The liquor was then poured off the samples, and they were waslied
with a small quantity of hot distilled water. The liquor was evap-
orated to dryness, and the amount of extract calculated in per cent.
The moisture content of each of these samples was also deter-
mined, and these data are also found in the table which follows:
Table Showing Percentage of Moisture and Amount of Material Extracted
by Hot Water in Five Samples of Coffee.
Serial No. Description, Moisture. Extract.
21337... Arbuekle’s roasted, unglazed ........0.0......0.00- 2.00% 2.32%
21338....2 APDUCKICS FORSTER, GIANOM 2.0.5 cia vecces ccvcenacs 2.26% 3.06%
21339 =..Jav-Mar-Mo, made by Bd. J. Gillies & Co. ........... 3.33% 2.26%
21340 ...Arbuckle’s Ariosa, bought in Washington market... . 3.20% 3.45%
21341... Java-Mocha mixture, in bulk, $5c. per pound ........ 2.01% 2.13%
A comparison of the above data shows extremely small quantities
of moisture in all the samples, and even in the samples of “Ariosa”
bought in the Washington open market, which had probably been
kept in stock for a long while, the quantity of moisture which had
been absorbed it is seen was extremely small.
It is also evident from an inspection of the table that the diges-
tion of these coffees in hot water takes out a large quantity of the
soluble matter which the coffee bean contains. It is seen, therefore
oh ERAS pera a ale a ne i
MSRP AL Eee
JOSEPH E. BLACKBURN, DAIRY AND FOOD COM’R, ETC. 27
that if these samples are treated with hot water they are so changed
in their constitution that they cannot any longer be regarded as
typical of the same coffee before treatment. Hence any attempt to
determine the original condition of a glazed coffee by treatment
with hot water must be futile.
To determine the effect of cold water and tepid water upon the
appearance of the coffee beans, samples from the same packages
mentioned above were treated as follows:
One hundred grams of each coffee were digested with 200 ¢. ¢. of
cold water at room temperature, viz: 770 F., for 20 minutes, stirring
every minute. Another series of samples from the same packages,
of 100 grains each, were treated in the same way with tepid water,
that is, at a temperature of 122° F., for 10 minutes, stirring every
minute.
33 After the digestion was completed, all the samples were
washed with water at the same temperature and the beans
were dried. In every case the coffee beans thus treated had a black
and forbidding appearance and there was no difference whatever in
the appearance of the glazed and the unglazed samples.
The liquors from the digestion were evaporated to dryness and
the amount of extract determined. ‘The quantity was not so great
as that extract- by the hot water, as was to be expected but it was
suflicient to produce the same effect upon the appearance of the
beans as was produced by the hot water.
It is evident from the above data that treatment with cold water
for 20 minutes and with tepid water for ten minutes have about the
same effect upon the appearance of the beans as was produced with
boiling water. The coffees which had been previously glazed have
exactly the same appearance after this treatment as the unglazed
cotfees. It is evident, therefore, that any attempt to determine the
original condition of the glazed coffee by treating it with cold or
tepid water is useless, and any deduction in regard to the original
state of such coffee drawn from the results of such an experiment
are wholly valueless.
The difference in moisture between the Arbuckle glazed and un-
glazed coffee is so minute as to be practically negligible. The
ordinary errors of analysis, which are unavoidable, might be suffi-
cient to account for a large portion of the apparent increase in
moisture in the glazed coffee. Some moisture also is nece$sarily
added in the glazing, and in the samples compared, the berries,
after glazing, were allowed to remain in contact with a current of
warin air only about ten minutes, whereas, in ordinary commercial
operations, they are kept in contact with the hot air until they are
perfectly dry. “It is evident, therefore, that the process of glazing,
as practiced in the Arbuckle factory, does not add to the roasted
berry any appreciable content of moisture.
The sample of glazing material, ready for use, mentioned above,
was also subjected to analysis, with the following results:
Specific Gravity....cccccceseeccseeseeeeeeeeeeeeeeseeeeseeaeeeanenesse ress 1,0977
Total solids........... eisnnens suansenue sushnesachensecsonsnectins. GENO fe GRU
WHE ssinsansennene Sehuanenhas tons baamasanG¥nOhehS Finan ube’ ..... 67.92 per cent.
28 JOHN ARBUCKLE ET AL. VS.
The amount of this glazing material used for 550 pounds of
34 coffee is ten quarts. Each quart of this material weighs 2.38
pounds, and, therefore, the amount of material added in ten
quarts would be 23.8 pounds. Of this quantity 16.16 lbs. are water
and 7.64 pounds solid matter. In the process of glazing, therefore,
16 pounds of water are added to 550 pounds of coffee, and this added
water is afterwards evaporated by submitting the glazed mass to the
action of a current of hot air, leaving deposited asa thin transparent
film the albumin and sugar composing the solid matters of the
glazing mixture. <A glazed coffee, then, can be regarded as a com-
pound, consisting principally of coffee, with a small quantity of
albumin and sugar attached.
The process of glazing does not in any way tend to conceal in-
feriority. On the contrary, the coffee beans of a black color and
also those of an exceptionally light color, appear much more dis-
tinctly in the glazed than in the unglazed samples; thus the pro-
cess of glazing only accentuates any difference in color or appear-
ance which may have existed in the original samples.
The mixture of albumin and sugar which is added as a glaze
costs a great deal more per pound that the coffee itself. Hence the
slight increase in weight which the coffee undergoes by the addi-
tion of this thin, transparent film is due to a material which costs a
good deal more than the coffee itself. There could, therefore, be no
financial fraud in connection with the glazing of this kind. It is
lain that the process of glazing coffee results in improving its
noe He qualities, in accentuating the difference between the per-
fect and somewhat imperfect beans which a sample may contain
and in adding to the coffee a material which is useful in securing a
proper settlement when the beverage is made, but at the same time
costs a great deal more than the coffee itself. It is seen that sucha
process does not partake of the nature of an adulteration in any
form or shape. It does not add anything of an injurious character
to the food. It does not conceal inferiority. It does not adda
cheaper to a dearer substance. On the contrary this added ma-
terial is wholesome and digestible. It assists in the clarification of
the coffee when the beverage is made; it preserves the aroma and
flavor of the roasted berry, and prevents the absorption of moisture
which would take place on long standing in the air. The use of
this glaze is, therefore, distinctly beneficial from all points of view,
and cannot be justly objected to, either on the grounds of hygiene or
of fraudulent intent.
It is clearly demonstrated that the darkness of color and
35 general bad appearance of the coffee beans after digesting
with hot water have no relation whatever to the glazing.
The unglazed berries show the same appearance as the glazed ber-
ries after digestion. Hence any attempt which may be made to
show the original character of the berries which have been glazed,
by digestion with hot water, is futile, and the deductions which
would be made from such an experiment are absolutely worthless
in regard to judging of the original qualities of the berries. The
digestion dissolves the sugar, caramel, dexterine and other soluble
PANT PARKER AA ys i COE. naa 7 f
—_
JOSEPH E. BLACKBURN, DAIRY AND FOOD COM’R, ETC.
portions of the exterior part of the berries and leaves the residue
black and forbidding in all cases, whether glazed or unglazed.
A comparison of the samples taken before and after the treatment
described shows that the glazing of the berries makes their appear-
ance very much less like that of a high-priced coffee than is that of
unglazed berries. The process of glazing does not tend in any pos-
sible way to make a low-priced coffee resemble in quality, as shown
by appearance, a high-priced cotfee berry, but just the contrary is
the case.
The dark-colored berries in “Ariosa” after glazing are much more
highly contrasted with those of ordinary color than are similar ber-
ries befure glazing in the roasted berries from which “Ariosa” is
made. In light manner the light-colored berries in “Ariosa” after
glazing, are much more highly contrasted with those of ordinary
color than are similar berries before glazing in the roasted berries
from which “Ariosa” is made. The process of glazing “Ariosa ”
coffee does not in any way tend to make unusually colored berries
resemble those of usual color; but the contrary is the case. The
glazing las the effect of rendering more clearly visible any imper-
fect berries that may exist in any given quantity of “Ariosa.”
The result of my inspection, analysis and comparison of samples
is, and I so state:
1. The glazing of the roasted berry by the Arbuckles process is
conducted with a valuable food substance, which is deposited in an
extremely thin transparent film, tending to preserve the aroma and
flavor of the berry.
2. The dark forbidding color imparted to the coffee berries by di-
gesting in hot, tepid or cold water is not due in any degree to the
glazing, but the natural constitution of the berry which gives off a
certain portion of its soluble external constituents to the digestion
liquor.
3. The glazing of roasted coffee berries does not have any tend-
ency to make a low-priced berry resemble a high-priced one; but
just the contrary effect is produced.
4. The glazing of coffee berries with a thin, transparent
36 film, referred to above, does not tend to cause imperfect or
unusually colored berries to resemble the perfect berries of
the usual color; on the contrary, the opposite effect is produced.
5. The glazing of the coffee berries by the Arbuckles process is
secured by the use of a valuable food material which is useful also
in helping to settle the coffee when the beverage is made, and which,
therefore, is not in any sense the addition of a cheaper to a dearer
substance, and hence this process is devoid of fraud or deception in
any particular.
G. Any attempt to determine the original condition of the glazed
coffee by treating it with cold, tepid or hot water is useless, and any
deductions as to original state or appearance of such coffee after
roasting, but before glazing, which might be drawn from the result
of such an experiment would be valueless.
7. No appreciable weight derived from moisture is added to and
no moisture retained in the coffee by glazing.
be HARVEY W. WILEY.
ER: Ee?
PSS Re AS IS SELES S BOCELLI LOE GOLEM | LAGE NOS
ME ETAL MEN PNET FE eas ad
beats 8
Gee Oe oy
al ws
a
80 JOHN ARBUCKLE KET AL. VS.
Sworn to before me and subscribed in my presence this 21st day
of February, 1901.
[seat | THOMAS J. SULLIVAN,
Notary Public, D. U.
And afterwards, to wit: on the 26th day of March, A. D. 1901,
the following affidavit was filed in the clerk’s office of said court,
clothed in the words and figures following, to wit:
Affidavit of Clarence Brown.
In the Cireuit Court of the United States for the Northern District
of Ohio, Eastern Division.
JoHN ARBUCKLE ET AL.
vs. =~ “
, n Equity. No. 985.
Joseru E. Bracknurs, Dairy and Food any ses
Commissioner, ete.
Affidavit of Clarence Brown.
Tue Strate or Onto, ae
County of Lucas, F
Clarence Brown, being first duly sworn, deposes and says: that
he is one of the solicitors of, and of counsel for the complain-
37 ants in the above-entitled suit; that he is informed and be-
lieves that in consequence of the acts of said defendant speci-
fied in said complainants’ bil! of complaint in said suit, and in col-
lusion with said defendant, the Dayton Spice Mills Company, a
manufacturer of and dealer in package coffee at Dayton, Ohio, did
on or about the 12th day of February, 1901, cause to be printed a
certain circular letter, a copy whereof is hereto attached marked
“A.” and on and after said date sent the same generally to grocers
and coffee dealers throughout Ohio and elsewhere, together with
certain blank forms, copies of which are hereto attached marked
“B” and “C” and a certain circular, copy of which is hereto at-
tached marked “ D.”
CLARENCE BROWN.
Subscribed in my presence and sworn to before me this twenty-
second day of February, 1901.
[sea] HENRY TRUESDALL,
Notary Public in and for Lucas County, Ohio.
“A ”
Dayton Spice Mills Company,
Coffee-roasters.
Daytox, Onto, February 12, 1901.
Dear Sir: We have received hundreds of letters from the retail
grocers of the State thanking us for our letter of January 29th, and
if PGR TT, ES Soak Miah er TOG PLOT AE COPIES BIRT HE NSA
JOSEPH FE. BLACKBURN, DAIRY AND FOOD COM’R, ETC.
the copy of the letter issued by the commissioner of the pure food
department of this State, relating to the glazing and coating of
roasted coffees, and whilst a number gave us their opinion of the
ruling, and in every such case commended same, the great majority
simply acknowledged receipt of our letter with thanks. In order
therefore to get a full and intelligent expression on the subject from
the retail grocers of the State who are vitally interested in the saie
of pure goods to their customers, we ask you to make the following
test of any glazed coated coffee either in package or bulk that you
have on hand, and give us the result on blank herewith enclosed
for that purpose.
Test: Take a handful of glazed or coated coffee out of pack-
38 age and put it in a glass of cold or warm water, allowing it
to remain only long enough to remove the glaze or coating ;
pour off the liquid into another glass and keep it for a day, then ex-
unine. ‘Take the coffee from which glaze or coating has been re-
moved and let it thoroughly dry, then place it alongside of and
equal amount of glazed or coated coffee taken from same package
and note the result. If you think the glazing or coating has cov-
ered up many imperfections and made a poor grade of coffee to ap-
pear much better than it actually is. say so, or if you think it has
improved the coffee and does not deceive as to grade used, be equally
frank in saying so.
As advised you in our former letter, all coffees roasted by us will
comply strictly with the law, and we ask you to give them a trial.
We enclose order blank for that purpose, and as a special offer and
inducement for an order to be shipped direct to you from our mill,
to be billed through any wholesale grocer, we will furnish with 1
case, 100 Ibs. (1-lb. tin cans) Dutch Java blend, 1,000 circulars like
the enclosed, or with 1 case, 60 Ibs., 500 circulars; with 1 case, 100
Ibs., (1-lb. packages) Jersey coffee, 1,000 circulars like enclosed, or
with 1 case, 60 Ibs. 500 circulars. We will prepay freight to nearest
railroad station. Be sure to state what wholesale grocer you desire
to have us bill through. We hope to receive your order and also
the result of test we have asked you to make. Awaiting your reply,
we remain,
Respectfully yours,
DAYTON SPICE MILLS COMPANY.
N. B.—We ask you specially to make the test requested and re-
port results. We enclose addressed envelope for that purpose, and
if you send us an order in addition it will have our prompt and
careful attention, and be appreciated.
“BY
Test.
Date, ——-, —— —, —.
The Dayton Spice Mills Co., Dayton, Ohio.
GENTLEMEN: I have this day made test of the following brands
of roasted coffee, glazed or coated, and herewith give you results:
— . .
SEE MAU a BH cI RNR IEE RETNA LORIN GI REINA HOGI Soe Om EE RS ROLE a ge ES
5
RE SOR FSF
A REE EE RIOT ESE NI
TEASE SP OLE EOE EEL EME, SEP
we
32 JOHN ARBUCKLE ET AL. VS.
Brands of coffee tested
How long did you allow coffee to remain in water?) —.
39 Did you use cold or warm water?
Was glaze or coating thoroughly removed ?
Did you pour off water in separate glass?
What was the color and nature of the liquid after standing a day?
Would you like to drink it? ——.
Did you thoroughly dry coffee? ——.
Did you compare it with equal amount of glazed coffee taken
from same package?
How did it compare? ——.
In your opinion does the glazing or coating of roasted coffee cover
defects and make it possible to deceive the consumer ? ;
After making this test would you prefer to buy your roasted
coffees plain, without glazing or finish, of any kind?
Remarks:
Respectfully yours, —— —.
Post-oftice
“ c”
Order Blank,
With special advertising matter for direct shipment.
——s |
The Dayton Spice Mills Company, Dayton, Ohio.
GENTLEMEN: Please ship me to —— (give railroad station and
county) cases 100 pounds (1-lb. tin cans) Dutch Java blend
coffee, with 1,000 special advertising circulars.
cases 60 pounds (1-lb. tin cans) Dutch Java blend coffee with
500 special advertising circulars.
At $16.50 plus rate of freight as shown on equality freight rate
books, without rebate. 60 Ibs. cases 1-10c. higher.
eases 100 pounds (1-pound packages) Jersey coffee with 1,000
special advertising circulars.
cases 60 Ibs. (1-pound packages) Jersey coffee with 500 special
advertising circulars.
At 12 cents plus ~ of freight shown on equality freight rate
books, less rebate of 3c. per pound. 60-Ib. eases 1-10e. higher.
These coffees to 4 shipped direct, freight prepaid, and billed
through ——, wholesale grocer.
Respectfully yours, —— ——,
40 N. B.—The above prices are subject to change without
notice. All orders will be filled at prices ruling the day they
are received.
OEE Seeker iittala Se MER ehh cadets’ Aaa ae —
POSE SLAG ELL
JOSEPH KE. BLACKBURN, DAIRY AND FOOD COM’R, ETC.
“ 1 Ng
The reason why
Jersey coffee
Is the best package coffee made.
The careful attention of all persons interested in the use of pure
food is respectfully called to the merits of pure Jersey roasted coffee.
Jersey coffee is recognized everywhere as the standard for purity
and excellence among all other brands, and complies strictly with
the pure-food laws of Ohio and all other States. The steadily in-
creasing sale and growing favor with which Jersey coffee has met
since its first introduction to the public, is not only conclusive evi-
dence of its merit and popularity, but also a gratifying comment on
our earnest efforts to supply the public with a pure, clean, strong and
fine-flavored coffee at the same price the consumer has been paying
for inferior goods. The key to this success is:
First. The most careful selection, in buying, of none but the best
grades of sound coffees, celebrated for their strength and fine drink-
ing qualities.
Second. The use of the most improved machinery known and tive
utmost care and skill in the process of roasting; thereby insuring
uniformity and retaining the greatest possible percentage of aroma
and strength.
Third. Unsurpassed facilities in all our departments, enabling us
to turf out goods at the minimum cost of production.
Fourth. A willingness to sell our goods at a small profit, and an
appreciation of the fact that when a consumer asks and pays for
good coffee, he should get good, pure coffee, and not a filthy com-
bination of low grade inferior coffees and nameless adulterations skill-
fully manipulated to represent it.
Jersey coffee
therefore, is pure, strong and fine flavored, and derives these dis-
tinctive qualities from an intelligent combination and treatment of
fully ripened merchantable coffees, and from nothing else
41 whatever. In every pound package of Jersey coffee we guar-
antee 16 ounces of pure coffee. Jersey coffee is neither dipped,
doped, varnished nor glazed with cheap and nasty mucilaginous
substances to reduce the cost and deceive the purchaser, but goes
straight from our roasters to the consumer, clean, dry and whole-
some.
We do not glaze coffee.
We regard all such productions setting forth the claim that the
“aromatic flavor” and “strength” of the coffee is, by virtue of this
ingenious déping process, “ hermetically sealed ” and “ retained” as
base impositions, unwholesome and nauseating. This assertion can
easily be verified by filling a tumbler half full of any glazed coffee,
cover with warm water and let it soak for twelve hours, stirring oc-
casionally ; then pour off, and examine the liquid thus obtained ;
in
: 5
jincmiereenets LEBER TEL GOD OIE WES IRE LORS EIT ET LT & Lag eae:
PEO: meat Say biG AID ome TaE
; POLL LS NYT OTL I ae
ES AIDS AAI ICT
ee AGRA ENT #
a
34 JOHN ARBUCKLE ET AL. Vs.
smell of it, taste of it, or put a little of it in your morning cup of
coffee ; you will then know for a certainty whether or not you want
to use glazed coffee.
Jersey coffee stands squarely on its merits, and we are content to
abide by the honest verdict of the consumer. If you want a cup of
good coffee, buy a package of Jersey, and give ita good honest trial ;
then, if you like it, you will buy it again, and do us a favor by
speaking a good word for Jersey to your neighbor.
Jersey coffee is put up in one-pound packages only. It is guar-
anteed full 16 ounces of pure coffee in each package and is never
sold in bulk.
Jersey coffee is sold by all leading grocers. If your grocer does
not keep it, ask him to get it for you.
Very truly yours, ©=DAYTON SPICE MILLS CO.,
Dayton, Ohio.
42 And afterwards, to wit, on the 26th day of March, A. D.
1901, the following affidavit was filed in the clerk’s office of
said court, clothed in the words and figures following, to wit:
Affidavit of Henry A. Weber.
In the Cireuit Court of the United States for the Southern District
of Ohio.
William A. Jameison, Complainants,
vs.
Josep E. Buackpurs, Dairy and Food Commissioner of the |
Joun Arpuckie, Witttam V. R. Surru, James N. Jarvir, “
State of Ohio, Defendant.
Afficavit of Ilenry A. Weber.
Srate or New Yore, “
City and County of New York,
Henry A. Weber, being duly sworn, deposes and says: Iam of full
age and reside at the city of Columbus, in the State of Ohio; I am,
and for the past sixteen years have been, professor of agricultural
chemistry at the Ohio State university, situate at Columbus, afore-
said.
Prior to that time I had been professor of general chemistry for
ten years at the University of Illinois. In and continuously be-
tween the years 1885 and 1897 [ was the chemist of the Ohio dairy
and food commission,
To some extent as professor of general chemistry, and, in especial,
as a chemist of the Ohio dairy and food commission, for the last
twenty-five years, it has been a part of my occupation and official
duty to be and keep acquainted with the more common agricult-
ural and food products, including coffee, produced, marketed or
used in the State of Ohio, and with the manufacture, production
and marketing thereof, especially as regards their ingredients, purity,
. ARS ANE TIO BIT OO I Tahir t hcieahe sh ad abies Sean Da
BNA APR PON a LOT :
JOSEPH E. BLACKBURN, DAIRY AND FOOD COM’R, ETC,
healthful or other character, and the extent to which they are free
from or subject to any process or treatment by which appearance
may be changed, fraud concealed, substitution made, or anything
done or permitted to the prejudice or danger of the health or inter-
est of the public which may purchase or use same.
I am well acquainted with “Ariosa,” manufactured by Ar-
43. buckle Brothers. It is a mixture or compound of roasted
coffee, eggs and sugar, of which the roasted coffee constitutes
far the greater part of its weight and bulk. For more than twenty
years it has been largely sold in the open market in Ohio, and else-
where, for food, and is a well-known food product, and for fifteen
-ears, or a longer period, to deponent’s knowledge, said Ariosa has
boon a food product, well known and generally used in the State of
Ohio, sold and purchased under that name; and during that time,
I have had it in daily use in my own family for my personal con-
sumption.
At the request of Mr. John Arbuckle, one of the complainants in
the above-entitled action, on Thursday, February 21, 1901, at the
borough of Brooklyn, New York city, I inspected the Ariosa manu-
factory of Messrs. Arbuckle Brothers, and each step of the process
by which such Ariosa was produced and put up for sale.
The green coffee received at the manufactory is subjected to me- N
chanical treatment, by which, on the one hand, sticks, stones and i
other foreign substances, and on the other, light and imperfeet ber- ,
ries, are removed therefrom. I found this process effectual to these
ends. I then examined the roasting furnaces. ‘These are so built
and fitted as to secure uniformity in the roasting process to which
the coffee berries are subjected, and [ found these furnaces well de- 4
signed and handled to secure a uniform product of roasted colfee. \
I also inspected the next process, known as “ glazing,” to which
the berries, when roasted, are subjected. The glazing material con- :
Serr
sists of eggs, mixed with white sugar, and T saw the process as fol- .
lows: The eggs are first “candled,” and any damaged or spoiled 4
ones thus removed ; the good eggs are then broken, the contents ;
strained, mixed with white sugar, and enough water added to dis-
solve the mixture, which is then beaten in a uniform mass. <A cer-
tain amount of this is then measured into a cylinder, into which a ;
“ charge "—some 500 — or more—of coffee berries, roasted by ;
the processes noted, has been placed ; the contents of which are
;
then mechanically so stirred as thoroughly to cast the roasted coffee ‘
berries with the glazing material mentioned. %
Such contents then consisting of roasted coffee mixed and com- 4
pounded with sugar and eggs, are then mechanically transported to
a drving-room, where they are subjected to a hot-air blast until
dried, and thence carried by mechanical process to bins from which
they are packed in pound packages so covered by a sealed wrapper
as not to disclose the character or appearance of the coffee,
44 but bearing prominently on the outside the name “Ariosa,”
with a statement of the contents of the package, its ingre-
dients and the proportions in which they are mixed or compounded,
—
ae
rg SATA hates ern yo Ce i Se NT SIRES ao Eee RUDRA ANIC A
36 JOHN ARBUCKLE ET AL. VS.
a copy of which wrapper, marked “Exhibit A” is hereto annexed
as a part of this affidavit. ,
All these processes are done and completed at the manufactory at
Brooklyn, aforesaid. The coffee berries as roasted and submitted
to the glazing process are practically dry. The process to which
they are subjected in the drying-room, so far removes the water part
of the glazing mixture that, as packed for shipment, no material
amount of moisture is included with Ariosa.
While the glazing process mentioned would materially retard
after absorption from the air of moisture by Ariosa thus prepared,
it would not be practicable thereby to retain moisture therein—one
constituent of such glazing being sugar, which is so susceptible to
moisture that were any material quantity contained in the coffee
bean it would tend to disintegrate such glazing, make the coffee
berries sticky and induce rapid deterioration in the coffee. As
actually treated, however, by the processes mentioned, the roasted
coffee thus glazed and dried is protected from loss of its aroma and
other coffee qualities, and also against absorption from the atmos-
phere of other substances, and thus seeenevel from deterioration ;
and, at the same time, its use facilitated by the qualities of the
glazing which is composed of materials commonly used in preparing
roasted coffee for use as a food for drinking purposes.
By the process of roasting coffee berries are, to some extent, dis-
integrated—that is to say, portions of them reduced to dust or loose
porous matter, and either loosened or left so as to be easily affected
by being stirred, or especially by being treated with water. Any
such treatment of the roasted berries by washing or handling as
would remove the glazing therefrom, would naturally so disinte-
grate the surface of the berry, and so far separate therefrom portions
of the roasted berry as to leave it materially changed, both in fact
and appearance, from its normal condition after roasting; so that it
would not be possible either by washing, handling, or any other
means known to me, to produce or restore from Ariosa the roasted
cotfee berries from which (with eggs and sugar) it had been made,
in the condition or with the appearance in which they were after
roasting, and before glazing.
The process of glazing does not conceal inferiority in the berries,
but brings out and emphasizes any difference from the nor-
45 mal which may exist, acting in this way as a varnish, and
showing more plainly in the Ariosa as glazed than in the
coffee as roasted before glazing, any coffee beans of exceptionally
dark or exceptionally light color,
The mixture (sugar and eggs) added to the roasted coffee to pro-
duce Ariosa is of much larger cost than the same weight of roasted
coffee. They are well-known, generally used and healthful food
products. The effect of glazing is not to assimilate coffee thus
treated to cotlees of greater market value, but rather the opposite.
In the case of Ariosa thus treated, no substance has been mixed
with it so as to lower, depreciate, or injuriously affect its quality,
strength or purity; no inferior or cheaper substance has been sub-
stituted wholly orin part for it; no valuable or necessary ingredient '
PIAL ARR LLDPE OH OL Me HRP aan ; bide
~—
—
JOSEPH E, BLACKBURN, DAIRY AND FOOD COM’R, ETC. 37
has been wholly or in part abstracted from it; it is not an imitation
of, or marketed under the name of any other article; it does not con-
sist wholly or in part of any diseased, decomposed, putrid, infected,
tainted or rotten animal or vegetable substance, or article, whether
manufactured or not, ind it is not so colored, coated, polished or
owdered as to conceal damage or inferiority, or to be made to ap-
pear better or of greater value than it really 1s. Each ingredient is
an ordinary article and ingredient of articles of food, and is not in-
jurious to health.
HENRY A. WEBER.
Sworn to before me, a notary public, in and for the county of New
York, N. Y.
[sraL.] J. E. CONNELLY,
Notary Public, N. Y. Co.
Exuipir “A,”
“ Ariosa”
Is acompound made from coffee, sugar and eggs. ‘The coffees are se-
lected especially for their strength, flavor and superior drinking qual-
ities, are pure, sound collees and absolutely free from all the potson-
ous coloring substances which are now so largely used to improve
the appearance of coffee, Coffee when roasted is porous, and, unless
srevented, loses its best qualities and absorbs others which are in-
jurious to it. By our process of hermetically sealing the pores of
roasted coffee we secure a threefold object :
Ist. The retention of the full strength and aroma for any length
of time.
46 2nd. The prevention through absorption of any injurious
flavors.
3rd. The saving to the consumer of the additional expense of eggs
incurred when any other coffee is used “Ariosa” is self-settling.
Choice eggs and pure granulated sugar are the only articles used
in hermetically sealing Arbuckles’ Ariosa coffee.
Formula.
Cet sol. ns paabasebuhe ONMRRESSRieasesedesabenenscece TO
Egrgs..cscccsccsccssccnsccsensctsocsscescnsccncees soscsscsconsescsscessscssens OOSGL
SUPLAL .ccccccccscecencnccccccecssesencesecs ee cccccesececece sshnasencnenssesnese GUE
Four pounds roasted coffee goes as far as five pounds green, as
coffee loses 20 per cent. in roasting.
One Pound.
Sieh
No settling
second package.
Arbuckles.
fine-flavored.
Andre Siete.
Ariosa coffee. Required.
Very
See notion
list in every
Money
saved by buying
roasted coffee.
New York. Pittsburg.
Arbuckle Bros.
a ROE TEM ee OEE LSE OPER Oe Tt EP GAR EP OE ER eS
38 JOHN ARBUCKLE ET AL. VS.
To avoid the possivility of drinking colored and inferior coffee
and the certainty of securing coffee having the fine important essen-
tials: purity, strength, fine flavor, uniformity of quality and roast-
ing, and economy.
Buy Arbuckles’ one-pound-package coffee.
And afterwards, to wit: on the 26th day of March, A. D. 1901, the
following affidavit was filed in the clerk’s office of said court, clothed
in the words and figures following, to wit:
Affidavit of John Kinsella.
Strate oF New York, :
County of Kings, ;
John Kinsella, being first duly sworn, makes oath and says that
he is a resident of the city of New York, borough of Brooklyn, State
of New York, and is, and for twelve years last past has been, in the
employ of the firm of Arbuckle Brothers at their coffee man-
47 ufactory in the city of New York aforesaid; that deponent’s
duties in said employment are, and for twelve years last past
have been, to mix the preparation used for coating and glazing the
brand of coffee known as Ariosa coffee, more particularly described
in complainants’ bill filed herein; that said preparation, or mixture,
is composed solely of granulated sugar and eggs, slightly diluted
with pure water; that in the course of said process, the eggs —
slightly diluted with pure water; that in the course of said process
the eggs used therein are by deponent taken from the galvanized
iron receptacle, into which they have been broken by other employés
of the said firm, and placed in a mechanical mixer; that deponent
then adds to them a quantity of granulated sugar, from sugar in
barrels supplied to him for that purpose, and a small quantity of
yater from the regular supply of water used in said borough of
Brooklyn for drinking and other purposes; that after mixing the
said ingredients as aforesaid, another employé pours said mixtwre
into a certain revolviag cylinder, into which he has previously pat
five hundred fifty pounds of roasted coffee, which is furnistied
him in the same room by a supply pipe direct from the bins, in
which said coffee is stored; that said cylinder is then permitted to
revolve with its contents for a period of a minute, more or less, mix-
ing the said roasted coffee with the ingredients above described until
said coffee is completely covered, coated, sealed and glazed with the
same, when said employé discharges it from said cylinder by a dis-
charge pipe into a room below, where said coffee is dried in bins,
provided for that purpose.
That, during the whole time deponent has been engaged in mix-
ing the glazing ingredients aforesaid and familiar with the process
of coating and glazing said coffee as aforesaid, no ingredients, other
than pure granulated sugar, eggs of good quality, and a small quan-
tity of water have been used in preparing the mixture for coating
and glazing said coffee, as aforesaid; and that deponent mixes all
psa
JOSEPH E. BLACKBURN, DAIRY AND FOOD coM’R, ETC. 39
the said glazing mixture so used, except that mixed by Philip
Schrantz.
*
JOHN x KINSELLA.
mark,
Sworn to before me and subscribed in my presence this 18th day
of February, A. D. 1901.
[seax.] JAMES J. FROST,
Notary Public in and for Kings County, N. Y.
48 And afterwards, to wit: on the 26th day of March, A. D.
1901, the following affidavit was filed in the clerk’s office of
said court, clothed in the words and figures following, to wit:
Affidavit of James Turner.
Circuit Court of the United States for the Southern District of Ohio,
Eastern Division.
JouN ARBUCKLE ET AL.
vs.
Josep E. Bracksurx, Dairy and Food Commissioner of the {
State of Ohio, Defendant, ]
State oF New York, |
as 88
New York County, {
James Turner, of lawful age being duly sworn, says: I reside in
the city of New York and am the confidential representative in cer- 4
tain matters of John Arbuckle and others, plaintifls in the above- :
entitled action, and in especial with their business of manufacturing .
and selling in Ohio and elsewhere their preparation of roasted coffee
known as “Ariosa,” referred to in the bill of complaint herein; with :
which business, manufacture and distribution and its incidents, I ;
am, and for many years last past have been, well acquainted. ;
The value of said business consists in its good will; that is to say, &
he extent of the opportunity for profitable transaction thereof, af- 3
forded by the repute of said Ariosa as a healthful and useful food :
product; the extent of the current demands therefor, and such repute
ind demand as a basis for the expectation of profit reasonably prob-
ible to be made in supplying such demand.
Said coffee has been in good repute, to deponent’s knowledge, for
nore than twenty vears last past, and as deponent is informed and
elieves, for a much longer time; and the current demand therefor
f late years has been such that the current sales thereof are at the
ate in the United States for more than 120,000,000 (one hundred
nd twenty millions) pounds per annum, and in the State of Ohio of
bout (14,000,000) fourteen millions pounds per annum ; constituting
good will in value to exceed $2,500,000, and on which year by
ear a net annual profit of to exceed $250,000 might reasonably be
xpected. Eee cnc a
“7
To build up such good will there has been, and is, neces-
49 sary not merely care in the manufacture of said Ariosa so to
maintain the good quality thereof as to justify such repute,
but very large expense to advertise and introduce said Ariosa, and
any extent to which either doubt should be thrown upon the health-
fulness, purity, or other good qualities thereof, or said Ariosa to any
extent excluded from any portion of the present market therefor—
especially since, in the last respect, this would necessarily involve
the substitution in such market of some rival brand of coffee, the
good will of said business would be damaged not merely or mainly
in the loss of profit during the tine which elapse before a decree
herein, but toa much greater extent in the advertising and other
expense of reinstating again the market for said Ariosa, in which
rival brands of coffee had meanwhile been substituted.
Some two weeks since deponent furnished plaintiffs’ counsel in
above suits with a summary estimate of the probable loss to plain-
tiffs in case the preliminary injunction herein asked for onl not
be granted, and defendant left free to attempt to prevent, by prose-
cution and otherwise, the sale or offer for sale in Ohio of Ariosa,
threatened by him as in the bill of complaint herein set forth, which
deponent then estimated and stated to be above $100,000.
Upon further cousideration deponent finds such estimate was an
underestimate, and in case for any considerable period, say three
months or more, the sale or offer for sale in Ohio of Ariosa should
be so obstructed, or those concerned therein so menaced by prosecu-
tion or otherwise, as to reduce the amount of the present market
in Ohio therefor eve 50 per cent. thereof, and the substitution had
in the market of rival brands to the extent that, under such circum-
stances would be inevitable, the loss of profit and the expense to
plaintiffs of reinstating the good will thus lost would be far in ex-
cess of $100,000, and by no practicable means or expenditure could
the good will of such business in Ohio be substantially reinstated
except by constant effort and after long delay—probably of years.
Furthermore, in case respondent should be permitted to commence
prosecutions against those selling Ariosa or offering it for sale in
Ohio, the fact that such prosecutions were commenced by a public
ofticial—the food commissioner of said State—and under a statute
to prevent adulteration of articles of food, as would be the case as is
threatened by defendant then by no practicable means or
50 expenditure could plaintiffs avoid an impression widespread
throughout the United States, that said Ariosa was adulter-
ated, and an unhealthful or undesirable food product, and the good
will of plaintiffs’ such business throughout the United States be
most seriously affected.
Reasonably to meet and remedy this would require an expend-
iture in special advertising, and for personal services of agents of
far to exceed $100,000; and even with such or any possible ex-
penditure, the present good will of such business would be seriously
damaged for a long time to come to the extent in the aggregate,
even if such prosecutions were soon terminated and in favor of de-
fendants to an extent of far to exceed $100,000.
SRE REED
40 JOHN ARBUCKLE ET AL. VS.
—
JOSEPH E. BLACKBURN, DAIRY AND FOOD UOM’R, ETC. 41
In corroboration of the extent to which the fact of the prosecu-
tions threatened by defendant would be used by business rivals to
depreciate the good will of plaintiffs’ business in respect of Ariosa,
deponent has ascertained and now states that—although no prose-
cution has.as yet been had—the business rivals of deponent, espe-
cially in the State of Ohio, during the last few weeks, sie already
had printed and cireulated in Ohio and elsewhere great quantities
of circulars and advertisements of novel character different from
any heretofore used by them, and especially so worded and illus-
trated as to take advantage in attacking Ariosa and in favor of their
brands of coffee, respectively, of the threats of defendant referred to
in the bill of complaint herein, and in especial of his threat to
prosecute those in Ohio who shall sell or offer to sell Ariosa. Such
advertisements have appeared in scores and as deponent is informed
and believes, from inquiry, in hundreds of newspapers, mainly in
the State of Ohio, of nH 4 such advertisements two are annexed
as Exhibits “A” and “ B” hereof.
To defend and maintain the good will of such business in the
State of Ohio under these circumstances, plaintiffs have already
made and incurred expenditures of many thousands of dollars, and
in case such injunction should not be granted, and defendant insti-
tuted prosecutions as threatened by him, defendant would be com-
pelled greatiy to increase such expenditure. And if in case by any
considerable number of prosecutions by defendant, or continuing
threat of such, the market for Ariosa in Ohio should be reduced for
any material time below 50 per cent. of its present extent, then the
damages to the good will of plaintiffs’ such business in Ohio alone
would be more nearly $200,000 than $100,000.
JAMES TURNER.
51 Subscribed in my presence and sworn to before me this
23rd day of March, 1901.
[seaL.] JOHN HALL JONES,
Notary Public, New York County, N. Y.
EXxuIBIr.
Not a compound.
Lion coffee is pure coffee not coated with any mixture requiring
the package to be labeled “compound” in order to avoid the pen-
alties of the pure-food law.
All so-called “self-settling” coffees deceive the purchaser by
making him pay for something that is not worth the money, and
when they contain eggs the argument is doubly strong, for the eggs
are, of course, factory eggs, which you would not permit on your
table.
Do not buy “compounds” of coffee and factory eggs, when for less
money you can buy pure, unglazed
6—350
GEE IE LINE LL REIL INLD - PRE ee Coe “es eS a
.
42 JOHN ARBUCKLE ET AL. VS.
Lion coffee.
See for yourself what you are drinking by stirring a handful of
“self-settling ” coffee in a glass of water; then ask yourself if you
want to drink such stuff. The same experiment on Lion coffee
leaves the water clear and pure. Try it. It is a simple test that
means much to you.
News-Democrat, Canton, Ohio. 3-9-’01.
EXuHIBir.
March 21, 1901.
Joseph E. Blackburn, dairy and food commissioner of Ohio, says:
That adulteration and the glazing of coffee must stop—that the
process of glazing cheap and inferior grades of coffee with a gluti-
nous mixture is a mere trick and subterfuge—and that no good or
high-grade coffees need to be treated in that manner in order to pre-
serve their strength and aroma.
Can you afford to take chances?
The Ohio pure food commissioner further says, that after an ex-
amination of Berdan’s package coffee, “I have uo fault to find
therewith.”
52 Your grocer sells it. Why nottryit? Valuable premiums
given free. A list of them in every package.
Notre.—* Berdan’s package coffee ” is rapidly becoming as famous
as that perfection of high-grade coffees,
Empire blended Java.
Toledo Times.
And afterwards, to wit: on the 26th day of March, A. D. 1901,
the following aflidavit was filed in the clerk’s office of said court,
clothed in the words and figures following, to wit:
Affidavit of George Davis.
In the Circuit Court of the United States for the Southern District
of Ohio.
JoHN ARBUCKLE ET AL., Complainants,
vs.
Josepu KE. BLuacknury, Dairy and Food Commissioner of the
State of Ohio, Respondent.
Affidavit of George Davis.
State oF New York, \ as.
County of Kings, ;
George Davis, being first duly sworn, says that he is a resident of
the city of New York, borough of Brooklyn, State of New York,
——
JOSEPH E. BLACKBURN, DAIRY AND FOOD COM’R, ETC.
43
and is, and for fourteen years last past has been, in the employ of
the firm of Arbuckle Brothers in said city and State. That depo-
nent now is, and for six years last past has been, by said firm em-
loyed in the drying-room in their said factory in the city of New
York aforesaid, where the brand of coffee named Ariosa is prepared.
That said coffee is received in the said drying-room through cer-
tain feed-pipes from the room above, where another employé of the
said firm is employed to and does attend to the coating and glazing
of the same, as in the bill more particularly set forth.
Said coffee, after coming down said feed-pipes, is distributed into
a number of bins in said room, said bins having a perforated bottom,
through which hot air is forced in order to dry said coffee.
53 That, besides deponent, there are five other employs em-
ployed at the same work in said drying-room.
That deponent and his fellow-employés in said room constantly
examine the coffee in the bins in which it has been placed, and as 3
soon as said coffee is found to be dry, shovel it out into a discharge z
pipe, which carries it by gravity to the store bins, whence it is taken z
by other employés of the said firm, and packed in one-pound pack-
ages ready for shipment and sale.
That, so long as deponent has been in the employ of the said firm, j
us aforesaid, the coffee handled by him has been of good qualit :
, 2 1
and grade.
GEORGE 8. DAVIS.
; ; :
Sworn to before me and in my presence subseribed, this 18th day
of February, A. D. 1901. @
[SEAL.] JAMES J. FROST, %
Notary Public in and for Kings County, New York. i
And afterwards, to wit, on the 26 day of March, A. D. 1901, the 5
following affidavit was filed in the clerk’s office of said court, clothed &
in the words and figures following, to wit: 2
Affidavit of John Donovon. 5
x
In the Cireuit Court of the United States for the Southern District .
of Ohio.
Jounx ARBUCKLE Et AL., Complainants,
vs.
Joseru E. Bracksurs, Dairy and Food Commissioner of the {
State of Ohio, Respondent.
Affidavit of John Donovon.
Srare or New York, -
County of Kinas,
John Donovon, being first duly sworn, says that he is a resident
of the city of New York, borough of Brooklyn, State of New York,
and that he is, and for sixteen vears last past has been, in the em-
ploy of Arbuckle Brothers, at their coflee manufactory in the city
Sora
Se aoa
Sa 4 attache POM NOOR TE GENES NOES
ce |
44 ' JOHN ARBUCKLE ET AL. VS.
of New York, aforesaid; that during that time cp ges
54 duties in said employment lave consisted particularly in ap-
plying to the coffee the mixture with which the brand of
coffee known as “Ariosa” is coated and glazed; that, further, he is
familiar with the process of mixing together the ingredients which
form the glazing preparation; that, in the course of said process, the
eggs used therein are broken into a galvanized iron receptacle ; that
they are taken therefrom by another employé who prepares the
mixture and placed in a mechanical mixer, which is a revolving
drum with revolving beaters inside thereof; that to the eggs there
is added a quantity of granulated sugar and water; that after the
said ingredients are thoroughly mixed in the aforesaid mechanical
mixer, deponent draws off the required quantity and pours some of
it into a revolving cylinder, into which he has previously put five
hundred and fifty pounds of roasted coffee, which is furnished him
in the same room by a supply pipe direct from the bins in which
said coffee is stored; that said cylinder is then permitted to revolve,
with its contents, for a period of a minute, more or less, mixing the
said roasted coffee with the ingredients above described until said
coffee is completely covered, coated, sealed and glazed with the same
when said deponent discharged it from said cylinder into a dis-
charge pipe to the room below, where the said coffee is dried in bins
provided for that purpose.
Deponent further says that during the whole time he has beer.
engaged as aforesaid, in coating and glazing said coffee, he has never
seen other ingredients than pure granulated sugar, eggs of good
quality, and a small quantity of water, used in preparing the mix-
ture for coating and glazing said coffee, as aforesaid ; and that he
personally attends to all the said glazing except that attended toby
Edwin N. Long.
JOHN DONOVON.
Sworn to before me and subscribed in my presence this 18th day
of February, A. D. 1901.
[seAL. ] JAMES J. FORD,
Notary Public, Kings County, N. Y.
And afterwards, to wit, on the 26th day of March, A. D. 1901, the
following affidavit was filed in the clerk’s office of said court, clothed
in the words and figures, following, to wit:
GEIL OLE AIRE ALLS IS SLE REP RAM a SRE
y gi Ni ko
JOSEPH E. BLACKBURN, DAIRY AND FOOD COM’R, ETC.
55 Affidavit of James Turner.
Cireuit Court of the United States, Southern District of Ohio,
Eastern Division.
Joun Arpuckie, Wittiam V. R. Surru, James N. JARvIE, wih
William A. Jamieson, Complainants,
vs. :
Joseru E. Buacksury, Dairy and Food Commissioner of the
State of Ohio, Respondent.
Affidavit of James Turner.
SrateE OF New YORK, Ra
County of New York, j ~~"
James Turner, being first duly sworn, makes oath and says that
he is a resident of the city of New York, borough of Brooklyn,
State of New York, and that he is,and for fifteen years last past has
been, in the employ of the firm of Arbuckle Brothers, of the city of
New York, manufacturers and vendors of “Ariosa” and confiden-
tial representative of such firm, in particular in matters relating to
the manufacture and sale of the said “Ariosa.”
The said firm of Arbuckle Brothers does now, and for many years
has done, a large business in the State of Ohio in the sale of said
“Ariosa,” said business averaging sales of fourteen million pounds
of coffee, more or less, per annum. That said firm employs eleven
brokers, or salesmen, in the sale of the said “Ariosa.” in said State,
and that over ten thousand wholesale and retail dealers in said State
are purchasers of the said “Ariosa” for the purpose of reselling the
same in the said State.
That on or about the 2nd day of Jan., 1901, deponent was advised
that the respondent herein, Joseph E. Blackburn, dairy and food
commissioner of the State of Ohio, had issued to the vendors of and
dealers in coffee in the State of Ohio, a certain circular, a copy
whereof is hereto attached and made a part hereof, and marked
“ Exhibit A.”
That as soon as the said circular was issued, the said firm of
Arbuckle Brothers received a large number of inquiries from the
agents of said firm in the State of Ohio, and from other persons
handling the said “Ariosa” within the said State, as to the meaning
and effect of the said circular, and that said inquiries still continue
to reach the said firm, and largely increased in number, since the
said circular was published, as aforesaid.
56 Deponent immediately after the issuance of the said cireu-
Jar, and on behalf of the said firm of Arbuckle Brothers,
requested one John De Witt Warner, counsel for the said firm, to
visit the said Blackburn, and inquire as to his purpose in issuing
said circular with reference to the said “Ariosa,” and to furnish him
with any information he might require regarding the quality and
PERE a gee RETIN RRM E OG ARENT IE BE SOI LEE OE ERS NO TY
a
46 JOHN ARBUCKLE ET AL. VS.
grade of the said coffee and the process used in its manufacture, and
to give him all facilities he might desire for personally investigat-
ing the grade and the quality of the said coffee and the said process
used in its manufacture.
That said Warner thereupon visited said Blackburn, at Columbus,
Ohio, and, upon his return, reported to deponent that in the course
of his conference with the said Blackburn,said Blackburn, amongst
other things, had threatened ‘by prosecution, or otherwise, to stop
the sale, in the said State of Ohio, of coffees so treated as to make
them appear of greater value than they really were; but that said
Blackburn, although he had personally, in the presence of Mr.
Warner, examined a package of “Ariosa” coffee, which he, the said
Blackburn, had procured, declined and refused, prior to consulting
his counsel upon the subject, and making such tests and inquiries
as he might thereafter see fit to make, to state whether or not, in his
opinion, said “Ariosa ” coffee was so treated as to be made to appear
better, or of greater value, than it really was, or otherwise so as_to
make its sale objectionable, or illegal, in the State of Ohio, or a
violation of the statute of the State of Ohio, in the petition herein
set forth.
That subsequent to said conference, the said inquiries from dealers
and vendors of the said coffee in the State of Ohio continued to
reach said firm in ever-increasing numbers, and, moreover, numer-
ous notices appeared in the daily papers in the said State, intimat-
ing that an attempt would be made by the said commissioner, by
prosecution, or otherwise, to restrain the sale of glazed coffees, in
particular the said brand of “Ariosa.” That, in consequence thereof,
deponent, on or about the 18th day of January, 1901, visited said
respondent, Joseph E. Blackburn, at his office at Columbus, Ohio,
and then and there conferred with him regarding the said threat-
ened prosecutions.
That said Blackburn then advised the deponent that, in his opin-
ion, the said “Ariosa” was not a compound within the meaning of
the statute of Ohio, in the petition herein set forth, and that he pro-
posed to make an examination to determine whether the treatment
and process of glazing to which said coffee had been subjected
before sale was such as to make it appear better than it really
57 was, and that, if, in his opinion, the effect of the glazing em-
ployed in said “Ariosa” coffee was to make such coffee appear
better than it really was, then said process of glazing was a violation
of the statute of Ohio aforesaid, and, unless it was thenceforth
omitted from such “Ariosa” coffee as might be offered fur sale in
Ohio, he, said commissioner, would endeavor, by prosecution under
the said statute, to stop the sale of said “Ariosa” in said State, and
punish the vendors of and dealers in the said coffee, for the viola-
tion of the said statute.
That on or about the first day of February, deponent again called
upon the said Biackburn at his office at Columbus, Ohio, aforesaid,
and was by him advised that, since the time of the former confer-
ence, hereinabove referred to, he had caused to be tested, by wash-
ing in water, certain samples of Arivsa coffee, procured for that pur-
. = Pn AG REE
SAV vat Pee
é a
47
pose, and that, after having soaked such coffee for about twenty-five
minutes in water, and thereafter having dried it, it was, in his, the
said Blackburn’s, opinion, in its normal or original condition, and
was, in appearance, inferior to the Ariosa coffee glazed and coated
according to the process employed by the complainant herein, and
so offered for sale in the State of Ohio. That, therefore, in his opin-
ion, the sale of such coffee in the State of Ohio, was illegal ete, in
violation of the said statute of the State of Unio, in the ‘bill “herein
set forth, and that, unless such sale of coffee, so glazed aad treated by
the said process, was promptly discontinued, it would be his duty to,
and he would, promptly prosecute all retail, or other dealers, selling
or offering for sale, said Ariosa coffee.
Deponent further says that he is familiar with the business of
roasting coffee and the various processes of roasting, glazing and
preparing for sale, at present in use by the various manufacturers
and vendors of packing roasted coffee, and in particular with the
characteristics of the coffee used inthe manufacture of said Ariosa
brand and the processes, by which, and formule, according to which
said coffee is roasted and treated. That the glazing, by which said
coffee is in said process coated is wholly transparent and does not, in
any way, disguise or change the original appearance of said coffee,
conceal the true grade thereof, or make said coffee appear better
than it really is. That, on the contrary, said glazing acts as a var-
nish, by which the grain of said coffee and its precise quality and
features are brought out and made to appear much more plainly,
and that, therefore, said glazing does net conceal, but, on the con-
trary, brings out and more clearly shows, any imperfect berries,
whether black or yellow, that may be included in such coffee.
58 Deponent further says that, both from his long experience
in the business of coffee-roasting and from repeated and care-
ful experiments under various conditions made by him, since his
his last interview with the said respondent, he has ascertained, and
therefore deposes, that it is not possible by washing, soaking or any
other process that he has been able to discover, or of which he has
been informed after coffee has been glazed according to the process
used in the preparation of said Ariosa coffee, to remove the glazing
and restore said coffee to its original appearance. That, on the con-
trary, the appearance of Ariosa coffee after having been washed or
souked, as aforesaid largely differs from the original appearance of
the coffee used in the manufacture of said brand before it is sub-
jected to complainants’ process of sealing, coating and glazing,
and in addition thereto, varies greatly, according to the time during
which said coffee is thus washed or soaked and the temperature of
the water employed in washing or soaking the same. That in said
process of soaking, even if continued for a short time only, said
coffee rapidly loses its substance and flavor, the water in which the
same has been soaked becoming a more or less marked decoction of
coffee, and that the coffee thus treated is materially weakened and
deprived of its original strength and characteristics.
That roasted coffve, unless it should be so treated as to make it
abnormally impervious to water and practically useless for the pur-
‘yt 4
LSS eat I LEY LIBROS PGW ABLE Me ETE RES ITN SHE MELE 5 ean:
oH r : ue
JOSEPH FE. BLACKBURN, DAIRY AND FOOD COM’R, ETC.
4
a
re
::
a
:
4
ERY
rt
wer,
pw
-
ete NR EARLS AAI BE th SRR PM
ues
Tas Sears i as ns cn
Gere
4
BRERA KE ell
|
48 JOHN ARBUCKLE ET AL. VS.
oses of the private consumer, would be changed and more or less
deteriorated by any process of washing and soaking, such as that
resorted to by the said respondent as aforesaid. Deponent further
says that on or about the fifth day of February the said Joseph EB.
Blackburn, respondent herein, further issued to the wholesale deal-
ers in the State of Ohio a certain circular regarding the sale of the
said Ariosa brand of coffee in the State of Ohio, a copy whereof is
hereto attached and made a part hereof, and marked “ Exhibit B.”
That the statements in said circular that the firm of Arbuckle
Brothers has refused aud still refuses to accept the ruling of respond-
ent’s department, or to abide by the laws of the State of Ohio, as
construed by the supreme court of said State, is wholly untrue and
false. ‘That, on the contrary, the said firm of Arbuckle Brothers
has always been, and still is willing to comply with the statutes of
the State of Ohio, and more particular- with the statute of said State
in the bill herein set forth, and has always and_ still does comply
with the said statutes, and that in their business interviews
59 ~— and _ conferences with the said commissioner, deponent, act-
ing on behalf of the complainants herein and of said firm of
Arbuckle Brothers, always expressed to the said commissioner the
willingness of the said firm to comply with the said statutes of the
State of Ohio, but has, on behalf of said firm, protested against the
wrongful and erroneous construction of the said statute by the said
respondent, as hereinabove and in complainants’ bill herein more
particularly set forth.
That on or about the first day of February the Woolson Spice
Company, manufacturers and vendors of roasted coffee, of the city
of Toledo, Ohio, who, it is by respondent stated in his circular, Ex-
hibit B, above referred to, have agreed to accept respondent’s con-
struction of the said statute of Ohio, issued to the Lait in, and
vendors of the brand of coffee manufactured and roasted by them, a
certain circular, a true copy whereof is hereto attached and made a
part hereof, and marked “ Exhibit C.”
[SEAL. ] JAMES TURNER.
Sworn to and subscribed in my presence this 18th day of Febru-
ary, A. D. 1901.
JOIN HALL JONES,
Notary Public in and for New York County, New York.
Exurpit A.
Copy of Circular Letter Issued by the Ohio Dairy and Food Commission.
J. E. Blackburn, Ph. G., commissioner.
To whom it may concern:
Notice is hereby given that on and after thirty days from the
date hereof, the statute (Bates’ R.S., sec. 4200-"6) against the practice
of adulterating coffee by manipulation, such as coloring, —
polishing or powdering, whereby damage and inferiority is concealed,
Sq
Ral Sah ate kt cuca ae at hey
JOSEPH EK. BLACKBURN, DAIRY AND FOOD COM’R, ETC. 49
or whereby it is made to appear better and of greater value than it
really is, will be strictly enforced.
The following is the law on the subject (Bates’ R.S., section 4200-’6,
eer 6):
(6.) If it is colored, coated, polished or powdered, whereby damage
or inferiority is concealed, or if by any means it is made to appear
better or of greater value than it really is.
60 The department holds that it is not a compliance with the
foregoing to simply label the article “compound” when
coffees are filled, coated and glazed to make them appear better or
of greater value than they really are, and to retain water that has
been added to increase weight.
Additional information will be furnished on request.
Respectfully submitted.
J. E. BLACKBURN,
Dairy and Food Commissioner.
Columbus, Ohio, January 1, 1901.
Exnuisirt B.
STATE OF OHIO:
Office of Dairy and Food Commissioner.
From J. H. Culbertson.
Dear Sirs: Replying to your inquiry about the coffee situation,
would say that this matter is now under consideration and investi-
gation by the chemists of this department. As soon as conclusions
are reached, a circular notice will be sent to all the jobbers in Ohio
and a suflicient number will be furnished to supply al! their sales-
men,
on = OS Pen | PRR NRL a
Fe ee aed PALE NILA LAL ONE ME Se RT SARE >
ce EM
ddl
I might say that the following firms have agreed to accept the
law as construed by this department: Andrus, Scofield & Co., Co-
lumbus; Dayton Spice Mills, Dayton; Woolson Spice Co., Toledo.
W. FP. McLaughlin & Co., of Chicago, have agreed to comply with
the law as soon as construed by the court.
The only firm that has refused, and still refuses, to accept the
ruling of this department, or abide by the laws of the State as con-
strued by our supreme court, is Arbuckle Bros., of New York.
Very truly yours, J. E. BLACKBURN,
Dairy and Food Commissioner.
Columbus, Ohio, February 5, 1901.
— ’ RES
GE LOL LL LUI LS EGRET SE
Bet, ok)
7—350
50 JOHN ARBUCKLE ET AL. VS...
Exuisrr C.
Woolson Spice Co.
Coffees & Spices.
Toepo, O., Feb. 1st, 1901.
To the grocery trade of the State of Ohio.
GENTLEMEN: Some question having been raised as to the
61 application of the Ohio pure-food law to roasted coffees, we
beg to assure you that the sale of Lion coffee is not an infringe-
ment of that law. Lion coffee is not “colored, coated or polished,
whereby damage or inferiority is concealed,” nor is it “by any
means made to appear better, or of greater value, than it really is.”
While the law may condemn some other brands of package coffee,
it does not apply to Lion coffee.
We will protect all dealers from any loss or damage on account
of any alleged violation of the pure-food laws by selling any of our
coffees and will defend, at our own expense any suit against any
person under the pure-food law, on account of his handling them, if
reported to us at once.
Lion coffee is a pure coffee, of uniform, high quality, sold strictly
on its merits, and without resort to any practices which violate the
law or deceive the consumer.
Yours truly, WOOLSON SPICE COMPANY.
And afterwards, to wit: on the 26th day of March, A. D. 1901,
the following affidavit was filed in the clerk’s office of said court,
clothed in the words and figures following, to wit:
Affidavit of Annie Plunket.
In the Cireuit Court of the United States for the Southern District
of Ohio.
Joun ARBUCKLE ET AL., Complainants,
vs.
Josern FE. Bhuackpurn, Dairy and Food Commissioner of the
State of Ohio, Respondent. |
Aftidavit of Annie Plunket.
State or New York, |
County of Nings, — ~
Mrs. Annie Plunket, being first duly sworn, says that she is a res-
ident of the city of New York, borough of Brooklyn, State of New
York, and that she has for fourteen years last past been in the em-
ploy of the firm of Arbuckle Brothers in the city and State
62 aforesaid; that her duties in said employment are, and for
six years last past have been, to assist In the process of glaz_
——
JOSEPH £. BLACKBURN, DAIRY AND FOOD COM’R, ETC. 51
ing and coating the “ Ariosa” brand of coffee manufactured by the
said firm at their manufactory in the city of New York aforesaid,
by receiving and breaking the eggs used in preparing the mixture
of eggs and sugar employed in the said process of glazing aforesaid ;
that she personally breaks all of the eggs so used, except those
broken by Maggie Butler, Addie Ehlers and Alice Buckon.
That in the course of her said duties, the said eggs are delivered
to deponent in large boxes; that deponent, after inspecting said
eggs, breaks them and throws the sound contents thereof into a gal-
vanized-iron receptacle, provided for the purpose, which said recep-
tacle is cleaned and polished daily ; that after said deponent has so
broken said eggs into said receptacle, the contents thereof are taken
therefrom by another employé of the said firm, who adds thereto a
rtion of granulated sugar and a small quantity of water, mixing
all of the said ingredients together by means of a mechanical mixer;
y
another employe then feeds said mixer into a cylinder, into which ;
the roasted coffee, used in the preparation of said brand, has there- ‘
tofore been placed ; that during the whole of the time the deponent 3
has been so employed in the manufacture of said “Ariosa” coffee,
the eggs received and used by her have been of good quality and ;
absolutely sound, and that no other ingredients excepting such eggs, $
sugar and a small quantity of water have been, during said time :
used in the coating and sealing or glazing of the said cotfee. ‘
Mrs. ANNIE PLUNKET. 1
Sworn to before me and subscribed in my presence, this 19th day :
of February, A. D. 1901. =
fecat.| JAMES J. FROST, =
Notary Public, Kings County, N. Y- 5
63 And afterwards, to wit: on the 26th day of March, A. D. .
1901, the following affidavit was filed in the clerk’s oftice of 3
said court, clothed in the words and figures following, to wit: e
. . , ;
Affidavit of Edward Long. i
® ‘ ‘ . .
In the Cireuit Court of the United States for the Southern District :
of Ohio. 4
Joux ARBUCKLE ET AL., Complainants, .
Us.
Joseru E. Buackpurs, Dairy and Food Commissioner of the | :
State of Ohio, Respondent.
Affidavit of Edward N. Long.
Srare oF New Yor, |
County of Kings, =
Edwin N. Long, being first duly sworn, says that he is a resident
of the city of New York, borough of Brooklyn, State of New York,
and that he is, and for four years last past has been, in the employ
Biteveceeccme DN PLVVEL ETE REEL ELL PG IE SB TENT YR
52 JOHN ARBUCKLE ET AL. Vs.
of Arbuckle Brothers at their coffee manufactory in the city of New
York aforesaid ; that during that time deponent’s duties in said em-
ployment have consisted particularly in applying to the coffee the
mixture with which the brand of coffee known as “Ariosa” is coated
and ange that, further, he is familiar with the process of mixing
together the ingredients which form the glazing preparation; that
in the course of said process, the eggs used therein are broken into
a galvanized-iron receptacle; that they are taken therefrom by
another employé who prepares the mixture and places in a mechan-
ical mixer, which is a revolving drum with revolving beaters inside
thereof; that to the eggs there is added a quantity of granulated
sugar and water; that after the said ingredients are thoroughly
mixed in the aforesaid mechanical mixer, deponent draws off the
required quantity and pours some of it into a revolving cylinder,
into which he has previously put five hundred and fifty pounds of
roasted coffee which is furnished him in the same room by a supply
pipe direct from the bins in which said coffee is stored; that said
cylinder is then permitted to revolve, with its contents, for a period
of a minute, more or less, mixing the said roasted coffee with
64 the ingredients above described, until said coffee is completely
covered, coated, sealed and glazed with the same, when said
deponent discharges it from said cylinder into a discharge pipe to
the room below, where the said coffee is dried in bins provided for
that purpose.
Deponent further says that during the whole time he has been
engaged as aforesaid, in coating and glazing said coffee he has never
seen other ingredients than pure granulated sugar, eggs of good
quality and a small quantity of water used in preparing the mixture
for coating and glazing said coffee, as aforesaid ; and that he person-
ally attends to all the said glazing, except that attended to by John
Donovon.
EDWIN N. LONG.
Sworn to before me and subscribed in my presence this 18th day
of February, A. D. 1901.
[sea.] JAMES J. FROST’,
Notary Public, Kings County, New York.
And afterwards, to wit: on the 26th day of March, A. D. 1901, the
following affidavit was filed in the clerk’s office of seid court, clothed
in the words and figures following, to wit:
FE SOP ELLA RELL FART PRT ie 6 —
—
JOSEPH E. BLACKBURN, DAIRY AND FOOD COM’R, ETC.
Affidavit of Patrick Clancy.
Circuit Court of the United States, Southern District of Ohio, Eastern
Division.
William A. Jamison, Complainants,
v8.
Josep E. Buackpury, Dairy and Food Commissioner of tne |
State of Ohio, Respondent.
Joun ARBUCKLE, WiLutam V. R. Surru, JAMes N. JARVIE, 7
Affidavit of Patrick Clancy.
Strate or New ne
County of Kings,
Patrick Clancy, being first duly sworn, says that he is a resident of
the city of borough of Brooklyn, State of New York, and
69 is, and for twelve years last past has been, in the employ of
the firm of Arbuckle Brothers in said city and State. That
deponent now is, and for ten years last past has been by said firm
employed in the drying-room in their said factory in the city of
New York aforesaid, where the brand of coffee named Ariosa is pre-
ared.
That said coffee is received in the said drying-room through cer-
tain feed-pipes from the room above where another employé of the
said firm is employed to, and does, attend to the coating and glaz-
ing of the same, as in the bill more particularly set forth.
Said coffee, after coming down said feed-pipes, is distributed into
a number of bins in said room, said bins Lavine a perforated hot-
tom, through which hot air is foreed in order to dry said coffee.
That besides deponent, there are five other employés employed at
the same work in said drying-room.
That deponent and his fellow-employés in said room constantly
examine the coffee in the bins, in which it has been placed, and, as
soon as said coffee is found to be dry, shovel it out into a discharge
pipe, which carries it by gravity to the store bins, whence it is taken
by other employés of the said firm, and packed in one-pound pack-
ages ready for shipment and sale.
That so long as deponent has been in the employ of the said firm,
as aforesaid, the coffee handled by him has been of good quality
and grade.
PATRICK CLANCY.
Sworn to before me and in my presence subscribed, this 19th day
of February, A. D. 1901.
[sEAL. | JAMES J. FROST,
Notary Public in and for Kings County, New York.
66 And afterwards, to wit: on the 26th day of March, A. D.
1901, the following affidavit was filed in the clerk’s office of
said court, clothed in the words and figures following, to wit :
SUE 5 Sos NRE RE er OS Sh) we s
5 i ae fsa bird a fe: oxy ‘5
a,
54 JOHN ARBUCKLE ET AL. Vs.
Affidavé of Philip Schrantz.
In the Circuit Court of the United States for the Southern District
of Ohio.
JoHN ARBUCKLE ET AL., Complainants,
vs.
Joseru E. Bracksurn, Dairy and Food Commissioner of the
State of Ohio, Respondent.
Affidavit of Philip Schrantz.
Strate or New York, \ 5:
Countu of Kings,
Philip Schrantz, being first duly sworn, says that he is a resident
of the city of New York, borough of Brooklyn, State of New York,
and is, and for five years last past has been, in the employ of the
firm of Arbuckle Brothers at their coffee manufactory in the city of
New York aforesaid ; that deponent’s duties in said employment are
and for five years last past have been to mix the preparation used
for coating and glazing the brand of coffee known as Ariosa coffee,
more particularly described in complainants’ bill filed herein ; that
said preparation, or mixture, is composed solely of granulated sugar
and eggs, slightly diluted with pure water; that, in the course of
said process, the eggs used therein are by deponent taken from the
galyanized-iron receptacle, into which they have been broken by
other employés of the said firm, and placed in a mechanical mixer;
that deponent then adds to them a quantity of granulated sugar,
from sugar in barrels, supplied to him for that purpose, and a small
quantity of water, from the regular supply of water used in said
borough of Brooklyn for drinking and other purposes; that, after
mixing the said ingredients as aforesaid, another employe pours
said mixture into a certain revolving eylinder, into which he has
previously put five hundred fifty pounds of roasted coffee, which is
furnished him in the same room by a supply pipe directed from
the bins in which said coffee is stored ; that said cylinder is
67 then permitted to revolve with its contents for a period of a
minute, more or less, mixing the said roasted coffee with the
ingredients above described, until said coffee is ey covered,
coated, sealed and glazed with the same, when said employé dis-
charges it from said evlinder by a discharge pipe into a room below,
where said coffee is dried in bins, provided for that purpose.
That during the whole time deponent has been engaged in mixing
the glazing ingredients aforesaid and familiar with the process of
coating and glazing said coffee, as aforesaid, no ingredients, other
than pure granulated sugar, eggs of good quality and a small
quantity of water, have been used in preparing the mixture for
coating and glazing said coffee, as aforesaid ; and that deponent
mixes all the said glazing mixture so used, except that mixed by
John Kinsella.
PHILIP SCHRANTZ.
ERE MIE ESS ERLE EI OS PON BOT IIA PES SET CI —
JOSEPH E. BLACKBURN, DAIRY AND FOOD COM’R, ETC. 65 :
Sworn to before me and subscribed in my presence, this 18 day of
February, A. D. 1901.
[SEAL] JAMES J. FROST,
Notary Public in and for Kings County, N. Y.
And afterwards, to wit: on the 26th day of March, A. D. 1901,
the following affidavit was filed in the clerk’s office of said court,
clothed in the words and figures following, to wit:
Affidavit of Alice Buckon.
In the Cireuit Court of the United States for the Southern District
of Ohio.
JouNn ARBUCKLE ET AL., Complainants, )
vs. 1
Joseru FE. Buacksury, Dairy and Food Commissioner of the {
State of Ohio, Respondent. |
Affidavit of Alice Buckow.
Srare oF New York,
County of Kings,
Alice Buckow, being first duly sworn, says that she is a
68 resident of the city of New York, borough of Brooklyn, State
of New York, and that she has for ten years last past been in
the employ of the firm of Arbuckle Brothers, in the city of and State
aforesaid ; that her duties in said employment are, and for three
years last past have been, to assist in the process of glazing and
coating the “Ariosa ” brand of coffee manufactured by the said firm
at their manufactory in the city of New York aforesaid, by receiving
and breaking the eggs used in the preparing the mixture of eggs
and sugar employed in the said process of glazing aforesaid ; that
she personally breaks all of the eggs so used, except those broken by
Maggie Butler, Annie Plunket and Addie Eblers. .
That in the course of her said duties, the said eggs are delivered
to deponent in large boxes, that deponent after inspecting said eggs,
breaks them and throws the sound contents thereof into a galvanized-
iron receptacle provided for the purpose, which said receptacle is
cleaned and polished daily; that after said deponent has so broken
said eggs into said receptacle the contents thereof are taken there-
from by another employé of the said firm, who adds thereto a por-
tion of granulated sugar and a small quantity of water, mixing all
of the said ingredients together by means of a mechanical mixer ;
another employé then feeds said mixer into a cylinder, into which
the roasted coffee, used in the preparation of said brand, has there-
tofore been placed ; that during the whole of the time the deponent
has been so employed in the manufacture of said “Ariosa” coffee,
the eggs received and used by her have been of good quality and
absolutely sound, and that no other ingredients, excepting such
EI ILE FO SLE IN RENT Se 8
a ts JOHN ARBUCKLE ET AIL. Vs.
eggs, sugar and a small quantity of water, have been during said
time used in the coating and sealing, or glazing of the said coffee,
ALICE BUCKOW.
Sworn to before me and subscribed in my presence, this 19th day
of February, A. D. 1901. :
pat JAMES J. FROST,
Notary Public in and for Kings County, N. Y.
And afterwards, to wit: on the 26th day of March, A. D. 1901, the
following affidavit was filed in the clerk’s office of said court, clothed
in the words and figures following, to wit:
69 Affidavit of Maggie Butler.
In the Circuit Court of the United States for the Southern District
of Ohio.
Joun ARBUCKLE ET AL., Complainant-,
vs.
Josepu E. Biracksury, Dairy and Food Commissioner of the
State of Ohio, Respondent.
Affidavit of Maggie Butler.
State oF New York,
County of Kings,
Maggie Butler, being first duly sworn, says that she is resident of
the city of New York, borough of Manhattan, State of New York,
and that she has for seventeen years last past been in the employ of
the firm of Arbuckle Brothers, in the city of and State aforesaid ;
that her duties in said employment are, and for severteen vears last
past have been, to assist in the process of glazing and coating the
“Ariosa” brand of coffee manufactured by the said firm at their
manufactory in the city of New York aforesaid, by receiving and
breaking the eggs used in preparing the mixture of eggs and sugar
employed in the said process of glazing aforesaid; that she person-
ally breaks all of the eggs so used, except those broken by Annie
Plunket, Addie Ehlers and Alice Buckon.
That in the course of her said duties, the said eggs are delivered
to deponent in large boxes, that deponent after inspecting said eggs,
breaks them and throws the sound contents thereof into a galvan-
ized-iron receptacle, provided for the purpose, which said receptacle
is cleaned and polished daily ; that after said deponent has so broken
said eggs into said receptacle, the contents thereof are taken there-
from by another employé of the said firm, who adds thereto a_por-
tion of granulated sugar and a small quantity of water, mixing all
of the said ingredients together, by means of a mechanical mixer;
another employé then feeds said mixer into a cylinder, into which
the roasted coffee, used in the preparation of said brand, has there-o-
fore been placed ; that during the whole of the time the deponent
oH PAM: "ME ae Ne BB Tah OR ELANTRA EAI NS EERE
VOR OLLIE EIEN es
__
JOSEPH E. BLACKBURN, DAIRY AND FOOD COM’R, ETC. 57
has been so employed in the manufacture of said “Ariosa” coffee the
eggs received and used by her have been of good quality and
70 absolutely sound, and that no other ingredients, excepting
such eggs, sugar and a small quantity of water, have been,
during said time, used in the coating and sealing, or glazing of the
said coffee.
MAGGIE BUTLER.
Sworn to before me and subscribed in my presence, this 19th day
of February, A. D. 1901.
[seat] JAMES J. FROST,
Notary Public in and for Kings County, N. Y.
And afterwards, to wit, on the 26th day of March, A. D. 1901, the
following affidavit was filed in the clerk’s office of said court, clothed
in the words and figures following, to wit:
Affidavit of Addie Ehlers. :
Circuit Court of the United States, Southern District of Ohio, East- :
ern Division. :
Jousx Arsuckie, Wittiam V. R. Surru, James N. Jarvie, and ) ;
William A. Jamieson, Complainants, :
vs.
Josern E. Bracksury, Dairy and Food Commissioner of the ;
State of Ohio, Respondent. j é
Affidavit of Addie Ehlers. 2
Strate or New York, |... ¢
County of Kings, ;
Addie Ehlers, being first duly sworn, says that she is a resident of :
the city of New York, borough of Brooklyn, State of New York, and 3
that she has for seventeen years last past been in the employ of the ¥
firm of Arbuckle Brothers, in the city and State aforesaid ; that her S
duties in said employment, are, and for seventeen years last past
have been to assist
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