# Transcript of Record — Arbuckle v. Blackburn

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Transcript of Record
- **Published:** January 1, 1903
- **Citation:** 191 U.S. 405

## Text

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(18,578. )

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 { “ 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

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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.

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 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 personally breaks all
of the eggs so used, except those broken by Maggie Butler, Annie
Plunkett and Alice Buckon.
71 That in the course of her said duties, the said eggs are de-
livered 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 therefrom by another employé of the said firm,

. 4
Btzsc0% Une — ’ RATE ENERO BT AAI IGE ELLIE PION LOLS SELLE LT ILL IE ELSES NN TOM

se eas
ots tu SAL Ae a a

a

58 JOHN ARBUCKLE ET AL. Vs.

who adds thereto a portion of granulated sugar and a small quan-
tity of water, mixing all of the said ingredients together by means
of a mechanical mixer, another employé then feeds said mixture
into a evlinder, into which the roasted coffee used in the prepara-
tion of said brand has theretofore been placed, that during the
whole of the time the deponent has been so employed in the man-
ufacture 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 coffee.
ADDIE EHELERS.

Sworn to before me and subscribed in my presence this 19th day
of February, A. D. 1901.
[seaL.] 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 said court,
clothed in the words and figures following, to wit:

Affidavit of Edward F. Schnuck.

Circuit Court of the United States, Southern District of Ohio, Eastern
Division.

William A. Jamieson, Complainants,
vs.* :
Josepn E. Bracknury, Dairy and Food Commissioner of the
State of Ohio, Respondent.

Jouxn Arpuckie, WittiaM V. R. Sairn, James N. Jarvis, “

Affidavit of Edward F. Schnuck.

State or New York, a
County of Kings,

Edward F. Sehnuck, being duly sworn, says: I reside in

72 the borough of Brooklyn, city of New York, for more than

ten years prior to October, 1897, I was in the employ of Jabes

Burns « Sons, the largest manufacturers and installers of coffee-

roasting machinery; for about nine years of which time I was their

superintendent of construction and, as such, personally had charge

of erecting colfce-roasting plants in many of the cities of the United

States, and thus became familiar with all of the methods of clean-

ing, treating and roasting coffee,and the machinery and other
means employed therefor.

Since October, 1897, | have been general superintendent for
Arbuckle Brothers, at their roasting plant in the borough of Brook-
lyn, city of New York, at which plant they roast and pack “Ariosa”
coffee. Under Mr. Arbuckle and Mr. Jamison, I there have super-

———

SGP ETSI OPENS LAA LITE LOIN EAE

rege

JOSEPH E. BLACKBURN, DAIRY AND FOOD coM’R, ETC. 5

yision and complete direction of all details pertaining to ma-
chinery, manufacturing processes, and treatment of coffee. This
plant is completely equipped with the most modern and practical
automatic mechanical devices for cleaning coffee of dirt, removing
therefrom the chaff, sticks, stones and such other trash as is found
in coffee before mechanical treatment. In this plant the prepara-
tion, roasting and treatment of coffee for the “Ariosa” brand, is
substantially as follows :

The green or raw coffee is dumped from the original bags into a
cup-belt elevator, which carries the coffee to the eighth, or top, story
of the building, where it is dumped into a large receiving hopper,
from an outlet in the bottom of which it fiows over a series of
shaking sieves, from whence it falls into a large pipe, where it is
subjected to a strong blast of air produced by powerful fans. In
these processes there is nothing added to the coffee but the latter is
cleaned to as complete a degree as is jossible. The processes are all
automatic, and the coffee is conductec from one to another automat-
ically and without handling.

From the cleaning apparatus the coffee is taken up by carrier
belts and distributed through a series of hoppers feeding individual
roasting cylinders, which revolve over a grate fire of anthracite coal.
Great care is exercised in the roasting, to bring the coffee gradually
up to uniform, perfect roast, each attendant being held to a strict
personal ac-ountability for the condition of the roasted coffee turned
out by him.

From the roasting cylinders the coffee falls by gravity and spreads
over shallow, double-bottom boxes placed at oblique angles, the
upper bottom being perforated. ‘The space between the two bottoms

is provided with a strong suction produced by powerful ex-
73 haust fans. ‘The effect of this suction is to draw the hot air

from the body of the coffee and the cooler air of the room
through the coffee, so that the latter is quickly cooled and danger
of blackening, charring and firing the coffee thereby removed.

In the process of roasting, chatf and hulls have separated from
the berries and dust, broken particles and other imperfections have
been created, which require for their elimination a repetition of me-
chanical treatment practically identical with that to which the
green coffee was subjected prior to roasting. The roasted coffee is
automatically conducted through these processes until it arrives in
storage receptacles ready for the glazing process. Up to this point
nothing has been added to the coffee, but it is now roasted and
thoroughly cleaned.

The glazing preparation and process is as follows: The eggs are,
first, each one candled by experienced candelers, in our own can-
dling-rooms—part of the plant and under my direection—and nothing
but an absolutely sound egg is selected for glazing material. The
eggs which have withstood the candling test are then brought into
the glazing-room where also are located the storage receptacles hold-
ing the roasted coffee, ready for glazing. The names of the women
who handle and break the eggs in the glazing-room are Maggie
Butler, Annie Plunket, Addie Ehlers and Alice Buckou, two of them

RELEASED OE LSE, CRIED.

DOR ASA

SSE SEAY INE LAI RII Be

LIOR LS

cease Ney nepal

>

aa

60 JOHN ARBUCKLE ET AL. VS.

working together day turn, and two of them working together night
turn, when the factory is running both day and night, and one pair
alternating with the other pair when the factory is only running
~ turn. These women break the eggs, throwing the contents into
a large galvanized-iron receptacle, which is daily cleansed and
scoured. From this receptacle the eggs are taken by the mixers,
who add to them the amount of sugar required by the formula.
The eggs and sugar are then diluted with a small amount of water,
and the mixture is made th-rough and complete by means of a me-
chanical mixer. The names of the mixers are John Kinsella and
Philip Schrank, one working day turn and one working night turn,
or one alternating with the other when the factory is only running
day turn.

The coffee receptacles above mentioned are connected with large
revolving drums by means of gravity-discharge pipes. The glazers
operate the valves in these pipes, filling the drums with the re-
quired charges at one end,and through the other pouring the
amount of glazing material prepared by the mixers as called for by
the formula. In these revolving drums, the surface of the coffee
berries becomes thoroughly coated with the glazing preparation, the

time required being only from one to two minutes. The
74 names of the glazers are Jouii Donovan «ad Edwin W. Long,

ove working night turn and the other working day turn or
one alternating with the other when the factory is only run on a
day turn.

When tite coffee is properly glazed, as above described, the glazers
operate the discharge valves of the drums and the coffee falls, by
gravity, into long, narrow boxes having double bottoms, the upper
bottom being perforated. The coffee, as it falls, is spread through-
out the length of these boxes, by attendants using shovels. Con-
nected with the space between the two bottoms of the boxes are
pipes, through which powerful blower fans pump hot air. This
air, rising through the coffee, quickly dries the glazing coat and
leaves it firmly attached and hard upon the surface of the berries.
The coffee, when thus thoroughly glazed and dried, is then shoveled
through discharge pipes, through which it falls upon carrier belts
and is distributed through a series of hopper receptacies. The
names of the men who work upon the drying floor and who handle
the coffee during the drying process are Jolin Ross, George Davis,
John Hawn, Frank Becker, James MecMillian, Charles Brice, Ed-
ward Zeidler, Gus Fickett, Henry Dubois, Pat Clancy, Mike Me-
Grahan, and Simon Smith, said Ross, with five others, and said
Davis, with five others, alternating on day turn, or one-half work-
ing night turn and one-half day turn when the factory is running
both day and night.

As I say above, the glazed and dried coffee is conducted by car-
rier belts into hopper receptacles. These hopper receptacles are lo-
cated directly over automatic packing machines. through which the
coffee flows automatically, and is weighed and packed, also auto-
matically, into one-pound packages bearing the label *.miliar to
the public as enclosing “Arbuckle’s Ariosa coffee.”

CLR BESS IEEE LEO LEE LE FEGER PALI OOE

6

JOSEPH E. BLACKBURN, DAIRY AND FOOD COM’R, ETC. 61

In all the operations and processes above described, and in all my
experience with Arbuckle Brotiers, | have never seen any coffee
used that was not absolutely sound the treatment of the coffee has
been solely in the direction of cleaning same prior to roasting and
thereafter with the exception of the glazing I have never seen any-
thing added to the coffee except the glazing material, and my posi-
tion and supervision is such that I would know the contrary were
such the case. The glazing material consists solely of sound eggs
and granulated sugar, mingled together by the aid of a small quan-
tity of water. The coffee is thoroughly roasted and dry before the
glazing is attached, and it is likewise thoroughly dried after the
glazing process.

20

Ks Sd

EDWARD F. SCHNUCK.

Sworn to before me and in my presence subscribed, this
18th day of February, A. D. 1901.
[seAL. ] JAMES J. FROST,
Notary Public in and for Kings County, New York.

as Oslo ai

7

And afterwards, to wit, on the 26th day of March, A. D. 1901, the
following letters patent was filed in the clerk’s office of said court,
clothed in the words and figures following, to wit:

qarty SUL PEPE aE

Letters Patent.

Sty:

UNITED STATES OF AMERICA,
DrePARTMENT OF THE INTERIOR, PATENT OFFICE.

ERP HOSE

‘To all persons to whom these presents shall come, Greeting :

This is to certify that the annexed is a true copy from the records
of this office of the letters patent granted John Arbuckle, Jr., Jan-
uary 21, 1868, number 73,486, for improvement in roasted colfee. 5

In testimony whereof, I have hereunto set my hand and caused ‘
the seal of the Patent Office to be affixed at the city of Washington, ~
this 15th day of February, in the year of our Lord one thousand '
nine hundred and one, and of the Independence of the United
States of America, the one hundred and twenty-fifth.

[seaL.] C. H. DUELL,

Commissioner of Patents. é
10c. int. rev. stamp. Feb. 15, 1901.

No. 73,486. ;

The United States of America to all to whom these letters patent
shall come:

Whereas, John Arbuckle, Jr., Allegheny city, Pennsylvania, has
alleged that he has invented a new and useful improvement in
roasted coffee, and has made oath that he is a citizen of the United
States, that he verily believes he is the original and first inventor or

discoverer of the said improvement, and that the same hath
76 not, to his knowledge and_ belief, been previously known or
used ; has paid into the Treasury ef the United States the

Bg rt Wht 2 MPD RO ALD RE ELL OL LES I LA IE LADIES SG SALI OLOOIOS ane ecaxenrearnan
ee eS “AA “ 88 .
Franklin County, §

Alvin E. Zollinger, of lawful age, being duly sworn, says: that
he resides now, and has resided all his life in the eity of Columbus,
Franklin county, Ohio; that he is now and has been employed by
one of the newspapers of said city of Columbus as a reporter and as
agent to secure circulation and advertisements for the paper with
which he is connected ; that in course of his business he became
personally acquarated with the defendant, Joseph E. Blackburn,
with whom he has been personally acquainted for more than six
months last past; that the defendant. Blackburn, some time in the

panama

JOSEPH EF. BLACKBURN, DAIRY AND FooD cOM’R, ETC. 65

month of October, 1900, while the defendant was then a candidate
for re-election to a third term as dairy and food commissioner of the
State of Ohio, personally stated to affiant, in substance that he, said
Blackburn was not then worth a dollar in the world; that he said
Blackburn had theretofore invested his savings of former years in
lead mining in the vicinity of Joplin, in the State of Missouri, and
that said savings had been wholly lost ; that affiant is informed and
believes that the defendant Blackburn has not sufficient property, if
he has any property, to respond to any judgment in damages in the
sum mentioned in the amendment to the bill in this action, namely

in thesum of $100,000, or in any amount approximating that
80

sum, if he would be able to respond to any judgment in dam-
ages.

And further affiant saith not.
ALVIN E. ZOLLINGER.

Sworn to before me and subscribed in my presence, this 26th day
of March, A. D. 1901.

[SEAL.] WILLIAM G. BROSSMAN,
Notary Public, Franklin Co., 0.

£

And afterwards, to wit: on the 27th day of March, A. D. 1901, é
the following opinion of Judge Thompson was filed in the clerk’s :
office of said court, clothed in the words and figures following, to ¥
wit: *
Opinion of Judge Thompson. :

Circuit Court of the United States, Southern District of Ohio, Eastern 4
Division. i

Joux ARBUCKLE ET AL. ;

vs. &

Josern FE. Bracksury, Dairy and Food Commissioner of the State ry
of Ohio, Respondent. ;

)
Application for a temporary injunction.

The complainants, in their bill, alleged in substance, that they
manufacture and sell a preparation of coffee, known as Ariosa, which
“isa mixture of compound of roasted coffee, eggs and sugar—each
acommon, healthy and unobjectionable article of food ;” that they
have manufactured and sold it for more than thirty years; that it
has gained great repute and sale and is generally used in Ohio
and throughout the United States; that the good will of the busi-
ness of its manufacture and sale has become very valuable; that it
is sold in Ohio in one-pound packages which, in compliance with
the laws of Ohio, providing against the adulteration of food, is dis-
tinctly labeled with a printed statement of its precise composition
and the proportion of each of its ingredients; but that notwithstand-
ing these facts the respondent, as dairy and food commissioner of

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Ohio, has notified complainants that he considers Ariosa, as
81 yut up by them, an adulteration, and has issued a circular

lowe to dealers and vendors wrongfully charging that com-
plainants in the manufacture and sale thereof, refuse to abide by
the laws of Ohio, providing against the adulteration of food, and
proposes to institute prosecutions to prevent and punish its sale or
offer for sale in Ohio; that if the respondent “be permitted to
commit the threatened wrongs the same will, as complainants are
informed and believe, damage complainants to the extent of more
than $100,000 an amount largely in excess of respondent’s ability
to respond in judgment ;” and that the statute of Ohio providing
against the adulteration of food “construed as respondent claims it
should be, is in conflict with the fourteenth amendment to the Con-
stitution of the United States and void.”

And they pray that the respondent be perpetually enjoined.

“1. From stating or charging that pve ara said food pro-
duct, 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 adulteration within the meaning of said stat-
ute, 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, constitutes a violation of said statute, and that the im-
portation of said Ariosa into Ohio, or the selling of, or offering for
sale, the same constitutes a violation of said statutes ;

2. From charging the complainants herein, or any of them, or
said firm of Arbuckle Brothers, or any dealer in Ariosa, with violat-
ing said statute by selling, or offering for sale, Ariosa, or with adul-
terating food, in violation of said statute, by reason of the aforesaid
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.

4. From charging any dealer in Ariosa with the possession, offer-
ing 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.
§2 5. From menacing and threatening any dealer in Ariosa,
so glazed, with prosecution for having in his possession, offer-
ing for sale, or selling such Ariosa.

6. From instituting, 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 prosecution,
based upon the treatinent and coating of the coffee forming an in-
gredient of said Ariosa with a preparation of sugar and eggs,
according to the formula and by the process, more particularly
above described.”

The respondent resists the application upon the ground that the

66 JOHN ARBUCKLE ET AL. Vs.

Se: . as

_——

JOSEPH E. BLACKBURN, DAIRY AND FOOD COM’R, ETC. 67
bill does not state facts sufficient to entitle the complainants to the
relief prayed for.

It is not alleged that the Ohio statute providing against the adul-
teration of food is in conflict with the fourteenth amendment to the
Constitution of the United States, but the suggestion is that if con-
strued as the respondent claims it should be, it will be in conflict
with that amendment. The statute is not directed against the man-
ufacturer and sale of Ariosa, but against the coating of any article
of food which conceals damage or inferiority or makes it appear
better or of greater value timan it really is. The law of Pennsyl-
vania under discussion in the Schollenberger case (171 U.S. 1) pro-
hibited the manufacture or sale of oleomargarine without reference
to whether it was pure or impure. The court is of the opinion,
therefore, that the enactment of the statute was a legitimate exer-
cise of the police power of the State, and that it contravenes no
provision of the Constitution of the United States or the constitution
of Ohio, and, therefore, the questions arising out of the conduct of
a State officer, in attempting to enforce a State law, in conflict with
a Constitution of the United States, is eliminated from the case.
We have then, simply the question whether the threatened enforce-
ment of this statute against the complainants by the respondent, in
accordance with his construction of it, justifies the relief prayed for.

Ariosa is not excepted from the operation of the statute by the
yroviso of clause 7 of paragraph b of section 3 thereof (sec. 4200-6
Rev. Stat. of Ohio) because it is not a mixture or compound. ‘The
coffee, sugar and eggs are not intermixed or united so as to form a
new or distinct substance, but the sugar and the eggs, are inter-
mixed and united forming a glaze which is applied to the coffee
berry as a coating. Ariosa is not a compound of coffee, sugar and

eggs, but is colfee coated with a glaze made of sugar and eggs,

83 and if it is so coated as to conceal “ damage or inferiority,”

or, if by means of the coating “it is made to appear better or
of greater value than it really is,” it is adulterated within the mean-
ing of the statute, and the manufacture, sale thereof, or offer to sell
the same, is made a misdemeanor by the laws of Ohio. punishable
by fine or imprisonment. The respondent claims that the coating
conceals damage to, or inferiority in the coffee berry and makes it
appear better and of greater value than it.really is. The complain-
ants deny this and insist that the coffee is sound and of superior
drinking quality, and that it is not made to appear better or of
greater value than it really is.

Now, the court is asked to hear evidence and determine this issue,
and if it is found in’ favor of the complainants, to enjoin the dairy
and food commissioner of Ohio from prosecuting any one who may
manufacture, sell or offer to sell Ariosa in Ohio, but if the issue is
found in favor of the respondent, no relief can be afforded him as
against the complainants and the dealers in Ariosa, but he will be
remitted to the Ohio courts to retry the same issue before the juries
of those courts in every prosecution he may institute against
offenders. The court is not asked to protect the property of the
complainants against criminal aggressions of the respondent where

Bato 2 ~ LRRD RES WWE A TS

———

68 JOHN ARBUCKLE ET AL. Vs.

the court might be called on to {consider whether its intervention
was justified or whether it should remit the complainants to a prose-
cution for the criminal offense, aud therefore not within the rulings
in the case of In re Debs, 158 U.S. 589, and kindred cases, where,
notwithstanding the aggressions complained of were criminal
offenses, the court, nevertheless, intervened to prevent irreparable
injury, which could not be redressed at law, but it is a case where
the court is asked to restrain and prevent criminal prosecutions until
it can first determine wheher they should be instituted or not.
There is no precedent to justify such action. The precedents have
been carefully collected and digested by Judge Rufus Smith of the
superior court of Cincinnati, in an able opinion delivered in

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0357%3A1. Public record. Not legal advice.