# Petition for Writ of Certiorari — Cloverleaf Butter Co. v. Patterson, Commissioner of Agriculture & Industries > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0500%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1942 - **Citation:** 315 U.S. 148 ## Text ~ [ew i ' _- SUPREME COURT OF THE UNITED STATES ? OCTOBER TERM, 1940 | a o No.764 ef CLOVERLEAF BUTTER COMPANY, a Corporation, Petitioner, - vs. HAYGOOD PATTERSON as ComMussioner OF AGut- cutturE & InpusTRIEs OF THE STATE OF ALABAMA, ~ awp GEORGE H. MARSH as Dinecror or tHE Drviston or AGricuLTURKAL CHEMISTRY: IN| THE DerpARTMENT OF Acricviture & Inpystrirs OF THE StTaTE OF ALABAMA. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. _& i os J , Horace C; WILKINSON, _Erve Pettus, Victor H. Smirn, Counsel for Petitioner. INDEX. Sussyect [npex. _ Petition for writ -of certiorari Summary statement of matter involved + Opinions below Jurisdiction e Kees ‘Reasons relied on for siliweined of writ Questions preseiited Specification of errors Prayer for writ Appendix—Renov ated Butter Act, 28 U.S. €. A. 990-996; now Section 2320, et seq. . of the Internal Revenue Code... —Pertinent sections meat inspection ae laws, 21 U..§. C. A. 7-29 ; Revenue, relating to the taxes on oleomargarine, adulterated butter, ete. *... —B. D. i Order No. 1—Regulations for carrying into effect the process ~ ar ‘ or. renovated butter act —Sections of Alabama. Agr icultural Code of 1927 TasBLe or Cases Cirrep. s Adams Express Co. v. Croninger, 226 U.S. 491... * Charleston & W.C. R. Ro Co. v. Varnville Furniture oe ao | , RI. & P. Co. v. Hardwick @o., "296 v, S. 426 — v. Wallace, 306 U. S.1 | Lint. Erie R. R..v. New York, 233 U. S. 671 Erie R. R. v. Tompkins, 304 U.S. 64. . Erie R.R. Co. v. Winfield, 244 U! S. 170 Hines .v. Davidowitz, 61 Sup. Ct. Rep. 399 —2927 | —Regulation No. 9 of U. S. Treasury — ar ———~ _ Department, Bureau, of Internal . 26 | 13 ii a) ee INDEX Kelly « v. Wolltieles, RO Eke ae aes x Lemke v. Farme ts Grain Co., see ew... ... L. € N. R. R. Co. v. State, 16 Ala. App. 199... Mintz v. Baldwin, 298 U. ears . Missouri-Pacific R. R. v. Stroud, 267 U.S. m_.. Napier v. Atlantic Coast Line R. R. Co., 272 U. S. 606 © PN ae RL OF ee | Pega Cae Se New York Central R. R.v. W infield, 244 U.S. 147_ : Northern Pacific RR. v. Washington, 222 US. 370. Ore “we Washington. R. R. Co. v. Washington, ‘ 270 SE Siena, Pe ees, eee ee ote ' Pacific States v. Ww hite, 296 U.S. A a ye South Carolina Highiey Dept ¥. Barnwell, 303-U. S. Bes Sees oe oscuee he. Pastas Southern R. R.v. Reid, 299 U.S. 424. NAO ee se State v. Coot, ane BiG. Ot... 2. 28s. eae Townsend v. Yeqmans, 301 U. S 441... .. Re oe Statutes Crrep. Act of Congress of August 10, 1912, 37 Stat. 273_ (26 U. S. C. A. 997(b) (e))...- a te ae | Alabama Agricultural Code of 1927 (Ala. Gen. Acts, _ 1923, 399-550) : : PRUNE oo ca o's wre Sete ces ceeyet | een eee Bred ss gets a +, ere Tie ct Sf lair ae ag he a ‘Jatornal Revenue Code: : See. 2325 AE TS Oe ne ee ee are Sec. 2327 ........ hy SOE ER SRT CES S Judicial Code, See. 240, « as + aniended (28 U SS... A. 347) * Meat and inapbelion Act-of June 30, 1906, 34. Stat. 676 as reenacted March 4, 1907, 34 Stat. 1260- 1265. Renovated Butter Act, apureved May 19, 1902, 32 (EEE: B Games valu oe <%eeee. Renovated Butter -Act, approved ‘May 9 , 1902, 2 as . amended (U. S. C: A.),- Internal Revenue Code Chap. 16, Sections 2320 to 2327° ane ”~ SUPREME COURT OF THE UNITED STATES \ OCTOBER TERM, 140 | CLOVERLEAF BUTTER COMPANY, A Comenianon, | Petitioner, and sacioaciea below, vs. -HAYGOOD PATTERSON. AS Cormrssionzn oF AarI- cuttrure & Inpustrigs oF THE, STATE OF ‘ALABAMA, . anp GEORGE H. MARSH as Director or THE Division .— or AGRICULTURAL CHEMISTRY In—THE—DepaRTMENT OF AGRICULTURE & Ixpust ares OF THE STATE OF ALABAMA, Respondents, and Appellees below. . ' ‘PETITION FOR WRIT OF CERTIORARI. To theU wited States Circuit Court of Appeals i the bruce Circuit aa To the Honorable Supreme Court of the U: nited States: * Your petitioner, the Cloverleaf Butter Company, a cor- . poration, organized under the laws of the State of Alabama, . respectfully prays that a writ of certiorari issue out of this — Honorable Court to review the final ‘decree of the United — lp a States Circuit, Court of pera for the Fifth Circuit, ren- dered in the above. entitled cause‘on the 14th day of Janu- *) | ary, 1941, and reported in the 116 F. (2d). at- -page | t.:*.. whereby the said Circuif Court of Appeals overruled peti- ‘tioner’s application for a rehearing of the judgment or de- | cree rendered by said court on the 14th day of December, | * 1940, wherein said: Circuit Court of Apheals affirmed the ' judgment and decree of the District Court of the United States for the Middle District of Alabama rendered in said cause on the 23rd day of July, 1940, dismissing petitioner’s action on motion of respondent’s without-a hearing on the - merits, and in support of its petition for a writ of certi- _ orari this petitioner respectfully shows: . ~ } . °, Suthmary Statement of the Matter Involved. ~ Petitionér is engaged, under Federal license, and has been so engaged for 20 years, in the interstate of renovated butter for ‘sale and shipment in interstate\¢ erce at ite plant i in Birmingham. ‘Country butter—known to the. trade as paihiog stock butter—bought in interstate commerce and .concentrated at petitioner’s plant solely for the purpose of manufacture, — ~ is the basic raw material used in the manufacture of reno- vated butter for sale and shipment in interstate commerce. Renovated or process butter is manufactured by melting | the coun{ry butter. and then washing, straining, cleansing, pasteurizing, clarifying and refining the melted butter fat and mixing it with a pasteurized milk product and rechurn- ing it. During the time that petitioner has been in the renovated butter business the Federal Government has exercised ex- clusive control of the sanitary inspection and regulation of. o 3 the manufacture of renovated butter for sale and shipment in interstate commerce as required by Section 2325 1. R.-C., which provides: . ‘The Secretary of hides? is enthestast and re- quited to cause a rigid sanitary inspection to be made at such times as he may deem proper or: necessary, of all factories, and storehouses where process or reno- vated butter is manufactured, packed or prepared for - ; market, and of the-preducts. thereof and materials going into the. manufacture ef the same. * * * And he -shall also have the power to ascertain whether or not materials used in the manufacture of said process or renovated butter are deleterious to health or unwhole-. | some in the finished product, and in case such deleteri- ous or unwholesome materials are found to be used in product intended for exportation or shipment into the. States or in course of exportation in shipment he shall have pow er to confiscate the same.”’ About the middle of April, 1939 the respondents, who are officers of the State of Alabama, “began to seize petitioner’s packing stock butter in ‘interstate commerce. This series of seizures, aggregating 20,924 pounds contained until the bill was filed in the District Court about 14 months later. And, all of the butter seized was being held by the respond- . 4 ents at the time the bill was filed... The respondents claim . ‘that they are acting under ‘the Alabama Agricultural Code ' of 1927, which is a substantial reenactment of the 1923 Act. Ala. Gen. Acts, 1923, 399-550. ‘This Act was. construed by the as Court’ of Alabama in State v. Cecil, 216°Ala. 391. Tn that case it was held the enactment of the Agricultural Code was in the _« exercise of the police power of the State, but the operation of the Code was confired to, intrastate commerce. | Petitioner’s employs some 25 people ‘in its Birmingham plant. The effect éf the repeated seizures of raw material at different times seriously interfered with the operation of | “4 4 - . Petitionér’s plant,-caused.a shutdown of the plant at dif- - ferent times, and its employees to be demoralized and re- main idle from time to time, alpng with great financial loss ~ to Petitioner, and placed an intolerable burden on interstate commerce (R. 3-23). . To prevent.a repetition, and. threatened ‘continuance of the seizure of Petitioner’s packing stock butter i in interstate commerce, Petitioner filed a bill in the District Court of the United States for the Middle District of Alabama against the Commissioner of Agriculture and Industries of the oe State of Alabama, and the Director of the Division of Agricultural Chemistry in the Department of Agriculture and Industries of the State of Alabama, seeking to-enjoin and restrain them from seizing Petitioner’s packing, stock butter moving in interstate commerce to Petitioner’s plant’ in Birmingham, Alabama; also to enjoin and restrain them - from seizing Petitioner’s raw materfal in interstate com-. merce in Petitioher’s plant for manufacture into process or . renovated butter for sale and pee in interstate com- merce (R. 3-23). ‘ : The jurisdiction of the District Court was asserted,under ‘the Acts of Congress, known as the Renovated Butter Act, and Regulations promulgated thereunder, and upon the | ground that more than $8,000.00 was involved and a right" arising under a Federal Statute was being violated as was. found by the United States Cireuit Vent of — for the Fifth Cireuit. ~ The. Record .shows that the regulation of process or renovated butter in interstate commerce originated in an Act ef Congress, known as the Renovated Butter Act, ap-. provéd on May 9, 1902, 32 Stat. 193-197. This was amended by an Act of Congress approved August 10, 1912 entitled “An Act for Making Appropriations for the Department of Agriculture for the Fiscal Year ending June 30, 1919”’ (37 Stat. 273) and extended the applicable provisions of the, 3. 5 Meat and. Na iacaite Act of June 30, 1906, 34 Stat: at Large , 676, as reenacted March 4, 1907, 34 Stat. 1260-1265, to the ; Renovated. Butter Industry. Pursuant to the Acts of Congress, both the Secretary of | Agriculture and the Treasury Department have promul- gated ‘‘regulations for carrying into effect the process or renovated butter act’’.° In Section 5 of the original Renovated Butter Act, later Section 995 U. S. C. A., Title 26, now Section 2325 of cal “ERS. provides: £2 “SEC. 2325. INSPECTION, MANUFACTURE, ; AND MARKETING OF PROCESS OR RENO- VATED BUTTER. The Secretary of Agriculture’ is authorized and required to cause a rigid sanitary inspection to be made, at such times as he may deem proper or necessary, of all fac- tories and storehouses where process .or renovated butter is manufactured, packed, -or prepared for mar- ° ket, and of the products thereof.and materials going into the manufacture of the same. All process or reno- vated butter and, the packages containing’ the same shall be marked with the words ‘‘Renovated Butter’’ or . ‘*Process Butter’’ and by such other marks, ‘labels, or brands and in such manner as nray be. prescribed by the Secretary of Agriculture, and no process or reno- vated bitter shall be shipped or tratisported from its place of manufacture into any other State or Territory or the District of Columbia, or to any foreign country, until if has been marked as provided in this section. The Secre tary of Agriculture stall make all needful “re gulations, for carrying this section and Sections 2326 (c) and 2327 (c) into effect and shall cause-to be ascer- - tained and re porte d from time to time the quantity and quality of procéss or renoyated butter manufactured, and the character and the condition of the material from , ‘which it isimade. And he shall also have power to-as- ‘certain whether. or not materials used in the manufac- ture of said precees or renovated butter are deleterious Qp .. page 27. Pertinent parts are set ou pe ee ; fess sia to- shealth or unw holesome i ia the finished wreiwes. and in case such dele -terious or unw holésome materials are found to be used in product intended for exportation or shipment into other States or in course of exportation or shipment he shall have power to lesa ach the Baume.’ (Emphasis supplied). i ‘The Regulations are set out in o gina Saseal Seghibing ¢ 1ere in. appendix. In ‘the Agricultural Department Appropriation. Act of ; ‘Angust. 10,.1912, codified as Section 997 (b) (e), Title 26 U.S. C. A. it was provided: “That ‘the sanitary provisions for slaughtering, meat canning, or similar ‘establishinents as set forth in the Act of June 30, 1906, 34 Stat. 676, are hereby extended to cover renevuted butter factories as defined. i in the Act _ ‘of May 9, 1902 under such regulations as the Secretary of Agriculture may prescribe,’* This: Statute is.now Section 23 327 of the I. R. C. The Meat Inspection Acts are codified as Sections 71 to 93 of Title 21 U.S. CLA. The pertinent sections being set. out in the appen'ixe in Regulation 4, | Section 1, a rixid sanitary eniinallali is required ‘o be made of the character and condition of the’ - materials going into the manufacture ‘of process or’ reno- vated butter” heedh. a. In Regulation 7 thie Se retary of Agriculture prescribed in detail.the method by. which it is to be determined whether or “ot materials used in the manufacture of process or rerovated .butter are deleterious to health: or unwholesome ir the finished product. - - ‘Section 71 of the Alabama Agricultural Code, 1927 recog- - nize#renovated butter manufactured from original packing stock butter as a legitimate article of commerce and requires _* ° ia 2 it to be labeled renovated butter when.-sold.in the, State. This is. the only Alabama Statute making reference to,: or attempting to regulate renovated butter. Section. 37 of the Alabatha socio tabs Code, 1927 pro- vides : ‘37. Posseasion: Sale “a Delivery of Prohibited al Articles.—No person within-this State shall manufac- ture for sale ‘therein, have in possession with intent to - sell, offer or expose for sale, sell, or deliver any article of. food or drugs which. is adulterated or — within the meaning of this Article.’ we In Section 39 it.is also provided :. ‘‘An article shall be deemed: ‘ididhovatei in 1 ‘the case . of food: *’ *. * Sixth. If it-consists in whole or in part of a filthy, decomposed,‘ or putrid animal or _ vegetable substance, ae 2 ey : The respondent officers of.the State. of kines “pliie under the color of these provisions and: ‘pursuant to the au- _ thority. they claim the ‘statutes confer on them, seized at. different times, the 16 different lots of raw material i in in- ‘terstate commerce (R./14-15).: . The respondents will, sion enjoined and restrained, — continue to interfere with Petitioner’s business by inspect- _ ing, seizing and holding raw material in,interstate commerce . used by [Petitioner i in the manufacture of process butter| for sale or shipment in interstate commerce *(R. 16). In the District Court the responde ents moved to dismiss the bili on two grounds, (1) because the complaint failed _to siate a. claim against the:defendants upon which relief can be gr anted, and (2)-because there-was no diversity of ~ citizenship and no substantial Federal question presented (B- 45). ; : en » . foe Ph ‘By written itipulation the parties eliminated questions, ef fact and confined the case to questions of law’ which, briefly stated, were: (1) Has Congress A, eee and completely occupied ‘the field’ as’ to the manufacture of process butter for sale ‘and shipment in interstate-commerce? 2 (2) Is inspection and seizure of packing stock butter in | interstate commerce by State officers excluded by the Fed- eral Statutes avd Regulations? —e \ (3) Is ‘the § Secretary of Agriculture of the U nited States the sole judge of the fitness and suitability of packing stock oa butter in interstate commerce for use in the manufacture of process or renov ated butter for sale and shipment in interstate comme ree? ; (4) It was “also stipulated that: State and Federal stand- ards relating to the fitness and suitability of packing stock butter in interstate commerce are not-in conflict (R. 48). ; apes LP | ie See Opinions Below. nae Ne opinion was rendered by the District Court, other than an expression in its decree on page 51 of the record. ; The opinion ‘of the Circuit, Court of Appeals is reported in 116 F. (2 2d) 227, where it was held by the majority of the “wourt that to obtain relief from enforcement-of State police” “regulation upon the claim the Federal Regulations have ° preempted the field it must appear that there is in effect . an express prohibition against State regulation or there is | such an essential conflict between State and Federal Laws { - and Regulations as that compliance with the one is defiance of the other, amd tlierefore a prohibition against State regu- - lation ‘must be implied, and that State officers enforcing - seizure policé “regulation with regard to foods, will not be . - re © . enjoined at the suit of persons complaining of them merely because there exists similar Federal-laws and regulations in respect to the same subject matter and there has been no Federal seizure. Ty. Jurisdiction. The jurisdiction of this Honorable Court is invoked under | Section 240 of the Judicial Code as amended, by Acts of. February 13, 1925, Subsections (a) and ( eparately and _ severally, U.S. C. A., Title 28, Section 34% and also rule 38 of the revised rules of the, Supreme Court of the United States adopted February 13; 1939, = Lemke v. Farmers Grain Co., 258 USS. 50. IV. - Reasons’ Relied On for the Allowance of the Writ. 1. United States Circuit. Court of Appeals for the Fifth Circuit, in construing the Renovated Butter Act of May 9, . 1902, as vepapentn, U.S. C. A. Int. Rev. Code Chap. 16, See- tions 2320 to2 7, decided an important question of Federal law, which Si aa been, but should be settled by this Court. The importance of the question arises from the fact that Congress by special enactment has taken over the regula- tion of. the renovated butter industry in interstate com- ~meree; it has by reference and adoption extended all ap- plicable provisions of the meat inspection laws:to the same industry; the renovated butter industry has an important placé in interstate commerce and the meat industry at the present time is one of the major sources of the Nation’s food supply, the importance of which cannot be exaggerated: — The majority opinion of the Cireuit Court of Appeals in this case has left the construction and application of the | 10 statutes involved in a state of confusion and uncertainty as to which sovereignty shall control the subject matter in ‘interstate commerce, the effect of the opinion being to hold that State authorities may intervene and to invite them to exercise joint control with the agencies appointed by Congress. - Petitioner claims the right, under the Federal statutes, to have packing stock butter transported in interstate com- merce to its plant in Birmingham, Alabama, for the purpose of being there manufactured into a puré and wholesome process butter, for sale and shipment in interstate’ com- merce, without interference on the part of the respondents who are officers of the State of Alabama. ; The respondents, officers of the State of Alabama, assert the right to seize packing stock butter even before it reaches ‘its destination moving in .interstate commerce to peti- _ tioner’s plant in Birmingham for the sole purpose of being manufactured into a pure and wholesome finished product . for sale and shipment in interstate commerce. They also assert the right to seize packing stock butter which has been’ transported to petitioner’s-plant in Birming- ham, Alabama, for the purpose of being there manufactured into a pure and wholesome finished product; fér shipment and sale in interstate commerce, after delivery t® said plant, - arid during the temporary period it is held pending its man- ufacture into renovated butter, for sale and shipment in interstate commerce, ” 2. The Cireuit Court of Nppeals decided an important Sea of Federal law very probably i in conflict with ap-. plicable decisions of this Court. . Petitioner earnestly insists that Federal legislation spe-. cifically requiring the United States Secretary of Agricul- ture to inspect packing stock butter in interstate commerce excludes like action by State officers, and that any State 11 “ | 2 legislationgpurporting to authorize State officers to inspect a the commodity in interstate commerce would be superseded by-the Federal law. The Court of Appeals, in effect, holds: that Congress must go further: than legislation specifically requiring the .inspection befere action by State officers is excluded. _ The ~ court holds, in effect, that-Congress must, in addition to requiring Federal inspection, also prohibit State legislation on the same subject, and in applying the rule the court held that before State inspection will be enjoined it must appear (1) that the Federal Government either passed the com- modity seized by the State, or (2) that the'¥ederal Govern- | ment seized it before it was seized by the State inspectors, leaving the State free to seize any. packing stock butter not actually inspected and passed or Seized by the Federal Government. ; ‘ The Renoyated Butter Act and the Regulations ious gated thereto are not Jess comprehensive with respect to the subject matter involved than the Federal statutes con- strued in the following cases: Hines v. Davidowitz (M, M.'8.), 61 Sup. Ct. Rep. 399; Oregon- Washington R. R. Co. v. Washington, 270 U.S. 87; a ' Napier v. Atlantic Could Line R. R. Co., 272 U. S. 606; -Northern Pacific R. R. v. Washington, 909 U.S. 370; So. R. R. v. Reid, 222 U. S. 424; _ Missouri-Pacific R. R. v. Stroud, 267 U.S. 404; L: & N. R. R. Co. v. State, 16 Ala. App. 199; C. RL. & PCO. Hardwick Co., 226 U.S. 426; Adams Express’Co. vy. Croninger, 226 U. S: 491; Erie R. R. v. New York, 233 U. S. 671; ~ New York Central R. R. v: Winfield, 244.0, S. 147; Erie R. R. Co. v. Winfield, 244U.S.170; Charleston & W. C. R. R. Co. . Varnville Furniture Co., 237 U. 8. 597, ‘12 4 In each case it was held that by the Act, involved, Con- --- gress had completely occupied the field with respeét to the subject matter of’ the legislation to the exclusion of State action. 3. The highest court in ny ene decided that the opera- tion of the Ala. Ag. Code was confined to intrastate coni- merece, State v. Ce ecil, 216: Ala. 391. — The U nited States Circuit Court of Appeals for the Fifth Circuit held. in effect that the Ala. Ag: Code was not con- ‘fined in its operation to intrastate commerce, but authorized the respondent officers to interfere with packing stock butter ~ in interstate commerce. The ruling of the United States -Cireuit Court of Appeals is in conflict with the. rule an- — nounced by this.Court.in Erie R. R. v. Tompkins, 304 U.S. 64, where it was held in effect that United States. courts must follow the constructicn placed on the State statute by the highest court in the State. 4. The decision of. the United States Cireuit Court of Appeals for the Fifth Circuit is in irreconciliable conflict with certain decisions of this Honorable Court in which it was decided that where the State action complained of was _ Within the seope of the authority delegated to an officer or -instrumentality of the United States, State action was ex- cluded. The cases are: eal Oregon-Washington Ry = Co. v. W eshington, 270 U.S, 87 ; : ~ Napier v. Atlantic C rae t Lisie R.R. Co. ., 272 U.S. 606; Hines v. Davidowitz (mms. ), 61 Supreme Court Re- aii! 399. ~— ae ‘hon numerous other cases. | / D. The United States Circuit Court of Appeals for the Fifth Circuit erroneously ruled that Mintz v, Baldwin, 298 * _ to obtain relief from enboniienmns of State’ police regula- — % the field as ‘to the inspection and regulation of raw material 13 U, S. 346; —"y ‘States ° v. White, 296 U. S. 176; , Kelly v. "Washington, 302 U.S. 1; South Carolina Highway Dept. v. Barnwell, 303 U. S. 177; Townsend v. Yeomans, 301 U. S. 441; Currin v. Wallace, 306 U.S. 1, supports its holding that tions’ upon the claim that Federal regulations have pre- empted the field, it must appear that there is\such an essen- tial conflict between State and Federal laws and regulations as that compliance with the one is defiance of the other, and therefore, a prohibition against State regulation must be implied, and that State officers enforcing by seizure police .4, Pegulations with respect to foods will not be enjoined at the _ suit of pérsons complaining of them merely because there exists similar Federal laws and regulations in respect to the same subject matter and tltere has been no Federal seizure. Questions Presented. .- The controlling question is, whether Congress‘ has pre-- empted and completely occupied the field of inspection of raw material in interstate commerce, for manufacture into process butter for sale and shipment in interstate com- merce, to the exclusion of State regulation. A secondary question is, whether. the State of Alabama lias authorized its officers to seize raw material, moving in interstate commerce, for the purpose of being processed or renov ated i in ‘Alabama for sale and shiprfent in interstate ‘commerce. ‘ } - Specification of Errors to be Urged. * The Cireuit Court of Appeals erred: 1. In affirming the decree of the United States District | Court for the Middle District. of Alabama. 2. In holding, in effect, that Congress has net preempted ‘és 14 in interstate commerce for manufacture into processed butter for sale and shipment in interstate commerce. 3. In holding; in effect, that the Alabama statute (the Alabama Agricultural Code) authorizes officers of thé State: \. of Alabama to seize raw material moving in interstate com- merce for manufaeture into processed butter for sale and shipment in interstate commerce.’ 4. In holding, in effect, that State officers may supple- ment and duplicate the work of the Federal Government in policing faw material in interstate commerce going into the manufacture of process butter for sale and shipment in interstate commerce. | oo ae | "5. In holding, in effect, that to obtain relief from enforce- ment of State Police Regulations upon the claim that Fed- eral Regulations have preempted the field, it must appear that there is an express or implied prohibition against State - regulations. . 6. In holding, in effect, that to obtain relief from enforce- ' ment of State Police Régulations upon the claim that Fed- ' . eral Regulations have preempted the field, it must appear _that there,is such an essential conflict. between State and Federal laws and regulations as that-compliance with the ene is defiance of-the other, and therefore a prohibition against Stete regulation must be implied. . In holding, in effect, “that State officers enforeing by be police regulations with regard to foods, will not be enjoined at the suit of persons complaining of them merely -becguse there exist similar Federal laws and regulations in respect to the same subject matter and there has been no Federal seizure. WHEREFORE your petitioner prays that a writ of certiorari . issue under the seal of this Court, directed to the United - oPr-: - * eS -e O-Te ee eyes _——- ? 15 States Circuit Court of peas for the Fifth Circuit, com- manding said court to certify and serid to this Court.a full . and complete ‘transcript of the record and of the proceed-~ ings of said court had in the case numbered and entitled. on its docket, #9647, Cloverleaf Butter Company, Appel- lant, v. Haygood Patterson, as Commissioner of Agricul- tute & Industries of the State of Alabama, et al., Appellees, to the end that this cause may be reviéwed and deter- mined by this Court as provided for by the statutes of the Unjted States; and that the judgment hereirr of said United States Circuit Court of’ Appeals for the Fifth Circuit ‘be. reversed by the Court and for such other relief as to this Court may seem proper. February 21st, 1941. CLOVERLEAF —_— Company,. By Erte Petrus, Horace C. WiLKrnson, © Victor H. Sirsa, a | Counsel for Petitioner. “as. 7 ie eo. ce APPENDIX. : Fepenit STATUTES. FE ™ERAL EGULATIONS. State StTaTurTes. FEDERAL STATUTES. » Renovated Butter Act. U.S. C.:A,, Title 26, Sections 990- 996 ; now § 2320, et, seq., of the Internal Revenue Code:: . ‘te ‘ Pre ‘‘Sec. 990. Definitions, .. ey . a est “*(a) Butter. For the purpose of this chapter and sec-. tions 1366, and 1367, the word ‘butter’ shall be understood © to mean the food product Usually known as butter, and . which is made exclusively from milk or cream, or both, with or without cominon salt, and with or without additional coloring matter. © : “(b) Adulturated Butter. ‘Adulterated butter’ is de- ‘fined to mean a grade of butter produced by mixing, re- working, rechurning in milk or cream, refining, or in any way preducing a uniform, purified, or proved product - from different lots or parcels of melted oy unmelted butter _er butter fat, in which afy acid, alkali, -chémical, or any _ substance whatev er is introduced or used for the purpose or with the effect of deodorizing or removing’ therefrom rancidity, or any butter or butter fat, with which there is - mixed any substance foreign to butter as defined in subsec- tion (a), with intent or effect of cheapening in cost the product of any butter in the manufacture or manipulation of which any process or material/is used with intent. or effect of causing the absorption of abnormal apantities ot water, milk, or cream. wa ‘“(c) Process or Renovated Butter.\.‘ Process buttér’ or ‘renovated butter’ is defined to mean butter which has been subjected to any process by which it is melted, clarified or 17. -refined ind made to resemble genuine ‘butter, always. ex- cepting ‘ adulteratéd auiter’ as defined by subsection (b). ' “See. 991. Tax. : 3 ee ‘“(a) Rate—(1) Adulterated Butter. Upon adulterated butter, when manufactured or sold or removed for con- . sumption or use, there shall be assessed and collected a tax. - of 10 cents per pound, and any fractional part of a pound ‘. shall be taxed as a pound. (May 9; 1902, ¢.) . "46 (Q) Process or Renovated Butter. Upon process or , ~ renovated butter, when manufactired or sold or removed for consumption or use, there shall be. assessed and col-- lected a tax 8f one-fourth of,1 cent per pound, and’ any ‘fractional part of a pound shall be taxed as a pound.\ ““(b) By- Whom Paid. The tax to’ be levied by. anal tion (a) shall be paid by the manufacturer. ‘*(c) How Paid—(1) Stamps. The tax to be levied B subsection (a) shall be represented. by coupon stamps. — **Séc. 992. Manufacturers. ‘*(a)- Definition. Every person who engages in the pro- Aktion of process or renovated. butter or adulterated but- . ter as a business shall be considered to be a manufacturer thereof. | ‘*(b) Packing, Stamping, and: Selling Requirements— (1) Adulterated. Butter. All adulterated butter shall be _ packed by the manufacturer thereof in firkins, tubs, or other wooden, tin-plate, or: paper. packages not before used for that purpose, containing, or eneased in a manufacturer’s package made from any of such materials of, not less than ten pounds, and marked, stamped, and branded as the Com- missioner of Internal Revenue, with the approval of the- Secretary of the Treasury, shall prescribe, and all-sales ‘made by manufacturers of adulterated butter shall be in original, stamped packages. Every manufacturer of adul- terated butter shall securely affix, by pasting, on each pack- age containing adulterated butter manufactured by him. a label-on which shall be printed, besides the number of the ). 18" _ manufactory, and the district and State in which it is situ- ated, these words: ° “* *Notice.—That the nianufactarer of the ‘adulterated butter herein contained has eomplied with all-the require- - ments of law. Evéry person is cautioned not to use either . this package again or the stamp thereon, nor to remove the contents of this package without destroying said stamp, | under the penalty provided by law in such cases.’ ‘*(c) Books and Returns. Every manufacturer of process or renovated butter or adulterated butter ‘shall file with _ the collector. of the district in which his manufactory is- located such, notices and inventories, shall keep such books and render such returns of material and products, and con- duct his business under such surveillance of officers.and . agents. as the Commissioner, with the approval of the Secretary, may by regulation require. se (d) Factory Number and Sigtis. Every ‘manufacturer. of process or renovated butter or adulterated butter shall put up such signs and affix such number to his factory as the Commissioner, with the approval of the Secretary, may by regulation require. .- “(e) Bonds. Every manufacturer of process or reno- vated butter shall file with the collector of the district in which his manufactory is located such bends as the Com- missioner, with the approval of the Secretary, may by regu- tion require. But. the hond required .of such manufac- er shail be with sureties satisfactory to the collector a penal sum of not less than $5003 and. the sum of d may be increased from time to time and a — srg securities required at the discretion of the co ector or ~ under jnstructions f the Commissioner. : ' Sec. 993. Dealers i in Adulterated Butter. ‘*(a) Dealer Defined. Every person who sells adulter-’ sted butter shall be regarded ase a dealer in adulterated butter, : “(b). Retail Dealer Defined. “itdens person who sells adulterated butter in less quantities than ten pounds at 19 — one time shall ‘ti regarded ‘as a retail dealer i in adulterated butter. **(@). Selling eT eNO Dealers in adulterated but- ter must sell only original or from original stamped pack- ages, and whey such original stamped packages are broken the adulterated butter sold from same. shall be placed in suitable wooden, tinplate, or pa packages, which shall be marked and branded as the Commissioner, with the approval of the Secretary, shall prescribe. **Sec. 994.. Books and Returns of Wholesale Dealers in Adulterated and Process er Renovated Butter. ‘Wholesale | dealers in process, renovated, or adulterated butter shall keep such books and render such returns in relation thereto as the Commissioner, with the approval of the Secretary, may, by regulation, require; and such books shall be open — at all times to the mnpeetion of any internal revenue officer or agent. ‘*See. 995. Inspection, Manufacture, Storage, and Mark. ing of Process or Renovated Butter. . «The Secretary of Agriculture is authorized and required to-cause a rigid sanitary inspecfion to be made at such times as he may deem proper or necessary; of all factories and storehouses where process or renovated butetr is mannu- _factured, packed, or prepared for market and of the pod- ucts thereof and materials going into the manufacture of the same. All process or renovated butter and the pack- . ages containing the same shall be marked with the words’ ‘Renovated Butter’ or ‘Process Butter’ and by such other o marks, labels, “or brands and in such manner as may be prescribed by the Secretary of Agriculture, and no process or renovated butter shall be shipped or transported from its place of manufacture. into any- other State or Territory or ‘the District of Columbia, or to any foreign country, until it has been marked as prov ided in this section. The _ Secretary of Agriculture shall make all needful regulations -for carrying this section -and sections 996(c) and 997(b) into effect and shall cause to be ascertained and reported from time to time the quantity and quality of process or renovated butter manufactured, and the character and con- Tae cll . 20 dition of the material from which it is made. -And he shall also have power to ascertain whether or net materials used in the manufacture of said process or renovated butter are deleterious to health or unwholesome in the finished prod-. uct, and in case-such deleterious or unwholesome materials are found to be used in preduct intended for exportation or. shipment into other States or in course of exportation or shipment he hall have power to confiscate the same. **See. 996 Penalties. ‘« (a) Adulterated Butter—(1) Falfe Branding; Sale, Packing, or Stamping in. Violation aw. Every person. who knowingly sells or offers for sale, or delivers or offers - to deliver any adulterated butter in any form than in new, _ wooden or paper packages as deseribed in subsection (ce). ‘of section 993, or who packs in any package any adulterated. butter in any manner eontrary to law, or who falsely brands, any package or affixes a stamp on any package denoting a less: amount of tax than that required by law, shall be fined for each offense not more than $1,000 and be impris- oned not more than two years. | . (2), Omission or Removal of Label. Every manufac- turer of adulterated butter who: neglects to affix the label required under paragraph (1) of subseétior (b) of section * 992 to any package containing adulterated: butter made-by- him, or sold or offered for sale for or by him, and every person who removes any sueb label so affixed from any’ ‘such - package shall be fined: $50 for each package in respect to which such-offense i is committed. ‘*(b)} Failure of Wholesale Dealers to Keep or Permit, Inspection of Books, or to Render Returns. Any person: who willfully violates any of the provisions of section 994 -shall for each such offense be fined not less than $50 and: not exceeding $500, and be imprisoned not tess than thirty 7 ‘days nor more than six months. ‘*(e) Failures to ¢ ‘omply with Provisions Relating to the Manufacture, Storage, and Marking of Process or Reno- vated Butter. Any person, firm or corporation violating _any‘of the proyisions of section 995 shall be ferme guilty °° » can ore ae of a niisdemeanor and on conviction thereof shall be pun- ished by a fine of not less than $50 nor more than $500 or -by imprisonment not less than one month nor more, than, six months, or by both ~ punishments, in the discretion of the court..’ Pertinent Sections Meat: Inspection Laws.. United States Code Annotated, Title 21, Seetions 72-79. : _ 72. Post mortem examination of carcasses and marking- ‘or labeling ; destruction of carcasses condenined; reinspec- © tion. For the purpose hereinbefore set, forth the Secretary of. Agriculture shall cause to be made by*inspectors -ap-- pointed. for that purpose a post mortem examination and — oe inspection of the cateasses and parts thereof of afl cattle, sheep, swine, and goats io be prepared for human consump- tion’ at any slaughtering, meat canning, anigne, packing rendering, or similar establishment in any State, Territory, or the District of Columbia for transportation or sale as articles of interstate or foreign conimerce;; and the carcasses: and parts thereof of all such animals found to Be sound, healthful, wholesome, and _ fit for, human food shall, be m rked, sfamped, tagged, or labeled as *‘‘ Inspected and ; and said inspectors shall label mark ‘amp or x > ‘heanetted and condemned”? all carcasses and parts therdof of animals found to be unsound, unhealthful, uin- wholesome, or otherwise unfit for human food; and all car- easses and parts thereof thus inspected and condemned shall _ be destroyed for food purposes by the said establishment ‘in the presence of an inspector, and the Secretary of Agri- — eulture may remove inspectors from any such estabiishment_ _ which fails to so destroy any such condemned carcass or. part thereof, and said inspectors, after said first inspec- tion, shall, when they deem it necessary, reinspect Said car- casses or parts thereof to determine whether since the. first inspection the same have become unsound, unhealthful, un- wholesome, or in any way unfit for human food, and if any ’ carcass or any part thereof shall, upon examination and inspection subsequent.to the first examination and inspec- tion, be found to be unsound, unhealthful, Sn Waelovone, or o on otherwise unfit for human food, it shall be destroyed for — food purposes by the said establishment in the presence of an inspector, and the Secretary of Agriculture may: re- move inspectors from any establishment which fails to so ‘destroy any such condemned carcass or part thereof. 73. Examination of carcasses brought into slaughtering . or packing establishments, and of meat food products issued from and returned thereto. The foregoing provisions shall apply to all carcasses or parts of carcasses of cattle, sheep, -swine, and goats, or ‘the meat or meat products ‘thereof which may be brought into any.slaughtering, meat-canning, salting, packing, rendering? or similar establishment, and such examination and inspection shall be Had before the said carcasses or parts thereof shall be allowed to enter: into any departmerit wherein the same are to be. treated and prepared for meat food products; and the foregoing provisions shall also apply to all such products, which, after having been issued from ay slaughtering, méat-cannins, salting, packing, rendering, or‘similar establishment, shall}, _ be returned to the same or to any similar establishment ; where such inspection is maintained. 74. Inspectors of meat food products; marks of inspec- tion: destructio® of condemned products; products for ex- port. For the purpose hereinbefore set forth the Secretary of Agriculture shall eause to be made, by inspectors ap- pointed for that purpose, an examination and inspection. of all’ meat food products prepared for interstate or foreign commerce in any slaughtering, meat-canning, salting, pack- ing, reridering, of similar establishment, and for the pur- poses Of any examination and inspection said inspectors shall have access at all times, by day or night, whether the establishment be ‘operated or not, to every part of said establishment; and said mspectors shall mark, stamp, tag, or label as ‘‘ Inspected and-passed’’ all such products found to be sound, healthful, and wholesome, and which contain “no: dyég chemicals, preservatives, or ingredients which render be ‘h meat “or meat food products unsound, unhealth- ful, unwholesome, or. unfit for human food; anid said in- spectors shall label, mark, stamp, or tag as “Tnspected and « 23 5 - “ condemned”? all such products found unsound, unhealthful, ~ and unwholesome, or which contain dyes, chemicals pre- -servatives, or ingredients which render such meat or meat food products unsound, unhealthful, unwholesome, or unfit for human food, and all such condemned meat food products. shall be destroyed for food purposes, as hereinbefore pro- vided, and the Secretary of Agriculturé may remove jn- spectors from any establishment which fails to so destroy such condemned meat food products: Provided,-That sub- ject to, the rules and regulations of the Secretary of, Agri- culture the provisions of this section in regard to preserva- tives shall not apply to meat food products for export to any foreign country and which are prepared or packed ac- cording to the specifications or directions of the foreign purchaser, when no substance is used in the preparation or packing thereof in conflict with the laws of the foreign country to which said article is to be exported; but if said article shall be in fact sold or offered for sale for domestic use or ¢onsumption then this proviso shall not exempt said article from the operation of all the other provisions of sections 71 to 94 inclusive, ofthis title. 75. Labeling receptacles or coverings of meat or meat food products ‘inspected antl passed; supervision by in- spectors; sales under false names; trade names. When any meat or meat food product prepared for interstate or foreign commerce which has been insvected as hereinbefore . provided and: marked ‘‘Inspected ind passed” shall be placed or packed in any can, pot, tin, canvas,-or other re- ceptacle or covering in any establishment where inspection under the provisions of sections 71 to 94, inclusive, of this titleis maintained, the person, firm, or corporation prepar- ing said product shall cause a label to be attached to said can, pot, tin, canvas, or other receptacle or covering, under the supervision of an inspector, which label shall state that the: contents thereof ‘havé been ‘‘inspected and passed’ under the provisions of such sections; and.no inspection and examination of meat or meat food products deposited or inclosed in cans, tins, pots, canvas, gr other receptable or covering in any establishment where inspection under-the provisions of such sections is maintained shall be deemed to 24 be complete until such meat or meat food products have been sealed or inclosed in said can, tin, pot, canvas, or other _ receptacle or covering under the.supervision of an inspector, and no such meat or meat food products shall be sold or - offered for sale by any person, firm or corporation in inter- . state or foreign commerce under any false or deceptive - name; but established trad¢ name or names which are usual to such products and which are not false and deceptive and which shall be approv sa by the Secretary of Agriculture are permitted. 76. Sanitary’ inspection and regulation of pate Fer : -and packing establishments; rejection of meat or meat food products unfit for food. The Secretary of Agriculture shall cause to_ be made, by experts. in sanitation or by other competent inspectors, such inspection of all slaughtering, meat canning, salting, packing, rendering, or similar estab- lishments in which cattle, sheep, swine, and goats are slaughtered and the meat and meat food products thereof are prepared for interstate or foreign commerce as may be necessary to inform himself concerning the sanitary condi- tions of the same, and to prescribe the rules and regulations of sanitation under which such establishments shall be maintained; and wheresthe sanitary conditions of any such establishment are such that the meat or neat food products are rendered unclean, unsound, unhealthful, unwholesome, or otherwise unfit fo. Human food, he shall refuse to allow | said meat or meat food products to be labeled, marked, —o or tagged as ‘inspected and passed”?, y . Examination of cattle and food products thersof, ci Pec and prepared during nighttime. The Secretary of Agriculture shall cause an examination and inspection of all cattle, sheep, swine, and goats, and the food products thereof, slaughtered and prepared in the establishments hereinbefore described for the purposes of. interstate, or foreign commerce to be made during the nighttime ts well as during the daytime when the slaughtering of said cat- tle, sheep, swine, and goats, or the preparation of said food products is conduciéd during the nighttime. 25 78. Transportation of carcasses, meat, or meat food products not properly inspected and marked. No person, firm, or corporation shall transport or offer for transporta- tion, and ‘no carrier of interstate or foreign commerce shall ‘transport or. receive for transportation from one State or Territory or ‘the District of Columbia to any other State or Territory or the District of Columbia, or to any place under the jurisdiction of the United States, or to any. foreign country, any carcasses or par s thereof, meat, or meat food products thereof which have’ not been. inspected, examined, and. marked as ‘Inspected and passéd,”’ in accordance with ‘the terms of sections 71 to 94, inclusive, of this title, and with the rules and regulations prescribed by the Secretary of Agriculture. : : [> is rd 79. Forgery, alteration or unauthorized use of whi ~ labels, or other identification devices or certificates. ‘person, firm, or corporation, or officer, agent, or employee thereof, shall forge, counterfeit, simulate, or falsely repre- sent, or shall without proper authority use, fail to sue, or detach, or shall knowingly or wrongfully alter, defact, or destroy, or fail to deface or destroy, any of the marks, ° stamps, tags,dabels, or other identification devices provided for in section 71 to 94, inclusive, of this title, or in and as ’ directed by.the rules and regulations prescribed hereunder by the Secretary of Agriculture on any carcasses, parts of carcasses, or the food product, or containers ‘thereof, sub- ‘ject to the provisions of such pais or any certificate ; in . relation thereto, authorized or required by such sections or by the said rules and regulations of the Secretary of Agriculture. - ; 1. Object of ition. The plain shiaet of this section isto safeguard the-food products in question against alteration or substitution, and thus enable the officials of the govern-. ment to systematize and render effective the process of in- spection; an object that is ‘interfered with if the tags or other identification devices are destroyed, whether they be » destroyed by those engaged in the business or by others. U. S. e. Lewis (Kan. 1914), 235 U. S. 282, 35'S. Ct. 44, 59, L. Ed. 229. op 26 9. Unauthorized use’ of sided or labels. .~Shipiacai of in- ‘esau hams from Chicago to Pittsburgh, and wrapping theréof, after being boiled smoked, in paper bearing labels - as to. inspection held a violation of sections 71 to 94 of this title. Armour & Co. v. U. S. (Pa. 1915), 222 F. 233, 138 C. C. A. 63. ’ 3. Application to renovated butter.—Under previous pro- visions similar to this section, which were made applicable to process or renovated butter, as are sections 71.to 94 of -this-title, it was held that the removal of stamps and caution notices attached to original packages of renovated butter, which was the subject of interstate commerce, constituted an offense, U.S. v. Green (D.C. N. Y. 1905), 137 F.179. 4. Act March 3,.1891, 4 (superseded) —See (1895) 21 Atty. Gen, 128 as to false labels. Regulations No. 9 of Y, S. Treasury Department are ro printed in full beginning page 27 of record. a U. S. Treasury DerarTMENT ‘ ” Bureau or Internat Revenve Regulations No. 9° Relating to the, Taxes on Oleomargarine Adulterated Butter and Process or Renovated: Butter. . ‘Under the Acts of ’ August 2, 1886 (24 Stat., 209), May 9, 1902 (32 Stat., 198), . August 10, 1912 (37 Stat.; 273), October 1, 1918 (40° Stat, 1008), July 10,1930 (46 Stat., 1022), March 4, 1931 (46 Stat., 158), and February 24, 1933 (47 Stat., 92). Revised April, 1936. (d) Deleterious: products seizable. —The Secretary of Agriculture will determine whether or not materials being - used in the manufacture of process or renovated butter will be deleterious to health or unwholesome in the finished product. If any materials which have been so determined to be deleterious to health or unwholesome in the finished a % 27 , | | e | _ product are found to be present i in any process or renovated © butter, intended for, or in course of, exportation or ship- ment in interstate commerce, such process or renovated butter will be confiscated. B. D. I. Order No. 1—Revised Issued December 2, 1936 Un rrep States DepartTMENT oF- AGRICULTURE Bureau or Dairy Inpustry ‘Regulations. for Carrying into Effect the Process or Renovated Butter Act. Int 'roduction U nder almaia sania upon the Seeretity of Agri- culture by the act of Congress approved May 9, 1902, en- . titled ““An act: to make oleomargarine and other imitation dairy products subject to the laws of any state, or territory, or the District of Columbia, into which they are transported, and to change the tax on oleomargarine, and to i impose a tax, provide for the inspection, and regulate the manufacture - and sale of certain dairy products, and to amend an act -entitled ‘An act defining butter, also imposing a tax upon and regulating the manufacture, sale; importation and ex- portation of oleomargarine approved August 2, 1886’ ’’ (32 Stat. 193-197; U. S. C., title 26, sec. 990-997) ; and: by the act ‘of Congress approved August-10, 1912, entitled ‘‘An act making appropriations for the Department of Agriculture for the fiscal year ending June 30, 1913”? (37 Stat. 273) ; the following regulations are made and are hereby promulgated, which for purposes of identification are designated B. D. I. Order: No. 1—Revised, superseding S. R. A.. 1~Bureau Dairying, issued April, 1925; and B. D. Order 1, issued Feb- ruary 14, 1925; which are hereby revoked. Henry A. Wallace, Secretary of Agriculture. WwW ashington, D. c December 24° 1936. ° Regulation 1.—Short Title of Act For the purpose of these regulations the act entitled “An, ‘act to make ‘oleomargarine and other imitation dairy 28 products subject to the lowe. of any State or Territory or the District of Columbia into which they ardtransported, = “~and“te-change the -tax on oleomargarine and to impose a tax, provide for the inspection, and regulate the manufac- ture and sale of certain dairy products, and to amend an -act entitled ‘An Act Defining Butter’, also imposing a tax upon and- reguiating the manufacture, sale, importation, ‘and exportation ‘of oleomargarine- approved August 2, 1886"’, approved May 9, 1902 (32 Stat. 103-199; U. S. C., title 26, sec. 990-997, as ‘amended by the act of August 10, 1912 (37 Stat. 273, U. S.-C., title 26, see. 997 (c), entitled ‘“*An-act making appropriations for(the Department of Agticulture for the fiscal year ending Jane 30, 1913”’, shall be known and referred to as the Process Sr Renovated. But- ter Act. The Chief ‘of the Bureau of Dairy Industry is charged, under the direction of the Secretary, , with the ad- ministration of these regulations. Regulation 2. —Definitions _ For the purpose of these regulations the following words, phrases, names, and terms shall be construed, vy to mean: Section 1. The Meat Inspection Act. —The act of June 30, 1906, entitled ‘‘An act making appropriations for the Departinent of Agriculturé for the fiscal vear ending June _thirtieth, nineteen hundred and seven’’ (34 Stat. 674-679)‘ as reenacted by act of March 4, 1907 (34 Stat. 1260-1265; U.S. C., tithe 21, sees. 71 to 94), entitled ‘‘An act making ap- propriations for the Department of Agriculture for the fiseal ~ year ending June thirtieth, nineteen hundred and eight’’,; the sanitary provisions of which are made applicable to rendvated-butfer factories by act of Aug, 10, 1912 (37 Stat. 273; U.S. C., titles 26, see. 997 - (c), entitled ‘‘ An act making appropriations for the Department of Agriculture for the © fiscal _— ending June 30,1913." — « Sec. 2. Department—The United Stafes Department of Agriculture. ~ Sec. 3. Bureau.—The ancora of Dairy Industry of the United States Department of Agriculture. 7). gg a2 Sec. 4. Chief of Bureau.—The administrative tead of the Bureau of Dairy Industry of the United States cepa 7% of Agriculture. Sec. 5. -Inspector—Any Department officer or employee authorized to perform any duties in connection with the administration of these regulations. See. 6. Person.—Natural persons, individuals, firms, partnerships, corporations, companies, societies, and asso- ciations, and agent, broker, officer, employee, or sear ge thereof. This term shall import both the plural and - singular as the case may be. Sec. 7. Butter.—The food product usually known as butter, and which is made exclusively from milk or cream, or hoth, with or without common salt, and with or without ad- ditional coloring matter. | See. 8. Par. I. Process or renovated butter.—Butter which has: been subjected to any process. by which it is melted, clarified, or refined and made to resemble genuine butter, always excepting adulterated butter .as defined in section 4 of the act of May 9, 1902 (32 Stat. 195); Par. 2. Process or renov ated butter must contain at least 80 per cent by weight of milk fat. ~ Par. 3. The term ‘‘Hrocess butter”’ anf “renov ated but- ter.’ are used synonymously and it is imnfaterial sie a manufacturer designates the product: ‘process butter”’ **renovated butter.’ oo Regulation &—Sanitation and Sanitary Inspection — of Process or Renovated Butter Factories Section 1. For the purpose of. effectively administering’ the Process or Renovated Butter Act, rigid sanitary inspec- tions will be made at such times and as often as necessary of atl process or renovated butter factories and storehouses where process or revovated butter is manufactured, packed, or prepared for market: sentee, Sec. 2. Inspectors shall have access at all tenes by day or night to every part of any process or renovated butter factory or storehouse. Ce) 30 Regulation 4.—Sanitation and Sanitary Inspection of Products of and Material From Which Process or Renovated Butter is Manufactured Section, 1. ‘*Rigid’’ sanitary inspections will also be» made of the character and condition of the materials going into the manufacture of process or renovated butter and of the quantity and quality of process or renovated butter — manufactured. Sec. 2. Due care must be ‘takén to -prevent process or renovated butter, in any stage of its manufacture, from falling on the floor, and in the event of-its having so fallen, — the soiled portion shall not be used. Butterfat collected from floors, drains, or catch basins shall not be used in the manufacture of process or yenovated butter. ‘See. 3. Only good clean, and wholesome water and ice shall be used inthe preparation and manufacture of process . or renovated butter and, whenever There is any doubt re- garding the purity of the water supply, the facts shall be reperted to the Chief of Bureau. | " See. 4. ,Air used in blowing or aerating the oil during the process of | manufacture shall be pure and lean, and shall be taken from the outside of the building; and in order to pre- vent the use of air which is contaminated with dust, smoke, objectionable odors, ete., some approved method of purifica- tion, such as washing or filtering through cotton, shall be prov ided. See. . In manufacturing process or renovated butter all: eream, milk or skim fnilk used must: be pasteurized. Sec. 6. All milk, skim milk, dried milk, dried skim milk, cream, and analogous substancés used in the making of — _ process or renovated butter shall be kept, stored, and bandled in a santtary manner in accordance with accepted dairy practices. See..7. All other materials including. salt and butter «olor enteritig into the manufacture of process or renovated butter shall also be Kept, stored, and handled in a sanitary manner, ate . — Sec. 8. ‘All cartons, parchment wrappers, liners, .pack-° ages, tubs, cans, tins, or other containers used for packing ‘process or rerovAted ‘butter shall be stored? kept, and handled) in a sanitary manner. ee 5. The Marking, Labeling ‘and Branding of Process or Renovated Butter Section 1. (a) Before removal from the factor y each package of process or renovated butter shall have legibly printed or stenciled on one of its sides the legend ‘‘ Process Butter’’ or ‘‘Renovated Butter’’; also the factory number, district, and State, and the net weight, in the following ~ manner: r : Process Butter Factory No. 2, 2d Dist. New York Net Weight, 60 lbs. . See. 9. Inspectors of: the Department of Agriculture, ap- pointed for the purpose by the Secretary of Agriculture, are authorized to enter all ‘factories and storehouses where process or renovated butter ‘is manufactured, packed, or prepared for market for the purpose of examination or in-. _ spection authorized by this act. ~ i See. 10. Periodic inspection of each factory shall be made by such inspectors who will submit a complete report tothe Chief of Bureau. on the sanitation of the premises, the character and condition of the materials used, and the. quan- tity and-quality of process or renov ated butter produced. The sanitary provisions of the Meat Inspection Act shall apply to the sanitary inspection of process or oe . butter, factories. (See act of Aug. 10, 1912 (37 Stat.,.273).) - See. 1. Process or renovated butter containing any * filthy, decomposed, or putrid aninial or vegetable substarice shall be deemed adulterated under the Foods and Drugs Act. Sec. 12. . ‘The Secretary of ‘Agriculture will determine whether or not materials being used in the manufacture of process or renovated butter will-be deleterious to health or : 32 unwholesome ‘in the finished product: If any materials whic h have been so determined to be deliterious to health or unwholesome in the finished product are found to be present ~ in any process’ or renov ated butter, intended for, or in course of, exportatibr or shipment in interstate commegee, such process or rénovated butter will be confiscated, as pro- ' vided for in regulation 7 i, section 4 hereof. Sec. 13. \Original packages of process or renovated butter for export Shall be stamped‘and branded as in the case of. packages for domestic use and may be covered with cloth| jutegor burlap:. The outer covering shall be conspicuously : stenciled with the legend ‘‘ Process Butter’’ or ‘‘ Renovated Butter’’, in boldface gothic letters not less than an inch square, and the words ‘For Export Only”’ on the line be- néath, in similar letters not less than three-eighths of an inch square. : \ ; os See. 14. Process or Oe batter for expért’ shall be examined by inspectors of ° the Department of Agriculture, who will issue a certificate ys to its purity, quality, and. grade and the sufficiency of the stamps and ‘brands. If in- spection is not made before the ‘outer coverings are placed upon the packages, the. exporter may ne required to remove them. (The féresoiia sees. 1 to 14, have ‘been promulgated by. the Commissioner of Internal Revenue and approved by the Secretary of the Treasury and the Seeretary of Agricul--. ~dure,) - Regulation 6.—Reports. \- Section 1, Each process or renovated butter factory shall furnish to authorized inspectors accurate information as to all matters required in making their reports. * Regulation 7.—Process or Renovated Butter Intended for or in the Course of Interstate Commerce or for Export. Section 1. To determine whether or riot materials used in the manufacture of. process or retjovated butter are. deleterious fo health or unwholesome in the finished prod- uct, a sample of such butter shall be taken.. 9 \ See. 2. Such sample shail be draw n in the following man- ner: rm saniple will be-taken from every package of each lot. However, (A) if-a lot includes two or more packages | from one churning, a sample may be taken from one pack- age only; or’ (B) if the separate churnings are not indi- | cated, not less than one sample from each 10 tubs may be taken. Additional samples may be taken if, in the opinion - of the inspector, such action is necessary to obtain repre- sentative samples of such butter. See. 3. The samples thus obtained, properly identified, shall be }ffomptly forwarded to the Department for exam-- ination and chemical analysis. . See. 4. If such butter.is foynd upon such examination and ‘such themical analysis to rt deleterious, to health or un- wholesome, and such butter is intended for exportation or shipment into other States, or is the course of exportation, ‘or in the course of such shipment, the Secretary shall con- tiseate the same to prevent its use for food purposes. The Secretary may release such butter to its owner for indus- trial use, upon such conditions as he deems ecessary to prevent its usé for food purposes, aime \ See. 5. Any butter suspected | of being process or reno- vated, or adulterated, wherever found will be sampled ‘as -herein provided. The samples thus obtained, properly iden- tified, shall be promptly forWarded,to the Department for. .* amination and chemical analysis, together with a 2 e ment outlining the cireumstances of the collection of sanyple. : * See. 6. All process or renovated butter intendéd for ex- portation or in the:course of exportation must. be marked _ as. provided in these regulations. Sections of Alabama Agricultural Code of 1927. 37. Possession: Sale and Delivery of Prohibited Articles. —No person within this State shall manufacture for sale therein, have in possession with intent to sell, offer or ex- pose for sale, sell, or deliver any article of féod or drugs ’ which is adulterated or misbranded within the meaning of this Article. ee — 34 " ‘ - 38. Definition: of Words and Terms.—The word ‘arti: cle’? when referring to food or drugs, is used ) broad. and comprehensive sense and has reference e food product or the drug product in question. The term ‘‘foed’’ as used herein she'l include all articles of food, drink, con- fectionery, or condiment, whether simple, mixed or com- pound, used or intended for use by man or domestic ani- mals. The term ‘‘drug’’ as used hereim shall jnclude all medicines and preparations recognized in the U. S. Phar- macopoeia or Nationat Formulary @or internal or external use and any substance of mixture of substances to be used for the cure, mitigation or preventation of disease in man or domestic animals. The words ‘‘standard of. purity or quality’? herein used shall refer to and include tke stand- ards of purity for food products promulgated by the State Board of Agriculture arid statutes of this State. : 39.’ Adulteration of Food.—An article shall be deemed adulterated in the case of food: First. If any substance has been mixed and packed with it so as to reduce or lower or injuriously affect'its quality or strength. Second. Hf any substance has been substituted wholly orn part for the article. Third, If any valuable constituent of the article . has been- wholly or in part abstracted. Fourth. If it be mixed, colored, powdered, coated, stained, or otherwise treated in a manner whereby damage or inferiority is con- cealed, or in a manner whereby the appearance of said Article, is improved; provided this. shall not apply to the - precoloring or'processing of fruits where such precoloring or processing does not conceal damage or inferiority, Fifth. If it contains any poisonays or deleterious ingredient which may render such article injurious to health; Provided, that when in the.preparation of food products for shipment they are preserved by an external application applied’in such. -a manner that the preservative is necessarily removed mechanically, or by maceration in water, or otherwise,. and ‘directions for the, removal of said preservative shall be _printed on the covering of the package, the provisions of this Article shall be construed as applying only when said . products are ready for-consumption. Sixth. If it consist in-whole or in part of a filthy, deecomposed>or putrid animal - 35 or vegetable substance, or any , portion of-an animal unfit .for food, whether: manufactured or not, or if it is the prod- uct of a diseaséd animal, or one that has died otherwise than by slaughter.. Seventh, If in the course of its prepara- tion of manufacture an ingredient of inferior food value has been substituted in. whole or in part for an ingredient of greater food value. Eighth’ If-it does not conform to the standard of purity or quality established for the‘article. 71. Renovated Butter:—No person shall sell in this State any’ butter that is produced by taking original packing ‘stock butter, or other butter, or both, and melting the same so that the butter fat can be drawn off or extracted, then mixing the said butter fat with skimmed milk, or milk, or —¢ream, or other milk product, and re-churning or re- work- ing the said mixture, or that produced by any process that is commonly known as boiled, process or renovated butter, unless the words ‘renovated butter’? shall be plainly branded with Gothie or, bold faced letters at least three- fourths of an inch i in. height on the top and sides of each... tub, or box,-or pail, or other kind of. case, or package, or on the wrapper of prints or rolls in which it is put up. . If such butter is exposed for sale uncovered or not in a case or package, a placard containing the labels so printed shaH be attached to the mass of butter in such manner as to easily be seen and read by the purchaser. The branding or marking of all packages shall be in the English lan- guage, and in a conspicuous place so as to be easily seen and read by the purchaser. . 72. Commissioner Charged with Enforcement: — The Commissioner atid his duly authorized agents shall be charged with the proper enforcement of all the provisions of this Article. Section 217. As Amended. That Seciien 217 of Article Twenty-three ‘of the ‘Agricultural Code of Alabama,’ of 1927, be and the same is hereby amended so as to read’ as follows: Section 217, Suspension of Sale of Article.—If at any time the Commissioner or his duly authorized agent, shall have reason to believe that: any product or products or article mentioned in the succeeding sections of this Arti- . “ , 36 cle; which are held in possession, delivered, kept, offered or exposed for sale in this State, do not comply with the — requirements of this Article or other Article of this Code. -as. to ingredients, substance, analysis, marking or labelling, . weight or measure of the same, it shall be his duty by “ written order to suspend the sale of the same until fe shall have satisfied himself, or shall be satisfied by an analysis, or otherwise, that such product or article is made-up,.com- - pounded or marked as required by law and rules and regu- lations under authority of law.’ If he shall find that the same-does not comply with such laws and rules and regula- tions, either-before or after, the making of such suspension order, then he is authorized to proceed with regard to the — - same-as provided in the stieceeding Sections of this Article, or he may order in writing the same to be held at his’ dis- position pending the placing of such. product or article:in such eondition as will meet: the requirements of such laws, rules and. regulation, under the supervision and direction of the Commissioner or his duly authorized agent, or at the discretion of the Commissioner. proceeding with regards to the same as provided in the succeeding Séctions of this Article. Provided in case the owner of such product or article denies by written notice to the Commissioner or his agent that the same is not in compliance with the laws, rules or regulations and requests a hearing thereon, the . Commnissioner or his agent shall-as soon as practicable thereafter proceed as provided in the succeeding Sections. of this Article, in order that the-Court may hear and decide ssid issue and proceed as provided for in. the succeeding Sections of this Article. Any person who moves, trans- ports, sells or in any other manner disposes of any product or: article after“such product*has been ordered suspended or held as hereinbefore provided shall be guilty of a mis- ‘demeanor and tipon conviction thereof fined not more than Five Hundred ($500.00) Dollars or imprisoned for not more than six months or both, provided that such product or article may be moved, transported or otherwise disposed of ‘by and in compliance with written order by the Commis- sioner. See. 3 pp. 1103 and 1104 of the Acts of 1935. * 37 218. Proceeding to ConcGémn Seized Article.—Any ferti- lizer, fertilizer materi»l, ground limestone, paint, white lead, linseed oil, turpen ne, kerosene or other ‘illuminating dils, gasoline, benzine or ot#er liquid motor fuels, insecti- cides and fungicides, commercial feeds, agricultural seeds, _ eggs, vinegar, sausage, milk, cream, ice cream or other dairy products, imitation, butter and cheese, or. any article of food or drug which is adulterated misbranded or under - standard, grade, weight or measure claimed within the meaning of any provisron of this Code, and which is manu-_ factured for sale, held in possession with intent. to sell, offered or. exposed for sale, or sold or delivered within this State, shall be liable to be proceeded against in the Circuit Court of the County where the same is found and seized for confiscation by writ of attachment for condemnation. Such writ shall issue upon the sworn complaint of the Commis? sioner or his duly, authorized agent, taken by an officer au- thorized to administer an oath to the effect that such articles or prodnet is adulterated or misbranded or is under stand- ard, grade, weight or measure claimed, as the case may be within the ‘meaning of this Article. The said sworn com- * plaint by said Commissioner or his duly authorized agent, may be amended at any stage of the. proceedings. Said writ shall be returnable in five days to.the Court issuing the writ; such Court shall hear and decide whether the alle- gations of the complaint are true and whether said article or product shall be condemned and confiscated. Such hear- ing shall not be had until five days’ notice of the date. there- for shall have been served on the owner, his agent, or any - Other party having an interest in the same, .except in case defined in subhead (a). Service of a copy of the writ of attachment showing the returns of the attachirig officer shall be sufficient notice for the purposes of this Section. Such writ’ may be executed by the Commissioner, his duly au- thorized agent, orby any sheriff or constable, in the State. Upon the seizure of the ‘article or product described in the affidavit, it shall be the duty of the officer or person execut- ing the writ to return same to the Circuit Court, with his ‘ return thereon, and within five days after its return, the - Court shall make up an issue between the State as Plaintiff and the property seized as defendant. .(a) In the event that ar 38 the owner or his agent tannot be found in this State, then said serviee may be perfected by posting a copy of the writ in a conspicuous place upon the premises where the goods ‘were found and seized, and by mailing a copy thereof by registered mail to the owner, or his agent, to his last known _ address, and this shall be deemed to be sufficient service of the notice required by this Section.. If upon the return ‘day-of such writ of attachment, the owner of the article or product, his agent or other party having an interest in same thus notified fails to appear and show cause why said goods ‘should not be condemned, judgment of condemnation and confiscation shall, upon such default, be rendered by the Court on. the basis of said complaint. If such owner or agent or other party having an interest in such article or product shall on of before the return day of the writ ef at- tachment, or upon such other day as the Court upon appli- eation of such party may determine, shall file an answer upon. oath denying the allegations of -adulteration, mis-° branding, or under standard, grade, weight or measure, as_ the case may be, in’said complaint, the issue thus raised may be determined by the Court after hearing all the evi- dence offered by or in behalf of all the parties to the pro- ceedings. Any such party may demand a jury trial of any issue of fact to be determined in the proceedings instituted hereunder, and in case a jury trial. is demanded, the judg- mient rendered by the Court shall be in accordance with the facts as found by such jury ;. provided, however, that the verdict of the jury may be set aside by the Court where ‘manifestly contrary tothe evidence of law. If a judgment of condemnation and confiscation is rendered against such article or product as being .adulterated, misbranded, or under standard, grade, weight or measure, within the mean- -ing of this Article, the same’ shall be disposed of by destrue- tion or sale, as the Court may direct, and the proceeds thereof, if sold, less the lega) costs and charges, shall be _ paid into the Agricultural Fund, but such goods shall not be sold contrary to the provisions of this Article; provided, however, that upon the paymerit of. the costs of such attach- - ment proceedings and the execution and delivery of a good - and sufficient bond to the effect that such article shall not be sold or otherwise disposed of contrary to the provisions . 39 of this Article, the Court may be ordered directthat such article or product shall be delivered to the ownér ‘thereof. 219. Report of Violations to Solicitor. If it shall appear from examination or analysis of fertili#r, fertilizer mate- rial, ground limestone, paint, white lead, linseed oil, tur- péntine, kerosene or other illuminating oils, gasoline—ben- zene or other liquid motor fuels, insecticides and fungicides, commercial feeds, agricultural seed, eggs, vinegar, sau- sage, milk, cream, ice cream or other dairy products, imi- tation butter and cheese, or ahy articles of food or drugs that any of the provisions of this ‘Article have been vio- lated, the Commissioner shall certify or cause to be certi- fied the facts to the county or State solicitor, with a copy of the results of the analysis or examination, and said county or State solicitor upon receipt of this information shall cause appropriate proceedings to be instituted in the proper Court, for the imposition of fines and penalties herein provided. | (2927) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0500%3A02. Public record. Not legal advice.