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any adverse claim. Neither did he acquire | to restrain Weigle, the Dairy and Food Comany right by his attempted settlement after missioner of Wisconsin, from enforcing certhat order was made. The order was no tain laws of the State, especially Statutes less effective against that mode of initiating of 1913, § 4601g. That section makes it una claim than against the other. Its purpose lawful to sell any article of food that conwas to preserve the status quo fending final | tains benzoic acid or benzoates, with qualifiaction on the Rule entry. A settlement in cations not material here. The plaintiff opposition to such an order is nothing short makes such articles from fruit, and adds of a trespass and confers no right under the benzoate of soda as a preservative. It put public land laws. Lyle v. Patterson, 228 U. them up in glass bottles and jars properly S. 211, 216, 33 Sup. Ct. 480, 57 L. Ed. 804. labelled under the Food and Drugs Act (June 30, 1906, c. 3915, 34 Stat. 768 [Comp. St. §§ 8717-8728]) packs the bottles and jars' in wooden cases containing a number of the same, and ships the cases from its factory in New York to customers in Wisconsin among others. Of course the single bottles are sold in the retail trade, and their contents are served to guests in restaurants and hotels. The defendant disavowed any contention that the state laws affected or purported to affect sales by the importer in the unbroken wooden packages containing the bottles and the decree *treated that subject as taken out of the case. But the bill went farther and setting up a decision, incorporated in a regulation under the Food and Drugs Act, that benzoate of soda is not injurious to health and that objection would not be raised to it under the Act if each container should be plainly labelled, contended that under the Food and Drugs Act and the Com.. merce Clause of the Constitution, the Wisconsin law was invalid even as applied to domestic retail sales of single bottles or the contents of single bottles of the plaintiff's goods. The defendant stood on a motion to

dismiss and the District Court made a decree following the prayer of the bill. The defendant appealed.

[4] It is a familiar rule that to succeed in such a suit the plaintiff "must show a better right to the land than the patentee, such as in law should have been respected by the officers of the land department, and being respected, would have given him the patent. It is not sufficient to show that the patentee ought not to have received the patent." Sparks v. Pierce, 115 U. S. 408, 413, 6 Sup. Ct. 102, 105 (29 L. Ed. 428); Smelting Co. v. Kemp, 104 U. S. 636, 647, 26 L. Ed. 875; Bohall v. Dilla, 114 U. S. 47, 50, 5 Sup. Ct. 782, 29 L. Ed. 61; Lee v. Johnson, 116 U. S. 48, 50, 6 Sup. Ct. 249, 29 L. Ed. 570; Duluth & Iron Range R. R. Co. v. Roy, 173 U. S. 587, 590, 19 Sup. Ct. 549, 43 L. Ed. 820; Johnson v. Riddle, 240 U. S. 467, 481, 36 Sup. Ct. 393, 60 L. Ed. 752; Anicker v. Gunsburg, 246 U. S. 110, 117, 38 Sup. Ct. 228, 62 L. Ed. 603.

Decree affirmed.

(248 U. S. 285)

WEIGLE v. CURTICE BROS. CO. (Argued Dec. 17, 1918. Decided Jan. 7, 1919.) No. 83.


The Food and Drugs Act (Comp. St. §§ 8717-8728) does not affect the question when interstate commerce in an article of food satisfying that act ceases, and the article becomes subject to the laws of the state, into which it is brought, prohibiting its sale.

The argument in support of the decree con

tends in various forms that the sale of the individual bottles when removed from the original package after entering the State, still is a part of commerce among the States, since the Act of Congress as to misbranding applies to them. But the Food and Drugs


Appeal from the District Court of the Unit- Act does not change or purport to change the ed States for the Western District of Wiscon-moment at which an object ceases to move in interstate commerce. It imposes an obligation to label the bottles severally, although contained in one original package, as of course it may. Seven Cases of Eckman's Alterative v. United States, 239 U. S. 510, 515, 516, 36 Sup. Ct. 190, 60 L. Ed. 411, L. R. A. 1916D, 164. It provides for seizure and condemnation of misbranded or adulterated articles that have been transported from one State to another, although the transit is at an end, while the articles remain unsold or in original unbroken packages, as again

*Mr. Justice HOLMES delivered the opin- it may. There is no reason why a lien ex ion of the Court. delicto should be lost by the end of the journey in which the wrong was done. The two things have no relation to each other. HipoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

This is a bill in equity brought by Curtice Brothers Company, a New York corporation,

Suit by the Curtice Bros. Company against George J. Weigle. Decree for plaintiff, and defendant appeals. Reversed.

Messrs. Spencer Haven, Atty. Gen., Walter H. Bender, Deputy Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for appel


Mr. H. O. Fairchild, of Green Bay, Wis., for appellee.






lite Egg Co. v. United States, 220 U. S. 45, [ated milk from which the cream has not been 57, 58, 31 Sup. Ct. 364, 55 L. Ed. 364. Final- removed, is not limited to sales of condensed ly the duty to retain the label upon the sin- milk as such, under that name, but applies to a gle bottles does not disappear at once. condensed skimmed milk compounded with vegereasons stated in McDermott v. Wisconsin, with a label giving its ingredients. table fat, and sold under a fanciful trade-name, 228 U. S. 115, 33 Sup. Ct. 431, 57 L. Ed. 754, 47 L. R. A. (N. S.) 984, Ann. Cas. 1915A, 39, if the State could require the label to be removed while the bottles remained in the importer's hands unsold it could *interfere with the means reasonably adopted by Congress to make its regulations obeyed. But all this has nothing to do with the question when interstate commerce is over and the articles carried in it have come under the general power of the State. The law upon that point has undergone no change.

Gen. Code Ohio, § 12725, penalizing sale of ed full cream milk, does not, in case of wholecondensed milk, unless made from unadulteratsome compound of condensed skimmed milk, contravene Const. U. S. Amend. 14.





The Food and Drugs Act (Comp. St. §§. 8617-8728) does not prevent state regulation of domestic retail sales of food shipped in from another state. 5. COMMERCE 60(3)



Indirect effect on interstate commerce of Gen. Code Ohio, § 12725, penalizing sale of condensed milk, unless made from full cream milk, does not invalidate the act.

The "original package" of food in cans, shipped in interstate commerce in fiber cases The Food and Drugs Act indicates its in-containing a number of cans, is not the intent to respect the recognized line of distinc-dividual can, but the case. tion between domestic and interstate com- [Ed. Note. For other definitions, see Words merce too clearly to need argument or an and Phrases, First and Second Series, Original examination of its language. It naturally Package.] would, as the distinction is constitutional. The fact that a food or drug might be condemned by Congress if it passed from State to State, does not carry an immunity of foods or drugs, making the same passage, that it does not condemn. Neither the silence of Congress nor the decisions of officers of the United States have any authority beyond the domain established by the Constitution. Rast v. Van Deman & Lewis Co., 240 U. S. 342, 362, 36 Sup. Ct. 370, 60 L. Ed. 679, L. R. A. 1917A, 421, Ann. Cas. 1917B, 455. When objects of commerce get within the sphere of State legislation the State may exercise its independent judgment and prohibit what Congress did not see fit to forbid. When they get within that sphere is determined, as we have said, by the old long-established criteria. The Food and Drugs Act does not interfere with State regulation of selling at retail. Armour & Co. v. North Dakota, 240 U. S. 510, 517, 36 Sup. Ct. 440, 60 L. Ed. 771, Ann. Cas. 1916D, 548; McDermott V. Wisconsin, 228 U. S. 115, 131, 33 Sup. Ct. 43 57 L. Ed. 754, 47 L. R. A. (N. S.) 984, Ann. Cas. 1915A, 39. Such regulation is not an attempt to supplement the action of Congress in interstate commerce but the exercise of an authority outside of that commerce that always has remained in the States. Decree reversed.

(248 U. S. 297)

Mr. Justice Day, Mr. Justice Van Devanter, and Mr. Justice Brandeis, dissenting.

Appeal from the District Court of the United States for the Southern District of Ohio.

Suit by the Hebe Company and the Carnation Milk Products Company against Norman E. Shaw, Secretary of Agriculture of Ohio, and another. Bill dismissed, and plaintiffs appeal. Affirmed.

Mr. Charles E. Hughes, of New York City, for appellants.

Messrs. Louis D. Johnson, of Urbana, Ohio, and Charles J. Pretzman, of Columbus, Ohio, for appellees.

*Mr. Justice HOLMES delivered the opinion

HEBE CO. et al. v. SHAW, Secretary of Ag- of the Court. riculture of Ohio et al.

This is a bill in equity brought to restrain prosecutions threatened against the plaintiffs

(Argued Dec. 11 and 12, 1918. Decided Jan. 7, and their customers for selling a food product

1919.) No. 664.


of the plaintiffs called Hebe, the bill being based upon the destruction of the plaintiffs' "CON- business which it is alleged will ensue. The prosecutions are threatened mainly or wholly under certain statutes of Ohio which, the plaintiffs argue, do not bear the construc

Gen. Code Ohio, § 12725, penalizing sale of condensed milk, unless made from unadulter

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes




tion put upon them by the defendants, or, if (densed skimmed milk is forbidden out and only they do, are bad under the Fourteenth | out. But if so the statute cannot be avoidAmendment to the Constitution of the United ed by adding a small amount of cocoa nut oil. States and the Commerce Clause. Article 1, We may assume that the product is improv§ 8. A similar case was heard before three ed by the addition, but the body of it still is judges. Hebe Co. v. Calvert (D. C.) 246 Fed. condensed skimmed milk, and this improve711. By agreement the evidence in that casement consists merely in making the cheaper was made the evidence in this. The District and forbidden substance more like the dearer Judge adopted the opinion of the three and and better one and thus at the same time dismissed the bill. more available for a fraudulent substitute. It is true that so far as the question of fraud is concerned the label on the plaintiffs' cans tells the truth-but the consumer in many cases never sees it. Moreover when the label tells the public to use Hebe for purposes to which condensed milk is applied and states of what Hebe is made, it more than half recognizes the plain fact that Hebe is nothing but condensed milk of a cheaper sort.

Hebe is skimmed milk condensed by evaporation to which six per cent. of cocoa nut oil is added by a process that combines the two. It is sold in tin cans containing *one pound or six ounces of the product and labelled "Hebe A Compound of Evaporated Skimmed Milk and Vegetable Fat Contains 6% Vegetable Fat, 24% Total Solids," with the place of manufacture and address of the Hebe Company. On the side of the label are the words "For Coffee and Cereals For Baking and Cooking." By section 12725 of the General Code of Ohio "whoever manufactures, sells, exchanges, exposes or offers for sale or exchange, condensed milk unless it has been made from unadulterated *** milk, from which the cream has not been removed and in which the proportion of milk solids shall be the equivalent of twelve per cent. of milk solids in crude milk, twenty-five per cent. of such solids being fat, and unless the package, can or vessel containing it is distinctly labelled, stamped or marked with its true name, brand, and by whom and under what name made," is subject to a fine, and for each subsequent offense to a fine and imprisonment. The first question is whether Hebe falls within these words.

[1] It is argued that, as Hebe is a wholesome or not unwholesome product, the statutes should not be construed to prohibit it if such a construction can be avoided, and that it can be avoided by confining the prohibition to sales of condensed milk as such, under the name of condensed milk, as was held with regard to ice cream in Hutchinson Ice Cream Company v. Iowa, 242 U. S. 153, 37 Sup. Ct. 28, 61 L. Ed. 217, Ann. Cas. 1917B, 643. But the statute could not direct itself to the product as distinguished from the name more clearly than it does. You are not to make a certain article, whatever you call it except from certain materials-the object plainly being to secure the presence of the nutritious elements mentioned in the act, and to save the public from the fraudulent substitution of an inferior product that would be hard to detect. Savage v. Jones, 225 U. S. 501, 524, 32 Sup. Ct. 715, 56 L. Ed. 1182. By section 5778 a food is adulterated if a valuable ingredient has been wholly or in part abstracted from it, and the effect of this provision upon skimmed milk is qualified only by section 12720 which states the stringent terms upon which alone that substance can be sold. It seems entirely clear that con

[2] We are satisfied that the statute as construed by us is not invalidated by the Fourteenth Amendment. The purposes to secure a certain minimum of nutritive elements and to prevent fraud may be carried out in this way even though condensed skimmed milk and Hebe both should be admitted to be wholesome. The power of the legislature "is not to be denied simply because some innocent articles or transactions may be found within the proscribed class. The inquiry must be whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat." Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 204, 33 Sup. Ct. 44, 47 (57 L. Ed. 84). If the character or effect of the article as intended to be used "be debatable, the legislature is entitled to its own judgment, and that judgment is not to be superseded by the verdict of a jury," or, we may add, by the personal opinion of judges, “upon the issue which the legislature has decided." Price v. Illinois, 238 U. S. *446, 452, 35 Sup. Ct. 892, 894 (59 L. Ed. 1400); Rast v. Van Deman & Lewis Co., 240 U. S. 342, 357, 36 Sup. Ct. 370, 60 L. Ed. 679, L. R. A. 1917A, 421, Ann. Cas. 1917B, 455. The answer to the inquiry is that the provisions are of a kind familiar to legislation and often sustained and that it is impossible for this Court to say that they might not be believed to be necessary in order to accomplish the desired ends. See further Atlantic Coast Line R. R. Co. v. Georgia, 234 U. S. 280, 288, 34 Sup. Ct. 829, 58 L. Ed. 1312.

[3-5] With regard to the other objection urged, the statute "was not aimed at interstate commerce but without discrimination sought to promote fair dealing in the described articles of food." Savage v. Jones, 225 U. S. 501, 524, 32 Sup. Ct. 715, 56 L. Ed. 1182. The defendants disclaim any intention to interfere with the sale of the goods in the original packages by the consignee, and if the record is thought to raise a doubt with regard to that it may be met by a modifica



While all statutes are to receive a reasonable

interpretation, those of a criminal nature are not to be extended by implication. Condens

tion of the decree so as to leave it without (less than one hundred dollars nor more than prejudice in case prosecutions should be five hundred dollars and imprisoned not less threatened or attempted for such sales. than ten days nor more than ninety days." Some question was raised as to whether the individual can was not to be regarded as the original package. But it appears that the are brought from Wisconsin, where Hebe is manufactured, into Ohio in fiber cases containing forty-eight one-pound cans or ninety-six six-ounce cans. The cases are the original packages so far as the present ques-ed milk when this statute was passed was tion is concerned, Austin v. Tennessee, 179 well known to be milk from which a considerU. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 224, al-able portion of water had been evaporated. though no doubt, as shown by McDermott v. *Condensed milk to be what its name imports Wisconsin, 228 U. S. 115, 136, 33 Sup. Ct. 431, must be made from whole milk. If not so 57 L. Ed. 754, 47 L. R. A. (N. S.) 984, Ann. manufactured, the legislature has the right Cas. 1915A, 39, the power of Congress to to provide that the public shall be advised of regulate interstate commerce would extend the treatment to which it has been subjected. for some purposes to the cans. The Food and Skimmed milk, conspicuously labeled as such, Drugs Act of June 30, 1906, c. 3915, 34 Stat. may be sold in the State of Ohio. Section 768 (Comp. St. §§ 8717-8728) dealt with in 12720, Gen. Code Ohio. The legislature has McDermott v. Wisconsin, does not prevent shown no intention to condemn it as an unstate regulation of domestic retail sales. wholesome article of food. It is not less so Armour & Co. v. North Dakota, 240 U. S. 510, when condensed. 517, 36 Sup. Ct. 440, 60 L. Ed. 771, Ann. Cas. 1916D, 548, Weigle v. Curtice Brothers Co., | 248 U. S. 285, 39 Sup. Ct. 124, 63 L. Ed. 242, decided today. Indirect effects upon interstate commerce do not invalidate the act. Sligh v. Kirkwood, 237 U. S. 52, 61, 35 Sup. Ct. 501, 59 L. Ed. 835; Savage v. Jones, 225 U. S. 501, 525, 32 Sup. Ct. 715, 56 L. Ed. 1182. Decree affirmed.

*Mr. Justice DAY, with whom concurred Mr. Justice VAN DEVANTER and Mr. Justice BRANDEIS, dissenting.

The right to prohibit the sale of plaintiffs' product in the state of Ohio is mainly rested upon section 12725 of the General Code of that state. In the absence of a construction by the Supreme Court of Ohio, we must interpret the statute ourselves. We have been unable to come to the conclusion, reached by the majority of the court, as to the meaning of the law. As the result of this decision is to exclude from sale in the state of Ohio, a food product not of itself harmful, but shown to be wholesome, we shall briefly state the reasons which impel the dissent.

Section 12725 of the General Code of Ohio


"Whoever manufactures, sells, exchanges, exposes or offers for sale or exchange, condensed milk unless it has been made from pure, clean, fresh, healthy, unadulterated and wholesome milk, from which the cream has not been removed and in which the proportion of milk solids shall be the equivalent of twelve per cent. of milk solids in crude milk twenty-five per cent. of such solids being fat, and unless the package, can or vessel containing it is distinctly labeled, stamped or marked with its true name, brand, and by whom and under what name made, shall be fined not less than fifty dollars nor more than two hundred dollars, and, for each subsequent offense, shall be fined not

The statute defines a crime, and the question is not different than it would be if the plaintiffs were indicted for its violation.

We are unable to find in these statutes anything which prohibits the sale of condensed, skimmed milk when it is a part of a wholesome compound sold for what it really is, and distinctly labeled as such. In the section under consideration, 12725, the Ohio legislature was not dealing with compounds. It was undertaking to assure the purity of a wellknown article of food-condensed milk. The statute provides that such condensed milk so offered for sale shall be made of pure, clean, fresh, unadulterated and wholesome

milk from which the cream has not been re

moved, and that the can containing it shall
be distinctly labeled with its true name.
With deference to the contrary view, it seems
to us that reading the statute in the light of
its purpose to require condensed milk to be
made from whole milk and sold for what it
is, the necessary result is to exclude the
plaintiffs' compound from the words and
It is not evaporated
meaning of the act.
milk, and makes no pretense of being such.
It is a food compound consisting in part of
condensed skimmed milk. It is so labeled in
unmistakable words in large print on the can
containing it. The label states with all the
emphasis which large type can give that it is
a compound made of "evaporated skimmed
milk and vegetable fat." The proportions of
the ingredients are stated. The striking la-
bel does not describe condensed milk, and he
who reads it cannot be misled to the belief
It is shown to
that he is buying that article.
be wholesome and clean and free from im-.

*It seems to us that the case is within the

principle stated by this court in Hutchinson Ice Cream Co. v. Iowa, 242 U. S. 153, 37 Sup. Ct. 28, 61 L. Ed. 217, Ann. Cas. 1917B, 643, in which a statute forbidding the sale as ice cream of an article not containing a certain

portion of butter fat was sustained as within of Muskogee County, Okl., and others. Judgthe police power of the state. The statute ment for plaintiffs was reversed by the Suwas construed by the highest court of the preme Court of Oklahoma (159 Pac. 470), and state where it was produced to include arti- plaintiffs bring error. Affirmed. cles sold as ice cream; thus interpreted, we held it to be a constitutional exercise of the police power of the state. So here, we think

the legislature of Ohio intended to deal with condensed milk when sold as such, and to make it an offense to sell it when of less than the required purity.

It may be conceded that the statute would include such an article when not up to the standard, but sold for the real thing. The public is entitled to protection from deception as well as from impurity. This principle seems to have controlled the decision of the District Court. The record discloses that in one or more instances dealers had supplied this article as condensed milk. But

Considering that the land was so exempt,

an act or two of this sort by fraudulent deal-in other words, that the exemption went with the land, in subsequent hands, the suit was commenced by plaintiffs in error, here called plaintiffs, to restrain the collection of taxes

ers ought not to be the test of the plaintiffs' right, or control the meaning of this statute. If such were the case, very few food compounds would escape condemnation. The few instances of deception shown had not the sanction of plaintiffs' authority. Such acts did violence to the plain terms in which the plaintiffs' printed label disclosed that its product was a compound and defined its parts. The label so truly expresses just what the substance is, that it is difficult to believe that

upon part of the land which had become lots in the town of Muskogee. There was a demurrer to the petition by defendant in error, of counsel was submitted solely on the queshere called defendant, which by stipulation tion of exemption, other questions being re

any purchaser could be deceived into buying

the article for something other than it is.

The interdiction of the State Board is not against the sale of this article as condensed milk, but of all sales of this compound in the state of Ohio. In our view this criminal stat

ute, rightly interpreted, does not embrace the plaintiffs' product, and that reason alone should be sufficient to warrant a reversal of

the decree.

(248 U. S. 399)

FINK et al. v. BOARD OF COM'RS OF MUSKOGEE COUNTY, OKL., et al. (Argued Dec. 13 and 16, 1918. Decided Jan. 13, 1919.) No. 43.


A homestead allotment to a Creek Indian under Act June 30, 1902, providing it should remain nontaxable, inalienable, and free from incumbrance for 21 years from deed thereof, when made alienable by Act May 27, 1908, § 4,

was taxable in the hands of an alienee.

w. O. Cromwell and George W. Buckner, Messrs. Charles B. Rogers, of Tulsa, Okl., both of Enid, Okl., and J. D. Simms, of Muskogee, Okl., for plaintiffs in error.

Mr. S. P. Freeling, of Oklahoma City, Okl., for defendants in error.

*Mr. Justice MCKENNA 'delivered the opinion of the Court.

lotted to an Indian of the Creek Tribe exempt The question in the case is whether land alfrom taxation in the hands of the Indian is exempt in the hands of a purchaser from the Indian.


The stipulation recited that plaintiffs sought an injunction against the taxes assess

ed or hereafter assessed against the lots for the reason that they had been a part of the allottee and a citizen and member of the Creek homestead of Eliza J. Murphy, a Creek Indian Tribe or Nation and for that reason the lots were exempt from taxation for the period of 21 years from the date of the deed or patent.

The District Court overruled the demurrer

and enjoined the collection of the taxes. The judgment was reversed by the Supreme Court (Board of County Com'rs of Muskogee County v. Fink, 159 Pac. 470), and the plaintiffs then *dismissed their petition as to ali other grounds of relief than that the taxes "were illegal and void because prohibited by the contract, Constitution, laws and trea

ties of the United States."

A petition for rehearing was denied and a judgment entered sustaining the demurrer

181-INDIAN LANDS-EFFECT OF and dismissing the petition.

The elements of decision are certain acts of Congress, the deed to Eliza J. Murphy, her deed to plaintiffs, and certain provisions in the Constitution of the state of Oklahoma.

The lands of which the lots involved were

a part were allotted to Eliza J. Murphy by virtue of the act of Congress of March 1, 1901, and that of June 30, 1902 (31 Stat. 861, c. 676;

In Error to the Supreme Court of the State 32 Stat. 500, c. 1323). The latter act is known

of Oklahoma.

as the Creek Supplemental Agreement and Suit by D. N. Fink and another, trustees, provides (section 16) that an allotment shall against the Board of County Commissioners not be incumbered or subject to forced sale

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