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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 case ment 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 [2] We are satisfied that the statute as "For Coffee and Cereals For Baking and Cook- construed by us is not invalidated by the ing." By section 12725 of the General Code of Fourteenth Amendment. The purposes to seOhio "whoever manufactures, sells, exchang- cure a certain minimum of nutritive elements es, exposes or offers for sale or exchange, and to prevent fraud may be carried out in condensed milk unless it has been made from this way even though condensed skimmed * unadulterated *** milk, from which | milk and Hebe both should be admitted to be the cream has not been removed and in which wholesome. The power of the legislature "is 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.

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 super

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.

[1] It is argued that, as Hebe is a wholesome or not unwholesome product, the stat-seded by the verdict of a jury," or, we may utes 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

[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

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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

cans

The statute defines a crime, and the question is not different than it would be if the are brought from Wisconsin, where plaintiffs were indicted for its violation. Hebe is manufactured, into Ohio in fiber cas-While all statutes are to receive a reasonable es containing forty-eight one-pound cans or interpretation, those of a criminal nature are ninety-six six-ounce cans. The cases are the not to be extended by implication. Condensoriginal 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 reads:

"Whoever manufactures, sells, exchanges, ex poses 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

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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 removed, 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 meaning of the act. It is not evaporated 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 label does not describe condensed milk, and he who reads it cannot be misled to the belief that he is buying that article. It is shown to be wholesome and clean and free from im-. purities.

*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

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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

an act or two of this sort by fraudulent dealers 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 prod

uct was a compound and defined its parts. The label so truly expresses just what the substance is, that it is difficult to believe that

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.

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.

Considering that the land was so exempt, the land, in subsequent hands, the suit was in other words, that the exemption went with commenced by plaintiffs in error, here called plaintiffs, to restrain the collection of taxes 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

served.

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

ed or hereafter assessed against the lots for

homestead of Eliza J. Murphy, a Creek Indian the reason that they had been a part of the allottee and a citizen and member of the Creek 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 all other grounds of relief than that the taxes "were illegal and void because prohibited by the contract, Constitution, laws and treaties of the United States."

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

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

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.

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,

In Error to the Supreme Court of the State and that of June 30, 1902 (31 Stat. 861, c. 676;

of Oklahoma.

32 Stat. 500, c. 1323). The latter act is known 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

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

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for 5 years, except with the approval of the that by it "the free right of alienation was Secretary of the Interior. And the section granted," and as the plaintiffs "took their requires that each citizen of the tribe "shall title to the lots they are seeking to exempt select from his allotment forty acres of land, from taxation by virtue of the terms of this or a quarter of a quarter section, as a home- act, they cannot go behind it. But for that stead, which shall be and remain nontaxable, act, they could not have purchased the lands inalienable, and free from any incumbrance in question. They took subject to all the whatever for twenty-one years from the date of the deed therefor, and a separate deed shall be issued to each allottee for his homestead, in which this condition shall appear." A deed was made to Eliza J. Murphy on April 20, 1903, and, following the statute, expressed the nontaxability and inalienability and freedom from incumbrance for the designated period of exemption.

There were provisions in the Enabling Act of the state under which its Constitution was drawn which preserved the rights of persons and property of the Indians so long as such rights should remain unextinguished and provided that nothing in the Constitution should be construed to limit or affect the authority of the United States respect*ing the Indians, their lands, their property or their rights. And the Constitution exempted from taxation such property as might be exempt by reason of treaty stipulations existing between the Indians and the United States or by federal laws during the force and effect of such treaties and laws. Plaintiffs rely on these provisions and the deed to Eliza J. Murphy for their contentions, fortified, they assert, by decisions of this court.

To the contentions defendant opposes the Act of Congress of May 27, 1908 (35 Stat. 312, c. 199, § 4), which removed the existing restrictions on the homestead allotment, thereby enabling the allottee to sell the land, and which provides 66 * * that all land from which restrictions have been or shall be removed shall be subject to taxation and all other civil burdens as though it were property of other citizens than allottees of the Five Civilized Tribes."

The contention based on this act is that by the Creek Supplemental Agreement, supra, the nontaxability and inalienability and freedom from incumbrance of the land were correlatives and to a certain extent, therefore, interdependent, a combination of limitations and rights, and as they existed together they disappeared together. And their coexistence depended upon the Indian and because it did there was no limitation or infringement of rights or impairment of contract. Plaintiffs, It is further contended, are in no better situation, as they only got title by virtue of the act of May 27, 1908, removing the restriction upon alienation and they cannot avail themselves of it and repudiate it at the same time. The Supreme Court of the state yielded to these contentions and gave special effect to the Act of 1908 which it considered "a comprehensive revision of the laws relating to the Five Civilized Tribes and their lands," 39 SUP.CT.-9

conditions of that act, and they cannot now claim the benefits of the exemption from taxation granted to the allottee by the Creek Supplemental Agreement. Goudy v. Meath, 203 U. S. 146 [27 Sup. Ct. 48, 51 L. Ed. 130]."

In resistance to the contentions of the defendant and the conclusions of the court, plaintiffs adduce Choate v. Trapp, 224 U. S. 665, 32 Sup. Ct. 565, 56 L. Ed. 941, and certain cases decided upon its authority, that is, Gleason v. Wood, 224 U. S. 679, 32 Sup. Ct. 571, 56 L. Ed. 947; English v. Richardson, 224 U. S. 680, 32 Sup. Ct. 571, 56 L. Ed. 949.

Choate v. Trapp has not the extent assigned to it. In that case the state of Oklahoma undertook to tax lands which were yet in the hands of the Indians, asserting the right simply because of the removal of the restrictions upon alienation by the Act of May 27, 1908, supra. The reply of this court was that the law (Curtis Act of June 28, 1898, 30 Stat. 505, c. 517), as modified by the Act of July 1, 1902 (32 Stat. 641, c. 1362), provided that all of the lands allotted should "be nontaxable while the title remained in the original allottee." There was no question in the case, and could not be, of the effect of alienationan exercise of the right conferred by the Act of May 27, 1908, and the consequence of such exercise. It is true it was said that "exemption and nonalienability were two separate and distinct subjects" and that "one confer. red a right and the other imposed a limitation." The distinction was apt for that case. The state contended that there was no tax exemption but that that provision was only directed against the absolute alienation of the land. This was, in effect, a contention that the power of alienation unexercised, was the same as the power exercised, and to correct this confusion it was declared that the provision exempting from taxation was a property right. But it was a property right in the Indian, preserved to him not only *for his own interest but in the interest of the policy of the United States regarding him. Kansas Indians, 5 Wall. 737, 18 L. Ed. 667; United States v. Rickert, 188 U. S. 432, 23 Sup. Ct. 478, 47 L. Ed. 532; cases cited in Choate v. Trapp. At first his interest was put beyond his control; by the act of May 27, 1908, it was committed to his control, this also satisfying the policy of the United States under the changed conditions. It invades no right of the Indian, therefore, to make the alienation of the land a surrender of the exemption from taxation, and we concur in the conclusion of the Supreme Court of the state that plaintiffs, having taken title under the

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act, cannot repudiate its conditions and its | cific Railway Company, subjecting lands unsold manifest policy. New Jersey v. Wilson, 7 within three years to settlement and pre-empCranch, 164, 3 L. Ed. 303, is not in point. We tion, at certain price, are not the conditions of are not dealing with rights in the abstract; the grant to the Southern Pacific Railroad by we are dealing with rights under special con- "with the same rights, grants and privileges, section 23, authorizing it to build a railroad ditions and as determined by acts of the par- and subject to the same limitations, restrictions ties under a law of Congress which was and conditions as were granted" to it "by Act availed of by the Indian and a grantee of July 27, 1866." the Indian, and which, therefore, bound them by its conditions and subjected the land in the hands of the grantee to the usual burdens of government. It is an error to suppose that this takes anything of value from the Indi

an.

We may here invoke the commonplace, for it is commonplace to say that we only know the value of a thing by that which makes its worth. Under the restriction against the alienation the land had no worth but in its uses; the restriction removed, it had the added worth of exchangeability for other things—a power of sale was conferred. To say there was no value in that power is to contradict the examples and estimations of the world. It may be that if exemption from taxation went with the land it might become an element in the price (worth in money) which the Indian might ask and receive, but that was not of concern to the purpose of the law, which was to give to the Indian all of the attributes of ownership, to give him a mastery of his property equal to that of other owners of property, and nothing more, and this consummated the new policy of Congress.

*Further discussion we deem unnecessary, but we may observe that in Tiger v. Western Investment Co., 221 U. S. 286, 310, 31 Sup. Ct. 578, 55 L. Ed. 738, and in Williams v. Johnson, 239 U. S. 414, 420, 421, 36 Sup. Ct. 150, 60 L. Ed. 358, a question was intimated whether a grantee of an Indian could avail himself of the Indian's right, if he had any, to assert the unconstitutionality of an act of Congress. Opinion, however, was reserved, and we reserve it here, and rest the case on the grounds we have discussed. Judgment affirmed.

(248 U. S. 409)

FULLINWIDER v. SOUTHERN PAC. R. CO. OF CALIFORNIA et al.

Appeal from the United States Circuit Court of Appeals for the Ninth Circuit.

Suit by George S. Fullinwider against the Southern Pacific Railroad Company of California and others. Decree dismissing the bill was affirmed by the Circuit Court of Appeals (229 Fed. 717, 144 C. C. A. 127), and complainant appeals. Affirmed.

Mr. Fred Beall, of Washington, D. C., for appellant.

Messrs. Charles R. Lewers and William F.

Herrin, both of San Francisco, Cal., for ap pellee.

Mr. Justice MCKENNA delivered the opinion of the Court.

Appeal from a decree of the Circuit Court of Appeals affirming a decree of the District California dismissing bill upon demurrer brought by appellant (we shall refer to him

Court in and for the Southern District of

to compel the company to convey to him a as complainant) against the railroad company certain one-half section of land within the limits of the congressional grant to the company made by the Act of March 3, 1871, c. 122, 16 Stat. 573.

The bill alleged the incorporation of the company and that of various corporations impleaded with it, and the following facts: March 3, 1871, Congress made a grant to the Texas Pacific Railroad Company of certain sections of the public lands and provided that the lands which should not be sold or otherwise disposed of within three years after the completion of the entire road should be subject to settlement and pre-emption like other lands at a price to be fixed by and paid to the company at not exceeding an average of $2.50 per acre for all of the lands granted.

Section 23 of the act made a further grant of certain sections of the public lands in the State of California to the Southern Pacific Railroad and contained the provision

(Submitted Dec. 20, 1918. Decided Jan. 13, that the company should construct a line of

1. STATUTES

1919.) No. 121.

184

CONSTRUCTION

POLICY OF LAWMAKERS.

railroad from and to certain named points, "with the same rights, grants, and privileges and subject to the same limitations, restrictions, and conditions as were granted to said Southern Pacific Railroad Company of Cali

Though an existing policy of the law-fornia by the Act of July 27, 1866." makers may be used to resolve an uncertainty of a law, it cannot be a substitute for a law.

RAILROAD LAND

2. PUBLIC LANDS 70
GRANTS CONSTRUCTION-CONDITIONS.

The conditions of Act March 3, 1871, § 9, on which lands were granted to the Texas Pa

The road was completed between the designated points more than ten years prior to the 1st of December, 1913.

Among the lands which have not been sold or disposed of that are within the limits of the grant are those described in the bill, and

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

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