The object of the Pure Food and Drug Act of June 30, 1906, c.
3915, 34 Stat. 768, is to keep adulterated articles out of the
channels of interstate commerce, or, if they enter such commerce,
to condemn them while in transit, or in original or unbroken
packages after reaching destination, and the provisions of § 10 of
the act apply not only to articles for sale, but also to articles
to be used as raw material in the manufacture of some other
product.
In construing the Pure Food and Drug Act, all articles, compound
or single, not intended for consumption by the producer, are
regarded as designed for sale, and for that reason it is the
concern of the law to have them pure.
The remedies given by the statute
in personam and by
condemnation are not inconsistent, and they are not dependent.
The Three Friends, 166 U. S. 1.
By the Pure Food and Drug Act adulterated articles are, while in
interstate commerce, made culpable as well as their shipper; while
in original unbroken packages, they can be seized, and they carry
their own identification as contraband of law; they are subject to
the power of Congress to regulate interstate commerce, and they are
not beyond the jurisdiction of the national government because
within the borders of a state.
Quaere how far such
articles can be pursued beyond the original package.
Page 220 U. S. 46
Congress can use appropriate means to execute the power
conferred upon it by the Constitution, and the seizure and
condemnation of prohibited articles in interstate commerce at their
point of destination in original unbroken package is an appropriate
means.
McCulloch v.
Maryland, 4 Wheat. 316;
Lottery Case,
188 U. S. 321,
188 U. S.
355.
In a proceeding
in rem under § 10 of the Pure Food and
Drug Act, the court has jurisdiction to enter personal judgment for
costs against the claimant.
Quaere whether the certificate
in this case presents the question of jurisdiction to award
costs.
The facts, which involve the construction of certain provisions
of the Pure Food Act of June 30, 1906, are stated in the
opinion.
Page 220 U. S. 49
MR. JUSTICE McKENNA delivered the opinion of the Court.
The case is here on a question of jurisdiction certified by the
district court.
On March 11, 1909, the United States instituted libel
proceedings under § 10 of the Act of Congress of June 30,
Page 220 U. S. 50
1906, 34 Stat. 768, c. 3915, against fifty cans of preserved
whole eggs which had been prepared by the Hipolite Egg Company of
St. Louis, Missouri.
The eggs, before the shipment alleged in the libel, were stored
in a warehouse in St. Louis for about five months, during which
time they were the property of Thomas & Clark, an Illinois
corporation engaged in the bakery business at Peoria, Illinois.
Thomas & Clark procured the shipment of the eggs to
themselves at Peoria, and, upon the receipt of them, placed the
shipment in their storeroom in their bakery factory along with
other bakery supplies. The eggs were intended for baking purposes,
and were not intended for sale in the original unbroken packages or
otherwise, and were not so sold. The Hipolite Egg Company appeared
as claimant of the eggs, intervened, filed an answer, and defended
the case, but did not enter into a stipulation to pay costs.
Upon the close of libellant's evidence, and again at the close
of the case, counsel for the egg company moved the court to dismiss
the libel on the ground that it appeared from the evidence that the
court, as a federal court, had no jurisdiction to proceed against
or confiscate the eggs, because they were not shipped in interstate
commerce for sale, within the meaning of § 10 of the Food and Drugs
Act, and for the further reason that the evidence showed that the
shipment had passed out of interstate commerce before the seizure
of the eggs, because it appeared that they had been delivered to
Thomas & Clark, and were not intended to be sold by them in the
original packages or otherwise.
The motions were overruled, and the court proceeded to hear and
determine the cause, and entered a decree finding the eggs
adulterated, and confiscating them. Costs were assessed against the
egg company.
The decree was excepted to on the ground that the
Page 220 U. S. 51
court was without jurisdiction
in rem over the subject
matter, and on the further ground that the court was without
jurisdiction to enter judgment
in personam against the egg
company for costs.
The jurisdiction of the district court being challenged, the
case comes here directly.
Section 2 of the Food and Drugs Act prohibits the introduction
into any state or territory from any other state or territory, of
any article of food or drugs which is adulterated, and makes it a
misdemeanor for any person to ship or deliver for shipment such
adulterated article, or who shall receive such shipment, or having
received it, shall deliver it in original unbroken packages for pay
or otherwise.
In giving a remedy, § 10 provides that, if
"any article of food . . . that is adulterated . . . and is
being transported from one state . . . to another, for sale, or
having been transported, remains unloaded, unsold, or in original
unbroken packages, . . . shall be liable to be proceeded against in
any district court of the United States within the district where
the same is found, and seized for confiscation by a process of
libel for condemnation. . . . The proceedings of such libel cases
shall conform, as near as may be, to the proceedings in admiralty .
. . , and all such proceedings shall be at the suit of and in the
name of the United States."
The shipment to Thomas & Clark consisted of 130 separate
cans, each can corked and sealed with wax. The eggs were intended
to be used for baking purposes. The only can sold was that sold to
the inspector for the purpose of having the eggs analyzed. They
contained approximately two percent of boric acid, which the court
found was a deleterious ingredient, and adjudged that they were
adulterated within the meaning of the Food and Drugs Act of June
30, 1906, 34 Stat. 771, c. 3915.
The egg company, whilst not contending that the
Page 220 U. S. 52
shipment of the eggs was not a violation of § 2 of the act and a
misdemeanor within its terms, and not denying the power of Congress
to enact it, presents three contentions: (1) Section 10 of the Food
and Drugs Act does not apply to an article of food which has not
been shipped for sale, but which has been shipped solely for use as
raw material in the manufacture of some other product; (2) a United
States district court has no jurisdiction to proceed
in
rem under § 10 against goods that have passed out of
interstate commerce before the proceeding
in rem was
commenced; (3) the court had no jurisdiction to enter a personal
judgment against the egg company for costs.
It may be said at the outset of these contentions that they
insist that the remedies provided by the statute are not
coextensive with its prohibitions, and hence that it has virtually
defined the wrong, and provided no adequate means of punishing the
wrong when committed. Premising this much, we proceed to their
consideration in the order in which they have been presented. The
following cases are cited to sustain the first contention:
United States v. Sixty-five Casks of Liquid Extracts, 170
F. 449, affirmed by the circuit court of appeals in
United
States v. Knowlton Danderine Co., 175 F. 1022, and
United
States v. Forty-six Packages & Bags of Sugar, in the
District Court for the Southern District of Ohio, 183 F. 642.
The articles involved in the first case were charged with having
been misbranded, and consisted of drugs in casks, which were
shipped from Detroit, Michigan, to Wheeling, West Virginia, there
to be received by the Knowlton Danderine Company in bulk in carload
lots and manufactured into danderine, of which no sale was to be
made until the casks should be emptied and the contents placed in
properly marked bottles.
It was contended that the articles, not having been shipped in
the casks for the purpose of sale thus in bulk,
Page 220 U. S. 53
but shipped to the owner from one state to another, for the
purpose of being bottled into small packages suitable for sale, and
when so bottled to be labeled in compliance with the requirements
of the act, were not transported for sale, and were therefore not
subject to libel under § 10 of the act.
The contention submitted to the court the construction of the
statute. The court, however, based its decision upon the want of
power in Congress to prohibit one from manufacturing a product in a
state and removing it to another state
"for the purpose of personal use, and not sale, or for use in
connection with the manufacture of other articles, to be legally
branded when so manufactured,"
and concluded independently, or as construing the statute, that
the danderine company, being the owner of the property, shipped it
to itself, and did not come within any of the prohibitions of the
statute. The case was affirmed by the circuit court of appeals (175
F. 1022). The court, however, expressed no opinion as to the power
of Congress. It decided that the facts did not exhibit a case
within the purpose of the statute, saying:
"No attempt to evade the law, either directly, indirectly, or by
subterfuge, has been shown, it appearing that the manufacturer had
simply transferred from one point to another the product he was
manufacturing, for the purpose of completing the preparation of the
same for the market. Under the circumstances disclosed in this
case, having in mind the object of the Congress in enacting the law
involved, we do not think the liquid extracts proceeded against
should be forfeited. Reaching this conclusion, we do not find it
necessary to consider other questions discussed by counsel and
referred to in the opinion of the court below."
In
United States v. Forty-six Packages & Bags of
Sugar, the court construed the statute as applying only to
transportation for the purpose of sale. To explain its view the
court said:
"Following the words 'having been
Page 220 U. S. 54
transported' is an ellipse -- an omission of words necessary to
the complete construction of the sentence. Those words are found in
the preceding part of the section, and, when supplied, the clause
under which this libel is filed reads and means,"
"any article of food, drug, or liquor that is adulterated or
misbranded within the meaning of this act, having been transported
from one state . . . to another
for sale [italics ours],
remains unloaded, unsold, or in original, unbroken packages, . . .
shall be liable,"
etc. And the court was of opinion that this view was in accord
with the other two cases which we have cited. This may be disputed.
It may well be considered that there is no analogy between an
article in the hands of its owner, or moved from one place to
another by him, to be used in the manufacture of articles subject
to the statute, and to be branded in compliance with it, and an
adulterated article itself the subject of sale, and intended to be
used as adulterated, in contravention of the purpose of the
statute.
A legal analogy might be insisted upon if cakes and cookies,
which are the compounds of eggs and flour which the record
presents, could be branded to apprise of their ingredients like
compounds of alcohol. The object of the law is to keep adulterated
articles out of the channels of interstate commerce, or, if they
enter such commerce, to condemn them while being transported or
when they have reached their destination, provided they remain
unloaded, unsold, or in original unbroken packages. The situations
are clearly separate, and we cannot unite or qualify them by the
purpose of the owner to be a sale. It, indeed, may be asked, in
what manner a sale? The question suggests that we might accept the
condition, and yet the instances of this record be within the
statute. All articles, compound or single, not intended for
consumption by the producer are designed for sale, and, because
they are, it is the concern of the law to have them pure.
It is, however, insisted that "the proceeding
in
personam
Page 220 U. S. 55
authorized by the law was intended to, and no doubt is, capable
of giving full force and effect to the law," and, further, that a
producer in a state is not interested in an article shipped from
another state, which is not intended to be sold or offered for
consumption until it is manufactured into something else. The
argument is peculiar. It is certainly to the interest of a producer
or consumer that the article which he receives, no matter whence it
comes, shall be pure, and the law seeks to secure that interest not
only through personal penalties, but through the condemnation of
the article if impure. There is nothing inconsistent in the
remedies, nor are they dependent.
The Three Friends,
166 U. S. 1,
166 U. S. 49.
The first contention of the egg company is therefore
untenable.
2. Under this contention, it is said that "the jurisdiction of
the Food and Drugs Act in question can go no farther than the power
given to Congress under which it was enacted," and that the
district court therefore
"had no jurisdiction
in rem, because at the time of the
seizure the eggs had passed into the general mass of property in
the state, and out of the field covered by interstate
commerce."
To support the contention,
Waring v.
Mobile, 8 Wall. 110, is cited. That case involved
the legality of a tax imposed by an ordinance of the City of Mobile
upon merchants and traders of the city, equal to one-half of one
percent on the gross amount of their sales, whether the merchandise
was sold at public or private sale. Waring was fined for nonpayment
of the tax, and he brought suit to restrain the collection of the
fine, alleging that he was exempt from the tax on the ground that
the sales made by him were of merchandise in the original packages,
as imported from a foreign country, and which was purchased by him,
in entire cargoes, of the consignees of the importing vessels
before their arrival, or while the vessels were
Page 220 U. S. 56
in the lower harbor of the port. He obtained a decree in the
trial court which was reversed by the Supreme Court of the State of
Alabama. A writ of error was sued out from this Court and the
decree was affirmed on the ground that Waring was not the shipper
or consignee of the imported merchandise nor the first vendor of
it, and it was the settled law of the court "that merchandise in
the original packages, once sold by the importer, is taxable as
other property," citing
Brown v.
Maryland, 12 Wheat. 443;
Almy
v. California, 24 How. 173;
Pervear v.
Massachusetts, 5 Wall. 479. This also was said:
"When the importer sells the imported articles, or otherwise
mixes them with the general property of the state by breaking up
the packages, the state of things changes, as was said by this
Court in the leading case, as the tax then finds the articles
already incorporated with the mass of property by the act of the
importer. Importers selling the imported articles in the original
packages are shielded from any such state tax, but the privilege of
exemption is not extended to the purchaser, as the merchandise, by
the sale and delivery, loses its distinctive character as an
import."
This case is clear as far as it goes, but the facts are not the
same as those in the case at bar.
In the case at bar, there was no sale of the articles after they
were committed to interstate commerce, nor were the original
packages broken. Indeed, it might be insisted that we need go no
farther than that case for the rule of decision in this. It affirms
the doctrine of original packages which was expressed and
illustrated in previous cases and has been expressed and
illustrated in subsequent ones. It is too firmly fixed to need or
even to justify further discussion, and we shall not stop to affirm
or deny its application to the special contention of the egg
company. We prefer to decide the case on another ground which is
sustained by well known principles.
Page 220 U. S. 57
The statute declares that it is one "for preventing . . . the
transportation of adulterated . . . foods . . . and for regulating
traffic therein," and, as we have seen, § 2 makes the shipper of
them criminal, and § 10 subjects them to confiscation, and, in some
cases, to destruction, so careful is the statute to prevent a
defeat of its purpose. In other words, transportation in interstate
commerce is forbidden to them, and, in a sense, they are made
culpable as well as their shipper. It is clearly the purpose of the
statute that they shall not be stealthily put into interstate
commerce and be stealthily taken out again upon arriving at their
destination, and be given asylum in the mass of property of the
state. Certainly not when they are yet in the condition in which
they were transported to the state, or, to use the words of the
statute, while they remain "in the original, unbroken packages." In
that condition, they carry their own identification as contraband
of law. Whether they might be pursued beyond the original package
we are not called upon to say. That far the statute pursues them,
and, we think, legally pursues them, and to demonstrate this, but
little discussion is necessary.
The statute rests, of course, upon the power of Congress to
regulate interstate commerce, and, defining that power, we have
said that no trade can be carried on between the states to which it
does not extend, and have further said that it is complete in
itself, subject to no limitations except those found in the
Constitution. We are dealing, it must be remembered, with illicit
articles -- articles which the law seeks to keep out of commerce
because they are debased by adulteration, and which punishes them
(if we may so express ourselves) and the shipper of them. There is
no denial that such is the purpose of the law, and the only
limitation of the power to execute such purpose which is urged is
that the articles must be apprehended in transit, or before they
have become a part
Page 220 U. S. 58
of the general mass of property of the state. In other words,
the contention attempts to apply to articles of illegitimate
commerce the rule which marks the line between the exercise of
federal power and state power over articles of legitimate commerce.
The contention misses the question in the case. There is here no
conflict of national and state jurisdictions over property legally
articles of trade. The question here is whether articles which are
outlaws of commerce may be seized wherever found, and it certainly
will not be contended that they are outside of the jurisdiction of
the national government when they are within the borders of a
state. The question in the case therefore is what power has
Congress over such articles? Can they escape the consequences of
their illegal transportation by being mingled at the place of
destination with other property? To give them such immunity would
defeat, in many cases, the provision for their confiscation, and
their confiscation or destruction is the especial concern of the
law. The power to do so is certainly appropriate to the right to
bar them from interstate commerce, and completes its purpose, which
is not to prevent merely the physical movement of adulterated
articles, but the use of them, or rather to prevent trade in them
between the states by denying to them the facilities of interstate
commerce. And appropriate means to that end, which we have seen is
legitimate, are the seizure and condemnation of the articles at
their point of destination in the original, unbroken packages. The
selection of such means is certainly within that breadth of
discretion which we have said Congress possesses in the execution
of the powers conferred upon it by the Constitution.
M'Culloch v.
Maryland, 4 Wheat. 316;
Lottery Case,
188 U. S. 321,
188 U. S.
355.
3. Had the court jurisdiction to adjudge costs against the egg
company? This is contended, and, in support of the contention, the
claimant assimilates this proceeding
Page 220 U. S. 59
to one in admiralty. In consequence, it may be supposed of the
provisions of § 10 of the Food and Drugs Act that the proceedings
"shall conform, as near as may be, to the proceedings in
admiralty," and
The Monte A, 12 F. 331, and
The
Alida, 12 F. 343, are cited as deciding that in a proceeding
in rem, the court has no jurisdiction to assess the costs
in personam against the claimant, who simply files an
answer, but who does not enter into a stipulation to pay the costs
of the proceeding. Too broad a deduction is made from these cases.
They undoubtedly decide that a process
in rem and
in
personam cannot be joined in admiralty in the same libel, but
it was not held that this was because of a want of jurisdictional
power in the court. Such view was disclaimed in
The Monte
A, and to show that the framing of a libel against the owner
in personam and against the vessel
in rem was not
jurisdictional, the court said that a breach of a contract of
affreightment could have been so framed "long before the adoption
of the Supreme Court rules in admiralty."
It is stated in Benedict's Admiralty, § 204, that "the
distinction between proceedings
in rem and
in
personam has no proper relation to the question of
jurisdiction." It may be, as stated in § 359 of the same work,
that
"in a suit
in rem, unless someone intervenes, the power
and process of the court is confined to the thing itself, and does
not reach either the person or property of the owner."
If, however, the owner comes in, or an intervener does, his
appearance is voluntary. He becomes an actor and subjects himself
to costs, and this even if his ownership be averred in the libel.
Waples, Proceedings In Rem, p. 100, § 73;
United
States v. 422 Casks of Wine, 1 Pet. 547.
And such seems to be the necessary effect of Admiralty Rules 26
and 34. It is provided (Rule 34) that, if a third
Page 220 U. S. 60
person intervene for his own interest, he is required to give a
stipulation with sureties to abide the final decree rendered in the
original or appellate court. It is in effect conceded that, if such
a stipulation be given, a judgment for costs can be rendered. But
upon what theory? The concession confounds the relation between the
stipulation and the judgment, and makes the security for the
payment of the judgment the source of jurisdiction to render it,
jurisdiction, according to the contention, which the court does not
have as a federal court.
Even, therefore, upon the supposition that the principles of the
admiralty law are to apply to the proceedings under § 10, we think
the court had jurisdiction to render a judgment for costs against
the egg company.
So far, our discussion has been in deference to the contention
of the egg company; but it is disputable if the certificate
presents a question of jurisdiction as to costs. The district court
gets its jurisdiction of the cause from § 10 of the Food and Drugs
Act, and whether the libel may be
in rem and
in
personam, or whether a personal judgment for costs can be
rendered, may be said to be simply a question of the construction
of the section, and not one which involves the jurisdiction of the
court. In other words, the rulings of the court may be error only,
not in excess of its power. It certainly had jurisdiction of the
person of the egg company.
Decree affirmed.