St. Louis Independent Packing Co. v. Houston

• Decision Date: 07 May 1917
• Docket Number: 4692.
• Citation: 242 F. 337
• Parties: ST. LOUIS INDEPENDENT PACKING CO. v. HOUSTON, Secretary of Agriculture, et al.
• Court: U.S. Court of Appeals — Eighth Circuit

242 F. 337

ST. LOUIS INDEPENDENT PACKING CO. v. HOUSTON, Secretary of Agriculture, et al.

No. 4692.

United States Court of Appeals, Eighth Circuit.

May 7, 1917

Franklin Ferriss, of St. Louis, Mo. (A. B. Stratton, of Chicago, Ill on the brief), for appellant.

W. H Woodward, Asst. U.S. Atty., of St. Louis, Mo. (Arthur L Oliver, U.S. atty., of St. Louis, Mo., on the brief), for appellees.

Before SANBORN and SMITH, Circuit Judges, and AMIDON, District Judge.

SMITH Circuit Judge.

This suit was brought to obtain a temporary and permanent injunction 'restraining Hon. David F. Houston, Secretary of Agriculture, Dr. A. D. Melvin, Chief of the Bureau of Animal Industry, and James J. Brougham, Chief Inspector of the Bureau of Animal Industry of the Department of Agriculture at St. Louis, and their and each of their assistants, deputies, inspectors, employes, representatives and clerks, from refusing to mark, stamp, tag, or label as 'Inspected and Passed' all meat food products or sausage manufactured by your orator found to be sound, healthful, and wholesome, and which contain no dyes, chemicals, preservatives, or ingredients which render such meat or meat food products unsound, unhealthful, unwholesome, or unfit for human food,' and that a mandatory injunction issue requiring the defendants to 'mark, stamp, tag, or label as 'Inspected and Passed' all the meat food products or sausage manufactured by your orator found to be sound, healthful, and wholesome, and which contain no dyes, chemicals, preservatives, or ingredients which render said meat or meat food products unsound, unhealthful, unwholesome, or unfit for human food.'

Upon application to the District Court for a temporary injunction, it was denied, and complainant appealed, and the District Court was reversed, and a temporary writ of injunction ordered issued. St. Louis Independent Packing Co. v. Houston, 215 F. 553, 132 C.C.A. 65. We assume that upon receipt of the mandate a temporary injunction was issued by the District Court in accordance with our order, although that fact does not appear in the record. No notice was ever had upon Dr. A. D. Melvin, and he did not appear. Hon. David F. Houston, Secretary of Agriculture, and James J. Brougham, inspector in charge, filed separate answers in substantially the same form, the former on January 21, 1915. The case came on for trial at the September term, 1915, as between the complainants and the defendants answering, and upon the evidence the District Court on March 20, 1916, dismissed the bill at complainant's cost, and it appeals. The opinion of the District Court upon the application for a temporary injunction will be found in 204 F. 120, and its opinion upon final hearing, upon which its decree was reached from which this appeal was taken, is found in 231 F. 779. The case having been three times reported, we shall not make a full statement of the issues and evidence, but content ourselves with stating such new matters as will be necessary to an understanding of the case, leaving the history of it to be learned from the former opinions.

The appellees earnestly urge a change in our rulings on the former appeal, 215 F. 553, 132 C.C.A. 65. This we cannot consider. The former opinion constituted the law of the case. The authorities upon this are so numerous that we cannot cite them individually. They will be found fully reviewed and cited in 2 Enc.of U.S.Sup.Ct.Repts. 412 to 415, and 12 Enc.of U.S.Sup.Ct.Repts. 142. In view, however, of the fact that the Secretary of Agriculture had not been served prior to the time of the former appeal, although his subordinate had been, we concede it is barely possible this rule does not apply to him. We therefore say that the argument in support of a change in our former rulings is not persuasive and the rulings are adhered to.

Notwithstanding its somewhat inaccurate statement in the bill, complainant has not been manufacturing sausage, but a compound which is embraced in the term 'meat food products' and known as 'sausage and cereal.' Water is added, and the power of the Agricultural Department to compel the use of the word 'water' in the name of the compound has never been questioned. Thus it can require that plaintiff's product be labeled 'sausage, cereal and water,' if it deems such conduct proper, and it could even require that the label show the percentage of each article used. These meat food products have been marked for years by stamping upon every link of the sausage in large link goods the words 'sausage and cereal.' Where the links are very small, this has been put upon every third to fifth link. The same inscription is put upon the ten-pound cartons of shipment; but, as this does not reach the ultimate consumer, it will for the present be ignored.

It affirmatively appears that the complainant's manufacture contains no dyes, chemicals, preservatives, or ingredients that would render them unsound, unhealthy, unwholesome, or unfit for human food. The sole question on this branch of the case is whether cereal in excess of 2 per cent. or water in excess of 3 per cent. may be added to sausage not to be sold as sausage, but to be sold as sausage and cereal, or under such other name as the Secretary of Agriculture may prescribe, not, however, denying the right to use the word 'sausage.' When the practice of mixing cereal with sausage commenced in this country, the cereal was higher priced than the meat. One government witness stated that the mixture of cereal with sausage made the compound less speedy of digestion.

Let us now see what was decided on the former appeal. It was there said:

'The entire Meat Inspection Law (Act March 4, 1907, c. 2907, 34 Stat. 1260 (U.S. Comp. St. Supp. 1911, p. 1366)) was, as distinctly indicated in it, to prevent the sale of food which is unsound, unwholesome, or otherwise unfit for human use or misbranded. It was not the design of Congress in that law to provide standards of quality, except to prohibit the sale of food which was unsound, unwholesome, or otherwise unfit for human use, and secure true branding. The article in question, being sausage with cereal, or sausage and cereal, was not intended to be prohibited by Congress. The act of Congress did contemplate, however, that the purchaser should know what he was buying. * * * We come now to the provision, inserted in section 16 of rule 18, that sausage shall not contain cereal in excess of 2 per cent. If this simply means that it shall not be sold as sausage, it possibly may have been valid; but the government does not contend that this is its true meaning. If it meant that sausage sold as such should not contain cereal in excess of 2 per cent., but that sausage and cereal might contain more, it might be sustained. But the contention is that the Secretary of Agriculture had power to prohibit the manufacture and sale of sausage and cereal, where the cereal was in excess of 2 per cent. This the Secretary of Agriculture had no power to do. * * * The question is simply: Could he prohibit the making of a compound which was sound, healthful, wholesome, and free from dyes, chemicals, preservatives, or ingredients which render such unfit for human food, by a mere regulation? We are constrained to say that he cannot. A compound of beef and pork would not entitle the Secretary of Agriculture to prohibit the words 'beef' and 'pork' to appear in the title, and to condemn all such compounds on the label of which they appear.'

It is claimed that the Secretary of Agriculture has issued, effective November 1, 1914, a new set of 'Regulations Governing the Meat Inspection of the Department of Agriculture,' and that previous regulations are abrogated thereby. This was, of course, long after the commencement of this suit. These new regulations omit the preamble to the order of February 28, 1913, referred to in 215 F. 553, 556, 132 C.C.A. 65, 68. The new regulations divide the substance of the circular in question, and so far as material are as follows:

'Regulation 17. Labeling.

'Section 9.

'Paragraph 2. When cereal is added to sausage within the limit prescribed by paragraph 4 of section 6 of regulation 18, there shall appear on the label in a prominent manner, contiguous to the name of the product, the statement 'cereal added.' When water in excess of 3 per cent. and cereal are added to certain kinds of sausage as permitted by paragraph 5 of section 6 of regulation 18, the same shall be labeled 'sausage, water, and cereal'; but when no cereal is added, the addition of water need not be stated.

'Paragraph 3. When cereal is added to any meat food product other than sausage in quantities not exceeding 5 per cent., the statement 'cereal added' shall appear on the label in a conspicuous manner contiguous to the name of the product, and if any such product contains cereal in quantities exceeding 5 per cent., then 'cereal' shall appear as a part of the name of the product in uniform size and style of letters, for example, 'potted meat and cereal': Provided, however, that products such as meat loaves, pates, soups, tripe with onion sauce, Irish stew, stewed kidneys, hash, chile con carne, tamales, boiled dinners, chop suey, scrapple, and the like, may contain cereal and similar substances without the presence of such substances being indicated on the labels.'

'Regulation 18. Reinspection and Preparation of Meat and Products.

'Section 6.

'Paragraph 4. Sausage shall not contain cereal in excess of 2 per cent.

'Paragraph 5. Water or ice shall not be added to sausage, except for the purpose of facilitating grinding, chopping, and mixing, in which case the added water or ice shall not exceed 3 per cent., except that sausages of the class which are smoked or cooked, such as

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