Baltimore Butterine Co. v. Talmadge

• Decision Date: 13 May 1929
• Docket Number: No. 60.,60.
• Citation: 32 F.2d 904
• Parties: BALTIMORE BUTTERINE CO. et al. v. TALMADGE, Commissioner of Agriculture of Georgia.
• Court: U.S. District Court — Southern District of Georgia

32 F.2d 904 (1929)

BALTIMORE BUTTERINE CO. et al. v. TALMADGE, Commissioner of Agriculture of Georgia.

No. 60.

District Court, S. D. Georgia.

May 13, 1929.

George Norman Murdock and James Hamilton Lewis (of Lewis, Folsom & Murdock), both of Chicago, Ill., and James C. Davis (of Wright & Davis), of Atlanta, Ga., for plaintiffs.

George M. Napier, Atty. Gen., T. R. Gress, Asst. Atty. Gen., and Mark Bolding (of Howell, Heyman & Bolding), of Atlanta, Ga., for defendant.

BARRETT, District Judge.

The petitioners in this case, with the name and the description of the food products involved (with the description of the respective containing cartons, on which are shown the place where said article has been manufactured), are: Baltimore Butterine Company; "nutie;" "prepared for baking and pastry. Ingredients cocoanut and peanut oil, salt and water. Artificially colored." Dixie Margarine Company, "Dixie brand colored nut product," "This product contains vegetable oils, salt and water. Artificially colored for baking, cooking, shortening." Standard Nut Margarine Company, "`Southern' Nut Product. Artificially colored;" "This product is made from the very best vegetable fats and cannot be excelled for cooking, baking, and seasoning." National Foods, Inc., "Sonny Boy artificially colored shortening." E. F. Drew & Co., "Xtra Fine artificially colored. Colored vegetable shortening;" "Especially prepared for cooking and baking from vegetable and nut oils, salt and water." Ed S. Vail Butterine Company, "Flavonut. A nut product prepared exclusively for baking, cooking and shortening from cocoanut and peanut oils, salt and water. Artificially colored." All of the cartons of said products have stamped upon them "1-10 of 1% benzoate of soda," except the Southern Nut Product. It will be observed that "Sonny Boy" did not affirmatively show that it was made from vegetable oils. Inasmuch as the other five products did affirmatively show such statement, no differentiation will be attempted.

The commissioner of agriculture and the Attorney General of the state of Georgia, after notice and response from the petitioner as provided by the Food and Drugs Act of the state (Code Ga. 1910, § 102; Acts 1906, p. 83), promulgated the following conclusions:

"1. Said substance, the Southern Nut Product, while being used as a substance for shortening, is adulterated, in that water and salt have been added in a proportion exceeding one per cent., and it has also been adulterated to the extent that water and salt have been substituted in part for the shortening it was designed to substitute.

"2. That said substance, to wit, Southern Nut Product, is misbranded to the extent that it is an imitation in package of another substance of a previously established name, to wit, Creamery Butter. The said substance being in square cartons to contain one pound, and the same being divided into four quarter-pound cubes, and the same being colored exactly like creamery butter, it is well-nigh impossible for the customer or user to distinguish it from creamery butter."

The petition averred that the defendant Eugene Talmadge, commissioner of agriculture of the state of Georgia, after such conclusions had been reached, "informed counsel for petitioners that he intended to and would immediately seize all of the said products of petitioners in the state of Georgia, for confiscation, not only in the hands of retailers and dealers, but in the hands of jobbers and wholesalers, wherever the same may be found, and that he would prosecute all retailers, dealers, jobbers, and wholesalers handling petitioners' said products, on a charge of selling adulterated and misbranded food products." It was agreed that such conclusions and threats should apply to all of said petitioners and their said products, just as if formal notice and hearing had been had in each case.

It was averred that the manufacture and sale of the products of petitioners are covered by the proviso in section 5, subsec. 4, of said Food and Drugs Act, set forth in the opinion under section 2104 of the Code of Georgia.

It was further averred that the authority claimed by the defendant for the adoption of "Conclusion 1" by himself and the Attorney General was found in section 21 of said Food and Drugs Act, Code of Georgia 1914, § 2115, defining a "mixed edible fat" as follows:

"A mixed edible fat is defined to be a mixture which contains not less than ninety-nine per cent of sweet mixed fat, and may consist of a mixture of refined cottonseed-oil or other edible vegetable oils with sweet beef fat or other edible animal fat, and must be sold under a registered or a proprietary brand and properly labeled with a distinctive trade-mark or name bearing the name of the manufacturer."

Petitioners aver that such definition does not apply to any of their products, but also aver that the defendant contends that it does apply, and he insists that the sale of said products is violative of said act, because they do not contain 99 per cent. of sweet mixed fat, and because they contain salt and water which together exceed 1 per cent. of the constituents of the product. Petitioners aver that, thus interpreted, it is unconstitutional.

In the petition the Food and Drugs Act and the respective sections thereof involved in this case were attacked as unconstitutional on several grounds, all of which were abandoned, except that which attacked said portion of section 21 of such act, as interpreted and sought to be enforced by the defendant, as a violation of the due process clause of the United States Constitution, in that, as applied to the products of petitioners, it is an arbitrary, unreasonable, and unjustifiable requirement.

Allegations were made showing great injury to property and a destruction of the business of petitioners to an extent in excess of the jurisdictional amount.

The prayers of the petition, in addition to the general prayer, are as follows:

"(a) That defendant, his assistants, agents, and employees, be temporarily and permanently enjoined from attempting to confiscate any of petitioners' products, and from instituting prosecutions against petitioners and against retailers, dealers, and jobbers handling petitioners' said products in the state of Georgia.

"(b) That defendant be temporarily and permanently enjoined from sending letters to food dealers on defendant's mailing list containing derogatory statements concerning petitioners' said products, and from publishing such statements or letters in the Georgia Market Bulletin, and from issuing statements to the newspapers or to newspaper reporters containing statements derogatory to the said products of petitioners."

Manifestly the prayers are much broader than could be granted in this case, for, construed literally, it would enjoin the defendant from the named actions upon any ground or grounds not dealt with in this petition as well as upon those dealt with. The determination will be therefore as to whether or not a decree should be granted enjoining the defendant from taking any action against the products of petitioners based upon the aforesaid conclusions on the part of himself and the Attorney General.

1. The defendant contends that this court has no jurisdiction. Inasmuch as one of the objections to the jurisdiction is because it is claimed that this is practically a suit against the state of Georgia it is appropriate to bear in mind the following statement by the Supreme Court of the United States, where a like question was involved:

"The question of jurisdiction, whether of the Circuit Court or of this court, is frequently a delicate matter to deal with, and it is especially so in this case, where the material and most important objection to the jurisdiction of the Circuit Court is the assertion that the suit is in effect against one of the states of the Union. It is a question, however, which we are called upon, and which it is our duty, to decide. Under these circumstances, the language of Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 404 5 L. Ed. 257, is most apposite. In that case he said: `It is most true that this court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the Legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment, and conscientiously perform our duty." Ex parte Young, 209 U. S. 123, 142, 28 S. Ct. 441, 446 (52 L. Ed. 714, 13 L. R. A. N. S. 932, 14 Ann. Cas. 764).

Petitioners aver, and I concur in their conclusion, that that portion of section 21 of the Food and Drugs Act which is relied upon for the authority to prohibit the sale of these products in Georgia because they are adulterated does not apply to the products. That portion of this section defines "mixed edible fat" and affirmatively contemplates that such mixed edible fat shall contain "sweet beef fat or other edible animal fat." The question in this case is not the sale of "mixed edible fat," for, as has been shown, it affirmatively appears by averment, which was confirmed by the evidence, that the products involved contain no animal fat, but were made wholly from vegetable oils, water, and salt and harmless coloring matter. The interpretation placed upon the act by the defendant would prohibit the sale of any compound of vegetable oils, under whatever name, and for whatever food purpose, containing less than 99 per cent. of fat. It is undenied that the products of peti...