Curtice Bros. Co. v. Barnard

• Decision Date: 07 October 1913
• Docket Number: 1,991.
• Parties: CURTICE BROS. CO. v. BARNARD et al.
• Court: U.S. Court of Appeals — Seventh Circuit

209 F. 589

CURTICE BROS. CO. v. BARNARD et al.

No. 1,991.

United States Court of Appeals, Seventh Circuit.

October 7, 1913

Appellant and another filed their sworn bill against the Food and Drug Commissioner and the members of the State Board of Health of the state of Indiana, praying that they be restrained from enforcing their determination to prosecute criminally those who sold complainants' goods containing benzoate of soda and from publishing statements that such sale was illegal and from criminally prosecuting complainants, from intimidating dealers, and from passing any rule forbidding the use of benzoate of soda in catsup or bulk sweet pickles. The bill charges that the use of this article is harmless and very desirable in such manufactures as a preservative, that complainants have large sums invested in such business which will be lost if said proposed enforcement of said rule is carried out with reference to the manufacture of catsup and bulk sweet pickles, and that defendants have notified orators and persons dealing with them that such manufactures do not comply with the Indiana statutes, and that any person found selling foods so containing benzoate of soda in Indiana will be criminally prosecuted. The bill further alleges that defendants purport to be acting under chapter 104 of the laws of Indiana for the year 1907, wherein by section 1 the sale of impure and misbranded foods within the meaning of the act is forbidden. By paragraph 7 of section 2 thereof it is provided that, 'If it (a food) contains any added substance except common table salt, saltpeter, cane sugar vinegar, spices, * * * or other harmless preservatives whose use is authorized by the State Board of Health,' it shall be deemed adulterated. By section 7 the State Board of Health is required to adopt such rules fixing the minimum standard as may be necessary to enforce the act, regulating minimum standards for food and drugs and defining specific adulteration. Said section also provides that the violation of such rules shall be punished as set forth in section 10 of the act, by fine for the first two violations, and fine and imprisonment for further violations. The bill further charges that the act was never legally published, and that said section 2, by exclusion, prohibits the use of benzoate of soda in foods. The bill further charges that complainants are advised that said chapter 104 of the Laws of 1907, and particularly said enumerated sections, are unconstitutional and void, especially said section 2 thereof, in that: (1) It is contrary to the fourteenth amendment to the Constitution of the United States; (2) said chapter, and especially said section 7 thereof, vests legislative power in the State Board of Health, contrary to the Constitution of Indiana; (3) it makes the United States pharmacopoeia and the act of Congress of June 30, 1906 (34 Stat. 168, c. 3915 (U.S. Comp. St. Supp. 1911, p. 1354)), a part thereof by reference, contrary to the Indiana Constitution; (4) it attempts to deprive orators of their property without due process of law and due compensation, contrary to the Indiana Constitution. The bill further charges that said board has adopted rules which in effect prohibit the use of benzoate of soda, and that the promulgation of said rules is unreasonable and an abuse of power, and that defendants have conspired with their servants and employes to ruin orators' business in Indiana, and that by threats of prosecution orators' business in said state will be ruined, unless defendants be restrained. The bill charges that orators make many shipments of such goods into said state, whereby a multitude of harassments will arise, amounting to a confiscation of orators' property rights if said rules are enforced. Orators further allege that their manufactures are pure and wholesome and do not violate the constitutional laws of Indiana. The bill thereupon asks for a temporary injunction, restraining defendants, their officers and agents, from said acts. Answers were filed denying all conspiracy and all intention to injure orators, denying that benzoate of soda is healthful or necessary, denying the allegations of the bill with regard to confiscation, denying that chapter 104 aforesaid is unconstitutional, admitting their establishment of said rule in accordance with said act. Replication was filed and said cause referred to the master, who filed his report, together with the evidence adduced, finding as matter of fact that it is not an accepted fact that in the scientific world benzoate of soda, even in limited quantities, when ingested in the food of human beings, is harmless, and, as matter of law: (1) That such being the case, the state of Indiana has the power to enact a law forbidding its use in any quantity in food products; and (2) that said chapter 104 of the Acts of 1907, and each section thereof, is not violative of the Constitution of either the state of Indiana or the United States, and recommending that said bill be dismissed at complainants' cost. Numerous exceptions to the report were offered, all of which were overruled by the court. Thereupon the court dismissed said bill for want of equity, from which decree appellant took this appeal. The errors assigned are numerous, but so far as they have been deemed important, may be summed up as follows, viz: (1) That the court held that the act of the state of Indiana approved March 4, 1907, being chapter 104 of the Acts of 1907, is not, nor is any of its sections, violative of any provision of the Constitution of the state of Indiana or of the Constitution of the United States or its amendments; (2) that the court did not find that benzoate of soda as used by appellant was harmless beyond a reasonable doubt, and so conceded to be in the scientific world; (3) that the court approved the master's report.

Willis Baldwin, of Monroe, Mich., and E. O. Grosvenor, of Detroit, Mich. (John Barton Payne, of Chicago, Ill., of counsel), for appellant.

Thomas M. Honan, Atty. Gen. of Indiana, and William H. Thompson, James E. McCullough, and Miller, Shirley, Miller & Thompson, all of Indianapolis, Ind., for appellees.

Before BAKER, SEAMAN, and KOHLSAAT, Circuit Judges.

KOHLSAAT Circuit Judge (after stating the facts as above).

From the evidence and the master's report thereon, it is evident that the question of the harmfulness and harmlessness of benzoate of soda is, as yet, an open one in the scientific world. While the voluminous record of this case deals largely with that question, it is a question of fact. The finding of fact of the master may not, in the absence of convincing evidence to the contrary, be set aside. To show that the report is erroneous and not justified by the evidence, the burden rests upon appellant. That burden is not convincingly sustained by the record. We, therefore, start with the proposition that the question is yet an open one in the scientific world and therefore an open one for the purposes of this hearing. This being so, it was within the power of the Indiana Legislature to prohibit the use of benzoate of soda in the preparation of foods.

In Laurel Hill Cemetery v. City & County of San Francisco, 216 U.S. 358-365, 30 Sup.Ct. 301, 302 (54 L.Ed. 515), the court was considering an action brought to restrain the appellees from enforcing an ordinance forbidding the burial of the dead within the city and county limits. The complaint set up that the ordinance violated the fourteenth amendment to the Constitution of the United States. Speaking through Mr. Justice Holmes, the court says:

'To aid its contention and in support of the averment that its cemetery, although now bordered by many dwellings, is in no way harmful, the plaintiff refers to opinions of scientific men who have maintained that the popular belief is a superstition. Of these we are asked, by implication, to take judicial notice, to adopt them, and on the strength of our acceptance to declare the foundation of the ordinance a mistake and the ordinance void. It may be, in a matter of this kind, where the finding of fact is merely a premise to laying down a rule of law, that this court has power to form its own judgment without the aid of a jury. Prentis v. Atlantic Coast Line, 211 U.S. 210, 227 (29 Sup.Ct. 67, 53 L.Ed. 150). But whatever the tribunal, in questions of this kind, great caution must be used in overruling the decision of the local authorities, or in allowing it to be overruled. No doubt this court has gone a certain distance in that direction. Dobbins v. Los Angeles, 195 U.S.

223 (25 Sup.Ct. 18, 49 L.Ed. 169); Lochner v. New York, 198 U.S. 45, 58 (25 Sup.Ct.

But it has expressed through the mouth of the same judge who 539, 49 L.Ed. 937, 3 Ann.Cas. 1133) et seq. delivered the judgment in the case last cited the great reluctance that it feels to interfere with the deliberate decisions of the highest court of the state whose people are directly concerned. Welch v. Swasey, 214 U.S. 91, 106 (29 Sup.Ct. 567, 53 L.Ed. 923). The reluctance must be redoubled when, as here, the opinion of that court confirms a specific determination concerning the same spot previously reached by the body that made the law. See French v. Barber Asphalt Paving Co., 181 U.S. 324, 341 (21 Sup.Ct. 625, 45 L.Ed. 879); Smith v. Worcester, 182 Mass. 232, 234, 235 (65 N.E. 40, 59 L.R.A. 728).

'But the propriety of deferring a good deal to the tribunals on the spot is not the only ground for caution. If every member of this bench clearly agreed that burying grounds were centers of safety, and thought the board of supervisors and the Supreme Court of California wholly wrong, it would not dispose of the case. There are other things to be considered. Opinion still may be divided; and if, on the hypothesis that the...