George Dermott v. State of Wisconsin No 112 Grady v. State of Wisconsin No 113

• Decision Date: 07 April 1913
• Docket Number: Nos. 112 and 113,s. 112 and 113
• Citation: 228 U.S. 115,57 L.Ed. 754,33 S.Ct. 431
• Parties: GEORGE McDERMOTT, Plff. in Err., v. STATE OF WISCONSIN. NO 112. T. H. GRADY, Plff. in Err., v. STATE OF WISCONSIN. NO 113
• Court: U.S. Supreme Court

228 U.S. 115

33 S.Ct. 431

57 L.Ed. 754

GEORGE McDERMOTT, Plff. in Err.,

v STATE OF WISCONSIN.

NO 112.

T. H. GRADY, Plff. in Err.,

v. STATE OF WISCONSIN.

NO 113.

Nos. 112 and 113.

Argued January 17 and 20, 1913.

Decided April 7, 1913.

Mr. H. O. Fairchild for plaintiffs in error.

Messrs. John M. Olin, Harry L.

[Argument of Counsel from page 116 intentionally omitted] Butler, William R. Curkeet, Burr W. Jones, and L. H. Bancroft, Attorney General of Wisconsin, for defendent in error.

[Argument of Counsel from pages 117-124 intentionally omitted] Mr. Justice Day delivered the opinion of the court:

The plaintiffs in error, george McDermott and T. H. Grady, were severally convicted in the circuit court of Dane county, in the state of Wisconsin, upon complaints made against them by an assistant dairy and food comissioner of that state, for the violation of a statute of Wisconsin relating to the sale of certain articles and for the protection of the public health. The convictions were affirmed by the decision of the supreme court of Wisconsin. 143 Wis. 18, 126 N. W. 888, 21 Ann. Cas. 1315.

The complaint against McDermott charged that on March 2, 1908, at Oregon, in Dane county, he 'did unlawfully have in his possession with intent to sell, and did offer and expose for sale and did sell, a certain article, product, compound, and mixture composed of more than 75 per cent glucose and less than 25 per cent of cane syrup, said cane syrup being then and there mixed with said glucose, and that the can containing said compound and mixture was then and there unlawfully branded and labeled 'Karo Corn Syrup,' and was then and there further unlawfully branded and labeled, '10 per cent Cane Syrup, 90 per cent Corn Syrup,' contrary to the statute in such case made and provided.' As to Grady, the complaint was similar to that against McDermott, except that the label designated the mixture as 'Karo Corn Syrup with Cane Flavor,' and added 'Corn Cyrup, 85 per cent.' The statute of Wisconsin for the violation of which plaintiffs in error were convicted is found in Laws of Wisconsin for 1907, at page 646, being chapter 557, and the pertinent parts of it are as follows:

'Section 1. . . . No person, . . . by himself . . . or agent . . . shall sell, offer, or expose for sale, or have in his possession with intent to sell, any syrup, maple sypup, sugar-cane syrup, sugar syrup, refiners' syrup, sorghum syrup or molasses, mixed with glucose, unless the barrel, cask, keg, can, pail, or other original container, containing the same, be distinctly branded or labeled so as to plainly show the true name of each and all of the ingredients composing such mixture, as follows:

* * * * * 'Third. In case such mixture shall contain glucose in a proportion exceeding 75 per cent by weight, it shall be labeled and sold as 'Glucose flavored with Maple Syrup,' 'Glucose flavored with Sugar-cane Syrup,' . . . 'Glucose flavored with Refiners' Syrup,' . . . as the case may be. The address of the manufacturer or dealer. address of the manufacturer or dealer. . . . In all mixtures in which glucose is used in the proportion of more than 75 per cent by weight, the name of the syrup or molasses which is mixed with the glucose for flavoring purposes, and the words showing that said syrup or molasses is used as a flavoring, as provided in this section, shall be printed on the label of each container of such mixture. . . . The mixture or syrups designated in this section shall have no other designation or brand than herein required that represents or is the name of any article which contains a saccharin substance; . . . nor shall any of the aforesaid glucose, syrups, molasses, or mixtures contain any substance injurious to health, nor any other article or substance otherwise prohibited by law in articles of food.'

The facts are that the plaintiffs in error were retail merchants in Oregon, Dane county, Wisconsin; that before the filing of the complaints against them each had bought for himself for resale as such merchant from wholesale grocers in Chicago, and had received by rail from that city, 12 half-gallon tin cans or pails of the articles designated in the complaints, each shipment being made in wooden boxes containing the cans, and that when the goods were received at their stores the respective plaintiffs in error took the cans from the boxes, placed them on the shelves for sale at retail, and destroyed the boxes in which the goods were shipped to them, as was customary in such cases. From their nature, the articles thus canned and offered to be sold, instead of being labeled as they were, if labeled in accordance with the state law, should have been branded with the words 'Glucose flavored with Refiners' Syrup,' and, as the statute provides that the mixtures or syrups offered for sale shall have upon them no designation or brand which represents or contains the name of a saccharin substance other than that required by the state law, the labels upon the cans must be removed if the state authority is recognized.

Plaintiffs in error contend that the cans were labeled in accordance with the food and drugs act passed by Congress, June 30, 1906 (34 Stat. at L. 768, chap. 3915, U. S. Comp. Stat. Supp. 1911, p. 1354), and that that fact is evidenced by the decision of the Secretaries of the Treasury, Agriculture, and Commerce and Labor, made under the claimed authority of that act, which is as follows:

Washington, D. C. February 13, 1908.

We have each given careful consideration to the labeling, under the pure food law, of the thick, viscous syrup obtained by the incomplete hydrolysis of the starch of corn, and composed essentially of dextrose, maltose, and dextrim. In our opinion it is lawful to label this syrup as corn syrup, and if to the corn syrup there is added a small percentage of refiner's syrup, a product of cane, the misture in our judgment is not misbranded if labeled 'corn syrup with cane flavor.'

George B. Cortelyou,

Secretary of the Treasury.

James Wilson,

Secretary of Agriculture.

Oscar H. Strauss,

Secretary of Commerce and Labor.

And it is insisted that the Federal food and drugs act, passed under the authority of the Constitution, has taken possession of this field or regulation, and that the state act is a wrongful interference with the exclusive power of Congress over interstate commerce, in which, it appears, the goods in question were shipped. The case presents among other questions, the constitutional question whether the state act, in permitting the sale of this article only when labeled according to the state law, is open to the objection just indicated.

That Congress has ample power in this connection is no longer open to question. That body has the right not only to pass laws which shall regulate legitimate commerce among the states and with foreign nations, but has full power to keep the channels of such commerce free from the transportation of illicit or harmful articles, to make such as are injurious to the public health outlaws of such commerce, and to bar them from the facilities and privileges thereof. Congress may itself determine the means appropriate to this purpose, and so long as they do no violence to other provisions of the Constitution, it is itself the judge of the means to be employed in exercising the powers conferred upon it in this respect. M'Culloch v. Maryland, 4 Wheat. 316, 421, 4 L. ed. 579, 605; Lottery Case (Champion v. Ames) 188 U. S. 321, 355, 47 L. ed. 492, 500, 23 Sup. Ct. Rep. 321, 13 Am. Crim. Rep. 561; Hipolite Egg Co. v. United States, 220 U. S. 45, 55 L. ed. 364, 31 Sup. Ct. Rep. 364; Hoke v. United States, 227 U. S. 308, 57 L. ed. ——, 33 Sup. Ct. Rep. 281.

The food and drugs act was passed by Congress, under its authority to exclude from interstate commerce impure and adulterated food and drugs, and to prevent the facilities of such commerce being used to enable such articles to be transported throughout the country from their place of manufacture to the people who consume and use them, and it is in the light of the purpose and of the power exerted in its passage by Congress that this act must be considered and construed. Hipolite Egg Co. v. United States, supra.

Section 2 of the act provides that 'the introduction into any state or territory or the District of Columbia from any other state or territory or the District of Columbia . . . of any article of food or drugs which is adulterated or misbranded, within the meaning of this act, is hereby prohibited; and any person who shall ship or deliver for shipment from any state or territory or the District of Columbia to any other state or territory or the District of Columbia . . . any such article so adulterated or misbranded within the meaning of this act, . . . shall be guilty of a misdemeanor, and for such offense be fined,' etc. The article of food or drugs, the shipment or delivery for shipment in interstate commerce of which is prohibited and punished, is such as is adulterated or misbranded within the meaning of the act. What it is to adulterate or misbrand food or drugs within the meaning of the act requires a consideration of its other provisions, wherein such adulteration or misbranding is defined.

According to the terms of § 7 drugs are 'adulterated' where, if they are sold under a name recognized in the United States Pharmacopoeia, and differ from the standard of strength therein laid down, the standard of strength, etc., is not plainly stated upon the bottle, box, or other container; and food is 'adulterated' where it contains an added poisonous or other added deleterious ingredient which may render it injurious; except that, where directions are printed on the covering or the package for the necessary removal of such preservative, the provisions of the act shall apply only when the food is ready for consumption. Turning to § 8, we find that the term 'misbranded,' as used in the statute, shall apply to all drugs or ar...