Hebe Co. v. Calvert

• Decision Date: 21 November 1917
• Docket Number: 72.
• Citation: 246 F. 711
• Parties: HEBE CO. et al. v. CALVERT et al.
• Court: U.S. District Court — Southern District of Ohio

246 F. 711

HEBE CO. et al. v. CALVERT et al.

No. 72.

United States District Court, S.D. Ohio, Eastern Division.

November 21, 1917

A. T Seymour, of Columbus, Ohio, and B. B. Davis and Lannen &amp Hickey, all of Chicago, Ill., for plaintiffs.

L. D Johnson, Special Counsel of Attorney General, of Urbana Ohio, and Chas. J. Pretzman, of Columbus, Ohio, for defendants.

Before WARRINGTON, Circuit Judge, and SATER and HOLLISTER, District judges.

SATER District Judge.

Jurisdiction of this case is vested in the court through the presence of federal questions and the diverse citizenship of the parties litigant. Rail & River Coal Co. v. Yaple (D.C.) 214 F. 273, 277; Ohio River & W. Ry. Co. v. Dittey (D.C.) 203 F. 537, 539, and authorities there cited. Both of the plaintiffs are foreign corporations. The defendants are Calvert, Chief of Division of Dairy and Food of the Board of Agriculture of Ohio, and other officers and agents of such board. The plaintiffs were authorized by Calvert's predecessor in office to sell in Ohio their food product known as 'Hebe,' if appropriately labeled. One-half of the label adopted and thereafter used is as follows, the remaining half being the same as the portion here shown:

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After Calvert entered upon the discharge of his duties, at his instance an opinion was rendered by the state's Attorney General, in which it was held that in view of the provisions of sections 12716, 12717, and 12725, considered in connection with sections 5774 and 5778, Ohio General Code, and the reasoning of Reiter v. State, 109 Md. 235, 71 A. 975, 'Hebe,' whether it be a compound or otherwise, cannot be sold in Ohio because the major part of it is adulterated condensed milk to which a minor constituent (cocoanut oil) has been added and because it is regarded by a large percentage of the public as genuine condensed milk, whereby the public is misled and deceived into its purchase and use for the condensed article made of whole or standard milk. The plaintiffs and their customers were thereupon notified by the defendants that, unless further sales of their product in Ohio be discontinued, prosecutions would follow and the penalties provided by statute would be inflicted on all who should fail to desist. The bill charges that such prosecutions against the plaintiffs and those selling their product, whether they be their wholesalers or their more than 300 retailers, would result in a great multiplicity of suits and would greatly and irreparably injure their business in the state, even if the prosecutions should terminate favorably to the accused. Injunctive relief is sought against the enforcement by the state's officers of the pertinent sections of the state statute, on the ground of their unconstitutionality. The presence of three judges is therefore necessary to a hearing of the case. Section 266, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1162 (Comp. St. 1916, Sec. 1243)). If the threatened acts of the defendants are in excess of the authority vested in them by law, an action to enjoin them is within the jurisdiction of a federal court, both diverse citizenship and the necessary jurisdictional amount being present. Ex parte Young, 209 U.S. 123, 28 Sup.Ct. 441, 52 L.Ed. 714, 13 L.R.A.(N.S.) 932, 14 Ann.Cas. 764. The issues having been made up, the case was heard on its merits. It is now for decision with reference to the Ohio statutes.

The terms 'evaporated' and 'condensed,' as applied to milk, are, as generally understood, synonymous, and they will for the purposes of this opinion be so regarded. 'Hebe' is recognized by the Bureau of Chemistry of the National Department of Agriculture as a compound. Ninety-four per cent. of it is evaporated skimmed milk; the remaining 6 per cent. is cocoanut oil, highly refined and of good quality, which in its properties, as disclosed by the record, more nearly resembles butter fat than any other known substance. The two ingredients are by an undisclosed process so brought together as to remain properly combined until the food product is ready for consumption. There is no claim that the product, or either of its ingredients, is impure or unwholesome. The article is produced in and shipped from Wisconsin by the plaintiffs to jobbers in various states, including Ohio, on orders accepted in the state of Washington, and reaches consumers through retailers who purchase of such jobbers. It is transported in cans which are packed in inclosing, sealed, fiber shipping cases, completely concealing the cans and their labels; each case containing either 48 cans of one pound each or 96 cans of six ounces each. When shipped in carload lots, the shipping cases bear only the name of the consignee and other data appropriate for identification and delivery. When such cases are received by the retailer, he removes the cans and exposes them for sale to his customers. The plaintiffs' position is that their food product, being plainly and fairly labeled in a conspicuous manner, is not within the condemnation of the Ohio statute and may be lawfully sold and offered for sale in such state. It is further claimed that if the Ohio statute, correctly construed, prohibits the sale of Hebe, a compound composed of two well-known articles of food, each of which is pure, wholesome, and nutritious, it is in that event violative of the Fourteenth Amendment of the federal Constitution, in that: (a) It deprives the plaintiffs of liberty and property without due process of law, and also denies them the equal protection of the law; (b) it does not regulate the sale of Hebe, but arbitrarily, unjustly, unduly, and in a confiscatory manner, discriminates against it and prohibits its distribution and sale, although such article is so conspicuously and correctly labeled as to show its true character, and although the statute permits the sale of uncondensed skimmed milk, if it be labeled skimmed milk; (c) by its denial of the right to sell Hebe in individual tin cans, which cans are labeled as required by the National Food and Drugs Act and are 'original packages' in so far as that act is concerned, it conflicts with such act and the regulations made in accordance with it, and unlawfully interferes with the interstate commerce laws of the United States.

Chapter 1 of 'Part 2, Title 2, Police Regulations,' of the Ohio Code, deals with 'Adulterations.' It provides, inter alia, as follows: No person within the state shall manufacture, offer for sale, sell or deliver, or have in his possession with intent to sell or deliver, any article of food which is adulterated or misbranded within the meaning of such chapter. Section 5774. A compound article is a food, if used by man as such. Section 5775. A food is adulterated, if a valuable or necessary constituent or ingredient has been wholly or in part abstracted from it. Section 5778. It is misbranded, if it is labeled so as to deceive or mislead the purchaser, or if the label on the package containing the food bears a statement regarding such food which is false or misleading in any particular (section 5785), provided, however:

'That this section shall not apply to mixtures or compounds recognized as ordinary articles or ingredients of articles of food or drink, if each package sold or offered for sale is distinctly labeled in words of the English language as mixtures or compounds, with the name and percentage, in terms of one hundred per cent. of each ingredient therein. The word 'compound' or 'mixture' shall be printed in letters and figures not smaller in height or width than one-half of the largest letter upon any label on the package, and the formula shall be printed in letters and figures not smaller in height or width than one-fourth the largest upon any label on the package, and such compound or mixture must not contain an ingredient that is poisonous or injurious to health.'

Certain of the provisions of chapter 6, found in 'Part 4, Title 1, Felonies and Misdemeanors,' and dealing with 'Offenses Against Public Health,' are also pertinent to the subject-matter under consideration. It declares mild to be standard or unadulterated, if it contains not more than 88 per cent. of watery fluid, and not less than 12 per cent. of solids or 3 per cent. of fats. Section 12716. Whoever sells, exchanges, or delivers, or has in his custody or possession with intent to sell or exchange, or exposes or offers for sale or exchange, adulterated milk, is subject to a fine for his first offense, to a fine or imprisonment for his second offense (section 12717), and to both a fine and imprisonment for any subsequent offense (section 12718). In view of section 5778, milk from which the cream or butter fat has been removed, i.e. skimmed milk, is not pure, but is adulterated. Section 12720, however, permits the sale of such milk if conspicuously labeled 'Skimmed Milk,' notwithstanding the provisions of sections 5774, 5778, 12717, and 12718, and therefore serves as an exempting clause to those sections. By 'skimmed milk' is meant milk from which its natural cream has been taken in whole or in part. Commonwealth v. Hufnal, 185 Pa. 376, 380, 39 A. 1052. Section 12725 is as follows:

'Whoever manufactures, sells, exchanges, exposes or offers for sale or exchange, condensed milk unless it has been made from pure, clean, fresh, healthy, unadulterated and wholesome milk, from which the cream has not been removed and in which the proportion of milk solids shall be the equivalent of twelve per cent. of milk solids in crude milk, twenty-five per cent. of such solids being fat, and unless the package, can or vessel containing it is distinctly labeled, stamped or marked with its true name, brand, and by whom and under what name made, shall be fined not less than fifty dollars nor

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