Savage v. Scovell

• Decision Date: 16 July 1908
• Citation: 171 F. 566
• Court: U.S. District Court — Eastern District of Kentucky
• Parties: SAVAGE v. SCOVELL.

171 F. 566

SAVAGE v. SCOVELL.

United States Circuit Court, E.D. Kentucky.

July 16, 1908

J. N Elliott, for complainant.

N. B Hays, Ky. Atty. Gen., R. M. Allen, and Chas. H. Morris, for defendant.

COCHRAN District Judge.

This cause has been submitted on motion for a preliminary injunction and demurrers, special and general, to the bill.

It is claimed by plaintiff that he is entitled to the relief he seeks because the article manufactured and sold by him is not covered by the Kentucky act involved herein. Laws 1906, p 282, c. 48. He maintains that said act covers only that which is a food, and said article is not a food, but a medicine. I think the distinction between what is a 'food' and what is a 'medicine' is clear, and there can be no question that said act covers the former, and not the latter. A 'condiment' is a food, and not a medicine. It is therefore covered by the act, and that by express terms, but the act is not prevented from covering that which is a food because it is a medicine also.

Conceivably an article may be a food and a medicine both, and that when used in the same way, i.e., when taken internally. Such an article is covered by the act notwithstanding its medicinal quality.

I have considered the evidence carefully and have reached the conclusion that the article of plaintiff's manufacture is a food-- probably it is better to say that it is a condiment-- and that such is the effect of his representations and claims in regard thereto. Undoubtedly he claims it to be a medicine also, and it may be said that the stress of his claims lies here; but in a real sense it must be said to be at least a 'condimental food,' and hence that it is covered by the act. Plaintiff is in no position to complain of his article being treated as what he calls it. The evidence shows that his action in naming it a food was not purely arbitrary, but based on reality.

The act itself is not unconstitutional. It is an inspection law, and the states have the right to pass inspection laws. This is expressly recognized in the second clause, Sec. 10, art. 1 of the federal Constitution; but, this apart, a state has power to enact inspection laws, even though it affects interstate commerce, at least in the absence of congressional legislation making a difference in the situation. This is on the ground that Congress by its nonaction has impliedly consented to the enactment thereof, i.e., Congress, instead of regulating interstate commerce in such particular directly, does so through the state Legislature enacting the law. At the time of the passage of the Kentucky act and its going into force, the federal pure food law (Act June 30, 1906, c. 3915, 34 Stat. 768 (U.S. Comp. St. Supp. 1907, p. 928)) had not been enacted.

The position that the act is valid as an inspection law finds direct support in the case of Patapsco Guano Co. v. Board of Agriculture, 171 U.S. 351, 18 Sup.Ct. 862, 43 L.Ed. 191. The case of Bowman v. Chicago & N.W.R. Co., 125 U.S. 465, 8 Sup.Ct. 689, 1062, 31 L.Ed. 700, is not to the contrary. The law involved there was not an inspection law.

It is claimed that said act is unconstitutional, in that it authorizes the director of the Agricultural Experiment Station to take as much feeding stuff as he might desire provided he confined himself to two pounds from every package. I do not think that such is the meaning of this provision of the act. An inspection law can properly provide the taking of so much of an article covered by it as is necessary for analysis in order to determine its true nature. This is just as proper as a fee for the inspection. ...