St. Louis Independent Packing Co. v. Houston

• Citation: 231 F. 779
• Decision Date: 20 March 1916
• Docket Number: 4156.
• Parties: ST. LOUIS INDEPENDENT PACKING CO. v. HOUSTON, Secretary of Agriculture, et al.
• Court: U.S. District Court — Eastern District of Missouri

231 F. 779

ST. LOUIS INDEPENDENT PACKING CO. v. HOUSTON, Secretary of Agriculture, et al.

No. 4156.

United States District Court, E.D. Missouri, Eastern Division.

March 20, 1916

Franklin Ferriss, J. H. Zumbalen, and Henry T. Ferriss, all of St Louis, Mo., for plaintiff.

Arthur L. Oliver, U.S. Atty., and W. H. Woodward, Asst. U.S. Atty both of St. Louis, Mo., for defendants.

DYER District Judge.

The complainant's bill now stands as it did when first presented to the court on an application for a mandatory injunction to restrain the defendants from refusing to mark as 'Inspected and passed' all sausage manufactured by complainant, and to have the court declare void a regulation promulgated by the Secretary of Agriculture on February 28, 1913. There has been no change whatever in any of the averments. It was upon the bill as it now stands that the court refused an injunction, and it was upon the averments in that bill alone that the Court of Appeals acted in reversing the judgment of this court. The Court of Appeals, in the opinion filed by it (215 F. 553, 132 C.C.A 65), said:

'Basing all our statements upon the allegations of the bill, which have never been controverted, sausage and cereal which contain no dyes, chemicals, preservatives, or ingredients which render such meat or meat food products unsound, unhealthful, unwholesome, and unfit for human food, and which is not by any other reason unsound, unhealthful, unwholesome, or unfit for human food, is not subject to condemnation under the meat inspection law, except as hereafter indicated. * * * The question is simply: Could he (the Secretary of Agriculture) prohibit the making of a compound, which was sound, healthful, wholesome, and free from dyes, chemicals, preservatives, or ingredients which render such unfit for human food by a mere regulation? We are constrained to say that he cannot.'

The converse of this proposition is necessarily this: That if such product in the opinion of the Secretary be unsound, unhealthful, unwholesome, and unfit for human food, it is within the power conferred upon him by law to prohibit, by regulation, such product from being sent in interstate commerce. Assuming that all the foregoing statements be true, what is the present attitude of the case now before the court? After the cause came back to this court, the defendant Houston (who had not prior thereto been served with process, and who had not entered his formal or voluntary appearance), was duly served with process. Thereafter, on the 21st of June, 1915, Houston, with his codefendants, filed answers to the bill. Then for the first time the allegations of the bill were 'controverted.' The cause was then brought to a hearing on the bill, answers, and proof. The answers of the defendants, while separate, are practically one and the same. Oral arguments by counsel were made and briefs by counsel were submitted.

The answer of the defendant Houston seems to be full and complete, and puts in issue nearly all of the material allegations of the bill. It will be only necessary to consider what seem to be the most important issues to be determined by the bill and answer. The answer to the fifth paragraph of the bill is as follows:

'Fifth. The defendant, for answer to the fifth paragraph of the bill, admits that a portion of the sausages manufactured by plaintiff are compounds and mixtures composed and manufactured in part from meat of hams, pork, spices, and cereals, if the sausage is of the type known as 'fresh pork sausage,' and from beef, ham, pork, cereals, spices, and other ingredients, if under the style known as 'Bologna' or 'Frankfurt' sausage; that the amount of cereal used in said compounds and mixtures composing said sausage is as much as from 1 to 10 per cent. of cereals, and that varying amounts of water are also used. And defendant alleges that the amount of water so used by plaintiff often equals 20 to 40 per cent. of the finished product.

'And the defendant, further answering said paragraph, denies that the cereal so used by plaintiff is wholesome, denies that the amount of water used depends upon the meat used, or the amount necessary for the compounding or mixture of the various ingredients; denies that said cereal is composed of ground grain; denies that the sausages manufactured by plaintiff as alleged therein are sound, healthful, or wholesome; and denies that said sausages contain no ingredients which render the sausages unsound, unhealthful, unwholesome, or unfit for human food.

'And defendant, further answering said paragraph, states that cereal is a substance which is inferior to the other ingredients composing the sausages manufactured by plaintiff.'

Answering the eleventh paragraph of the bill, the answer in part contains the following:

'Defendant further denies that the amount of cereal and water so used in the manufacture of said sausage did not in any way impair the food value of the product or its healthfulness or wholesomeness as a food.' The following denial is made to the twelfth paragraph of the bill:

'Defendant further denies that the said meat food products mentioned in said paragraph are sound, healthful, wholesome, or fit for human food.'

Answering the fourteenth and last paragraph of the bill, the defendant Houston says:

'Defendant, further answering, states that the manufacture and sale of a product as sausage, which product contains added cereal and water in quantities as described in plaintiff's bill, or in any quantities in excess of the amount designated in said regulation, effective April 1, 1913, is false and deceptive; that the ordinary consumer of sausage manufactured by this plaintiff has no knowledge or information that sausage contains cereal and added water, that such information is not conveyed to persons who purchase plaintiff's sausage at retail by any method of marking or branding now or heretofore in use by plaintiff, and that it is impracticable and impossible in the ordinary course of manufacture and distribution of sausage to mark or brand the same so that the purchaser at retail or the consumer will be informed as to the amount of cereal and water added thereto.

'Defendant further answering, states that the addition of cereal and water to sausage has for many years been condemned and disapproved by many authoritative writers and various well-known organizations familiar with and concerned in the manufacture and sale of sausage in this country and other countries; that such views and opinions of such writers and organizations have been widely published and discussed, and that this plaintiff knew, or in the reasonable and lawful conduct of its business ought to have known, of such views and opinions; and that such use of cereal and water in the manufacture of sausage constitutes a fraud and deception upon the purchaser and consumer, and the plaintiff as a manufacturer of sausage was and is in duty bound to conform its business to the requirements and provisions of said act of Congress and of said regulations of the Secretary of Agriculture, and that because of these facts no surprise, hardship, or injustice has been or will be sustained by or done to this plaintiff by the enforcement of this...