St. Louis Independent Packing Co. v. Houston

• Citation: 215 F. 553
• Decision Date: 27 May 1914
• Docket Number: 3974.
• Parties: ST. LOUIS INDEPENDENT PACKING CO. v. HOUSTON, Secretary of Agriculture, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

215 F. 553

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

No. 3974.

United States Court of Appeals, Eighth Circuit.

May 27, 1914

Franklin Ferriss, of St. Louis, Mo. (J. H. Zumbalen, Henry T. Ferriss and Matt G. Reynolds, all of St. Louis, Mo., on the brief) for appellant.

Homer Hall, Asst. U.S. Atty., of St. Louis, Mo. (Charles A. Houts U.S. Atty., of St. Louis, Mo., and Francis G. Caffey, of New York City, on the brief), for appellee James J. Brougham.

Before HOOK and SMITH, Circuit Judges, and AMIDON, District Judge.

SMITH Circuit Judge.

This is an appeal from an order denying a preliminary injunction. Plaintiff below, appellant here, owns and operates at St Louis, Mo., a slaughtering and packing establishment and sells its products in interstate commerce. Among these products are various combinations with sausage. Its plant and products have been under the inspection of the Department of Agriculture in pursuance of (Act June 30, 1906, c. 3913, 34 Stat. 669, 674) the meat inspection law. This portion of the act in question starts in its first subdivision with a declaration that it is for the purpose of preventing the use in interstate or foreign commerce of meat and meat products which are unsound, unhealthful, unwholesome or otherwise unfit for human food, and this subdivision provides for an ante mortem examination or inspection. The second subdivision provides for post mortem examinations and declares that they are for the purposes hereinbefore set forth. The fourth subdivision makes it the duty of the Secretary of Agriculture to inspect meat food products for the purposes herein before set forth, and provides that his inspectors shall mark, stamp, tag, or label, as--

"Inspected and passed' all such products found to be sound, healthful, and wholesome, and which contain no dyes, chemicals, preservatives, or ingredients which render such meat or meat food products unsound, unhealthful, unwholesome, or unfit for human food; and said inspectors shall label, mark, stamp, or tag as 'Inspected and condemned' all such products found unsound, unhealthful, and unwholesome, or which contain dyes, chemicals, preservatives, or ingredients which render such meat or meat food products unsound, unhealthful, unwholesome, or unfit for human food.'

The fifth subdivision has reference to meat and meat food products packed in any can, pot, tin, canvas or other receptacle or covering, and concludes:

'And no such meat or meat food products shall be sold or offered for sale by any person, firm, or corporation in interstate or foreign commerce under any false or deceptive name; but established trade name or names which are usual to such products and which are not false and deceptive and which shall be approved by the Secretary of Agriculture are permitted.'

In the nineteenth subdivision it is provided:

'Said Secretary of Agriculture shall, from time to time, make such rules and regulations as are necessary for the efficient execution of the provisions of this act, and all inspections and examinations made under this act shall be such and made in such manner as described in the rules and regulations prescribed by said Secretary of Agriculture not inconsistent with the provisions of this act.' The Attorney General of the United States on March 24, 1913, rendered an opinion that the provisions of the pure food law (Act June 30, 1906, c. 3915, 34 Stat. 768 (U.S. Comp. St. Supp. 1911, p. 1354)) which was passed on the same day as the meat inspection law, namely, June 30, 1906, are applicable to meat and meat food products.

Without passing upon the correctness of his ruling attention is called to the following provisions of the pure food law:

'It shall be unlawful for any person to manufacture * * * any article of food or drug which is adulterated or misbranded, within the meaning of this act. * * *

'Sec. 7. That for the purposes of this act an article shall be deemed to be adulterated: * * * In the case of food: First. If any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength.

'Second. If any substance has been substituted wholly or in part for the article.

'Third. If any valuable constituent of the article has been wholly or in part abstracted. * * *

'Sec. 8. * * * That for the purposes of this act an article shall also be deemed to be misbranded: * * * In the case of food. * * * Fourth. * * * Provided, that an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases:

'First. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accompanied on the same label or brand with a statement of the place where said article has been manufactured or produced.

'Second. In the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends, and the word 'compound,' 'imitation,' or 'blend,' as the case may be, is plainly stated on the package in which it is offered for sale.'

It is provided by section 3 of the pure food act:

'That the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor shall make uniform rules and regulations for carrying out the provisions of this act.'

It will be observed therefore that, while the power to make rules for the enforcement of the meat inspection law is vested exclusively in the Secretary of Agriculture, rules for the enforcement of the pure food law must be made by the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor.

Immediately upon the passage of the meat inspection law the Secretary of Agriculture promulgated a set of rules and regulations under the nineteenth subdivision of that law.

By regulation 18, subdivision 13, it was then provided:

'A meat food product that contains a substance or substances, including water, added for the purpose of adulteration and which lessens its food value shall bear a label stating that such substance or substances have been added.'

At some time on or prior to April 15, 1912, the Secretary of Agriculture promulgated the following service announcement:

'Labels for meat and food products to which cereal, potato flour, or similar substances are added will in the future be required to have the statements 'Cereal added,' 'Potato flour added,' etc., appear thereon in type of such size as will be in good proportion to the name of the product, provided the product does not contain more than five per cent. of cereal, potato flour, etc. If this percentage is exceeded the words 'Cereal,' 'Potato flour,' etc., must appear as a part of the name of the product in the same size and style type and on the same line; for example, 'Sausage and Cereal,' 'Sausage and Potato Flour."

In the same announcement and at the same time the Secretary of Agriculture promulgated the following:

'Referring to instructions in service announcement of April 15, 1912, page 26, under the heading 'Labeling of meat and meat food products containing added substances,' attention is called to the fact that this applies to ink brands and burning brands as well as to labels, cartons, etc. Such brands should bear the statement 'Sausage and Cereal' if cereal is added in excess of 5 per cent. or 'Cereal added' if not in excess of 5 per cent.'

On February 28, 1913, the Secretary of Agriculture, for the purpose of preventing the use in interstate and foreign commerce of meat or meat products under any false or deceptive name, under the authority conferred on the Secretary of Agriculture by the provisions of the act of Congress approved June 30, 1906 (34 Stat. 674), amended regulation 18 by the addition of section 16, as follows:

'Section 16. Paragraph 1. Sausage shall not contain cereal in excess of two per cent. When cereal is added its presence shall be stated on the label or on the product.

'Paragraph 2. Water or ice shall not be added to sausage, except for the purpose of facilitating grinding, chopping or mixing, in which case the added water or ice shall not exceed three per cent., except as provided in the following paragraph.

'Paragraph 3. Sausage of the class which are smoked or cooked, such as Frankfurt style, Vienna style, and Bologna style, may contain added water in excess of three per cent., but not in excess of an amount sufficient to make the product palatable. When water (in excess of three per cent.) and cereal are added to this class of sausages the statement 'Sausage, water and cereal' shall appear on the label or on the product but when no cereal is added the addition of water need not be stated.'

It is against the enforcement of this new section 16 of regulation 18 that this injunction was sought.

The word 'sausage' is defined by all the lexicographers as an article of food composed of meat, salt, and spices.

The bill alleges that the complainant's sausages are compounds and mixtures composed and manufactured from meat of hams, pork, spices, and cereals; that the amount of cereals used in said compounds and mixtures going to the preparation and making of said sausage is from 1 to 10 per cent. of wholesome cereal and a varying amount of pure water depending upon the meat used and the amount necessary for the compounding and mixture of the various ingredients, and that said cereal is not an inferior substance to the other ingredients entering into the compound or mixture composing sausage, but that said material...