State v. Eckenrode

Decision Date08 July 1910
Citation127 N.W. 56,148 Iowa 173
PartiesSTATE OF IOWA, Appellant, v. J. B. ECKENRODE, Appellee
CourtIowa Supreme Court

Appeal from Johnson District Court.--HON. R. P. HOWELL., Judge.

DEFENDANT was accused of a violation of what is known as the state pure food law. Upon trial in the district court he was acquitted and the state appeals.-- Affirmed.


H. W Byers, Attorney-General, and Chas. W. Lyon, Assistant Attorney-General, for the State.

Wade Dutcher & Davis, and Philemon S. Karshner, for appellee.



The case was tried on an agreed statement of facts and the only questions argued by counsel are whether or not, on the agreed facts, defendant was engaged in interstate commerce. The Attorney-General concedes that if he was so engaged the judgment is correct, and should be sustained. In view of this concession we are relieved of the necessity of determining whether or not the state, in the exercise of its police power, may not prohibit the sale of misbranded goods, although they may be the subject of interstate commerce and be sold in unbroken packages. The concession is bottomed in part upon the fact that Congress has acted upon the same subject and attempted to control this matter in so far as it relates to interstate shipments. See chapter 3915, Act June 30, 1906 (59th Cong.) 34 Stat. 768 (U.S. Comp. St. Supp. 1909, p. 1187).

The latter act, so far as material, reads as follows:

Sec. 2. . . . Any person . . . who shall receive in any state or territory or District of Columbia, from any state or territory or the District of Columbia or foreign country and having so received shall deliver in original unbroken packages for pay or otherwise, or offer to deliver to any person any such article so adulterated or misbranded within the meaning of this act . . . shall be guilty of a misdemeanor. . . .

Sec. 3. 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, including the collection and examination of specimens of foods and drugs . . . which shall be offered for sale in unbroken packages in any state other than that in which they shall have been respectively manufactured or produced. . . .

Sec. 10. That any article of food, drug or liquor that is adulterated or misbranded within the meaning of this act, and is being transported from one state, territory, district or insular possession to another, for sale, or having been transported, remains unloaded, unsold, or in original unbroken packages . . . shall be liable to be proceeded against. . . .

Counsel for the state contend that the trial court was in error in holding that the goods which defendant sold were in original packages, and, further, that under the agreed facts the articles which defendant had, became a part of the general mass of property within the state and were subject to its policy regulations.

From the agreed facts we extract the following as bearing upon the issues of law presented:

On or about the 17th day of December, 1908, defendant had in his possession in Iowa City, Johnson county, Iowa for the purpose of delivering in said county a certain food product known as wheat flakes, the package or carton of which bore the printed statement marked 16 ounces, when in fact said package contained a less not weight than 16 ounces, the net weight of one of said packages being 12 1/2 ounces; said defendant, J. B. Eckenrode, was then and there in the employment of the Citizens' Wholesale Supply Company, a corporation organized under the laws of Ohio, with its principal place of business at Columbus, in said state, under the terms of a printed contract, a copy of which is hereto attached marked, Exhibit A. In pursuance of said employment the said defendant theretofore solicited orders from various residents of Iowa City; said orders being in writing, the following being a copy of the form used:

The Citizens' Wholesale Supply Company, Columbus, Ohio--Gentlemen: Please ship from your W. Ho. at Columbus, O., and deliver to me at the point indicated on the back of this order the following bill of goods ordered from your salesman:

Packed only in AMT. QUANTITY Bulk goods packed

AMT. QUANTITY L Regular sizes

R 5, 10, 15, 20, 25 1b.


Natural Leaf Tea,

Roasted Gold R Blend Coffee,

Baking Powder,


Pepper, Cayenne, Ground,

Coffee Maker,

Allspice, Ground,

Coffee Mill,


Axle Grease--Golden Rule,

G. R. Medicines, (L)

*Fruit Jar, Wrench & Holder,

Old Colony,

Fruit Jar, Lid Straightener,

Root Beer,

C. G. R. Toothpicks,

G. R. Soda,



Total Amount,

*Sell both if possible.

Goods shipped to be as good as sample shown by



Post Office

In taking said orders each customer gave a separate order and each order contained a description of the particular goods ordered by said customer; said customers did not sign said orders, but the defendant himself signed the name of said customers to the same; each order bore a serial number for the purpose of identification and the purchase price of each item in each order was set opposite the item ordered; each order upon the reverse thereof contained its serial number the date when taken, the amount of the order and name and address of the purchaser, and the name of the salesman. Said orders were by said defendant forwarded by mail to the Citizens' Wholesale Supply Company, at Columbus, Ohio, daily as taken, and there accepted by the Citizens' Wholesale Supply Company. A duplicate of each order was left with the purchaser at the time the order was solicited, and at convenient times the Citizens' Wholesale Supply Company aggregated the orders received from the defendant, and selected in said city of Columbus, Ohio, the goods described in said order in sufficient quantities to fill all the orders received at that time. Said goods were then packed for shipment in boxes of convenient size, each box containing a number of packages ordered by said customers, and, in this particular case, each box containing a number of the packages of wheat flakes and other articles ordered by said customers. The contents of said boxes were composed exclusively of goods previously ordered in the manner hereinbefore described; but no particular package of wheat flakes was designated by any mark thereon as the property of any particular customer. Said boxes thus prepared for shipment were consigned to the defendant at Iowa City, Iowa and delivered to a transportation company at said city of Columbus in said state of Ohio. Upon their arrival at Iowa City, Iowa the defendant opened said boxes in a wareroom rented by said Eckenrode in pursuance of his said employment, in Iowa City, Iowa and the contents of said boxes were taken therefrom as convenience in delivering required, and among the contents of which boxes were the packages of wheat flakes hereinbefore referred to and in controversy in this action. Said packages were then taken by said defendant and delivered to the persons in Iowa City, Iowa who had given orders for the same. This delivery was made by taking sufficient numbers of packages to fill various orders taken from convenient localities and placed in a conveyance, and said conveyance was driven to the homes of the persons giving said orders and there the goods called for by said order were delivered to said customers respectively.

In the opening of said large boxes in said wareroom in Iowa City, the contents were taken out of the boxes and and were set about the room, as suited the convenience of defendant in making said delivery.

Upon the delivery of the goods ordered to the respective customers giving said orders, payment was made to said Eckenrode in cash therefor, in accordance with the terms of the order.

The Citizens' Wholesale Supply Company did not manufacture or pack the wheat flakes in question, but the same were manufactured and packed by the Lake Odessa Cereal Company, of Lake Odessa, Mich., and delivered by Eckenrode in the identical packages in which they were packed by said company. The said wheat flakes were purchased by the Citizens' Wholesale Supply Company from the said Lake Odessa Cereal Company under the written guaranty of said Lake Odessa Cereal Company that the wheat flakes and the packages containing them complied with the act of Congress of June 30, 1906, regulating interstate traffic in foods and drugs.

All goods, delivery of which was not accepted by the customers, were returned by the defendant to the Citizens' Wholesale Supply Company, at Columbus, Ohio.

The money collected by the defendant upon the delivery of said goods, less the expense of the delivery of the goods, and his commission for soliciting said orders in making said delivery in accordance with his contract of employment, was sent to the Citizens' Wholesale Supply Company at Columbus, Ohio and said defendant was under bond to the Citizens' Wholesale Supply Company to account for the moneys collected.

No delivery of goods was made by the defendant in Iowa City, Iowa except as above stated and he had no goods in his possession for delivery, except under the circumstances above set out.

On or about the 17th day of December, 1908, while the defendant was in the act of making the delivery as above set forth, the packages of wheat flakes in question were delivered to M. E Flynn, state food inspector, upon his request, and at the time said packages were delivered there were numerous packages of groceries and articles of food in packages strewn about the room from which said goods were delivered and where said goods were stored, but that all of said packages of groceries and other food products were...

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