United States v. Sixty-Five Casks Liquid Extracts

• Decision Date: 25 May 1909
• Parties: UNITED STATES v. SIXTY-FIVE CASKS LIQUID EXTRACTS.
• Court: U.S. Court of Appeals — Fourth Circuit

170 F. 449

UNITED STATES v. SIXTY-FIVE CASKS LIQUID EXTRACTS.

United States District Court, N.D. West Virginia.

May 25, 1909

Under Food & Drugs Act June 30, 1906, c. 3915, 34 Stat. 768 (U.S.Comp.St.Supp.1907, p. 928), the preliminary examination of an article within its provisions by the Department of Agriculture, and notice to the party from whom the sample is obtained of its adulteration or misbranding, as provided for in section 4, are not conditions precedent to a libel in rem for the forfeiture of articles seized for adulteration or misbranding under section 10.

The said Knowlton Danderine Company is a corporation organized under the laws of the state of Illinois, having a warehouse laboratory, and finishing department in Wheeling, in the state of West Virginia, and is the proprietor of a preparation for the hair which it markets in three-ounce six-ounce, and twelve-ounce bottles under the trade name of 'Danderine,' the formula of which is a trade secret and comprises liquid extracts and other ingredients. Parke Davis & Co., who are mentioned in the said libel as shippers are manufacturing pharmacists at Detroit, in the state of Michigan, and are under contract with the said Knowlton Danderine Company, the respondent in this proceeding, to compound the said formula and to cause the same to be transported and delivered in bulk in car load lots to the respondent at Wheeling, and no sale of the said danderine is made to the public or any outside purchasers until the said casks are emptied and the contents thereof placed in the properly marked bottles. The said casks are made of wood bound with iron hoops, and shipped like barrels, and for the purposes of safe transportation a sufficient number of casks each holding about 50 gallons, are used, which, when emptied by the respondent, are returned to the said Parke, Davis & Co. to be again refilled and shipped. Each and every one of the 65 casks mentioned in said libel contained a drug product accurately compounded in accordance with said formula, and said drug product contained an average of 10 per centum of alcohol. All of the said casks are marked in the same manner, with the exception that the figures, some of which show the number of gallons contained therein and others the number of casks, are marked in the same manner when shipped, and are marked wholly upon one end of the cask. Varying as to figures as aforesaid, each cask is marked as follows:

49 1/2

S 46022

Wheeling Terminal,

19th St. Delivery

Knowlton Danderine Company,

Wheeling, W. Va.

505 lbs.

(Image Omitted)

There are no other marks, brands, or labels upon the said casks or any of them, and the casks which are referred to in the said libel were marked in the manner hereinbefore indicated, and had no other marks, brands, or labels upon them. When the contents are removed from the said casks they are placed in bottles, and on each bottle is a printed label containing in plain letters the words 'Danderine Scalp Tonic, Alcohol 10 per cent.'

The said respondent has a spur track running into its building at Wheeling, upon which each car is left as soon after its arrival as possible, and the casks are removed from the car promptly by the respondent, which bottles and labels the contents, which process of bottling and labeling is known as the finishing process, and in pursuance of this custom the respondent had before the seizure of the casks, which was made in this proceeding, emptied 59 of the said 65 casks, and was engaged in bottling and labeling the same, and would have continued so doing until all of the 65 casks were bottled and labeled but for the seizure in this proceeding of the 6 casks which had not been emptied or bottled, though the last-mentioned 6 casks had been removed from the car in which they had been shipped and received.

The 65 casks mentioned in the said libel were shipped by Parke, Davis & Co. to the respondent by boat to Sandusky, in the state of Ohio, where they were transferred to a car which contained nothing else, and the said last-mentioned car was forthwith transferred from Sandusky, in the state of Ohio, to Wheeling, in the state of West Virginia, and was delivered upon the premises and in the building of the respondent, and was emptied at the time of the seizure of the said 6 casks.

The libel filed in this proceeding is based upon an examination of the samples of the contents of the said casks obtained from the respondent a few days prior to the filing of the said libel by a food and drugs inspector from the Department of Agriculture of the United States. The Secretary of Agriculture did not cause notice to the effect that it appeared from such examination of the said sample that the same was adulterated or misbranded to be given to the respondent as the owner and claimant thereof, or to any one else, before the matter was directed to the attention of the District Attorney, or before this proceeding was begun and the casks seized by the marshal.

After the United States marshal had seized 6 of the 65 casks of liquid extracts mentioned in the said libel, he permitted a food and drugs inspector of the Department of Agriculture to open one or more of the said casks of liquid extracts and to transfer and remove therefrom about 3 gallons of the contents thereof.

The situation and conditions as shown by the facts herein set forth were substantially the same from the time when the 65 casks involved in this proceeding were originally shipped from Detroit down to and including the present time.

Reese Blizzard, U.S. Atty., and E. M. Showalter, Asst. U.S. Atty.

Charles M. Woodruff, Henry M. Campbell, and Henry M. Russell, for intervener, Knowlton Danderine Co.

DAYTON, District Judge (after stating the facts as above).

The defenses relied on are: (a) That the food and drugs act (Act June 30, 1906, c. 3915, 34 Stat. 768 (U.S. Comp. St. Supp. 1907, p. 928)) does not require a drug product to be labeled, nor, if unlabeled, to bear any statement respecting the amount of alcohol contained, but, if labeled, the label must contain the statement. The casks in controversy were not labeled, therefore not subject to the provisions of the act. (b) The libel is predicated upon an examination of specimens under section 4 of the act; but the Secretary of Agriculture did not cause any notice to be given to the party from whom the samples were obtained, nor afford such party any opportunity to be heard. (c) The goods seized were, at the time of seizure, no longer in the 'package' or condition in which the importer received them, but had become merged with the property of the state, and were therefore not under the operation of the interstate commerce clause of the Constitution or of any law subsisting by virtue of such clause.

The 'original package' in this case was the car which was delivered upon the premises and into the possession of the defendant, and which had been entirely emptied of its contents before seizure of the 6 casks taken upon the warrant issued in this case. (d) Seizure of 6 casks upon a warrant for 65 casks was not authorized or legal. (e) In no event is a food or drug product subject to libel proceedings under section 10 of this act unless it is being or has been transported into another state for the purpose of sale. In this case the product seized was transported in bulk for the distinct purpose of being 'finished,' or, to use a nontechnical term, of being bottled and labeled; and it is admitted that, when ready for sale, the salable package bore a label containing a lawful statement respecting content of alcohol.

In support of the first ground of defense, it is contended that 'the courts of the United States in determining what constitutes an offense against the United States must resort to the statutes of the United States enacted in pursuance of the Constitution. ' In re Kollock, 165 U.S. 526 17 Sup.Ct. 444, 41 L.Ed. 813. That 'regulations prescribed by the President and by the heads of the departments, under authority granted by Congress, may be regulations prescribed by law, so as lawfully to support acts done under them and in accordance with them, and may thus have, in a proper sense, the force of law; but it does not follow that a thing required by them is a thing so required by law as to make the neglect to do the thing a criminal offense in a citizen, where the statute does not distinctly make the neglect in question a criminal offense. ' U.S. v. Eaton, 144 U.S. 688, 12 Sup.Ct. 767, 36 L.Ed. 591. And that, therefore, this court, in construing this statute, cannot be influenced by any departmental rules or regulations prescribed for its enforcement, but can look alone to the terms of the statute, penal in character, to ascertain whether or not the owner of these casks of liquid can be held either liable to criminal prosecution or to confiscation of its property. In construing the terms of the statute, it is further insisted that a...