(242 Fed. 337)

ST. LOUIS INDEPENDENT PACKING CO. v. HOUSTON, Secretary of

Agriculture, et al.

(Circuit Court of Appeals, Eighth Circuit. May 7, 1917.)

No. 4692.

1. FOOD 3-MEAT INSPECTION ACT-CONSTRUCTION-REGULATIONS OF DE

PARTMENT.

The provision of Order No. 211, promulgated by the Secretary of Agriculture under Meat Inspection Act March 4, 1907, c. 2907, 34 Stat. 1260, and effective November 1, 1914, that sausage shall not contain cereal in excess of 2 per cent., nor water in excess of 3 per cent., if construed to include any compound or mixture, however labeled, as contended by the Department, is not within the power conferred on the Secretary to make regulations to carry out the purposes of the act; such purposes being to prohibit generally the sale of products which are unsound, unwholesome, or otherwise unfit for human food, or misbranded, without prescribing formulas for such products.

[Ed. Note.-For other cases, see Food, Cent. Dig. § 2.]

2. CONSTITUTIONAL LAW 74-ACTS OF ADMINISTRATIVE OFFICERS-REVIEW BY COURTS.

Where the head of a department is not acting for the executive, but in the performance of a duty specifically imposed upon him by a law of Congress, whether his acts, where they affect individual rights are within the powers conferred, is a question which the courts have jurisdiction to determine.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 124.] Amidon, District Judge, dissenting.

Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.

Suit in equity by the St. Louis Independent Packing Company against David F. Houston, Secretary of Agriculture, A. D. Melvin, Chief of the Bureau of Animal Industry, and James J. Brougham, Chief Inspector of such Bureau at St. Louis. Decree for defendants, and complainant appeals. Reversed.

For opinion below, see 231 Fed. 779. See, also, 215 Fed. 553, 132 C. C. A. 65.

Franklin Ferriss, of St. Louis, Mo. (A. B. Stratton, of Chicago, Ill., on the brief), for appellant.

W. H. Woodward, Asst. U. S. Atty., of St. Louis, Mo. (Arthur L. Oliver, U. S. Atty., of St. Louis, Mo., on the brief), for appellees.

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

SMITH, Circuit Judge. This suit was brought to obtain a temporary and permanent injunction "restraining Hon. David F. Houston, Secretary of Agriculture, Dr. A. D. Melvin, Chief of the Bureau of Animal Industry, and James J. Brougham, Chief Inspector of the Bureau of Animal Industry of the Department of Agriculture at St. Louis, and their and each of their assistants, deputies, inspectors, employés, representatives, and clerks, from refusing to mark, stamp,

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 155 C.C.A.-8

tag, or label as 'Inspected and Passed' all meat food products or sausage manufactured by your orator 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 that a mandatory injunction issue requiring the defendants to "mark, stamp, tag, or label as 'Inspected and Passed' all the meat food products or sausage manufactured by your orator found to be sound, healthful, and wholesome, and which contain no dyes, chemicals, preservatives, or ingredients which render said meat or meat food products unsound, unhealthful, unwholesome, or unfit for human food."

St.

Upon application to the District Court for a temporary injunction, it was denied, and complainant appealed, and the District Court was reversed, and a temporary writ of injunction ordered issued. Louis Independent Packing Co. v. Houston, 215 Fed. 553, 132 C. C. A. 65. We assume that upon receipt of the mandate a temporary injunction was issued by the District Court in accordance with our order, although that fact does not appear in the record. No notice was ever had upon Dr. A. D. Melvin, and he did not appear. Hon. David F. Houston, Secretary of Agriculture, and James J. Brougham, inspector in charge, filed separate answers in substantially the same form, the former on January 21, 1915. The case came on for trial at the September term, 1915, as between the complainants and the defendants answering, and upon the evidence the District Court on March 20, 1916, dismissed the bill at complainant's cost, and it appeals. The opinion of the District Court upon the application for a temporary injunction will be found in 204 Fed. 120, and its opinion upon final hearing, upon which its decree was reached from which this appeal was taken, is found in 231 Fed. 779. The case having been three times reported, we shall not make a full statement of the issues and evidence, but content ourselves with stating such new matters as will be necessary to an understanding of the case, leaving the history of it to be learned from the former opinions.

The appellees earnestly urge a change in our rulings on the former appeal, 215 Fed. 553, 132 C. C. A. 65. This we cannot consider. The former opinion constituted the law of the case. The authorities upon this are so numerous that we cannot cite them individually. They will be found fully reviewed and cited in 2 Enc. of U. S. Sup. Ct. Řepts. 412 to 415, and 12 Enc. of U. S. Sup. Ct. Repts. 142. In view, however, of the fact that the Secretary of Agriculture had not been served prior to the time of the former appeal, although his subordinate had been, we concede it is barely possible this rule does not apply to him. We therefore say that the argument in support of a change in our former rulings is not persuasive and the rulings are adhered to.

Notwithstanding its somewhat inaccurate statement in the bill, complainant has not been manufacturing sausage, but a compound which is embraced in the term "meat food products" and known as "sausage and cereal." Water is added, and the power of the Agricultural Department to compel the use of the word "water" in the name of the compound has never been questioned. Thus it can require that plain

tiff's product be labeled "sausage, cereal and water," if it deems such conduct proper, and it could even require that the label show the percentage of each article used. These meat food products have been marked for years by stamping upon every link of the sausage in large link goods the words "sausage and cereal." Where the links are very small, this has been put upon every third to fifth link. The same inscription is put upon the ten-pound cartons of shipment; but, as this does not reach the ultimate consumer, it will for the present be ignored. [1] It affirmatively appears that the complainant's manufacture contains no dyes, chemicals, preservatives, or ingredients that would render them unsound, unhealthy, unwholesome, or unfit for human food. The sole question on this branch of the case is whether cereal in excess of 2 per cent. or water in excess of 3 per cent. may be added to sausage not to be sold as sausage, but to be sold as sausage and cereal, or under such other name as the Secretary of Agriculture may prescribe, not, however, denying the right to use the word "sausage." When the practice of mixing cereal with sausage commenced in this country, the cereal was higher priced than the meat. One government witness stated that the mixture of cereal with sausage made the compound less speedy of digestion.

Let us now see what was decided on the former appeal. It was there said:

"The entire Meat Inspection Law (Act March 4, 1907, c. 2907, 34 Stat. 1260 [U. S. Comp. St. Supp. 1911, p. 1366]) was, as distinctly indicated in it, to prevent the sale of food which is unsound, unwholesome, or otherwise unfit for human use or misbranded. It was not the design of Congress in that law to provide standards of quality, except to prohibit the sale of food which was unsound, unwholesome, or otherwise unfit for human use, and secure true branding. The article in question, being sausage with cereal, or sausage and cereal, was not intended to be prohibited by Congress. The act of Congress did contemplate, however, that the purchaser should know what he was buying. We come now to the provision, inserted in section 16 of rule 18, that sausage shall not contain cereal in excess of 2 per cent. If this simply means that it shall not be sold as sausage, it possibly may have been valid; but the government does not contend that this is its true meaning. If it meant that sausage sold as such should not contain cereal in excess of 2 per cent., but that sausage and cereal might contain more, it might be sustained. But the contention is that the Secretary of Agriculture had power to prohibit the manufacture and sale of sausage and cereal, where the cereal was in excess of 2 per cent. This the Secretary of Agriculture had no power to do. * * The question is simply: Could he pronibit 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. A compound of beef and pork would not entitle the Secretary of Agriculture to prohibit the words 'beef' and 'pork' to appear in the title, and to condemn all such compounds on the label of which they appear."

*

It is claimed that the Secretary of Agriculture has issued, effective November 1, 1914, a new set of "Regulations Governing the Meat Inspection of the Department of Agriculture," and that previous regulations are abrogated thereby. This was, of course, long after the commencement of this suit. These new regulations omit the preamble to the order of February 28, 1913, referred to in 215 Fed. 553, 556, 132

C. C. A. 65, 68. The new regulations divide the substance of the circular in question, and so far as material are as follows:

"Section 9.

"Regulation 17. Labeling.

"Paragraph 2. When cereal is added to sausage within the limit prescribed by paragraph 4 of section 6 of regulation 18, there shall appear on the label in a prominent manner, contiguous to the name of the product, the statement 'cereal added.' When water in excess of 3 per cent. and cereal are added to certain kinds of sausage as permitted by paragraph 5 of section 6 of regulation 18, the same shall be labeled 'sausage, water, and cereal'; but when no cereal is added, the addition of water need not be stated.

"Paragraph 3. When cereal is added to any meat food product other than sausage in quantities not exceeding 5 per cent., the statement 'cereal added' shall appear on the label in a conspicuous manner contiguous to the name of the product, and if any such product contains cereal in quantities exceeding 5 per cent., then 'cereal' shall appear as a part of the name of the product in uniform size and style of letters, for example, 'potted meat and cereal': Provided, however, that products such as meat loaves, pates, soups, tripe with onion sauce, Irish stew, stewed kidneys, hash, chile con carne, tamales, boiled dinners, chop suey, scrapple, and the like, may contain cereal and similar substances without the presence of such substances being indicated on the labels."

"Regulation 18. Reinspection and Preparation of Meat and Products. "Section 6.

"Paragraph 4. Sausage shall not contain cereal in excess of 2 per cent. "Paragraph 5. Water or ice shall not be added to sausage, except for the purpose of facilitating grinding, chopping, and mixing, in which case the added water or ice shall not exceed 3 per cent., except that sausages of the class which are smoked or cooked, such as Frankfort style, Vienna style, and Bologna style may contain added water in excess of 3 per cent., but not in excess of an amount necessary to make the product palatable."

It is manifest that this is but a rearrangement of the order of February 28, 1913. The prayer of the bill is not to set aside any order of the Department of Agriculture, but has been heretofore set forth in full. Surely a mere rearrangement of the regulations without changing their meaning would not deprive the complainant of the right to maintain this action. It is claimed, however, that the omission of the preamble to the order of February 28, 1913, has a material effect, and while the preamble showed the order was made to prevent misbranding, its omission and the transfer of a portion of the order from "Labeling" to "Preparation of Meat and Products," makes it evident that the Secretary has found, as alleged in the fifth paragraph of his answer, that sausage and cereal with the cereal in excess of 2 per cent. is unwhole

some.

We will, for the purposes of this case, assume that the Agricultural Department has determined that sausage and cereal are not sound, healthful, and wholesome, although it appears that paragraph 3 of section 9 of the seventeenth regulation is in conflict with this assumption. It appears from the government's own testimony, as well as from this regulation itself, that under this provision the production of scrapple is permitted. Scrapple is defined by the Century Dictionary as:

"An article of food something like sausage meat, made from scraps of pork, with liver, kidneys, etc., minced with herbs, stewed with rye or corn meal,

and pressed into large cakes. When cold it is cut in slices and fried. It is of Pennsylvania Dutch origin."

Roughly speaking, scrapple is simply sausage and cereal; the latter, however, largely preponderating. It is not put up in any tin container, but as sold it is usually a loaf wrapped up. The Department permits Armour & Co., to make sosera, in which there is sausage and unlimited cereal and water. Other institutions put up other compounds of sausage and cereal under their fanciful names. Meat loaf is so composed and manufactured with the approval of the Secretary. In the actual administration of the law there is no controversy with the Department's officers, so long as they do not use the name "sausage" in the title.

We held in this case on the former appeal that the Department had no right to forbid the use of the word "sausage" on a compound in which it entered, provided the article was not sold under a false or fictitious name, and to that we adhere. When this and the Pure Food Law were pending in Congress, it was well known that there were two distinct plans for pure food legislation. One was to prescribe formulas; the other was to prescribe that food was to be sound, healthful, and wholesome, and that it should be truly branded. See United States v. Lexington Mill Co., 232 U. S. 399, 34 Sup. Ct. 337, 58 L. Ed. 658, L. R. A. 1915B, 774.

This is well illustrated by the controversy which has raged for years about so-called alum baking powders. A number of learned chemists have cheerfully testified on both sides of that question. One side has sworn that the use of alum in baking powder in considerable quantities would make it highly injurious to health; the other has sworn that, while this would be true if the alum was retained in the finished product, the function of a baking powder was to generate a gas, which, in expanding, would rend the product apart and make it light, and the gas in so doing escaped, and there was no alum in the finished product. Confronted by controversies like this, Congress passed the Pure Food Law and the Meat Inspection Law in the same session. In neither of them did it prescribe standards of quality, but it required true branding, and the Meat Inspection Law prohibited the sale of food which is unsound, unhealthful, unwholesome, or otherwise unfit for human use.

We are not prepared to say the regulation in question has any application to the manufacture and sale of sausage and cereal, as distinguished from sausage; but the attempt to so construe it is an attempt to make the act of Congress do just what Congress had no thought of doing-prescribe formulas.

It is claimed that sausage and cereal will decay more rapidly than sausage. The evidence for the defendants shows that under certain conditions fresh sausage, without any water or cereal, will become moldy in 10 days and putrid in 13. Under the same conditions, with 3 per cent. of water and no cereals, it will become moldy in 6 days and putrid in 13 days. With 3 per cent. of water and 2 per cent. of cereal, it will become moldy in 10 days and putrid in 10 days. With no water and 2 per cent. of cereal, it will become moldy and sour in 10 days