and putrid in 13 days. With 10 per cent. of water and no cereal, it will become moldy and sour in 10 days and putrid in 13 days. With 10 per cent. of water and 2 per cent. of cereal, it will become moldy in 6 days and sour and putrid in 10 days. With no water and 5 per cent. of cereal, it will become moldy and putrid in 13 days. With 3 per cent. of water and 5 per cent. of cereal, it will become moldy in 10 days and putrid in 13 days, exactly the same time required for pure sausage to become moldy and putrid. With 10 per cent. of water and 5 per cent. of cereal, it became moldy and sour in 10 days. With 20 per cent. of water and 5 per cent. of cereal, it became moldy in 6 days and putrid in 10 days; and the same was true with 20 per cent. of water and 10 per cent. of cereal. It is claimed that the diminished life of the product is due to fermentation in the corn flour and water. While the length of life of the product seems to slightly vary in inexplicable manner, we shall assume that sausage, cereal, and water will become moldy in 6 days, which we shall also assume would stop its sale, while pure sausage would last 10 days. Does this authorize the Secretary of Agriculture to stop its sale while sound?

Regulation 18, section 1, paragraph 1, is:

"All meat and products, whether fresh or cured, even though previously inspected and passed, shall be reinspected by bureau employés as often as may be necessary, in order to ascertain whether the same are sound, healthful wholesome, and fit for human food at the time the same leave official establishnrents. If upon such reinspection any article is found to have become unsound, unhealthful, unwholesome, or in any way unfit for human food, the original mark, stamp, or label thereon shall be removed or defaced and the article condemned."

This regulation is clearly within the power of the Secretary of Agriculture, and enables him to see that no product is sold after it becomes moldy, sour, rancid, or putrid. It is a matter of common knowledge that there is the greatest variance in the keeping qualities of organic substances sold for human food. Some early summer apples are short-lived, while others will keep until the next crop is harvested. Could a public officer, who had the power to pass upon whether apples were sound, healthful, wholesome, and fit for human food, condemn summer apples, when they were faultless, because they would not keep as long as Ben Davis, for example? Can food be pronounced unsound, unhealthful, unwholesome, or unfit for human food because within some number of days after its manufacture and sale it may possibly become so?

The compound here in question is ordinarily delivered to the retailer within 24 hours and to the consumer within 48, and upon the assumption that we have made would grow moldy in 6 days, reaching the consumer 4 days before it has so far deteriorated as to become moldy. That is a matter concerning which the Secretary of Agriculture has nothing to do under the law. There is no claim that if the packers kept pure sausage for 4 days, and then offered to sell it to the retailer, the Department of Agriculture could prevent such sale, although confessedly it would have no longer life than the composition produced by the complainants has. While the answer in the fifth paragraph de

nies that the cereal used is wholesome, there is much evidence that it is wholesome, and none that it is not. The Department now claims that the chief ingredient of the cereal is starch, and that to make this readily digestible it is required to subject it to more heat than the housewife ordinarily applies, and the failure to do this reduces the speed of digestion. Again, there is great variance in organic matter sold as food in the speed with which it is digested. Such variance does not constitute any of the food unsound, unhealthful, or unwholesome as these terms are used in the law.

We have already held that the Secretary of Agriculture may by his control over the labels prevent the sale of sausage and cereal under any false or deceptive name, and in this sense his regulations are valid that sausage shall not contain over 2 per cent. of cereal; but he has absolutely no power to refuse to have "passed" sausage and cereal which contains more than 2 per cent. of cereal, and if he has attempted to go further he has attempted to rewrite the act of Congress in his official capacity, and, if so, such assumption of authority by him is not conclusive on all the world. If he wants a law which will enable him to prepare formulas further than the present law does, he may or may not succeed in modification of the existing law.

[2] The defendants contend that the action of the Secretary of Agriculture in declaring meat products unsound, unhealthful, or unwholesome is conclusive. We have already shown that the Secretary has never in fact held that sausage and cereal were unwholesome; but, if he had, his finding would not be conclusive.

The first case cited by appellees is Marbury v. Madison, 1 Cranch, 137, 166, 2 L. Ed. 60. In that case the court said:

"The conclusion from this reasoning is that, where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy."

And on page 170 of 1 Cranch (2 L. Ed. 60):

"Where the head of a department acts in a case, in which executive discretion is to be exercised, in which he is the mere organ of executive will, it is again repeated that any application to a court to control in any respect his conduct would be rejected without hesitation. But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully forbid, and therefore is never presumed to have forbidden, as, for example, to record a commission, or a patent for land, which has received all the legal solemnities, or to give a copy of such record, in such cases it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment, that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department."

In that case it was held an original action in the Supreme Court for mandamus could not be maintained, but that opinion shows it could have been maintained in a nisi prius court.

Appellees next cite Kendall v. United States, 12 Pet. 524, 9 L. Ed. 1181. That was a suit for a writ of mandamus against the Postmaster General of the United States in the United States Circuit Court of the District of Columbia to compel him to credit the amount allowed by the Solicitor of the Treasury to certain contractors who were the relators in the suit. The court held that the Solicitor of the Treasury had by the act of Congress been created an arbitrator and that his findings were conclusive. This is now elementary. The other cases held that the writ of mandamus cannot run, and one that the writ of injunction cannot issue to control the decision of an executive officer, which we cheerfully concede to be the law.

In Bates & Guild v. Payne, 194 U. S. 106, 108, 24 Sup. Ct. 595, 597 (48 L. Ed. 894), which was started by a bill to compel the recognition by the Postmaster General of the right of the plaintiff corporation to have a periodical publication known as "Masters in Music" received and transmitted through the mails as a matter of the second class, and to enjoin defendant from enforcing an order theretofore made by him denying it entry as such, the court said:

"But there is another class of cases in which the rule is somewhat differently, and perhaps more broadly, stated; and that is, that where Congress has committed to the head of a department certain duties requiring the exercise of judgment and discretion, his action thereon, whether it involve questions of law or fact, will not be reviewed by the courts, unless he has exceeded his authority or this court should be of opinion that his action was clearly wrong."

The case most nearly in point of any called to our attention is that of School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 23 Sup. Ct. 33, 47 L. Ed. 90. That was a case of a fraud order issued against the complainant by the Postmaster General. In the first place, that was a case involving an alleged healing system, which is, of course, somewhat similar to determining the question of wholesomeness of food. The court said:

"That the conduct of the Post Office is a part of the administrative department of the government is entirely true, but that does not necessarily and always oust the courts of jurisdiction to grant relief to a party aggrieved by any action by the head or one of the subordinate officials of that department which is unauthorized by the statute under which he assumes to act. The acts of all its officers must be justified by some law, and in case an official violates the law to the injury of an individual the courts generally have jurisdiction to grant relief."

And again:

"Conceding, arguendo, that when a question of fact arises, which, if found in one way would show a violation of the statutes in question in some particular, the decision of the Postmaster General that such violation had occurred, based upon some evidence to that effect, would be conclusive and final, and not the subject of review by any court, yet to that assumption must be added the statement that if the evidence before the Postmaster General, in any view of the facts, failed to show a violation of any federal law, the determination of that official that such violation existed would not be the determination of a question of fact, but a pure mistake of law on his part, because the facts

being conceded, whether they amounted to a violation of the statutes, would be a legal question and not a question of fact. Being a question of law simply, and the case stated in the bill being outside of the statutes, the result is that the Postmaster General has ordered the retention of letters directed to complainants in a case not authorized by those statutes."

And again:

"The facts, which are here admitted of record, show that the case is not one which by any construction of those facts is covered or provided for by the statutes under which the Postmaster General has assumed to act, and his determination that those admitted facts do authorize his action is a clear mistake of law as applied to the admitted facts, and the courts, therefore, must have power in a proper proceeding to grant relief. Otherwise, the individual is left to the absolutely uncontrolled and arbitrary action of a public and administrative officer, whose action is unauthorized by any law and is in violation of the rights of the individual."

That whole case is worthy of careful consideration.

In Howe v. Parker, 190 Fed. 738, at page 746, 111 C. C. A. 466, at page 474, this court, speaking by Sanborn, Presiding Judge, said:

"Whether or not the weight of evidence in substantial conflict sustains the one or the other side of an issue of fact is a question upon which, in cases within his jurisdiction, the final decision of the Secretary of the Interior is conclusive, in the absence of fraud or gross mistake. But whether or not there is at the close of a final trial or hearing before him any evidence to sustain a charge or a finding of fact in support of it is in his and in every judicial and quasi judicial tribunal a question of law. Ward v. Joslin, 186 U. S. 142, 147, 22 Sup. Ct. 807, 46 L. Ed. 1093; United States Fidelity & G. Co. v. Board of Com'rs, 145 Fed. 144, 151, 76 C. C. A. 114, 121; Laing v. Rigney, 160 U. S. 531, 540, 16 Sup. Ct. 366, 40 L. Ed. 525; Southern Pacific Co. v. Pool, 160 U. S. 438, 440, 16 Sup. Ct. 338, 40 L. Ed. 485; The Francis Wright, 105 U. S. 381, 387, 26 L. Ed. 1100; Clement v. Insurance Co., 7 Blatchf. 51, 53, 54, 58, Fed. Cas. No. 2,882; Delaware, Lackawanna & Western R. Co. v. Converse, 139 U. S. 469, 472, 11 Sup. Ct. 569, 35 L. Ed. 213. And an injurious error of the Secretary in finally deciding that question presents good ground for relief in equity. The Land Department of the United States is a quasi judicial tribunal, invested with authority to hear and determine claims to the public lands subject to its disposition, and its decisions of the issues presented at such hearings are impervious to collateral attack. But its judgments and patents do not conclude the rights of claimants to the land. They rest on established principles of law and fixed rules of procedure, the application of which to each case conditions its right decision, and if the officers of the Land Department are induced to issue a patent to the wrong party by an erroneous view of the law, or by a gross mistake of the facts proved, or by a decision induced by fraud, the rightful claimant is not remediless. He may in a court of equity avoid the effect of the decision and the patent, and charge the legal title derived from it with a trust in his favor"—citing numerous authorities.

It is claimed that, while complainants sold their sausage and cereal at less than the price of sausage, they did not make such a reduction as they might have made, and this was a fraud upon the public, and makes complainant's hands unclean, and the rule that he who comes into a court of equity must come with clean hands precludes a recovery by them. That plaintiff sold the combination cheaper than pure sausage and at an agreed price, even though it may have given them a somewhat larger profit than they could realize on pure sausage, was not such a fraud as to preclude their maintaining this action.

The case is reversed and remanded, with directions to the District

Court to set aside its decree dismissing the complainant's bill and award plaintiffs a decree substantially as prayed, reserving the right of the defendants to apply for a modification of the injunction upon a showing that the Secretary has adopted new regulations as to labeling sausage and cereal, requiring that the label show that cereal in excess of 3 per cent. and water are used in the compound.

AMIDON, District Judge (dissenting). This case has followed an unusual course, and has led to unfortunate results. When it was here on appeal from the order denying the preliminary injunction, this court, without any judicial investigation of the facts, decided that the name "sausage" could be deprived of its false and deceptive character, when applied to plaintiff's product, by the use of qualifying words, and ordered the temporary injunction to issue. The case then went back to be tried in the lower court upon the merits, but this court had already precluded such an investigation. Our decision was held to be binding upon the trial court that the name was not false and deceptive, and that court was shut up to an investigation of whether plaintiff's product was unwholesome. The result is that the question whether the name is false and deceptive, as used in the channels of trade, is finally decided by this court against the decision of the Department solely on bill and answer, and without any investigation of the question. Fortunately, if this case shall be taken to a higher court for review, our decision on the appeal from the order denying a temporary injunction will be open for re-examination. I shall therefore take occasion now to express my own views upon both branches of the case.

Speaking first to the question of unwholesomeness, the trial court has found as the result of the evidence adduced at the trial that plaintiff's product is unwholesome, and this is in accord with the findings of the department. I think those findings are binding upon this court, and should not be disturbed, and upon that ground the decree should be affirmed.

The case for the government, however, is much stronger upon the ground that the use of the name "sausage," either singly or in connection with other words, when applied to plaintiff's product, is false and deceptive, and I shall now state my views on that subject.

"No 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 or deceptive, and which shall be approved by the Secretary of Agriculture are permitted."

This is the provision of the Meat Inspection Law upon which this case turns. It does not help to a proper decision to emphasize the part of the law which deals with unwholesome meat as a reason for minimizing the provision which I have quoted. By a later section of the statute the Secretary of Agriculture is given full power to make rules and regulations necessary to carry all provisions of the law into effect.

The difference of view between myself and the majority of the court may be stated in a few words. They believe that the Secretary