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"And provided further, that nothing in this act shall be construed as requiring or compelling proprietors or manufacturers of proprietary foods, which contain no unwholesome ingredients, to disclose their trade formulas, except in and regulations of the state board of health, may so far as the provisions of this act, or the rules require to secure freedom from adulteration or misbranding."

may require to secure freedom from adulteration [ been inserted by the state Legislature, they or misbranding.' Section 8. We have already not appearing in the federal act: noted the limitations of the provisions referred to. And it is clear that this proviso merely relates to the interpretation of the requirements of the act, and does not enlarge its purview or establish a rule as to matters which lie outside its prohibitions. Is, then, a denial to the state of the exercise of its power for the purposes in question necessarily implied in the federal statute? For when the question is whether a fed eral act overrides a state law, the entire scheme of the statute must, of course, be considered, and that which needs must be implied is of no stantial difference. Section 3 of the Kansas These italicized words make a very subless force than that which is expressed. If the purpose of the act cannot otherwise be acact provides that "the state board of health complished-if its operation within its chosen is authorized and directed to make and pubfield else must be frustrated and its provisions lish uniform rules and regulations, not in be refused their natural effect-the state law conflict with the laws of this state, for carmust yield to the regulation of Congress within rying out the provisions of this act"; and the sphere of its delegated power. [Citing cas-under this authority regulation 6 was adoptes.] But the intent to supersede the exercise ed and published, which requires manufacby the state of its police power as to matters not covered by the federal legislation *is not to turers of certain proprietary foods, including be inferred from the mere fact that Congress Syrups that are compounds, mixtures, or has seen fit to circumscribe its regulation and blends, to state definitely apon the principal to occupy a limited field. In other words, such label the percentage of each ingredient. It intent is not to be implied unless the act of is insisted that the regulation goes beyond Congress fairly interpreted is in actual conflict the authority conferred upon the state board with the law of the state. This principle has because it is inconsistent with the definition had abundant illustration." of "misbranding" conta'ned in the act, and therefore cannot be deemed to be a regulation required to secure freedom from misbranding. Upon this particular point the opinion of the Kansas Supreme Court is silent; but the decision of the district court upon the demurrer sustained the validity of the regulation as being within the authority of the board; the Supreme Court did not overrule this; the question is one of state law; and we must

And, after citing many previous decisions of this court, and analyzing several of them, the opinion proceeds (225 U. S. 539, 32 Sup. Ct. 728, 56 L. Ed. 1182):

"Applying these established principles to the present case, no ground appears for denying validity to the statute of Indiana. That state has determined that it is necessary in order to secure proper protection from deception that pur-assume that the regulation, having been chasers of the described feeding stuffs should be suitably informed of what they are buying and has made reasonable provision for disclosure of ingredients by certificate and label, and for inspection and analysis. The requirements, the enforcement of which the bill seeks to enjoin, are not in any way in conflict with the provisions of the federal act. They may be sustained without impairing in the slightest degree its operation and effect. There is no question here of conflicting standards, or of opposition of state to federal authority. It follows that the complainant's bill in this aspect of the case was without equity."

An attempt is made to distinguish Savage v. Jones, upon the ground that the Indiana statute there under consideration covered a field of regulation which had not been included in the federal statute, whereas, it is said, the Kansas Food and Drugs Law is almost literally a reproduction of the federal law upon the same subject. It is true that the Kansas statute mutatis mutandis follows quite closely the lines of the act of Congress, and that its eighth section, which defines the term "misbranded," is almost a copy of the corresponding section of the federal act; but in the following proviso at the close of the section the words italicized have

adopted by the board and in effect sustained by the decision of the Supreme Court, is within the authorization of the statute. This being so, it must be treated as an enactment proceeding from the legislative power of the state; and hence it stands upon precisely the same basis as the requirement of the Indiana statute (quoted in 225 U. S. 504, 32 Sup. Ct. 715, 56 L. Ed. 1182, and referred to above) that commercial feeding stuffs should bear a label showing among other things a guaranteed analysis stating the minimum percentage of crude fat and crude protein and the ingredients from which the article was compounded. It was because of the absence from the federal act of a provision requiring the ingredients to be disclosed that this court held that Congress had limited the scope of its prohibitions and had not included that at which the Indiana statute aimed.

The Food and Drugs Act of Congress has not been changed in any material respect from the form it bore when Savage v. Jones arose. By Acts of August 23, 1912 (chapter 352, 37 Stat. 416), and March 3, 1913 (chapter 117, 37 Stat. 732 [Comp. St. § 8724]), section 8 has been amended, but not in any manner that affects the present question.

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The fact that the Kansas statute mutatis | Ct. 431, 57 L. Ed. 754, 47 L. R. A. [N. S.] mutandis follows quite closely the federal 984, Ann. Cas. 1915A, 39) upon the question act, and that section 8 defines the term whether the regulations of the state concern"misbranded" almost in the very words of ing the same subject-matter were in conflict the corresponding section of the act of Con- with the acts of Congress. The Wisconsin gress, with the significant difference in the statute was held to be in conflict because it final proviso to which we have called atten- required that packages of foodstuffs received tion, is not dispositive of the question wheth- through the channels of interstate commerce, er Congress has covered the field to the ex-bearing labels intended to be in compliance clusion of state regulation. This is to be de- with the act of Congress, while the goods termined by what the act of Congress omits, were still unsold and were in the possession not by what it contains, and by considering of the importer for the purpose of sale and whether, in words or by necessary implica- being exposed and offered for sale by him, as tion, Congress has prohibited the states from a condition of their legitimate sale within making any regulation in respect of the the state, should bear the label required by omitted matter. Further argument upon the the state law and none other-*in effect requestion is foreclosed by the decision in Sav- quiring the label that showed compliance age v. Jones that an omission from the act with the act of Congress to be removed from of Congress of a provision requiring feeding the package before the first sale by the imstuffs transported in interstate commerce to porter, and while the goods remained still give affirmative information as to the ingredi- subject to federal inspection. ents of the article amounted to a limitation by Congress of the scope of its prohibitions, and that, although not including that at which the Indiana statute aimed, Congress had not denied to the state, with respect to feeding stuffs coming from another state and sold in original packages, the power to prevent imposition upon the public by making a reasonable and nondiscriminatory *provision for the disclosure of ingredients and for inspection and analysis.

The judgment under review should be
Affirmed.

(249 U. S. 448) CITIZENS' BANK OF MICHIGAN CITY, IND., v. OPPERMAN.

(Argued March 17, 1919. Decided April 14, 1919.)

No. 234.

76(1)—CERTIORARI

16- REVIEW OF STATE COURT - FINAL JUDGMENT.

For purpose of review, whether by error or certiorari, under Act Sept. 6, 1916, § 2 (Comp. St. § 1214), judgment of highest court of state becomes final on its overruling petition

That decision is conclusive also upon this point: That the proviso in sec. 8 of the federal act that "nothing in this act shall be 1. APPEAL AND ERROR construed as requiring or compelling proprietors or manufacturers of proprietary foods which contain no unwholesome added ingredient to disclose their trade formulas, except in so far as the provisions of this act may require to secure freedom from adulteration to rehear. or misbranding," merely relates to the inter-2. CERTIORARI 40-To State Court-TIME pretation of the requirements of the federal act, and does not enlarge its purview or establish a rule as to matters which lie outside its prohibitions.

Savage v. Jones was decided after elaborate argument and upon full consideration. We see no reason to reconsider the conclusion there reached or to deny to the case its proper authority. Its doctrine was followed and applied in Sligh v. Kirkwood, 237 U. S. 52, 61, 62, 35 Sup. Ct. 501, 59 L. Ed. 835; Hebe Co. v. Shaw, 248 U. S. 297, 304, 39 Sup. Ct. 125.

It is argued that the present case is controlled rather by McDermott v. Wisconsin, 228 U. S. 115, 130, 33 Sup. Ct. 431, 57 L. Ed. 754, 47 L. R. A. (N. S.) 984, Ann. Cas. 1915A, 39, and in effect that this case must be taken as overruling Savage v. Jones. The contention is unfounded. The authority of the earlier decision was expressly recognized in the opinion of the court in the later; the distinction being placed (228 U. S. 131, 132, 33 Sup.

OF APPLICATION.

The three months from entry of judgment within which, under Act Sept. 6, 1916, § 6 (Comp. St. § 1228a), application for writ of certiorari, other than to the Supreme Court of the Philippine Islands, must be made that it Court, begins to run, in case of petition for remay be entertained by the National Supreme hearing,, from denial or other disposition of the petition.

3. COURTS 396(2)-ERROR TO STATE COURT -FEDERAL QUESTION.

Error to a state court cannot, under Act tained; the record showing that in the courts Sept. 6, 1916, § 2 (Comp. St. § 1214), be enterbelow there was not really drawn in question one of the federal questions authorizing it.

In Error to the Supreme Court of the State of Indiana.

Action by Mary Opperman against the Citizens' Bank of Michigan City, Ind. Judgment for plaintiff was affirmed by the Su

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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preme Court of Indiana (115 N. E. 55), and where is drawn in question the *validity of a defendant brings error. Dismissed.

Messrs. J. B. Collins and Worth W. Pepple, both of Michigan City, Ind., for plaintiff in

error.

Messrs. S. J. Crumpacker and Samuel

Parker, both of South Bend, Ind., for defend

ant in error.

statute of, or an authority exercised under any state, on the ground of their being re

pugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity." Section 2 (Comp.

St. § 1214). It also authorized this court to bring up for review and determination by certiorari "any cause wherein a final judgment or decree has been rendered or passed by the highest court of a state in which a decision Section 7855, Burns' Anno. Indiana Statutes validity of a treaty or statute of, or an aucould be had, where is drawn in question the 1914, provides:

*Mr. Justice McREYNOLDS delivered the opinion of the Court.

"A married woman shall not enter into any contract of suretyship, whether as indorser, guarantor, or in any other manner; and such contract, as to her, shall be void."

thority exercised under the United States, and the decision is in favor of their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repug nant to the Constitution, treaties, or laws of the United States, and the decision is against their validity." And it further distinctly directed that, except as to writs of certiorari addressed to the Supreme Court of the Philippine Islands, "no writ of error, appeal, or writ of certiorari intended to bring up any cause for review by the Supreme Court shall be allowed or entertained unless duly applied for within three months after entry of the judgment or decree complained of." Section 6 (section 1228a). Where a petition for rehearing is entertained, the judgment does not become final for purposes of our review until such petition has been denied or otherwise disposed of, and the three months' limitation begins to run from date of such denial or other disposition,

[1, 2] Relying upon this, defendant in error sued to recover a certificate of national bank stock issued in her name and held by plaintiff in error bank as security for her husband's indebtedness. The bank defended upon the theory that, exercising rights given by section 12 of the National Bank Act (Act June 3, 1864, c. 106, 13 Stat. 102; R. S. § 5139 [Comp. St. § 9676]), she transferred the stock to her husband, and in turn he had hypothecated it to secure his personal note. Being of opinion that the National Bank Act did not inhibit an inquiry concerning all the circumstances, the trial court permitted introduction of proof to that end; the jury found the bank had knowledge of facts sufficient to charge it with notice that the transaction amounted to a contract of suretyship by the wife; and judgment in her favor was affirmed by the state Supreme Court. A petition to rehear was overruled May 18, 1917, and at that time the judgment below became final for purposes of review here. Andrews v. Vir-424, 62 L. Ed. 932. Manifestly the applicaginian Railway Co., 248 U. S. 272, 39 Sup. Ct. 101, 63 L. Ed. 236; Chicago Great Western R. R. v. Basham, 249 U. S. 164, 39 Sup. Ct. 213, 63 L. Ed. 534, decided March 3, 1919. This writ of error was applied for July 13, 1917-within three months.

Act Sept. 6, 1916, c. 448, 39 Stat. 726, 727, 728, limited our power to review judginents or decrees in state courts which became final subsequent to date when it went into effect (October 6, 1916), upon writs of error, to those cases "where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or

Plaintiff in error presented its petition here for a writ of certiorari to bring up the present cause April 15, 1918; this was denied April 22, 1918. 246 U. S. 673, 38 Sup. Ct.

tion was not within the prescribed time.

[3] An examination of the record shows that in the courts below there was not really drawn in question (Wilson v. North Carolina, 169 U. S. 586, 595, 18 Sup. Ct. 435, 42 L. Ed. 865) "the validity of a treaty or statute of, or an authority exercised under the United States," or "the validity of a statute of, or an *authority exercised under any state on the ground of their being repugnant to the Constitution, treaties, or laws of the United States." Consequently we are without jurisdiction to entertain the writ of error and it must be

Dismissed.

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(249 U. S. 425)

BOARD OF PUBLIC UTILITY COM'RS V.
COMPANIA GENERAL DE TABACOS

DE FILIPINAS.

on which the order was based and which the court held invalid. That provision therefore is no longer in force, and it is to the new provision that the board and carrier

(Submitted March 18, 1919. Decided April 14, must give effect. Even if the original pro

1919.) No. 253.

[blocks in formation]

vision was valid, the order made under it became inoperative when the new provision was substituted in its place. Whether the order was based on a valid or an invalid statute consequently has become merely a moot question.

[2] In this situation we are not called upon to consider the propriety of the judgment below, the proper course being, *as is shown by many precedents, to reverse the judgment and remand the cause with a direction that it be dismissed without costs to either party. United States v. Schooner Peggy, 1 Cranch,

2. APPEAL AND ERROR 1107-MOOT QUES-103, 2 L. Ed. 49; New Orleans Flour InspecTION-REVERSAL WITH DIRECTIONS.

Where, pending appeal, the question has become moot, judgment will be reversed, and cause remanded, with directions that it be dismissed, without costs.

tors v. Glover, 160 U. S. 170, 16 Sup. Ct. 321, 40 L. Ed. 382, and 161 U. S. 101, 16 Sup. Ct. 492, 40 L. Ed. 632; Dinsmore v. Southern Express Co., 183 U. S. 115, 22 Sup. Ct. 45, 46 L. Ed. 111; United States v. HamburgPacketfahrt-Actien Gesell

Appeal from and in Error to the Supreme Amerikanische Court of the Philippine Islands.

Proceeding by the Compania General de Tabacos de Filipinas against the Board of Public Utility Commissioners. Judgment for petitioner (34 Phil. Rep. 136), and respondent appeals and brings error. Reversed, with directions.

*Messrs. Edward S. Bailey and S. T. Ansell, both of Washington, D. C., for appellant and plaintiff in error.

Mr. F. C. Fisher, of Manila, P. I., for appellee and defendant in error.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

By a judgment rendered March 6, 1916, the court below annulled an order of the Board of Public Utility Commissioners of the Philippine Islands requiring a corporate common carrier to report annually various matters pertaining to its finances and operations, the ground of the judgment being that section 16 (e) of Act 2307 of the local Legislature, under which the board acted, violated the organic law of the Philippines (32 Stat. 691, c. 1369), in that it confided to the board the determination of what the reports should contain and therefore amounted to a delegation of legislative power. 34 Phil. Rep. 136. The board brought the judgment here for review, and the carrier now suggests that through a change in the local statute the question on which the judgment turned has become merely a moot one.

schaft, 239 U. S. 466, 36 Sup. Ct. 212, 60 L. Ed. 387; Berry v. Davis, 242 U. S. 468, 37 Sup. Ct. 208, 61 L. Ed. 441.

Judgment reversed. Cause to be dismissed without costs to either party.

(249 U. S. 479) HOUSTON et al. v. ST. LOUIS INDEPENDENT PACKING CO. (Argued March 20, 1919.

1919.) No. 264.

Decided April 14,

1. FOOD 3-MEAT INSPECTION ACT-CONSTRUCTION OF STATUTE.

The provision of Meat Inspection Act June 30, 1906, requiring the Secretary of Agriculture to mark as inspected and passed products which contained no dyes and chemicals and are not unwholesome, must be construed in harmony with the later provision of the same act, forbidding the sale of meat products under false and deceptive names, and authorizing the Secretary of Agriculture to make rules and regulations for the enforcement thereof.

2. CONSTITUTIONAL LAW 73

SPECTION ACT-REGULATIONS.

MEAT IN

Whether the term "sausage," when applied false and deceptive, is a question of fact, the to a product containing cereals and water, is decision of which by the Secretary of Agriculture is conclusive under Meat Inspection Act June 30, 1906, where it is fairly arrived at, with substantial evidence to support it. 3. FOOD 1-MEAT INSPECTION ACT-REGULATIONS EVIDENCE.

[1] After the case was brought here the Legislature, by Act 2694, so amended section 16 (e) as to cause the section itself to prescribe in detail what such reports should Evidence held to show that the Secretary of contain and thereby abrogated the provision | Agriculture had sufficient reason to conclude

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*427

that the sale as sausage of a product contain- [ requirements of the regulation was wholeing more than 2 per cent. of cereal, or 3 per some and fit for human food and that the cent. of water or ice, would deceive purchasers, effect of the order would be to exclude its so that the adoption by him of a regulation pro- product from interstate commerce, to its hibiting such sale was not an abuse of discre- great and irreparable damage. The prayer tion, but was authorized under Meat Inspecwas that the defendants, the Secretary of tion Act June 30, 1906, prohibiting the sale of meat under deceptive name and authorizing reg- Agriculture and the officers subordinate to ulations to enforce its provisions. him, be enjoined from refusing to mark as "Inspected and passed" all "sausage" manufactured by the petitioner found to be sound, healthful, and wholesome, and which contained no dyes, chemicals, preservatives or ingredients which would render such "sausage" unsound, unwholesome or unfit for human food; that they be required by mandatory injunction to mark such "sausage" as "Inspected and passed," and that the regulation be declared to be unauthorized by law, null and void.

Appeal from the United States Circuit Court of Appeals for the Eighth Circuit.

Suit by the St. Louis Independent Packing Company against David F. Houston and others. A decree of the District Court dismissing the bill (231 Fed. 779) was reversed by the Circuit Court of Appeals (242 Fed. 337, 155 C. C. A. 113), and defendants appeal. Decree of the Circuit Court of Appeals reversed, and cause remanded.

Mr. Assistant Attorney General Frierson, for appellants.

Mr. Alexander F. Reichmann, of Chicago, Ill., for appellee.

The District Court denied the application, on the bill, for an injunction (St. Louis Independent Packing Co. v. Houston, 204 Fed. 120), but on appeal that holding was reversed and the case was remanded by the Circuit Court of Appeals (St. Louis Independent Packing Co. v. Houston, 215 Fed.

Mr. Justice CLARKE delivered the opin- 553, 132 C. C. A. 65). lon of the Court.

The Secretary of Agriculture, assuming to exercise authority under the Meat Inspection Act, approved June 30, 1906 (34 Stat. 669, 676, 678, c. 3913), promulgated a regulacion, effective April 1, 1913, in part as follows, viz.:

"Washington, D. C., Feb. 28, 1913. "For the purpose of preventing the use in interstate or foreign commerce of meat or meat food products under any false or deceptive name, under the authority conferred on the Sec retary of Agriculture by the provisions of the act of Congress, approved June 30, 1906 (34 Stat. 674), regulation 18 is hereby amended by the addition of sections 15 and 16, to read as hereinafter set out.

"James Wilson, Secretary of Agriculture. "(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 and mixing, in which case the added water or ice shall not exceed three per cent., except as provided in the following paragraph."

Immediately after the effective date of this regulation the appellee, an extensive manufacturer of sausage correctly interpreting it as prohibiting the marking, stamping or labeling as "sausage" any compound of chopped or minced meats containing cereal in excess of 2 per cent. and water or ice in excess of 3 per cent. (except as otherwise provided), filed the bill in this case in the District Court of the United States for the Eastern Division of the Eastern District of Missouri, averring that "sausage" made by it with cereal and water in excess of the

The Secretary of Agriculture then answered admitting that it was the purpose of the Department to refuse, and that it had refused, to mark as "Inspected and passed" as "sausage" the product of the appellee unless manufactured in compliance with the regulations complained of, and, as warrant therefor, he quoted in his answer from the act of Congress the following:

"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 Seo retary of Agriculture are permitted, and that 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 the Secretary of Agriculture not inconsistent with the provisions of this act."

*Answering the allegation of the bill that the appellee's trade in "sausage" would be ruined by the enforcement of the regulation, the Secretary of Agriculture averred that the appellee manufactured and sold large quantities of sausage which did not contain any cereal or added water, and

added:

"That the manufacture and sale of a product as sausage which product contains added cereal tiff's bill, or in any quantities in excess of the and water in quantities as described in plainamount designated in said regulation, effective April 1, 1913, is false and deceptive; that the ordinary consumer of sausage manufactured by

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