BRANDING OR LABELING FOOD AND DAIRY PRODUCTS.

The act of July 1, 1902 (32 Stat., 632), which prohibits the false labeling or branding of dairy and food products which enter into interstate commerce, does not provide that such products shall be labeled or branded so as to show the State or Territory in which they are produced. It provides merely that such products shall not be falsely labeled or branded as to the State or Territory in which they are made, produced, or grown. The mere omission, in the instances given, of the place of manufacture can not be said to be in violation of that law; nor is the name of the wholesale dealer on the label or brand necessarily a representation that he is the manufacturer or producer.

DEPARTMENT OF JUSTICE, September 20, 1902. SIR: Your letter of the 13th instant contains the following

statement:

In

"It is common practice for canned goods and other artiticles of food to be labeled with the name of the wholesale grocer, often without the name of the manufacturer. some cases such goods are manufactured in one State and bear only the name of the wholesale grocer whose place of business is in another State. A typical label of this nature is the following: Packed for W. L. Taylor Co., Ltd., wholesale grocers, Shreveport, La.' Another class of labels omits the words 'packed for,' and also wholesale grocers.' For instance, "The T. C. Brand Lima Beans, W. F. Taylor Co., Ltd., Shreveport, La.""

You ask to be informed whether, in my opinion, "these labels would be held to violate public law No. 223, enacted by the last Congress and approved July 1, 1902?"

The first section of the act mentioned provides:

"That no person or persons, company or corporation, shall introduce into any State or Territory of the United States or the District of Columbia, from any other State or Territory of the United States or the District of Columbia, or sell in the District of Columbia or in any Territory any dairy or food products which shall be falsely labeled or branded as to the State or Territory in which they are made, produced, or grown, or cause or procure the same to be done by others."

This measure originated in the House, where it was introduced last January in substantially the form it now bears.

The Committee on Interstate and Foreign Commerce, to whom it was referred, reported in part as follows:

"During the Fifty-sixth Congress this committee gave hearings upon and devoted some time and attention to parties appearing in favor of a bill identical with this, and the necessity for such legislation was explained at length.

"It seems that at present there are no interstate commerce laws which adequately protect any State or Territory from the efforts of designing and unscrupulous dealers from outside the particular State or Territory to impose upon the public food or dairy products, branded or labeled as the product of a State or Territory famous for the production of a certain commodity or luxury, which, in fact, is an inferior article, and which, were it not for such brand or label, could be placed upon the market only at a lesser price, and sometimes not at all, were its true character known.

"This fact is particularly true of two articles-cheese and maple sirup. In almost every store in any of the large cities may be found packages labeled Vermont maple sirup,' which was never produced in Vermont, and some of which is entirely artificial, yet which is sold at the highest price because of the label which it carries. In the matter of cheese and butter this practice is carried still further because of the greater demand.

"It is believed the enactment of the bill into a law would correct the evils which it is intended to correct, and the committee recommend that it do pass as amended."

The Senate committee to which the bill was referred, in submitting its report, after stating that the bill was "directed only against interstate commerce in articles of food and dairy products misbranded as to the State or Territory in which such articles are manufactured or produced," adopted the report of the House committee.

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It will be noticed that this law does not provide that food and dairy products entering into interstate commerce shall be labeled or branded so as to show the State or Territory in which they are produced. It simply provides * that such products shall not be "falsely labeled or branded as to the State or Territory in which they are made, produced, or grown." In the examples given by you the mere

omission of the place of manufacture can not be said to be a violation of the law. The name of the wholesale dealer on the label or brand is not necessarily a representation that he is the producer or manufacturer of the goods. Of course, if goods are manufactured or produced in one State, and the wholesale dealer is a resident of another, and the label or brand is so worded as to represent the dealer as the producer, there would be a violation of the law if such commodities were introduced into one State from another. But, in my opinion, none of the labels given by you comes within this class.

Respectfully,

JOHN K. RICHARDS,
Acting Attorney-General.

The SECRETARY OF AGRICULTURE.

CERTIFICATE OF MERIT-ENLISTED MAN-MILITARY SERVICE.

The President may grant a certificate of merit to an enlisted man of the Army who has distinguished himself in the service and is recommended for such certificate by the commanding officer of his regiment or by the chief of the corps to which he belongs, notwithstanding the fact that he is not in the military service at the time his case reaches the President for consideration, and, if granted the certificate, will be entitled to additional pay for the period intervening between the date of such service and the date of his discharge from the military service; but the President can not grant a certificate of merit if the recommendation therefor by the commanding officer or chief of his corps was made after the enlisted man was discharged from the military service.

DEPARTMENT OF JUSTICE, September 23, 1902. SIR: Your letter of July 5, 1902, and subsequent communications submit for my opinion the two following questions:

"1. When an enlisted man of the Army has distinguished himself in the service, and is recommended for a certificate of merit by the commanding officer of his regiment, or by the chief of the corps to which such enlisted man belongs (sec. 1216, Rev. Stat.), can the President grant him a certifi

cate of merit, notwithstanding the fact that the man is not in the military service at the time the case reaches the President for consideration, when it appears that the man, if granted a certificate of merit, will be entitled to additional pay for the period intervening between the date of such distinguished service and the date of his discharge from the military service?

"2. Under like circumstances, can the President grant a certificate of merit, if the recommendation therefor, by the commanding officer of his regiment or chief of his corps, was made after the enlisted man was discharged from the military service?"

It is obvious that cases of this nature actually and constantly arise.

By your request for an opinion and the related memorandum subsequently transmitted, I was referred to the opinion of Mr. Devens (16 Opin., 9), to opinions of JudgeAdvocates-General, to the War Department practice, and to paragraph 199 of the Army Regulations of 1891. The legislation important to be considered is as follows:

Section 17, act of March 3, 1847 (9 Stat., 186), from which section 1216, Revised Statutes, is taken, provides that when a non-commissioned officer shall distinguish himself, or may have distinguished himself, in the service, the President may, on the recommendation of the commanding officer of the regiment to which such non-commissioned officer belongs, attach him by brevet of the lowest grade of rank, etc., to any corps of the Army; and then provides: "And when any private soldier shall so distinguish himself the President may, in like manner, grant him a certificate of merit, which shall entitle him to additional pay at the rate of two dollars per month.”

Section 1216 of the Revised Statutes, as amended by the acts of February 9, 1891 (26 Stat., 737), and March 29, 1892 (27 Stat., 12), provides:

"That when any enlisted man of the Army shall have distinguished himself in the service the President may, at the recommendation of the commanding officer of the regiment or the chief of the corps to which such enlisted man belongs, grant him. certificate of merit."

Section 1285, Revised Statutes, as amended by the act of February 9, 1891 (ut supra), provides that

"A certificate of merit granted to an enlisted man for distinguished service shall entitle him, from the date of such service, to additional pay at the rate of two dollars per month while he is in the military service, although such service may not be continuous."

It does not seem to me that these slight changes recently carried into the law have made any material difference in the nature of the question.

The opinion of Attorney-General Devens holds that a certificate of merit can not be issued under section 1216, Rev. Stat. (before amendment), to a soldier who applies for the same after his discharge. Mr. Devens makes no special distinction between the grant and the actual issuance of a certificate, and his view manifestly relates to a case where the claim was in all respects initiated after discharge.

I note here that in 5 Opin., 22, considering the first portion of section 17 of the original act of 1847 (supra), Mr. Toucey held that non-commissioned officers may receive brevet commissions, although not in fact non-commissioned officers at the time such reward for distinguished service was conferred. This conclusion evidently regards prompt application and unavoidable delay merely in the actual grant or issue, and regards, further, on the one hand, a termination of the particular non-commissioned status but continuance in the service in other capacities; and, on the other hand, as to two officers involved, an actual expiration of the term of service or discharge. So far, then, the earlier opinion is contrary to Mr. Devens's view. Mr. Toucey states fully the grounds upon which the liberal construction of such statutes is based, in the policy of Congress to promote the public service by these incentives to acts of bravery; and also rests his conclusion, as to the officers discharged, on the special ground of the President's power to appoint even private citizens to be officers in the military service—a consideration which is not applicable to certificates of merit.

The opinions of Judge-Advocates-General have uniformly construed the law in accordance with the opinion of Attorney19219-03

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