564 Ing that the title is made good. It does not import that the collateral effects of fraud in obtaining the patent are purged. The element of bad faith or fraud was expressly excluded. [2] While the Circuit Court of Appeals, as we have stated, rested its decision wholly upon the limitation statute, yet, under warrant of the claim in the demurrer that the petition does not state a cause of action, it is further argued in this court, that if it be conceded that the right of recovery by the government is not barred, nevertheless such recovery is limited by section 2 of the Act of March 2, 1896 (29 Stat. 42), to the minimum government price for the land, and since the petition shows that this amount was paid to the government when the patent was issued, there can be no recovery. ter, and synthetically produced imitation oils, under the label "Compound Ess Grape," the article must be deemed "adulterated" and also "misbranded," within Food and Drug Act June 30, 1906, c. 3915, §§ 7, 8, 34 Stat. 769, 771 (Comp. St. 1916, §§ 8723, 8724), declaring that an article shall be deemed adulterated if any substance has been substituted, in whole or in part, for the article, and that the term "misbranded" shall apply to all articles of food, the package or label of which shall bear any statement, debe false or misleading in any particular, and sign, or device regarding such article which shall the proviso in section 8, declaring that articles of food shall not be deemed adulterated or misbranded if they are labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations or blends, furnishes no excuse, despite defendant's use of the word "compound", in the label; the substance offered for sale being an imitation. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Adulterate; Second Series, Misbrand.] In Error to the District Court of the Unit But the act of 1896 deals only with patents "erroneously issued under a railroad or wagon-road grant" and the limited recovery allowed is restricted to cases where it shall ap-ed States for the Southern District of New pear that such erroneously patented lands have been sold to bona fide purchasers. That such a statute can have no application to such a case as we are considering is too obvious for comment. This doctrine, that where there are two remedies for the protection of a right one may be barred and the other not, is no novelty in the law. So long ago as 5 Pickering, in Lamb v. Clark, pages 193, 198, it was tersely stated as then familiar doctrine that "If an injured party has a right to either of two actions, the one he chooses is not barred, because the other, if he had brought it, might have been." And the principle has frequently been recognized by this and other courts. Lewis v. Hawkins, 23 Wall. 119, 127, 23 L. Ed. 113; Hardin v. Boyd, 113 U. S. 756, 765, 5 Sup. Ct. 771, 28 L. Ed. 1141; Kirkman v. Philips' Heirs, 7 Heisk. (Tenn.) 222, 224; Ivey's Administrator v. Owens, 28 Ala. 641, 649; Ganley v. Troy City Nat. Bank, 98 N. Y. 487, 494. The conclusions we are here announcing are in entire accord with well-considered opinions by two Circuit Courts of Appeal, that of the Eighth Circuit, in United States v. Koleno, 226 Fed. 180, 141 C. C. A. 178, and in Union Coal & Coke Company v. United States (C. C. A.) 247 Fed. 106, and that of the Ninth Circuit in Bistline v. United States, 229 Fed. 546, 144 C. C. A. 6. The judgment of the Circuit Court of Appeals is Reversed. (246 U. S. 519) UNITED STATES v. SCHIDER. (Argued March 6, 1918. Decided April 15, 1918.) No. 468. FOOD 7, 15-STATUTE "MISBRANDED" "ADULTERATED.' Where defendant sold an imitation of grape essence, artificially prepared from alcohol, wa York. Joseph L. Schider, trading as "Jos. L. Schider & Co.," was indicted for violating the Food and Drug Act, and, a demurrer to the indictment being sustained, the United States brings error. Reversed and remanded. Mr. Assistant Attorney General Frierson, for the United States. Mr. Joseph S. Rosalsky, of New York City, for defendant in error. Mr. Justice McREYNOLDS delivered the opinion of the Court. An indictment containing six counts charged defendant, Schider, with violating the Food & Drug Act of June 30, 1906 (34 Stat. 768, c. 3915 [Comp. St. 1916, §§ 8717-8728]), by delivering for shipment in interstate commerce food contained in a bottle plainly labeled as follows: Compound Jos. L. Schider & Co. 93-95 Maiden Lane, New York. Each count alleged the article was an imitation of grape essence artificially prepared from alcohol, water and synthetically produced imitation oils and contained no product of the grape nor any added poisonous or deleterious ingredient; and that the word "Imitation" nowhere appeared. The first count further alleged it was "unlawfully adulterated in that an imitation grape essence artificially prepared from alcohol, water and synthetically produced imitation essential oils had been wholly substituted for a true grape product, which the article purported to be"; and the second that it was "unlawfully adulterated in that an imitation grape essence artificially prepared from alcohol, water and synthetically produced imitation essential oils, had been mixed with the said article so as to reduce and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 38 SUP.CT.-24 ⚫520 lower and injuriously affect the quality and it is offered for sale." But we are unable strength of the said article." The third, fourth, fifth and sixth counts, in varying ways, further alleged misbranding so as to deceive and mislead in that the label indicated a true grape product, whereas the article was not such but an imitation artificially prepared, one which contained nothing from grapes. The trial court sustained a demurrer to each count upon the view that, properly construed the Food & Drug Act did not apply to facts stated. * Pertinent portions of the act follow: "Sec. 7. That for the purposes of this act an article shall be deemed to be adulterated: * "First. If any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength. "Second. If any substance has been substituted wholly or in part for the article. "Sec. 8. That the term 'misbranded,' as used herein, shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular, and to any food or drug product which is falsely branded as to the state, territory, or country in which it is manufactured or produced. "That for the purposes of this act an article shall also be deemed to be misbranded: * * ticle. * * "Second. If it be labeled or branded so as to deceive or mislead the purchaser, * "Fourth. If the package containing it or its label shall bear any statement, design, or device regarding the ingredients or the substances contained therein, which statement, design, or device shall be false or misleading in any particular: Provided, that an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following casSecond. In the case of articles la es: * to conclude that by simply using "compound" upon his label a dishonest manufacturer exempts his wares from all inhibitions of the statute, and obtains full license to befool the public. Such a construction would defeat the highly beneficent end which Congress had in view. We have heretofore said: "The purpose of the act is to secure the purity of food and drugs and to inform purchasers rected to that purpose and must be construed of what they are buying. Its provisions are dito effect it." United States v. Antikamnia Co., 231 U. S. 654, 665, 34 Sup. Ct. 222, 225 (58 L. Ed. 419, Ann. Cas. 1915A, 49). "The legislation, as against misbranding, intended to make it possible that the consumer should know that be; that it might be bought for what it really an article purchased was what it purported to character and quality." United States v. Lexwas and not upon misrepresentations as to ington Mill Co., 232 U. S. 399, 409, 34 Sup. Ct. 337, 340 (58 L. Ed. 658, L. R. A. 1915B, 774). And see United States v. Coca-Cola Co., 241 U. S. 265, 277, 36 Sup. Ct. 573, 60 L. Ed. 995, Ann. Cas. 1917C, 487. The stuff put into commerce by defendant was an "imitation" and if so labeled purchasers would have had some notice. To call it "compound essence of grape" certainly did not suggest a mere imitation but on the contrary falsely indicated that it contained something derived from grapes. See Frank v. United States, 192 Fed. 864, 113 C. C. A. 188. The statute enjoins truth; this label exhales deceit. (246 U. S. 424) beled, branded, or tagged so as to plainly in- INTERNATIONAL & G. N. RY. CO. et al. dicate that they are compounds, imitations, or blends, and the word 'compound,' 'imitation,' or 'blend,' as the case may be, is plainly stated on the package in which it is offered for sale. *" 34 Stat. c. 3915, pp. 768, 770, 771. The obvious and undisputed purpose and effect of the label was to declare the bottled article "a compound essence of grape." In fact, it contained nothing from grapes and a was a mere imitation. *522 Within the statute's general terms the article must be deemed adulterated since some other substance had been substituted wholly for the one indicated by the label; and, also, it was misbranded, for the label carried a false and misleading statement. Defendant relies on the proviso in section 8 which declares articles of food shall not be deemed adulterated or misbranded if they are "labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends and the word 'compound,' 'imitation,' or 'blend,' as the case may be, is plainly stated on the package in which v. ANDERSON COUNTY et al. (Argued March 25 and 26, 1918. Decided April 15, 1918.) No. 243. 1. COURTS 493(1)-MORTGAGES-FORECLOSURE-JURISDICTION of Court. Termination of proceedings brought in the federal court to foreclose a mortgage on railroad property terminates the jurisdiction of that tribunal, and the purchaser is not immune from a suit in the state court relating to the management of the property, on the theory that the federal court was the only proper forum having jurisdiction. 2. COURTS 489(1)-STATE COURTS-JURIS DICTION. Jurisdiction of state courts to decide as to an alleged public duty on the part of a railroad within the borders of the state would not be taken away by a foreclosure sale and order in the federal court freeing the purchaser of the property from obligations of the mortgagor company, in the absence of further action by the federal court. 3. RAILROADS 194(7)-MORTGAGES-FORECLOSURE EFFECT. A sale of the property and franchises of a Texas railroad company under mortgage fore For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *523 closure proceedings had in the federal court did not free the property in the hands of the purchaser from the burden of the state law forbidding the removal of the general offices, machine shops, and roundhouses from the point at which they were located. 4. RAILROADS 194(7) — LOCATION OF OFFICES-STATUTORY PROVISIONS. affirmed, on defendants' appeal, by the Texas Messrs. H. M. Garwood and Samuel B. Dabney, all of Houston, Tex., for plaintiffs in error. Messrs. F. D. McKenney, of Washington, D. C., T. B. Greenwood, of Austin, Tex., and A. G. Greenwood and W. C. Campbell, both of Palestine, Tex., for defendants in error. • Mr. Justice HOLMES delivered the opinion. of the Court. Where the original railroad company, a Texas corporation, whose property and franchises were acquired by defendant, also a Texas company, as a result of a series of mortgage foreclosures and consolidations, had contracted, in consideration of an issue of county bonds, to maintain its general offices, machine shops, and roundhouses at a city within the county, Texas Office-Shops Act March 27, 1889 (Acts 21st Leg. c. 106, § 1; Rev. St. 1911, art. 6423), which This is a suit brought by the defendants provided that every railroad company chartered in error to prevent the Railroad Company, by the state, or owning or operating a line with- plaintiff in error, from moving its machine in the state, should permanently maintain its general offices at the place named in its charter shops, roundhouses, and general offices from or, if no certain place were named there, at the City of Palestine and from maintaining such place as it should have contracted to locate any of them elsewhere. An injunction was them, and that, if located in a county that had issued as prayed; the judgment was affirmaided the company by an issue of bonds in consideration of the location being made, they ed by the Court of Civil Appeals, 174 S. W. should not be changed, applied, and precluded a 305, in accordance with intimations of the change by defendant, although its articles of in- Supreme Court of Texas at an earlier stage, corporation fixed the place for its general offices as another city, for the provision in the law 106 Tex. 60, 156 S. W. 499, and an applicamaking the maintenance of offices at the place tion to the latter Court for a writ of error the railroad has contracted to keep them, con- was refused. The case is brought here upon ditional on no place being named in its charter, voluminous assignments of error which may be summed up in the propositions that the State Court was without jurisdiction because does not mean that articles framed under a general law can get rid of contracts that other wise would bind. 5. RAILROADS 196-STATUTES ACCEPT- of certain foreclosures in the Courts of the ANCE. Rev. St. Tex. 1911, art. 6624, provides that the charter of a sold-out railroad shall pass to the purchaser, subject to article 6625, authorizing such purchasers to form a new corporation, but that no right shall be acquired in conflict with the present Constitution and laws. The Office-Shops Act (article 6423) provides that if the offices, shops, etc., are located in a county which has aided the railroad in consideration of such location, the same shall not be changed. Held, that a new corporation could not move offices and shops so located, as it is subject to the "limitations imposed by law." 6. COMMERCE 58-BURDEN ON INTERSTATE COMMERCE-TEXAS OFFICE-SHOPS ACT. The restriction upon a corporation organized to take over a sold-out railroad, under Rev. St. Tex. 1911, arts. 6624, 6625, imposed by the Office-Shops Act (article 6423), preventing removal of offices and shops from a county which such offices and shops, is not invalid, as imposing a burden upon commerce between the states, although the railroad is engaged in such commerce, since the burden, if any, is indirect. 7. JUDGMENT 231-Form-PERPETUAL RE has issued bonds in consideration of location of QUIREMENTS. United States, that the judgment disregarded rights secured by the decrees of those Courts, and that it gave effect to a statute which as applied burdened interstate commerce, impaired the obligation of contracts, etc., and was contrary to Article 1, Sections 8 and 10, and to the Fourteenth Amendment of the Constitution of the United States. The facts begin with the predecessors of the plaintiffs in error. The Houston & Great Northern Railroad Company, a local road, was chartered by a special Act on October 26, 1866. About March 15, 1872, it contracted with the citizens of Palestine in the County of Anderson in consideration of the issue of bonds by the county to maintain its general offices, machine shops and round houses at that place. The International Railroad Company was chartered in like manner on August 5, 1870. In 1872 the two companies agreed to consolidate and this agreement was ratified by the stockholders of each in 1873. A special Act of April 24, 1874, authorized the consolidated company, known as the International & Great Northern Railroad Company, to issue bonds secured by mortgage and provided that all acts theretofore done in the name of either of the companies should be of the same binding effect upon In Error to the Court of Civil Appeals, the new one that they were upon the old. Sixth Supreme Judicial District, State of In 1875 the new company in consideration of Texas. the erection of houses for its employés reAction by Anderson County, the City of newed the contract of the Houston & Great Palestine, and others against the Interna-Northern and at about the same time it retional & Great Northern Railway Company solved that its general offices should be reand others. A judgment for plaintiffs was moved to Palestine. We see no reason for A judgment against a railroad based on the Office-Shops Act (Rev. St. Tex. 1911, art. 6423), and requiring perpetual maintenance of railroad offices and shops at a place in a certain county, was not in improper form, as purporting to be perpetual, since the word "perpetual" added nothing to the requirement, which would be perpetual until the law was changed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes reopening the findings below that the allegeded and to be imposed by law. Rev. St. art. contracts were made. The offices were re-❘ 6625. moved and there they remained, subject to some immaterial interruption, until 1911. The machine shops and roundhouses are still there. Each of the two constituent companies had executed mortgages before the date of the original agreement of the Houston & Great Northern and each executed another before the contract of the consolidated company in 1875. These mortgages were all foreclosed in 1879 and the property conveyed to a corporation, still called the International & Great Northern Railroad Company, by a deed that conveyed all the franchises and chartered powers of the original roads. The foreclosure is one fact relied upon for the defence. | *The mortgage of 1881 last mentioned was foreclosed by proceedings in the Circuit Court of the United States. A decree of May 10, 1910, while reserving jurisdiction of the property, ordered a sale, which, after postponements, took place on June 13, 1911, and was confirmed the next day. On September 25, 1911, the railroad and franchises were finally discharged from the possession and control of the receiver and the Court. Before that date the plaintiff in error was incorporated under the Act of 1889 and general laws and took the conveyances under the foreclosure decree. Within the time allowed it had filed in Court a repudiation of any agreement on the part of any of its predecessors to maintain their offices and shops at Palestine, and later gave notice to that effect to officials of Anderson County and Palestine. The articles of incorporation fixed the place for the general offices as Houston. [1, 2] The railway company denies the jurisdiction of the State Court and sets up that the court of the last foreclosure is the only proper forum. But a decree of foreclosure does not render the purchaser and property foreclosed sacrosanct. The Circuit Court had finished the case and had given up possession and control before this suit was brought. Shields v. Coleman, 157 U. S. 168, 178, 179, 15 Sup. Ct. 570, 39 L. Ed. 660; Wabash R. R. Co. v. Adelbert College, 208 U. S. 38, 55, 28 Sup. Ct. 182, 52 L. Ed. 379. Even if it were true that the foreclosure sale and order carried an immunity from the present demand that the railway was entitled to set up, in the absence of action on the part of the Court of the United States, it would not take away the power of the State Court to decide as to the existence of an alleged public duty on the part of a railroad within the territory where the court sat. Ricaud v. American Metal Co. (March 11, 1918) 246 U. S. 304, 38 Sup. Ct. 312, 62 L. Ed. The purchasing company in its turn exe cuted mortgages, one of which, including, like the earlier ones that we have mentioned, the franchise to be a corporation,* dated in 1881, is the source of the plaintiff in error's title, by a foreclosure in 1910-1911. Before this last foreclosure took place two statutes were enacted in Texas that are important. The first, known as the Office-Shops Act, approved March 27, 1889, c. 106, Rev. Civil Stat. 1911, art. 6423, provided that every railroad company chartered by the State or owning or operating a line within the State should permanently maintain its general offices at the place named in its charter, and if no certain | place were named there, at such place as it should have contracted to locate them, otherwise at such place as it should designate; also that it should maintain its machine shops and round houses at the place where it had contracted to keep them, and that if the offices, shops or round houses were located on the line of a railroad in a county that had aided such railroad by an issue of bonds in consideration of the location being made, then such location should not be changed; 'and this shall apply as well to a railroad that may have been consolidated with another as to those which have maintained their original organization.' A violation of the Act entails forfeiture of the charter, with a pen-human restrictions than they excluded the alty of $5,000 a day for every day of violation. Rev. St. art. 6425. An Act approved two days later, March 29, 1889 (Acts 21st Leg. c. 24), with provisos that no rights should be acquired inconsistent with the present Constitution, that the main track once constructed and operated should not be removed, etc., authorized purchasers of soldout railroads to form a new corporation, whereas previously the purchaser had continued the franchises of the old under the original grant. A law of September 1, 1910, (Acts 4th Called Sess. c. 4), further emphasized the change of policy by excluding a succession to the old charter unless coupled with an acceptance of certain liabilities, and providing that the charter should pass subject to the provisions and limitations impos [3] But the foreclosures did not have the supposed effect. They no more removed all authority of ordinary courts. Suppose that a special act incorporating the mortgagor had provided in terms evidently intended to reach beyond foreclosure that the general offices were to remain forever at Palestine, it hardly would be argued, and certainly would not be argued here or in Texas with success, that the requirement could be touched by a decree. But if the law made that requirement, it hardly matters whether the restriction was imposed by charter or otherwise or whether the remote reason for it was a contract or a general notion of public policy. The State Courts hold that when the law on any ground fixes the place of the offices and shops the obligation is indelible by foreclosure. We see no reason why their decision should not prevail. *433 [4] It is contended that the Office-Shops [ restriction imposes a burden upon commerce Act of 1889 does not touch the plaintiff in er- among the States, since the road concerned ror by its term and that if it be construed to has expanded and now is largely engaged in do so it is unconstitutional. On the construc- such commerce. The jury found that it imtion of the Act it seems to us that there can posed no such burden, upon an issue submitbe no doubt. It is true that the provision re-ted to them in accordance with the desire of quiring the general offices to be maintained at the place where the railroad had contracted to keep them is conditioned on no place being named in the charter, but of course this does not mean that articles framed under a general law can get rid of contracts that otherwise would bind, and in our opinion it is equally plain that no distinction was intended between the contract by the present road and one by its predecessor, if the office and shops 'are located on the line of a railroad in a county which has aided said railroad by an issue of bonds in consideration of such location being made.' 'Then,' the statute says, 'said location shall not be changed.' The construction of the Act by the State Court is beyond criticism upon this point. the plaintiff in error, although not in the form that it desired. So far as the question depended upon the testimony adduced the verdict must be accepted, and although no doubt there might be cases in which this Court would pronounce for itself, irrespective of testimony, whether a burden was imposed, we are not prepared to say that in this instance the State has transcended its powers. The burden if any is indirect. Some complaint is made of the form of the judgment, as purporting to be perpetual. But the word perpetual adds nothing to a requirement that the office and shops should be maintained in Palestine. The requirement is perpetual until the law is changed. When and how it may be changed is not before us now. Other objections are urged and other details are adverted to in the very lengthy printed arguments, besides those with which we have dealt, but we deem it unnecessary to go farther. Upon the whole case we are of opinion that the judgment below should be affirmed. Judgment affirmed. [] It is said that the Act so construed would infringe the constitutional rights of the parties to the mortgage of 1881, which the laintiff in error took by foreclosure. * But| it will be remembered that the mortgagor under the law then in force merely had succeeded to the original contractors, freed from their unsecured debts, no doubt, but, it well might be held, not freed from the obligation in question. Also it was found by the Courts below that the sale under which the mortgagor took in 1879 was not a bona fide sale, (Argued April 26, 1917. and so was not a sale that put the purchaser in a position other than that of mortgagor. Apart from these considerations we should 1. COMMERCE 72 - INTERSTATE COMMERCE be slow to say that it was not within the power of a state legislature dealing with a corporation of the state to fix the place of its domicile and principal offices, in the absence of other facts than those appearing in this case. But furthermore when the Office-Shops Act was on the statute book the plaintiff in error took out a charter under general laws that expressly subjected it to the limitations imposed by law. It is said that this does not make the plaintiff in error adopt an otherwise unconstitutional statute. But even if, contrary to what we have intimated, the Act could not otherwise have affected those particular corporations, it was a law upon the statute books and was far from a mere nullity, and if it was made a condition of incorporation that this restriction should be accepted, the plaintiff in error cannot complain. Interstate Consolidated Street Ry. Co. v. Massachusetts, 207 U. S. 79, 28 Sup. Ct. 26, 52 L. Ed. 111, 12 Ann. Cas. 555. We agree with the State Courts that the condition was imposed. [6, 7] The acceptance of the charter by the plaintiff in error disposed of every constitutional objection but one. It is said that the (246 U. S. 450) CUDAHY PACKING CO. v. STATE OF MINNESOTA. TAXATION THEREIN. Decided April 15, 1918.) No. 32. OF PROPERTY AND GOODS 3. COMMERCE 73-INTERSTATE COMMERCE→→ Laws Minn. 1909, c. 473, and Laws Minn. 1911, The act is not invalid because the usual tax rate if applied to the cash value of the cars taken separately would result in an appreciably lower tax, for the state is not confined to tax For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |