"On June 30, 1906, the Congress provided: "That the introduction into any State from any other State which is adulterated

or

. . any article of food misbranded' (within the meaning of this Act), 'is hereby prohibited.' And the offender 'shall be guilty of a misdemeanor, and for such offense be fined not exceeding two hundred dollars for the first offense, and upon conviction for each subsequent offense not exceeding three hundred dollars, or be imprisoned not exceeding one year, or both, in the discretion of the court.'

"The claim of the defendants is that the statute does not distinctly incorporate the standards fixed by the Secretary of Agriculture within the provisions of the Food Law, and it does not therefore define a criminal offense.

"The answer to this is that if the Secretary of Agriculture had the power to fix standards, and did fix a standard of this food product, which standard was in existence at the time the Food Law was passed, and the information charges wherein the article was adulterated and misbranded with respect to this standard, there seems to be no room for doubt that if, upon proof that the article did not conform to the requirements of the standard of purity established by the Secretary of Agriculture, then an offense had been charged under the laws of the United States.

"The defendants claim that the Act of 1903 was a mere appropriation law, but it would seem that a law appropriating a certain sum of money to the Secretary of Agriculture for the purpose of doing certain things which he could constitutionally do for the purpose of fixing standards of purity of food, and that he did so fix them, carries with it a necessary implication that he could do that for which the money was appropriated to him for the purpose of doing, and when he fixed the standards, then those standards prevailed, unless they have been changed since. It does not appear that they have been changed.

"The defendants claim that as the Act of 1906 does not in3 34 Stat. at Large 768.

corporate the standards fixed by the Secretary of Agriculture, the act of the Secretary was legislative in character, and hence no criminal offense could be predicated upon it. It is also claimed that since the Act of 1906, in describing drugs, refers to the Pharmacopoeia or National Formulary, and in describing what food is refers to no standard at all, Congress has not fixed any standard for food. Both of these claims are based on a misapprehension. Section 6 of the Act of 1906 provides:

"That the term "drug," as used in this Act, shall include all medicines and preparations recognized in the United States Pharmacopoeia or National Formulary for internal or external use, and any substance or mixture of substances intended to be used for the cure, mitigation or prevention of diseases of either man or other animals. The term "food," as used herein, shall include all articles used for food, drink, confectionery or condiment by man or other animals, whether simple, mixed or compound.'

These are mere terms of description. If the Pharmacopoeia or National Formulary says something is a drug, it is a drug under the meaning of the Act. Or if it comes under the other description of what a drug is, it is a drug, and so food also is described. There are no standards fixed in either case, for if any substance or mixture is intended to be used for the eure, mitigation or prevention of disease of either man or other animals, it is nevertheless a drug, whether it is recognized in the Pharmacopoeia or National Formulary or not. The standard for food was fixed by the Department of Agrieulture under the Act of 1903. If one in the business of making food products would look for the standard he would find it in the promulgations of the Secretary of Agriculture made under direct authority of Congress. The Act of 1903 does not describe any offense, but the Act of 1906 says that if any article of food adulterated or misbranded is manufactured or transported so as to become the subject of interstate commerce, the maker, transporter, etc., shall be guilty of an offense. How shall it be known whether he is guilty of an offense or not? The answer is clear, by referring to the stand

PURE FOOD-14.

ards which have been established under the authority of Congress.

"The Secretary of Agriculture, under authority of Congress, fixed the standards of purity for certain foods. This is a fact upon which the law of 1906 operates. It is not a law. The law of 1906, under which the offense is charged to have been committed, says what food is. The offense charged is that the defendant transported a food, and that it was adulterated and misbranded. How is this to be ascertained? By looking to the standard as a fact.

"The question is dealt with in Coopersville Co-operative Creamery Co. v. Lemon. It appears that the Oleomargarine Act, May 19, 1902, U. S. Comp. Stat. Sup., 1907, page 637, provides: That 'any butter in the manufacture or manipulation of which any process or material is used with intent or effect of causing the absorption of abnormal quantities of water, milk or cream,' shall be deemed 'adulterated butter,' and authorizes the Commissioner of Internal Revenue to decide what substances are taxable thereunder. It also authorizes him, with the approval of the Secretary of the Treasury, to make all needful regulations for carrying the Act into effect. It was held that such a regulation, providing that butter containing sixteen percent or more of water, milk or cream, should be classified as 'adulterated butter' under the Act, was within the authority so granted, and was valid, being neither an exercise of legislative or judicial power, but merely a determination as a question of fact of what constitutes an 'abnormal' quantity of water, etc., upon which the application of the statute is made to depend.

"Judge Lurton, speaking for the Circuit Court of Appeals, says: The contention that the delegation of authority to promulgate such a regulation is to delegate either legislative or judicial power to an executive officer is founded upon a misapprehension of the character of the authority delegated. That Congress can not delegate legislative authority or power to any executive official or board of officials is elementary.

4 163 Fed. 145.

To do so would be destructive to our whole system and scheme of government. That the delegation of authority to add to or take from a law would be to delegate legislative power must also be conceded. But that Congress may enact a law and delegate the power of finding some fact or state of things upon which the operation of the law is made to depend is equally clear. The authority to make all needful regulations not inconsistent with law is not a delegation of power to add something to an incomplete law nor a grant of judicial power. It is only an authority to determine the fact upon which the operation of the law is made to depend. Congress might have made the necessary tests, and might have acquired the knowledge of the butter-making art to enable it to have enacted that adulterated butter should consist of butter having a moisture content of sixteen percent or more. But that would have been an unnecessary detail, for it was altogether competent to declare that butter which contained an abnormal quantity of water, milk or cream, should be classified as adulterated butter, and that the fact as to that was, in dairy butter, an abnormal proportion of water, milk or cream, should be determined by a regulation of the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury.'

"It surely can make no difference that the authority to establish the standard was not in the Act itself creating the of fense as in the Oleomargarine Law. It may be well said that the Food and Drugs Act of 1906 was made with special reference to the standards of food fixed by the Secretary of Agriculture under prior authority of Congress.

"It is true that the unreported case of the United States v. St. Louis Coffee and Spice Mills, decided May 22, 1909, in the District Court for the Eastern District of Missouri, bears out the contention of the defendant, but in a subsequent case,

Citing Field v. Clark, 143 U.S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294. • Citing Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294; In re Kollock, 165 U. S. 526,

17 Sup. Ct. 444, 41 L. Ed. 525, and Union Bridge Co. v. United States, 204 U. S. 364, 27 Sup. Ct. 367, 51 L. Ed. 523.

United States v. Edward Weston Tea and Spice Company, decided November 30, 1909, the same court submitted to the jury a case necessarily involving the same question. If he at that time entertained the opinion expressed in the other case, he would not have permitted the case to go to the jury.

"The court is of opinion that the information charges an offense. There is some doubt in the court's mind as to the propriety of passing upon this question of law at all. The defendant, before pleading guilty, had the opportunity to demur to the information, and, having many months in which to make up his mind what to do, pleaded guilty. Not until the imposition of a fine unexpectedly large did he raise the question here discussed. It is probable that, the fine having been imposed on the plea of guilty, the matter has passed from the power of the court to the pardoning power. The court has no intention of making this case a precedent which may be followed in similar cases. If persons charged with an offense against the laws of the United States, with ample time to prepare their defense, assisted by able counsel, nevertheless pleaded guilty, and a fine was imposed, it is difficult to see upon what ground they have right to appeal to the court by an attack upon the legality of the proceeding.

"The court has only looked into the subject lest some injury has come to the defendants through their own plea of guilty. "The Food and Drugs Act is one of the most beneficent legislative enactments of recent times, and its provisions must be observed.""

§ 123. Confectionery-Liquors-Narcotic Drugs.

Section seven of the Food and Drugs Act of 1906 provides: "That for the purposes of this Act an article shall be deemed to be adulterated in the case of confectionery if it contain terra alba, barytes, tale, chrome yellow or other mineral substance or poisonous color or flavor, or other ingredient deleterious or detrimental to health, or any vinous, malt or spirituous liquor or compound or narcotic drug."

7 United States v. Clark; N. J.

1 Section 7.