§ 510. When Forfeiture Takes Place. A violation of the Pure Food and Drugs Act does not ipso facto work a forfeiture of the adulterated or misbranded article. That only takes place when the decree of forfeiture is entered.1 § 511. A Misbranding Corrected before Forfeiture Proceedings Begun. To sustain proceedings for a forfeiture of an article of food or a drug because it is misbranded or adulterated, it must have been misbranded or adulterated at the time such forfeiture proceedings were begun; so that, if a misbranded or adulterated article is transported from one State to another, but before proceedings for its forfeiture are actually begun it is properly labeled so as to show its exact condition, such proceedings must fail. In one case five boxes of assafoetida were transported from New York to Pennsylvania, and the labels on them did not show that it was adulterated. Upon receipt the defendant consignee opened them, and, finding that the contents was below the standard required by the United States Pharmacopoeia, he immediately relabeled them so as to show the exact state of the drug. The court in pass which a dilute solution of alcohol and water was substituted in part for the terpeneless lemon extract, so that it contained no more than five-tenths percent of citral derived from the oil of lemon, whereas, as recognized in the trade generally and by the standard of purity established by the Secretary of Agriculture in Circular No. 19, issued by authority of the Act of March 3, 1903, such extract should contain at least two percent by weight of such citral, was held to state facts to sustain a charge both of adulteration and misbranding. 1 United States v. George Sprou & Co., 185 Fed. 405; United States v. Two Barrels of Desiccated Eggs, 185 Fed. 302. In United States v. Five Boxes of Assafoetida, 181 Fed. 561, a different view seems to have been entertained, the court saying: "Under the common law, the offender's right was not divested upon forfeiture proceedings until conviction, but this doctrine never was applied to seizures and forfeitures created by statute in rem for violations of the revenue law of the gov ernment. The thing there is primarily considered; the offender, or rather the offense, was attached primarily to the thing, and this whether the offense was malum prohibitum or malum in se." ing on the case said: "The third defense interposed by the claimants, that the proper labeling of the packages before seizure relieved them from liability to forfeiture under the terms of section ten, must be regarded as more substantial [than the other defenses] and as a good ground for dismissing the libel. Under this in rem forfeiture procedure under section ten the article or drug itself is the thing inculpated, and it must be adulterated or misbranded within the meaning of the Act at the time the government seizes it. It was not adulterated when seized, but branded as required by law. It is not sufficient that it was adulterated when it was being transported from one State to another and liable to forfeiture at that time. It was not then seized, and there is no language of the Act to authorize seizure for any past offending condition of the drug. A drug that 'is' adulterated or misbranded (is the language used) and 'is' being transported from one State to another for sale shall be liable, etc. A drug which, having been transported, remains unloaded, unsold, or in original unbroken packages'-shall it be liable to forfeiture for some previous irregularity, if not adulterated or misbranded at the time of seizure? It is not so stated in the Act. There is no seizure of a drug that 'was' adulterated authorized. Having been transported, and remaining unloaded, unsold, or in the original unbroken packages, it can only be forfeited when it 'is' adulterated and misbranded when seized. These boxes of assafoetida, when seized by the government, were not adulterated within the meaning of the Act. It is true they had been transported' (from one State to another for sale) and 'remained in the original unbroken packages at the time the government seized them,' but they were not adulterated. Under section seven this assafoetida was adulterated only in case its standard of strength, quality and purity was not plainly stamped upon the containers, but if so marked it was not adulterated. The liability to forfeiture of the drug, therefore, would depend upon whether or not the containers were so marked at the time the government seized them. They were so marked, and not liable to seizure. The containers having been branded according to the requirements of the Act at the time of seizure, there is no valid ground for forfeiture, and the libel case is dismissed.' But it must be observed that the offense under section two of the statute was not in any way palliated by the correction of the labels, for at the time it was brought into the State of Pennsylvania the contents of the boxes was adulterated and the boxes were misbranded, and thereby an offense was committed under that section, if the consignee delivered their contents "in original packages, for pay or otherwise, or offer to deliver to any other person" the articles "so adulterated or misbranded." § 512. No Intent to Violate Statute. Repeated statements have been made in this work that an intent to violate the statute is not necessary in order to incur the infliction of a penalty for the sale or keeping for sale adulterated or impure food or drugs. An act performed with no intent to violate a pure food statute is just as much a crime under this Federal Pure Food and Drugs Act of June 30, 1906, as if a criminal design to violate it was intended and entertained at the time of its performance. This rule extends to sales or other acts by servants. So it extends to cases of forfeiture of impure or adulterated foods and drugs under this Act. In speaking of this statute and this question under its provisions, it has been said: "When the thing is inculpated under an in rem statutory provision it may be forfeited, although the act which caused the forfeiture was not authorized or done by or with the consent or knowledge of the owner."" § 513. Section Two and Section Ten not Interdependent. It is not necessary that a criminal prosecution must be maintainable under section two of the Act in order to proceed under section ten to secure a forfeiture, for there may 1 United States v. Five Boxes of Assafoetida, 181 Fed. 561. 1 United States v. Five Boxes of Assafoetida, 181 Fed. 561, citing Dobbins v. United States, 96 U. S. 395, 24 L. Ed. 637. be a forfeiture incurred even though the provisions of section two be not violated. "Section two and section ten are not at all interdependent. The misdemeanor denounced in section two is entirely distinct and independent of the grounds of forfeiture in section ten. Congress has clearly defined in section two what acts or omissions shall constitute a misdemeanor with regard to adulterated or misbranded articles of food or drug, and, in order to ascertain whether or not any person is guilty of having violated the provisions of this section, it is not at all necessary to refer to section two, as section two, as to what shall be deemed a misdemeanor, is complete within itself. As to adulterated articles, it is a misdemeanor (1) to ship from one State to another; (2) to receive and deliver, or offer to deliver, the same for pay in unbroken packages. Such articles are liable to seizure and forfeiture under section ten: (1) When in the course of being transported from State to State; (2) when, having been transported, they remain (a) unloaded, or (b) unsold, or (c) in the original packages. It will be seen that section ten fully and completely defines the conditions under which such articles are liable to seizure and forfeiture. There is no reference to or dependence upon the misdemeanor defined in section two, and it is unimportant, as far as the forfeiture proceedings are concerned, whether or not any person could be convicted under section two. Congress has defined fully in section ten when and under what circumstances the article of food or drug shall be forfeited, without reference to the guilt of the owner under section two.''1 § 514. Jury Trial. In a proceeding to libel and condemn adulterated food, both the claimant and the prosecution are entitled to a jury trial under section ten of the Food and Drugs Act, and this means a trial by jury according to the established practice in courts of common law.1 1 United States v. Five Boxes of Assafoetida, 181 Fed. 561. 1 United States v. Seven Hundred and Seventy-nine Cases of Mo § 515. Costs in Proceedings in Rem, Assessing against the Person. Costs in personam may be assessed against the claimant in the proceedings in rem under the Food and Drugs Act of 1906, to confiscate adulterated articles of food, the subject of interstate commerce, even if the principles of the admiralty law are made applicable by the provisions of that statute, to the effect that the proceedings shall conform as near as may be to the proceedings in admiralty.1 § 516. Punishment-Infamous Crime-Prosecution by Infor mation. "This is an action brought by the United States against J Lindsay Wells Company under section 2 of the Act of June 30, 1906. on the charge of shipping from Memphis, in the State of Tennessee, to Attica, in the State of Indiana, thirty tons of cotton-seed meal, which article of food at Memphis, Tennessee, was adulterated. "The suit is brought upon information by the United States district attorney. "The defendants move to quash the information, upon the ground that the same violates that part of the Fifth Amendment of the Constitution of the United States, which provides that no person shall be held to answer for a capital or otherwise infamous crime, unless upon presentment or indictment of a grand jury. "The question presented is, whether or not the offense alleged to have been committed by the defendant is a capital or otherwise infamous crime. "It is, of course, not a capital crime, and if it is otherwise. lasses, N. J. 270; United States v. George Sproul & Co., 185 Fed. 405; United States v. Two Barrels of Eggs, 185 Fed. 302; Elliott V. Toeppner, 187 U. S. 327, 23 Sup. Ct. 133, 47 L. Ed. 200; Knickerbocker Insurance Company v. Comstock, 16 Wall. 258, 21 L. Ed. 493; Parsons v. Bedford, 3 Pet. 433, 7 L. Ed. 732; Bower v. Holzworth, 138 Fed. 28; Duncan v. Landis, 106 Fed. 839. 1 Hipolite Egg Co. V. United States, 220 U. S. 49, 31 Sup. Ct. 364, 55 L. Ed. |