United States v. Antikamnia Chemical Co. 231 U. S. 654, 665, 58 L. ed. 419, 424, 34 Sup. Ct. Rep. 222, Ann. Cas. 1915A, 49. Obviously the adoption of the construction of the proviso advocated by defendant in error would open the door to a numerous class of palpable frauds which the statute was clearly designed to prevent. United States v. Coca Cola, Co. 241 U. S. 265, 289, 60 L. ed. 995, 1006, 36 Sup. Ct. Rep. 573, Ann. Cas. 1917C, 487. Mr. Joseph S. Rosalsky argued the cause, and, with Mr. Jacob I. Berman, filed a brief for defendant in error: Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid. United States v. Sharp, Pet. C. C. 118, Fed. Cas. No. 16,264. Before a man can be punished, his case must be plainly and unmistakably with in the statute. United States v. Brewer, 139 U. S. 278, 35 L. ed. 190, 11 Sup. Ct. Rep. 538; United States v. Lacher, 134 U. S. 624, 628, 33 L. ed. 1080, 1083, 10 Sup. Ct. Rep. 625. A demurrer does not admit that the construction of a statute set forth in the pleading demurred to is the correct one, or that the statute imposes the obligations or confers the rights which the pleading alleges. Pennie v. Reis, 132 U. S. 464, 33 L. ed. 426, 10 Sup. Ct. Rep. 149. It admits only the facts alleged which are well pleaded, and not the conclusions of law stated. . Gould v. Evansville & C. R. Co. 91 U. S. 526, 23 L. ed. 416; United States v. Van Auken, 96 U. S. 366, 24 L. ed. 852; United States v. Ames, 99 U. S. 35, 25 L. ed. 295. Adulteration or misbranding of articles of food was not an offense or the subject of criminal prosecution at common law. Such an offense is purely the creation of the statute. Being in derogation of the common law, the statute must be explicit in terms and must be strictly construed. United States v. Dwyer, 56 Fed. 467. A purchaser of ordinary prudence! could not reasonably be misled or deceived in reading the label. United States v. 779 Cases of Molasses, 98 C. C. A. 197, 174 Fed. 325. A compound is anything that is a combination of two or more elements, ingredients, or parts, a compound substance. Standard Dict. An essence of an article is not the original article itself, but rather something which partakes of the nature of that article. Standard Dict. This case, under the terms of the proviso, does not come plainly and unmistakably within the statute. United States v. American Druggists' Syndicate, 186 Fed. 387. There is nothing to prevent the combination of substances forming a grape essence, and the statute does not require the ingredients of the compound to be stated on the label. Weeks v. United States, 139 C. C. A. 626, 224 Fed. 64. The office of a proviso is, generally, to except something from the enacting clause, or to restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the legislature to be brought within its purview. Minis v. United States, 15 Pet. 423, 10 L. ed. 791; Boon v. Juliet, 2 Ill. 258; Atty. Gen. v. Chelsea Waterworks Co. Fitzg. 195, 94 Eng. Reprint, 716; Portland Sav. Inst. v. Makin, 23 Me. 360. Mr. Justice McReynolds delivered the opinion of the court: An indictment containing six counts charged defendant, Schider, with violating the Food and Drug Act of June 30, 1906 (34 Stat. at L. 768, chap. 3915, Comp. Stat. 1916, § 8717), by delivering for shipment in interstate commerce food contained in a bottle plainly labeled as follows: [520] Compound Ess Grape 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 lower and injuriously affect the quality and 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 and 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. [521] "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: "First. If it be an imitation of or offered for sale under the distinctive name of another article. "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 cases: Second. In the case of articles labeled, branded, or tagged so as to plainly indicate that they compounds, imitations, blends, and the word 'compound,' 'imita- 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 was a mere imitation. Within the statute's general terms the article must be [522] 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 § 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 it is offered for sale." But we are unable 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 of what they are buying. Its provisions are directed to that purpose and must be construed to effect it." United States v. Antikamnia Chemical Co. 231 U. S. 654, 665, 58 L. ed. 419, 424, 34 Sup. Ct. Rep. 222, Ann. Cas. 1915A, 49. "The legislation, as against misbranding, intended to make it possible that the consumer should know that an article purchased was what it pur ported to be; that it might be bought for what it really was, and not upon misrepresentations as to character and quality." United States v. Lexington Mill & Elevator Co. 232 U. S. 399, 409, 58 L. ed. 658, L.R.A.1915B, 774, 34 Sup. Ct. Rep. 337. And see United States v. Coca Cola Co. 241 U. S. 265, 277, 60 L. ed. 995, 1001, 36 Sup. Ct. Rep. 573, 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, or falsely indicated that it contained some United States v. Antikamnia Chemical Co. 231 U. S. 654, 665, 58 L. ed. 419, 424, 34 Sup. Ct. Rep. 222, Ann. Cas. 1915A, 49. Obviously the adoption of the construction of the proviso advocated by defendant in error would open the door to a numerous class of palpable frauds which the statute was clearly designed to prevent. United States v. Coca Cola, Co. 241 U. S. 265, 289, 60 L. ed. 995, 1006, 36 Sup. Ct. Rep. 573, Ann. Cas. 1917C, 487. Mr. Joseph S. Rosalsky argued the cause, and, with Mr. Jacob I. Berman, filed a brief for defendant in error: Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid. United States v. Sharp, Pet. C. C. 118, Fed. Cas. No. 16,264. Before a man can be punished, his case must be plainly and unmistakably with in the statute. United States v. Brewer, 139 U. S. 278. 35 L. ed. 190, 11 Sup. Ct. Rep. 538; United States v. Lacher, 134 U. S. 624. 628, 33 L. ed. 1080, 1083, 10 Sup. Ct. Rep. 625. A demurrer does not admit that the construction of a statute set forth in the pleading demurred to is the correct one, or that the statute imposes the obligations or confers the rights which the pleading alleges. Pennie v. Reis, 132 U. S. 464, 33 L. ed. 426, 10 Sup. Ct. Rep. 149. It admits only the facts alleged which are well pleaded, and not the conclusions of law stated. Gould v. Evansville & C. R. Co. 91 U. S. 526, 23 L. ed. 416; United States v. Van Auken, 96 U. S. 366, 24 L. ed. 852; United States v. Ames, 99 U. S. 35, 25 L. ed. 295. Adulteration or misbranding of articles of food was not an offense or the subject of criminal prosecution at common law. Such an offense is purely the creation of the statute. Being in derogation of the common law, the statute must be explicit in terms and must be strictly construed. United States v. Dwyer, 56 Fed. 467. A purchaser of ordinary prudence could not reasonably be misled or deceived in reading the label. United States v. 779 Cases of Molasses, 98 C. C. A. 197, 174 Fed. 325. A compound is anything that is a combination of two or more elements, ingredients, or parts,-a compound substance. Standard Dict. An essence of an article is not the original article itself, but rather something which partakes of the nature of that article. Standard Dict. This case, under the terms of the proviso, does not come plainly and unmistakably within the statute. United States v. American Druggists' Syndicate, 186 Fed. 387. There is nothing to prevent the combination of substances forming a grape essence, and the statute does not re quire the ingredients of the compound to be stated on the label. Weeks v. United States, 139 C. C. A. 626, 224 Fed. 64. The office of a proviso is, generally, to except something from the enacting clause, or to restrain its generality, or interpretation of it, as extending to cases to exclude some possible ground of misnot intended by the legislature to be brought within its purview. Minis v. United States, 15 Pet. 423, 10 L. ed. 791; Boon v. Juliet, 2 Ill. 258; Atty. Gen. v. Chelsea Waterworks Co. Fitzg. 195, 94 Eng. Reprint, 716; Portland Sav. Inst. v. Makin, 23 Me. 360. Mr. Justice McReynolds delivered the opinion of the court: An indictment containing six counts charged defendant, Schider, with violating the Food and Drug Act of June 30, 1906 (34 Stat. at L. 768, chap. 3915, Comp. Stat. 1916, § 8717), by delivering for shipment in interstate commerce food contained in a bottle plainly labeled as follows: [520] Compound Ess Grape 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 The trial court sustained a demurrer to each count upon the view that, properly construed, the Food and 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. [521] "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 mis'branded: "First. If it be an imitation of or offered for sale under the distinctive name of another article. "Second. If it be labeled or branded *SO as to deceive or mislead the purchaser, blends, and the word 'compound,' 'imita- 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 was a mere imitation. Within the statute's general terms the article must be [522] 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 § 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 it is offered for sale." But we are unable 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 of what they are buying. Its provisions are directed to that purpose and must be construed to effect it." United States v. Antikamnia Chemical Co. 231 U. S. 654, 665, 58 L. ed. 419, 424, 34 Sup. Ct. Rep. 222, Ann. Cas. 1915A, 49. "The legislation, as against misbranding, intended to make it possible that the consumer should know that an article purchased was what it pur ported to be; that it might be bought for what it really was, and not upon misrepresentations as to character and qual"Fourth. If the package containing ity." United States v. Lexington Mill it or its label shall bear any statement, & Elevator Co. 232 U. S. 399, 409, 58 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 cases: Second. In the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or L. ed. 658, L.R.A.1915B, 774, 34 Sup. 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 some thing derived from grapes. See Frank | ed [524] armor which should prove dev. United States, 113 C. C. A. 188, 192 fective within six months after it had Fed. 864. The statute enjoins truth; been fastened on the ship. The contract this label exhales deceit. required the company to furnish a bond with sureties in a sum equal to 10 per cent of the total cost of all groups, and provided that "at the end of each calendar year the amount of said bond may be reduced to correspond to the estimated cost of armor then undelivered." The bond was furnished, and delivery of all the armor originally specified was completed May 2, 1911. But on March 26, [523] The trial court erred in sustaining the demurrer. Its judgment is reversed and the cause remanded for further proceedings in accordance with this opinion. Reversed and remanded. BETHLEHEM STEEL COMPANY, Appt., 1912, plates aggregating at cost prices V. UNITED STATES. (See S. C. Reporter's ed. 523–525.) contracts voluntary United States surety must be regarded as voluntary, so as [For other cases, see United States, VI. f, in Digest Sup. Ct. 1908.] [No. 191.] more than the penalty of the bond were found to be defective, and a part of this was not replaced until November 22, 1912. On January 27, 1912, the company formally requested the Secretary of the Navy to cancel the bond and notify the surety, but he refused to do so except upon certain conditions which were not complied with until May 15, 1912, when the bond was canceled. The company had expended $5,509.62 in payment of premiums on the bond from May 3, 1911, until May 15, 1912, and demanded reimbursement by the government. Payment being refused, suit was brought in the court of claims to recover this amount and also a balance of $3,170.69 for plate delivered. Judgment for the latter sum was entered; but the court held that the company was not entitled to recover for the premiums paid. The case comes here under $ 242 of the Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1916, § 1219]. The lower court held that the bond Argued March 15, 1918. Decided April 15, covered merely the original delivery of 1918. the armor plate, and not the replacement of defective plates; but it refused recov APPEAL from the Court of Claims to ery of the amount paid for premiums review a judgment denying the claim of a government contractor to reimbursement for certain premiums to a surety company, paid after delivery of the materials called for by the contract. Affirmed. See same case below, 51 Ct. Cl. 394. The facts are stated in the opinion. Mr. James H. Hayden argued the cause and filed a brief for appellant. after May 3, 1911, on the ground that the payment thereof was voluntary, because the condition of the bond had then been complied with. The government contends that the bond covered the replacement also; that the contract made reduction of the bond permissive, not mandatory; and that the Secretary was, in any event, under no obligation to cancel the [525] bond prior to the request made January 27, 1912. We have no occasion to consider any of these contentions. It nowhere appears that the company had bound itself to continue to pay premiums until the Secretary canMr. Justice Brandeis delivered the celed the bond and gave the surety noopinion of the court: tice thereof. So far as disclosed by the record, the payment of premiums was voluntary. Assistant Attorney General Thompson argued the cause and filed a brief for appellee. The Bethlehem Steel Company entered into a contract, dated September 27, 1909, with the United States, to manufacture and deliver for the Navy large quantities of several groups of armor plates, and agreed to replace any accept The judgment of the Court of Claims is affirmed. Mr. Justice McKenna dissents. |