F. & D. No. 500.
S. 184.	
Issued September 2, 1910.
United States Department of Agriculture,
OFFICE OF THE SECRETARY.
NOTICE OF JUDGMENT NO. 508, FOOD AND DRUGS ACT.
ADULTERATION OF PRESERVED WHOLE EGG.
On or about March 11, 1909, in pursuance of a report made by the?
Secretary of Agriculture to the United States attorney for the?
Southern District of Illinois, there was filed in the District Court of?
the United States for the said district a libel under section 10 of the?
Food and Drugs Act of June 30, 1906, by which proceeding it was?
sought to confiscate 50 cans of preserved whole egg, for the reason?
that the product was alleged to be adulterated in containing an added?
deleterious ingredient, to wit, boric acid, which might render said?
article injurious to health. On December 9, 1909, Thomas & Clarke,?
a.corporation, entered a special appearance in the above libel proceed??
ings, claiming to be the true and bona fide owner of the above-named?
product, and waiving and relinquishing all its title and interest?
therein to the Hipolite Egg Company, a St. Louis corporation. On?
the same date said Hipolite Egg Company filed an answer to the?
libel above referred to, denying the allegations thereof that the?
product contained boric acid, that boric acid was a deleterious ingre??
dient, that it rendered said eggs injurious to health, and that the eggs?
were transported and offered for sale in violation of law.
The case coming on for hearing, jury was waived and the court?
being fully informed in the premises, rendered its decree in favor of?
the libelant, as follows:
DECREE OE  COURT.
This cause having regularly come on to be heard on the 10th day of Decem??
ber, A. D. 1909, at the city of Peoria, and it appearing to the court that in?
accordance with the prayer of the libel filed herein, the United States marshal?
for the Southern District of Illinois, under the authority of a writ of monition?
duly issued, seized upon the premises of Thomas and Clarke, a corporation
52802??No. 508?10
doing business in the city of Peoria, State of Illinois, fifty-two cans of preserved?
whole egg, prepared by the Hipolite Egg Company of Saint Louis, Missouri,?
and thereupon gave due notice of said seizure and publicly advertised the?
same as required by law in such cases, and has since held in his custody said?
preserved egg so seized, and the said Thomas and Clarke having entered its?
appearance specially and having waived all right and title to said seized egg, and?
having consented that the Hipolite Egg Company might appear as the claimant?
and defend both in its own right as well as in behalf of the said Thomas and?
Clarke, and the said claimant having filed its answer and issue having been?
joined, and the libelant appearing by W. A. Northcott, United States attorney,?
and Henry A. Converse, assistant United States attorney, and the claimant?
appearing by Thomas E. Lannen, esq., and all parties interested having first?
stipulated in writing that the cause might be tried by the court without the?
intervention of a jury, and the evidence having been presented and the argument?
of counsel heard, the court finds:?
That said preserved whole egg is a food product intended for the consumption?
of human beings.
That said food product was shipped from the city of Saint Louis, in the State?
of Missouri, to the city of Peoria, in the State of Illinois, and remained within?
this jurisdiction unsold, and in the original and unbroken package.
That said food product is adulterated within the meaning of the act of June?
30, 1906 (34 Statutes at Large, 771), in that it contains two per cent of boric?
acid added as a preservative.
That said boric acid is a deleterious ingredient which may render said article?
of food injurious to health.
That said food product is illegally held within the jurisdiction of this court?
and is confiscable and liable to condemnation as provided by said act of June 30,?
1906.
Now, therefore, it is ordered, adjudged and decreed, that thirty days after?
the filing of this decree, the United States marshal shall take said fifty-two?
cans of preserved whole egg and totally destroy the same and that judgment be?
entered against the claimant for the costs in said case and execution issue?
therefor, and that the United States marshal shall make due report of how he?
has executed this order of this court, and shall report his bill of costs for said?
seizure, drayage, storage, advertising, destruction and all other necessary?
expenses incurred by him in and about said seizure, which said costs of the?
United States marshal shall be included in the court costs of this case.
HUMPHREY, Judge.
The court also made the following special finding as to the facts?
in the case:
Now on this day come again the parties hereto by their respective attorneys?
and this cause now being submitted to the court upon the pleadings and proof?
adduced the court finds the facts in this cause as follows:
SPECIAL FINDING OF FACTS.
The court finds the facts to be:
1. This libel is filed by the United States of America in its own right and
prays seizure for condemnation of certain articles of food contained in fifty
cans, more or less, purported and represented to be " Preserved Whole Egg " as
hereinafter .particularly  set forth,  in  accordance with the act of  Congress
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approved June 30, 1906, and more commonly known as the Food and Drugs Act.?
This proceeding is brought under section 10 of said act.
2.?The court finds that on or about May 14th, 1908, Thomas & Clarke, an?
Illinois corporation, with its place of business in the city of Peoria in this dis??
trict and engaged in the business of conducting a so-called crackers bakery in?
said city, entered into a written contract with the Hipolite Egg Company, a?
Missouri corporation, doing business in St. Louis, Missouri; by the terms of?
which contract the Hipolite Egg Company was to put up and preserve a certain?
quantity of preserved whole egg.
3.?Under the terms of this contract the Hipolite Egg Company prepared the?
eggs in question in this suit and on or about the 21st day of May, 1908, placed?
said eggs in a cold storage warehouse at St. Louis, Missouri, in the name of?
Thomas & Clarke, and a warehouse receipt covering said eggs was issued to?
Thomas & Clarke and forwarded to them by the Hipolite Egg Company, together?
with an invoice for the contract price of said eggs. Thereafter, on or about?
June 1st, 1908, Thomas & Clarke paid said invoice to the Hipolite Egg Company.
4.?In the early part of November, 1908, Thomas & Clarke sent a written order?
on the warehouse where said eggs were stored to the Hipolite Egg Company?
foi the eggs in question to be delivered to Hipolite Egg Company for shipment?
to Thomas & Clarke. Hipolite Egg Company thereupon presented said order to?
the warehouse and obtained said eggs and delivered same to a common carrier?
for shipment to Thomas & Clarke, at Peoria, Illinois.
5.?Thomas & Clarke paid all storage charges on said eggs while in storage at?
St. Louis as aforesaid. Thomas & Clarke also took out insurance in its own?
name on said eggs while in storage at St. Louis as aforesaid, and paid all?
premiums thereon. Thomas & Clarke also paid the freight on said eggs from?
St. Louis to Peoria. Hipolite Egg Company received no extra compensation for?
taking said eggs from the warehouse and delivering same to the common carrier.
6.?The court finds that said eggs were transported from St. Louis, State of?
Missouri, to Peoria, in the State of Illinois, as aforesaid and were received by?
Thomas & Clarke at Peoria on or about November 16th, 1908.
7.?The said shipment consisted of one hundred and thirty cans, each can con??
taining about forty-two pounds of eggs. Each can was a separate sealed package.?
The eggs in the cans were whole eggs, minus the shells, that had been broken?
out of the shells into these cans.
8.?The court finds that the said eggs, were an article of food and contained?
added to it a deleterious ingredient known as boric acid which may render such?
article injurious to health, and that the said eggs were in fact injurious to?
health, and the court further finds that the amount of boric acid contained in?
said eggs was approximately two per cent. And the court finds that said eggs?
were adulerated within the meaning of the Act of June 30, 1906.
9.?Thomas & Clarke did not know at the time of shipment that said eggs?
contained boric acid. At the time of making said contract Thomas & Clarke?
did not know by what process Hipolite Egg Company would preserve said eggs,?
but did know that the eggs were to be preserved by having added thereto some?
kind of a preservative, in addition to being sealed in air-tight cans.
10.?At the time of the seizure of said eggs they were stored in the storeroom?
of Thomas & Clarke in their bakery factory at Peoria, along with their bakery?
supplies. About 80 cans of said shipment had been used by opening said cans?
and pouring said eggs into a mixture of flour and other ingredients and thereby?
making a dough. This dough was baked into pastry, such as vanilla wafers,?
and this pastry was sold to the public. The fifty cans of eggs more or less,?
seized by the marshal were intended and about to be used for baking purposes
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as aforesaid at the time of seizure, and said eggs were not intended to be sold?
as eggs in the original unbroken packages, or otherwise, but were to be used?
only as above set forth and were transported as aforesaid only for such pur??
pose, but at the time of seizure said eggs were in unbroken original packages,?
as originally shipped and were then on the premises of Thomas and Clarke?
unsold.
Within the prescribed period the Hipolite Egg Company appealed?
from said decree to the Supreme Court of the United States, where?
the case is now pending, by both appeal and writ of error, on the?
ground that the trial court was without jurisdiction in the premises.?
The jurisdictional question involved was fully set forth in the trial?
court's certificate as follows:
CERTIFICATE   OF   JURISDICTIONAL   QUESTIONS.
The District Court of the United States for the Southern District of Illinois?
hereby certifies to the Supreme Court of the United States that on the 18th day?
of December, A. D., 1909, a decree was entered in the above entitled cause con??
fiscating said fifty cans more or less of preserved whole eggs and assessing the?
costs of said case against Hipolite Egg Company, claimant in the above entitled?
cause.
And this court further certifies that in said cause the jurisdiction of this?
court is in issue; and that said question of jurisdiction was raised in the follow??
ing manner:
1st. The libel in this case was a proceeding in rem under section 10 of the?
act of June 30, 1906 (34 Statutes at Large, 771), against fifty cans more or?
iess of preserved whole egg, the libel alleging that said eggs were transported?
in interstate commerce from St. Louis, Missouri, to Peoria, Illinois, and were?
adulterated within the meaning of said act.
2nd. It appeared from the evidence on the part of the libellant on the trial?
of this cause that said eggs before the shipment alleged in the libel had been?
stored in a warehouse in St. Louis, Missouri, for about five months, during?
all of which time the said eggs were the property of and owned by Thomas &?
Clarke, an Illinois corporation engaged in the bakery business at Peoria, Illi??
nois, in this district.
3rd. On or about November first, 1909, Thomas & Clarke procured the ship??
ment of these eggs from St. Louis, Missouri, to themselves at Peoria, Illinois;?
and upon receipt of said eggs Thomas & Clarke placed the shipment in their?
store room in their bakery factory at Peoria along with their other bakery?
supplies.
4th. These eggs were intended for use by Thomas & Clarke for baking pur??
poses, and were not intended for sale by them in the original unbroken packages?
or otherwise, and were not so sold.
5th. Hipolite Egg Company, a corporation of Missouri, appeared as claimant?
of said eggs and intervened and filed an answer to said libel and defended this?
case, but did not enter into any stipulation to pay the costs of this case.
6th. Upon the close of libellant's evidence and again at the close of all the?
evidence counsel for claimant moved the court to dismiss said libel on the?
ground that it appeared from the evidence that this court as a Federal Court?
had no jurisdiction to proceed against or confiscate said eggs, because said eggs?
were not shipped in interstate commerce for sale within the meaning of section?
10 of said Food and Drugs Act, and for the further reason that the evidence?
508
showed that said shipment of eggs had passed out of interstate commerce before?
the seizure of said eggs in this case, because it appeared that said eggs had been?
delivered to Thomas & Clarke and were not intended to be sold by them in the?
original unbroken packages or otherwise.
7th. This court overruled said motions, to which rulings counsel for claimant?
then and there duly excepted, and this court then proceeded to hear and deter??
mine said cause and entered a decree finding said eggs adulterated and con??
fiscating the same and assessing the costs of this case againt the claimant, Hipo-?
lite Egg Company.
8th. Counsel for claimant excepted to the rendition and entry of said decree?
on the ground that this court is without jurisdiction in rem over the subject?
matter and on the further ground that this court is without jurisdiction to?
enter a judgment in personam against said claimant Hipolite Egg Company for?
costs of said case as aforesaid.
And this court therefore certifies to the Supreme Court of the United States?
the following questions of jurisdiction raised as aforesaid:
First: The question of whether this court had jurisdiction in rem over said?
eggs transported as aforesaid.
Second: The question of whether this court had jurisdiction to render and?
enter a decree for costs against the claimant, Hipolite Egg Company, in?
personam.
This notice is given pursuant to section 4 of the Food and Drugs?
Act of June 30,1906.
W. M. HAYS,
Acting Secret&ry of Agriculture.
WASHINGTON, D. C, June 89,1910.
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