NOTICE OF JUDGMENT NO. 1045.
(Given pursuant to section 4 of the Food and Drugs Act.)
ADULTERATION AND MISBRANDING OF GRAPE JUICE.
On March 15, 1910, the United States Attorney for the Western 
District of New York, acting upon the report by the Secretary of 
Agriculture, filed in the District Court of the United States for said 
district a libel praying condemnation and forfeiture of 74 cases of 
grape juice which had been shipped from the State of Pennsylvania 
into the State of New York.
Examination of samples from said consignment by the Bureau of 
Chemistry of the United States Department of Agriculture showed 
the product to be short in weight and measure, below the standard 
of grape juice, and to contain 5 per cent of glucose. The libel alleged 
that the grape juice after transportation from the State of Pennsyl- 
vania into the State of New York remained in the original unbroken 
packages and was adulterated and misbranded in violation of the 
Food and Drugs Act of June 30, 1906, and was therefore liable to 
seizure for confiscation. Adulteration was alleged because glucose 
had been substituted in part for the grape juice. Misbranding was 
alleged because the product was labeled and branded so as to deceive 
and mislead the purchaser in that it bore the statement " The brand 
that raised the standard ", whereas in truth and in fact it was not 
pure grape juice, and further because a number of the bottles were 
found to be short in measure and the remainder short in weight.
To the above libel a joint demurrer was interposed by the Grape 
Products Co., Inc., W. H. Granger & Co., Plimpton, Cowan & Co. 
and S. M. Flickinger Co., Inc., claimants of the product, on the 
ground that the libel failed to allege that notice of the examination of 
the samples by the Bureau of Chemistry, United States Department
7948°—No.  1045—11
of Agriculture, was given to the claimants and an opportunity to be 
heard afforded them.
On July 15, 1910, the court overruled the demurrer, not, however, 
upon the questions raised therein, but because it did not appear from 
the record whether the proceedings had been instituted at the instance 
of the United States Department of Agriculture or by the United 
States Attorney of his own motion. The opinion of the court is- 
reported in 181 Federal Reporter at page 629.
The case subsequently came on for trial before Holt, J., and a 
jury, and the court, on motion of the proctor for the claimants, 
directed the jury to return a verdict for the claimants upon the 
ground that no notice had been given to the parties interested in the 
grape juice under section 4 of the act prior to the filing of the libel. 
Verdict was returned accordingly and an appeal was taken by the 
United States to the Circuit Court of Appeals for the Second Circuit. 
The opinion of the Court of Appeals affirming the decision of the 
District Court is as follows:
UNITED STATES CIRCUIT COURT OF APPEALS, SECOND CIRCUIT. 
Before LACOMBE, WARD and NOYES, Circuit Judges.
UNITED STATES, Libell ant-Appellant, 
vs.
74 CASES OP GRAPE JUICE, S. M. 
Flickinger Company, et al., Claim- 
ants-Respondents.
Appeal from a decree of the District Court, Western District of New York, 
entered upon the verdict of a jury rendered in accordance with the direction of 
the Court in proceedings instituted by the Government for the condemnation, 
as being adulterated and misbranded, of certain cases of grape juice under the 
provisions of " The Food and Drugs Act, June 30, 1906," of which Act the 
relevant portions are printed in the footnote.1
1" SEC. 2. * * * any person who shall ship or deliver for shipment from any state 
or territory or the District of Columbia to any other state or territory, or the District of 
Columbia, or to a foreign country, or who shall receive * * * any such article so 
adulterated or misbranded within the meaning of this Act * * * shall be guilty of a 
misdemeanor, and for such offense be fined not exceeding $200, for the first offense, and 
upon conviction for each subsequent offense not exceeding $300, or be imprisoned not 
exceeding one year, or both, in the discretion of the court,    *    *    *."
" SEC. 4. That the examinations of specimens of foods and drugs shall be made in the 
Bureau of Chemistry of the Department of Agriculture, or under the direction and super- 
vision of such bureau, for the purpose of determining from such examinations whether such 
articles are adulterated or misbranded within the meaning of this Act; and if it shall 
appear from any such examination that any of such specimens is adulterated or mis- 
branded within the meaning of this Act, the Secretary of Agriculture shall cause notice 
thereof to be given to the party from whom such sample was obtained. Any party so 
notified shall be given an opportunity to be heard under such rules and regulations as may 
be prescribed as aforesaid, and if it appears that any of the provisions of this Act have 
been violated by such party, then the Secretary of Agriculture shall at once certify the 
facts to the proper United States District Attorney, with a copy of the results of the anal- 
ysis or the examination of such article duly authenticated by the analyst or officer making 
such examination, under the authority of such officer. After judgment of the court, notice 
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It was stipulated upon the hearing of the appeal in this Court that the pro- 
ceedings were instituted by the District Attorney for the Western District of 
New York, solely upon and by reason of a report made to him by the Secretary 
of Agriculture of a violation of said Act. It was also conceded that the steps 
prescribed in section 4 of said Act with respect to notice and hearing had not 
been taken as a basis for the report made by the Secretary of Agriculture. 
The District Judge ruled that it was a condition precedent to the institution 
of proceedings under section 10 of the Act upon a report from the Secretary of 
Agriculture that said steps prescribed in section 4 should have been taken and, 
consequently, directed a verdict for the respondents.
NOYES, Circuit Judge (after making the foregoing statement) :
The different sections of the Food and Drugs Act while relating to different 
subjects are consistent and, in many respects, interdependent. The second sec- 
tion—the relevant portions of which have been shown—provides that any person 
violating the provisions of the Act shall be guilty of a misdemeanor and subject 
to fine and imprisonment. The tenth section provides that articles sold or 
transported in violation of the provisions of the Act, shall be liable to .seizure 
and condemnation. Both sections relate to penalties for violations of the Act. 
The penalty under one section is a fine and imprisonment. The penalty under 
the other section is the forfeiture of the misbranded or adulterated goods. 
Both sections are penal in their nature. Punishment is as well inflicted by the 
forfeiture and loss of property as by a fine. The two sections taken together 
(with the first section which relates to manufacture in territories) cover the 
subject of the punishment imposed for breaches of the provisions of the statute.
Section 5 of the Act must also be read in connection with sections 2 and 10. 
The latter, as we have seen, relate to penalties. The former provides for the 
enforcement of such penalties. It makes it the duty of the proper District 
Attorney upon the presentation of " satisfactory evidence " of a violation of the 
Act by any state health or food officer to cause appropriate proceedings to be
shall be given by publication in such manner as may be prescribed by the rules and regula- 
tions aforesaid."
" SEC. 5. That it shall be the duty of each District Attorney to whom the Secretary of 
Agriculture shall report any violation of this Act, or to whom any health or food or drug 
officer or agent of any State, Territory, or the District of Columbia shall present satisfac- 
tory evidence of any such violation to cause appropriate proceedings to be commenced and 
prosecuted in the proper courts of the United States, without delay, for the enforcement of 
the penalties as in such case herein provided."
" SEC. 10. That any article of food, drug, or liquor that is adulterated or misbranded 
within the meaning of this Act, and is being transported from one State, Territory, District, 
or Insular possession to another for sale, or, having been-transported, remains unloaded, 
unsold, or in original unbroken packages, * * * shall be, liable to be proceeded against 
in any District Court of the United States within the District where the same is found, and 
seized for confiscation by a process of libel for condemnation. And if such article is con- 
demned as being adulterated or misbranded, or of a poisonous or deleterious character, 
within the meaning of this Act, the same shall be disposed of by destruction or sale, as the 
said Court may direct, and the proceeds thereof, if sold, less the legal costs and charges, 
shall be paid into the Treasury of the United States, but such goods shall not be sold in 
any jurisdiction contrary to the provisions of this Act or the laws of that jurisdiction; 
Provided, however, That upon the payment of the costs of such libel proceedings and the 
execution and delivery of a good and sufficient bond to the effect that such articles shall 
not be sold or otherwise disposed of contrary to the provisions of this Act, * * * the 
Court may by order direct that such articles be delivered to the owner thereof. The pro- 
ceedings of such libel cases shall conform, as near as may be, to the proceedings in ad- 
miralty, except that either party may demand trial by jury of any issue of fact joined in 
any such case, and all such proceedings shall be at the suit of and in the name of the 
United States." 
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instituted and prosecuted. It also provides that the District Attorney shall In- 
stitute such proceedings in case the Secretary of Agriculture shall report to him 
any violations of the Act. But in this case it is not required that evidence of a 
violation of the Act shall be presented. The report of the Secretary is in itself 
made the basis of proceedings.
Now if section 5 stood apart from other provisions of the statute it would 
contravene a practice so long and well established as almost to amount to a 
fundamental right, viz: that proceedings for the punishment of the citizen 
should be instituted only after investigation by some public official. To compel 
a District Attorney to institute proceedings upon the report of another official 
without requiring the latter to investigate before making such report would be 
most extraordinary. And this Act does not so require. It is made the duty of 
the District Attorney to act upon the report of the Secretary of Agriculture 
without the presentation of evidence required in other cases only because section 
4 of the Act throws the duty of making investigation upon the Secretary before 
he makes his report. The preliminary examination in such case is made by 
the Secretary instead of the District Attorney. The sections are interdependent 
and must be read together, and when so read they are found to present an 
orderly and a just procedure. As then the " report" of the Secretary of Agri- 
culture referred to in section 5 is the certificate of facts which he is required 
to make under section 4, it necessarily follows that the steps required to be 
taken preliminary to certifying the facts—including notice and hearing—must 
be taken before such a report as the law requires can be made. And it also 
follows, upon principles already considered, that when such report is at all a 
prerequisite to proceedings under section 5, it is as necessary to proceedings for 
the enforcement of penalties by way of forfeiture as by way of fine or imprison- 
ment.
Looking at the question involved from a slightly different point of view the 
same conclusion must be reached. Section 4 of the Act—as we have seen—pro- 
vides for the examination of articles by the Bureau of Chemistry of the De- 
partment of Agriculture for the purpose of determining whether they are 
adulterated or misbranded. If they are found to be adulterated or misbranded 
notice and an opportunity to be heard must be given to the party from whom 
they were obtained. If it then appears that the Act has been violated the Secre- 
tary of Agriculture must certify the facts to the proper District Attorney. 
This is the only report of the violation of the Act which the statute requires the 
Secretary to make. When made it affords, without further investigation, the 
basis for the institution by the District Attorney of appropriate proceedings for 
the enforcement of the penalties prescribed in the Act. But it is just as neces- 
sary that the report which Is the basis for the condemnation proceedings should 
be made according to law as it is that such report should be a lawful one when 
it affords the basis for a criminal prosecution.
It must be distinctly borne in mind that the requirement of a preliminary 
investigation including notice and hearing applies only when the District At- 
torney acts upon the report of the Secretary of Agriculture. It is not required 
when he acts upon evidence furnished by any state health officer and undoubtedly 
would not be required in proceedings taken at his own initiative. Apparently 
the statute does not contemplate reports by the Secretary except when due 
examinations have been made, and leaves the ordinary cases requiring imme- 
diate prosecution or seizure to the action of local authorities. We perceive no 
ground whatever for the contention of the Government that if its position in 
this case be not sustained, section 10 of the Act may as well be treated as a 
dead letter. 
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We are aware that decisions have been rendered in several District Courts 
contrary to the conclusions reached in this opinion. It is sufficient to say that 
the reasoning of those cases does not commend itself to our approval and that 
we are unable to follow them.
The decree of the District Court is affirmed.1
Decisions of United States District Courts and Circuit Courts of 
Appeal adverse to the Government will not be regarded as final until 
acquiescence shall have been published.
JAMES WILSON, 
Secretary of Agriculture. 
WASHINGTON, D. C, August 5, 1911.
1 It is not necessary to be determined in this case whether section 5 of the Act in any 
way limits District Attorneys in their right as the prosecuting officers of the United 
States to institute criminal proceedings or proceedings in rem when satisfied by satisfactory 
evidence obtained from other persons than health officers that the provisions of the Act 
have been violated; and nothing in this opinion is to be considered as holding that the 
proceedings in this case could not have been taken by the District Attorney as the result 
of his own investigation. Our opinion is based wholly upon the stipulation that the 
District Attorney acted altogether in pursuance of the report of the Secretary of 
Agriculture.
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