NOTICE OF JUDGMENT NO. 2456.
SUPPLEMENT TO NOTICE OF JUDGMENT NO.  1744. 
(Given pursuant to section 4 of the Food and Drugs Act.)
U. S. v. Philadelphia Pickling- Co. On appeal »y defendant the U. S. Circn.it 
Court of Appeals for the Third Circuit affirmed judgment of the lower 
court.
ADULTERATION OF TOMATO PARTE.
On November 19, 1912, the Philadelphia Pickling Co., defendant 
in the above-cited case, petitioned the District Court of the United 
States for the District of New Jersey for an order allowing said de- 
fendant to prosecute a writ of error to the United States Circuit 
Court of Appeals for the Third Circuit. On the same date defendant 
filed its bill of exceptions and assignments of error at the trial of 
the case before said District Court, resulting, October 30, 1911, in a 
verdict of guilty and the imposition of a fine of $100.
At the trial of the case the jury was directed to find a verdict ia 
favor of the Government, as will more fully appear on the following 
charge delivered to the jury by the court (Eellstab, D. J.) :
The question now before the court is whether the defense that the defendant 
has been permitted to introduce, is an answer to this indictment, it having been 
admitted by the defendant, first that the nine barrels of tomato paste, which 
constitutes the shipment, contained adulterated food within the meaning of the 
Food and Drug Act; and second, that it shipped them from Belleplain, New 
Jersey, to itself at its place of business in Philadelphia, Pennsylvania.
As I say, the question is whether, in view of those admissions, the defense 
that has been permitted to be introduced can be treated as a defense in law. 
If it can, it presents a question for the jury. If not, there is no question for 
the jury to pass upon, and it devolves upon the Court to direct a verdict.
The view I have reached in the premises is that it does not constitute a de- 
fense, and I will briefly state my reasons, so that if the case should be taken 
up, the Appellate Court will know upon what grounds the defense was overruled. 
87217°—No. 2456—13
2
The indictment contains but one count, and that charges the defendant, the 
Philadelphia Pickling Company, with wilfully and unlawfully shipping and de- 
livering for shipment from Belleplain, New Jersey, to Philadelphia, Pennsyl- 
vania, by a certain railroad, nine barrels of tomato paste, which, the indictment 
alleges, was a food adulterated within the meaning of the Food and Drug Act. 
It then specifies in what way it was adulterated. This act, as indicated in its 
title, is an act to prevent not only the manufacture and sale, but the transporta- 
tion of, adulterated or misbranded foods and drugs, etc. Transportation as 
well as sale or manufacture, is therefore, within the Congressional purpose in 
passing this enactment. Section 2 prohibits the introduction into any State 
from another State, of adulterated foods; or even the delivery for shipment 
from one State to another, and it declares the persons who shall so introduce 
and transport, to be guilty of a misdemeanor.
Section 10, to which reference has been made, authorizes a proceeding in rem, 
and contemplates only the confiscation of the offending goods. ' Section 2, upon 
which the indictment is founded, directs a proceeding in personum, and the con- 
stituents of the offense therein denounced are found therein, no reference to 
Section 10 being necessary.
It is said, however, that the shipment in question, though made with the view 
of sale, depended upon an inspection and test before a sale could the place, 
and therefore was not an offense within such section. In other words, that such 
a transaction was not commerce, and therefore not within the legislative rwr- 
pose of the act. I cannot accede to this view. The defendant certainly con- 
templated making a sale of this paste. The examination and test were for that 
purpose; that the result thereof might prevent the consummation of the in- 
tended sale does not make this shipment any less a commercial transaction. The 
purpose of this act is very manifest, it is a beneficent purpose; it is to protect 
the public from the sale of impure food. The act itself furnishes the test of 
what is impure. Transportation with a view of putting into the hands of cus- 
tomers an adulterated article, is within the beneficent purpose, and within the 
terms of this enactment.
Now, it appears in this case that the defendant purchased in New Jersey, 
from a New Jersey manufacturer, a number of barrels of tomato paste, which 
it stored in its own place in New Jersey. The testimony on behalf of the de- 
fendant discloses not only that, but also that they knew at that time that it was 
adulterated within the meaning of this act, and that if such food should come 
into interstate commerce, it would fall within the denouncement of such act, 
subject the defendant to indictment, and the goods themselves to confiscation.
The proviso to Section 2, to which reference has been made, shows that Con- 
gress intended to except from the provisions of the act such articles, even though 
they were adulterated within the meaning of the act, where it was intended for 
export to a foreign country; but it expressly limits the proviso, and requires 
the persons so intending to use the adulterated food, to see that it is put in 
packages prepared and packed according to the specifications or directions of 
the foreign purchaser; that was not done in this case. The reason given why 
it was not done is that without an examination and test no such exportation 
was to take place, and that the prospective purchaser would not go to New 
Jersey to make the inspection, and that the goods were thereupon shipped to 
Philadelphia to have the examination and test made there. We find, therefore, 
that a shipment was made of adulterated goods from one State to another. It 
is said it was made, however, from the owner to himself, the shipper and the 
consignee being the same person, and that from that we are to conclude that 
it was not commerce. I do not think the cases cited by counsel will support that 
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insistence. Furthermore, it must not be overlooked that all those cases were 
dealing with Section 10, seizures in which the element of sale is expressly in- 
serted. It may very well be that a person cannot sell to himself; yet, a ship- 
ment by one to himself may be in contemplation of sale and fall within the 
statute's inhibition. If Stevens, the original owner, had shipped these goods 
direct to the defendant at Philadelphia, there would be no question but that 
it would be a shipment in interstate commerce. Will the mere fact that the 
purchase was made in New Jersey and shipped by the purchaser to himself in 
another State, take the transaction out of the act? To put such construction 
upon this section seems to me to be violative of the ordinarily accepted principles 
of statutory construction. This section declares that introducing from one 
State to another, shipping from one State to another, delivering for the purpose 
of shipping from one State to another, an article of food which is adulterated, 
is a misdemeanor. As already stated, these nine barrels of adulterated tomato 
paste were intended to be sold, and that with a view of facilitating and con- 
summating such sale, the shipment was made from New Jersey to Pennsylvania. 
It would have been consummated, according to their own statement, if the 
goods had upon inspection and examination by the intended purchaser proved 
to be satisfactory to him. To hold that a shipment of that kind is not com- 
merce, in my judgment, would be in absolute disregard of the meaning of the 
word. The defendant, if it had intended to make a shipment of these barrels 
under this proviso which I have mentioned—the proviso tacked on to the second 
section—should have made its inspection and examination in New Jersey and 
should there have prepared and marked the containers in the manner directed 
by the statute. It did not do that; but on the contrary, it made the shipment 
in disregard of such requirement, and hence, in violation of the section.
My direction, therefore, to you gentlemen is that you find a verdict in favor 
of the Government.
On January 2, 1913, the case was argued in the Circuit Court of 
Appeals and on February 1, 1913, that court rendered its decision, 
affirming the judgment of the lower court, as will more fully appear 
from the following opinion delivered by the court (Michelson, J.) :
The Philadelphia Pickling Company was convicted under Section 2 of the 
Food and Drugs Act of 1906, the indictment charging a shipment of adulterated 
tomato paste from the company's place of business in New Jersey to its place 
of business in Pennsylvania. Other facts will appear in a few moments; but 
it seems advisable to consider in advance the general question—Does the act 
apply where the owner has shipped to himself for some other business purpose 
than sale? The trial judge directed the verdict, but no complaint is made of 
this, if his construction of the act was correct.
The statute imposes penalties in three sections, but we are concerned only 
with sections 2 and 10. The latter section provides for condemnation, and per- 
mits an offending article to be seized, if it " is being transported from one 
state, territory, district, or insular possession to another for sale; or having 
been transported remains unloaded, unsold, or in the original unbroken pack- 
ages; or if it be sold or offered for sale in the District of Columbia, or the ter- 
ritories, or insular possessions of the United States; or if it be imported from 
a foreign country for sale; or if it is intended for export to a foreign country." 
This section speaks repeatedly of sale, and the courts have had several occa- 
sions to consider what Congress meant by the language quoted. In United 
States vs. 65 Casks (D. C), 170 Fed. 449, it appeared that the casks in ques-
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tion (which were insufficiently marked) contained a liquid that had been manu- 
factured and shipped by the owner's agent in Michigan to the owner himself 
in West Virginia for the primary purpose of being bottled and properly labeled 
there. It was not to be sold until this had been done, and the District Court 
held inter alia (pp. 445-6) that Congress
" did not * * * have power to restrict one from manufacturing in one state 
such product and removing it from that state to another for the purpose of 
personal use and not sale, or for use in connection with the manufacture of 
other articles to be legally branded when so manufactured."
The Court of Appeals affirmed the judgment in a brief opinion (175 Fed. 
1022) which is silent concerning the power of Congress and merely gives the 
following reason for affirmance:
"No attempt to avoid the law, either directly, indirectly or by subterfuge, 
has been shown; it appearing that the manufacturer had simply transferred 
from one point to another the product he was manufacturing for the purpose 
of completing the same for the market. Under the circumstances disclosed in 
this case, having in mind the object of Congress in enacting the law involved, 
we do not think the liquid extract proceeded against should be forfeited. 
Reaching this conclusion we do not find it necessary to consider other questions 
discussed by counsel and referred to in the opinion of the court below."
In United States vs. 46 Packages (D. C.) 183 Fed. 642, it was held that a libel 
in rem under Section 10 was defective because it failed to aver that the articles 
seized were transported " for sale". The foregoing cases are referred to in 
Hipolite Egg Co. vs. United States, 220 U. S. 45, and although they are not 
definitely disapproved they are certainly not accepted as correct. At the best, 
they arenoticed and laid aside with a word or two of comment, and of course 
they must yield if they clash with the decision or the opinion of the Supreme 
Court. One of the points decided in the Hipolite Egg case is, that section 10 
permits the condemnation of adulterated food, although it has not been trans- 
ported for sale directly but is intended solely for use as raw material in the 
manufacture of another product. This is clear, for the court on page 52 states 
the first contention of the Egg Company to be that
'" Section 10 of the Food and Drugs Act does not apply to an article of food 
which has not been shipped for sale, but which has been shipped solely for use 
as raw material in the manufacture of some other product; " 
and this contention is declared (p. 55) to be "Untenable."
But the reasoning that supports this declaration goes further, we think, than 
the precise point decided. We may perhaps venture to give an outline of the 
argument: Congress has taken away from adulterated food the right to be 
transported in interstate commerce, whatever the object of such transportation 
may be. The act has two clearly separate objects (p. 54) ; first, to keep adul- 
terated articles completely out of the channels of interstate commerce; and 
second, if they do enter such channels to sanction, their condemnation while 
being transported, or even after they have reached their destruction, as long 
as they remain unloaded, unsold, or in original unbroken packages. These 
objects of the act are not changed or qualified by the purpose of the owner. 
He may, or may not, intend to sell; if he so intend, perhaps he may also intend 
that the articles shall first undergo a further process of manufacture; but even 
if the latter intention be present, he would still be transporting for sale. There- 
fore, even if the "condition" (Contention?) be accepted that section 10 does 
not allow condemnation unless such articles are transported for sale, never- 
theless the facts of the case then being considered showed that a " sale " was 
intended. Not directly, it is true, but only one step removed; for the eggs were 
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intended to be used in making cakes for the market, and were, therefore, to be 
sold as a part of the cake. The court points out that all articles, compound 
or single, not intended for consumption by the producer, are designed for sale, 
and because they are so designed it is the concern of the law to have them pure.
One of the Egg Company's arguments—that a producer in one state is not 
interested in an article shipped from another state if such article be not in- 
tended for sale or consumption until it is manufactured into something else— 
is said to be " peculiar "; the court declares, that both the producer and the 
consumer are interested in having an article pure, no matter whence it may 
come, and that the law seeks to protect such interest both by the personal 
penalties of section 2 and by the seizure and condemnation under section 10.
This is in outline the Court's reply to the Egg Company's first position; but 
we think the attitude of that tribunal appears even more clearly in the dis- 
cussion of the company's second position—which was, " that at the time of the 
seizure the eggs had passed into the general mass of property in the state, and 
out of the field covered by interstate commerce." The containers had been 
stored at the company's bakery among other supplies, but the original packages 
had not been broken. It was held that Congress might pursue the packages 
into the bakery and might seize them there; the offending articles had not 
escaped although they had reached their destruction, and had already become 
part of a larger collection of supplies. The act had forbidden the transporta- 
tion of adulterated food, and not only had made the shipper subject to penal- 
ties, but had made even the goods themselves so far culpable as to be liable 
to seizure in rem:
" It is clearly the purpose of the statute that they shall not be stealthily put 
into interstate commerce, and be stealthily taken out again upon arriving at 
their destruction and be given asylum in the mass of property of the state. 
Certainly not, when they are yet in the condition in which they were trans- 
ported to the state, or, to use the words of the statute, while they remain " in 
the original, unbroken packages". In that condition they carry their own 
identification as contraband of law. Whether they might be pursued beyond 
the original packages, we are not called upon to say. That far the statute 
pursues them, and, we think, legally pursues them, and to demonstrate this 
but little discussion is necessary."
grand one characteristic of adulterated food is thus insisted upon, with the 
legal consequences that flow therefrom:
" We are dealing, it must be remembered, with illicit articles,—articles which 
the law seeks to keep out of commerce, because they are debased by adulteration, 
and which law punishes them (if we may so express ourselves) and the ship- 
per of them. There is no denial that such is the purpose of the law, and the 
only limitation of the power to execute such purpose which is urged is that the 
articles must be apprehended in transit or before they have become a part of 
the general mass of property of the state. In other words the contention 
attempts to apply to articles of illegitimate commerce the rule which marks 
the line between the exercise of Federal power and state power over articles 
of legitimate commerce. The contention misses the question in the case. There 
is here no conflict of national and state jurisdictions over property legally 
articles of trade. The question here is whether articles which are outlaws of 
commerce may be seized wherever found, and it certainly will not be contended 
that they are outside of the jurisdiction of the National Government when they 
are within the borders of a state. The question in the case, therefore is, What 
power has Congress over such articles? Can they escape the consequences of 
their illegal transportation by being mingled at the place of destruction with 
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other property? To give them such immunity would defeat, in many cases, 
the provision for their confiscation, and their confiscation or destruction is the 
especial concern of the law. The power to do so is certainly appropriate to 
the right to bar them from interstate commerce, and completes its purpose, 
which is not to prevent merely the physical movement of adulterated articles, 
but the use of them, or rather to prevent trade in them between the states by 
denying to them the facilities of interstate commerce. And appropriate means 
to that end, which we have seen is legitimate, are the seizure and condemnation 
of the articles at their point of destruction in the original, unbroken packages."
We have examined this case at such length, because it seems to us that if 
our understanding of the court's reasoning be correct the decision of the 
present controversy is inevitably foreshadowed. It is true that this is a prose- 
cution under section 2, and not a seizure under section 10; but the difference 
(if important) is in favor of section 2, for its meaning is not restricted by the 
words " for sale," and is therefore even broader than the language of section 
10. One of the chief objects of the act is declared in section 2, namely, to 
forbid "the introduction into any state or territory, &c, &c, of any article of 
food . . . which is adulterated "; and while the section does not attempt to 
punish criminally every method of " introduction " it does punish the method 
here in question—" any person who shall ship or deliver for shipment from any 
state or territory, &c, &c, shall be guilty of a misdemeanor," &c, and the 
breadth of the prohibition justifies us at least in refusing to narrow the ordi- 
nary meaning of the words that define the crime. Of course the shipment must 
be in the way of " commerce " ; such a limitation is constitutionally necessary; 
but if the limitation be assumed, no reason is perceived why " shipment " should 
be construed to mean " shipment for sale." Its ordinary meaning in this 
connection covers any shipment for any purpose in the course of commerce, 
and we accept this as the intended scope of the word. And the correctness of 
such construction seems more probable when we observe that the next penal 
clause of section 2 should apparently be construed in a similar manner. This 
clause applies to any person " who shall receive in any state or territory, &c, 
&c, and, having so received, shall deliver in original unbroken packages . . . 
or (shall) offer to deliver, to any person any such article so adulterated"— 
the delivery being punished, whether it be " for pay or otherwise." In other 
words to receive and deliver offending articles in the course of commerce is 
indictable whatever the business purpose may be.
The Court of Appeals of the Second Circuit, in United States vs. 300 Cans, 
189 Fed. 352, has also ruled that, since the Hipolite decision at all events, a 
libel for condemnation need no longer aver that the articles were transported 
for sale—the food there in question having been shipped from Nebraska by 
the owner to himself in New York and remaining unsold in original unbroken 
packages.
The facts of the present dispute are these: The defendant has two places of 
business, one in New Jersey and one in Pennsylvania. The adulterated tomato 
paste in question was at the New Jersey house and was shipped to Philadelphia 
in order to be examined and tested in that city. The test was necessary because 
a customer in London had sent an order, and the paste, unless it could meet the 
English standard, would not fill the customer's requirements. It was not to be 
sold or used for food in Philadelphia, and it was not so sold or used; but, having 
failed to meet the English test, it was immediately destroyed without attempt 
to use or sell. The test was not made in New Jersey because facilities for 
making it there were lacking. The sale would have been completed in Phila- 
delphia, and the shipment for export would have been made from that city, if 
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the paste had met the English test; and in that event the paste (although it 
might have been adulterated according to the United States standard) would 
not have been subject to seizure by this government, if it had been " prepared 
or packed according to the specifications or directions of the foreign purchaser, 
&c, &c." (See proviso to section 2.) That an ultimate sale was a possibility 
when the shipment was made in New Jersey, is not a decisive consideration; for 
the sale was never made, and of course the goods were never prepared or packed 
for export. But the English order does have this bearing; it explains why the 
interstate movement took place, and shows that the reason was a trade or busi- 
ness reason, and therefore that the movement was in the course of commerce.
In our opinion it was interstate commerce for the owner to ship the goods 
from New Jersey to Pennsylvania for a business purpose such as examination 
and test; and as the goods were adulterated such a shipment was unlawful.
The judgment is affirmed.
B. T. GALLOWAY,
Acting Secretary of Agriculture. 
WASHINGTON, D. C., March £8,191 J.
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