?543. Adulteration of eancly.    U. S.   *    *   *   v. Wa*s?n, D-a9n?nd-Ka?p?T Gro- 
cery Ce., ? corporation-.    Tsiett to th_e comt.    Jut-d^mes** of gfailtr*
Fine,  $20 and  cists.     (F.  & t>. No.  7422.    I.   S.  Nos.  17093~k,  17095-k, 
17097-k, 17100-k,, 18801-k, 18802-k, 18803-k.)
On July 27, 1916, the United States attorney tot the District of Kansas, act- 
ing upon a report by the Secretary of Agriculture, filed in the District Court 
of the United States for said district an information against the Watson, 
Durand-Kasper Grocery Co., a "corporation, Salina, Kans., alleging shipment by 
said company, in violation of the Food and Drugs Act, on or about February 1, 
1915 (7 shipments), from the State of Kansas into the State of Colorado, of 
Quantities of candy, variously labeled, which was adulterated.
Analyses of samples of the article by the Bureau of Chemistey of this depart- 
ment showed that they were musty and stale, that animal excreta, larvie, worms, 
and weevils were present in most of the samples and microscopic examination 
showed the presence of organisms and molds.
Adulteration of the article in each shipment was alleged in the information 
for the reason that it consisted in whole or in part of a filthy, decomposed, and 
putrid vegetable substance.
On August 26,1916, the defendant company filed its demurrer to the information, 
On May 14, 1917, the case came on for hearing and was submitted to the court 
on the demurrer to the information and the stipulated facts, the court deeming 
such submission as amounting to a waiver of the demurrer. After due consid- 
eration the defendant was found guilty on May IT, 1917, and sentenced to pay a 
fine of $20 and costs, as will more fully appear from the following decision by 
the court (Pollock, D, J.) :
The Government filed an information in this case against defendant, charging 
it in seven counts with as many violations of what is commonly known as the 
Food and Drugs Act of June SO, 1916 [1906] (34 Stat, 768), in the shipment from 
the city of Salina, this State, to the city of Denver, in the State of Colorado, of 
250 pails of " confectionery," commonly called candy, consigned to one A. Lang, 
all as evidenced by two freight bills of the Union Pacific Railway Co., copies- 
of which are attached to the complaint. To this complaint, and each and every 
count thereof, defendant interposes, a general demurrer. The defendant further 
pleading not guilty, a trial by jury was waived and the entire controversy sub- 
mitted on stipulated facts.   The case thus comes on for decision.
Two questions are presented for determination, viz:
(1) Conceding the facts pleaded in the several counts of the information 
sufficient to charge defendant with the commission of one or more public offenses 
under the terms of the act, and the stipulated facts sufficient to clearly show 
the guilt of defendant, does the evidence found in the stipulated facts show 
defendant guilty of more than one offending against the law or amenable to 
more than a single punishment 
(2) It being admitted by the evidence the product offered for interstate ship- 
ment and so shipped by defendant was " confectionery," commonly called candy, 
and the charge made as the information pleaded being such product was adul- 
terated, in that it contained in whole or in part a " filthy, decomposed, and 
putrid vegetable substance," does the information, or either count thereof, 
sufficiently charge defendant with adulteration of " confectionery," in violation 
of the act 
As the case stands submitted on both the demurrer to the information and 
each count thereof, and on the stipulated facts, and as resort must be had to 
the facts of the case to get at the true nature of the transaction, I deem it the 
better practice to treat the demurrer as having been waived by the submission 
of the case on its merits, or at least to overrule the demurrer and consider 
the questions presented by a consideration of the case on its merits.
It appears, as was admitted at the trial, defendant company is a wholesale 
grocery company doing business in the city of Salina, this State. In the conduct 
of its said business it handles " confectionery." commonly called candy, in 
wholesale quantities. On or about the 1st day of February, 1915, in the con- 
duct of its said wholesale candy business, there had accumulated in the pos- 
session of defendant a very considerable quantity of old, stale, unsalable rem-
nants of eanly. The consignee* named, ia tike bills of lading-, A. Uamg, applied 
to and* purchased tMs candy froaai defendant, giving irastructiwas to ship the 
same to Mm at the eity of Denver, Col-?. What purpose the buyer had it* making 
the purchase or what use was intended by the purchaser to be made of the 
candy the evidence does not show. In pursuance of said shipping instructions, 
defendant delivered the candy in pails to the Union Pacific Railway Co., and 
did cause the same to be shipped to the purchaser at the city of Denver, Colo. 
That the purchase and sale thus made in bulk, or at wholesale, by defendant 
constituted but one transaction is appai'ent. While the railway company issued 
two freight bills covering the entire shipment, yet it is equally clear but a 
single shipment of the candy was made.
In such case may the Government carve out of the single transaction of sale, 
purchase, and shipment more than one offense under the terms of the act 
Looking now to the provisions of the act, it is seen to be its purpose, by sec- 
tion 1, to prohibit within territory under the jurisdiction of the United States 
the manufacture or misbranding of foods and drugs. By section 2 of the act 
to prohibit the shipment or offer for, shipment in interstate commerce of 
adulterated or misbranded food or drug products. Conceding, therefore, the 
candy complained of in this case was adulterated in violation of the act, yet, 
as there was but a single sale, purchase, and shipment of the adulterated 
product, as the entire matter charged grew out of a single transaction and a 
single shipment, it must follow the plaintiff can carve out of this single trans- 
action but a single offense. Although there were 250 pails of the candy shipped, 
yet here, as under the provisions of the 28-hour law, the shipment made or 
offered by defendant must be taken as the unit, although it may consist of many 
parcels. No greater reason appears for dividing the shipment in question under 
the Food and Drug Act, all being comprehended under the general term "con- 
fectionery," into different lots or parcels than would appear for making the 
many different head or cars of stock a senarate violation of the 28-hour law. 
(B. & W. Southwestern R. B. v. United States, 220 U. S., 94.)
Coming now to the remaining question, defendant contends although the 
adulterated product charged to have been shipped in interstate commerce is 
pleaded to have been a food product, as the evidence discloses it to have been 
" confectionery," commonly called candy, and as the act by its terms defines in 
what the adulteration of " confectionery" consists, namely, " if it contains 
terra alba, barytes, talc, chrome yellow, or other mineral substance or poison- 
ous color or flavor," and as the adulteration here charged is not by the use of 
a mineral but of a vegetable substance, therefore, applying the rule of ejusdem 
generis, the act does not by the addition of the phrase, " or other ingredient 
deleterious or detrimental to health," cover a case in which the substance, 
deleterious or detrimental to health ingredient, is of a vegetable and not a 
mineral substance.
From a careful reading of the act I can not give my assent to this construc- 
tion for this reason: Conceding candy to fall under the general classification 
of " confectionery "; further conceding Congress has by the terms of the act 
specified what constitutes an adulteration of " confectionery," all as by de- 
fendant contended, yet I am of the opinion the phrase, " or other ingredient 
deleterious or detrimental to health," is not limited by or restricted to the 
preceding phrase, " or other mineral substance or poisonous color or flavor." 
On the contrary, I am of the opinion it was the intent of the lawmaking power 
to provide that " confectionery " may be adulterated in violation of the terms 
of the act in three distinct and separate manners or ways: (1) By causing it 
to contain " terra alba, barytes, talc, chrome yellow, or other mineral sub- 
stance or poisonous color or flavor "; (2) by permitting it to contain or include 
any "other ingredient deleterious or detrimental to health"; or (3) by the 
use of " any vinous, malt, or spirituous liquor or compound or narcotic drug."
To my mind, this is the clear, unambiguous intent of the lawmaking power as 
gathered from the language employed in the act specifying the manners in 
which " confectionery " may be said to have been adulterated.
It follows from what has been said judgment must go for plaintiff for a 
single penalty for the violation of the act.
It is therefore ordered the plaintiff have and recover from the defendant a 
penalty of $20 and costs of this prosecution.
CAKL VKOOMAN, Acting Secretary of Agriculture.