24351. Joseph S. Morgan and Ivan C. Morgan (Morgan Packing Co.) v. Val 
Kolan. Injunction restraining enforcement against canned dry 
peas of regulations of the Secretary of Agriculture establishing 
standards for canned peas. Affirmed toy Circuit Court of Appeals 
(Nolan v. Morgan, et al).
On November 22, 1932, Joseph S. Morgan and Ivan G. Morgan copartners, 
trading as the Morgan Packing Co., Austin, Ind., filed a bill of complaint 
against George B. Jeffrey, United States attorney for the Southern District 
of Indiana, and Arthur M. Hyde, Secretary of Agriculture of the United States, 
petitioning that the defendants be permanently enjoined from enforcing, against 
canned peas prepared from mature dry peas, packed by plaintiffs, regulations 
of the Secretary of Agriculture promulgated under the Food and Drugs Act, 
as amended, establishing a standard for canned peas and the labeling of canned 
peas which failed to conform to such standard. On November 29, 1932, an 
amendment in the form of a second paragraph to the bill of complaint was 
filed. On December 17. 1932, the complaint was dismissed as to the Secretary 
of Agriculture for lack of of jurisdiction. On January 9, 1933, a motion to 
dismiss as to George R. Jeffery was overruled.
On January 12, 1933, the parties appeared by counsel, the cause was sub- 
mitted to the court for trial, evidence was heard and the complaint was taken 
under advisement by the court. Subsequent to the trial, George R. Jeffrey 
resigned as United States attorney and on April 7, 1933, Val Nolan who had 
succeeded to the office was, by consent and adoption, substituted as defendant.
On April 7, 1933, the court entered judgment that defendant be permanently 
enjoined from enforcing against plaintiffs or plaintiffs' products consisting 
of canned peas prepared from mature dry peas, the provisions of the regula- 
tions complained of. In entering judgment the court delivered the following 
opinion (Baltzell, District Judge) :
"The plaintiffs, Joseph S. Morgan and Ivan C. Morgan, comprise a copart- 
nership, and are engaged in the canning business with their principal place 
of business at Austin, Indiana. The partnership name under which they op- 
erate is the 'Morgan Packing Company.' They, however, have several can- 
ning factories, all within Indiana, aside from the one at Austin, each being 
operated under a separate and distinct trace name. The factory at Columbus 
is styled the ' Columbus Packing Company'; the one at Edinburg, the ' Edin- 
burg Canning Company'; the one at Brownstown, the Brownstown Canning 
Company'; and the one at Scottsburg, the ' Scottsburg Canning Company.'
" While plaintiffs can a variety of food products, yet one that is canned in 
large quantities and sold extensively throughout the United States is canned 
peas, prepared wholly from the matured pea, that is, ripened and matured 
upon the vine. Such peas are purchased by plaintiffs in large quantities from 
the growers, mostly from Washington, Idaho, and other western states. They 
purchase annually approximately twenty-five car loads of peas and have them 
shipped directly to their various factories in Indiana. Upon receipt of these 
peas at their respective factories, they are carefully inspected and the whole, 
sound ones are hand picked for the purpose of processing and canning.    Being
37673—30 1 
175
matured upon the vine, they are naturally hard and dry when received by 
the plaintiffs. By a process of soaking and heating in water at a certain, 
temperature, by the application of steam, and sometimes Jby the use of oven 
they are rendered tender and palatable. The only ingredients added are sugar 
and salt. No coloring or flavoring is added, but by the preparation process 
they are restored to their natural color and form. After being thus pre- 
pared they, together with the liquor formed thereon, are placed in hermetically 
sealed Kans. The cans and packages containing this product all bear labels- 
upon which is inscribed in plain language and in a conspicuous place that such 
product is prepared from dry peas.
" While plaintiffs have been continuously engaged in the canning of food- 
products for human consumption for more than a quarter of a century, they 
did not begin canning and selling dry peas until within the last four years. 
To illustrate the growth and extent of their business in this particular product^ 
they sold approximately twenty-five thousand cases of twenty-four cans each 
in the year 1929, while in the year 1932 their sales exceeded two hundred 
thousand cases of an approximate value of two hundred and fifty thousand 
dollars. With the exception of approximately five per cent of the output of 
this product, all is transported in interstate commerce.
" During the year 1931 certain regulations were promulgated by the Depart- 
ment of Agriculture concerning canned peaches, canned pears, and canned peas. 
However, no attempt was made to enforce these regulations in so far as 
plaintiffs are concerned. Revised regulations were promulgated by the- 
Department in the month of May 1932, in explanation of which it was stated: 
' It is the opinion of the Department that canned soaked dry peas belong to- 
the class " canned peas." Being mature, they are thus substandard and must 
bear the substandard legend.' The substandard legend to which reference is- 
made was 'Below U. S. Standard, Low Quality, But Not Illegal, Soaked Dry 
Peas.' The regulations provide that this legend must be placed upon the label 
of all canned food of substandard quality. Dry peas prepared and canned by 
the plaintiffs fall within the substandard class, according to the regulations- 
of the Department, and must contain such legend in accordance therewith. 
The plaintiffs have refused to comply with such regulations.
" The Department has instructed its inspectors to locate all of plaintiffs' 
interstate shipments of such product for the purpose of instituting libel pro- 
ceedings against the same because of plaintiffs' refusal to comply with the 
regulations pertaining to the labeling thereof. In fact, a great number of such 
shipments have been located and seized. Many libel proceedings are now pend- 
ing, but none, however, within the State of Indiana.
" Pursuant to Equity Rule 70%, Findings of Fact and Conclusions of Law are 
separately filed in this action.
" The bill of complaint seeks to enjoin the United States attorney from the 
enforcement of the above regulations against plaintiffs and their canned food 
products, consisting of canned peas prepared from dry matured peas. The bill, 
as to Arthur M. Hyde, as Secretary of Agriculture of the United States, was- 
dismissed upon his motion, he claiming the privilege of venue.
" It is the contention of the plaintiffs that the regulations in question are 
invalid; first, because the provisions of such regulations are unreasonable,, 
arbitrary, and unauthorized under the provisions of the Mary-Mapes Amend- 
ment, pursuant to which the same were promulgated; also, that the law, as- 
amended, and applied, is invalid because it violates the fifth amendment of 
the Constitution of the United States in that it takes plaintiffs' property without 
due process and without just compensation. Second, plaintiffs contend that 
the Food and Drugs Act, as amended, is itself unconstitutional. They contend! 
that such law violates not only the fifth amendment of the Constitution of the 
United States, but that it violates the Sixth Amendment of such Constitution 
in that no standard of guilt or liability to seizure is set up in the amendment 
that is ascertainable from the amendment itself, but that guilt or liability 
to seizure is made dependable upon 'reasonable' standards which may be- 
established by the .Secretary of Agriculture.
" In the consideration of this case, if the court should arrive at the conclu- 
sion that the regulations in question are unreasonable and inconsistent with the 
act itself, it will then not be necessary to consider the constitutionality of such 
act. In order that such regulations may be valid, they must be reasonable and 
consistent with the law under which they are promulgated. International R. 
Co. v. Davidson, 257 U. S. 506; 66 LE 341; 42 SC 179. Waite v. Macv, 246 
U. S. 606; 62 LE 892; 38 SC 395.
" The Food and Drugs Act provides for the branding or labeling of food 
products and defines the instances in which food shall be deemed misbranded 
(Title 21, Sec. 10, USCA). Prior to the amendment of this act in 1930, no 
authority was delegated to the Secretary of Agriculture to promulgate regula- 
tions for the standards of canned food products. Authority is given by such 
amendment to formulate such regulations. However, such regulations must be 
reasonable and consistent with the law which authorizes them. The first 
question, therefore, to be determined is whether or not the regulations which 
require plaintiffs to place upon the label attached to each can which is filled 
with processed dry peas, the legend ' Below U. S. Standard, Low Quality, But 
Not Illegal, Soaked Dry Peas' are unreasonable and inconsistent with the law. 
If such regulations are unreasonable and inconsistent with the law, they are 
illegal, and cannot be enforced.
" It is conceded by the defendant that mature dry peas as processed by the 
plaintiffs, constitute a wholesome, pure food. There is no contention that such 
peas are not properly prepared and canned by plaintiffs. The contention of 
the defendant is, however, that peas thus prepared are substandard and must 
be labeled as such. It is clear that the purpose of the Food and Drugs Act is 
to guard against adulterated and misbranded food products. It is also clear 
that it was the intention of Congress to protect the purchasing public from 
being imposed upon, and to inform it of the quality of goods being purchased. 
In construing this law, the Supreme Court of the United States said in the case 
of United States v. Antikamnia Chemical Co., 231 U. S. 654; 58 LE 419; 34 SC 
222, ' The purpose of this act is to secure the purity of food and drugs and to 
inform purchasers of what they are buying.' Thus it is the purpose of that 
part of the amended act, which prohibits misbranding, ' to inform purchasers of 
what they are buying', there being no contention that such food is impure. 
The question, therefore, naturally arises as to whether or not a purchaser 
can be misled in the purchase of ' canned peas' if the label contains the 
statement that the contents are prepared from dry peas, as inscribed upon 
the label of the product sold by plaintiffs. It is inconceivable that a purchaser 
could be misled when the label contains such clear language.
"The authority given the Secretary of Agriculture, under the law, is 'to 
determine, establish and promulgate, from time to time, a reasonable standard 
of quality and condition and fill of container for each class of canned food as 
will, in his judgment, promote honesty and fair dealing in the interest of the 
consumer.' It is again demonstrated that the intention is to protect the con- 
sumer. The regulations in question limit the standard canned peas to those 
which are canned in their tender, immature state. Such a standard is not a 
reasonable one for the class of canned peas prepared from dry peas, such 
as plaintiffs' product.
" It is apparent that the insertion of the legend required by the regulations, 
upon the label of dry canned peas will do an irreparable injury to plaintiffs 
in the sale of such products, for which they have no adequate remedy at law. 
It will immediately arouse the suspicion of the consumer whose welfare the law 
is intended to protect. The rapid increase in the amount of dry peas placed 
upon the market by plaintiffs within the past few years is ample proof of the 
demand for that particular product by the consumer. To require plaintiffs 
to comply with such regulations will not only seriously damage their business, 
but will deprive the consumer of the product which he desires, and to which 
he is entitled.
" The regulations in question, requiring such labeling of plaintiffs' food 
products, are unreasonable and inconsistent with the law under which they 
were promulgated, and are, therefore, invalid. International By. Co. v. 
Davidson, supra.
"The defendant has asserted that he intends to enforce the regulations 
against these plaintiffs, and it is apparent that the enforcement thereof will 
do irreparable damage to them. They have no adequate remedy at law, and 
are entitled to an injunction permanently enjoining the defendant from the 
enforcement of such regulations. Waite v. Macy, supra. International R. 
Co. v. Davidson, supra. American School of Magnetic Healing v. penalty, 
187 U. S. 94; 47 LE 90; 23 SC 33. Philadelphia Co. v. Stimson, Secy. War, 
223 U. S. 605; 56 LE 570; 32 SC 340. Work, Secy. Interior v. Louisiana, 269 
U. S. 250; 70 LE 258; 46 SC 92.
" In view of the conclusions reached by the court, it is not necessary to de- 
termine the question of whether or not the Food and Drugs Act, as amended, 
is constitutional.
"A decree will be prepared accordingly.
•^Exception and notice of appeal were filed by the defendant and on July 3, 
198S, petition for appeal to the Circuit Court of Appeals for the Seventh Circuit ' 
was granted.   On March 14, 1934, the circuit court of appeals handed down the 
following opinion  affirming  the judgment  of the  district  court   (Alschuler, 
circuit judge):
"Appellees sued to enjoin appellant, as United States attorney, from enforc- 
ing against them certain regulations of the Secretary of Agriculture pro- 
mulgated under supposed authority of the Mary-Mapes amendment of July 
8, 1930, to section 8 of the United States Food and Drugs Act of June 30, 
1906. The appeal is from a decree awarding appellees a permanent injunction 
as prayed.
"Appellees had been for some years in the business of processing, canning, 
and marketing dry, ripe peas, which were first soaked in hot water to 
soften them and to swell them to their original shape and color, and this 
process being followed by further steps. Under the regulations of the De- 
partment of Agriculture formerly in force containers of the product designed 
to move in interstate or foreign commerce were required to be plainly labeled 
"with the words 'Prepared From Dry Peas.'
*'After the adoption of the Meat-Mapes amendment, the Secretary of 
Agriculture promulgated regulations for standardizing and labeling canned 
peas, requiring the cans containing appellees' product designed for interstate 
or foreign commerce to bear in conspicuous lettering the legend ' Below U. S. 
Standard. Low Quality But Not Illegal. Soaked Dry Peas.' Appellees 
were duly notified to so ship 'no such product unless so labeled. Declining 
to comply, they were threatened with prosecution and confiscation of the 
product undertaken to be so shipped.
" There is no contention that dry peas are of themselves to any degree 
deleterious or unfit for human food, nor that appellees' process for canning 
them causes the slightest impairment of the product. It is likewise apparent 
that such labeling of the container would in a short time practically destroy 
the industry of canning dry peas designed for interstate or foreign commerce. 
This is not only apparent, but has been practically the result when this label 
was placed upon the Kans. The evidence shows that it is so well recognized ,• 
in the trade that such a label would destroy trade in the product, that the 
label is generally known in the trade as ' crepe label.'
" The production and distribution of canned dry or ripe peas is an industry 
not less lawful or commendable than the production and distribution of the 
immature peas, which the regulations prescribe as the standard for canned 
peas. The canning of ripe peas is not like the other, a seasonal industry. 
The peas when dry through ripening are gathered, and will keep indefinitely 
in that state before canning: whereas the immature peas must be gathered 
and processed at once when they reach the suitable stage of maturity, after 
which delay of even a very few days will overdevelop them and render them 
unfit for the prescribed standard.
" The regulations specify certain tests to be applied to give assurance that 
the immature peas have not passed beyond the degree of ripeness essential 
to constitute them ' standard canned peas.'
" When the peas become hard and dry through the natural process of ripen- 
ing they cannot, of course, comply with the standard thus fixed for canned 
peas. Processing restores their fullness and color, and renders them soft and 
edible. But they are a product essentially different from that of the canned 
unripe peas which are made the standard. Different processes are necessary. 
The long soaking in hot water, cooling, and reheating of the dry peas would 
disintegrate and ruin the immature variety. The properties of the two prod- 
ucts are very different. In the mature peas there is more of starch and 
less of sugar than in the immature peas, and the mature have more of 
nutriment and food value than the immature. There is, of course, a difference 
in the taste, most persons probably preferring the immature peas, although, 
as was testified, this is a matter of the taste of the individual.
"The canned dry peas sell in the market for considerably less than the im- 
mature product, which may be accounted for by the more general preference 
for the taste and consistency of the immature product, as well as the fact that 
the dry peas may be kept indefinitely and readily shipped long distances to 
canneries and may be canned at leisure, while the immature peas must be 
processed without delay and in canneries conveniently located with reference to ( 
the place where the peas are grown.
"All this indicates that, notwithstanding the same vines produce the immature 
and the full ripened peas, for the purposes of canning the two are products as
essentially different as if taken from radically different plants, and were known 
by different names. As articles of commerce we think they must be regarded 
as in separate classes, each having its own properties and peculiarities. There 
are doubtless good, bad, and indifferent grades of dry peas as well as of im- 
mature peas; and to say that canned ripe peas are an inferior grade of canned 
immature peas is, in our judgment, at once illogical, unreasonable, and unfair.
" To be sure, a customer desiring the immature canned peas should not nave 
the dry peas imposed upon him, and vice versa. The object of such legislation 
and the regulations thereunder is to guard against deception of the public. 
Statutes and regulations adopted for that end are salutary and should be 
supported^ The right of Congress to adopt such legislation for regulating inter- 
state and foreign commerce, and to empower the making of suitable and reason- 
able regulations thereunder, must generally be conceded.
" But in view of what has been said we cannot regard as ' reasonable' the 
regulation which fixes immature, unripe peas as the standard for canned peas 
generally, requiring the dry peas product to be labeled in a manner which 
would convey to the public the impression that it is a degraded and inferior 
article of food, which in fact it is not
"Appellees' product might well be—as the evidence shows it is—a most excel- 
lent quality of the canned ripe peas variety and of high food value, and yet, 
under the- regulation, be required to bear the legend 'Low Quality.' In our 
judgment the very statement of the proposition carries condemnation of the 
regulation which requires appellees to so brand their product
" We do not think that the statute contemplates, with respect to this product 
that either immature peas or the dry peas shall be the generic product whereby 
the other is to be graded. If canned peas are to be considered the generic product 
there should be a subclassiflcation as" to the immature and the dry products, 
each of which, if of good quality, is a standard food product and neither a 
subordinate nor an inferior of the other.
" The Mary-Mapes amendment is not directed toward Adulteration of foods, 
but solely to their misbranding. Its purpose is commendable, but if unrea- 
sonably applied may work hardship and injustice wholly beyond its intended 
and lawful scope. As stated in the amendment itself, the regulations to be 
made under it should ' promote honesty and fair dealing in the interest of the 
consumer, and the Secretary of Agriculture is authorized, from time to time, 
to make modifications therein ' as in his judgment, honesty and fair dealing in 
the interest of the consumer may require.' It cannot be in the interest of the 
consumer to drive from the market this useful and cheaper product through 
branding it so the public will not buy it. If the immature peas have an advan- 
tage in flavor or size or color which may give them corresponding advantage in 
securing a better price, it affords no reason for striking down the other and 
cheaper product The amendment does not concern itself with competition 
between products, but only with so describing products that the public may not 
be readily deceived by substitution of products.
" In our view the entire legend with which it was demanded appellees should" 
label their product is unwarranted and unreasonable. ' Below "D. S. Standard f 
should not be required, because the fixing of the one article as the standard 
is arbitrary and unreasonable to the same degree as if it had been required 
that the canned dry peas be the standard and the immature peas a descent 
therefrom. ' Low Quality' is of course a statement of what is not a fact, since 
the evidence all indicates that the product in question is not of low quality, 
unless indeed, as it not here contended, a low quality of ripe peas or a dele- 
terious method is employed in the product. The words 'Not Illegal' are not 
enlightening. If the product were illegal it could not lawfully enter into for- 
eign or interstate commerce as human food. The words serve only to ' damn 
with faint praise' any product whereon they appear. ' Soaked Dry Peas' 
is a less objectionable but at the same time an unreasonable requirement as 
a brand. A fair inference therefrom is that the dry peas are simply soaked 
and then canned. The soaking is only a part of the process, and if the pur- 
pose of the regulation is not to condemn a meritorious article, these words 
carry an imputation respecting a proper food which tends in no degree to 
protect the consumer, who needs no protection beyond that afforded by infor- 
mation which will reasonably apprise him of what he is buying.
" It is not our function to prescribe a legend to be placed on appellees' con- 
tainers in order to advise the public that the article in question is produced 
from ripe or dry peas and not from immature peas. Under a prior regulation 
oL the. Secretary of Agriculture appellees had long placed on their containers, 
in bold face type, and have continued so to do, the statement x Prepared From
Dry Peas.' To those who pay attention to labels a statement of this nature 
would clearly indicate that the product was not that of immature, succulent 
peas, which the Secretary assumed to fix as the standard of excellence for all 
canned peas. Clearly this or some suitable equivalent would adequately pro- 
tect the public, so far as any label can, against unwarrantable substitution of 
this product for that of immature peas.
" Concluding as we do that the regulation complained of, as applied to 
appellees' product, is unreasonable and unauthorized by the statute, we agree 
with the District Court, which reached the same conclusion, that there is no 
need to consider the question of constitutionality of the amendment. We refer 
with approval to Judge Bultzell's opinion in the District Court, 3 Fed. Sup. 
143, particularly to his citation and discussion of authorities and his consider- 
ation of some other propositions whereon we have not commented.
"The decree is affirmed."
M. L. WILSON, Acting Secretary of Agriculture.