15801. Action to enjoin and restrain the introduction into interstate commerce 
and the manufacture in the District of Columbia of adulterated bakery 
products. U. S. y. Samuel Rubenstein (New York K. & R. Bakery). 
Temporary injunction granted; affirmed on appeal to United States 
Court of Appeals. Injunction subsequently dissolved on consent of 
parties.    (In. No. 67.)
against Samuel Rubenstein, trading as the New York K. & R. Bakery, Wash- 
ington, D. C. The complaint charged that the defendant had been and was 
at the time of filing the complaint, introducing or delivering into interstate 
commerce and within the District of Columbia, bakery products that were 
adulterated, and was also manufacturing, in the District of Columbia, bakery 
products that were adulterated.
NATURE OF CHARGE: The complaint alleged further that on April 19, May 15, 
and July 12, 1944, inspections of the premises disclosed that the flour stored 
therein was infested with adult weevils and showed evidence of rodent de- 
predation ; that the raw materials used in the manufacture of the bakery 
products were weevil-infested; that the manufacturing equipment was con- 
taminated with flies feeding on liquid eggs and uncooked dough; that exam- 
ination of materials used in the manufacture of the bakery products disclosed 
external contamination by grain beetles, silverfish, moths, and roaches; that 
rodent excreta, pellets, and gnawed pieces of bread were accumulated with 
other miscellaneous debris on the premises; and that numerous other objec- 
tionable conditions existed in the plant.
Samples of bakery products purchased from the defendant's establishment 
were found to contain rodent hair fragments, larvae head capsules, storage 
insect fragments, and mites.
PEAYEB OF COMPLAINT. That the defendant and his employees be enjoined from 
introducing or delivering for introduction into interstate commerce and from 
manufacturing within the District of Columbia any food that is adulterated.
DISPOSITION : On November 29, 1944, the defendant having filed a motion to 
dismiss the injunction, a hearing was held on that motion and on the Govern- 
ment's motion for a preliminary injunction. Subsequently the court overruled 
the defendant's motion and granted the Government's motion for a preliminary 
injunction. On January 31, 1945, the defendant filed a notice of appeal to 
the United States Court of Appeals for the District of Columbia.
On June 11, 1945, a motion having been filed by the Government to hold 
the defendant in contempt for violation of the preliminary injunction, and the 
defendant having filed a motion to suspend the restraining order pending ter- 
mination of appeal, the court denied the defendant's motion and found the 
defendant in contempt. On August 1,1945, however, on consent of the parties, 
the matter was reopened and the motion to hold the defendant in contempt 
was denied.
On January 14,1946, the United States Court of Appeals for the District of 
Columbia affirmed the decree of injunction, handing down the following 
opinion:
EDGEETON, Associate Justice: "This appeal is from a decree which restrains 
appellant, a Washington baker, from manufacturing or introducing into com-
merce in the District of Columbia 'any food that consists in whole or in part of 
filthy or putrid substances or has been prepared, packed, or held under insani- 
tary conditions whereby it may have become contaminated with filth.' The 
court found that appellant had been doing these things. Appellant does not 
question the findings. His contention is that because his business is a local 
one, carried on entirely within the District of Columbia, the Federal Food, 
Drug, and Cosmetic Act1 under which action was brought by the United States 
does not apply.
"Section 331 of the Federal Act prohibits '(a) the introduction . . . into 
interstate commerce of any food . . . that is adulterated . .- . (g) 
The manufacture within any Territory of any food . . . that is adulter- 
ated . . .' Section 321 defines 'Territory' as 'including the District of 
Columbia' and defines 'interstate commerce' as '(1) commerce between any 
State or Territory and any place outside thereof, and (2) commerce within 
the District of Columbia or within any other Territory . . .' Section 342 
provides that food shall be deemed 'adulterated . . . (3) if it consists in 
whole or in part of any filthy, putrid, or decomposed substance, or if it is 
otherwise unfit for food; or (4) if it has been prepared, packed, or held under 
insanitary conditions whereby it may have become contaminated with filth, 
or whereby it may have been rendered injurious to health.' With exceptions 
not material here, section 332 gives the district courts jurisdiction to restrain 
violations of section 331.
"On their face the quoted provisions of the Federal Act support the decree 
appealed from. Appellant's attack upon the decree rests on the premise that 
these provisions of the Federal Act 'parallel in substantially every respect the 
local laws and regulations upon this subject of adulterated foods.' From this 
premise appellant derives the conclusion that the Federal Act, despite its plain 
language, is not applicable to local business in the District of Columbia.
"We find that both appellant's premise and his conclusion are incorrect.
"Chapter 1 of Title 33 of the District of Columbia Code forbids sale or de- 
livery, or possession for sale, of 'any article of food or drug which is adulterated 
within the meaning of this chapter.'2 It does not expressly cover manufacture. 
It covers only specified kinds of food. These include bread, but do not appear 
to include the other bakery products to which the Federal Act, the evidence 
against appellant, and the injunction relate. This local act defines bread as 
'adulterated ... if there is any addition of alum, sulphate of copper, 
borax, or sulphate of zinc, or other poisonous or harmful ingredient, and if 
it contains more than thirty-one per centum of moisture, more than two per 
centum of ash, and less than six and twenty-five one-hundredths per centum 
of albuminoids.'3 This language appears to be aimed at deliberate adulteration 
rather than carelessness and filth. This is made clearer by a proviso that no 
offense is committed if the purchaser's 'order calls for an article ... in- 
ferior to such standard, or where such difference is made known by being 
plainly written or printed on the package.' No one contends that appellant 
deliberately inserted in his goods the filth and rodents which they were proved 
to contain. Moreover the ingredients named in the local act are vastly different 
from the filthy and putrid substances named in the Federal Act.
"The local act of December 16, 1941, 'To prevent the sale of unwholesome 
food in the District of Columbia',4 forbids sale of any food which is 'unwhole- 
some or unfit for use.'   It does not, as the Federal Act and the injunction do, 
cover manufacture as well as sale.   It does not, as they do, cover food which is 
? 'adulterated' without being 'unwholesome or unfit for use.'
"It is not clear that these local acts prohibit, as the Federal Act does, all of 
the misconduct which appellant has committed and which the injunction for- 
bids. Moreover these local acts do not specifically provide, as th*e Federal Act 
does, for restraint of such misconduct by injunction. The remedies provided 
by the local acts are condemnation of unwholesome food, criminal prosecution, 
and revocation of licenses.5   Revocation of a license is a drastic remedy which
i June 25, 1938 ; 52 Stat. 1040, U. S. C. title 21 §§ 301-392.
2 D. C. Code. 1940, § 33-101; 30 Stat. 246.
» § 33-103 (b) ninth.
* D. C. Code, 1940, Supp. IV §§ 22-3416 to 22-3422 ; 55 Stat. 807.
5 Bakeries are licensed under the General License Law of the District of Columbia. 
D. C. Code, 1940, §§47-2301, 47-2327; 47 Stat. 550, 554. This law authorizes the 
Commissioners to revoke licenses in the interest of health, and provides for criminal 
prosecutions.    Code, ?? 47-2345, 47-2346; 47 Stat. 563.
prevents proper operations as effectually as improper ones. Criminal convic- 
tions for commercial carelessness are rare, and the maximum penalty on 
conviction under the local acts is a fine of $300 or imprisonment for 90 days.8 
An injunction is a relatively simple matter and carries with it a prospect of 
contempt proceedings if the forbidden acts are continued.
"We conclude that the provisions of the Federal Act which are involved in 
this case are not closely paralleled by local law. But even if they were, it 
would not follow that the local law would supersede the federal instead of 
supplementing it.T When a subject is covered both by a general law which does 
not mention the District of Columbia and by a local law which provides 
expressly for the District, a question may arise as to whether Congress did or 
did not have the District in mind in enacting the general law.8 But when a 
general law expressly mentions the District, as the Federal Food, Drug, and 
Cosmetic Act does, it can hardly be contended that Congress did not have the 
District in mind when it passed the law.9 Congress has 'followed its usual 
policy of extending legislation based on the commerce power to the same sub- 
stantive acts taking place wholly within the District.'10 And in order to 
preclude any possibility that the local act of 1941, 'To prevent the sale of 
unwholesome food in the District of Columbia,' might be interpreted as exclu- 
sive, Congress expressly provided that the local Act 'shall in no respect be 
considered as a repeal of any of the provisions of the Federal Food, Drug, and 
Cosmetic act, but shall be construed as supplemental thereto.'u Congress 
could hardly have expressed more clearly its continuing intention that all 
provisions of the Federal Act should be enforced, in accordance with their terms, 
in the District of Columbia. The Commissioners of the District, as amid curiae 
in the present proceeding, express the opinion that the public will be best 
protected by the combined efforts of the federal and the District food inspection 
services.    Congress appears to have taken the same view."
"A-fflrmed."
Subsequent inspections having indicated that the defendant was operating 
in compliance with the law, a precipe signed by the parties was filed on Novem- 
ber 19,1947, agreeing to the dissolution of the injunction.