St. Louis Independent Packing Co. v. Houston

AMIDON, District Judge

(dissenting). This case has followed an unusual course, and has led to unfortunate results. When it was here on appeal from the order denying the preliminary injunction, this court, without any judicial investigation of the facts, decided that the name “sausage” could be deprived of its false and deceptive character, when applied to plaintiff’s product, by the use’of qualifying words, and ordered the temporary injunction to issue. The case then went back to be tried in the lower court upon the merits, but this court had already precluded such an investigation. Our decision was held to be binding upon the trial court that the name was not false and deceptive, and that court was shut up to an investigation of whether plaintiff’s product was unwholesome. The result is that the question whether the name is false and deceptive, as used in the channels of trade, is finally decided by this court against the decision of the Department solely on bill and answer, and without any investigation of the question. Fortunately, if this case shall be taken to a higher court for review, our decision on the appeal from the order denying a temporary injunction will be open for re-examination. I shall therefore take occasion now to express my own views upon both branches of the case.

Speaking first to the question of unwholesomeness, the trial court has found as the result of the evidence adduced at the trial that plaintiff’s product is unwholesome, and this is in accord with the findings of the department. I think those findings are binding upon this court,, and should not be disturbed, and upon that ground the decree should be affirmed.

The case for the government, however, is much stronger upon the ground that the use of the name “sausage,” either singly or in connection with other words, when applied to plaintiff’s product, is false and deceptive, and I shall now state my views on that subject.

“No meat or meat food products stall be sold or offered for sale by any person, firm or corporation in interstate or foreign commerce under any false or deceptive name. But established trade name or names which are usual to such products, and which are not false or deceptive, and which shall be approved by the Secretary of Agriculture are permitted.”

This is the provision of the Meat Inspection Law upon which this case turns. It does not help toi a proper decision to emphasize the part of the law which deals with unwholesome meat as a reason for minimizing the provision which I have quoted. By a later section of the statute the Secretary of Agriculture is given full power to make rules and regulations necessary toi carry all provisions of the law into effect.

The difference of view, between myself and the majority of the court may be stated in a few words. They believe that the Secretary *347of Agriculture, in preventing the use of false and deceptive names, is confined to inventing qualifying words which in their judgment will be sufficient to prevent the names being false and deceptive. That it seems to me, is only a part of his power, and to confine him thus to the dictionary is to take away other and more practical powers which the law confers. It is said l>y the majority that the law does not give the Secretary power to fix the standards for meat products. That, it seems fio me, is sticking in mere forms of words. It may be that the Secretary’s rules could have been expressed in better phraseology. His letter, however, by which the rules were promulgated, makes clear their purpose. There it is declared that they are enacted “for the purpose of preventing the use in interstate or foreign commerce of meat or meat food products under any false or deceptive name.” In the light of this purpose the rules must be interpreted as if they read:

“The name ‘sausage’ shall not be used upon any package containing a meat food product if the product contains cereal in excess of 2 per cent, or added ice or water in excess of 3 per cent.,” etc.

Thus interpreted the rules come within the authority of the Secretary of Agriculture to make rules and regulations for the purpose of carrying into effect that provision of the statute which forbids the use of false and deceptive names upon meat food products.

One of the most effective ways of preventing names being false and deceptive is to fix the standard of articles to which those names may be applied. The law not only authorizes the Secretary of Agriculture to compel the use of qualifying words when that method will prove effective, but it likewise empowers him to say that a trade term like “sausage,” which will be understood by the general public to include certain elements in the article, shall not be used if the article does not possess those elements. That is a practical way of preventing the use of the name for false and deceptive purposes. The record in this case shows that the Secretary of Agriculture has tried for years to deal with the subject by the use of qualifying words which indicate that other elements like cereal or potato have been added, and we ought to conclude, from the fact that he has abandoned that method, that he has found as the result of the actual experiences of commerce that it is ineffective, and that the word “sausage,” even with such qualifiers, still continues to be false and deceptive to the public. As the result of that experience he has changed his method of attack. My Brethren seem almost to assume that an equitable estoppel in pais ought to be applied to his adopting these new measures because of his unsuccessful experiences in using modifying terms. Such a view deprives that officer of the right to profit by experience.

Names and things are but the reverse sides of a single shield. One of the ways to prevent names being deceptive it to prescribe the qualities of articles to which they may he properly applied. That is one of the large features of the Pure Food and Drug Act (Act June 30, 1906, c. 3915, 34 Stat. 768 [Comp. St. 1916, §§ 8717-8728]). Those who deceive by the use of trade-names understand this well. Their whole art consists in taking from an article having a familiar name some of the qualities which its name implies, and then continuing to apply the *348name to the changed article. Plaintiff admits that this is precisely what it is doing. It tells us that sausage was until quite recently made from lean meat. The poorer qualities of sausage are now made from ears, snouts, livers, and other parts of the animal that were formerly waste. These cheaper parts, however, are deficient in fiber, necessary to give the sausage proper consistency. To meet this difficulty something else must be used as a binder. Cornmeal and water supply that need; so the plaintiff adopts them. That all sounds like progress in the industry and the saving of waste. We must not, however, allow it to deceive us. What has really been done is, not only to substitute a poorer quality of food for a better, but to substitute cornmeal and water in place of meat. To apply the old name to this changed article is to make it false and deceptive. In the actual experiences of the meat trade, the addition of modifying words may be wholly ineffective to prevent the deception. My Brethren say, however, that that is the only remedy which the law permits. In my judgment, the statute clearly submits the whole subject to the Secretary, and the able corps of scientific men associated with him, to adopt whatever measure seems wise as the result of their studying the actual facts of the meat trade. It is an unwarranted use of judicial power for a court sitting in a law library to substitute its judgment for that which the law commits wholly to these administrative officers.

There is no just ground for holding that the regulations of the Secretary, or his refusal stamp plaintiff’s products as inspected and passed, are arbitrary, (a) The standard fixed by the regulations is in accord not only with the legislative action of tíre state of Pennsylvania, but with the scientific investigations of the best students on the subject, particularly the investigation of the Association of German Food Chemists at their tenth general meeting held at Dresden in May, 1911, and numerous other associations of food experts referred to in the briefs for the government, (b) The government inspectors have not refused to mark plaintiff’s products, if sound and wholesome, “Inspected and Passed,” if they are put up under some name of which the word “sauságe” is not the distinctive feature, but base their refusal upon the ground that plaintiff insists upon the right to use the term “sausage,” either singly or in composition, and that to permit it to do this would be to approve a false and deceptive name.

The majority opinion really comes to this: Appellant may make any combination of meat, cereals, and water which it sees fit, and affix the name “sausage” to the product, and the power of the Secretary of Agriculture is confined to inventing qualifying words or phrases to prevent this product from being false and deceptive. That I cannot regard as a sound interpretation of the statute. It clothes the department with power to prohibit the use of a name in connection with a product when the product is of such a character as to make the name false and deceptive. In the exercise of that power the Secretary may forbid the use of the name at all in connection with the compound, if in the good-faith exercise of his judgment he is of the opinion that the name, when thus used, is false and deceptive. It may well occur that no qualifying phrase which can be invented will take away the false and deceptive quality of the name in the channels of trade.

*349The dictionaries all tell us that sausage means a compound of meat, sage, and spices, and I agree with the trial court, and the Supreme Court of Michigan (Armour & Co. v. Bird, 159 Mich. 1, 123 N. W. 580, 25 L. R. A. [N. S.] 616), that this is what it means to the general public. Standard authorities say that 10 per cent, of cereal will absorb 30 per cent, of water. So, if appellant may exercise the right which it claims in its bill, the purchaser who thinks he is getting a meat product will be getting 40 per cent, of cornmeal and water Considering the present high prices of meat, that is probably as clear a fraud as any transaction that has been condemned under the Pure Pood and Drugs Act.

I cannot accept the view that the mark “Inspected and Passed” has no Jung to cío with the name, but means only that the meat product is wholesome and free from dyes and other forbidden ingredients. The section here involved has to do with food products placed or packed in cans or other receptacles. As do these the statute provides that the inspection is not complete until the package is labeled and sealed, or closed under the supervision of an inspector, and as a part of the same sentence it is provided that the meat products thus put up shall not be sold under a false or deceptive name. By the department rules the essential features of the label are: (1) The true name of the product; (2) the inspection legend; (3) the establishment number. From these provisions I think the words “Inspected and Passed,” when placed upon the label of which the name is a part, fairly mean, and will be understood by the purchaser of the package to mean, not only that the food product is -wholesome and fit for food, but that the name is not false or deceptive when applied to the contents of the package. Under the statute it is as much the duty of the Secretary of Agriculture to protect the public against fraud by a deceptive name as against poison by an unwholesome article, and when a package with a name upon it is stamped “Inspected and Passed,” I can find no reason why the Secretary should not see to it that the article is true to the name as well as wholesome. Congress goes so far as to say that established tradegnames may not be used if they are deceptive, and requires even such names to be approved by the Secretary of Agriculture. This, in my judgment, commits to that officer the determination, not only what name shall be used, but what thing shall be entitled to use established trade-names.

There is another independent ground for the affirmance of the decree. It is manifest upon the record that plaintiff’s cereal and water sausage is a cheat upon the poor to whom it is mainly sold. Such ancient maxims as “he that doeth iniquity shall not have equity” forbid the granting to it of any relief. Our decision, however, awards the extraordinary writ of mandatory injunction commanding officers to stamp what they have found to be a fraud “Inspected and Passed,” thus compelling them to aid and abet the fraud which they were appointed to prevent.

In my judgment the decree dismissing the bill was clearly right and should be affirmed.