(dissenting). I take the facts from the testimony of Mr. Blanton, president of the plaintiff company, below. They are uncontroverted. When the name “Creamo” was selected, plaintiff was using 30 per cent, of cream in its product. The name was chosen to indicate to the consumer and to the trade that cream was used in producing plaintiff’s oleomargarine. The fact is that plaintiff sometimes uses cream, sometimes it uses no cream, and sometimes it uses skim milk. Whatever the practice, the product is all sold under the name “Creamo Oleomargarine.” At the same time that the name here involved was chosen, plaintiff had another brand of oleomargarine, which it marked “Fulcreme,” and another one “Extra-creme.” These were used continuously until they were withdrawn in 1912, by order of the Department. Plaintiff’s letter head, used generally in its business, states with a conspicuousness which cannot easily be reproduced that the Blanton Company are “churners of Creamo, the only full cream Butterine.” These are a few of the conspicuous features of tire evidence, showing that plaintiff has habitually represented that cream is used in its product. It is also plain that to induce that belief is a decided trade advantage. It is conceded by plaintiff that the representation is false. The name “Creamo” was chosen as a part of this deception. Mr. Blanton-himself testifies with emphasis that the name was chosen to convince the consumer and the trade that cream was an important element in the production of his company’s product. As that product is conceded sometimes to contain no cream, and sometimes to be made by the use of skim milk, the name is false and deceptive. The proof is further emphasized by the fact that plaintiff, in its negotiations with the Department, refused *509to add to its label the statement, “contains no cream,” or a statement of the percentage of cream used. It is stated that the word “Creamo” is a fancy word, and will be so understood. That, it seems to me, is to indulge in one of the simplest of logical fallacies. Like most words in the language, cream has a figurative and a literal meaning. It may signify excellence of quality, or it may mean the part of milk that comes to the surface. When the term is applied to a cigar or a breakfast food, it is plain enough that it is used in its figurative sense. It will not cause anybody to believe that cream is used in making the cigar or the cereal. How stands the matter in the case of oleomargarine? It has been one of the trade frauds, from the time that article was invented, to palm it off as a dairy product. The states and the national government have been engaged for more than a generation in trying to defeat that trade deception. To create the belief that cream is used in the production of oleomargarine has been a part of the fraud. Mr. Blanton is a “practical” man. He probably knew what he was doing when he selected the word “Creamo.” He says he chose it to make the consumer and the trade believe that cream was used in the production of his article. To say that the term “cream” will not deceive when it is applied to oleomargarine, because it does not deceive when applied to a cigar, seems too manifest a fallacy to require answer. As a matter of fact, therefore, I do not see how a plainer demonstration could be made that a trade-name is false and deceptive than has been made in this case.
I hesitate, however, to go into this subject, for in my judgment it is committed exclusively to the Secretary of Agriculture by the statute which is quoted in the majority opinion. I am at a loss to harmonize the opinion in this case and that rendered in the recent case of St. Louis Independent Packing Co. v. Houston, with the uniform practice of this court and of the Supreme Court, in holding that decisions of the Postmaster General and the Secretary of the Interior on questions of fact are conclusive. Acting upon that principle, the decisions of the Land Department, and of the Post Office, determining questions of fact in the disposition of the public lands, and in passing upon what forms of business are fraudulent so as to subject them to a fraud order, we have uniformly held that the decisions of those departments are binding upon the courts, and have refused to enter upon any review of their decisions, although the gravest interests were involved, and the most serious charges of mistake and sometimes of fraud were made. The general rule was stated by the Supreme Court, upon a full review of the authorities, in Bates & Guild Co. v. Payne, 194 U. S. 106, 109, 24 Sup. Ct. 595, 597 (48 L. Ed. 894) as follows:
“The rule upon this subject may be summarized as follows: That where the decision of questions of fact is committed by Congress to the judgment and discretion of the head of a department, his decision thereon is conclusive, and that even upon mixed questions of law and fact, or of law alone, his action will carry with it a strong presumption of its correctness, and the courts will not ordinarily review* it, although they may have the power, and will occasionally exorcise the right of so doing.”
The doctrine of this court and the Supreme Court on this subject is so axiomatic as to make the citation of authorities unnecessary. Why should not the same rule be applied to the Secretary of Agricul*510ture while enforcing/the Meat Products Act? The jurisdiction is the same. The law in plain terms commits to that officer to determine when a trade-name is false and deceptive; and yet in this case, and in the other case to which I have referred, this court exercises a power to review his decision which would hardly be exercised in reviewing the findings of a master in chancery. I myself am unable to assign any reason for this variety of practice as between the Postmaster General and the Secretary of the Interior on the one hand, ánd the Secretary of Agriculture on the other, and can find none in the opinion in this case or in the other case.
The opinion in the present case seems to be based mainly upon the ground that the name, “Creamo Oleomargarine” had been approved by the Department in 1908 and in 1912, and plaintiff has expended money in advertising the name, and it is indicated that these facts deprive the Department of the power to forbid the use of the name although satisfied that it is false and deceptive. That, it seems to me, is a docT trine fraught with the gravest danger. It has been uniformly held that even the most solemn acts of legislation, pursuant to which parties have invested large sums of money, can in no way impair the authority of the state to exercise its police power. Fertilizing Co. v. Hyde Park, 97 U. S. 659, 24 L. Ed. 1036; Texas & N. O. Railroad Co. v. Miller, 221 U. S. 408, 414, 31 Sup. Ct. 534, 55 L. Ed. 789, are cases in which this familiar rule is cited and applied. Can it be possible, then, that a mere executive officer by his mistake, honest or corrupt, can destroy within the field of his jurisdiction, a police statute of the nation? It has been the uniform holding of the courts that the conduct of such officers cannot impair the rights of the government even in civil matters. United States v. Pine River Logging & Improvement Co., 89 Fed. 907, 917, 32 C. C. A. 406; United States v. Lee Wilson Co. (D. C.) 214 Fed. 630, 651. It seems to me too plain for debate that an executive officer appointed to enforce a statute cannot by any act or omission of his impair the power of the government through a subsequent officer, to enforce á police statute. To hold otherwise is to1 give such officers the power to annul the law. It might well happen that the use of a name at the time of its selection, and even for years thereafter, would appear to be innocent, and would be approved in the routine course of administrative business; then upon a careful investigation it would be found that the name was chosen and was actually used in the channels of trade for false and deceptive purposes. That seems to be what has occurred in the present case. It seems to me an alarming doctrine that the approval of a name which was in effect selected for purposes of deception, can destroy the power of the government to stop the fraud. Some point is made in the brief that the plaintiff has a registered trade-mark for the term “Creamo Oleomargarine.” This seems to have troubled the Department in dealing with tire name. It is, however, settled law that a trade-mark that is chosen for fraudulent purposes will not be protected even in civil litigation; much less can such a trade-mark be used to impair the power of the government to enforce a police statute.
In my judgment both on the law and the facts, the decree made by the trial court was conspicuously improper, and should be reversed.