No. 8890 Guaranteed under

"That the peroxide of hydrogen mentioned in the information and above set forth was purchased from the said John Bene, whose guarantee is also set forth above; that the said John Bene is a resident of the United States; that the defendant, John W. James, has therefore complied with all the requirements of said Food and Drugs Act and is not liable under this information, all of which matters this defendant doth aver and plead in bar, and the defendant prays judgment that the information be dismissed and he be discharged from custody." 2

§ 489. Statute Construed-When Reseller not Liable.

This section was construed by Judge Grubb, of the District Court of the Northern District of Alabama, in a charge to a jury, as follows:

"Proof of the absence of knowledge on the dealer's part that the article is obnoxious to some of the provisions of the Act is only a defense when the article is purchased from a manufacturer, and a guaranty taken from the manufacturer that it complies with the requirements of the Act. The second section of the Act prohibits the introduction into interstate commerce of any article of food, or drugs, which is adulterated or misbranded. The ninth section provides that no dealer shall be prosecuted under the provisions of the Act when he can establish a guaranty, signed by the manufacturer from whom he purchased such articles, to the effect that the same article is not adulterated or misbranded within the meaning of the Act; in which case, the manufacturer shall be amenable to the prosecutions, fines, and other penalties, which would otherwise attach to the dealer. The purpose of Congress was to place liability for the violation of the law upon some one in each instance. Primarily the liability is on the dealer who introduces the article into interstate commerce. The liability can be shifted from the dealer only by imposing the same liability upon the manufacturer. This can be done only by virtue of the manufacturer's guaranty to the dealer. If, for any reason, the guaranty is insufficient to impose liability upon the manufacturer, it remains where it primarily rested, upon the dealer. To have the effect of releasing the dealer from liability for the violation of the Act complained of in this prosecution, the guaranty must be of a character to impose liability for the same violation upon the manufacturer, if he were substituted for these defendants in this case; otherwise, both parties would escape liability, and the purpose expressed by Congress be defeated. The Act says that the manufacturer, who signs the guaranty, shall be subject to the same prosecution and penalties as the dealer. If a conviction could be sustained 2 N. J. 575; N. J. 216.

against the manufacturer upon its guaranty, if substituted for the defendants in this case, then the taking of the guaranty by defendants would be no defense to their violation of the law in reference to the shipment in question, though they had no knowledge that it was adulterated or misbranded. In order for the manufacturer's guaranty to be effective to impose liability upon him for any violation of law as to the article, which is the basis of this prosecution, the guaranty must relate to the identical article introduced into interstate commerce by the defendants as dealers. Otherwise the answer of the manufacturer to the prosecution would be, that he had never guaranteed the article shipped by the dealer, and the answer would be complete. Change of the original package might not constitute a change of identity. In this case there was more. The manufacturer furnished the dealer with the extract, and the dealer shipped the syrup. Commercially, if not chemically, the two were different. The extract was a mere constituent of the syrup, and not the syrup itself. The manufacturer did not guarantee the article shipped by the dealer, and on which this prosecution is based, could not be convicted for the violation of the Act, charged against the defendants in relation to it, any reason of the guaranty, and for that reason the taking of the guaranty was not a protection to the defendants. When they changed the identity of the extract, they elected to abandon the protection of the manufacturer's guaranty, and were responsible for the character of the new article, the syrup, made and shipped by them, or under their authority. Neither the defendants' want of knowledge of the presence of cocaine in the extract, nor the guaranty taken by them from the manufacturer, would excuse their failure to properly brand the jug, under this count of the information," 1

§ 490. Manufacturer Selling Goods within State to be Shipped out of it-Liability.

The Pure Food and Drugs Act for its validity rests upon the interstate clause of the Constitution; but that fact does not enable a manufacturer giving a false guaranty from being prosecuted merely because the food or drug be sold to a dealer in the State where he manufactured it, if he sold it with the intent that it be put into interstate commerce. In one case it was contended that a manufacturer who gives a false label is not liable if he sells the adulterated product in the State where he manufactured it. In discussing this question the court said: "It is not contended by the defendant that Congress has no constitutional right to pro

1 N. J. 326; United States v. Mayfield, 177 Fed. 765.

hibit the introduction of adulterated and misbranded foods in interstate commerce, but the claim is that so far as the defendant's connection with the adulterated and misbranded goods was concerned, the entire transaction of manufacturing, selling and delivering by it was consummated within the State, as was the issuance of the false certificate, and as the defendant's connection with the article was entirely within the State, the fact that the certificate indicates that the adulterated and misbranded commodity was intended for inerstate commerce can make no difference because the Federal courts could have no jurisdiction, whatever the intention of the manufacturer might be, until such goods had been shipped or entered with a common carrier for transportation to another State, or had been started upon such transportation in a continuous route or journey.1

There is nothing in the Act to indicate that there is an effort on the part of Congress to regulate the manufacturing, selling or delivering of any articles of food within the States. The Act is intended to prevent adulterated and misbranded foods from being sold in interstate commerce; nothing more, and in order that this may be accomplished it prohibits the party who makes or manufactures the food and who knows what it contains from falsely assuring an innocent purchaser that its quality and dress lawfully entitles him to sell the commodity in interstate commerce. Such a certificate, made by a defendant, expressly under the provisions of the Act, if false, could have been made with no purpose other than to defeat the object of the Act. This prohibition is obviously essential to the enforcement of one of the important powers with which Congress is intrusted, to wit: the regulations of interstate commerce.

To punish the dealer who sells the article in another State will not in all cases reach the evil sought to be remedied. He may be entirely innocent of any intention of selling an adulterated or misbranded food, because he may be unable to tell the difference between a pure article and one adulter

1 Counsel cited to this proposition Kidd v. Pierson, 128 U. S. 1,

5 Sup. Ct. 6, 6 L. Ed. 32, affirming 72 Iowa 348, 34 N. W. 1.

ated, and dealers can not be expected to employ expert chemists to examine the great variety of commodities which enter into commerce and are dealt in by them; but the evil can soon be cured if the innocent dealer may shift the responsibility for the purity of the commodity to the manufacturer by requiring him to certify to the effect that the article is not adulterated or misbranded, when the manufacturer knows he will be subjected to punishment in case he gives a false certificate prohibited by the Act.

In the case of United States v. Fox,2 in passing upon the provision in the bankrupt law which made it a misdemeanor, punishable by imprisonment, for obtaining goods under false pretense with intent to defraud, within three months of the commencement of bankruptcy proceedings, the court held that as this would be no offense under the Act of Congress at the time of the commission of the false pretense, that any subsequent independent act by the party himself or a third party in instituting bankruptcy proceedings, could not make it a crime punishable in the Federal courts. In the discussion of the question, it was said by Justice Field, that "the criminal intent essential to the commission of a public offense must exist when the act complained of is done; it can not be imputed to a party from a subsequent independent transaction. There are cases, it is true, where a series of acts are necessary to constitute an offense, one act auxiliary to another in carrying out the criminal design.

In this case the criminal intent essential to the commission of the offense existed at the time defendant gave the certificate specifying that it was under the Pure Food Act of Congress of June 30, 1906. With what purpose and intent was the certificate given other than for the purpose of evading the provisions of this Act of Congress? It is averred defendant made and knew the goods were both adulterated and misbranded, and with this knowledge gave a certificate that they were not adulterated or misbranded in order that an innocent purchaser might sell them in interstate com

295 U. S. 670, 24 L. Ed. 538.

merce, and, in this case, the purpose of the certificate was accomplished. The dealer did just what the defendant intended he should do; that is, the dealer relying on the certificate sold the articles in another State. "Any act committed with a view of evading the legislation of Congress, passed in the execution of any of its powers, or of fraudulently securing the benefit of such legislation, may properly be made an offense against the United States."

§ 491. Abuse of Guaranty for Advertising Purposes.

"The attention of the department has been called repeatedly of late to the abuse, for advertising purposes, of the serial number assigned to a guaranty. The Department of Agriculture accepts no responsibility for the guaranty which the manufacturer or dealer files. Particular attention must be paid to the fact that it must neither be directly stated or implied in any fashion that the Department of Agriculture or the United States government guarantees or indorses the products to which the guaranty and serial number are attached. The guaranty represented by the serial number is the guaranty of the manufacturer and not of the government. "To facilitate business a serial number is assigned to this guaranty, and the guaranty is filed in the Department of Agriculture for the purpose of verifying the serial number when it is used on packages of goods.

"The misuse of the serial number is a misrepresentation, and in each case of such an abuse the serial number will be withdrawn and the guaranty returned after proper notice. Serial numbers, however, which have been issued and passed into commerce prior to withdrawal will be respected by the department in any action which may be brought against dealers selling goods bearing the number which is improperly used.

"The attachment of the serial number or guaranty to articles which are not foods or drugs is also regarded as a misrepresentation on which a similar action will be based.' 91

1 F. I. D. 70.