CURTICE BROS. CO. v. BARNARD et al., 209 F. 589

KOHLSAAT, Circuit Judge (after stating the facts as above). From the evidence and the master’s report thereon, it is evident that the question of the harmfulness and harmlessness of benzoate of soda is, as yet, an open one in the scientific world. While the voluminous record of this case deals largely with that question, it is a question of fact. The finding of fapt of the master may not, in the absence of convincing evidence to the contrary, be set aside. To show that the report is erroneous and not justified by the evidence, the burden rests upon appellant.

That burden is not convincingly sustained by the record. We, therefore, start with the proposition that the question is yet an open one in the scientific world and therefore an open one for the purposes of this hearing. This being so, it was within the power of the Indiana Legislature to prohibit the use of benzoate of soda in the preparation of foods. In Laurel Hill Cemetery v. City & County of San Francisco, 216 U. S. 358-365, 30 Sup. Ct. 301, 302 (54 L.

Ed. 515), the court was considering an action brought to restrain the appellees from enforcing an ordinance forbidding the burial of the dead within the city and county limits. The complaint set up that the ordinance violated the fourteenth amendment to the Constitution of the United States. Speaking through Mr. Justice Holmes, the court says: “To aid its contention and in support of the averment that its cemetery, although now bordered by many dwellings, is in no way harmful, the plaintiff refers to opinions of scientific men who have maintained that the popular belief is a superstition.

Of these we are asked, by implication, to take judicial notice, to adopt them, and on the strength of our acceptance to declare the foundation of the ordinance a mistake and the ordinance void. It may be, in a matter of this kind, where the finding of fact is merely a premise to laying down a rule of law, that this court has power to form its own judgment without the aid of a jury. Prentis v. Atlantic Coast Line, 211 U. S. 210, 227 [29 Sup. Ct. 67, 53 L. Ed. 150].

But whatever the tribunal, in questions of this kind, great caution must be used in overruling the decision of the local authorities, or in allowing it to be overruled. No doubt this court has gone a certain distance in that direction. Dobbins v. Los Angeles, 195 U. S. 223 [25 Sup. Ct. 18, 49 L. Ed. 169]; Lochner v. New York, 198 U. S. 45, 58 [25 Sup. Ct. 539, 49 L. Ed. 937, 3 Ann. Cas. 1133] et seq.

But it has expressed through the mouth of the same judge who delivered the judgment in the ease last cited the great reluctance that it feels to interfere with the deliberate decisions of the highest court of the state whose people are directly concerned. Welch v. Swasey, 214 U. S. 91, 106 [29 Sup. Ct. 567, 53 L. Ed. 923]. The reluctance must be redoubled when, as here, the opinion of that court confirms a specific determination concerning the same spot previously reached by the body that made the law. See French v. Barber Asphalt Paving Co., 181 U. S. 324, 341 [21 Sup. Ct. 625, 45 L. Ed. 879]; Smith v.

Worcester, 182 Mass. 232, 234, 235 [65 N. E. 40, 59 L. R. A. 728]. “But the propriety of deferring a good deal to the tribunals on the spot' is not the only ground for caution. If every member of this bench clearly agreed that burying grounds were centers of safety, and thought the board of supervisors and the Supreme Court of California wholly wrong, it would not dispose of the case. There are other things to be considered. Opinion still may be divided; and if, on the hypothesis that the danger is real, the ordinance would be valid, we should not overthrow it merely because of our adherence to the other belief.

Similar arguments were pressed upon this court with regard to vaccination, but they did not prevail. On the contrary, evidence that vaccination was deleterious was held properly to have been excluded. Jacobson v. Massachusetts, 197 U. S. 11 [25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765]; s. c., 183 Mass. 242 [66 N. E. 719, 67 L. R. A. 935]. See Otis v. Parker, 187 U. S. 606, 608, 609 [23 Sup. Ct. 168, 47 L. Ed. 323].” In Red “C” Oil Co. v. North Carolina, 222 U. S. 392, 32 Sup. Ct. 154, 56 L.

Ed. 240, the court had before it a state statute requiring the inspection of kerosene and other illuminating oils, and fixing a fee of one-half cent per gallon to be paid to the Commissioner of Agriculture for the purpose of defraying expenses connected with the inspecting, testing, and analyzing of the oil. The oil company filed its bill against the State Board of Agriculture to restrain enforcement of the statute, charging an abuse of the police power.

The court quoted approvingly the language of the trial judge, where he says: “While there is much diversity of opinion in respect to the danger of explosion from the use of kerosene oil and of the power to ascertain its illuminating capacity, it is evident that the question has not so far passed beyond the domain of debate, that the Legislature may not subject it to reasonable in-' spection before permitting the sale in the state. The court cannot say that such a law has no reasonable relation to the public safety or welfare.” In State v. Layton, 160 Mo. 474, 61 S. W. 171, 62 L. R. A. 163, 83 Am. St.

Rep. 487, wherein was involved the right of the state to prohibit the use of alum in baking powder, the court says: “What, then, is the test when the constitutionality of

an act of the Legislature is assailed as invading the right of the citizen to use his faculties in the production of an

article for sale for food or drink? We answer that if it be an

article so universally conceded to be wholesome and innocuous that the court may take judicial notice of it, the Legislature under the Constitution has no right to absolutely prohibit it; but if there is a dispute as to the fact of its wholesomeness for food or drink, then the Legislature can either regulate or prohibit it.” This case was approved in City of St. Louis v. Joseph H. Schuler, 190 Mo. 524, 89 S. W. 621, 1 L. R. A. (N. S.) 928.

Manifestly, if the Legislature of Indiana in the reasonable exercise of its police power, and for the welfare of its citizens, condemns as an adulteration the use of benzoate of soda in the preparation of artides of food, then, in the absence of a general acceptance of the proposition by the scientific world that such is not the case, there can, as to that matter, arise no question of the violation of the Constitution of the United States, or, as here charged, of the state of Indiana. When deemed necessary by the Legislature for the public health, property rights such as here involved must give way. Buttfield v.

Stranahan, 192 U. S. 470-493, 24 Sup. Ct. 349, 48 L. Ed. 525. There remains yet to be considered appellant’s contention that paragraph 7 of

section 2 and

section 7 of said chapter'104 vest legislative power in the Indiana State Board of Health, because they confer upon said board the power to authorize the use of other harmless preservatives and to adopt rules regulating minimum standards for food and drugs. So far as material here, the language of the statute is as follows, viz.: “That for the purpose of this act an

article shall be deemed as adulterated. * * * xf it contains any added antiseiJtic or preservative substance except common table salt, saltpeter, cane sugar, vinegar, spices, * * * or other harmless preservatives whose use is authorized by the State Board of Health * * * The State Board of Health shall adopt such rules as may be necessary to enforce this act, and shall adopt rules regulating minimum standards for food and drugs, defining specific adulteration and declaring proper methods of collecting and examining drugs and articles of food, and the violation of said rules shall be punished, on conviction, as set forth in

section 10 of this act.” It is the contention of appellant that the language of said paragraph 7 of

section 2 authorizes the State Board of Health to distinguish as between harmless preservatives, permitting the use of some and prohibiting the use of others arbitrarily. Such, however, is not our construction of that paragraph.

Applying the familiar rule of construction which requires that when a statute may have two meanings that one will be adopted which will relieve it from constitutional objection, we are of opinion that the statute confers upon the board power to ascertain and declare what is a harmless preservative, and that it is not authorized thereby to exclude the use of any preservative which it finds to he harmless. Nor may it arbitrarily denounce that as harmful which is harmless. Appellant’s contention that the language of said paragraph 7 of

section 2 of said act excludes the use of beet sugar and rock salt is not justified by a fair construction of the language used, since the terms “common table salt” and “cane sugar” are used generically and apply to and include beet sugar and rock salt. Can it be said that, construed as above, the statute is violative of the Constitution because it attempts to confer authority upon the State Board of Health? The question is by no means a new one. In Union Bridge Co. v. United States, 204 U. S. 364-388, 27 Sup. Ct. 367, 375 (51 L. Ed. 523), it was sought to have the court declare unconstitutional

section 18 of the rivers and harbor act of 1899, which authorized the Secretary of War to require bridges over navigable waters to be altered or removed whenever he had reason to believe the same to be an unreasonable obstruction to the free navigation of such waters. The court, through Mr. Justice Harlan, said: “We are of opinion that the act in question is not unconstitutional as conferring upon the Secretary of War powers of suelr nature that they could not be delegated to him by Congress.” In Buttfield v. Stranahan, 192 U. S. 470-496, 24 Sup. Ct. 349, 355 (48 L.

Ed. 525), the court held that the tea inspection act approved March 2, 1897 (29 Stat. 604, c. 358 [U. S. Comp.

St. 1901, p. 3194]), which authorized the Secretary of the Treasury to appoint a tea inspection board upon whose recommendation he should fix uniform standards for teas imported into the United States, and required that the importation of all teas found to be inferior to such standard should be prohibited, was'not repugnant to the Constitution. “To deny the power of Congress to delegate such a duty,” says the court, “would, in effect, amount but to declaring that the plenary power vested in Congress to regulate foreign commerce could not be efficaciously exerted.” By

an act passed March 8, 1909 (Laws 1909, c. 554), the Legislature of North Carolina provided for the inspection, under the control of the State Board of Agriculture, of all kerosene or other illuminating oils sold or offered for sale in that state. This act was called in question in Red “C” Oil Mfg. Co. v. Board of Agriculture of North Carolina, supra, as attempting to delegate to the Board of Agriculture the exercise of legislative powers. The court, speaking through Mr. Chief Justice White, held that the claim that legislative powers were delegated was untenable (citing Buttfield v.

Stranahan, supra; Union Bridge Co. v. United States, supra; St. Louis, Iron Mountain & S. Ry. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061; United States v. Grimaud, 220 U. S. 506, 31 Sup. Ct. 480, 55 L. Ed. 563). The Indiana court has, in Blue v. Beach, 155 Ind. 121-123, 56 N. E. 89, 50 L. R. A. 64, 80 Am. St. Rep. 195, held that the statute of 1894, which authorized the State Board of Health to adopt rules and by-laws to prevent the spread of contagious and infectious diseases, was constitutional and not an improper delegation of autliprity (citing a number of cases). The case of Isenhour v.

State of Indiana, 157 Ind. 517-525, 62 N. E. 40 (87 Am. St.

Rep. 228), passed upon the food law of 1899 (Laws 1899, c. 121), which, so far as the question now ttnder consideration is concerned, is substantially similar to the act herein involved. “The classification of these subjects and the prescribing of rules by which they may be determined is not legislation,” says the court, “but merely the exercise of administrative power.” It is therefore apparent that the position taken by appellant with reference to the constitutionality of the act in question is without merit, as are also the other matters covered by the assignment of errors.

The decree of the District Court is affirmed.