[232 U.S. 399, 400] Attorney General McReynolds and Mr. Francis G. Caffey for petitioner.
[232 U.S. 399, 401] Messrs. Edward P. Smith, Bruce S. Elliott, Edward L. Scarritt, C. J. Smyth, and W. C. Scarritt for respondent.
Mr. Henry P. Blair in behalf of
[232 U.S. 399, 404] Mr. Ralph S. Rounds as amicus curia.
Mr. Justice Day delivered the opinion of the court:
The petitioner, the United States of America, proceeding under 10 of the food and drugs act (34 Stat. at L. 768, chap. 3915, U. S. Comp. Stat. Supp. 1911, p. 1354), by libel filed in the district court of the United States for the western district of Missouri, sought to seize and condemn 625 sacks of flour in the possession of one Terry, which had been shipped from Lexington, Nebraska, to Castle, Missouri, and which remained in original, unbroken packages. The judgment of the district court, upon verdict in favor of the government, was reversed by the circuit court of appeals for the eighth circuit (121 C. C. A. 23, 202 Fed. 615), and this writ of certiorari is to review the judgment of that court. [232 U.S. 399, 405] The amended libel charged that the flour had been treated by the 'Alsop Process,' so called, by which nitrogen peroxide gas, generated by electricity, was mixed with atmospheric air, and the mixture then brought in contact with the flour, and that it was thereby adulterated under the fourth and fifth subdivisions of 7 of the act; namely, (1) in that the flour had been mixed, colored, and stained in a manner whereby damage and inferiority were coneealed and the flour given the appearance of a better grade of flour than it really was, and (2) in that the flour had been caused to contain added poisonous or other added deleterious ingredients, to-wit, nitrites or nitrite reacting material, nitrogen peroxide, nitrous acid, nitric acid, and other poisonous and deleterious substances which might render the flour injurious to health. The libel also charged that the flour was adulterated under the first subdivision of 7, and was misbranded; but the government does not urge these features of the case here. The verdict was broad enough to cover the charge under the first subdivision of 7, but in the view we take of the case as to the instruction of the court under subdivision 5 need not be noticed.
The Lexington Mill & Elevator Company, the respondent herein, appeared, claiming the flour, and answered the libel, admitting that the flour had been treated by the Alsop Process, but denying that it had been adulterated, and attacking the constitutionality of the act
A special verdict to the effect that the flour was adulterated was returned and judgment of condemnation entered. The case was taken to the circuit court of appeals upon writ of error. The respondent contended that, among other errors, the instructions of the trial court as to adulteration were erroneous and that the act was unconstitutional. The circuit court of appeals held that the testimony was insufficient to show that by the [232 U.S. 399, 406] bleaching process the flour was so colored as to ceonceal inferiority, and was thereby adulterated, within the provisions of subdivision 4. That court also held-and this holding gives rise to the principal controversy here-that the trial court erred in instructing the jury that the addition of a poisonous substance, in any quantity, would adulterate the article, for the reason that 'the possibility of injury to health due to the added ingredient, and in the quantity in which it is added, is plainly made an essential element of the prohibition.' It did not pass upon the constitutionality of the act, in view of its rulings on the act's construction.
The case requires a construction of the food and drugs act. Parts of the statute pertinent to this case are:
Without reciting the testimony in detail it is enough to say that for the government it tended to show that the added poisonous substances introduced into the flour by the Alsop Process, in the proportion of 1.8 parts per million, calculated as nitrogen, may be injurious to the health of those who use the flour in bread and other forms of food. On the other hand, the testimony for the respondent tended to show that the process does not add to the flour any poisonous or deleterious ingredients which can in any manner render it injurious to the health of a consumer. On these conflicting proofs the trial court was required to submit the case to the jury. That court-after stating the claims of the parties, the government insisting that the flour was adulerated and should be condemned if it contained any added poisonous or other added deleterious ingredient of a kind or character which was capable of rendering such article injurious to health; the respondent contending that the flour should not be condemned unless the added substances were present in such quantity that the flour would be thereby rendered injurious to health-gave certain instructions to the jury. Part of the charge, excepted to by the respondent reads:
On the other hand, the respondent insisted that the law is, and requested the court to charge the jury:
... * *
It is evident from the charge given and refused that the trial court regarded the addition to the flour of any poisonous ingredient as an offense within this statute, no [232 U.S. 399, 409] matter how small the quantity, and whether the flour sight or might not injure the health of the consumer. At least, such is the purport of the part of the charge above given, and if not correct, it was clearly misleading, notwithstanding other parts of the charge seem to recognize that, in order to prove adulteration, it is necessary to show that the flour may be injurious to health. The testimony shows that the effect of the Alsop Process is to bleach or whiten the flour, and thus make it more marketable. If the testimony introduced on the part of the respondent was believed by the jury, they must necessarily have found that the added ingredient, nitrites of a poisonous character, did not have the effect to make the consumption of the flour by any possibility injurious to the health of the consumer.
The statute upon its face shows that the primary purpose of Congress was to prevent injury to the public health by the sale and transportation in interstate commerce of misbranded and adulterated foods. The legislation, as against misbranding, intended to make it possible that the consumer should know that an article purchased was what it purported to be; that it might be bought for what it really was, and not upon misrepresentations as to character and quality. As against adulteration, the statute was intended to protect the public health from possible injury by adding to articles of food consumption poisonous and deleterious substances which might render such articles injurious to the health of consumers. If this purpose has been effected by plain and unambiguous language, and the act is within the power of Congress, the only duty of the courts is to give it effect according to its terms. This principle has been frequently recognized in this court. Lake County v. Rollins, 130 U.S. 662, 670 , 32 S. L. ed. 1060, 1063, 9 Sup. Ct. Rep. 651.
Hamilton v. Rathbone, 175 U.S. 414, 421 , 44 S. L. ed. 219, 222, 20 Sup. Ct. Rep. 155.
Furthermore, all the words used in the statute should be given their proper signification and effect. Washington Market Co. v. Hoffman, 101 U.S. 112, 115 , 25 S. L. ed. 782, 783.
Applying these well-known principles in considering this statute, we find that the fifth subdivision of 7 provides that food shall be deemed to be adulterated 'if it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health.' The instruction of the trial court permitted his statute to be read without the final and qualifying words, concerning the effect of the article upon health. If Congress had so intended, the provision would have stopped with the condemnation of food which contained any added poisonous or other added deleterious ingredient. In other words, the first and familiar consideration is that, if Congress had intended to enact the statute in that form, it would have done so by choice of apt words to express that intent. It did not do so, but only condemned food containing an added poisonous or other added deleterious ingredient when such addition might render the article of food in- [232 U.S. 399, 411] jurious to the health. Congress has here, in this statute, with its penalties and forfeitures, definitely outlined its inhibition against a particular class of adulteration.
It is not required that the article of food containing added poisonous or other added deleterious ingredients must affect the public health, and it is not incumbent upon the government in order to make out a case to establish that fact. The act has placed upon the government the burden of establishing, in order to secure a verdict of condemnation under this statute, that the added poisonous or deleterious substances must be such as may render such article injurious to health. The word 'may' is here used in its ordinary and usual signification, there being nothing to show the intention of Congress to affix to it any other meaning. It is, says Webster, 'an auxiliary verb, qualifying the meaning of another verb, by expressing ability, . . . contingency or liability, or possibility or probability.' In thus describing the offense, Congress doubtless took into consideration that flour may be used in many ways, in bread, cake, gravy, broth, etc. It may be consumed, when prepared as a food, by the strong and the weak, the old and the young, the well and the sick; and it is intended that if any flour, because of any added poisonous or other deleterious ingredient, may possibly injure the health of any of these, it shall come within the ban of the statute. If it cannot by any possibility, when the facts are reasonably considered, injure the health of any consumer, such flour, though having a small addition of poisonous or deleterious ingredients, may not be condemned under the act. This is the plain meaning of the words, and in our view needs no additional support by reference to reports and debates, although it may be said in passing that the meaning which we have given to the statute was well expressed by Mr. Heyburn, chairman of the committee having it in charge upon the floor of the Senate ( Congressional Record, vol. 40, pt. 2, p. 1131): [232 U.S. 399, 412] 'As to the use of the term 'poisonous,' let me state that everything which contains poison is not poison. It depends on the quantity and the combination. A very large majority of the things consumed by the human family contain, under analysis, some kind of poison, but it depends upon the combination, the chemical relation which it bears to the body in which it exists, as to whether or not it is dangerous to take into the human system.'
And such is the view of the English courts construing a similar statute. The English statute provides ( 3, of the sale of food and drugs act 1875):
That section was construed in Hull v. Horsnell, 68 J. P. 591, which involved preserved peas, the color of which had been retained by the addition of sulphate of copper, charged to be a poisonous substance and injurious to health. There was a conviction in the lower court. Lord Alverstone, L. C. J., in reversing and remitting the case on appeal, said:
We reach the conclusion that the circuit court of appeals did not err in reversing the judgment of the dis- [232 U.S. 399, 413] trict court for error in its charge with reference to subdivision 5 of 7.
The circuit court of appeals reached the conclusion that there was no substantial proof to warrant the conviction, under the fourth subdivision of 7, that the flour was mixed, colored, and stained in a manner whereby damage and inferiority were concealed. As the case is to be retried to a jury, we say nothing more upon this point.
As to the objection on constitutional grounds, it is not contended that the statute, as construed by the circuit court of appeals and this court, is unconstitutional.
It follows that the judgment of the Circuit Court of Appeals, reversing the judgment of the District Court, must be affirmed, and the case remanded to the District Court for a new trial.