Assistant Attorney General Underwood, and rate percentage basis prescribed by the for the United States. Commission, which involved an extensive Mr. Joseph W. Folk for the Interstate readjustment of rates; but the existing Commerce Commission. Mr. John E. Alexander for appellees. practice of treating these interior cities as terminals was not disturbed. The validity of the order was attacked by the carriers Mr. Justice Brandeis delivered the opin- in the courts, and, after three years of litiion of the court: By the Act of June 18, 1910, chap. 309, 36 Stat. at L. 539, 547, Comp. Stat. 1913, § 8566, amending § 4 of the Act to Regulate Commerce [24 Stat. at L. 380, chap. 104], carriers were prohibited from charging more "for a shorter than for a longer distance over the same line or route in the same direction" without obtaining authority from the Interstate Commerce Commission so to do. A period of six months from the passage of the amendment.was provided within which carriers might file application for authority to continue charges of that nature then lawfully existing. For many years prior to 1910 it had been a common practice to make freight rates from the East to Pacific coast points lower than to intermountain territory, because of competition by the Atlantic-Pacific ocean carriers. About 185 interior cities near the coast had been granted the same transcontinental rates as the ports of San Francisco and Oakland, because the competing water carriers customarily "absorbed" the local rates or charges from the ports to those cities. Among the interior cities thus treated as "Pacific Coast Terminals" were Sacramento, Stockton, San José, and Santa Clara. The extent to which the higher rates to intermountain territory were justified and the proper basis for "back haul" rates had been the subject of many hearings before the Interstate Commerce Commission. Proceeding under § 4, as amended, six railroads applied to the Commission under date of December 7, 1910, for relief in respect to west-bound transcontinental commodity rates. The applications, after enumerating the then-existing tariffs, sought authority specifically "to continue all rates shown in the above-named tariffs from eastern shipping points designated to Pacific coast terminal points," and generally "to continue the present method of making rates lower at the more distant points than at the intermediate points, such lower rates being necessary by reason of competition of various water carriers" from Atlantic to Pacific ports. After prolonged hearings the Commission entered its so-called 4th section order No. 124, by which, while declining to grant the applications as made, it authorized charging, in some respects, lower rates for the longer hauls. The limitation of such charges was set by a zone system gation, finally sustained in Intermountain Rate Cases (United States v. Atchison, T. & S. F. R. Co.) 234 U. S. 476, 58 L. ed. 1408, 34 Sup. Ct. Rep. 986. Meanwhile the "effective date" of the order had been extended by the Commission. After the decision of this court, further extensions of the "effective date" were sought by the carriers and granted. Some modifications of the order were proposed by the carriers. Additional hearings were had in which many shippers participated. Changes in conditions occurring since the entry of the original order on July 31, 1911, were considered,-among others, that Congress had passed the Act of August 24, 1912 [37 Stat. at L. 568, chap. 390, Comp. Stat. 1913, § 8569], giving the Commission jurisdiction over transportation "by rail and water through the Panama canal;" that the canal itself had been opened on August 15, 1914; that competing ocean rates had been lowered and service improved; and that the ocean carriers had discontinued the practice of "absorbing" rates from the ports to interior cities. An elaborate supplemental report was made by the Commission on January 29, 1915, and another on April 30, 1915. The propriety of modifications in addition to those proposed by the carriers was shown and a new plan for constructing "back haul" rates, developed by the Commission, was eventually embodied in the amended 4th section order No. 124 of April 30th, 1915, and adopted by the carriers in the tariffs filed thereunder. Following the limitation imposed by the amended order, the tariffs filed confined the low "terminal" rates to ports of call like San Francisco and Oakland; and the interior coast cities, including Sacramento, Stockton, San José, and Santa Clara, were subjected to rates materially higher than San Francisco and Oakland, though much lower than those to intermountain territory. Representatives of these four cities, conceiving them aggrieved by the refusal to grant them the same rates as the ports, and alleging that they had participated in whole or in part at hearings which preceded the entry of the last amendment order, applied to the Commission for a rehearing, and when their application was denied, brought this suit in the district court to restrain the enforcement as to them The appeal, in which all the defendants joined, raises important questions involved in the administration of the 4th section as amended June 18, 1910, namely: First: Is it essential to the validity of an order authorizing a lower rate for a longer haul, that it be based upon an application asking only the precise relief granted? Second: What is the remedy of a community or shipper which deems itself ag grieved by the order made? of the amended order, and of the tariffs | consequently the orders were void and the filed thereunder. The city of Santa Clara tariffs filed in pursuance thereof illegal. and associations representing the traffic in- Merchants' & Mfrs. Traffic Asso. v. United terests of Sacramento, Stockton, and San States, 231 Fed. 292. José joined as plaintiffs. The United States, the Interstate Commerce Commission, and the six railroads were made defendants. The bill alleged, among other things, that these cities had for a number of years enjoyed the same rates as San Francisco and Oakland; that large industries and other businesses had been established there because they enjoyed terminal rates; that their commercial importance and prosperity would be ruined if the rates were withdrawn; that no changed conditions existed justifying a withdrawal of terminal rates; that they had not been parties to the proceedings in which the orders were made; and that the "orders authorizing withdrawal of terminal rates" from them were, among other things, "discriminatory and unjust, were made without said cities having their day in court, or without giving them an opportunity to show the unreasonableness thereof, that no justification for such increase was shown, and the order of April 30, 1915, was without evidence, that petitioners have been denied the equal protection of the law and deprived of property without due process of law, to their irreparable damage." The case was heard before three judges; and a final decree was entered which declared that the "orders of the Interstate Commerce Commission of January 29, 1915, and April 30, 1915, in 4th section applications Nos. 205, 342, 343, 344, 350, and 352," in so far as they authorize the carriers to charge for the transportation of west-bound transcontinental freight destined to Sacramento, Stockton, San José, and Santa Clara, California, "any greater amount than is concurrently charged for the like carriage of like freight to San Francisco and Oakland, California, were beyond the statutory powers of the Interstate Commerce Commission, and the enforcement thereof should be enjoined; and said orders in the particulars above mentioned are hereby canceled and set aside." The decree also enjoined and canceled to like extent the tariffs filed in pursuance of such orders. The district court rested its decision that the Commission had no statutory power to enter the amended order upon the ground that an order authorizing higher rates to these interior cities could not legally be entered unless there was an "application" to it by the carriers for that specific purpose and "a hearing upon the particular application as in a special case;" that there had been no such application and hearing, and that The orders here in controversy were confessedly based upon applications made by the carriers. Both the amended orders and the decree recite by numbers the applications dated December 7, 1910. The objection made by the appellees is that the limited authority granted by the Commission had not been applied for; since the carriers asked specifically for leave to continue lower rates, which were the same for ports and for interior California cities, but the Commission permitted these rates to ports while it denied like rates to the interior cities. Respondents deny that the district court holds in effect that applications for relief must be granted in toto or denied in toto; but such is the necessary effect of its decision. Amended § 4 empowers the Commission "upon application" to authorize a carrier "to charge less for longer than for shorter distances." These carriers asked leave, among other things, to charge on west-bound transcontinental freight to about 193 coast and interior cities much less than to intermountain territory. The Commission permitted them to charge, to eight of these cities which were ports, as much less as the application requested; but as to the other 185, which were interior cities, including the four complaining here, permitted the carriers to charge only somewhat less. In other words, the Commission granted a part of the relief asked. district court says it had no power so to do. But there is nothing in the act to justify limiting the power of the Commission to either a grant or a denial in toto of the precise relief applied for. Such a construction would make § 4 unworkable and defeat the purpose of the amendment. It is at variance with the broad discretion vested in the Commission and the prevailing practice of administrative bodies. It fails to give effect to the provision that "the Commission may from time to time prescribe the extent to which such designated common carriers may be relieved from the operation of this section." It is inconsist The ent with Intermountain Rate Cases (United States v. Atchison, T. & S. F. R. Co.) 234 U. S. 476, 58 L. ed. 1408, 34 Sup. Ct. Rep. 986, where the order sustained granted relief very different from that applied for; and it finds no support in United States v. Louisville & N. R. Co. 235 U. S. 314, 322, 59 L. ed. 245, 251, 35 Sup. Ct. Rep. 113, cited by the district court, in which case relief from the operation of the 4th section had not been granted. The clause in amended 4th section, which declares "that upon application to the Interstate Commerce Commission such common carrier may in special cases, after investigation, be authorized to charge less for longer than for shorter distances" was designed to guard against the issue, by the Commission, of general orders suspending the long and short haul clause, and to insure action by it separately in respect to particular carriers, and only after consideration of the special circumstances existing. Whenever such consideration has been given, "the Commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of the section." tariffs filed under the authority granted seem to them unreasonable, or unjustly discriminatory, §§ 13 and 15 afford ample remedy. Respondents contend that, after the amended order was entered and the tariffs filed, they did apply to the Commission for relief, "but were denied the right of a hearing," and that "their protest and demand were ignored and denied." What they did was to petition for a "rehearing" in the proceedings under the 4th section, to which they now say they were not parties, instead of applying for redress under § 13, as they had a legal right to do. They mistook their remedy. To permit communities or shippers to seek redress for such grievances in the courts would invade and often nullify the administrative authority vested in the Commission; and, as this case illustrates, the attempt of the court to remove some alleged unjust discriminations might result in creating infinitely more. The decree of the district court cancels the amended order and the tariff only so far as it concerns the four complaining cities, and thereby discriminates perhaps most unjustly in their favor as against the other 181 interior cities. It may be doubted whether application It was also contended on behalf of the by the carrier is a prerequisite to the grant- four cities that the amended orders violated ing of relief. As was said in Intermountain the clause added to § 4 by the Act of June Rate Cases (United States v. Atchison, T. 18, 1910, which provides that “whenever a & S. F. R. Co.) 234 U. S. 476, 485, 58 L. carrier by railroad shall in competition ed. 1408, 1421, 34 Sup. Ct. Rep. 986, § 4 with a water route or routes reduce the vests in the Commission the "primary in- rates on the carriage of any species of stead of a reviewing function" to determine freight to or from competitive points, it the propriety of a lesser rate for a longer shall not be permitted to increase such distance; and § 13 declares that the Com-rates unless after hearing by the Interstate mission "shall have the same powers and authority to proceed with any inquiry in stituted on its own motion as though it had been appealed to by complaint or petition under any of the provisions of this act, including the power to make and enforce any order or orders in the case, or relating to the matter or thing concerning which inquiry is had, excepting orders for the payment of money." Unless formal application be an indispensable prerequisite to the exercise by the Commission of the power granted by the 4th section, its absence or a defect in it could be waived; and it would be waived by the filing of tariffs under the order entered. For the order is permissive merely. The carrier is the only necessary party to the proceeding under § 4. The Commission represents the public. While it is proper and customary for communities or shippers interested to participate in hearings held, there is no provision for notice to them. They are not bound by the order entered; at least, in the absence of such participation. And if the rates made by Commerce Commission it shall be found that such proposed increase rests upon changed conditions other than the elimination of water competition." The answers to this contention are many. What these four cities complain of is not increase of rates, but the fact that San Francisco and Oakland may be given rates lower than theirs; and they strongly deny that water competition has been eliminated. Indeed, it was the increased effectiveness of water competition due to the opening of the Panama canal-a notable change in conditionswhich compelled the rate readjustment of which they complain; and the higher rates to the interior cities, made under authority of the Commission, were granted after prolonged hearings, as part of the general readjustment of transcontinental rates. The provision relied upon has no application to such a case. The decree of the District Court must be reversed, with directions to dismiss the bill. Reversed. (242 U. S. 153) V. STATE OF IOWA. (No. 40.) A. B. CROWL, Plff. in Err., V. COMMONWEALTH OF PENNSYLVANIA. CONSTITUTIONAL LAW 240(1), 296(1) State statutes which prohibit the sale as "ice cream" of a product containing less than a fixed percentage of butter fat do not take property without due process of law nor deny the equal protection of the laws, the particular percentages fixed not being so exacting as to be in themselves unreasonable,-although the ice cream of commerce is not iced or frozen cream, but is a frozen confection, varying in composition, and under some formulas may be made without either cream or milk. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 688, 693, 825, 827; Dec. Dig. 240(1), 296(1): Food, Cent. Dig. §§ 1, 2; Dec. Dig. 1. For other definitions, see Words and Phrases, First and Second Series, Due Process of Law; Equal Protection of the Law.] [Nos. 40 and 50.] Argued November 13, 1916. cember 4, 1916. Decided De IN ERROR of Mr. Justice Brandeis delivered the opinion of the court: These cases were argued together. In each a state statute which prohibits the sale of ice cream containing less than a fixed percentage of butter fat is assailed as invalid under the 14th Amendment; the supreme court of each state having held its statute constitutional. State v. Hutchinson Ice Cream Co. 168 Iowa, 1, L.R.A. 1917B, 198, 147 N. W. 195; Com. v. Crowl, 245 Pa. 554, 91 Atl. 922. Iowa makes 12 per cent the required minimum; Pennsylvania 8 per cent. The material provisions of the several statutes are copied in the margin.1 The right of the state under the police power to regulate the sale of products with a view to preventing frauds or protecting the public health is conceded by plaintiffs in error. And they do not contend that the particular percentages of butter fat set by 1 Iowa: Code Supp. 1913, § 4999-a20: "No person, firm or corporation, shall manufacture or introduce into the state, or solicit or take orders for delivery, or sell, exchange, deliver or have in his possession with the intent to sell, exchange or expose or offer for sale or exchange, any article of food which is adulterated or misbranded, within the meaning of this act." Code Supp. 1913, § 4999-a3le: "For the purpose of this act an article of food shall be deemed to be adulterated: "First. or substances I state or to the Supreme Court oment has or have been mixed and packed witnes so as to reduce or lower or injuriously affect its quality, strength or purity. which reversed a judgment of the District Court of Polk County, in that state, sus"Second. If any substance or substances taining a demurrer to an information char- has or have been substituted wholly or in ging a violation of a state statute forbid-part for the article. ding the sale of a product as ice cream "Third. If any valuable constituent of which did not contain a specified percentage the article has been wholly or in part abof butter fat. Affirmed. Also stracted. the standards established by law." N ERROR to the Supreme Court of the "Fourth. If it be an imitation of, or State of Pennsylvania to review a judg-offered for tide, or if it does not conform to sale, under the specific name of ment which affirmed a judgment of the Superior Court, affirming a conviction in the Court of Quarter Sessions of Erie County, in that state, for selling as ice cream a compound containing less than the minimum percentage of butter fat specified by a state statute. Affirmed. See same case in No. 40, 168 Iowa, 1, L.R.A. 1917B, 198, 147 N. W. 195; in No. 50. 245 Pa. 554, 91 Atl. 922. The facts are stated in the opinion. Mr. Walter Jeffreys Carlin for plaintiff in error in No. 50. Messrs. R. L. Parrish and Walter Jeffreys Carlin for plaintiffs in error in No. 40. Mr. George Cosson, Attorney General of Iowa, for defendant in error in No. 40. Mr. William M. Hargest and Mr. Francis Shunk Brown, Attorney General of Pennsylvania, for defendant in error in No. 50. "1. Ice cream is the frozen product made from pure wholesome sweet cream, and sugar, with or without flavoring, and if desired, the addition of not to exceed 1 per cent (1%) by weight of a harmless thickener, and contains not less than 12 per cent (12%) by weight of milk fat, and the acidity shall not exceed three tenths (3-10) of 1 per cent (1%)." Pennsylvania: P. L. 63, Purdon's Dig. vol. 5, p. 529: "An act for the protection of the public health and to prevent fraud and deception in the manufacture, sale, offering for sale, exposing for sale, and having in possession with intent to sell, of adulterated or deleterious ice cream; fixing a standard of butter fat for ice cream; providing penalties for the violation thereof, and providing for the enforcement thereof." For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Iowa and Pennsylvania are so exacting as, ice cream; and none of them is necessarily to be in themselves unreasonable. Thirteen unwholesome. other states have by similar legislation set Plaintiffs in error contend that as ice 14 per cent as the minimum; five other cream is shown to be a generic term emstates 12 per cent; only eight states have bracing a large number and variety of prodfixed a percentage as low as Pennsylvania; ucts, and the term as used does not necesand the United States Department of Agri-sarily imply the use of dairy cream in its culture has declared 14 per cent to be stand- composition, it is arbitrary and unreasonard.2 The main objection urged is this: able to limit the ice cream of commerce to To require that ice cream, in order to be that containing a fixed minimum of butter legally salable, must contain some butter fat. fat, is a regulation so unreasonable and arbitrary as to be a deprivation of property without due process of law and a denial of the equal protection of the laws. To support this contention the following trade facts are shown: But the legislature may well have found in these facts persuasive evidence that the public welfare required the prohibition enacted. The facts show that, in the absence of legislative regulation, the ordinary purchaser at retail does not and cannot know exactly what he is getting The ice cream of commerce is not iced or when he purchases ice cream. He presumafrozen cream. It is a frozen confection-bly believes that cream or at least rich a compound. The ingredients of this compound may vary widely in character, in the number used, and in the proportions in which they are used. These variations are dependent upon the ingenuity, skill, and judgment of the maker, the relative cost at a particular time or at a particular place of the possible ingredients, and the requirements of the market in respect to taste or selling price. Thus, some Philadelphia ice cream is made of only cream, sugar, and a vanilla flavor. In making other Philadelphia ice cream the whites of eggs are added; and according to some formulas vanilla ice cream may be made without any cream or milk whatsoever; for instance, by proper manipulation of the yolks of eggs, the whites of eggs, sugar, syrup, and the vanilla bean. All of these different compounds are commonly sold as 2 The requirements of the several states | flavoring matter, or flavoring matter not are set forth in U. S. Department of Agri- true to name. culture (Bureau of Animal Industry), Čircular 218, on Legal Standards for Dairy Products. "Section 1. Be it enacted, etc., That no person, firm or corporate body, by himself, itself or themselves, or by his, her or their agents, servants, or employees, shall sell, offer for sale, expose for sale, or have in possession with intent to sell, ice cream adulterated within the meaning of this act. "Section 2. Ice cream shall be deemed to be adulterated within the meaning of this act "First. If it shall contain boric acid, formaldehyde, saccharin, or any other added substance or compound that is deleterious to health. "Second. If it shall contain salts of copper, iron oxid, ochers, or any coloring substance deleterious to health; Provided, That this paragraph shall not be construed to prohibit the use of harmless coloring matter in ice cream, when not used for fraudulent purposes. “Third. If it shall contain any deleterious milk is among the important ingredients; and he may make his purchase with a knowledge that butter fat is the principal food value in cream or milk. Laws designed to prevent persons from being misled in respect to the weight, measurement, quality, or ingredients of an article of general consumption are a common exercise of the police power. The legislature defines the standard article or fixes some of its characteristics; and it may conclude that fraud or mistake can be effectively prevented only by prohibiting the sale of the article under the usual tradename, if it fails to meet the requirements of the standard set. Laws prohibiting the sale of milk or cream containing less than fixed percentages of butter fat present a familiar instance of such legislation. Cases in the state courts upholding laws of this character are referred to in the margin.3 This court has repeatedly "Fourth. If it be an imitation of, or offered for sale under, the name of another article. "Section 4. No ice cream shall be sold within the state containing less than eight (8) per centum butter fat, except where fruit or nuts are used for the purpose of flavoring, when it shall not contain less than six (6) per centum butter fat." 8 State v. Schlenker, 112 Iowa, 642, 51 L.R.A. 347, 84 Am. St. Rep. 360, 84 N. W. 698; State v. Campbell, 64 N. H. 402, 10 Am. St. Rep. 419, 13 Atl. 585; People v. Bowen, 182 N. Y. 1, 74 N. E. 489; State v. Crescent Creamery Co. 83 Minn. 284, 54 L.R.A. 466, 85 Am. St. Rep. 464, 86 N. W. 107; State v. Stone, 46 La. Ann. 147, 15 So. 11; Deems v. Baltimore, 80 Md. 164, 26 L.R.A. 541, 45 Am. St. Rep. 339, 30 Atl. 648; Com. v. Wheeler, 205 Mass. 384, 137 Am. St. Rep. 456, 91 N. E. 415, 18 Ann. Cas. 319; St. Louis v. Grafeman Dairy Co. 190 Mo. 507, 1 L.R.A. (N.S.)_926, 89 S. W. 627; State v. Smyth, 14 R. I. 100, 51 Am. Rep. 344. |