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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.

practice of treating these interior cities as Mr. John E. Alexander for appellees. 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 liti. ion of the court:

gation, finally sustained in Intermountain By the Act of June 18, 1910, chap. 309, Rate Cases (United States v. Atchison, T. 36 Stat, at L. 539, 547, Comp. Stat. 1913, & S. F. R. Co.) 234 U. S. 476, 58 L. ed. § 8566, amending $ 4 of the Act to Regulate 1408, 34 Sup. Ct. Rep. 986. Commerce (24 Stat. at L. 380, chap. 104], Meanwhile the "effective date” of the orcarriers were prohibited from charging der had been extended by the Commission. more "for a shorter than for a longer dis- After the decision of this court, further tance over the same line or route in the extensions of the "effective date" were same direction” without obtaining author. sought by the carriers and granted. Some ity from the Interstate Commerce Commis- modifications of the order were proposed by sion so to do. A period of six months from the carriers. Additional hearings were had the passage of the amendment was provided in which many shippers participated. within which carriers might file application Changes in conditions occurring since the for authority to continue charges of that entry of the original order on July 31, nature then lawfully existing.

1911, were considered,-among others, that For many years prior to 1910 it had been Congress had passed the Act of August 24, & common practice to make freight rates 1912 [37 Stat. at L. 568, chap. 390, Comp. from the East to Pacific coast points lower Stat. 1913, § 8569), giving the Commission than to intermountain territory, because of jurisdiction over transportation “by rail competition by the Atlantic-Pacific ocean and water through the Panama canal;" carriers. About 185 interior cities near the that the canal itself had been opened on coast had been granted the same transcon August 15, 1914; that competing ocean tinental rates as the ports of San Francisco rates had been lowered and service im. and Oakland, because the competing water proved; and that the ocean carriers had carriers customarily "absorbed” the local discontinued the practice of "absorbing" rates or charges from the ports to those rates from the ports to interior cities. An cities. Among the interior cities thus elaborate supplemental report was made by treated as “Pacific Coast Terminals” were the Commission on January 29, 1915, and Sacramento, Stockton, San José, and Santa another on April 30, 1915. The propriety Clara. The extent to which the higher rates of modifications in addition to those proto intermountain territory were justified posed by the carriers was shown and a new and the proper basis for "back haul” rates plan for constructing “back haul” rates, had been the subject of many hearings be developed by the Commission, was eventufore the Interstate Commerce Commission. ally embodied in the amended 4th section

Proceeding under § 4, as amended, six order No. 124 of April 30th, 1915, and railroads applied to the Commission under adopted by the carriers in the tariffs filed date of December 7, 1910, for relief in re- thereunder. Following the limitation imspect to west-bound transcontinental composed by the amended order, the tariffs filed modity rates. The applications, after enum. confined the low "terminal” rates to ports erating the then-existing tariffs, sought of call like San Francisco and Oakland; authoçity specifically “to continue all rates and the interior coast cities, including Sacshown in the above-named tariffs from east- ramento, Stockton, San José, and Santa ern shipping points designated to Pacific Clara, were subjected to rates materially coast terminal points,” and generally “to higher than San Francisco and Oakland, continue the present method of making rates though much lower than those to interlower at the more distant points than at mountain territory. the intermediate points, such lower rates Representatives of these four cities, conbeing necessary by reason of competition ceiving them aggrieved by the refusal to of various water carriers” from Atlantic to grant them the same rates as the ports, Pacific ports. After prolonged hearings the and alleging that they had participated in Commission entered its so-called 4th sec- whole or in part at hearings which pretion order No. 124, by which, while declin. ceded the entry of the last amendment oring to grant the applications as made, it der, applied to the Commission for a re authorized charging, in some respects, lower hearing, and when their application was rates for the longer hauls. The limitation denied, brought this suit in the district of such charges was set by a zone system court to restrain the enforcement as to them 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 appeal, in which all the defendants the Interstate Commerce Commission, and joined, raises important questions involved the six railroads were made defendants. in the administration of the 4th section as The bill alleged, among other things, that amended June 18, 1910, namely: these cities had for a number of years en: First: Is it essential to the validity of joyed the same rates as San Francisco and an order authorizing a lower rate for a Oakland; that large industries and other longer haul, that it be based upon an applibusinesses had been established there be cation asking only the precise relief granted ? cause they enjoyed terminal rates;. that Second: What is the remedy of a comtheir commercial importance and prosperity munity or shipper which deems itself ag. would be ruined if the rates were with. grieved by the order made ? drawn; that no changed conditions existed The orders here in controversy were conjustifying a withdrawal of terminal rates; | fessedly based upon applications made by that they had not been parties to the pro- the carriers. Both the amended orders and ceedings in which the orders were made; the decree recite by numbers the applicaand that the "orders authorizing withdraw- tions dated December 7, 1910. The objecal of terminal rates” from them were, tion made by the appellees is that the limamong other things, "discriminatory and ited authority granted by the Commission unjust, were made without said cities hav. bad not been applied for; since the carriers ing their day in court, or without giving asked specifically for leave to continue lower them an opportunity to show the unreason. rates, which were the same for ports and ableness thereof, that no justification for for interior California cities, but the Comsuch increase was shown, and the order of mission permitted these rates to ports while April 30, 1915, was without evidence, that it denied like rates to the interior cities. petitioners have been denied the equal pro- Respondents deny that the district court tection of the law and deprived of property holds in effect that applications for relief without due process of law, to their irrepa- must be granted in toto or denied in toto; rable damage."

but such is the necessary effect of its deThe case was heard before three judges; cision. Amended § 4 empowers the Comand a final decree was entered which de mission “upon application” to authorize a clared that the "orders of the Interstate carrier “to charge less for longer than for Commerce Commission of January 29, 1915, shorter distances.” These carriers asked and April 30, 1915, in 4th section applica- leave, among other things, to charge on tions Nos. 205, 342, 343, 344, 350, and 352,"west-bound transcontinental freight to about in so far as they authorize the carriers to 193 coast and interior cities much less than charge for the transportation of west-bound to intermountain territory. The Commistranscontinental freight destined to Sacra- sion permitted them to charge, to eight of mento, Stockton, San José, and Santa Clara, these cities which were ports, as much less California, "any greater amount than is as the application requested; but as to the concurrently charged for the like carriage other 185, which were interior cities, inof like freight to San Francisco and Oak- cluding the four complaining here, permitland, California, were beyond the statutory ted the carriers to charge only somewhat powers of the Interstate Commerce Commis- less. In other words, the Commission sion, and the enforcement thereof should be granted a part of the relief asked. The enjoined; and said orders in the particulars district court says it had no power so to above mentioned are hereby canceled and do. But there is nothing in the act to jusset aside."

The decree also enjoined and tify limiting the power of the Commission canceled to like extent the tariffs filed in to either a grant or a denial in toto of the pursuance of such orders.

The district precise relief applied for. Such a construccourt rested its decision that the Commis- tion would make § 4 unworkable and desion had no statutory power to enter the feat the purpose of the amendment. It is amended order upon the ground that an | at variance with the broad discretion vested order authorizing higher rates to these in- in the Commission and the prevailing practerior cities could not legally be entered tice of administrative bodies. It fails to unless there was an “application” to it by give effect to the provision that "the Comthe carriers for that specific purpose and mission may from time to time prescribe “a hearing upon the particular application the extent to which such designated comas in a special case;" that there had been mon carriers may be relieved from the no such application and hearing, and that operation of this section.” It is inconsistent with Intermountain Rate Cases (Unit. | tariffs filed under the authority granted ed States v. Atchison, T. & S. F. R. Co.) seem to them unreasonable, or unjustly dis234 U. S. 476, 58 L. ed. 1408, 34 Sup. Ct. criminatory, $$ 13 and 15 afford ample remRep. 986, where the order sustained granted edy. Respondents contend that, after the relief very different from that applied for; amended order was entered and the tariffs and it finds no support in United States v. filed, they did apply to the Commission for Louisville & N. R. Co. 235 U. S. 314, 322, relief, “but were denied the right of a hear59 L. ed. 245, 251, 35 Sup. Ct. Rep. 113, ing,” and that "their protest and demand cited by the district court, in which case were ignored and denied.” What they did relief from the operation of the 4th section was to petition for a “rehearing" in the had not been granted. The clause in amend proceedings under the 4th section, to which ed 4th section, which declares "that upon they now say they were not parties, instead application to the Interstate Commerce of applying for redress under $ 13, as they Commission such common carrier may in had a legal right to do. They mistook their special cases, after investigation, be author- remedy. To permit communities or shipized to charge less for longer than for pers to seek redress for such grievances in shorter distances” was designed to guard the courts would invade and often nullify against the issue, by the Commission, of the administrative authority vested in the general orders suspending the long and Commission; and, as this case illustrates, short haul clause, and to insure action by the attempt of the court to remove some it separately in respect to particular car- alleged unjust discriminations might result riers, and only after consideration of the in creating infinitely more. The decree of special circumstances existing. Whenever the district court cancels the amended order such consideration has been given, “the and the tariff only so far as it concerns the Commission may from time to time pre- four complaining cities, and thereby disscribe the extent to which such designated criminates perhaps most unjustly in their common carrier may be relieved from the favor as against the other 181 interior operation of the section.

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 1 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 Commerce Commission it shall be found authority to proceed with any inquiry in that such proposed increase rests upon stituted on its own motion as though it changed conditions other than the eliminahad been appealed to by complaint or peti- tion of water competition.” The answers tion under any of the provisions of this to this contention are many. What these act, including the power to make and en- four cities complain of is not increase of force any order or orders in the case, or rates, but the fact that San Francisco and relating to the matter or thing concerning Oakland may be given rates lower than which inquiry is had, excepting orders for theirs; and they strongly deny that water the payment of money.” Unless formal ap. competition has been eliminated. Indeed, plication be an indispensable prerequisite to it was the increased effectiveness of water the exercise by the Commission of the power competition due to the opening of the Panagranted by the 4th section, its absence or ma canal-a notable change in conditionsa defect in it could be waived; and it would which compelled the rate readjustment of be waived by the filing of tariffs under the which they complain; and the higher rates order entered. For the order is permissive to the interior cities, made under authority merely. The carrier is the only necessary of the Commission, were granted after proparty to the proceeding under § 4. The longed hearings, as part of the general reCommission represents the public. While it adjustment of transcontinental rates. The is proper and customary for communities provision relied upon has no application to or shippers interested to participate in hear such a case. ings held, there is no provision for notice The decree of the District Court must be to them. They are not bound by the order reversed, with directions to dismiss the bill. entered; at least, in the absence of such Reversed. participation. And if the rates made by

V.

(242 U. S. 153) HUTCHINSON ICE CREAM COMPANY Mr. Justice Brandeis delivered the opiset al., Piffs. in Err.,

ion of the court: V.

These cases were argued together. In STATE OF IOWA. (No. 40.) each a state statute which prohibits the

sale of ice cream containing less than a A. B. CROWL, Piff. in Err., fixed percentage of butter fat is assailed

as invalid under the 14th Amendment; the COMMONWEALTH OF PENNSYLVANIA. supreme court of each state having held its (No. 50.)

statute constitutional. State v. Hutchinson CONSTITUTIONAL LAW 240(1), 296(1) Ice Cream Co. 168 Iowa, 1, L.R.A. 1917B,

Food 1—"DUE PROCESS OF LAW" 198, 147 N. W. 195; Com. v. Crowl, 245 Pa. "EQUAL PROTECTION OF THE LAWS"

554, 91 Atl. 922. Iowa makes 12 per cent the REGULATING PERCENTAGE

OP

BUTTER FAT IN ICE CREAM.

required minimum; Pennsylvania 8 per State statutes which prohibit the cent. The material provisions of the sevsale as "ice cream" of a product containing eral statutes are copied in the margin.1 less than a fixed percentage of butter fat The right of the state under the polico do not take property without due process power to regulate the sale of products with of law nor deny the equal protection of the à view to preventing frauds or protecting laws,—the particular percentages fixed not being so exacting as to be in themselves the public health is conceded by plaintiffs unreasonable,-although the ice cream of in error. And they do not contend that the commerce is not iced or frozen cream, but particular percentages of butter fat set by is a frozen confection, varying in composi.

1 without either cream or milk.

", or [Ed. Note.-For

other cases, see Constitutional shall manufacture or introduce into the Law, Cent. Dig: 8 688, 693, 825, 827; Dec. Dig. state, or solicit or take orders for delivery,

m240(1), 296(1); Food, Cent. Dig. $81, 2; or sell, exchange, deliver or have in his posDec. Dig. Omol.

For other definitions, see Words and Phrases, session with the intent to sell, exchange or First and Second Series, Due Process of Law; expose or offer for sale or exchange, any Equal Protection of the Law.]

article of food which is adulterated or mis(Nos. 40 and 50.]

branded, within the meaning of this act." Argued November 13, 1916. Decided De

Code Supp. 1913, § 4999-a3le: cember 4, 1916.

“For the purpose of this act an article of

food shall be deemed to be adulterated : N ERROR to the Supreme Court of the "First. If any substance or substances

State of Iowa to review a judgment has or have been mixed and packed with it which reversed a judgment of the District so as to reduce or lower or injuriously af

fect its quality, strength or purity. 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. N ERROR to the Supreme Court of the

"Fourth. If it be an imitation of, or IN

State Pennsylvania to review a judg. offered for sale, under the specific name of ment which affirmed a judgment of the another article, or if it does not conform to

the standards established by law.” Superior Court, affirming & conviction in

Chap. 175, Acts 34th G. A.: the Court of Quarter Sessions of Erie

"Ice Cream." County, in that state, for selling as ice "1. Ice cream is the frozen product made cream a compound containing less than the from pure wholesome sweet cream, and minimum percentage of butter fat specified sugar, with or without flavoring, and if by a state statute. Affirmed.

desired, the addition of not to exceed 1 per See same case in No. 40, 168 Iowa, 1, cent (1%) by weight of a harmless thickL.R.A. 1917B, 198, 147 N. W. 195; in "No ener, and contains not less than 12 per cent 50, 245 Pa. 554, 91 Atl. 922.

(12%) by weight of milk fat, and the acid

ity shall not exceed three tenths (3-10) of The facts are stated in the opinion.

1 per cent (1%)." Mr. Walter Jeffreys Carlin for plain- Pennsylvania: P. L. 63, Purdon's Dig. tiff in error in No. 50.

vol. 5, p. 529: Messrs. R. L. Parrish and Walter Jef. "An act for the protection of the public freys Carlin for plaintiffs in error in No. 40. health and to prevent fraud and deception

Mr. George Cosson, Attorney General of in the manufacture, sale, offering for sale, Iowa, for defendant in error in No. 40.

exposing for sale, and having in possession Mr. William M. Hargest and Mr. terious ice cream; fixing a standard of but

with intent to sell, of adulterated or deleFrancis Shunk Brown, Attorney General of ter fat for ice cream; providing penalties Pennsylvania, for defendant in error in No. for the violation thereof, and providing for 60.

the enforcement thereof." wwFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

IN

Iowa and Pennsylvania are 80 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 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. 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. But the legislature may well have fat, is a regulation so unreasonable and ar- found in these facts persuasive evidence bitrary as to be a deprivation of property that the public welfare required the prowithout due process of law and a denial of hibition enacted. The facts show that, in the equal protection of the laws. To sup- the absence of legislative regulation, the port this contention the following trade ordinary purchaser at retail does not and facts are shown:

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 com- milk is among the important ingredients; pound may vary widely in character, in the and he may make his purchase with a number used, and in the proportions in knowledge that butter fat is the principal which they are used. These variations are food value in cream or milk. Laws designed dependent upon the ingenuity, skill, and to prevent persons from being misled in judgment of the maker, the relative cost respect to the weight, measurement, qualat a particular time or at a particularity, or ingredients of an article of general place of the possible ingredients, and the consumption are a common exercise of the requirements of the market in respect to police power. The legislature defines the taste or selling price. Thus, some Phila- standard article or fixes some of its char.

acteristics; and it may conclude that fraud delphia ice cream is made of only cream, sugar, and a vanilla flavor.

or mistake can be effectively prevented only

In making other Philadelphia ice cream the whites of the usual tradename, if it fails to meet the

by prohibiting the sale of the article under eggs are added; and according to some requirements of the standard set. Laws formulas vanilla ice cream may be made prohibiting the sale of milk or cream conwithout any cream or milk whatsoever ; taining less than fixed percentages of butter for instance, by proper manipulation of the fat present a familiar instance of such leg. yolks of eggs, the whites of eggs, sugar, islation. Cases in the state courts upholdsyrup, and the vanilla bean. All of these ing laws of this character are referred to different compounds are commonly sold as in the margin. This court has repeatedly

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), Cir. “Fourth. If it be an imitation of, or of. cular 218, on Legal Standards for Dairy fered for sale under, the name of another Products.

article. "Section 1. Be it enacted, etc., That no “Section 4. No ice cream shall be sold person, firm or corporate body, by himself, within the state containing less than eight itself or themselves, or by his, her or their (8) per centum butter fat, except where agents, servants, or employees, shall sell, fruit or nuts are used for the purpose of offer for sale, expose for sale, or have in flavoring, when it shall not contain less possession with intent to sell, ice cream than six (6) per centum butter fat." adulterated within the meaning of this act. 8 State v. Schlenker, 112 Iowa, 642, 51

"Section 2. Ice cream shall be deemed to L.R.A. 347, 84 Am. St. Rep. 360, 84 N. W. be adulterated within the meaning of this 698; State v. Campbell, 64 N. H. 402, 10 act

Am. St. Rep. 419, 13 Atl. 585; People v. "First. If it shall contain boric acid, Bowen, 182 N. Y. 1, 74 N. E. 489; State formaldehyde, saccharin, or any other added v. Crescent Creamery Co. 83 Minn. 284, 54 substance or compound that is deleterious L.R.A. 466, 85 Am. St. Rep. 464, 86 N. W. to health.

107; State v. Stone, 46 La. Ann. 147, 15 So. "Second. If it shall contain salts of cop. 11; Deems v. Baltimore, 80 Md. 164, 26 per, iron oxid, ochers, or any coloring sub- L.R.A. 541, 45 Am. St. Rep. 339, 30 Atl. stance deleterious to health; Provided, That 648; Com. v. Wheeler, 205 Mass. 384, 137 this paragraph shall not be construed to Am. St. Rep. 456, 91 N. E. 415, 18 Ann. prohibit the use of harmless coloring matter Cas. 319; St. Louis v. Grafeman Dairy Co. in ice cream, when not used for fraudulent 190 Mo. 507, 1 L.R.A. (N.S.) 926, 89 S. W. purposes.

627; State v. Smyth, 14 R. I. 100, 51 Am. “Third. If it shall contain any deleterious | Rep. 344.

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