1912 Supp., p. 2, sec. 1.

Food and Drugs Act contrasted.-In United States v. Two Cases of Chloro-Naptholeum Disinfectant, (D. C. Md. 1914) 217 Fed. 477, the court contrasting this act with the Food and Drugs Act, enacted June 30, 1906, ch. 3915, Fed. Stat. Annot. 1909 Supp. 136, said: "The Insecticide Act was not passed until nearly four years after the Food and Drugs Act had gone upon the statute book. Various questions under the former had been raised before the latter was

enacted. A comparison of the text of the two shows that the draftsman of the Insecticide Act took the Food and Drugs Act as his model. The larger part of it he copied verbatim. Where he did not it was

1912 Supp., p. 3, sec. 2.

v.

"Introduction" into state.-The statute does not cover a shipment of goods from one point to another point in the same state although the shipment was by a route through other states. United States Powers-Weightman-Rosengarten Co., (S. D. N. Y. 1913) 211 Fed. 169, wherein the court said: "As I read the statute, 'introduction' means a bringing into another state of the prohibited article in such a way as that it may become a part of the general property within that state. Mere passing of the

1912 Supp., p. 5, sec. 8.

Misbranding as affected by extent of deception. It is no defense to a violation of this act that a name, deceptive in itself, deceives only a few purchasers. United States v. Two Cases of Chloro-Naptholeum Disinfectant, (D. C. Md. 1914) 217 Fed. 477, wherein the claimant urged that its alleged misbranding was no violation of the law, because that which deceived the best informed did not deceive the ignorant, and because on the particular subject in the instant case,-Chloro-Naptholeum-the ignorant were in a great majority. The court said: "Claimant assumes, however, that it has the right to deceive some purchasers provided it does not deceive many. The language of the act does not suggest such an interpretation. If it did, some curious results would follow. Take the case of an article which has commanded a large sale. Nevertheless some persons would not buy it. They had an idea that it contained a particular constituent which they regarded as dangerous. There were not many people

obviously because he had a definite purpose in departing from it. A word here or there might have been left out or altered as the result of a clerical mistake. Changes of another sort are clearly significant. The first proviso of the eighth section of the Food and Drugs Act is not to be found in the Insecticide Act, nor is there any substitute for it. Its exclusion could not have been accidental. It must have been intended. Congress clearly did not wish the administration and enforcement of the younger act to be embarrassed by any of the controversies of which the proviso in the older had been so fruitful a mother."

who thought so. The great body of the consumers never even so much as heard of the thing which the small minority dreaded. The majority never gave a thought or care as to whether it was or was not present. The manufacturer of the goods adds to his label the statement that it does not contain this particular ingredient. If the statement is untrue in fact, there can be no question that the goods are misbranded. It will be immaterial that 9 out of 10 or 99 out of 100 of those who buy the article pay no attention whatever to it and are not in the slightest degree interested as to whether it is or is not accurate. Goods are misbranded if they bear any statement which will deceive or mislead any purchasers who are of normal capacity and who use that capacity in a common sense way. Whether there be many or few so deceived is not material. Whether an article is or is not misbranded does not depend upon the guess court or jury can make as to the relative number of purchasers who would vote 'yes'

1912 Supp., p. 5, sec. 8.

ALASKA.

or 'no' if a referendum were possible as to whether they had or had not been deceived." Illustration of misbranding.-A manufacturer may not give to his product a name which indicates the presence in it in substantial quantities of a constituent when such is not the fact. Thus where a manufacturer put out an insecticide product labeled "Sulpho-Napthol" and the article did not contain any appreciable quantity of sulphur or any sulphur derivative, the court held that the product was misbranded. And in the same case it was held that where an article was labeled "Inert Substance Water

Vol. I, p. 80, sec. 147.

In the absence of an order of sale the property attached is discharged from the attachment. Love v. Pavlovich, (C. C. A. 9th Cir. 1915) 222 Fed. 842, wherein the court said: "This section was taken from the laws of Oregon (Lord's Oregon Laws, § 308). When this statute was adopted by Congress the Supreme Court of that state had given the statute a construction. Presumably the construction so given the statute by the highest court of the state became part of the law as adopted by Congress. In the case of Bremer & Co. v. Fleckenstein & Mayer, 9 Or. 266, 271, the Supreme Court of Oregon, construing this statute, said:

*

"Under the law, as it stood before the amendment of October 25, 1878, no order of sale of attached property was required. The statute itself directed the application of such property upon the execution when it should be issued. The amendment, however, provides that if property has been attached in the action, and has not been sold as perishable, or otherwise discharged from the attachment as provided by law, the court shall, when it renders judgment, order and adjudge that the property be sold to satisfy the plaintiff's demands, and that if execution issues thereon, the sheriff shall apply the property attached by him, or the proceeds thereof, upon such execution. We

66

The question for our determination is whether, under the complaint, the plaintiff is in a position to maintain a suit against the defendants. Preliminarily it must be observed that the plaintiff has no lien on the goods by virtue of the alleged levy of the writ of attachment issued in the action instituted against Billings and recovered on its demand. There was no order entered adjudging the property to be sold at the time of the rendition of the judgment in This was tantamount to a the action. waiver of the attachment lien if one was legally and regularly obtained, and a liberation of the goods from the effect of such levy."

when settled and allowed by the judge, signed by him, and filed with the clerk, shall be deemed and taken to be a part of the record. Copper River, etc., R. Co. v. Reeder, (C. C. A. 9th Cir. 1914) 211 Fed. 280.

4 Fed. Stat. Annot. 594) a bill of exceptions is to be deemed sufficiently authenticated if signed by the judge of the court in which

Vol. I, p. 406, sec. 460.

Freight and passenger transportation lines. In Northern Commercial Co. V. United States, (C. C. A. 9th Cir. 1914) 217 Fed. 33, the question submitted to the court was whether a transportation company doing a business partly on Alaskan and partly on Canadian waters, was exempt from the payment of the tax imposed by this section because the company had paid a tax in Canada. Holding that their vessels were subject to the license tax, the court construed the provision of this section affecting freight and passenger transportation lines, as follows: "The principal difficulty attending the construction of the present statute hinges about the words 'or not paying license or tax elsewhere.' That the statute was intended to require license of vessels doing a transportation business partly on waters of Alaska and partly on waters elsewhere is evidenced by the provision, 'as well as transportation lines doing business wholly within the District of Alaska.' True, when Congress passed the act, it was doubtless known to it that steamboats and other craft were plying on the Yukon river between points in Alaska and points in Canada, a foreign country, as well as between points wholly in Alaska; but it must be considered that Congress was legislating for the district of Alaska, the object being to provide revenue for carrying on its governmental affairs, and the new statute has added another subject touching which revenue may be exacted.

"Plaintiffs in error insist that the words 'or not paying license or tax elsewhere' must be given a general application, and that the intendment of the statute is that they shall relate to the payment of a license or tax in Canada, or other place outside the territory of Alaska, as well as in Alaska. It may be that Congress was apprised that such vessels would be subject to a tax in Canada; but, in view of the fact that they were made the subject of license for revenue in the district of Alaska, it can hardly be supposed that it intended, at the same stroke of the pen, to exempt from license the very subject designed by it for producing revenue at home, or to make such revenue dependent upon whether some foreign country should exact a tax upon the same subF. S. A. Supp.-21.

Copper River, etc., R. Co. v. Reeder, (C. C. A. 9th Cir. 1914) 211 Fed. 280.

thereof, that when in fact the work is done, and the material is furnished at the owner's instance, he may prevent a lien upon his property by posting the notice referred to in the section. Arctic Lumber Co. v. Borden (C. C. A. 9th Cir. 1914) 211 Fcd. 50.

ject. Under such a construction the legislation for revenue purposes might prove entirely futile, and, indeed, it would in the present case as to the added subject, as all the vessels plying on the Yukon between Alaska and Canada are subject to a tax in Canada.

"Looking further into the statute, the transportation lines are required to apply for and obtain the license from a District Court, or a subdivision thereof, in the district; there being three judicial divisions, as we have seen. It seems, therefore, more in consonance with the purpose of Congress to interpret the clause as being addressed to the court as well as for the delimitation of the license, and if the transportation line or lines are paying the license or tax in some other judicial division of the territory, then it or they would not be further subject to the license tax. In other words, these words simply qualify the subject designated for license, so that the tax may not be imposed in more than one judicial subdivision of the territory. This is the only rational rendition which will give practical effect to the statute, and at the same time give meaning and effect to all the words of the statute. The clause relating to ships and shipping would seem to bear out this construction. It was simply designed to make ocean and coastwise vessels doing a local business subjects of a license tax for territorial revenue purposes, and it was not intended to exempt such vesels from the tax because they might be paying a license or tax somewhere else in the United States or foreign countries. It is only where they are paying a license or tax in some other judicial division of the territory that they will be thus exempt.

"Another question submitted is whether the statute applies to barges. If used in connection with mechanical-power propelled craft, there exists no reason why they should not also be subject to the same license or tax. As the tug and tow are often one in legal parlance, so when a barge is pushed forward through means of a vessel propelled by mechanical power, and used for transportation of freight or passengers, the two vessels are in practical effect one, and must submit to the license or tax."

Vol. I, p. 411, sec. 468.

An unincorporated social club furnishing intoxicating liquors to its members must first secure a barroom license. Mustard v. Elwood, (C. C. A. 9th Cir. 1915) 223 Fed. 225, wherein the court said: "The question presented on the appeal is whether an unincorporated social club, organized for the entertainment of its members, which purchases intoxicating liquors with the common funds of the club, and dispenses the same to its members and guests to be drunk upon the premises, charging therefor a price per drink or per bottle, fixed by the club, sells intoxicating liquors within the meaning of the license law. The question is one upon which the decisions are at variance, but we think the weight of authority and the better reasoning lead to the conclusion that such a transaction is a sale.

"But it is said that ground for holding that Congress did not intend the provisions of the license law of Alaska to apply to clubs incorporated or organized for social and literary purposes is found in the fact that in the act passed for the regulation of the sale of intoxicating liquors in the District of Columbia March 3, 1893, (27 Stats. 563, c. 204) express mention was made of clubs, whereas, in the Alaska license law, enacted in 1899, (Act March 3, 1899, c. 429, 30 Stat. 1337 et seq.) no mention was made of such clubs. The only mention of clubs in the District of Columbia act is in section 6, which regulates the business of liquor selling, and prescribes the hours during which liquor may be sold. That section contains a proviso that clubs, if they so desire, may obtain a license to sell for longer hours than others. The language of the proviso is:

"And provided, further, the said excise board may in its discretion issue a license to any duly incorporated club on

petition of the officers of the club, and that the said excise board may in its discretion grant a permit to such club to sell intoxicating liquors to members and guests between such hours as the Board aforesaid may designate in said permit.'

"In Army and Navy Club v. Dist. of Columbia, 8 App. D. C. 544, decided on May 19, 1896, the Court of Appeals of the District of Columbia construed the act of May 3, 1893, above referred to. The club had denied its liability to pay the license fee fixed by the act. The court affirmed its liability, not by virtue of implied authority contained in the terms of the proviso quoted above, but under the terms of section 8 of the act, which declares that a barroom license shall be required for every hotel, tavern, barroom, or other place in which intoxicating liquors are sold by retail, and which defines the word 'barroom' as:

"Every place where distilled, malt, or

Vol. I, p. 412, sec. 472.

fermented wines, liquors, or cordials are sold in quantities as prescribed for retail dealers by section 3244, Revised Statutes of the United States, to be drunk upon the premises, shall be regarded as a barroom.'

"The language of that definition is precisely repeated in section 468 of the Alaska law, and in fact all the portions of that law which are essential to the decision of the present case are copied from the law for the District of Columbia. This is especially true of sections 462, 468, and 472, which are, respectively, sections 1, 8, and 12 of the act for the District of Columbia. In the case just cited, it was the contention of the club that the proviso in section 6 gave them the option to apply for a license or not, as they might see fit. But the court held that the club was a barroom within the meaning of the definition contained in section 8, and said that the proviso in section 6 was additional proof that the well-known usage of such clubs to furnish liquor to members was, in the contemplation of the framers of the law, a sale, and nothing else. Congress, having thereafter enacted the law for Alaska, must be deemed to have enacted it with the construction placed upon the similar act by the highest court of the District of Columbia, and that construction is controlling here. The proviso referring to clubs was omitted from the license law of Alaska, for the reason that that law contains no regulation of the hours when liquor may be sold.

"There is nothing in the other provisions of the statute for Alaska which shows the intention of Congress to exclude clubs from the requirement to obtain a license. The proposition that evidence of such an intention is found in the provision that a license shall not be granted to any person to conduct such business within 400 feet of a private house or public school, etc., is not sustainable, for that provision is also found in the act for the District of Columbia. Other provisions of the act for Alaska, such as those which require that the person receiving the license shall frame it in a conspicuous place, etc., and that the marshal or United States commisioner shall have opportunity to examine the premises where liquor is sold, are not incompatible with the intention of Congress elsewhere expressed that a club is a person, corporation, or company within the meaning of the act. The important features of the act are: 'A retail or barroom license shall be required of every hotel, tavern, boat, barroom, or other place in which intoxicating liquors are sold by retail' and the definition of a barroom as a place where liquor is sold to be drunk upon the premises."

1914 Supp., p. 19, sec. 3.

Authority of local legislature. — In U. S. v. Wigger, 235 U. S. 276, 35 S. Ct. 42, 59 U. S. (L. ed.) 226, (1914) the court had under consideration the construction of the provisions in this section "that all the laws of the United States heretofore passed establishing the executive and judicial departments in Alaska shall continue in full force and effect until amended or repealed by act of Congress." It was held that the above provision did not prevent the territorial legislature of Alaska from amending section 43 of Title II. of the Alaska Code of Criminal Procedure (1 Fed. Stat. Annot. p. 348) as to permit the joinder in one indictment of several offenses of the same class. The court commenting on the provision said:

"In order to determine what laws were by his language preserved from interference at the hands of the local legislature a brief review is necessary.

"The territory in question having been ceded to the United States by the Emperor of Russia by treaty of March 30, 1867 (15 Stat. at L. 539), Congress in the following year extended to it certain of the laws of the United States, at the same time enacting that, until otherwise provided, violations of the act should be prosecuted in any district court of the United States in California or Oregon or in the district courts of Washington (act of July 27, 1868, 15 Stat. at L. 240, 241, chap. 273, § 7). By act of May 17, 1884, entitled 'An Act Providing a Civil Government for Alaska,' (23 Stat. at L. 24, chap. 53) the territory was declared to constitute a civil and judicial district; the appointment of a governor with executive authority was provided for, and by the 3d section it was enacted: "There shall be, and hereby is, established a district court for said district, with the civil and criminal jurisdiction of district courts of the United States, and the civil and criminal jurisdiction of district courts of the United States exercising the jurisdiction of circuit courts, and such other jurisdiction, not inconsistent with this act, as may be established by law.' Provision was made for the appointment of a district judge and four commissioners, whose jurisdiction and powers were prescribed, and for appellate review.

"By the act of March 3, 1899, already mentioned, (30 Stat. at L. 1253, chap. 429) Congress provided an elaborate Criminal Code and Code of Criminal Procedure, of which title I. contains 219 sections, defining crimes and offenses, and providing for their punishment, and title II. contains 481 sections, dealing for the most part with proceedings for the punishment and prevention of the crimes defined in title I.

By act of June 6, 1900, entitled, 'An Act Making Further Provision for a Civil Government for Alaska, and for Other Purposes,' (31 Stat. at L. 321, chap. 786) further provision was made, under title I., for the establishment of the executive and judicial departments in the territory. Title II. contains 1,048 sections, constituting a Code of Civil Procedure (31 Stat. at L. 333494, chap. 786; Comp. Laws of Alaska, §§ 378-638). Title III. contains 368 sections, and is called the Civil Code (31 Stat. at L. 494-552, chap. 786; Comp. Laws of Alaska, §§ 277-362). In the Code of Civil Procedure, a chapter (31 Stat. at L. 442, chap. 786, §§ 698 et seq.) is devoted to the courts of justice, and contains sections prescribing their jurisdiction, powers, and authority. By an act approved March 3, 1909, c. 269, 35 Stat. 838, 839, sec. 2, the act of 1900 was amended with respect to the jurisdiction of the District Court.

"As already remarked, legislative power was first conferred upon the Territory by the act of August 24, 1912, c. 387, 37 Stat. 512. From the provision of this act "That all laws of the United States heretofore passed establishing the executive and judicial departments in Alaska shall continue in full force and effect until amended or repealed by Act of Congress' the District Court, after a review of the other legislation to which attention has been called, drew the conclusion that the laws concerning procedure in actions prosecuted in the name of the United States and by its officers are an essential and integral part of the laws establishing the executive and judicial departments, and that therefore these can be amended or repealed by act of Congress. With this view we are unable to concur. It seems to us that by the language employed, Congress intended to draw a clear distinction between those laws by which the executive and judicial departments had been established in the Territory and those minor regulations that had to do with practice and procedure. Those enactments by which Congress had provided for the appointment of executive and judicial officers for the territory, and had marked out the powers, authority, and jurisdiction of each, and provided safeguards for their maintenance, are properly within the category of laws 'establishing' those departments. These laws, and not those merely regulating the procedure, were by the act of 1912 continued in force until amended or repealed by act of Congress. The section respecting the form of indictments was open to amendment by the territorial legislature, and the act of April 26, 1913, passed for that purpose, is therefore valid."