with which there is mixed any substance foreign to but- * * The provisions of this section imposing special taxes on manufacturers of renovated and adulterated butter and on dealers in adulterated butter will be found on page 174, under head of Special Taxes; also the provision imposing fines for nonpayment of special tax, page 160. Process or renovated butter Manufacturer's notices, bonds, Signs. Manufacturer of adulterated butter defined. The law imposing tax on adulterated butter is a revenue measure. (Ohio Creamery & Supply Co. v. Rodway, T. D. 1871.) That every manufacturer of process or renovated butter or adulterated butter shall file with the collector of inter- inventories, etc. nal revenue of the district in which his manufactory is located such notices, inventories, and bonds, shall keep such books and render such returns of material and products, shall put up such signs and affix such number of his factory, and conduct his business under such surveillance of officers and agents as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may by regulation require. But the bond required of such manufacturer shall be with sureties satisfactory to the collector of internal revenue, and in a penal sum of not less than five hundred dollars; and the sum of said bond may be increased from time to time and additional sureties required at the discretion of the collector or under instructions of the Commissioner of Internal Revenue. That all adulterated butter shall be packed by the manufacturer thereof in firkins, tubs, or other wooden packages not before used for that purpose, each containing not less than ten pounds, and marked, stamped, and branded as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall prescribe: and all sales made by manufacturers of adulterated butter shall be in original stamped packages. Dealers in adulterated butter must sell only original or from original stamped packages, and when such original stamped packages are broken the adulterated butter sold from same shall be placed in suitable wooden or paper packages, which shall be marked and branded as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall prescribe. Every person who knowingly sells or offers for sale, or delivers or offers to deliver, any adulterated butter in any other form than in new wooden or paper packages as above described, or Manufacturer's packages. Dealers' pack ages. Penalty. Caution label. Penalty. Tax on adulterated butter and process Qr who packs in any package any adulterated butter in any manner contrary to law, or who falsely brands any package or affixes a stamp on any package denoting a less amount of tax than that required by law, shall be fined for each offense not more than one thousand dollars and be imprisoned not more than two years. That every manufacturer of adulterated butter shall securely affix, by pasting, on each package containing adulterated butter manufactured by him a label on which shall be printed, besides the number of the manufactory and the district and State in which it is situated, these words: "Notice.-That the manufacturer of the adulterated butter herein contained has complied with all the requirements of law. Every person is cautioned not to use either this package again or the stamp thereon, nor to remove the contents of this package without destroying said stamp, under the penalty provided by law in such cases." Every manufacturer of adulterated butter who neglects to affix such label to any package containing adulterated butter made by him, or sold or offered for sale for or by him, and every person who removes any such label so affixed from any such package shall be fined fifty dollars for each package in respect to which such offense is committed. That upon adulterated butter, when manufactured or sold or removed for consumption or use, there shall be renovated butter. assessed and collected a tax of ten cents per pound, to be paid by the manufacturer thereof, and any fractional part of a pound shall be taxed as a pound, and that upon process or renovated butter, when manufactured or sold or removed for consumption or use, there shall be assessed and collected a tax of one-fourth of one cent per pound to be paid by the manufacturer thereof, and any fractional part of a pound shall be taxed as a pound. The tax to be levied by this section shall be represented by coupon stamps, and the provisions of existing laws governing engraving, issuing, sale, accountability, effacement, and destruction of stamps relating to tobacco and snuff, as far as applicable, are hereby made to apply to the stamps provided by this section. Stamps. That the provisions of sections nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, and twenty-one of "An Act defining butter, also imposing a tax upon and regulating the manufacture, sale, importation, and exportation of oleomargarine," approved August second, eighteen hundred and eighty-six, shall apply to manufacturers of "adulterated butter to an extent necessary to enforce the marking, branding, identification, and regulation of the exportation and importation of adulterated butter. Butter containing 16 per cent or more of moisture is held to be adulterated. (Regulations No. 9, concerning adulterated butter and process or renovated butter.) Definition of adulterated butter. (Rosemary Creamery Explanation of regulations concerning adulterated but- A regulation defining what shall be held to be an abnormal quantity of moisture has the force and effect of law. (Ohio Creamery & Supply Co. v. Rodway, T. D. 1871.) Authority of Commissioner to fix moisture limit-intent to manufacture not material if process has that effect. (Coopersville Cooperative Creamery Co. r. Lemon, 163 Fed., 145, T. Ds. 1371, 1679; Ohio Creamery & Supply Co. v. Rodway, T. D. 1871. Contra:—Baldwin v. Williams, 233 Fed., 607; United States v. 11,150 Pounds of Butter (Milton Dairy Co.), 188 Fed., 157, 195 Fed., 657. The decision in the case of the Milton Dairy Co. is not accepted by this office as a precedent. Revenue agents will report all cases where adulterated butter is found to have a moisture content of 16 per cent or more. T. D. 1809.) Refined butter, manufactured from salt, glucose, and imported low-grade or "grease" butter, is held subject to tax as adulterated butter. (T. D. 557.) Ladled butter containing 16 per cent of moisture liable Evidence showing reasonable diligence to keep moisture Forwarding samples for analysis. Method of sampling. (T. D. 1618; Ohio Creamery & Sup ply Co. v. Rodway, T. D. 1871.) No assessment should be recommended on the basis of a single sample unless there is other evidence. (T. D. 1539.) Intent not necessary. (Lawrence v. Seyburn, 202 Fed., 913; T. D. 1851.) Decision of Commissioner that certain substance or compound constitutes adulterated butter conclusive where there has been hearing and arbitrary conduct in legal sense not complained of. (New York Butter Packing Co. v. Edwards, T. D. 2803.) Decision of Commissioner is conclusive, where no unfairness or irregularity charged. (Cohen v. Edwards, 256 Fed., 964.) SEC. 5. [Act of May 9, 1902 (32 Stat., 196).] All parts of an Act providing for an inspection of meats for exportation, approved August thirtieth, eighteen hundred and ninety, and of an Act to provide for the inspection of live cattle, hogs, and the carcasses and products thereof which are the subjects of interstate commerce, approved March third, eighteen hundred and ninety-one, and of amendment thereto approved March second, eighteen hundred and ninety-five, which are applicable to the subjects and purposes described in this section shall apply to process or renovated butter. And the Secretary of Agriculture is hereby authorized and required to cause a rigid sanitary inspection to be made, at such times as he may deem proper or necessary, of all factories and storehouses where process or renovated butter is manufactured, packed, or prepared for market, and of the products thereof and materials going into the manufacture of the Inspection of renovated butter. Marking of renovated butter. Agriculture shall same. All process or renovated butter and the packages containing the same shall be marked with the words "Renovated Butter" or "Process Butter" and by such other marks, labels, or brands and in such manner as may be prescribed by the Secretary of Agriculture, and no process or renovated butter shall be shipped or transported from its place of manufacture into any other State or Territory or the District of Columbia, or to any foreign country, until it has been marked as provided in Secretary of this section. The Secretary of Agriculture shall make all make regulations. needful regulations for carrying this section into effect, and shall cause to be ascertained and reported from time to time the quantity and quality of process or renovated butter manufactured, and the character and the condition of the material from which it is made. And he shall also have power to ascertain whether or not materials used in the manufacture of said process or renovated butter are deleterious to health or unwholesome in the finished product, and in case such deleterious or unwholesome materials are found to be used in product intended for exportation or shipment into other States or in course of exportation or shipment he shall have power to confiscate the same. Any person, firm, or corporation violating any of the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment not less than one month nor more than six months, or by both said punishments, in the discretion of the court. Penalty. Removal of marks, brands, stamps, and caution labels al crime. (United States v. Green, 137 Fed., 179; T. D. 980, ! T. D. 578; contra, United States v. Bohl, 125 Fed., 625.) The Food and Drugs Act of June 30, 1906 (34 Stat., 768). The Secretary of Agriculture is charged with the enforcement of this act. NOTE. NO provision is made in the act of May 9, 1902, for the exportation, free of tax, of renovated butter nor for drawback of tax on such articles when exported. Consequently, all renovated butter for export must be stamped and marked the same as for the domestic market. [Act Apr. 23, 1904, making appropriation for Department of Agriculture.] That the Secretary of Agriculture may construe the provisions of the act of March third, eighteen hundred and ninety-one, as amended March second, eighteen hundred and ninety-five, for the inspection of live cattle and products thereof, to include dairy products intended for exportation to any foreign country and may apply, under rules and regulations to be prescribed by him, the provisions of said act for inspection and certification appropriate for ascertaining the purity and quality of such products and may cause the same to be so marked, stamped, or labeled as to secure their identity and make known in markets of foreign countries to which they may be sent. from the United States their purity, quality, and grade; and all the provisions of said act relating to live cattle and products thereof for export shall apply to dairy products so inspected and certified. (See Regulations No. 9 and No. 29.) etc., of whole SEC. 6. [Act of May 9, 1902 (32 Stat., 197).] That Returns, books, wholesale dealers in oleomargarine, process, renovated, sale dealers. or adulterated butter shall keep such books and render such returns in relation thereto as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may, by regulation, require; and such books shall be open at all times to the inspection of any internal revenue officer or agent. And any person who willfully violates any of the provisions of this section shall for each such offense be fined not less than fifty dollars and not exceeding five hundred dollars, and imprisoned not less than thirty days nor more than six months. Section 41, act of October 1, 1890 (26 Stat., 621), relative to wholesale dealers in oleomargarine keeping books and rendering returns superseded by this section. Collectors of internal revenue should require power of attorney, in proper legal form, from agents of manufacturers of oleomargarine, etc., who render and sign monthly returns. (T. D. 1263.) Failure by wholesale dealer to keep books and render returns; although corporations are not mentioned in sec. 6 it was intended to embrace them. (United States v. Union Supply Co., 215 U. S., 50; T. D. 1564.) An indictment for failure to make entries in book should aver that the dealer did not make nor cause to be made such entries. (United States r. Lamson, 162 Fed., 165.) SEC. 7. [Act of May 9, 1902 (32 Stat., 197).] This act shall take effect on the first day of July, nineteen hundred and two. Oleomargarine law constitutional. (McCray v. United States, 195 U. S., 27; T. D. 795; Schick v. United States, The oleomargarine act is not unconstitutional as a dele- Constitutionality of State laws relating to oleomargarine: The statute of Pennsylvania prohibiting the manufacture and sale of oleomargarine within the State not unconstitutional. (Powell . Pennsylvania, 127 U. S., 675; 34 Int. Rev. Rec., 166.) New Hampshire law prohibiting sale of oleomargarine unless colored pink unconstitutional. (Collins v. New Hampshire, 171 U. S., 30.) |