NOTICE OF JUDGMENT NO. 2384.
(Given pursuant to section 4 of the Food and Drugs Act.)
ADULTERATION OF ORANGES.
On November 13, 1912, the United States Attorney for the North- 
ern District of Illinois, acting upon a report by the Secretary of 
Agriculture, filed in the District Court of the United States for said 
district libels, and on November 27, 1912, amended libels, for the 
seizure and condemnation of 8 carloads of oranges remaining 
unloaded and in original unbroken packages at the town of Pro- 
viso, Ill., alleging that the product was being transported from the 
State of California into divers other States and charging adulteration 
in violation of the Food and Drugs Act. Five carloads of the product 
had been shipped by the Lindsay Fruit Association, Lindsay, Cal., 
on November 6, 1912, a carload each to the States of New York, Mas- 
sachusetts, Ohio, Rhode Island, and Ohio, respectively, and were 
labeled, among other things, " Dry Bog Brand ", " Craigy Nos Brand ", 
" Blue Label Brand ", " Happy Boy Brand " and " Sunkist Oranges 
and Lemons "; one carload had been shipped by the Tulare County 
Citrus Exchange, Porterville, Cal., November 8, 1912, into the State 
of New York, and was labeled, among other things, " Sunkist Oranges 
and Lemons"; one carload had been shipped on November 8, 1912, 
by the Stewart Fruit Co., Porterville, Cal., into the State of Wis- 
consin, and was labeled, among other things, " Winterhaven"; one 
carload had been shipped on November 8, 1912, by the Drake Citrus 
Association for the Central California Citrus Exchange from Lind- 
say, Cal., into the State of Massachusetts, and was labeled, among 
other things, " Sunkist Oranges and Lemons ".
Adulteration of the product was alleged in the libels for the reason 
that it was colored, coated, or stained in a manner whereby damage 
and inferiority were concealed.
80225°—No. 2384—13
On December 20, 1912, the case having come on for hearing before 
the court, after the submission of evidence and argument by counsel 
the following opinion was delivered by the court (Landis, /.) :
In the view I have of the facts and the law of this case, I do not care to hear 
from the United States District Attorney, and in view of the presence here from 
their homes of the counsel and other persons who are interested in or necessarily 
connected with, as parties and otherwise, this litigation, I will dispose of this 
matter now, although it is of a character which would make it proper, did these 
conditions not exist, to take time to set down on a paper the considerations and 
reasons and theories which move my mind.
Taking up the last point first; the Federal pure food and drugs act contem- 
plates two methods of procedure for the enforcement of its provisions in the 
courts of the United States: one, at his own instance or on his own initiative, 
by information presented by the United States District Attorney or an indict- 
ment by grand jury; the other, a preliminary examination and investigation 
by the Department of Agriculture, resulting in a transmission to the District 
Attorney for the proper district of a statement of the disclosures made at the 
examination by the Department, to be followed by the District Attorney by an 
appropriate proceeding.
This question is not a new question in this district. The question that has 
just been argued to me is not a new question here. It has arisen, I suppose in 
probably a score of cases. I suppose nothing is in the books. I know of 
nothing in the books from me on this subject. I have no time to get things in 
the books.    I would like to do it at times, but I don't have the time.
The first time this question arose was in a criminal prosecution where there 
was either an objection to testimony by the defendant under indictment or a 
motion to direct an acquittal by a defendant under indictment, because of the 
fact that the indictment did not allege the fact that the Department of Agricul- 
ture had taken the preliminary step, and that it had not been followed by proof 
that the Department of Agriculture had taken the preliminary step. The argu- 
ment was made, and it was an attractive argument and it is not altogether an 
irrational argument, considering it as a legal proposition, and yet I came to the 
other conclusion. And it came up again, and I came to the same conclusion. 
And it commenced to come up around in different courts, and they disagreed 
from me. So that the question of whether a man was guilty or innocent 
depended a good deal on the district in which he happened to be charged, which 
is an unfortunate condition of affairs. Finally, this Supreme Court decision 
came up. The judgment of the trial court, to review which the Morgan case 
went to the Supreme Court, having been rendered at about the time that a 
judgment contrary to the trial court's judgment there was rendered in this 
district. And I read the opinion of the trial judge in this Morgan case before 
the Supreme Court passed upon that question and I was somewhat inclined to 
agree with the trial judge in the case, after reading his opinion. But that case 
went to the Supreme Court, and when Judge Lamar handed clown his opinion 
I studied that opinion at the time, and I came to the conclusion that the Supreme 
Court intended to decide that point. I have re-read that opinion here, and while 
it is true, as the counsel for the claimant who last addressed the court, called the 
court's attention, asserted that it did not appear in the record in that case that 
that prosecution had been started by the Department of Agriculture, there is not 
any other theory upon which a justification of the Supreme Court's opinion can 
be based than that the court considered that question as before it. Judge 
Lamar goes on in three or four pages to deal with that question, and a re-read- 
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ing of the opinion forces me to the conclusion that they were considering that 
question. And I will have to adhere to my impression as to what they had in 
mind when they decided that case; namely, that the Supreme Court, in that 
case, was considering whether or not in a criminal prosecution under the Pure 
Food Law, not initiated by the District Attorney or the Grand Jury, but initiated 
by the Department of Agriculture, had to proceed, had to disclose in the moving 
papers, and follow by proof on the hearing, the fact of the initiation at the 
instance by the Department of Agriculture—that the Supreme Court held that 
it was not necessary, that it need not be done—and that in a criminal case 
where the judgment of the trial court was in favor of the defendant, and where 
the Supreme Court's conclusion was a reversal of the trial court's judgment; 
that is to say, the entry of an order adverse to the rights of the defendant in 
the case proceeded against by indictment.
Now, in this Pure Food Law there are two things that it is sought to prevent: 
the Misbranding of an article; the Adulteration of an article, for consumption, 
the general purpose of the act being to give to—as I take it; I may be wrong 
about it—as I take it, to give to what is called the consumer in our economic 
discussion, the chance to know what he eats, what he buys and eats, providing 
it is the subject of interstate commerce. That is the general purpose of this 
law, and in the reading of the law and in its administration here, and as I take 
it, elsewhere, the judges have had that in mind as the object and purpose of 
the law, as distinguished from the giving to persons of expert knowledge infor- 
mation as to the quality or condition of a food or drug product, a subject of 
interstate commerce.
And, in order to accomplish that, and as one step toward that end—indeed, 
what may be termed the threshold—the act has a definition of the word 
" adulteration"—what is adulteration in the case of drugs, and what is 
adulteration in the case of food. Now, while it is true that the common 
acceptation of the term " adulteration" implies the admixture of something 
inferior with the article, the putting in of a foreign substance into the 
article, this statute goes farther than that, and is not content with the 
ordinary acceptation or the dictionary acceptation of the word " adultera- 
tion." The act goes on: For the purposes of this act, an article shall be deemed 
to be adulterated: In the case of drugs; in the case of confectionery—coming 
to the case of food: " If any substance has been mixed and packed with it so 
as to reduce or lower or injuriously affect its quality or strength." There 
they have in mind rather what the average man has in mind than what the 
dictionary has in mind. And under that section we had here the Pepper case, 
where the pepper put out by an eminent Chicago house, as far as reputation 
goes one of the best in the country, put up what it called pepper, which was 
shipped to the Montana State Penitentiary, and was there so handled or so 
used—how I don't recall—that a complaint was made, and there was an analysis 
made of it, and it was found to contain but 5% pepper. What was added I 
don't recall; but it was under that provision, this adulteration definition, 
adulteration clause, that that case proceeded. Of course, that is not this 
case before us.
" Secondly: If any substance has been substituted wholly or in part for the
article.
" Third: If any valuable constituent of the article has been wholly or in part 
abstracted."
Fifth, If it contain any added poisonous or other deleterious ingredients.
Something added to it—all these provisions are for dealing only with putting 
something in or extracting something from. That is, if it consist of putrid, 
decomposed animal or vegetable matter.   That is not this case.
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4
Coming now down to Clause 4: For the purposes of this act, an article shall 
be deemed adulterated, in the case of food, if it be mixed, colored, powdered, 
coated, or stained in a manner whereby damage or inferiority is concealed.
It is not a case of staining. We have a right to look for the dictionary 
definition of the terms used, here, to determine what Congress had in mind, 
because Congress must have had in mind, when it used these words, the dic- 
tionary definitions. And the dictionary definitions which Mr. Call has read 
clearly show that the oranges are not stained. Nor are they powdered. Nor 
are they coated.    They are not mixed.
He read a definition of "colored." The same definition I looked up last 
night. And the definition of colored, dealing now with the legal propositions, 
not the merits of the case whether these oranges are inferior or not, one of 
the clauses of the definition of coloring fits this case—I forget which one it 
was. I got it out of one of my dictionaries last night—several of them. Let 
me have it, if you please.   I can turn right to it.    [Mr. Call hands Judge paper. ]
The transitive verb "color" is defined by the Century Dictionary, 1911 
edition, as follows: " To give or apply a color to; to change or alter the color 
or hue of."
Now, as I say, Congress had in mind these definitions—the same definition 
is in the edition of 1900—when Congress used the word "colored"; they had 
in mind that they were using the word "stained", and that in using the word 
"
stained" they were using a term which dealt with the use of something that 
was put upon the thing, as the definition here shows. And so with "coated." 
The word "colored" is the only one of these words that lets in the proposition 
of changing the hue or color, changing the color or hue of an article without 
adding something to it, or coating it over, or submerging it in a liquid or some 
other article. This definition of color, to my mind, clearly justifies and clearly 
covers the case where the color, the appearance of an article as to hue, is 
changed by a process other than a natural evolution, without the addition of 
extraneous substances, chemicals or other matter; so that, if an article is 
subjected to a process, a heat process, by reason of such subjection undergoes 
a change, whether that change under such influence is a chemical change in the 
thing itself, caused or brought about, a reaction of some kind brought about by 
the application of heat, whatever it is, it is my judgment this statute fits it.
Now, is not that reasonable, is not that a reasonable construction, having in 
mind the object and purpose of this law 
Passing the question for the present, of whether or not these oranges are 
good or bad, whether somebody is deceived or nobody is deceived, having in 
mind for the present, solely the question of the meaning of the word, what 
Congress had in mind when it selected the word, after having picked "stained" 
for its purpose, " powdered " for its purpose, " coated " for its purpose, " mixed " 
for its purpose, with the meaning of each and all of those terms, putting in, 
in addition to all of them, the word "colored", having in mind the purpose and 
object that Congress had in mind was to forbid the doing of the thing that 
would deceive the person who got the thing at the store, this subject of inter- 
state commerce, can there be any doubt that what they had in mind and what 
they meant to express was that, beyond coating, or staining, or powdering, 
or mixing, in some other way the thing was colored with the effect and pur- 
pose, or with the effect without the purpose, of deception as to its true condi- 
tion, that the statute should have that meaning. I think it is quite clear that 
that is what they must have had in mind. To adopt the illustration used in the 
argument, if, instead of this thing being accomplished by the heating process, 
it had been accomplished by the use of some sort of paint or the extract of
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carrot, or something of that sort, and it was used and the result of its use 
was to give to the orange this color, and in fact it was a perfectly unfit article 
of food, it would be plain that that would be a violation of the law. There 
would be no debate about that. How, then, can it be said, if the subjection 
of the thing to an artificial process, and it is an artificial process—say what 
you may, or argue as we will, it is a process that has been evolved with the 
development of the business for the accomplishment of some purpose in a way 
that nature did not effect its objects—if, by doing it, a color is given to the 
thing which belies the contents of the thing and thereby misleads and deceives 
the person, to prevent whose deception the law was passed, how can it be 
said, on what theory can it be urged that, merely because there has been no 
outside matter added to it, the law does not apply to it 
My conclusion on that is against the contention of the claimants. I think 
the law applies to that case. The dictionary definition, as I read it, requires 
the holding that it does apply to that case.
Now we come down to the proposition presented by the issue of fact, whether 
or not this coloring, there has been a coloring whereby damage or inferiority is 
concealed, having in mind now the court's conclusion as to who Congress had in 
mind in using the word "' concealed." The evidence in this case, in spite of the 
apparent contradictions of witnesses, to my mind has presented a rather plain, 
easy question of fact. It appears that, in this orange district in California, the 
oranges are taken from the trees when the color of the—what did you call 
that—this outside of the orange 
Mr. CALL. We call it the rind.
The COURT.  the rind is green; that the orange is taken to the packing
house and, for a period of, a variable period of from 24 to 48 or 50 hours, is 
subjected to a heat of 94 to 96 degrees; that as a part of the process pans of 
water are placed upon the stoves, by the use of which this temperature is ob- 
tained, the result being the creation of an ultra-humid condition; the effect of 
all of which the witnesses all agree is to bring out a yellow color upon the 
orange. There is also evidence, and I think it is rather in harmony, I think it is 
prudent to say that it is in harmony; that while this process of yellowing the 
rind goes on, there is a change to some extent of the interior of the orange—¦ 
the difference is as to the extent. The claim by the claimants here is that it 
is a substantial change, quite a substantial change, resulting, as the claimants 
claim, and some of their evidence sustains, in an increase of sugar, an increase 
in the total quantity of juice, and a decrease in those elements that are undesir- 
able in the orange as a commercial food product. The evidence of a number 
of witnesses has been introduced as to the condition of the orange after being 
subjected to this process.
The evidence of the witnesses in California who were called to a room in a 
hotel by the United States Government Inspector, and who made an examina- 
tion, was rather unanimous to the effect that the fruit which they sampled was 
immature, unripe fruit. The evidence of witnesses produced by the United 
States here, who examined the oranges after arrival in Chicago, was generally 
to that effect. The evidence of the claimant's witnesses, by the spoken word 
of the claimant's witnesses, was that the fruit was, they all agreed it was edible 
fruit; that it was fit for the purposes of commerce; but the general trend of 
the evidence was to the effect, as it impressed my mind, that the fruit was 
unripe fruit.
Taking the contention of the claimant's witnesses, the evidence of the claim- 
ant's witnesses as to the effect of the sweating process, in so far as it had to 
do with changing the inside of the orange, the food part of the orange, if their
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6
testimony on that point is true, one thing stands out perfectly plain, and that 
is that when they picked the orange it was a green orange because, before the 
sweating process took place, this change which they all testified did take place, 
namely, the further ripening of the interior of the orange, had not taken place, 
and manifestly at the time the orange was picked it could not have been fit for 
market. And a number of these samples have been cut here, and witnesses 
have been heard as to their judgment of these oranges here. Several witnesses 
were heard today, and a number of these witnesses of the claimant expressed 
their judgment as follows: The color is good, for the first of the season; Con- 
sidering that it is the first of the season, it is fairly sweet. The evidence of 
all the witnesses is that, as the season progresses and the oranges hang on the 
trees longer, something takes place which changes the oranges and makes better 
fruit out of them.
My judgment of the evidence of these witnesses here and in California, the 
tests here and the tests there, is that these oranges are picked when it is 
perfectly clear they are not proper, they are not good food products; that this 
process to which they are subjected results in a color that does conceal from 
the consuming public the true condition of the orange, that is to say, that, while 
the expert may know what the light yellow means and what the dark yellow 
means, and the various hues between those two extremes may mean, the 
person Congress had in mind when it passed the law does not know what those 
several hues mean; therefore, that the process results in so coloring the orange 
that the inferiority of the orange is concealed; and there will he an order 
accordingly.
Mr. CALL. If the court please, may I ask for special findings on two or three 
propositions?   Would that be improper 
The COURT. I think not.
Mr. CALL. I would like to have a finding •
The COURT. I think that, under the practice, you are required, at the begin- 
ning of the hearing, to do something in writing, I am not sure about it, if you 
are I will let you do it, and let the record show you did it at the beginning 
because I want this thing settled.
Mr. CALL. It is highly important, it should be settled.
The COURT. I want it settled. My judgment is that the rules require, the 
United States Supreme Court rules require that there be, in the event a matter 
is heard by the court, something at the beginning of the trial dealing with the 
question of the special finding.
Mr. DICKINSON. That stipulation has been filed.
Mr. CALL. The stipulation was filed.
The COURT. Then you have got it.
Mr. CALL. That don't cover it.
The COURT. Whether it is covered or not, I say to you, I will permit you to 
draw it, and I will require the Government to sign it, and I will enter it as at 
the beginning of this trial, because I Want this question determined.
Mr. CALL. Now, the special findings—I only care for two or three.
The COURT. All right.
Mr. CALL. Would I be entitled to a special finding that this process is the 
acceleration of a natural process; that the evidence shows it is the acceleration 
of a natural process 
The COURT. You mean, unqualified, to that extent 
Mr.   CALL. It can be qualified.    Acceleration  of  natural  process,  with  the 
addition of more  than normal heat at that season, and more than normal 
moisture at that season. 
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The COURT. I have given you what I think I can, and you can express it in 
whatever words you desire that I will be willing—that I can sign. The natural 
process in the course of time would result in change of color. My conclusion 
is that you accelerate it with such speed that it gets beyond the inside of the 
orange; that is what I mean to hold.
Mr. CALL. The point I want to get at is, not by the addition of any foreign 
substance.
The COURT. Oh, certainly. Except as artificially created humidity might be 
a foreign substance—you mean chemical 
Mr. DITCHBURNE. I would like a finding that the process improves, without 
saying to what extent, improves the character of the fruit, as well as the 
color.
Another point I wanted to suggest is with regard to the disposition of the 
fruit. I understand that, under the law, that an order will be entered to sell 
the fruit. If there is any waiver we could make that would facilitate the 
sale of the fruit, we would like to make it.
The COURT. What is the provision 
Mr. DICKINSON. If the court please, this being an adulterated case, the prac- 
tice has always been it should be destroyed.
The COURT. I am not going to destroy this fruit.
Mr. DICKINSON. I am not insisting on that in this case. The court has dis- 
cretion, under the act, to either sell or destroy.
The COURT. I will find a discretion, whether I have got it or not.
Mr. DICKINSON. The act specifically gives you that discretion. We are not 
insisting on destruction.    I think some other disposition should be made.
The COURT. If I destroy this fruit I ought to be indicted. I think a good 
deal of this is pretty bad stuff. That is the truth about it. I tasted a number 
of oranges here. Unfortunately for your side of this case, unfortunately, I 
used to be in the grocery business, 30 years ago.
Mr. CALL. I suspected you had been both a farmer and grocer.
The COURT. And I have been in a way keeping abreast of this orange busi- 
ness, and I know something about oranges. I do not mean I have had any 
unhappy experiences in getting bad fruit. 1 haven't, because I have exercised 
discretion in my purchases, but there is no question that a good deal of this 
fruit I have tasted here has been hit pretty hard by this process, it is a far 
removed fruit from what it would have been if left to hang upon the tree. I 
do not mean by that, to the sickening ripened condition. It is far removed 
from what the influences of nature would have done to it and with it.
What do you say you want done 
Mr. CALL. I don't know exactly. I would like an order to have it sold as 
soon as possible,
The COURT. I will let you gentlemen think this matter over tonight and come 
over here tomorrow.
Mr. CALL. I will leave it with Mr. Lamb, and I would like to have it sold 
just as soon as possible.    Sell it at public auction, will you 
Mr. DICKINSON. We can agree to satisfactory terms.
The COURT. The thing to do is—this the 20th of December—the thing to 
do is to sell it inside of the next three or four days. You will get more out of 
it than if it goes over the 25th of December.
Mr. CALL. One day's notice is as good as three or four.
Mr. DICKINSON. We want some sort of provision or assurance that it will 
not be sold again in violation of the act. The Government would suggest that 
a provision be made whereby it will not be sold again in violation of the act.
The COURT. Come in tomorrow morning at 10 o'clock. 
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8
On December 24, 1912, the Lindsay Fruit Association, Lindsay, 
Cal.; the Porterville Citrus Association, Porterville, Cal.; the Stew- 
art Fruit Co., Porterville, Cal.; and the Drake Citrus Association, 
Lindsay, Cal., claimants, having entered their appearances and filed 
their answers and amended answers to the libels and amended libels 
of the United States, formal decrees of condemnation and forfeiture 
were entered, the court finding, specially, among other things—
That all of the fruit contained in the ears of oranges libeled in this case came 
from Tulare County, Cal., and that oranges in said county mature and ripen at 
an earlier date than the oranges in southern California.
That in the various orange districts in Tulare County, as aforesaid, oranges 
mature and ripen on the trees before the skin or rind thereof becomes yellow 
or orange colored.
That the color of the oranges libeled in this case was produced by placing 
the oranges, green in color when picked from the trees, in closed rooms and 
then heating said rooms with oil stoves upon which were placed vessels of 
water, and keeping said oranges in said rooms for four or five days at a tem- 
perature ranging from 90 to 98 degrees, but at an approximately average tem- 
perature of about 94 to 95 degrees.
That the color of the oranges involved in this case was secured by the heat 
and moisture in the manner above stated and without the use of any chemical 
or any foreign matter.
That prior to the use of the coloring process described above, the fruit had 
reached a higher state of development in the process of ripening than appeared 
from the outside of the rind; that the rind was greener and indicated a more 
immature condition than was actually shown by the pulp or edible portion of 
the fruit.
That the color of the rind of said oranges, secured by said process, to the 
people in the trade and business of handling oranges either in producing or 
marketing them, corresponds with the color of the inside of the fruit and that 
color is fairly indicative of the inferior quality.
That by the use of the process described, the oranges involved in this case 
were not coated within the meaning of the law, and the count of the libel herein 
charging that such oranges were coated in violation of the law is not sustained.
That by the use of the process described, the oranges involved in this case 
were not stained within the meaning of the law and the count of the libel herein 
charging that such oranges were stained in violation of the law is not sustained.
That the libel in this case was not brought or filed upon the initiative of 
the United States Attorney in and for the district and division aforesaid, nor 
upon his investigation or information obtained by him; but was brought as a 
result of the Secretary of the Department of Agriculture certifying to the said 
United States Attorney the facts resulting from the investigation and examina- 
tions of the Bureau of Chemistry, or under its supervision or direction, with a 
copy of the results thereof, and the claimant of the above-entitled oranges, 
who was the shipper thereof and from whom the samples were taken from 
which the examinations and investigations were made, was not given any notice 
of the investigation by the Department of Agriculture or the Bureau of Chem- 
istry, nor any opportunity for a hearing before said Department.
The court further found, as a conclusion of law from the foregoing 
special findings of fact, that the product was adulterated in violation
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of the Food and Drugs Act in the following particular, that is to 
say, that when and where said product was so shipped as aforesaid it 
was colored in a manner whereby damage and inferiority were con- 
cealed.
It was further ordered, among other things, that the product should 
be sold by the United States marshal after removing from each 
orange the wrapper bearing the trade-mark " Sunkist Oranges and 
Lemons ", and it was further ordered that the marshal should cause 
a quantity of wrappers to be prepared bearing the statement " Colored 
by sweating ", and should place one of said wrappers around each of 
the oranges, and that said marshal should cause to be placed on the 
outside of each box of the product a printed label bearing the words 
u Colored by sweating", and that the proceeds of the sale, after 
deducting the legal costs and charges, should be paid into the Treas- 
ury of the United States.
W. M. HAYS, 
Acting Secretary of Agriculture.
WASHINGTON, D. C., February 1^ 1913.
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