THE DECISIONS

OF THE

Supreme Court of the United States

AT

OCTOBER TERM, 1918.

If the meaning of the words "meat" Argued April 22, 1918. Decided November and "meat-food products," as used in

41 L. ed. 179, 16 Sup. Ct. Rep. 963;, Schell v. Fauché, 138 U. S. 562, 34 L. ed. 1040, 11 Sup. Ct. Rep. 376; United States v. Finnell, 185 U. S. 236, 46 L. ed. 890, 22 Sup. Ct. Rep. 633.

Neither tallow nor oleo oil is ordinarily used as a food.

McDermott v. Wisconsin, 228 U. S. 115, 57 L. ed. 754, 47 L.R.A. (N.S.) 984, 33 Sup. Ct. Rep. 431, Ann. Cas. 1915A, 39; United States v. Northwestern Fisheries Co. 224 Fed. 274.

Assistant Attorney General Frierson argued the cause and filed a brief for appellee.

establishment; and said inspectors shall mark, stamp, tag, or label as 'inspected and passed' all such products found to be sound, healthful, and wholesome, and which contain no dyes, chemicals, preservatives, or ingredients which render such meat or meat-food products unsound, unhealthful, unwholesome, or unfit for human food; and said inspectors shall label, mark, stamp, or tag as inspected and condemned' all such products found unsound, unhealthful, and unwholesome, or which contain dyes, chemicals, preservatives, or ingredients which render such meat or meat-food products unsound, unhealthful, unwholesome, or unfit for meat-food products shall be destroyed human food, and all such condeinned The Pittsburgh Melting Company filed for food purposes, as herein before proa bill in the district court of the United vided, and the Secretary of Agriculture States for the western district of Pennsyl-lishment which fails to so destroy such may remove inspectors from any estabvania against the Baltimore & Ohio Railcondemned meat-food products: road Company and G. E. Totten, InAnd the act further provides: spector of the Bureau of Animal Industry of the Department of Agriculture, seeking a mandatory injunction requiring the railroad company to receive and carry in interstate and foreign commerce shipments of oil, the manufacture of the Melting Company, and to restrain the government inspector from interfering with the shipments.

Mr. Justice Day delivered the opinion

of the court:

A decree in favor of the complainant was rendered in the district court. 229 Fed. 214. Upon appeal, this decree was reversed by the court of appeals, and the cause remanded to the district court, with directions to dismiss the bill. 146 C. C. A. 620, 232 Fed. 694.

The case arises under the Meat Inspection Act of 1906 (34 Stat. at L. 674, chap. 3913). The act provides an elab orate system of inspection of animals before slaughter, and of carcasses after slaughter, and of meat-food products, with a view to prevent the shipment of impure, unwholesome, and [5] unfit meat and meat-food products in interstate and foreign commerce. The act in part pro

vides:

"That on and after October first, nine

teen hundred and six, no person, firm, or corporation shall transport or offer for state or foreign commerce shall transport transportation, and no carrier of interor receive for transportation from one lumbia, to any other state or territory state or territory or the District of Coor the District of Columbia, or to any place under the jurisdiction of the United [6] States, or to any foreign country, any carcasses or parts thereof, meat, or meat-food products thereof, which have

not been

been inspected, examined, and marked as 'inspected and passed,' in accordance with the terms of this act and with the rules and regulations prescribed by the Secretary of Agriculture:

The facts appearing of record, so far as we deem them necessary to the decision of the case, are:

The Melting Company has long been engaged in rendering or converting animal fats into various products, including the oil which is the subject-matter of this controversy. At one time the company made oleomargarin, but, owing to adverse legislation of the state of Pennsylvania, Government in

"That for the purposes herein before set forth the Secretary of Agriculture shall cause to be made by inspectors ap-desisted from doing so. pointed for that purpose an examination and inspection of all meat-food products prepared for interstate or foreign commerce in any slaughtering, meat-canning, salting, packing, rendering, or similar establishment, and for the purposes of any examination and inspection said inspectors shall have access at all times, by day or night, whether the establishment be operated or not, to every part of said

Company and inspected and marked the spectors were in the works of the Melting products until 1909, when a controversy arose between the company and the government officers as to the purchase of the fats used by the company. Upon refusal to comply with the orders of such officers, inspection was withdrawn. Whether this action was right or not we do not stop to inquire, since the claim

ute.

for relief is based upon the allegation, oil, distasteful and unfit to use in the that complainant's oil is not a meat-food making of food products. Without elabproduct within the meaning of the stat- orating the discussion, we reach the conclusion that this product was clearly a "meat-food product," within the meaning of the statute. It is true that the Melting Company does not sell it as such, and now marks it as "inedible." But that does not change the fact that a main use of such oil is in making edible products. The company has no control over the use of the oil after it is shipped, and the record [8] does not disclose what use is made of a large percentage of its product which was shipped abroad at the time this action was begun.

After inspection was withdrawn the company continued to ship its oil, but did so under the then regulations of the Department of Agriculture concerning the shipment of fat for industrial use, as "inedible," and so marking the receptacle containing the same and making the certificate then required by the Department of Agriculture that it was inedible, and not intended for food purposes. On November 1, 1914, the Department adopted a new regulation requiring a certificate to accompany the shipment of such fats claimed not to be food products, stating that the same "is not capable of being used as food by man, is suitable only for industrial purposes, is not for food purposes, and is of such character or for [7] such a use that denaturing is impracticable." The regulation permits the shipment of oil for industrial uses after it is "denatured," that is, treated with a substance which renders it unfit for food, while still fit for use in industrial purposes. The Melting Company refused to make this certificate, which resulted in the notice to the railroad company to refuse to carry the oil, and brought about this suit to compel the carrier to receive and transport it.

The enactment of the statute was within the power of Congress in order to prevent interstate and foreign shipment of impure or adulterated meat-food products. The statute does not specifically define a meatfood product. In our view the product of the Melting Company is a meat-food product in the sense of the use of those terms in the statute, and, as such, subject to the regulations of the Secretary of Agriculture. It being such meat-food product, the Melting Company could not truthfully claim that it was not capable of being used as food by man, and hence could not make the certificate required.

required the railroad company to receive
the oil for transportation in interstate
and foreign commerce, without inspec-
tion, when labeled "inedible," and accom-
panied by the certificate of the Melting
Company that such oil is inedible, and
not intended for food purposes, and is
of such a character that denaturing is
impossible, or will render the oil unavail-
able for the desired industrial use.
decree is consistent only with the finding
of the district court that the product was
not a meat-food product within the mean-
ing of the statute.

This

The theory of the bill is that the product in question was not within the terms of the act; the district court reached the The district court found that the oil conclusion that this theory was the cormanufactured and shipped by the Melt-rect one, and so rendered a decree which ing Company was not within the terms of the act, as it was not a meat-food product, which is prohibited from shipment without inspection. The reasons for reaching that conclusion are set forth in the opinion of the district judge. 229 Fed. supra. The circuit court of appeals reached the opposite conclusion upon the testimony adduced. 146 C. C. A. supra. An examination of the record satisfies us that the circuit court of appeals reached the right conclusion. The oil here in controversy, the testimony shows, is generally known as "oleo" oil, and is not "tallow" oil, as that term is generally understood by the trade. Both oils are made from the fat of slaughtered beeves. Oleo oil by itself is seldom used as a food. It is, however, largely used in the manufacture of oleomargarin. In fact, it constitutes a large percentage of that product. It is used in cooking for shortening purposes. Made as it is by the Melting Company it has no quality which prevents its use for such food purposes. It is not a tallow

As we have said, we think the record shows, as found by the Circuit Court of Appeals, that the oil made and offered for shipment by the Melting Company was a meat-food product, and hence subject to the regulation of the statute requiring inspection before shipment. The decree requiring such oil to be shipped without inspection was properly reversed. Affirmed. |

The respondent contended that the district court, as a court of a neutral nation, Argued April 17, 1918. Decided November should not exercise its jurisdictional

[20] power between alien belligerents to require the transfer, by process of Note. On alien enemies as litigants-judgment and execution, of funds by see notes to Taylor v. Albion Lumber one alien belligerent to another, an Co. L.R.A.1918B, 189, and Krachanake act which it alleged was prohibited v. Acme Mfg. Co. L.R.A.1918E, 809. alike by the municipal law of both

belligerents. The libellant replied that, 713, 11 Sup. Ct. Rep. 985; Gulf, C. & performance of the contract by respondent, that is, the payment of a debt due, was legal by the law of the place of performance, whether that place be taken to be Algiers or London; that it was immaterial whether it was legal by the Austro-Hungarian law, since Austria-Hungary was not the place of performance; and that the enforcement of legal rights here would not infringe the attitude of impartiality which underlies neutrality. The district court held that it had jurisdiction of the controversy, and that it was within its discretion to determine whether it should exercise the jurisdiction; since both parties were aliens and the cause of action arose and was to be performed abroad. It then dismissed the libel without prejudice, saying: "From the standpoint of this neutral jurisdiction the controlling consideration is that the law of both belligerent countries [Great Britain and Austria-Hungary] forbids a payment by one belligerent subject to his enemy during the continuance of war. This court, in the exercise of jurisdiction founded on comity, may not ignore that state of war and disregard the consequences resulting from it." 224 Fed. 188, 194.

The dismissal by the district court was entered on May 27, 1915. On December 14, 1915, the decree was affirmed by the circuit court of appeals, on the ground that it was within the discretion of the trial court to determine whether to take or to decline jurisdiction (The Belgenland, 114 U. S. 355, 29 L. ed. 152, 5 Sup. Ct. Rep. 860), and that the exercise of this discretion should not be interfered with, since no abuse was shown (143 C. C. A. 412, 229 Fed. 136). On June 12, 1916, an application for leave to file a petition for writ of mandamus to compel the court of appeals to review the [21] exercise of discretion by the district court was denied (241 U. S. 655, 60 L. ed. 1224, 36 Sup. Ct. Rep. 726), and a writ of certiorari was granted by this court (241 U. S. 677, 60 L. ed. 1232, 36 Sup. Ct. Rep. 726). The certiorari and return were filed July 21, 1916. On December 7, 1917, the President issued a proclamation declaring that a state of war exists between the United States and Austria-Hungary. The case was argued here on April 17, 1918,

This court, in the exercise of its appellate jurisdiction, has power not only to correct error in the judgment entered below, but to make such disposition of the case as justice may at this time require. Butler v. Eaton, 141 U. S. 240, 35 L. ed.

S. F. R. Co. v. Dennis, 224 U. S. 503, 506, 56 L. ed. 860, 861, 32 Sup. Ct. Rep. 542. And in determining what justice now requires, the court must consider the changes in fact and in law which have supervened since the decree was entered below. United States v. HamburgAmerikanische Packet fahrt-Actien Gesellschaft, 239 U. S. 466, 475, 478, 60 L. ed. 387, 391, 392, 36 Sup. Ct. Rep. 212; Berry v. Davis, 242 U. S. 468, 61 L. ed. 441, 37 Sup. Ct. Rep. 208; Crozier v. Fried. Krupp Aktiengesellschaft, 224 U. S. 290, 302, 56 L. ed. 771, 775, 32 Sup. Ct. Rep. 488; Jones v. Montague, 194 U. S. 147, 48 L. ed. 913, 24 Sup. Ct. Rep. 611; Dinsmore v. Southern Exp. Co. 183 U. S. 115, 120, 46 L. ed. 111, 113, 22 Sup. Ct. Rep. 45; Mills v. Green, 159 U. S. 651, 40 L. ed. 293, 16 Sup. Ct. Rep. 132; The Rachel v. United States, 6 Cranch, 329, 3 L. ed. 239; United States v. The Peggy, 1 Cranch, 103, 109, 110, 2 L. ed. 49-51. In the case at bar the rule is the more insistent, because in admiralty, cases are tried de novo on appeal. Yeaton v. United States, 5 Cranch, 281, 3 L. ed. 101; Irvine v. The Hesper, 122 U. S. 256, 266, 30 L. ed. 1175, 1178, 7 Sup. Ct. Rep. 1177; Reid v. Fargo, 241 U. S. 544, 60 L. ed. 1156, 36 Sup. Ct. Rep. 712.

Since the certiorari was granted, the relation of the parties to the court has changed radically. Then, as earlier, the proceeding was one between alien belligerents in a court of a neutral nation. Now, it is a suit by one belligerent in a court of a cobelligerent against a common enemy. A suit may be brought in our courts against an alien enemy. McVeigh v. United States, 11 Wall. 259, 267, 20 L. ed. 80, 81. See also Dorsey v. Kyle, 30 Md. 512, 96 Am. Dec. 617. If the libel had been filed under existing circumstances, security for [22] the claim being obtained by attachment, probably no American court would, in the exercise of discretion, dismiss it and thus deprive the libellant not only of its security, but perhaps of all possibility of ever obtaining satisfaction. Under existing circumstances dismissal of the libel is not consistent with the demands of justice.