opening of counsel alone, when there is no other record of the hearing than the statements of counsel. 4. The record in the limited liability proceedings of the Catskill Company, showed that the company in the appraisement of the vessel retained moneys on account of the very services for which the libelants seek a recovery in this suit. Had not that company been allowed to retain those moneys in order to meet this claim, it must have been paid into court. The Catskill Company having thus procured an allowance to them of the $734 as a deduction from the amount to be paid into court on the appraisement of the vessel on account of this very claim, is estopped from asserting that they hold these moneys on any other account, except such allowance by way of costs as might be awarded to the company out of it. The residue of those moneys thus became in fact the primary fund for the payment of the claim In suit. The simplest equity, therefore, requires that the Catskill Company, a codefendant holding the fund primarily applicable to pay this claim, should be decreed to apply it thereto, before Chubb & Son are personally called on to pay it, though the latter remain liable for it if not collected from the Catskill Company. "All the processes and modes, both of practice and decision," in the admiralty courts, says Lowell, J., "are equitable." Richmond v. Copper Co., 2 Low. 315, 316, Fed. Cas. No. 11,800. Such a decision is in strictest accord with the ordinary practice in admiralty to recognize the equitable rights of codefendants. It is the same in principle as the usual form of decree in collision causes, where the damages are divided between two codefendants. In such cases each is individually liable for the whole amount. Yet the right of each defendant to have the other primarily charged with the payment of one-half of the damages for the protection of the former, if collectible, is an absolute right; and a decree that does not recognize and protect that right, is erroneous. The Alabama and The Game cock, 92 U. S. 695, 23 L. Ed. 763. See The Sailor Prince, 1 Ben. 461, Fed. Cas. No. 12,219. And as the Catskill Company defendant holds the money reserved on account of this claim, which it is estopped to deny, the defendant must be primarily charged with payment. Besides this evident equity, other circumstances require that the court should make this decree; namely, that if not made, the net proceeds remaining in the hands of the Catskill Company would immediately become a source of three independent claims, viz.: (1) The claim of Chubb & Son by subrogation for their payment on this decree; (2) the claim of the Sea Insurance Company by reason of its payment in full of a valued policy on the Catskill; and (3) the St. Johns' claimants for one-half the amount paid by the St. Johns on Miller's claim against the two vessels. Each of these claims would involve no small amount of litigation, trouble and expense. This should be avoided by the application of those moneys where they belong, and in payment of the salvage services; and this disposition seems to me to be in the manifest interest of all the parties alike. 5. The objection that the decree gives the whole value of the wreck as compensation for these services, is only apparent and not real. The question of the precise value of the wreck did not arise. There is no doubt from the circumstances proved and admitted, that the value of the wreck was much greater than the net proceeds. I excluded evidence on this point, however, as unnecessary and likely to involve a protracted examination with no useful result, inasmuch as the libelant, as a constructive party, was bound by the result of the sale in admiralty (evidently procured by the Catskill Company for its own benefit) as much as if the sale had been upon the libelant's own demand. Thus the libelant, not being entitled, as I found, to compensation on a quantum meruit, or pay by day's work, was estopped from claiming more than the net proceeds of the sale; while the Catskill Company by its proceedings on the appraisement in limited liability, in which its president had testified that the salvage services were worth from $2.000 to $3,000, and having been allowed to retain all the net proceeds on account of those services, was equally estopped from claiming those services to be less. Further pr of on values was, therefore, unnecessary. 6. No error or mistake as to the facts being suggested, the decree should be as formerly indicated. James E. Carpenter, for appellant Merritt & Chapman Derrick & Wrecking Co. Robt. D. Benedict, for appellant Catskill & N. Y. Steamboat Co. Joseph Larocque, Jr., for appellees. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges. PER CURIAM. From the testimony in the case we are satisfied that the services of the libelant in and about the raising of the wreck of the Catskill were rendered upon an agreement with Chubb & Son that they should be compensated for as salvage services only in proportion to value of remnants salved. We see no reason, upon the testimony, to question the propriety of the amount found by the court ($500). Under the pleadings, and upon the proofs, we think the district court erred in decreeing for this sum against the steamboat company. The decree should have been against Chubb & Son. If they are entitled to recover over against the company by reason of its improperly retaining proceeds of sale, they may do so by proper proceedings. We find upon the evidence in the record that the only services rendered by the libelants for the Catskill & New York Steamboat Company or for its benefit were the towage services rendered at its request after the vessel had been raised. We find no competent evidence in the record as to the value of these services, aside from the admission in the answer of the company that they were worth $100. Although separate controversies against different parties were joined in the same libel, there was no objection, and the cause was tried as though the joinder were proper. The only decree authorized by the evidence was a decree against Chubb & Son for $500, and against the steamboat company for $100. In view of the exaggerated claims made by the libelant, no interest should be allowed as against either respondent. Decree is reversed and cause remanded, with instructions to decree in conformity with this opinion. (113 Fed. 616.) ARBUCKLE et al. v. BLACKBURN, Dairy and Food Com'r of Ohio. (Circuit Court of Appeals. Sixth Circuit. January 7, 1902.) No. 973. 1. EQUITY JURISDICTION-ENJOINING CRIMINAL PROSECUTIONS. A court of equity is without jurisdiction to entertain a bill by which it is sought to have it determine the question whether the complainant has been guilty of the violation of a criminal or penal statute, and, if it is found that the statute has not been violated, to enjoin threatened prosecutions thereunder; nor is such jurisdiction given by the fact that the prosecutions, though unsuccessful, will injuriously affect complainant's property rights.1 2. JURISDICTION OF FEDERAL COURTS-SUIT AGAINST STATE. A suit against an officer of a state, to enjoin him from instituting prosecutions under a statute of the state which is conceded to be valid if properly construed, and with the enforcement of which he is 1 See note at end of case. charged by law, on the ground that he is proceeding under an erroneous construction of the law, which would render it invalid as in violation of the constitution of the United States, is one, in effect, against the state, of which a federal court is denied jurisdiction by the eleventh coustitutional amendment.1 3. PURE FOOD LAWS-CONSTITUTIONALITY-POLICE POWERS OF STATE. The pure-food law of Ohio (2 Bates' Ann. St. §§ 4200-4 to 4200-8) which makes it an offense to manufacture for sale, sell, or offer to sell, within the state, any article of food or drink which is adulterated, within the meaning of the act, and provides that food shall be deemed to be adulterated, among other things, "if it is colored, coated, polished or powdered, whereby damage or inferiority is concealed, or if, by any means, it is made to appear better or of greater value than it really is," but that the act shall not apply to mixtures or compounds recognized as ordinary articles or ingredients of articles of food, "if each and every article sold or offered for sale be distinctly labeled as a mixture or compound, with the name and per cent. of each ingredient therein, and are not injurious to health," is one which it is within the police powers of the state to pass and enforce, and is not unconstitutional, as an interference with the right of congress to regulate interstate commerce, as applied to articles, mixtures, or compounds brought into Ohio from other states, and sold in the original packages. 4. SAME. A law of a state, intended to prevent the sale of adulterated food products, which is constitutional and valid in its language and purpose, is not rendered unconstitutional, so as to authorize a federal court to entertain a suit to enjoin prosecutions thereunder, because the state food commissioner, charged with the duty of enforcing it by instituting criminal prosecutions against those who, in his judgment, have been guilty of violating its provisions, may give it an erroneous construction. 5. INJUNCTION-GROUNDS-THREATS OF PROSECUTION BY PUBLIC OFFICER. It is not ground for an injunction that a state food commissioner, charged by law with the duty of determining such matter in the first instance, is publishing statements that an article of food or drink made by complainant is adulterated, and its sale is in violation of the laws of the state, and threatening prosecutions against those who sell it, whether such statements are correct or erroneous. 6. PURE-FOOD LAWS-OPERATION—ARTICLES MADE BY PATENTED PROCESS. That an article of food or drink is prepared by a process which is or has been protected by letters patent of the United States does not prevent it from coming within the operation of laws passed by a state in the exercise of its police powers. 7. INJUNCTION-CRIMINAL PROSECUTIONS. The fact that a food product, the sale of which is claimed to be in violation of the laws of a state, is widely sold therein, and that many persons may be subject to prosecution, does not give a court of equity jurisdiction to enjoin such prosecutions. In Error to the Circuit Court of the United States for the Southern District of Ohio. This case was brought by Arbuckle Bros. to restrain Joseph E. Blackburn, dairy and food commissioner of Ohio, from prosecuting the vendors of Ariosa, an article sold by the complainants to many dealers in Ohio, because of alleged violation of pure-food laws of the state. The substance of the bill and an amendment thereof is as follows: The general assembly of the state of Ohio passed in the year 1884 an act entitled "An act to provide against the adulteration of food and drugs" (81 Ohio Laws, p. 67), the substance of which is recited. For more than thirty years the complainants and their predecessors had been engaged, 1 Federal jurisdiction of suits against state, see note to Tindall v. Wesley, 13 C. C. A. 165. and still are engaged, in the manufacture and sale throughout the United States, including the state of Ohio, of a certain compound or mixture known as "Ariosa," composed of roasted coffee, compounded and mixed with eggs and sugar, packed in sealed packages, ready for use by the consumer. In order to preserve said product from deterioration, and to retain the original strength and aroma in the coffee, the complainant Arbuckle more than 30 years ago invented, and thereafter patented, adopted, and used, and complainants still use, a certain process whereby the compound or mixture known as "Ariosa" was, and still is, mixed and compounded, and the separate beans thereof coated, and to a large extent hermetically sealed, after roasting, with a compound of sugar and eggs, at first in composition with a quantity of Irish moss, also a wholesome article of food, and for 20 years without such Irish moss. That said letters patent were issued in the year 1868, and, after the expiration of the said patent, trade therein was greatly increased, and still continues to increase, by reason of the increased sale and reputation of said Ariosa. That the good will of said business of naking and vending said Ariosa has become, and now is, wholly dependent upon the reputation and sale of Ariosa, and the good will aforesaid. That for many years the complainants, at great expense, widely advertised the use of the aforesaid process, that the purchasers might be informed of the good qualities of coffee so mixed, compounded, and coated. That for many years prior to 1894 every package of Ariosa was labeled in conspicuous type in the words and figures following: "Ariosa is a compound made from coffee, sugar, and eggs. The coffees are selected especially for their strength, flavor, and superior drinking qualities, are pure, sound coffees, and absolutely free from all the poisonous coloring substances which are now so largely used to improve the appearance of coffee. Coffee, when roasted, is porous, and, unless prevented, loses its best qualities, and absorbs others which are inferior to it. By our process of hermetically sealing the pores of roasted coffee, we secure a threefold object: (1) The retention of the full strength and aroma for any length of time; (2) the prevention, through absorption, of any injurious flavors; (3) the saving to the consumer of the additional expense of eggs incurred when any other coffee is used. Ariosa is self-settling. Choice eggs and pure granulated sugar are the only articles used in hermetically sealing Arbuckle's Ariosa Coffee. Coffee Sugar "Formula. .90278 .00361 ...00361 "Four pounds roasted coffee go as far as five pounds green, as coffee loses 20 per cent. in roasting." That being advised of the character of the preparation known as "Ariosa," and as a result of experience in the use thereof, great numbers of people have preferred and do prefer the use of Ariosa to other brands, mixtures, or compounds of coffee so treated, and the same is sold and purchased in large quantities throughout the United States, and has been so sold and purchased for more than 30 years last past. That the extent and profit of the complainants' business depends upon the good will thereof, and the confidence of consumers that, so long as the same is manufactured and sold by the complainants, it shall be identical in quality and composition with that which, under the same brand and appearance, consumers have theretofore purchased. Certain inferior compounds and mixtures are described and sold in competition with the said Ariosa; said compounds and mixtures being so treated as to conceal defects, or misrepresent the real condition thereof, so as to retain water which would otherwise be eliminated from the coffee in process of roasting, so treated as to increase the weight of roasted coffee, while decreasing its worth for use; mixed and compounded with unhealthful ingredients; none of which processes or methods are used by the complainants, but the process adopted by them is for the purpose of retaining in the coffee the full strength and aroma thereof; preventing the absorption of any injurious or noxious gases or flavors; settling the same when pre pared for use. There is nothing in said process which conceals damage or inferiority in coffee, or makes it appear better or of greater value than it really is. On the contrary, the coffee used in said compound or mixture is of a good quality and undamaged. The articles of food used in the coating thereof are in themselves pure, wholesome, and healthful. Said coating is colorless and transparent. Said process was adopted and used, and still is used, at great expense, for the benefit of the consumer. Complainants have on hand at various points throughout the United States large stocks of the compound and mixture known as "Ariosa,"-in Ohio, about 1,000,000 pounds, more or less, of the value of $100,000; in the United States, 10,000,000 pounds, more or less, of the value of about $1,000,000. Complainants have a large number of agents in Ohio and elsewhere engaged in the sale of Ariosa, and a great number of dealers, to wit, more than 10,000, in Ohio, have in their possession large quantities of Ariosa for sale, and will continue to sell the same in preference to other brands of coffee not similarly prepared, to the profit of complainants, and the increase of their aforesaid business, and of the good will thereof. The respondent herein, Joseph E. Blackburn, dairy and food commissioner as aforesaid, without authority of law, and falsely and erroneously construing the provisions of said statutes above set forth, notwithstanding the fact that the process used in the manufacture of the said compound or mixture known as "Ariosa" is not in violation of the said statute, and that the said statute is not applicable to the premises, and that there is no law of the state of Ohio warranting his acts, and notwithstanding the healthful character of said Ariosa, and that the same is composed of healthful ingredients, each package plainly marked as aforesaid, personally and through his agents has heretofore, and does now, and will, unless restrained by the order of the court, continue to, widely advertise throughout the state that said process used in the manufacture of Ariosa is within the prohibition of, and in violation of, the aforesaid statute. Said Blackburn falsely claims and pretends that the sixth clause of said statute wholly forbids the glazing of the coffee used in the manufacture of Ariosa. Yet in fact said process does not conceal damage or inferiority, or make said coffee appear to be better or of greater value than it really is. That said coating is for the uses and purposes above set forth, and is not used to affect or change the appearance of said coffee; any change in the appearance thereof due to said glazing being incidental and immaterial in the use thereof, and not such as to assimilate said coffee in appearance to other or better grades. Respondent has menaced and threatened with prosecution, and still menaces and threatens to prosecute, dealers in and vendors of Ariosa in the state of Ohio, for a violation of the aforesaid statute, and will, unless restrained by the order of the court, institute a large number of prosecutions upon the wrongful and erroneous charge that the treatment of said Ariosa by the process aforesaid is a violation of the statute aforesaid, and that the same is an adulterated food product, within the said statute. That by reason of the official capacity of the respondent, and the fact that he claims to act under said statute intended to prevent the adulteration of food products, said respondent's statements and threats of prosecution have led and do lead and will hereafter continue to lead dealers in and consumers of said Ariosa throughout the United States, and more particularly in Ohio, to doubt the healthful character and proper preparation of the same, and will deter wholesale and retail dealers and consumers from purchasing, vending, or using the same, greatly decreasing the repute and sale thereof, to the great and irreparable damage of complainants. That on or about the 5th day of February, 1901, said respondent issued a certain circular to dealers and vendors of Ariosa within the state of Ohio, of which the following is a copy: "State of Ohio. "Office of Dairy and Food Commissioner. "Dear Sirs: Replying to your inquiry about the coffee situation, would say that this matter is now under consideration and investigation by the chemists of this department. As soon as conclusions are reached, a circu |