enforce by prosecution the provisions of the statutes of Ohio above cited, the courts of the United States are deprived of jurisdiction by the eleventh amendment to the constitution.

We are now dealing with an officer of a state proceeding under a valid law of the state, and whose error lies in wrongfully construing the statute so as to include the complainant's product. To entertain the bill in this aspect would be to subvert the administration of the criminal law, and deny the right of trial by jury, by substituting a court of equity to inquire into the commission of offenses where it would have no jurisdiction to punish the parties if found guilty. It would be the extension of equity jurisdiction to cases where prosecutions in state courts by the state officers are sought to be enjoined, with a view to determining whether they shall be allowed to proceed under valid. statutes in the courts of law. We think this an enlargement of the jurisdiction opposed to reason and authority. It is claimed, however, that conceding that a court of equity cannot enjoin the prosecution of criminal offenses, as a general thing, the rule is different when property rights are involved; and we are cited to cases holding that equity has jurisdiction to enjoin acts likely to be destructive of property rights, although the acts complained of constitute infractions of the criminal law. This is quite a different proposition from enjoining criminal proceedings alleged to be indirectly destructive of property rights. Many criminal prosecutions may affect the property of the person accused. A property may be greatly injured by the wrongful and unfounded charge that it is used for immoral purposes. Such prosecution may destroy its rental value and prevent its sale, yet a court of equity could not usurp the right of trial which both the state and the accused have in a common-law court before a jury. Every citizen must submit to such accusations, if lawfully made, looking to the vindication of an acquittal and such remedies as the law affords for the recovery of damages. It is often a great hardship to be wrongfully accused of crime, but it is one of the hardships which may result in the execution of the law, against which courts of equity are powerless to relieve. Suess v. Noble (C. C.) 31 Fed. 855; Hemsley v. Myers (C. C.) 45 Fed. 283; Kramer v. Board, 53 N. Y. Super. Ct. 492; Food Co. v. McNeal, 1 Ohio N. P. 266.

It is further claimed that the act is unconstitutional as an interference with the right of congress to regulate interstate commerce; and we are cited to Schollenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. 757, 43 L. Ed. 49, in which a law of that state was held invalid to the extent that it prohibited the introduction of oleomargarine into. the state from another state in original packages. The case was distinguished from the prior case of Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223, in which the supreme court upheld a statute punishing the sale of oleomargarine when colored in imitation of butter. In other words, the supreme court held it to be within the power of the state to require an article of food to be sold for what it really is, and to protect the public from imposition in buying one article of food in the belief that it is another, but beyond the power of the state to prohibit the introduction and sale in original packages of a pure article sold upon its merits. As we read the Ohio Stat

ute, it does not undertake to prohibit the introduction and sale of a pure article of food, sold for what it really is, but the coloring, coating, or polishing of an article, whereby damage or inferiority is concealed; the act providing in this connection that it shall not apply to mixtures or compounds recognized as ordinary articles of food, if every package sold or offered for sale be distinctly labeled as a mixture or compound, with the name and per cent. of each ingredient therein, and is not injurious to health. The enactment of such a law is clearly within the police powers of the state, upon the principles enunciated in the case of Plumley v. Massachusetts, supra, for the protection of purchasers of food from imposition by the concealment of damage or inferiority in food. As in the Oleomargarine Case, the article is thus required to be sold for what it really is, without misleading the purchaser to buy it for what it is not. In the Plumley Case, Mr. Justice Harlan, speaking for the court, said:

"If there be any subject over which it would seem the states ought to have plenary control, and the power to legislate. which it ought not to be supposed was intended to be surrendered to the general government, it is the protection of the people against fraud and deception in the sale of food products. Such législation may, indeed, indirectly or incidentally affect trade in such products transported from one state to another state. But that circumstance does not show that laws of the character alluded to are inconsistent with the power of congress to regulate commerce among the states."

But it is argued that coffee treated so as to make Ariosa is a pure article of food, and a compound labeled as required by the statute. Again, the act is argued to be unconstitutional because of the construction put upon it by the food commissioner, and this "construction" is his contention that Ariosa is coffee so coated as to conceal damage or inferiority, and that it is not a compound or mixture within the meaning of the statute. These are the very questions the decision of which the statute vests in the discretion of the commissioner, as a preliminary matter, in determining to institute prosecutions in the enforcement of the law which he is charged to execute, leaving the guilt or innocence of the party charged to be decided by the proper tribunals when prosecutions are instituted under the law. The constitutionality of the act is to be determined by its language and purpose, and not by the alleged wrongful institution of prosecutions thereunder against those guiltless of a violation of its provisions. There are cases, as insisted by the learned counsel for the complainant, where the operation of a statute constitutional in itself, as administered by the state authorities, may deprive the citizens of rights secured by the constitution of the United States, where a federal court will interfere by injunction to secure to persons aggrieved the benefits of the federal constitution; but they are not cases where a court of equity must draw to itself the administration of the criminal law of a state, sought to be enforced by the officers of the state, and thus determine whether crimes may be prosecuted under valid enactments, because a party may be able to satisfy the court that he is in fact innocent of the charge. Such a construction of the powers of a court of equity would result in a confusion of jurisdiction, and an embarrassment of the ordinary processes of the law without precedent. If this bill can be entertained, it remits to the federal courts the supervision of the pure-food laws of the states, and

their dockets will be crowded with cases of those claiming that their particular articles of food and drink are not within the terms of the law.

Nor do we think that there is ground for injunction in the allegations of the bill that the food commissioner is publishing the fact that the product of the complainant is within the prohibition of the law. If this publication is made to those dealing in the article, it would be within the duty of the commissioner, in advising of contemplated prosecutions. If such publications are libelous, the law affords other means of redress. Francis v. Flinn, 118 U. S. 385, 6 Sup. Ct. 1148, 30 L. Ed.

165.

The fact that complainants produced Ariosa under a process protected by letters patent of the United States does not prevent it from coming within the operation of laws passed in the exercise of the police power of the state. The enactment of laws for the protection of health and to prevent imposition in the sale of food products is within this power, and the fact that the process by which it is made is protected by a patent, while it may prevent others from using it during the life of the patent, does not deprive the state of this power of regulation for the general good. Patterson v. Kentucky, 97 Ū. S. 501, 24 L. Ed. 1115; Palmer v. State, 39 Ohio St. 236, 48 Am. Rep. 429.

The fact that complainants' product is widely sold in Ohio, and many persons may be subject to prosecution, does not enlarge the jurisdiction of a court of equity to interfere by injunction to control prosecutions for alleged violation of the laws of the state.

We think this case comes within the principles settled by the supreme court in the cases above cited, and the circuit court did not err in dismissing the bill.

NOTE.

Restraining Criminal Proceedings.

1. Criminal Prosecutions and Arrests for Crimes.

[a] Injunction will not lie to restrain criminal proceedings.

-(U. S. C. C., Iowa, 1887) Suess v. Noble, 31 Fed. 855;

(Ark. Sup. 1879) Medical & Surgical Inst. v. City of Hot Springs, 34 Ark. 559; (1882) Waters Peirce Oil Co. v. City of Little Rock, 39 Ark. 412; (1884) Sewing Machine Co. v. Fletcher, 44 Ark. 139;

(D. C. 1888) Washington & G. R. Co. v. District of Columbia, 6 Mackey, 570;

(Ga. Sup. 1878) Phillips v. Town of Stone Mountain, 61 Ga. 386; (1881) Garrison v. City of Atlanta, 68 Ga. 64;

(Tex. Sup. 1888) Chisholm v. Adams, 10 S. W. 336, 71 Tex. 678.

[b] Equity will not enjoin prosecutions by a city of a criminal or quasi criminal character for violations of its ordinances.

-(Ark. Sup. 1879) Taylor v. City of Pine Bluff, 34 Ark. 603;

(Ill. Sup. 1875) Yates v. Village of Batavia, 79 Ill. 500;

(Mo. App. 1888) Kansas City Cable Ry. Co. v. City of Kansas, 29 Mo. App. 89.

[c] (U. S. Sup., Ala., 1899) A federal court of equity has no power to enjoin the institution or prosecution of indictments or other criminal proceedings in a state court.-Fitts v. McGhee, 19 Sup. Ct. 269, 172 U. S. 516, 43 L. Ed. 535.

[d] (U. S. Sup., Va., 1898) A court of equity, although having jurisdiction over person and property in a case pending before it, is not thereby vested with jurisdiction over crimes committed in dealing with such property by a party before the civil suit was brought, and cannot restrain, by injune

tion, proceedings regularly brought in a criminal court having jurisdiction of the crime and of the accused.-Harkrader v. Wadley, 19 Sup. Ct. 119, 172 U. S. 148, 43 L. Ed. 399.

[e] (U. S. C. C., Cal., 1896) A suit to restrain the enforcement by the California railroad commission of rates fixed by it is not a suit to restrain criminal prosecutions.-Southern Pac. Co. v. Board of Railroad Com'rs of California, 78 F. 236.

[f] (U. S. C. C., Kan., 1891) Complainants' bill for injunction, filed in the circuit court of the United States, alleged that they were the agents of liquor dealers living in another state, and, as such, were engaged in selling in Kansas liquors in the original packages in which they were imported by their principals; that by civil and criminal proceedings under the prohibitory law of Kansas defendants were seeking to break up and destroy complainants' business, in violation of their rights under the federal constitution; and it prayed that they be restrained from further proceedings in the premises. Held, that the proceedings instituted by defendants being criminal in their nature, a court of equity has no jurisdiction to restrain them by injunction.-Hemsley v. Myers, 45 Fed. 283; Tuchman v. Welch, Id.; Yount v. Same, Id.; Bottling Co. v. Same, Id.; Wollstein v. Same, Id.; Samuels v. Irish, Id.; Bell v. Blair, Id.; Schutt v. Nevison, Id.; Story v. Same, Id.; Marshall v. Same, Id.

[g] (U. S. C. C., La., 1884) A bill for an injunction to prevent interference by criminal procedure will lie when the parties sought to be enjoined have, as plaintiffs, submitted themselves to the court by a bill in equity as to the matter or right affected by or involved in the criminal procedure.-Spink v. Francis, 19 Fed. 670.

[h] (U. S. C. C., La., 1884) A court of equity can interfere by an order with a party conducting a criminal procedure only when the parties sought to be enjoined have, as plaintiffs, submitted themselves to the court by a bill of equity as to the matter or right affected by or involved in the criminal procedure; but the pursuer and pursued must be identical in the case,—i. e. the defendant in the bill and in the indictment must be the same person, and the person preferring the bill and the criminal charge must also be the same. As to parties and controversy, the inquiry is analogous to that in regard to the plea of lis pendens.-Spink v. Francis, 20 Fed. 567.

[i] (U. S. C. C., Va., 1895) Equity may restrain criminal as well as civil proceedings at law, where they are instituted by plaintiffs in the equity court in aid of the same right sought to be enforced in that court.-Wadley v. Blount, 65 Fed. 667.

[j] (Ala. Sup. 1887) Where city authorities threaten to arrest and fine any person engaged in constructing an addition to a depot, whose erection is alleged to violate the ordinance as to building within the fire limits, equity will protect the railroad company against the enforcement of such ordinance, asserted to be inapplicable.-City Council of Montgomery v. Louisville & N. R. Co., 4 South. 626, 84 Ala. 127.

[k] (Ga. Sup.) Courts of equity have no jurisdiction to prevent by injunction the institution of bona fide prosecutions for criminal offenses, whether the same be violations of state statutes or municipal ordinances.— (1875) Gault v. Wallis, 53 Ga. 675; (1898) Paulk v. City of Sycamore, 30 S. E. 417, 104 Ga. 24, 41 L. R. A. 772, 69 Am. St. Rep. 128.

[1] (Ga. Sup. 1900) A court of equity will not enjoin the institution of a prosecution against defendant for violation of a penal ordinance requiring all agents and representatives of nonresident steam laundries doing business in defendant city to pay a certain license, and providing a fine for failure to comply therewith.-City of Bainbridge v. Reynolds, 36 S. E. 935, 111 Ga. 758.

[m] (La. Sup.) The civil district courts cannot restrain the execution of a criminal statute.-(1896) State v. Theard, 21 South. 28, 48 La. Ann. 1448; (1897) Lecourt v. Gaster, 21 South. 646, 49 La. Ann. 487.

[n] (Miss. Sup. 1893) Injunction will not lie at the instance of a tenant to restrain a criminal prosecution by a landlord for alleged trespass.-Crighto v. Dahmer, 13 South. 237, 70 Miss. 602, 21 L. R. A. 84, 35 Am. St. Rep. 666.

[o] (N. Y. App. 1876) The general rule is that the court will not restrain a prosecution at law when the question is the same at law and in equity.Wallack v. Society, 67 N. Y. 23.

[p] (N. Y. App. 1878) One who is threatened by an agent of the Society for the Prevention of Cruelty to Animals with arrest cannot maintain an equitable action to enjoin the arrest, on the ground that it would damage his business, for instance, the slaughtering of hogs by a certain method. Whether a person has violated said statute cannot be determined in such action.-Davis v. Society, 75 N. Y. 362, affirming (Com. Pl. 1875) 6 Daly, 81. [q] (N. Y. Sup. 1888) Plaintiffs were granted the right by ordinance to use sand on their tracks in a city street certain months of the year. The police department of the city issued an order directing the police officers to prevent the use of sand on the tracks during the other months of the year and to arrest persons who might be engaged in its use during such months. Held, that an injunction would not be granted to restrain enforcement of this order, since, it not being necessary to use sand on the tracks at all times, the granting of such injunction would leave to the discretion of the railroad officials as to when sand should be used.-Dry Dock, E. B. & B. R. Co. v. City of New York, 47 Hun, 221.

[r] (N. Y. Super. Ct. 1882) Civ. Code, § 264, providing that "it is a sufficient defense to a prosecution for servile labor on the first day of the week that the defendant uniformly keeps another day of the week as holy time and does not labor on that day, and that the labor complained of was done in such a manner as not to interrupt or disturb other persons in observing the first day of the week as holy time," does not justify the granting of an injunction to prevent the police from arresting plaintiff or from interfering with his ordinary business on Sunday because, being of the Jewish faith, he uniformly keeps Saturday as holy time.-Anonymous, 12 Abb. N. C. 455; Id. 458.

[s] (N. Y. Super. Ct. 1886) The court will not enjoin the police from interfering with A.'s business on the ground that he is so conducting it as to violate the criminal laws.-Kramer v. Police Department, 53 N. Y. Super. Ct. 492.

[t] (Ohio Super. Ct. Cin. 1895) Injunction will not issue to restrain officers from threatening merchants that if they continue to sell complainant's preparation they will be prosecuted, under a valid law, for selling adulterated food.-Food Co. v. McNeal, 1 Ohio N. P. 266.

[u] (Pa. Com. Pl. 1876) A court of equity has no jurisdiction to restrain a chief of police and his officers from arresting the servants of complainant, a livery stable keeper, for an alleged violation of an ordinance requiring hackney carriages to be numbered and their drivers to wear badges with corresponding numbers.-McLaughlin v. Jones, 3 Wkly. Notes Cas. 203. [v] (Tex. Civ. App. 1897) A writ will not lie to prohibit a tax collector from demanding of a druggist an occupation tax as a traveling person selling patent or other medicines, nor to restrain him from instituting a criminal prosecution against such person for pursuing such occupation without paying such tax.-Yellowstone Kit v. Wood, 43 S. W. 1068, 18 Tex. Civ. App. 683.

2. Existence of Other Remedy.

[a] (Ill. App. 1888) Injunction will not lie to restrain a prosecution, where the party has a remedy by appeal.-Skakel v. Roche, 27 Ill. App. 423.

[b] (Ind. Sup. 1874) A party cannot enjoin the collection of a fine and costs, assessed for the violation of a city ordinance, on the ground that there was no offense charged or cause of action filed before the mayor; the remedy in such case being by appeal.-Schwab v. City of Madison, 49 Ind. 329.

[c] (N. Y. Sup.) The proper remedy for an illegal arrest is by habeas corpus or an action for damages, and not by injunction.-(1882) Murphy v. Board, 11 Abb. N. C. 337, 63 How. Prac. 396; (1884) Fincke v. Commissioners, 66 How. Prac. 318.

[d] (N. Y. Com. Pl. 1874) An injunction to prevent the agents of the Society for the Prevention of Cruelty to Animals from arresting complainants