DAYTON, District Judge
(after stating the facts as above). The defenses relied on are: (a) That the food and drugs act (Act June 30, 1906, c. 3915, 31- Staff 768 [U. S. Comp. St. Supp. 1907, p. 928]) does not require a drug product to be labeled, nor, if unlabeled, to bear any statement respecting the amount of alcohol contained, but, if labeled, the label must contain the statement. The casks in controversy were not labeled, therefore not subject to the provisions of the act. (b) The libel is predicated upon an examination of specimens under section 4 of the act; but the Secretary of Agriculture did not cause any notice to be given to the party from whom the samples were obtained, no.r afford such party any opportunity to be heard, (c) The goods seized were, at the time of seizure, no longer in the “package” or condition in which the importer received them, but had become merged witli the property of the state, and were therefore not under the operation of the interstate commerce clause of the Constitution or of any law sub[452]*452sisting by virtue of such clause. The “original package” in this case was the car which was delivered upon the premises and into the possession of the defendant, and which had been entirely emptied of,its ■ contents before seizure of the 6 casks, taken upon the warrant issued in this case, (d) Seizure of 6 casks upon a warrant for 65 casks was not authorized or legal, (e) In no event is a food or drug product subject to libel proceedings under section 10 of this act unless it is being or has been transported into another state for the purpose of salq. In this case the product seized was transported in bulk for the distinct purpose of being “finished,” or, to use a nontechnical term, of being bottled and labeled; and it is admitted that, when i-eady for sale, the salable package bore a label containing a lawful statement respecting content of alcohol.
In support of the first ground of defense, it is contended that “the courts of the United States in determining what constitutes an offense against the United States.must resort to the statutes of the United States enacted in pursuance of the Constitution.” In re Kollock, 165 U. S. 526, 17 Sup. Ct. 444, 41 L. Ed. 813. That “regulations' prescribed by the President and by the heads of the departments, under authority granted by Congress, may be regulations prescribed by law, so as lawfully to support acts done under them and in accordance with them, and may thus have, in a proper sense, the force of law; but it does not follow that a thing’ required by them is a thing so required by law as to make the neglect to do the thing a criminal offense in a citizen, where the statute does not distinctly make the neglect in question a criminal offense.” U. S. v. Eaton, 144 U. S. 688, 12 Sup. Ct. 767, 36 L. Ed. 591. And that, therefore, this court, in construing this statute, cannot be influenced by any departmental rules or regulations prescribed for its enforcement, but can look alone to the' terms of the statute, penal in character, to ascertain whether or not the owner of these casks of liquid can be held either liable to criminal prosecution or to confiscation of its property. In construing the terms of the statute, it is further insisted that a criminal offense cannot be created by implication, but only by direct and positive terms. Granting 'at once these several propositions to be sound, the crucial question is, does the food and drugs act in express terms require drug products to be labeled? The argument of counsel, that Congress intended by this act, not to correct the evil of failing to label, but of falsely and fraudulently labeling, and therefore drug products, even when put up in packages suitable for retailing, but which bear no labels, are not within the misbranding provisions of the act, is ingenious but untenable, and wholly refuted by the express terms of the act. The first section of it makes it “unlawful for any person to manufacture within any territory or the District of Columbia any article of food or drug which is adulterated or misbranded” within the meaning of the act. This is an unqualified prohibition against the manufacture itself, so far as the Congress had the power to prohibit; that is, in these parts of the country over which it had full control and jurisdiction. Section 2 provides that:
“The introduction into any state or territory or the District of Columbia from any other state or territory or the District of Columbia or from any [453]*453foreign country, or alnymont to any foreign country, of any article of food or drugs which is adulterated or misbranded, within the meaning of this act, is hereby prohibited.”
Here was the exercise, to the fullest limit, by Congress of its power, under the interstate commerce clause of the Constitution, to prevent adulterated and misbranded! food and drug products from being placed upon the markets and sold as pure and genuine ones in the several states by expressly banishing them from lawful interstate commerce. In view of these express provisions, I cannot hold with counsel that die evil intended by Congress to be met was simply the false and deceptive branding of drug products and not the sale thereof. The question therefore, recurs to whether this act in such direct terms requires the labeling of drug products offered for sale' in the original package as to subject one failing to do so to a criminal prosecution or to confiscation of the property. The two sections from which 1 have quoted expressly provide for criminal prosecution and penalties for their violation. Sections 6, 7, and 8 of this act define the terms “drug” and “food” as used; what articles of each shall be deemed adulterated, and what articles of each shall be deemed misbranded. It is provided that:
“The term ‘misbranded’ as used herein, shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the package or label of which shall bear any statement, design, or device regarding such article, or the Ingredients or substances contained therein which shall be false or misleading in any particular.”
And further, “if the package fail to bear a statement on the label, of the quantity or proportion of any alcohol,” and other specified substances contained therein. Counsel insist that these provisions do not directly require a label, and that in order to warrant prosecution the provision should have been in effect:
‘*I’’or the purposes of this act an article shall also be deemed to be mis-branded: In case of drugs * * * if the package or oilier container thereof fail to bear a label.”
I think this is too techincal, even under the strict rules governing; the construction of criminal statutes. Suppose the provision had read “if the package fail to bear a statement on a label of the quantity of alcohol,” etc., would it not as well meet the view of counsel? A label is defined by Webster to be “a slip of paper, parchment, &c., affixed to. anything, and indicating the contents, ownership, destination,” etc. The use of the word itself, therefore, carries the meaning that it is a descriptive paper affixed to the package, and in express terms the act requires the descriptive matter borne by the paper to include the statement of how7 much alcohol, etc... is contained in the package. It does not seem to me that the ruling in the case of United States v. Twenty Boxes of Corn Whisky, 133 Fed. 910, 67 C. C. A. 214, can he made at all applicable here. There an entirely different character of statute was being construed.
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DAYTON, District Judge
(after stating the facts as above). The defenses relied on are: (a) That the food and drugs act (Act June 30, 1906, c. 3915, 31- Staff 768 [U. S. Comp. St. Supp. 1907, p. 928]) does not require a drug product to be labeled, nor, if unlabeled, to bear any statement respecting the amount of alcohol contained, but, if labeled, the label must contain the statement. The casks in controversy were not labeled, therefore not subject to the provisions of the act. (b) The libel is predicated upon an examination of specimens under section 4 of the act; but the Secretary of Agriculture did not cause any notice to be given to the party from whom the samples were obtained, no.r afford such party any opportunity to be heard, (c) The goods seized were, at the time of seizure, no longer in the “package” or condition in which the importer received them, but had become merged witli the property of the state, and were therefore not under the operation of the interstate commerce clause of the Constitution or of any law sub[452]*452sisting by virtue of such clause. The “original package” in this case was the car which was delivered upon the premises and into the possession of the defendant, and which had been entirely emptied of,its ■ contents before seizure of the 6 casks, taken upon the warrant issued in this case, (d) Seizure of 6 casks upon a warrant for 65 casks was not authorized or legal, (e) In no event is a food or drug product subject to libel proceedings under section 10 of this act unless it is being or has been transported into another state for the purpose of salq. In this case the product seized was transported in bulk for the distinct purpose of being “finished,” or, to use a nontechnical term, of being bottled and labeled; and it is admitted that, when i-eady for sale, the salable package bore a label containing a lawful statement respecting content of alcohol.
In support of the first ground of defense, it is contended that “the courts of the United States in determining what constitutes an offense against the United States.must resort to the statutes of the United States enacted in pursuance of the Constitution.” In re Kollock, 165 U. S. 526, 17 Sup. Ct. 444, 41 L. Ed. 813. That “regulations' prescribed by the President and by the heads of the departments, under authority granted by Congress, may be regulations prescribed by law, so as lawfully to support acts done under them and in accordance with them, and may thus have, in a proper sense, the force of law; but it does not follow that a thing’ required by them is a thing so required by law as to make the neglect to do the thing a criminal offense in a citizen, where the statute does not distinctly make the neglect in question a criminal offense.” U. S. v. Eaton, 144 U. S. 688, 12 Sup. Ct. 767, 36 L. Ed. 591. And that, therefore, this court, in construing this statute, cannot be influenced by any departmental rules or regulations prescribed for its enforcement, but can look alone to the' terms of the statute, penal in character, to ascertain whether or not the owner of these casks of liquid can be held either liable to criminal prosecution or to confiscation of its property. In construing the terms of the statute, it is further insisted that a criminal offense cannot be created by implication, but only by direct and positive terms. Granting 'at once these several propositions to be sound, the crucial question is, does the food and drugs act in express terms require drug products to be labeled? The argument of counsel, that Congress intended by this act, not to correct the evil of failing to label, but of falsely and fraudulently labeling, and therefore drug products, even when put up in packages suitable for retailing, but which bear no labels, are not within the misbranding provisions of the act, is ingenious but untenable, and wholly refuted by the express terms of the act. The first section of it makes it “unlawful for any person to manufacture within any territory or the District of Columbia any article of food or drug which is adulterated or misbranded” within the meaning of the act. This is an unqualified prohibition against the manufacture itself, so far as the Congress had the power to prohibit; that is, in these parts of the country over which it had full control and jurisdiction. Section 2 provides that:
“The introduction into any state or territory or the District of Columbia from any other state or territory or the District of Columbia or from any [453]*453foreign country, or alnymont to any foreign country, of any article of food or drugs which is adulterated or misbranded, within the meaning of this act, is hereby prohibited.”
Here was the exercise, to the fullest limit, by Congress of its power, under the interstate commerce clause of the Constitution, to prevent adulterated and misbranded! food and drug products from being placed upon the markets and sold as pure and genuine ones in the several states by expressly banishing them from lawful interstate commerce. In view of these express provisions, I cannot hold with counsel that die evil intended by Congress to be met was simply the false and deceptive branding of drug products and not the sale thereof. The question therefore, recurs to whether this act in such direct terms requires the labeling of drug products offered for sale' in the original package as to subject one failing to do so to a criminal prosecution or to confiscation of the property. The two sections from which 1 have quoted expressly provide for criminal prosecution and penalties for their violation. Sections 6, 7, and 8 of this act define the terms “drug” and “food” as used; what articles of each shall be deemed adulterated, and what articles of each shall be deemed misbranded. It is provided that:
“The term ‘misbranded’ as used herein, shall apply to all drugs, or articles of food, or articles which enter into the composition of food, the package or label of which shall bear any statement, design, or device regarding such article, or the Ingredients or substances contained therein which shall be false or misleading in any particular.”
And further, “if the package fail to bear a statement on the label, of the quantity or proportion of any alcohol,” and other specified substances contained therein. Counsel insist that these provisions do not directly require a label, and that in order to warrant prosecution the provision should have been in effect:
‘*I’’or the purposes of this act an article shall also be deemed to be mis-branded: In case of drugs * * * if the package or oilier container thereof fail to bear a label.”
I think this is too techincal, even under the strict rules governing; the construction of criminal statutes. Suppose the provision had read “if the package fail to bear a statement on a label of the quantity of alcohol,” etc., would it not as well meet the view of counsel? A label is defined by Webster to be “a slip of paper, parchment, &c., affixed to. anything, and indicating the contents, ownership, destination,” etc. The use of the word itself, therefore, carries the meaning that it is a descriptive paper affixed to the package, and in express terms the act requires the descriptive matter borne by the paper to include the statement of how7 much alcohol, etc... is contained in the package. It does not seem to me that the ruling in the case of United States v. Twenty Boxes of Corn Whisky, 133 Fed. 910, 67 C. C. A. 214, can he made at all applicable here. There an entirely different character of statute was being construed. It did not attempt to bar from interstate commerce the article unbranded, but only to bar the shipment, “under any other than the proper name or brand known to the trade,” of spirituous or fermented liquors or wines. This statute was unquestionably passed to prevent fraud upon the revenue,' and not as a regulation of [454]*454interstate commerce. It follows that the first ground of defense must be unavailing.
The second, to the effect that the Secretary of Agriculture did not cause notice to be given the owner ánd allow hearing before seizure, has been directly decided in United States v. Fifty Barrels of Whisky (D. C.) 165 Fed. 966, where Judge Morrií?, in overruling an exception to the libel based on this ground, says:
“Such seizures are not unusual, and it is plain tliat, if the harshness were conceded, it would not justify the court in reading into the law a limitation which it does not contain. The act provides two different proceedings to enforce its provisions. One is by criminal proceeding in personam; the other is by a proceeding .in rem, by seizure of the offending thing itself, and forfeiture if found to be violative of the law. In this latter case there is no provision for a preliminary examination.”
With this construction of the.statute ,1 am in entire accord, and defense on this ground must be overruled.
Nor do I think sound the third ground of defense, to the effect that in this case the car arriving at Wheeling and shunted into the private side track of respondent was the “original package” and not the several casks in which the liquid was contained. The term “original package,” as employed by law, admits of no precise definition applicable to all. Generally, it is said to be a parcel, bundle, bale, box, or case made up of or “packed” with some commodity with a view to its safety and convenient handling and transportation. It does not necessarily mean that goods shall be inclosed in a tight or sealed receptacle. It relates wholly to goods as prepared for transportation, and has no necessary reference whatever to the package originally prepared or put up by the manufacturer. Indeed, the idea of the “original package” may well be made to cover certain forms of property which do not ordinarily admit of being packed or incased in any other manner than in the car or vessel in which they are transported, such, for instance, as steel beams, threshing machines, and other bulky articles. Cook v. Marshall County, 119 Iowa, 384, 93 N. W. 372, 373, 104 Am. St. Rep. 283. This definition has been quoted as being the most favorable I have found to the contention of respondent in this case. Many others have been carefully collated in 6 Words & Phrases, 5059, and the term has been fully discussed in Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 224. Without prolonging discussion, it seems to me clear that in this case the cask is the “original package,” for the very simple reason that the car was wholly incompetent to “package” the liquid itself; the cask was a complete entity of itself, not connected or bound up with any other article, but capable of and in fact containing some 50 gallons <5f this liquid, an amount capable thereby of being safely and conveniently handled and transported ; each cask was marked to the consignee, and if separated from the car was capable of shipment independent thereof without either loss or inconvenience; the casks were shipped independently from Detroit to Sandusky by vessel, and then transferred to the car for shipment to Wheeling, their final destination. And holding the cask to be the “original package,” it becomes unnecessary to consider to any extent the fourth ground of defense, that a seizure of 6 casks under a [455]*455warrant for 65 casks was unlawful. The warrant being for the whole shipment, the government, if it had the right of seizure at all, could take the whole or any part it could find in the original packages.
This brings us to the fifth and last defense relied upon, to the effect that this liquid extract wTas not .shipped in these casks for the purpose of sale thus in bulk, but was so shipped to the owner thereof from one state to another for the purpose of bottling into small packages suitable for sale, and when so bottled it is admitted the bottles were labeled so as to express the content o f alcohol and comply with the requirements of the act. A careful analysis of the provisions of the act has convinced me that this defense must be sustained. The language of the statute is:
“Any person who shall ship or deliver for shipment from any state or territory or the District of Columbia to any other state or territory or the District of Columbia, or to a foreign country, or who shall receive in any stale or territory or the District of Columbia from any other state or Territory or the District of Columbia, or foreign country, and having so received shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person, any such article so adulterated or mis-branded within the meaning of this act, or any person who shall sell or offer for sale in the District of Columbia or the territories of the United States any such adulterated or misbranded foods or drugs, or export or offer to export the same to any foreign country, shall be guilty of a misdemeanor.” Section 10.
Again:
“Any article of food, drug, or liquor that is adulterated or misbranded within the meaning of this act, and is being transported from one stale, territory, district, or insular possession of the United States, or if it be imported from a foreign country for sale, or if it is intended for export to a foreign country, shall be liable to lie proceeded against in any District Court of the United States within the district vliero llie same is found, and seized for confiscation by a process of libel for condemnation.”
These provisions must be construed strictly in favor of the accused. So construed, I am persuaded they must be held to mean that any one owning an adulterated or misbranded food or drug product who ships to another in another state such product is guilty; that any one having received such product so shipped from another state by the owner or seller thereof, who shall, in the state where so received, deliver or offer to deliver such product to another in the original package, for pay or otherwise, shall be guilty; that any person who has received such product from any other state, who sells or offers it for sale, whether in the original package or not, in the District of Columbia or the territories, is liable. Congress had no power except in the District of Columbia and the territories to prohibit one from manufacturing adulterated food and drug products; it had no power to pre-' vent one anywhere from personally consuming such products; it did have power to suppress the manufacture, of such in the District of Columbia and the territories, and by this act has clone so; it had the further power to restrict in the course of commerce the transportation from state to'state of such products, and it has done so; it had power, after such product was received from another state, to restrict its sale in the original package, and it has done so. It did not, in my judgment, have power to restrict one from manufacturing in one state such [456]*456.product and removing it from that state to another for the purpose of personal use and not sale, or for use in connection with the manufacture of other articles to' be legally branded when so manufactured. The government’s inspector was entirely justified in concluding thfit this shipment in these original package casks was a violation of this act, because they were consigned for shipment by Parke, Davis & Co. at Detroit, Mich., to the Knowlton Danderine Company at Wheeling, W., Va., and they were not branded. It was reasonably to be assumed that Parke, Davis & Co. were the owners and sellers, while the Knowlton Danderine Company was the purchaser. Prom the agreed statement <of facts, however, it is apparent that the formula of the preparation is a trade secret; that Parke, Davis & Co. were not the owners of this formula, but only the manufacturing agents, under contract, of the owner, the Danderine Company, and only acted as agent for the owner iin directing such shipment to the owner itself of its own property; tthat such owner did not, “having so received” such product, either “deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person,” the same;. nor did it “sell or offer for sale in the District of Columbia or the territories of the United States.”
It seems clear that the transportation of this liquid was solely to the ¡bottles made in Wheeling instead of the transportation of the bottles from Wheeling to the liquid manufactured in Detroit, and that it was so bottled in Wheeling and properly branded before any sale or disposition of it was attempted. Under such circumstances I am constrained to hold that the 6 casks must be surrendered to respondent, and the libel dismissed.