POLITICS AND PERSECUTION OF A STATE
FURTHER ACTIVITIES OF THE REMSEN BOARD
The Attorney-General of the State of Indiana,Mr. James Bingham, desired to have testimony in favor of the State Board of Healthfrom.the Chief of the Bureau of Chemistry and from other employees of the Bureauwho had taken an active part in the investigations of benzoic acid and benzoate ofsoda. A suit had been filed against the State of Indiana in the Federal Court beforeJudge Anderson on the ground that the ban placed on benzoated foods by the StateBoard of Health was unconstitutional. Mr. Bingham came to Washington for the purposeof securing permission from the Secretary of Agriculture for these officials to appearbefore the Federal Court in Indianapolis. The Secretary refused to grant the requestof Mr. Bingham on the ground that the Department of Agriculture was on the otherside of the question and that it would not be in harmony with official etiquettefor the employees of the Bureau of Chemistry to appear against the Remsen Board andtheir assistants and experts who were attending the trial in the interest of thecomplainant by the executive order and request of the Secretary of Agriculture. Inorder to secure this testimony Mr. Bingham found it necessary to remove the FederalCourt from Indianapolis to Washington. When this was done the Solicitor of the Departmentof Agriculture on the request of the Chief of the Bureau made a ruling that the FederalCourt had no right to issue a subpoena for attendance of the employees of the Bureauof Chemistry in the sense that they were compelled to attend and give testimony.He informed the members of the Bureau of Chemistry that it would not be a contemptof court if they should refuse to appear and give testimony on the summons unlessthey wanted to. I volunteered to give my testimony before the Federal Court. It beginson page 3,212 of the printed record and continues to page 3,548, inclusive, 336 pages.When Dr. W. D. Bigelow was called to the stand, after qualifying, in response tothe first question asked him, he declined to answer on the ground that his testimonywould be of a character not approved by the Department and he availed himself ofthe privilege given by the Solicitor of refusing to answer (Page 3,693 of the Recordof the Indiana Case). Mr. Bingham immediately carried the case to Justice Barnardof the District Supreme Court. Justice Barnard promptly ruled that the employeesof the Department of Agriculture were compelled to give their testimony if subpoenaedby the Federal Court and that the statement made by the Solicitor that they werenot thus compelled to testify was an error. Under this ruling Dr. Bigelow and otheremployees of the Bureau gave their testimony. It would not be proper to go into anyextended explanations of the nature of this testimony given contrary to the opinionof the Solicitor. A sufficient explanation of it is found in the fact that JudgeAnderson of the Federal District Court of Indiana, to whom all the testimony in thecase of over 5,000 pages was placed, with the summary by the master, promptly decidedthe case in favor of the State of Indiana. He said, in point of fact, that the State'srights in regard to the regulation of the sale of foods inside the State could notbe questioned before the Federal Courts by citizens of other states.
MR JAMES BINGHAM
Attorney-General of Indiana
This recital shows plainly that although theprivilege was denied the Bureau of Chemistry of bringing suit against anyone usingbenzoic acid, the employees were compelled to testify before the Federal Court. Theusers of these preservatives lost their ease due largely to the testimony of theexperts of the Bureau of Chemistry. Thus it appears as if the "big chemists"--asthe Secretary of Agriculture called them--of the Remsen Board, when opposed by the"little chemists" of the Bureau of Chemistry, were defeated. This incidentshows the danger of unwise greed. The right to use these preservatives was guaranteedto those manufacturers who felt like doing so by all the power and authority of theUnited States Department of Agriculture. They should have been satisfied with thatperversion of the law, but they were not. They determined to force benzoated goodsupon the citizens of the State of Indiana. Fortunately they did not succeed. Morefortunate still is the fact that one of the complainants against the State of Indianawas converted by the evidence adduced at the trial and abandoned the use of thesepreservatives. Still more fortunate is the fact that manufacturers in general, althoughthis dispensation has now been in full force and authority for twenty-two years,have rarely indulged in the use of these preservatives. The goods manufactured underthe aegis of the Department of Agriculture with these preservatives are distinctlyinferior in quality and strength.
The activities of the Remsen Board were not devoidof doubts as to their wisdom. In a letter dated September 9, 1909, Dr. Remsen calledattention to what might happen (Page 879, Moss Committee):
My Dear Mr. Secretary: The Referee Board is going to be subjected to very severe criticism for testifying in the Indiana suit, and in order to protect ourselves it is our desire that we should have from you a written request that we should give this testimony. I hope you will have no objection to sending this request to me. We are to testify at Seal Harbor, Me., on the 17th. We are all glad to have been at Denver, and we all recognize the soundness of your judgment in asking us to go.
Mr. Moss asked the Secretary to explain why theRemsen Board whose usefulness in so large a measure must depend on the respect andconfidence which the public have for the high character of its membership shouldbe subjected to severe criticism in order to assist in an effort by private corporationsto overthrow the pure food laws of a sovereign state. To which Secretary Wilson repliedthat it was never in his mind to help overthrow the pure-food laws of a sovereignstate, and that he would have been perfectly willing to have the Referee Board gowhere the people seemed to need information; but as to an attack upon the State ofIndiana, that was not to be thought of. The Chairman continued by asking him if hedid not know that the suit filed by Curtice Brothers and Williams Brothers was inauguratedbefore the Referee Board had made its report on benzoate of soda; to which he repliedthat he did not know anything about the nature of these proceedings. The Chairmanof the committee continued by asking him if he had been requested by Attorney-GeneralBingham to permit Dr. Wiley to go to Indianapolis and testify in person in the Indianacase on behalf of the State of Indiana; to which the Secretary responded that hedid not think Dr. Wiley had ever asked him whether he could go to Indianapolis ornot. Whereupon the chairman submitted a letter dated May 31, 1910, which the Hon.James Bingham had written the Secretary in regard to this matter. This letter isso pertinent that it is given in full:
Hon. James Wilson,
Secretary of Agriculture,
Washington, D. C.
Dear Mr. Secretary: I am in receipt of a letter from President Taft with copy of your letter attached in re testimony of Dr. Wiley in the so-called benzoate case. I am taking the liberty of writing you personally for the reason that I feel quite sure that you misapprehend the position of the State in this matter. You understand that Dr. Long, of Chicago, and Dr. Taylor, of California, both members of the Referee Board, attended in person here at Indianapolis and testified in this case.
The master, who is hearing the evidence, is manifesting considerable interest in the testimony of the different witnesses and personally interrogates them, and it is my desire to give him this opportunity in the case of Dr. Wiley if possible.
There is no attempt on my part to make it appear that the Government is not supporting the work of the Referee Board. On the other hand, whatever appears in the record to indicate that the Government has taken sufficient interest to sustain the decision of the board is there at my instance, since I personally asked the witnesses who have testifled that they were testifying at your request, at whose request they were testifying in the case, and I did this after a personal interview with them, and learning the facts with reference thereto before asking the questions.
My position is that this question is one not capable of scientific demonstration, and this fact, I think, I have pretty thoroughly established by the testimony of the members of the Referee Board themselves. I think, however, that such a test was perfectly proper for whatever value it might have in the investigation of the injurious effects of sodium benzoate, but I feel very certain that the results of such an investigation are not conclusive. Indeed, I would not hesitate to try this question before you or any other fair man regardless of any conclusion you may have reached based upon the results of the work of the Referee Board.
1 attach more importance to an investigation made by Dr. Wiley than I do to that of the Referee Board, in view of his practical experience in such matters and especially in view of the experience of the corps of workers he must have had to assist him. In the case of the Referee Board work was carried on by students in many instances, and in the investigation I have made I am satisfied that many of the results obtained, upon which the Referee Board bases its opinion, are unreliable. That the members of the Referee Board were conscientious and thoroughly capable scientists there can be no doubt, but their conclusion, vased upon a false premise due to inaccuracy in analytical work and want of regularity in habits of living by subjects, would, in my opinion, destroy the value of any such conclusion.
In justice to you I can not go into detail, but the evidence in this case shows in some instances variations in duplicate analyses where the same articles were being analyzed under the same conditions, running from 15 per cent. to 1,800 per cent., when every member of the Board testifies that there should not be a variation to exceed 2 per cent.
I am very desirous of having Dr. Wiley appear in person in order that the master may personally interrogate him as to his premises most thoroughly, and I think you will readily appreciate the merit of my position. I assume that you have no interest in this question except to have it decided right, and in this case we are not only availing ourselves of the results obtained by the Referee Board and Dr. Wiley, but of a vast number of other experiments, and especially of-the results of practical demonstrations, and it occurs to me that when the evidence is concluded in this case the court will be in a better position to reach an intelligent conclusion as to what the real effect of benzoate of soda is upon the human system when administered in food than the department was with nothing to depend upon but the result of a scientific investigation standing alone.
Thanking you for your courtesy in offering to permit the deposition of Dr. Wiley to be taken, but hoping that you will see your way clear to permit him to attend in person, I remain,
Very truly yours,
(Signed) JAMES BINGHAM,
This letter of Mr. Bingham evidently removedevery reason to justify, even in the smallest degree, the determined purpose of theSecretary of Agriculture, with the collaboration of the Remson Board, to break downthe Board of Health of Indiana which had placed its ban on food products containingbenzoate of soda. Driven to the last extreme the Secretary sought to justify hisaction against the State of Indiana because the law of Indiana forbade the manufactureof beet sugar within the State! In answer to the question of the chairman of thecommittee he said it was his purpose to help every state to the limit of his efforts,but when a state came out and said one could not use beet sugar it gave him pause.He continued as follows:
We are making 500,000 tons of beet sugar every year in the United States. Indiana, can make all the sugar she needs and supply half a dozen other states. But I have come up square against this law, and I do not want to break the laws of Indiana; I would not for the world do that.
It appears that William Brothers and CurticeBrothers alleged, in their suit to abolish the ruling of the State Board of Healthas being unconstitutional, that there were other points in the Indiana law whichwere likewise unconstitutional, and among these was an expression in the law deliningsugar as "cane suagar." Of course every one knows that cane sugar is frequentlyused to designate sucrose. Indiana in her statement for defense against the suitof Curtice Brothers used the following statement:
These defendants, farther answering, say that they deny that the use of beet sugar is prohibited by law in food products in the State of Indiana, or by any rule adopted by these answering defendants, as such State Board of Health of the State of Indiana.
Dr. Alonzo E. Taylor, whose absence in Europehad prevented him from taking any active part in the investigations of benzoate ofsoda, was nevertheless very eager to appear against the State of Indiana in the benzoatetrial. Under date of March 1, 1910, he made the following report to the Secretaryof Agriculture:
"I have just been giving testimony in the Indiana sodium benzoate case. I understand it was inferred that because I did not sign the report of the Referee Board that I was not in agreement. I therefore testified, not as a member of the Board, but as an expert, pure and simple. Since last summer, being engaged on the sulphite question, I have been making a lot of control observations with the purpose of determining the normal variations in the metabolism of nitrogen, sulphur and phosphorus. These data, I believe the best in literature, I wish to use in my evidence, as they support strongly the position of our Board and are in contradiction with the work of Dr. Wiley on the action of benzoate. In a word, these investigations indicate that many of the reported deviations of Dr. Wiley are entirely within the range of those to be seen in normal persons on a normal diet, and show that the figures obtained by my colleagues are normal figures for normal men. Have I your permission to offer these normal charts of normal metabolism to the United States Circuit Court in the Indiana Case?".
To which the Secretary replied under date ofMarch 12, 1910, in a letter to Dr. Remsen in the following words:
"I enclose a very interesting letter from Prof. A. E. Taylor which please return to me. I shall leave this matter entirely with you."
Dr. Remsen in his reply to the secretary recommendedthat he be given permission to use the data in the manner suggested. The Secretaryleft no stone unturned in his determined effort by all means, fair and foul, to securea declaration from the Federal Court that the Indiana law was unconstitutional. (Pages367, 368, Moss Report.)
The testimony of Dr. A. E. Taylor in the Indianacase is found on pages 2137, to 2207 of the printed testimony. He repeated in histestimony that he thought the data he had obtained were the best in literature. Dr.Taylor in his experiments, which were not made, by the way, on the subject of benzoicacid, employed a plan greatly superior to that followed by the other members of theReferee Board. He employed as his subjects trained scientific men. He took over bodilythe whole force of the California State Board of Health. He employed state chemistswho made all the examinations for fertilizers in the state. When asked on cross-examinationin regard to control of the diet of these trained men he stated that their diet wasrigidly weighed and apportioned to them. When attention was called to the fact thatthe other members of the Referee Board did not control either the quantity or thekind of diet, therefore the results which they obtained could not be comparable tohis own, he replied that he thought his own plan was better but that the uncontrolleddiet might lead to similar results. He was particularly opposed to the use of benzoateof soda in milk. On direct examination he was asked this question:
Q. What are the reasons for not using it in milk?
A. For the simple reason that a large amount of experience hastaught us that the bad milk ought to be allowed to spoil and that an absolutely harmlesspreservative, or even refrigeration, or pasteurization ought to be equally prohibited.(Page 2162).
Speaking further (page 2163) in regard to milk,he says:
A very minute trace of formaldehyde will keep milk for 48 hours but the tubercular and typhoidal bacilli will not be killed, and it is objectionable on that account. We object to anything that keeps milk without killing those germs, not being of a type to affect the common defects of sourness or souring. That is the reason I guarded myself absolutely in the use of this other substance. I would object to the use of benzoate of soda, of hydrogen peroxide, of the pasteurization of milk, this being the result.
Evidently Dr. Taylor was not aware of the factthat pasteurization of milk at 145° for thirty minutes would destroy both typhoidand tubercular germs. The spores of germs require a much higher temperature for theirdestruction. By reading his testimony, the historian of the future will gather valuableinformation respecting the attitude of Dr. Taylor in general toward preservativesin foods and pasteurization.
Dr. Taylor also was particularly opposed to theuse of benzoate of soda in meat as well as in milk. He cites the attitude of Hammerstein,the Scandinavian chemist and physiologist. He asked him:
Q. Do you use benzoate of soda?
A. No, sir.
Q. Is there any law against it?
Q. Do you use salicylic acid?
A. It is cheaper.
Q. Is it injurious?
A. Possibly it is, but it is so easy we take the chance.
FURTHER EXCERPTS FROM THE REPORT OF THE MOSSCOMMITTEE AND THE RECORD OF THE INDIANA CASE
THE CHAIRMAN, MR. MOSS, of Indiana: Please tell me in what senseyou regarded the Indiana case as an important one?
SECRETARY WILSON: Simply because it was in the. Federal court,and it was taking up the question of whether the decision of the Referee Board wasto be sustained.
THE CHAIRMAN: That brings me to a question I want to ask you.At that time, what did you understand the issues of this suit at Indianapolis tobe?
SECRETARY WILSON: I understood it was a question of whether--Ido not know that I am entirely clear. I think it was an injunction asked by somebody.
THE CHAIRMAN: It was by Curtice Bros. and Williams Bros.?
SECRETARY WILSON: Yes; to require the board that you have therein Indiana to do something they wanted done.
THE CHAIRMAN: We have a board of health; yes, sir.
SECRETARY WILSON: That is my recollection. It was somethingof that kind. But there was benzoate of soda on one side and opposition to it onthe other.
THE CHAIRMAN: Would you mind telling us where you obtained thatinformation?
SECRETARY WILSON: Oh, I could not do that; I do not remember.
THE CHAIRMAN: I have the original complaint here, and your informationwas so badly apart from what the real issues were that I wanted to find out yoursource of information.
THE CHAIRMAN: You did request, both orally and in writing, themembers of the Referee Board to attend the Indianapolis hearing?
SECRETARY WILSON: They are on a little different basis.
THE CHAIRMAN: As the Indiana law expressly permits the saleof food products which are guaranteed under the provisions of the pure food law,how can the defense of this suit by the State or any of its agents be consideredas an attack on the decision of the Referee Board?
SECRETARY WILSON: That is an academic question, I think, Mr.Chairman.
THE CHAIRMAN: You have stated that Dr. Robison in appearingto testify there was opposing your policy?
SECRETARY WILSON: He was a subordinate of the department.
THE CHAIRMAN: The question is that inasmuch as the Indiana lawexpressly permits the sale in Indiana of any food product guaranteed under the purefood law of your department, when you guarantee it, how can a defense against a suitto strike down that law be considered an attack upon the Referee Board?
(There is no apparent answer to this question, save the following.)
SECRETARY WILSON: I would not be known to do a discourtesy tothe State of Indiana for the world, and besides, Mr. Chairman, I find in lookingover my behavior toward Indiana that I have a great lot of scientists there, andit might be wise for me to get them back out of there. I have men from nearly allour scientific bureaus there, helping the State of Indiana along these scientificlines, and cooperating with them.
TESTIMONY OF DR. IRA REMSEN
Pages 31-33-Indiana Record.
Q. Well, there was a meeting, wasn't there, of chemists, Doctor,recently, out at Denver, Colo., where a great number of scientific men congregated,wasn't there?
A. There was no doubt about it.
Q. And you had an election out there at which benzoate of sodawas the candidate, didn't you?
A. I don't know. I had nothing to do with the election. I wasn'ta member of the association. I was present as an interested spectator, but not amember of the association, had no vote.
Q. Now the fact is that of late there has been great interestmanifested on both sides of this question by scientific men throughout the country,hasn't there, Doctor?
A. Apparently. I am out of that. I am not at all a part of theexcitement.
Q. And were you present when the vote was finally taken at Denveron the question?
A. Which vote do you mean?
Q. On the harmfulness of benzoate of soda, the adoption of theresolution--not vote, but resolution.
A. I was present, yes, sir, the resolution approving the actionof the board, the report of the board. They approved.
Q. By what vote?
A. That is too much for me--57 to 42, maybe, I don't rememberexactly what it was; in the fifties for one and forties for the other; fifty-oddin favor and forty-odd against; I couldn't remember that, I am sure; I am near thetruth.
Q. Now in the talks that you had with the Secretary of Agriculture,did you learn that the plaintiffs, Curtice and Williams, here, were interested inthis question?
A. I do not remember that I ever heard them mentioned by theSecretary of Agriculture.
Q. When did you first learn that the plaintiffs were interestedin this question, Doctor?
A. In this--you mean in this particular suit?
Q. No, in this question as to whether benzoate of soda was harmful.
A. Oh, I remember. I remember it was at a meeting, a hearingwe gave, our Referee Board gave in New York before we began our investigation. Wesent word to those who were interested in the general problem, not only those whouse benzoate but those who do not use benzoate, informing them that we would liketo get such information as possible to aid us in our work. And they were representedby a number of large manufacturing interests who appeared before us to state theirproblems; mind you, they were not those who use benzoate alone but those who do notuse it. We felt that it was only fair to hear what they had to say, representativesof both sides--I regret that there are sides--there are sides, unquestionably, Irecognize it. And my recollection is that this is the first that I ever heard ofthese firms, except so far as I had become familiar with them through labels thateverybody has seen.
Q. Well, now, have you met them since that time?
A. Only as--except at Denver I saw these gentlemen, at Denver;saw them in passing. I had very little to say to them--I think they almost accusedme of discourtesy.
Q. Did the manufacturers appear out at the Denver convention?
A. These gentlemen were there--I do not remember, I do not knowthem sufficiently well to say.
Q. Well, when you had this hearing of the Referee Board at whichyou heard both sides, did Dr. Wiley appear at the hearing?
Q. Was he invited?
A. No. It was restricted to those who used benzoate of soda.
Q. I understood you to say that you did not, it was not only--
A. I don't say use--but who either use or do not use it, butwho are interested in it from the manufacturing point of view, that is what I meant.
Q. You mean as confined to manufacturers?
A. Oh, yes, wholly.
Q. Now, you also stated that there had been a world of workon the physiological effect of benzoate of soda on the human system.
A. That is a question which has perhaps not been very fullyinvestigated, and yet I recall in this connection an investigation which came tomy notice when I was a very young man. I went to Gdttingen in 1868. I carried a letterto a distinguished physiologist who was there, Professor Meissner. He had just completedan elaborate series of experiments of the ffect of benzoic acid on the human organism.Mr. Charles U. Shepard, an American student, took large doses of benzoic acid, muchlarger than the quantities that have been used in our experiments. Those large quantitiesleft no permanent effects.
Q. Now, so far as you know all these works of the original researchupon the effect of benzoic acid or benzoate of soda upon the human system are referredto in that report, in the bibliography.
A. All the important ones.
CROSS EXAMINATION OF DR. REMSEN
Q. This experiment of Dr. Meissner, about which you have testifiedis that experiment which is reviewed in the bibliography?
A. It is.
Q. I read from exhibit 1, in which this experiment is referredto as follows:
There is no hippuric acid or benzoic acid in the blood of animals which excrete hippurie acid abundantly in the urine. According to the authors' experimenis on man, ingestion of 7.6 grams of benzoic acid as sodium salt in solution after breakfast was followed suddenly, 30 minutes later, by nausea and vomiting. When 5.7 grams were taken after breakfast there was vehement vomiting after about 35 minutes. When vigorous exercise was taken after the same dose (5.7 grams) there was some nausea, but no vomiting. The nausea can be made to disappear by violent exercise, with deep inspirations, etc. After taking 5.8 grams, when the subject was kept quiet in a warm room there was no nausea or vomiting. A stronger and heavier person repeatedly took 7.6 grams without these symptoms.
The authors conclude from their experiments on animals that the kidney is the only organ where benzoic acid is normally transformed into hippuric acid. When 2 grams of benzoic acid per day were fed to a rabbit during 3 days there was no decrease in urea output. In a dog of 12 to 13 kilograms, 8 grams of benzoic acid given in solution per os caused vomiting. Later 8 grams were given twice a day as dry powder packed in meat. There was apparently no decrease in urea. After several days a toxic effect was noted--difficulty in urinating, spasm, attack of rage, attempts to bite, foam at mouth. Benzoic acid was continued 2 days more and the attacks recurred. Appetite remained good. Convulsions occurred the day after the benzoic was stopped, and then they ceased. Similar attacks were observed in a small dog which received 10 grams benzoic acid for 3 days. The authors conclude that the continued administration of large amounts of benzoic acid is not without danger, although Keller took 2 grams per day for some time without feeling any ill effects. Hippuric acid is formed from benzoic acid in all animals. Authors conclude that in herbiverous animals the excretion of hippuric acid is dependent on the cuticular substance of plants ingested. The small amount in normal human urine probably derives its origin from metabolism products.
Q. Is that a correct review of that experiment as you understoodit, Doctor?
A. Of course I cannot positively say that these details arecorrect, but I.believe them to be correct.
(Page 45 and page 46.)
In the cross examination of Dr. Remsen it wasbrought out that the reason young men were selected was because they would show thegreatest resistance to any pathological effects that were probably produced. Dr.Remsen stated that he did not think the age of the subject would have much to dowith the case and to the question that in selecting young men he would have all thepower of resistance that could be found in the human system he said yes. Neverthelesshe made an answer to the following question:
"And if there was a tendency of benzoate of soda or sodiumbenzoate in small quantities to affect the system, it would appear less in a testof young men than it would upon any other character of subjects that you could select,wouldn't it?"
A. "I am not sure of that." (Page 26.)
On Page 27 Dr. Remsen was asked what are thevariations in temperature, what variations in pulse, what variations in the specificgravity of urine, what variations are there in the volume of urine in normal health.Dr. Remsen answered:
Those matters are not at all within my ken. I am not an expertin those lines, I have never claimed to be. My medical training is so far remotethat I confess that that kind of information is not at my fingers' ends.
Page 30. Q. Well, who is at the head of the Chemical Departmentof the Government?
A. Dr. Wiley, I suppose.
Q. Were you in touch with him?
A. I had nothing to do with him, sir; I didn't see him aboutit at all.
Q. Well, he is quite an eminent chemist, is he not?
A. He is very well-known. I may say that he is an eminent chemist.Yes.
Q. Now he has been devoting a great deal of time to study ofthis question, the effect of benzoate of soda upon food products, has he not?
A. Some time, I don't know about a great deal.
Q. Don't you know that he made an investigation on this subjectand got out a report on it?
A. He had the investigation made by others. He didn't do ithimself.
Q. Well, was he as close in touch with his job as you was inyours?
A. I don't know the facts, but I know the work was carried outby his assistants in the laboratory of the United States Department of Agriculture.
Q. Well, now, Dr. Wiley reached the conclusion as a result ofhis investigation to which I have referred that benzoate of soda was harmful whenused in foods in what you denominate "small quantities" didn't he?
A. Yes, sir.
Q. And all over the country there are scientific men who havebeen studying this question who agree with Dr. Wiley upon that question, do theynot?
A. I don't know that scientific men all over the country havebeen studying that question in any scientific way. We have no records of experiments.I won't say there are none, but there are very few, if any, and so far as I understandthe situation these gentlemen who agree with Dr. Wiley simply agree with him, accepthis opinion.
Q. Well, when you had this hearing of the Referee Board at whichyou heard both sides, did Dr. Wiley appear at that hearing?
Q. Was he invited?
A. No. It was restricted to those who used benzoate of sodaor those who do not use it but who are interested in it from the manufacturing pointof view; that is what I meant.
Q. Well, do you approve of the result that Dr. Wiley got ininvestigating this question?
A. I can't answer that question. I don't like to.
Q. Well, I would like to have you do it.
A. I do not. Or I should rather put it in this way, that ourBoard does not.
Q. That is to say you reached a different conclusion from Dr.Wiley? That is what you mean to say?
A. Yes, sir.
Q. You are not criticizing his work.
A. Not at all.
Q. But you say you approve the work of an expert because itis done by an expert?
Q. Dr. Wiley is an expert, isn't he?
A. Not in physiological work.
Q. You think he has had no experience in physiological work?
A. I am unable to say, but my impression is that it has beenvery little. I am very sorry to testify in this way but you have pushed me to it.
Q. I understand that you yourself are not a physiologic chemist?
A. No, I am not.
Q. So that is the opinion of one non-physiological chemist uponanother?
A. Hardly. My opinion is based upon my experience with a boardof men who are thoroughly familiar with that kind of work.
Q. What peculiar knowledge now would a chemist have to havein order to conduct an investigation of this kind?
A. He would have to be an expert in physiological work, physiologicalchemist is really what you would want, a pharmacologist is a form of physiologicalchemist, a man who studies the effects of substances upon the system, but in orderto judge the effects he must have physiological knowledge and must bring that intoplay at every step.
Q. Now you are not a pharmacologist, I believe you call it,is that correct?
A. That is the name; I am not a pharmacologist.
Q. And you are not a physiological chemist?
Q. And it is necessary to have both these elements of educationin order to be able to conduct properly this sort of investigation.
Q. Well, if it is necessary that we shall have a pharmacologistand a physiological chemist and you are neither, isn't it a fact that your opinionis influenced by the conclusions reached by those who are pharmacologists and physiologicalchemists who are on the Board?
I desire at this point to introduce a statementin regard to my personal attention to the work carried on in the Bureau of Chemistryin studying the effect of small quantities of benzoic acid and benzoate of soda onthe health of the young men who were undergoing these experiments. I may say thatthe Referee Board were not the authors of the plan of experiment which they followed.It was copied directly from the plan adopted by the Bureau of Chemistry in all ofthese investigations, with this exception. All foods used were carefully analyzedby the Bureau of Chemistry, very few foods were analyzed by the Referee Board. Igave my personal attention for five years to all the details of this work. Duringthe winters I rose long before daylight, even before the street cars were runningand walked two miles to my laboratory, which I reached by seven o'clock. I supervisedthe preparation of the breakfast, I weighed, with assistance of others, every articleof food which was administered, I supervised the actual analyses of these foods inthe laboratory, I studied the condition of the young men every day as a medical man.I saw that their excreta, solid and liquid, were collected and delivered to the laboratory.I dined with the young men except that I did not take the foods to which the preservativeswere added. I felt that my continued good health would be at stake if I did, butI ate the same kinds of foods that they ate otherwise. When nine o'clock came I wentto my office and performed the ordinary duties connected therewith until luncheontime. I then went into the kitchen and supervised the preparation of their lunchunder the same conditions. After luncheon was over I again went to my duties as Chiefof the Bureau of Chemistry. At five o'clock I again went back into the kitchen andsupervised the preparation of dinner. I remained in the kitchen and dining room anddined with the young men at dinner. By seven o'clock the dinner was over. This wasthe routine which I followed for five years winter and summer except at such timesas I was called away from Washington. When I was called out of town, Dr. W. D. Bigelow,my first assistant, took my place as supervisor of the experimental work; yet Dr.Remsen without making any effort to learn the truth about the matter said I tookno part in this work, that I was not a physiological chemist.
In 1910 I was awarded the Elliot Cresson medalof the Franklin Institute for leading work in physiological and agricultural chemistry.This medal was given me for inaugurating the most extensive investigations ever undertakenin this country in improving the valuable properties of plants. I inaugurated andcarried into effect, in connection with A. A. Denton of Kansas, experiments in improvingthe quantity and quality of sorghum for sugar-making purposes carried, over a periodof many years in which the percentage of sucrose in sorghum was raised from nineto fourteen per cent. These experiments were published in numerous bulletins of theDepartment of Agriculture extending over a period of many years. In like manner Iinaugurated and carried into effect a work extending over several years of ascertainingthe factors which would produce the best quality of sugar beet in the United States.The results were published in the bulletins of the Bureau of Chemistry and enabledthe manufacturers who were intending to go into the sugar-beet industry to locatetheir plants in those areas in which the best sugar beets were grown. In all somefive hundred thousand analyses of sugar beets grown under similar conditions withthe same seeds were made. Following this physiological chemical work I originatedand carried into effect a series of experiments extending from Maine to Florida ofthe factors which produce the largest amount of sugar in sweet corn. These resultswere also published as bulletins of the bureau of Chemistry of the Department ofAgriculture. It was for these far-reaching investigations of physiological chemicalproblems, and for similar work in studying the effects of preservatives and coloringmatters on health, that the directors of the Franklin Institute awarded me the ElliotCresson medal. The gold medal bears this inscription:
To HARVEY W. WILEY
For Distinguished Leading and Directive Work
in Agricultural and Physiological Chemistry, 1910
Yet Dr. Remsen under oath said I was not a physiologicalchemist.
Pages 112 to 116-Indiana Record.
DR. HERTER'S TESTIMONY
Q. As a matter of fact, you know, don't you, Doctor, that thevery opposite effect to which you testified has been found by other eminent scientistswith reference to some of these subjects that you have testified about even in theadministration of small doses of benzoate?
A. Well, I don't believe that I can agree to that.
Q. Have you not examined Dr. Wiley's report of his investigation?
A. I have.
Q. Well, do you not know that he so found?
A. I do.
Q. And what position does he hold, Doctor?
A. He holds that sodium benzoate--
Q. Well, I know--what official position does he hold?
A. He is chief of the bureau of chemistry of the Departmentof Agriculture.
Q. What Government?
A. The United States Government.
Q. That is rather a responsible position?
Q. And Doctor Wiley has occupied that position for many years,has he not?
A. I believe he has.
Q. And he conducted quite an extensive investigation on thissubject, did he not?
A. I believe that he did.
Q. You know, too, don't you, Doctor, that a number of eminentscientists who have read and studied the report that was published of the work ofthe so-called Referee Board have reached different conclusions from the board asto the effect of benzoateof soda in foods, even based on the facts included in thosepublished reports, don't you?
A. I have been told that there has been criticism of the reportof the Referee Board, but I have felt that the criticism that has come to my noticehas been for the most part, or wholly, from such sources as lead me not to give greatconfidence, to place great confidence in those results or in those opinions I shouldsay--they are not results--opinions. In general I would say that that is my attitude.
Q. Well, you know that Dr. Wiley has criticized this reportand draws a different conclusion from what the Board did from the facts that arepublished in the report, do you not?
A. I think so. Dr. Wiley told me so himself the other day whenhe talked with me.
Q. Now, you know Dr. Reed of Cincinnati, do you?
A. I had that pleasure at Denver.
Q. He is an ex-president of the American Medical Association,is he not?
A. I don't know that of my own knowledge. I will have to answerthat on sQme kind of hearsay.
Q. Well, he is an eminent physician, is he not, and a scientist?
A. I don't think there is any reason to regard him as a scientist.I have been told that he was a good gynecologist.
Q. Well, do you know what his training is, Doctor?
A. No, I can't say that I do. That is a matter of hearsay.
Q. You know that he reaches a different conclusion from whatthe board did?
A. I do.
Q. I didn't get my question in--you know he reaches a differentconclusion from what the board did as to the effect of administering benzoate ofsoda in the foods, based on the facts published in the report of the board, do younot?
A. I had a different idea of what he bases his views on.
Q. You know that he does not agree with the conclusions of theboard, do you not?
A. I infer that.
Q. Now there was some sort of an association of chemists heldat Denver recently, wasn't there, Doctor?
A. I think that the association contained some chemists. Whetherthey are all chemists or.not, I don't know.
Q. What is the name of that association?
A. That is the--I ought to remember on account of the squabbleover the Mississippi, but I have forgotten--that is the National Pure Food and DairyAssociation--no, that isn't right--The Association of State and National Food andDairy Departments--I think that is what it is.
Q. Now that is made up of people who are connected with thestudy of foods, is it not?
A. Certain aspects.
Q. Study and manufacture of foods?
A. Certain aspects of the study of foods.
Q. You were present at that association?
A. I was present.
Q. Did you address the association?
A. Well, I spoke to the association.
Q. What was the subject of your address?
A. It had to do with the action of sodium benzoate on the humanorganism.
Q. Did you discuss the work of the Referee Board in that connectionany?
A. I referred to it, but I particularly referred to the workdone in my laboratory.
Q. Was there any of the other members of the Referee Board there?
A. They were all there.
Q. Did any of the other members address that meeting?
A. They all spoke except Dr. Taylor.
Q. What were the subjects of their addresses?
A. The same general topic, I should say.
Q. That you discussed?
A. Well, for their own reports--they did for their reports whatI did for mine.
Q. And were there any other addresses delivered there on thissubject of the use of benzoate of soda in foods?
A. Well, I suppose that the chairman's address might be so regardedand Dr. Reed's address; they contained reference to it.
Q. Who was the chairman?
A. Mr. or Dr. Emery--Mr. Emery.
Q. Now there was some sort of a report passed upon there bythat association with reference to this effect of benzoate of soda upon the humansystem as administered in the food, and also as to the result of all investigationsmade on that subject up to the date of that association, was there not?
A. I think there was. I think that I have in mind probably thesame report that you have in mind, but I am not sure.
Q. And that report that was made to the association was a reportmade by a committee of eleven men, was it not?
A. I believe that there was a committee which reported.
Q. I will ask you now if that committee was not composed ofchemists entirely?
A. I don't know, sir; I don't think that I had heard the nameof any one of the number.
Q. And you know that it was reported there by that committeethat the investigation of that subject had not been carried to an extent sufficientto determine the question as to whether the use of benzoate of soda in food was orwas not injurious to the human system--do you not?
A. I have only a very vague recollection of what was said inthe report.
Q. You heard the report discussed, did you?
A. I think that I did. My impression is that a recommendationwas made by that committee asking for further investigations. That is my recollectionof it.
Q. You do know, don't you, Doctor, that there is now, and hasbeen, a diversity of opinion among scientists upon this very question?
A. Which question, may I ask?
Q. The question as to whether or not the administration of benzoateof soda in foods to the human being is injurious to the human system.
A. I know that there has been a diversity of opinion about that.
Q. And you know, too, that this diversity of opinion has existedsince the Referee Board report was published, do you not?
A. Well, you mean it has existed in spite of the publication,or do you mean that it was initiated then?
MR BINGHAM: Listen to the question, Doctor; I think it willexplain itself.
A. Well, I wouldn't say since; it existed before.
Q. Well, you know that scientists have criticised it since itwas published, do you not, and that they have even told you that they did not agreewith you on the question?
A. I have never heard any adverse opinion of the report of theReferee Board from any person that I would class as a scientist.
Q. How do you class Dr. Wiley?
A. Well, I don't know Dr. Wiley very well, and I find it isa rather difficult task to class him. I don't know what you expect of me.
Q. One more question as to Dr. Lucas. (Dr. Lucas was one ofHerter's squad.) It is a fact, is it not, Doctor, that Dr. Lucas disagreed with youas to the result of the injurious effect of the use of benzoate of soda in food insmall quantities?
A. I do not know very accurately what Dr. Lucas' views are,but I know he has done some work particularly on the action of benzoic acid and Ijudge from the paper that I heard read at Denver that his views are in some respectsat least different from mine. I do, not know to what extent.
Q. Did you know that the Department of Agriculture of the UnitedStates Government stood ready to furnish this Referee Board with everything at itscommand that was necessary for making this experiment that is under consideration?
A. I heard that stated by the President of the United Statesand by the Secretary of Agriculture more than once.
Q. Did you know that the United States Government had a chemicallaboratory in the City of New York?
A. I did not.
Q. Did you not learn from the Department that it had numerousanalytical chemists in its employ at the time and before this experiment was begun,in the City of New York?
A. I was not aware of that fact.
Q. Well, you did know that it had a Department of Chemistry?
A. I did.
Q. And-you knew, too, that that department was engaged in theadministration of pure food laws of the United States, didn't you?
A. So I had heard.
Q. And you knew that it had a corps of workers, of chemists,analytical and otherwise, constantly engaged in the work of analyzing foods and theiranalytical testing, did you not?
A. I assumed that to be the case.
Q. How did it come that you did not secure your analytical chemistsand men for doing the routine work from the force of the Department of Agriculture?
A. Because it was intimated to me that it was the desire ofthe Department of Agriculture and by the President of the United States that in theinvestigation carried on by me I should be free to use my judgment as to all pointsconnected with the matter of personnel in my laboratory.
Q. Why was it that you preferred to select such men as Dr. Lucasand Dr. Ringer and Mr. O'Brien and Dr. Harvey, some of whom at least are neithergraduates or chemists and who, according to your own statement, would need instruction,rather than those experienced men in the Department of Agriculture who are regularlyengaged in that class of work?
A. It never occurred to me that they would be available, partlybecause they had their own occupations for the entire year and partly for the reasonthat it nevef occurred to me that men such as I wanted would be willing to come fromthe Department of Agriculture. We canvassed the situation with regard to the universitiesparticularly and if I had known there was a branch department of the Department ofAgriculture in New York I certainly should have applied to them.
Q. Well, you were impressed at that time, were you not, withthe fact that this expenditure of time and money was not being made as a matter ofidle curiosity, but for the purpose of opening the door, if possible, to the useof benzoate of soda for such purpose?
A. I did not hear the case stated so fully nor so eloquentlyas that, but I got the impression that the manufacturers felt that if they had togive up benzoate of soda--or at least that some of them felt that if they had togive up benzoate of soda--they would either have to be shown some other way of carryingon their preservation of food or they would be put to financial loss.
Q. Who was it that said that this benzoate of soda questionwas a pressing question?
A. I do not know that anybody said that it was a pressing question;I may have said it myself.
Q. How did you get the impression that that was a pressing question?
A. Well, I said that there were two or three questions, thesulphite question, the benzoate question, the saccharine question, that it was importantto act on. The President wanted the saccharine question investigated.
Q. Who was it that gave you to understand that these two subjectswere the most important?
A. I am unable to answer that question.
Q. Did you not get the idea that these questions were pressingbecause they involved large interests?
A. Yes, I did.
Q. Yes, I know; but getting this settled was desired owing tothe fact that large interests were involved?
A. That was the general impression of the board.
Q. You knew that the interests involved were the ones that wereclamoring for some sort of a chemical preservative, did you not?
A. I knew from the meeting of the manufacturers to which I havereferred that many of them desired either to be permitted to continue to use benzoateof soda or requested a substitute for it, and I understood, principally from Dr.Taylor, that the question was a very live one in the west.
A CHANGE OF MIND
While writing these memoirs I was told that oneof the principals in the Indiana case, namely Walter H. Williams of Detroit, wasconvinced by the evidence brought before the Federal Court that he was wrong in believingthat benzoate of soda sliould be used in food products. Probably the adverse decisionsof Judge Anderson and the Circuit Court of Appeals in confirming it strengthenedMr. Williams' opinion in regard to the matter. In order to be certain about thismatter I addressed a letter to Walter H. Williams on May 7, 1927, from which I quote:
In some way I have received the impression that the Williams Brothers withdrew from further activity in the case when it was carried to the Supreme Court. They had become convinced that the use of benzoate of soda was either unnecessary or injurious and had taken the position that they could put up their catsup just as well or better without it than they could with it. Before I submit this statement in my autobiography to the printer I should be glad to hear from you in regard to this matter.
To this I received a reply under date of May 31, 1927. I quotethe following, with Mr. Williams' permission:
Your remembrance of the Indiana benzoate case is substantially correct. The Williams Brothers of Detroit did join with Curtice Brothers of Rochester, New York, in seeking a Federal Court order in an endeavor to restrain the Health Department of Indiana from enforcing its ruling in regard to the use of benzoate of. soda as a preservative in food products.
The Williams Brothers Company later came to believe that benzoate, or any other preservative was entirely unnecessary in such food products as ketchup, sweet pickles, preserves, etc., and then withdrew as a party to the suit.
Not only did Williams Brothers find that a preservative such as benzoate was unnecessary, but were convinced that permission to use it allowed food manufacturers to be very careless in their methods of manufacture.
The writer well remembers the hearing before committees of both houses of Congress and the strong opposition food manufacturers presented against the passage of the national food and drugs act. At that time we all believed we were absolutely and honestly right in our contention, but most of us have since found that we were wrong, and that working under proper factory methods and conditions we can comply with all regulations called for by the national food and drugs act and turn out much better products than under the slip-shod methods generally used before the passage of the act.
In the early days of enforcement many of us thought, Dr. Wiley, that you were too radical in your ideas of pure food and felt that you were doing harm to our industry. When I look back over the changes that have come to the food industry during the past twenty-five years and see the great changes for the better that have come to our methods and our products, I wonder why we were all so blindly asleep as we were and why, much sooner than we did, we did not welcome and follow your teaching.
I am glad, indeed, Dr. Wiley, that this correspondence between us has started so that I am able to tell you what I have many times said to my friends and competitors in the industry, that Dr. Wiley was many years ahead of us in his thoughts and we had been terribly slow in awakening to the possibilities of pure food manufacture.
We should bear in mind that through the illegalcreation of the Board of Food and Drug Inspection and of the Remsen Board of ConsultingScientific Experts, and by illegally transferring to the Solicitor the duties ofthe Bureau of Chemistry in enforcing the law, probably as much as $500,000 of publicmoney appropriated for enforcing the food law was spent in protecting the businessof adulterators and misbranders and in trying to force upon the people of Indianathese adulterated and misbranded products. The conversion of a man like Mr. Williamsis a most pertinent fact. It is an additional evidence of the enormity of the crimecommited. against the Food and Drugs Act.
This statement of Mr. Williams illustrates thewisdom of carrying into effect the food law in the way the food law itself provides.It is a much more excellent way of showing adulterators and misbranders the desirabilityof changing their ways than any amount of coaxing, persuading and other methods ofprocedure intended to wean the offenders of the law from their habits of infractingit. Moreover, it is the method of procedure which the law itself has laid down, andwhich the Supreme Court has affirmed with the added injunction that all unnecessarydelay should be swept aside.
It is interesting to see that in the correspondenceI lately had with Mr. Walter Williams he informed me that Mr. Grosvenor, who washis attorney, was also converted during the Indiana trial and subsequently movedto Indiana to establish a very extensive business in the production of non-benzoatedcatsup and other food products.
The record of the Indiana benzoate case willprove a mine of information to the subsequent historian who has opportunity and desireto review the whole case. Its 5,000 pages of printed matter disclose the magnitudeof the conspiracy formed in the Department of Agriculture to destroy the provisionsof the pure-food law and to seek to declare unconstitutional the Indiana pure-foodlaw. This record will be found, I feel certain, in the State library of Indiana,in the Library of the Federal Court of Indiana, and in the Library of the SupremeCourt of the United States. The copy which I have belongs to a private law firm inthe city of Indianapolis. Owing to the courtesy of this firm I have been able tokeep this copy of the record many years, and during that time as leisure was affordedme, I have studied its pages and prepared from time to time the abstracts thereofwhich are here presented. I wish I could give more space to this remarkable document.
I cannot leave these topics without summarizingbriefly the testimony which the State of Indiana, defendant in this case, offeredbefore the Moss Committee (pages 531 to 549, inclusive). The first witness calledwas Dr. Harry E. Barnard, Food and Drugs Commissioner of the State of Indiana, namedas one of the defendants in this case. Dr. Barnard testified to the fact that Indianahad a pure-food law and he was the commissioner thereof. The particular section ofthe law which was under fire was Section 2 of Division 7, which reads as follows:
If it (a food) contains any added antiseptic or preservative substance except common table salt, saltpeter, cane sugar, vinegar, spices, or, in smoked food, the natural products of the smoking process, or other harmless preservatives whose use is authorized by the State Board of Health, it shall be deemed adulterated.
Dr. Barnard testified further that the complainantsin filing their suit asked of Judge Anderson a restraining order preventing the StateBoard of Health from enforcing this law until the hearing for an injunction was completed.He explained why the suit was brought in the Federal Court, that there was no sentimentin the State favoring the repeal of the law, that it was supported enthusiasticallyby both political parties and that the press of the state was unanimously in favorof the enforcement of the law according to the interpretation put upon it by theState Board of Health. He showed that if the injunction were made permanent it wouldresult in the repeal of the entire law and not simply one section of it.
He also testified that all the canners of theState putting up ketchup and other products were heartily in sympathy with the lawas interpreted by the State Board of Health.
DR. HARRY E. BARNARD,
Former Food and Drugs Commissioner of Indiana
Mr. Barnard also explained that he was presentat practically all the proceedings before the Federal Court and generally attendedthe Attorney-General. of the State, Mr. Bingham, in the taking of depositions withoutthe state. He also testified that in taking these depositions they frequently weregiven by employees of the Department of Agriculture in areas extending from Maineto California. This part of the testimony of Dr. Barnard is quoted verbatim:
Mr. Moss: In the taking of these depositions, did Curtice Brothersand Williams Brothers take any testimony from any employees in the national Departmentof Agriculture?
A. They did.
Q. State to the best of your recollection how many employeesof the Department of Agriculture gave testimony in this case for the firms of CurticeBrothers and Williams Brothers.
A. With the exception of two or three young men, subjects andclerks, any person who did any work in connection with the benzoate of soda investigation,employed by the Department of Agriculture, was examined. This included all membersof the Referee Board, chemists, physicians, medical experts, clerks, stenographers,janitors--everyone who had any thing to do with the case.
Q. About how many in total.
A. I cannot say exactly, but more than 75.
Q. Did the State of Indiana secure testimony from any employeesof the national Department of Agriculture?
A. We wished to secure the testimony of Dr. Wiley, Chief ofthe Bureau of. Chemistry, and those of his assistants who helped him in his benzoateof soda investigation.
Q. Did any of the employees appear voluntarily to give theirtestimony on the request of the State of Indiana?
A, No, we found it impossible to get their testimony.
Q. Have you any reason to believe that these employees werepersonally averse to giving such testimony.
Q. Did any of these employees appear finally and testify, orgive their depositions.
A. Yes; after we went to the Supreme Court of the District ofColumbia to compel them to testify.
Q. In actual tests, then, did you find the Department of Agriculturecooperating with the State of Indiana in the enforcement of the pure-food law oroperating in opposition to the enforcement of the pure-food law?
A. We found the Department of Agriculture opposing the Stateof Indiana in every move which we made to defend the pure-food law of our State.
This astounding attitude of the Department ofAgriculture, with the exception of the Bureau of Chemistry of that Department, isthe most remarkable illustration of how funds appropriated for the enforcement ofthe Federal pure-food law were squandered in helping adulterators of foods in theirattempt to break down a popular state law with all the eagerness and enthusiasm,and moral and material support which a great department of the Government could command.Evidence has already been given that the members of the Referee Board, during theirefforts to break down the Indiana law, were paid their salaries and expenses outof the money appropriated by Congress to carry out the provisions of the nationalpure-food law. While no evidence was asked for in regard to the persons employedby the Referee Board in their investigation, and who appeared as witnesses againstthe State 6f Indiana, as to the payment of their salaries and expenses while engagedin this activity, it is reasonable to suppose that they were treated in exactly thesame manner as their principals. This was a great boon to the complainants as itsaved them perhaps many thousand dollars which they would have had to pay for thetestimony of over 75 witnesses whom they called for the support of their complaint.
Attorney-General Bingham was also a witness beforethe Moss Committee (pages 537 to 549, inclusive).
Mr. Bingham was asked by Mr. Moss to state conciselyto the Committee just what was involved from a legal standpoint in the Indiana Case.Mr. Bingham replied that the constitutionality of the pure-food law of Indiana wasin question. No federal law was involved. That if Judge Anderson sustained the prayerof the complainants the Indiana pure-food law would be practically destroyed. Thatin so far as he was acquainted with the public sentiment of the State it was entirelyfavorable to the proper enforcement of the law. Mr. Bingham reported also that inthe case of the Referee Board he began taking depositions at Seal Harbor, Maine,and wound up in San Francisco, California. He testified that as representative ofthe State of Indiana he wished to take the testimony of employees of the Bureau ofChemistry, and he first applied to the Department of Agriculture. Mr. Bingham saidhe first approached Dr. Wiley who informed him that he would prefer that he firstapproach Secretary Wilson. He testified that his request that Dr. Wiley should appearin Indianapolis was not granted.
He testified that he next appealed to the Presidentof the United States. As a result of this attempt of Mr. Bingham he felt certainthat he could not get any of the employees of the Bureau of Chemistry to go to Indianapolis.He was compelled, therefore, to remove the court to Washington.
He tells how he first put Dr. W. D. Bigelow onthe stand, who after giving his name and his profession declined to answer a questionin regard to the benzoate matter unless he had permission to do so from the Secretaryof Agriculture. He carried the request to compel the testimony of members of theBureau of Chemistry to the Supreme Court of the District of Columbia before JusticeBarnard. A lawyer from the Solicitor's office of the Bureau of Chemistry appearedbefore the Judge to argue against the order requiring the evidence to be given. Thelawyer from the Department of Agriculture urged that as this was expert evidenceit could not be given without the consent of the expert. To which Judge Barnard replied:
"It was about as much expert evidence as if they had seen a dog fight on the street and had been asked to testify about it."
He entered an order that the witnesses shouldgo before the master and testify.
I am quoting just now verbatim from page 545:
MR. Moss: I will ask you if at any time during the taking ofthese depositions you received on behalf of the State of Indiana any encouragementor cooperation on the part of any official of the Department of Agriculture.
MR. BINGHAM: Voluntarily, no. But I may say this for Dr. Wiley.When I said to him that I wanted to take his deposition and question him about whetherhe would testify as an expert or not-I wanted his opinion of the results--he saidthat he would testify and that he would answer any questions that were put to him;that he would not hesitate to testify to anything that he was able to testify about.
Q. He explained to you that he was not in a position to actvoluntarily, did he not?
A. He explained to me with reference to that particular thingthat he did not propose to have any padlock put on his mouth.
I have given these copious extracts from theIndiana case because I consider it to be a most amazing attempt to pervert the nationalpure-food law and the purposes for which it was enacted to protect the interestsof food adulterators and misbranders.
END OF THE INDIANA CASE
Judge Anderson of the Federal Court of Indianadecided this celebrated case in favor of Indiana. It was appealed to the FederalCircuit Court. The decision of the lower court was approved.
Appeal to the Seventh Circuit of United States Court of Appeals in the Case of Curtice Brothers, vs. Harry E Barnard, et al, Willis Baldwin, E. 0. Grosvenor, and John Barton Payne, attorneys for Curtice Brothers, Thomas M. Honan, Attorney-General of Indiana, attorney for Harry E. Barnard. Judge Kohlsatt delivered the opinion of the Court.
From the evidence and the master's report thereon,it is evident that the question of the harmfulness and harmlessness of benzoate ofsoda is as yet an open one in the scientific world. While the voluminous record ofthis case deals largely with that question, it is a question of fact. The findingof fact of the master may not in the absence of convincing evidence to the contrarybe set aside. To show that the report is erroneous and not justified by the evidencethe burden rests upon the appellant. That burden is not convincingly sustained bythe record. We, therefore, start with the proposition that the question is yet anopen one in the scientific world and, therefore, an open one for the purpose of thishearing. This being so, it was within the power of the Indiana Legislature to prohibitthe use of benzoate of soda in the preparation of foods.
Manifestly, if the Legislature of Indiana inthe reasonable exercise of its police power and for the welfare of its citizens condemnsas an adulteration the use of benzoate of soda in the preparation of articles offood, then in the absence of a general acceptance of the proposition by the scientificworld that such is not the case there can as to that matter arise no question ofthe violation of the Constitution of the United States, or, as here charged, of theState of Indiana. When deemed necessary by the Legislature for the public healthproperty rights such as here involved must give way. It is therefore apparent thatthe position taken by the appellant with reference to the constitutionality of theact in question is without merit, as are also the other matters covered by the assignmentof errors. The decree of the District Court is affirmed.
At the time of the decision of the Seventh CircuitCourt of Appeals Williams Brothers of Detroit became convinced that benzoate of sodawas an injurious substance and withdrew from the further prosecution of the case.It was carried by Curtice Brothers to the Supreme Court of the United States. In1915 negotiations were begun between the State of Indiana and the Curtice Brotherslooking to abrogation of hostilities. A stipulation was agreed upon in which CurticeBrothers obtained all.they had fought for in the district and circuit courts of theUnited States as follows:
IN THE SUPREME COURT OF THE UNITED STATES
The Curtice Brothers Co.) Appellant,) No. 243Harry E. Barnard, et al.)
STIPULATION TO DISMISS
Whereas, the statute of the State of Indianaknown as Chapter 104 of the Acts of 1907 forbids the sale of adulterated or misbrandeddrugs and foods within the meaning of the act;
And whereas, subsequent to the passage of saidact, and under date of November 10, 1908, the appellees herein notified the appellants,and the purchasers of their said products in the State of Indiana, that the use ofbenzoate of soda was illegal in said State, and that if they wished to find a marketin said State they must not use the same;
And whereas, on the 22nd day of December, 1908,a bill in equity, being the bill in equity involved in this case, was filed in theDistrict Court of the United States for the District of Indiana, in which an injunctionwas prayed to restrain the defendants, their successors in office, their agents andservants, from enforcing their determination to prosecute these selling appellant'sgoods as aforesaid;
And whereas, sundry proceedings were had resultingin the entry of a decree in the said District Court of the United States for theDistrict of Indiana on June 21, 1912, dismissing said bill in equity;
And whereas from said decree an appeal was takento the circuit Court of Appeals for the Seventh Circuit, which Court, on October7, 1913, affirmed the decree of the said District Court of the United States forthe District of Indiana;
And whereas, an appeal was taken on August 10,1914, to the Supreme Court of the United States from said decree of the Circuit Courtof Appeals for the Seventh Circuit, which appeal is now pending in said Supreme Court,entitled, "Curtice Brothers Co., Appellant, v. Harry E. Barnard, et al.,"and numbered 243 on the docket thereof for the October Term, 1915;
And whereas, since the institution of said proceedingsin the District Court of the United States for the District of Indiana, the governmentof the United States, acting by its proper officers, hereinafter named, and underauthority of the Act of Congress, approved June 30, 1906, known as the "Foodand Drug Act" promulgated a rule authorizing food products containing benzoateof soda to pass into commerce between the States, which rule is in the followinglanguage:
" It having been determined that Benzoate of Soda mixed with food is not deleterious or poisonous and is not injurious to health, no objection will be raised under the Food and Drugs Act to the use in food of benzoate of soda, provided that each container or package of such food is plainly labeled to show the presence and amount of benzoate of soda.
(Signed) George B. Cortelyou,
Secretary of the Treasury
Secretary of Agriculture
Oscar S. Straus,
Secretary of Commerce& Labor
(F.I.D. 104, issuedMarch 3, 1909.)
And whereas, the paramount and controlling authorityof the Federal government over foods in original unbroken packages entering intointerstate commerce is now recognized and admitted, in accordance with which recognitionand admission the Board of Health of the State of Indiana, successors in office tothe said appellees, under date of April 9, 1915, did promulgate the following regulations:
"Whereas, the decisions of the Supreme Courtof the United States in cases concerning the sale of food transported in interstatecommerce, and sold in original packages, reserve to officials charged with the enforcementof the Federal Food and Drug Act the authority to regulate the labelling and characterof such food, the chemist to the State Board of Health, who is the state food anddrug commissioner, is hereby instructed to follow, without exception, the regulationsfor the enforcement of the Food and Drug Act, promulgated by the Secretary of Agriculture,the Treasury, and Commerce and Labor, in the enforcement of the pure food and druglaw, Chapter 104, 1907, in the cases of food sold in interstate commerce in the originalunbroken packages;"
"And whereas, there now, therefore remainsno question at issue before the Supreme Court of the United States for adjudicationbetween the parties to said proceedings, entitled "The Curtiee Brothers Co.,Appellant, v. Harry E. Barnard, et al;"
NOW THEREFORE, in consideration of the foregoing,IT IS HEREBY STIPULATED by counsel for the parties thereto, that the appeal hereinshall be dismissed without prejudice, and without costs to either party as againstthe other.
Evan B. Stotsenburg,
Attorney General of the
State of Indiana.
This stipulation gave as a free gift to CurticeBrothers everything that they were asking for through both the District and FederalCircuit Court of Appeals which it had been denied by both Justice Anderson and JusticeKohlsatt. The whole stipulation appears to have been composed by Lawrence Maxwell,attorney for Curtice Brothers. It assumes that the contention of the Curtice Brothersthat benzoate of soda is a perfectly harmless substance is true. It has never beenpronounced so by a Federal Court. In so far as experts are concerned, there is alwaysa difference of opinion, but the far greater number of experts have held that benzoateof soda is harmful. Those who used it have been led by one cause and another to entirelyabandon its use. Even the persons who sought to restrict the Indiana State Boardof Health from obeying the rules and regulations under the State law finally cameto see the error of their ways and joined the ranks of the non-users of benzoate.The three Secretaries who signed Food Inspection Decision 104 had no warrant by lawto make such a ruling. There was only one authority named by the law to bring anindictment under the law. This indictment was not valid unless it was sustained bythe Federal court. The publication of this order on March 3, 1909 was a plain violationof law. The Indiana Board of Health on the 9th of April, 1915, issued an order forbiddinginterference with the sale of benzoated goods as long as they were in the originalpackages. The Attorney-General of the State of Indiana advised the commissioner offoods that there were certain conditions in which imported packages never ceasedto be in the original containers. This of course is a reductio ad absurdum.The very moment an Indiana dealer sells goods it is an act of intrastate commerceand brings that article directly under the control of the Indiana law.
CONTEMPT OF COURT
In my testimony in the Indiana case, Mr. Baldwin,the attorney for the complainants in cross-examination endeavored to fix the responsibilityof the almost unanimous sentiment expressed in the newspapers and magazines on me.He asked me if I kept in touch with the progress of the case. I told him I did asI was greatly interested in it, that I knew it was under way and had been pendingfor a long while. He asked me this question:
Q. Now then, you have stated your opinion here to the reportersof the different papers as to the outcome of that case?
A. I think I have said that I hoped it would be decided in favorof the State of Indiana.
Q. You said that to the reporters of the papers.
A. I think so. I do not see any reason why I should not sayso.
Q. You said that to them with the expectation that they woulduse those statements in the press.
A. I think reporters usually do.
Q. It is your experience that they do use those things.
A. I have no objection to my opinion being expressed in thepublic press on a question of that kind; none whatever;
I have a right to my opinion in this country and will exerciseit.
Q. Didn't you know that it is improper for any person to expressan opinion as to what the Court was going to do in a pending case.
A. In what sense? In what way?
Q. I say in a way so that that opinion would get in the newspapers.
A. As to the outcome of the case?
A. I did not know that it was improper to express the hope ina civil suit without a jury that the decision would be this way or that. If it werean illegal or an improper thing I am sorry I said it. I have done it dozens of timesas to cases I have seen on trial.
Q. You made it in such shape that that opinion got.into thenewspapers?
A. I suppose it did get into the newspapers. I had no objectionto its getting in.
Q. In fact you wished it to get in?
A. I did not think of that.
Q. You must have volunteered it, because it was not forced fromyou.
A. I did not run around and hunt them up. They came to me.
Q. You voluntarily made those statements?
A. Oh, yes. Nobody tried to force me to make any.
Q. Do you keep a set of clippings from different papers at all?
A. I am not a subscriber to any agency. I usually cut out articlesin which I am interested that come to my notice.
Q. And don't you know that those statements of your opinionwere published generally throughout the country?
A. I don't know if they were or not.
Q. Don't you know they were published in other papers than thosein Washington?
A. Oh, I suppose so; I don't know.
Q. Do you know whether they were published in any Indianapolispapers or not?
A. I do not.
Q. Don't you know they were published in the Detroit Free Press?
A. I do not.
At this point Mr. Baldwin offered an articlepublished in the Washington Post, July 13, 1910. This article related thefacts that at the 66th Convention of the American Institute of Homeopathy, held atPasadena, California, a resolution was adopted denouncing food-laws that prohibitthe use of preservatives in food and the use of sulphur in curing fruit. He statedthat 12,000 homeopathic physicians had sent telegrams to President Taft and SecretaryWilson in favor of the farmer, the fruit-grower and the preserving factories andagainst the pernicious rulings of Dr. H. W. Wiley, Chief of the United States Bureauof Chemistry. The latter part of this clipping reads as follows:
"Although the American Institute of Homeopathy at its convention at Pasadena, Cal., Monday, adopted a resolution rescinding its action taken last year condemning the use of benzoate of soda as a food preservative, Dr. Wiley, chief chemist of the Department of Agriculture, has stronger opinions than ever on that subject. Dr. Wiley's views did not prevail in the department, as the board appointed by Secretary Wilson under the pure food law disagreed with the chief chemist and sanctioned the use of benzoate of soda as a food preservative.
" 'The developments during the last year,' said Dr. Wiley, 'have accentuated my opinion as to the harmful character of benzoate of soda as a food preservative. I expect to see that view sustained by the Federal courts, as the evidence that has been submitted recently in Indiana cases points that way.' "
(Page 3460, Indiana Case.)
I never lost faith, in the whole two or threeyears during which the Indiana case was considered, in the character of the outcome.I think Mr. Baldwin, the attorney for the complainants, was justified also in hisoptimism that the Referee Board would win. He realized that all the heavy artilleryof the most powerful government in the world had been brought into play and directedagainst the crackling reports of the short shot-guns fired by the Bureau of Chemistry.Later he must have realized the truth of the poem;
Truth crushed to earth will rise again;
The eternal years of God are hers;
While error languishes in pain
And dies amid his worshippers.