A CHANGE OF MIND

While writing these memoirs I was told that one of the principals in the Indiana case, namely Walter H. Williams of Detroit, was convinced by the evidence brought before the Federal Court that he was wrong in believing that benzoate of soda sliould be used in food products. Probably the adverse decisions of Judge Anderson and the Circuit Court of Appeals in confirming it strengthened Mr. Williams' opinion in regard to the matter. In order to be certain about this matter 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 quote the 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 illegal creation of the Board of Food and Drug Inspection and of the Remsen Board of Consulting Scientific Experts, and by illegally transferring to the Solicitor the duties of the Bureau of Chemistry in enforcing the law, probably as much as $500,000 of public money appropriated for enforcing the food law was spent in protecting the business of adulterators and misbranders and in trying to force upon the people of Indiana these adulterated and misbranded products. The conversion of a man like Mr. Williams is a most pertinent fact. It is an additional evidence of the enormity of the crime commited. against the Food and Drugs Act.

This statement of Mr. Williams illustrates the wisdom 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 desirability of changing their ways than any amount of coaxing, persuading and other methods of procedure intended to wean the offenders of the law from their habits of infracting it. Moreover, it is the method of procedure which the law itself has laid down, and which the Supreme Court has affirmed with the added injunction that all unnecessary delay should be swept aside.

It is interesting to see that in the correspondence I lately had with Mr. Walter Williams he informed me that Mr. Grosvenor, who was his attorney, was also converted during the Indiana trial and subsequently moved to Indiana to establish a very extensive business in the production of non-benzoated catsup and other food products.

The record of the Indiana benzoate case will prove a mine of information to the subsequent historian who has opportunity and desire to review the whole case. Its 5,000 pages of printed matter disclose the magnitude of the conspiracy formed in the Department of Agriculture to destroy the provisions of the pure-food law and to seek to declare unconstitutional the Indiana pure-food law. 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 Supreme Court of the United States. The copy which I have belongs to a private law firm in the city of Indianapolis. Owing to the courtesy of this firm I have been able to keep this copy of the record many years, and during that time as leisure was afforded me, I have studied its pages and prepared from time to time the abstracts thereof which are here presented. I wish I could give more space to this remarkable document.

I cannot leave these topics without summarizing briefly the testimony which the State of Indiana, defendant in this case, offered before the Moss Committee (pages 531 to 549, inclusive). The first witness called was Dr. Harry E. Barnard, Food and Drugs Commissioner of the State of Indiana, named as one of the defendants in this case. Dr. Barnard testified to the fact that Indiana had a pure-food law and he was the commissioner thereof. The particular section of the 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 complainants in filing their suit asked of Judge Anderson a restraining order preventing the State Board 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 sentiment in the State favoring the repeal of the law, that it was supported enthusiastically by both political parties and that the press of the state was unanimously in favor of the enforcement of the law according to the interpretation put upon it by the State Board of Health. He showed that if the injunction were made permanent it would result in the repeal of the entire law and not simply one section of it.

He also testified that all the canners of the State putting up ketchup and other products were heartily in sympathy with the law as 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 present at practically all the proceedings before the Federal Court and generally attended the Attorney-General. of the State, Mr. Bingham, in the taking of depositions without the state. He also testified that in taking these depositions they frequently were given by employees of the Department of Agriculture in areas extending from Maine to California. This part of the testimony of Dr. Barnard is quoted verbatim:

Mr. Moss: In the taking of these depositions, did Curtice Brothers and Williams Brothers take any testimony from any employees in the national Department of Agriculture?

A. They did.

Q. State to the best of your recollection how many employees of the Department of Agriculture gave testimony in this case for the firms of Curtice Brothers and Williams Brothers.

A. With the exception of two or three young men, subjects and clerks, 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 members of 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 employees of the national Department of Agriculture?

A. We wished to secure the testimony of Dr. Wiley, Chief of the Bureau of. Chemistry, and those of his assistants who helped him in his benzoate of soda investigation.

Q. Did any of the employees appear voluntarily to give their testimony 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 were personally averse to giving such testimony.

A. No.

Q. Did any of these employees appear finally and testify, or give their depositions.

A. Yes; after we went to the Supreme Court of the District of Columbia to compel them to testify.

Q. In actual tests, then, did you find the Department of Agriculture cooperating with the State of Indiana in the enforcement of the pure-food law or operating in opposition to the enforcement of the pure-food law?

A. We found the Department of Agriculture opposing the State of Indiana in every move which we made to defend the pure-food law of our State.

This astounding attitude of the Department of Agriculture, with the exception of the Bureau of Chemistry of that Department, is the most remarkable illustration of how funds appropriated for the enforcement of the Federal pure-food law were squandered in helping adulterators of foods in their attempt 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 their efforts to break down the Indiana law, were paid their salaries and expenses out of the money appropriated by Congress to carry out the provisions of the national pure-food law. While no evidence was asked for in regard to the persons employed by the Referee Board in their investigation, and who appeared as witnesses against the State 6f Indiana, as to the payment of their salaries and expenses while engaged in this activity, it is reasonable to suppose that they were treated in exactly the same manner as their principals. This was a great boon to the complainants as it saved them perhaps many thousand dollars which they would have had to pay for the testimony of over 75 witnesses whom they called for the support of their complaint.

Attorney-General Bingham was also a witness before the Moss Committee (pages 537 to 549, inclusive).

Mr. Bingham was asked by Mr. Moss to state concisely to 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 was in question. No federal law was involved. That if Judge Anderson sustained the prayer of the complainants the Indiana pure-food law would be practically destroyed. That in so far as he was acquainted with the public sentiment of the State it was entirely favorable to the proper enforcement of the law. Mr. Bingham reported also that in the 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 of the State of Indiana he wished to take the testimony of employees of the Bureau of Chemistry, and he first applied to the Department of Agriculture. Mr. Bingham said he first approached Dr. Wiley who informed him that he would prefer that he first approach Secretary Wilson. He testified that his request that Dr. Wiley should appear in Indianapolis was not granted.

He testified that he next appealed to the President of the United States. As a result of this attempt of Mr. Bingham he felt certain that 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 on the stand, who after giving his name and his profession declined to answer a question in regard to the benzoate matter unless he had permission to do so from the Secretary of Agriculture. He carried the request to compel the testimony of members of the Bureau of Chemistry to the Supreme Court of the District of Columbia before Justice Barnard. A lawyer from the Solicitor's office of the Bureau of Chemistry appeared before the Judge to argue against the order requiring the evidence to be given. The lawyer from the Department of Agriculture urged that as this was expert evidence it 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 should go 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 of these depositions you received on behalf of the State of Indiana any encouragement or 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 whether he would testify as an expert or not-I wanted his opinion of the results--he said that 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 act voluntarily, did he not?

A. He explained to me with reference to that particular thing that he did not propose to have any padlock put on his mouth.

I have given these copious extracts from the Indiana case because I consider it to be a most amazing attempt to pervert the national pure-food law and the purposes for which it was enacted to protect the interests of food adulterators and misbranders.