THE RECTIFIERS REFUSED

It is hardly necessary to add that the rectifiers who had been engaged for many years under Government license in the manufacture of compounded and imitation whiskeys failed to avail themselves of the method of labeling suggested by the Attorney-General. After having secured the support of Secretary Wilson for continuing their frauds upon the consumers of whisky, they were dumbfounded by their failure to have F. I. D. 45 repealed. They were still more greatly disturbed by having F. I. D. 65 substituted in its place. They were defeated and discouraged, but not eliminated.

They immediately took steps to secure Court decisions for the purpose of declaring both F. I. D. 45 and F. I. D. 65 illegal and void. To this end they were wise in selecting the courts before which they proposed to bring their petition.

They filed their first petition before the Federal District Court, sitting at Cincinnati, Hon. A. C. Thompson being the presiding judge. Cincinnati was the great center of the rectifying industry. For years the rectifiers had been making in that city compounded and imitation whiskies designated by high-sounding names and sold under claims of great age. This product was derisively known locally as "Nigger whisky." The income from these spurious whiskies was too large to be given up without a struggle. Some of the most influential citizens of Cincinnati were engaged in the rectifying industry. They were also supporters of the dominant political party. For this reason the court of Cincinnati was considered the most favorable one in which to secure a judgment declaring these standards of whisky illegal. The filing of this suit was not made known to me until the Saturday previous to the hearing of the case on the following Monday. I received an S. 0. S. telegram from the United States District Attorney asking for my immediate presence in Cincinnati. I had only time to secure a copy of the brief which I had left with President Roosevelt, and which he had forwarded to Attorney-General Bonaparte, and take the train on Sunday afternoon. The train was late and I did not reach the District Attorney's office until 15 minutes before ten o'clock on Monday morning. The District Attorney was utterly helpless in this matter. He knew nothing of the case and it was impossible to instruct him in fifteen minutes. I told him the only hope was to obtain from the judge a postponement of the trial, in order that we might secure proper witnesses and that he should have opportunity to understand the case properly. When Court opened the District Attorney promptly moved for a postponement of two weeks. The attorney for the rectifiers, Mr. Warwick M. Hough, vigorously opposed any postponement. The Judge also seemed reluctant to grant the District Attorney's petition. Finally, however, he consented to an adjournment of one week. At the end of the week the District Attorney was fully acquainted with the nature of the proceeding and a number of competent witnesses were on hand to defend the Government's position. Judge Thompson was acknowledged to be one of the best District judges on the Federal Bench. He was held in high esteem, not only for his legal ability, but as a citizen, always interested in what was right and proper in regard to civic duty. At the beginning of the trial he announced that it must be completed on that day, including an hour granted to each side to make arguments before the court. He also declared that each side should have an equal time for presenting the views of witnesses. The matter for the state was forcibly presented, particularly by Dr. Joseph P. Remington of Philadelphia, and Dr. John Uri Lloyd of Cincinnati. Competent chemical testimony was also presented by the Bureau of Chemistry before the Court.

After the arguments were made and the trial was over, all the witnesses for the Government congregated in the office of the District United States Attorney. We were speculating as to what the verdict would be. The Judge had taken the matter under consideration and we knew there would not be a decision on that day. The District Attorney was very hopeful of securing a favorable verdict and based that hope largely on the testimony of Dr. John Uri Lloyd, who was not only a most eminent pharmaceutical chemist but a very personal friend of the Judge himself. We of course realized that the Judge's opinion would not in any way be influenced by personal friendship, and this was particularly the case because some of the most prominent rectifiers of Cincinnati were also intimate friends of the Judge.. While we were discussing these probabilities a messenger came from the Judge's chambers with a note to the District Attorney asking that he be furnished with a copy of the brief of Dr. Wiley which had been offered in evidence in the court. We all felt that this was an important request, believing that if the Judge would read this report in full he would not be inclined to support the contention of the rectifiers. Our fondest hopes in this matter were justified. When Judge Thompson issued his report in about three weeks subsequent to the trial, it was found to be a complete vindication of F. I. D. 45 and F. I. D. 65.

Not at all discouraged by their failure, the rectifiers appealed to other Federal Courts in other localities. Among these localities were Springfield, Illinois; Covington, Kentucky; Indianapolis, Indiana; Buffalo, New York; Baltimore, Maryland; and San Francisco, California. In each case the opinions of the Court were entirely in harmony with the original opinion of Judge Thompson. Meanwhile the Bureau of Chemistry, shackled by the Board of Food and Drug Inspection, deemed it inadvisable to bring any cases against rectified spirits masquerading as whisky as long as the matter was still before the courts. It was known that finally the decision would have to be made by the courts anyway and any punitory steps might prove to be entirely futile.

Mr. H. Parker Willis in an article published at this time made the following comment on this procedure under the heading, "The Public Will Not Buy Whisky Labeled 'Imitation.'"

"The new regulations, and the cases brought under them, developed one particularly interesting fact in the situation: the distillers and rectifiers could not dispose of their goods for drinking, either as alcohol or as 'imitation whisky.' The actual name 'whisky,' without modification, was necessary to disposal of their product, notwithstanding that it was precisely the same article under another name. This was clearly brought out when the Western distilleries applied to Judge Van Fleet of the Northern District of California for an injunction restraining the marking of alcohol as ordered by the Bureau of Chemistry, alleging that they had been obliged to shut down their plant through inability to dispose of their product when marked 'alcohol.'

"Because of the hostile attitude of the courts, whisky manufacturers resolved to turn their attention in other directions. They had hoped to secure an easy victory through the judicial machinery of the Government; but having been defeated there, and knowing that there was nothing to expect from Congress, they now turned again to the Executive. The new rules, with the requirement that whisky be branded as 'imitation' when it consisted of neutral spirits primarily, had gone into effect July 1, 1908, although prior to that date the distilling interests had accumulated as large stocks as possible under the old regulations for marking in order that they might continue to send out their goods as 'rye,' 'Bourbon,' or 'copper distilled' whisky, instead of being compelled to use the term 'imitation.'

"Pressure upon the Roosevelt administration for action designed to 'relieve' the rectifiers now became acute. Congressman Longworth, son-in-law of President Roosevelt, and friend of representatives of the Cincinnati distilling district, exerted himself in behalf of the rectifiers, and a simlar position was taken by numerous other members of Congress. Representative Perkins of New York, now chairman of the Foreign Relations Committee of the House and a historian of some reputation, had already devoted himself to securing a favorable ruling in the interest of Duffy's Pure Malt Whisky. An interesting correspondence passed between Mr. Perkins and the Department of Agriculture, in the course of which Mr. Perkins noted for the benefit of Secretary Wilson that 'the Duffy Malt Whisky Company * * * is controlled by our most prominent and leading citizens, and I trust matters can be adjusted in such a way as not to injure a long-established industry.' Other statesmen wrote that the Duffy Company 'controlled considerable political influence.' Not to be outdistanced in his efforts for the rectifying interests was Representative Sherman, now Vice-President.

APPOINTMENT OF THE 'WHISKY COMMISSION'

"During the winter a committee of rectifiers and spirit distillers, represented by A. J. Sunstein and others, visited Washington, and sought to persuade the administration of the great harm that was being done to the rectifying interests. The President finally harkened to the representations of the rectifiers, and appointed a 'Whisky Commission,' consisting of Secretary of Agriculture James Wilson, Dr. F. L. Dunlap, Associate Chief of the Bureau of Chemistry, and John G. Capers, head of the Bureau of Internal Revenue of the Treasury Department. Secretary Wilson and Commissioner Capers were already known as advocates of the views of the rectified whisky interests, while Dr. Dunlap had shown a strong disposition to dissent from the existing rulings of the Government. There was a good deal of mystery about this Commission. Although the Associated Press sent out a frank statement by President Roosevelt to the effect that such a Commission had been appointed, Secretary Wilson took occasion to assure newspaper men that the Commission did not exist as such, and that the President had merely asked for a little advice. Commissioner Capers admitted the existence of the Commission, but Dr. Dunlap said nothing.

"After several weeks of discussion and inquiry, the three advisers reported to the President in favor of allowing liquor made from neutral spirits to be designated as whisky. Mr. Sunstein and his committee had said that they would be satisfied if they could, be allowed to brand their liquor as 'redistilled whisky,' 'rectified whisky,' or 'neutral whisky.' The three commissioners, or conferees, now advised that some such plan be followed, telling the President that this was substantially the verdict that had been arrived at by the Royal Commission. on Whisky, which had been sitting in England, and which, they stated, had decided that any spirits made from grain was whisky. In a letter written on behalf of the Commission, Dr. Dunlap said, 'It is my opinion that the term 'whisky' should not be denied to neutral spirits diluted with water to a proper strength and colored with caramel,' though he recommended the use of some qualifying name, such as 'rectified whisky.'

The approval of President Roosevelt of Attorney-General Bonaparte's definitions of whisky created a curious environment in the Bureau of Chemistry. The Secretary of Agriculture, the associate chemist, Dr. Dunlap, the solicitor, Mr. George P. McCabe, together with the chief of the Bureau of Internal Revenue, Mr. John G. Capers, were all on the other side of the question. The President, Attorney-General Bonaparte, and the Chief of the Bureau of Chemistry were all agreed on the definitions.

It was hard, however, to get Court action. Attorney-General Bonaparte was very insistent that cases be brought in order to test the accuracy of his definitions. Cases could only be brought, under the existing conditions, when a majority of the Board of Food and Drug Inspection would initial requests either for criminal action or seizure of goods. There was much hesitation on the part of two members of the Board of Food and Drug Inspection in regard to this matter. It was not until the Secretary of Agriculture ordered them to proceed that they joined me in bringing actions before the Court. All effort to bring a criminal action, however, was negatived. We did bring a number of cases of seizure of goods; that is, action in rem. In every ease of this kind which reached the courts, unanimous approval of the Attorney-General's opinion on whisky was obtained. In all seven cases were finally brought to the bar of justice out of hundreds recommended by: the Bureau.

CASE 1. Notice of Judgment 15. The United States of America, Libelant, vs. 93 Cases, containing 12 bottles each, of alleged Whisky, C. Person's Sons, Defendants, before the Western District Court of New York, Case No. 79. Judge, the Hon. John R. Hazel.

This Whisky was adjudged adulterated and misbranded and, under the law, the seized liquor was ordered to be destroyed or, after proper branding, delivered to the claimants under a bond of $2,000 that it would not be sold in contravention of the existing law. Date of judgment, August 27, 1908.

CASE 2. Notice of Judgment 45. United States vs. 4 Barrels of Liquid Purporting to be Whisky. This case was brought in the District of Columbia, Case No. 790. The libel alleged that the product was, 4 'colored and mixed by the addition of coloring matter, in a manner whereby inferiority is concealed and in order to imitate old mature whisky and whereby the said product does imitate and appear to be old mature whisky."

The Judge who issued the decree of condemnation was the Hon. Thomas H. Anderson. Date of the Judgment, March 13, 1909.

CASE 3. Notice of Judgment 68. United States of America vs. Fifty Barrels of Whisky, Labeled "Bourbon Whisky," Manufactured in New Orleans from fermented molasses. The presiding Judge was the Hon. Thomas J. Morris of Baltimore. The decree of condemnation was in the same terms as those already reported. In his decision Judge Morris was particularly luminous. This was a jury trial. After the evidence had been given and the counsel for the defense had addressed the jury, Judge Morris said: "I will not call upon the counsel for the United States to reply. The case as it is presented to the jury is a very clear one. I reject the only prayer offered by the defense. Really, that prayer concedes the misbranding of the liquor, and asks me to say to the jury that if they shall find that this was done under the control- and by the agents of the United States, the United States is estopped from proceeding to condemn these goods and forfeit the goods from misbranding." The examination of this whisky by the Bureau of Chemistry disclosed that it was distilled from fermented molasses, and was called Bourbon Whisky. Date of Judgment, May 14, 1909.

CASE 4. Notice of Judgment 112. United States vs. 10 Cases of Quinine-Whisky, Case No. 10142, the Hon. Kenesaw M. Landis, United States District Judge. The goods were ordered destroyed or to be released on a bond of $1,000. Not to be sold contrary. to the Food and Drugs Act as is usual in such cases. Date of Judgment, November 20, 1909.

CASE 5. Notice of Judgment 349. United States vs. H. A. Thierman & Co. of Louisville, Ky. Seizure of five barrels of whisky transported from Kentucky to Indiana. The name of the Judge in this case is not disclosed. The decision was not rendered until after the advent of the administration of President Taft, and the notice of judgment carried this statement: "This decree was rendered prior to the issuing of Food Inspection Decision 113, which revoked Food Inspection Decisions 45, 65, 95. In other words, the Secretary of Agriculture, under the law, was forced to, regard the opinion of this Court although it had been-determined that the Bonaparte decision, which was the one which had been supported by all of these decisions, was soon to be revoked by the action of the United States itself, thus nullifying the Court's decision to the effect that the Bonaparte opinion was wholly legal. Date of Judgment, May 17, 1910.

CASE 6. Notice of Judgment 353. United States vs. the Hannis Distilling Co. of Philadelphia, Pa. The usual course was followed and the decision rendered, but the name of the Judge is not given. The date of the decision is May 17, 1910. It has the same notice in regard to decision 113 as carried by the former case.

CASE 7. The final case is Notice of Judgment 361. United States vs, Davis & Atkins of Richmond, Va. The name of the Judge is not given, but the whisky was condemned in the same manner as those just preceding. This also contains the same notice in regard to decision No. 113 as the two preceding cases.

This makes seven cases in the Federal Courts supporting the validity of the opinion of Attorney-General Bonaparte, and in not a single instance did any United States Court before which the matter was presented, nullify that decision. Nevertheless, in spite of all these Court decisions the opinion of the Attorney-General Bonaparte was revoked by executive authority and a diametrically different opinion supporting all the contentions of the rectifiers substituted in its place. Thereafter, no mention of any case against whisky is found in the Notices of Judgment. It was not necessary because the United States authorities, in plain violation of Court decisions, had decided that the Bonaparte opinion was all wrong.

I never was able, even in the two years that intervened from the time of the decision of Attorney-General Bonaparte to the close of the Roosevelt administration, to get the Board of Food and Drug Inspection to approve of any criminal case against any dealer who was an offender of the law. I have all the correspondence in which Attorney-General Bonaparte urged that his decision be taken before the Courts, and in every instance when it did reach the Court he was sustained. In all the attempts of rectifiers to nullify his decision by bringing Court cases themselves, and this they did in eight separate cases, the rulings of the Court were always against them.

To show the attitude of the Board of Food and Drug Inspection in this matter, I made determined efforts to bring a case against Duffy's Pure Malt Whisky, either to seize the whisky or to bring a criminal action against the manufacturers. Every move in this direction was blocked by my collegues on the board. Under date of October 3rd, 1908, the following note in regard to this matter was made:

"Doctor Dunlap states that he initialed the first named seizure under a misapprehension, thinking that the Duffy Malt Whisky hearing was to be held here instead of in Buffalo, although it had been signed by the Secretary. I understood from Doctor Dunlap that the matter was held up by the Solicitor and that it would not be sent to the District Attorney until after the report of the hearing at Buffalo had been received. In regard to the seizure of October 3, he refused to initial the recommendation on the ground that it would not be proper to do so until the hearing of the Buffalo case had been received. I stated to him that the cases were entirely distinct, the Buffalo case being a criminal action recommended several weeks ago and the seizures are actions to be brought at the time mentioned, namely September 30 and October 3, 1908, a and if not seized without delay the goods would escape. I stated that Duffy's Malt Whisky was one of the most gigantic frauds of the age and a flagrant violation of the law, and that there was no necessity that we delay at all in the matter. He still, however, refused to initial."

This sufficiently illustrates the determined efforts of my colleagues to protect Duffy's Pure Malt Whisky from being molested either by seizure or bringing any criminal case against the maker. The few cases that were brought against rectified whisky were at the direct request of the Attorney-General, followed by the order of Secretary Wilson to proceed as the Attorney-General requested.

On the 3rd of October, 1907, 1 addressed the Solicitor of the Department of Agriculture, as follows:

"In a recent conversation with me the Attorney-General urged that cases be prepared as soon as possible in the whisky case. Fortunately, acting under the direction of the Secretary, we had already secured a great many cases. I have prepared three of these typical cases to be sent to the Attorney-General according to his request, with the least delay possible. They represent types of mixture which might well be seized under the law for a test case. The Attorney-General informed me that he believed Mr. Hough was trifling with him and it was not possible to secure any agreement and that he proposed to go ahead at once if such an agreement as dictated by him should not be acceptable. These cases are all ready for seizure and I urge that they be sent to the Attorney-General as requested without delay."

Following this, I cited to the Solicitor fifteen localities in the City of Washington where illegal whisky was on sale, describing each one minutely.

On November 6, 1907, the Attorney-General addressed a letter to the Secretary of Agriculture, in which he informed him that he bad been unable to come to any agreement on a statement of facts, and, therefore--"it will be appropriate for you to proceed with the enforcement of the law relating to the subject of labeling whisky in accordance with the procedure prescribed by law."

In the midst of these discussions the Secretary of Agriculture received a letter from John G. Capers, Commissioner of Internal Revenue, looking to a reopening of the questions decided by Attorney-General Bonaparte which it appears was due to the express desire of President Roosevelt. The letter dated Dec. 17, 1907, is as follows:

"I have the honor to acknowledge receipt of your letter of December 13, written following the conference between you, Mr. McCabe of your Department, and Assistant Secretary Winthrop and myself of this Department. In conformity with the suggestions made by you at that time and the suggestion made in your letter of December 2, the Secretary of the Treasury has referred the matter to the Attorney-General for an opinion upon the matter of labeling whisky, etc., under the pure food law in its application to internal revenue laws, as well as to the Department of Agriculture as set out in his opinion approved by the President and addressed to you April 10 last.

"This action by the Secretary is also taken in view of the expressed desire of the President in a communication addressed to the Secretary December 8, that the matter be taken up by the Treasury Department. The Attorney-General has been requested to render an opinion as early as possible."

I referred to this movement on the part of the President in a letter which I wrote to Dr. James H. Shepard of Brookings, S. D., Jan. 4, 1908, which I quote:

"I cannot tell you much about the present status of the whisky case except this: The rectifiers, through Senator Hopkins and other influential senators, made a proposal to the President that they would withdraw all suits to set aside the present regulations if the present regulations could be modified so as to suit their views, or in so far as this could be. I understand the President appointed a commission consisting of Commissioner Capers, the Secretary of Agriculture, and Dr. Dunlap, to make the necessary revision of the regulations. In so far as I know the revision is to be made on a brief submitted by the rectifiers. I do not think that anyone who is in favor of maintaining the present regulations requiring imitation and compound whiskies to be so marked has been invited to appear before the Commission. Commissioner Capers has said in at least two printed interviews that he was going as far as he could to meet the requests of the rectifiers, even if possible to open up the question of like substances. I don't know what attitude either the Secretary or Dr. Dunlap will take in this matter but I would like to wager you a peanut that I could guess.