SENSITIVE TO NEWSPAPERS AND MAGAZINES

The officials, paid experts and aides of the low-grade manufacturers realized very keenly their unpopularity as reflected in the notices of their activities which appeared in the newspapers and magazines. This sensibility caused Dr. Remsen at the end of his testimony before the Moss Committee to express his feelings which have been recorded in another place. Prior to this he was keenly sensitive to what the newspapers were saying about him and his Board. On Feb. 11th, 1910, in a letter to the Secretary of Agriculture, (Moss Committee, Page 366) he said:

"A representative of our principal newspaper brought me yesterday an inflammatory article which had been sent by the Washington correspondent. The object of the article was to discount the reports of the Referee Board on the sulphur question. It was venomous and inflammatory to the last degree. It also took up the benzoate question with the object of showing how entirely unreliable the work of our Board had been. Our bombastic friend, C. A. L. Reed* of Cincinnati, was held up as a great and good man and a high authority. I presume this attack has been sent all over the country. I made some comments on it and the newspaper to which it was sent here declined to publish it. I have no doubt as to the source of that article. It was altogether the worst thing that I have seen."

*Eminent surgeon and Past-President of the American Medical Association. Died in 1928.

The curious thing about all this is that the Secretary of Agriculture and his aides, the Remsen Board and their followers were continually insinuating that there was some one in Washington who inspired all these criticisms of the Remsen Board. They were never bold enough to come out openly and say who this person was. It is perfectly plain who was in their minds. The report of Dr. Bigelow, who was the chemist sent to California, not by Secretary Wilson, but by myself, was refused publication when it was completed and has never yet seen the light of day. Dr. Bigelow in this report showed how by dipping the freshly cut fruits in a weak solution of common salt and then drying them a product was produced equal in color to the sulphured article and far more palatable, wholesome, and desirable in every way.

Large quantities of dried fruits made by this process were shipped to Washington, submitted to dealers and pronounced a far superior product in every way to the ordinary sulphured article. Also attention should here be called to the fact that the meat inspection law specifically denies the use of sulphur dioxide and sulphites in the preparation of meats on the ground that a preservative of this kind is injurious to health. Its use had been discarded practically before the regulation forbidding it was made by reason of the scandal of embalmed beef which stirred this country deeply during the Spanish War. In other words the use of any sulphur dioxide or sulphites in meat was an adulteration, but in dried fruits it was necessary to prevent the destruction of the dried fruit business, in the eyes of the Secretary of Agriculture.

Further questioning of the Secretary threw additional light on this point:

MR. FLOYD: You, personally, as Secretary, were made responsible, but President Roosevelt acted in harmony with you in establishing this referee board?

SECRETARY WILSON: We have to obey the President of the United States when he indicates what he wants.

MR. FLOYD, I understand. The President, sanctioned this board?

SECRETARY WILSON: Oh, yes. He wrote to the presidents of the great universities and got them to recommend men, and when the men came that he wanted he ordered me to appoint them, and I appointed them.

MR. HIGGINS: Mr. Secretary, in your observation of the enforcement of this law, is it your opinion, based upon that observation, that it was a wise thing to have a referee board?

SECRETARY WILSON: It certainly was my judgment that we should have a referee board.

MR. HIGGINS: Is that confirmed by your experience with it?

SECRETARY WILSON: I have no reason to conclude that it was not wise.

MR. HIGGINS: Are you familiar with the character of the gentlemen who make up that board and their scientific attainments?

SECRETARY WILSON: By reputation only; I did not know them personally, any of them.

MR. HIGGINS: Have you ever imposed any restrictions on them as to the methods of investigation?

SECRETARY WILSON: No. I told them frankly when they began that nobody had any business to interfere with them anywhere; that they were to find us the facts with regard to what we submitted to them; and I did not impose any restrictions and nobody else had any right to, unless it was the President, and I did not think he would.

MR. MAYS: Did you have any doubt in your mind as to the legality of their appointment at the time?

SECRETARY WILSON: Never.

MR. FLOYD: Now, Mr. Secretary, how many of these great questions have been submitted to the referee board?

SECRETARY WILSON: I suppose I could count them on my fingers.

MR. FLOYD: The chairman tells me that that is in the record.

SECRETARY WILSON: Very likely it is in the record.

MR. FLOYD: Now, under the pure-food law, as I understand it, Mr. Secretary, the work of the Bureau of Chemistry is preliminary to a prosecution?

SECRETARY WILSON: Oh, surely.

MR. FLOYD: And no prosecution can be instituted against anyone in a criminal procedure until the Bureau of Chemistry has made an adverse finding and you have so certified to the district attorney?

SECRETARY WILSON: That is the way it is done.

MR, FLOYD: Now, I am going to ask you a question that I would ask other witnesses as to the effect of the decision of the referee board. In case the Bureau of Chemistry should make a finding adverse to the use of a certain commodity on the ground that it was deleterious to health and that should be referred to the referee board and the referee board should make a contrary decision, is there any way, under the regulations, to your knowledge, that the question at issue between the Bureau of Chemistry and the referee board could be taken into the courts and be settled by the courts?

SECRETARY WILSON: Of course, I can not state intelligently with regard to how a thing might get into the courts, but the department would enforce the decision of the referee board. They would do that, I suppose

MR. FLOYD (interposing): If the decision of the referee board was adverse to that of the Bureau of Chemistry the effect of enforcing the decision of the referee board would be to prevent the prosecution of anyone using that commodity?

SECRETARY WILSON: Well, it would depend on--yes, I see your point; yes, it would.

The unanimous decision of the committee investigating the expenditures of the Department of Agriculture completely exonerated the accused officials and censured their accusers.

ATTORNEY-GENERAL WICKERSHAM

Who certified to President Taft that Dr. Wiley was worthy of "condign punishment."

The activities of two Presidents, three cabinet officers, and one Attorney-General in promoting the efforts to exclude the Bureau of Chemistry from any efficient steps looking to the enforcement of the Food and Drugs Act created a veritable storm of protest, as has already been indicated, in the press of the country. This protest was voiced most effectively by the attitude of The World's Work under the able editorship of Walter H. Page. In the issue of that magazine for September, 1911, the following editorial comment is found, under the title, "The Fight on Dr. Wiley and the Pure Food Law."

There is no better illustration of the difficulty of really effective government than the obstructions that have been put in the way of Dr. Wiley, the head of the Bureau of Chemistry at Washington. So long as the Pure Food and Drugs Act ran foul of only small violators, it was easy to enforce it; but, as soon as it hit the vested interests of the rich and strong, the most amazing series of successful. obstructions were put in the way--so amazing and so successful that the story will be told with some fullness in the succeeding numbers of this magazine.

Here is a man--Dr. Harvey W. Wiley--who has given his whole working life to the protection of the people from bad and poisonous food and drugs. There is no more unselfish or devoted public servant. He has time and again declined offers of lucrative and honorable private work. He has lived and labored for this one purpose.

It is to him that we owe the law and the agitation for its enforcement. It is to him that we owe the education of the public which has brought state laws and municipal ordinances for pure food and drugs. It is to him that we owe such an important advance in more careful living and such a quickening of the public conscience as we owe to hardly any other living man; and the whole people are his debtors. He is the direct cause of a wider and safer public knowledge and of more healthful habits of life.

Still the Pure Food and Drugs Act is not yet enforced against the great offenders. Dr. Wiley has had his hands tied from the time of its enactment. The Board, whose duty it is to report violations of the law, consists of Dr. Wiley, Dr. Dunlap, a chemist, and Mr. McCabe, the solicitor of the Department of Agriculture. But out of the thousands of cases of adulteration and fraud that have been discovered, practically no cases against the strongest corporations and groups of law-breakers have been brought to trial. Dr. Wiley is a man of scientific distinction, of accuracy, and of responsibility. Yet his two associates on this board, men, to say the most for them, of far less ability and less distinction, have been permitted to check almost every move that he has made. The aged Secretary of Agriculture has given his confidence and his support to them and withdrawn it from Dr. Wiley.

More than this--the Attorney-General, reversing an opinion prepared by one of his own subordinates and accepting an opinion by Mr. McCabe, declared that the referee board of distinguished chemists (the Remsen Board) was authorized by the law--a very dangerous and very doubtful construction of a plain statute; and this Board has been used to prevent the enforcement of the law against the use of benzoate of soda. This Remsen Board has never declared that benzoate of soda is a permissible preservative. It has never been asked whether it can be or is extensively used to preserve rotten food. It was asked only if it proved injurious to the health of strong young men when taken for a time in small quantities. They found that it did these young men no appreciable harm. Then this declaration was used to permit the canners and packers of rotten fruits and vegetables to continue to put them up in benzoate of soda. Even if benzoate of soda does no harm to health, its use in disguising rotten food brings it within the proper prohibition of the law.

This incident is a good illustration of the way in which Dr. Wiley has been balked and hindered. Influences, legitimate and illegitimate, have been used to prevent the enforcement of the law in its most important applications.

Inside the Government and outside, the manufacturers of dangerous and unwholesome food and drugs have carried on a continuous and effective campaign against Dr. Wiley and his work. He has been practically without power to put the law into effect against strong offenders. He has been humiliated by being overruled by his subordinates. He has suffered from an inefficient administration of the Department of which his bureau is a part; for the venerable Secretary of Agriculture is too old vigorously to administer his great Department. Yet Dr. Wiley, purely for patriotic reasons, has suffered this hindrance and humiliation till some change might come which should unshackle him.

On the outside the bad food and drug interests--or some of them--have maintained a lobby in Washington, have kept "syndicate" newspaper writers in their pay to write about the unfairness and the injustice of the law and the unreasonableness and "crankiness" of Dr. Wiley. One such organization--or pretended organization--some time ago sent a threatening letter to all the most important periodicals, saying that large advertisers would withdraw their patronage if they published articles favorable to the law!

There has been an organized fight, therefore, against the law and the man. And, although the man's official power has been curtailed, he has won--won such a victory for the people as will insure the continuance, with new vigor, of the campaign for pure food and drugs, by national law and by local laws.

The "charge" against Dr. Wiley that provoked this popular outburst of approval, is not worth explaining. He made an arrangement to pay Dr. Rusby, a distinguished specialist, a higher rate for work per day than the law specified for per them payments, but less than the law permitted as a yearly salary. By this arrangement the services of Dr. Rusby to the Government were secured for less than if the letter of the law had been followed and he had been paid the yearly salary that the law specified--since he gave and was to give only a small part of his time to the work. This technical violation of the letter of the law--if it were a violation of its real meaning--has long been customary in many departments of the Government; for it has common sense and economy to commend it.

When the Attorney-General wrote that this offence deserved "condign punishment,"--the Attorney-General--what shall be said of him with respect? Surely it was a narrow and silly recommendation. He put a greater value on a microscopic legal technicality than on the incalculable service of a man whose work is worth more to the health and happiness of the people than the work of many Presidents and Attorneys-General. Dr. Wiley's "offence" was instantly forgotten by the public, which has some common sense if not much legal knowledge. But the accusation was important for this reason: it showed the determination of those who brought it to get rid of him.

Now, if Dr. Wiley deserves dismissal for any sufficient reason, it is proper and it is the duty of somebody to present such a reason. But to propose "condign punishment" for saving the public money by following a common custom of paying for professional service-that shows a personal and private purpose to be rid of him.

The upshot of it all is that Dr. Wiley has been made a sort of popular hero. Now popular heroism has decided disadvantages and even dangers. It is fair to Dr. Wiley to say that he has not sought such a place on the stage. He has his vanities (who hasn't?) and the popular appreciation of his work is of course welcomed by him, as it ought to be. But mere personal popularity and a personal "fight" are likely to obscure the main matter at stake. The main matter is the Pure Food and Drugs Act--not only nor mainly Dr. Wiley and his personal vindication, but the firm and permanent establishment of this fact and purpose: that no opposition of interested law-breakers, no personal jealousies, no departmental feuds, no infirm and feeble administration of any Department, no narrow legal technicalities, shall longer hinder the execution of the law that guards the health of the people. This is of far greater importance than anybody's tenure of office or than anybody's official "face" or dignity.

It has been made plain that the administration of the Agricultural Department is feeble. Feuds and cliques are not permitted to obstruct the laws in well-administered institutions. And it has again been made plain by the Attorney-General that this is a "legal" administration; and, again, that the President's amiable qualities lead him to patch-up and smooth-over troubles that become worse with every patching and smoothing and can then be removed only after public discussion and possible scandal. The incident ought and seems likely to bring big results in rallying public opinion to the support of the law and of its author and zealous and useful guardian. The investigation by the Congressional Committee that has the subject in hand will bring out facts that are likely to make the law far stronger than it has ever been.

:

Committee on Expenditures in the Department of Agriculture, 1911, investigating charges preferred against Dr. H. W. Wiley, Representative Ralph W. Moss, presiding. At the right of Mr. Moss are the three of the Democratic members of the Committee, namely, Hon. J.C. Floyd, Hon. R.L. Doughton, Hon. D.H. Mays; Henry E. Davis and Hon. W.P. Hepburn, attorneys for Dr. Wiley. On the left of Mr. Moss are the Hon. Edwin W. Higgins, Hon. Burton L. French, and the Hon. Charles H. Sloan, the stenographer and H.W. Wiley.

The editor of The World's Work did not have to wait long to know the conclusions reached by the committee investigating the expenses of the Department of Agriculture. The report was issued early in 1912. It was a complete vindication of the Bureau of Chemistry and a complete reversal of the penalties which the personnel board had inflicted, or tried to inflict on the Chief of the Bureau and his assistants. Before the committee's report was published, however, the President of the United States, who had been asked to approve the dismissal of the Chief of the Bureau, wrote the following letter to the Secretary of Agriculture (Page 2 of the Report):

"The truth is, the limitations upon the bureau chiefs and heads of departments to exact per diem compensation for the employment of experts in such cases as this is of doubtful legislative policy. Here is the pure-food act, which is of the highest importance to enforce and in respect to which the interests opposed to its enforcement are likely to have all the money at their command needed to secure the most effective expert evidence. The Government ought not to be at a disadvantage in this regard, and one can not withhold one's sympathy with an earnest effort on the part of Dr. Wiley to pay proper compensation and secure expert assistance in the enforcement of so important a statute, certainly in the beginning, when questions arising under it are of capital importance to the public."

Other high lights of the report of the committee are summarized below:

"The committee on expenditures in the Department of Agriculture beg leave to submit the following report of the recent hearings commonly referred to as the "Wiley Investigation." This inquiry was instituted on information that an alleged conspiracy had been entered into between certain high officials of the Bureau of Chemistry and Dr. H. H. Rusby whereby Dr. Rusby was to be paid a compensation for his services at a higher rate than authorized by law. * * * In the discharge of its duties under the rules of the House, your committee made a patient and careful investigation of the whole controversy. * * * Your committee regards the "Wiley Investigation," so-called, only an incident in its broader inquiry into the organization and administrative routine of the Bureau of Chemistry and the Referee Board. * * * We failed to find from the evidence in the whole case that there existed any secret agreement or that the terms of compensation or rates to be paid Dr. Rusby were withheld from the Secretary designedly or otherwise. * * * We therefore find from the evidence adduced that the charges of conspiracy have not been established, but, on the contrary, that the accused officials were actuated throughout solely by desire to procure for the Bureau of Chemistry an efficient assistant in the person of Dr. H. H. Rusby under terms and conditions which those officials believed to be in entire accord with the law, regulations, and practice of the Department of Agriculture. * * *

"The record shows that three members of the Referee Board were in attendance at the trial at Indianapolis, Indiana, in the capacity of witnesses at the instance and on behalf of the plaintiffs in the suit to which Curtice Brothers and Williams Brothers, who are interested in the sale of food stuffs to which soda benzoate has been added as a preservative, and that the expenses of these witnesses were paid by the Department of Agriculture. In the opinion of your committee the payment of these expenses by the Department of Agriculture was wholly without warrant of law. * * *

"Your committee does not question the motives or the sincerity of the Secretary of Agriculture, whose long service as the head of the Department of Agriculture has been of signal service to the American people. From the beginning, however, the honorable Secretary has apparently assumed that his duties in the proper enforcement of the pure-food laws are judicial in character, whereas in fact they are wholly administrative and ministerial. This misconstruction of the law is fundamental and has resulted in a complex organization within the Department of Agriculture, in the creation of offices and boards to which have been given, through Executive order, power to overrule or annul the findings of the Bureau of Chemistry.

"The statute created the Bureau of Chemistry as an agency to collect evidence of violations of the food and drug act and to submit this evidence duly verified to the Department of Justice for judicial action. The Secretary of Agriculture is the officer whose duty it is to transmit this evidence from the Bureau of Chemistry to the Department of Justice. Added to this simple duty is the more responsible obligation delegated to him by the three Secretaries to review the findings of the Bureau of Chemistry by granting a hearing to parties from whom samples were collected and in the light of these hearings, of deciding whether or not the findings of the bureau are free from error.

"This construction of the law, which, in the opinion of your committee, is the correct one, places the judicial determination of all disputes in the courts, where the standard of purity in foods must finally be established. It also makes it the imperative duty of district attorneys to proceed against all violators of the law on receipt of certified record of cases prepared by the Bureau of Chemistry; but if we accept this construction of the law in its full meaning, it is apparent that at the time of the taking effect of this law the prompt prosecution of every infraction, whether of major or minor importance, was an impossibility, as such a course would have utterly congested the business of the courts. * * *

"Thus the administration of the law began with a policy of negotiation and compromise between the Secretary and the purveyors of our national food supplies. * * *

"The strength of the statute and the jurisdiction of the courts cannot be affected by the executive orders of the Secretary of Agriculture, though they be issued in obedience to the suggestion of the President of the United States.

These respective duties of the Secretary and Bureau are enumerated separately in the statute and whatever other duties either may be charged with in the administration of the Act come by virtue of the rules and regulations established by the Secretary of Agriculture, the Secretary of the Treasury, and the Secretary of Commerce and Labor. * * *

"The Act of Congress approved March 4, 1907, contains this provision, 'and hereafter the Secretary of Agriculture is hereby authorized to make such appointments, promotions, and changes in salaries, to be paid out of the lump sum of the several bureaus, divisions and offices of the Department as may be for the best interest of the service.' In view of these provisions of law your committee is of the opinion that there may be authority under the law for the creation and maintenance of such Board (Referee Board) to aid the Secretary in the discharge of any duty enjoined on him in his official capacity; but raises the question as to its legality on the sole ground that the determination of the general questions submitted by the Secretary to the Referee Board is not enjoined upon him under the law.

"We have here presented the very crux of the controversy which has been waged over the terms of the pure-food law, and which, fortunately for your committee, has been recently discussed (by the Supreme Court) in a decision of the United States vs. Morgan, et al. * * * The weight of this decision clearly denies to the Department of Agriculture any judicial authority. * * * We have thus presented another weighty question to be considered in this connection as to the necessity, wisdom, or sound policy of maintaining such a board at a heavy expense to the Government when the work done by it is largely a duplication of work performed, or which might be performed by the Bureau of Chemistry. The functions of this board as at present constituted are purely advisory. Their decisions have no legal or binding effect upon any body. The Secretary can follow or ignore their recommendations as he sees fit. * * * The Honorable Secretary of Agriculture seems to have regarded the findings of this board as conclusive in all cases over the opinions and findings of the Bureau of Chemistry, the tribunal which by express terms of statute is vested with authority to determine the questions of adulteration and misbranding within the meaning of the act. In the practice of the Department, the Bureau of Chemistry has been restrained from examining any specimens of foods and drugs under any general subject which is submitted to the Referee Board during the time of examination of such questions by such Board; and if such general subject is submitted to the Referee Board before the Bureau of Chemistry has made any examination of specimens to determine the question of adulteration and misbranding, then the Bureau is not permitted by the Secretary to make any such examination until the Board shall have made its report.

"It has resulted in another remarkable situation, namely, that under the practice of the Department the decisions of the Bureau of Chemistry, if in opposition to the findings and opinions of the Referee Board cannot be referred to the Courts and thus permit a judicial decision to be made as is comprehended under the plain provisions of the law. It would thus happen that if the Bureau of Chemistry were right and the Referee Board were in error that violations of the law would receive protection through the proposed enforcement of the law; because the effect of such a policy is to give this advisory Board, created by Executive order paramount authority over the Bureau of Chemistry and lodges in the personal advisers of the Secretary the power to annul the decisions of the Bureau within the Department of Agriculture which was created by law."

These luminous opinions of the committee investigating the expenditures of the Department of Agriculture show that not a dollar of the money expended by the Referee Board was legally expended. At the time this investigation took place the total expenditures made by the Referee Board of the money appropriated by Congress to enforce the Food and Drugs Act amounted to over $175,000. Every dollar of this money was expended in protecting and promoting violations of the law. It seems strange in view of these findings which were approved by the House of Representatives that no effort was made to impeach the Secretary of Agriculture and the President of the United States who had thus perverted money appropriated for a particular use to activities totally repugnant to the purpose of the appropriation. The following violations of law were permitted and protected by this crime, namely, the use of benzoate of soda as a preservative of foods, the use of sulphur dioxide and sulphites as bleaching agents and food preservatives, the use of saccharin as a sweetener in foods up to an amount not exceeding three-tenths of a gram, and the free and unrestricted use of alum in food products. It is a striking comment also on the attitude of Congress and the people at large that no steps have ever been taken from 1911 to 1928 to correct these outrages on the Americaia people and to attempt to restore the law to its power and purpose as enacted. Administration after administration has come and gone and these abuses still persist.