THE REFEREE BOARD ALREADY DECLARED ILLEGAL

After considering all the evidence adduced over a period of six weeks the House committee on expenditures unanimously declared the Referee Board to be an illegal organization. It had a very good reason for doing so even before the evidence was considered. The matter had been decided by an assistant to Attorney-General Wickersham in a report from the Department of Justice dated March 31, 1909. This was fully two years and more before the decision of the investigating committee was rendered. This report of the Department of Justice was signed by J. A. Fowler, assistant to the Attorney-General. It is printed in full in the proceedings of the committee, pages 205 and following. Attorney-General Fowler called attention to the fact that at the time the committees of the House and the Senate met for final conference on the food and drugs bill, the House bill contained a provision authorizing the appointment of a committee of five experts to consider questions of deleterious or injurious substances in foods, and to establish food standards. The Senate bill did not contain a provision of this kind but did contain a statement of the duties of the Bureau of Chemistry to perform these functions. The Senate conferees insisted on the elimination of the House provision for a special board and this was acceded to by the conferees from the House. When the conference report was presented to the two houses Mr. Mann, manager for the House made the following statement in answer to a question by Mr. Pollard:

MR. POLLARD: Was there any change made in the provision of the House bill wherein we provided that a board, of five inspectors should be selected to pass upon the wholesomeness or deleteriousness of the foods?

MR. MANN: That provision was in Section 9, directing the Secretary of Agriculture to determine standards and the entire section goes out. As I stated in the House when the bill was before the House, it is the courts which must determine in the end as to the question of the wholesomeness or the deleteriousness of preservatives or of any article of food. * * * The Senate conferees were unalterably opposed to that provision and as it was not an essential provision of the law we gave way on that provision in order to save the rest of the bill practically intact as the House had enacted it. (Record 59th Congress, First Session, Page 9738, Expenditures in the Department of Agriculture, page 269.)

MR. FOWLER: "This statute authorizes the prescribing of such regulations as are consistent with law, and for the reason above stated I regard the appointment of this Board of Referees as inconsistent with law.

Senator McCumber also commented in the Senate on this same subject, as follows:

"Now what have we eliminated from this bill? Senators will remember that the House measure provided for the fixing of standards and it called to the assistance of the Secretary of Agriculture certain experts who were to aid him in determining what the standards should be and also provided that the standards so established by them should be for the guidance of the court. The Senate has always contended that the power to fix standards should not be given to any man and the House conferees receded from that portion of the House amendment and it goes out."

In spite of this clear intention of Congress the Solicitor of the Department of Agriculture wrote an opinion to the effect that the appointment of the Referee Board was legal and this opinion was adopted by Attorney-General Wickersham as a choice between the opinion of the Solicitor of the Department of Agriculture and the opinion of his own assistant in the Department of Justice.

With the promulgation of the opinion of the Attorney-General, the effacement of the Bureau of Chemistry from any further participation in the enforcement of the food and drugs act was completed. Even the Board of Food and Drug Inspection was deprived of its office of confirming or overturning the decisions of the Bureau of Chemistry. Under General Order No. 140 the Solicitor of the Department was made the sole arbiter of the recommendations which should go to the Secretary in regard to whether or not an article was misbranded or adulterated. General Order No. 140 is found on page 10 of the report of the committee. The committee expressed the following opinion thereon:

"Under the terms of this order all the evidence in all cases examined in the Bureau of Chemistry, together with such summaries as the solicitor may prescribe is referred to the solicitor to determine whether or not a prima facie case has been made. * * * We are at a loss to understand what favorable results can come from the preparation of such summaries in the Bureau of Chemistry and their further study in the solicitor's office."

The committee realized that this was the consummation of the plan of the solicitor. It totally disregarded the provisions of the food law as to the methods of its execution. It placed the solicitor, not mentioned nor recognized in the law, in the place of the Bureau of Chemistry as the sole arbiter of all processes looking to the enforcement of the act. With this final blow at the vitality of the law its enforcement passed entirely into the hands of the enemies of the law. The public which it was intended to protect was left without any redress. The result was a wild orgy of adulteration and misbranding, paid for by the money of tax-payers appropriated for the enforcement of the law. The members of the Referee Board became experts paid by the Government to protect the interests of adulterators and misbranders. Their eff orts in this direction were put into effect by the Solicitor of the Department. All the fruits gained by the victory in the enactment Of the legislation were thus sacrificed by the direct negation of the law's demands. The fai-reaching effects of this crime against law I have tried to set down in as small a space as possible to do justice to the story.