STIPULATION TO DISMISS

Whereas, the statute of the State of Indiana known as Chapter 104 of the Acts of 1907 forbids the sale of adulterated or misbranded drugs and foods within the meaning of the act;

And whereas, subsequent to the passage of said act, 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 of benzoate of soda was illegal in said State, and that if they wished to find a market in 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 the District Court of the United States for the District of Indiana, in which an injunction was prayed to restrain the defendants, their successors in office, their agents and servants, from enforcing their determination to prosecute these selling appellant's goods as aforesaid;

And whereas, sundry proceedings were had resulting in the entry of a decree in the said District Court of the United States for the District of Indiana on June 21, 1912, dismissing said bill in equity;

And whereas from said decree an appeal was taken to the circuit Court of Appeals for the Seventh Circuit, which Court, on October 7, 1913, affirmed the decree of the said District Court of the United States for the 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 Court of 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 proceedings in the District Court of the United States for the District of Indiana, the government of the United States, acting by its proper officers, hereinafter named, and under authority of the Act of Congress, approved June 30, 1906, known as the "Food and Drug Act" promulgated a rule authorizing food products containing benzoate of soda to pass into commerce between the States, which rule is in the following language:

" 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

James Wilson,

Secretary of Agriculture

Oscar S. Straus,

Secretary of Commerce & Labor

(F.I.D. 104, issued March 3, 1909.)

And whereas, the paramount and controlling authority of the Federal government over foods in original unbroken packages entering into interstate commerce is now recognized and admitted, in accordance with which recognition and admission the Board of Health of the State of Indiana, successors in office to the said appellees, under date of April 9, 1915, did promulgate the following regulations:

"Whereas, the decisions of the Supreme Court of the United States in cases concerning the sale of food transported in interstate commerce, and sold in original packages, reserve to officials charged with the enforcement of the Federal Food and Drug Act the authority to regulate the labelling and character of such food, the chemist to the State Board of Health, who is the state food and drug commissioner, is hereby instructed to follow, without exception, the regulations for 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 drug law, Chapter 104, 1907, in the cases of food sold in interstate commerce in the original unbroken packages;"

"And whereas, there now, therefore remains no question at issue before the Supreme Court of the United States for adjudication between 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 herein shall be dismissed without prejudice, and without costs to either party as against the other.

(Signed) Lawrence Maxwell,

Counsel for Appellants.

Evan B. Stotsenburg,

Attorney General of the

State of Indiana.

This stipulation gave as a free gift to Curtice Brothers everything that they were asking for through both the District and Federal Circuit Court of Appeals which it had been denied by both Justice Anderson and Justice Kohlsatt. The whole stipulation appears to have been composed by Lawrence Maxwell, attorney for Curtice Brothers. It assumes that the contention of the Curtice Brothers that benzoate of soda is a perfectly harmless substance is true. It has never been pronounced so by a Federal Court. In so far as experts are concerned, there is always a difference of opinion, but the far greater number of experts have held that benzoate of soda is harmful. Those who used it have been led by one cause and another to entirely abandon its use. Even the persons who sought to restrict the Indiana State Board of Health from obeying the rules and regulations under the State law finally came to 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 law to make such a ruling. There was only one authority named by the law to bring an indictment under the law. This indictment was not valid unless it was sustained by the Federal court. The publication of this order on March 3, 1909 was a plain violation of law. The Indiana Board of Health on the 9th of April, 1915, issued an order forbidding interference with the sale of benzoated goods as long as they were in the original packages. The Attorney-General of the State of Indiana advised the commissioner of foods that there were certain conditions in which imported packages never ceased to 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 commerce and brings that article directly under the control of the Indiana law.