The History of a Crime Against the Food Law

Chapter 6: Politics and persecution of a state

Further Activities of the Remsen Board

The Attorney-General of the State of Indiana, Mr. James Bingham, desired to have testimony in favor of the State Board of Health from.the Chief of the Bureau of Chemistry and from other employees of the Bureau who had taken an active part in the investigations of benzoic acid and benzoate of soda. A suit had been filed against the State of Indiana in the Federal Court before Judge Anderson on the ground that the ban placed on benzoated foods by the State Board of Health was unconstitutional. Mr. Bingham came to Washington for the purpose of securing permission from the Secretary of Agriculture for these officials to appear before the Federal Court in Indianapolis. The Secretary refused to grant the request of Mr. Bingham on the ground that the Department of Agriculture was on the other side of the question and that it would not be in harmony with official etiquette for the employees of the Bureau of Chemistry to appear against the Remsen Board and their assistants and experts who were attending the trial in the interest of the complainant by the executive order and request of the Secretary of Agriculture. In order to secure this testimony Mr. Bingham found it necessary to remove the Federal Court from Indianapolis to Washington. When this was done the Solicitor of the Department of Agriculture on the request of the Chief of the Bureau made a ruling that the Federal Court had no right to issue a subpoena for attendance of the employees of the Bureau of Chemistry in the sense that they were compelled to attend and give testimony. He informed the members of the Bureau of Chemistry that it would not be a contempt of court if they should refuse to appear and give testimony on the summons unless they wanted to. I volunteered to give my testimony before the Federal Court. It begins on page 3,212 of the printed record and continues to page 3,548, inclusive, 336 pages. When Dr. W. D. Bigelow was called to the stand, after qualifying, in response to the first question asked him, he declined to answer on the ground that his testimony would be of a character not approved by the Department and he availed himself of the privilege given by the Solicitor of refusing to answer (Page 3,693 of the Record of the Indiana Case). Mr. Bingham immediately carried the case to Justice Barnard of the District Supreme Court. Justice Barnard promptly ruled that the employees of the Department of Agriculture were compelled to give their testimony if subpoenaed by the Federal Court and that the statement made by the Solicitor that they were not thus compelled to testify was an error. Under this ruling Dr. Bigelow and other employees of the Bureau gave their testimony. It would not be proper to go into any extended explanations of the nature of this testimony given contrary to the opinion of the Solicitor. A sufficient explanation of it is found in the fact that Judge Anderson of the Federal District Court of Indiana, to whom all the testimony in the case of over 5,000 pages was placed, with the summary by the master, promptly decided the case in favor of the State of Indiana. He said, in point of fact, that the State’s rights in regard to the regulation of the sale of foods inside the State could not be questioned before the Federal Courts by citizens of other states.

This recital shows plainly that although the privilege was denied the Bureau of Chemistry of bringing suit against anyone using benzoic acid, the employees were compelled to testify before the Federal Court. The users of these preservatives lost their ease due largely to the testimony of the experts of the Bureau of Chemistry. Thus it appears as if the big chemists — as the Secretary of Agriculture called them — of the Remsen Board, when opposed by the little chemists of the Bureau of Chemistry, were defeated. This incident shows the danger of unwise greed. The right to use these preservatives was guaranteed to those manufacturers who felt like doing so by all the power and authority of the United States Department of Agriculture. They should have been satisfied with that perversion of the law, but they were not. They determined to force benzoated goods upon the citizens of the State of Indiana. Fortunately they did not succeed. More fortunate still is the fact that one of the complainants against the State of Indiana was converted by the evidence adduced at the trial and abandoned the use of these preservatives. Still more fortunate is the fact that manufacturers in general, although this dispensation has now been in full force and authority for twenty-two years, have rarely indulged in the use of these preservatives. The goods manufactured under the aegis of the Department of Agriculture with these preservatives are distinctly inferior in quality and strength.

The activities of the Remsen Board were not devoid of doubts as to their wisdom. In a letter dated September 9, 1909, Dr. Remsen called attention to what might happen (Page 879, Moss Committee):

My Dear Mr. Secretary: The Referee Board is going to be subjected to very severe criticism for testifying in the Indiana suit, and in order to protect ourselves it is our desire that we should have from you a written request that we should give this testimony. I hope you will have no objection to sending this request to me. We are to testify at Seal Harbor, Me., on the 17th. We are all glad to have been at Denver, and we all recognize the soundness of your judgment in asking us to go.

Mr. Moss asked the Secretary to explain why the Remsen Board whose usefulness in so large a measure must depend on the respect and confidence which the public have for the high character of its membership should be subjected to severe criticism in order to assist in an effort by private corporations to overthrow the pure food laws of a sovereign state. To which Secretary Wilson replied that it was never in his mind to help overthrow the pure-food laws of a sovereign state, and that he would have been perfectly willing to have the Referee Board go where the people seemed to need information; but as to an attack upon the State of Indiana, that was not to be thought of. The Chairman continued by asking him if he did not know that the suit filed by Curtice Brothers and Williams Brothers was inaugurated before the Referee Board had made its report on benzoate of soda; to which he replied that he did not know anything about the nature of these proceedings. The Chairman of the committee continued by asking him if he had been requested by Attorney-General Bingham to permit Dr. Wiley to go to Indianapolis and testify in person in the Indiana case on behalf of the State of Indiana; to which the Secretary responded that he did not think Dr. Wiley had ever asked him whether he could go to Indianapolis or not. Whereupon the chairman submitted a letter dated May 31, 1910, which the Hon. James Bingham had written the Secretary in regard to this matter. This letter is so pertinent that it is given in full:

Hon. James Wilson,
Secretary of Agriculture,
Washington, DC

Dear Mr. Secretary: I am in receipt of a letter from President Taft with copy of your letter attached in re testimony of Dr. Wiley in the so-called benzoate case. I am taking the liberty of writing you personally for the reason that I feel quite sure that you misapprehend the position of the State in this matter. You understand that Dr. Long, of Chicago, and Dr. Taylor, of California, both members of the Referee Board, attended in person here at Indianapolis and testified in this case.

The master, who is hearing the evidence, is manifesting considerable interest in the testimony of the different witnesses and personally interrogates them, and it is my desire to give him this opportunity in the case of Dr. Wiley if possible.

There is no attempt on my part to make it appear that the Government is not supporting the work of the Referee Board. On the other hand, whatever appears in the record to indicate that the Government has taken sufficient interest to sustain the decision of the board is there at my instance, since I personally asked the witnesses who have testifled that they were testifying at your request, at whose request they were testifying in the case, and I did this after a personal interview with them, and learning the facts with reference thereto before asking the questions.

My position is that this question is one not capable of scientific demonstration, and this fact, I think, I have pretty thoroughly established by the testimony of the members of the Referee Board themselves. I think, however, that such a test was perfectly proper for whatever value it might have in the investigation of the injurious effects of sodium benzoate, but I feel very certain that the results of such an investigation are not conclusive. Indeed, I would not hesitate to try this question before you or any other fair man regardless of any conclusion you may have reached based upon the results of the work of the Referee Board.

1 attach more importance to an investigation made by Dr. Wiley than I do to that of the Referee Board, in view of his practical experience in such matters and especially in view of the experience of the corps of workers he must have had to assist him. In the case of the Referee Board work was carried on by students in many instances, and in the investigation I have made I am satisfied that many of the results obtained, upon which the Referee Board bases its opinion, are unreliable. That the members of the Referee Board were conscientious and thoroughly capable scientists there can be no doubt, but their conclusion, vased upon a false premise due to inaccuracy in analytical work and want of regularity in habits of living by subjects, would, in my opinion, destroy the value of any such conclusion.

In justice to you I can not go into detail, but the evidence in this case shows in some instances variations in duplicate analyses where the same articles were being analyzed under the same conditions, running from 15 per cent. to 1,800 per cent., when every member of the Board testifies that there should not be a variation to exceed 2 per cent.

I am very desirous of having Dr. Wiley appear in person in order that the master may personally interrogate him as to his premises most thoroughly, and I think you will readily appreciate the merit of my position. I assume that you have no interest in this question except to have it decided right, and in this case we are not only availing ourselves of the results obtained by the Referee Board and Dr. Wiley, but of a vast number of other experiments, and especially of-the results of practical demonstrations, and it occurs to me that when the evidence is concluded in this case the court will be in a better position to reach an intelligent conclusion as to what the real effect of benzoate of soda is upon the human system when administered in food than the department was with nothing to depend upon but the result of a scientific investigation standing alone.

Thanking you for your courtesy in offering to permit the deposition of Dr. Wiley to be taken, but hoping that you will see your way clear to permit him to attend in person, I remain,

Very truly yours,
(Signed) JAMES BINGHAM,
Attorney-General

This letter of Mr. Bingham evidently removed every reason to justify, even in the smallest degree, the determined purpose of the Secretary of Agriculture, with the collaboration of the Remson Board, to break down the Board of Health of Indiana which had placed its ban on food products containing benzoate of soda. Driven to the last extreme the Secretary sought to justify his action against the State of Indiana because the law of Indiana forbade the manufacture of beet sugar within the State! In answer to the question of the chairman of the committee he said it was his purpose to help every state to the limit of his efforts, but when a state came out and said one could not use beet sugar it gave him pause. He continued as follows:

We are making 500,000 tons of beet sugar every year in the United States. Indiana, can make all the sugar she needs and supply half a dozen other states. But I have come up square against this law, and I do not want to break the laws of Indiana; I would not for the world do that.

It appears that William Brothers and Curtice Brothers alleged, in their suit to abolish the ruling of the State Board of Health as being unconstitutional, that there were other points in the Indiana law which were likewise unconstitutional, and among these was an expression in the law delining sugar as cane suagar. Of course every one knows that cane sugar is frequently used to designate sucrose. Indiana in her statement for defense against the suit of Curtice Brothers used the following statement:

These defendants, farther answering, say that they deny that the use of beet sugar is prohibited by law in food products in the State of Indiana, or by any rule adopted by these answering defendants, as such State Board of Health of the State of Indiana.

Dr. Alonzo E. Taylor, whose absence in Europe had prevented him from taking any active part in the investigations of benzoate of soda, was nevertheless very eager to appear against the State of Indiana in the benzoate trial. Under date of March 1, 1910, he made the following report to the Secretary of Agriculture:

I have just been giving testimony in the Indiana sodium benzoate case. I understand it was inferred that because I did not sign the report of the Referee Board that I was not in agreement. I therefore testified, not as a member of the Board, but as an expert, pure and simple. Since last summer, being engaged on the sulphite question, I have been making a lot of control observations with the purpose of determining the normal variations in the metabolism of nitrogen, sulphur and phosphorus. These data, I believe the best in literature, I wish to use in my evidence, as they support strongly the position of our Board and are in contradiction with the work of Dr. Wiley on the action of benzoate. In a word, these investigations indicate that many of the reported deviations of Dr. Wiley are entirely within the range of those to be seen in normal persons on a normal diet, and show that the figures obtained by my colleagues are normal figures for normal men. Have I your permission to offer these normal charts of normal metabolism to the United States Circuit Court in the Indiana Case?".

To which the Secretary replied under date of March 12, 1910, in a letter to Dr. Remsen in the following words:

I enclose a very interesting letter from Prof. A. E. Taylor which please return to me. I shall leave this matter entirely with you.

Dr. Remsen in his reply to the secretary recommended that he be given permission to use the data in the manner suggested. The Secretary left no stone unturned in his determined effort by all means, fair and foul, to secure a declaration from the Federal Court that the Indiana law was unconstitutional. (Pages 367, 368, Moss Report.)

The testimony of Dr. A. E. Taylor in the Indiana case is found on pages 2137, to 2207 of the printed testimony. He repeated in his testimony that he thought the data he had obtained were the best in literature. Dr. Taylor in his experiments, which were not made, by the way, on the subject of benzoic acid, employed a plan greatly superior to that followed by the other members of the Referee Board. He employed as his subjects trained scientific men. He took over bodily the whole force of the California State Board of Health. He employed state chemists who made all the examinations for fertilizers in the state. When asked on cross-examination in regard to control of the diet of these trained men he stated that their diet was rigidly weighed and apportioned to them. When attention was called to the fact that the other members of the Referee Board did not control either the quantity or the kind of diet, therefore the results which they obtained could not be comparable to his own, he replied that he thought his own plan was better but that the uncontrolled diet might lead to similar results. He was particularly opposed to the use of benzoate of soda in milk. On direct examination he was asked this question:

Q. What are the reasons for not using it in milk?

A. For the simple reason that a large amount of experience has taught us that the bad milk ought to be allowed to spoil and that an absolutely harmless preservative, or even refrigeration, or pasteurization ought to be equally prohibited. (Page 2162).

Speaking further (page 2163) in regard to milk, he says:

A very minute trace of formaldehyde will keep milk for 48 hours but the tubercular and typhoidal bacilli will not be killed, and it is objectionable on that account. We object to anything that keeps milk without killing those germs, not being of a type to affect the common defects of sourness or souring. That is the reason I guarded myself absolutely in the use of this other substance. I would object to the use of benzoate of soda, of hydrogen peroxide, of the pasteurization of milk, this being the result.

Evidently Dr. Taylor was not aware of the fact that pasteurization of milk at 145∞ for thirty minutes would destroy both typhoid and tubercular germs. The spores of germs require a much higher temperature for their destruction. By reading his testimony, the historian of the future will gather valuable information respecting the attitude of Dr. Taylor in general toward preservatives in foods and pasteurization.

Dr. Taylor also was particularly opposed to the use of benzoate of soda in meat as well as in milk. He cites the attitude of Hammerstein, the Scandinavian chemist and physiologist. He asked him:

Q. Do you use benzoate of soda?

A. No, sir.

Q. Is there any law against it?

A. No.

Q. Do you use salicylic acid?

A. Yes.

Q. why?

A. It is cheaper.

Q. Is it injurious?

A. Possibly it is, but it is so easy we take the chance.

Further Excerpts From the Report of the Moss Committee and the Record of the Indiana Case

Page 878.

THE CHAIRMAN, MR. MOSS, of Indiana: Please tell me in what sense you regarded the Indiana case as an important one?

SECRETARY WILSON: Simply because it was in the. Federal court, and it was taking up the question of whether the decision of the Referee Board was to be sustained.

THE CHAIRMAN: That brings me to a question I want to ask you. At that time, what did you understand the issues of this suit at Indianapolis to be?

SECRETARY WILSON: I understood it was a question of whether — I do not know that I am entirely clear. I think it was an injunction asked by somebody.

THE CHAIRMAN: It was by Curtice Bros. and Williams Bros.?

SECRETARY WILSON: Yes; to require the board that you have there in Indiana to do something they wanted done.

THE CHAIRMAN: We have a board of health; yes, sir.

SECRETARY WILSON: That is my recollection. It was something of that kind. But there was benzoate of soda on one side and opposition to it on the other.

THE CHAIRMAN: Would you mind telling us where you obtained that information?

SECRETARY WILSON: Oh, I could not do that; I do not remember.

THE CHAIRMAN: I have the original complaint here, and your information was so badly apart from what the real issues were that I wanted to find out your source of information.

Page 882.

THE CHAIRMAN: You did request, both orally and in writing, the members of the Referee Board to attend the Indianapolis hearing?

SECRETARY WILSON: They are on a little different basis.

THE CHAIRMAN: As the Indiana law expressly permits the sale of food products which are guaranteed under the provisions of the pure food law, how can the defense of this suit by the State or any of its agents be considered as an attack on the decision of the Referee Board?

SECRETARY WILSON: That is an academic question, I think, Mr. Chairman.

THE CHAIRMAN: You have stated that Dr. Robison in appearing to testify there was opposing your policy?

SECRETARY WILSON: He was a subordinate of the department.

THE CHAIRMAN: The question is that inasmuch as the Indiana law expressly permits the sale in Indiana of any food product guaranteed under the pure food law of your department, when you guarantee it, how can a defense against a suit to strike down that law be considered an attack upon the Referee Board?

(There is no apparent answer to this question, save the following.)

Page 883.

SECRETARY WILSON: I would not be known to do a discourtesy to the State of Indiana for the world, and besides, Mr. Chairman, I find in looking over my behavior toward Indiana that I have a great lot of scientists there, and it might be wise for me to get them back out of there. I have men from nearly all our scientific bureaus there, helping the State of Indiana along these scientific lines, and cooperating with them.

Testimony of Dr. Ira Remsen

Pages 31-33-Indiana Record.

Q. Well, there was a meeting, wasn’t there, of chemists, Doctor, recently, out at Denver, Colo., where a great number of scientific men congregated, wasn’t there?

A. There was no doubt about it.

Q. And you had an election out there at which benzoate of soda was the candidate, didn’t you?

A. I don’t know. I had nothing to do with the election. I wasn’t a member of the association. I was present as an interested spectator, but not a member of the association, had no vote.

Q. Now the fact is that of late there has been great interest manifested on both sides of this question by scientific men throughout the country, hasn’t there, Doctor?

A. Apparently. I am out of that. I am not at all a part of the excitement.

Q. And were you present when the vote was finally taken at Denver on the question?

A. Which vote do you mean?

Q. On the harmfulness of benzoate of soda, the adoption of the resolution — not vote, but resolution.

A. I was present, yes, sir, the resolution approving the action of the board, the report of the board. They approved.

Q. By what vote?

A. That is too much for me — 57 to 42, maybe, I don’t remember exactly what it was; in the fifties for one and forties for the other; fifty-odd in favor and forty-odd against; I couldn’t remember that, I am sure; I am near the truth.

Q. Now in the talks that you had with the Secretary of Agriculture, did you learn that the plaintiffs, Curtice and Williams, here, were interested in this question?

A. I do not remember that I ever heard them mentioned by the Secretary of Agriculture.

Q. When did you first learn that the plaintiffs were interested in this question, Doctor?

A. In this — you mean in this particular suit?

Q. No, in this question as to whether benzoate of soda was harmful.

A. Oh, I remember. I remember it was at a meeting, a hearing we gave, our Referee Board gave in New York before we began our investigation. We sent word to those who were interested in the general problem, not only those who use benzoate but those who do not use benzoate, informing them that we would like to get such information as possible to aid us in our work. And they were represented by a number of large manufacturing interests who appeared before us to state their problems; mind you, they were not those who use benzoate alone but those who do not use it. We felt that it was only fair to hear what they had to say, representatives of both sides — I regret that there are sides — there are sides, unquestionably, I recognize it. And my recollection is that this is the first that I ever heard of these firms, except so far as I had become familiar with them through labels that everybody has seen.

Q. Well, now, have you met them since that time?

A. Only as — except at Denver I saw these gentlemen, at Denver; saw them in passing. I had very little to say to them — I think they almost accused me of discourtesy.

Q. Did the manufacturers appear out at the Denver convention?

A. These gentlemen were there — I do not remember, I do not know them sufficiently well to say.

Q. Well, when you had this hearing of the Referee Board at which you heard both sides, did Dr. Wiley appear at the hearing?

A. No.

Q. Was he invited?

A. No. It was restricted to those who used benzoate of soda.

Q. I understood you to say that you did not, it was not only —

A. I don’t say use — but who either use or do not use it, but who are interested in it from the manufacturing point of view, that is what I meant.

Q. You mean as confined to manufacturers?

A. Oh, yes, wholly.

Q. Now, you also stated that there had been a world of work on the physiological effect of benzoate of soda on the human system.

A. That is a question which has perhaps not been very fully investigated, and yet I recall in this connection an investigation which came to my notice when I was a very young man. I went to Gdttingen in 1868. I carried a letter to a distinguished physiologist who was there, Professor Meissner. He had just completed an elaborate series of experiments of the ffect of benzoic acid on the human organism. Mr. Charles U. Shepard, an American student, took large doses of benzoic acid, much larger than the quantities that have been used in our experiments. Those large quantities left no permanent effects.

Q. Now, so far as you know all these works of the original research upon the effect of benzoic acid or benzoate of soda upon the human system are referred to in that report, in the bibliography.

A. All the important ones.

Cross Examination of Dr. Remsen

Q. This experiment of Dr. Meissner, about which you have testified is that experiment which is reviewed in the bibliography?

A. It is.

Q. I read from exhibit 1, in which this experiment is referred to as follows:

There is no hippuric acid or benzoic acid in the blood of animals which excrete hippurie acid abundantly in the urine. According to the authors’ experimenis on man, ingestion of 7.6 grams of benzoic acid as sodium salt in solution after breakfast was followed suddenly, 30 minutes later, by nausea and vomiting. When 5.7 grams were taken after breakfast there was vehement vomiting after about 35 minutes. When vigorous exercise was taken after the same dose (5.7 grams) there was some nausea, but no vomiting. The nausea can be made to disappear by violent exercise, with deep inspirations, etc. After taking 5.8 grams, when the subject was kept quiet in a warm room there was no nausea or vomiting. A stronger and heavier person repeatedly took 7.6 grams without these symptoms.

The authors conclude from their experiments on animals that the kidney is the only organ where benzoic acid is normally transformed into hippuric acid. When 2 grams of benzoic acid per day were fed to a rabbit during 3 days there was no decrease in urea output. In a dog of 12 to 13 kilograms, 8 grams of benzoic acid given in solution per os caused vomiting. Later 8 grams were given twice a day as dry powder packed in meat. There was apparently no decrease in urea. After several days a toxic effect was noted — difficulty in urinating, spasm, attack of rage, attempts to bite, foam at mouth. Benzoic acid was continued 2 days more and the attacks recurred. Appetite remained good. Convulsions occurred the day after the benzoic was stopped, and then they ceased. Similar attacks were observed in a small dog which received 10 grams benzoic acid for 3 days. The authors conclude that the continued administration of large amounts of benzoic acid is not without danger, although Keller took 2 grams per day for some time without feeling any ill effects. Hippuric acid is formed from benzoic acid in all animals. Authors conclude that in herbiverous animals the excretion of hippuric acid is dependent on the cuticular substance of plants ingested. The small amount in normal human urine probably derives its origin from metabolism products.

Q. Is that a correct review of that experiment as you understood it, Doctor?

A. Of course I cannot positively say that these details are correct, but I.believe them to be correct.

(Page 45 and page 46.)

In the cross examination of Dr. Remsen it was brought out that the reason young men were selected was because they would show the greatest resistance to any pathological effects that were probably produced. Dr. Remsen stated that he did not think the age of the subject would have much to do with the case and to the question that in selecting young men he would have all the power of resistance that could be found in the human system he said yes. Nevertheless he made an answer to the following question:

And if there was a tendency of benzoate of soda or sodium benzoate in small quantities to affect the system, it would appear less in a test of young men than it would upon any other character of subjects that you could select, wouldn’t it?

A. I am not sure of that. (Page 26.)

On Page 27 Dr. Remsen was asked what are the variations in temperature, what variations in pulse, what variations in the specific gravity of urine, what variations are there in the volume of urine in normal health. Dr. Remsen answered:

Those matters are not at all within my ken. I am not an expert in those lines, I have never claimed to be. My medical training is so far remote that I confess that that kind of information is not at my fingers’ ends.

Page 30. Q. Well, who is at the head of the Chemical Department of the Government?

A. Dr. Wiley, I suppose.

Q. Were you in touch with him?

A. I had nothing to do with him, sir; I didn’t see him about it at all.

Q. Well, he is quite an eminent chemist, is he not?

A. He is very well-known. I may say that he is an eminent chemist. Yes.

Q. Now he has been devoting a great deal of time to study of this question, the effect of benzoate of soda upon food products, has he not?

A. Some time, I don’t know about a great deal.

Q. Don’t you know that he made an investigation on this subject and got out a report on it?

A. He had the investigation made by others. He didn’t do it himself.

Q. Well, was he as close in touch with his job as you was in yours?

A. I don’t know the facts, but I know the work was carried out by his assistants in the laboratory of the United States Department of Agriculture.

Q. Well, now, Dr. Wiley reached the conclusion as a result of his investigation to which I have referred that benzoate of soda was harmful when used in foods in what you denominate small quantities didn’t he?

A. Yes, sir.

Q. And all over the country there are scientific men who have been studying this question who agree with Dr. Wiley upon that question, do they not?

A. I don’t know that scientific men all over the country have been studying that question in any scientific way. We have no records of experiments. I won’t say there are none, but there are very few, if any, and so far as I understand the situation these gentlemen who agree with Dr. Wiley simply agree with him, accept his opinion.

Page 32.

Q. Well, when you had this hearing of the Referee Board at which you heard both sides, did Dr. Wiley appear at that hearing?

A. No.

Q. Was he invited?

A. No. It was restricted to those who used benzoate of soda or those who do not use it but who are interested in it from the manufacturing point of view; that is what I meant.

Page 35.

Q. Well, do you approve of the result that Dr. Wiley got in investigating this question?

A. I can’t answer that question. I don’t like to.

Q. Well, I would like to have you do it.

A. I do not. Or I should rather put it in this way, that our Board does not.

Q. That is to say you reached a different conclusion from Dr. Wiley? That is what you mean to say?

A. Yes, sir.

Q. You are not criticizing his work.

A. Not at all.

Q. But you say you approve the work of an expert because it is done by an expert?

A. Yes.

Q. Dr. Wiley is an expert, isn’t he?

A. Not in physiological work.

Q. You think he has had no experience in physiological work?

A. I am unable to say, but my impression is that it has been very little. I am very sorry to testify in this way but you have pushed me to it.

Q. I understand that you yourself are not a physiologic chemist?

A. No, I am not.

Q. So that is the opinion of one non-physiological chemist upon another?

A. Hardly. My opinion is based upon my experience with a board of men who are thoroughly familiar with that kind of work.

Q. What peculiar knowledge now would a chemist have to have in order to conduct an investigation of this kind?

A. He would have to be an expert in physiological work, physiological chemist is really what you would want, a pharmacologist is a form of physiological chemist, a man who studies the effects of substances upon the system, but in order to judge the effects he must have physiological knowledge and must bring that into play at every step.

Q. Now you are not a pharmacologist, I believe you call it, is that correct?

A. That is the name; I am not a pharmacologist.

Q. And you are not a physiological chemist?

A. No.

Q. And it is necessary to have both these elements of education in order to be able to conduct properly this sort of investigation.

A. Undoubtedly.

Q. Well, if it is necessary that we shall have a pharmacologist and a physiological chemist and you are neither, isn’t it a fact that your opinion is influenced by the conclusions reached by those who are pharmacologists and physiological chemists who are on the Board?

I desire at this point to introduce a statement in regard to my personal attention to the work carried on in the Bureau of Chemistry in studying the effect of small quantities of benzoic acid and benzoate of soda on the health of the young men who were undergoing these experiments. I may say that the Referee Board were not the authors of the plan of experiment which they followed. It was copied directly from the plan adopted by the Bureau of Chemistry in all of these investigations, with this exception. All foods used were carefully analyzed by the Bureau of Chemistry, very few foods were analyzed by the Referee Board. I gave my personal attention for five years to all the details of this work. During the winters I rose long before daylight, even before the street cars were running and walked two miles to my laboratory, which I reached by seven o’clock. I supervised the preparation of the breakfast, I weighed, with assistance of others, every article of food which was administered, I supervised the actual analyses of these foods in the laboratory, I studied the condition of the young men every day as a medical man. I saw that their excreta, solid and liquid, were collected and delivered to the laboratory. I dined with the young men except that I did not take the foods to which the preservatives were added. I felt that my continued good health would be at stake if I did, but I ate the same kinds of foods that they ate otherwise. When nine o’clock came I went to my office and performed the ordinary duties connected therewith until luncheon time. I then went into the kitchen and supervised the preparation of their lunch under the same conditions. After luncheon was over I again went to my duties as Chief of the Bureau of Chemistry. At five o’clock I again went back into the kitchen and supervised the preparation of dinner. I remained in the kitchen and dining room and dined with the young men at dinner. By seven o’clock the dinner was over. This was the routine which I followed for five years winter and summer except at such times as I was called away from Washington. When I was called out of town, Dr. W. D. Bigelow, my first assistant, took my place as supervisor of the experimental work; yet Dr. Remsen without making any effort to learn the truth about the matter said I took no part in this work, that I was not a physiological chemist.

In 1910 I was awarded the Elliot Cresson medal of the Franklin Institute for leading work in physiological and agricultural chemistry. This medal was given me for inaugurating the most extensive investigations ever undertaken in this country in improving the valuable properties of plants. I inaugurated and carried into effect, in connection with A. A. Denton of Kansas, experiments in improving the quantity and quality of sorghum for sugar-making purposes carried, over a period of many years in which the percentage of sucrose in sorghum was raised from nine to fourteen per cent. These experiments were published in numerous bulletins of the Department of Agriculture extending over a period of many years. In like manner I inaugurated and carried into effect a work extending over several years of ascertaining the factors which would produce the best quality of sugar beet in the United States. The results were published in the bulletins of the Bureau of Chemistry and enabled the manufacturers who were intending to go into the sugar-beet industry to locate their plants in those areas in which the best sugar beets were grown. In all some five hundred thousand analyses of sugar beets grown under similar conditions with the same seeds were made. Following this physiological chemical work I originated and carried into effect a series of experiments extending from Maine to Florida of the factors which produce the largest amount of sugar in sweet corn. These results were also published as bulletins of the bureau of Chemistry of the Department of Agriculture. It was for these far-reaching investigations of physiological chemical problems, and for similar work in studying the effects of preservatives and coloring matters on health, that the directors of the Franklin Institute awarded me the Elliot Cresson medal. The gold medal bears this inscription:

To HARVEY W. WILEY
For Distinguished Leading and Directive Work
in Agricultural and Physiological Chemistry, 1910

Yet Dr. Remsen under oath said I was not a physiological chemist.

Pages 112 to 116-Indiana Record.

Dr. Herter’s Testimony

Q. As a matter of fact, you know, don’t you, Doctor, that the very opposite effect to which you testified has been found by other eminent scientists with reference to some of these subjects that you have testified about even in the administration of small doses of benzoate?

A. Well, I don’t believe that I can agree to that.

Q. Have you not examined Dr. Wiley’s report of his investigation?

A. I have.

Q. Well, do you not know that he so found?

A. I do.

Q. And what position does he hold, Doctor?

A. He holds that sodium benzoate —

Q. Well, I know — what official position does he hold?

A. He is chief of the bureau of chemistry of the Department of Agriculture.

Q. What Government?

A. The United States Government.

Q. That is rather a responsible position?

A. Very.

Q. And Doctor Wiley has occupied that position for many years, has he not?

A. I believe he has.

Q. And he conducted quite an extensive investigation on this subject, did he not?

A. I believe that he did.

Q. You know, too, don’t you, Doctor, that a number of eminent scientists who have read and studied the report that was published of the work of the so-called Referee Board have reached different conclusions from the board as to the effect of benzoateof soda in foods, even based on the facts included in those published reports, don’t you?

A. I have been told that there has been criticism of the report of the Referee Board, but I have felt that the criticism that has come to my notice has been for the most part, or wholly, from such sources as lead me not to give great confidence, to place great confidence in those results or in those opinions I should say — they are not results — opinions. In general I would say that that is my attitude.

Q. Well, you know that Dr. Wiley has criticized this report and draws a different conclusion from what the Board did from the facts that are published in the report, do you not?

A. I think so. Dr. Wiley told me so himself the other day when he talked with me.

Q. Now, you know Dr. Reed of Cincinnati, do you?

A. I had that pleasure at Denver.

Q. He is an ex-president of the American Medical Association, is he not?

A. I don’t know that of my own knowledge. I will have to answer that on sQme kind of hearsay.

Q. Well, he is an eminent physician, is he not, and a scientist?

A. I don’t think there is any reason to regard him as a scientist. I have been told that he was a good gynecologist.

Q. Well, do you know what his training is, Doctor?

A. No, I can’t say that I do. That is a matter of hearsay.

Q. You know that he reaches a different conclusion from what the board did?

A. I do.

Q. I didn’t get my question in — you know he reaches a different conclusion from what the board did as to the effect of administering benzoate of soda in the foods, based on the facts published in the report of the board, do you not?

A. I had a different idea of what he bases his views on.

Q. You know that he does not agree with the conclusions of the board, do you not?

A. I infer that.

Q. Now there was some sort of an association of chemists held at Denver recently, wasn’t there, Doctor?

A. I think that the association contained some chemists. Whether they are all chemists or.not, I don’t know.

Q. What is the name of that association?

A. That is the — I ought to remember on account of the squabble over the Mississippi, but I have forgotten — that is the National Pure Food and Dairy Association — no, that isn’t right — The Association of State and National Food and Dairy Departments — I think that is what it is.

Q. Now that is made up of people who are connected with the study of foods, is it not?

A. Certain aspects.

Q. Study and manufacture of foods?

A. Certain aspects of the study of foods.

Q. You were present at that association?

A. I was present.

Q. Did you address the association?

A. Well, I spoke to the association.

Q. What was the subject of your address?

A. It had to do with the action of sodium benzoate on the human organism.

Q. Did you discuss the work of the Referee Board in that connection any?

A. I referred to it, but I particularly referred to the work done in my laboratory.

Q. Was there any of the other members of the Referee Board there?

A. They were all there.

Q. Did any of the other members address that meeting?

A. They all spoke except Dr. Taylor.

Q. What were the subjects of their addresses?

A. The same general topic, I should say.

Q. That you discussed?

A. Well, for their own reports — they did for their reports what I did for mine.

Q. And were there any other addresses delivered there on this subject of the use of benzoate of soda in foods?

A. Well, I suppose that the chairman’s address might be so regarded and Dr. Reed’s address; they contained reference to it.

Q. Who was the chairman?

A. Mr. or Dr. Emery — Mr. Emery.

Q. Now there was some sort of a report passed upon there by that association with reference to this effect of benzoate of soda upon the human system as administered in the food, and also as to the result of all investigations made on that subject up to the date of that association, was there not?

A. I think there was. I think that I have in mind probably the same report that you have in mind, but I am not sure.

Q. And that report that was made to the association was a report made by a committee of eleven men, was it not?

A. I believe that there was a committee which reported.

Q. I will ask you now if that committee was not composed of chemists entirely?

A. I don’t know, sir; I don’t think that I had heard the name of any one of the number.

Q. And you know that it was reported there by that committee that the investigation of that subject had not been carried to an extent sufficient to determine the question as to whether the use of benzoate of soda in food was or was not injurious to the human system — do you not?

A. I have only a very vague recollection of what was said in the report.

Q. You heard the report discussed, did you?

A. I think that I did. My impression is that a recommendation was made by that committee asking for further investigations. That is my recollection of it.

Q. You do know, don’t you, Doctor, that there is now, and has been, a diversity of opinion among scientists upon this very question?

A. Which question, may I ask?

Q. The question as to whether or not the administration of benzoate of soda in foods to the human being is injurious to the human system.

A. I know that there has been a diversity of opinion about that.

Q. And you know, too, that this diversity of opinion has existed since the Referee Board report was published, do you not?

A. Well, you mean it has existed in spite of the publication, or do you mean that it was initiated then?

MR BINGHAM: Listen to the question, Doctor; I think it will explain itself.

A. Well, I wouldn’t say since; it existed before.

Q. Well, you know that scientists have criticised it since it was published, do you not, and that they have even told you that they did not agree with you on the question?

A. I have never heard any adverse opinion of the report of the Referee Board from any person that I would class as a scientist.

Q. How do you class Dr. Wiley?

A. Well, I don’t know Dr. Wiley very well, and I find it is a rather difficult task to class him. I don’t know what you expect of me.

Pages 160-161.

Q. One more question as to Dr. Lucas. (Dr. Lucas was one of Herter’s squad.) It is a fact, is it not, Doctor, that Dr. Lucas disagreed with you as to the result of the injurious effect of the use of benzoate of soda in food in small quantities?

A. I do not know very accurately what Dr. Lucas’ views are, but I know he has done some work particularly on the action of benzoic acid and I judge from the paper that I heard read at Denver that his views are in some respects at least different from mine. I do, not know to what extent.

Page 165.

Q. Did you know that the Department of Agriculture of the United States Government stood ready to furnish this Referee Board with everything at its command that was necessary for making this experiment that is under consideration?

A. I heard that stated by the President of the United States and by the Secretary of Agriculture more than once.

Q. Did you know that the United States Government had a chemical laboratory in the City of New York?

A. I did not.

Q. Did you not learn from the Department that it had numerous analytical chemists in its employ at the time and before this experiment was begun, in the City of New York?

A. I was not aware of that fact.

Q. Well, you did know that it had a Department of Chemistry?

A. I did.

Q. And-you knew, too, that that department was engaged in the administration of pure food laws of the United States, didn’t you?

A. So I had heard.

Q. And you knew that it had a corps of workers, of chemists, analytical and otherwise, constantly engaged in the work of analyzing foods and their analytical testing, did you not?

A. I assumed that to be the case.

Q. How did it come that you did not secure your analytical chemists and men for doing the routine work from the force of the Department of Agriculture?

A. Because it was intimated to me that it was the desire of the Department of Agriculture and by the President of the United States that in the investigation carried on by me I should be free to use my judgment as to all points connected with the matter of personnel in my laboratory.

Q. Why was it that you preferred to select such men as Dr. Lucas and Dr. Ringer and Mr. O’Brien and Dr. Harvey, some of whom at least are neither graduates or chemists and who, according to your own statement, would need instruction, rather than those experienced men in the Department of Agriculture who are regularly engaged in that class of work?

A. It never occurred to me that they would be available, partly because they had their own occupations for the entire year and partly for the reason that it nevef occurred to me that men such as I wanted would be willing to come from the Department of Agriculture. We canvassed the situation with regard to the universities particularly and if I had known there was a branch department of the Department of Agriculture in New York I certainly should have applied to them.

Pages 176-177.

Q. Well, you were impressed at that time, were you not, with the fact that this expenditure of time and money was not being made as a matter of idle curiosity, but for the purpose of opening the door, if possible, to the use of benzoate of soda for such purpose?

A. I did not hear the case stated so fully nor so eloquently as that, but I got the impression that the manufacturers felt that if they had to give up benzoate of soda — or at least that some of them felt that if they had to give up benzoate of soda — they would either have to be shown some other way of carrying on their preservation of food or they would be put to financial loss.

Page 178.

Q. Who was it that said that this benzoate of soda question was a pressing question?

A. I do not know that anybody said that it was a pressing question; I may have said it myself.

Q. How did you get the impression that that was a pressing question?

A. Well, I said that there were two or three questions, the sulphite question, the benzoate question, the saccharine question, that it was important to act on. The President wanted the saccharine question investigated.

Q. Who was it that gave you to understand that these two subjects were the most important?

A. I am unable to answer that question.

Q. Did you not get the idea that these questions were pressing because they involved large interests?

A. Yes, I did.

Q. Yes, I know; but getting this settled was desired owing to the fact that large interests were involved?

A. That was the general impression of the board.

Q. You knew that the interests involved were the ones that were clamoring for some sort of a chemical preservative, did you not?

A. I knew from the meeting of the manufacturers to which I have referred that many of them desired either to be permitted to continue to use benzoate of soda or requested a substitute for it, and I understood, principally from Dr. Taylor, that the question was a very live one in the west.

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.

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.

End of the Indiana Case

Judge Anderson of the Federal Court of Indiana decided this celebrated case in favor of Indiana. It was appealed to the Federal Circuit Court. The decision of the lower court was approved.

Appeal to the Seventh Circuit of United States Court of Appeals in the Case of Curtice Brothers, vs. Harry E Barnard, et al, Willis Baldwin, E. 0. Grosvenor, and John Barton Payne, attorneys for Curtice Brothers, Thomas M. Honan, Attorney-General of Indiana, attorney for Harry E. Barnard. Judge Kohlsatt delivered the opinion of the Court.

From the evidence and the master’s report thereon, it is evident that the question of the harmfulness and harmlessness of benzoate of soda is as yet an open one in the scientific world. While the voluminous record of this case deals largely with that question, it is a question of fact. The finding of fact of the master may not in the absence of convincing evidence to the contrary be set aside. To show that the report is erroneous and not justified by the evidence the burden rests upon the appellant. That burden is not convincingly sustained by the record. We, therefore, start with the proposition that the question is yet an open one in the scientific world and, therefore, an open one for the purpose of this hearing. This being so, it was within the power of the Indiana Legislature to prohibit the use of benzoate of soda in the preparation of foods.

Manifestly, if the Legislature of Indiana in the reasonable exercise of its police power and for the welfare of its citizens condemns as an adulteration the use of benzoate of soda in the preparation of articles of food, then in the absence of a general acceptance of the proposition by the scientific world that such is not the case there can as to that matter arise no question of the violation of the Constitution of the United States, or, as here charged, of the State of Indiana. When deemed necessary by the Legislature for the public health property rights such as here involved must give way. It is therefore apparent that the position taken by the appellant with reference to the constitutionality of the act in question is without merit, as are also the other matters covered by the assignment of errors. The decree of the District Court is affirmed.

At the time of the decision of the Seventh Circuit Court of Appeals Williams Brothers of Detroit became convinced that benzoate of soda was an injurious substance and withdrew from the further prosecution of the case. It was carried by Curtice Brothers to the Supreme Court of the United States. In 1915 negotiations were begun between the State of Indiana and the Curtice Brothers looking to abrogation of hostilities. A stipulation was agreed upon in which Curtice Brothers obtained all.they had fought for in the district and circuit courts of the United States as follows:

The Curtice Brothers Co.)
              Appellant,)      No. 243
Harry E. Barnard, et al.)









			

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.

Contempt of Court

In my testimony in the Indiana case, Mr. Baldwin, the attorney for the complainants in cross-examination endeavored to fix the responsibility of the almost unanimous sentiment expressed in the newspapers and magazines on me. He asked me if I kept in touch with the progress of the case. I told him I did as I was greatly interested in it, that I knew it was under way and had been pending for a long while. He asked me this question:

Q. Now then, you have stated your opinion here to the reporters of the different papers as to the outcome of that case?

A. I think I have said that I hoped it would be decided in favor of the State of Indiana.

Q. You said that to the reporters of the papers.

A. I think so. I do not see any reason why I should not say so.

Q. You said that to them with the expectation that they would use those statements in the press.

A. I think reporters usually do.

Q. It is your experience that they do use those things.

A. I have no objection to my opinion being expressed in the public press on a question of that kind; none whatever;

I have a right to my opinion in this country and will exercise it.

Q. Didn’t you know that it is improper for any person to express an opinion as to what the Court was going to do in a pending case.

A. In what sense? In what way?

Q. I say in a way so that that opinion would get in the newspapers.

A. As to the outcome of the case?

Q. Yes.

A. I did not know that it was improper to express the hope in a civil suit without a jury that the decision would be this way or that. If it were an illegal or an improper thing I am sorry I said it. I have done it dozens of times as to cases I have seen on trial.

Q. You made it in such shape that that opinion got.into the newspapers?

A. I suppose it did get into the newspapers. I had no objection to its getting in.

Q. In fact you wished it to get in?

A. I did not think of that.

Q. You must have volunteered it, because it was not forced from you.

A. I did not run around and hunt them up. They came to me.

Q. You voluntarily made those statements?

A. Oh, yes. Nobody tried to force me to make any.

Q. Do you keep a set of clippings from different papers at all?

A. I am not a subscriber to any agency. I usually cut out articles in which I am interested that come to my notice.

Q. And don’t you know that those statements of your opinion were published generally throughout the country?

A. I don’t know if they were or not.

Q. Don’t you know they were published in other papers than those in Washington?

A. Oh, I suppose so; I don’t know.

Q. Do you know whether they were published in any Indianapolis papers or not?

A. I do not.

Q. Don’t you know they were published in the Detroit Free Press?

A. I do not.

At this point Mr. Baldwin offered an article published in the Washington Post, July 13, 1910. This article related the facts that at the 66th Convention of the American Institute of Homeopathy, held at Pasadena, California, a resolution was adopted denouncing food-laws that prohibit the use of preservatives in food and the use of sulphur in curing fruit. He stated that 12,000 homeopathic physicians had sent telegrams to President Taft and Secretary Wilson in favor of the farmer, the fruit-grower and the preserving factories and against the pernicious rulings of Dr. H. W. Wiley, Chief of the United States Bureau of Chemistry. The latter part of this clipping reads as follows:

Although the American Institute of Homeopathy at its convention at Pasadena, Cal., Monday, adopted a resolution rescinding its action taken last year condemning the use of benzoate of soda as a food preservative, Dr. Wiley, chief chemist of the Department of Agriculture, has stronger opinions than ever on that subject. Dr. Wiley’s views did not prevail in the department, as the board appointed by Secretary Wilson under the pure food law disagreed with the chief chemist and sanctioned the use of benzoate of soda as a food preservative.

The developments during the last year, said Dr. Wiley, have accentuated my opinion as to the harmful character of benzoate of soda as a food preservative. I expect to see that view sustained by the Federal courts, as the evidence that has been submitted recently in Indiana cases points that way.

(Page 3460, Indiana Case.)

I never lost faith, in the whole two or three years during which the Indiana case was considered, in the character of the outcome. I think Mr. Baldwin, the attorney for the complainants, was justified also in his optimism that the Referee Board would win. He realized that all the heavy artillery of the most powerful government in the world had been brought into play and directed against the crackling reports of the short shot-guns fired by the Bureau of Chemistry. Later he must have realized the truth of the poem;

Truth crushed to earth will rise again;
The eternal years of God are hers;
While error languishes in pain
And dies amid his worshippers.