submitted to the magistrate issuing the warrant so that he may determine whether probable cause exists.

It was the opinion of Chief Justice Marshall, that a proceeding in forfeiture of a vessel is a civil cause. The Vengeance, 3 Dall. 297, he says at page 301

We are unanimously of opinion that it is a civil cause. It is a process of the nature of a libel in rem and does not in any degree touch the person of the offender.

The same great authority expressed the same view in The Schooner Sally, 2 Cranch, 406; The Samuel, 1 Wheat. 10; and in The Betsy and Charlotte, 4 Cranch, 442.

It is said by Mr. Justice Clifford in Dobbins Distillery v. U.S. 96 U.S. 395, 399

Cases arise undoubtedly, where the judgment of forfeiture necessarily carries with it, and as part of the sentence, a conviction and judgment against the person for the crime committed; and in that state of the pleadings it is clear that the proceeding is one of a criminal character; but where the information, as in this case, does not involve the personal conviction of the wrongdoer for the offense charged, the remedy of forfeiture claimed is plainly one of a civil nature; as the conviction of the wrongdoer must be obtained, if at all, in another wholly independent proceeding.

This would seem to settle the question, but there is a long list of cases beginning with Boyd v. United States, 116 U.S. 616, 634, which hold that proceedings in seizure and forfeiture are so far criminal as to come within the meaning of the fourth amendment. Lees v. United States, 150 U.S. 480; Stone v. United States, 167 U.S. 178, 187; State v. Chicago, 37 Fed. 497, 500; State v. Day Land, etc., 41 Fed. 228, 230; United States v. Two Barrels of Whisky, 96 Fed. 116 U.S. 434; Clifton v. United States, 4 How. 242, 250.

The question in Boyd v. United States, was whether or not in an action in rem to establish a forfeiture of goods alleged to have been fraudulently imported without paying duties, an order of court based on the fifth section of the act authorizing the proceeding which required the claimants of the goods to produce a certain invoice in court for the inspection of the Government attorney and to be offered in evidence by him, was constitutional or not. Section five was held to be unconstitutional. Mr. Justice Bradley, at page 634, says— As, therefore, suits for penalties and forfeitures incurred by the commission of offences against the law, are of this quasi-criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the fourth amendment of the Constitution, and of that portion of the fifth amendment which declares that no person shall be compelled in any criminal case to be a witness against himself; and we are further of opinion that a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself, within the meaning of the fifth amendment to the Constitution, and is the equivalent of a search and seizure-and an unreasonable search and seizure-within the meaning of the fourth amendment.

The propriety of these views has not been questioned, so far as this court after much research has been able to ascertain, and they are summed up by Mr. Justice Harlan in Hepner v. United States, 213 U.S. 103, 111, in this language—

In the latter case [Boyd v. U.S.] it was adjudged that penalties and forfeitures incurred by the conviction of offenders against the law are of such a quasi-criminal nature that they come within the reason of criminal proceedings

for the purpose of the fourth amendment of the Constitution and of that part of the fifth amendment declaring that no person shall be compelled in any criminal case to be a witness against himself.

Some light is thrown upon the subject by what is said in Smith v. Maryland, 18 How. 71, 76. In that case the question was whether a law of Maryland, enacted for the protection of oysters in waters covering lands in the State afforded valid cause for seizing a licensed and enrolled vessel of the United States and interrupting its voyage, and pronouncing for its forfeiture. As bearing upon the subject under discussion Mr. Justice Curtis said

That objection that the law in question contains no provision for an oath on which to found the warrant of arrest of the vessel, cannot be here maintained. So far as it rests on the constitution of the State, the objection is not examinable here, under the twenty-fifth section of the Judiciary Act. If rested on that clause in the Constitution of the United States which prohibits the issuing of a warrant but on probable cause supported by oath, the answer is, that this restrains the issue of warrants only under the laws of the United States, and has no application to State process.

See also what is said by Mr. Justice Curtis in Murray's Lessee v. Hoboken, etc., Co., 18 How. 227, bottom page 285, and see the opinion of Attorney General Nelson (1843).

The protection guaranteed is not against all seizures; it is against unreasonable seizures, can be made only upon reasonable cause; and, when authorized, the evidence of its reasonableness is to be presented by oath or affirmation. (4 Op. Attys. Gen. 213.)

The question in every case of seizure is, whether the seizure was justified or not, and the proceeding to ascertain that fact is a civil proceeding, but a seizure of goods is in effect a proceeding against the owner (Boyd v. United States, 116 U.S. 637; The City of Norwich, 118 U.S. 468, 504), and hence criminal in nature, and the matter is brought within the meaning and operation of the fourth amendment under which it is a no less serious offense to seize goods than it is to seize the person without a warrant under oath founded upon probable cause.

Power is given Congress by the Constitution to regulate commerce and to pass all laws necessary and proper to carry that power into effect. The Food and Drugs Act is sanctioned by that power. But in carrying out that power regard must be had to other provisions of the Constitution, and if a seizure of goods is necessary it can only be made in the way prescribed by the fourth amendment. See remarks of Judge Drummond in Mason v. Robbins, 9252 Fed. Cases.

In all criminal cases in which a warrant is issued for arrest, probable cause must be shown by the affidavit of some one who has knowledge of the facts. This may be regarded as settled. The rule is laid down by Justice Bradley on the circuit, in the Rule of Court, No. 12126 Fed. Cases. He says:

No warrant shall be issued by any commissioner of this court for the seizure or arrest of any person charged with a crime or offense against the laws of the United States upon mere belief or suspicion of the person making such charge; but only upon probable cause, supported by oath or affirmation of such person, in which shall be stated the facts within his own knowledge constituting the grounds for such belief or suspicion.

See also United States v. Tureaud, 20 Fed. 621, 623; United States v. Polite, 35 Fed. 59; Erwin v. United States, 37 Fed. 470, 489; In

re Gourdin, 45 Fed. 842, 843; In re Dana, 68 Fed. 895; Johnson v. United States, 87 Fed. 187.

Historically, arbitrary seizure is one of the great grievances against despotic power. In these days the reasons for the protection of persons and property, and the fact that they are protected, are almost forgotten in the paucity of attacks upon them, yet, how that protection was wrung from reluctant tyranny must always be borne in mind and no act can be sanctioned which would tend to weaken the great safeguard of our liberties and permit at sometime encroachments thereon which might seem justified by authority of law or by judicial interpretation. Boyd v. United States, 116 U.S. 616, 635. In many cases of seizure discussed in this opinion the fact does not appear whether a warrant was issued prior to the seizure, nor was the form of the warrant disclosed, but in the opinion of this court, considering the seriousness of governmental seizures of the private property of a citizen and the requirements of the fourth amendment, it would seem that the affidavit preceding a warrant in proceedings in their nature criminal for the seizure of goods should be made by some one cognizant of the facts, then upon the issuing of the warrant and the seizure of the goods, the district attorney may proceed "to cause appropriate proceedings to be commenced and prosecuted in the proper courts of the United States without delay for the enforcement of the penalties," as provided by the act.

It is argued by the district attorney that—

even the Constitution must be reasonably construed, and it was never intended or decided that the court should examine a case in advance of issuing process for seizure for condemnation, and should afterwards have to try the case on the same evidence to determine whether the case was actually made out.

In answer to this it may be said that the proceedings resulting in the issuing of the warrant are altogether ex parte. There is no trial. There is an affidavit presented by some one who claims to be conversant with the facts, setting forth facts which would show probable cause.

The demurrer on its second ground is well taken.

3. "It does not appear in and from the averments contained in said libel that the goods therein mentioned are still subject to the provisions of the act of Congress of June 30, 1906, in said libel invoked."

From sections 2 and 10, it may be gathered that the offense charged is the shipping of the contraband article from one State into another, or, having received it, to deliver or offer to deliver the unbroken packages for pay or otherwise, and that a seizure and forfeiture may be had, first, when the article is being transported from one State to another for sale, and, second, having been so transported remains unloaded, unsold, or in the original unbroken packages.

It may well be that the Prescription Products Company was the owner of these unbroken packages or had them in its possession for the purpose of being used, manufactured, sold, and consumed as drugs without the packages having been transported for sale or received for sale. Of course if the original packages were to be used and manufactured Congress had no power to legislate respecting them, and if they were to be sold after manufacture then the original

packages must necessarily have been broken, and then the law would have to look to the labels on the original packages into which the manufactured product been put, and only then if it were shipped from Dayton into some other State.

If the words "used and manufactured" are rejected as surplusage and the illegal conduct is restrained to the words "sold and consumed as drugs ", it may be said that the owner or possessor of these original packages could do as he pleases with them if they were not transported into the State to be sold in the original packages. They may heve been, as they probably were, transported to be manufactured as in the United States v. 65 Casks Liquid Extracts, 170 Fed. 449, 456, and then when the manufactured product is sold it must bear the proper label, if labeled at all. These casks may have been transported for purposes of experiment and, not being used for such purposes, were sold by the person receiving them to the present owner or possessor. So far as it appears by the label, years may have elapsed since the transportation for some other purpose than for sale in the original packages, and it may be that during all that time State taxes have been paid by the owner or possessor. Indeed the packages may have been in the ownership and possession of the claimant before the Food Act was passed, and if so, could not come within its operation, article 1, section 9, clause 3, Constitution of the United States. The court is of opinion that no forfeiture can be declared under the libel as drawn, and the third ground of demurrer will be sustained.

4. Said libelant has not in and by its said libel made or stated such a case as entitles the said libelant to the relief therein prayed, inasmuch as the said act of June 30, 1906, has no application to shipments of the character of the said shipments, set forth in said libel." Under the provisions of section 8, the term "misbranded" applies to drugs, "the package or label of which shall bear any statement, design, or device regarding such article, or the ingredients or substances contained therein which shall be false or misleading in any particular", or (sub-second) "if the package fails to bear a statement on the label of the quantity or proportion of any alcohol * * *""

The legend, "Prescription Products Company, Dayton, Ohio, S. 59884, P. D. Co. No. (1)", is not intelligible. It may be a shipping direction or it may have been put on the packages by the claimant for purely innocent purposes of its own. As it reads it cannot be said to be a statement, etc., of the article in the casks or of the ingredients and substances contained in them. It may be that apt words by way of inducement or innuendo would bring the legend within the language of the law and show that it was a statement, etc., false or misleading in some particular. It may be that when interpreted it would show a full compliance with the law.

The law does not require any label except by inference, and by no means necessary inference. A man cannot be convicted of a criminal offence or his property forfeited by inference. The effect of the provision of the law is that no original packages of drugs shall be introduced into one State from another for purposes of sale in the original packages the label of which is misleading or false. If there

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is no label there is no misrepresentation. If the label is unintelligible it is no description of the contents of the package and can deceive nobody.

But it would be a too great refinement of language to say that these marks are not labels. The casks certainly are labeled as described. It may be that the marks when interpreted would show the required content of alcohol, but the label should make that fact intelligible. Since the casks are labeled, the required information should appear clearly on the label, whether it is a separate paper pasted on the cask or branded upon it.

Inasmuch, however, as the libel does not charge that the packages were transported into the State for sale, this ground also for the demurrer must be sustained.

Order accordingly.

UNITED STATES v. FIVE BOXES OF ASAFOETIDA

(District Court, E.D. Pennsylvania, Sept. 19, 1910)

181 Fed. 561

Libel under section 10 of the Food and Drugs Act. Trial before the court. Decree in favor of claimant.

HOLLAND, District Judge. This libel is filed by the Government under the provisions of the act of June 30, 1906, for the purpose of effecting the condemnation of five boxes of asafoetida, which it is alleged were adulterated within the meaning of this act of Congress. An attachment was issued and the drug seized by the Government, after which a claim was made by Smith, Kline & French Company, in whose possession the asafoetida was found, and an answer duly filed by them, in which the claimants urge that the libel be dismissed and that the drug seized under the attachment be returned to them. From the libel and answer, upon which the case was argued, we gather the following undisputed material facts:

On the third day of May 1910 T. M. Curtius, of the city of New York and State of New York, shipped via Clyde Steamship Company, a common carrier, five boxes of asafoetida to Smith, Kline & French Company, of the city of Philadelphia, in the State of Pennsylvania, for which, at the time, the latter paid Curtius in full and received the asafoetida in their possession, at their place of business, no. 429 Arch Street, in this city. "Being a drug sold under a recognized name in the United States Pharmacopoeia ", it was adulterated within the meaning of the act of Congress at the time of transportation, in that it differed from the strength, quality, and purity as determined in the test laid down in the United States Pharmacopoeia official at the time of the investigation, in this: That the standard of strength, quality, and purity determined by the test required that not less than 50 percent of the asafoetida should dissolve in alcohol, and, when incinerated, the said alcohol should yield not more than 15 percent of ash; whereas, less than 50 percent of the asafoetida contained in these five boxes was soluble in alcohol, and when incinerated yielded more than 15 percent of ash.