Duffy-Mott Co. v. Blair , 292 F. 986 ( 1922 )

LEARNED HAND, District Judge.

In my judgment the case comes down to this: If, in subdivision E of section 4, the words “preserved sweet cider” include benzoated cider, that is, cider preserved with benzoate of soda, then it appears to me, for reasons I shall give in a moment, that the plaintiff must succeed. This is precisely the conclusion to which Judge A. N. Hand came in the argument on the demurrer. The reason why I say this is as follows: “Preserved sweet cider” may be held, and perhaps should be held, to include all ciders which were preserved and upon the market on October 22, 1919. Even so, the phrase includes only pasteurized sweet cider and sweet cider preserved by an injection of a small portion of benzoate of soda. Assuming this to be the proper construction of the term, it therefore included two classes, of which the Commissioner’s regulation has now outlawed one. I say he has outlawed it, because he has annexed a condition to its sale which every one agrees cannot be fulfilled. In order to fulfill it, the cider maker must abandon benzoate of soda and pasteurize his cider; i. e., he must confine himself to one of the two classes covered by the phrase at the time the statute was passed. Yet if both of these sweet ciders are included-in the exception, the Commissioner by a regulation cannot thus absolutely outlaw one of them; power to regulate he still has, and that power undoubtedly includes power to attach conditions to the making of cider, but the conditions must not be such as withdraw the permission which the statute itself gives. That is so obvious that it is hardly necessary to say it.

If all this is so, then the question is simply this: Does the phrase-“preserved sweet cider” in the statute include apple juice which is preserved temporarily, by the infusion of benzoate of soda ? I think, in view of all the evidence here, it is not too much to say that there-is not the least shadow of a doubt that the phrase does include this-kind of sweet cider; and that at the time the statute went into effect,, benzoated sweet cider included 90 per cent, of all that was sold in. the United States. There has been no dispute of that. Indeed, all. cider sold in bulk is preserved by benzoate of soda, and when the statute-used that phrase it would be preposterous to suppose that they meant to ■ protect only one-tenth of the total output and to outlaw nine-tenths, especially that which was the cheapest in its manufacture, and which presumably went to the body of the people at large. The lawmakers were intent, rightly or wrongly, upon protecting the industry, and: they meant, for reasons which no doubt were good, to allow the sale of sweet cider, as the market then knew it; that is, of the substance with which the market then was familiar under that or any other name.

It further appears in this- case, although I do not think it was essential that it should, what were the reasons which led them to make-that exception. It appears that by no possibility can this substance become an intoxicant; long before it can become such, it is nauseous-Probably even a confirmed drunkard would not he able to get the-intoxication which he demands out of it; his stomach would scarcely tolerate enough to extract the alcohol from it which he craves. Therefore it is quite clear why Congress thought they could safely give an unconditional permission for its sale. I do not mean by unconditional that the manufacture must be unregulated; section 4 quite clearly shows that it is to be subject to regulations. But all such must fairly tend to one end alone: That there shall be sold only that substance which the trade has been accustomed to buy and sell as sweet cider. Without some regulations, the makers might sell hard cider, and' that would be an intoxicant which the statute forbids. The scope of: the Commissioner’s power is confined to securing this end. The plain— tiffs indeed concede that they are subject to such regulation. The power so to regulate must, however, be subject to the purposes of the statute, and those purposes protect the sale of benzoated sweet cider.,

For these reasons the plaintiffs may take decrees.