under varying conditions and the character of evidence which should be submitted to establish a reasonable prospect that unused portions would be used for mail transportation within a reasonable time. This memorandum, known as Engineering Memorandum No. 5, has proved very helpful.

WEEKS FORESTRY LAW.

[36 Stat., 961.]

Although the area of lands acquired under the Weeks forestry law during the year is not as large as in the fiscal year 1917, it was greater than in any other year since the law has been in operation. The diminution in acreage acquired during the year was due very largely to war conditions, which drew from the work of examining titles four of the title attorneys and a number of experienced stenographers and typewriters; and the United States attorneys were unable to devote as much attention to their reports upon the titles because of increased work cast upon them by various recent statutes affecting the preparation for and conduct of the war.

On account of congestion of work in the offices of the United States attorneys, the National Forest Reservation Commission has restricted the consideration of new purchases of lands to those within various areas heretofore established by the commission and to such bordering lands as were deemed necessary for the proper administration of the national forests to be established.

The following is a summary, in terms of acres, of operations under the Weeks law from the beginning to June 30, 1918:

Operations under the Weeks forestry law from the beginning to June 30, 1918.

THE FOOD AND DRUGS ACT.

[34 Stat., 768.]

Seven hundred and ninety-seven cases were transmitted to the Department of Justice, in 337 of which criminal proceedings and in 460 of which seizures were recommended. The 337 criminal cases embraced 631 alleged violations of the food and drugs act.

At the close of the fiscal year 1917, 313 cases were pending, of which 213 were criminal prosecutions and 100 were seizures.

Two hundred and forty-three cases pending at the close of the fiscal year 1917 and 469 reported during the fiscal year 1918, in all 712, were terminated in 1918. Of those terminated, 362 were criminal and 350 were civil.

In 311 of the 362 criminal cases fines were imposed. Most of these cases were disposed of by pleas of guilty or nolo contendere. There were trials in only 7; in 5 collateral deposited by defendants was forfeited by reason of their nonappearance in court; in 1 the judgment of conviction in the lower court was affirmed by the circuit court of appeals; in 1 the Supreme Court of the United States reversed, the judgment of the lower court, which sustained a demurrer to the indictment, and in another it affirmed the judgment of the circuit court of appeals, which affirmed the judgment of conviction in the trial court; in 2 there were acquittals; 33 were nolle prossed or the informations dismissed; and 8 were withdrawn or barred by the statute of limitations.

In the criminal cases in which convictions were obtained the fines were as follows:

Fines assessed under food and drugs act in cases reported by this department to the Department of Justice.

This number represents 589 violations of the food and drugs act.

In addition to the fines imposed costs were generally assessed. Of the 350 civil cases terminated during the year decrees of condemnation and forfeiture or informal orders for the disposition of the property were entered in 325, of which 1 was decided favorably to the Government after contest; in 3 the libels were dismissed; in 21 the packages were broken or disposed of before seizure could be

made; and in 1 a verdict was returned for the claimant after trial to the court and a jury. In the 325 cases in which decrees of condemnation and forfeiture were entered the goods were destroyed in 133: released on bond or otherwise in 166; and sold in 26. In many of the cases in which the product was ordered released or sold, the decree of the court provided that the product should be sorted and that that portion found unfit for food should be destroyed.

At the close of the year 398 cases were pending, of which 188 were criminal prosecutions and 210 were seizures.

In addition to the cases reported by this department to the Department of Justice the food and drugs officials of the various States and of the District of Columbia, collaborating with the department in the enforcement of the act, are shown by the records of this office. to have reported 95 cases to the United States attorneys which were terminated during the year. Of these 57 were criminal cases and 38 were seizures. In all of the criminal cases there were convictions or the collateral deposited by defendants was forfeited on account of their nonappearance. In all of the seizure cases decrees were entered and the products released on bond in 18 cases, destroyed in 12, and ordered sold in 7 cases. The fines or amounts forfeited as collateral in the criminal cases were as follows:

Fines in food and drug cases begun by United States attorneys.

One thousand two hundred and fifty notices of judgment were published during the year.

FOOD AND DRUGS CASES OF INTEREST.

In United States v. Herman Heimann, Notice of Judgment 6120, involving an interstate shipment of milk, the court instructed the jury that the food and drugs act seeks to give to the people the natural product of food to which they are entitled and that whatever butter fat milk does contain the shipper should ship the whole milk without any abstraction of any part of it.

In United States v. Union Dairy Co., Notice of Judgment 6142, involving another shipment of milk, the plaintiff in error contended that it was shipping the milk from a receiving station in Illinois to itself in Missouri, there to be treated, impurities removed, and the milk standardized; that while in transit it was not an article of food, such as was defined by the food and drugs act, and did not become such an article of food until after treatment. Upon this proposition the United States circuit court of appeals for the seventh circuit said that to adopt such a conclusion would do violence to the plain language of the statute. The court further said that in passing the food

and drugs act Congress was endeavoring to protect the public by keeping out of interstate commerce certain illicit articles debased by adulteration, and it would be an unjustifiable construction of the act to make liability turn upon a difference in identity of consignor and consignee, or the secret intent with which a shipper made the shipment.

In United States v. McLean Medicine Co., Notice of Judgment 6149, involving the shipment in interstate commerce of a drug alleged to have been misbranded in violation of the Sherley amendment to the food and drugs act, the trial court instructed the jury that Congress enacted the food and drugs act for the purpose of protecting the health of the people. With regard to the labeling of the product, the court instructed the jury that for the purpose of determining whether the labels and other literature, which contained statements that the use of the medicine would arrest or retard the diseases mentioned therein, were misbranded, that they should take into consideration all the language used therein, and from it determine whether it was the intention of the defendant to lead such persons who would read them to believe that the preparation, if taken in the manner prescribed, would arrest or retard the progress of the numerous diseases mentioned although the language did not in direct terms say so; that persons who make substances or compositions alleged to be curative or beneficial are in a position to have superior knowledge and may be held to good faith in their statements; that a person who makes a statement which he doesn't know to be true makes a false statement just as much as a man who makes a statement which he knows to be false; that if a person makes false statements for the purpose of inducing another to purchase such preparations from him in the belief that they will cure or arrest, retard or relieve him to some extent from the ailments which he suffers, which he didn't know to be true and therefore were found to be false, then the jury were justified in finding that it was for the fraudulent purpose of inducing the people to buy the medicine from him; that if they found it to be a fact that the statements were not false, or, being false, that there was no intent, whether actual or implied, upon the part of the defendant to defraud, then their verdict should be for the defendant; that in determining the intent of the defendant, they should take into consideration all the facts and circumstances of the case and determine whether or not it was the intention that this language, interpreting it as ordinary intelligent men would, should convey the impression that the medicine was to cure or act as a remedy for the diseases or ailments mentioned, even where the language does not directly say so.

The case of Oscar J. Weeks v. The United States (F. & D. No. 4672, Cir. No. 89, Office of the Solicitor) decided by the Supreme Court of the United States February 4, 1918, involved a prosecution for the shipment in interstate commerce of an article of food labeled "Special lemon. Lemon terpene and citral." Upon the trial of the case a conviction resulted in the lower court, and in the circuit court of appeals the conviction was affirmed upon so much of the charge in the information as alleged that the article was offered for sale as lemon oil, when in truth it was an imitation thereof containing alcohol and citral derived from lemon grass. The record showed that 97335°-AGR 1918-27

there was testimony tending to prove, among other things, that the shipment was made to fill an order solicited and taken by a traveling salesman in defendant's employ. The salesman had been supplied by the defendant with a sample bottle of the article which was labeled simply "Special lemon." In offering the article for sale and soliciting the order, the salesman exhibited the sample and represented that the article was pure lemon oil obtained by a second pressing, and that this pressing produced a good, if not the best, oil. The article was not lemon oil, but an imitation thereof containing alcohol and citral made from lemon leaves. Some of the elements of lemon oil were present in other than the usual proportions, and others were entirely lacking. The testimony respecting the salesman's representations was admitted by the trial court over the defendant's objection, and the court later denied defendant's request that the jury be instructed that this testimony could not be considered but only the statement appearing on the label when the bottle was shipped. In that connection the court told the jury that the defendant could not be held criminally responsible by reason of any representations made by the salesman, unless it appeared beyond a reasonable doubt that the same were made by the defendant's authority. The defendant complained, on appeal, of the admission and consideration of this testimony, and insisted that under the statute the question whether an article is misbranded, turns entirely upon how it is labeled when it is shipped, regardless of any representations made by a salesman, or even the vendor, in offering it for sale.

Upon this proposition the Supreme Court said:

It is apparent that the statute specifies and defines at least two kinds of misbranding, one where the article bears a false or misleading label and the other where it is offered for sale under the distinctive name of another article. The two are quite distinct, a deceptive label being an essential element of one but not of the other. No doubt both involve a measure of deception but they differ in respect of the mode in which it is practiced. Evidently each is intended to cover a field of its own, for otherwise there would be no occasion for specifying and defining both. That one article of food may be offered for sale in the distinctive name of another and the offer accomplish its purpose without the aid of a false or misleading label hardly needs statement. *

It follows that the testimony respecting the representations of the defendant's traveling salesman was rightly admitted in evidence and submitted to the jury. It tended to prove that the order, to fill which the shipment was made, was obtained by offering the article for sale, in the distinctive name of another article, and therefore that the article was misbranded within the meaning of the statute. To have confined the jury's attention to the label borne by the article when it was shipped, as was requested by the defendant, would have been to disregard the nature of the charge in the second count and the distinction between the two kinds of misbranding.

In United States v. Schider (Circular No. 91, Office of the Solicitor, Notice of Judgment No. 6151), the trial court sustained the defendant's demurrer to the indictment. On a writ of error to the Supreme Court of the United States the lower court was reversed and the case remanded. The indictment charged that a product containing little or no grape and labeled "Compound Ess Grape" was adulterated and misbranded in violation of the food and drugs act. The defendant contended that the labeling of the article "Compound" brought it within the proviso of section 8 of the act, which declares articles of food shall not be deemed adulterated or misbranded if they are "labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends, and the word