221 U.S. HUGHES, HARLAN and DAY, JJ., dissenting.

The question then is whether, if an article is shipped in interstate commerce, bearing on its label a representation that it is a cure for a given disease, when on a showing of the facts there would be a unanimous agreement that it was absolutely worthless and an out and out cheat, the act of Congress can be said to apply to it. To my mind the answer appears clear. One or two hypothetical illustrations have been given above. Others may readily be suggested. The records of actual prosecutions, to which I am about to refer, shows the operation the statute has had and I know of no reason why this should be denied to it in the future.

Our attention has been called to the construction which was immediately placed upon the enactment by the officers charged with its enforcement in the Department of Justice and the Department of Agriculture. It is true that the statute is a recent one, and, of course, the question is one for judicial decision. But it is not amiss to note that the natural meaning of the words used in the statute, reflected in the refusal of Congress to adopt a narrower provision, was the meaning promptly attributed to it in the proceedings that were taken to enforce the law. And this appears to have been acquiesced in by the defendants in many prosecutions in which the defendants pleaded guilty. We have been referred to the records of the Department of Agriculture showing nearly thirty cases in which either goods had been seized and no defense made, or pleas of guilty had been entered. Among these are found such cases as the following:

"No. 29. Hancock's Liquid Sulphur, falsely represented, among other things, to be 'Nature's Greatest Germicide. The Great Cure for Diptheria.' Investigation begun November 22, 1907. Plea of guilty."

"No. 180. Gowan's Pneumonia Cure, falsely represented, among other things, that it 'Supplies an easily

HUGHES, HARLAN and DAY, JJ., dissenting. 221 U.S.

absorbed food for the lungs that quickly effects a permanent cure.' Investigation begun November 22, 1907. Criminal information. Plea of guilty."

"No. 181. 'Eyelin,' falsely represented, among other things, that it 'Repairs and Rejuvenates the Eye and Sight.' Investigation begun February 13, 1908. Plea of guilty."

"No. 261. 'Sure Thing Tonic,' falsely represented, among other things, to be 'Sure Thing Tonic. Restores Nerve Energy. Renews Vital Force.' Investigation begun June 3, 1909. Pleaded guilty."

"No. 424. "Tuckahoe Lithia Water,' falsely represented, among other things, to be 'a sure solvent for calculi, either of the kidneys or liver, especially indicated in all diseases due to uric diathesis, such as gout, rheumatism, gravel stone, incipient diabetes, Bright's Disease, inflamed bladder, eczema, stomach, nervous, and malarial disorders.' Investigation begun July 9, 1908. Plea of guilty."

"No. 427. 'Cancerine,' falsely represented, among other things, to be 'A remarkably curative extract which if faithfully adhered to will entirely eradicate cancerous poison from the system. A specific cure for cancer in all its forms.' Investigation begun about April 12, 1909. Criminal information. Plea of guilty."

I find nothing in the language of the statute which requires the conclusion that these persons who have confessed their guilt in making false and misleading statements on their labels should be privileged to conduct their interstate traffic in their so-called medicines, admittedly worthless, because Congress did not intend to reach them.

Nor does it seem to me that any serious question arises in this case as to the power of Congress. I take it to be conceded that misbranding may cover statements as to strength, quality and purity. But so long as the statement is not as to matter of opinion, but consists of a false

221 U.S. HUGHES, HARLAN and DAY, JJ., dissenting.

representation of fact-in labeling the article as a cure when it is nothing of the sort from any point of view, but wholly worthless-there would appear to be no basis for a constitutional distinction. It is none the less descriptiveand falsely descriptive of the article. Why should not worthless stuff, purveyed under false labels as cures, be made contraband of interstate commerce, as well as lottery tickets? Champion v. Ames, 188 U. S. 331.

I entirely agree that in any case brought under the act for misbranding,-by a false or misleading statement as to curative properties of an article,—it would be the duty of the court to direct an acquittal when it appeared that the statement concerned a matter of opinion. Conviction would stand only where it had been shown that, apart from any question of opinion, the so-called remedy was absolutely worthless and hence the label demonstrably false; but in such case it seems to me to be fully authorized by the statute.

Accordingly, I reach the conclusion that the court below erred in the construction that it gave the statute, and hence in quashing the indictment, and that the judgment should be reversed.

I am authorized to say that MR. JUSTICE HARLAN and MR. JUSTICE DAY concur in this dissent.

Argument for Appellant.

221 U.S.

GLUCKSMAN v. HENKEL, UNITED STATES MARSHAL.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 944. Argued April 6, 7, 1911.-Decided May 29, 1911.

While a person is not to be sent from this country on mere demand or surmise, this Government should respond to a request for extradition if there is reasonable ground to suppose the accused to be guilty of an extraditable crime, even if presented in untechnical form; good faith demands this much in carrying out an extradition treaty.

Courts are bound by the existence of an extradition treaty to assume that the trial in the demanding State will be fair.

Where a magistrate of a demanding State certifies of his own knowl

edge to the identity of photographs, the courts of this country will presume in extradition proceedings that he had reason for so doing. In this case held that although the presentation was untechnical it was sufficient to justify surrender.

Where the complaint calls the instruments alleged to have been forged bills of exchange and the evidence showed they were promissory notes the variance will not defeat surrender where the instruments are identified and there is a plain charge of forgery.

If an extraditable crime under the law of the State where the accused is found is sufficiently charged, the effect of variance between complaint and proof is a matter to be decided on general principles irrespective of the law of that State. Wright v. Henkel, 190 U. S. 40; Petit v. Walshe, 194 U. S. 205, distinguished.

Even though the complaint be sworn to on information and belief, if it is supported by testimony of witnesses stated to have deposed, the court will presume that they were sworn and the complaint is sufficient. Rice v. Ames, 180 U. S. 371.

THE facts are stated in the opinion.

Mr. Chas. Dushkind for appellant:

A writ of habeas corpus cannot perform the functions of

221 U. S.

Argument for Appellant.

a writ of error; nevertheless this court will go behind the commitment to ascertain whether there was any legal evidence to give the Commissioner jurisdiction, since in the absence of some legal proof the Commissioner has no jurisdiction. Art. 1, Treaty with Russia; Terlinden v. Ames, 184 U. S. 541.

The laws of the State where the fugitive is found and not the acts of Congress are to govern in such cases. Wright v. Henkel, 190 U. S. 61; Pettit v. Walshe, 194 U. S. 205.

In New York the magistrate has no jurisdiction and cannot act unless there is some competent legal proof to establish a probable cause. People v. Wells, 57 App. Div. 140; Church, Hab. Corp. p. 319; Ex parte Jenkins, Fed. Cas. No. 7259; In re Henry, 35 N. Y. Supp. 210; Perkins v. Moss, 187 N. Y. 410; Ex parte Swartwout, 4 Cranch, 75.

The prisoner traversed the return and hence the court can properly review the evidence to ascertain whether there was any legal evidence upon which the Commissioner could act. There is no legal evidence in the case at bar to show that a crime has been committed.

There is no legal proof in the case at bar establishing the identity of the prisoner, but on the contrary the evidence shows affirmatively that the prisoner is not the man who is alleged to have committed the crime.

The photographs were not properly authenticated as evidence by certificates of the consul. In re Henrich, 5 Blatchf. 414; In re McPhun, 30 Fed. Rep. 60.

Assuming that the evidence as to the criminality is sufficient the prisoner must be discharged because the complaint charges the accused with having forged and offered forged bills of exchange whereas the proof shows that he had forged notes. Wright v. Henkel, 190 U. S. 40, and Pettit v. Walshe, 194 U. S. 205. This case is to be governed by the laws of New York; and People v. Geyer, 196 N. Y. 367, is controlling on this point. See also People v.