Jacob Schmidt Brewing Co. v. United States, No. 5128

No. 5128 | 8th Cir. | Nov 27, 1918

HOOK, Circuit Judge.

The Jacob Schmidt Brewing Company was convicted of violating section 240 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1137 [Comp. St. 1916, § 10410]), which prohibits the shipment of intoxicating liquors in interstate commerce unless the package or container “be so labeled on the outside cover as to plainly to show the name of the consignee, the nature of its contents, and the quantity contained therein.”

What defendant did was this: It shipped certain packages containing beer from St. Paul, Minn., to customers in Minot, N. D., on which the only external marks indicating the nature of the contents were, “Return to Jacob Schmidt Brewing Co.,” with street address in St. Paul; the trade-name “Select”; and “Serial No. 33.” The name of defendant and the trade-name it adopted for its product may be put aside. An inference might, perhaps, be drawn from them by some persons that the packages contained beer, instead of a nonintoxicating beverage, but the act of Congress has not left the matter to such inconclusive inferences. Nor is defendant in any better position with its expression, “Serial No. 33.” It appears that defendant’s “Select” beer, so called, was registered with officials of North Dakota under a pure food law of that state, and that the designation “Serial No. 33” was assigned to it. But that was done merely for the local purposes of the state law. It was not designed to give a new or additional name to a well-known article, when outside the purview of that law or in relations with which that law had no concern.

Defendant invokes the rule that that is certain which can be made cprtain. The rule does not apply to a case like this. The act of Congress says that the nature of the contents of the package shall be plainly shown and shown on the outside cover. The requirement is a definite one, very easily complied with. It means that the marks must be of manifest, self-evident import, and must appear at the place indicated. It clearly excludes the idea of reference elsewhere for information, or of a general knowledge of the trade-names or brands adopted by particular merchants for their business, which have not gained a place in the common vocabulary of the country. What has been said also precludes resort to bills of lading issued by the carrier.

The judgment is affirmed.