BUTLER, J., Separate Opinion

SUPREME COURT OF THE UNITED STATES

304 U.S. 144

United States v. Carolene Products Co.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS

MR. JUSTICE BUTLER.

I concur in the result. Prima facie, the facts alleged in the indictment are sufficient to constitute a violation of the statute. But they are not sufficient conclusively to establish guilt of the accused. At the trial, it may introduce evidence to show that the declaration of the Act that the described product is injurious to public health and that the sale of it is a fraud upon the public are without any substantial foundation. Mobile, J. & K.C. R. Co. v. Turnipseed, 219 U.S. 35, 43. Manley v. Georgia, 279 U.S. 1, 6. The provisions on which the indictment rests should, if possible, be construed to avoid the serious question of constitutionality. Federal Trade Comm'n v. American Tobacco Co., 264 U.S. 298, 307. Panama R. Co. v. Johnson, 264 U.S. 375, 390. Missouri Pacific R. Co. v. Boone, 270 U.S. 466, 472. Richmond Co. v. United States, 275 U.S. 331, 346. If construed to exclude from interstate commerce wholesome food products that demonstrably are neither injurious to health nor calculated to deceive, they are repugnant to the Fifth Amendment. Weaver v. Palmer Bros. Co., 270 U.S. 402, 412-13. See People v. Carolene Products Co., 345 Ill. 166. Carolene Products Co. v. McLaughlin, 365 Ill. 62, 5 N.E.2d 447. Carolene Products Co. v. Thomson, 276 Mich. 172, 267 N.W. 608. Carolene Products Co. v. Banning, 131 Neb. 429, 268 N.W. 313. The allegation of the indictment that Milnut "is an adulterated article of food, injurious to the public health," tenders an issue of fact to be determined upon evidence.