A. O. Andersen & Co. v. United States, 284 F. 542

A. O. Andersen & Co. v. United States

284 F. 542 | 9th Cir. | 1922

RUDKIN, District Judge

(after stating the facts as above). The court below directed a verdict in favor of the defendant in error upon the ground that the article of food referred to in the statute is the single or individual can of salmon, and not the entire case or lot. If this interpretation of the statute is correct, the government of course failed in its proof, and will of necessity meet the same fate in every other case of this kind, unless it is able to prove that each and every part and parcel of the food product is adulterated within the meaning of the law. Is this a correct interpretation of the statute?

“The ordinary definition of the word ‘article’ is an extremely comprehensive one. In the primary meaning, as given in the dictionaries, it designates one thing of many, one item of several, a portion of complex whole. The best source, however, to which we should apply to determine the definition of a word used in a statute is the statute itseíf.” Junge v. Hedden (C. C.) 37 Fed. 197; Id., 146 U. S. 233, 13 Sup. Ct 88, 36 L. Ed. 953.

The meaning of the word "article” must therefore be gathered from a consideration of the entire act, and we may add in this connection that the rule of strict construction invoked by the defendant in error has little or no application to statutes designed to promote the public health or public safety. Section 1 of the act (Comp. St. § 8717) prohibits the manufacture within any territory or the District of Columbia of any article of food or drugs, adulterated or misbranded with*544in the meaning of the act; section 2 (Comp. St. § 8718) prohibits the introduction of any such article into any state or territory or into the District of Columbia from any other state or territory or the District of Columbia, or from any foreign country; section 6 (Comp. St. § 8722) defines adulteration, and section 10 (Comp. St. § 8726) prescribes the procedure for the condemnation. In all of these sections we are convinced that the word “article” is used in its broad and comprehensive sense, and has reference to the food product, not to the smallest individual container. Any other construction would defeat the entire purpose of the law. If the contention of the defendant in error is sound, it is subject to a fine of not exceeding $200 for each can of salmon introduced into the state, and to a fine of not exceeding $300 for each subsequent offense. Against such a claim on the part of the government, or such a construction of the statute, we think the defendant in error would have just and ample grounds for complaint.

The defendant in error seeks to uphold the judgment on other grounds. First, it is urged that decomposition sets in immediately after the death of animals or fish; that a literal construction of the act would exclude from interstate commerce all canned fish and meat products; that for this reason the court must hold that Congress intended to prohibit the introduction into interstate commerce of products containing an unreasonable amount or quantity of decomposed matter only; and that the statute as thus construed is void for uncertainty, under the decision in U. S. v. Cohen Grocery Co., 255 U. S. 81, 41 Sup. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045, and kindred cases. This argument is more specious than sound.

Decomposition may begin where life ends, but meat or fish is not decomposed at that early stage. Decomposed means more than the beginning of decomposition; it means a state of decomposition, and the statute must b,e given a reasonable construction to carry out and effect the legislative policy or intent. Answering a similar contention in U. S. v. Two Hundred Cases of A. T. Catsup (D. C.) 211 Fed. 780, the court said:

“It is argued for the claimant that, since the presence of bacteria, mold, and yeast in any quantity is evidence of decomposition or the process of decomposition, and there is no fixed standard by which it can be determined when, a product has reached such a stage of decomposition as to ‘consist in whole or in part of filthy, decomposed, or putrid vegetable substance,’ the government cannot prevail. I infer from the testimony of the experts that it would be difficult, if not impossible, to fix any arbitrary standard by which the question could be determined, as it depends upon so many contingencies. In any event, no such standard has been fixed, in the absence of which each, case must be determined on its own facts, and when it appears, as in this case, that the product is so far decomposed as to be unfit for food, it comes within the letter and spirit of the law.”

That case answers the further contention on the part of the defendant in error that adulterated salmon is not injurious to health or dangerous to life:

“It was also iirged that, since there is no proof that the product in question would be injurious to health, a verdict should be ordered in favor of the claimant; but I do not understand that such proof is necessary or required under the provisions of the Food and Drugs Act, on which this proceeding is based.”

*545It appeared from the cross-examination of the government witnesses that they have heretofore suffered canned salmon containing a small percentage of filthy, decomposed, or putrid matter to pass in interstate commerce unchallenged, but there is no room for controversy over percentages under the statute itself, for it excludes all. Of course, where the entire product is not inspected or tested, the proof must go far enough to satisfy the court or jury that the adulteration extends to the whole product sought to be condemned. And while a small percentage of adulteration, found only in a small percentage of the product, might not and would not ordinarily satisfy tire court or jury that the whole product is adulterated, yet in a case like this, where the jury might properly infer or find that approximately one-fifth of the entire product was unfit for human consumption, and that the adulteration extended to the entire product, no such question can arise.

It is further argued that the court should not destroy 1,600 cases of good salmon because 400 cases of the same lot are found to be adulterated. In answer to this we need only say that destruction does not follow condemnation as a matter of course. Section 10 of the act provides for the restoration of the goods on payment of the costs and the giving of a sufficient bond to the effect that the articles will not be sold or otherwise disposed of contrary to the provisions of the act. Under this provision the defendant in error may, and will doubtless be permitted to, separate the good from the bad, and the burden of so doing should rest upon it, and not upon the government or the ultimate consumer. If it cannot do this, it is its own misfortune, and it must suffer the consequences.

The iudgment of the court below is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.