208 F. 950 | S.D.N.Y. | 1913
The claimant, Armour & Co., of Chicago, Ill., having a plant and place of business there, is a purchaser of and dealer in eggs and other food products, not a producer. At Chicago, Ill., it purchased and had on hand these eggs in question and others like them. They were released from the shells and frozen but by reason of decay had so far decomposed that they were not fit for human food or consumption as such. As unfit for human consumption these with others had been selected and segregated by claimant at Chicago, Ill., from their other eggs. It is conceded that these eggs had reached such a stage of decomposition as to come within the definition and description of “adulterated” article of food if handled, shipped, or sold, or in
The 13 crates of frozen eggs seized and sought to be condemned in this proceeding were shipped by the claimant, Armour & Co., in interstate commerce from Chicago, Ill., to New York City, N. Y., where that corporation had and has a warehouse and place of business and had been received there, but had not been sold or disposed of or offered for sale when the seizure was made. There are tanneries in the vicinity of New York, and in fact the intention of ihe claimant in so transporting these eggs in question from Chicago to New York was to offer them for sale and dispose of them, if possible, at New York for use in tanning and not for use or consumption as food. This intention or purpose of the claimant had not been disclosed in any way or manner to any person or by any labeling or branding. The eggs in question had not been denatured or subjected to any chemical or other process. They were rotten, decayed eggs, unfit for human food, and came within the definition “adulterated’’ for the reason they consisted in whole or in part of a filthy and decomposed or putrid animal or vegetable substance. See subdivision 6, section 7, of the Food and Drugs Act of June 30, 1906, 34 Stat. 768. By section 6 of the act it is provided that “the term food as used herein shall include all articles used for food * * * whether simple, mixed or compound.” By section 2 the introduction into one state from another state “ * * * of any article of food * * * which is adulterated * * * within the meaning of this act, is hereby prohibited.” Section 10 provides for the seizure and condemnation of “any article of food * * * that is adulterated * * * within the meaning of this act” and which, having been transported in interstate commerce, remains unsold, etc.
The contention of the United States is that eggs are an article of food and that they remain such if not denatured or subjected to some chemical process which destroys them as an article of food, and that when they become decomposed and therefore unfit for food they are, within the meaning of the act (section 7, subd. 6), an adulterated article of food and subject to the condemnation of the act. The contention of the claimant is that, while the eggs prior to decomposition were an article of food, when decomposed they have lost their character as an article of food if the owner does not intend to use, transport, or sell them as an article of food but does intend to transport them and sell them for tanning purposes only and transports them for that purpose only. The contention is that an undisclosed intent to transport in interstate commerce and sell decomposed eggs, which are actually unfit for food, for use in tanning only takes the same out of the category of “adulterated article of food.”
The difficulty with this contention is that these eggs, or eggs of this
“An act to prevent the manufacture, sale or transportation of adulterated, or misbranded, or poisonous, or deleterious foods, drugs, medicines and liquors, and for regulating traffic therein; and for other purposes.”
Would it be an answer to the seizure and attempted condemnation of a car load of partly decomposed beef being transported from Chicago to New York, for the owner to say, “I did not intend it to be used or sold in New York for food, but as soap grease or a fertilizer” such purpose not having been in any manner disclosed ? Philadelphia Pickling Co. v. U. S. (C. C. A. 3d Circuit) 202 Fed. 150, 120 C. C. A. 429, while not on “all fours” with this case in all its facts, is, it seems to me, on “all fours” in principle, unless it can be said that inasmuch as partially decayed eggs, a decomposed article of food, having become unfit for food, are no longer an adulterated article of food, but an article for use in tanning leather, and hence not within the act at all as they may be and sometimes are used for that purpose. This con
In Hipolite Egg Co. v. United States, 220 U. S. 45, 31 Sup. Ct. 364, 55 L. Ed. 364, the object of this Pure Food and Drug Act is declared to be:
“To keep adulterated articles out of the channels of interstate commerce, or if they-enter such commerce to condemn them while in transit, or in original or unbroken packages after reaching destination; and the provisions of section 10 of the act apply not only to articles for sale but also to articles to be used as raw material in the manufacture of some other product.”
In that case the “other product” was an article of food as the eggs were to be used for baking purposes, but I do not see that such fact affects the force of the decisions as to the purpose of the act, which is to prevent the transportation in interstate commerce of adulterated articles which these eggs, within the definition of the lawmaking body, are conceded to have been.
Eggs released from the shell, and frozen or unfrozen, are an “article of food,” and, if adulterated, their transportation in interstate commerce is prohibited, and the act says (section 7):
“That for the purposes of this act an article shall be deemed to he adulterated * * * in the case of food: * * * Sixth. Tf it consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not,” etc.
The fact that decomposed eggs ought not to be used for food or as an ingredient of some food article does not remove them from the category of adulterated article of food, they being within the statutory definition, nor does the fact that they may be used for tanning purposes. If the statute is to be construed so as to make it effective to prevent the interstate transportation of eggs, decomposed or partly decomposed, and hence unfit for human consumption, and thus carry out the intent and purpose of Congress, the eggs in question must he held to be within the operation of the act and subject to condemnation.
There will be an entry directing a verdict of condemnation and a judgment accordingly.