UNITED STATES v. 449 CASES, CONTAINING TOMATO PASTE
No. 166, Docket 22923
United States Court of Appeals, Second Circuit
Argued Feb. 2 and 3, 1954. Decided April 22, 1954.
212 F.2d 567
John T. Conley, Middlebury, Vt. (Ralph A. Foote, Middlebury, Vt., on the brief), for plaintiff-appellee.
Before CLARK, FRANK, and MEDINA, Circuit Judges.
PER CURIAM.
Defendant‘s attack on the verdict and judgment holding him in damages for the injuries suffered by plaintiff in an automobile accident rests on his contention that under the law of Vermont, where the accident occurred, plaintiff was guilty of contributory negligence as a matter of law. As he concedes, the jury‘s finding of his negligence is not subject to attack, since he had left his car on a traveled highway without lights after dark. We agree, however, with the learned district judge that even under the unusually heavy burden apparently resting on plaintiff under local law, the issue was properly submitted to the jury. The plaintiff testified that, although he was blinded by the lights of an oncoming car, he did reduce his speed from about 40 to 30 miles an hour, and after the lights had passed was too near the defendant‘s car to avoid colliding with it. Being pressed he then did attempt to express the relative distances in feet, and these estimates form the basis for the detailed computations upon which defendant here particularly relies. But the jury could have taken these for what they necessarily were under the circumstances, i. e., relative estimates, rather than precise measurements, see Alar v. United States, 2 Cir., 212 F.2d 565, and have found, as it did, that plaintiff did have a care for his own safety. This serves to distinguish the most pertinent Vermont cases. In Paquin v. St. Johnsbury Trucking Co., 116 Vt. 466, 78 A.2d 683, 80 A.2d 669, the plaintiff did no more than take his foot off the accelerator; and in Kennedy v. Laramee, 115 Vt. 358, 61 A.2d 547, the plaintiff, when blinded, made no attempt to reduce his speed.
Affirmed.
Leo Sussman, New York City, for claimant-appellee.
Before CLARK, FRANK, and HINCKS, Circuit Judges.
CLARK, Circuit Judge.
This appeal concerns a seizure proceeding under the
The tomato paste, imported from Portugal, was landed in Brooklyn in the Eastern District on April 9, 1951, the entry being in bond. Representatives of the Federal Security Agency took samples for inspection; and on April 16 claimant, A. Fantis, the importer, received official notice from the Food and Drug Administration that the goods need not be further held. Claimant thereupon paid for the shipment and removed and sold fifty cases from the entire lot. In July, however, a government food inspector, checking the warehouse, noticed that several of the cases had been recoopered; and closer inspection revealed that several cans had been resoldered. This discovery led to a retesting of the shipment, which disclosed the presence of mold in the tomato paste in quantities exceeding administrative tolerances. The instant proceedings ensued.
It is undisputed that mold in tomato products indicates decomposition. It is also undisputed that when, as here, it results from rot in the tomatoes present before processing, it is not visible to the naked eye, but is detectable only by microscopic examination. Libelant at the trial did not offer proof that the paste was deleterious or unfit for food, in any way other than the decomposition, but contended that it was no part of the government‘s case to go beyond the showing made as to decomposition. Thereafter the district judge filed an opinion holding that the government had not sustained its burden of proof and that the shipment should be released to the claimant. D.C.E.D.N.Y., 111 F. Supp. 478. Libelant appeals from the resulting order.
The entire subject matter of this subdivision of the statute is covered by two co-ordinate “if” clauses; and the second “if” indicates plainly that the second clause introduced thereby is co-ordinate and independent, rather than a qualification of the antecedent clause. The first clause expressly bans all products composed in whole or in part of any filthy, putrid, or decomposed substance; and the second clause goes on to add to the ban substances which were unfit for food for any other reason.
It should be noted also that the further class of adulterated foods thus added, i. e., “otherwise unfit for food,” is a broad general classification allowing “the widest variety of reasons for condemning a food,” 67 Harv.L.Rev. 632, 645, and not limited to either proof of filth or decomposition or to conditions deleterious to health. See, e. g., United States v. 24 Cases, More or Less, D.C.Me., 87 F.Supp. 826, 827, (canned herring roe of a “‘tough, rubbery consistency‘“), and cf. United States v. 298 Cases, etc., Ski Slide Brand Asparagus, D.C.Or., 88 F.Supp. 450 (dealing with “stringy asparagus“); and Steffy, “Otherwise Unfit for Food“—A New Concept in Food Adulteration, 4 Food Drug Cosmetic L.Q. 552 (1949) (citing a variety of examples). There is therefore no basis for equating unfitness for food with injury to health, and the assumed logical progression from decomposition to unfitness for food to injury to health as showing identic terms thus doubly fails.
The conclusion of these authorities, following the statutory language, that the phrase “unfit for food” is not constrictive, but rather is additional or cumulative, is of controlling importance here. Any attempt to develop a constrictive meaning runs into the difficulty—highlighted by the statutory history developed below—that there is literally no place to which the argument may lead. As appears, complete identification of this phrase with “injurious to health” is universally excluded. But it is manifestly impossible to work out some tertium quid, of content sufficient to be grasped and acted upon by government inspectors or courts, of matter which is worse than “filthy, putrid, or decomposed,” but still less than injurious to health. At most, search for such an intermediate ground can only suggest something by way of a greater degree of filthiness or putridity, perhaps along the line of the government tolerance actually allowed, or, if not this, something hopelessly vague and variable, dependent upon the taste buds or olfactory senses of the inspectors and too shifty a basis to serve as embodiment of congressional intent of drastic prohibition with both civil and criminal sanctions. So it is not surprising that no precedent or authority actually supports such a classification. And so the argument for restrictive interpretation of the statute slips insensibly, although perhaps necessarily, into an identification of food unfitness with health injury. This becomes even more manifest upon an examination of the statutory history to which we now turn.
The particular definition of adulterated articles here involved—
On the same day that Congress enacted the
It is of course true, as is often pointed out, e.g., 67 Harv.L.Rev. 632, at 644, 696, that the power granted is very broad, and “literal application of the statute could lead to unjustified harshness.” But Congress has attempted to meet this difficulty by granting a large measure of discretion to the administrator, originally the Secretary of Agriculture, later the Federal Security Administrator, and now the Secretary of Health, Education and Welfare. In addition to provisions not here immediately pertinent for regulations making certain exemptions or granting certain tolerances,
Hence the district court was in error in its construction of the governing statute. There was further error in the holding that the government had a “very much heavier” burden of proof here than usual because of its first analysis which resulted in original clearance of the goods. D.C.E.D.N.Y., 111 F.Supp. 478, 480. We have held that in this class of cases the government has no extraordinary burden, but only the usual one of proof by a fair preponderance of the evidence. United States v. 5 Cases, More or Less, Containing “Figlia Mia Brand,” 2 Cir., 179 F.2d 519, 524, certiorari denied Five Cases of Figlia Mia Brand of Oil v. United States, 339 U.S. 963, 70 S.Ct. 997, 94 L.Ed. 1372. Even if there were any basis for applying some rule of estoppel against government agencies in their enforcement of regulatory laws for the general welfare, there is nothing either in the grant of administrative favor or the then less compelling cast of the evidence—discussed below—to change this rule of law.
The order denying condemnation and releasing the goods to the claimant must therefore be reversed. And we think the state of the record is such that we should order judgment for the government, rather than remand for further trial. True, the district judge because of his rulings of law did not go on to make specific findings as to the degree of decomposition of the product. But the evidence was reasonably complete and upon it, taking it in favorable aspects to the claimant and even upon the testimony of his own expert, we think it clear, as a matter of law, that the product was adulterated within the statutory meaning. For a demonstration of this, some further analysis of the record is necessary.
It was agreed by both parties that the test to be employed was the Howard Mold Count as approved by the Association of Official Agricultural Chemists (Book of Methods of the Association of Official Agricultural Chemists, 7th Ed., § 35.64, p. 723). By this test a small amount of the duly mixed tomato paste is put upon a particular slide, the Howard mold count slide, for microscopic examination, the chemist in charge examining 25 fields of view on each slide and 4 slides or 100 fields (a minimum of 50 fields being required under the Howard count). The percentage number of microscopic fields in which mold filaments appear is therefore noted and deductions made as to the existence of mold signifying the use of tomatoes with rotted tissue. The government chemists worked with a tolerance of 40 per cent; that is, as one of the experts succinctly put it, “that the Administrator would not take action on products of this sort where the mould count did not exceed 40 per cent.”5 It will be noticed that under this test there is no direct gauge or measure of the amount of rot in particular samples, but rather of its prevalence throughout the various fields observed. As the expert testimony showed, under this method variations in result as among the different fields observed would be normal; the experts were looking for the number of fields showing mold filaments according to their prescribed standards, not the amount of mold in each—a point the district judge seems to have overlooked in stressing what he thought to be unusual discrepancy revealed as between the government
There was a total of 40 mold counts made on 30 cans of tomato paste from the seized shipment. Of those, 24 exceeded the administrative tolerance, as did the average of all mold counts, namely, 43.6%. The mold counts made by 4 government analysts on 18 different cans varied from a low of 8 to a high of 70, with the last average by Analyst Eisenberg being 56. Claimant‘s own expert found an average mold count, as he testified, of 39.7%; on a post-seizure sample of 10 cans he found that one-half of his counts exceeded the administrative tolerance. Further breakdown of the figures in the record is set forth in the footnote.6 The claimant‘s expert himself answered “Yes” to the question: “On the basis of your counts would you draw the conclusion that there was rotten tissue in this tomato paste?” As indicated in the note, the sampling seems fair and to a considerable extent controlled by the claimant, particularly as to the final tests.
It is therefore clear that there was decomposed matter in all the samples, more substantially evidenced in some than in others, but enough to bring the average well over the administrative tolerance. We think violation of the statute therefore demonstrated, and the goods subject to forfeiture. If we accept the government‘s allowance of 40 per cent before prosecution is had, nevertheless the showing here is adequate to bring a very sub-
Under either view, therefore, we think the shipment subject to condemnation. The order is accordingly reversed and the action remanded for the entry of a decree of condemnation.
FRANK, Circuit Judge (dissenting).
Fantis, the owner of this tomato paste, imported it under a contract which provided that he need not pay for it unless it was released from bond on its approval by the Food and Drug Administrator. On April 9, 1951, the Administrator (through a subordinate) having inspected it, gave Fantis the necessary approval. As a consequence, Fantis paid some $9,000 to the seller. Some three months later, the Administrator re-inspected the shipment, declared it in violation of the Act, seized it and, by this proceeding, sought a court order confiscating it. The Administrator having won in this court under my colleagues’ decision, Fantis will lose his property without any compensation—i.e., he will be out the $9,000.
1. The pertinent section of the
(a) The phrase “decomposed matter,” as applied here, means simply and solely “mold.”
(b) The government admits that no one looking at this tomato paste, or tasting or smelling it, would have any knowledge that it contained any mold. The government‘s experts testified, and the government‘s brief states, that the presence of such mold in tomato paste can be detected only through a microscope and by an expert.
(c) The evidence here discloses that virtually all tomato paste contains some mold.
(d) So the use of the word “rotten” (or of any other pejorative) indicates nothing in any way unpleasant or harmful but merely that the tomato paste contains some utterly harmless mold.
(e) As several kinds of cheese which thousands of our citizens consider delectable—e.g., Roquefort or Gorgonzola—contain very substantial quantities of
(f) No one (including the government, except my colleagues in their opinion here) has ever so much as intimated that the presence of mold in a can indicates a possible future deterioration of the contents of the can which may later render the contents injurious to health. Indeed, in this very case a government expert witness testified that, in a properly made can, the amount of mold present in the can when it is sealed, will never increase; and there is no proof that the cans here were not properly made and sealed.1
(g) This suit is based upon alleged adulteration, under
2. My colleagues construe “decomposed” as an absolute, i.e., unqualified by the subsequent words “or otherwise unfit for food.” In an Appendix to this opinion, I have stated my reasons for construing “decomposed” as meaning so decomposed as to be “unfit for food” but not so decomposed as to be deleterious to health. The record discloses not even a soupcon of evidence that this tomato paste, when seized, was unfit for food. Consequently, under my interpretation of
3. However, under either interpretation, the Administrator has an amazingly wide and unregulated discretion (since, as my colleagues say, even “unfit for food” has a most latitudinarian meaning). So, according to my colleagues’ view, if the Administrator, without any previous publication of a standard, chose to seize tomato paste containing but 5% of mold, the courts would have to enforce the seizure and confiscate the paste. This means the absence of any impediment to unequal treatment in the administration of the statute.
My colleagues, to be sure, point to
4. I am not now prepared to say that such statutory delegation, although (as my colleagues say) coupled with no recognizable standard whatever, is unconstitutional. But our responsibility goes beyond adjudication of the validity of the legislative grant. It includes the duty of scrutinizing the methods employed in the processes of administering the granted power. Unless this power is in some way constrained (as I believe it has been by the
The fact that the Administrator had in no such case previously announced a standard binding upon him would not (except as I shall note in a moment) invalidate his action. I stress this fact because, in answer to Fantis’ complaint that he relied on the Administrator‘s initial approval, the government says that he had no business thus to rely but, before expending his $9,000, should have obtained the advice of an expert he might have hired. But, absent knowledge of some fixed standard, no expert could have given such advice.
The Administrator did not comply with this provision. Indeed, one of the government experts testified in this case that the Administrator, since the seizure here, has changed his standard;7 but no standard whatever, relative to mold in tomato paste, has ever been published in the Federal Register.8
It may be noted that, in the trial court, Fantis’ counsel stated that “it has been recognized by President Truman that various departments in our Government, in order to overcome the necessity of increasing tariff laws, or increasing tariff rates and duty rates, have found other ways of discouraging importers from importing merchandise, and it is acknowledged, and a committee was appointed by President Truman, and there have been articles on this in the New York Times, and it is a well known by-word in the trade that various departments of the Government find methods other than duty to restrict importers from importing certain types of merchandise.” Fantis offered no proof to support such a conclusion. But, with utterly uncontrolled discretion, restricted by no announced and binding standards, such administrative behavior may occur. Compliance with the
Such a possibility should cause courts like ours, when they can, to insist that administrative officers exercise wide discretionary powers in accordance with any statutory provision which requires that they commit themselves to properly publicized standards. In that way, to some extent at least, can there be reconciled unavoidable delegation of extensive discretion to administrators with needed protection of the individual.
Even assuming, then, the correctness of my colleagues’ interpretation of the
Appendix To Judge FRANK‘S Dissenting Opinion
1. I think the following history of
(a) Section 7 of the original
(b) My colleagues cite one Court of Appeals decision and five District Court cases which interpreted that provision of the
(c) So the judicial interpretation stood when the
(d) So read, the 1938 amendment serves to make clear that the Ninth Circuit‘s interpretation of old Section 7 was correct. This explains what the Senate Report, quoted by my colleagues, meant in stating the provision of Subsection (a)(3)—of what became Sec. 342—was “essentially the same” as that in the
(e) My colleagues mention the subsequent Committee Report which declared that “* * * the measure * * * amplifies and strengthens the provisions to safeguard the public health.” The “measure,” of course, was the entire new Act. Without doubt, that Act did amplify and strengthen the former health-safeguarding provisions. (In the footnote, I point to a few samples of that character.12) So that the Report cannot reasonably be interpreted to justify a conclusion that
2. My colleagues seem to suggest that
But note this: The meat inspection provisions—Sections 71 to 91—constituted the
3. My colleagues suggest that Congress, in
4. My colleagues refer to the fact that the recently enacted
SMITH v. FORD GUM & MACHINE CO., Inc., et al.
No. 14692
United States Court of Appeals Fifth Circuit.
May 6, 1954.
Notes
| Government‘s Counts | ||||
|---|---|---|---|---|
| Seizure Sample | Post Seizure Sample | Post Seizure Sample | ||
| Import Sample | Analyst Sly | Analyst Krinitz | Analyst Eisenberg | |
| 8 | 42 | 42 | 60 | |
| 38 | 33 | 46 | 60 | |
| 38 | 61 | 57 | 56 | |
| 30 | 40 | 64 | ||
| 34 | 38 | 58 | ||
| 48 | 70 | |||
| 55 | 54 | |||
| 27 | 44 | |||
| 61 | 60 | |||
| 32 | 44 | |||
| Av. 29.6% | Av. 45.3% | Av. 43.2% | Av. 56% | |
| Claimant‘s Counts | |
|---|---|
| Post Seizure Sample—Analyst Chiano | Import Sample |
| 42 42 | 38 |
| 50 37 | 33 |
| 49 24 | |
| 46 37 | |
| 38 32 | |
| Av. 39.7% | |