United States v. Rohe & Bro.

218 F. 182 | S.D.N.Y. | 1914

RUDKIN, District Judge

(orally). I have examined tbe demurrer in this case and am of opinion that it is not well taken. I have very grave doubt whether the first count of the indictment charges a crime under the Meat Inspection Act (34 Stat. 674); but, inasmuch as it was conceded on the argument that it does charge a crime under the Food and Drugs Act, the demurrer is not well taken.

[1,2] Personally, I do not think the first count charges a crime under the Meat Inspection Act. That act covers two classes of cases, the one where the establishments are inspected, and the other where they are not. Where the establishment is inspected, and subject to inspection, and the inspection laws are fully complied with, I do not think it was ever the intention of Congress to make a man a criminal, even though he had fully complied with the requirements of the Department of Agriculture. True, the statute imposes a penalty generally for shipping meat unfit for human food. But this is a proviso to that part of the statute exempting certain establishments or certain persons from the operation of the act, and is followed by another proviso limited to the same class.

I realize that a proviso is not necessarily restricted by other parts of the act, and that it may be of general application, but in the connection in which the proviso occurs here, and in view' of the general purpose of the act, I am clearly of the opinion that it only relates to retailers and farmers whose products are not subject to inspection under the law. If the act had used the word “knowingly,” there might be some reason for a different construction; but the penalty is absolute, and the person must know only that the meat is intended for human food, otherwise he ships it at his peril; and to say that a person whose products have been at least thrice inspected by government authority should ship those products at his peril, especially where the products .were' inspected immediately before shipment, would be a harsh application of the statute, which I do not think Congress intended, or the courts will enforce.

[3] I do not think that the other counts of the indictment charge a violation of regulations at all. The statute provides that it shall be unlawful to ship unless inspected as required by the act and the regur-lotions of the Department of Agriculture. The regulation of the Department of Agriculture is but a condition on which the act operates, and I think it is clearly within the power of the Secretary of Agriculture to require this reinspection of the meat immediately before shipment.

[4] It was argued that the mode of inspection was left to the Bureau of Animal Industry, or some other board, and that that bureau has prescribed no rules. I must take judicial notice of the regulations of the Secretary of Agriculture, but cannot take judicial notice of regulations made by the Bureau of Animal Industry. In any event, this goes merely to the manner of inspection, and not «to the fact of inspection.

[5] The same is true of the other count. The statute makes it an offense to counterfeit any certificate authorized or required by the act or by the regulations pi the Department of Agriculture.

The demurrer will be overruled as to all three counts.