United States v. Twenty Cases of Grape Juice, No. 261

No. 261 | 2d Cir. | May 8, 1911

NOYES, Circuit Judge

(after stating the facts as_ above). The different sections of the food and drugs act while relating to different subjects are consistent and, in many respects, interdependent. The second section — the relevant portions of which have been shown — • provides that any person violating the provisions of the act shall be guilty of a misdemeanor and subject to fine and imprisonment._ The tenth section provides that articles sold or transported in violation of the provisions of the act shall be liable to seizure and condemnation. Both sections relate to penalties for violations of the act. The penalty under one section is a fine and imprisonment. The penalty under the other section is the forfeiture of the misbranded or adulterated goods. Both sections are penal in their nature. Punishment is as well inflicted by the forfeiture and loss of property as by a fine. The two sections taken together (with the first section which relates to manufacture in territories) cover the subject of the punishment imposed for breaches of the provisions of the statute.

Section S of the act must also be read in connection with sections 2 and 10. The latter, as we have seen, relate to penalties. The former provides for the enforcement of such penalties. It makes it the duty of the proper district attorney upon the presentation of “satisfactory evidence” of a violation of the act by any state health or food officer to cause appropriate proceedings to be instituted and prosecuted. It also provides that the district attorney shall institute such proceedings in case the Secretary of Agriculture shall report to him any violations of the act. But in this case it is not required that evidence of a violation of the act shall be presented. The report of the Secretary is in itself made the basis of proceedings.

Now, if section 5 stood apart from other provisions of the statute it would contravene a practice so long and well established as almost to amount to a fundamental right, viz.: That proceedings for the punishment of the citizen shall be instituted only after investigation by some public official. To compel a district attorney to institute proceedings upon the report of another official without requiring the latter to investigate before making such report would be most extraordinary. And this act does not so require. It is made the duty of the district attorney to act upon the report of the Secretary of Agriculture without *he presentation oí evidence required in other cases only because section 4 of the act throws the duty of making investigation upon the Secretary before he makes his report. The preliminary ex-animation in such case is made by the Secretary instead of- the district attorney. - ■ The sections are interdependent and must lie read together, and when so read they are found to present an orderly and a ' just procedure. As then the “report” of the Secretary of Agriculture referred to in section 5 is the certificate of facts which he is required to make under section 4, it ne.cessarily follows that the steps required to be- taken preliminary to certifying the facts — including notice and hearing — must be taken before such a report as the law requires can be made. And it also follows, upon principles already considered, that when such report is at all a prerequisite to proceedings under section 5, it is as necessary to proceedings for the enforcement of penalties by way of forfeiture as by way of fine or imprisonment.

Looking at the question involved from a slightly different point •of view the same conclusion-must be reached. Section 4 of the act —as’we have seen — provides for the examination of articles by the ■Bureau of Chemistry of the'Department of Agid culture for the pur■pose of determining whether they are adulterated or misbranded. If they are found to be adulterated or misbranded notice and an opportunity to be- heard must be given to the party from whom they were obtained. If it then appears that the act has been violated the Secretary of Agriculture must certify the facts to the proper district attorney. This is the only report of the violation of the act which the statute requires the Secretary to make. When made it affords, .without further investigation, the basis for the institution by the district attorney of appropriate proceedings for the enforcement of the penalties prescribed in the act. But it is just as necessary that the report which is the basis for the condemnation proceedings should be made according to law as it is that such report should be a lawful one when it affords the basis. for a criminal prosecution.

' ’ It’must be distinctly borne in mind that the requirement of a preliminary investigation including notice and hearing applies only when ’the district attorney acts upon the report of the Secretary of Agriculture. It is not required when he acts upon evidence furnished by any state health officer and undoubtedly would not be. required in proceedings taken at his own initiative.² Apparently the statute does ■not contemplate reports by "the Secretary except when due examinations have been made, and leaves the ordinary cases requiring immediate prosecution or seizure to the action of local authorities. We .perceive-no ground whatever for the contention.of the government ■that if its position in this case-be not sustained section 10 of the-act may as well be treated as a dead letter.

We are aware that decisions have been rendered in several District Courts contrary to the conclusions reached in this opinion. It is sufficient to say that the reasoning of those cases does not commend itself to our approval and that we are unable to follow them.

The decree of the District Court is affirmed.

2 It is not necessary to be determined in this case whether section 5 of the-act in any way limits district attorneys in tbeir right as the prosecuting officers of the United States to institute criminal proceedings or proceedings in rem when satisfied by satisfactory evidence obtained from other persons than health officers that the provisions of the act have been violated; and nothing in this opinion is to be considered as holding that the proceedings in ’ this ease could not have be.en taken, by the district attorney as the result of hi? own investigation. Our opinion is based wholly upon the stipulation that the district attorney acted altogether in pursuance of the report of the Secretary of. Agriculture.