United States v. 935 CASES MORE OR LESS, ETC.

• Decision Date: 22 June 1943
• Docket Number: No. 9514.,9514.
• Citation: 136 F.2d 523
• Parties: UNITED STATES v. 935 CASES MORE OR LESS, EACH CONTAINING 6 NO. 10 CANS TOMATO PUREE.
• Court: U.S. Court of Appeals — Sixth Circuit

136 F.2d 523 (1943)

UNITED STATES

v.

935 CASES MORE OR LESS, EACH CONTAINING 6 NO. 10 CANS TOMATO PUREE.

No. 9514.

Circuit Court of Appeals, Sixth Circuit.

June 22, 1943.

F. B. Kavanagh, of Cleveland, Ohio, (Don C. Miller, of Cleveland, Ohio, on the brief), for appellant.

Edwin H. Chaney, of Cleveland, Ohio (Squire, Sanders & Dempsey, of Cleveland, Ohio, and W. C. Bachelder and Bachelder & Bachelder, all of Indianapolis, Ind., on the brief), for appellee.

Before HAMILTON, MARTIN, and McALLISTER, Circuit Judges.

MARTIN, Circuit Judge.

The United States Attorney for the Northern District of Ohio filed, in behalf of the United States, a libel in rem against a quantity of tomato puree shipped by appellee, Ladoga Canning Company, in interstate commerce from Lebanon, Indiana, to Cleveland, Ohio. The complaint charged that, under the Federal Food, Drug, and Cosmetic Act, the food was subject to seizure and confiscation pursuant to U.S.C.A., Title 21, Section 334, as adulterated food within the meaning of U.S.C.A., Title 21, Section 342(a) (3).

The appellee, averring its sole ownership of the goods, appeared specially and moved to quash the writ of attachment and monition and the attachment and seizure of the goods; and, in the same motion, prayed for an order for the return of the goods to appellee upon the allegation that the issuance of the writ and the seizure of the goods violated the Fourth Amendment to the Constitution of the United States, "in that the warrant for the seizure issued and in that the seizure was made without a showing of probable cause supported by oath or affirmation, particularly describing the place to be searched and the things to be seized."

The District Court entered an order sustaining the motion, directing that the goods be returned to the owner, and dismissing the complaint. On the following day, the United States Attorney filed notice of appeal to this court. Six days later, the District Court entered an order directing that, pending the perfection of the appeal, "the operation and enforcement of the judgment entered be, and the same is ordered stayed, insofar as the return of the goods is concerned." After another six-day interim, the appellee moved for a modification of the latter order by striking therefrom the provision concerning the stay of the return of its goods. The point was made that the order of the Court quashing the warrant and directing the return of the goods to the owner is "a separate matter," is an interlocutory order and, therefore, not appealable. See Wise v. Mills, 220 U. S. 549, 31 S.Ct. 597, 55 L.Ed. 579. The motion stated further that "the continued holding of the goods is subject to the same objection as the original seizure; namely, that it is contrary to the constitutional provisions against unwarranted searches and seizures." On March 30, 1943, the District Court entered an order denying the motion of appellee for modification of the Court's order "staying proceedings."

On April 13, 1943, while the record in the cause was being printed, appellee filed in this court a motion, with an accompanying brief, for dissolution of the order of March 17, 1943, filed in the District Court, insofar as that order "stays the enforcement of the part of the order of March 10, 1943, which directed that the goods theretofore seized by the Marshal in violation of the Fourth Amendment of the Constitution of the United States be released from seizure and delivered to appellee."

The printed record was subsequently filed on April 23, 1943, and hearing of the motion ensued on June 1, 1943. Upon this hearing, the attorneys for the parties argued the case upon the merits of the appeal, as well as upon the motion, and jointly besought this court not only to pass upon the motion to dissolve the District Court's stay order of March 17, 1943, but to decide the issue as to whether the District Court erred in dismissing the libel on information filed by the United States Attorney.

The important issue for determination is whether a libel in rem, prosecuted in behalf of the United States pursuant to the Federal Food, Drug, and Cosmetic Act of June 25, 1938, Ch. 675, 21 U.S.C.A. § 301 et seq., must be verified. The Act provides, inter alia:

"Any article of food, drug, device, or cosmetic that is adulterated or misbranded when introduced into or while in interstate commerce, or which may not under the provisions of section 344 or 355, be introduced into interstate commerce shall be liable to be proceeded against while in interstate commerce, or at any time thereafter, on libel of information and condemned in any district court of the United States within the jurisdiction of which the article is found * * *." U.S.C.A., Title 21, Section 334(a).

"The article shall be liable to seizure by process pursuant to the libel, and the procedure in cases under this section shall conform, as nearly as may be, to the procedure in admiralty; except that on demand of either party any issue of fact joined in any such case shall be tried by jury." U.S.C. A., Title 21, Sec. 334(b).

Recognition that proceedings under the provisions of Section 10 of the Pure Food Act of June 30, 1906, 34 Stat. 768, 21 U.S. C.A. § 14, where this procedure was originally prescribed by Congress, shall be by libel in rem and shall conform as nearly as may be to proceedings in admiralty was given by the Supreme Court in Four Hundred and Forty-Three Cans of Frozen Egg Product v. United States, 226 U.S. 172, 178, 182, 183, 33 S.Ct. 50, 57 L.Ed. 174. It was commented there that the provision of the Act giving to either party the right to demand a jury trial of issues of fact was inserted with a view to removing any question as to the constitutionality of the Act, and that it was not intended to liken the proceedings to those in admiralty beyond seizure of the property by process in rem.

Under the quoted paragraphs of the Act of Congress, the United States is authorized to seize adulterated or misbranded articles of food before proof of justification for seizure; but adequate provision is made for a hearing before condemnation of the goods seized. In admiralty, procedure by libel in rem is akin to the civil writ of attachment, and the procedure followed in the instant case conformed to admiralty practice. Admiralty Rule 21, 28 U.S.C.A. following section 723, controls the libel procedure under the Federal Food, Drug, and Cosmetic Act. This rule does not specify that verification of the information or libel of information is required. Admiralty Rule 22, however, directs that all libels in instance causes, civil or maritime, shall be on oath or solemn affirmation. This difference in the two admiralty rules leads to the inference that the omission of the requirement of oath and affirmation to a libel filed under the Federal Food, Drug, and Cosmetic Act was deliberate.

The rules in admiralty effective in the United States District Court for the Northern District of Ohio expressly except the United States from the requirement of verification of pleadings. Admiralty Rule 1 of that district, which is the forum in the instant case, prescribes that "pleadings and answers to interrogatories, except on behalf of the United States, shall be verified." Similar local admiralty rules, excepting the United States from the requirement of verification placed on other libellants, have been adopted in the United States District Courts in many districts, among others the Western District of New York, the Eastern District of Pennsylvania, the Eastern District of South Carolina, the Southern District of Georgia, the Eastern District of Louisiana, the Western District of Kentucky, the Southern and the Northern Districts of California, the District Court of New Jersey, the District Court of Minnesota, the District Court of Hawaii, and the District Court of Puerto Rico. See Benedict on Admiralty, 6th Ed., Vol. 5. This authoritative textbook asserts that "all libels,...