United States v. 7 BARRELS, ETC.

• Decision Date: 15 March 1944
• Docket Number: No. 8381.,8381.
• Citation: 141 F.2d 767
• Parties: UNITED STATES v. 7 BARRELS, ETC., OF SPRAY DRIED WHOLE EGG. SAME v. MARSHALL KIRBY & CO., Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

141 F.2d 767 (1944)

UNITED STATES v. 7 BARRELS, ETC., OF SPRAY DRIED WHOLE EGG.

SAME v. MARSHALL KIRBY & CO., Inc.

No. 8381.

Circuit Court of Appeals, Seventh Circuit.

March 15, 1944.

B. Howard Caughran and Paul A. Pfister, U. S. Atty., both of Indianapolis, Ind., and Tom C. Clark, Asst. Atty. Gen., and Golden N. Dagger, Sp. Asst. to the Atty. Gen., for appellant.

Arthur L. Israel, of Chicago, Ill., for appellee.

Before SPARKS, MAJOR, and KERNER, Circuit Judges.

SPARKS, Circuit Judge.

The Government appeals from a judgment dismissing its libel for want of jurisdiction. The libel, alleging adulteration, had been filed against one lot of seven barrels of dried eggs which it sought to condemn under the provisions of § 304(a) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 334(a). The claimant by answer asserted ownership of the property and interposed two defenses, first, that the libel failed to state facts indicating that the article seized was introduced into or was in interstate commerce, at the time of the seizure, and second, that the article was not adulterated. The prayer asked for a dismissal of the libel and a return of the libeled goods to the claimant. The issue as to the second count is not before us, and, so far as this record discloses, it was not submitted at the hearing.

It will be observed that the first count of the answer amounts to nothing more than a demurrer to the complaint, or a motion to dismiss it for lack of sufficient facts. However, neither the court nor the parties so considered it. The parties stipulated that the cause be transferred to the Indianapolis Division of the same District for trial and disposition, which was done. Without objection it was assigned for a day certain for hearing oral testimony, if desired by either party, and oral argument upon the first count of the answer, and a jury trial was waived. A stipulation of facts was filed, and both parties introduced other testimony at the trial. The District Court found the facts specially, rendered its conclusions of law thereon, and entered judgment for claimant dismissing the complaint for lack of jurisdiction. From that ruling this appeal is prosecuted. Under these circumstances we shall treat the question of jurisdiction upon the basis of facts found rather than those pleaded.

The statute relied upon to confer jurisdiction provides:

"Any article of food * * * that is adulterated or misbranded when introduced into or while in 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 * * *."

The subject of the libel was part of 150 barrels of spray-dried whole eggs tendered by appellee to the Federal Surplus Commodities Corporation in part performance of a contract between the parties. The contract here involved was in writing, consisting of four documents executed in the order named: (1) a printed announcement by FSCC that under certain named conditions it would receive and consider offers for the sale of spray-dried whole eggs intended for delivery at any stipulated time until December 31, 1942; (2) an offer by appellee to sell and deliver to the FSCC, at appellee's plant in Terre Haute, Indiana, all or any part of 66,690 pounds of spray-dried whole eggs, on the basis of the terms and conditions of the announcement; (3) acceptance by the FSCC of appellee's offer, and (4) appellee's confirmation of the acceptance.

The FSCC announcement consists of more than 21 pages of this printed record. It describes in minute detail the required content, character, and process of production of the eggs and their shipping containers. It required each shipping container to be marked by appellee, before testing the product and its removal from appellee's plant, with the following items of information: Name and type of the product; net weight; FSCC contract number; manufacturer's lot and container numbers; vendor's name and delivery-point address; and the month and year of manufacture. After testing the product, presently referred to, appellee was required to mark each container with the shipping instructions when and as furnished by the FSCC.

Sampling and inspection of the product to be tendered for delivery was required to be performed by the Agricultural Marketing Administration. For these services appellee was required to arrange with the AMA. The inspection and weight certificates were to be issued at the expense of appellee and delivered by it to the FSCC. All requirements of the contract as to marking were complied with by appellee except marking upon the 7 libeled barrels the name and address of the consignee. This was not done because they were rejected by the FSCC and as to them it furnished no legend in that respect. However, other barrels were substituted by appellee for those rejected and they were accepted. Four weeks before this suit was filed, the Public Health Department of Indiana placed an embargo against the movement and control of the seven barrels. That order was in effect when this action was begun, and so far as this record discloses it is still in effect. The libeled product has never been removed from appellee's plant.

Appellant contends that the contract was a transaction in interstate commerce; that the barrels were marked and set aside as the property to be used in fulfillment of the contract, thus being brought within the exclusive dominion of the out-of-state purchaser, and thereby introduced into commerce within the meaning of the statute. It further contends that the subsequent rejection of the eggs did not remove them from the jurisdiction of the Act or divest them of their interstate character.

We are not in accord with these contentions. It is clear that the...