Philadelphia Pickling Co. v. United States

• Citation: 202 F. 150
• Decision Date: 31 January 1913
• Docket Number: 1,704.
• Parties: PHILADELPHIA PICKLING CO. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

202 F. 150

PHILADELPHIA PICKLING CO. v. UNITED STATES.

No. 1,704.

United States Court of Appeals, Third Circuit.

January 31, 1913

Wilson & Carr, of Camden, N.J., for plaintiff in error.

John B Vreeland, of Morristown, N.J., and Walter H. Bacon, of Bridgeton, N.J., for the United States.

Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.

J. B McPHERSON, Circuit Judge.

The Philadelphia Pickling Company was convicted under section 2 of the Food and Drugs Act of 1906, the indictment charging a shipment of adulterated tomato paste from the company's place of business in New Jersey to its place of business in Pennsylvania. advisable to consider in advance the general question: Does the act apply where the owner has shipped to himself for some other business purpose than sale? The trial judge directed the verdict, but no complaint is made of this, if his construction of the act was correct.

The statute imposes penalties in three sections, but we are concerned only with sections 2 and 10. The latter section provides for condemnation, and permits an offending article to be seized, if it--

'is being transported from one state, territory, district, or insular possession to another for sale; or having been transported remains unloaded, unsold, or in original unbroken packages; or if it be sold or offered for sale in the District of Columbia, or the territories, or insular possessions of the United States; or if it be imported from a foreign country for sale; or if it is intended for export to a foreign country.'

This section speaks repeatedly of sale, and the courts have had several occasions to consider what Congress meant by the language quoted. In United States v. 65 Casks (D.C.) 170 F 449, it appeared that the casks in question (which were insufficiently marked) contained a liquid that had been manufactured and shipped by the owner's agent in Michigan to the owner himself in West Virginia for the primary purpose of being bottled and properly labeled there. It was not to be sold until this had been done, and the District Court held inter alia (pages 445, 446) that Congress--

'did not * * * have power to restrict one from manufacturing in one state such product and removing it from that state to another for the purpose of personal use and not sale, or for use in connection with the manufacture of other articles to be legally branded when so manufactured.'

The Court of Appeals affirmed the judgment in a brief opinion (175 F. 1022, 99 C.C.A. 667), which is silent concerning the power of Congress, and merely gives the following reason for affirmance:

'No attempt to avoid the law, either directly, indirectly, or by subterfuge, has been shown; it appearing that the manufacturer had simply transferred from one point to another the product he was manufacturing for the purpose of completing the same for the market. Under the circumstances disclosed in this case, having in mind the object of the Congress in enacting the law involved, we do not think the liquid extract proceeded against should be forfeited. Reaching this conclusion, we do not find it necessary to consider other questions discussed by counsel and referred to in the opinion of the court below.'

In United States v. 46 Packages (D.C.) 183 F. 642, it was held that a libel in rem under section 10 was defective, because it failed to aver that the articles seized were transported 'for sale.' The foregoing cases are referred to in Hipolite Egg Co. v. United States, 220 U.S. 45, 31 Sup.Ct. 364, 55 L.Ed. 364, and although they are not definitely disapproved they are certainly not accepted as correct. At the best, they are noticed with a word or two of comment, and of course they must yield if they clash with the decision or the opinion of the Supreme Court. One of the points decided in the Hipolite Case is that section 10 permits the condemnation of adulterated food, although it has not been transported for sale directly, but is intended solely for use as raw material in the manufacture of another product. This is clear, for the court on page 52 of 220 U.S., on page 365 of 31 S.Ct. (55 L.Ed. 364), states the first contention of the Egg Company to be that:

'Section 10 of the Food and Drugs Act does not apply to an article of food which has not been shipped for sale, but which has been shipped solely for use as raw material in the manufacture of some other product.'

And this contention is declared (page 55 of 220 U.S., on page 366 of 31 S.Ct. (55 L.Ed. 364)) to be 'untenable.'

But the reasoning that supports this declaration goes farther, we think, than the precise point decided. We may perhaps venture to give an outline of the argument: Congress has taken away from adulterated food the right to be transported in interstate commerce, clearly separate objects (220 U.S. 54, 31 Sup.Ct. 364, 55 L.Ed. 364): First, to keep adulterated articles completely out of the channels of interstate commerce; and, second, if they do enter such channels, to sanction their condemnation while being transported, or even after they have reached their destination, as long as they remain unloaded, unsold, or in original unbroken packages. These objects of the act are not changed or qualified by the purpose of the owner. He may, or may not, intend to sell. If he so intend, perhaps he may also intend that the articles shall first undergo a further process of manufacture; but, even if the latter intention be present, he would still be transporting for sale. Therefore, even if the 'condition' (contention?) be accepted that section 10 does not allow condemnation unless such articles are transported for sale, nevertheless the facts of the case then being considered showed that a 'sale' was intended. Not directly, it is true, but only one step removed; for the eggs were intended to be used in making cakes for the market, and were therefore to be sold as a part of the cake. The court points out that all articles, compound or single, not intended for consumption by the producer, are designed for sale, and because they are so designed it is the concern of the law to have them pure.

One of the Egg Company's arguments-- that a producer in one state is not interested in an article shipped from another state, if such article be not intended for sale or consumption until it is manufactured into something else--is said to be 'peculiar.' The court declares that both the producer and the consumer are interested in having an article pure, no matter whence it may come, and that the law seeks to protect such interest both by the personal penalties of section 2 and by the seizure and condemnation under section 10.

This is in outline the court's reply to the Egg Company's first position; but we think the attitude of that tribunal appears even more clearly in the discussion of the company's second position, which was:

'That at the time of the seizure the eggs had passed into the general mass of property in the state, and out of the field

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