338 CARTONS, ETC. v. United States

• Decision Date: 24 December 1947
• Docket Number: No. 5629.,5629.
• Citation: 165 F.2d 728
• Parties: 338 CARTONS, MORE OR LESS, OF BUTTER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

165 F.2d 728 (1947)

338 CARTONS, MORE OR LESS, OF BUTTER et al. v. UNITED STATES.

No. 5629.

Circuit Court of Appeals, Fourth Circuit.

December 24, 1947.

W. G. Stathers, of Clarksburg, W. Va. (George Richardson, Jr., of Bluefield, W. Va., on the brief), for appellant.

Vincent A. Kleinfeld, Atty., Dept. of Justice, of Washington, D. C. (T. Vincent Quinn, Asst. Atty. Gen., and Leslie E. Given, U. S. Atty., of Charleston, W. Va., on the brief), for appellee.

Before SOPER and DOBIE, Circuit Judges, and CHESNUT, District Judge.

DOBIE, Circuit Judge.

This appeal is the result of three libel proceedings instituted by the United States (hereinafter called the Government) under the provisions of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 334(a), (hereinafter called the Act) in which the Government sought the seizure and condemnation of three lots of butter owned by the Bowser Sales & Trading Corporation of Sisterville, West Virginia, (hereinafter called the claimant) and shipped in interstate commerce. The proceedings were consolidated and tried before a jury in the District Court of the United States for the Southern District of West Virginia. The jury returned a verdict in favor of the Government on virtually all issues, and the District Court, finding the butter to be adulterated within the meaning, and in violation of, the Act, 21 U.S.C.A. § 342(a) (3), ordered it condemned and forfeited to the United States. The claimant thereupon moved the court "to deliver the condemned article to it, pursuant to Section 334(d), Title 21 U.S.C.A. for the purpose of salvaging or manufacturing same into butter oil so the same will be made to conform to and with the provisions of the Federal Food, Drug, and Cosmetic Act." After hearings were had and evidence taken upon this motion, the lower court overruled it, and this appeal is taken from that denial of the motion.

At the outset, the Government in its brief contends that the order from which the claimant appeals is not a final decision within the meaning of 28 U.S.C. A. § 225 and hence is not reviewable by this Court. This point was not strongly urged upon us in oral argument. We think that the judgment of the District Court is final and appealable. Its decree directed the condemnation and forfeiture of the butter, denied the claimant's request to reprocess the butter in order to make it fit for human consumption, but granted the claimant's motion that the product be released to it for manufacture into soap stock. Certainly this order terminates the litigation between the parties on the merits of the case and fully determines the rights and liabilities of the claimant and the Government with respect to the property in controversy. Nothing remains to be done except to perform certain ministerial tasks prescribed by the court order.

It is to be emphasized that this appeal is not from the decree of condemnation but only from that part of the judgment which denied the claimant permission to salvage the butter by converting it into butter oil fit for human consumption. The pertinent part of the Seizure Section of the Act, 21 U.S.C.A. 334(d), provides: "Any food * * * condemned under this section shall, after entry of the decree, be disposed of by destruction or sale as the court may, in accordance with the provisions of this section, direct * * *: Provided, That after entry of the decree and upon the payment of the costs of such proceedings and the execution of a good and sufficient bond conditioned that such article shall not be sold or disposed of contrary to the provisions of this chapter or the laws of any State or Territory in which sold, the court may by order direct that such article be delivered to the owner thereof to be destroyed or brought into compliance with the provisions of this chapter under the supervision of an officer or employee duly designated by the Administrator, and the expenses of such supervision shall be paid by the person obtaining release of the article under bond."

It, therefore, is clearly within the sound discretion of the trial court whether the reprocessing of a condemned article is to be allowed. United States v. 1322 Cans of Black Raspberry Puree, D.C., 68 F.Supp. 881; United States v. 143 Packages of Nue-Ovo, D.C., 51 F.Supp. 1; United States v. Two Cans of Oil, D.C., 268 F. 866. And, of course, this decision of the trial judge can be reversed by us on appeal only for a manifest abuse of discretion by the trial judge.

From the evidence submitted at the condemnation trial the jury found that the butter in question consisted in part of decomposed substance and in part of filthy substance in substantial enough quantity to be...