Swift & Company v. Wickham

• Decision Date: 10 June 1964
• Parties: SWIFT & COMPANY, Inc. and Armour and Company, Plaintiffs, v. Don J. WICKHAM, Commissioner of Agriculture and Markets of the State of New York, Defendant.
• Court: U.S. District Court — Southern District of New York

230 F. Supp. 398

SWIFT & COMPANY, Inc. and Armour and Company, Plaintiffs, v. Don J. WICKHAM, Commissioner of Agriculture and Markets of the State of New York, Defendant.

United States District Court S. D. New York.

June 10, 1964.

COPYRIGHT MATERIAL OMITTED

William J. Condon, New York City (William J. Colavito, New York City, on brief), for Swift & Co., Inc.

Evans, Orr, Gourlay & Pacelli, New York City, E. Gordon Robbins, Chicago, Ill., for Armour and Co.

Philip Kahaner and Lester Esterman, New York City, Louis J. Lefkowitz, Atty. Gen., for the State of New York.

Before FRIENDLY, Circuit Judge, and CROAKE and WYATT, District Judges.

FRIENDLY, Circuit Judge.

Swift & Co. and Armour & Co. pack frozen stuffed turkeys in Minnesota and Wisconsin. They ship the turkeys into New York for sale to retailers who resell them to consumers. The turkeys are labelled so as to show the total weight of the stuffed bird, as required by the United States Department of Agriculture. The packers have brought this action against the Commissioner of Agriculture and Markets of New York seeking a declaration of their right to sell turkeys in New York under the federally approved label and an injunction against the New York Commissioner's interfering with such sales by enforcing § 193 of New York's Agriculture and Markets Law, McKinney's Consol.Laws, c. 69 and regulations issued thereunder which he construes as requiring a statement of the net weight of the unstuffed turkeys as well as of the stuffed birds — a statement which the plaintiffs contend would not be federally approved or allowed.

The complaint alleged that § 193 of the Agriculture and Markets Law and action threatened by the Commissioner under it violated the plaintiffs' rights under the commerce and supremacy clauses of the Federal Constitution and the due process and equal protection clauses of the Fourteenth Amendment. Plaintiffs requested that a three-judge court be called to hear and determine the case pursuant to 28 U.S.C. § 2281. Believing that the case might be within that section, Judge Croake, to whom the application came, caused such a court to be assembled as provided in 28 U.S.C. § 2284. For reasons that will later appear, we think it best to take what might seem the unorthodox course of discussing the merits before we address ourselves to the puzzling question, which the parties have not disputed, whether the case is appropriate for a three-judge court under § 2281.

Section 193, subd. 3 of New York's Agriculture and Markets Law provides:

"All food and food products offered for sale at retail and not in containers shall be sold or offered for sale by net weight, standard measure or numerical count under such regulations as may be prescribed by the commissioner."

When the action was brought, the relevant regulation, § 221.40, stated:

"Meat, poultry and fish shall be sold or offered for sale as food at retail by net weight only."¹

Neither the statute nor the regulation defines "net weight". The Director of the Bureau of Weights and Measures of the Department testified that he interpreted the regulation, as applied to stuffed turkeys, to require statement of the net weight both of the unstuffed and of the stuffed bird, and that, when asked, he so advised local sealers of weights and measures.

The history of the regulation, promulgated after a hearing by the Commissioner to consider an alternative containing an exception "that stuffed poultry, when plainly labeled as such and with the words `including stuffing' appearing as part of the net weight marking of the combined poultry and stuffing may be sold or offered for sale by the net weight of the combined poultry and stuffing", leaves little doubt that this was an admissible interpretation of the regulation. We are also confident that, in view of the lack of statutory definition of "net weight", the New York courts would hold a regulation having this effect to be within the authority conferred on the Commissioner specifically by § 193, subd. 3 and more generally by § 196-a. See Mounting & Finishing Co. v. McGoldrick, 294 N.Y. 104, 60 N. E.2d 825 (1945). We further hold that the state has taken and has threatened to take action that will prevent the sale of plaintiffs' turkeys unless they comply with the regulation as so interpreted, overruling the state's unpersuasive contention that plaintiffs have been the victims of uncoordinated but uniform acts by a number of local sealers.

Plaintiffs now weigh the turkeys at their packing plants outside New York after stuffing and immediately before freezing. They do not deny they can adjust their operation so as to comply with the New York regulation as interpreted by the Commissioner, although this would allegedly involve a total of three weighings — one before stuffing, one after, and another when the giblets have been added and the completed product is placed in a Cryovac bag. Swift's witness testified that 200 birds can be weighed per hour; Armour weighs 300. Two additional weighings would thus take Armour somewhat less and Swift somewhat more than a half minute per bird.² Since the birds are frozen immediately after the weighing, there would seem to be no difficulty in plaintiffs' making the extra weighings and affixing the added labels only for the approximate quantity intended for shipment to New York; in any event the record contains nothing to show this would not be practicable.

I.

The contention that New York's regulation is rendered invalid by the commerce clause alone is not substantial. The Commissioner showed that the stuffing constitutes a considerable portion of the net weight of the stuffed bird and also that there can be significant variations in the weight of stuffing in birds of the same size, even when the processing is done by such reputable packers as the plaintiffs and a fortiori when it is not. Hence a label showing only the net weight of the stuffed bird may not fully inform the buyer what he is getting. Protection of the public against false weights and measures or misleading statements about them is one of the oldest exercises of governmental regulatory power. "The control of weights and measures appears in the Anglo-Saxon laws, and in legislation during the next thousand years." Plucknett, A Concise History of the Common Law (1956), 448 fn. 2. The barons of the 13th century considered the subject sufficiently important for mention in the 35th Chapter of Magna Carta.³ A weighing house where goods brought into and out of the city of New Amsterdam "subject to the measure either of the Skepel or Weight" must be weighed and measured "by the sworn Weighmaster and Measurer," see O'Callaghan, Laws and Ordinances of New Netherland, 174-175 (1868), was established in 1654; the local New York sealers, of whose activities Swift and Armour complain, can be traced back to the Act of June 19, 1703, Laws of the Colony of New York, 554.

That the framers of the Constitution did not intend that laws of such ancient vintage in New York and other states⁴ must yield to an unexercised national authority in the case of goods coming from outside the state is obvious from the mere statement. But the point is further demonstrated by the provision in Article I, § 10, that "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports and Exports, except what may be absolutely necessary for executing its inspection Laws * * *" — a provision as to which The Federalist thought it enough to say "that the manner in which the restraint is qualified, seems well calculated at once to secure to the States a reasonable discretion in providing for the conveniency of their imports and exports; and to the United States a reasonable check against the abuse of this discretion." The Federalist No. 44. There could hardly be a fitter subject for state inspection than weights, see Patapsco Guano Co. v. Board of Agriculture of North Carolina, 171 U.S. 345, 358, 361, 18 S.Ct. 862, 43 L.Ed. 191 (1898), and the same principle that permits a state to prohibit the sale of articles bearing an improper statement as to weight allows it to insist on statements that it reasonably considers to be proper. It is in no way fatal to a regulation of this sort, which does not operate so as to favor local competitors, that compliance may require out-of-state manufacturers to alter their processes, when this is not unduly burdensome. The Patapsco case and Savage v. Jones, 225 U.S. 501, 32 S.Ct. 715, 56 L.Ed. 1182 (1912), are sufficient authority. The claims under the Fourteenth Amendment are so patently baseless that we mention them only to show they were not overlooked.

II.

In contrast to the lack of merit in plaintiffs' contentions that New York's requirements violate these constitutional provisions, their argument that the Supremacy Clause forbids enforcement of New York's regulation because of the federal Poultry Products Inspection Act of 1957, 21 U.S.C. §§ 451-469, 71 Stat. 441-49, raises most serious issues, to which we now turn.

The Act contains an initial section, 21 U.S.C. § 451, making legislative findings as to the national interest in favor of wholesome poultry products and against unwholesome or adulterated ones, as to the impracticability of inspecting poultry and poultry products that enter into the stream of interstate commerce without also inspecting all poultry and poultry products processed in the same establishment, and as to the importance of protecting "interstate commerce in poultry and poultry products inspected for wholesomeness, from being adversely burdened, obstructed, or affected by uninspected poultry or poultry products" in large metropolitan markets. The second section, 21 U.S.C. § 452, declares it "to be the policy of Congress to provide for the inspection of poultry and poultry products by the inspection service as herein provided to prevent the movement in interstate or foreign commerce or in a designated major consuming...