A.O. Andersen & Co. v. United States

• Decision Date: 06 November 1922
• Docket Number: 3899.
• Citation: 284 F. 542
• Parties: A. O. ANDERSEN & CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

284 F. 542

A. O. ANDERSEN & CO. v. UNITED STATES.

No. 3899.

United States Court of Appeals, Ninth Circuit.

November 6, 1922

This is a proceeding by libel under the Pure Food and Drugs Act (34 Stat. 768 (Comp. St. Secs. 8717-8728)) for the condemnation of 1,974 cases of canned salmon. The proceeding is based on the following provision of section 7 of the act (Comp. St Sec. 8723): 'That for the purposes of this act an article shall be deemed to be adulterated: * * * In the case of food * * * Sixth. If it consists in whole or in part of a filthy decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter. ' The case was tried before a jury on the demand of the government, as provided in section 10 of the act (Comp. St. Sec. 8726).

It appeared from the testimony on the part of the government that 408 cans were selected at random from 408 of the 1,974 cases on three different occasions, 24 cans in the first lot 192 cans in the second lot, and 192 cans in the third lot. The chemist who made the analysis of the first lot of 24 cans was not available as a witness, and there is no evidence in the record as to their quality or condition; 144 cans of the second lot were first analyzed, and these were found to contain 28 putrid or tainted cans and 18 stale cans. The remaining 48 cans of the second lot were later analyzed and found to contain 8 putrid or tainted cans and 1 stale can. The third lot of 192 cans was also analyzed, and was found to contain 35 putrid or tainted cans and 12 stale cans. A putrid or tainted can is one containing rotten and decayed salmon, whose odor is offensive to the smell. A stale can is one plainly disclosing the beginning of decomposition, but not in so advanced a stage as the putrid or tainted can. It thus appeared that nearly one-fifth of the product analyzed was putrid or tainted, and approximately one-fourth either putrid and tainted or stale. It further appeared that the condition of the salmon was apparent on ordinary inspection when exposed, and that decayed salmon is not injurious to health. The claimant offered no testimony, and upon its motion the court directed the jury to return a verdict in its favor. From the judgment on the verdict the plaintiff sued out the present writ of error.

Thos. P. Revelle, U.S. Atty., and Judson F. Falknor, Asst. U.S. Atty., both of Seattle, Wash.

Otto B. Rupp and Kerr, McCord & Ivey, all of Seattle, Wash., for defendant in error.

Before GILBERT and HUNT, Circuit Judges, and RUDKIN, District Judge.

RUDKIN District Judge (after stating the facts as above).

The court below directed a verdict in favor of the defendant in error upon the ground that the article of food referred to in the statute is the single or individual can of salmon, and not the entire case or lot. If this interpretation of the statute is correct, the government of course failed in its proof, and will of necessity meet the same fate in every other case of this kind, unless it is able to prove that each and every part and parcel of the food product is adulterated within the meaning of the law. Is this a correct interpretation of the statute?

'The ordinary definition of the word 'article' is an extremely comprehensive one. In the primary meaning, as given in the dictionaries, it designates one thing of many, one item of several, a portion of complex whole. The best source, however, to which we should apply to determine the definition of a word used in a statute is the statute itself. ' Junge v. Hedden (C.C.) 37 F. 197; Id., 146 U.S. 233, 13 Sup.Ct. 88, 36 L.Ed. 953.

The meaning of the word 'article' must therefore be gathered from a consideration of the entire act, and we may add in this connection that the rule of strict construction invoked by the defendant in error has little or no application to statutes designed to promote the public health or public safety. Section 1 of the act (Comp. St. Sec. 8717) prohibits the manufacture within any territory or the District of Columbia of any article of food or drugs adulterated or misbranded within the meaning of the act; section 2 (Comp. St. Sec. 8718) prohibits the introduction of any such article into any state or territory or into the District of Columbia from any other state or territory or the District of Columbia, or from any foreign country; section 6 (Comp. St. Sec. 8722) defines adulteration, and section 10 (Comp. St. Sec. 8726) prescribes the procedure...