Cardiff v. United States, 12945.
| Decision Date | 05 May 1952 |
| Docket Number | No. 12945.,12945. |
| Citation | 194 F.2d 686 |
| Parties | CARDIFF v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Lichty, Portland, Or., for appellant.
Harvey Erickson, U. S. Atty., Spokane, Wash. (Arthur A. Dickerman, Atty., U. S. Food and Drug Administration, Federal Security Agency, Los Angeles, Cal., of counsel), for appellee.
Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges.
This is an appeal from a judgment convicting Cardiff of violating Section 331(f) of 21 U.S.C.A. by his refusal to permit entry and inspection of the premises of the Washington Dehydrated Food Company of which Cardiff was manager.
The stipulated facts are as follows:
That the Washington Dehydrated Food Company, a corporation, is a processor of food, manufactured, packed and held for introduction into interstate commerce; that the appellant, Ira D. Cardiff, is the President of said corporation and was the operator and custodian of the factory of the Washington Dehydrated Food Company, and that as an individual he is responsible for the acts of the corporation; that on March 31, 1950, at Yakima, in the Southern Division of the Eastern District of Washington, Inspectors R. C. White and Horace A. Allen, agents of the Federal Security Agency, at a reasonable time did request permission to enter and inspect the factory, which request was refused by the appellant; that the Washington Dehydrated Food Company was at that time engaged in the preparation of food products for introduction and shipment into the channels of interstate commerce.
Cardiff contends that the district court has misconstrued the two applicable sections of the Food and Drug Act, 21 U.S. C.A. §§ 331(f) and 374. Section 331, for the violation of which the punishment is provided in Section 333, states in subdivision (f): "The following acts and the causing thereof are hereby prohibited: * * * (f) The refusal to permit entry or inspection as authorized by section 374."
The authorization in Section 374 is for entries at reasonable times (plural) and inspections also at such times. Such authorization is obtained only from a permission by the operator or custodian of the factory given pursuant to the request of the Food and Drug Administrator. Section 374 provides:
Section 331(f) and Section 333 constitute penal legislation making the first offense a misdemeanor and a second offense a felony.1 Obviously these statutes will not have one interpretation where the offense charged is a misdemeanor and another one where the charge is a felony. Here there are none of the gossamer-like refinements of interpretations referred to in Pasadena Research Laboratories v. United States, 9 Cir., 169 F.2d 375, 379. The statutes must be construed as creating a felony for their violation. Hence in construing this penal legislation, it is elemental that if it be subject to two rational interpretations, we must accept that favorable to the accused. We think that Cardiff in refusing to grant the permission for successive inspections did not violate the statute so construed.
The permission which may be authorized by Section 374 is for repeated inspections at the "reasonable times" for which the section provides. Obviously the inspector is not required to obtain permission for each inspection. It was agreed at the hearing that Cardiff's plant is engaged in processing apples into boxes for shipping in carload lots into interstate commerce and that the apples are the product of different orchards. Most orchardists use a spray on the growing apples to resist insect infestation or other deterioration. This spray contains chemicals remaining on the apples which from certain orchards is in sufficient quantity to be deleterious to the health of the consumer, while from other orchards there is no spraying or the remaining spray is not sufficient to be injurious. The apples with the excessive spray require a costly treatment to be made safely edible.
Assume Cardiff, who has "authorized inspection by section 374," finds that the apples from so many orchards require this costly treatment that his season's operation will be at a loss and he therefore refuses to permit any more of the inspections, which he had authorized under 374. So doing he would commit a misdemeanor for the first refusal and upon final conviction thereof, a second refusal is a felony.
We do not agree with the government's construction of the two sections that while under 374 the inspector is to make entries and inspection only after requesting and obtaining permission of the owner, operator, or custodian, section 331 (f) makes it a crime if the inspector's request is refused. That is to say, Congress by section 374 gives the operator the right to refuse inspection and section 331(f) warns him that if he exercises the right so given him he is liable to imprisonment. It is true that "the Lord giveth and the Lord taketh away" in a manner seemingly unjust to the mind of man, but here we are considering an act of Congress.
Such a roundabout and unreasonable construction makes an absurdity of the requirement of the inspector of "obtaining permission." It would make nugatory instead of giving effect to the words, "after first making request and obtaining permission",...
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Myers v. United States
...or both such imprisonment and fine." Appellants contend that a decision by the Court of Appeals for the Ninth Circuit in Cardiff v. United States, 194 F.2d 686, aff'd 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200, has in effect held that this statute makes a first offense a felony. A reading of ......
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United States v. Cardiff
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