EK Hardison Seed Co. v. Jones, 9893.

• Decision Date: 14 May 1945
• Docket Number: No. 9893.,9893.
• Citation: 149 F.2d 252
• Parties: E. K. HARDISON SEED CO. v. JONES, War Food Adm'r.
• Court: U.S. Court of Appeals — Sixth Circuit

149 F.2d 252 (1945)

E. K. HARDISON SEED CO. v. JONES, War Food Adm'r.

No. 9893.

Circuit Court of Appeals, Sixth Circuit.

May 14, 1945.

William Waller, of Nashville, Tenn. (Armistead, Waller, Davis & Lansden, of Nashville, Tenn., on the brief), for petitioner.

John T. Grigsby, of Washington, D. C. (Tom C. Clark, of Washington, D. C., Byron B. Harlan, of Cincinnati, Ohio, and Vincent A. Kleinfeld and John T. Grigsby, both of Washington, D. C., on the brief), for respondent.

Before HICKS, HAMILTON, and MARTIN, Circuit Judges.

HAMILTON, Circuit Judge.

Petitioner is a partnership doing business under the firm name, E. K. Hardison Seed Company, and during the period of time involved here was engaged in the business of selling agricultural seeds and shipping them in interstate commerce.

In the years 1941 and 1942, petitioner made numerous shipments in interstate commerce of seeds in bags with labels on each showing the noxious-weed content and the germination percentage of the seed.

In a proceeding under the Federal Seed Act of August 9, 1939, 53 Stat. 1275, 7 U.S.C.A. § 1551 et seq., and the rules and regulations promulgated pursuant thereto (7 C.F.R. 201.1 et seq.), the War Food Administrator found that petitioner had violated 7 U.S.C. § 1571 by shipping in interstate commerce bags of seeds falsely labeled. Predicated on fact findings and pursuant to 7 U.S.C.A. § 1599, the Administrator issued an order directing petitioner to cease and desist from shipping or delivering for transportation to another State, agricultural seeds to which were attached labels containing false statements or labels not showing the presence of any seeds considered seeds of a noxious weed by the law of the State to which the seeds were shipped, if such noxious-weed seeds were present.

Petitioner seeks a review of the Administrator's order under 7 U.S.C.A. § 1600, praying that it be set aside on the ground that the Administrator's conclusions, order and relief lack necessary support in the evidence and that the order lacks statutory authority.

Under 7 U.S.C.A. § 1571, the channels of interstate commerce are closed to all agricultural seeds or mixtures thereof for seeding purposes, unless each container bears a label giving information in accordance with rules and regulations promulgated by the statutory administrator showing (a) the percentage of weight of weed seeds including noxious-weed seeds; (b) the kinds of noxious-weed seeds and the rate of occurrence of each, which rate shall be expressed in accordance with and shall not exceed the rate allowed for shipment, movement or sale of such noxious-weed seeds by the law and regulations of the State into which the seed is offered for transportation or transported, or in accordance with the rules and regulations of the Secretary of Agriculture determining that weeds, other than those designated by State requirement, are noxious; (c) percentage by weight of inert matter; (d) the percentage of germination exclusive of hard seed and also the percentage of hard seed if present.

The statute authorizes the Administrator to prescribe rules and regulations as to samplings, analyses, tests and examinations of seeds made in connection with the administration of the statute and to prescribe reasonable tolerances as to percentages of germination and rates of occurrences of noxious-weed seeds or other foreign substances, 7 U.S.C.A. §§ 1592, 1593.

The Administrator promulgated regulations prescribing rules for testing and also tolerances. Part 201, Federal Seed Act Regulations (7 F. R. Cumulative Supplement, 1943).

The present order is based on six shipments by petitioner; (a) two shipments to Alabama customers and one shipment to a Georgia customer, of lespedeza seeds, all containing a higher rate of occurrence of dodder seed than shown on the labels affixed to the bags; (b) two shipments to Alabama customers of rye seeds with a lower percentage of germination than shown on the labels affixed to the bags; (c) one shipment to an Alabama customer of wheat seed containing corn cockle seed, a noxious-weed seed under the laws of Alabama, not mentioned on the labels affixed to the bags.

The evidence concerning the lespedeza shipment to Alabama was that of an inspector for the State of Alabama, who testified that he took samples out of each of 80 bags shipped by petitioner to Stegall-Sylvest Seed Company of Montgomery, Alabama, and in turn shipped by the latter to the Alabama Mercantile Company of Birmingham. The samples were taken at the Alabama Mercantile Company by the inspector and consisted of approximately four ounces each out of 125-pound bags, and were forwarded by the inspector to the Seed Analyst of the State of Alabama. In the office of the latter official these samples were commingled and the mass divided into subsamples and analyzed. One of the subsamples contained less weed seed per pound than was shown on the label and another contained more.

The shipment to the Georgia customer was sampled by a field employee of the Food Distribution Administration of the United States on the premises of the Atlanta Seed Company, consignee. The sample contained approximately fifty grams and was afterward placed in a sealed package and sent by mail to the Federal Seed Laboratory at Montgomery, Alabama, where it was labeled. An associate seed technologist in charge of the administration of the Federal Seed Act at the Federal State Seed Laboratory at Montgomery, Alabama, introduced in evidence a copy of the original record kept in his office showing the result of the analysis of the samples sent in by the inspector. The witness had not made the analysis and was unable to testify as to who did. The analyst who made the test did not testify but the report which was made a part of the evidence showed a higher dodder seed content than was on the label.

On November 20, 1941, petitioner shipped 20 bags of rye seed to the Morgan County Exchange, Hartselle, Alabama, with labels on each bag representing that the germination of the seed was 88 percent. On November 24, 1941, a commodity inspector for the Agricultural Department of the State of Alabama removed from ten of these bags, samples aggregating two pounds and mixed these samples and forwarded the mixture to the State Seed Analyst of Alabama, who had the composite sample analyzed in his office between December 1st and 12th, 1941, and there was found a germination of 62 percent.

On September 25, 1942, petitioner shipped to J. T. Whatley, Jr., Dothan, Alabama, 20 bags of rye seed containing labels representing germination of 90 percent.

On October 9, 1942, the Alabama inspector took samples from eight of the 20 bags of rye seed on the premises of J. T. Whatley, Jr., and mailed the composite sample to the State Seed Laboratory under seal. An analysis of this sample in the office of the State Seed Analyst showed a germination of 60 percent.

On October 22, 1942, petitioner shipped to the Talladega County Exchange, Talladega, Alabama, 8 bags of wheat seed containing labels representing that cheat seed was the only noxious-weed seed in the bag. On October 29, 1942, an inspector for the State Department of Agriculture for the State of Alabama took samples from six of these bags and mailed the composite sample to the Seed Control Laboratory at Birmingham, Alabama. An analysis of the composite sample was made in the office of the State Seed Analyst where it was found that each of the bags contained forty-one corn cockle seeds per pound. Corn cockle was defined by Alabama law to be a noxious weed.

Petitioner introduced in evidence the original report of its seed analyst on all of the seeds here in question. At the time of the hearing he was in the Armed Forces of the United States and was not available as a witness.

The practice of petitioner was to sack and stack its seed as they ran from the cleaner and to give a quantity thereof a lot number. Petitioner's analyst took samples out of each bag in a lot and mixed them and analyzed the mixture. One hundred seeds were analyzed for the purpose of determining the germination. One of petitioners' partners testified that petitioners' analyst followed the rules and practices of the Commercial Analysts' Association. The rules and regulations of this association are not in the record. The original labeling on the bags of seed here in question conform to the report of petitioner's analyst.

The statutory regulations define a lot of seed to mean a definite quantity of seed identified by a lot number, every portion of bag of which is uniform within permitted tolerances for the factors which appear in the labeling 7 F. R. Part 201, Sec. 201.1 (v). Section 201.37 authorizes qualified state officials to draw samples, secure information and records pertaining to, and otherwise inspect seed and screenings subject to the Act. Section 201.39 provides that in order to secure a representative sample, equal portions shall be taken from...