State v. 2147 Pounds of Packing Stock Butter, 6 Div. 741.
| Decision Date | 17 December 1940 |
| Docket Number | 6 Div. 741. |
| Citation | 199 So. 739,29 Ala.App. 607 |
| Parties | STATE v. 2147 POUNDS OF PACKING STOCK BUTTER. |
| Court | Alabama Court of Appeals |
Rehearing Denied Jan. 14, 1941.
Original petition of the State of Alabama, by its Attorney General for mandamus to require J. Russell McElroy, as Judge of the Circuit Court of the Tenth Judicial Circuit, County of Jefferson, to set aside an order made and entered in the cause styled State of Alabama vs. 2147 Lbs. of Packing Stock Butter, wherein the Cloverdale Butter Company was an intervener; and a cross-petition by the intervener to dismiss the proceedings in the trial court.
Writs denied.
Thos. S. Lawson, Atty. Gen., and Chas. L. Rowe Asst. Atty. Gen., for petitioner.
Horace C. Wilkinson, Erle Pettus, and Victor Smith, all of Birmingham, for respondent and intervenor.
Petition by the State, on relation of the Attorney General, for mandamus or other remedial writ to be directed to the Hon. J Russell McElroy, as Judge of the Circuit Court, Tenth Judicial Circuit, commanding the vacation of a certain order (hereafter) entered by said Judge in a cause pending in his Court, wherein the State, through the Department of Agriculture and Industries, is plaintiff and Cloverleaf Butter Company, a corporation, is defendant, by intervention (State v. 2147 Pounds of Packing Stock Butter, Case No. 104634, Jefferson Circuit Court).
The Cloverleaf Butter Company (defendant), with its principal plant and place of business in Birmingham, Alabama, is engaged in the business of manufacturing renovated or process butter from so-called "packing stock butter", which is country butter accumulated from rural sections, assertedly, in Alabama and contiguous States, and brought to the defendant's plant for processing. Renovation of this butter is effectuated by heating and straining it, the use of centrifugal devices, a purifying process, and the addition thereto of other lacteal substances. It is then rechurned and ultimately there is evolved a finished, uniform product, marketable and sold in Alabama and elsewhere.
In accordance with duty and law, on July 29, 1939, agents of the Department of Agriculture and Industries inspected containers of this packing stock butter at defendant's said plant. The State contends that said agents found the butter to contain miscellaneous filth and determined it to be an "adulterated" food as that term is used in the Agricultural Code of Alabama, 1927, Article Seven, Section 39, p.
29; and therefore subject, under the law, to seizure and confiscation. Thereupon, and in the manner provided in the Act, the said agents impounded the article, placed it in a proper repository and instituted proceedings in said Court for its condemnation (Code, supra, Article 23). At this time, samples of the butter were taken by the agents, some of which were delivered to the defendant and others sent to the State laboratory for examination.
Subsequently, the defendant having intervened and denied the State's contention, the cause came on for trial before the Hon. J. Russell McElroy, sitting without a jury. The State proceeded to introduce evidence to substantiate its claim for condemnation. At the conclusion of the State's direct evidence, upon motion of the defendant company, the Court entered an order requiring the taking and examination of additional samples of the packing stock butter, by the Commissioner of Agriculture and Industries or his accredited agents. The modus operandi of taking the samples was: (a) a sample from each container in its present stage, (b) a sample after the product has been "thoroughly softened and mixed", (c) "divide said sample with the defendant", (d) renovating the remainder of the seized product by the defendant in the presence of said Commissioner or his representative, awaiting then the further order of the Court.
Presumably, the purpose of this order was to allow technicians for the respective parties to examine this butter in its several respective stages, and give evidence of the analyses to the Court when the hearing shall have been next resumed. Reason and justification for this action appear in the following excerpt from the order of the Court:
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...of the different people involved in the killing either as a participant or as a witness. In the case of State v. 2147 Pounds of Packing Stock Butter, 29 Ala.App. 607, 199 So. 739, it is 'Considerable latitude of discretion is accorded to the nisi prius court in the conduct and regulation of......
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...conduct and regulation of trials. * * *' Taylor v. Thompson, 271 Ala. 18, 21, 122 So.2d 277, 279. See also State v. 2147 Pounds of Packing Stock Butter, 29 Ala.App. 607, 199 So. 739. We are not willing to hold, in the light of what transpired, that the trial judge abused that discretion by ......
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...in the conduct and regulation of its trial. Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277 (1960); State v. 2147 Pounds of Packing Stock Butter, 29 Ala.App. 607, 199 So. 739 (1940). In view of the foregoing the trial court is due to be AFFIRMED. WRIGHT, P. J., and BRADLEY, J., concur. ...
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