Sullivan v. United States
| Decision Date | 12 May 1947 |
| Docket Number | No. 11774.,11774. |
| Citation | 161 F.2d 629 |
| Parties | SULLIVAN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. Madden Hatcher and R. M. Arnold, both of Columbus, Ga., for appellant.
Vincent A. Kleinfeld, Atty., Dept. of Justice, of Washington, D. C., and John P. Cowart, U. S. Atty., of Macon, Ga., for appellee.
Before SIBLEY, McCORD, and LEE, Circuit Judges.
Sullivan, a local retail merchant in Columbus, Georgia, was convicted under the Federal Food, Drug, and Cosmetics Act, 52 Stats. 1040, Sect. 301 (c) and (k), 21 U.S. C.A. § 331(c) and (k), for selling to two federal inspectors two lots of 12 tablets each of sulfathiazole taken from a bottle on the shelves of his drug store which had contained 1,000 tablets. The facts as alleged in the information and stipulated or proven on the trial are these: Between Nov. 25, 1943, and March 15, 1944, Abbott Laboratories, doing business in North Chicago, Illinois, shipped in interstate commerce to Abbott Laboratories, at Atlanta, Georgia, a number of boxes containing bottles of drugs, one of them being this bottle of 1,000 tablets of sulfathiazole, which was duly labeled as such, with a caution that they are to be used only by or on the prescription of a physician, and with the name and Chicago address of Abbott Laboratories. This bottle so labeled was on Sept. 29, 1944, in Atlanta sold to Sullivan, and by him transferred in intrastate commerce to his pharmacy in Columbus, and placed on his shelves for retail sales to customers. On Dec. 13, 1944, the two lots of 12 tablets each were taken from the bottle, placed in pasteboard pill boxes, with only the word sulfathiazole (slightly misspelled) on them, and sold to the federal inspectors. The label on the bottle was not defaced or changed, and the bottle was seen and afterwards taken in charge by the inspectors. A motion to dismiss the information as not charging a federal crime, and one for a judgment of acquittal because none was proved, were overruled and this appeal taken.
The general constitutionality of the federal Act under the commerce clause of the Constitution is admitted. The contentions are that the Act is not intended to operate on retail sales over the counter after interstate commerce has ended, by one who was not the importer; that the language is not clear enough to make criminals of such sellers; and that if construed to apply to them the Act is to that extent beyond the power of Congress.
It will be noted that the only interstate commerce here involved is the transportation of bottles of drugs in boxes from Chicago to Atlanta at least nine months before the sales here in question. The boxes came to rest in Atlanta and were opened by the importer, Abbott Laboratories, and the bottles were put in their stock of drugs in Atlanta for sale. Over six months thereafter Sullivan bought one bottle, which is conceded to have been duly labeled, and put it into his stock of drugs at Columbus for retail sales, where the bottle stayed for three more months. If the criminal provisions relied on apply here, they apply to all intrastate sales of imported drugs after any number of intermediate sales within the State and after any lapse of time; and not only to such sales of drugs, but also to similar retail sales of foods, devices and cosmetics, for all these are equally covered by these provisions of the Act. We are not able to conclude that the Act is to be so construed as to bring within these penal provisions most of the sales in all drug stores, beauty parlors, barber shops and retail grocery stores in the United States.
The general purpose of the Act is declared in its simple title: "An Act to prohibit the movement in interstate commerce of adulterated and misbranded food, drugs, devices, cosmetics, and for other purposes." Section 301(c) prohibits, (under penalty by Section 303), "The receipt in interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise". Sullivan clearly did not receive in interstate commerce any misbranded drug, nor did he proffer delivery of any in interstate commerce. A moderately strict construction of this penal provision would confine it to shippers and to importers in interstate commerce, and proffers of sale by the latter. Sullivan was a party to intrastate sales only. Moreover since this bottle was at all times duly labeled and not misbranded, no one violated this provision by receiving or proffering delivery of it.
Section 301(k) prohibits "The alteration, mutilation, destruction, obliteration or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food, drug, device, or cosmetic, if such act is done while such article is held for sale after shipment in interstate commerce and results in such article being misbranded." The labeling here was not removed or mutilated; but an act was done with respect to the drug, to wit, the removal of some of it from the labeled bottle and the placing of it in a box not sufficiently labeled under the Act, after shipment in interstate commerce and while the drug was held for sale, so that this portion of the drug became misbranded. Therefore in their broadest possible sense these words may include what happened. But we are of opinion that they ought not to be taken so broadly, but held to apply only to the holding for the first sale by the importer after interstate shipment. Since importation by merchants of all merchandise is for the very purpose of sale, the importation, as has always been held, remains incomplete till its purpose is thus realized. Brown v. Maryland, 12 Wheat. 419, 6 L.Ed. 678. The words of subsection (k), "held for sale after shipment in interstate commerce", naturally refer to this first sale by the merchant importer. It was this sale which was involved in McDermott v. Wisconsin, 228 U.S. 115, 33 S. Ct. 431, 57 L.Ed. 754, 47 L.R.A.,N.S., 984, Ann.Cas.1915A, 39, and in Baldwin v. Seelig, 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032, 101 A.L.R. 55, much relied on by the government. We do not doubt, however, that the United States can prohibit the destruction of the labeling under which interstate commerce occurred, by any one at any time, in order to preserve the evidence of what was done during the interstate movement,...
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United States v. Sullivan
...evidence was heard, and respondent was convicted under both counts. D.C., 67 F.Supp. 192. The Circuit Court of Appeals reversed. 161 F.2d 629, 630. The court thought that as a result of respondent's action the sulfathiazole became 'misbranded' within the meaning of the Federal Act, and that......
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United States v. American Stores Company, Cr. A. No. 24945.
...for many years past. And in support of this they have shown me the Government's brief for the appellee in the case of Sullivan v. United States, 5 Cir., 1947, 161 F. 2d 629, where the legislative history of § 333(c) (1) was quite fully discussed. It is said that it first appeared in an amen......