Triangle Candy Co. v. United States

• Decision Date: 08 August 1944
• Docket Number: No. 10406.,10406.
• Citation: 144 F.2d 195
• Parties: TRIANGLE CANDY CO. et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

144 F.2d 195 (1944)

TRIANGLE CANDY CO. et al. v. UNITED STATES.

No. 10406.

Circuit Court of Appeals, Ninth Circuit.

August 8, 1944.

Haight, Trippet & Syvertson and Lyle C. Newcomer, all of Los Angeles, Cal., for appellants.

Charles H. Carr, U. S. Atty., and James M. Carter and Betty Marshall Graydon, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal by defendants and appellants, Triangle Candy Company, a corporation, and Bernard G. Kennepohl, from judgments rendered against them after appellants were found guilty on six counts of violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 331(a) prohibiting "the introduction into or delivery for introduction into interstate commerce of any food, drug, device or cosmetic that is adulterated or misbranded."

There were seven counts in the information. The adulteration charge was twofold in character in all but the first count. Alleged in each count was adulteration under 21 U.S.C.A. § 342(a) (4), providing that a food shall be deemed adulterated "if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health." In all counts save the first it was additionally alleged that there was adulteration of the candy involved under 21 U.S.C. A. § 342(a) (3), providing that a food shall be deemed to be adulterated "if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food."

The corporate and individual defendants were each found guilty on counts II through VII. A fine of Five Hundred Dollars was imposed on the corporate defendant as to each count; its fine totaled Fifteen Hundred Dollars by virtue of the concurrency of some of the sentences. Kennepohl was fined Two Hundred and Fifty Dollars on each count, concurrency reducing the total sum to be paid to Five Hundred Dollars.

It is the contention of the appellants that Congress made the supplying to them of part of the samples whose analysis provided the basis for the charges a condition precedent to the maintenance of a prosecution under the Act. It was stipulated at the trial that though seasonable written request was made for such samples as to each count, it was not complied with as to the samples involved in counts III, IV, VI, and VII.

Appellants' contention must be considered since, though some of the fines ran concurrently, the judgment cannot be entirely sustained if the conviction on these four counts are invalid. Kennepohl was fined Two Hundred and Fifty Dollars on counts II and III, and the same amount on each of the other four last counts, the latter four to run concurrently with each other, and with the separate fines in counts II and III. Since samples were furnished as to counts II and V in conformity with the statute and regulations, the judgments as to two non-concurrent fines are plainly valid with respect to the sample requirement and no finding need be made as to this question so far as Kennepohl is concerned.

However, a somewhat different situation is presented with respect to the corporate appellant. As to it fines of Five Hundred Dollars were levied on counts II, III and IV; and similar fines as to the last three counts, these to run concurrently with each other and with the fines on counts II, III and IV. To uphold in its entirety the judgment as to the corporate defendant, it would be necessary to find that three valid and non-current fines were levied. But if the sample provision requirement be jurisdictional, not more than two of the fines can be upheld.

The sample provision requirement of the Act (21 U.S.C.A. § 372. Availability to owner of part of analysis samples:) is as follows:

"(b) Where a sample of a food, drug, or cosmetic is collected for analysis under this chapter the Administrator shall, upon request, provide a part of such official sample for examination or analysis by any person named on the label of the article, or the owner thereof, or his attorney or agent; except that the Administrator is authorized, by regulations, to make such reasonable exceptions from, and impose such reasonable terms and conditions relating to, the operation of this subsection as he finds necessary for the proper administration of the provisions of this chapter."

The Administrator, in pursuance of this authorization to make reasonable exception from the sample which "shall * * * be provided" made a regulation regarding sample provision. S.R.A. F.D.C. 1, Rev. 1 — Issued August, 1939, Revised August, 1941. Its pertinent provisions are Regulation 2.700. "(b) When an officer or employee collects an official sample of a food, drug, or cosmetic for analysis under the Act, he shall collect at least twice the quantity estimated by him to be sufficient for analysis, unless * * *"¹

There follows a list of seven exceptions, none of them pertinent to the facts of this case. The regulation continues "In addition to the quantity of sample prescribed above, the officer or employee shall, if practicable, collect as part of the sample such further amount of the article as he estimates to be sufficient for use in the trial of any case that may arise under the Act based on the sample."

The government does not contend that any of those employed to collect samples obeyed the mandate of the regulation that they "shall collect at least twice the amount estimated by him to be sufficient for analysis," much less that he collected enough more for use at the trial. The most the testimony shows in this regard is that one inspector took one pound of candy as a sample (under count IV) which he "felt" was "sufficient" to supply a sample to appellant. He said nothing about its being double the amount required for analysis.

After requiring such amounts of samples to be collected, the next subsection (c) provides:

"After the Food and Drug Administration has completed such analysis of an official sample of a food, drug, or cosmetic as it determines, in the course of analysis and interpretation of analytical results, to be adequate to establish the respects, if any, in which the article is adulterated or misbranded within the meaning of the act, or otherwise subject to the prohibitions of the act, and has reserved an amount of the article it estimates to be adequate for use as exhibits in the trial of any case that may arise under the act based on the sample, a part of the sample, if any remains available, shall be provided for analysis, upon written request, by any person named on the label of the article, or the owner thereof, or the attorney or agent of such person or owner, unless * * *"

There follow two exceptions which are not pertinent here.

The only testimony regarding the amount of the samples left after analysis was not from any collector but from the government's chief chemist of the Los Angeles station to whom the collector sent the collected samples. He nowhere testified that double the amount deemed needed for analysis was received, plus enough to use at the trial. All he testified to is that "the reason why samples were not furnished which the candy company requested was because all the samples at the Los Angeles station were used in the course of the analyses by the chemists involved; that there was no candy left over after the analyses could be sent to them."

It is thus apparent that the government, failing to supply the demanded samples, has not brought itself within the exceptions of the regulations created under the statute. The problem thus becomes one of the effect of such failure to obey the mandate that the Administrator "shall * * * provide" the samples. Was the furnishing to the owner of a portion of the sample on request, subject only to exceptions necessary to successful administration and enforcement, intended to be a mandatory prerequisite to the successful maintenance of an information based on the Act, or was the statute directing that such furnishing be made intended as merely an administrative direction, failure to comply with which could not be complained of by those accused under the Act?

The statute, saying as it does that samples, with exceptions, shall be provided, is in terms mandatory. "* * * it is the language of command, a test significant, though not controlling." Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 820, 79 L. Ed. 1566. However, in cases involving prospective action of government officials, the word "shall" may be given a merely directory meaning if the law's purpose is rather the protection of the government by guidance of its officials than the granting of rights to the private citizens affected. Thus in Erhardt v. Schroeder, 155 U.S. 124, 15 S.Ct. 45, 39 L.Ed. 94, a statute was held merely to be a guide...