United States v. 154 Sacks of Oats

• Decision Date: 20 October 1922
• Citation: 283 F. 985
• Parties: UNITED STATES v. 154 SACKS OF OATS.
• Court: U.S. District Court — Western District of Virginia

283 F. 985

UNITED STATES v. 154 SACKS OF OATS.

United States District Court, W.D. Virginia.

October 20, 1922

H. E McElwain, Jr., of Louisville, Ky., and Harper & Goodman, of Lynchburg, Va., for claimants.

L. P Summers, U.S. Atty., of Abingdon, Va., and C. E. Gentry Asst. U.S. Atty., of Charlottesville, Va.

McDOWELL District Judge.

This is a proceeding for forfeiture of a shipment of sample grade oats, made by the claimants in interstate commerce. The information charges that the oats had been adulterated (1) in that a substance had been mixed with them so as to reduce and injuriously affect their quality; (2) in that wild oats, weed seeds, chaff, and dust were mixed therewith in such manner as that the inferiority of the mixture was concealed; and (3) that the said oats had been misbranded.

The order establishing official grain standards for oats under the Grain Standards Act (see Service and Regulatory Announcements No. 46) contains, inter alia:

'Section 1. Oats-- Oats shall be any grain which consists of cultivated oats, and not more than twenty-five per centum of foreign material, other grains and wild oats, either singly or in any combination.'

By section 13 oats are graded and designated as No. 1, No. 2, No. 3, No. 4, and sample grade. Among other requirements grade No. 1 must contain not less than 98 per cent. of sound cultivated oats; grade No. 2 not less than 95 per cent.; No. 3 not less than 90 per cent.; No. 4 not less than 80 per cent. Sample grade 'shall be oats which do not come within the requirements of any of the grades from No. 1 to No. 4, inclusive, or which have any commercially objectionable foreign odor, or are sour, heating, hot, infested with live weevils or other insects injurious to stored grain, or are otherwise of distinctly low quality.'

The facts have been stipulated, and in the stipulation appears the following:

'(10) It is agreed that the article in question contains 77 per cent. of cultivated oats and 23 per cent. of material other than cultivated oats. This 23 per cent. consists of wild oats, other grains, and foreign material, the foreign material consisting of weed seeds, chaff, and dust. A certain percentage of this 23 per cent. was added by the claimants, the material added being wild oats. It is further agreed that there were present in the wild oats so added a certain percentage of other grains and foreign material, consisting of weed seeds, chaff, and dust, the quantity of said other grains and foreign material being no greater than that found in the average commercial shipment of wild oats.

'Generally, oats contain some foreign material as they come naturally from the field, and in the case of sample grade under the Grain Standards Act this amount may be as large as 25 per cent. The proportion of foreign material in the wild oats which was added by the claimant in this case was not greater than the proportion of foreign material in the cultivated oats with which they were mixed and the proportion of foreign material, viz. weed seeds, chaff, and dust was not greater in the mixture than the proportion thereof in either of the ingredients.

'(11) It is agreed that, based upon the pleadings in this case and the foregoing stipulation of fact, the following question of law is submitted to the court for determination:

'Does the shipment in interstate commerce as sample grade oats of an article prepared by the claimant as set forth in No. 10 hereof constitute a violation of the federal Food and Drugs Act (Comp. St. Secs. 8717-8728), when such article has been previously graded as sample grade oats by a duly authorized inspector of the Bureau of Markets of the United States Department of Agriculture and sold as sample grade oats, a grade of the official grain standards for oats promulgated by the Secretary of Agriculture under the Grain Standards Act?'

The Grain Standards Act of August 11, 1916, c. 313 (39 Stats. 446, 482), does not seem to me to show an intent to repeal, alter, or modify the Food and Drugs Act of June 30, 1906, c. 3915 (36 Stats. 768) in any respect; nor an intent to authorize the Secretary of Agriculture so to do. But, if I am wrong in this respect, it seems too clear for argument that the Secretary of Agriculture in promulgating the standards for oats has not undertaken to modify the Food and Drugs Act in the slightest degree. Section 14 of the Service and Regulatory Announcements, No. 46, reads:

'Nothing herein shall be construed as authorizing the adulteration of oats by the addition of water, by the admixture of clippings or hulls, decomposed salvage oats, other grains, or any other foreign material, or otherwise, in violation of the Food and Drugs Act of June 30, 1906.'

In the ingenious brief for the claimants the foregoing is characterized as a mere expression of opinion on a question of law on the part of the Secretary of Agriculture. It seems to me to be a very clear and explicit statement of the intent of the regulations. In other words, fearful that some one might fall into the error of thinking that the regulations were intended to modify the Food and Drugs Act, the Secretary expressly and definitely declares that such is not the intent of the regulations. Statements of intent and opinions as to legal effect, respectively, might conceivably be so expressed as to resemble each other, but in this case there is, I think, no room for confusion.

But quite aside from anything that has been said, the regulations cannot fairly be read as modifying the Food and Drugs Act. Throughout the regulations there is no thought of authorizing such a thing as adulteration of oats. ...