United States v. 935 CASES, ETC., Civ. No. 21218.

• Decision Date: 16 April 1946
• Docket Number: Civ. No. 21218.
• Parties: UNITED STATES v. 935 CASES, MORE OR LESS, EACH CONTAINING 6 NO. 10 CANS OF TOMATO PUREE.
• Court: U.S. District Court — Northern District of Ohio

65 F. Supp. 503

UNITED STATES

v.

935 CASES, MORE OR LESS, EACH CONTAINING 6 NO. 10 CANS OF TOMATO PUREE.

Civ. No. 21218.

District Court, N. D. Ohio, E. D.

April 16, 1946.

Don C. Miller, U. S. Dist. Atty., of Cleveland, Ohio, for plaintiff.

Edwin H. Chaney, of Cleveland, Ohio, and Bachelder & Bachelder, of Indianapolis, Ind., for defendants.

JONES, District Judge.

The United States, by amended complaint, seeks to condemn 935 cases, more or less, of tomato puree shipped in interstate commerce by the Ladoga Canning Company, Lebanon, Ind., as consignor to the Weideman Company in Cleveland, as consignee.

Several samples of the tomato puree were seized and examined by the Food and Drug Administrator in the warehouse or storeroom of the consignee.

The consignor has answered and while admitting certain procedural allegations denies the charges respecting the adulterated character of the tomato puree; denies that it is subject to seizure and confiscation and denies that it was shipped contrary to the jurisdiction of the United States and this Court.

In view of certain stipulations and the fact that findings and conclusions probably later will be presented for adoption it seems unnecessary to review or summarize the evidence, but only to set down the Court's consideration of and conclusions upon the issues presented.

In general, two main questions require response. First, were the samples seized representative of the article or product shipped in interstate commerce, and, second, does the evidence support the Government's charge that the tomato puree should be condemned as being adulterated within the meaning of Section 342(a) (3) of Title 21, United States Code Annotated.

It seems reasonable to construe the jurisdictional and procedural statute (Section 334) and the word "article" used therein to include an entire shipment of the same product regardless of the fact that some cases or cans of the product in the shipment were so labeled or coded by the shipper as to indicate different dates of canning. I think the "article", as used in the statute, is the product shipped in the cases or cans and not the individual cases or cans. It would be impractical for the Government to examine samples from each case or can in the shipment on the theory that each case or can was an "article" in the sense of the statute. If the samples are reasonably representative of the lot shipped, — that is, taken at wide random from the entire shipment it is in my opinion sufficient to embrace the entire shipment in the condemnation.

As to the question of the construction of the statute claimed for by the defendant during the trial, — that the words "if it is otherwise unfit for food" modify, limit or add any additional requirement of proof to the preceding words, I do not so interpret the language even though one may concede that the Congress, to the extent of its power, was by law intending to protect the public from food unfit for human consumption. On the contrary, while I think that it is not compelled or essential, there may be drawn a fair inference from the language that Congress considered that proof of the condition described made the particular article or product...