United States v. Commercial Creamery Co.

• Citation: 43 F. Supp. 714
• Decision Date: 12 March 1942
• Docket Number: No. C-7382.,C-7382.
• Court: U.S. District Court — Eastern District of Washington
• Parties: UNITED STATES v. COMMERCIAL CREAMERY CO.

43 F. Supp. 714

UNITED STATES v. COMMERCIAL CREAMERY CO.

No. C-7382.

District Court, E. D. Washington, N. D.

March 12, 1942.

Lyle Keith, U. S. Atty., and Harvey Erickson and R. Max Etter, Asst. U. S. Attys., all of Spokane, Wash., for plaintiff.

Roy E. Lowe and J. Orville Humphries, both of Spokane, Wash., for defendant.

SCHWELLENBACH, District Judge.

By information defendant is charged with introducing into interstate commerce in Spokane, Washington, for shipment to Portland, Oregon, two shipments of frozen eggs which consisted in whole or in part of a decomposed substance in violation of the Federal Food, Drug and Cosmetic Act. The pertinent portions of the statute, grouped together for continuity purposes, read as follows, Title 21 U.S.C.A.:

Section 331:

"The following acts and the causing thereof are prohibited:

"(a) The introduction or delivery for introduction into interstate commerce of any food * * * that is adulterated * * *."

Section 333:

"(a) Any person who violates any of the provisions of section 331 shall be guilty of a misdemeanor."

Section 342:

"A food shall be deemed to be adulterated —

"(a) * * * (3) If it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food."

To the information a plea of not guilty was entered. By stipulation, a jury was waived and the case presented to the Court. By stipulation, the interstate character of the shipments and their identity was admitted by defendant.

Defendant contends that the failure to afford to the defendant an opportunity to present its views as provided in the act, 21 U.S.C.A. § 335, prevents this prosecution. This contention is without foundation. The notice and hearing required in section 335 is administrative and not jurisdictional. United States v. Morgan, 222 U.S. 274, 32 S.Ct. 81, 56 L.Ed. 198; United States v. American Laboratories, D.C., 222 F. 104.

Defendant contends that the statute is too indefinite and that neither it nor the regulations promulgated under it establish standards sufficiently definite to enable the defendant to know of the crime with which it is charged and that any reasonable doubt as to the meaning of the statute must be construed in favor of the defendant. It is true that this is a criminal proceeding in which the burden of proving the allegations of the information beyond a reasonable doubt rests upon the Government and the defendant is entitled to its recognized presumption of innocence. United States v. Mayfield, D.C., 177 F. 765; Von Bremen v. United States, 2 Cir., 192 F. 904; United States v. American Laboratories, supra; United States v. Newton Tea & Spice Co., D.C., 275 F. 394. But the rule of strict construction as to the statute itself has little or no application to the Federal Food, Drug and Cosmetic Act designed, as it is, to prevent injury to the public health. A. O. Andersen & Co. v. United States, 9 Cir., 284 F. 542; United States v. 48 Dozen Packages, More or Less, of Gauze Bandage Labeled in Part Sterilized, 2 Cir., 94 F.2d 641; United States v. Research Laboratories, Inc., 9 Cir., 126 F.2d 42, decided Feb. 24, 1942. Furthermore, the statute is not indefinite or ambiguous. It makes illegal the introduction into interstate commerce of food which "consists in whole or in part of any filthy, putrid, or decomposed substance." (Emphasis mine.) This statute is all inclusive and prevents the shipment in interstate commerce of any food which contains any decomposed matter. Defendant urges that such a construction of the statute would result in unreasonable regulation and would prevent the shipment in interstate commerce of many foods not harmful to public health. If such a contention is sound, the argument in support thereof should be made to the Congress and not to the Courts. The act was passed by Congress, under its authority to exclude from interstate commerce impure and adulterated foods and to prevent the facilities of commerce being used to enable such articles to be transported to the people who consume them and it is in the light of the purpose and of the power exerted by Congress that this act must be considered and construed. Hipolite Egg Company v. United States, 220 U.S. 45, 31 S.Ct. 364, 55 L.Ed. 364. Congress may itself determine the means appropriate to this purpose and, so long as they do no violence to other provisions of the Constitution, it is, itself, the judge of the means to be employed in exercising the powers conferred upon it in this respect. 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. "Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed upon interstate commerce, is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals or welfare. * * * The distinction on which the decision Hammer v. Dagenhart, 247 U.S. 251, 38 S.Ct. 529, 62 L.Ed. 1101, 3 A.L.R. 649, Ann.Cas.1918E, 724 was rested that Congressional power to prohibit interstate commerce is limited to articles which in themselves have some harmful or deleterious property — a distinction which was novel when made and unsupported by any provision of the Constitution — has long since been abandoned." United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 457, 85 L.Ed. 609, 132 A.L.R. 1430.

Plaintiff's testimony in this case consists of evidence submitted by three witnesses, all employees of the Food and Drug Administration. They were the inspector and assistant inspector at Portland, Oregon, who made the seizure, and the chief inspector at Seattle, who verified their findings. Their method of inspection consisted exclusively of the use of the organoleptic (affecting an organ or organs, especially those of touch, taste and smell. Funk and Wagnell's New Standard Dictionary, 1940 edition) test. In this case, they used the sense of smell. In each instance, the witness testified that his training in the use of this test consisted of a three weeks course in California. While there they had made up for them "authentic packs" of various food substances using which they were taught to differentiate between the odor emanating from each. It will be noted that such packs were designated "authentic" rather than proven. For example, in making up an "authentic" egg pack, the eggs used were not submitted to any chemical or bacteriological test but were taken from what the witnesses described as "known" sources of either good or bad eggs and the odors were described to them as those which would come from either good or bad egg packs. The samples upon which plaintiff relies in this case were not subjected to either bacteriological or chemical tests nor was the method of inspection of the source used.

Defendant's testimony included an explanation of the care used by it in the preparation of these shipments. It was uncontradicted that the eggs were carefully selected and examined by skilled candlers. They were broken in the approved fashion, using recognized methods by experienced breakers, into cups where they were judged as to appearance and smell by the breaking-room foreman who has had eleven years experience. He testified that they were not decomposed. They were then churned and rushed to refrigeration. Plaintiff makes no contention about this breaking-room operation. The defendant also offered the testimony of a witness in Portland who was present at the time of the seizure there by the Department's inspector. He, too, had had long experience in detection of odors of frozen eggs. He testified he could detect no odor of decomposition. Plaintiff also submitted the testimony of a witness now connected with the Washington State Department of Agriculture. He, likewise, had had many years of experience in the egg business. He testified that the organoleptic method of testing was more efficient if used at the time of breaking than if used later at the time of seizure.

It is not the function of the Court in this case to make a choice for the Food and Drug Administration as to the method of testing to be followed by it. My problem is only to determine whether the Government has sustained the burden of establishing its case beyond a reasonable doubt. However, there...