United States v. George Spraul & Co.

• Decision Date: 07 March 1911
• Docket Number: 2,125.
• Citation: 185 F. 405
• Parties: UNITED STATES v. GEORGE SPRAUL & CO.
• Court: U.S. Court of Appeals — Sixth Circuit

185 F. 405

UNITED STATES v. GEORGE SPRAUL & CO.

No. 2,125.

United States Court of Appeals, Sixth Circuit.

March 7, 1911

Sherman T. McPherson, U.S. Atty., and Edward P. Moulinier, Asst. U.S atty.

D. F Cash, for defendant in error.

Before KNAPPEN, Circuit Judge, and COCHRAN and SATER, District Judges.

KNAPPEN Circuit Judge.

The United States filed this libel in the United States District Court for the Southern District of Ohio under the Food and Drugs Act of June 30, 1906, c. 3915, 34 Stat. 768 (U.S. Comp. St. Supp. 1909, p. 1187), for the seizure and condemnation of the articles named in the above title.

Section 10 of the act referred to provides:

'That any article of food, drug, or liquor, that is adulterated or misbranded within the meaning of this act, and is being transported from one state, territory, district, or insular possession to another for sale, or, having been transported, remains unloaded, unsold, or in original unbroken packages, or if it be sold or offered for sale in the District of Columbia, or the territories, or insular possessions of the United States, or if it be imported from a foreign country for sale, or if it is intended for export to a foreign country, shall be liable to be proceeded against in any district court of the United States within the district where the same is found, and seized for confiscation by a process of libel for condemnation. * * * The proceedings of such libel cases shall conform, as near as may be, to the proceedings in admiralty, except that either party may demand trial by jury on any issue of fact joined in any such case, and all such proceedings shall be at the suit of and in the name of the United States.'

The section in question contains provisions for the destruction or sale of the articles if condemned as adulterated or misbranded, as well as for the return of the same to the owner thereof upon the payment of the costs of the proceedings and the giving of a bond that the articles shall not be sold or disposed of contrary to the provisions of the act, or the laws of any state, territory, district, or insular possession.

The libel in question, referring to the articles of food as 'contained in original unbroken packages,' alleges that the said packages were transported in interstate commerce; that the same were illegally held within the jurisdiction of the court; and that the articles of food contained therein are adulterated in violation of the act referred to 'and liable to seizure and condemnation as provided therein, for the reason that each and every bottle and jug in said two hundred and seventy-five, more or less, cases, contains an article of food and food product consisting wholly or in part of a filthy, decomposed and putrid vegetable substance and is unfit for food. ' It prayed 'the process of attachment in due form of law, according to the course of this court in cases of admiralty and maritime jurisdiction, so far as is applicable to this case.'

An attachment was issued to the marshal, commanding the seizure of the property, and notice to claimants. The marshal returned that he had seized the articles mentioned, and held the same in his custody subject to the further order of the court. The claimants named in the title appeared and demurred, 'for the reason that it does not appear from an inspection of said libel that the catsup described therein had, prior to the filing of said libel and the issuance and service of process in this case, been seized in any way by any officer of the United States. ' The libel contains no allegation of previous seizure. The court made an order sustaining the demurrer and dismissing the libel. The United States excepted to this order, and brings this writ of error to review the same.

The sole question presented here is whether previous executive seizure of the goods is necessary to give the court jurisdiction of the libel, as was held by the district judge in an able and elaborate opinion.

In the case of The Brig Ann, 9 Cranch, 289, 3 L.Ed. 734, which was a case of an information against certain merchandise alleged to have been imported contrary to the nonimportation act of March 1, 1809, it was held that the court had no jurisdiction over the condemnation proceedings until after executive seizure. The statute which was involved in that case expressly provided for seizure by the collector and declared a forfeiture of the offending articles. Act March 1, 1909, c. 24, 2 Stat. 528. Mr. Justice Story based the necessity of previous executive seizure upon the judiciary act of September 24, 1789 (chapter 20, Sec. 9, 1 Stat. 76), which conferred upon the District Courts 'exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made on waters navigable from the sea by vessels of ten or more tons burden, within their respective districts, as well as upon the high seas. ' The learned justice interpreted this section of the judiciary act as conferring jurisdiction over the condemnation proceedings upon the District Courts only of the district in which the seizure was made, saying that:

'Before judicial cognizance can attach upon a forfeiture in rem, under the statute, there must be a seizure; for until seizure, it is impossible to ascertain what is the competent forum.'

In a large number of cases since the decision in the case of The Brig Ann, it has been held that in proceedings in rem for forfeiture and confiscation previous executive seizure is necessary to jurisdiction, although there are cases not in harmony with this view. Among the cases in which such previous executive seizure has been held necessary to jurisdiction are the following: Gelston v. Hoyt, 3 Wheat. 246, 4 L.Ed. 381; The Silver Spring, Fed. Cas. No. 12,858; The Washington, Fed. Cas. No. 17,222; The Fideliter, Fed. Cas. No. 4,755; The Tug May, 6 Biss. 243, Fed. Cas. No. 9,330; The Idaho (D.C.) 29 F. 187, 191; The Josefa Segunda, 10 Wheat. 312, 6 L.Ed. 329; Dobbin's Distillery v. United States, 96 U.S. 395, 24 L.Ed. 637; United States v. Larkin (6th Circuit) 153 F. 113, 82 C.C.A. 247. The rule has also been extended to proceedings under laws providing for seizure and confiscation of 'the property of rebels.' Pelham v. Rose, 76 U.S. 103, 19 L.Ed. 602; The Confiscation Cases, 87 U.S. 92, 22 L.Ed. 320; United States v. Winchester, 99 U.S. 372, 25 L.Ed. 479. In all or nearly all of the cases above cited there is found either express statutory authority for the seizure, or express statutory declaration that the property shall be, or becomes, forfeited to the United States by reason of the acts complained of, and in some cases both such statutory authority and statutory declaration are found. The statute involved in the case of The Silver Spring expressly provided for a forfeiture of the boat 'if found within the district,' although not for an executive seizure. Act July 29, 1813, 3 Stat. 51, Sec. 6. In the statute involved in Gelston v. Hoyt, express provision was made for seizure by the revenue officer whenever it should appear that a breach of the laws of the United States had been committed whereby the ship or the goods on board might become liable to forfeiture. The act relating to navigation of steam vessels (Rev. Stat. Sec. 4499 (U.S. Comp. St. 1901, p. 3060)), as construed by District Judge Deady in the case of The Idaho, expressly authorizes a seizure by the proper officer of the government in advance of judicial proceeding. The Josefa Segunda involved a statute providing that the property subject to confiscation was liable to be 'seized, prosecuted and condemned, in the district where the said ship or vessel may be found or seized. ' Dobbin's Distillery v. United States arose under an internal revenue act which expressly provided for forfeiture. Act July 20, 1868, 15 Stat. 125, c. 186. The statute involved in United States v. Larkin arose under Revised Statutes, Sec. 3072 (U.S. Comp. St. 1901, p. 2011), which makes it 'the duty of the several officers of the customs to seize and secure any vessel or merchandise which shall become liable to seizure by virtue of any law respecting the revenue. ' In the act for the seizing and confiscating of property of rebels express provision is made for executive seizure. See Pelham v. Rose, The Confiscation Cases, and United States v. Winchester.

The present judiciary act (Rev. Stat. Sec. 563, subdiv. 8 (U.S Comp. St. 1901, p. 457)) gives the District Courts jurisdiction 'of all civil causes of admiralty and maritime jurisdiction * * * and of all seizures on land and on waters not within admiralty and maritime...