United States v. Kordel

• Decision Date: 26 June 1946
• Citation: 66 F. Supp. 538
• Parties: UNITED STATES v. KORDEL (three cases).
• Court: U.S. District Court — Northern District of Illinois

66 F. Supp. 538

UNITED STATES v. KORDEL (three cases).

District Court, N. D. Illinois, E. D.

June 26, 1946.

J. Albert Woll, U. S. Atty., and R. C. Eardley, Asst. U.S. Atty., both of Chicago, Ill., for plaintiff.

James W. Breen, of Chicago, Ill., for defendants.

LA BUY, District Judge.

There are three informations, comprising twenty counts, brought against Laura Kordel and Lelord Kordel for violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq., by misbranding. A stipulation between Lelord Kordel trading as Gotu Kola Distributors and as Lelord Kordel Products, and as Lelord Kordel Products and Nutrition Enterprises, has been filed wherein the facts contained in the three informations are agreed. This stipulation is not made by Laura Kordel and is not to be construed as admissions by her.

With the stipulation of facts as stated in the informations, the only question tried by the court was whether the violation has been proved by the evidence.

The main contention of defendants' counsel is that since the booklets did not, in a number of counts, physically accompany the drugs they did not therefore "accompany" the drug within the meaning of Section 321(m) of the Act. Defendants' counsel urges a strict construction of the word "accompany" since this is a criminal action and that the penal provisions of the Federal Food, Drug and Cosmetic Act be strictly construed.

It is necessary first to determine the nature of the statute before us. The United States Supreme Court in the case of United States v. Dotterweich, 1943 320 U.S. 277, 64 S.Ct. 134, 136, 88 L.Ed. 48, said: "The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words." Also, in United States v. Antikamnia Co., 1914, 231 U.S. 654, 34 S.Ct. 222, 58 L.Ed. 419, and United States v. Schider, 1917, 246 U.S. 519, 38 S.Ct. 369, 370, 62 L.Ed. 863: "The purpose of the act is to secure the purity of food and drugs and to inform purchasers of what they are buying. Its provisions are directed to that purpose and must be construed to effect it."

It is apparent, therefore, that the purpose of the law is the ever-insistent consideration in its interpretation. Congress by enacting it intended to promote honesty and fair dealing in trade and secure to the public pure and wholesome food and drugs and there must be a reasonable construction to carry out the intention of Congress. This being "remedial legislation", the rule of liberal construction is to be followed irrespective of its penal provisions.

Mr. Justice Story in Taylor et al. v. United States, 1845, 3 How. 197, 11 L.Ed. 559, stated this principle as follows: "In one sense, every law imposing a penalty or forfeiture may be deemed a penal law; in another sense, such laws are often deemed, and truly deserve to be called remedial. The judge was, therefore, strictly accurate, when he stated that `It must not be understood that every law which imposes a penalty is, therefore, legally speaking, a penal law, that is, a law which is to be construed with great strictness in favor of the defendant. Laws enacted for the prevention of fraud, for the suppression of a public wrong, or to effect a public good, are not, in the strict sense, penal acts, although they may inflict a penalty for violating them.' And he added, `It is in this light I view the revenue laws, and I would construe them so as most effectually to accomplish the intention of the legislature in passing them.' The same distinction will be found recognized in the elementary writers, as, for example, in Blackstone's Commentaries * * * and Bacon's Abridgement * * * and Comyns' Digest * * * and it is also abundantly supported by the authorities."

The word "accompany" has been defined in a number of cases. See United States v. Lee, 7 Cir., 1942, 131 F.2d 464, 143 A.L.R. 1451; United States v. Research Laboratories, Inc., 9 Cir., 1942, 126 F.2d 42, certiorari denied 317 U.S. 656, 63 S.Ct. 54, 87 L.Ed. 528; United States v. 7 Jugs, etc., Dr. Salsbury's Rakos, D.C.Minn., 1944, 53 F.Supp. 746, 755. An excellent analysis was made by District Judge Joyce in the Rakos case supra. He said:

"The word `accompany' as used in Section 201(m) (2) was...