United States v. Tyson's Poultry, Inc., 483

• Decision Date: 09 April 1963
• Docket Number: No. 483,484.,483
• Citation: 216 F. Supp. 53
• Parties: UNITED STATES of America, Petitioner, v. TYSON'S POULTRY, INC., Respondent. UNITED STATES of America, Petitioner, v. PLUS POULTRY, INC., Respondent.
• Court: U.S. District Court — Western District of Arkansas

216 F. Supp. 53

UNITED STATES of America, Petitioner, v. TYSON'S POULTRY, INC., Respondent.

UNITED STATES of America, Petitioner, v. PLUS POULTRY, INC., Respondent.

Nos. 483, 484.

United States District Court W. D. Arkansas, Harrison Division.

April 9, 1963.

Charles M. Conway, U. S. Atty., E. A. Riddle, Asst. U. S. Atty., Fort Smith, Ark., for petitioner.

Russell Elrod, Siloam Springs, Ark., Hall & Sublett, Tulsa, Okl., for Plus Poultry.

Crouch, Blair & Cypert, Springdale, Ark., for Tyson's Poultry, Inc.

A. E. Townsend, Jr., Little Rock, Ark., amicus curiae.

JOHN E. MILLER, Chief Judge.

The petitioner seeks enforcement of subpoenas duces tecum against the respondents as live poultry dealers and handlers under the Packers and Stockyards Act, 1921, as amended, 7 U.S.C. § 181 et seq. Section 218b of Title 7 U.S.C., defines the term "live poultry dealer" as: "Any person engaged in the business of buying or selling live poultry in commerce for purposes of slaughter either on his own account or as the employee or agent of the vendor or purchaser."

Section 182(6) provides:

"The term `commerce' means commerce between any State, Territory, or possession, or the District of Columbia, and any place outside thereof; or between points within the same State, Territory, or possession, or the District of Columbia, but through any place outside thereof; or within any Territory or possession, or the District of Columbia."

Section 183 of the same Title provides:

"For the purpose of this chapter (but not in anywise limiting the definition in section 182 of this title) a transaction in respect to any article shall be considered to be in commerce if such article is part of that current of commerce usual in the livestock and meat-packing industries, whereby livestock, meats, meat food products, livestock products, dairy products, poultry, poultry products, or eggs, are sent from one State with the expectation that they will end their transit, after purchase, in another, including, in addition to cases within the above general description, all cases where purchase or sale is either for shipment to another State, or for slaughter of livestock within the State and the shipment outside the State of the products resulting from such slaughter. Articles normally in such current of commerce shall not be considered out of such current through resort being had to any means or device intended to remove transactions in respect thereto from the provisions of this chapter. For the purpose of this section the word `State' includes Territory, the District of Columbia, possession of the United States, and foreign nation."

Section 192 of the same Title enumerates the following unlawful practices pertaining to live poultry dealers or handlers:

"It shall be unlawful with respect to livestock, meats, meat food products, livestock products in unmanufactured form, poultry, or poultry products for any packer or any live poultry dealer or handler to;

"(a) Engage in or use any unfair, unjustly discriminatory, or deceptive practice or device in commerce; or

"(b) Make or give, in commerce, any undue or unreasonable preference or advantage to any particular person or locality in any respect whatsoever, or subject, in commerce, any particular person or locality to any undue or unreasonable prejudice or disadvantage in any respect whatsoever; or

"(c) Sell or otherwise transfer to or for any other packer, or any live poultry dealer or handler, or buy or otherwise receive from or for any other packer or any live poultry dealer or handler any article for the purpose or with the effect of apportioning the supply in commerce between any such packers, if such apportionment has the tendency or effect of restraining commerce or of creating a monopoly in commerce; or

"(d) Sell or otherwise transfer to or for any other person, or buy or otherwise receive from or for any other person, any article for the purpose or with the effect of manipulating or controlling prices in commerce, or of creating a monopoly in the acquisition of, buying, selling, or dealing in, any article in commerce, or of restraining commerce; or

"(e) Engage in any course of business or do any act for the purpose or with the effect of manipulating or controlling prices in commerce, or of creating a monopoly in the acquisition of, buying, selling, or dealing in, any article in commerce, or of restraining commerce; or

"(f) Conspire, combine, agree, or arrange with any other person (1) to apportion territory for carrying on business in commerce, or (2) to apportion purchases or sales of any article in commerce, or (3) to manipulate or control prices in commerce; or

"(g) Conspire, combine, agree, or arrange with any other person to do, or aid or abet the doing of, any act made unlawful by subdivisions (a)-(d) or (e) of this section."

Section 222 of Title 7 U.S.C., makes the provisions of Sections 46 and 48-50 of Title 15 U.S.C., applicable to the jurisdiction, powers and duties of the Secretary in enforcing the provisions of the Packers and Stockyards Act, and further provides:

"The Secretary, in person or by such agents as he may designate, may prosecute any inquiry necessary to his duties under this chapter in any part of the United States."

Section 46(a), Title 15 U.S.C., provides:

"The commission shall also have power—

"(a) To gather and compile information concerning, and to investigate from time to time the organization, business, conduct, practices, and management of any corporation engaged in commerce, excepting banks and common carriers subject to the Act to regulate commerce, and its relation to other corporations and to individuals, associations, and partnerships."

Section 49 of the same Title provides in part:

"* * * the commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any corporation being investigated or proceeded against; and the commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. Any member of the commission may sign subpoenas, and members and examiners of the commission may administer oaths and affirmations, examine witnesses, and receive evidence.

"Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the commission may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence.

"Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any corporation or other person, issue an order requiring such corporation or other person to appear before the commission, or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof."

In August, 1962, the Director of the Packers and Stockyards Division of the Agricultural Marketing Service of the United States Department of Agriculture, pursuant to authority delegated to him from the Secretary of Agriculture, caused preliminary investigations to be made, under the Act, of the poultry industry in Arkansas and of each respondent. Upon the basis of the information obtained in connection with such preliminary investigations, the Director determined that a more thorough investigation should be made of the poultry industry in Arkansas, and of the nature of the organization of each respondent, the acquisition and slaughtering of live poultry and the processing and sale of poultry and poultry products, to determine whether the operations of respondents, during the first nine months of 1962, were in compliance with the Act. In connection with such investigations, employees of the Packers and Stockyards Division requested each respondent to make certain records, relevant to those matters, available to them for examination, but respondents refused to make available the records requested. Thereupon, subpoenas duces tecum issued by the Director, pursuant to authority delegated to him under the Act from the Secretary of Agriculture, were duly served upon respondents, which stated:

"UNITED STATES DEPARTMENT OF AGRICULTURE

BEFORE THE SECRETARY OF AGRICULTURE

SUBPENA DUCES TECUM "TO: Tyson's Poultry, Inc. Springdale, Arkansas

"Tyson's Poultry, Inc., Springdale, Arkansas, a corporation, is hereby required to appear before Charles C. Sercer, Laurence L. Trampe, John J. Ronan, or other authorized representatives of the Secretary of Agriculture, at the place of business of Tyson's Poultry, Inc., Springdale, Arkansas, on the 22 day of October, 1962, at 10:00 A.M. of that day, and to produce, and give access to, at said time and place and for a reasonable time thereafter, for examination and copying by said Charles C. Sercer, Laurence L. Trampe, John J. Ronan, or other authorized representatives of the Secretary of Agriculture, the following documentary evidence for the period from January 1, 1962, through September 30, 1962:

"1. All records including written agreements and contracts, letters, telegrams, memoranda, instructions and correspondence sent, received, or used by your plant or company in connection with the acquisition of live poultry or poultry products by or for your firm.

"2. All records including USDA grading and inspection records made or used by or for your firm in connection with the slaughtering of live poultry and the processing of poultry and poultry products.

"3. All records made or used by your firm including inventories, general ledgers, canceled checks, cash journals, expense

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