United States v. Wiesenfeld Warehouse Company

PETITIONER:United States
RESPONDENT:Wiesenfeld Warehouse Company
LOCATION:Taylor Street Pharmacy

DOCKET NO.: 92
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 376 US 86 (1964)
ARGUED: Jan 16, 1964
DECIDED: Feb 17, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – January 16, 1964 in United States v. Wiesenfeld Warehouse Company

Earl Warren:

Number 92 United States Appellant versus Wiesenfeld Warehouse Company.

Mr. Claiborne.

Louis F. Claiborne:

Mr. Chief Justice and may it please the Court.

This is a direct appeal by the Government from a district court judgment dismissing an information filed under the Federal Food, Drug, and Cosmetic Act of 1938 as amended in 1948.

The information charged the appellee Wiesenfeld Company, with violations of Section 301 (k) of the Act, which among other things makes it a misdemeanor to do any act with respect to food which has been shipped in interstate commerce and which is held for sale which results in the food becoming adulterated.

Specifically it was charged that the Wiesenfeld Company a public warehousing firm in Jacksonville, Florida stored certain foods which had been shipped from Louisiana or Arkansas and Illinois in a building which was accessible to rodents, birds, and insects and otherwise caused the foods to be exposed to contamination by rodents, birds, and insects.

But this amounted to a holding of the food under insanitary conditions and that the fed — that the food in fact became contaminated by the leavings of the rodents, birds, and insects.

The food involved was rice, breading mix, and hamburger mix packaged in bags, presumably paper or cotton bags.

The information doesn’t specify.

There were six counts in the information, each charging the same offense with respect to a particular lot of one of the commodities.

Each count charged the contamination of several bags of the food stubs involved.

The first four counts charged acts done in specified periods before August 1961.

For last two counts, charged similar acts done with respect to the period July 24, 1961 through the beginning of December in the same year.

The District Court dismissed the information on the ground that the statute, the Federal Food, Drug and Cosmetic Act, did not reach the mere holding of goods under insanitary conditions.

The court conceded that the legislative history of the 1958 amendments would seem to support the government’s position but the court thought that the text of the provision was insufficiently clear and that to construe it broadly, as the Government urged, would make it unconstitutionally vague and indefinite.

It would seem, therefore, that the issue in this case was whether Section 301 (k) of the Act intends to reach a mere holding, as the District Court termed it, of food under insanitary conditions.

Whether that was the intent of Congress, and if so, whether Congress spoke its mind sufficiently clearly in the statute to avoid the constitutional objection.

That was the issue which the Government raised in its appeal and that is the issue to which we address in our brief.

But, if I rightly understand the appellee’s brief in this Court, that basic question is no longer in controversy.

They seem to concede that the Act — the particular provision of the Act does indeed proscribe holding of food under insanitary conditions.

They couldn’t very well dispute it.

The Act expressly proscribes any act which results in adulteration.

The legislative history of 1958 Act makes it perfectly clear that storing in a warehouse is such an act.

The text of the provision itself when read in conjunction with other provisions of the Act makes it perfectly clear that a holding is one of the acts.

This Court’s decision in the Sullivan case makes it clear that there’s no limiting interpretation suggested by the initial words of the provision.

As to that point, since it seems to be conceded, we leave it to our brief which is very short.

But, after conceding this basic proposition, the appellee, it seems to us at least, tries to raise three subsidiary issues.

The first of which is whether the holder, the warehouseman in this case, must have knowledge of the insanitary condition of the place where he stores the food.

The second question is whether a building which is, in the words of the information, accessible to rodents, birds, and insects is an insanitary place.

And, finally — thirdly, whether the statute reaches a public warehousemen who does not own the food he stores.

Louis F. Claiborne:

I’ll consider each of these questions in time.

As to the first one, the question of guilty knowledge, here, we have to make a small concession of error.

The appellee notices in our brief a reference to holding under known insanitary conditions.

That was an inadvertence.

Potter Stewart:

You refer to what page of your brief exactly?

Do you remember?

Louis F. Claiborne:

Page 10, Your Honor, just before the beginning of the last paragraph.

That no one should be deleted.

Louis F. Claiborne:

That no one should be deleted, correct.

(Inaudible)

Louis F. Claiborne:

The one, two, three, four, five, six, seven lines from the bottom of the page at page 10, we say, holding under known insanitary conditions.

But, this is largely a false issue in any case.

As a practical matter, we suppose that the warehouseman knows whether or not his building is insanitary.

At the very least, he can readily discover whether it is.

If the statute imposes a special duty of care on the warehouseman to make regular inspections, that is not the excessive burden.

Potter Stewart:

Suppose it would hard — be hard to find a building that was not accessible to rodents, birds, and insects, the building itself.

Louis F. Claiborne:

Well, that is his second issue, as I put it.

It’s the appellee’s position is that every such building is.

We are in no position to debate the abstract question whether science has perfected a method of keeping all rodents, all birds, and all insects out of warehouses.

We do know that warehouses can be made more or less rat proof, perhaps all together bird proof, and somewhat insect proof.

The in —

Byron R. White:

Is there evidence (Inaudible) ways that he can pull away from that?

Louis F. Claiborne:

This — the —

Byron R. White:

At least for himself.

Louis F. Claiborne:

The food stubs, at least those which are packaged in paper bags and cotton bags and which are therefore particularly accessible to or inviting to the rodents and insects, can be segregated from the other foods and special care can be taken to prevent whatever rodents or insects do penetrate the warehouse from penetrating this special area.

There are methods of fumigation of insecticides which can control these pests even if they must enter the building itself.

In this —

Potter Stewart:

It’s a criminal statute.

Louis F. Claiborne:

That is true.

Potter Stewart:

You should indict under what, six counts or so?

Louis F. Claiborne:

Six counts.

Potter Stewart:

What penalties?

Louis F. Claiborne:

The — for a first offense, the maximum penalty is $1,000 or one year as imprisonment.

Potter Stewart:

Of course this is a corporate defendant or not?

Louis F. Claiborne:

This is a corporate defendant.

Incidentally, in my study of prosecution similar to this for seven months of the past year, and when I say similar I mean prosecutions in cases where the person storing food is charged with violating the Act because he held it in a building accessible to rodents or other pests.

There were 31 such cases in the period of seven months.

The penalties actually imposed, either on a plea of guilty or as a result of the verdict, in no case, involved actual imprisonment.

There were some suspended sentences.

There were a great many fines.

Potter Stewart:

Suppose in most cases, if not all, the defendants were corporate entities.

Louis F. Claiborne:

There are a great many cases in which the corporate offices are also individual defendants.

In this case, however, the only defendant is the corporation itself.

(Inaudible)

Earl Warren:

(Inaudible) criminal prosecution?

Louis F. Claiborne:

To some extent, as this Court has recognized, that the pure food laws as a whole do have something of that effect.

In Smith versus California or, quite recently, in 361 U.S., in distinguishing the standard — the constitutionally permissible standard in First Amendment cases and in this sort of case, the Court noticed that, I quote from page 152 of that opinion, “the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors.

In fact, an absolute standard which will not bear the distributor’s plea as to the amount of care he has used.

There is no specific constitutional inhibition against making the distributors of food to speak his senses of their merchandise.”

The same rationale, it seems to me, lies with the Dotterweich opinion and the Sullivan opinion.

But, here, we do not construe the statute as imposing an absolutely strict liability.

One might read the statute as warning a warehouseman that whenever he took in food that was likely to be attacked by rodents or other pests, he did so all together at his risks.

And, if in fact the warehouse could not be made rodent-free or pest-free, his only alternative was to refuse to store the food, perhaps ultimately forcing the manufacturer to package the product in a different way.

After all, the purpose of the statute is to protect the consumer who is to be guaranteed food which has not been contaminated.

But, we read the statute and the information in this case simply to require that all possible, reasonable measures be taken to make the building as inaccessible to pests as is possible.

Potter Stewart:

That’s not what the indictment lead you to believe, if you did.

It says that if you have a building which is, as in fact, accessible then you’re guilty.

That’s the presupposition of the indictment, isn’t it?

Louis F. Claiborne:

Well, I — some is — that may be one reading, Mr. Justice Stewart.

I suggest that it’s not unreasonable to add before the word “inaccessible” to rodents, to interpret that to mean more accessible than it could have been.

Louis F. Claiborne:

I also point out that the indictment, being in six counts and charging the contamination of several bags of each of the food stubs involved, indicates more than the penetration of one or two or a few pests because the evidence —

Potter Stewart:

What you’re saying in effect, as I understand it, is this, isn’t it, that it would be an affirmative defense to show the exercise of all the reasonable care that could be taken in keeping the food himself or aren’t you saying that?

Louis F. Claiborne:

I am saying that, at least for the purpose of this case.

This indict — this information, seems to me, doesn’t purport to charge anything more than a lack of taking all possible precautions.

The standard of care may be very hard but the impossible I don’t think is expected.

Potter Stewart:

And you think that would be a matter of defense?

Louis F. Claiborne:

Yes and, of course, it’s a matter of sufficiency of the Government’s evidence on the trial of this case, which has not been tried, to present a sufficient showing that possible precautions were omitted and, as one of the Justices point out, those precautions are not limited to keeping the pests out the building but to controlling them once seen, to inspecting the food regularly, to rotating it so as to eliminate the contaminated food and preventing it — preventing the contamination from spreading unnecessarily.

Arthur J. Goldberg:

(Inaudible)

Louis F. Claiborne:

The information, Mr. Justice Goldberg, does not merely charge that the building was inaccessible to pests.

It also charges that the appellee caused — perhaps I better read.

Arthur J. Goldberg:

(Inaudible) exposed to the contamination (Inaudible)

Louis F. Claiborne:

That is partly through storing it in an — in a building unreasonably accessible to rodents and other pests but that is as partly also because of insufficient measures taken to control pests once inside the building or, perhaps, merely by a question of where the food was stored within the building, not properly segregated.

This warehouse, for we all know, was not solely food warehouse and other goods would not have been endangered by the pests that did penetrate.

Arthur J. Goldberg:

(Inaudible) the characterization of what was charged.

The said action caused the said (Inaudible) and enforce it and it would be exposed.

(Inaudible) will be thereby exposed (Inaudible) in charge of putting it in a building inaccessible to rodents, birds, and insects and (Inaudible).

Louis F. Claiborne:

But —

Arthur J. Goldberg:

These are not in the general charge or some other way that you (Inaudible)

Louis F. Claiborne:

I must concede that that’s a possible reading, Mr. Justice Goldberg, but I would point out that the interpretation of the information is not before this Court.

The District Court construed the information and it’s on that construction that it dismissed the indictment.

And, I read District Court opinion as having construed the information to say that the food was held under insanitary conditions and, going on to say, that a mere passive holding of food is not one of the acts proscribed by the statute.

Arthur J. Goldberg:

(Inaudible) whether this information is (Inaudible).

Now, assuming that at that time (Inaudible).

Louis F. Claiborne:

But —

Arthur J. Goldberg:

(Inaudible) you still have before us (Inaudible)

Louis F. Claiborne:

Mr. Justice Goldberg, I think the decisions of this Court are clear that the Court, on a direct appeal of this kind of the Criminal Appeals Act, will accept the District Court’s reading and construction of the information and will not go behind it even though it would be wrong.

And, the only question before the Court is the construction of the statute on the basis of a reading of the information which, for purposes of the case, is accepted, and I do think it clear that the District Court read the information as we do.

Now, in any event, as I think I’ve said, the law does not require any guilty knowledge on the part of the warehouseman.

It requires him to inform himself.

If he fails to inform himself, it’s at his own risk.

Louis F. Claiborne:

There is a final issue in the case which is the question of whether a public warehouseman is amenable to the law at all.

We don’t view this as a very serious issue.

It seems to us that the statute is very plain.

It says, “while the food or other article is held for sale,” it does not say “while held for sale by the owner.”

Legislative history is equally clear that this statute was intended to apply to warehousemen generally, without any distinction between public and private warehousemen.

There is in principle — no basis for distinguishing between the two.

The purpose of the statute,. as this Court has repeatedly said, is to protect food from the moment it’s introduced into interstate commerce until the time that it’s delivered to the ultimate consumer.

Potter Stewart:

If I don’t — I — you don’t view this as very — this would question, you say, of what’s the problem.

It says it has to be held for sale.

Now, was this — there was this — was this food for sale or was it in the warehouses?

Louis F. Claiborne:

I take it, Mr. Justice Stewart, “it held for sale” is used, in our position, to “held for consumption.”

And, the big purpose of including —

Potter Stewart:

Well, not as for any other purposes other than sale.

Louis F. Claiborne:

Whether it’s held for — I — they may be a reading of “held for sale,” meaning in — with a view to a commercial transaction rather than to a gift, though, in other sections of the Act, it’s perfectly clear that the delivery, whether for pay or not, is nevertheless covered.

But, here, it seems clear that the reason for the provision “held for sale” is to exclude storage by the housewife in her own kitchen cupboard which would not be for sale but for consumption.

This is the meaning of the statute here.

I think it clearly means “with a view to its future sale, not necessarily by the holder but by someone else.”

Potter Stewart:

This was a public warehouse?

Louis F. Claiborne:

This was a public warehouse.

Potter Stewart:

I suppose it was the foods — these articles were being stored there —

Louis F. Claiborne:

Pending —

Potter Stewart:

By the — by the owner pending sale or whole sale.

Louis F. Claiborne:

Pending sale, or so alleged at least.

And so, we’re dealing only with the information pending sale of —

Potter Stewart:

And it was actually being held for storage.

It wasn’t on sale, was it there?

Louis F. Claiborne:

They were — they were being stored, true, but with a view to their ultimate sale by their owner after having been shipped in interstate commerce which, seems to us, is all the statute requires.

It would make no sense to hold the owner if he stores it in his own warehouse, but not to make the law applicable to food whilst if he chooses instead to store it in a public warehouse.

The purpose of the law, and this Court had said so at least twice, is to protect the food every moment between its introduction into interstate commerce and its delivery to the housewife.

Arthur J. Goldberg:

Mr. Claiborne, I was thinking back (Inaudible) never to hold the statute as constitutional.

Arthur J. Goldberg:

Instead, instruction must be applied.

Therefore, the information does not commit an offense in (Inaudible) inaccessible to rodents, birds, or pests is now susceptible to the (Inaudible) the statute applied to (Inaudible) the information.

Is that constitutional?

Louis F. Claiborne:

But I draw —

Arthur J. Goldberg:

(Inaudible) for us to interpret whether the information charged to the man.

Louis F. Claiborne:

Well, I draw Your Honor’s attention to the next paragraph in which the Court says “the Government contends that one of the purposes of Congress was to prohibit the holding of food after shipment in interstate commerce under insanitary conditions.”

And then, skipping the quotation, “this not only makes one holding such goods and ensure of it, it’s subjecting to criminal action.”

Apparently, accepting the Government’s view of the information, but I wouldn’t.

Even if I wrongly interpret the Court’s opinion and we must go back to the information, it would seem to me clear that the information fairly read charges.

First, that the food was held in a building which was more accessible to rodents, pests, birds than it should have been.

And, secondly, that the warehouseman did other acts, presumably failure to take precautions after the pests once entered the building, which exposed them to contamination.

And, that second —

Arthur J. Goldberg:

(Inaudible)

Louis F. Claiborne:

Well, Your Honor, it does say “and did cause that food to be exposed to contamination.”

Hugo L. Black:

Do you inject an ambiguity and you say that it was more accessible to rodents that it should have been?

What’s your standard on that?

Louis F. Claiborne:

I would say, Your Honor, that every possible precaution is expected, that the law imposes a very high standard of care on warehousemen.

Perhaps, it does not want to put warehousemen out of business, or prevent them from storing food, or even prevent them from storing food which is packaged in such a way that it is attractive to rodents.

But, certainly, it requires that every possible effort be made that all holes in the building through which rats and other pests could enter are closed.

Some of the injunctions, in the injunction cases in this area, delineate the action which the court seem to feel required that fumigation insecticides be used liberally inside the building, that those commodities which are particularly susceptible to attack by rodents be separated off, that special precautions be taken with respect to them, that they be inspected regularly so as to remove immediately any contaminated foods stubs and prevent the rest of the stock from being contaminated.

It is a failure to take all those necessary measures, which I think fairly read, this information charges.

William J. Brennan, Jr.:

Expert testimony is the standard generally followed by warehouses and buildings?

Louis F. Claiborne:

I frankly don’t know, Mr. Justice Brennan.

I would — i would think, perhaps, that that would certainly be relevant.

I wish to point out also, here in this case, that the indictment charges, the information charges, acts done over two periods, plain inferences that there are at least two inspections and that the conditions — insanitary conditions, as they were charged, were noted, first, as of August, the period before which the first four counts are involved, and then again in December.

It’s non —

William J. Brennan, Jr.:

Does this suggest that the Food and Drug has an inspection operation and staff for that purpose?

Louis F. Claiborne:

It is true.

It is the duty of the Food — the statutory duty of the Food and Drug Administration to carry out inspections of the warehouses.

William J. Brennan, Jr.:

Are there regulations governing?

Louis F. Claiborne:

There’s no regulation setting the standards for warehouses or — perhaps there should be.

Hugo L. Black:

If there had been a trial of the duty, the sort of charge would’ve been sufficiently charged if they could find him guilty by quoting the language of the charge that calls the number of bags of said food to be held in a building that was accessible to rodents and birds, insects and did cause the food to be exposed to contamination by rodents, birds, and insects?

Would that be a good charge?

Louis F. Claiborne:

I should think that the Court should go on to explain that the warehouseman was expected to do only that which could actually be done.

The fact that one rat entered the warehouse is not the sort of proof which we would think sufficient to justify a verdict and the Judge, presumably, should so-advice the jury.

Byron R. White:

Wouldn’t have District Court been saying (Inaudible) is the indictment of charge only that the food was held in the warehouse and became contaminated?

Louis F. Claiborne:

I think that is correct, Mr. Justice White.

Byron R. White:

And — and that — and that is what the indictment charges, except to the office that says it’s held in a warehouse in a manner that would expose it to contaminants.

Louis F. Claiborne:

My difficulty seems to be that the information charged too much.

If it had simply stated the conclusion —

Byron R. White:

That it was contaminated.

That it was held and became contaminated.

Louis F. Claiborne:

Right.

The — but the basis of the decision of the District Court is simply that the passive act of holding is not condemned.

Byron R. White:

Even though contamination occurs during the holding.

Louis F. Claiborne:

And even though there’ll be some failure to take necessary action but, by using the rule of analogy, the court thought some affirmative act was required.

In fact, they were clearly — it was clearly wrong.

I should point out, too, that possibilities of abuse of this statute have come to this Court’s attention in at least two cases.

Both instances, most recently in the Sullivan case, the Court, through Mr. Justice Black, said “it may now be noted that the administrator of the act is given broad discretion, broad enough undoubtedly to enable him to perform his duties fairly without wasting his efforts on what may be no more than technical infractions of law.”

We assume in this case, also, there is more than a technical violation.

Earl Warren:

Mr. Taylor.

James S. Taylor:

Mr. Chief Justice and may it please the Court.

It appears to me that the argument that has been made by the solicitor’s office conceives almost every point that we made in our brief and indicates to me most strongly that the District Court was correct in its ruling and holding in this particular case.

The first and basic disagreement that we have had with the Government in this entire case is over the question of what illegal act was alleged to have been committed by this defendant.

And the only illegal act alleged in the information is the holding of food in a building that was accessible to pests.

We’ll call them pests instead of the language that you used on the information.

(Inaudible)

James S. Taylor:

And that the — that is part of the statute.

Byron R. White:

What you need to point out —

James S. Taylor:

Actually, they were shipped in interstate commerce.

James S. Taylor:

They proceed —

Byron R. White:

It’s quite a major difference.

James S. Taylor:

Excuse me?

Byron R. White:

It seems to me to be quite a major difference that the —

James S. Taylor:

Well, I will say I shorted my sentence there, Your Honor.

What I meant to say is that the food was held in a building that was accessible to pests and, as a result of that holding, became contaminated or adulterated.

Byron R. White:

Yes.

James S. Taylor:

They have not alleged — or the Government has not alleged that the building was insanitary and that’s where our basic disagreement has been throughout this whole proceeding.

It’s the disagreement that the district judge had with this particular information, and the district judge has said that the information alleges that adulteration was caused by the defendant’s act of holding food in its warehouse which was accessible to pest.

I would call Your Honor’s attention to the fact that the statute requires two things.

There are two elements in the statute to require conviction.

The first element is the doing of an act.

The sec — second element is the result — a prohibited result of that particular act.

You divide the two.

We concede that they’ve alleged adulteration.

There’s no question but what the information alleges that the food was in fact adulterated.

So, the only question is whether or not the act which they have alleged that we committed is a crime.

And, the only act that they’ve alleged that we committed was holding food in a building that was accessible to pests, just as this building is accessible to pest.

If the door is open, a pest can come in.

Byron R. White:

You don’t — you say that the statute doesn’t cover or make a crime the holding of food in a public warehouse and permitting it to become insanitary.

James S. Taylor:

Not per se, Your Honor.

That is correct.

That is —

Byron R. White:

That isn’t enough?

James S. Taylor:

The permitting of food to become contaminated where you can’t do anything to prohibit it or prevent it, I say, is not a crime under the statute.

Now, what the solicitor has argued here is certain exceptions that he conceives in his mind to the statute certain defenses that he feels are built into the statute.

Perhaps he feels so, but the district judges throughout the country don’t feel so because the statute doesn’t say it.

Arthur J. Goldberg:

(Inaudible)

James S. Taylor:

Well, Your Honor, I will start my answer to your question by saying that it is a passive act.It’s an in-act, if we could use that expression.

But, that it is the type of thing that can’t be prohibited.

James S. Taylor:

It can’t be prevented.

If we hold — if we hold food — if I hold food here on this podium and a roach gets into it, it’s something I couldn’t prohibit.

The building is not insanitary.

Arthur J. Goldberg:

The Congress (Inaudible) have a big mess (Inaudible) criminal act (Inaudible) inaccessible throughout the (Inaudible)

James S. Taylor:

I don’t believe —

Arthur J. Goldberg:

(Inaudible)

James S. Taylor:

I don’t think that it would be, as such, unconstitutional.

Arthur J. Goldberg:

(Inaudible)

This is one way of saying that that (Inaudible)

James S. Taylor:

Your Honor —

Arthur J. Goldberg:

Is that the position you find —

James S. Taylor:

I think it’s not sufficiently defined if you construe the statute.

I don’t construe the statute to say that the mere passive possession of food is an act which is prohibited under the terms of the statute.

That goes to the first part of my argument.

Byron R. White:

No matter what happens to the food.

James S. Taylor:

No matter what happens to it, so long as I don’t do anything to it, that I’m not the producer of this.

Byron R. White:

Even though you —

James S. Taylor:

In other words, we’ve got an intervening third party or intervening force coming —

Byron R. White:

Well, even though — even though you don’t take any action to prevent something from happening.

James S. Taylor:

I don’t — i don’t say that, Your Honor.

I think that warehousemen, I agree with the solicitor that warehousemen have a very strong duty —

Byron R. White:

To keep the food safe?

James S. Taylor:

To keep the food as clean condition, the warehouse sanitary and the — and to keep rodents out as best as humanly possible to do so.

And, that’s what we’ve done and I think it’s — of course, we’re here not on the proof, and we’re here on whether or not the information, as stated, is sufficient to state a crime.

Now, under this information, all the Government has to prove to convict these people is, number one, that the building was in fact accessible to rodents, which it is.

I mean, there’s no question about it.

This building we’re in today is accessible to rodents.

And, number two, that the rodents infested the food.

Byron R. White:

And the food became contaminated.

James S. Taylor:

Pardon?

Byron R. White:

And the food became contaminated.

James S. Taylor:

The food became contaminated.

That’s correct.

And — and with those two elements to the crime, that’s all the Government has to prove not withstanding the argument that’s been made here today.

I think where the government — where the information is failing —

Byron R. White:

Well, I’m not sure if that so.

That isn’t what — we were not going to decide that here.

We’re going to — we’re going to state that statute permits — if we decided against, we’d say the statute permits or that the Court was wrong below in construing the statute the way it did, but it does cover holding food under some circumstances.

James S. Taylor:

But that would — you are saying that would be your feeling.

Byron R. White:

No, but I mean that we don’t necessarily have to.

To decide for the Government, we don’t necessarily have to say that that’s all the Government’s proof needs to consist of.

James S. Taylor:

Well, that’s all the information has charged, Your Honor.

Earl Warren:

(Inaudible)

Byron R. White:

Well, the information —

James S. Taylor:

Pardon?

Byron R. White:

— will be bad then.

That they did cause certain food to be exposed to contamination by rodents, birds, and insect.

James S. Taylor:

By —

Hugo L. Black:

And they’d have to prove that.

James S. Taylor:

By holding it in the — that phrase, Your Honor, is modified, as I read the information and as the district judge read the information, it’s modified by the first part of that where —

Hugo L. Black:

By holding it but, well, it doesn’t make any difference.

James S. Taylor:

Excuse me?

Hugo L. Black:

I don’t get it.

I don’t quite understand why they can’t permit the offense of holding it if, by hoarding it, they cause it be exposed to contamination, the same as all the — certainly, while moving it, they do that.

James S. Taylor:

Well, Your Honor, I think that, in reading the information as the district judge read that — the information, because the number of bags to be held in a building that was accessible to rodents and did, and this is what my reading of it and the way that my argument has been based in it, and it thereby caused the food to be exposed.

Now, if that is not the proper reading, it’s my contention and I would contend that, in order to charge a criminal act, they can’t simply say that we caused the food to be exposed without saying how we caused it to be exposed or what act we committed to cause it to be exposed.

Hugo L. Black:

(Inaudible)

James S. Taylor:

That’s correct and I think that’s the danger of the Government convention here.

Hugo L. Black:

(Inaudible)

James S. Taylor:

Yes, sir, and I’m not contending here that there’s — I have contended that they — an intentional act is necessary or no holding under known insanitary conditions.

James S. Taylor:

That was the Government’s concession in its brief.

And when the solicitor argues that I’m conceding that point or he’s conceding that point, that he was wrong in that point.

I never took the position and I don’t now take the position that the statute requires a holding under known insanitary conditions.

I think if it was charged in this information that the man held his food under insanitary conditions, which is quite a different thing, I’m saying that he held it in a building that was accessible to pests.

Hugo L. Black:

(Inaudible) that afternoon would be met by — it could be properly raised what you’re raising and focusing on now after trial and the court has charged the jury.

I would think that you would not be required to give it a technical construction that, such as you indicate, it should be given.

James S. Taylor:

Well, I think that in the construction of the information such as this, when we’re preparing for trial under this information, the information alleges that the food was held in the building accessible to pests.

We can’t deny that.

That’s — that’s true.

If it alleges that the —

Hugo L. Black:

How do we know — how do we know as a matter of common knowledge that it couldn’t have been made inaccessible to rats?

Aren’t some buildings rat-proof?

James S. Taylor:

I sincerely doubt it, Your Honor, if you —

Hugo L. Black:

Or maybe not, but —

James S. Taylor:

If you can open a door, an insect can fly in.

If you open the warehouse door, a bird can fly through a door, an insect can come —

Hugo L. Black:

That would hardly — that would hardly one bird could glide through —

James S. Taylor:

It would —

Hugo L. Black:

And maybe it might not be enough to terminate them all.

James S. Taylor:

I know that it would —

Hugo L. Black:

It might not be right.

James S. Taylor:

It may possibly — that’s my point though, Your Honor.

It may possibly contaminate the food.

That the Government doesn’t take the position it — that this building is insanitary.

Now, I think if there was an allegation and a required proof of an insanitary condition, that’s one thing.

That’s an entirely — that’s actually what the Government has taken the position they’ve taken in their brief, but they haven’t alleged it and the District Court felt that they hadn’t alleged it and he said that he was not, in his opinion, he says he was not going to hold these people guilty of a crime for having a building that was simply accessible to pests.

Hugo L. Black:

Have you filed a bill or asked for a bill of particulars?

James S. Taylor:

No, Your Honor, I didn’t.

I filed a motion to dismiss on the insufficiency of the information.

Hugo L. Black:

Well, you could easily do that, of course.

Hugo L. Black:

I’m just wondering if this is — this isn’t a broad enough or narrow enough information to justify the case going to trial and having these issues tried out.

James S. Taylor:

Well, I think at that point, Your Honor; we’re getting into a construction of the information which, on direct appeal, actually is not within the prerogative of this Court to construe the information.

Hugo L. Black:

That’s involved somewhat in the argument you’re making?

James S. Taylor:

It — it — and —

Hugo L. Black:

— argument you’re making?

James S. Taylor:

Yes sir and it —

Hugo L. Black:

— argument you make.

James S. Taylor:

It’s a very confusing thing to try to distinguish between when you’re construing a statute and when you’re construing the information, but —

Byron R. White:

I don’t (Inaudible) the Government has to prove insofar as your (Inaudible)

James S. Taylor:

Your Honor —

Byron R. White:

And maybe the Government will be — might not get — might not make out its case, make out a jury case, and stop this showing that you held the food and that the 10 bags of something came out of there contaminated.

They just not — might not make their case out that way.

James S. Taylor:

Oh, under the information if you sustain the information.

Haven’t you said that that would constitute a crime?

William J. Brennan, Jr.:

Well, do you — I’m looking at page 3.

I don’t know whether there —

James S. Taylor:

Page 3 of the record, Your Honor?

William J. Brennan, Jr.:

Yes, I am.

That’s Count 2.

The lower paragraph at page 3, “That said act of causing said food to be held in said building, as the court said, and to be exposed to contamination.”

Would it be just enough to show that the food was in the building and was contaminated under that allegation?

Says “causing to be held.”

James S. Taylor:

Caused it — caused it to be held —

William J. Brennan, Jr.:

And to be exposed to contamination.

I would suppose it would be a matter of proof of how you caused it to be held and to be exposed.

James S. Taylor:

Well at that — at that point Your Honor, it would seem to me that you got the words as aforesaid following that.

William J. Brennan, Jr.:

Yes.

James S. Taylor:

And then you go back to where it is a foresaid and they —

William J. Brennan, Jr.:

Well, when I get back to aforesaid —

James S. Taylor:

It is a conjunctive at that point.

James S. Taylor:

They have joined — they get two together to make a single offense or, in effect, they’re saying thereby the food was caused to be exposed.

(Inaudible)

James S. Taylor:

Yes, that’s — that’s properly alleged.

I’ve got no — no complaint over that.

It’s the —

Arthur J. Goldberg:

(Inaudible)

James S. Taylor:

Before we —

Arthur J. Goldberg:

(Inaudible)

James S. Taylor:

Your Honor —

Arthur J. Goldberg:

(Inaudible)

James S. Taylor:

I think the — the thing that’s wrong basically is that it would make —

Arthur J. Goldberg:

(Inaudible)

James S. Taylor:

No.

Arthur J. Goldberg:

(Inaudible)

James S. Taylor:

Not unreasonably accessible.

Arthur J. Goldberg:

There’s nothing you could do about it (Inaudible)

James S. Taylor:

That’s correct Your Honor.

But I think to follow that, if — if that is a crime it would follow that to its logical conclusion.

If you have a refrigerated warehouse and you’re holding food subject to spoilage, the refrigeration plants breaks down.

The food spoils.

You’re then guilty of a crime.

Arthur J. Goldberg:

You may be if they have an alternate refrigerator.

James S. Taylor:

And the alternate breaks down and then you’re guilty of a crime, but this could go on adding some item and it —

Arthur J. Goldberg:

(Inaudible)

James S. Taylor:

It’s such an extreme position that I don’t think that we can assume that Congress intended to go that far to make every one of us guilty of a crime and by inadvertence.

Arthur J. Goldberg:

(Inaudible)

James S. Taylor:

No Your Honor, I’m —

Arthur J. Goldberg:

(Inaudible)

James S. Taylor:

I — I think this.

I think it takes more and I think the statute when properly construed takes more than a mere passive holding of food were you haven’t done anything, where you haven’t failed to take a precaution.

James S. Taylor:

I think the gist of this is really in the argument that wasn’t even made by the solicitor and I haven’t got a great deal of confidence in the reasoning behind it, but if you take the statute as a whole in its context, it requires the adulteration, mutilation, several other active verbs or the doing of any act, doing of an act.

Not the occurrence of an act, the doing of an act.

And, that implies some affirmative action, some conscious act in any event, a conscious act.

Perhaps the knowing, knowingly putting food into an unsanitary place, that maybe broad enough but to inadvertently have an insect crawl into your building and to make you guilty of a crime, this is not going to affect or would never affect the public health.

The — the injunction provisions of the statute are very broad.

The — the seizure provisions are extremely broad.

These are the places to — where this could be enforced where the criminal aspect of it doesn’t come into it.

We’re talking about $1,000-fine for each offense.

Now, the second offense in holding this food in a building which is accessible to pests would be $10,000 and 10 years in jail for each count.

That would put this man in jail, if it was an individual, for 60 years for simply holding this food in a warehouse that may be accessible to pests.

And, I can’t conceive that Congress intended that.

I don’t believe that that’s the proper construction of the Act.

I think that some conscious activity, guilty knowledge — willful violation I don’t think is required under the Act, but I do believe a conscious act is required.

Earl Warren:

What do you think should be included in order to make this a valid indictment?

James S. Taylor:

To make it a valid information, Your Honor?

Earl Warren:

Yes.

James S. Taylor:

Well, in listening to the Government’s argument and I believe, if I’m not mistaken, their feeling and mine are pretty much the same on this oral argument, but I think that what the information should charge is an act of omission.

It should charge that the defendant failed to keep his warehouse as clean as possible under all standards or failed to do this or failed to do that to make his warehouse clean.

But, to simply say that the building is accessible to pests, it just — it’s just inconceivable that the mere accessibility with no action on the our part, no failure of duty and, under his reasoning, even if we have taken every single precaution, as we have, and had regular extermination, as we do, in spite of all these precautions, there’s nothing we can do to prevent the criminal penalties under the statute if the instruction that this information is proper.

I think the — the charge or the act that must be charged is an act of omission, a failure to meet the duty of due care or proper care, if we could use the term, in other words, basically saying what we haven’t done — telling us what we haven’t done.

That’s the gist of the argument.

On the — one other point that has been raised and that was the question of whether or not the statute would apply to a person who was simply holding the food as opposed — as a possessor of food rather than as an owner.

This is really going to the common understanding of the terms and interpretation of the statute.

If you read the statute, it says that the food must be held for sale and this Court itself has recognized and granted in tax cases, but the term “hold” is commonly understood to mean “to own or to have some proprietor interest in it, some control over it.”

Now, I concede with the Government that the owner of this food would be guilty of a crime for placing it in an insanitary place, but the person who simply holds it, who takes it in, who doesn’t know whether it’s for sale or whether it’s not for sale, he doesn’t have any control over or knowledge of what use that’s going to be made of the material and why he should be made guilty of a criminal act simply by another person changing his mind, changing an intention.

And well, we’ll certainly concede in a — concede readily that the technicalities of property law should not govern the protection of the public health.

The seizure of these foods would certainly protect the public health as much as anything else.

Actually, In this case here the food was promptly seized.

It wasn’t even seized.

It was promptly destroyed voluntarily that they — this is common practice in warehouses.

James S. Taylor:

Anytime the food is found to be contaminated, it’s seized.

It’s destroyed.

(Inaudible)

James S. Taylor:

Your Honor, it was rice in one case.

I think there was some hamburger mix.

I’m not really sure what hamburger mix is, but I think it’s a meal that goes into hamburger.

They are packaged in small packages — retail-sized packages apparently.

That, I submit to Your Honors, that this is — while the Gov — I don’t say that the Government could not have stated a case against these people.

They may have been able to state a case, but they have not stated it in the information the way it was found.

And, on that reasoning — on the reasoning of the district judge where he said that the information alleges only that the building was accessible to pests, that that was not an act that was a crime.

I submitted that the District Court should be affirmed.

Earl Warren:

You don’t contend that the statute itself is too vague to support an indictment, do you?

James S. Taylor:

Only, Your Honor, if it is construed in such a way that this particular inactivity for simply holding in a building accessible to pests, if that’s a crime, I don’t see how a man of common intelligence reading the statute can know in advance what course of conduct he can follow to avoid criminal penalties.

And, I think — and to that — if the Court felt that this information states a crime under the Act, I think, under those circumstances that the statute would be too vague and indefinite for enforcement as a criminal statute.

Byron R. White:

Well, was your motion — your motion below was that the acts charged in the indictment didn’t constitute a crime under the statute?

James S. Taylor:

Yes, sir.

That was part of the motion.

Byron R. White:

And the District Court said that it didn’t because it just didn’t happen to reach holding and it only reached things connected with labeling.

James S. Taylor:

No.

The District Court didn’t say that, Your Honor.

The District Court said that it did not reach the allegation that the adulter — that the act of holding food in a warehouse which was accessible to pests was a crime.

It didn’t — it didn’t say that this statute applied only to acts relating to labeling.

Actually, it rejected my argument below which I made with as much force as I could that the Doctrine of Ejusdem Generis would apply here.

And, the court —

Byron R. White:

So you don’t make that argument here?

James S. Taylor:

Pardon?

Byron R. White:

You don’t make that argument here.

James S. Taylor:

I make it, Your Honor, only to the extent that I did just a moment ago that, in context of all the active verbs that are made up into the statute, the adulteration, mutilation, obliteration, all of these implies some affirmative action.

That’s the only application I have.

Actually, the District Court rejected that argument when it said that the rule is applicable only where the intent is not discoverable from statutory language and wouldn’t — he wouldn’t use it to — under the Alpers case, he wouldn’t use it to defeat the purpose of the legislation.

Byron R. White:

Fundamentally, you say the statute really makes a crime out of the impossible.

James S. Taylor:

That’s basically correct, Your Honor, yes.

I would say that we have no ascertainable standard by which we can govern our lives and know whether or not we’re guilty of a crime and prevent it, but notwithstanding any precaution that we take if this information is good, notwithstanding what precautions are taken where —

Byron R. White:

There is certainty (Inaudible)

James S. Taylor:

Well, that there would be certainty in it, Your Honor, but I don’t think there would be clarity to the average reader.

Byron R. White:

Unless (Inaudible) from getting dirty.

James S. Taylor:

Yes, sir.

I — I think that it would not be clear to the average reader of the statute that that was what it covered.

Byron R. White:

Yes.

James S. Taylor:

And maybe — we as lawyers can sit here and analyze each word and come up with a result.

But under the circumstances, I don’t think the average lay person reading that statute could conceivably think there was absolute criminal liability imposed.

Earl Warren:

Well, we’re done with the closing argument.

I don’t believe we’ll start the next case now.