24807. Alleged Adulteration of canned tuna. U. S. v. 200 Cases of Canned Tuna. 
Tried to the court and a jury. Verdict for claimant. Judgment re- 
leasing goods and taxing costs against Government. Appeal by Gov- 
ernment as to latter provision. Decree modified by striking provision 
of judgment taxing costs against Government. (F. & D. no. 32552. 
Sample nos. 60762-A, 60765-A.)
On April 14, 1934, the United States attorney for the Western District of 
Washington, acting upon a report by the Secretary of Agriculture, filed in the 
district court a libel praying seizure and condemnation of 200 cases of canned 
tuna at Tacoma, Wash., alleging that the article had been shipped by the Dyson 
Shipping Co., on or about March 19, 1934, from San Francisco, Calif., into the 
State of Washington, and charging adulteration in violation of the Food and 
Drugs Act. The article was labeled in part: "Amocat Brand Tuna * * * 
distributed by West Coast Grocery Company, Tacoma, Washington."
The article was alleged to be adulterated in that it consisted in whole or in 
part of a decomposed animal substance.
On April 4, 1935, the French Sardine Co., Inc., having appeared as claimant 
for the property, the case came on for trial before the court and a jury. Evi- 
dence, oral and documentary, having been introduced and arguments of counsel 
heard, the jury on April 9, 1935, returned a verdict for the claimant. On April 
16, 1935, judgment was entered ordering that the product be surrendered to the 
claimant, and that costs be taxed against the Government. Appeal was taken 
to the provision of the judgment taxing costs against the Government. On 
December 2, 1935, the Circuit Court of Appeals for the Ninth Circuit handed 
down the following decision striking from the judgment the provision taxing 
costs against the Government:
WILBUR, Circuit Judge: This action was begun by a libel in rem against 200 
Cases of Tuna which were alleged to be adulterated, as that term is defined in j 
§8 par. 6, T. 21 USCA, being §7, par. 6, of the Food and Drug Act of June 30, 
1906. The French Sardine Company appeared as owners thereof and denied 
the truth of the allegation contained in the libel. The issue of fact was sub- 
mitted to a jury which returned a verdict in favor of the claimant The court, 
in entering judgment denying condemnation, included costs amounting to $141.38. 
The Government appeals from this judgment.
It is conceded on this appeal that judgment for costs does not lie against the 
United States unless specially authorized by statute. This well known and 
long established rule has been recently stated by the Supreme Court in U. 8. v. 
Worley, 281 U. S. 339, 344, and by this court in V. S. v. Knowles Est., 58 F. (2d) 
718. The appellee, however, contends that §10 of the Food and Drug Act (34 
Stat. 768, 771, 21 USCA §14), does contain such statutory authority in the last 
sentence thereof, which is as follows:
The proceedings of such libel cases shall conform, as near as may be, to the pro- 
ceedings in admiralty, except that either party may demand trial by jury of 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 appellee claims that as in an admiralty proceeding costs may be awarded 
against the United States (Suits in Admiralty Act, 41 Stat. 525-528; 46 USCA 
§§741-752; John Shetcan & Sons, Inc., v. U. 8., 267 U. S. 86, 45 Sup. Ct. 238). 
it follows that the allowance of costs is proper in the case at bar because the 
allowance of costs is a part of "the proceeding in admiralty" which is to be 
conformed to in the proceedings upon a libel under the Food and Drug Act 
(§10), supra. The Supreme Court has not spoken on this exact question, but in 
the case of 443 Cans of Frozen Egg Product v. U. 8., 226 U. S. 172, that court 
said: "We do not think it was intended to liken the proceedings to those in 
admiralty beyond the seizure of the property by process in rem, then giving 
the case the character of a law action, with trial by jury if demanded and 
with the review already obtaining in actions at law."
While the right to costs is ancillary to the judgment, it is a substantive right 
and not a mere matter of procedure. As stated in Erwin v. U. 8., 34 Fed. 470, , 
"In its general acceptation 'proceeding' means the form in which actions are i 
to be brought and defended, the manner of intervening in suits, of conducting 
them, the mode of deciding them, of opposing judgments and of executing. 
Ordinary proceedings intend the regular and usual mode of carrying on a suit 
by the due course of common law." People v. White, 14 How. Practice (N. Y.) 
498.
The distinction between a right to costs and the procedure for the enforce- 
ment of that and other rights, is pointed out in Fargo v. Helmer (N. Y.), 43 
Hun. 17, 19 (50 Sup. Ct. Bep. 17) where the court, quoting Judge Duer in 
Rich v. Husson, 1 Duer 617: "The rules by which proceedings are governed are 
rules of procedure; those by which rights are established and defined, rules of 
law. It is the law which gives the right to costs and fixes their amount. It 
is procedure which declares when and by whom the costs to which a party 
has a previous title shall be adjusted or taxed and when and by whose direction 
a judgment in his favor shall be entered." The right to costs is not a question 
of procedure but is a substantive right.
If the proper interpretation of ?10 of the Food and Drug Act, supra, were a 
matter of doubt that doubt must be resolved in favor of the government. As 
stated by the Supreme Court in Davis v. Corona Coal Co., 265 U. S. 222: 
"* * * The United States should not be held to have waived any sovereign 
right or privilege, unless it was plainly so provided."
The decree is modified by striking therefrom the judgment for costs and 
as so modified is
Affirmed.
W. R. GEEGG, Acting Secretary of Agriculture.