8001. Action to enjoin and restrain the interstate shipment of adulterated butter.
U. S. v. Swift & Co., a corporation, and H. N. Bates.   Tried to the court. 
Injunction granted.    (Inc. No. 43.)
COMPLAINT FILED : December 19, 1942; amended April 8, 1943, Middle District 
of Georgia.
plaint was filed the defendant had been manufacturing, preparing, packing, 
shipping, and delivering for shipment, and had caused to be prepared, packed, 
shipped and delivered for shipment in interstate commerce, quantities of butter 
that was adulterated in the following manner: Section 402 (a) (3), (1) the 
product consisted in whole or in part of a decomposed substance by reason of 
the use in its manufacture of decomposed and putrid cream; (2) it consisted 
in whole or in part of a filthy substance by reason of the presence of mold, 
rodent hair fragments, maggots, feather parts, mites, insects, and such insect 
parts as fly fragments and larva fragments; and, Section 4021 (a) (4), it 
had been manufactured and prepared under insanitary conditions whereby it 
may have become contaminated with filth, since in its manufacture the clean 
and fresh cream was mixed with the filthy, decomposed, and putrid cream, 
with cream that contained mold, rodent hair fragments, maggots, flies, feather 
parts, mites, and other insects and insect parts, all of which was run through 
the same filter and through the same churn; and in the cold storage room 
the product was accessible to rodents, which gnawed the boxes in which the 
butter was packed for shipment.
PRAYER OF COMPLAINT: That a preliminary injunction issue restraining the 
defendants from commission of the acts complained of and that, after due pro- 
ceedings, the preliminary injunction be made permanent.
DISPOSITION: December 19, 1942. The defendants were ordered to show cause 
why a preliminary injunction should not issue as prayed. They filed a motion 
to strike and a motion for a more definite statement or bill of particulars. On 
April 8, 1943, an amended complaint was filed, setting out the allegations of 
adulteration with greater particularity. The defendants having filed an answer 
denying the adulteration charges, the case came on for trial before the court on 
December 13, 1943. The court, after hearing the evidence and arguments of 
counsel, took the case under advisement, and on December 31, 1943, made the 
following findings of fact and conclusions of law: 
DEAVER, District Judge:
FINDINGS OF FACT
"Swift & Company is a corporation with an office, agency, and place of busi- 
ness in Macon, Bibb County, Georgia.
"Between October 10,1940 and December 19,1942, the Macon, Georgia, branch 
of Swift & Company was engaged in manufacturing butter, some of which was 
shipped in interstate commerce.
3.
"During said period Swift & Company shipped in interstate commerce butter 
manufactured from cream, some of which at times had in it rodent hair, feather 
parts, flies, maggots, and other such filth, and some of which was decomposed 
and contained mold.
4.
"The pure and clean cream in the process of manufacture was mixed with the 
decomposed cream and the cream which contained mold, rodent hair, feather 
parts, flies, maggots, and other such insect filth, and all passed together through 
the filters, was then pasteurized through the same pasteurizer, held in the same 
storage vats, and churned together in the same churn.
"The plant itself is sanitary and the equipment is standard and satisfactory.
6.
"Some of the butter manufactured from said cream, in spite of filtration 
through standard filters, contained insect fragments and, in minute quantities, 
substances which came from broken or partially dissolved insects, and materials
which had been a part of the decomposed cream, and mold in such quantities 
that in ten instances out of fourteen, where the butter was microscopically 
examined for mold, 100% of the microscopic fields examined by the Wildman 
Method were found to contain mold.
7.
' There is a general correlation between the microscopic mold parts found in 
butter and the quality of the cream from which the butter is produced. The 
presence of microscopic mold in butter in excessive quantities may be accepted 
as an indication that the cream from which the butter was made either con- 
tained filth or was to an extent decomposed. Mold in butter, therefore, is 
relevant evidence to be considered along with all the other evidence as to the 
condition of the cream, but it is not necessary in this case to find just what 
weight should be given to such evidence.
8.
"Such butter so produced by Swift & Company at its Macon Plant was filthy 
and unfit for food.
9.
"Swift & Company, for a number of years, has engaged in a nation-wide 
program of cream quality improvement and has advocated quality improve- 
ment in its dairy products.
10.
"H. N. Bates, the Macon Manager of Swift & Company during most of 1942, 
failed to carry out fully the instructions of the management of Swift & Com- 
pany with regard to the cream quality improvement program in the State of 
Georgia and the making of mold tests upon the cream from which butter was 
made at the Macon plant.
11.
"In October, 1942, partially as a result of requests on the part of Swift & 
Company, the newly organized Dairy Department of Georgia Agricultural 
College began to interest itself in a cream quality program within the State 
of Georgia, and in the latter part of that year, also partially through the 
efforts of Swift & Company, the Georgia Butter Manufacturers' Association 
was organized and began to participate in a general program of cream quality 
improvement within the State.
12.
"After the inception of such program, experts and other representatives of 
Swift & Company's Cream Improvement Department did active field work in 
furtherance of cream quality improvement in Georgia.
13.
"As a result of all of these efforts, the quality of cream being received at 
the Macon plant of Swift & Company in the latter part of 1943 and the butter 
produced during that period showed a marked improvement over that pro- 
duced at the times referred to in the complaint. The butter now scores 89 
and 89%.
14.
"W. W. Joyner, the present Manager of the Macon plant of Swift & Com- 
pany, has actively participated in this field work and in the Georgia cream 
quality improvement program.
15.
"With a continuation of the work being done by the University of Georgia 
and the members of the Butter Industry of Georgia, continued improvement in 
cream quality should result and a higher quality of commercial butter be 
produced in the State of Georgia, especially if they had the cooperation of
the State Agricultural Department. However, it does not appear from the 
evidence that the State Agricultural Department is taking any active part in 
the Georgia cream quality program.
16.
"Cream used at Swift's Macon plant is produced in the main by small pro- 
ducers scattered over a wide area. It is held generally for about a week before 
it is delivered to the plant. The conditions under which it is produced and 
held are such that almost inevitably a large part of it will contain insects 
and become to some extent decomposed. Without the full cooperation of 
the State Agricultural Department, it is not likely that sufficient pure, clean 
cream can be had from which to make butter in commercial quantities lawful to 
be shipped in interstate commerce. If all the cream in the state went to 
interstate shippers of butter, they could require the production of clean cream 
simply by rejecting all bad cream. But as long as bad cream subject to be 
rejected by interstate manufacturers can be sold to intrastate manufacturers, 
the cream situation will probably remain bad. At such time as state law, 
strictly enforced, may require a high standard for cream, no bad cream can 
be sold in the state and then conditions of production and manufacture will 
change. Until that time arrives Swift & Company cannot force the produc- 
tion of clean cream by any amount of good faith or effort and, while the 
cream quality program, if continued, will no doubt improve cream conditions, 
it will not likely cure them. These findings are made only as touching the 
necessity for an injunction and as a basis for the exercise of a discretion in 
granting or denying an injunction.
CONCLUSIONS 0'F LAW
1.
"This Court has jurisdiction of the parties and of the subject matter of this 
case.
2.
"Congress intended that the word 'Filthy', as used in the Act, should be 
construed to have its usual and ordinary meaning, and should not be con- 
fined to any scientific or medical definition.
"It is not necessary, in this case, to adjudicate the legal effect of mold 
alone in butter.
4.
"In spite of the improvement which has been shown in the quality of cream 
produced in Georgia and of the butter now being manufactured at the Macon 
plant of Swift & Company, it does not appear from the evidence that, under 
the present conditions existing in the Georgia Cream Industry, other and 
further adulterations can adequately be prevented by the defendant, Swift & 
Company. Particularly may that be true so long as the State Agricultural 
Department takes no part in the program.
5.
"The butter referred to in the findings of fact was adulterated within the 
meaning of Title 21, Sec. 342 (a) (3), in that it consisted in part of a filthy 
and decomposed substance, and was unfit for food.
6.
"Plaintiff is entitled to an injunction as prayed."
On December 31, 1943, judgment was entered ordering that "the defendants, 
H. N. Bates and Swift and Company, a corporation, all of its officers, repre- 
sentatives, agents, employees and servants, and all persons acting or claim- 
ing to act on behalf of or under the defendants, be and they are perpetually
enjoined and restrained under the provisions of Sec. 332, U. S. Code, Title 
21, from shipping in interstate commerce, in violation of Sec. 331 and Sec. 
342 (a) (3), U. S. Code, Title 21, adulterated butter manufactured or to be 
manufactured in its Macon, Georgia, plant."