14774. Action to enjoin and restrain the interstate shipment of milk and milk products. U. S. v. Adler's Creamery, Inc., Samuel Adler, Inc., and Samuel Adler. Tried to the court. Verdict for the Government. Injunction granted. (Inc. No. 110.) COMPLAINT FILED: October 15, 1945, Southern District of New York, against Adler's Creamery, Inc., Fort Plain, N. Y., Samuel Adler, Inc., New York, N. Y., and Samuel Adler, president of both corporations. NATURE OF CHARGE: That the defendants had been and were introducing and delivering for introduction into interstate commerce, milk and milk products which were adulterated as follows: Section 402 (a) (3), the articles consisted in whole or in part of filthy substances; and, Section 402 (a) (4), they had been prepared, packed, or held under insanitary conditions whereby they may have become contaminated with filth. PRATES OF COMPLAINT : That the defendants be perpetually enjoined from com- mission of the acts complained of. DISPOSITION : The case came on for hearing before the court, and on February 8, 1946, the court handed down the following opinion, findings of fact, and conclusions of law: CAFFEIN, District Judge: "The record is too voluminous to permit detailed discussion of the issues. The allegations of paragraphs 1 to 5 of the complaint are not disputed. However, by stipulation (Exhibit 23), the first named defendant (Adler's Creamery, Inc.) expressly conceded that it manufactured food and food products, consisting of dried milk products as well as food prod- ucts ; also that from time to time these were delivered for introduction into interstate commerce. "On Novepaber 8,1945, twenty days preceding the stipulation, the defendants filed a, joint denial of the sixth and seventh paragraphs of the complaint. With respect to interstate commerce, to the extent stated in the stipulation, time contest of allegations in paragraphs 1 to 5 of the complaint was squarely withdrawn by Adler's Creamery, Inc. On the face of the papers, this left standing the denials by the other two 'defendants (Samuel Adler, Inc., and Samuel Adler) of the allegations "in paragraphs 6 and 7 of the complaint. In harmony with other phases of this situation, however, as I-understood what counsel announced at the oral argument during the trial, Samuel Adler, Inc., then made an express admission substantially to the same effect as that in behalf of the first defendant embodied in Exhibit 23. Nevertheless, assuming that there was no such admission, I think the fact is immaterial. I deem this to be true because of subdivision (d) of Rule 65 of the Rules of Civil Procedure. As will be observed, it is provided therein that 'Every order granting an injunction * * * is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive notice of the order by personal service or otherwise.' "By reading the opening statements (minutes, pp. 2 to 16) and by discussion at the trial (pp. 470-476), as well as by remarks advanced by the attorney for Samuel Adler, Inc., and Samuel Adler, it will be seen that he brought his clients definitely within Rule 65. Accordingly, to the extent desired that the second and third defendants be affected by the request for an injunction, they stand on the same basis as the first defendant. Indeed, all the defendants should be disposed of precisely as if the second and third defendants had joined the first defendant in resisting the injunction application. "Again, paragraph 4 of the complaint unambiguously alleged that, during the pertinent period of time involved, the third defendant (Samuel Adler) is and was the president of the other two defendants (Adler's Creamery, Inc., and Samuel Adler, Inc.). Accordingly, by virtue of the last clause of Rule 65 (d) of the Rules of Civil Procedure, the individual defendant (Samuel Adler) was (as he still is) an officer of Adler's Creamery, Inc., and Samuel Adler, Inc. So far, therefore, as concerns procuring an injunction, all the defendants are within the jurisdiction of this court. "Let it be noted that testimony and documents were submitted at the trial just as if all had emanated from a single person (Samuel Adler). As an incident, it must be remembered that credibility cuts a figure. This does not mean that proof is to be treated as if it arose from different sources or it was designedly in conflict. The defendants may agree or may disagree about their contentions. Nevertheless, although they be criticized, the right to charge them with disagreeing on the same subject or with drawing divergent inferences from it or with having opened themselves to the assertion by the plaintiff that, despite the words used, the defendants in essence are directly at variance. "Otherwise put, as I see it, the defendants are not entitled to be treated as standing apart from each other rather than as really standing ^together. "By reason of the preciseness with which the statutes now before the court are drawn it must not be overlooked that whether the plaintiff may properly have an injunction turns on the exactness of the language Congress has em- ployed. The general principles of law ordinarily followed in an equity suit do not apply. When the legislative branch of the Government has spoken, what it has prescribed is controlling. It is plain that this court must implicitly obey the applicable statutes. "Four statutory provisions are invoked. These are in Title 21 of the United States Code. They have been authoritatively construed by the courts and, to the extent that their meaning has been adjudicated, we ought to accept their pronouncements. On this account we should give attention to both the relevant statutes and the relevant court decisions. 'Four sections of the Code are pertinent. These are as follows: (1) Acts prohibited by subdivisions (a) (b) and (c) of Section 331. (2) Words or phrases defined by subdivisions (b) and (f) of Section 321. (3) Food deemed adulterated by subdivisions (2) (3) and (4) of Section 342. (4) Apart from subdivisions (e), (f), (h), (i) and (j), jurisdiction is vested in district courts by Section 332 to restrain violations of Section 331. "Confining ourselves for the moment strictly to the statutes themselves, probably the provisions referred to should be somewhat amplified as follows: "(1) In Section 331 there are three prohibitions. These are that '(a) The introduction or delivery for introduction into interstate commerce of any food * * * that is adulterated * * *. (b) The adulteration * * * of any food * * * in interstate commerce, (c) The receipt in interstate commerce of any food * * * that is adulterated. * * *.' "(2) In Section 321 there are two definitions. These are that '(b) The term interstate commerce means (1) commerce between any State or Territory and any place outside thereof, * * *. (f) The term food means (1) articles used for food or drink for man or other animals * * * and (3) articles used for components of any such article.' "(3) In Section 342 the pertinent clauses are as follows: 'A food shall be deemed to be adulterated—(a) * * * (3) if it consists in whole or in part of any filthy * * * or decomposed substance, or if it is otherwise unfit for food; or (4) if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth * * *.' "(4) The jurisdiction of the district courts, as set out in Section 332, is stated to be that:' (a) The district courts of the United States * * * shall have jurisdiction, for cause shown, * * * to restrain violations of sec- tion 331, except paragraphs (e), (f), (h), (i), and (j).' "Upon the facts, when accurately applied, it seems to me that the record clearly goes far enough to establish violations of the statutory provisions which have heretofore been set out and there is no occasion to go further in order to prove this aspect of the case for the plaintiff. "On the other hand, the Sections of Title 21 previously referred to being now exactly identified, I think judicial interpretations of the statutes involved will strengthen the position of the plaintiff. Treatment of this branch of the case may be short. "In Securities and Exchange Commission v. Jones, 2 Circ., 85 F. 2d 17 (right column) it was said, 'The attack made upon the bill of complaint because it failed to allege the absence of an adequate remedy at law becomes immaterial, since the injunctive relief is provided by the statute.' "In the case of Interstate Commerce Commission v. All American Bus Lines, Inc., T>. C, S. D. N. Y., 22 F. Supp. 525, 526-7 (beginning at foot of right column p. 526), it was held as follows: 'The right to an injunction being covered by specific statute, the Commission (plaintiff) is not required to prove irreparable injury or other matters ordinarily prerequisite to issuance of in- junctive relief. * * * In such a situation an injunction to prevent further violation is called for' (left column p. 527). "In United States v. Adler's Creamery, 2 Circ., 110 F. 2d 482 (right column), it was ruled that 'The claim that it is inequitable to grant a mandatory in- junction to collect a debt past due must yield to the statutory provision of such a remedy.' "Again, in United States v. 1851 Cartons, etc., 10 Coir., 146 F. 2d 760, 761 (right column), the position of the court was as follows: 'Giving effect to the objects and purposes of the legislation, the courts have uniformly held that when a food consisted in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance its interstate shipment was prohibited whether otherwise considered as fit for human consumption or not.' "In Interstate Commerce Commission v. Consolidated Freighttvays, D. C, D. No. Dakota, 41 F. Supp. 651, 656 (left column), the court spoke thus: 'The right to injunction is conferred by a specific statute. Cases cited by the de- fendant treat with the rule requiring a showing of irreparable injury before the issuance of a temporary injunction, and the right to injunction is not based on any specific statute. These, of course, have no application to the matter here under consideration. The purpose of the statute is to restrain further viola- tions of the Act, The Commission (plaintiff) is not required to prove ir- reparable damage.' "The opinion in United States v. Lasere, D. C, N. D. Iowa, 56 F. Supp. 730, is important and helpful. It sets out what appears to be the nearest repetition of the statute contained in Sections 331 (a), 342 (a) (3) and (4), and 332 (p. 731, first paragraph of opinion and left column; p. 732, left column and right column near the bottom) are the most comprehensive summary of the statutory provisions embodied in the present form of the law. "On the fact side the evidence is quite similar. There was interstate trade in bread between Iowa and North Dakota. The Iowa factory and its manu- facturing were conducted in Iowa. In that State the character of the food 855931—49 2 articles and their condition were not strictly unlike the character and con- ditions of similar articles produced in and about Fort Plain, New York State (described between the bottom of the left hand column of p. 731 and near the top of p. 732 in the Lazere case). What has been criticized as found on the Iowa premises was substantially as follows: rodents in store room; breed ling place for rodents across the alley from the factory; excreta from rode its; cockroaches crawling on floor or into containers in factory; filth without fly traps or fly papers; mouse nest in sack of sugar; weevils, worms; difficult y in keeping premises clean because of lack of help; unclean appearance of v ork room; and odor. As is obvious from the recital of what was on the premises of the Fort Plain plant, what was objected to there is far worse than what was or is on the Iowa factory premises. "Violation of Title 21 of the United States Code in or about Fort Plain (in New York State) is more vigorously complained of than what was located at the time in Iowa. What Section 331 (a) and Section 342 (a) (3) and (4) by name specifically denounce includes Adulteration of food articles. "Section 332 empowers this court to enjoin violations of Section 331 (save certain obvious exceptions which we must ignore). Equally, basis is conferred to proceed under Section 342. "Subdivisions (a), (b), (c) of Section 331 authorized the court to treat inter- state commerce in food articles as adulterations. What we are obligated to restrain by judgment embraces what is stipulated to be interstate commerce, is conceded to consist of food and is adulterated. Our sole inquiry, therefore, is whether what the proof establishes was adulteration. "Without more, it is enough to fortify the result stated by reading the definition of the term 'food' contained in subdivision (f) of Section 321. In- deed, more reading furnishes an adequate demonstration that violation of the Sections referred to is adulteration. "Again, in effect Section 342 (a) (3) and (4) is the same. There the statute has repeated the provision just mentioned. In this section it is required that food be deemed 'adulterated' if, pursuant to Subdivision (a) (3), it be 'filthy' or otherwise unfit for food or if, pursuant to Subdivision (a) (4), it has eel prepared or held under 'insanitary conditions' whereby it may have be< ume 'contaminated with filth.' Plainly the evidence brings the ease at bar wl him the Lasere case. "The present case, however, is stronger. In unambiguous language (Sec- tion 331), on terms stated, each of the three Subdivisions declares that adultera- tion is 'prohibited.' On incontrovertible evidence it was further shown that breach of those Subdivisions constitutes violation of the applicable law. "For support it would be sufficient to rely on the Lasere case. As I cons ,rue the evidence there summarized, it fully sustains the result reached on the ) icts in the case at bar. "Moreover, the Lazere case rests on familiar holdings which interpret the word 'adulteration' (Cf. V. S. v. ScJirdder, 246 U. S. 519, 521-2; WeeTcs v. 77. 8., 2 Cir. 224 F. 69, 70). As I see it, accordingly in the instant case there is ample evidence which brings this case directly within the Lasere case. "Particularly because the food involved is or should be called filthy, I think there is additional support to which attention should be called. It was an- nounced in 77. 8. v. Swift & Co., D. C, M. D. Georgia, 53 F. Supp. 1018,1020 I first sentence in left column), and was quoted in 77. 8. v. Lasere, D. C, N. D. I wa, 56 F. Supp. 730, 732 (right column a little below the middle of the page). In both cases there was comment on the word 'filthy' In regard to it, the state- ment was as follows: " 'Congress intended that the word filthy, as used in the Act, should be con- strued to have its usual and ordinary meaning, and should not be confined to any scientific or medical definition'. "Taking the evidence in the common sense way which the Swift and Lasere cases approve, I feel would be justified. But it seems to me that summarizing the facts has already been enough. Furthermore, the elaborate briefs furnished by counsel have relieved of the necessity of what would be repetitious. On that account I have determined to let the matter stand save only that I shall mention two things. "The plaintiff is strengthened by two pieces of testimony. The first relates to manure fragments. The other relates to what is called the Strainer Residue (Exhibit 7). Some of the witnesses made statements in regard to those sub- jects which impressed me as entitled to a good deal of weight. "In substance, it was said that manure is soluble in milk and that when it becomes an integral part of the milk it cannot be removed by any presently known process (minutes, pp. 148, 247). The Strainer Residue was discussed somewhat fully and was worthy of consideration in determining how much filth in the milk was shown (pp. 201-3, 225r 532, 881-2). After going over the material connected with the two topics mentioned, however, I have concluded to let review of them, if any, stand without myself going into further details. "Unavoidably there was bias; but I disclaim attributing to the witnesses any intention to misrepresent the facts. "Lastly, in the second paragraph of the judgment in the Swift case, 53 F. Supp. 1020, the court made this announcement: Jurisdiction of this cause is retained for the purpose of enforcing or modifying this decree, and for the purpose of granting such additional or supplemental relief as may hereafter appear necessary or appropriate. "Neither counsel should infer from the clause last quoted above that I shall make use of it. But I have placed it here merely out of abundance of caution, so that I may resort to it if occasion to do so should arise. "Accordingly, after hearing the parties, I find and decide as follows: FINDINGS OF FACT "1. Since on or before and until August 25, 1942, and thereafter to date of suit the defendants were introducing into interstate commerce, and delivering for introduction into interstate commerce, food and food products and more particularly milk, dried milk, milk products and dried milk products. "2. During such period those articles have been adulterated by the defend- ants within the meaning of Section 331 (a) of Title 21 of the United States Code. "3. During such period those articles have been adulterated by the defendants within the meaning of Section 331 (b) of said title. "4. During such period those articles have been adulterated by the de- fendants within the meaning of Section 331 (c) of said title. "5. During such period those articles have been adulterated by the defendants within the meaning of Section 342 (a) (3) of said title. "6. During such period those articles have been adulterated by the defend- ants within the meaning of Section 342 (a) (4) of said title. "7. During such period those articles consist and have consisted in whole and in part of a filthy substance or a substance otherwise unfit for food. "8. During such period those articles have been prepared, packed or held by the defendants under insanitary conditions. "9. During such period those articles have been adulterated by the de- fendants under insanitary conditions whereby they or some of them became contaminated with filth. "10. During such period those articles by the means aforesaid have become contaminated with filth. "11. In spite of repeated warnings to the defendants from the Food and Drug Administration of the Federal Security Agency of the plaintiff, the de- fendants have continued to perform the acts herein above mentioned. "12. In the service aforesaid to the defendants or to some of the defendants, other than himself or itself, in its capacity and after having received actual notice thereof as an agent, servant or employee of, and in active concert or participation with, the defendant Adler's Creamery, Inc., the defendant Samuel Adler, Inc., has done the acts aforesaid in behalf of such Adler's Creamery. "13. In the service aforesaid to the defendants or some of the defendants, other than himself or itself, in its capacity and after having received actual notice thereof as an agent, servant or employee of, and in active concert or participation with, the defendant Samuel Adler, Inc., the defendant Adler's Creamery, Inc., has done the acts aforesaid in behalf of such defendant Samuel Adler, Inc. "14. In the service aforesaid to the defendants or to some of the defendants other than himself or itself, in his capacity and after having received actual notice thereof as an officer of, and in active concert or participation with, the other defendants, the defendant Samuel Adler throughout has acted as such officer for the other defendants or for the defendant Adler's Creamery, Inc., or the defendant Samuel Adler, Inc. "15. In the service aforesaid to the defendants or to some of the defendants other than himself or itself, in his capacity and after having received actual notice thereof as president of, and in active concert or participation with the other defendants, Adler's Creamery, Inc., and Samuel Adler, Inc., or one of them, the defendant Samuel Adler served both the other defendants or one of them as president. CONCLUSIONS OF LAW "1. The plaintiff is entitled to the judgment prayed for in the complaint. "2. The plaintiff is entitled to judgment against the defendants and each of them enjoining them from committing any of the violations aforesaid. "3. The plaintiff is entitled to judgment against the defendants and each of them enjoining them from committing the violations or any of the violations aforesaid of subdivisions (a) (b) and (c) of Section 331 and of subdivisions (b) and (f) of Section 321 and of subdivisions (a) (3) and (4) of Section 342 and of subdivisions other than (f) (g) (h) and (j) of Section 332 of Title 21 of the United States Code. "4. The plaintiff is entitled to recover from the defendants its costs and disbursements. DIRECTION FOR JUDGMENT "1. I direct that judgment in conformity with the foregoing be entered. "2. The judgment should include a clause in substance to the effect of the second clause of the judgment in U. 8. v. Swift & Co., supra. "3. Let judgment be settled accordingly on four days' notice by the parties or the party first proposing it, with leave to the opponents or opponent on one day's notice for the same date to propose a counter form of judgment." On February 20, 1946, the court issued an order perpetually enjoining the de- fendants from introducing or delivering for introduction into interstate com- merce, milk and milk products which were adulterated as alleged in the complaint. The defendants appealed the judgment to the circuit court of appeals, but on May 24,1949, by stipulation, the appeal was withdrawn.