29322. Wheat.   (Inj. No. 451.)
Albany, N.Y., Glenn E. Erlandson, grain elevator superintendent, and Donald 
E. Hart, assistant elevator superintendent.
CHARGE: The complaint alleged that the defendants were engaged in operating 
a terminal grain elevator which had a capacity of approximately 12 million 
bushels, was constructed of concrete, and was located immediately west of the 
Hudson River at the Port of Albany, Albany 7, N.Y., that was owned by the 
Albany Port Authority, Albany, N.Y., and was leased from that authority by 
the defendant, Cargill, Inc., and was utilized for the receipt, storage, and ship- 
ment of wheat for human consumption, a food within the meaning of the Act; 
that the terminal grain elevator was a structure which included an easterly 
row of four 125' x 130' rectangular bins, and a westerly row of four 125' x 130' 
rectangular bins which rows were situated at the easterly side and westerly 
side, respectively, of a central row of circular bins, together with additional cir- 
cular bins to the north and south of those bins; that the four rectangular bins 
of the easterly row were denominated from north to south as "Bin A," "Bin B," 
"Bin C,'' and "Bin D," respectively, and the four rectangular bins of the west- 
erly row were denominated from south to north as "Bin E," "Bin F," "Bin G," 
and "Bin H," respectively.
'It was alleged further that the wheat was being held at the terminal grain 
Elevator tinder insanitary conditions whereby the food had become contami- 
nated with filth thereby rendering such food adulterated within the meaning of 
402(a) (3) and 402(a) (4) ; that the insanitary conditions of the terminal grain 
elevator resulted from and consisted of the following conditions: in each of 
the rectangular bins rodent trails, rodent tunnels, rodent nests, and rodent 
excreta pellets on the surface of the food; on the walls and roofs of the rec- 
tangular bins heavy layers of insect webbing with thousands of insect exit 
holes and dead insects; in Bin A, 500 fresh rat pellets adjacent to the double 
door of the bin, 3 dead mice and 1 live mouse; in Bin B, rodent urine on the 
wheat, 7 live mice, insect webbing, live cadelle larvae and wheat kernels dam- 
aged hy insects; in Bin D, 4 live mice, and live cadelle beetles; in Bin F, 57 
dead pigeons on the surface of the wheat, rodent nests in the feathers of some 
of the pigeon carcasses, insect webbing, live granary weevils and 4 dead mice; 
in Bin G, 1 dead and 1 live mouse, live cadelle and dermestid beetles, live and 
dead granary weevils and 3 foreign grain beetles; in Bin H, a heavy layer of 
insect webbing on the surface of the wheat, 20 dead mice, 1 live mouse, cadelle 
beetles and granary weevils; on the passageways between the bins at the top
.of the elevator, several hundred mouse pellets; on the steel catwalk over the 
bins, a live mouse; and in the headhouse above the conveyor belts of the 
elevator, a live pigeon. 
The complaint alleged further that the defendants violated the law by caus- 
ing, wheat to be placed in rectangular bins and to be exposed to cohtamination 
with filth in that such acts were done after shipment in interstate commerce
' and resulted in such food being adulterated as specified above; and that the 
defendant corporation was well aware that its activities were in violation of 
the Act; that on 1-21-58, a consent decree of permanent injunction was entered 
in the United States District Court for the District of South Dakota enjoining
?See also No. 29310.
Cargill, Inc., from committing similar violations at its grain elevators and 
annexes at Claremont and Huffton, S. Dak., (Food Notice of Judgment No. 
25165) ; that Cargill, Inc., was also the shipper-of-record of several shipments 
of rodent-contaminated wheat which were seized and condemned, namely, a 
shipment from Chester, Mont., libeled on 3-13-62 (Food Notice of Judgment 
No. 27766), and a shipment from East St. Louis, Ill., libeled on 3-31-60 (Food 
Notice of Judgment No. 26414) ; and that despite the warnings conveyed to the 
defendant corporation by the United States Court for the District of South 
Dakota, and by such seizure actions, the defendants failed to correct the insani- 
tary conditions at their terminal grain elevator at Albany, N.Y., and they 
continued to violate the Act. 
DISPOSITION : On 3-20-63, the court denied a motion for a temporary restraining 
order which had been sought by the Government at the time the complaint was 
filed. On or about 4-2-63, the defendants filed an answer in which they admit- 
ted the allegations concerning the facts that the action was brought under the 
Federal Food, Drug, and Cosmetic Act and that Cargill, Inc., was a Delaware 
corporation trading and doing business at Albany, N. Y., and denied all the 
other allegations of the complaint.
On 4-3-63, the Government's motion for a preliminary injunction was heard 
by the court and the defendants moved that the case be dismissed. On 
5-20-63, the court rendered the following decision and order:
FOLEY, District Judge: "This suit is for injunction and the motion at hand for 
decision is for a preliminary injunction pending the trial of the issues. The 
government department complaining is the Food and Drug Administration and 
the violations charged against the defendants are specified in the complaint 
as ones involving Sections 331(a), (b), (k) ; 342(a) (3) ; and 342(a) (4) of 
21 U.S.C.A. Justice Frankfurter, dissenting, characterized the provisions of 
the Act as 'x x its meaning can hardly be so clear that he who runs may read, 
or that even he who reads may read'.    (U.S. v. Sullivan, 332 U.S. 689, 705).
"However, the factual situation upon which the suit is based as well as the 
motion for preliminary injunctive relief is a simple one in my judgment. It 
was clarified by detailed affidavits and exhibits submitted and then the holding 
of a hearing on April 3, 1963. The minutes of such iearing were ordered by 
Cargill, Inc., and I have been furnished a copy by the Court Reporter which I 
shall file with the Clerk. It was my impression at the hearing that the gov- 
ernment was weak in its position and such instinctive reaction as a trial judge 
gave me no fear there was danger to the public interest or health by the exist- 
ent circumstances on the date of the hearing. Such feeling has now been rein- 
forced after a study of the voluminous briefs and the transcript of testimony. 
There was no need for quick judicial action and it is my judgment the govern- 
ment should not prevail in the request for grant of serious and drastic 
injunction.
"The eight large rectangular bins which were the only targets of complaint 
and criticism were completely empty on March 27, 1963. The Inspector who 
began the first Inspection in November, 1962, testified that tremendous strides 
of improvement have been made in correcting the undesirable conditions that 
existed over a period of months. Approximately $60,000 will be expended to 
complete extensive alterations and repairs to correct the conditions that pre- 
viously existed, and the good faith of Cargill and its employees to meet gov- 
ernment demands for correction is evident throughout the record. It is also 
undisputed that the condition was an unforeseen and emergency one caused 
mainly by the activity of the Port of Albany Commission to dredge and improve 
its Port as an important asset to commercial development in the northeastern 
part of New York. I detect no pattern of stubbornness or disinterest for public 
health on the part of the defendants that would lead to the conclusion that 
chronic violators of government regulations and statutes should be supervised 
and struck down by the most serious sanction that a court can grant.
"The significant factors that impel me to my conclusion are these: These 
rectangular bins are extremely large, and it was admitted by the Examining
Inspector who testified at the hearing that the remedy was to empty them out 
and then clean and repair. Substantial skimming was done, and when the 
wheat was transferred to the circular bins, admittedly clean, the wheat was 
then sampled by licensed inspectors of the Department of Agriculture under 
the supervision of a government employee of that department. The problem 
before the defendants was a complicated one and not the one comparable to 
emptying out the sugar from the sugar container in the pantry and then clean- 
ing it out. The Food and Drug Inspector, and I found him courteous and com- 
petent on the witness stand, knew that the wheat was so being transferred 
and also being shipped out and loaded on ships. There was not the slightest 
remonstrance or objection on his part although he was aware at all times 
by official certificates shown to him that the wheat was being transferred 
and loaded on ships. This lawsuit was a long delayed one, and it seems 
important to me that with all the weapons at command for seizure and 
condemnation the Food and Drug Administration did nothing to prevent 
several million bushels of alleged adulterated wheat to be transferred 
internally and loaded illegally in ships for export. As stated in U.S. v. 
Grant, 345 U.S. 629, 634, the postponement of suit indicates doubt on the 
prosecutor's part as much as intransigence on the defendants'. There is also 
convincing proof that the wheat met government standards that are similar to, 
if not identical with the standards of the Food and Drug Administration. If 
I were to accept the contentions advanced in this respect, it would be a serious 
indictment of the grading responsibilities and standards of the Department 
of Agriculture, because it would be seriously arguable that its standards 
allowed a filthy and adulterated product to enter the stream of commerce.
"It is my judgment that the attitude of the government here is mainly pure 
legalism based upon a commingling of various statutes unsupported by fact. 
It seems that each contention advanced is sought to be lifted by the bootstraps 
of the other and none have sufficient quality for logical factual support. The 
reasonably probable or possible hypothesis that the wheat must be contami- 
nated or adulterated is fiction when disproved by actual, experienced, substan- 
tial testing that it is not. Supposition, speculation, and surmise are always 
weak support for fact-finding directly or by inference. There is also the legal 
question that the wheat was exempt and properly exportable under 21 U.S.C.A. 
381(d). (U.S. v. Catz American Co., 53 F. 2d 425). The only answer to a 
query along this line by the Inspector to the employees of Cargill was his off- 
hand, curbstone opinion that he did not consider the wheat in the proper status 
for exemption.
"Finally, however, the important reason for the denial of the injunction is 
there is no showing of existent danger or the probability of future violations. 
(Swift & Co. v. U.S., 276 U.S. 311, 326). This is a cardinal and elemental prin- 
ciple in the exercise of discretion by a Court. In U.S. v. Grant, supra, pig. 629, 
such principle was plainly enunciated:
"x x But the moving party must satisfy the Court that relief is needed. 
The necessary determination is that there exists some cognizable danger of 
recurrent violation, something more than the mere possibility which serves 
to keep the case alive, x x x To be considered are the bona fides of the 
expressed intent to comply, the effectiveness of the discontinuance and, in 
some cases, the character of the past violations."    (pig. 633).
"There is no need shown for injunction, and the safeguards promised to 
the government by Cargill, Inc., in the future to alleviate and insure against 
undesirable conditions of storage at the Port of Albany are commendable 
and persuasive in the record. The last report of sampling made by the govern- 
ment evidenced by letter dated April 11, 1963 was not introduced in evidence 
during the hearing but the letter photostat is attached to the Reply Brief 
of Cargill which I shall file with the Clerk. Such letter indicates that the 
remaining wheat in the unchallenged circular bins are well within the proper 
standards for grain of the Food and Drug Administration. The government 
has gained its goal and the public health interest and pocketbook have been 
efficiently protected. Common sense often makes good law. (Peak v. U.S., 
353 U.S. 43,46).
"The motion is denied and it is
"So Ordered."
On 6-12-63, pursuant to stipulation between the parties, the court ordered 
the plaintiff's complaint dismissed upon the merits without costs to any party 
against the other.