important elements concerned in the violation of the law with which it was being charged. There should have been a plain, frank statement of its acts so that it could adequately prepare to meet them. The information may well be dismissed alone on the objection that it failed in these respects.
However, the matter was given full hearing and since a wider and more significant issue is raised, a ruling upon the mere defectiveness of the pleading might provoke only a re-institution of the proceedings, and cause a duplication of the expense of effort and time of all parties concerned. Therefore, the case will be considered in its wider scope so that it may receive final disposition in this court.
The question raised concerns the right of the government to extend under this law and its interstate commerce jurisdiction its regulations over transactions in live poultry consummated in the City of Newark, N.J., under the facts of this case.
The government compares the position of Gabriel Ferranti, Inc., with that of the stockyards of the Mid-west through which cattle of the West pass to the consumers of the East. Swift & Company v. United States, 196 U.S. 375, 25 S. Ct. 276, 49 L. Ed. 518; Stafford v. Wallace, 258 U.S. 495, 42 S. Ct. 397, 66 L. Ed. 735, 23 A.L.R. 229; and Tagg Bros. v. United States, 280 U.S. 420, 50 S. Ct. 220, 74 L. Ed. 524. In Swift & Company v. United States, 196 U.S. 375, 398, 399, 25 S. Ct. 276, 280, 49 L. Ed. 518, the court stated: "When cattle are sent for sale from a place in one state, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the states, and the purchase of the cattle is a part and incident of such commerce."
Analogy is likewise made with the case of Lemke v. Farmers' Grain Co., 258 U.S. 50, 42 S. Ct. 244, 66 L. Ed. 458, in which a North Dakota Association purchased grain in that State and deposited it in elevators to be shipped to other states. Although the grain could be diverted locally, it was held that the business of the Association was of an interstate character.
The government also compares this case with that of Binderup v. Pathe Exchange, 263 U.S. 291, 44 S. Ct. 96, 68 L. Ed. 308, in which motion picture films were shipped by the lessors in New York to their agents in Nebraska for distribution to lessees in Nebraska. It was held that this constituted interstate commerce even though the agents were intermediaries between the lessors and lessees.
In the case of Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570, 97 A.L.R. 947, the defendants were engaged in the business of slaughtering chickens and selling them to retailers. They bought their fowl from commission men in a market where most of the supply was shipped in from other states, transported them to their slaughter houses, and there held them for slaughter and local sale to retail dealers and butchers, who in turn sold directly to consumers. The court held that the transactions of defendants were not in interstate commerce. It said:
"Were these transactions 'in' interstate commerce? Much is made of the fact that almost all the poultry coming to New York is sent there from other states. But the code provisions, as here applied, do not concern the transportation of the poultry from other states to New York, or the transactions of the commission men or others to whom it is consigned, or the sale made by such consignees to defendants. When defendants had made their purchases, whether at the West Washington Market in New York City or at the railroad terminals serving the city, or elsewhere, the poultry was trucked to their slaughterhouses in Brooklyn for local disposition. The interstate transactions in relation to the poultry then ended. Defendants held the poultry at their slaughterhouse markets for slaughter and local sale to retail dealers and butchers who in turn sold directly to consumers. Neither the slaughtering nor the sales by defendants were transactions in interstate commerce. Brown v. Houston, 114 U.S. 622, 632, 633, 5 S. Ct. 1091, 29 L. Ed. 257; Public Utilities Comm. v. Landon, 249 U.S. 236, 245, 39 S. Ct. 268, 63 L. Ed. 577; Industrial Association v. United States, 268 U.S. 64, 78, 79, 45 S. Ct. 403, 69 L. Ed. 849; Atlantic Coast Line R. Co. v. Standard Oil Co., 275 U.S. 257, 267, 48 S. Ct. 107, 72 L. Ed. 270.
"The undisputed facts thus afford no warrant for the argument that the poultry handled by defendants at their slaughterhouse markets was in a 'current' or 'flow' of interstate commerce, and was thus subject to congressional regulation. The mere fact that there may be a constant flow of commodities into a state does not mean that the flow continues after the property has arrived and has become commingled with the mass of property within the state and is there held solely for local disposition and use. So far as the poultry here in question is concerned, the flow in interstate commerce had ceased. The poultry had come to a permanent rest within the state. It was not held, used, or sold by defendants in relation to any further transactions in interstate commerce and was not destined for transportation to other states. Hence decisions which deal with a stream of interstate commerce -- where goods come to rest within a state temporarily and are later to go forward in interstate commerce -- and with the regulations of transactions involved in that practical continuity of movement, are not applicable here. See Swift & Co. v. United States, 196 U.S. 375, 387, 388, 25 S. Ct. 276, 49 L. Ed. 518; Lemke v. Farmers' Grain Co., 258 U.S. 50, 55, 42 S. Ct. 244, 66 L. Ed. 458; Stafford v. Wallace, 258 U.S. 495, 519, 42 S. Ct. 397, 66 L. Ed. 735, 23 A.L.R. 229; Chicago Board of Trade v. Olsen, 262 U.S. 1, 35, 43 S. Ct. 470, 67 L. Ed. 839; Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 439, 50 S. Ct. 220, 74 L. Ed. 524." 295 U.S. 495, 542-544, 55 S. Ct. 837 848, 79 L. Ed. 1570, 97 A.L.R. 947.
The court, it is noted, distinguished Swift & Company v. United States, etc., to which may be added the analogous cases cited by defendant, and we think that distinction is controlling here. We cannot agree that the business of Gabriel Ferranti, Inc., is on a parallel with that of the business of the stockyards, grain elevators, and film distributors. The non-resident producer of the poultry involved herein was not concerned with the distribution of the poultry beyond Gabriel Ferranti, Inc. Atlantic Coast Line R. Co. v. Standard Oil Co., 275 U.S. 257, 48 S. Ct. 107, 72 L. Ed. 270. In fact, the poultry had come to rest at that point. Public Utilities Commission v. Landon, 249 U.S. 236, 39 S. Ct. 268, 63 L. Ed. 577; Industrial Ass'n v. United States, 268 U.S. 64, 45 S. Ct. 403, 69 L. Ed. 849. Succeeding transactions were of an intrastate character.
We conclude that Gabriel Ferranti, Inc., was the outright purchaser of the poultry involved from the out-of-state producers. It sold poultry to the defendant in New Jersey which constitutes intrastate commerce only. The defendant is acquitted of the charges contained in the information.