The opinion of the court was delivered by: FORMAN
The law under which the information was filed in this case is known as the "Live Poultry Dealers and Handlers Act", 7 U.S.C.A. § 218 et seq., and its purpose is set forth in its preamble as follows: "The handling of the great volume of live poultry required as an article of food for the inhabitants of large centers of population is attendant with various unfair, deceptive, and fraudulent practices and devices, resulting in the producers sustaining sundry losses and receiving prices far below the reasonable value of their live poultry in comparison with prices of other commodities and in unduly and arbitrarily enhancing the cost to the consumers. Such practices and devices are an undue restraint and unjust burden upon interstate commerce and are a matter of such grave concern to the industry and to the public as to make it imperative that steps be taken to free such commerce from such burden and restraint and to protect producers and consumers against such practices and devices." 7 U.S.C.A. § 218.
In sections following, the Secretary of Agriculture is given power to designate cities and markets where unfair practices exist. Persons and firms engaging in certain phases of this commerce are required to be licensed by the Secretary, and provisions are made for the application and issuance of such licenses. A penalty of fine and imprisonment or both is prescribed for a violation of the law, etc.
By order dated October 29, 1935, effective December 12, 1935, the Acting Secretary of Agriculture designated Newark, N.J., as a city, place or market, coming under the provisions of the said law. Under Section 502 of the Order of Designation "no person other than packers * * * shall engage in, furnish, or conduct any service or facility in any such designated city, place or market in connection with the receiving, buying or selling on a commission basis, or otherwise * * * live poultry without a license from the Secretary of Agriculture as herein authorized valid and effective at such time".
Paragraph two of the information in this case charges the defendant with buying live poultry in interstate commerce without the license required under the law on July 19, 1938, from Sam Mazick of Providence, Rhode Island, at a price of $135.89.
Paragraph three charges that the defendant made a similar purchase in Newark, N.J., on July 19, 1938, from Patsy Bosco of Brooklyn, N.Y., at a price of $20.25.
Paragraph four charges another purchase in Newark, N.Y. on August 30, 1938, from Sam Mazick of Providence, Rhode Island, at a price of $208.40.
Lastly, paragraph five charges purchases in Newark, N.J., from numerous persons from the States of Rhode Island, Delaware, New York and Virginia, these purchases being made on July 19, 1938.
On the trial the government abandoned the allegation in so far as the purchase from Patsy Bosco was concerned as described in the third paragraph of the information, and claimed the right under the fifth paragraph, or blanket allegation, to prove that defendant had purchased live poultry from a producer in Delaware and one in Virginia. Defendant waived the vagueness of the charge contained in the latter paragraph, and agreed to permit the government to submit proof of such purchases from the producers if it could do so.
It is to be noted that the government specifically charged in its information that defendant purchased live poultry from sources outside New Jersey. It carefully avoided any charge that defendant purchased its live poultry from Gabriel Ferranti, Inc., of Newark, N.J., In fact, that name does not appear anywhere in the information.
The case was tried to the court, the defendant having waived a jury. The proofs show that the defendant, Independent Meat and Poultry Market, Inc., is a "one-man" corporation in the person of Samuel Katz. It is a retailer of poultry doing business in the City of Newark, N.J. At the time of the alleged violations it was without a license as contemplated by the act. It purchased the poultry in question from the firm of Gabriel Ferranti, Inc., a wholesale poultry dealer in the City of Newark, N.J. Gabriel Ferranti, Inc., purchased poultry from Sam Mazick, of Providence, Rhode Island, and other persons from states other than New Jersey, and placed them upon the floor of its market. There was no label or other indication upon the poultry to show their source, and the defendant bought from Gabriel Ferranti, Inc., in Newark, N.J., without knowledge of their origin.
The government seeks to give the impression that Gabriel Ferranti, Inc., sold some of this poultry to the defendant on a commission basis for the accounts of out-of-state producers, but its own witnesses failed to substantiate any such contention, as is shown by the testimony of Mr. Greenstein, bookkeeper and in charge of records of Gabriel Ferranti, Inc., as follows:
"Question. When Mr. Ferranti bought these chickens from Mazick, the July 19th chickens sold to Independent, did Mr. Ferranti and his partner or the Ferranti Company buy those outright or on ...