The provision in § 10 of the Pure Food Act of June 30, 1906, 34
Stat. 768, c. 3915, that proceedings for seizure of goods shall be
by libel and conform as near as may be to proceedings in admiralty,
does not include appellate proceedings; the action of the district
court on the libel can only be reviewed as at common law by writ of
error, and not by appeal.
When Congress enacted the Pure Food Act, it was known that, as
to seizures on land, the district court proceeded as in actions at
The provision for jury trial in § 10 of the Pure Food Act was
probably inserted by Congress with a view to removing any question
of constitutionality of the act.
While proceedings for seizure and condemnation under § 10 of the
Pure Food Act are intended to be summary, the owner, as this Court
construes the statute, has a right to a hearing in a court of
record, with a right of review upon questions of law by writ of
error in the circuit court of appeals, and where more than $1,000
is involved finally in this Court under § 6 of the Circuit Court of
As the circuit court of appeals had no jurisdiction to review
the action of the district court on a libel filed under the Pure
Food Act, neither its own action thereon nor the consent of the
parties could give such jurisdiction.
Where the circuit court of appeals proceeds without
jurisdiction, this Court should, on acquiring jurisdiction of the
cause, remand it to the circuit court of appeals with instructions
to dismiss the appeal for want of jurisdiction.
193 F. 589 reversed.
The facts are stated in the opinion.
Page 226 U. S. 177
MR. JUSTICE DAY delivered the opinion of the Court.
This case is here on both writ of error to and appeal from a
decree of the Circuit Court of Appeals for the Third Circuit,
reversing the judgment of the United States District Court for the
District of New Jersey dismissing a libel brought by the United
States which had for its object the condemnation of four hundred
Page 226 U. S. 178
cans of frozen egg product seized under the Pure Food Act of
June 30, 1906 (34 Stat. 768, c. 3915).
The United States filed its libel alleging that four hundred and
forty-three cans of frozen egg product, in the possession of the
Merchants' Refrigerating Company at Jersey City, New Jersey,
consisted in whole or in part of a "filthy, decomposed, and putrid
animal, to-wit, egg substance," and praying for their condemnation.
At the trial, the issues were narrowed so as to exclude filthy and
putrid substances, leaving the charge to stand as to decomposed
substance. Three hundred and forty-two cans were seized. The H. J.
Keith Company appeared and claimed the goods, denying the charges
concerning them. The case was tried without a jury, to the district
judge, who entered a decree dismissing the libel. The United States
took an appeal to the circuit court of appeals, and, after
consideration in that court, the decree dismissing the libel was
reversed, and, upon the facts, a decree of condemnation in favor of
the government was entered. 193 F. 589. The claimant, the H. J.
Keith Company, thereupon appealed to this Court, and also sued out
this writ of error to the same decree.
We are met at the outset with a question of jurisdiction.
Section 10 of the Pure Food Act provides:
"That any article of food . . . that is adulterated or
misbranded within the meaning of this act, and is being transported
from one state . . . to another for sale, . . . shall be liable to
be proceeded against in any district court of the United States
within the district where the same is found, and seized for
confiscation by a process of libel for condemnation. . . . The
proceedings of such libel cases shall conform, as near as may be,
to the proceedings in admiralty, except that either party may
demand trial by jury of any issue of fact joined in any such case,
and all such proceedings shall be at the suit of and in the name of
the United States. "
Page 226 U. S. 179
It will be observed that the last sentence of the section
"the proceedings of such libel cases shall conform, as near as
may be, to the proceedings in admiralty, except that either party
may demand trial by jury of any issue of fact joined in any such
case, and all such proceedings shall be at the suit of and in the
name of the United States."
The contention of the government upon this question of
jurisdiction is that the words "conform, as near as may be, to the
proceedings in admiralty" mean, except in cases where jury trial is
demanded, to include appellate proceedings, as well as original
proceedings in the district court, and therefore the review of the
judgments of the district court would be by appeal to the circuit
court of appeals, as in admiralty cases under the Circuit Court of
Appeals Act (26 Stat. 826, c. 517), and under the Judicial Code (36
Stat. 1087, 1133, c. 231). If that is a proper construction of the
statute, then the circuit court of appeals had the right to review
the case upon the facts and enter a final decree, which, under the
Circuit Court of Appeals Act and Judicial Code, would be reviewable
here only upon writ of certiorari.
The appellant, also plaintiff in error, contends that, the
seizure being upon land, the proceeding was at law, and reviewable
only upon writ of error in the circuit court of appeals; that the
attempted appeal did not give the circuit court of appeals
jurisdiction, and that, upon the writ of error here, this Court
should reverse the judgment and remand the case to that court, with
directions to dismiss the appeal.
The determination of this controversy requires some examination
of previous legislation, and of the decisions of this Court,
interpreting such legislation, as to the nature and extent of the
jurisdiction of the district courts of the United States in seizure
The judiciary Act of 1789 (1 Stat. 76, § 9, c. 20) gave to the
Page 226 U. S. 180
"Exclusive original cognizance of all civil causes of admiralty
and maritime jurisdiction, including all seizures under laws of
impost, navigation, or trade of the United States, where the
seizures are made on waters which are navigable from the sea by
vessels of ten or more tons burthen, within in their respective
districts as well as upon the high seas; saving to suitors, in all
cases, the right of a common law remedy, where the common law is
competent to give it, and . . . also have exclusive original
cognizance of all seizures on land, or other waters than as
aforesaid, made, and of all suits for penalties and forfeitures
incurred, under the laws of the United States."
In the case of The Sarah,
Wheat. 391, a libel was filled against 422 casks of wine, alleging
a forfeiture by false entry. It appearing in the course of the
trial that the seizure was made on land, it was held that this
Court could not review the case save upon writ of error. Chief
Justice Marshall, delivering the opinion of the Court, said (p.
21 U. S.
"By the act constituting the judicial system of the United
States, the district courts are courts both of common law and
admiralty jurisdiction. In the trial of all cases of seizure on
land, the court sits as a court of common law. In cases of seizure
made on waters navigable by vessels of ten tons burthen and
upwards, the court sits as a court of admiralty. In all cases at
common law, the trial must be by jury. In cases of admiralty and
maritime jurisdiction, it has been settled, in the cases of
3 Dall. 297, The Sally,
Cranch 406 [omitted], and The Betsy,
4 Cranch 443, that
the trial is to be by the court."
"Although the two jurisdictions are vested in the same tribunal,
they are as distinct from each other as if they were vested in
different tribunals, and can no more be blended than a court of
chancery with a court of common law."
A statute, practically the same, with some slight changes, was
embodied in § 563 of the Revised Statutes,
Page 226 U. S. 181
subdivision 8, giving the district courts jurisdiction "of all
civil causes of admiralty and maritime jurisdiction . . . and of
all seizures on land and on waters not within admiralty and
maritime jurisdiction," the subdivision mentioned omitting the
provision found in the section of the Judiciary Act of 1789, to
which we have referred, as to seizures "within their respective
districts," and including cases of "seizures on land and on waters
not within the admiralty and maritime jurisdiction." Under this
statute, it has been uniformly held that the district court, as to
seizures on land, proceeds as a court of common law, with trial by
jury, and not as a court of admiralty. United States v.
Winchester, 99 U. S. 372
Questions analogous to the one here came before this Court in
construing the Confiscation Acts enacted in 1861 and 1862. This
Court, in Union Insurance Company v.
6 Wall. 759, construed the Act of
Congress of August 6, 1861, entitled, "An Act to Confiscate
Property Used for Insurrectionary Purposes." That act provided for
the seizure of such property and its condemnation in the district
or circuit court having jurisdiction of the amount, or in admiralty
in any district in which the property might be seized, and
authorized the Attorney General to institute proceedings of
condemnation. In that case, it was held that, in the condemnation
of real estate or property on land, the proceedings were to be
shaped in general conformity to the practice in admiralty, but in
respect to trial by jury and exceptions to evidence, the
proceedings should conform to the course of proceeding by
information on the common law side of the court. It was held that,
where proceedings for the forfeiture of real estate were had in
conformity with the practice in courts of admiralty, they could not
be reviewed in this Court by appeal, and that the case could come
here only for the purpose of reversing the decree and directing a
In the case of Morris'
8 Wall. 507, this Court
Page 226 U. S. 182
had under consideration the Acts of 1861 and of July 17, 1862,
which act provided (12 Stat. 589, 591, § 7) for the institution of
proceedings in the name of the United States in any district court,
etc., where the property might be found, etc., "which proceedings
shall conform as nearly as may be to proceedings in admiralty or
revenue cases." In the Morris
case, it was said (p.
75 U. S.
"Where the seizure is made on navigable waters, within the ninth
section of the Judiciary Act, the case belongs to the instance side
of the district court; but where the seizure was made on land, the
suit, though in the form of a libel of information, is an action at
common law, and the claimants are entitled to trial by jury."
"Seizures, when made on waters which are navigable from the sea
by vessels of ten or more tons burden, are exclusively cognizable
in the district courts, subject to appeal, as provided by law; but
all seizures on land or on waters not navigable, and all suits
instituted to recover penalties and forfeitures incurred, except
for seizures on navigable waters, must be prosecuted as other
common law suits, and can only be removed into this Court by writ
This jurisdiction of the district court was known to Congress at
the time it passed the Pure Food Act, as were the decisions of this
Court construing the former acts of Congress, and it declared that
such proceedings shall conform to those in admiralty, as near as
may be, giving to either party, however, the right to demand a
trial by jury in case of issues of fact joined. We think this act
must be held to have been passed not to confer a new jurisdiction
upon the district court, but in recognition of the jurisdiction
already created in seizures upon land and water. The act makes no
reference, in conforming the proceedings as near as may be to those
in admiralty, to appellate procedure. It leaves that to be
determined by the nature of the case and the statutes already in
force. It is true that the right of trial by jury is preserved,
Page 226 U. S. 183
by either party. We think Congress inserted this provision with
a view to removing any question as to the constitutionality of the
act. It was held under the Confiscation Acts, although no such
specific provision is contained, that the action provided was one
at common law, with a right to trial by jury. The Seventh Amendment
to the Constitution preserves the right of trial by jury in suits
at common law involving more than $20, and provides that no fact
tried by a jury shall be reviewed otherwise than according to the
rules of the common law. Having in mind these provisions, and, as
well, the construction of the previous acts, we think it was the
purpose of Congress to leave no doubt as to the right of trial by
jury in the law proceeding for condemnation which the act intended
These proceedings for the seizure and condemnation of property
which is impure or adulterated are intended to be, in a sense,
summary, and yet the statute, as we have construed it, gives the
owner a right to a hearing in a court of record, with a right of
review upon questions of law by writ of error in the circuit court
of appeals; and, where more than one thousand dollars is involved,
finally in this Court (§ 6 of the Circuit Court of Appeals Act). It
is to be noted in this connection that, where the examination of
specimens of food or drugs, made by the Department of Agriculture,
shows that the articles are adulterated or misbranded, the parties
from whom the specimens were obtained are (§ 4 of the Pure Food
Act) given a hearing before the matter is certified to the district
attorney by the Secretary of Agriculture.
We do not think it was intended to liken the proceedings to
those in admiralty beyond the seizure of the property by process
then giving the case the character of a law
action, with trial by jury if demanded, and with the review already
obtaining in actions at law. It is true that, if the action is
tried in the district court without a
Page 226 U. S. 184
jury, the circuit court of appeals is limited to a consideration
of such questions of law as may have been presented by the record
proper, independently of the special finding. Campbell v.
United States, 224 U. S. 99
the party on jury trial may reserve his exceptions, take a bill of
exceptions, and have a review upon writ of error in the manner we
have pointed out.
It is insisted for the government that, inasmuch as the hearing
in the circuit court of appeals upon appeal was without objection
by the claimant, the jurisdictional objection was waived. We cannot
take that view. As we construe the statute, the circuit court of
appeals had no jurisdiction upon the appeal, and neither the action
of the court nor the consent of the parties could give it. Leo
Lung On v. United States,
159 F. 125; Jones v.
5 Wall. 579; United States v.
Emholt, 105 U. S. 414
Perez v. Fernandez, 202 U. S. 80
202 U. S.
As the circuit court of appeals, in our opinion, proceeded
without jurisdiction by reason of the appeal, this Court, having
acquired jurisdiction, should reverse the judgment of the circuit
court of appeals and remand the case to that court, with
instructions to dismiss the appeal for want of jurisdiction.
Union & Planters' Bank v. Memphis, 189 U. S.