# Hervey v. Tyson's Foods, Inc. > Supreme Court of Arkansas · May 29, 1972 · 252 Ark. 703 URL: https://www.frixlaw.com/law-library/cases/7818822 ## Case - **Full name:** A. B. HERVEY Jr., Commissioner of Revenue v. TYSON'S FOODS, INC. - **Court:** Supreme Court of Arkansas - **Decided:** May 29, 1972 - **Citations:** 252 Ark. 703; 480 S.W.2d 592; 1972 Ark. LEXIS 1664 - **Precedential status:** Published - **Opinion:** Dissent by Byrd - **Judges:** Brown, Byrd, Fogleman, Holt, Jones - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7818822 ## Opinion text Conley Byrd, Justice, dissenting. I disagree with the portion of the majority opinion that rewrites the definition of “feedstuffs.” Not only does the majority opinion ignore the definition of “feedstuffs” but it relies as authority upon a Maine case, Lipman Poultry Company v. Johnson, 138 Atl. 2d 631 (Me. 1958), which did not involve a “feedstuff” exemption. The statute here involved, Act 94 of 1955, provides: “Section 1. All feedstuffs used in growing or producing livestock and/or poultry in this State shall be exempt from the provisions of Act 386, Ark. Acts of 1941, as amended by Act 15, Ark. Acts of 1949, known as the Arkansas Compensating Tax Act. Section 2. The following words and phrases shall, except where the context clearly indicates a different meaning, have the following meanings: (a) . . . (d) Feedstuffs: The term “feedstuffs” is defined to mean all materials which are commonly known and used as feed for livestock and/or poultry including unmixed or unprocessed grains; unground hay; whole or ground straw, and hulls when not mixed with other materials.” It will be observed that the exemption is not to feed but to “feedstuffs”. Furthermore, the exemption is not limited to “feedstuffs” used in growing livestock and/or poultry but by the very terms of Section 1 of the Act “feedstuffs” used in PRODUCING livestock and/or poultry are also exempted. Thus up to this point, I could not conceive of any fair minded reader construing the exemption as applying to nutrients only until I read the majority opinion. Section 2 (d) of the act defines “feedstuffs” in terms of “ALL MATERIALS commonly known and used as feed for livestock and/or poultry.” Webster’s International Dictionary defines “MATERIAL” as “the substance or substances, or the parts, goods, stock or the like, of which anything is composed or may be made; as, raw materials.” The same dictionary, a 1935 edition, defines the noun “feed” as a “mixture or preparation for feeding livestock.” Thus when the definitions are put together, we find the statutory definition of “feedstuffs” to mean ALL MATERIALS WHICH ARE COMMONLY KNOWN AND USED AS a mixture or preparation for feeding livestock or poultry.” Of course Section 1 makes it plain that all such materials are exempt if they are “used. . .in producing” livestock or poultry. The Maine case of Lipman Poultry Company v. Johnson, supra, involved a totally different statute. The Maine Statute Chap. 17, § 10 (VII) provided: “Sec. 10. No tax on sales, storage or use shall be collected upon or in connection with: VII. Sales of seed, feed and fertilizer used in Agricultural production. . , 1 Thus having shown that the drafters of the statute intended to exempt all feedstuff material used in the production of livestock and poultry, the only issue is whether such products are commonly known and used as such. Here again the majority ignore the record. Dr, Robert W. Keirs, an Iowa State College graduate of veterinary medicine, testified that he had been connected with the poultry industry since 1958. He was familiar with the practice of administering materials which might be classified as drugs or medications or growth stimulants to poultry in Northwest Arkansas. He was familiar with such trade names as Vitapol, Floxaid and Vitilizer. These are trade names for mixtures of antibiotics- and vitamins. Their use is primarily with starting poultry in the first few days of life and are administered at other times during the period of production. “Birds don’t have to be sick or have anything wrong with them for these materials to be administered. The purpose of administering them is to better the conversion of feed protein and make the birds grow faster.” The materials can be administered in solid feed mix and are frequently fed that way in the industry. There is no appreciable difference in purpose or results when the materials are fed to the birds in water as compared to solid feed. The basic and primary purpose of feeding antibiotics at low levels is to promote growth and feed efficiency. Dr. David B. Fields, a veterinarian at Springdale, Arkansas, testified that he was at one time a director of the State Diagnostic Laboratory and that in his capacity as director of that State institution he had become aware of the practice of the poultry industry and how they feed chickens. He agreed with Dr. Keirs that mycin drugs and the vitamin compounds are used to increase feed efficiency either by growth or disease control. Such items are fed both in water and in feed. Dr. P. W. Waldrup, associate professor of poultry nutrition at the University of Arkansas, had published several reports on some of the mycins. He agreed with Dr. Keirs that the primary function of the vitamins and antibiotics involved was to increase the growth rate or feed conversion of poultry. He pointed out that the antibiotics and vitamins had been cleared by the F.D.A. for use in feed. According to him a typical broiler diet would, in addition to grain, soybean meal and poultry byproducts, include such things as limestone, phosphate source, salt and a vitamin mixture. Don Tyson graduated from the University of Arkansas in 1951, having taken all of the available animal and poultry nutrition courses that were offered. He has worked for Tyson’s since his graduation. He stated without equivocation that in such capacity he was in a position to know what ingredients were commonly sold and administered as feedstuffs in the State of Arkansas at the time Act 94 of 1955 became effective (Tyson produces over 800,000 tons of feed per year). He states- that when “feedstuffs” were exempted, vitamins and antibiotics were commonly known and used for feed for poultry. Added to the foregoing testimony is the fact that appellant and his predecessors recognized the vitamins and antibiotics to constitute “feedstuffs” until the present suit was filed. Thus we have the testimony of experts in poultry and poultry nutrition, all of whom recognize that vitamins and antibiotics are materials commonly known and used in the growth and production of poultry. In addition, appellant and his predecessors recognized the materials as Exempt. Under these circumstances I’m at a loss to understand the majority’s doubt that vitamins and antibiotics were “commonly known and used” in poultry feed. I, myself, find that all of the materials here involved are commonly displayed in the ordinary farm supply and feed store for purchase by any citizen without the necessity of a prescription or question as to the use thereof, and in containers giving directions for feeding to livestock or poultry. Added to the above is the recitation of the use of the antibiotics in the Lipman case, and the recognition given to the problem by the Maine Legislature in amending the Maine statute. For the reasons stated I would affirm as to the vitamins and antibiotics. Holt, J., joins in this dissent. Item No. VII during the pendency of the Lipman case was amended to read: “Sales of seed, feed, hormones, fertilizer, pesticides, insecticides, fungicides, weed killers, defoliants, litter and medicines used in agricultural production... .” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7818822. Public record. Not legal advice.