# Jurisdictional Statement — Orkin Exterminating Co. v. Gulf Coast Rice Mills > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0397%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1963 - **Citation:** 375 U.S. 57 ## Text SUBJECT INDEX Page Opinions Below 2 Jurisdiction 2 Questions Presented 5 Statement of theCase 6 j. Procedural History of the Case 6 li. Facts Material to the Questions Presented 6 Il. Federal Question was raised timely below in Appellate Court 14 Argument 17 . Summary of Argument 17 Il. The application of the state and city laws, as construed by the Court below, prohibiting the praetce of any“ amount of Lindane in processed food, violates the Due Process 2nd 1 gual Protection Clauses of the 14th Amend- ment and the Supremacy Clause of the Federal Constitution 18 II. hese Federal questions are substantial 21 8 Proof “of Service 23 Appendix A" ° 25 \ppendix B“ 40 Appendix UC" 90 Appendis “DY? $3 LIST OF AUTHORITIES Cases Page Boynton v. Virginia, 364 U.S. 454, 5 L.Ed.2d 206, 81 S.Ct. 182 4 Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 74 L.Ed. 1107, 50 S.Ct. 451 3 Cloverleaf Butter Co. v. Patterson, 315 U.S. 148 86 L.Ed. 754, 62 S.Ct. 491 21 Herndon v. Georgia, 55 S.Ct. 794, 295 U.S. 441, 79 L.Ed. 1530 3, 14, 15 Metlakatla Indian Community v. Egan, 80 S.Ct. 1321, 363 U.S. 555, 4 L.Ed. 1397 3 Michigan Wisconsin Pipe Line Co. v. Calvert, 74 S. Ct. 396, 347 U.S. 157, 98 L. Ed. 583 4 Missouri ex rel. Missouri Insurance Co. v. Gohner, 281 U.S. 313, 74 L.Ed. 870, 50 S.Ct. 326 3 Oregon-Washington R. & N. Co. v. Washington, 270 U.S. 87, 70 L.Ed. 482, 46 S.Cr. 279 21 Saunders v. Shaw, 244 U.S. 317, 320, 61 L.Ed. 1163, 1165, 37 S.Ct. 638 3. 16 CONSTITUTION OF THE UNITED STATES Fourteenth Amendment 5, 6, 11, 13 Supremacy Clause (Art. 6) X. UNITED STATES STATUTES 21 U.S. C. A. 342 „ , 1. , 0 21 U.S. C. A. 346 7, 11. 12, 16, 17, 18, 19 28 U.S.C.A. 1257(2) 3 CODE OF FFDERAL REGULATIONS Title 21, Sec. 3.41 . 4, 20 Title 21, Sec. 120.1 $, 20, 22 Title 21, Sec. 120.101 4,22 REVISED CIVIL STATUTES OF TEXAS Article 4472 4 — PENAL CODE OF TEXAS Article 707 4 IN THE Supreme Court of the Anited States October Term, 1963 ) iS ORKIN EXTERMINATING COMPANY, INC., Appellant v. GULF COAST RICE MILLS, Appellee JURISDICTIONAL STATEMENT UPON APPEAL FROM THE COURT OF CIVIL APPEALS FOR THE FIRST SUPREME JUDICIAL DIS- TRICT OF TEXAS Appellant Orkin Exterminating Company submits here- with its statement particularly disclosing the basis upon which this Court has jurisdiction on appeal to review the judgment of the Court of Civil Appeals for the First Su- preme Judicial District of Texas, entered in the above- entitled cause Number 13,998 in such Court on November 8, 19862. 2 OPINIONS BELOW The opinion of the Court of Civil Appeals herein sought to be reviewed is reported in 362 S.W. 2d 159, and is ap- pended hereto as Appendix “A”. An earlier opinion, upon the first appeal of this case to the Court of Civil Appeals for the Tenth Supreme Judicial District of Texas, was reported in 343 S.W. 2d 768 and is appended hereto as Appendix “B”. The appeal from the earlier decision was dismissed by the Texas Supreme Court (upon jurisdictional procedure issues not relevant here) in 347/S.W. 2d 250. JURISDICTION I. The proceeding below was an ordinary damage suit based on negligence and breaches of contract and of war- ranties, and therefore it was not brought pursuant to any particular statute but only pursuant to the common law. The various statutes involved therein, by virtue of . lee's pleadings and laws judicially noticed, are quoted in Appendix C“ and in subparagraph 5 below. The specific ruling which raised the questions here on appeal was the ruling of the Houston Court of Civil Ap- peals substantially to this effect: That the use of the pesti- cide Lindanc“, in the processing of food in Texas, is pro- hibited as being in violation of both federal and loc 9 statutes, notwithstanding federal regulations which sanc- tion the use of such pesticide in food in certain quantities. 2. The judgment sought to be reviewed herein was ren- dered and entered by the (Houston) Gourt of Civil Ap- peals for the First Supreme Judicial District of Texas on November 8, 1962. A Motion for Rehearing was over- ruled by that Court on November 29, 1962. Application 3 for Writ of Error to the Supreme Court of Texas was re- fused by the Supreme Court of, Texas on March 6, 1963. A Motion for Rehearing was overruled by the Supreme Court of Texas on April 10, 1963. Notice of Appeal to this Court was filed by Appellant in the said Court of Civil Appeals on July 1, 1963. 3. The” jurisdiction of this Court is invoked under 28 U.S. C. A. 1257 (2). Appellants challenge the validity of Texas statutes and City of, Houston ordinances, as con- strued by the Texas appellate court, on the ground that such statutes and ordinances as so construed are repug- nant to the Constitution and statutes of the United States, and the decision of the highest court of the state was in favor of their validity. Review is also being sought herein by Certiorari, and this Court is respectfully asked to consider this appeal in con- junction with the Petition for Writ of Certicrs:i bearing the same caption as this statement. 4. Cases believed to sustain the jurisdiction of this Court on appeal include the following: (a) The questions were timely raised after unantici- pated appellate court rulings: Herndon v. Georgia, 35 S. Ct. 794, 295 U.S. 441, 79 L.Ed... 1530; Saunders v. Shaw, 244 U.S. 317, 320, 61 L.Ed. 1163, 1165, 37 S.Ct. 638; Missouri ex rel. Missouri Insurance Company v. Gobner, 281 U.S. 313, 320, 74 L.Ed. 870, 875. 50 S.Ct. 326; Brin verbo Faris Trust & Savings Company v. Hill, 281 U.S. 673, 677, 678, 74 L.Ed. 1107, 1111, 1112, 50 S. Ct. 451. (b) An asserted conflict between state law and federal regulations presents questions reviewable by this court on 4 \ appeal from state : Metlakatla Indian Community 5 Egan, 80 S.Ct. 121, 563 U.S. 555, 4 L.Ed. 1397. (e) An appeal is properly taken from intermediate appellate court where its judgment upheld validity of state statute and Texas Supreme Court refus d writ of error: Michigan-Wisconsin Pipe Line Co.. v. Calvert, 74 S.Ct. 396, 347 U.S. 157, 98 L.Ed. 583. (d) All questions having the same substantial core as those specifically preserved below may be considered by this Court: Boynton v. Virginia, 364 U.S. 454, 5 L.Ed.2d 206, 81 S. Ct.. 182. 5. Lengthy statutes involved herein are quoted in Ap- pendix “C”; their citations are: Penal Code of the State of Texas, Chapter 2, Title 12 (Vernon’s Annotated Statutes, 2 Penal Code 37-38) Article 707; Civil Statutes of the State of Texas (12A, Vernon’s Annotated Civil Statutes 325) Article 4472; Ordinances of City of Houston (City Code of Houston, Texas, 1942, page 454) Section 868. The principal statutes involved are the following ‘sections of the Code of Federal Regulations (1955) Title 21: Section 3.41. “(a) The amendment in clause (2) of Section 402 (a) of the Federal Food, Drug and Cosmetic Act shall become effective on the dates spe- cified for the following pesticide chemicals: * * (2) Effective date October 31, 1955: * * * Lindane: . . . Grain (from treating storage bins)“ Section 120.101 “* * (a) (1) This section desig- nates the poisonous or deleterious substances. that. fdr the purposes of section 406 of the Federal Food, Drug and Cosmetic Act, are found to be required in the production of the fresh fruits or vegetables named in 5 paragraph (e) of this section. * * (c) * * * (2) For the purposes of this section, where a tolerance of parts per million for benzene hexachloride is set, it shall be deemed applicable to commercial benzene hexa- chloride, which is a mixture of several isomers. If the gamma isomer, known as Lindane, is used exclusively of other isomers, the tolerance shall be 10 parts per million.” (emphasis added) Section 120.1 “*.* (f) Where raw agricultural commodities beating residues that have been exempted from the requirement of a tolerance, or which are within a tolerance permitted under section 408 are used, the processed foods will not be considered un- safe within the meaning of section 406 if (1) The poisonous. or deleterious pesticide residues have been removed to the extent possible in good manufacturing practice; and (2) The concentration of the pesticide in the preserved or processed food when ready to eat is not greater than the tolerance permitted on the raw agricultural commodity.” — QUESTIONS PRESENTED I. Are the Due Process and Equal Protection clauses of the Fourteenth Amendment, and the Supremacy Clause (Art. 6) of the Constitution of the United States violated by state and city “pure food laws” which provide, as con- strued by the Texas Court of Civil Appeals, that food may be condemned upon the basis of a jury finding that any, amount of a pesticide chemical may render such food in- jurious to health, in view of the conflict between such laws and Federal regulations which provide that such food con- taining 10 parts per million of such pesticide chemical shall not be considered injurious to health under the Fed- eral Food, Drug and Cosmetic Act? 2. Does the Texas Court of Civil Appeals’ judgment, holding that the use of a pesticide chemical in “any” amount in procesxd food is prohibited in Texas by federal and local law, violate the Immunities, Due Process and Fqual 6 Protection clauses of the Fourteenth Amendment to the Constitution of the United States by denying to food processors the right to rely upon federal regulations which sanction the presence of such chemical in such food? STATEMENT OF THE CASE I. Procedural History of the Case Respondent sued petitioner, in an ordinary damage suit upon theories of negligence and breach of contract. for damages incurred by respondent in obeying compliance orders issued by Federal and State food inspectors and city health inspectors. Respondent claimed that petitioner was legally liable for the consequences of such violations. After one jury trial and an appeal therefrom in which this suit was remanded for retrial, a second jury trial resulted in a District Court judgment for respondent upon a jury verdict finding petitioner negligent. This District Court judgment was affirmed by the Texas Court of Civil Appeals in the opinion herein presented for review. Petitioner’s motion for rehearing in such Court was overruled, and petitioner duly filed its application for a writ of error to the Supreme Court of Texas, which was refused by the Supreme Court, endorsed “Refused”— no reversible error“ on March 6, 1963. Petitioner's mo- tion for rehearing was overruled by the Supreme Court ot Texas on April 10, 1963, after which action this peti- tioner had no further remedy for appellate review in the State courts of Texas. II. Facts Material to the Questions Presented (Parenthetical references, S. F.“, are to trial court’s STATEMENT OF FACTS in the record presented with this staternent. } 7 The incident from which this suit arose occurred on August 24, 1955, at the Gulf Coast Rice Mill, when a Federal Food and Drug Administration inspector found that respondent’s milled rice contained traces of 2 pesticide chemical, Lindane, which he believed to be prohibited for use upon such rice by the Federal Food and Drug Act (S. F. 48, 64, 75, 132, 401-402). The federal inspector declared the rice contaminated and adulterated (S.F. 402). The opinion of the Texas Court of Civil Appeals, presented herein for review, correctly states the facts in this con- nection: 362 Southwest 2d at Page 162. The quantity of Lindane found in the rice ranged from zero (S.F. 284-285, 290) to 3.6 parts per million parts of rice (S. F. 286-282). The inspector threatened to-seize the rice if it were shipped (S.F. 75). The Federal us and Drug Administration had been given authority to establish “tolerances”, regulating amounts of pesticides used in foods, in 1938 by Section 346 of the Federal Food and Drug Act; however, this power was not exercised and Section 346 remained in disuse. In 1954, the Pesticide Amendment to the 1938 Federal Food, Drug and Cosmetic Act was passed, authorizing the Administra- tion to establish tolerances for the use of pesticide chem‘cals upon “raw” agricultural commodities (Clause (a) (2) (B) of Section 342, Title 21 U.S.C.A.). The Administration began fixing such tolerances in 1955, but had not set any tolerance for the use of Lindane upon rice (or any other “grain” in its raw state) as of the time of the in- spection and compliance orders given by the Federal in— spector on August 24, 1977. Local state and city inspectors also advised respondent . that its rice was adulterated under the law. and would 8. have to be cleaned by remilling in order to be brought into compliance with state statutes and city ordinances (S.F. 74-75); the facts in this respect are correctly stated by the Texas court below. The respondent acceded to the orders of all officials and incurred damages in the sum (not disputed by petitioner) of over $36,000 (not in- cluding interest) in bringing its rice into tompliance with the food statutes of the federal, state and city govern- ments (S. F. 61-62). Respondent thereafter, nearly two years after such incident (1 Transcript 2), filed this suit against petitioner to recover the money expended in obey- ing such compliance orders, alleging that it had neces- sarily obeyed such inspectors’ orders under such threats of prosecution (I Transcript 2-11). Respondent’s allegations in its suit set forth à negli- gence action in the usual form and also actions for breach of warranty and breach of contract, which alleged not only breaches based upon the use of the Lindane, but also based upon faulty methods of insect control allegedly caus- ing the same damage (I Transcript 4-11). Pleading in reply thereto, petitioner alleged a general denial and only such affirmative defenses, i. e., statute of limitations, laches, estoppel, waiver, and contributory negligence as was re— quired by Texas Rules of Pleading (I Transcript. 13-19). In a jury trial, re.pondent introduced evidence of faulty insect control (S. F. 65-66) as well as of the government inspectors’ administrative findings of adulteration by the “prohibited” pesticide chemical (S. F. 25). While no evi- dence of any other administrative finding by the federal inspector was adduced, there was testimony offered by the Director of the Division of Food and Drugs, Department of Health for the State of Texas, that his Department was prepared to take action against respondent on account of the presence of the Lindane (S.F. 278) and that in his Scientific opinion, ay amount of Lindane in such rice “might render it injurious to health“, no matter what the amount [S. F. 298-299]. Medical witnesses also testi- fied that trace amounts, as little as .06 parts per million, might have rendered the rice “injurious to health” (S.F. 305-310, 311-315). The jury verdict was upon special issues finding that the Lindane “tmay have rendered the rice injurious to health”, that the application of it by petitioner was negli- gence, and that such application was a proximate cause of the damages claimed (I Transcript 55-56). The jury verdict is quoted in the judgment rendered thereon, and such Trial Court judgment is appended hereto as AP- PENDIX "D”. Judgment was entered on the verdict alone, and without any legal conclusions or findings of law (I Transcript 54-59). Petitioner asserted the only grounds appropriate under Texas law as grounds for its motion for judgment non obstante veredicto, to-wit: that there was no evidence” to support the verdict and that all pleadings and evidence showed that no cause of action had been made out. (J Transcript 45-50). There being no findings made against petitioner with respect to its having been guilty of violations of any food or health statutes or other law, petitioner appealed from uch judgment by relying upon its motion for a judgment N.O.V. upon the theory that no cause of action had been made out in tort or contract (BRIEF FOR APPELLANT ORKIN EXTERMINATING COMPANY, pages 1 d 44). 10 The Court of Civil Appeals (Houston) affirmed. The judgment of the Court of Civil Appeals complained of herein was based upon two specific legal conclusions: 1. Since no tolerance for Lindane on milled rice as applicable to the facts of this case had been estab- lished by the Secretary of Health, Education and Welfare, the addition of any amount of Lindane to such milled rice was in violation of Section 342 (a) (2) of the Federal Food, Drug and Cosmetic Act. and especially so if it may have rendered the rice injurious to health.” (Opinion, at 362 S. W. 2d 164, paragraph (1, 2) ). te .. * There is substantial evidence showing that Lindane in any quantity on rice may render such ar- ticle injurious to health.“ (Opinion, at 362 S. W. 2d 163, last paragraph). Further, that Court held generally that all local laws, as pleaded, had been violated. These legal findings of law vielations, the first such findings made by any person or agency since those made on August 24, 1955, against Respondent, were contested by Petitioner in its Motion for Rehearing in the Court of Civil Appeals (Houston) upon the following grounds (a certified copy of original MOTION FOR REHEAR- ING is contained in the record filed herewith) : (1) The holding that “there is substantial evidence showing that Lindane in amy quantity on rice may render such article injurious to health” violates the Constitution of the United States in that it conflicts with the Federal Food. Drug and Cosmetic Act and regulations promul- gated thereunder. (paragraph 1 of such Motion). 11 8 (2) The holding that the evidence supported à finding that .02-to 3.6 parts per million of Lindane may have rendered the rice injurious to health, violated the Con stitution of the United States in that it conflicts with the Federal Food, Drug and Cosmetic Act (paragraph 2 of such Motion). (3) The holding that no tolerance had been established for Lindane, and that therefore any quaatity of Lindane was prohibited as being possibly injurious to health, con- flicts with the Federal Food, Drug and Cosmetic Act, and thus violates the Constitution of the United States (para- graph 3 of such Motion). a (4) The holding that a jury fact question was raised, by evidence of Lindane in the rice in amounts ranging from none to 3.6 parts per million, conflicts with the Federal Food, Drug and Cojmetic Act and therefore vio- lates the Constitution of the United States (paragraph 4 of such Motion). (§) The holding that state and city laws were violated by application of Lindane in such amounts was in con- flict with the Federal Food, Drug and Cosmetic Act, and therefore violated the Constitution of the United States; further, such holding conflicts with federal statutes which have pre-empted regulation of such matters, and such holding violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in that it is arbitrary, unreasonable and discriminatory (paragraphs 5, 6 and 7 of such Motion). (6) There is no evidence to support any cause of action and a verdict should have been directed and judgment rendered for Defendant (Petitigner) (paragraphs 8-11 of nich Motion). 12 7 Petitioner's Application for Writ of Error to the Texas Supreme Court asserted the \ constitutional questions as follows: POINT 1: The Court of Civil Appeals erred in hold- ing that Section 346 of the federal food laws was ap- plicable herein, and that since no tolerance for Lindane had been established thereunder, the rice was adulterated under Section 342 () (2) of the federal lav. POINT 2: Such Court erred in construing Section 346 of the federal food laws as applicable herein, when such statute so construed is unconstitutional as being an invalid delegation of legislative power to the judiciary under the United States Constitution and the Court's construction constitutes a usurpation of legislative power. POINT 3: Such Court erred in construing Section 346 of the federal food laws as applicable herein, when such statute so construed is unconstitutional as being a denial of due process of law under the United States Constitution. POINT 4: Such Court erred in holding that “any” amount of Lindane on milled rice may render such rice adulterated under either federal, state ar city food laws, because such holding is a judicial act in conflict with federal law in an area preempted by the federal govern- ment and is therefore in violation of the Federal Con- stitution, POINT 5: The Court of Civil Appeals erred in hold— ing that there was substantial evidence, supporting the jury's finding that Lindane in “any” quagtity on rice may render it injurious to health and therebv/adulterated under Section 342 (a) (1), where there was evidence to sup- port such holding. 13 POINT 6: Such Court erred in construing Section 342 (a) (1) as being violated by the presence of “any” amount of Lindane to the rice, because such statute so construed is unconstitutional as being an invalid delegation of legis- lative power to the judiciary under the United States Constitution and the Court’s construction constitutes a usurpation. of legislative power. POINT 7: Such Court erred in holding that there is substantial evidence showing that Lindane in “any” quan- tity on rice may render it injurious to health, because such adjudication is an unconstitutional denial of due process by such State tribunal in violation of the Four- teenth Amendment of the United States Constitution. POINT &: Such Court erred in construing the state statute and city health ordinance as rendering the rice adulterated by the presence of “any” quantity of Lindane, because such statute and ordinance so construed are un- constitutional as being in conflict with the Federal Food, Drug and Cosmetic Act and regulations promulgated thereunder, in violation of the United States Constitution. POINT 9: 59 ‘ Defendant duly excepted to the foregoing judgment in open Court and gave notice of appeal to the Court of Civil Appeals for the First Supreme Judicial District at Houston, Texas. : RENDERED, ENTERED and SIGNED at Houston, Texas on day of January, 1962. /s/ MUL M. Hoiianp Judge APPROVED AS TO FORM ONLY: ‘CARNES & MARTIN By Burke M. Martin Attorneys for Plaintiff THE KEMPERS By Jou D. RicHarpson - Attorneys for Defendant --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0397%3A2. Public record. Not legal advice.