(7th Cir. 1944). Clearly, a literal reading of Order No. 4 indicates that any sterilized product in a hermetically sealed container is expressly excluded from the definition of fluid milk products.
However, the judicial officer rejected the clear meaning of the statute and rested his decision upon the history of the order provision. In 1956 the original Order which was issued in 1952 was amended and the new definition exempted sterilized products in hermetically sealed containers. Prior to this time the predecessor Order had specifically included, within Class I, milk not sterilized and not in hermetically sealed cans. It is defendant's contention that, since at the time of the amendment there were in existence no sterilized fluid milk products in hermetically sealed containers except canned evaporated and condensed milk, the word 'containers' in the present Order was used simply as a synonym for 'cans'. Secondly, the judicial officer concluded that the original exemption was not made only because of the sterilization and packaging but also because canned evaporated and condensed milk has to compete with less expensive manufacturing milk made into canned evaporated or condensed milk in other parts of the country and sold on a national market. Since there was no evidence that "Pour-Shun Pak" has to compete for sales with a similar product made from lower cost manufacturing milk it was concluded that this exemption was never intended to apply to a product such as "Pour-Shun Pak" but rather included only canned evaporated and condensed milk.
Initially, it is unclear as to why it was necessary to refer to the legislative history as an aid to interpreting the order language when the plain meaning of the language is explicit. Certainly situations exist where too literal a reading of a statute may materially alter the intended meaning. See Lynch v. Overholser, 369 U.S. 705, 82 S. Ct. 1063, 8 L. Ed. 2d 211 (1962). However, such is not the case here. The arguments advanced by defendant might very properly be made to a congressional committee or to the Secretary at the public hearing where he was seeking to amend the present Order. However, under present consideration is the Order as it now exists, not the Order as it could have been drafted or as perhaps it may be amended in the future. In examining the Order in force when the transactions in this case took place this court finds no ambiguity which would require resort to legislative history as an aid in determining any underlying purpose. The purpose of the Order is clear; to exclude from Class I any sterilized product in a hermetically sealed container. Any other conclusion would explicitly conflict with the clear meaning of the Order and thus serve to entrap rather than to guide those who are governed by the Order. Barron Coop. Creamery v. Wickard, supra.
In Leaman v. District of Columbia, 60 App. D.C. 395, 55 F.2d 1020 (1932), the court examined a statute which required that "cream" could not be brought into the District without a permit from the local health officer. Plaintiff argued that since the purpose of the statute was to prevent the sale of impure cream it was not applicable to sterilized cream since the process of sterilization met the objects of the statute, and that, therefore, this new method, not in existence when the act was passed, should not now be considered within its terms. The court held that the word "cream" in the statute was so plain as to leave no room for construction and therefore included sterilized cream, irrespective of the fact that the sterilization process negated the possibility that impure cream would be slipped into the District.
Similarly, the words "sterilized products in hermetically sealed containers" are so plain as to leave no room for construction. The fact that sterilized products, at the time of the amendment to the Order, may only have existed in hermetically sealed cans rather than containers does not change the fact that the Order was written to specifically exclude all sterilized products in hermetically sealed containers and makes no distinction as to the types of containers in which the products are packaged. Thus, it is quite clear that the ruling of the judicial officer is not in accordance with law.
And now, this 15th day of July, 1970, it is hereby ordered that
(1) Plaintiffs' Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56 is granted,
(2) Defendant's Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56 is denied.
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