§ 2-2-31 — Seizure and Condemnation of Adulterated, Misbranded or Substandard Article

Any article, substance, material or product which is subject to the provisions of this article which is adulterated, misbranded or under the standard, grade, weight or measure claimed, within the meaning of any provision of law or rules and regulations under authority of law, and which is manufactured for sale, held in possession with intent to sell, offered or exposed for sale or sold or delivered within this state shall be liable to be proceeded against in the circuit court of the county where the same is found and seized for confiscation by writ of attachment for condemnation. Such writ shall issue upon the sworn complaint of the commissioner or his duly authorized agent, taken by an officer authorized to administer an oath, to the effect that such article or product is adulterated or misbranded or is under the standard, grade, weight or measure claimed, as the case may be, within the meaning of any provision of law or rules and regulations under authority of law. The said sworn complaint by said commissioner or his duly authorized agent may be amended at any stage of the proceedings. Said writ shall be returnable in five days to the court issuing the writ. Such court shall hear and decide whether the allegations of the complaint are true and whether said article or product shall be condemned and confiscated. Such hearing shall not be had until five days’ notice of the date therefor shall have been served on the owner, his agent or any other party having an interest in the same, except as otherwise provided in this section. Service of a copy of the writ of attachment showing the returns of the attaching officer shall be sufficient notice for the purposes of this section. Such writ may be executed by the commissioner, his duly authorized agent or by any sheriff or constable in the state. Upon the seizure of the article or product described in the affidavit, it shall be the duty of the officer or person executing the writ to return same to the circuit court with his return thereon, and, within five days after its return, the court shall make up an issue between the state as plaintiff and the property seized as defendant. In the event that the owner or his agent cannot be found in this state, then said service may be perfected by posting a copy of the writ in a conspicuous place upon the premises where the goods were found and seized and by mailing a copy thereof by registered or certified mail to the owner or his agent at his last known address, and this shall be deemed to be sufficient service of the notice required by this section. If upon the return day of such writ of attachment the owner of the article or product, his agent or other party having an interest in same thus notified fails to appear and show cause why said goods should not be condemned, judgment of condemnation and confiscation shall, upon such default, be entered by the court on the basis of said complaint. If such owner or agent or other party having an interest in such article or product shall, on or before the return day of the writ of attachment or upon such other day as the court upon application of such party may determine, file an answer upon oath denying the allegations of adulteration, misbranding or under standard, grade, weight or measure, as the case may be, in said complaint, the issue thus raised may be determined by the court after hearing all the evidence offered by or on behalf of all the parties to the proceedings. Any such party may demand a jury trial of any issue of fact to be determined in the proceedings instituted under this section; and, in case a jury trial is demanded, the judgment entered by the court shall be in accordance with the facts as found by such jury; provided, that the verdict of the jury may be set aside by the court where manifestly contrary to the evidence or law. If a judgment of condemnation and confiscation is entered against such article or product as being adulterated, misbranded or under standard, grade, weight or measure, within the meaning of any provision of law or rules and regulations under authority of law, the same shall be disposed of by destruction or sale as the court may direct, and the proceeds thereof, if sold, less the legal costs and charges shall be paid into the Agricultural Fund, but such goods shall not be sold contrary to the provisions of this article; provided, that upon the payment of the costs of such attachment proceedings and the execution and delivery of a good and sufficient bond to the effect that such article shall not be sold or otherwise disposed of contrary to the provisions of this article, the court may by order direct that such article or product shall be delivered to the owner thereof.

Legislative History

(Ag. Code 1927, §218; Code 1940, T. 2, §495.)