I do not take issue with what has been said in the majority opinion in this case, but do take issue with the action of the Court in saying anything at all except to say “Petition denied”. The opinion of this Court seems to correctly interpret the applicable part of Federal Food and Drug and Cosmetic Act, but the majority, in my view, has indulged in the vacuous pastime of writing an advisory opinion “for the guidance” of the Court below.
We were petitioned for a writ of mandamus — not for advice — and the petitioner has not shown itself to be entitled to such a writ. It is the universal rule that a relator in mandamus must positively show not only that a clear duty' devolves upon the respondent to perform a duty but that relator has a clear right to the performance of that duty. The petitioner has wholly failed to show a clear right to performance of the alleged duty.
The United States Attorney filed the libels in July, 1940, alleging that the food products were “adulterated * * * in that it consists in whole or in part of a filthy animal substance”. It is not alleged that all of the cans of butter are adulterated, and nowhere were any facts alleged as to what the “filthy animal substance” was. Claimant promptly filed a motion for a more definite statement or for a bill of particulars. It was clearly entitled to have a bill of particulars showing whether all cans were adulterated and also what filthy matter was claimed to be in the product sought to be condemned. The motion was filed July 16, 1940. The petitioner did not supply the bill of particulars, nor does the record show that it ever set the motion down for a hearing. It is difficult to see how claimant could prepare its defense in *21the absence of fuller information. The claimant has never answered. The case is not at issue, yet the United States Attorney is now shouting for a trial, and petitioning for a writ to require a trial when the case is not at issue and, for all the record shows, the delay is chargeable as much to him as to the claimant. Surely the Judge is not chargeable with the defect of petitioner’s pleading in lack of specificity. The United States Attorney evidently was possessed of the information as to the alleged filthy animal substance because he now goes entirely out of the record and repeatedly asserts in his brief — which he surely knows is no substitute for pleading — that the butter contains maggots, dirt, hair, feather and maggot fat and other filthy matters.
The United States Attorney has not placed himself in position to insist that he has a clear right to have the respondent proceed to an immediate trial. Furthermore, he is seeking by mandamus to have this Court review an interlocutory order of the Court below. In this he succeeded. Mandamus is not a substitute for appeal. The action of the Court below may have been irregular, but no one is injured except perhaps the claimant. All costs of renovation are placed on it. Jurisdiction is retained. The Court can order renovated butter condemned as well as it can unrenovated butter. It is not being eaten while in custody of the Court.
Petitioner is not hurt but he hollered nevertheless.
I respectfully dissent.