On Rehearing.
LEE, Circuit Judge.When this case was submitted to this court on appeal it was asserted in the briefs for both parties that, since the action was to compel a forfeiture, the burden was upon the Government to prove by clear and convincing evidence that the oysters shipped in commerce as food were decomposed in whole or in part. Counsel on the argument stated that this court heard the case in the manner of admiralty appeals by reason of the statutory provision that, in condemnation proceedings under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq., the procedure should conform as nearly as may be to the procedure in admiralty.
Acting under these assurances, this court reviewed the evidence in the light of these principles and reached the conclusion that, while there was evidence of a substantial character indicating that the oysters were partially decomposed, the proof on this material issue was not clear and convincing. In our opinion rendered October 30, 1944, the judgment accordingly was reversed and the cause remanded with direction that the libel be dismissed.
Upon petition for rehearing the Government with apologies retracted its former representations relative to the burden of proof, taking the position that it was only obliged to prove its case by a preponderance of the evidence in the trial court, and that *824the scope of review on appeal was limited, as in other civil cases, by Rule 52 of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, requiring that the findings of fact of the trial court be not set aside unless clearly erroneous. These matters being vital to a determination of the appeal, we granted a rehearing.
Though such condemnation proceedings conform, as nearly as may be, to the procedure in admiralty in the trial court, it is expressly provided by Rule 81(a)(2) of the Federal Rules of Civil Procedure that said rules govern appeals in proceedings fur forfeiture of property for violation of a statute of the United States. Cf. 443 Cans of Frozen Egg Product v. United States, 226 U.S. 172, 33 S.Ct. 50, 57 L.Ed. 174. Therefore the case on appeal is not heard anew, but the findings of fact of the trial court must be accepted as true unless they are clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure.
It is the general rule that statutes imposing forfeitures, being penal in nature, are to be strictly construed in favor of the defendant.1 The requirement in condemnation cases of a higher degree of proof than a mere preponderance is a natural corollary of this rule of construction.2 But in United States v. Stowell, 133 U.S. 1, 10 S.Ct. 244, 33 L.Ed. 505, it was held that statutes enacted for the public good and to suppress a public wrong, although they impose penalties or forfeitures, are not to be construed strictly in favor of thé defendant but should be fairly and reasonably construed so as to carry out the intention of Congress.3 The Federal Food, Drug, and Cosmetic Act was enacted in the interests of the public welfare to protect the public health, and courts must give it effect according to its terms.4
In our prior opinion we set forth the evidence in detail. It is readily apparent from that discussion that there was substantial evidence to warrant the finding of the trial court that the oysters were in part decomposed. The decree of condemnation entered thereon was therefore correct.5 The judgment heretofore entered herein is set aside, and the judgment appealed from is affirmed.
Farmers’ & Mechanics National Bank v. Dearing, 91 U.S. 29, 23 L.Ed. 196; United States v. One Ford Coach, 307 U. S. 219, 59 S.Ct. 861, 83 L.Ed. 1249; United States v. Lacher, 134 U.S. 624, 10 S.Ct. 625, 33 L.Ed. 1080.
Van Camp Sea Food Company v. United States, 3 Cir., 82 F.2d 365
See also Taylor v. United States, 3 How. 197, 11 L.Ed. 559; United States v. State Bank, 6 Pet. 29, 8 L.Ed. 306; Beaston v. Farmers’ Bank, 12 Pet. 102, 9 L.Ed. 1017.
United States v. Antikamnia Company, 231 U.S. 654, 34 S.Ct. 222, 58 L.Ed. 419; United States v. Lexington Mill, etc., Company, 232 U.S. 399, 409, 34 S.Ct. 337, 58 L.Ed. 658, L.R.A.1915B, 774; United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134; A. O. Anderson & Co. v. United States, 9 Cir., 284 F. 542; United States, v. 48 Dozen Packages of Gauze, 2 Cir., 94 F.2d 641; United States v. Research Laboratories, 9 Cir., 126 F.2d 42.
21 U.S.C.A. §§ 342(a) (3) and 334(a).