George Benz & Sons v. Hardin
| Citation | 342 F. Supp. 88 |
| Decision Date | 25 April 1972 |
| Docket Number | No. 4-71 Civ. 58.,4-71 Civ. 58. |
| Parties | GEORGE BENZ & SONS, Plaintiff, v. Clifford M. HARDIN, Secretary of Agriculture, Defendant. |
| Court | United States District Courts. 8th Circuit. United States District Court of Minnesota |
Robert O. Sullivan, St. Paul, Minn., for plaintiff.
Victor W. Palmer, Dept. of Agriculture, Washington, D. C. and Neil J. Shapiro, Asst. U. S. Atty., Minneapolis, Minn., for defendant.
ORDER GRANTING SUMMARY JUDGMENT
This is an action brought under 7 U.S.C. § 608c(15) (B), with jurisdiction conferred on this court thereunder and under 7 U.S.C. § 608a(6), to review a decision of the Secretary of Agriculture amending the Minneapolis-St. Paul Milk Marketing Order No. 68 by enlarging its geographical area to include a number of counties in Minnesota contiguous or proximate to the area established circa 1945 when the original milk marketing order was promulgated. Plaintiff was an unregulated milk handler, who had and has its principal place of business outside the original geographical area and has sold less than the minimum quantity of fluid milk within the regulated area but who now finds itself situated in the expanded and regulated area. The applicable statute permits such an aggrieved handler to file "a bill in equity" for review and "If the court determines that such ruling is not in accordance with law it shall remand" with directions or "take such further proceedings as . . . the law requires." It is clear from numerous decisions that the court's function here is not de novo but is an appellate one and is limited to a determination as to whether plaintiff received due process and, on the merits, to a determination as to whether or not the order or ruling under review is supported by substantial evidence in the record. United States v. Mills, 315 F.2d 828 (4th Cir.), cert. denied sub nom. 375 U.S. 819, 84 S.Ct. 57, 11 L.Ed.2d 54 (1963); Ogden Dairy Co. v. Wickard, 157 F.2d 445 (7th Cir. 1946), cert. denied 330 U.S. 827, 67 S.Ct. 867, 91 L.Ed. 1276 (1947).
Plaintiff attacks the Secretary's order on the ground first that there is no substantial evidence to support the expansion and second that it has been denied due process in that in obtaining the required approval of at least two-thirds of the milk producers in the area as required by 7 U.S.C. § 608c(9) (B) (i), the Secretary through his delegate violated the "one man one vote" rule of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and its progeny and in other ways conducted an illegal referendum. Defendant has moved for summary judgment which motion was argued originally September 14, 1971 and on the court's own invitation re-argued March 22, 1972.
To determine whether the Secretary's order is supported by substantial evidence, the court has read the entire three volumes of transcript of the hearing AO 178-A23 of June 25, 1968 before the Department of Agriculture and examined another large volume of exhibits, briefs and proposed findings. The court is satisfied that there was substantial evidence to support the Secretary's findings and order. The field is one of unusual expertise. Many if not most of the arguments advanced against expansion were discussed, together with the reasons therefor, in United States v. Mills, supra, where a milk marketing area included the city of Baltimore and a number of adjacent rural counties. The milk marketing act of 1937 has been held constitutional United States v. Rock Royal Co-op, 307 U.S. 533, 59 S.Ct. 933, 83 L.Ed. 1446 (1939), including the provision for a referendum requiring approval of two-thirds of the producers in the area. That case explains the scheme of the milk marketing orders and their operation and this court will not purport to restate such. In the case sub judice far more than two-thirds of the producers approved in a referendum conducted by the Secretary. At the second hearing before this court on the motion for summary judgment the court became aware for the first time that the order covering the enlarged geographical area had actually been in effect for a period of some two and a half years and handlers had been operating thereunder. The court was tempted under 7 U.S.C. § 608c(15) (B) to exercise its power of remand to the Department of Agriculture for the taking of additional evidence to determine how the enlarged plan is in fact operating, rather than rely on prospective evidence based on figures and calculation now nearly five years old predicting then the future effect of enlarging the regulated area. A careful reading of the law, however, and the fact that this is not a de novo proceeding has discouraged the court from so doing. The remedy for a dissatisfied handler is found in other sections of the law permitting him to petition the Secretary of Agriculture for a new hearing where up-to-date conditions would be examined. The court, though curious as to how the enlarged plan has been operating, is satisfied that the Secretary's Amending order was based on substantial evidence at the time of the 1968 hearings and should be affirmed and not set aside, nor should any injunction issue.
Plaintiff attacks the referendum on constitutional grounds. 7 U.S.C. § 608c(9) as above stated requires approval of two-thirds of the producers in the area before a milk marketing order or an amendment thereto can be issued and Section 608c(12) provides in part:
". . . the Secretary shall consider the approval or disapproval by any cooperative association of producers . . . as the approval or disapproval of the producers who are...
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Abbotts Dairies Div. of Fairmont Foods, Inc. v. Butz
...v. Freeman, 401 F.2d 308, 317 (3d Cir. 1968), cert. denied, 394 U.S. 929, 89 S. Ct. 1187, 22 L.Ed.2d 455 (1969); George Benz & Sons v. Hardin, 342 F. Supp. 88, 89 (D.Minn.1972). When he reviewed the record, the Judicial Officer decided that the Secretary's order of August 20, 1969, was foun......
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