454 F.2d 109 (8th Cir. 1972), 71-1092, Glover Livestock Commission Co. v. Hardin

Docket Nº:71-1092.
Citation:454 F.2d 109
Party Name:GLOVER LIVESTOCK COMMISSION COMPANY, Inc., Petitioner, v. Clifford M. HARDIN, Secretary of Agriculture, and The United States of America, Respondents.
Case Date:January 26, 1972
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 109

454 F.2d 109 (8th Cir. 1972)

GLOVER LIVESTOCK COMMISSION COMPANY, Inc., Petitioner,

v.

Clifford M. HARDIN, Secretary of Agriculture, and The United States of America, Respondents.

No. 71-1092.

United States Court of Appeals, Eighth Circuit.

January 26, 1972

Page 110

Edward I. Staten, Reinberger, Eilbott, Smith & Staten, Pine Bluff, Ark., for petitioner.

Raymond W. Fullerton, Elliott Metcalfe, Jr., Attys., Department of Agriculture, Washington, D. C., L. Patrick Gray, III, Asst. Atty. Gen., Kathryn H. Baldwin, Atty., Department of Justice, Washington, D. C., R. Stanley Harsh, Asst. General Counsel, for respondents.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

Glover Livestock Commission Company, Inc. (Glover) petitions this Court for review of a decision and order of the Judicial Officer of the United States Department of Agriculture. The Judicial Officer held that Glover violated 7 U.S.C. §§ 208 and 213 of The Packers and Stockyards Act, 1 and ordered it to cease and desist from:

(1) Weighing livestock at other than their true and correct weights;

(2) Issuing scale tickets or accountings on the basis of false and incorrect weights;

(3) Paying the consignors of livestock on the basis of weights other than the true and correct weights; and

(4) Failing to operate livestock scales owned or controlled by respondent in accordance with the regulations under the act constituting INSTRUCTIONS FOR WEIGHING LIVESTOCK.

The Judicial Officer also suspended Glover as a registrant under the act for 20 days.

The scope of our review is limited to the correction of errors of law and to an examination of the sufficiency of the evidence supporting the factual conclusions. The findings and order of the Judicial Officer must be sustained if not contrary to law and if supported by substantial evidence. Also, this Court may not substitute its judgment for that of the Judicial Officer's as to which of the various inferences may be drawn

Page 111

from the evidence. Fairbank v. Hardin, 429 F.2d 264 (CA 9 1970); Swift & Co. v. United States, 393 F.2d 247 (CA 7 1968) and Capitol Packing Co. v. United States, 350 F.2d 67 (CA 10 1965). Further, the Packers and Stockyards Act is remedial legislation and must be liberally construed in order to further its life and fully effectuate its public purpose to prevent economic harm to producers and consumers at the expense of middlemen. Bruhn's Freezer Meats of Chicago, Inc. v. USDA, 438 F.2d 1332 (CA 8 1971) and Swift & Co. v. United States, supra, 393 F.2d at 253.

Glover is an operator of a "posted stockyard" in Pine Bluff, Arkansas and is registered under the Act to sell livestock on commission as a registered market agency. On or about June 2, 1964, July 26, 1966 and June 20, 1967, representatives of the USDA conducted investigations of Glover's operations under the act. On each date, the representatives reweighed several drafts of consigned livestock that Glover had weighed for sale on a weight basis at the stockyard. The reweighing apparently disclosed that the drafts had been weighed at less than their true and correct weights. On August 4, 1966 and again on June 26, 1967, Glover was notified of the check-weighing results and was requested to institute corrective action which would assure accurate weighing at the stockyard.

Glover held a livestock auction at its stockyard from 1:30-4:30 p. m. on February 25, 1969. In attendance were two USDA representatives; one a livestock marketing specialist and the other a scales and weighing technician. Following completion of the sale, they selected 29 head of cattle for reweighing in 28 drafts. 2 Reweighed on Glover's scales, nine of the cattle had gained a total of 75 pounds, ten weighed the same as that shown on the weighmaster's scale tickets and nine had lost weight. 3

As a result of this investigation, on May 12, 1969, the Administrator of the Packers and Stockyards Administration instituted these proceedings before the Secretary of Agriculture charging violations of 7 U.S.C. §§ 208, 213(a) and 221, and 9 CFR §§ 201.43(a), 201.55 and 201.71 (1971).

SUFFICIENCY OF THE EVIDENCE

Glover contends that the Judicial Officer's finding that Glover weighed livestock at less than their true and accurate weights is not supported by substantial evidence.

Roy Glover, president of petitioner, testified with support from others that the cattle reweighed could have gone through the auction ring at any time from 1:30 to 4:30 p. m. on February 25, 1969; that it is normal procedure to stop the auction periodically and move cattle from one pen to another; and that some of Glover's pens contained food and water while others did not. Glover contends that this evidence "preponderates towards the finding" that the cattle that gained weight had been given food and water sometime during the three-hour auction, and that this explanation is more feasible than the Department's argument that the cattle were deliberately or carelessly short-weighed.

The Department's evidence was that immediately following the auction the two specialists introduced themselves and announced the purpose of their visit. Endeavoring to select cattle which had been yarded only in dry pens, Baird, a scales and weight technician who has conducted almost 350 check-weighing investigations such as this...

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