Beckman v. Mall, 4677.

• Decision Date: 21 April 1942
• Docket Number: No. 4677.,4677.
• Citation: 48 F. Supp. 853
• Parties: BECKMAN et al. v. MALL et al.
• Court: U.S. District Court — District of Kansas

48 F. Supp. 853

BECKMAN et al. v. MALL et al.

No. 4677.

District Court, D. Kansas, First Division.

April 21, 1942.

Wm. Lemke, of Fargo, N. D., John E. Addington, of Topeka, Kan., and Frank H. Meek, of Clay Center, Kan., for plaintiffs.

Summerfield S. Alexander, U. S. Atty., of Kingman, Kan., for defendants.

John S. L. Yost, Sp. Asst. Atty. Gen., for the government.

Before PHILLIPS and HUXMAN, Circuit Judges, and HOPKINS, District Judge.

PHILLIPS, Circuit Judge.

This matter has been submitted today on the petition of Beckman and others for a temporary injunction, the order to show cause, the responses of the state and county Agricultural Conservation Committees, and the evidence adduced.

At the former hearing, the court reserved the question of whether the Secretary of Agriculture is an indispensable party to the suit. At a prior hearing, a majority of the court expressed the opinion that the action could not be maintained as against the Secretary of Agriculture, both because of want of proper venue and because no proper process had been served on the Secretary of Agriculture. The question remains whether these plaintiffs are entitled to either temporary or permanent relief as against state and county committees, the remaining defendants in the suit. From the evidence adduced, it appears that the only authority that a county committee has with respect to the penalty on wheat produced on excess acreage is to receive the amount of the penalty, if tendered by a wheat farmer, and remit it in turn to the state committee, which in turn remits it to the treasury. Or, in the event the penalty is not paid, to report to the Secretary of Agriculture the fact that a penalty has been incurred and that it has not been paid, in order that the Secretary of Agriculture may take steps, if he is so advised, to bring legal proceedings to enforce the payment of the penalty. The foregoing authority is vested in the state and county committees by § 711 of the Regulations of the Department of Agriculture issued May 31, 1941, Wheat-507, pertaining to wheat marketing quotas for the 1941 crop of wheat.

The proof fails to show that the state and county committees are taking any affirmative steps to enforce the penalty, or are otherwise taking any affirmative action against nonpaying wheat farmers as to whom a penalty has been found to exist. It would seem, therefore, that the court can grant no relief against the state or county committees that will avail the plaintiffs anything in this case. I recognize that where a principal cannot be reached with process, if the agent is acting or threatening to act under a statute, the constitutionality of which is challenged, a remedy by injunction exists against the agent. The difficulty here is that the agent has no power to do anything to enforce the penalty. It seems to me, therefore, that any relief that is to be effective must be obtained in an action in which the Secretary of Agriculture is a proper party before the court. Personally, it seems to me very unfortunate that the Secretary of Agriculture has not seen fit to voluntarily come in and defend this action. A large number of farmers are challenging the...