Arkansas Valley Industries, Inc. v. Freeman

• Decision Date: 30 July 1969
• Docket Number: No. 19204.,19204.
• Citation: 415 F.2d 713
• Parties: ARKANSAS VALLEY INDUSTRIES, INC., Ralston Purina Company and Tyson's Foods, Inc., Petitioners, v. Orville L. FREEMAN, Secretary of Agriculture, United States Department of Agriculture, and United States of America, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

415 F.2d 713 (1969)

ARKANSAS VALLEY INDUSTRIES, INC., Ralston Purina Company and Tyson's Foods, Inc., Petitioners, v. Orville L. FREEMAN, Secretary of Agriculture, United States Department of Agriculture, and United States of America, Respondents.

No. 19204.

United States Court of Appeals Eighth Circuit.

July 30, 1969.

J. A. Fraser, St. Louis, Mo., J. Gaston Williamson, Little Rock, Ark., and H. Franklin Waters, Springdale, Ark., for petitioners.

Raymond W. Fullerton, Atty., Dept. of Agriculture, Washington, D. C., for respondents, Neil Brooks, Asst. Gen. Counsel, Dept. of Agriculture, Edwin L. Weisl, Jr., Asst. Atty. Gen., and Kathryn H. Baldwin, Atty., Dept. of Justice, Washington, D. C., on the brief.

Before MEHAFFY and HEANEY, Circuit Judges, and HARPER, Chief District Judge.

MEHAFFY, Circuit Judge.

This appeal seeks a review of a decision and order of the Judicial Officer acting for the Secretary of Agriculture of the United States. This decision resulted from a complaint filed by the Director of the Packers and Stockyards Division before the Secretary of Agriculture, coupled with a notice of hearing and protracted evidentiary hearings. The complaint charged petitioners, Arkansas Valley Industries, Inc., Ralston Purina Company and Tyson's Foods, Inc., with violation of the provisions of §§ 202(a), 202(b) and 202(g) of the Packers and Stockyards Act, said sections being compiled as 7 U.S.C. §§ 192(a), 192(b) and 192(g). Specifically, the complaint charged, and the Department's Judicial Officer found, that petitioners were "live poultry dealers or handlers," and that as such they had boycotted, blacklisted and refrained from entering into or continuing "grow-out contracts" with certain broiler growers who were active members of the Northwest Poultry Growers Association, a group of broiler growers organized to further the mutual interests of its members, and that such action violated the aforementioned statutory provisions.

The Department's Judicial Officer entered a cease and desist order relative to such practices and the decision and order are reported in 27 Agr.Dec. 84.

A number of issues were raised in the disciplinary proceeding, but we are met at the threshold with the jurisdictional question of whether the Secretary had the authority to file the complaint, conduct the hearings thereon, and enter a cease and desist order against petitioners as live poultry dealers and handlers when the statute itself does not specifically vest such authority in the Secretary. The section of the statute providing this machinery is, by its language, applicable only to "packers"; yet the Judicial Officer found that, based on rules of statutory construction, the sense of the law requires the interpolation of the words "or any live poultry dealer or handler" into the section. For the reasons hereafter stated, we are convinced, not only by the plain and unambiguous language employed by Congress but by the history of the Packers and Stockyards Act and the amendments thereto, that the Act as written clearly expresses the full intention of the Congress.

Section 203 of the Act, 7 U.S.C. § 193, provides the procedure and authority for filing a complaint, notice of hearing and a hearing upon the complaint. This section also authorizes the issuance of a cease and desist order and it is applicable only to "packers" and does not include live poultry dealers or handlers. Also applicable to packers only is the procedure for appeal from the order of the Secretary as set out in § 204 of the Act, 7 U.S.C. § 194, as well as § 205 of the Act, 7 U.S.C. § 195, which provides for punishment for violation of the order of the Secretary.¹

It is thus seen that the three provisions of the Act, being the only ones authorizing the Secretary to enter a cease and desist order, providing for an appeal therefrom and providing punishment for violation of the order, are by their plain language applicable only to packers and packers alone.

Petitioners here are not packers and it is not alleged in the complaint, nor is it contended in brief or argument, that they are packers. It is alleged that they are "live poultry dealers or handlers" which the Judicial Officer correctly found them to be. The Congress defined "packer" in § 201 of the Act, 7 U.S.C. § 191, which was originally passed in 1921, and that congressional definition remains intact even though the Act has been amended in other respects.²

The 1935 amendment to § 202 of the Act, 7 U.S.C. § 192, did include poultry dealers and handlers along with packers in the enumeration of unlawful practices, but nowhere in the Act or the amendments thereto has the Secretary been authorized to proceed against live poultry dealers in the manner utilized here which is applicable solely to packers. For example, § 203 (7 U.S.C. § 193) reads "Whenever the Secretary has reason to believe that any packer has violated or is violating any provisions of sections 191-195 of this title, he shall cause a complaint in writing to be served upon the packer * * *"; § 204 (7 U.S.C. § 194) reads "An order made under section 193 of this title shall be final and conclusive unless within thirty days after service the packer appeals * * *"; and § 205 (7 U.S.C. § 195) reads "Any packer, or any officer, director, agent, or employee of a packer, who fails to obey any order of the Secretary issued under the provisions of section 193 of this title * * *", etc. and fixes the punishment for the violation of the order. (Emphasis supplied.)

Despite the congressional definition of "packer" and Congress' failure to include live poultry dealers or handlers within the scope of the machinery allowing prosecutions, hearings and cease and desist orders, the Secretary's Judicial Officer attributes this to an oversight and inadvertence on the part of the Congress, enabling the Department to read words into the Act which are not there. In his conclusions, the Judicial Officer stated:

"With the prohibitions of section 202 applicable to live poultry dealers or handlers who are not licensees under Title V, we cannot believe that Congress intended to make the prohibited conduct on the part of live poultry dealers or handlers unlawful without providing a sanction therefor. The failure to specifically amend sections 203 and 204 to include live poultry dealers or handlers appears then as due to oversight or inadvertence.

"Under the circumstances then it is permissible to read into sections 203 and 204 `live poultry handler or dealer.\' Courts will not hesitate to turn into the sense of some section or provision a qualifying or expanding expression plainly implied by the general context of the act, which has been palpably omitted and which is necessary to prevent a legislative purpose from failing in one of its material aspects. Elizabeth Arden Sales Corp. v. Gus Blass Co., 150 F.2d 988, 992-993 161 A.L. R. 370 (8th Cir.1945), cert. denied 326 U.S. 773 66 S.Ct. 231, 90 L.Ed. 467 (1945)."

The Judicial Officer's concern with Congress' failure to provide a sanction for unlawful acts is erroneously premised. The Attorney General and the Department of Justice are available to the Department of Agriculture to bring such actions as this if the same is warranted. 28 U.S.C. § 516 provides:

"§ 516. Conduct of litigation reserved to Department of Justice

"Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General."

See also F. T. C. v. Guignon, 390 F.2d 323 (8th Cir.1968).

Additional to the authority of the Attorney General to represent the various governmental departments and agencies, the Packers and Stockyards Act provides in 7 U.S.C. § 224 the following:

"§ 224. Attorney General to institute court proceedings for enforcement

"The Secretary may report any violation of this chapter to the Attorney General of the United States, who shall cause appropriate proceedings to be commenced and prosecuted in the proper courts of the United States without delay."

The above provision of the Act was included in the 1935 amendment to the original Act, which amendment incorporated in § 202 (7 U.S.C. § 192) of the Act the language "or any live poultry dealer or handler" along with "packer" in the unlawful practices enumerated.

Even beyond this authority for sanctions §§ 501 and 502 of the Act (7 U.S. C. § 218 and § 218a.) authorizes the Secretary to designate cities and markets where unfair practices exist and to require licenses from the Secretary in order to engage in the business of handling and dealing in live poultry and provides for a penalty for engaging in such dealing without a license. Further, the section empowers the Secretary to deny such a license to any applicant upon a finding that the applicant at any time within two years prior to his application engaged in any practice of the character prohibited by this chapter. Section 505 (7 U.S.C. § 218d.) also empowers the Secretary, after hearing, to suspend a license for violation of the Act.

Thus, it is apparent that the Department of Agriculture and the Secretary thereof have great and extensive control through licensing procedure to apply near fatal sanctions to live poultry dealers for noncompliance with the Act even though Congress did not authorize the procedure for issuing cease and desist orders applicable only to packers.

We are convinced from the plain language of the statute that Congress knew what it was doing and there was no inadvertence or oversight on its part when it made the three sections of the Act relating to cease and desist orders applicable to packers only. Of course, when the provisions of an act are clear and unequivocal, there is no need to resort to general rules of statutory construction. Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 5...