Black v. Little, 538.

• Decision Date: 21 November 1934
• Docket Number: No. 538.,538.
• Citation: 8 F. Supp. 867
• Parties: BLACK et al. v. LITTLE et al.
• Court: U.S. District Court — Eastern District of Michigan

8 F. Supp. 867

BLACK et al. v. LITTLE et al.

No. 538.

District Court, E. D. Michigan, N. D., in Equity.

November 21, 1934.

David E. McLaughlin, Alfred P. Pierson, and Harold M. Karls, all of Saginaw, Mich., for plaintiffs.

Gregory H. Frederick, U. S. Atty., of Detroit, Mich., and Berkeley W. Henderson, Sp. Asst. to the Atty. Gen., for defendants.

TUTTLE, District Judge.

This cause is now before the court on a motion to dismiss the bill of complaint, on the ground, in substance, that such bill does not show that the plaintiffs now require injunctive relief in order to prevent irreparable injury to them, and that therefore it does not state an equitable cause of action.

The plaintiffs, various individuals, partnerships, and corporations, allege that they are distributors of milk products in wholly intrastate commerce in Michigan, and that they have received from the Secretary of Agriculture, without their consent, licenses to engage in the handling of such milk products in the current of interstate commerce, pursuant to section 8 (3) of title 1 of the Agricultural Adjustment Act, approved May 12, 1933 (section 608 (3) of title 7 of the United States Code 7 USCA § 608(3)), authorizing the Secretary of Agriculture to issue such licenses, and providing that "such licenses shall be subject to such terms and conditions, not in conflict with existing Acts of Congress or regulations pursuant thereto, as may be necessary to eliminate unfair practices or charges that prevent or tend to prevent * * * the restoration of normal economic conditions in the marketing of" agricultural commodities, including milk products. The plaintiffs allege that, as they do not handle any products in "the current of interstate commerce," this act is not, and cannot constitutionally be made, applicable to them, and that therefore they cannot be compelled to comply with any of the provisions of such act or of the licenses or regulations prescribed thereunder, but that certain of the defendants have demanded of plaintiffs such compliance, including, specifically, the furnishing of certain documentary evidence and reports pursuant to the provisions of the act, and intend to initiate proceedings to enforce such demand. The bill prays that the act and the licenses and regulations thereunder, as applied to the plaintiffs, be declared unconstitutional and void, and that the defendants, government officials having certain duties in connection with such act, be restrained from attempting to enforce any of the provisions of such act, licenses, or regulations against the plaintiffs.

The defendants, Hugh A. Little, Market Administrator under said act, Charles Bridgeman and George F. Corrigan, his assistants, and Gregory H. Frederick, United States attorney for this district, contend, in substance, in support of their motion to dismiss this bill, that such bill does not show that they have threatened to compel compliance by the plaintiffs with this act or with any regulations or licenses thereunder, nor that they have the present power to do so.

Section 8(3), just mentioned, contains the following provisions: "The Secretary of Agriculture may suspend or revoke any such license, after due notice and opportunity for hearing, for violations of the terms or conditions thereof. * * * Any such person engaged in such handling without a license as required by the Secretary under this section shall be subject to a fine of not more than $1,000 for each day during which the violation continues." It is not shown or claimed that any of the licenses issued to the plaintiffs have been suspended or revoked or that any proceedings have been taken for such suspension or revocation.

Section 10(c) of title 1 of said Act (section 610(c), title 7, United States Code 7 USCA § 610(c)) provides as follows: "The Secretary of Agriculture is authorized, with the approval of the President, to make such regulations with the force and effect of law as may be necessary to carry out the powers vested in him by this chapter. * * * Any violation of any regulation shall be subject to such penalty, not in excess of $100, as may be provided therein." It does not appear that any regulations, either in the form of provisions in licenses or otherwise, have been prescribed by the Secretary of Agriculture, with the approval of the President, providing any penalty for violation thereof except the suspension or revocation of such license.

Subdivision (h) of the said section 10 (7 USCA § 610 (h) provides that "the provisions, including penalties, of sections 48, 49 and 50 of Title 15, are made applicable to the jurisdiction, powers, and duties of the Secretary in administering the provisions of this chapter and to any person subject to the provisions of this chapter." Section 50 of said title 15 (USCA), being section 10 of the Federal Trade Commission Act, so made applicable to proceedings under the Agricultural Adjustment Act, contains the following provisions:

"Any person who * * * shall willfully refuse to submit to the commission or to any of its authorized agents, for the purpose of inspection and taking copies, any documentary evidence of such corporation in his possession or within his control, shall be deemed guilty of an offense against the United States, and shall be subject, upon conviction in any court of the United States of competent jurisdiction, to a fine of not less than $1,000 nor more than $5,000, or to imprisonment for a term of not more than three years, or to both such fine and imprisonment.

"If any corporation required by this subdivision of this chapter to file any annual or special report shall fail so to do within the time fixed by the commission for filing the same, and such failure shall continue for thirty days after notice of such default, the corporation shall forfeit to the United States the sum of $100 for each and every day of the continuance of such failure, which forfeiture shall be payable into the Treasury of the United States, and shall be recoverable in a civil suit in the name of the United States brought in the district where the corporation has its principal office or in any district in which it shall do business. It shall be the duty of the various district attorneys, under the direction of the Attorney General of the United States, to prosecute for the recovery of forfeitures."

It is not alleged that the defendant district attorney has instituted, or threatened to institute, any proceedings, civil or criminal, against the plaintiffs, and it is not shown, and does not appear, that the other defendants have any power to do so.

I reach the conclusion that the plaintiffs have not alleged facts showing...