Swisher v. Brown, No. 21510

• Docket Nº: No. 21510
• Citation: 402 P.2d 621, 157 Colo. 378
• Case Date: June 07, 1965
• Court: Supreme Court of Colorado

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402 P.2d 621 157 Colo. 378 Paul W. SWISHER as Commissioner of Agriculture of the State
of Colorado, the State of Colorado Department of
Agriculture, et al., Plaintiffs in Error,
v.
Otis P. BROWN and George Russ, Defendants in Error. No. 21510. Supreme Court of Colorado, En Banc. June 7, 1965.

[157 Colo. 379]

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Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Clifton A. Flowers, Asst. Atty. Gen., Russell P. Kramer, Sp. Asst. Atty. Gen., for plaintiffs in error.

Gelt & Grossman, Denver, for defendants in error.

[157 Colo. 380] MOORE, Justice.

We will refer to the parties as they appeared in the trial court where the plaintiffs in error were defendants and the defendants in error were plaintiffs.

The action was brought by the plaintiffs for a declaratory judgment with reference to the constitutionality of the Colorado Agricultural Marketing Act of 1939 (C.R.S. '53, 7-3-1 to 23).

The amended complaint filed by the plaintiffs contains three separately stated claims. The first claim involves an attack upon the constitutionality of the Colorado Marketing Act as a whole. The second claim is an attack upon certain marketing orders which were entered by the defendant Swisher pursuant to the authority vested in him under the statute, in so far as such orders purported to impose restrictions upon the production and marketing of lettuce. The third claim consists of an attack upon the provisions of a specific Marketing Order which purported to require the destruction or discing of a part of the 1962 lettuce crop.

The defendants filed their answer in which the issuance of the Marketing Orders by the defendant Swisher was admitted; the contention that the statute is unconstitutional was denied; and it was affirmatively alleged that 'plaintiffs will in fact benefit from compliance with said orders, but defendants admit that if said orders are unconstitutional and void, immediate and irreparable injury would result therefrom.'

The parties stipulated that the cause would first be submitted to the trial court

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upon the questions of law raised by the first statement of claim. In this connection the trial court in its findings made the following statement:

'The parties have stipulated that this controversy would be submitted on the first statement of claim attacking[157 Colo. 381] the constitutionality of the law itself; and that in the event of an adverse decision on the first claim, then the second and third claims would be tried and determined in due course. Accordingly, this decision will be confined to the question of the constitutionality of the Colorado Agricultural Marketing Act of 1939, as amended, leaving the issues made up on the second and third claims for later determination, if necessary.'

The trial court aptly summarized the issues framed by the pleadings with reference to the first claim as follows:

'The complaint is for a declaratory judgment and alleges that the plaintiffs, residents of Saguache County, Colorado, are producers and handlers of lettuce in the San Luis Valley of Colorado, and as such, are vitally interested in the lettuce marketing order allegedly adopted on or about August 15, 1962, by some of the producers, handlers and distributors of lettuce grown in said Valley. That the plaintiffs are informed that on August 15, 1962, defendant Swisher, as Commissioner of Agriculture for the State of Colorado, issued a purported lettuce marketing order bearing Docket No. A-16 for the purpose of regulating the marketing of lettuce produced in the Counties of Alamosa, Rio Grande, Saguache, Costilla and Conejos; and that thereafter, on or about August 21, 1962, the defendant Swisher commenced executing and issuing purported orders establishing regulations for harvesting, packing and marketing of head lettuce, copies of which orders are attached to the complaint. That said orders, among other things, required plaintiff to disc up or otherwise mutilate or not ship, market and sell a percentage of their lettuce crop planted and being in their fields, further dictating to plaintiffs and other lettuce producers the days and times when they may cut, harvest and sell lettuce; that said order required plaintiffs and other producers of lettuce to pay assessments for each carton of lettuce shipped to pay administrative, legal fees and other expenses[157 Colo. 382] of the Board of Control, with which to administer such marketing order; and that plaintiffs are informed and believe that further and additional orders will be made and that such orders have been and will be issued at the suggestion of the defendant Board of Control. Plaintiffs allege that they are informed and believe that the defendant Swisher is acting under and by virtue of the powers and authority delegated to him by Chapter 7, Article 3, C.R.S. 1953, as amended, which act, if valid, authorizes the defendant Swisher to issue, administer and enforce the provisions of marketing orders regulating the handling of agricultural commodities in Colorado; that the defendant Board of Control is acting in an administrative capacity by virtue of Sections 3-7(1), (2) and (3), if said sections are valid, and by virtue of said marketing order. It is further alleged that the plaintiffs are informed and believe that the Board of Control and defendant Swisher are in effect acting in concert to put into effect and enforce lettuce marketing orders.

'Plaintiffs further allege that at the time of the commencement of the action they had lettuce of first grade quality in their fields ready to cut, pack, sell and market and had purchasers willing, ready and able to purchase said lettuce; that they have expended large sums of money in the growing and producing of said lettuce and getting the same ready for market, and that the defendants are attempting

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to enforce the marketing order and orders subsequently adopted thereunder, and are attempting to force plaintiffs to disc up and otherwise destroy a percentage of their lettuce crop as well as dictate to them on what days and hours they can cut, harvest and ship the remainder of their lettuce, and allege that the statute under which the defendants purport to act is unconstitutional, null and void; and further allege that if they are required to abide by the orders issued by defendants, plaintiffs will suffer immediate and irreparable injury, and that plaintiffs have [157 Colo. 383] no plain, speedy or adequate remedy at law. It is then alleged that the marketing act is unconstitutional for numerous reasons, which, briefly stated are that the act attempts to delegate legislative power to an individual, that is, the defendant Swisher; that the act constitutes an unlawful attempt to delegate legislative power to administrative agencies and without prescribing appropriate, adequate or any standards that are to govern the defendants in the exercise of the power attempted to be conferred; that the act confers upon defendant Swisher absolute, autocratic and arbitrary powers to impose requirements, conditions, duties and burdens upon persons in the lettuce industry wholly without regard to any compliance with any legislative standard and without regard for public interest, health, peace, safety and general welfare; that the authority delegated to defendant Swisher is not a reasonable exercise of the police powers and discloses no reasonable relationship to the public health, safety, welfare or morals; that said act attempts to vest in the defendant power to take property of the plaintiffs and other persons in the agricultural industry without due process of law and without just compensation;...