Swisher v. Brown

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

Page 621

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.

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.

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 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 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 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 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 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; that the act empowers the defendants, and especially the defendant Swisher, to preclude plaintiffs and others engaged in the production of agricultural products from engaging to the best of their abilities in a useful, necessary and lawful business pursuit, all without corresponding benefit or any benefit to the public; that the statutory provisions and authority delegated to defendant Swisher are indefinite, ambiguous and incapable of achieving any lawful purpose; and that Section 7-3-16, C.R.S.1953, delegated to the defendant Swisher, acting through his Board of Control, the power to legislate criminal and penal statutes.

'Finally, the plaintiffs allege the threat of a multiplicity of suits and allege the pendency of two suits against them attempting to enforce the provisions of the act and the marketing order in which injustice and penal relief is sought, and pray for the entry of declaratory judgment determining and declaring that the Marketing Act of 1939, as amended, is unconstitutional and void, being violative of both the United States and State Constitutions.

'For Answer to the Amended Complaint the defendants deny that the Marketing Act of 1939, as amended, is unconstitutional, null or void in the particulars alleged, or at all; allege that the statute is fully effective, that the plaintiffs will in fact benefit from compliance with said marketing orders, and otherwise admit each and every other allegation of the first claim. * * *'

The Findings of Fact and Conclusions of Law entered in this case are voluminous and indicate a very thorough study on the part of the court concerning the issues of law which are involved. The ultimate conclusion of the trial court was that '* * * as a matter of law the Marketing Act of 1939, as amended, is, in the particulars hereinabove stated, unconstitutional and void. * * *' The court entered an injunction enjoining and restraining the defendants from enforcing or attempting to enforce the Act.

We first address ourselves to consideration of the principal ground upon which the trial court reached the above stated conclusion. The Conclusions of Law which it entered points up the crucial question in the following way:

'* * * Whether adequate standards are contained in the act to govern the actions of the Commissioner is the chief bone of contention. The courts are far from agreement on what is an adequate standard, some taking a narrow view and...