United States v. Bonderer

• Decision Date: 26 March 1956
• Docket Number: No. 238.,238.
• Citation: 139 F. Supp. 391
• Parties: UNITED STATES of America, Plaintiff, v. G. G. BONDERER, Defendant.
• Court: U.S. District Court — Western District of Missouri

139 F. Supp. 391

UNITED STATES of America, Plaintiff, v. G. G. BONDERER, Defendant.

No. 238.

United States District Court W. D. Missouri, W. D.

March 26, 1956.

Edward L. Scheufler, Dist. Atty., by O. J. Taylor, Asst. Dist. Atty., Kansas City, Mo., for plaintiff.

J. P. Morgan, Chillicothe, Mo., for defendant.

DUNCAN, Chief Judge.

The United States instituted this suit to recover from defendant the sum of $241.70 as a wheat marketing quota penalty for the year 1954. The complaint recites that the action is brought under the direction of the Attorney General, and at the request of the Secretary of Agriculture, under the provisions of the Agricultural Adjustment Act of 1938, as amended and supplemented, 7 U.S.C.A. §§ 1281 to 1393; Act of January 30, 1954, 68 Stat. 4, and Act of August 28, 1954, 68 Stat. 897. Jurisdiction of the court vests under the provisions of Section 376 of the Act, 7 U.S.C.A. § 1376, and under 28 U.S.C. § 1345.

The defendant has filed an Answer which, after admitting and denying certain allegations of the Complaint, attacks the constitutionality of the regulations set out in the plaintiff's complaint, insofar as those regulations apply to the defendant, on the ground that "he was denied and refused the right to vote in all elections held by plaintiff in connection with said regulations and controls, and that said regulations provided that this defendant could not vote in said elections because of the acreage allotment arbitrarily set up for him by plaintiff and its representatives."

As an additional defense, the defendant states in his answer that his farm is located in a drought area, as determined by the plaintiff for the years 1953 and 1954, and that the Secretary of Agriculture published and allowed newspapers to publish and quote from his statements to the effect that farmers residing in said drought areas could plant and harvest wheat in amounts exceeding their quota for sale purposes, provided that said excess acreage was used by the individual farmer as feed for his own livestock on his own property to supplement the lack of pastures and other feed products for such livestock, and that in reliance upon such statements, the defendant did exceed his acreage allotment and used wheat grown in excess of his allotment for his personal use, and for feed for cattle on his own property.

Following the filing of the Answer plaintiff propounded interrogatories to the defendant, and following the answering of such interrogatories, the plaintiff filed a Motion for Summary Judgment, together with suggestions in support thereof. No suggestions in opposition thereto have been filed by the defendant. Apparently he does not intend to do so, the time for such filing under local rules having now expired.

From the admissions made by the defendant in his answer to the complaint, and in his answers to plaintiff's interrogatories, the following material facts may be taken as established * * * wheat was planted for harvest in 1954 on defendant's farm in Livingston County, Missouri. Defendant as the owner was entitled to all of such crop. The Livingston County Agricultural Conservation and Stabilization Committee established a wheat acreage allotment of 12 acres for defendant's farm. Written notice of such allotment was given to the defendant by the County Committee. Defendant did not apply for a review of such allotment as he might have done under the regulations (7 C.F.R. 728.465, 19 F.R. 202.)

Thereafter the County Committee determined with respect to the 1954 wheat crop on defendant's farm that the actual acreage of wheat was 25 acres; that the wheat acreage allotment was 12 acres, and that therefore, the excess acreage was 13 acres; that the normal yield per acre in that area was 16.6 bushels, resulting in a normal production for the acreage allotment of 199.2 bushels, and a farm marketing excess of wheat of 215.8 bushels.

The Complaint alleges that the County Committee gave defendant written notice of such determination of facts; the defendant states that he does not recall receiving such notice, but also states that he does not deny receiving the same. The uncontradicted affidavits of the chairman and the office manager of the County Committee sufficiently establish that such notice was, in fact, mailed to the defendant. It is also admitted that the defendant did not thereafter apply for a downward adjustment of the farm marketing excess, nor did he apply for a review by a reviewing committee of any of the above determinations of fact, as he was entitled to do under 7 U.S.C.A. §§ 1340 and 1363, and under 7 C.F.R. 728.461 and 728.465.

The wheat planted on defendant's farm was harvested during the year 1954 and all of the wheat so harvested was fed on defendant's farm to livestock owned by him, none being marketed or otherwise disposed of. The rate of penalty, $1.12 per bushel, is provided for in 7 U.S.C.A. § 1340(2) and 7 C.F.R. 728.475.

In view of the foregoing, it would appear that there is no genuine issue as to any material fact, and that only questions of law now remain to be determined.

As to the allegation in defendant's answer that he was not permitted to vote, an additional assertion is found in a letter from counsel for defendant, addressed to the United States Attorney, in which he states that he does not desire to file a memorandum, but uses the following language as to the interpretation of the rule allowing participants to vote:

"It should be pointed out, however, that your interpretation of the rule as to who was allowed to vote in the local elections does not agree with the practice of the local offices. Your suggestions indicate that a farmer such as the defendant with an allotment below fifteen acres could have voted by declaring his intent to plant more than the fifteen acres. In actual practice the allotment was already known and those with allotments of less than fifteen acres were advised that they had no right to vote, and if they did insist their ballots were openly set aside from the ballots of those voting and having an allotment of fifteen acres or more. This denial of voting privilege is the only feature creating all of the resentment of the defendant and others in similar positions."

The Act of July 14, 1953, 67 Stat. 152, provided that the referendum with respect to the 1954 wheat crop could be held as late as August 15, 1953. On July 18, 1953, the Federal Register (18 F.R. 4221) contained a notice which provides in part as follows:

"The Secretary of Agriculture has duly proclaimed, pursuant to the provisions of the Agricultural Adjustment Act of 1938, as amended, a national marketing quota for wheat for the marketing year beginning July 1, 1954. A referendum of farmers who will be engaged in the production of the 1954 crop of wheat will be held pursuant to the provisions of the Agricultural Adjustment Act of 1938, as amended, and applicable regulations to determine whether such farmers are in favor of or opposed to such wheat marketing quota.

"Registration. The operator of each farm on which more than 15 acres of wheat will be planted for harvest in 1954 should inform a member of the county or community committee of the names and addresses of all producers who will share in the proceeds of such crop in order that their names may be listed on the register of eligible voters. The eligibility to vote of any person may be challenged if his name is not recorded on the registration list.

"Eligibility to vote. Each farmer who is engaged in the production of wheat for harvest in 1954 on a farm on which the acreage to be planted to wheat for harvest in 1954 is in excess of 15 acres and who is entitled to share in the proceeds of the 1954 wheat crop as owner, landlord (other than

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