United States v. David Buttrick Co.

• Decision Date: 23 July 1936
• Docket Number: No. 4315.,4315.
• Citation: 15 F. Supp. 655
• Parties: UNITED STATES et al. v. DAVID BUTTRICK CO. et al.
• Court: U.S. District Court — District of Massachusetts

15 F. Supp. 655

UNITED STATES et al. v. DAVID BUTTRICK CO. et al.

No. 4315.

District Court, D. Massachusetts.

July 23, 1936.

Francis J. W. Ford, U. S. Atty., John Dickinson, Asst. Atty. Gen., and John S. L. Yost and A. H. Feller, Sp. Assts. to the Atty. Gen., for plaintiffs.

Jacob H. Tupman, of Lynn, Mass., for defendant Mary D. Pezold.

Andrew J. Aldridge and Brenton K. Fisk, both of Boston, Mass., for defendant New England Creamery Co.

Francis J. Kelley, of Boston, Mass., for defendants Wm. J. Martines, James Martines, and Frank P. Martines.

Charles S. Walkup, Jr., of Boston, Mass., for defendant Mason's Creamery Co.

Joel W. Eastman, of Boston, Mass., for defendant Glendale Milk Farm, Inc.

Greer, Sibley & Crane, of Boston, Mass., for defendants Chapin, and others.

Charles L. Walkup, Jr., of Boston, Mass., for defendants Thomas Seymour, W. P. Elliott Co., George Constantinides, F. W. Laroe, and John E. Burr.

Haines-Ce-Brook, Inc., and Samuel D. Elmore, of Boston, Mass., for defendant Haines-Ce-Brook, Inc.

Frederick M. Sears, Jr., of Boston, Mass., for defendants Robert B. and Fred W. Woodland.

BREWSTER, District Judge.

This bill in equity is brought under the Agricultural Adjustment Act, as amended by the Act of August 24, 1935 (7 U.S.C.A. § 601 et seq.), against 28 defendants who are distributors of milk in Boston and vicinity. Plaintiff seeks a mandatory injunction to compel these defendants to comply with an order of the Secretary of Agriculture, issued February 7, 1936, known as Order No. 4, regulating the handling of milk in the Greater Boston area.

The defendants have filed motions to dismiss on divers grounds. These motions were heard on the allegations of the bill at the same time that the motion for temporary injunction was heard on affidavits and counteraffidavits. I have examined all of these affidavits, and if I were confronted with the necessity of passing upon the wisdom of federal regulation of the milk industry, they would be helpful. So far as they tend to show the necessity for or expediency of a mandatory injunction, they do not wholly satisfy me that, if the recalcitrant defendants are not brought into line, the consequences likely to follow would be as disastrous as predicted, either to producers or distributors. All, or nearly all, of the defendants have stated under oath that they were paying the "blended price" or better for their milk, and were not underselling in the Boston market. Two hundred seventy-five farmers in Vermont, New Hampshire, Maine, and Massachusetts have given affidavits in opposition to the injunction. It has appeared from these affidavits that of the defendants named, Edward Weiler et al., doing business as E. Weiler & Son, is no longer in business, and that the Valley Farm, Blue Ribbon Dairy, and Charles L. Woodland distribute only milk originating in Massachusetts, and are not handlers in interstate commerce.

Certain of the motions to dismiss raise the question whether the amended Agricultural Adjustment Act survived the decisions of the Supreme Court in United States v. Butler et al., 297 U.S. 1, 56 S.Ct. 312, 316, 80 L.Ed. 477, 102 A.L.R. 914, and Rickert Rice Mills v. Fontenot, 297 U.S. 110, 56 S.Ct. 374, 375, 80 L.Ed. 513. Other motions to dismiss attack the constitutionality of the amended act on grounds that might so far involve factual situations that it would be proper to follow the practice suggested in Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 55 S.Ct. 187, 192, 79 L.Ed. 281, wherein Chief Justice Hughes observed that: "But where the legislative action is suitably challenged, and a rational basis for it is predicated upon the particular economic facts of a given trade or industry, which are outside the sphere of judicial notice, these facts are properly the subject of evidence and of findings. With the notable expansion of the scope of governmental regulation, and the consequent assertion of violation of constitutional rights, it is increasingly important that when it becomes necessary for the Court to deal with the facts relating to particular commercial or industrial conditions, they should be presented concretely with appropriate determinations upon evidence, so that conclusions shall not be reached without adequate factual support."

But a motion to dismiss for want of jurisdiction, based upon the proposition that the amended act fell under the decisions in the Butler and Rice Cases, presents for consideration a question which will not be aided by any findings of fact. The motion will turn wholly upon the decisions dealing with the original and the amended Agricultural Adjustment Act, and upon the provisions contained in those acts. If a motion to dismiss is sustained on that ground, there will be no need to even summarize the allegations of the bill or the affidavits. The only question to be determined will be whether there are provisions of the amended Agricultural Adjustment Act in force which, in view of the recent decisions, authorize the order.

The original and the amendatory acts both provide that: "If any provision of this title chapter is declared unconstitutional, or the applicability thereof to any person, circumstance, or commodity is held invalid the validity of the remainder of this title chapter and the applicability thereof to other persons, circumstances, or commodities shall not be affected thereby." Section 14 (7 U.S.C.A. § 614).

Similar provisions in statutes were before the Supreme Court in Dorchy v. Kansas, 264 U.S. 286, 290, 44 S.Ct. 323, 68 L. Ed. 686; Williams v. Standard Oil Co., 278 U.S. 235, 49 S.Ct. 115, 73 L.Ed. 287, 60 A.L.R. 596; Railroad Retirement Board v. Alton R. Co., 295 U.S. 330, 55 S.Ct. 758, 79 L.Ed. 1468; Carter v. Carter Coal Co., 56 S.Ct. 855, 874, 80 L.Ed. ___.

From these cases it is established that such a provision is not an "inexorable command" but is an aid in reaching the legislative intent.

In the Carter Case the court said: "The statutory aid to construction in no way alters the rule that in order to hold one part of a statute unconstitutional and uphold another part as separable, they must not be mutually dependent upon one another."

It is argued on behalf of the plaintiff that it is possible to salvage separate provisions of the amendatory act which will leave a statute resting upon the powers of Congress to regulate commerce between states, empowering the Secretary of Agriculture to issue and this court to enforce his order regulating the sale and distribution of milk, including the price to be paid to producers.

In considering this contention it will be profitable first to refer to the opinion in United States v. Butler, supra. It is to be noted that the court was there dealing with a statute (48 Stat. 31) which, like the statute now under consideration, was entitled, An Act "to relieve the existing national economic emergency by increasing agricultural purchasing power, to raise revenue for extraordinary expenses incurred by reason of such emergency, * * * and for other purposes." Furthermore, both acts contained a declaration of emergency and a declaration of legislative policy substantially similar.

In his opinion, Mr. Justice Roberts sets out these declarations and material portions of section 8 of the act (48 Stat. 34), which included those provisions empowering the Secretary of Agriculture, "in order to effectuate the declared policy," to enter into marketing agreements and to license "processors, associations of producers, and others to engage in the handling, in the current of interstate or foreign commerce, of any agricultural commodity or product thereof, or any competing commodity or product thereof."

It thus appears clear that the court had before it in the Butler Case not only the taxing provisions, but those provisions which purported to confer authority upon the Secretary of Agriculture to regulate the agricultural industry.

Respecting the separability of the provisions of the act, the court, in the Butler Case, points out that the government asked it to separate the act into two statutes; "the one levying an excise on processors of certain commodities; the other appropriating the public moneys independently of the first."

To this suggestion the court replied in the following language:

"Passing the novel suggestion that two statutes enacted as parts of a single scheme should be tested as if they were distinct and unrelated, we think the legislation now before us is not susceptible of such separation and treatment. * * *

"Beyond cavil the sole object of the legislation is to restore the purchasing power of agricultural products to a parity with that prevailing in an earlier day."

Again the court says (297 U.S. 1, at page 61, 56 S.Ct. 312, 317, 80 L.Ed. 477, 102 A.L.R. 914): "We conclude that the act is one regulating agricultural production; that the tax is a mere incident of such regulation."

It is quite apparent from a study of the majority opinion in the Butler Case that the decision reached rested upon the long-established principle that the attainment of a prohibited end may not be accomplished under the pretext of the exertion of powers which are granted; citing McCulloch v. State of Maryland, 4 Wheat. 316, 423, 4 L.Ed. 579; Linder v. United States, 268 U.S. 5, 17, 45 S.Ct. 446, 69 L. Ed. 819, 39 A.L.R. 229.

It was said that these controlling principles were "as applicable to the power to lay taxes as to any other federal power." To...