United States v. Shafer, Civ. No. 8218.

• Decision Date: 17 June 1955
• Docket Number: Civ. No. 8218.
• Citation: 132 F. Supp. 659
• Parties: UNITED STATES of America v. Lindsay B. SHAFER, Lewis Shafer, Joseph Shafer, and Lewis Shafer, Sr.
• Court: U.S. District Court — District of Maryland

132 F. Supp. 659

UNITED STATES of America v. Lindsay B. SHAFER, Lewis Shafer, Joseph Shafer, and Lewis Shafer, Sr.

Civ. No. 8218.

United States District Court D. Maryland, Civil Division.

June 17, 1955.

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George Cochran Doub, U. S. Atty., and James H. Langrall, Asst. U. S. Atty., Baltimore, Md., and Howard Rooney and Joseph B. Zimowski, Attys. for U. S. Dept. of Agriculture, Washington, D. C., for plaintiff.

Wilson K. Barnes, Baltimore, Md., and Stanford Hoff and John Wood, Jr., Westminster, Md., for defendants.

THOMSEN, Chief Judge.

Once again embattled farmers of Carroll County, Maryland, seek to prevent representatives of the United States Department of Agriculture from entering on their farms to measure the acreage of wheat. Their previous effort was successful, United States v. Morelock, D.C.D.Md., 124 F.Supp. 932, because the regulations then in force did not specifically provide for such entry, the representatives of the department had failed to follow its prescribed procedures, and, on balance, the equities were against the granting of the requested injunction.

Now, however, the regulations have been rewritten, specifically providing for entry on farms in aid of measurement; defendants have threatened to shoot the duly designated reporter and the other representatives of the department who accompanied him on his visit to defendants' farms, if they enter thereon to measure the acreage of wheat; and the government seeks an injunction restraining such interference. The present action is brought prior to harvest, when the evidence of wheat acreage is most easily obtainable, and before any penalties for the 1955-56 marketing year have accrued. Defendants' answer raises twenty separate defenses, some with subdivisions, and defendants have objected to much of the government's evidence and most of the exhibits.

Other facts will be stated in the discussion of the various points.

The relevant portions of the Agricultural Adjustment Act of 1938, 52 Stat. 31, as amended, 7 U.S.C.A. § 1281 et seq., are set out in Note 1 to the Morelock opinion, 124 F.Supp. at page 935. Intervening amendments to the Act are relatively unimportant.¹ Particular sections will be referred to in the discussion of the various points.

The controlling regulations, issued pursuant to 7 U.S.C.A. § 1375, have been rewritten. The new regulations were published in the Federal Register, March 18, 1955, 20 F.R. 1621. See also 19 F.R. 2374; 19 F.R. 3211; 19 F.R. 3249; 19 F.R. 3863; 19 F.R. 3899; 19 F.R. 4058; 19 F.R. 5625; 19 F.R. 6775. The pertinent parts of the section dealing with the measurement of farms are set out in the note below.² This comprehensive section has replaced both old Reg. sec. 728.455 and the old instructions, set out in Notes 2 and 3 respectively to the Morelock opinion, 124 F.Supp. at pages 937-940. The new regulations include the following provisions:

"§ 728.555 Measurement of farms. The county committee shall provide for the measurement of all farms in the county having a 1955 wheat acreage allotment and any other farms in the county on which the committee has reason to believe there is wheat which could be available for harvest in 1955, regardless of its intended use, for the purposes of ascertaining with respect to each of such farms the acreage of wheat and whether such acreage is in excess of the farm wheat acreage allotment for 1955.

* * * * *

"(c) Farm visit. A reporter shall visit each farm assigned to him for measurement and enter thereon if such entry will facilitate measurement. * * *"

It thus appears that the new regulations specifically authorize entry on a farm if such entry will facilitate measurement. In the case at bar, the reporter testified that he could not see what was growing in some of the fields on defendants' two farms without entering thereon, and that with respect to certain other fields he could see from the road what was growing alongside the road, but could not see the whole field. I find these facts, and further find as a fact that entry on the farms in question will facilitate measurement.

Defendants argue that the Act does not contemplate entry on a farm without consent of the owner, and cite a debate in the Senate at the time the Act was under consideration. 83 Cong. Rec. 1858. The statements by the various Senators show that they understood that the Act contemplated entry on farms, but the question of consent of the owner was not discussed. If the Senators had intended to require consent of the owners before entry can be made, such a provision could easily have been inserted in the Act.

Defendants then argue that if the Act and the Regulations authorize entry without consent of the owners, they violate the Fourth, Fifth and Tenth Amendments to the Constitution.

The argument based on the Fourth Amendment is without merit. The protection accorded by the Fourth Amendment does not extend to the open fields. Hester v. U. S., 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898.

The constitutionality of the Act was sustained in Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122, against the contention that it violates the Fifth Amendment. See also Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092, and Troppy v. La Sara Farmers Gin Co., 5 Cir., 113 F.2d 350.

The right to measure asserted by the government in this case is in aid of and ancillary to the right to regulate the marketing of wheat, which was sustained in Wickard v. Filburn, supra, and is necessary and proper for carrying into execution the purposes of the Act and the power of Congress under the Commerce Clause. Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194; U. S. v. Hilsinger, D.C., 284 F. 585, Id., 6 Cir., 2 F.2d 241, certiorari denied 266 U.S. 622, 45 S.Ct. 100, 69 L.Ed. 473; Taylor v. Fine, D.C.S.D.Cal., 115 F.Supp. 68.

Defendants attempt to distinguish the cases cited on the ground that those cases dealt with activities which have been regulated under the police power from time immemorial, whereas "growing wheat on a farm has been a lawful, unregulated business from the time of Joseph in Egypt up until the time of this case". The illustration is unfortunate, for Joseph won fame by regulating the consumption and marketing of grain. Genesis 41. Although the present regulation is under the commerce power of the federal government, Wickard v. Filburn, supra, rather than under the police power, it has long been recognized that "where a certain field of activity becomes subject to one of the enumerated federal powers, then the federal government may in that field exercise authority comparable to state police power." Doherty v. U. S., 8 Cir., 94 F. 2d 495, 497, certiorari denied 303 U.S. 658, 58 S.Ct. 763, 82 L.Ed. 1117. See also Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194.

The government in this case is not seeking an injunction requiring defendants to identify the fields or to take any other affirmative action in aid of the reporters. Cf. United States v. Morelock, 124 F.Supp. at page 942.

No violation of the Tenth Amendment is involved. Wickard v. Filburn, supra. The objection that the government has no property right in the farms is frivolous.

Defendants attack the new regulations, sec. 728.550-728.597, 20 F.R. 1621, and sec. 728.510-728.526, 19 F.R. 3249, because they were signed by True D. Morse, as Acting Secretary of Agriculture, rather than by the Secretary himself. 7 U.S.C.A. § 1375. They also attack for the same reason the proclamation of the result of the referendum, signed by Earl Butz, as Acting Secretary, 19 F.R. 5625, and a notice, 19 F.R. 2374, which was signed by J. N. McConnell, Administrator, Commodity Stabilization Service. Defendants contend that there has been an unlawful delegation of duties.

True D. Morse was Under Secretary, appointed by the President, with the advice and consent of the Senate, 5 U.S.C. A. § 514a, and was authorized to exercise the functions and perform the duties of the Secretary in case of his absence or sickness. 5 U.S.C.A. § 514b, 5 U.S.C.A. § 4. No question of subdelegation of authority is involved when papers are signed by the Under Secretary as Acting Secretary, which is the way he should sign when the Secretary is absent or sick. 19 Op.Atty.Gen. 133.

"In the course of administrative routine, the disposition of official matters by an Acting Secretary is frequently necessary, and the integrity of administration demands that credit be given to his action in that capacity." Morgan v. U. S., 298 U.S. 468, at page 479, 56 S.Ct. 906, at page 911, 80 L.Ed. 1288. "There is a presumption of authority for official action rather than want of authority, and where the statute prescribes conditions under which the subordinate may act as head of a bureau and the subordinate acts as such, the existence of those conditions will be presumed in the absence of a contrary showing." Anderson v. P. W. Madsen Investment Co., 10 Cir., 72 F.2d 768, at page 771. See also U. S. v. Signore, 7 Cir., 115 F.2d 669, 672; Ryan v. U. S., 136 U.S. 68, 81, 10 S.Ct. 913, 34 L.Ed. 447; U. S. v. Eighty Acres of Land, D.C.D.Ill., 26 F.Supp. 315, 319.

Moreover, publication of a document in the Federal Register raises a presumption of validity, and defendants offered no evidence to rebut that presumption with respect to any of the documents in issue. 44 U.S.C.A. § 307 provides:

"* * * The publication in the Federal Register of any document shall create a rebuttable presumption (a) that it was duly issued, prescribed, or promulgated; (b) that it was duly filed with the Division and made available for public inspection at the day and hour stated in the printed notation; (c) that the copy contained in the Federal Register is a true copy of the original; and, (d) that all requirements of this chapter and the regulations prescribed hereunder relative to such

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