United States v. Turner Dairy Co., 9014.

• Decision Date: 07 August 1947
• Docket Number: No. 9014.,9014.
• Citation: 162 F.2d 425
• Parties: UNITED STATES v. TURNER DAIRY CO.
• Court: U.S. Court of Appeals — Seventh Circuit

162 F.2d 425 (1947)

UNITED STATES v. TURNER DAIRY CO.

No. 9014.

Circuit Court of Appeals, Seventh Circuit.

June 20, 1947.

Rehearing Denied August 7, 1947.

Myer H. Gladstone and Ralph J. Gutgsell, both of Chicago, Ill., for appellant.

J. Albert Woll, U. S. Atty., of Chicago, Ill., James A. Doyle, Sp. Asst. to Atty. Gen., Katherine A. Markwell, Atty., Department of Agriculture, of Washington, D. C., John F. Sonnett, Asst. Atty. Gen., John Ford Baecher and J. Stephen Doyle, Jr., Special Assts. to Atty. Gen., and John P. Lulinski, Asst. U. S. Atty., of Chicago, Ill., for appellee.

Before SPARKS, KERNER, and MINTON, Circuit Judges.

SPARKS, Circuit Judge.

This is an appeal from a summary judgment entered September 28, 1945, mandatorily enjoining appellant to pay the sum of $24,317 to the Market Administrator for deposit in the Producer-settlement Fund established pursuant to the provisions of the Agricultural Marketing Agreement Act.

This case is another in the series of those involving various aspects of the operation of the Act, 7 U.S.C.A. § 601 et seq., and the orders promulgated by the Secretary of Agriculture for various Milk Marketing Areas. The general scheme of the Act and its operations have been before the Supreme Court in a number of cases: United States v. Rock Royal Co-op., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446; Hood & Sons v. United States, 307 U.S. 588, 59 S.Ct. 1019, 83 L.Ed. 1478; Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733; United States v. Wrightwood Dairy Co., 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726; United States v. Ruzicka, 329 U.S. 287, 67 S.Ct. 207. The last two involved the same order as is here involved, No. 41, and fully sustained its validity and the authority of the Secretary of Agriculture operating thereunder.

The question presented by this appeal is whether the court had jurisdiction, after the entry of an order compelling appellant to produce its books and records, to enter judgment ordering it to pay the amount found due as a result of the examination of those books and records, or whether such relief unduly enlarged the scope of the relief prayed for in the original bill of complaint.

Order No. 41 has been described in detail in the cases referred to. We will say here only that it sets up an elaborate system for classifying milk received and distributed by handlers according to the use to which it is to be put, and adjustment of payments for that milk according to such use, with payments into a Producer-settlement Fund by those handlers whose use value exceeds the norm on which the market administrator bases the uniform price, and payments from that Fund to those handlers whose use value is less than the norm. Thus the system imposes a primary obligation upon all handlers to make complete and accurate reports of their milk purchases and utilization, and a secondary obligation upon such handlers as are disclosed by those reports to be indebted to the Fund to pay the amounts found due. It is obvious that the successful operation of the system depends upon their prompt compliance with these requirements, (1) to make reports from which the administrator obtains the data upon which to base the uniform price and ascertain which handlers shall pay into the Fund and which receive payments therefrom, and (2) to make such payments as are called for by the administrator. Section 8c(15) (A) of the Act, 7 U.S.C.A. § 608c(15) (A), provides for review of any order upon petition by any handler to the Secretary of Agriculture stating that any such order or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law and praying modification thereof or exemption therefrom. The ruling of the Secretary, after hearing on such petition, is final if in accordance with law.

The complaint upon which this litigation was instituted was filed May 7, 1940. It alleged appellant's failure and refusal to make reports in accordance with the provisions of the Order, submission of obviously incomplete reports, refusal to make records available for examination by the agents of the administrator, destruction of such records after demand for them duly made by the administrator, submission of inaccurate purchase and utilization records made after the dates of the transactions they purported to record, and failure to make any payments whatever for deposit in the Fund in accordance with the provisions of Order No. 41. The complaint therefore prayed a preliminary mandatory injunction commanding appellant to comply fully with all the requirements of the Order, pending final determination of the cause, and a permanent injunction restraining it from violating any of the provisions of the Order, and for "all such other, further, and different relief as this Court may deem just." It will be noted that it did not expressly seek a money judgment.

After various proceedings which we need not enumerate, the court found that appellant had failed and refused to make its records available to the administrator and that the extent to which the reports were incomplete and inaccurate could not be determined until that officer was given access to all appellant's books and records. The court therefore, by order of March 24, 1942, mandatorily enjoined appellant to comply fully with all the provisions of Order No. 41, and particularly to file all requisite...