Weir v. United States

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: VOGEL and VAN OOSTERHOUT, Circuit , and VAN PELT
• Citation: Weir v. United States, 310 F.2d 149 (8th Cir. 1962)
• Decision Date: 27 November 1962
• Docket Number: No. 17058.,17058.
• Parties: James WEIR, Appellant, v. UNITED STATES of America, Appellee.

310 F.2d 149 (1962)

James WEIR, Appellant, v. UNITED STATES of America, Appellee.

No. 17058.

United States Court of Appeals Eighth Circuit.

November 27, 1962.

COPYRIGHT MATERIAL OMITTED

James P. Donovan, Dallas, Tex., William F. Billings, Dallas, Tex., on the brief, for appellant.

James W. Gallman, Asst. U. S. Atty., Little Rock, Ark., Robert D. Smith, Jr., U. S. Atty., Little Rock, Ark., on the brief, for appellee.

Before VOGEL and VAN OOSTERHOUT, Circuit Judges, and VAN PELT, District Judge.

VAN OOSTERHOUT, Circuit Judge.

This action was brought by the United States against appellant James Weir to recover the penalty imposed by the Agricultural Adjustment Act of 1938, as amended, 7 U.S.C.A. §§ 1281-1407. The United States sought to recover $16,776.80 farm marketing excess penalty, plus interest thereon, imposed by 7 U.S.C.A. § 1356, for appellant's having raised more rice in the year 1959 than the farm marketing quota assigned to him allowed.

The appellant moved to dismiss the action for failure to state a claim, which motion was denied. He then answered and asserted a counterclaim wherein he sought to recover the penalty he had paid in 1958 and charged that the Agricultural Adjustment Act and the applications thereof are unconstitutional. He asked that a three-judge district court be convened to enjoin the enforcement of the Act. This request was denied.

The United States moved for summary judgment which was granted. Final judgment was delayed by a complicated series of events involving an attempt by appellant to procure the deposition of the Secretary of Agriculture.

Eventually judgment was entered for the plaintiff for $16,972.09 on February 12, 1962. This appeal challenges the trial court's action in: (I) denying appellant's application for a three-judge court; (II) denying appellant's motion to dismiss; (III) refusing to dismiss the complaint for failure of the Secretary of Agriculture to appear for his deposition; and (IV) granting plaintiff's motion for summary judgment. We shall consider these issues in the order stated.

I.

Appellant's first contention is that the trial court was without jurisdiction to deny appellant's application for a three-judge court and to hold the Agricultural Adjustment Act of 1938 constitutional. This challenge of the trial court's jurisdiction is based on an argument that the trial court must upon application initiate the procedure of convening a three-judge court. Appellant quotes from 28 U.S.C.A. § 2284(1) in support of his claim that the trial judge has no discretion to deny the application:

"On the filing of the application, he the district judge shall immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge. Such judges shall serve as members of the court to hear and determine the action or proceeding." (Emphasis added.)

The answer to appellant's claim is contained in the statute itself. 28 U.S.C.A. § 2284 outlines the procedure to be used "in any action or proceeding required by Act of Congress to be heard and determined by a district court of three judges * * *." Section 2284, then, is not jurisdictional. The trial court's jurisdiction is limited, if at all, only by 28 U.S.C.A. § 2282:

"An interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States shall not be granted by any district court or judge thereof unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title."

This provision does not divest the court of jurisdiction simply because application is made for a three-judge court to be convened; it merely says that certain injunctions shall not be issued unless a three-judge court has determined the matter. The manifest purpose is to avoid injudicious invalidation of federal statutes.

The trial court in a letter memorandum states:

"Defendant\'s application for the convening of a three judge court will be denied. When such an application is made, it is the duty of the single judge to whom the request is addressed to determine in the first instance whether the case is one which calls for three judge court. If the relief sought by the applicant does not fall within the purview of the statute providing for three judge courts, or if the constitutional question sought to be raised is plainly insubstantial there is no occasion for convening a statutory court, and the application therefor should be denied by the judge to whom it is addressed. Ex Parte Poresky, 290 U.S. 30 54 S.Ct. 3, 78 L.Ed. 152; Bell v. Waterfront Commission, 2 Cir., 279 F.2d 853; White v. Gates, C.A.D.C. 102 U.S.App.D.C. 346, 253 F.2d 863, cert. den., 365 356 U.S. 973 78 S.Ct. 1136, 2 L.Ed.2d 1147; Sealy v. Department of Public Instruction, 3 Cir., 252 F.2d 898, cert. den., 356 U.S. 975 78 S.Ct. 1139, 2 L.Ed.2d 1149; Wicks v. Southern Pacific Co., 9 Cir., 231 F.2d 130, cert. den., 351 U.S. 946, 76 S.Ct. 845, 100 L.Ed. 1471; Haines v. Castle, 7 Cir., 226 F.2d 591, cert. den., 350 U.S. 1014 76 S.Ct. 660, 100 L.Ed. 874; Kelley v. Board of Education, D.C.Tenn., 139 F.Supp. 578."

The view of the trial court that a three-judge court is not required if the constitutional issue sought to be raised is plainly unsubstantial is supported by the authorities it cites. The Supreme Court at its last term in Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794, thus states the test:

"When an application for a statutory three-judge court is addressed to a district court, the court\'s inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute."

We followed and applied such test in Borden Co. v. Liddy, 8 Cir., 309 F.2d 871 (1962). Upon the basis of a determination that the constitutional issue there raised was substantial, we found the court committed error in failing to convene a three-judge court.

The trial court's finding as to substantiality of the constitutional question is reviewable. Idlewild Bon Voyage Liquor Corp. v. Epstein, supra; Bell v. Waterfront Commission, 2 Cir., 279 F.2d 853, 858. In California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323, the court states:

"The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this Court as to foreclose the subject."

We are in full agreement with the trial court's conclusion that the constitutionality of the Agricultural Adjustment Act, including its marketing quota provisions, has been upheld by previous decisions of the Supreme Court and that an attack upon the constitutionality of the Act no longer presents a substantial question. The Act has been held constitutional in Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122; Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092; United States v. Haley, 358 U.S. 644, 79 S.Ct. 537, 3 L.Ed.2d 567, United States v. Haley, 82 S.Ct. 11.¹

Wickard and Haley involve wheat quotas. Mulford relates to a tobacco quota. While no cases have been cited or found treating with rice quotas, appellant points to no rational basis for distinguishing between the wheat, tobacco and rice provisions of the Act. Our examination of the legislation relating to the various crops shows the general statutory pattern of such legislation to be similar.

Appellant's attack upon the constitutionality of the Act is vague and general. Appellant concedes Wickard v. Filburn to be the foundation decision on constitutionality of the Act. His contention that Wickard is contrary to all established principles and that it should be "stricken from the books" seeks a remedy which it is beyond our power to grant.

The trial court was entirely justified in determining that the appellant had raised no substantial constitutionality issue. Hence, the court committed no error in denying the application for a three-judge court and acted within its jurisdiction in rejecting appellant's contention that the Act is unconstitutional.

II.

Appellant's second contention is that the trial court erred in denying his motion to dismiss the complaint. He argues that the statute imposes no personal liability upon him to pay the penalty and that the penalty against a rice producer is recoverable only by enforcement of a lien upon the rice or by collection from a buyer of the rice.

Appellant cites United States v. Stevenson, 215 U.S. 190, 30 S.Ct. 35, 54 L.Ed. 153, and Globe Newspaper Co. v. Walker, 210 U.S. 356, 28 S.Ct. 726, 52 L.Ed. 1096, in support of his contention that provision for specific remedies for violation of a statute precludes all other remedies. The cases cited are clearly distinguishable and are of no aid to the appellant. In Stevenson the statute made certain immigration offenses a misdemeanor and imposed a $1000 penalty. The court, after considering the statute as a whole, rejected appellant's contention that he could not be indicted for the offense. The court, among other things, states:

"The rule which excludes other remedies where a statute creates a right and provides a special remedy for its enforcement rests upon the presumed prohibition of all other remedies. If such prohibition is intended to reach the Government in the use of known rights and remedies, the language must be clear and specific to that effect." 215 U.S. 190, 197, 30 S.Ct. 35, 36.

No cases involving the Agricultural Adjustment Act are cited. In numerous cases the Government has been given a judgment against the producer for the penalty. See United States v. Whittle, 4 Cir., ...