Whittenburg v. United States

• Citation: 100 F.2d 520
• Decision Date: 13 January 1939
• Docket Number: No. 8806.,8806.
• Parties: WHITTENBURG et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

100 F.2d 520 (1938)

WHITTENBURG et al. v. UNITED STATES.

No. 8806.

Circuit Court of Appeals, Fifth Circuit.

December 15, 1938.

Rehearing Denied January 13, 1939.

A. W. Cameron, of Corpus Christi, Tex., and Sid L. Hardin, of Edinburg, Tex., for appellants.

John S. L. Yost, Sp. Asst. to Atty. Gen., Douglas W. McGregor, U. S. Atty., of Houston, Tex., Jas. L. Abney, Asst. U. S. Atty., of Brownsville, Tex., and G. Osmond Hyde, Atty., Department of Agriculture, of Washington, D. C.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

SIBLEY, Circuit Judge.

This appeal asserts the unconstitutionality of the Agricultural Marketing Agreement Act of June 3, 1937. 7 U.S.C. A. § 601 et seq. The District Court sustained the Act and the orders of the Secretary of Agriculture issued pursuant to it and enjoined the appellants from further breach of them on a suit by the United States brought under Section 8a(6), 7 U. S.C.A. § 608a(6). The Secretary on July 9, 1937, made a general order establishing an area consisting of three counties in Texas for regulation of marketing of citrus fruits which established a Growers Industry Committee and a Shippers Marketing Committee, the former selected by the growers, and the latter by the handlers of the fruits. These Committees were to investigate conditions and make recommendations to the Secretary, after public notice, touching necessary weekly regulations of shipments, allotments, and proratings. The handling of grapefruit and oranges in the current of interstate and foreign commerce, or which directly burdens, obstructs or affects interstate and foreign commerce in such grapefruit and oranges, was required to conform to the terms and conditions of the order. The order recites the preliminary findings required by the Act, and that a marketing agreement had been signed by handlers of 50% of the fruit to be affected shipped the preceding season, and that the order was favored by the producers during the previous season of two-thirds of the fruit to be affected. Thereafter, pursuant to recommendations of the Committees, the Secretary during October and November, 1937, made weekly regulations forbidding shippers to ship in interstate commerce and to Canada grapefruit grown in the said territory which fell below stated standards of size and quality. In general U. S. No. 3 grade, often referred to as "culls", were excluded from shipment. The appellants, independent handlers who bought their fruit from growers and later sold it, did not sign the marketing agreement and were shipping grapefruit in violation of the weekly regulations, contending and believing them to be unconstitutional. A fuller statement of the Act and the facts may be found in the opinion and findings of the District Judge reported D.C., 21 F.Supp. 713.

There is here no complaint that the preliminaries required by the Act have not been met, or that anything has been falsely found, or that any particular unfairness in administration has been practiced. The sole question presented is whether the Act which authorizes what was done is valid, the assertion being that on three general grounds it is unconstitutional: First, that its declared purpose is to regulate prices and production, contrary to the Tenth Amendment and not in a manner authorized by the Commerce Clause of Article 1, Sect. 8, U.S.C.A.Const. art. 1, § 8, cl. 3; amend. 10; Second, that it unconstitutionally vests legislative power in the Secretary of Agriculture, an executive officer; and in handlers of fifty percent of the fruit. Third, that it operates to deprive nonconsenting handlers, including appellants, of their property without due process of law contrary to the Fifth Amendment, U.S.C.A.Const. amend. 5.

The original Agricultural Adjustment Act, as amended in 1935, was held unconstitutional in its provisions to limit farm production and lay processing taxes. The Commerce Clause was not involved. United States v. Butler, 297 U.S. 1, 63, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914; Rickert Rice Mills v. Fontenot, 297 U.S. 110, 56 S. Ct. 374, 80 L.Ed. 513. In the opinion of Congress the portions of the Act relating to marketing agreements and the control of shipments in interstate and foreign commerce were unaffected by these decisions, and were reenacted with some changes into the present Act. Two appellate courts have agreed with Congress and have upheld these portions of the Act, even before their reenactment. United States v. David Buttrick Co., 1 Cir., 91 F.2d 66; Edwards v. United States, 9 Cir., 91 F.2d 767. The latter case contains a most elaborate discussion of the Act and of the constitutional questions raised. Kindred legislation touching the marketing of tobacco has recently been upheld against similar objections in Wallace v. Currin, 95 F.2d 856, in the Fourth Circuit, and by a Court of three judges in Mulford et al. v. Smith et al., D.C., 24 F.Supp. 919. We need say little additionally, and will content ourselves with a brief statement of the principles on which we think the Act is sustainable against the attacks here made.

First: Sect. 8c (1), 7 U.S.C.A. § 608c(1), which authorizes orders affecting "handlers", states: "Such orders shall regulate, in the manner hereinafter in this section provided, only such handling * * as is in the current of interstate or foreign commerce or which directly burdens, obstructs, or affects, interstate commerce in such commodity or product thereof." In sub-paragraph (6) relating to fruits there is equal care to restrict the limitation of total quantity, or grade, size or quality, to that which may be marketed or transported in the current of interstate or foreign commerce or which directly burdens or obstructs or affects the same. The orders in question are based on facts found which bring them within these restrictions. They are in form...