Chester C. Fosgate Co. v. Kirkland (19 F. Supp. 152, 1937)

AKERMAN, District Judge.

This cause is now before the court for the fourth time. It first came before the court upon application for temporary injunction as prayed for in the original bill, which temporary injunction against L. P. Kirkland and others, as the Florida Citrus Control Committee and against Henry A. Wallace, as Secretary of Agriculture, was granted January 28, 1937, effective until February 1, 1937.

The cause was next considered upon application of the plaintiffs to continue the temporary restraining order, and upon application of the defendant Henry A. Wallace to be dismissed because not a resident of this district, and upon objections of L. P. Kirkland and others to any extension of the injunction order, all of which resulted in a further order dated February 2, 1937, whereby the motion of defendant Wallace to be dismissed was granted, and whereby the application of the plaintiffs for a continuance of said injunction, as against said Control Committee, was denied because the committee had no enforcing powers, but the bill was retained as against the attacking motions in so far as the same might be deemed a motion to dismiss the bill.

The cause next came before the court upon the renewed application of the plaintiffs for temporary injunction based upon the original bill and an amendment to the original bill filed February 6, 1937, also upon a petition of intervention of Goldsmith Fruit Company, also upon petition of intervention by N. S. De Forest, also upon petition of intervention by Roper Brothers, Inc., and others, also upon objections by said District Attorney and others as new parties brought in by the amendment to said bill, to the granting of temporary restraining order, also upon motions of some of said new defendants to be dismissed because not residents of this district, also upon objections of L. P. Kirkland and others as constituted the Control Committee to the granting of temporary injunction; all of which resulted in a further order made in this cause February 10, 1937, dismissing the intervention of Goldsmith Fruit Company, but allowing the other interventions to stand, dismissing all of the new defendants brought in by said amendment to the bill except Herbert S. Phillips, as United States District Attorney, continuing the application for temporary injunction until such future date as might be fixed by the court or by agreement of the parties, and requiring the defendant Herbert S. Phillips to make answer to the bill on March Rule Day, 1937.

L. P. Kirkland and others, constituting the Control Committee, on March 1, 1937, filed their motion to dismiss the bill of complaint as amended, and the defendant Herbert S. Phillips, as United States District Attorney, at the same time filed a like motion to dismiss. This, the fourth hearing, comes up on said motions to dismiss.

The original bill of Chester C. Fosgate Company and others attacked the validity of that certain citrus marketing agreement alleged to have been signed by Henry A. Wallace, Secretary of Agriculture, May 4, 1936, and the validity of that certain citrus handling order, known as order No. 7, issued by said Secretary of Agriculture May 4, 1936, and the validity of those sections, and parts of sections, of the Agricultural Adjustment Act, now 7 U.S. C.A. §§ 601 to 610, inclusive, upon which said marketing agreement and said handling order were predicated. It is alleged in the bill that each of the plaintiffs, save one a grower, is a handler of citrus fruits, who. picks, packs, and ships citrus fruits from Florida in interstate commerce, and that, in consequence, each comes within the restrictive provisions provided for in said handling order, and that each has been restricted in the shipment of citrus fruits, pursuant to weekly prorate allotments made by said Citrus Control Committee, acting under the authority of said order and under the further orders and approvals made by said Secretary of Agriculture. The plaintiffs complain that the restrictions so imposed, have prevented them from operating their several citrus packing houses as they normally would and have cut down their operations to from one to two days per week, causing them loss of business with citrus growers ’ who would ordinarily contract with them, also causing disorganization of their labor forces and other damages. The bill also charged that said Agricultural Adjustment Act (as amended [7 U.S.C.A. § 601 et seq.]), the agreement and handling order complained of, are severally void, because in conflict with sundry provisions of the Federal Constitution and the amendments thereto. Finally, the bill charged that on account of nonrestrictions in the handling of citrus fruits from the Texas citrus area, and on account of several severe freezes in California occurring in January of this year, that the prorate restrictions provided for by said order No. 7 are now unreasonable and should not, in any event, be longef maintained. The bill prayed for a temporary and permanent injunction against the enforcement of said order, and for a decree declaring the same to be void, etc.

The amendment to the bill of complaint 'set up that the defendant Herbert S. Phillips, as United States District Attorney, in co-operation with the Special Assistant to the Attorney General and other attorneys representing the Secretary of Agriculture, were threatening to institute proceedings, civil and semicriminal, against the plaintiffs for alleged violations of said handling order and the allotments made by the control committee in pursuance thereof; that the said attorneys had already instituted one such proceeding against the Goldsmith Fruit Company of Fort Pierce, Fla., by .a suit in the name of United States of America against said company, and such threats of enforcement added to the injuries sustained by the said plaintiffs, as more fully set out in the original bill, were causing irreparable injury to the plaintiffs ; wherefore the plaintiffs renewed the application for a temporary injunction and permanent injunction and also prayed that the court enter a declaratory decree pursuant to 28 U.S.C.A. § 400, adjudging said marketing agreement and said handling order No. 7 to be void and of no effect.

Roper Brothers, Inc., and others, whose petitions of intervention were allowed to stand, made like complaints and prayed that the same relief, which might be awarded to the plaintiffs, be also awarded to them as intervenors.

The motions to dismiss now before the court on the part of Kirkland and others, as constituting the control committee, and on the part of Phillips, as United States District Attorney, admit as true all material facts which are well pleaded in the bill of complaint as amended. Payne v. Central Pacific R. Co., 255 U.S. 228, 232, 41 S.Ct. 314, 65 L.Ed. 598; Street v. Lincoln S. D. Co., 254 U.S. 88, 89, 41 S.Ct. 31, 65 L.Ed. 151, 10 A.L.R. 1548; Interstate Natural Gas Co. v. Gully (D.C.) 8 F.Supp. 174, affirmed 82 F.(2d) 145 (C.C.A.5).

The motion to dismiss filed by Kirkland and others, constituting the control committee, is a general motion attacking the jurisdiction of the court, asserting the absence of an indispensable party, and attacking the sufficiency of the bill as amended. The motion to dismiss filed by the defendant Phillips is likewise a general motion attacking the sufficiency of the bill and contending, among other things, as does the motion by Kirkland et al., that all contentions involved were determined adversely to the plaintiffs by a ruling made on February 25, 1937, by Hon. John W. Holland of the Miami Division of said court, in the suit of United States of America v. Goldsmith Fruit Company (D.C.) 19 F.Supp. 147. A letter from the said Judge to the several counsel engaged in that case, and purporting to set forth the views of said judge respecting the validity of said Agricultural Adjustment Act and said handling order No. 7, is attached to the motion to dismiss filed by said Phillips, as “Exhibit A.” Passing the propriety of attempting to plead the subject-matter of said letter as a part of a motion to dismiss, I do-not have before me the bill of complaint or the answer, or the evidence filed and taken in said suit of United States of America v. Goldsmith Fruit Company, although I gather from said letter and have been informed by the argument of defendants’ counsel that the Hon. John W. Holland, upon the pleadings and evidence before • him, entertains a view that said Agricultural Adjustment Act and said handling order are in all respects valid and binding. If the present case had now come before me as a new proceeding after the Goldsmith Case had been heard and ruled upon by Judge Holland, I would have been much inclined 'to follow his views in order to make the opinions and holdings of the several judges of this district harmonious where possible, but it appears by this record that the proceedings before Judge Holland were not filed until February '4, 1937, and that his ruling as evidenced by said joint letter to counsel was not made until February 25, 1937; whereas in this cause I ha‘d previously indicated my view to be that said Agricultural Adjustment Act was void and that said marketing agreement was void and said handling order also void, because by my order of February 2, 1937, I had sustained the bill of complaint as against attacks contained in all of the motions and objections up to that time interposed by the defendants, and by my order made in this cause on February 10, 1937, I again sustained the bill of complaint as amended as against the further motions attacking the same and required Herbert S. Phillips, as United States District Attorney, to answer the bill as amended on or before March Rule Day. Having previously made such orders in this cause, I do not feel myself bound, either on account, of comity, or otherwise, to follow the contrary views of Judge Holland. In the case of Interstate Natural Gas Co. v. Gully (D.C.) 8 F.Supp. 174, 176, District Judge Holmes, now member of the Court of Appeals, Fifth Circuit, said: “As men must be just before they are generous, courts must dispense justice rather than -comity, if the one endangers the other.” This principle seems to require that I now follow my own independent judgment as to the several contentions of law presented by the pleadings in this cause.

A preliminary contention made by the motion of Kirkland et al., as control committee, is that Secretary Wallace is an indispensable party, without whose presence in this suit no relief can be granted to the plaintiffs. That contention is without merit. Similar contentions were made and overruled in the following cases : Yarnell v. Hillsborough Packing Co., 70 F.(2d) 435 (C.C.A.5), Ryan v. Amazon Petroleum Co., 71 F.(2d) 1, 4 (C.C.A.5); Rood v. Goodman, 83 F.(2d) 28, 31 (C.C.A. 5).

It is also contended by the defendants constituting the control committee that plaintiffs should first pursue their administrative remedies provided for by the Agricultural Adjustment Acty such as found in 7 U.S.C.A. § 608c (15), before resorting to a court of equity for relief. In the first place it is my opinion, for reasons hereinafter stated, that all of the Agricultural Adjustment Act, relating to the marketing agreement and handling order complained of, is void, with the result that the administrative provisions of said act urged by the defendant must fall with the other parts thereof. United States v. David Buttrick Company (D.C.) 15 F.Supp. 655, text 659, supporting the sixth headnote. It is further my view that the attacks made by the bill and amendment thereto upon the marketing agreement and handling order No. 7, predicated upon sundry provisions of the Federal Constitution and amendments thereto, are questions of law and not administrative questions, with the result that the Secretary of Agriculture has, in any event, no jurisdiction or authority to determine such questions. This was the view taken by the Fifth Circuit Court of Appeals in the case of Gully v. Interstate Natural Gas Co., 82 F.(2d) 145, first headnote and supporting text. The Supreme Court of the United States denied certiorari in the Gully Case, 298 U.S. 688, 56 S.Ct. 958, 80 L.Ed. 1407.

There are still other fundamental reasons why the so-called administrative remedies do not exist or are insufficient to displace the power of a court of equity to give relief. It appears by section 2 of the amendment to the bill and by the copy of petition attached thereto that there are now pending before the Secretary of Agriculture petitions by several of the plaintiffs and interveners for cancellation or modification of handling order No. 7; also that by such petitions it is charged that the statutory consent of 50 per cent, of handlers (7 U.S.C.A. § 608c (8), as a condition precedent to the making of the order, was not obtained. The so-called administrative provisions of the Agricultural Adjustment Act entirely dispense with the right of trial by jury guaranteed by the Seventh Amendment to the Federal Constitution as applied to the determination of such questions as are embodied in said petitions.

It is a further fundamental element of due process of law that no judge shall try his own case. Sections 608b and 608c of 7 U.S.C.A. require that the Secretary of Agriculture shall be one of the contracting parties to any marketing agreement executed pursuant to the act, and yet the Secretary is set up as the judge to try issues of act and issues of law attacking the -validity of such an agreement.

The original objections of L. P. Kirkland et al., presented before me February 1 and 2, 1937, and filed with the clerk February 8, 1937, had attached thereto as “Exhibit A” a copy of certain regulations adopted by the Secretary and approved by the President for hearing' and determining such petitions as referred to in the amendment to the bill filed in this case. Those regulations were published in Federal Register, and by act of Congress the court is required to take judicial notice thereof. By those regulations (section 303) the Secretary to whom such a petition is addressed is deemed to be the defendant or respondent and is to be represented by counsel adverse to the petitioner. Yet the hearing is to be conducted (section 302) by the Secretary or by a “Presiding Officer” or “such officer or employee of the Department as he may designate for the purpose.” A code of procedure is then provided by said regulations adopted by the Secretary and approved by the President, prescribing how petitions shall be framed and filed, hearings conducted, evidence taken, etc. After the hearing is completed (section 312), the “Presiding Officer” transmits all of the record including the evidence taken to the office of the “Plearing Clerk” in Washington, D. C. The petitioner is accorded the right to file a brief in support of his contentions. In the course of time the Secretary (section 314) is required to “render his decision based upon the record, by making such final rulings upon the prayers of the petition as may be proper and in accordance with the law.” By virtue of the Agricultural Adjustment Act the Secretary of Agriculture is now undertaking to supervise various branches of agriculture, horticulture, stock raising, and dairying in various _ parts of the United States. Before these multitudinous duties were taken over, he already had a great multitude of official duties to perform by virtue of prior enactments. Thus, in the very nature of the case a review of a record built up under such regulations as above referred to, must necessarily be reviewed and submitted to him by some one of his many subordinates, whom the petitioner and petitioner’s attorneys in such case never see and never know. “The general rule undoubtedly is that Judicial Offices must be exercised in person, and that a Judge cannot delegate his authority to another” 6 R..C.L. 172. Such procedure whereby the rights, properties, and liberties of citrus handlers and citrus growers are determined, is not due process of law guaranteed by the Fifth Amendment to the Federal Constitution. Moreover, such judicial power vested in such administrative officer and his subordinates is in my opinion an encroachment on the judicial branch of'the government as defined by article 3 of the Federal Constitution. O’Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356. Otto v. Harllee, 119 Fla. 266, 161 So. 402, and text supporting fourth headnote. Ponder v. Graham, 4 Fla. 23, 42, 43.

It is further contended by Kirkland et al., as well as by the District Attorney, that this court has no power to grant any relief on account of anything complained of in the bill of complaint and amendment thereto on the ground that neither the Secretary of Agriculture nor the Attorney General of the United States has directed Herbert S. Phillips, as United States District Attorney for this district, to institute proceedings against any of the plaintiffs or interveners. I cannot agree with that contention. The bill of complaint and amendment thereto, viz., the amendment filed February 6, 1937, show that all of the defendants, that is to say, those constituting the control committee and also the defendant Phillips, as United States District Attorney, are contending that the Agricultural Adjustment Act is valid in its entirety, also that the alleged handling order and the alleged marketing agreement are valid in all respects and that the plaintiffs and interveners are severally bound by the weekly pro rate of fruit allotted to them severally upon the recommendation of the control committee and approved by the Secretary of Agriculture. It further appears by said pleadings of the plaintiffs that one proceeding was previously instituted and is still pending against the plaintiffs Mr. and Mrs. Ivey, pursuant to 7 U.S.C.A. § 608a, subd. (7), also that the defendant Phillips, as District Attorney, joined by his assistant and other