|Mulford v. Smith
24 F.Supp. 919, affirmed.
[ Roberts ]
[ Butler ]
Mulford v. Smith
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF GEORGIA
MR. JUSTICE BUTLER, dissenting.
Plaintiffs are farmers in Georgia, and on their farms raise tobacco. They sell it in the market year when produced because, in their circumstances, they are unable to process and make it fit to be held for sale in a later year. The sales are at auction markets, through defendants, who are Georgia warehousemen, to purchasers intending to take the tobacco outside the State. The Secretary of Agriculture, assuming to be empowered by the Agricultural Adjustment Act of 1938, undertook to prescribe the amount of flue-cured tobacco to be raised in 1938 in the United States, in each State, and on each farm. He failed to let plaintiffs know the quotas respectively assigned to them until after their crops had matured and were ready for marketing. Each raised more than the assigned quota.
The Act declares that, if more than the amount fixed for a farm is marketed, the warehouseman shall pay to [p52] the Secretary a penalty equal to one-half the price of the excess, but it authorizes him to retain that amount from the farmer raising and bringing it to market for sale. If, without resort to a warehouseman, the farmer sells directly to one in this country, the purchaser is required to pay the penalty, but is authorized to take the amount from the purchase price. If the farmer sells directly to one outside the United States, he is required to pay the penalty to the Secretary. Thus, in any event, the penalty is effectively laid upon the farmer. Enforcement of the Act will compulsorily take from plaintiffs an amount of money equal to one-half of the market value of all tobacco raised and sold by them in excess of the prescribed quotas.
In United States v. Butler, 297 U.S. 1, we held the federal government without power to control farm production. We condemned the statutory plan there sought to be enforced as repugnant to the Tenth Amendment. That scheme was devised and put in effect under the guise of exertion of power to tax. We held it to be in excess of the powers delegated to the federal government; found the tax, the appropriation of the money raised, and the directions for its disbursement to be but the means to an unconstitutional end; showed that the Constitution confers no power to regulate production and that, therefore, legislation for that purpose is forbidden; emphasized the principle established by earlier decisions that a prohibited end may not be attained under pretext of exertion of powers which are granted, and, finally, we declared that, if Congress may use its power to tax and to spend compulsorily to regulate subjects within the reserved power of the States, that power "would become the instrument for total subversion of the governmental powers reserved to the individual States." [p53]
After failure of that measure, Congress, assuming power under the commerce clause, enacted the provisions authorizing the quotas and penalties the validity of which is questioned in this case. Plaintiffs contend that the Act is a plan to control agricultural production, and therefore beyond the powers delegated to Congress. The Court impliedly concedes that such a plan would be beyond congressional power, but says that the provisions do not purport to control production, set no limit upon the acreage which may be planted or produced, and impose no penalty upon planting and production in excess of marketing quota. Mere inspection of the statute and Secretary's regulations unmistakably discloses purpose to raise price by lessening production. Whatever may be its declared policy or appearance, the enactment operates to control quantity raised by each farmer. It is wholly fallacious to say that the penalty is not imposed upon production. The farmer raises tobacco only for sale. Punishment for selling is the exact equivalent of punishment for raising the tobacco. The Act is therefore invalid. United States v. Butler, 297 U.S. 1. Hammer v. Dagenhart, 247 U.S. 251. See Brooks v. United States, 267 U.S. 432, 438; Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U.S. 334, 350. Cf. Retirement Board v. Alton R. Co., 295 U.S. 330, 362, et seq.
Assuming that, under Currin v. Wallace, 306 U.S. 1, plaintiffs' sales in interstate commerce at defendants' auction markets are to be deemed subject to federal power under the commerce clause, the Court now rules that, within suggested limits so vague as to be unascertainable, the exercise of power under that clause,
the grant being unlimited in its terms, may lawfully extend to the absolute prohibition of such commerce, and a fortiori to limitation of the amount of a given commodity which may be transported in such commerce [p54]
That ruling is contrary alike to reason and precedent. To support it, the Court merely cites the following cases:
The Lottery Case (Champion v. Ames), 188 U.S. 321, held that an Act of Congress prohibiting transportation of lottery tickets in interstate commerce is not inconsistent with any limitation or restriction imposed upon exercise of the powers granted to Congress. After demonstrating the illicit character of lottery tickets, the Court said (p. 357):
We should hesitate long before adjudging that an evil of such appalling character, carried on through interstate commerce, cannot be met and crushed by the only power competent to that end. . . . [P. 358] It is a kind of traffic which no one can be entitled to pursue as of right.
Hipolite Egg Co. v. United States, 220 U.S. 45, held within federal power the provisions of the Food and Drug Act forbidding transportation in interstate commerce of food "debased by adulteration," and authorizing articles so transported to be seized as contraband.
Hoke v. United States, 227 U.S. 308, sustained congressional prohibition of interstate transportation of women for immoral purposes.
Brooks v. United States, 267 U.S. 432, upheld a statute of the United States making it a crime to transport a stolen automobile in interstate commerce.
Gooch v. United States, 297 U.S. 124, construed an Act of Congress making it a crime to transport a kidnapped person in interstate commerce.
Plainly, these cases give no support to the view that Congress has power generally to prohibit or limit, as it may choose, transportation in interstate commerce of corn, cotton, rice, tobacco, or wheat. Our decisions establish the contrary:
The extent of regulation depends on the nature and character of the subject and what is appropriate to its regulation. The powers possessed by government to deal with a subject are neither inordinately enlarged or greatly dwarfed because the power to regulate interstate commerce applies. This is illustrated by the difference between the much greater power of regulation which may be exerted as to liquor and that which may be exercised as to flour, drygoods and other commodities. It is shown by the settled doctrine sustaining the right by regulation absolutely to prohibit lottery tickets and by the obvious consideration that such right to prohibit could not be applied to pig iron, steel rails, or most of the vast body of commodities.
Hammer v. Dagenhart, 247 U.S. 251, held repugnant to the commerce clause and to the Tenth Amendment an Act prohibiting transportation in interstate commerce of articles made at factories in which child labor was employed. The Court said (p. 269):
In other words, the power [granted by the commerce clause] is one to control the means by which commerce is carried on, which is directly the contrary of the assumed right to forbid commerce from moving and thus destroy it as to particular commodities. But it is insisted that the adjudged cases in this court establish the doctrine that the power to regulate given to Congress incidentally includes the authority to prohibit the movement of ordinary commodities, and therefore that the subject, is not open for discussion. The cases demonstrate the contrary. They rest upon the character of the particular subjects dealt with and the fact that the scope of governmental authority, state or national, possessed over them is such that the authority to prohibit is as to them but the exertion of the power to regulate. . . . [P. 276] In our view, the necessary effect of this act is, by means of a prohibition [p56] against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the States, a purely state authority. Thus, the act in a two-fold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce, but also exerts a power as to a purely local matter to which the federal authority does not extend. The far-reaching result of upholding the act cannot be more plainly indicated than by pointing out that, if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and thus our system of government be practically destroyed.
Heretofore, in cases involving the power of Congress to forbid or condition transportation in interstate commerce, this Court has been careful to determine whether, in view of the nature and character of the subject, the measure could be sustained as an appropriate regulation of commerce. [*] If Congress had the absolute power now attributed to it by the decision just announced, the opinions in these cases were unnecessary and utterly beside the mark.
For reasons above suggested, I am of opinion:
The penalty is laid on the farmer to prevent production in excess of his quota. It is therefore invalid [p57]
If the penalty is imposed for marketing in interstate commerce, it is a regulation not authorized by the commerce clause. To impose penalties for marketing in excess of quotas not disclosed before planting and cultivation is to deprive plaintiffs of their liberty and property without due process of law.
The judgment of the district court should be reversed.
* Lottery Case, 188 U.S. 321, 355 et seq. United States v. Delaware & Hudson Co., 213 U.S. 366, 415. Hipolite Egg Co. v. United States, 220 U.S. 45, 57-58. Hoke v. United States, 227 U.S. 308, 321-323. Seven Cases v. United States, 239 U.S. 510, 514. Caminetti v. United States, 242 U.S. 470, 491-492. Hammer v. Dagenhart, 247 U.S. 251, 270 et seq. Brooks v. United States, 267 U.S. 432, 436-438. See Wilson v. New, 243 U.S. 332, 346. Cf. Clark Distilling Co. v. Western Md. Ry. Co., 242 U.S. 311, 325. United States v. Hill, 248 U.S. 420. Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U.S. 334, 346 et seq.