Opposition Brief — Ex parte Zohn

Supreme Court brief1943

Ask Donna

What actually matters in this document.

Text

SUPREME COURT OF THE UNITED TEES ram

OCTOBER TERM, 1942 iD

suoaemeumes MAY 14 1943

No. 954 CHARLES FLECLS COM

————E

KENNETH BENDER, ET AL.,

s Appellants,

CLAUDE R. WICKARD, ETC.,

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR

THE DISTRICT OF COLUMBIA,

APPELLANT’S BRIEF IN OPPOSITION TO THE MO.

TION TO AFFIRM AND IN SUPPORT OF THE

JURISDICTION.

VY Witu1aM LemKg,

’ Rosert H. McNEILL,

Counsel for Appellants.

Louis M. Day,

Henry Perzincer,

Eva L. Mrnor,

S. L. Lavcks,

Lee R. Dapper,

Ricuarp R. Krussz,

Frank A. MEEeK,

T. A. BILuines.y,

Cart E. Mo.uenserc,

Noset Y. Dowé tt,

Sam Herzwer,

Rautpeu HorrMay,

Rosert Rov te,

Marsu & Marsa,

Appineton & JONEs,

Gitpert Martin,

KennetH WEBBER,

Of Counsel.

INDEX.

Supsect INDEX.

Appellant’s brief in opposition to the motion to affirm

and in support of the jurisdiction.................

Action of the lower court... ......-.cscscsecess

Se os see reneeeneewe res

SU MIVEINOD occ scccccnccreserecseacees

Sa as wa bie x tude deed.’

SC MMIOIR, 0 secs ccereercevceseuses

Od cee es eeaus vavercee tude

Ee ee ee ee

Violate Article I, Section 8.................

Violate Article I, Sections 7 and9...........

Violate Article IV, Section 2................

Violate Article I, Section 1.................

- (SS a a ne

Violate Articles VII and VIII...............

Violate Articles IX and X..................

Repugnant to Article XIII, Section 1........

re eae dchavee pees es

Let us get the correct facts

Legislative findings

Conclusion

Appendix—Table I,—‘‘Wheat’”’

Appendix—Table I,—‘‘Wheat”’—Official returns of May

31, 1941, Wheat Production

Appendix—Table II—‘‘Wheat”’

Appendix—Table II—‘Wheat”—Production and dis-

appearances by uses, by States; Five year average for

period 1931-’32 to 1935--'36; Mill grindings, by States

an uses as percentage of production

Appendix III—‘‘Wheat”’

Appendix—“Offer of proof” in District Court of the

United States for the District of Columbia

1—5985

WINRHWNHNH ee

ii INDEX

TasLe or Cases CITED.

Page

Atlantic Coast Line v. Standard Oil Co., 275 U. S. 257.. 11

Beckman, et al. v. Mall, 317 U.S. 597........--- +++: 1,2

Brown v. Houston, 114 U. 8. 622......--- +--+ 550005: 11

Buffington v. Day, 11 Wall. 124.......-------++0005> 33

Carter v. Carter, 298 U. S. 238... .....eeee eee 28

Corfield v. Day, 4 Wash. (U. 8.) 371, abi so 5 22

Currin v. Wallace, 306 U.S. 1......---0:+-20000 00: 16

Dahnke-Walker Co. v. Bondurant, 257 U. 8. 282....... 19

Gibbons v. Walker, 9 Wheaton 1.....--------+-s50 15

Gordon v. United States, 117 U. 8. 697....-----.- +++: 27

Hammer v. Dagenhart, 247 U.S. 251....--.--- +++ +50: 18, 19

Hertz v. Woodman, 218 U. S. 205.......- +--+ +eess05> 30

Industrial-Association v. United States, 268 U. S. 64. .. ll

Labor Board v. Fainblatt, et al. 306 U.S. 601........- 17

Linder v. United States, 268 U.S. 5....--.-- +. +0005 11, 28

Louisville Bank v. Radford, 295 U. 8. 555.........---- 25

McCulloch v. Maryland, 4 Wheat. 316........-.--+-- 28

Minnesota Rate Case, 230 U. 8. 352.......----+-+++>: 17

Mulford v. Smith, 307 U. S. 38......-. +0202 seers 13, 14

Panama Refining Co. v. Ryan, 293 U. & Serre 23

Public Utilities Commission v. Landon, 249 U. S. 236.. ll

Schechter Corp. v. United States, 295 U. i ae 11, 23

Shreveport Case, 234 U.S. 342... -..- +--+ essere 16

Swift & Co. v. United States, 196 ai ire seces tas 18

United States v. Butler, 297 U.S. 1...-------++>> 11, 27, 30

United States v. Darby, 312 U.S. 100.........------- 18

United States v. E. C. Knight Co., 156 U.S. 13....--. 18

United States v. Harris, 106 U. S. 629.........------ 29

United States v. Rock Royal Co-operative, 307 U.S. 533. 14

United States v. Williams, 194 U.S. 295.......-.----: 27

United States v. Wrightwood Dairy, 86 L. Ed. 431..... 14

Wickard v. Filburn, 317 U.S. 111.....------ 00s sees 1

Wilson v. New, 243 U.S. 382... ....-- 00+ +e errr eres 19

Worthen Co. v. Kavanaugh, 295 U.S. 56.....-.------ 20

SratuTes CITED.

Agricultural Adjustment Act of 1938, Sections 331 to

NE ears cape eeeerna ed a Be 2, 3, 5, 6,7

INDEX iii

Page

Act of August 24, 1937, Chapter 754, 50 Stat. 751:

A vase cera er ehees te 2

SSS ap Se reer Tree ere 2

St SSBC SEAN Pee SP ys pee 2

Constitution of the United States:

Article I, Section 1............... cece eeeeeeees 23

ra. Cc pe stedeKeuseut ie 26

I ona 9.4 006040 thoseeoescerhens 10, 23

CT 6 od 6 Fs eee ube hue wees 21

Astisle TV, Geatlem B..... 2... ccc vvccccssvecevess 22

as de sno gekeh ecseiensine tweh eve 25

ee ee ee paren enaeden tus 26

SR CRE a re ener ee Free aeg eee 26

es ete lea useerseneur 26

Rae Ud ave dee hénaeerevecans 26

Article XIII, Section 1... 1.1... cece eeecceeeens 29

Justice and The Modern Law, (1913) Everett Abbott.. 31

Public Law 74 of the 77th Congress................. 2, 20

Warren “The Supreme Court in United States History”

(1926) Volume 2, p. 748-9... ..... eee eee ees 30

2—5985

a nanan memarmaccmnmanamaess

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1942

No. 954

KENNETH BENDER, ET AL,

Appellants,

vs.

CLAUDE R. WICKARD, ETC.,

Appellee.

APPELLANTS’ BRIEF IN OPPOSITION TO MOTION

TO AFFIRM AND IN SUPPORT OF JURISDICTION.

Action of the Lower Court.

In the above cause a three judge district court was con-

vened in the District of Columbia in accordance with the

Act of August 24, 1937. That Court refused to hear the

evidence and denied the appellants the right to proceed

and try the case on the merits. The Court took the position

that all constitutional questions, regardless of the facts,

had been disposed of by the Supreme Court’s decision in

the case of Claude R. Wickard, etc. v. Roscoe C. Filburn,

317 U. S. 111, and in the case of Beckman, et al., v. Mall,

317 U. S. 597.

The appellants offered to prove that the facts in this

case were just the opposite of the facts in the Filburn case

and that the rule of law applied in the Filburn case was

estoppel and did not apply to their case.

The Court below granted the appellants’ request and

allowed them to file their Offer of Proof and then dismissed

the case on the grounds that the Supreme Court had held

Public Law 74 (77th Cong.) and Sections 331 to 339 in-

clusive of the Agricultural Adjustment Act of 1938 as

amended constitutional in the Filburn case. The appellants

here challenge the correctness of that conclusion and of the

dismissal order.

The Court below also cited the Beckman case, 317 U. S.

597, as sustaining its Order of Dismissal. The Court erred.

The Beckman case is no authority. That case was not before

the Supreme Court on its merits. It was before the Court

on a jurisdictional question. Upon the question whether

the Secretary of Agriculture could be served by registered

mail in a district not his official residence.

The record in that case outside of that part which related

to service was not before the Supreme Court. It could not,

therefore, have passed on the merits or demerits. Since

the Supreme Court in the Filburn case, as we maintain,

based its decision upon estoppel rather than upon con-

stitutionality, therefore, the Beckman case is not in point.

Jurisdiction.

Jurisdiction is conferred upon this Court to hear and

determine the constitutional questions raised by this appeal

under Sections 1, 2 and 3 of the Act of August 24, 1937.

Chapter 754, 50 Stat. 751.

Questions Involved.

There are only two questions involved in this case. One

is: Did the Supreme Court hold Public Law 74 and Sec-

tions 331 to 339, inclusive, of the Agricultural Adjustment

Act, unconditionally constitutional in the Filburn case?

This regardless of what the facts might be in any other

case. We submit that it did not. We feel that the deci-

sion in the Filburn case is based upon estoppel rather than

upon constitutionality.

The other question is: If the rule applied in the Filburn

case is not applicable to the appellants’ case, then, under

the facts as established by the Offer of Proof, are not

Public Law 74 and Sections 331 to 339, inclusive, of the

Agricultural Adjustment Act unconstitutional? Are they

not repugnant not only to certain sections of the Constitu-

tion, but, to the Constitution as a whole? Or in the alternate

should this Court not send this case back to the District

Court for trial on its merits?

Statement of the Case.

This case arises under Federal laws. It arises under

Public Law 74 and Sections 331 to 339, inclusive, of the

Agricultural Adjustment Act. The appellants are farmers

from the States of Ohio, Kansas, Michigan, and Pennsy]-

vania. Among other crops they planted winter wheat dur-

ing the crop season of 1940 and 1941, eight months before

Public Law 74 was passed.

Three of the appellants did not and did not intend to

sell any of the wheat raised. They planted the wheat as a

rotation crop and used it for family consumption, seed and

feed for livestock. They had done this for years.

Not one of the appellants ever cooperated with the AAA

program, because to have done so would have meant a

financial loss. None of the appellants ever received or ac-

cepted a subsidy or any other benefit from the AAA pro-

gram. As taxpayers they were damaged by the AAA pro-

gram—they helped to pay the cost of that program. They

were further injured by that program because it was used

3—5985

by the government to depress prices. It placed a ceiling

price and not a floor on agricultural products. See Offer

of Proof, Appendix, pp. 44, 46, 50 and 53.

In the Filburn case this Court based its finding upon the

erroneous stipulated statistical facts. It found that there

was a surplus of wheat, that there was a lack of storage

and that the domestic price of wheat because of the AAA

program was $1.16 a bushel. While statistics do not falsify

they sometimes mislead one in one-sided stipulations.

As we have already shown the domestic price of wheat

during the period here in question was not $1.16 but 85 to

90 cents a bushel. The loan value was 98 cents. In the

stipulation parity payments and soil conservation pay-

ments were added to the 98 cents. These together make

about $1.16, but, parity and soil conservation payments

were not a part of the price of wheat. The cooperator

with the AAA program pays dearly in toil, expense and

acreage reduction for these payments. They are not a

charity. See Offer of Proof, Kennedy, Appendix, pp. 49-50.

Again the statistical stipulation tells us that our exports

of wheat and flour diminished between the period of 1920

from 25 per cent of total production to less than 10 per

cent in 1940. That is only a half truth. This decline was

not due to over-production, but, was due to the fact that

we had no wheat to sell or export. See Offer of Proof,

Kennedy, Appendix, pp. 49-50.

During that period there was a general decline per

capita of wheat available for world consumption. During

the 8-year period from 1933 to 1940, inclusive, there was

an accumulated deficit of wheat each year. During those

8 years we consumed more wheat than we produced. We

imported more wheat and wheat substitutes than we ex-

ported. See Offer of Proof, Kennedy, Appendix, p. 42.

Again in his statistical stipulation the Secretary of Agri-

culture completely ignored the fact that while the increase

in the production of wheat from 1900-’4 period to 1935-’39

period was 16.6%, the increase in population for the

same period was 62.9%. On the basis of an average

per capita consumption rate of 3.7 bushels it required 208,-

100,000 bushels more wheat to feed our nation in 1940 than

it required in 1900. See Offer of Proof, Kennedy, Ap-

pendix, p. 42.

The same is true in connection with the world increase

in wheat and in population. It would seem that the De-

partment of Agriculture is about 35 or 40 years behind

the times in its computation of consumption and produc-

tion of wheat. It assumes that the population has remained

stationary since 1900. See Offer of Proof, Kennedy, Ap-

pendix, p. 42.

Under the provisions of Public Law 74 and Sections 331

to 339, inclusive, of the Agricultural Adjustment Act, and

after a referendum vote, in which less than ten per cent of

the farmers of this nation participated, the Secretary of

Agriculture attempted to penalize the appellants 49 cents

a bushel on so-called excess wheat raised and consumed on

their farms. He invaded their homes and informed them

that they, their wives and children could not eat the bread

made out of wheat produced on their own farms. Under

these circumstances the appellants asked for a restraining

order in the District Court of the District of Columbia.

The Appellant, Beckman, is also damaged by these acts

because his farm is not economically profitable for the pro-

duction of corn or cultivated crops. These crops are dam-

aged and destroyed by hot winds in July, August and Sep-

tember, while winter wheat matures before the hot winds

arrive. If this appellant is compelled to comply with the

AAA program, he will sustain a further loss of, at least,

$2,000 because, then, one-third of his farm equipment suit-

able for raising wheat will become unnecessary. See Offer

of Proof, Beckman, Appendix, p. 47.

Summary of Argument.

It is the contention of the appellants that in its decision

in the Filburn case, this Court did not hold Public Law 74

or Sections 331 to 339 inclusive of the Agricultural Adjust-

ment Act constitutional. While there is dictum in the opin-

ion of the broad powers of Congress under the Interstate

Commerce Clause, the Court nowhere says that the acts

complained of are constitutional. It does hold that since

Filburn received benefits from these acts he was in no

position to complain. In other words, he was estopped.

With that conclusion of the Court based upon an erroneous

stipulation of facts the appellants find no fault.

While Filburn in his stipulation erroneously admitted

that he had received benefits and higher prices for his

wheat under the AAA program, the appellants in their

Offer of Proof show conclusively that they never received

or accepted, directly or indirectly, any subsidies or benefits

from the AAA program. They show conclusively, in their

Offer of Proof, that as taxpayers they were damaged by the

AAA program.

The appellants show that as farmers the penalty of 49

cents a bushel on their so-called excess wheat is confiscation.

They show that if applied to the facts as given in their

Offer of Proof, Public Law 74 and Sections 331 to 339 in-

elusive of the Agricultural Adjustment Act not only violate

the Due Process Clause, but, violate practically every sec-

tion of the Constitution and the Constitution as a whole in-

cluding the General Welfare Clause, and, in fact, do violence

to the Interstate Commerce Clause itself.

The questions involved in this case are of great public

concern and interest. They involve millions of dollars of

penalties which we feel have been and are being unlawfully

collected under an unconstitutional law. They are national

in scope and affect the agricultural activities of millions

of farmers. They have endangered the nation’s food

supply.

Not a Moot Issue.

An aroused public sentiment has finally compelled the

Secretary of Agriculture to suspend the operation of this

unconstitutional law. But, unfortunately, the Secretary has

not paid back the money that he collected under these il-

legal acts. He is still attempting to collect the penalty from

the appellants and from the farmers who refused to pay.

He holds that any farmer who used his own wheat for family

consumption or fed it to his own livestock or poultry or

otherwise disposed of it prior to his edict of February 23

will have to pay the penalty. Therefore, this is not a moot

issue, it is a live issue and hundreds and thousands of

farmers respectfully ask this Court to meet that issue

squarely and to relieve them from these unconstitutional

acts.

Argument.

This case arises under the Federal Constitution. It

arises under the unconstitutional Public Law 74 and the

unconstitutional Sections 331 to 339 inclusive of the Agri-

cultural Adjustment Act of 1938 as amended. We say

unconstitutional deliberately because not until black be-

comes white and white becomes black can these laws be held

to come within the terms of the Interstate Commerce

Clause. Stretch that Clause until its ribs crack and still

there is no room within that Clause for these laws.

This Court concludes its decision in the Filburn case with

this language: ‘‘That appellee is the worse off for the

aggregate of this legislation does not appear; it only

appears that if he could get all that the Government gives

and do nothing that the Government asks, he would be bet-

ter off than this law allows. To deny him this is not to deny

him due process of law,’’

It is true that under those circumstances the Court did not

give Filburn any relief. It did, however, not hold these laws

constitutional. In that case Mr. Filburn permitted the

Department of Agriculture to virtually stipulate him out of

Court. He stipulated that, but for these laws the farmer

would have received only 40 cents a bushel for his wheat,

whereas because of them he received $1.16. This stipula-

tion was incorrect and untrue at both ends.

The world market during the period that Mr. Filburn’s

and the appellants’ wheat was raised was not 40 cents a

bushel but considerably higher. It was around 62 cents a

bushel at Winnipeg, an exporting country, and around 90

to 95 cents a bushel at Liverpool. The market price in the

United States was around 85 cents a bushel, not $1.16.

These laws did not raise the price of wheat, but, if any-

thing, kept it down. See appellants’ Offer of Proof,

Appendix, pp. 45, 47, 48 and 49.

It is true that the opinion of the Court in that case con-

tains questionable dictum, but the decision itself as we have

seen disposes of the case by saying in substance that Mr.

Filburn having received benefits under the act could not

question its constitutionality.

The Court also says: ‘‘Whether the subject of the regu-

lation in question was production, consumption, or market-

ing is, therefore, not material for purposes of deciding the

question of Federal power before us. That an activity is

of local character may help in a doubtful case to determine

whether Congress intended to reach it.

‘The same consideration might help in determining

whether in the absence of congressional action it would be

permissible for the State to exert its power on the subject

matter, even though in so doing it to some degree affected

interstate commerce.

‘‘But even if appellants’ activity be local though it may

not be regarded as commerce, it may still, whatever its

nature, be reached by Congress if it exerts a substantial

economic effect on interstate commerce and this irrespective

of whether such effect is what might at some earlier time

have been defined as direct or indirect.’’

But that language was not necessary for the decision in

the Filburn case. He was estopped. We do not believe all

of the language in that decision is the matured judgment of

the Court.

If that definition is accepted, then, the Court has re-

written the Interstate Commerce Clause to mean that Con-

gress shall have power to regulate, control, restrict or

destroy not only all the commerce between the States but

all purely local commerce, production and consumption

within a State. If that is constitutional, then, there is noth-

ing to the Constitution except the Interstate Commerce

Clause. All the rest is mere meaningless verbiage. That

construction of the Interstate Commerce Clause is not sus-

tained by any case cited in the opinion. It does violence to

the plain English language which says: ‘‘Congress shall

have the power to regulate commerce with foreign nations,

and among the several States, and with the Indian tribes.’’

The word ‘‘among’’ means commerce between States. It

does not mean commerce within a State. ‘‘Among the

several States’’ does not mean that Congress has the right

to regulate the commerce within a State which is purely

local. It surely does not mean that Congress can tell the

farmer what he may eat and what he may not eat. Any

decision of any court that holds to the contrary is an uncon-

stitutional decision. These acts do not deal with interstate

commerce, nor even with intrastate commerce, as such, but

deal solely and exclusively with intrastate production of

wheat and farming activities.

Their aim is, the control and curtailment of the produc-

tion of wheat. They do not operate on interstate commerce,

interstate dealers, or even on intrastate dealers, but aim

to control the farming activities of the farmer himself.

They invade the rights of the State, by attempting to regu-

late its internal affairs; they invade the private home of

the farmer within the State, by directing him as to what he

may plant and what he may not plant; what he may produce,

and what he may not produce.

If finally held constitutional, they will divide and set com-

munity against community, State against State, and section

against section. They may be the rock upon which the sis-

terhood of forty-eight States will ultimately perish.

Violate Article 1, Section 8.

These laws are repugnant to Article 1, Section 8, in that

they do not regulate commerce with foreign nations and

among the several states, but in fact interfere with, hinder

and tend to destroy commerce. We repeat that their object

is not to regulate commerce, but to control intrastate pro-

duction and intrastate farming activities. They curtail and

restrict the production of an essential food product, wheat,

to the detriment of the general welfare of the nation. They

cannot be sustained as constitutional under any previous

decision of this Court.

It must be clear that these acts do not only interfere with

Interstate Commerce, but tend to destroy it. If I raise ten

sheep and my family consumes five and I sell five, then there

are five for intra or interstate commerce, but if I am com-

pelled to reduce the number of sheep I raise to five, then I

have destroyed the commerce in the other five, be it state or

interstate.

It is equally clear that if.I raise one hundred bushels of

wheat and my family consumes fifty, that then I have fifty

bushels for commerce, but if I am restricted to only fifty

bushels, then I have none whatever for either state or inter-

state commerce. These facts are so self-evident that they

need no further explanation.

big ‘

‘The Act invades the reserved right of the states. It

is a statutory plan to regulate and control agricultural

production, a matter beyond the powers delegated to

the Federal Government * * *.

From the accepted doctrine that the United States is

a government of delegated powers, it follows that those

not expressly granted, or reasonably to be implied from

such as are conferred, are reserved to the states or to

the people. To forestall any suggestion to the con-

trary, the 10th amendment was adopted. The same

proposition otherwise stated, is that powers not

granted are prohibited. None to regulate agricultural

production is given, and therefore legislation by Con-

gress for that purpose is forbidden.”’ United States v.

Butler, 297 U. S.1. Linder v. United States, 268 U. S. 5.

(Italics ours.)

‘‘When defendants had made their purchases,

whether at the West Washington Market in New York

City or at the railroad terminals serving the City, or

elsewhere, the poultry was trucked to their slaughter-

houses in Brooklyn for local disposition. The inter-

state transactions in relation to that poultry then ended.

Defendants held the poultry at their slaughterhouse

markets for slaughter and local sale to retail dealers and

butchers who in turn sold directly to consumers.

Neither the slaughtering nor the sales by defendants

were transactions in interstate commerce. Brown v.

Houston, 114 U. S. 622, 632, 633; Public Utilities

Comm’n v. Landon, 249 U. S. 236, 245; Industrial-As-

sociation v. United States, 268 U. S. 64, 78, 79; Atlantic

Coast Line v. Standard Oil Co., 275 U. S. 257, 267.”’

Schechter Corp. v. United States, 295 U. S. 495.

If these acts are constitutional, then Congress can pro-

hibit a person from making a single lead pencil and either

using it himself, or giving it to his wife as a birthday pres-

ent. Then Congress can direct the number of eggs that a

hen is allowed to lay per week. It can compel the farmer to

dispose of, or give to the Secretary of Agriculture, any hen

4—5985

that lays more than three eggs per week. This, because

some lead pencils and some eggs do enter interstate com-

merce.

If this law is constitutional, then Congress can prohibit

any farmer from raising any wheat and using it for his own

family and his own livestock. Absurd as this may seem,

that is exactly what the Department of Agriculture is at-

tempting to do under these acts. It is an attempt to penalize

the farmer for raising wheat for seed, feed or for his fam-

ily’s consumption. It makes that a crime, which is a virtue,

it attempts to penalize and punish the farmer for feeding

the nation.

If this law is constitutional, then a farmer’s wife who

raises sheep, shears the wool from their backs, spins the

wool on an old spinning wheel, knits the yarn into a sweater,

can be told by Congress that she cannot wear the sweater,

but that she must give it to the Secretary of Agriculture for

nothing, or else she will be penalized. This because Con-

gress wanted to keep up the price of sweaters to dealers

outside of her home state.

If this law is constitutional, then Congress can prohibit

a farmer with 10 children from milking and keeping more

than 1 cow and if he keeps and milks 2, then the Govern-

ment will have a lien on all the milk until he pays a penalty,—

which amounts to confiscation,—to the Secretary of Agri-

culture. Then even the baby would have to go without milk

because Congress under the dictum in the Filburn case

could control all production and all consumption.

Counsel for appellants do not believe that this Court will

allow Congress to annul the Constitution in the name of the

Commerce Clause. It will not sustain this class of absurd

and unconstitutional legislation. It will not confound in-

terstate commerce with production and consumption. It

will limit interstate commerce to articles of commerce and

to them only when they become part of interstate commerce

or when they become part of intrastate commerce in such a

way as to unreasonably discriminate or interfere with in-

terstate commerce proper.

In fact these acts do not attempt to regulate interstate

commerce. It is their purpose to curtail the production of

domestic wheat. They attempt to bring about this result

not by regulating interstate commerce, but by controlling

acres of production. Surely an acre of land cannot be made

the subject of regulating interstate commerce. The acre

itself does not walk across boundary lines. It is true that

some of its soil occasionally takes an interstate excursion

in a dust storm, but as far as we know the Department of

Agriculture has not yet been able to regulate that.

The case of Mulford v. Smith, 307 U. 8. 38, does not sus-

tain these laws. The question before the court there was

quite different from the one here under consideration. In

that case, the farmer could sell all the tobacco he wanted, he

could smoke all he wanted, publicly or privately, without

interference or penalty. While in the case here at bar, the

farmer is not permitted to use the wheat he produces by his

own labor, on his own farm, for any purpose whatsoever,

until he pays the penalty. He cannot sell it, he cannot give

it away. He cannot feed it to his livestock, he cannot feed

it to his poultry. He cannot grind it into flour and bake it

into bread for himself and his family.

“‘The statute does not purport to control production.

It sets no limit upon the acreage which may be planted

or produced, and imposes no penalty for the planting

and producing of tobacco in excess of the marketing

quota. It purports to be solely a regulation of inter-

state commerce, which it reaches and affects at the

throat where tobacco enters the stream of commerce,

the marketing warehouse. * * *

The act did not prevent any producer from holding

over the excess tobacco produced or processing or stor-

ing it for sale in a later year.’’ Mulford v. Smith, 307

U.S. 38. (Italics ours.)

The Mulford case gives little comfort to those who would

destroy constitutional government by invading the private

homes of farmers, under the guise of regulating interstate

commerce. That case deals only with dealers in interstate

commerce. May ve also suggest to the court that they read

the dissenting opinion by Justice Butler, in that case. This

will throw additional light on the majority opinion.

This Court has never sustained an act of Congress that

attempted to prohibit the farmer from producing an essen-

tial food product or penalizing him for doing so. All acts

sustained by the Court heretofore, except one, was where

the regulation was that of interstate dealers, buyers and

sellers. In the case of United States v. Rock Royal Co-Op-

erative, 307 U. S. 533, the Court says:

‘‘Each defendant is a dealer handling milk moving in

interstate commerce.’’

The only exception to the above cases is the case of United

States v. Wrightwood Dairy Co., 86 Law. Ed. 431, but even

in that case, however, much we may question its soundness,

the act dealt solely and exclusively with intrastate dealers

in milk. In that case the court virtually holds that the tail

wags the dog. That forty per cent of interstate commerce

control sixty per cent of intrastate commerce. If that is

correct, then one-half of one per cent interstate commerce,

could control ninety-nine and one-half per cent of intrastate

commerce.

While we cannot follow that logic, yet that case does not

decide the issues here. There it was not attempted to pen-

alize the producer for milking a cow and drinking the milk,

or letting the calf suck the cow; or even of milking the cow

and giving it to his children. It did not attempt to make

that a crime. The aim was, to control the intrastate buyer,

and the court concluded that he indirectly competed with

interstate commerce and thereby affected the movement of

interstate commerce.

The court in the Filburn case quotes with approval the

following language in the Wrightwood Dairy case. 315

U.S. 110.

«<* * * The power of Congress over interstate com-

merce is plenary and complete in itself, may be exer-

cised to its utmost extent, and acknowledges no limi-

tations other than are prescribed in the Constitution.

* * * Tt follows that no form of state activity can

constitutionally thwart the regulatory power granted

by the commerce clause to Congress. Hence the reach

of that power extends to those intrastate activities

which in a susbtantial way interfere with or obstruct

the exercise of the granted power.’’

If that language means that Congress must stay within

the constitutional granted power, we have no objection.

But, it also follows that no form of federal activity can

constitutionally thwart the powers reserved to the states

and the people. Hence the reach of that power also extends

to those federal activities which in a substantial way inter-

fere with or obstruct the exercise of the reserved powers

by the states and the people. This is a two-edged sword

which must be respected alike by the Federal Government

and the state governments. These sovereign powers must

be equally respected and protected by the Federal and State

Courts. (Italics ours.)

Again the Court cites with approval the opinion of Chief

Justice Marshall in Gibbons v. Ogden, 9 Wheaton 1. But it

fails to follow the principle of law laid down in that case.

In that case Chief Justice Marshall says: ‘‘It has, we

believe, been universally admitted that these words compre-

hend every specie of commercial intercourse between the

United States and foreign nations.’’ Remember he says

commercial intercourse. Again he says: ‘‘The completely

internal commerce of a state then may be considered as re-

served for the state itself.’’

The dictum in the Filburn case virtually says that it com-

prehends every specie of commercial intercourse not only

between the states but within the states and all production

and consumption. A doctrine heretofore wnheard of. A

dangerous doctrine to constitutional government. In no

decision heretofore has this Court ever used such constitu-

tion-annihilating dictum. We are happy to say that this

dictum is unsupported by any case cited in the Court’s

opinion.

Shreveport case, 234 U. S. 342:

The Shreveport case simply protected commerce be-

tween different states and prevented unjust discrimination

by one state against the commerce of another state and it

also protected domestic commerce from unfair competition

from foreign nations.

The unjust discrimination consisted of the difference

between the intrastate rates fixed by state law and the inter-

state rates fixed by the Interstate Commerce Commission.

That is the direct opposite of what the laws here in question

would do. These laws would give Congress the power to

freeze the states into status quo. It would prevent the citi-

zens of one state from competing with the citizens of

another state.

Currin v. Wallace, 306 U. 8. 1:

That case does not attempt to interfere with the produc-

tion of any commodity. It simply applies to transactions

involving the sale of tobacco at auction by persons engaged

in the business of buying and selling tobacco in interstate

and foreign commerce. It deals with buyers and sellers en-

gaged in interstate commerce and not with producers.

The Minnesota rate cases, 230 U. 8. 352:

The Minnesota rate cases hold that intrastate commerce

that is mingled with interstate commerce, comes under the

control of the Federal Government, but the case expressly

holds that the commerce that is confined within one state

and does not effect other states, is reserved to the state.

‘‘The Commerce Clause while it has no limitations

other than those prescribed in the Constitution, does

not carry with it the right to destroy or impair those

limitations and guaranties which are placed in the Con-

stitution and amendments.

‘‘United States v. Joint-Traffic Association, 171

U.S. 505, 571 (1898). See also Monongahela Nav.

Co. v. United States, 148 U. S. 312, 336 (1893) ;

Interstate Commerce Commission v. Brimson,

| 154 U. S. 447, 479 (1894); Dayton-Goose Creek

R. Co. v. United States, 263 U. S. 456 (1924);

Greenleaf-Johnson Lumber Co. v. Garrison, 237

U. 8. 251 (1915).”’

‘Those who act under these grants are not at liberty

to transcend the imposed limits because they believe

that more or different power is necessary. Such asser-

tions of extra-constitutional authority were anticipated

and precluded by the explicit terms of the Tenth

Amendment.

‘A. L. A. Schechter Poultry Corp. +. United

States, 295 U. S. 490, 528 (1935), citing Ex parte

Milligan, 4 Wall. 2, 120, 121 (1866) ; Home Bldg.

& L. Asso. v. Blaisdell, 290 U.S. 398, 426 (1934).”’

Labor Board v. Fainblatt, 306 U. 8. 601:

Again the case of Labor Board v. Fainblatt deals with a

labor dispute where it interferes with or threatens to ob-

struct shipments into interstate commerce, Again the

object of that legislation is to prevent articles produced by

unfair labor practices from entering interstate commerce.

We also urge that none of the following cases support the

present law’s constitutionality.

Hammer v. Dagenhart, 247 U. 8. 251:

That case has been overruled by more recent decisions

and we think rightly so. But, that does not decide the issues

in the case now at bar. We think the Federal Government

has ample authority to exclude any article produced by

child labor or slavery or any other article that is dangerous

to the public health or welfare, but, it has no authority to

tell a farmer what he may eat and what he may not eat.

United States v. Darby, 312 U.S. 100:

The case of United States v. Darby deals again with

articles of commerce not as intrastate commerce but with

articles when they enter into interstate commerce. It stops

them at their inception and with that decision we find no

fault. The trouble is that that case does not deal with in-

trastate activities but with intrastate articles of commerce

and prohibits them from entering into interstate commerce

under certain conditions effecting their production.

Swift and,Company v. United States, 196 U.S. 375:

The case of Swift and Company v. United States is not

an authority in the case at bar. That case again deals with

interstate dealers in fresh meat. And it deals with a con-

spiracy to stifle interstate commerce and is clearly within

the constitutional provision.

The same is true of the case of United States v. E. C.

Knight Co., 156 U. 8. 13. That was another conspiracy to

stifle interstate commerce. ‘‘Contracts to buy, sell, or ex-

change goods to be transported among the several States,

the transportation and its instrumentalities, and articles,

bought, sold, or exchanged for the purposes of such transit

among the States, or put in the way of transit, may be regu-

lated, but this is because they form part of interstate trade

or commerce.’’ In that case it is specifically stated ‘‘Con-

tracts to buy, sell or exchange goods may be regulated but

this is because they form part of interstate commerce.’’

Dahnke-Walker Company v. Bondurant, 257 U.S. 282, page

290 :

The case of Dahnke-Walker Company v. Bondurant, 257

U. S. 282, simply holds that interstate commerce includes

buying and selling for interstate, as well as the actual trans-

portation. It has no bearing on the case at bar.

It is our contention that from the cases cited im the Fil-

burn case that this Court can draw only one conclusion and

that is that the Federal Government can no more tax or

penalize the inhabitants of a state for producing an article

than it can the inhabitants of a foreign nation. They con-

trol the article after it enters into commerce but not until

then, and even then it can control it only after it has become

interstate commerce or in cases where it ts intrastate com-

merce but unreasonably and unjustly discriminates against

interstate commerce. In the latter case the rule of reason

should apply.

‘‘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 inter-

state commerce applies.’’

Wilson v. New, 243 U. 8. 332 (p. 346) ;

Hammer v. Dagenhart, 247 U. 8. 251.

Congress cannot legally annihilate the constitution—the

fundamental law of the land-—under the guise of proceeding

5—5985

under the interstate commerce clause. We submit that both

Congress and the courts have gone to the extreme limit in

that direction. The time has arrived for the pendulum to

return.

Not even the mistaken notions of necessity—or surpluses

—of the Department of Agriculture can annul the consti-

tution. The people alone can alter that instrument. It is

not for Congress or the courts to amend the constitution by

reading something into the interstate commerce clause that

is not there.

‘*Not event the changes of the remedy may be pressed

so far as to cut down the security of a mortgage with-

out moderation or reason or in a spirit of oppression.

Even when the public welfare is invoked as an excuse,

these bounds must be respected.”’

Worthen Co. v. Kavanaugh, 295 U. 8. 56.

The bounds of the whole constitution must be respected.

One part, or one clause, must not be used as an excuse to

annihilate every other part of the instrument. The consti-

tution must be read, interpreted and upheld as a whole—

the whole instrument is flexible to be sure, but it is not self

destructive. It does not contain the germ—a clause—for

its own anmhilation.

Violate Article 1, Secs. 7 and 9.

If the penalty of 49¢ a bushel on so-called ‘‘excess wheat’’

is a tax, then, we submit, revenue bills must originate in the

House of Representatives. Public Law No. 74, originated

in the Senate. If it is a tax, then the money collected under

it, should be paid into the general fund of the Treasury,

and drawn out only by appropriations made by law.

If it is a penalty, as the act says it is, then it is an ex post

facto law. In either case, it is unconstitutional. The con-

stitution is our authority for that.

If Congress can punish a farmer for planting wheat eight

months before the law is passed, by penalizing him, then it

can also punish him by putting him in jail. The degree of

punishment is in the discretion of Congress, but the Consti-

tution says that these laws cannot be ex post facto. Neither

can Congress make the planting of wheat, or farming oper-

ations, entirely within a state, an unlawful or criminal act.

This is beyond its constitutional power.

Section 9, Article 1, of the Constitution further says:

‘No tax or duty shall be laid on articles exported

from any state. No preference shall be given by any

regulation of commerce or revenue to the ports of one

state over those of another; nor shall vessels bound to,

or from, one state, be obliged to enter, clear, or pay du-

ties in another.’’

The purpose of this provision is clear. The framers of

our Constitution prohibited Congress from giving one state

preference over another. Each state is free to compete with

every other state in industry, in agriculture, and in manu-

facture. As far as intrastate activities are concerned, no

state can be limited, restrained, or discriminated against by

the Federal Government.

Yet, the act here under consideration, would freeze pro-

duction of wheat in each state. This, in accordance with its

past production. It, in fact, says to the State of Vermont,

and to other states: ‘‘You cannot, in the future, produce

much wheat, because you have never produced much before.

If Congress can do this, then it can do also the opposite,

and say to the State of Kansas: ‘‘You have produced

enough wheat in the past, you cannot produce it in the fu-

ture.’’

If Congress can do this in the case of wheat, then it can

do it with every other agricultural commodity, or manufac-

tured article. Admit this doctrine, and constitutional gov-

ernment ceases to exist.

Violate Article 4, Section 2.

The acts here in question, violate Article 4, Section 2, in

that they deny the citizens of each state all the privileges

and immunities of citizens of the several states. They at-

tempt to freeze a certain class of citizens in a certain busi-

ness, farming, into a status quo. The citizens of each state

have a right to compete with the citizens of every other state

in the production of agricultural products. That right can-

not be taken away from them, constitutionally, by Congress.

The citizens of each state have a right to change their voca-

tion, or occupation, from one to another within the state,

without asking the Secretary of Agriculture for his permis-

sion. To hold otherwise, is to be intellectually dishonest

with ourselves and with our form of government.

In the present case, tle same result as prevailed prior to

the Shreveport case—is the result this time, because of an

act of Congress, which attempts to do the thing that the

State of Texas was prohibited from doing—unjust discrimi-

nation between the different states.

In Corfield v. Coryell, 4 Wash. (U.8.) 371, 380, Mr. Justice

Washington gave a general definition of the phrase which

the courts have, without hesitation, accepted and followed.

In his opinion he says: ‘‘ The inquiry is, What are the privi-

leges and immunities of citizens in the several States? We

feel no hesitation in confining these expressions to those

privileges and immunities which are, in their nature, funda-

mental ; which belong, of right, to the citizens of all free gov-

ernments; and which have at all times been enjoyed by the

citizens of the several States which compose this Union.

however, be all comprehended under the following general

heads: protection by the Government; the enjoyment of life

and liberty, with the right to acquire and possess property of

every kind, and to pursue and obtain happiness and safety,

Violate Article 1, Section 1.

These laws, violate Article 1, Section 1, in that they give

to the Secretary of Agriculture, legislative power. They

give to him, power by rules and regulations, to make laws—

to legislate. That power is vested in Congress alone.

‘‘Congress is not permitted by the Constitution to

abdicate, or to transfer to others, the essential legisla-

tive functions with which it is vested. Art. I, 8. 1;

Art. I, S. 8, par. 18. Panama Refining Co. v. Ryan,

293 U. S. 388. P. 529.’’

A. L. A. Schechter Poultry Corp. et al. v. United

States, 295 U.S. 495.

Section 336 provides:

‘‘Between the date of issuance of any proclamation

of any national marketing quota for wheat and June

10th, the Secretary shall conduct a referendum, by secret

ballot, of farmers who will be subject to the quota

specified therein, to determine whether such farmers

favor or oppose such quota. * * °”’

Congress fails to furnish the Secretary a yardstick as to

what farmers are subject to the quota. The Secretary ruled

that only farmers who planted more than fifteen acres of

wheat, the previous year, had a right to vote. Yet, many

of these farmers, who he denied the right to vote, he now

attempts to penalize for planting excess acreage. (Italics

ours.)

‘‘Congress is not permitted by the Constitution to

abdicate or transfer to others, the essential legislative

functions with which it is vested.’’ Panama Rfg. Co.

v. Ryan, 293 U. 8. 388.

‘*We pointed out, in the Panama Company case that

the Constitution has never been regarded as denying

to Congress the necessary resources of flexibility and

practicality, which will enable it to perform its function

in laying down policies and establishing standards,

while leaving to selected instrumentalities the making

of subordinate rules within prescribed limits and the

determination of facts to which the policy as declared

by the legislature is to apply. But we said that the

constant recognition of the necessity and validity of

such provisions, and the wide range of administrative

authority which has been developed by means of them,

cannot be allowed to obscure the limitations of the au-

thority to delegate, if our constitutional system is to

be maintained.’’ Schechter Corp. v. United States, 295

U.S. 495.

Less than twenty per cent of the six million farm families

plant wheat in a given year. It is not always the same

farmer who plants wheat. Agriculture is in a constant

flux. The kind of products grown by the individual farmer

changes from year to year depending upon conditions far

beyond the control of the Department of Agriculture.

The laws herein complained of attempt to give to a class,

and to a small group of that class—less than one-tenth of all

the farmers—the power to legislate, to put into operation

a policy of restricting production of an essential food prod-

uct—this by a referendum vote of that small group, and yet

binding upon all of us. We submit that this is not a minis-

terial power, but a legislative power. A power that affects

the entire nation.

If this can be done in the field of agriculture, it can be

done in the field of manufacture—in all industry. Then

Congress can delegate to any group the power to curtail

production by a referendum vote. This in utter disregard of

the welfare of the nation, or the want and suffering of the

people. It can give to any group the power to penalize and

imprison if its policy is not followed. Such a policy is a

total stranger to our constitution. It is foreign to ‘‘our way

of life.’’ It cannot be sustained.

Violate Article 5 of Amendments.

These acts violate Article 5 of amendments to the Consti-

tution, in that they attempt to confiscate and deprive the

plaintiffs of property without due process of law—without

just compensation. Plaintiff’s wheat, here in question, was

planted eight months before Public Law No. 74 was passed.

That law is not only unconstitutional, because it attempts to

control production, but unconstitutional because it is retro-

active. It attempts to make that a wrong, which is not a

wrong; and attempts to do so ina retroactive manner.

It was held unconstitutional, as far as the 1941 crop is

concerned, in the recent decision of the District Court of

Ohio—in the case of Roscoe C. Filburn v. Carl R. Helke, but

we submit it is wholly unconstitutional, and not only as to

the 1941 crop. We insist that it dces not only violate prac-

tically every section of the constitution, but violates the

spirit and the letter of the entire constitution, including the

general welfare clause.

Certainly the production of wheat, on one’s own farm,

entirely within one state, cannot be prohibited or controlled

by a penalty tax, under any act of Congress. Yet that is

the whole intent and purpose of the ‘‘penalty tax’’, in the

acts here in question. It is true that an attempt is made to

do this by subterfuge, by referring to interstate commerce.

The farmer cannot be classified occupationally as a dealer

in inter or intrastate commerce, or as a dealer in lottery

tickets, or adulterated food, or white slave traffic, or stolen

automobiles, or kidnapped persons. He is engaged in an

honorable and lawful occupation—feeding the nation.

In the case of Louisville Bank v. Radford, 295 U. 8. 555,

Justice Brandeis said:

“The province of the Court is limited to deciding

whether the Frazier-Lemke Act as applied has taken

from the Bank without compensation, and given to Rad-

ford, rights in specific property which are of substan-

tial value. * * °* As we conclude that the Act as

applied has done so, we must hold it void. For the

Fifth Amendent commands that however great the

Nation’s need, private property shall not be thus taken

even for a wholly public use without just compensa-

M4 ?

Violate Articles 7 and 8 of Amendments.

These acts violate Articles 7 and 8 of amendments of the

Constitution, in that they attempt to deprive the plaintiffs

of their property, by placing a lien, not only upon the excess

wheat, but upon all of the wheat produced during the crop

year of 1941. This lien is not placed upon the crop after a

trial by jury, but is placed thereon, in an arbitrary manner,

by the statute, without trial and without an opportunity to

be heard.

The 49c penalty amounts to confiscation of the plaintiffs’

wheat. At no time since 1930, have the farmers received

cost of production for their wheat. From 1930 to 1940, they

received from sixty-nine to seventy-five per cent parity

prices. They fed the nation at a loss. They donated their

services, and the services of their wives and children to the

nation,—the honeyed words and the camouflage of the de-

partment notwithstanding. In place of giving them a one-

hundred per cent parity, or cost of production, Congress has

been imposed upon, and gave them an unconstitutional pen-

alty tax, and the two hundred sizty-five thousand Bell-

weathers on the payroll of the Department of Agriculture

cannot continue to fool us.

Violate Articles 9 and 10 of Amendments.

The acts here under consideration, violate Articles 9 and

10 of the amendments of the constitution ; with a boldness not

heretofore attempted in any act of Congress, they attempt to

usurp the power and rights expressly and absolutely re-

tained by the people, and reserved to the states. If, under

the guise of interstate commerce, Congress can go into the

states and fine farmers for raising wheat under a law,

eight months after the wheat had been planted, then the end

of our constitution has arrived.

The reservation to the states respectively, only means the

reservation of the rights of sovereignty, which they re-

spectively possessed before the constitution of the United

States, and which they had not parted from by that instru-

ment. Any legislation by Congress, beyond the limits of the

power delegated, would be trespassing upon the rights of

the states or the people, and would not be the supreme law

of the land, but null and void. Gordon v. United States, 117

U. S. 697. See also, United States v. Williams, 194 U. 8.

295.

From U.S. v. Butler, 297 U.S. 1, p. 62 and 63, we quote:

‘‘The Constitution is the supreme law of the land,

ordained and established by the people, and all legis-

lation must conform to the principles it lays down.’’

P. 62.

‘‘When an Act of Congress is appropriately chal-

lenged in a court, it is the duty of the court to compare

it with the article of the Constitution which is invoked

and decide whether it conforms to that article.’’ P. 62.

‘‘The question in such cases is not what powers the

Federal Government ought to have, but what powers

have in fact been given it by the people.’’ P. 63.

Also:

‘Congress cannot, under the pretext of executing delegated

power, pass laws for the accomplishment of objects not

entrusted to the Federal Government. And we accept as

established doctrine that any provision of an act of Con-

gress ostensibly enacted under power granted by the Con-

stitution, not naturally and reasonably adapted to the effec-

tive exercise of such power but solely to the achievement

of something plainly within power reserved to the States,

is invalid and cannot be enforced.’’ Linder v. United

States, 268 U.S. 5, 1, 17; McCulloch v. Maryland, 4 Wheat.

316, 423.

Also:

‘‘But Congress may not use this protective authority as a

pretext for the exertion of power to regulate activities and

relations within the States which affect interstate com-

merce only indirectly. Otherwise, in view of the multitude

of indirect effects, Congress in its discretion could assume

control of virtually all the activities of the people to the

subversion of the fundamental principles of the Constitu-

tion. If the people desire to give Congress the power to

regulate industries within the State and the relations of

employers and employees in those industries, they are at

liberty to declare their will in the appropriate manner, but

it is not for the Court to amend the Constitution by judicial

decision.

(2) ‘The provision permits a group of producers and em-

ployees, according to their own views of expedience, to make

rules as to hours and wages for the agreement. Such a

provision, apart from the mere question of the delegation

of legislative power, is not in accord with the requirement

of due process of law which under the Fifth Amendment

dominates the regulations which Congress may impose.

(3) The provision goes beyond any proper measure of pro-

tection of interstate commerce and attempts a broad regula-

tion of industry within the State.

‘We are not at liberty to deny to Congress, with respect to

interstate commerce, a power commensurate with that en-

joyed by the States in the regulation of their internal com-

merce.’’

Carter v. Carter, 298 U. 8. 238, 319.

Repugnant to Article 13, Section 1.

These laws are repugnant to Article 13, Section 1 of

amendments to the Constitution, because they virtually

make a slave out of the farmer. It is required, under the

act, to pay the penalty, or give the so-called “‘excess wheat”’

to a Secretary of Agriculture for nothing. Jt takes labor

to produce wheat. If, after it is produced, somebody else

can take it, or exact forty-nine cents a bushel from you for

raising it, it seems to us that constitutes involuntary servi-

tude. There is no need in enlarging upon that subject.

The amendment, besides abolishing slavery, ‘‘gives power

to Congress to protect all persons within the jurisdiction

of the United States from being in any way subjected to

slavery or involuntary servitude, except as a punishment

for crime, and in the enjoyment of that freedom which it

was the object of the amendment to secure.”’

‘(United States v. Harris, 106 U. S. 629, 640 (1883),

holding unconstitutional an act of Congress. (R. 8.

5519) which provided a penalty in case ‘two or more

persons in any State * °* ° conspire * * °

for the purpose of depriving * * * any person

* * * of the equal protection of the laws or of equal

privileges or immunities under the laws.’ Such statute

was broader than the amendment would justify.’’

Rule of Reason.

Appellants’ Counsel believe in a liberal construction of

the Constitution. In fact, they believe in the rule of reason.

But that does not mean that either the Executive or Con-

gress can annul the Constitution. It does not mean that the

courts should sanction such Congressional nullification.

If this law is constitutional, then, there is nothing that any

person, be he member of Congress or member of any court,

eats, drinks, wears or utilizes that Congress cannot regu-

late, annihilate or destroy under the Interstate Commerce

Clause.

Then Congress can control the activities of the people

within the several states on the individual farm, in the in-

dividual factory and in the individua! home of this nation.

Then it can control all the energy, all the production and all!

the consumption within a state. Then the centralization of

all power in the Federal Government at Washington will

have been complete.

Stare Decisis.

No, the Filburn case and the Beckman case do not dispose

of appellants’ case. They are not decisive. The Filburn

case was based upon estoppel. The Beckman case was not

before this Court on its merits. However, if this Court

disagrees with us, if it feels that it did dispose of the con-

stitutional question, then, we feel that that decision is er-

roneous. It was based upon an erroneous stipulation of

facts. And since it vitally affects our Government this

Court should reconsider it. The doctrine of stare decisis

does not apply to constitutional questions.

It has been said: ‘‘that the doctrine of stare decisis can

never be properly applied to decisions upon constitutional

questions. However the Court may interpret the provisions

of the Constitution, it is still the Constitution which is the

law and not the decision of the Court.’’ 2 Warren, The

Supreme Court in United States History (1926) 748-9. The

duty of the Court is to square a new statute with the Con-

stitution itself. United States v. Butler, 297 U.S. 1.

In Hertz v. Woodman, 218 U. S. 205, 212, Mr. Justice Lur-

ton said: ‘The rule of stare decisis, though one tending to

consistency and uniformity of decision, is not inflexible.

Whether or not it shall be followed or departed from is a

question entirely within the discretion of the court, which

is again called upon to consider a question once decided.”’

Again, quoting 2 Warren, the Supreme Court in United

States History, 748-9:

‘* “Any citizen whose liberty or property is at stake

has an absolute constitutional right to appear before

the Court and challenge its interpretation of the Con-

stitution, no matter how often they have been pre-

mulgated, upon the ground that they are repugnant to

its provisions. * * * When the Bar of the country

understand this, and respectfully but inexorably re-

quires of the Supreme Court that it shall continually

justify its decisions by the Constitution, and not by its

own precedents, we shall gain a new conception of the

power of our constitutional guaranties. * *

What we need is constant and unrelenting professional

criticism of judicial opinions, and constant and unre-

lenting insistence that judicial errors of reasoning shall

be judicially corrected.’ Everett Abbott, Justice and the

Modern Law (1913).”’

Let Us Get the Correct Facts.

Legislative Findings?

Let us keep the record straight; designating legislative

findings does not make those findings trae. Most of the

facts stated as facts in Section 331 of the Agricultural Ad-

justment Act, are not facts, they are incorrect statements

and erroneous conclusions.

It is not true that wheat or flour flows almost entirely

through instrumentalities of interstate and foreign com-

merce, from producers to consumers. The reverse is the

truth—the bulk of it remains in intrastate commerce.

Thirty-two states, and the District of Columbia consume

more wheat and flour than they produce. Only sixteen

states produce more than they consume, and of those sizx-

teen, only ten in quantity. Thirty-one per cent of all the

wheat raised never leaves the farms on which it is produced.

It is used for seed and feed for livestock. An amount equal

to sixty-eight per cent is consumed by and within the states.

See tables 1, 2 and 3, and explanation in appendix hereto.

The reports and records of the Department of Agricui-

ture, the Bureau of Census, and the Department of Com-

merce show that we have not had an abnormal supply of

wheat since 1930, and prior thereto. Therefore, it could not

have been a burden upon interstate and foreign commerce.

Again, common horse sense tells us, as well as the evidence,

that an abundant crop stimulates interstate commerce. You

cannot assist interstate commerce by curtailment of essen-

tial food products. Since there was no abnormal excess, the

statements made in Section 331, that it overtaxed the

facilities of interstate commerce and foreign transporta-

tion, are incorrect. See tables 1, 2 and 3 and explanation

in appendix hereto.

Again, prices are depressed by price manipulation, and

not by interstate commerce. The wheat trade has been well

organized, and, as far as being orderly, it has been quite

orderly—in fact, it has been a little too orderly and submis-

sive to price manipulation. If there have been any abnor-

mally deficient supplies, that has been due to the distressing

shortsightedness of the Department of Agriculture, and not

due to the farmer producing the food of a nation. Two er-

roneous statements never make a correct one.

In paragraph 3 of Section 331, a lot of high sounding

phrases are used which mean really nothing. They are in-

tended to becloud and muddle. They are intended to make

the unthinking believe that the millennium is about to come.

They are self-serving declarations. The truth is, that this

part of the Agricultural Adjustment Act has performed no

miracles. Of course, there has been an increase of prices

since 1930 and 1932, but take ten years before 1932, and

then ten years from 1932, and you will find that the income

from agriculture was some ten billion dollars greater during

ten years back from 1932, than it was from the ten years

forward from 1932, in spite of all the camouflage and mis-

representation.

The last two paragraphs of section 331 remind us of boy-

hood orations in high school. They are just a jumble of

words and erroneous conclusions, born of desire, rather than

backed up with facts. We submit it is not necessary to

violate the Constitution in order to give agriculture its just

dues. Legislative findings, when proven to be untrue by

facts, cannot be made the basis of sustaining unconstitu-

tional acts.

Conclusion.

We submit there has been a growing tendency to disre-

gard the rights of states, and to centralize power in Wash-

ington. We deny, most emphatically, that this has been for

the good of the nation. We submit that the struggle in the

future will be to recover some of those rights, so readily

surrendered by the people to the Federal government.

Power always wants more power, and we are no exception to

the rule, but let us come back to the Constitution.

‘‘The powers the people have given to the general

government are named in the Constitution, and all not

there named, either expressly or impliedly, are reserved

to the people and can be exercised only by them or upon

further grant from them.’’ United States v. Williams,

194 U. 8. 295.

We challenge the Secretary of Agriculture to point out

to us under what provisions of the Constitution, Congress

has the right to give to him the power to control and regu-

late the production of wheat. No such power exists, there-

fore Congress cannot give it to him, or even delegate it to

him.

The states within their spheres are as independent of the

general government, as the general government within its

sphere is independent of the states. Both must respect the

Federal constitution. Buffington v. Day, 11 Wall. 124.

If Congress can penalize a farmer 49 cents a bushel for

raising wheat then it can penalize him $1 or $10( a bushel.

Once grant the authority, then the sky is the limit.

The Constitution is not the Secretary of Agriculture nor

is the Secretary the Constitution. It is the document of

“*we the people’’ and they alone can alter or amend it. Con-

gress cannot abrogate it. This is not permissible even in

periods of great inertia. The inertia after all may be com-

mon horse sense.

We are 48 States but one Nation. Each state and each

individual within a state has an equal right to compete with

every other State and with every citizen of such states in

the production of food and wealth. We have the con-

stitutional right to eat the same or different food without

interference by the Department of Agriculture.

In this country every man’s home is still his castle. In

the language of the English statesman, William Pitt (1708-

1778), Earl of Chatham:

‘‘The poorest man may in his cottage bid defiance to

all the force of the Crown. It may be frail; its roof may

shake; the wind may blow through it; the storms may

enter, the rain may enter,—but the King of England

cannot enter; all his forces dare not cross the threshold

of the ruined tenement.’’

And so under our Constitution: The poorest man may

in his cottage bid defiance to ail the forces of the Depart-

ment of Agriculture. It may be frail; its roof may shake ;

the wind may blow through it; the storms may enter; the

rain may enter,—but the Secretary of Agriculture cannot

enter. All his pay rollers and penalty collectors dare not

cross the threshold of the ruined tenement.

For the above reasons, it is respectfully submitted that

the judgment of the court below should be reversed and the

acts herein complained of held unconstitutional or in the

alternate the case be remanded to the lower court with direc-

tion that it be tried on the merits.

Respectfully submitted,

Wiis Lemgz,

Rosert H. McNet1,

Washington, D. C.;

Counsel for Appellants.

Lovis M. Day,

Chillicothe, O.;

Hewry Perzinoer,

Canton, 0O.;

Eva L. Mrvor,

Kankakee, Il.;

S. L. Lavucxs,

York, Pa.;

Lee R. Dassetr,

Celina, O.;

Ricnuarp R. Krusz,

Sandusky, O.;

Frank A. Meek,

Clay Center, Kans.;

T. A. Bruuinesty,

Greenville, O.;

Cart E. Mouiensere,

Bowling Green, O.;

Nosext Y. Dowet1,

East Peoria, Iil.;

Sam Herzier,

Sidney, 0O.;

Rautpeu Horrmay,

Westminster, Md.;

Rosert Rovtz,

LaPorte, Ind.;

Marsan & Marsa,

Indianapolis, Ind. ;

Appinoton & Jones,

Topeka, Kans.;

Gitsert Martin,

Norwalk, 0.;

Kenneto Weseer,

Detroit, Mich.;

Of Counsel.

APPENDIX.

Table I—Wheat.

Official Returns of May 31, 1941, Wheat

Referendum; Number of Wheat Farms; Number of Wheat

Allotments; Number of Wheat Payees and Percentages,

By States.

ANALYSIS

1. This table groups the 33 ‘‘deficit’’ states, including the

District of Columbia, in one category and the 16 ‘‘surplus’”’

states in the other.

2. The states are arranged in descending order as total

consumption of wheat, by percentage, exceeds production.

3. The number of votes cast, wheat allotments and wheat

payees are compared with and keyed to column 4—the num-

ber of wheat farms (on which any wheat was threshed)

according to the United States Census 1940.

4. It is to be noted that there are 1,385,300 wheat farms—

A total of 1,747,000 wheat allotments and 1,523,393 wheat

payees in the United States and a total of 559,639 votes cast

in the May 31, 1941 wheat referendum.

5. Therefore for each 100 wheat farms only 40.4 farmers

voted in the May 31st Referendum while 56.3 farmers were

disfranchised by Public Law 74—77th Congress and only

3.3 farmers who had a right to vote, did not vote.

6. On the other hand 47.4 per cent of all wheat farms are

in the 33 ‘‘deficit’’ states and for each 100 wheat farms only

17.5 farmers voted in the May 31st Referendum—55.2 farm-

ers were disfranchised and 27.3 farmers who had a right to

vote, did not vote.

7. In the ‘‘surplus’’ states, 52.6 per cent of all wheat

farms are located and for each 100 farms, 61 farmers voted

in the May 31st Referendum and 57.3 farmers were dis-

franchised. This accounts for 118.3 farmers for each 100

wheat farms.

8. In the 33 ‘‘deficit’’ states there were 89.5 wheat allot-

ments for each 100 wheat farms while in the 16 ‘‘surplus”’

states there were 159.1 wheat allotments for each 100 wheat

farms—and for the United States 126.1.

9. The number of wheat payees in the ‘‘deficit’’ states

equal 72.8 payees for each 100 wheat farms—143.5 in the

‘‘surplus’’ states and only 109.9 for the United States.

(Here follows 1 paster, Table 1)

= RHODKS SCHMHHONAG/

ssanseoneseses°n

AAKwEEANOPTOOMMMW |

SSSSRSTSSSsSRSRss |S

CO tt et et et et

POMOH HAY HK HWOCODKr TSO

ame SSRZRSSSSSE3 os

Kankakee, Illinois

SE:

s° RERGSSARERSRSARS

_ Se ee oe

Compiled by: EDWARD E. KENNEDY,

3°R83 Senge seaeks eaesshes°°°""°"°"" epee BagSEE

, 196

, 393

, U.8.D. of A.

First Series PP. 46, 47, 48, 49, 50, 51.

No. 10—Nov. 1941. U.S.D. of A., A.A.A.

wheat was threshed.

1941 WHEAT REFERENDUM

July 14, 1941

942.

“ol

417,000

,000

1,747 ,000 780 ,000

657 ,876

727,463 = 1,

,300

Program—

onnt RrPSHNS KevR_erager

A. Jan.

A.A.

Table

eggegegcesceeese

BRINN SSSsaRees

BSSSSTRRRRRESSRE

Rig *Ne°SssBNssgse

258

PEt TEGEEREEEST Efe

8°R-“Sn-8s-SNSsee

115,492

559 ,630

of Column 4.

Rh a BUSESS”SERREERET““

~ -_A

“= tH

BSRARG“SCRAPERRS

) ar — > Tol

78 , 668 444, 138

27 , 393

106 ,061

FESESIISLBRSRSIE

AVRO R “RSP RASTSA

oroseepeRRssazees*akecssgoces**"~

Ih sett liflulll

HNO TOON BROW RRAARRARRRAARE

88 ,099

Release entitled ‘Announce Official

U. 8.

Column 6 as percentage

Fi (2)-(3)

(6)

i al

TOTALS DEFICIT STATES

TOTALS, SURPLUS STATES 365,470

TOTALS, UNITED sTaTEs 453,569

Table II—Wheat.

Production and Disappearance by Uses, by States—Five

year averages for Period 1931-’32 to 1935-’36; Mill

grindings by States and uses as Percentage of Produc-

tion.

Analysis.

1. This Table groups the 33 ‘‘deficit’’ states, including

the District of Columbia, in one category and the 16 ‘‘sur-

plus’’ states in the other.

2. The states are arranged in descending order as total

consumption of wheat, by percentage, exceeds production.

3. In this 5 year period, domestic consumption of wheat

exceeded production by 1,397,000 bushels a year.

4, In the 33 ‘‘deficit’’ states a total consumption of wh *

exceeded production by 261,957,000 bushels a year.

5. In the 16 ‘‘surplus’’ states, production of wheat ex-

ceeded consumption by 260,560,000 bushels a year.

6. The 260,560,000 bushels of surplus from the 16 ‘‘sur-

plus’’ states is shipped into the 33 ‘‘deficit’’ states, there-

fore about 260,560,000 bushels out of a total of 680,603,000

bushels or only about 38.2 per cent of our total production

of wheat flows in the channels of Interstate Commerce.

7. This would indicate that about 61.8 per cent of our

wheat production is consumed in the states where produced,

or Intrastate Commerce.

8. We know that 37.3 per cent of all wheat produced in

the 33 ‘‘deficit’’ states is used for feed and seed and there-

fore for all practical purposes, does not leave the farm on

which it is produced.

9. In the 16 ‘‘surplus’’ states, 28.5 per cent of the wheat

produced is used for feed and seed and for the United States

30.8 per cent.

10. Mill grindings in the 16 ‘‘surplus’’ states exceeds

consumption, as food, by about 150,925,000 bushels of wheat.

11. Mill grindings in the 33 ‘‘deficit’’ states is about 164,-

719,000 bushels of wheat less than consumption as food.

12. This would indicate that about 109,635,000 bushels

of wheat—as wheat—and about 150,925,000 bushels of

wheat—as flour-—is shipped annually from the ‘*surplus’’

states to the “‘deficit”’ states, totalling 260,560,000 bushels

or 38.2 per cent of our total production.

13. Consumption as food about equals the difference be-

tween total consumption and feed and seed used on the

farm.

(Here follows 1 paster, Table II)

bv ll Grindings, by States and Uses as Percentage of Production.

SasccessScerscageeasgcecs

SVSSRSBSRZnSooeoee°e°

saeesager asses Shesgh gen-wwe

SOSH MASBVOHHFEHAFAAANGCETHOGTH HOW

ASSPRAssAIagarzaceasnsaggecccccce

SSSUBURESSRSERERRATRERCSESESS°SER

Sztesae

-_ i oe Lo) o-

3 — - = = sh

-oc Nn oO o Chon!

ONSBERBRRARSESERENESETZSS™“S“““”

~_-*

= NOON

SOSH MOSRHCOSSSESTA“OSRRSVY™cocce-cco | 8

s*RARRERSUAREIERERERREEZR=“REOoM

Oe ee caceeeceemmeen te

S2geeszRoccecccceo

et et et et et

- -—— -_ - - —

"Sage elt aie al hh hh

yuletill

MAM PCHOKM DOO 8

BRUIEAS

FEANDWOKN HK ONOTCOA | Oo

BISRSSSARAL AS |S

SERSEREZESREE

a°e MAK NVOMM NOOO

— =

FORMED H HANH TDOOSO

RIBSIRAGRRASSuIRR z

Kankakee, Illinois

SRSSESESTAETEREE

EDWARD E. KENNED

~_- *

=e ae Snuaceese

PEPEPES FEES Ppt

Onn oO SIMMONS

Consumption 16 Surplus States.

Compiled by

BAS ASSO RASIARSE |E

August 1941

: py ely mm +

- -

SES SRERESSERSSE

33 Deficit States and Production excess of

(a)260,560 245,618

ion.

be)

SRSSSLELSITSRaRR |S

consumption.

The Wheat Situation U. 8.

BISSRBLHRSSSSSE

DSK OLA RSTO =

& - oO NN

a- o lo +

SEENSSS=LSSSEEZS

vr -”-

The Wheat Situation U. 8.

as of

in excess of

Column 11 as percentage of Column 1.

dt | alla

ai5818122

Table ITI—Wheat.

Supply and Distribution in Continental United States:

Crop Years 1933 to 1940 inclusive, showing cumulative

Consumption and Exports; New crop; Deficit; Supply

and Net Reserves, including Imports.

Analysis.

1. This Table presents the combined totals of supply and

distribution of wheat for the crop year, beginning July 1,

1933 and ending June 30, 1941.

2. 11.6 per cent of wheat produced was used for seed for

new crop.

3. 13.3 per cent of wheat produced was fed on the farms

of growers. 24.9 per cent of production does not leave the

farm.

4. 69.8 per cent of wheat produced was used for commer-

cial foods and feeds. All domestic disappearance 94.7 per

cent of production.

5. 6.3 per cent of wheat production was exported and

shipped.

6. Therefore 101.0 per cent of our wheat production was

consumed, exported and shipped.

7. This proves that at the end of the 8th crop year we are

in a deficit position from new crop production by 56,400,000

bushels.

8. Column 9 shows the cumulative deficit of production

thru the years July 1, 1933 to June 30, 1941.

9. Taking into account all known sources of wheat supply,

carry-over, production and imports of wheat—feed wheat

and flour, during the first seven of the eight years, our net

reserve was less than the 377,900,000 bushel carry-over at

the beginning of the period, J uly 1, 1933,

10. It has taken eight years of production and imports to

replace our reserve carry-over of 377,900,000 bushel which

we had on July 1, 1933 and ‘‘up”’ it by 33,200,000 bushels.

Note.

The increase in production of wheat from the 1900-’4

period to 1935-’39 period is 16.6% while the increase in

population for the same period is 62.9%. On the basis of

an average per capita consumption rate or food of 3.7

bushels it requires 208,100,000 bushels more wheat to feed

our nation in 1940 than it required in 1900.

(Here follows 1 paster, Table III)

42-A

TABLE III—WHEAT: Supply and Distribution in Continental United States; Crop Years, 1933 to 1940 inclusive, showing

Cumulative Consumption and Exports; New Crop; Deficit; Supply and Net Reserves, including Imports.

(4) (5) (8) (10) (11) (12) (13)

fa Cumulative Cunaistive

“ Cumulative

cumption Prodeetion Consumption Reserve,

Imports & and All

Carry-Over

and

Exports

Million

Bu.

Expects

Million

Bu.

Be8e5)

wl wanevonoe

-__

—

BSea8 | PE

a | po@entwooe

Crop

Million

Bu.

77.

82.

87.

96.

04.

75.

2EESEE8

oe! eceecnnw-@nW

| $88

| SESSa5:

sail xnoqoconaoan

2 | SaSSSS8E

@! @@ee®nwnwne-@w

pettauret

cooooooo

«a

eee ee

oe | o~eo-wonw

al aneenee

al arewne-=

| Oasenne

al agnkwmoe=

e\z

=| 32

and exports 8 years.

of domestic mtd ~ ap AT a uction luding July 1, 1933

ve excess exports over c —exc carry-over July 1, :

also “full duty” tthe) and’ 10 and 8 per cent ad valorem duty— Wheat Situation (SUPRA).

total new crop including yi ed of 377.9 million bushels as of July 1, 1933, plus imports (See Column 10).

carry-over of 377.9 million bushels on July 1, 1933.

-9 million bushels to new crop of 1933.

. 1, 1939, new trade agreement with Canada reduced ad valorem duty on “feed wheat” from 10% to 5%—The Wheat Situation, p. 23,

Compiled by: EDWARD E. KENNEDY,

Kankakee, Illinois

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 15347.

Kennetu Benver, Farmer, Canton, Ohio; H. H. Beckman,

Farmer, Clay Center, Kan.; Ciype F. Syoperass, Farmer,

Muddy Creek Forks, Pa.; and Arrep Linpaver, Farmer,

Chelsea, Mich., Plaintiffs,

vs.

Crauve R. Wickarp, Individually and as Secretary of Agri-

culture of the United States of America, Department of

Agriculture Building, the Mall Between 12th Street and

14th Street, S. W., Washington, D. C., Defendant.

Orrer or Proor.

Come now the plaintiffs in the above entitled cause and

show the Court that if they were allowed to testify they

would testify as follows:

That the plaintiff Kenneth W. Bender would testify that

he was a farmer residing at Canton, Ohio, that his oecupa-

tion has been that of a farmer for over fifty years. That he

owns and farms 138 acres of land. That this farm is his

and his family’s home. That this farm is used for the pro-

duction of grain, livestock, poultry, fruit, and dairy prod-

ucts. That during the cropping season of 1940 and 1941 he

planted, harvested, and threshed nineteen acres of winter

wheat for feed, family consumption, seed, and as a nurse

crop for legumes.

That plaintiff did not sell or market any of said wheat.

That for many years he has planted a small acreage of win-

ter wheat as a rotation crop and has always used the wheat

for seed, family consumption or feed. That in his farming

operations he never sells his wheat but uses that part which

he does not need for seed, for family consumption, and feed

for livestock.

That this plaintiff would testify that he never accepted

any money from the AAA or its program nor did he ever

comply with its program nor has he any intention of doing

so. That to do so it would mean a financial loss to him

every year. That he never received or accepted any subsi-

dies from the AAA or any other agency of the government

through the provisions of the Agricultural Adjustment Act

of 1938, as amended.

That this plaintiff would testify that his allotment for the

year 1941 by the AAA under the provisions of the Agricul-

tural Adjustment Act of 1938, as amended, was between

fourteen and fifteen acres. That notwithstanding that he

had planted only nineteen acres in wheat the defendant pe-

nalized him 49¢ per bushel on 242.8 bushels or $1,196.97. Al-

though the defendant now admits that he was grossly in

error yet his agents who are attempting to collect this pen-

alty have never notified the plaintiff to that effect.

That as one of the six million farm families of the Nation

he has sustained a general financial loss as a farmer because

he has been compelled to pay taxes for the loss the govern-

ment sustained because of the waste and extravagance of

the AAA program under the provisions of the Agricultural

Adjustment Act of 1938, as amended.

This plaintiff would testify that wheat unthreshed is of

little or no value for feed nor for any other purpose except

possibly for chicken feed and for that purpose at least one

third would be wasted. That wheat generally has little or

no value unless it is threshed. That if this plaintiff is com-

pelled to pay this 49¢ penalty tax on the so called excess

wheat under the AAA program then it would mean the con-

fiseation of his property. That the government now asks

this plaintiff and other farmers to produce more beef, more

pork, more poultry, more eggs, and more butter and at the

same time attempts to restrict the production of those crops

that are best suited and would enable plaintiff to comply

with the government’s request.

That this plaintiff denies that the AAA program of the

Agricultural Adjustment Act of 1938, as amended, has in-

creased the price of wheat or any other farm commodity.

That in fact it has placed a ceiling and not a floor on the

prices paid for agricultural products. That in truth the

government keeps the price of wheat down by using the

wheat it has received under its loan policy and selling it in

competition with the farmer’s wheat whenever the price goes

above the ceiling it has fixed. This plaintiff if allowed to

testify would testify that he knows from his experiences as

a farmer of fifty years that he never received any benefit

directly or indirectly from any provision of the Agricultural

Adjustment Act of 1938, as amended, but that on the other

hand he has sustained a loss even outside of the attempted

collection of the so called 49¢ penalty tax.

This plaintiff would deny as untrue the claim that the

farmer reezived $1.16 on an average for his wheat for 1941

because of said program or that the world price was only

40¢ a bushel. That these claims are based upon fake statis-

tics and are wholly untrue. The plaintiff would testify that

farmers who did not cooperate with the AAA received on

an average 85¢ to 90¢ a bushel and that those who cooper-

ated with the AAA received on an average 98¢ a bushel as a

loan out of which there were many deductions for inspec-

tions, insurance and storage, which he had to provide, and

further that the world market was around 80¢ a bushel

and not 40¢ during 1941.

That the plaintiff H. H. Beckman would testify that he

was a farmer residing at Clay Center, Kansas. That his

occupation has been that of a farmer for over forty years.

That he has been president of the local Farmers Union and

a member of other farm organizations. That he has made

a study of agriculture and the marketing of farm products.

That he owns and personally operates a 232 acre farm

and owns and leases another farm of 210 acres to a tenant.

That this farm is his and his family’s home. That during the

cropping season of 1940 and 1941 he planted, harvested, and

threshed 150 acres of winter wheat. That under the Agri-

cultural Adjustment Act of 1938, as amended, he was allotted

between 68 and 70 acres of wheat for 1941. That he was

penalized $557.13 for so called excess wheat for the year

1941. That he feeds a large part of his wheat to cows, live-

stock, and poultry.

That this plaintiff would testify that he never accepted

any money from the AAA or its program nor did he ever

comply with its program nor has he any intention of doing

so. That to do so it would mean a financial loss to him

every year. That he never received or accepted any subsi-

dies from the AAA or any other agency of the government

through the provisions of the Agricultural Adjustment Act

of 1938, as amended.

That as one of the six million farm families of the Nation

he has sustained a general financial loss as a farmer because

he has been compelled to pay taxes for the loss the govern.

ment sustained because of the waste and extravagance of

the AAA program under the provisions of the Agricultural

Adjustment Act of 1938, as amended.

This plaintiff would testify that wheat untoreshed is of

little or no value for feed nor for any other purpose except

possibly for chicken feed and for that purpose at least one

third would be wasted. That wheat generally has little

or no value unless it is threshed. That the wheat raised and

best suited in the plaintiff's locality is bearded wheat. And

because of the beards livestock will not eat it and if they

do it would be dangerous to their health and may kill some.

That if this plaintiff is compelled to pay this 49¢ penalty

tax on the so called excess wheat under the AAA program

then it would mean the confiseation of his property. That

the government now asked this plaintiff and other farmers

to produce more beef, more pork, more poultry, more eggs,

and more butter and at the same time attempts to restrict

the production of those crops that are best suited and would

enable plaintiff to comply with the government's request.

That this plaintiff denies that the AAA program of the

Agricultural Adjustment Act of 1938, as amended, has in-

creased the price of wheat or any other farm commodity.

That in fact it has placed a ceiling and not a floor on the

prices paid for agricultural products. That in truth the gov-

ernment keeps the price of wheat down by using the wheat

it has received under its loan policy and selling it in compe-

tition with the farmer’s wheat whenever the price goes above

the ceiling it has fixed. This plaintiff if allowed to testify

would testify that he knows from his experiences as a

farmer of forty years that he never received any benefit

directly or indirectly from any provision of the Agricul-

tural Adjustment Act of 1938, as amended, but that on the

other hand he has sustained a loss even outside of the

attempted collection of the so called 49¢ penalty tax.

That this plaintiff would testify *\...i his farm is equipped

for small grain farming only. That his farm is not econom-

ieally profitable for the production of corn or cultivated

crops. These crops are damaged by hot winds in July,

August and September, while winter wheat matures before

the hot winds arrive. That if he is compelled to comply

with the Agricultural Adjustment Act of 1938 as amended

he will sustain a loss because all the farm equipment he has

will not be necessary ; in fact he will have an excess of farm

machinery of one third which will amount to a loss of at

least $2,000.

This plaintiff would also testify that he made more money

on an average before the AAA program or the enactment

of the Agricultural Adjustment Act of 1938, as amended,

than he has made since. He would deny that there was a

shortage of storage capacity because of a surplus of wheat,

but as a fact the shortage of storage capacity was caused by

the AAA program. That he could have stored 3000 bushels

more of wheat had he not been compelled to use his storage

capacity fer substitutes such as oats, barley, and rye. And

that he knows the same is true of neighboring farmers.

He knows of his own knowledge that mills in his State did

not lack storage capacity; as a matter of fact they did not

have grain enough to grind. He knows that the government

in order to keep the price down shipped wheat to some mills

and elevators in Kansas and sold it at 82¢ a bushel as feed

or about 30¢ below the ceiling price under the loan rate.

This plaintiff would deny as untrue the claim that the

farmer received $1.16 on an average for his wheat for 1°41

because of said program or that the world price was only

40¢ a bushel. That these claims are based upon fake statis-

ties and are wholly untrue. The plaintiff would testify that

farmers who did not cooperate with the AAA received on

an average 85¢ to 90¢ a bushel and that those who cooper-

ated with the AAA received on an average 98¢ a bushel as

a loan out of which there were many deductions for inspec-

tions, insurance and storage, which he had to provide, and

further that the world market was around 80¢ a bushel

and not 40¢ during 1941, That unless restrained the defend.

ant will enforce the 49¢ penalty and collect it by taking the

plaintiff’s wheat or other property without just compensa-

tion or without any compensation whatsoever directly or

indirectly.

The witness Edward E. Kennedy if he had been permitted

to testify would have testified that he was born and raised

on a farm in Iowa. That he operated a farm in Minne-

sota and Iowa for sixteen years.

That since 1920 he has made an extensive and comprehen.

sive study of farm commodity prices. That for a number of

years he was Secretary of the National Farmers Union, later

Vice-President of the Farmers Guild. That since 1936 he

has been Legislative Representative in Washington, D. C.,

for various farm organizations and individual farmers.

That in 1928 he prepared and made a comprehensive re-

port on cost of production of various agricultural products

including wheat. That this report has been used and stud-

ied by members of the Senate and House Agricultural Com-

mittees. That he has made other reports and has testified

before numerous Federal and State Agricultural Commit-

tees.

That he has made extensive studies of the domestic mar-

ket and the world market prices not only of wheat but of

all leading agricultural products. That he knows the world

market as well as the domestic market prices during 1940

and 1941 as well as previous and subsequent years not only

of wheat but all ether agricultural products. That he knows

the operation of the AAA program under the Agricultural

Adjustment Act of 1938, as amended. That he knows the

effect this Act has had upon prices and upon agriculture as

well as upon the individual farmer. That basing his knowl-

edge gained by these studies he would testify if permitted as

follows:

That the reason our annual export of wheat and flour

diminished between the period of 1920 from 25% of total

production to less than 10% in 1940 was due largely be-

cause we had no wheat to sell—not to over production.

That during tha? period there was a general decline per

capita of wheat available for world consumption. That

during the eight-year period from 1933 to 1940, inclusive,

there was an accumulated deficit each year. That during

these eight years we consumed more wheat than we pro-

duced. We imported more wheat and wheat substitutes

than we exported.

This witness would testify that the claim made by the

defendant that the cooperator as a result of the AAA pro-

gram received on an average $1.16 a bushel for his wheat

as compared with the world market price of 40¢ a bushel

is not true and is wrong at both ends. That the farmer

who cooperated during the time here in question (that is

from October 1940 when the plaintiffs’ wheat was planted

and August 1941 when it was threshed) did not receive

$1.16 per bushel but in place could make a loan of 98¢ a

bushel. But in order to get the 98¢ loan he had to furnish

storage capacity, pay insurance, inspection, and other ex-

penses. That during that period the non-cooperator re-

ceived on an average 85¢ to 90¢ a bushel and that was the

domestic market, not $1.16.

That the claim made by defendant that during this period

the world price was 40¢ a bushel is equally untrue and

cannot be sustained by any facts. During this period the

prices paid at Winnipeg, Canada, for similar wheat and

similar grades was on an average between 64¢ and 72¢ per

bushel and the Liverpool market, which might be consid-

ered the world market, during this same period was between

84¢ and 92¢ a bushel. That prior to the World War Ger-

many, Italy, and other countries were subsidizing and pay-

ing $2 a bushel for wheat. This was due not to world

surplus but to world scarcity of wheat.

That in this connection this witness would testify that

the Agricultural Department has completely ignored the

fact that while the increase in production of wheat from

the 1900-’4 period to 1935-’39 period is 16.6% while the

increase in population for the same period is 62.9%. On

the basis of an average per capita consumption rate of

food of 3.7 bushels it requires 208,100,000 bushels more

wheat to feed our nation in 1940 than it required in 1900.

The same is true in connection with the world increase in

wheat and in population. It would seem that the Depart-

ment of Agriculture is about thirty-five or forty years be-

hind the times in its computation of consumption and pro-

duction of wheat. It assumes that the population has re-

mained constant since 1900.

That the defendant erroneously assumes that Soil Con.

servation and Parity Payments are part of the price paid

for wheat. The truth is that the cooperator with the AAA

program pays dearly in toil and in expenses for the Parity

and Soil Conservation check. That there is no connection

between these payments and the price paid for wheat. That

in order to receive a Soil Conservation Payment the co-

operator has to comply with the ideas and rules and regu-

lations of some sidewalk farmer in the Department of Agri-

culture. He has to plow, disk, and cultivate according to

a Washington idea. In order to get Parity Payments

he has to reduce his acreage and usually sustains a loss,

This is not a subsidy it is a payment made under an

agreement for services rendered or to be rendered.

This witness would testify further from his studies that

the Agricultural Adjustment Program has not increased

the price of wheat but that in fact it has been used to keep

the price of wheat down by government manipulation.

That it deliberately kept the price of wheat down by using

some of the wheat that it receives under its loan policy

and sells in competition with the farmer’s wheat far below

the market price. It provides ceiling and not a floor ; but

for this wheat would be selling around $2 a bushel and

eee

Vitis witness would testify that the claim of the defend.

ot, That the farmer as a result of the wheat program is

dite e market his wheat at a price ‘far above any world

ere om the natural reaction of supply and demand,’’

‘Get supply and demand governs prices has been exploded.

The trwth is that the world production per capita of

What has decreased since 1915 from 2.22 bushels to 1.86

berhels by 1996. In other words, the population increased

faster than the world production of wheat.

This witness would further testify that unthreshed wheat

has very little value. It is not economical to feed un-

threshed wheat to hogs or chickens because most of it will

be wasted and hogs generally will not eat it in that form.

He would testify that the plowing and the preparing of the

soil and the furnishing of seed and planting and harvesting

are done before threshing starts. In fact the crop is com-

pleted and all the expenses have been incurred except some

8¢ a bushel for threshing. That the claim that the farmer

could avoid the 49¢ penalty by not threshing is absurd.

He would further testify that no farmer whether a co-

operator or non-cooperator, unless he is one of 156,000 on

the Department of Agriculture payroll, has on the whole

received any benefits directly or indirectly because of the

Agricultural Adjustment Act of 1938, as amended. That

in his opinion the prices of agricultural products on the

average would be virtually the same as they are and in

many cases much higher if the Act had never been passed.

This witness would testify that from his studies the six

million farm families of this Nation sustained a financial

loss because of the expenses of administering and carrying

out the provisions of thie Act. That the farmer who is a

non-cooperator sustained a financial loss because of the

Act, first, by having to support it by paying his share of

the national tax burden and, secondly, because of the con-

fiseatory penalty and restriction of production. And that

the Nation’s food supply has been hampered and en-

dangered because of the AAA program.

He would further testify that wheat acreage allotment

quotas were not uniformly distributed pro rata to counties

within the State and to farmers within the counties. As a

result the plaintiffs in this action have been unfairly and

arbitrarily discriminated against. And this is true of hun-

dreds and thousands of farmers. That from his studies

he knows that the great majority of wheat farmers are

non-cooperators because to cooperate under the AAA pro-

gram means a financial loss.

That this witness compiled exhibit one hereto attached

and made part hereof entitled, ‘‘Wheat, Supply and Dis-

tribution in Continental United States,’’ Crop years 1933

to 1940, inclusive. And exhibit two hereto attached and

made part hereof entitled, ‘‘Wheat, Production and Dis-

appearance, by uses, by States.’’ That he would testify

to the accuracy of said figures and to the facts they reveal,

The plaintiff Alfred Lindauer if permitted would testify

that he was a farmer residing at Chelsea, Michigan. That

his occupation has been that of a farmer for over twenty-

three years except for twenty-three months when he served

in the Red Arrow Division in World War I. That he has

been an officer and member of the Farmers Guild, National

Farmers Union, and other farm organizations. That he

owns and operates a 370 acre farm which is his and his

family’s home. That this farm is used for the production

of grain, livestock, poultry, fruit, and dairy products.

That during the cropping season of 1940 and 1941 he

planted, harvested, and threshed 45 acres of winter wheat

for feed, family consumption and seed. That he did not

market or sell any of said wheat and does not intend to.

That for many years he has planted from 40 to 60 acres

of winter wheat as a rotation crop and has never sold a

bushel but used it exclusively for feed, family consump-

tion, and seed.

This plaintiff would testify further that the defendant is

attempting to collect a 49¢ penalty tax on 466.4 bushels or

$375.74 on so-called excess wheat produced on plaintiff’s

farm for the year 1941. He would testify that he never

received any benefit directly or indirectly or remotely from

the Agricultural Adjustment Act of 1938, as amended, but

that in fact he suffered a loss even beyond the so-called

penalty.

This plaintiff would testify further that he made more

money out of his farming operations on an average before

the enactment of the AAA program than after. That the

AAA has never benefited him directly or indirectly or any

other farmer as far as he knows except those farmers who

are on the Agricultural Department’s payroll.

He would testify that unthreshed wheat cannot safely be

fed to livestock such as horses or cattle. That hogs gen-

erally will not eat it in that form and to feed it to chickens

would incur a great waste. That practically all the expenses

and labor have been incurred before the wheat is harvested.

That threshing would only cost an additional 8¢ a bushel.

This plaintiff would testify that the AAA program has

been a detriment to him and the farmers and that if he is

compelled to pay this penalty it will mean a financial loss.

He has never received or accepted any benefit under any

of its provisions. That from his farming experiences he

knows that it has not increased prices of wheat but rather

decreased them. That the government used the wheat it

obtained from its loaning policy to sell in competition with

the farmers’ wheat thus putting a ceiling on prices rather

than a floor.

Finally this plaintiff would testify that if the govern-

ment can take his wheat in the name of a penalty tax with-

out paying for it he will be compelled to reduce his farming

activities and curtail production of livestock, poultry, fruit,

and dairy products when the nation needs them.

The plaintiff Clyde F. Snodgrass if permitted would tes-

tify that he has been a farmer all his life except the twenty

months he served in World War I. That he owned and

operated a 265-acre farm in High Rock, Pennsylvania,

which was his and his family’s home until recently. That

he has quit farming because he cannot continue to farm

without a financial loss under the AAA program.

That until recently he raised forty acres of wheat each

year until the AAA program cut him down to thirteen

acres. That the defendant is attempting to collect a 49¢

penalty tax on 301 bushels or $147.49 on so-called excess

wheat for the year 1941.

That this tax is confiscatory because it is taking property

by the Department of Agriculture without paying for it.

He would further testify that he never received or accepted

any payments directly or indirectly from the AAA and that

the AAA did not increase the price of any product that he

raised nor of wheat. But that it kept the price of wheat

down by using the wheat it received under the loan policy

and selling it in competition with the farmers’ wheat.

That he would testify that all the wheat he raised for

1941 and 1942 and prior thereto was fed to poultry. He

never sold any wheat. That he never cooperated with the

AAA program or never intended to because it meant a

financial loss. That unthreshed wheat in his part of the

country has no value because of the weavel and the fly

getting, into it as well as the rats. That it cannot be fed to

livestock. That while chickens may eat the unthreshed

wheat, there is too much waste. That practically all the

expense of raising wheat is incurred up to the time it’s

harvested. That threshing adds only slightly to the cost.

And for the defendant to say that if the farmer had not

threshed the wheat he would not have been penalized is

absurd. That is confiscation just the same.

That the witness Augustine Rohr who was present in the |

court room if permitted to testify would have testified that

he is a farmer of Stark County, Ohio. He has farmed all

his life on a farm of 260 acres. That he has been penalized |

$730.72. That such a penalty was the same as a steal by

the government. That he raised grain for livestock. That

he never raised over fourteen to twenty acres. Never co-

operated or never will cooperate with the AAA program.

That if he pays the penalty he will sustain a financial

loss. That he never accepted a subsidy from the AAA nor

does he want one. That if he is compelled to pay this

penalty he will sustain a financial loss on his farming —

operations.

That unthreshed wheat is not economical to feed. That

the AAA did not increase the price of wheat but rather

put a ceiling on it. That on the whole the AAA has

been a detriment to agriculture and a financial loss to the

farmer.

(5985)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.