Transcript of Record — Parker v. Brown

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" OOTOBER Si al hel

' W, B: PARKER, DIRECTOR or AGRICULTURE, AG-

; -RICULTURAL PRORATE ADVISORY. COMMISSION,

RAISIN. PRORATION, esti No. hy ET AL., Arr |

LANTS, | ane

: : \ v8, 3

soe: ER L. BROWN

‘

ip APPEAL FROM THE DISTRICT court OF THE (NITED STATES eae

- THE SOUTHERN DISTRICT OF CALIFORNIA

. @

FILED MARCH 13, i92.

4 ‘s

" Supreme Court of the United States ok

W. B. PARKER, DIRECTOR OF AGRICULTURE, AG-

* RICULTURAL PRORATE ADVISORY COMMISSION,

_ RAISIN PRORATION ZONE No. I, ET AL., APPEL-

PORTER L. BROWN

———

p APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR -.

THE SOUTHERN DISTRICT @F CALIFORNIA ;

INDEX. ,

ee. at one ; Original = Print

Recéed from D. C. U. 8., Southern District of California........° 1 A

‘ Names and addremes of counsel. . . . (omitted in printing) 1

Citation and service........ Seaap el Coe pee 2

NS 6 3.5 asbannds cociccedscapeaaccsces 78 1

printing)

a ERASER na 87 .

Notice of motion to. make amended complaint more definite

and certain (omitted in printing)... 0... 0.6.05 2. 6a: 97

Motion to make amended complaint more deGinite and

certain (omitted in printingy................ eeetwav res 99

Affidavit of W. J. Cecil (omitted in printing) 105

Answer to amended complaint.................. ~: See 108 6

Exhibit “A” — “ Program for

Raisins, as Amended” (omitted in printing). ....... 119

Notice of motion for interlocutary injunction (omitted in

printing)

Motion for interlocutory injun¢tion. (omitted in printing).. 151

Affidavit of plaintiff? in opposition to motion to dismiss

‘(canitted in printing)... 22... 062.060! 153:

psacaahylaa. onde agee anlar acarsaad

injunction (omitted in printing)... ......°......... 156

' Jvse & Derweuse (ixc.), Painrems, Wasuizelen, PDP. C., Aram 15, 142.

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Kecord from D.C. U. &, Bouthers’ District of Catifornia—

gi ; = RRT558883 2 Re Ras s2 S85 aR 8 8

' Griginal

Order denying motions to dismiss and Yo the wore definite. ——-

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Statement of point tobe relied upon and designation of parts of

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Designation of additional parts of record tbe printed...

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GON oss Fi poe

=<, IN DISTRICT COURT OF THE UNITED STATES FOR ae

DVO

s No. 78 Civil:

Posem L. Brows, Plaintiff, :

vs. on ER a

Ww. B. Parker, Director of Agriculture, AcnricutruraL Pro-. =

KATE .ADVISORY. Com Mission, Raisin Pronation Zone #1, .

Program’ Committee, W. B. Parker, Ira Redfern, Lyman —~

Lantze, James Langford, Mark G. Johnson, C. M,.

Brown, Wm. F. Darsie, Dr. Dean McHenry, Preston Me-

Kinney; H. C. Anderson, A. K. Kelly, Renald Mastrofini,

Alex Berg, Mesrob Mirigian, Melichoir Hansen, A. L. -

Davidson, W. J. Cecil, J. C. Harlan, One Doe, Two Doe,

Three Doe, Four Doe, Five Doe, Six Doe, Seven Doe and

Eight Doe, Defendants

. AMENDED Comptasr FOR iusuierite—Piled December: 28,

3 1940

Bo: Plaintift, for cause of action against: the defendants, 5 aie

That juriediction i is founded on the sleheane of Federal

- questions and amount in controversy ; that theaction arises

| ‘under the Constitution of the United States, Article I, Sec-

tion 8, Clause 3, and under: Title 15, Sections 1 to 33 of the —

' United States Code, as hereinafter more fully appears; that

' the matter in controversy exceeds, exclusive of interest and :

coats, the sum of $3000.00. — :

% x eft ; Saas

That defendant Raisin Proration Zone No. 1 is and’ at

~ - all times.mentioned herein been a proration zone organ-

_ ized under.the Agriculture Prorate Act of the State of Cali-

fornia; that by virtue of said act there now exists an Agri-

cultural Prorate Advisory Comthission composed of the .—

following persons: W. B. Parker, Ira Redfern, Lyman

1—9886

a ny

“9.

Lautze, James Langford, ‘Mark @. Sr C. M. Brown,

Wm. F. Darsie, Dr. Dean McHenry, and Preston -McKin-

ney; that the said W. B. Parker is Director of Agriculture |

of the State of California ; that under said act there now | -

éxists.a program committee of Raisin Proration Zone No. 1

composed of H. C. Anderson, A. K. Kelly, Renald Mastro-

fini, Alex Berg, Mesrob Mirigian, Melchoir Hansen, and «A.

‘ L. Davidson; that the defendant W. J. Coeil is the .zone°

agent of said zone. oak.

; ill

: “wat hatatilt w-uow ‘and at all times herein mentioned

\. was the owner of 100 acres of-real property in the County .

of Fresno, which is in Raisin -Proration Zone No: 1; ‘that

“gt all times mentioned kerein plaintiff has had planted on

said real property grapevines from which plaintiff has made .

and: does now make raisins.”

‘That the program committee of’ said zone has attempted

to institute a seasonal marketing program which defend-.

ants declared effective September 7, 1940; that defendants

thr¢aten to enforce said alleged seasonal marketing pro-

gvam against plaintiff; that said program. provides briefly

that all sub-standard rajsins shall be withdrawn from the.

- market; that 20% of the raisins produced by plaintiff arid

. others shall be placed in a surplus pool and that plaintiff

and others shall receive therefor the sum of $27. 50 per. ton-

on delivery to said zone; that 50%. of the -aisins produced

by ‘said plaintiff aid | others shall be used by said zone as

a stabilization pool and that said plaintiff and other grow-

[fol. 8Q] ers shall receive therefor .on delivery to said zone

the sam of $55.00 per ton; that 30% of the raisins produced

by plaintiff and said growers shall be. called free tunnage

and. that said piaintiff atid other growers may sell said

free tonnage without restriction upon: paying to said zone

the stim of $2.50 per ton for the privilege of selling such |

free tonnagé ; and that no packer or handler of raisins may

-: purchase any standard or sub-standard raisins from any of

the growers in said zone until said growers have complied

with all of the foregoing requirements and received pri-

- mary and secondary certificates from said zone evidencing

such compliance.

That approximately 95% ‘of: the raisins ‘grown by plain-

_ ‘tiff and the other producers in Raisin Proration Zone No.

_/. 1 are-sold in interstate or foreign commerce and that the

raisins grown in said zone constitute approximately 95%

of the naturally dried raisins produced in the United

. States; that plaintiff .is‘deprived by reason of said act and

program of his nem * to — i) isins in interstate

J See Gees eee

Plaintiff further alleges that heretofore plaintiff has en- —

gayed in the business of packing, shipping, and selfing in

interstate and foreign commerce raisins produced by him-.

_ self and raisins purchased by plaintiff from other persons

and that plaintiff desires to continue such business; that --

defendants in enforcing said act and program will compel

delivery te said zone of all: sub-standard raisins and 70%

of standard raisins’ produced by all the growers in said zone

3 as hereinabove specified ; that under said program defend- |

-_, ants will, unless enjoined, withhold from the normal chan-

_. nels of interstate commerce all sub-standard raisins ‘and

all raisins in said 20% surplus pool; that defendants under —

said program will, unless enjoined, withhold the raisins in.

‘said 50% stabilization pool from the. channels of interstate

_ commerce, allowing such raisins to enter said channels only

. [fol. 81] at such times and in such quantities as the defend-

ants in their discretion shall determine; that ‘under said

program deferdants will, unless enjoined, permit said 30%

_ of free. tonnage-to enter interstate commerce only if said

70% of standard raisins and:all sub-standard are delivered

_to.said zone; that by reason of: the foregoing defendants . -

threaten a virtual embargo on the.shipment in interstate —

“commerce of raisins grown in said zone; that’prior. te the

alleged ‘adoption of said marketing program plaintiff en- |

_... tered into contracts to sell raisins in interstate commerce;

~ that if defendants enforce said act and program, plaintiff

will be unable to secure raisins with which to fulfill said

_ eontracts and plaintiff will be subjected to liability on ‘said

* contracts in approximately the sum of $8000.00. and: will,

in addition, lose profits on said contracts j in approximately

- an equal amount; that plaintiff expects and will beable to

ship out of this state during the current marketing season

a > | zy See Sod

- 3500 tous of raisiis in ‘addition to the raisins SONS by

__said contracts ; that as aforesaid, if defendants enforce said -

act and-program, plaintiff will be unable to secure said

tons of raisins:for said shipment; that plaintiff would make\

_# profit-on said 2500 tons of raisins at the rate of from ~'S

' _ $5.00 to. $12.00. per ton; and that unless defendants are en-

joined from enforcing said program, seston: lose r such

“profit. ; SP ear

Porte . +-Vi Ss |

° “That the 1940 raisin crop is now rend for or "the market

and that the normal market. for such raisins: will be’ lost —

after’ December 20, 1940; that unless said program ‘is

‘quickly declared unconstitutional, the plaintiff and all the

growers in-said zone will be irreparably damaged by the

loss of such market; that there is po adequate or _—

remedy at law to prevent such damage.

“VII

That. said act and program provides civil and criminal

{fol. 82] penalties so unusual, oppressive, and unreasonable =

that plaintiff will be precluded from asserting his rights

independently and challenging in Court by defensive tactics

the’ validity of said act and program; that plaintiff is there-

_ fore without adequate remedysat law.; that if said program ~- |

is enforced by defendant the vaiue of. plaintiff’s‘vinéyard _

. and packing ‘business will be irreparably impaired; that | —

plaintiff is informed and believes that the enforcement of

said program will cause to plaintiff an average loss of $9.00

per ton per vear on raisins grown by plaintiff ; that the aver- —

age annual tonnage of raisins: grown by plaintiff is 200

_, tons; that plaintiff expects to continue producing such an >

' annual tonnage for many years iti the future and, plaintiff

‘is informed and believes, defendants will continue said pro-

- gram in force for many years in -_ future on aguas.

IX ee

That as-above stated said program provides that pay- ~

meént for raisins shal] be made upon delivery of such raisins

to said zone; that said zone is unable and unwilling to pay -

for such raisins on delivery; that therefore said program

has never. been placed in operation; and that defendants

> . % : a . z ® sine 9

‘ should be ey from’ annie to compel. growers and -

_ packers to comply with said act ond program. aa

Ste as, ae Pie oie

Plaintiff is informed and believes, and therefore alleges: —

That defendants will, unless ‘restrained, attenipt ‘to en-.

-foree and procure the enforcement. of, against plaintiff, the

- vivil and criminal penaltiés provided in said act; that de- .

' fendants will, unless restrained, attempt to enforee and

procure the enforcement of the civil and criminal penalties:

provided in. said act against growers froin whom plaintiff

purchases raisins and against other persons with whom

« plaintiff has dealings in raisins, thereby preventing plain-

. [fol. 83] tiff from obtaining raisins for interstate ship- .

_. ment; that plaintiff has no adequate remedy at law whéreby

“ plaintiff cat prevent the filing of civil or criminal actions

against | him or sguinnt said persons dealjng with him.

Sl ee Se

yah dotenddainte are maintaining: at-and near plaintiff's ,

. place of business watchers and spies for the ‘purpose of ~

si ascertaining from whom plaintiff purchases raisins and

for the purpose of. intimidating such sellers and proventing —

_ the sale of raisins: to plaintiff for shipment in interstate

commerce; that the presence of such watchers. and spies

‘does intimidate such sellers and prevents such purchases.

ps:

’ That plaintiff is informed and believes that approxi- |

mately 100,000 tons have been delivered te defendant zone

under said program, and piaintiff is informed and believes —

that defendants are now and intend to continue withhold-.

-- ing said raisins-from interstate commerce in restraint of

. trade and for the purpose of maintaining the monopoly.

XIII,

That. ‘the true. names io a the: defendants sued Secale as

One Doe, Two Dee, Three. Doe, Four Doe, Five Doe, Six.

Doe, Seven Doe, and Eight Doe are not known to this plain-

tiff and that plaintiff prays leave of this Court to insert

- {heir true names when they become known to him. .

: ‘ : : ins

Peay ; oe 7 : . : ween —— eo meer aateaienianatniets

'. Wherefore, plaintiff prays judgment as follows:

1. That a Temporary Restraining Order issue restrain-

ing and enjoining. the defendants. from doing any of. the

‘following acts: .

( a) Enforcing or attempting to procure the ‘enforcement

. of, in. any ‘manner, against plaintiff the said act or program ;

(b) Enforcing or attempting to procure the enforcement

[fols. 84-107] of, in any: manner, the said act or said pro-

* gram against any grower. in said zone from whom plaintiff:

‘purchases raisins, or against any other person with whoni

_. plaintiff has dealings in raisins on account of such” pur-

chases or dealings ; A e ib;

tiff’s place of business and having watchers or ‘spies fol-

lowing persons with whom plaintiff has dealings i in raisins.

2. That after a trial of this action a permanent injunction .

be issued a enjoining the Gofonannte from

- doing any’ of said act soe

3: That plaintiff be awarded such sites and farther relief

as may. be just and proper; and that plaintiff be allowed

his costs of suit.

—_— ; Atterenys for Plaintiff. ©

~ Duly sworn to by Porter L. Brown. Jarat omstied in

printing. pee

eee me

_ [File endorsement omitted.) 3

{fol. 108]. Es District Court/ oF THE Usrrep STaTEs

[ Title omitted) ‘ ;

ANSWER TO First AMENDED ( ‘omrzatnt—Filed, Feb. 25, 1941

Come-now all of the defendants, and ‘each of them, in the

above entitled action, and answering plaintiff's first amended \

on herein, admit, deny and allege as follows:

3 og ‘ :

Deny each and every averment contained i in paragraph I

-* of said firsPamended complaint.

"ee v

Admit the averments contained in m paragraph, Il of suid

: first amended — .

ae can. 3s) —

}

_‘Adinit that plaintiff’ is and was at all the times salina |

‘in the first amended complaint herein, a ‘‘producer’’ of |

raisins in the Gounty of Fresno as said term ‘‘producer”’ .| .

is defined in the Agricultural Prorate Act of the State of |

- .California, and tat he is and was — all such times the pur-

_ [fol. 109} ported’ owner of real property ‘in said county

upon. which there were planted grape vines from which

raisins were made and allege that except as herein other-

wise expressly admitted, defendants are without knowledie

' or information sufficiertt to form a belief as to the truth of

any of the averments of paragraph It of said first amended —

complaint.

; IV ft

Admit and alloge that deferdante, pursuant to the market-

af ing program for raisins as amended in effect in said Raisin

roration Zone #1, get a aed -and adopt a seasonal

marketing program for for 1940-1941, effective Sep- _

_ tember 7th, 1940,and that defendants have: enforced and

- intend -to enforce such seasonal marketing program: for

raisins against plaintiff and all other persons subject to the

‘provisions thereof. That-said seasonal! “marketing program

provides that 20% by variety of all standard raisins of the

* 1940 crop produced i in said Zone #1 shell be delivered into

a surplus pool and that an advance shall be made on such

raisins at the time of delivery of $27.50 per ton for. Mus-

cats and Thompsons and $25.00 per ton for Sultanas, to be

obtained from the proceeds of & non-recourse loan from the

Federal Commodity Credit Corporation, and that: 50%. by

variety of all such sland th raisins shall be, delivered into

the stabilization pool and that an advance shall be paid to.

growers upon. such raisins of $55.00 per ton for Muscats

: on Thompsons and $50.00. per ton for Sultanas to be made

; m the proceeds of a non-recourse loan from. said Federal!

Commodity Credit Corporation ; and that it is further pro-

_ vided that the balance of each producer of 1940 crop tonnage

\. of Sas cena 30% thereof may, be —— of at the

~ “gape

_[fol. 110] discretion of the jutedeiiee Ganent = Ra the j issu-

“ance to such. grower of secondary certificates for which a-

fee of: $2. 50 per-ton is required; and that it is. further pro-

vided therein that no sub-standard or inferior grade raisins .

may be offered.as free tonnage or delivered to the stabiliza——-—

tion or surplus nools, but that such raisins shal} be de-

__ livered into separate pools for disposal by the program com- ~~

mittee at the best pricey and under the fairest conditions ~

_ ‘obtainable, and that the inet preceeds:thereof shall be dis:

tributed at the earliest possible date to each grower con-

' + -tributing; and that: ‘all packers and handlers of raisins are

prohibited: from purchasing any raisins from producers

in’ said zone until s roducers have: complied with the

. foregoing requirenients fand received primary and secoud-

ary certificates :evide such compliance. Defendants -

further allege that u the said marketing program for

iF raisins, as amended, the said seasonal marketitig pro-

gram for 1940-1941 they sfleredlcma for and @btained a loan |

from said Commodity Credit Corporation, a Federal lend- <

. ing agency, and that as.of January 22nd, 1941, there had -. |

_ been delivered into said .stabilization and surplus pools,

107,587 tons of 1940 crop raisins produced ‘Lin gaid zone, / |

which in acéordance with the provisions aforesaid of said

seasonal inarketing- program entitled the growers thereof

to.a total aggregate advanee of ‘$5,065,137:00; and that as

of said January 22nd, 1941, there had been actually so ad-

vanced and paid to such growers the total “ggregate sum of

$4,998,000.00, and that the balance-thereof was in protess of .

being so adv anced upon the completion of necessary details . -

and papers in‘connection therewith. Except as herein other- |

- wise expressly admitted‘and set forth, defendants deny each

_[fol. i11] and every averment- contained in paragraph Iv

of said first amended. =. :

. Allege that it is and-has been. continuously: the. practice

in the raisin industry in. the State of California.and in said |

Raisin Proration Zone #1; both before and since the insti-

-tution- -of a raisin proration program under said Agricul. °

tnral Prorate Act, for producers of such raisins to sell iad:

. deliver all raisins sold atid delivered by them to ‘packers

' . ‘and handlers operating in the State of California and/that

therenpon such packers and handlers ws and doing

”

” - ° ° 9

_ business within said State of California, store said raisins

anywhere from a few days to a couple of years within said

oo State and otherwise process the same in said State before

Beg: ‘disposing thereof, and then ultimately sell arid deliver such

raisins to the trade, both intrastate and interstate, and that

a substantial amount of such raisins are ultimately shipped

out-of the State of California, all of which takes place at a

_cousiderable interval after -the producers ‘of said raisins

have parted with the same and have lost all right, title or:

- interest therein; and other than as herein expressly alleged.

and set forth, defendants deny each and every averment

—eontained ‘in paragrape V of said first amended complaint.

‘Aamit that plaintiff iene been engaged i in the. business of

packing, shipping aud selling raisins in intrastate, inter-.

state and foreign’ commerce, and that some-ef such raisins’.

were produced by plaintiff and the balance thereof plaintiff \.

purchased from other producers and was engaged as a

packer and handler of ‘such raisins;'and admit that so far

- [fel. 112] as defendants know plaintiff presumably desires

to continue such business. Admit that defendarits will not |

market sub-standard: raisins in competition with other

_ ‘vaisins, and that they will not issue primary or secondary

’_.eertifieates to ‘producers of raisifis unless and. until such

producers have delivered 50% of their 1940 crop into the

stabilization pool and 20% into ‘the | surplus’ pool. Allege -

that a substantial portion of the raisins delivered to the ~

stabilization pool have already “se disposed of, Exeept

as herein otherwise expressly admitted and alleged, de-

“ _fendayts deny each and every averment contained in para-

es ese staph Vi of said first. aménded are

~ va)

~ Deny each and every am contained in paragraph.

VI of said first amended compl RS 2:

| Allege: that defendants are without. knowledge. or infor-

mation sufficient to form a belief as to the truth of the alle- -

' gation that the average annual tonnage of raisins grown by.

— is 200 —, that a expects to continue pro-

ducing nied an > dinwel tonnage for many years in the future ©

‘and that defendants will continne. said program in force

for many years. in the future unless enjoined; and other

_ than as herein alleged, defendants deny each and every aver-.”

ment contained in paragraph _— of said first amended

complaint.

Woes ees |

Deny outs and every averment contained i in pa paragraph IX

‘of said first amended complaint.

Admit that defendants will to the best of their ability,

eS -{fol. 113] unless restrained, endeavor to enforce and pro-

XI of said mes amended. compiaiat.

cure the enforcement of all of the provisions of the Agricul-

tural Prorate Act and of the proration »rogram for kaisins

thereunder ‘against plaintiff and all other persons subject

thereto by all of the means provided by law ; and other than

as herein expressly admitted, deny.each and every aver- .

-ment contained in paragraph x of said. first amended com-

plaint. caked | =

~ Deny aia and every -averment contained in paragraph

oe ‘ a

e XI

-Allege that as of January: 22nd, 1941, there ied bitcad de-

liv ered into said stabilization and surplus pools 107,587 tons

of 1940 crop raisins produced in said zone; and other than

si as herein expressly alleged, deny each and every averment .

contained in pareere XTI of said first essai complaint.

XHt 3

Admit iw ornate contained | in piaragraph XIII of said

first amended complaint.

. And'for a further and first affirmative defense defendants

—_~ as follows: ~ “2

See es a pee.

That plaintiff is.estopped to attack the constitutionality .

and to, attack the validity of the Agricultural Prorate Act.

and of the proration program for raisins thereunder and .

of the seasonal program for ~_ 1941, and each of them, —

- in-that said plaintiff ever since-the institution of such a

proration program for raisins on or about August 4th, 1937,

a copy of which program is attached hereto marked Exh: bit

__.‘‘A", hereby referred to, arid made a part hereof, has dealt

{fol, 114] with defendant, Raisin Preration Zone No. 1, arid

the other defendants named herein, and has, voluntarily par-

ticipated in such proration program for raisins and has re-

ceived and accepted the benefits thereof and has voluntarily

applied for and received and accepted primary and secon-

; @lary certificates for his raisins thereunder and has had and

claimed the benefit of the operation of the proration pro-_

gram for raisins ‘and of the Agricultural Prorate Act, and

each and all of the p provisions thereof. <

And for a further and second affirmative defense, defend-

ants allege as. follows : .

; That plaintiff is baieeea by the provisions of Section 17 of

. the Agricultural Prorate Act of the State of California from -

‘, prosecuting this action and from prosecuting any and all

alleged causes of activn set forth herein, in that, each and .

every order ahd action of the defendants, or any. of them,

herein complained af: became.effective more than thirty (30)

days prior to the commencement of this action.

‘And for a further and third affirmative defense, defend.

ants allege as follows :

XVI

That plaintiff is guilty of. laches in. the aiiaiiiniiiiiehd

and prosecution of |this action, and. both thereof, in that =

Raisin Proration Zone No. 1 was instituted on or about -

August 4th, 1937, and has continuously operated since said .

time and that on said date a proration program for raisins’

was instituted and approved under and pursuant to the pro-

ffol. 115] visions of the Agricultural Prorate Act of the

State ‘of California, which said program’ as amended and

altered, has in effect ever since said date. That in the. -

operation of. id angers and of said zone defendants have

‘set up an office and staff.and have incurred expenses and

_ obligatioris and entéred into contracts and have~procured

- a loan from the Commodity Credit Corporation of the ©

United States,-a Federal lending’ agency, of approximately

$8,000,000.00 for the benefit of the producers of raisins in ;

A2 : . “" -

said zone, ‘and have paid and disbursed to such producers a

‘ major portion of said amount, and that plaintiff has at all

times since August 4th, 1937, had knowledge of the opera-

tions and activities carried ‘on ‘and undertaken by defend-

ants in connection with said Raisin ‘Proration Zone No. 1

and said program and has had knowledge of, the ternis of.

‘said proration program for raisins, and has since said date

stood by while defendants have operated said zone and said ..

program at the expense of the raisin producers within said

zone who have paid the cost of this operation in accordance

_.wifh the terms of thé raisin proration program and of said

Agricultural Prorate Act, and that defendants have had to

employ and train and have employed and trained a substan-

tial personnel for the opérution and administration of. said -

program, and now have a substantial investinent in the nec-

_-essary facilities purchased .and developed for stich opera-.

‘tion and administration, ‘and that if such defendants are

prevented from continuing the operation and administration

of said program and of said zone, such investment will-be a

loss apd large numbers of employees’ will be deprived of

work,yand the raisin industry and the producers of Traigins in - ©

~ said zone and the people of. the State of California at large’ °

[fol. 116] and the said Coinmodity Credit Corporation will

- suffer irreparable damage and untold injury and hardship. -

And for a further and fourth affirmative defense, defend-

- ants allege as follows: cee ee

XVII : Me

That the California Agricultural Prorate Act oi the pro-

ration program for raisins thereunder as set forth in Ex-

hibit ‘A’ attaciféd hereto, and the seasonal marketing pro-

- gram for 1940-1941, and each therepf, operate upon the |

harvesting and preparation for market of raisins prior to

- the time that any shipment and cojnmerce takes place or

begins and before any movement whatsoever of said raisins

in either intrastate or interstate gommerce. That neither . ,

_ the said Act nor the said program in any manner whatso-

ever burden, obstruct, or hinder interstate commerce in —

raisins but that the same benefit, foster and materially help

Je interstate commerce and tend to increase the ultimate move-

ment of raisins and the amount thereof in such interstate

_ commerce and-to regulate an even flow and movement thereof:

“in euch interstate’ commerce, and lamas that by. rea-

mae ee 13 .

soy thereof dealegs and consumers in.states other than Cali-

fornia, as well as in California, know that‘at all times there _

is on hand and available an ample regulated supply .of good

wholesome raisins of ‘‘standard’’ quality and grade .free

from impure and subsfandard fruit. That Federal statutes:

provide for the fostering and benefit of interstate commerce

by cooperation with State officials in the regulation of agri-

cultural surpluses and for loans to assist in taking care

- of such surpluses and that the Federal Government has

recegnized the benefit and help .to interstate commerce

[fol. 117] of the said proration program for raisins and

that for the purpose of assisting in said program and thus

henefiting and fostering interstate commerce in raisins the

Commodity Credit Corporation, a Federal lending agency, .

has entered into an agreement with defendant, Raisin P.o-

_ vation Zone No. 1, to loan approximately $8,000,000.00 me.

said zone for distribution to the producers of raisins therein |

' upon their compliance with the terms of the said raisin pro-

ration program, and that such money has actually been

loaned and a major portion thereof distributed to such pro-

‘ ducers. That a surplus of raisins exists and has existedat-—

_all of the times herein mentioned, and that such surplus is

and has-been at all of such times of such extent and amount

as to threaten and endanger the producers of raisins in Cali-

fornia with ruin and bankruptcy. .

Wherefore, defendants pray ‘judgment that plaintiff take

nothing by his-first amended complaint herein, and that de- -

fendants recover their costs and disbursements heréin, ‘and _

for such further and other relief as to the court shall seem

. proper, —

“, - Barl Wines, Attorney General of the State of Cali-

fornia, by Walter L. Bowers, W. R. Augustine, ©

Gilbert F. Nelson, Deputies Attorney General, 903 |

_ .{f6ls. 118-161] State Building, Ios Angeles, Cali-

-.. . fornia, Tele: Madison 1271, Attorneys for W. B.

_ Parker as Director of Agriculture, Agricultural

' Prorate- Advisory Commission, and the members

- thereof; J.C. Harlan. Strother P. Walton, 407 Pa- |

- tifie Southwest Building, Fresno, California, Tele-

~ phone: 2-9918, Attorney for defendants Raisir Pro-

ration-Zone #1; Program Committee of Raisin

- Proration Zone #1 and the members thereof: W. J.

Cecil.

¢ .

Zone organized and existing pursuant to the provisions of

.pose of applying the provisions of said Agricultural Pro-.

_ rate Act to an agricultural commodity, to-wit, raisins, being.

_ [fol 163] Thompson Seedless, Sultana, and Muscat vari- ~

.eties grown and produced in the said Zone, consisting of |

. Fresno, Tulare, Kings and Kern within - State of Cali-

‘ “held and operated. by approximately 10,000 producers, the

_ sun-dried Thompson Seedless, Sultana and Muscat raisins

- within said Zone during the five year period, 1935-1939,

. inclusive was approximately 205,600 tons. The yearly pro- .

_ =

(Exhibit ‘ ‘* A” to answer omitted in printing. . See exhibit

1 of statement as to jurisdiction. )

o asm. — 4

[File endorsement omitted.) . |

{ fol. 162] J OINT Exum

Ix Disrasct Court OF THE Uxtrep States.

[Title omitted].

Sripv.arion‘as T¢ to Certain Facts—Filed April il, 1941

The parties hereto hereby stipulate to the following facts :.

1. That defendant and cross-complainant, Raisin Pro-

ration Zone No. 1, hereinafter sometimes referred to as the -

“‘Zone’’, is and has been since August 3; 1937, a Proration _

the Agricultural Prorate Act of thé State of California,

(Chapter 754, Statutes of 1933, as amended) for, the pur-

unbleached, sun-dried or: partially sun-dtied grapes ‘of the

the Counties of San Joaquiti, Stanislaus, Merced, Madera,

fornia.

2. That there are approximately 240,000 acres in wid

Zone devoted to the growing of. grapes utilized. wholly or

in part for the manufacture of raisins, which acreage ‘is

average individual ee of each ssspes rad about

25 acres. —

3. That the drerege annual re of such ‘natural

duction: over the period 1935-1940, inclusive has been ap-

proximately’ as follows: :

Year 1935... 497,000 TOs

on RRS Ta es Sree ”

44 1988 256,000. « oe

5 a Not a ei eats 209,000 <‘é oo

Petey oe sot s sees» 256000. ;

Thatduring ¢ said five year period, 1935-1939, the distribution

of such raisins in‘normal trade channels has averaged ap-

proximately 185,000 tonxs annually. eee

4. The producer of grapes-is-generally either the owner

~ or the lessee of the land upon which the grapevines are

- '. located. He piants, cultivates, irrigates, sprays, and tends

* the vines upon which the grapes are grown and when-ready.

picks the sanie. Such grapes may be sold as fresh fruit or

for wines or prepared as raisins, and the amount utilized

_ for thesé different, purposes varies considerably from year

to year Uoth in the aggregate and with the individual pro-

ducers. The producer picks the bunches of grapes to. he

utilized for raisins aud spreads them on trays laid between

the rows of vines, turns the trays from time to time, and .

finally dumps the dried contents into sweat boxes or pick- —

ing boxes. The producer grades the same for quality and.

to eliminate sub-standard and inferior raisins and some-

{fol:'164] times leaves this ta be. done for him by the packer

before the latter fakes delivery. When the producer is

. ready to deliver his raisins, he hauls thie same, or employs |

independent truckers to haul the: same, in sweat boxes or

picking boxes to the packing plant, or in some eases the

packer calls and takes delivery of the same in the vineyard. .

5. There are approximately forty packers of raisins

within the State of California, all of whom have packing

. plants and places of busitiéss located within the Zone. They

_ Make all their purchases and take all their deliveries of

. Yaisins within the State of California.-

6. All raisins sold by producers are sold to such packers

in the State of California. Sale is completed when delivery

is amade and practically all sales are cash transactions, the

_. producer receiving full payment for‘all raisins delivered

. immediately or within a ten day period. - 7 ,

| 7. When the raisins are delivered. by producers to such

packers, they are cured but have not been subjected to any

———

cleaning or other treatment. When delivered i in such sweat |

- boxes or picking boxes ‘to the packer, the raisins are. in

clusters attached te the dried stems tpon which they ma- -

tured, except such as have fallen from said stems and have

generally still attached a portion of the stem,---- -— -

& Wheni the current crop of raisins is soid and delivered

. bythe producers to the packers, the latter have on hada.

substantial carry-over of raisins from the crop of the pre- . -

ceding year of two, which they endeavor to dispose of

. before selling the current crop. This carry-over is, not held

uniformly by the packers. The bulk of‘ said carry-over is

generally held among the larger packers. The balance is -

distributed. among the smaller packers, aithough some of -

‘them carry over no inventory. The raisins received from

' . [fol. 165) the producers are stored by the packers in cou-

tainers upon the premises of the latter and are held by him

in such ewntainers for periods varying from a few days up

to two_ye:rs. The bulk. of ‘the raisins carried over for _

longer-periods-of time is carried over by the larger packers,

_. some of the smaller packers carrying over no inventory

from season to season. The packer at any time or at vari-_

ous times during this period removes the raisins from such |

containers and preparer the same for commercial sale and

distribution to the public by cleaning, stemming, cap-stem-. .

ray. ming, seeding (muscats only), grading, sorting and _pack-

aging in various sized containers. This stipulation does,

not cover the treatment of Muscat layers. | :

9. When such raisins are 89 prepared for saamneeial sale

and delivery, the packer delivers the same to. jobbers,

wholesalers, brokers, distributors, and dealers for resale

and distribution.to the public. Such raisins are ultimately

“ consumed both within and without the State of California, -

bnt 90-95% -of. the raisins consumed as raisins, and for

human consumption are ultimately consumed — of

_ the State of California. -

10. That from the time of the delivery’ of satsina by the }

producer to the packer, as set forth herein, the preparation,” - ©

‘ eate, handling, selling and distributing of sueh raisins is

. earried on by such: packer and all.subsequent purchasers —

and handlers independently’ of the producer and entirely.

free from any control or direction of such producer. That -

’ . the,:raisins of- the- <n delivered.to_any___,

rye |

att

Be Bate

| = 17

ouslber are siaiahaita ell no producer has any knowledge

of the subsequent movement or ultimate use or consumption

of the particular raisins delivered by him and has no right, |

title or ee in Ba of ae: raisins after the sale

pareteg is jiiieke on 2s the penbae ‘saanueasiaetie of the

producer of the raisins who has no knowledge nor means

of knowledge as to@he ultimate disposition of ‘his particu- -

lar. raisins or as<to whether the same ultimately move in

intra-state or. inter-state commerce, except that at times

eertain producer-packers ship some of their own production

directly into inter-state commerce.

If. That-a large percentage of the raisins produced

. within the Zone is sold and delivered to packers within

_ ninety days after the start cf the delivery season which

ranges from September 15th to September 30th. Generally

speaking, the producer of raisins is forced to sell and de,

liver his raisins during this period as soon as the raisins

have been cured in order to procure f4nds with which to:

finance his. operations ard his succeeding crops. That.

some producers contract for the sale of their raisins sev-

_ eral weeks in advance of the delivery of said raisins. That

‘the holding and storing of. raisins is usuallly done in the’

hands of the packer. That during the past ‘several years.

the producers of raisins in the State of California have sup-

plied a large surplus over and above the normal market

demand therefor, and that there has been an excessive car-

ry-over of raisins from year to year from tbe previous

crop. That as. of September -1, 1940, there was a carry-

over of* approximately 70,000 tons of raisins of the 1938

. and 1939 crops in the possession of packers in the State

of California. That for the past several years and at all

' times since the marketing program for raisins under the-

Agricultural Prorate- Act became effective’ on August: 3,

- 1937, there have been in the hands of ,packers large sup-

: plies of raisins in excess of the demand therefor and in

amounts of not less than 30,000 to 40,000 tons more than

_ sueh packers were able to sell and dispose of, and that such ©

packers liavée been at all of such times abundantly able ‘to

. {fol 167] suppply all orders and demands for raisins, both

. from within and from without the State of California. That +

of such demand approximately 5% thereof came f rom for-

18 er eo

eign “countries,. and that such foreign demand has been’ .

practically eliminated since October of 1939. That during

the past several years the Federal Government has sought

to aid and alleviate the condition of the raisin industry in

_California by supplementing the normal demand and dis-

- tribution with purchases by the Federal Surplus Commedi-

‘ ties Corporation now the. ‘Surplus Marketing Administra-

tion of approximately 102,500 tons of raisins of the 1937,

1938 and 1939 ae 00 tons of which were of the 1939

crop.

A2. That pursuant to the provisions of the’ Agricultural. :

Prorate Act a proration program for raising in said. Zone

- was instituted August 4, 1937, and continued in effect until

it was amended effective J uly. 23, 1940, by the marketing’

- program for raisins ‘as amended, as set forth in Exhibit ~

‘<A’? attached to the Answer to First Amended Complaint

herein, which program as thus amended ever since has been

and still is in force and effect.. That pursuant to the provi-

sions of said program, as set forth in said Exhibit ‘‘A’’,

atid particularly under the terms of Article III thereof, a

seasonal marketing program for raisins for 1940-1941 was .

duly and regularly adopted and approved effective Septem-

ber 7, 19407 which seasonal program is and has been ever

since said date i in force and effect in said Zone. :

13. That the essential features of said 1940 seasonal mar-

keting program for rajsins, together with the financing ar-

' rangement, are as. follows :

(a) That 20% by variety of-all standard” raisins of

the 1940 crop produced. within the Zone shall be delivered

shall be made te-producers on such raisins at the time of

delivery by such producers of $27.50. per ton for Muscat

[foi. 168} and Thompson Seedless raisins, and $25.00 per .

ton for Sultanas, to be obtained from the proceeds of a non-

_ by the producers into a surplus pool ; and an advance .

: recourse loan from Commodity Credit Corporation. _ .

(b) That 50% by variety of all such ‘‘standard”’ raisins

shall be ‘delivered into a stabilization pool; and that an

advance shall be made to producers upon such raisins at

the time -of delivery by such producers of $55.00 per ton

for Muscat and Thompson Seedless raisius, and $50.00 per

ton for Sultanas, to. be obtained from the proceeds-of said

non-recourse nen f roy Commodity Credit Corporation.

rite’ 22

= 99.

: (ce) That the balance of. such standard raisins, -to- wit:

30% of. each producer's standard raisins, may be disposed

of by him without restriction into a primary channel of ~

trade as *‘free tonnage’, provided he has obtained’ a sec-

. ondary certificate » therefor, which certificate is issued. to

him. when he-has satisfied the pool requirements and upon

payment of the certificate fee of $2.50 per ton for each ton

of the ‘‘free tonnage’’ (30%) of his. 1940 production of ee

“‘gtandard”’ raisins.)

(da) That no “Subvstandard”” or ‘*inferior’’ ai rai-

sins may: be offered as ‘‘free tonnage’’ or. delivered to the

surplus or stabilization pools, but that such raisins shall -

be delivered into separate pools for disposal by the Pro-

= gram Committee at the best prices and under the fairest 7

_ conditions obtainable for by-product purposes and that the . -

net proceeds thereof shall be distributed ratably to the pro-

ducers” contributing to such pools,

14. That Commodity Credit Corporation is a: corporation

organized pursuant-to the laws of the United States of

. America for the purpose of making loans upon agricultural

commodities thet are recommended by the Secretary of

Agriculture of the United States and approved: by the

President. of the United States. That prior to September Ss :

7, 1940; the defendants herein had been negotiating with

the officers of said Commodity Credit Corporation for the

{fol. 169] purpose of securing financial assistance for pro-—

ducers of 1940 crop raisins in the State-of California. That

subsequent to September. 7, 1940, Commodity Credit Cor- .

poration executed .a loan agreement with the-Zone,\by and

-. under the terms of which Commodity Credit Corporation

- agreed to supply the funds for making the advances to

- producers set forth in the preceding paragraph hereof.

_ _ That the existence of said Zone and the institution of eaid

raisin program and the adoption and approval and ‘opera-

tion of said seasonal marketing program constituted con-

_ ditions preeedent upon-which such loan ‘was-made. That \

said lean Agreement ever since has been and now is in full - ©

- force and effect and has been performed by the parties

thereto with certain minor modifi¢ations which have been .

made in said agreement relating to the mechanical details —

of operation,’ and which details the parties hereto do not

consider of-any, materiality to the issues in this case. That .

'* modity Credit Corporation the raisins sa delivered by him :

‘: upon raisins delivered to the other pool.

it-was a condition of said loan agreement that each indi-

vidual producer delivering raisins to the surptus and sta-

bilization pools and desiring to avail himself of the non- °

recourse loans provided by said agreement, should be re-

-_quired to exectte in writing a producers’ consent to pledge,

by and under-the terms of which the producer authorized ~

the Zone and the Program Committee. to pledge to Com-° .

as collateral for said loans; the raisins delivered to one pool,

' however, not being pledged as collateral for any loan sate

15, That pursuant to the provisions of ‘fre Ageedtarel -

. Prorate Act and in accordance with the terms of the Raisin

Program set forth in Exhibit ‘‘A’’ of the Answer to First

' Amended Complaint, and particularly Article X thereof,

the Program Committee duly established and declared.

_ effective the grades and rules and regulations. governing

‘the same. for ‘‘standard’’ raisins; which ‘same became

effective September 10, 1940. and ever since have been and »

{fol. i170] now are.in force and effect. This in conjunction .

with the definitions in Artide I of the Progtam set forth in:

‘ said Exhibit ‘‘A’” fixes the quality and grades for ‘‘stand-

‘ ard’’, ‘‘sub-standard”’ and ‘‘inferior’’ raisins of ‘the 1940

—_ 5 SKS:

”. 16. .That plaintiff i is and has been i a sections of raisins in.

said Zone } prior to and ever since the institution of a prora-

tion-program for raisins th rein on August 4, 1937. t

‘as such a- producer of raisins plaintiff has dealt with the

defendant Raisin: Proration Zone No. 1, and voluntarily

participated in said ‘program during the 1938 crop season

year and applied for and received and accepted primary -

‘and. secondary certificates for his raisins for such crop

- -yéar. That during the year 1958, he Was ‘a producer only

of raisins, but iri the year 1939, he became a packer and

since then has been and now is both a producer and packer

. of raisins. That no seasonal program for raisins was

adopted for. the crop year 1939, and no restrictions for said

crop year were made under said program. . That for the crop

year 1940, the plaintiff did not apply — nor receivetiny pri-

- mary-or secondary certificates for-his raisins and has re-

fused to apply for the ‘same, and has not. participated in

said 1940 sensonal”: program in any: manner whatsoever.

"That the 1938 seasonal marketing program for raisins dif-

fered from the 1940 seasonal program in that the 193% sea-

sonal program did not have a stabilization. pool require-

ment, and had a 20% Surplus pool the saine Aas the _

-_seasonal-program. eT

-17.. That’ up to and including ‘Maret. 14, 1941, tiers had 3

: been delivered to the Surplus and Stabilization pools pur-

suant to the terms of said 1940 seasonal program for raisins:

an aggregate of 108,836 tous; of which 102,546 tons were of

‘the Thompson Seedless variety, 4,948 tons. of the Muscat

-variety and 1,542 tons of the Sultana variety. That of said

ffol. 171] total tonnage 31,096 tons were delivered to the

- Surpl tons were delivered to the Stabili-

zation, pool. ‘That said raisins were delivered hed approzi-

mately 7,100. individual producers.

18. That pursuant to the terms of the 1940 raisin joan

agreement with Coiiinodity Credit Corporation there is —

available to producers upon thé tonnage 80 delivered and

covered by authorizations to pledge, an’ aggregate ‘non-

recourse loan of $5,211,000.00, That as of March .14, 1941,

‘ $5,098,000.00 (aniounting to 99.98%) had been actually die- :

bursed to the producers delivering said tonnage, and’.that.

_ the balance was in. process of being paid.

_. 19. That as of March 14, 1941, the tetal deliveries of

_ raisins into the two pools with the corresponding free ton-

nage of 46,644 tons, totals 155,480 tons. That a éstimate . .

for the total 1940 crop is 158,000 tons.

20, That as of the 28th day of: March, 1941, aidhies had

purchased from the Stabilization pool 49,455 tons of Thomp-.

-* gon Seedless raisins, 1,100 tons of Sultana raisins and 3,075

_. tons of Muscat raisins, being-approximately 70%: of the

total tonnage age delivéred into said Stabilization pool, That

said packers purchased said raisins at a price of $60.00 per

_ ton for Thompson Seedless raisins, , $62.50 per ton for Mus-

cat raisins. and $55.00 per ton for, Sultana raisins. =

It is hereby stipulated that the foregoing, shall for the

purposes of this case, be accepted and considered asa true -

and correet statement of the facts set forth herein, subject

to the objections of any party hereto as to any portion or |

portions thereof as to the materiality, relevancy, and com-

’. petency, arid provided that any of ‘the parties hereto may . .

augment or otherwise introduce evidence in addition thereto,

-but not contrary or contradictory to any of such facts.

Nothing herein shall preclude the Court from exercising its —

[fols. 172-173] views as respects to indicia knowietige.

Dated: April 10, 1941. ¥

Irvine P. Aten, Richard V. Aten, G. Fe Ayneswerth, ‘

Attorneys for Plaintiff. Egrl Warren, Attorney

General of the State of California; by Walter. L.

Bowers, M., Deputy, Strother P. Walton, Attorneys

tor defendants. 3 Fa | ae sane

{fol 174] | (Hiadéeeads ) Filed Oct. 16, 1941. R. S. Zimmer. i

man, oes _By R. B. Cliten, Deputy Clerk.

Copy - : we

as al

State of California, Legal Department |

i Bae _ September 17: 1941.

Honorable ‘Albert Lee Stephens, ‘United States Circuit ;

- Judge; Honorable Campbell E. Beaumont, and Honor-.

‘able: ‘Leon. R. “Yankwich, United States Peres -

Re: No. >. 78—Brown v vs. . Parker.

. Gentiemen :

‘We have, received are a OEE TE in the ew. a

2 entitled. case from the court relative to the proposed Find-

ings of Fact and Conclusions of Law. “Using the plaintiff's

proposed. Findings. as a basis, the gps: has indicated cer-

thin changes therein.

It is our belief that the Findings and iglateas | as thus

_ _ modified still fall short of correctly and fully setting forth

the material facts. "We submit for your consideration the

‘following proposed additional changes:

1. Finding I, page 3; lines 12-19 reads as-follows :

; “That the plaintiff on September 7, 1940, had orders for —

_ the delivery of sun-dried raisins produced i in said zone in.

_ [fol. 175] the year.1940 which he could not fill withouf com-

plying with the seasonal program for raisins hereinafter

, — to, and that defendants ee said program -

have directly ‘interfered With and obstrusted plaintiff’s .

' said business and thereby damaged the ‘plainfiff in a sum —

ik excess of $3,000.00 - exclusive of. interest and costs,. .

* @ or

Finding I 1X, as changed, page 9, nes 12 17 reads as fol

Jows:

. “That sladotitt on September i, 1941, (Wovinesis: should ©.

- . be 1940) had substantial orders: for out of state delivery of

- . raisins which he could not fill by purchase of ‘free tonnage’.

- and could not fiil at all because of said pools without com-

plying with said program; that defendants ‘in enforeing

- said program have directly interfered with and obstructed

’ plaintiff’s said business.-* * *’?

-- [fol. 176] The two provisions above ‘quoted are obviously —

_. toa considerable extent. repetitive and seemingly can servé .

_.only for the purpose of unduly emphasizing certain of the

' statements contained therein. In addition, the two’ 'pro-

visions are confusing in that in Finding I, the statement

‘is that’ plaintiff had orders for delivery which he could”.

not’ fill ‘without complying with the’ seasonal program;

whereas, in Finding [X-the statement is that he had orders

for out of state delivery which he could not fill by purchase.

of ‘‘free tonnage’’ and could not fill at all because of said —

; pools. In connection with this latter Finding, we also

. again call attention to the fact that_all of the’ orders. in-

troduged by plaintiff called for. delivery within the state

and to-the best of our belief there was 1i0 evidence whatso-

ever of any orders calling for out of state delivery.

.- Furthermore, we believe that the’ Finding that plaintiff

had orders which he could not fill by purchase of ‘‘free

tonjage”’ raisins is directly contrary to the evidence. Plain-

tiff testified that there were 20,000 tons sold by the -pro-

, + ducers of the 1940 crop in September, 1940, either prior to

_ _ [fol. 177] or subsequent to September 7 (Rep. Tr. p. 51,

: lines 16-25.) ‘ The true answer appears to be from his

testimony that he was unable to buy them because of thie

fact “cond ah e refused to pay the market price but offered

less than that. (Rep. Tr. p. 53, lines 4-12; p. 56, lines 14-20:)

‘ We-feel- that the correct Finding on this would be ‘as set out

in our proposed Finding XVI as follows: \

_- ‘That. plaintiff en September 7, 1940, had cubotantial .

orders’ for delivery of raisins which he could not fill without

. ae : 2 ‘ .

» . *-

“ 5 ~ .

- 5 5 . . °

; , . ° aes

= ‘ - - "

. . ~

! , ’ . ° .

' ; 4s ; :

{ . .

; ry . 3 OF. ° > 2

complying with said seasonal program and without paying

therefor the prevediing” meray price.”’

Finding. I also contains the statement on page 3, ‘lines

18 and 19, as follows: : .

**And thereby damaged the plaintiff in a sum in “excess

of $3,000.00, exclusive of interest and costs. ® ° °”

“This j is not. in response to any issue in this case. There.

vis a. specific Finding of irreparable damage: upon which

to base the injunction and also a Finding that the matter

in com cOverEy once the sum of $3,000.00. The -only.

[fol 178] e effect of the foregoing statement in.

these Findings weuld be to serve as a persuasive argument

upon another court in an action for damages that this .

court had already established the’ fact that plaintiff had

sustained damages i in excess of $3, 000.00.

. Finding III, as changed by the ‘esiniiniiaiathiict of the .

eourt in adding at. the foot thereof the following :

“That said seasonal stiasen is correetly set out in an-

‘ swer to the’ first amended complaint: on file herein as Ex-

hibit A thereof.”’ - ; -)

’- is incorrect and apparently. the Finding tails ts recognize the-

distinetion. between the basj¢ proration program and the

seasonal proration program., The basic proration program, ©

as amended effective July 23, 1940, is the one set out as

Exhibit ‘‘A’’ of the answer to the. first amended complaint,

and continueé in effect until terminated or otherwise

changed or modified. The seasonal proration program es

-- for the season of 1940-1941, and is. adopted | in accordance,

with the provisions of the basic proration program and in

‘this ‘instance became effective i peat 7, 1940, and the

essential features of such seasonal program are set forth -

in Finding TV..

[fol. 179] We believe that if the court will examine de-

fendants’ proposed Finding ITI, it will be found that this

correctly and accurately sets forth the institution and the |

_ effective date and the differentiation between these two’ *.

"programs; and it will be further found that our Finding.

III follows the Stipulation of Facts as’ set forth in Para- —

graph 12 thereof on page 6, and we therefore feel that our

Finding Il should be substituted for the proposed Finding

III of the piaintiff as modified by the memorandum of the

court.

3, In connection with Finding IV,” we, . aa the. attention |

- of the court to Paragraph 4 _of our letter of September 8,

1941, relative.to these Findings. Pages 6 and 7 of: plain-

tiff’s proposed Finding quoting from certain provisions of

the basic program set forth as Exhibit ‘‘A’’ in the answer

is surplusagc and merely serves to burden the record, un-

_ less the. purpose thereof be to restrict the. injunction as

against the enforcement of these specific provisions of the

_. program..

4. Finding V contains, the: auhimneiah that 95% of the.

naturally dried raisins consumed in the United States are

. produced in said zone and that 95% of such raisins produced

{fol. 180] in said zone are consuméd outside the State’ of

California. This Finding follows the language-of~Para-

graph V of the first amended complaint, and these allega-

tions are specifically,denied by Paragravh V of the answer

to such first amended gomplaint. As far as our search of

the record shows, there is not one iota of evidence in sup-

port. of this first statement that 95% of the naturally dried

‘raisins cohsuimed in the United States are produced in said

zone.- The record seems to be completely devoid of any

evidence of any kind upon this allegation.

In regard to the statement that 95% ‘of the raisins pro: -

‘duced in said zone are consumed outside the State of Cali-

fornia; the only evidence upon this appears to be the at- .

tempt to introduce a letter from the Giannini Foundation - .

- stating ‘‘that about 95% of the California raisins are .

_. shipped out of,the State for consumption.’’ The court at the’

time indicated that this matter was covered by the Stipu-

lation of Facts and objection was made te the introduc-

- tion of this letter. It was marked Exhibit 4. Upon our

objection it was allowed for identification only and was

never received in’ evidence. (Rep. Tr. P. 15, line 2 to p. 16,

[fol. 181] line 9.) -

‘As indicated by the court at the time, this was covered.

is by the ‘Stipalation of Facts, Paragraph 9, pep 4, lines

18-22, reading as follows: °

‘Such raisins are ultimately caneunied both within and

without the State of California, but 90-95% of the en

: . 26 . 4

consumed as raisins, and for human consumption are ulti-

mately: consumed outside of the State of California.’

This was cov ered i in defendants’ proposed Finding XII,

. page 10, lines 24-27; We do not believe that there. is any

valid ground for ote dat from the language of the Stipn-.

lation of Facts in making this Finding, and in‘this connec-

- tion wé would urge that our Finding XII. be substituted i in

entirety for the plaintiff's proposed Finding V.

5. We again earnesly urge our objections to plaintiff's

proposed Finding VI. . Presumably one of the most ma-

terial issues in this proceeding i is the exact manner in which

the raisins are handled from their incipiency. until they are

ultimately eqnsumed. Accordingly, we ‘believe that de-

fendants are entitled to a Finding full and accurate.on this:

{fl. 182] matter. The Stipulation of Facts contains a de-

tailed statement covering this in its entirety. Finding VII,

however; entirely ignores the. Stipulation of Facts and is .

not supported by any other evidence. We believe that the

only evidence touching this subject outside of the Stipula- |

tion of Facts is that given by Mr. Chaddock, ‘page 152, line

13. te page 153, line 4 of the Transcript. This, however,

was confined entirely to Muscat. layers which constitute

less than 10% of the raisins produced. Finding VII, how-

ever takes this statement ‘made regarding Muscat layers

only and applies it to all raisins and eliminates the state-

ment used in the Stipulation of Facts. .We urge that

defendants’ ‘proposed Finding X which follows the language

of Paragraph 4, page 2 of the Stipulation of Facts, should °

_be substituted for plaintiff's proposed Finding Vil. |

Finding - VII contains. the further statement that the

grapes wher thus dried inthe vineyard are ‘ta wholeseme .

food and sound article of commerce.’’ We maintain that

this Finding is entirely contrary to the facts and that there

is not the slightest bit of evidence ‘to support the same.

It may be that they are edible but all one has to do is to -

{fol. 183] look at defendants’ Exhibits ‘‘B”’ aud ‘*C”’ shaw-

ing the amount of dirt, chaff, sand, stems and waste re-

moved from the rajsins as they come from the vineyard |

before they are delivered to ariy purchaser, for actual con- .

sumption, to become convinced beyond jeradventure of a_

doubt that.in the condition when taken ‘f rom the vineyard

they are anything but a ‘‘wholesome food.’’, Of ‘course, a

load of the sand atid-dirt removed from the raisins might in

_. itself be a sound article of commerce. The fact remains that .

the raisins as taken from the vineyard are a raw product

and never move in interstate commerce until they have been

wonverted by processing or whatever term may be used into —

‘ a finished product. Paragraph 7, page 3 of the Stipulation

of Facts, states that: ‘‘ When received by the packer in such

condition, the raisins are not the subject of. trade or com-

merce except in the transaction between the producer and

packer as hereinabove described, and in occasional sales

from one packer|to another.’’ ‘The testimony of Mr. Hines

is that the raisips as taken from the viney ‘ard are never

sold to the tradd or to consumers and néver shipped any-

where nor put into the movement ‘of interstate commerce.

st | Transcript p. 129, line 20 to p. 130, line 17.) The same

witness stated that ‘such ‘ raisins ‘‘are not fit for commercial

(fol. 184] use until they have been stemmed and cleaned. ”

(Rep. Tr. p. 132, lines 13, 14.)

To find that the raisins in this‘condition are a whole-

- some food’’ carries the connotation that it is a marketable

article in that.condition and ready to be sold and ¢onsumed

in the ordinary course of trade ‘and commerce. The fol-

_ lowing colloquy . from the. record is eloquent of the fact

that this is directly ‘contrary to the actual. facts (Rep. Tr.

p. 120, lines 2-18) :

‘‘Judge Stephens: Mr. Peter orth, the witness: has said

‘ the same function is performed. That is the important «

thing; rather than the machinery that does it. Do you

contend that a raisin can properly be produced for ‘the

_ market with any of these functions left out? -

| “*Mr..Aynesworth: I will state this, and I hallows this.

| _ is corrget: that they are marketing raisins:all the time, that

go into interstate commerce, without using anywhere near

. all the elements that the witness has testified to.

| . “‘*Judge Stephens: -It might all be done by hand, but the

[fol. 184} fynction would still be thére. In other words, »

they do have to be graded and washed——

“Mr. Aynesworth: And stemmed. ;

: 2 | udge Stephens: And stemmed:

: “Mr. Aynesworth: And packed. — -

‘Judge Stephens: The sand has to be. sifted away fr om

them; they have to go through the fumigator, and so forth.’

_-Instead of plaintiff's Finding VII which in itself and"

- _ alone gives an entirely incorrect and erroneous impression, —

we feel that defendants’ proposed Findings. X and XT.

should be substituted which foHow the actual facts and the

language of the Stipulation of Facts as agreed to by the

parties; = =... Se at te

6, What has been said relative te plaintiff's proposed

Finding VII is applicable to his proposed Findings VIII

. und IX. Such Findings set out only a portion of the facts

relative to thé handling of the raisins. Defendants’ pro-:

posed Findings X, XI, XIU and XIII set this forth fully.

and with exactitude following the language of the Stipula-

tion of Facts. As all of these steps may. have’ an important

bearing upon-the determination of the question of whether:

[fol. 186] this is in ‘violation of the interstate commerce

clause of the: Federal Constitution, we believe that such

Findings as proposed by defendants are proper and should’

be adopted. Fite j ee he nner ais

_ In addition, what we haye said previously in commenting

on plaintiff’s proposed Finding I is applicable to his pro- .

posed. Finding IX which contains substantially similar lan- —

guage. We again call attention to the fact that this Finding

makes the statement that plaintiff had substantial orders for

‘‘out of state delivery of raisins’? which we contend is di-

rectly contrary:to the facts. Referring to the contracts in.

question, plaintiff’s Exhibits 1, 3, 4, 8 and 9; it-:will be seen -

thaf they do not call for delivery out of the state, but within

the state of California. . The Stipulation covers the facts

that from 90-95% of such raisins consumed as raisins for

human consumption ultimately move out of the State of Cali-

fornia.. As a matter of fact, the plaintiff could not even tes-

tify that any of ‘his raisins were to be shipped out of the state. |.

In response to questions by Judge Stephens, he testified that .

he had no understanding-with any ofthe parties: to such

contracts that they’ would ship the raisins out ofthe State

[fol. 187] and that-he did nof y particularly care whether they

_Wers shipped out of not.‘ (Rep. Tr. p40, line 21 to p. 41,.

line 1.) It was stipulated that these ‘raisins presumably

took the same course as the averagé of all of the raisins -

and that under the Stipulation of Facts from 90-95% of

the same eonsumed for human consumption would ulti-

mately be shipped out of. the State ‘of California. Such.

_ + however, is a far-ery from a Finding that the plaintiff had .

direct orders for cut of state delivery. —

7. Plaintiff’s proposed Findings XI and XII use the

words ‘‘said-program’’. To -avoid any question of: un-

' certainty and to bring it within the issues of the pleadings -_

_ the word ‘‘seasonal’’ should be inserted in each Finding .. -,

just before the word ‘‘ program,’ te

- & We request that defendants’ proposed Finding VI be

adopted ‘inasmuch as it is a copy of Paragraph 15 of the . :

Stipulation of Facts and we consider it essential for the |

. purpose of showing the establishment of the grading pro- .—

_ visions. Se Aes Toa. ,

9. We request that defendants’ proposed Finding XIV be

adopted. This follows exactly the language of Paragraph -

11 of the Stipulation of Facts beginning with line 18 thereof

{fol. 188] on page 5. We consider that the same is material

as showing that at all tines there was on hand-in the State :

of California imthe hands of the packers an abundance of.

raisins from which all requirements of interstate commerce

were and could be filled and that in fact there was an excess ©

surplus carried at all -times. |

10. In plaintiff's proposed Conclusion III, we believe

that the word ‘‘seasonal’’ should be inserted before the .

word “program” in line 22, page 10, for the same reasons

_ 48 above stated in inserting the same word in Findings |

XIland XT.” ee yoo ee

: As said Conclusion III is drawn it restrains the enforceé-.,

meut of the entire seasonal program. If this is the intent

‘of the éourt, there is of course nothing to be said on our

part, but it was our understanding that the court intended —

to restrict only certain’ provisions of the program and

eee it Was not intended to restrain the enforce- _-

- ‘Ment of the grading provision. as

_ We submit the foregoing to the court for its considera-

tion in accordance with its letter of September 16, 1941,

transmitting the memorandum in regard to the proposed

Findings. oes pepe ‘i

Respectfully submitted, Walter L. Bowers, Deputy-

Attorney Genera). , ; SET

WLB-GR, See este, : aes

os ae ARON SARE RS

ill 188-1] Ix: Disrricr Court or THe -Untrep States.

‘FoR THE SOUTHERN seureneg: or Ca.irornia NorTHERN

Division

: Ne. 78 Civil

aaa Porter L. Brown, Plaintiff,

e¢ ae TERE, .

we vs.

oe * B. Parken Director of Anviniibas AcuicutturaL Pro-

‘ RATE “ADVISORY- - Commission, Ratstn Proration Zone #1,

Prégram Committee, W. B. Parker, Ira Redfern, Lyman

Lantze, James Langford, Mark G. Johnson, C. M. Brown,

Wm. F. Darsie, Dr. Dean MeHenry, Preston McKiniey,

’ H. C. Anderson, A. K. Kelly, Renald Mastrofini, Alex

‘Berg, Mesrob Mirigian, Melchior Hansen, A. L. David:

son, W. J. Cecil, J. C. Harlan, One Doe, Two Doe, Three

Doe, Four Doe, Five Doe, Six Doe, —_— Doe and -

Kight Doe, Deferidants pe ) ———

OPINION

ET Before Albert Lee Stephens, Cireuit Judge; Laois R. Yank-

. wich and Campbell sa oe District Judges —

STEPHENS, Cireuit J udge:

The plaintiff, who is'a packer ot raisins in - State of .

‘California, instituted this action-to restrain the enforcement

of a prorate. progtam for raisins prescribed under the

-[fol. 188-2] authority of the California Agricultural Pro--

-yate-Act (Chap..754, Cal. Stats..1933) as amended, herein-

after called the Act.:He has ‘alleged and we hold that he

has. proved ‘that the issues involve a sumi in excess of |

_ $3,000.00, in that the State of California is attempting to —

enforce the provisions of the Act and is claiming penalties .

: ~ fn the amount of $13,000.00 against the plaintiff.

it is plaintiff ’s position that the program formulated

under -the “Act is unconstitutional in that it prevents his -

purchase in open market for shipment in interstate com-

meree and that it constitutes a direct interference with in-

terstate commerce in contravention of the provisions of the .

‘Federal Constitution. -

The defendant Proration Zone No. 1 filed a cross com- -

plaint. praying that the Act and program thereunder be—

declared § a valid exercise of the police — of the State

i... PAF REBAR E Ee RB NL AE Tah ITD NF REL PE APES TEL TES AES ARTE, IN

‘ °

31 .

of California, that the plaintiff be enjoined from refusing

to comply therewith, and for an accounting and damages

for his failure to comply in the past:

The case was tried before United States Circuit. J ndge .

' Albert Lee Stephens and United States District Judges -

. Leon R.. Yankwich and Campbell E. Beaumont, sitting as

a ‘‘three judge court’’ under the authority of 28 U. S.C. A.

Sec. 380, and was submitted upon the question of the con-

stitutionality of. the program set up under the Act.' .

{fol. 188-3] The raisin industry is an important ‘one in

California. It is uncontroverted that 95% of the naturally —

_ dried raisins consumed in the United States are produced

in said Zone, No. 1,7 and 95% of such. raisins produced in

said zone are consumed outside the State of California. -

The stipulation of facts‘filed by the parties shows the fol-

lowing with reference to- the customary. manner-in which - -

the producers of raisin -grapes in. California, ‘including

Zone No. 1, operate:

“The producer ‘of grapes is generally either the owner

_or the lessee of the land.upon which the grapevines are ©

located. * * ° The producer picks the bupches of —

grapes to be utilized for raisins and spreads them on trays

. laid-between the rows of vines, turns the trays frem time to

time, and finally dumps the dried contents.into sweat boxes

’ or ‘picking boxes. The producer grades the same for

quality and to eliminate substandard and, inferior raisins

* and sometimes leaves this to be done for him by the packer

before the latter takes delivery: When. the producer: is.

ready to deliver his raisins, he hauls the same, or employs

independent: truckers to hau! the he same, in sweat boxes or

picking boxes to the packifig ‘plant, or in some cases the’

packer calls and takes delivery of the same in the vineyard. |

— = All raisins sold’ by producers ate sold to such

We Sos carefully considered the very recent case of

Railroad Commission of Texas et al. v. The Pullman Co., et:

ak, 61 S. Ct. 643, 85 L. Ed. (March 8, 1941) and have con-

| eluded that the principles’ therein treated do not apply to

~ the j issues of the instant case.

* Zone No. 1 was established pacsoant to proceedings te

initiated under the Act, and includes an area composed of

San Joaquin, Stanislaus, Merced, Madera, Fresno, Tulare,

Kings and Kern Counties i in the,State of California.

e td

; edie’ in the Stas of California: Sale i is s completed shin

deiivery is made and practically all sales are cash transac: .

{fol. 188-4] tion, the producer receiving full paynient for

_ all raisins delivered immediately or within a ten day period. . |

‘‘When the raisins are delivered by producers to such -

_ packers, they are cured but have not been: subjected to any

‘éleazing or other treatment. When delivered in such sweat

boxes or picking boxes to the packer, the raisins are in

‘clusters: attached to the dried stems upon which they ma- _

tured, exeept such as have fallen from said stems and have

generally still attached a portion of the stem. * * *°

_ “The raisins receivetl from the producers are stored by

-the packers in containers upon the premises of the latter

and are held by him (sic) in such. containers for periods

varying from a few days up to two years. * * * The

packer at any time or at various times during this period

removes the raisins from such containers and prepares the - —

same for commercial sale and distribution to the public by -

cleaning, steruming , cap-stemming, seeding (muscats only), —

grading, sorting ‘and amas tek in various sized: containers.

OW tien auch, raisins are.so prepared for. cimniaveeia! sate

and dvlivety,. ‘the ‘packer delivers the same to jobbers,

+ wholesalers, brokers, distributors, and dealers for resale

and distribution to the public. |

- to the packer, as set ferth herém, the preparation, care,

handling, selling aiid distributing of such raisins is carried

- [fol. 188-5] on by such packer and all subsequent pur-

chasers and handlers independently of~the producer and .

’ entirely free from any control or direction of :such pro-

ducer. *e* “ No producer has any knowledge of -the |

‘subsequent: movement or ultimate. use or consumption of

the particular raisins delivered by him and has no. right,

title or interest in any of auch raisins-after.the sale and de--

livery by him to the packer. This procedure is carried —

on by the packer independently of the producer of the ”

raisins who has no knowledge nor. means of knowledge as-—

to the ultimate disposition of his particular raisins or as

tu whether the same ultimately move in intrastate or inter-

state cominerce, except that at times certain producer-

packers ship some of papel own production — _

- interstate commerce.’

e 33

Tt will thus be seen that without any prorate provisions

-in-the law, the plaintiff as a packer-dealer would be free

to buy and would ordinarily buy the raisins which he boxes

and sells in interstate commerce direct from the producer

thereof and in amounts limited only by his desire or abiljty.

Under the Act after a prorate program has been formu-

lated and approved by the co ission,® the agent appointed |

to administer the progrém shail issue to the. producers

certificates as provided i the Act. These certificates are —

divided into primary and secondary certificates. Bach ‘pro-

ducer shall be entitled to one primary certificate which

identifies him as a ‘‘producer”’ under the terms of the Act.

(fol. 188-6] The Act, Sec. 20, as atnended, Statutes 1939,

p. 1948, provides that ‘‘secondary certificates shall be num-

bered consecutively and shall be used to control the time and

' Volume of Aarvesting. or other preparation for disposal.

Such secondary certificates shall accompany all deliveries

of the prorated comimodity by producers into a primary

trade channel’’,‘ and it shall be unlawfal for any prorated

commodity to. be delivered into a. primary trade channel

without the necessary secondary ggrtificate therefor. It .

_ is also unlawful for any handler to receive or have in his

' posséssion without proper authority any such commodity.

The Act contains a further provision that, ‘in the case of

. commedities which are normally concentrated for prepara- -

tien for market, the program committee may authorize

harvesting of the entire erop for the purpose of delivery |

to a concentration point and subsequent marketing control. ”

The program formulated under the Act provides that

3 20%. of all “*standard’’® raisins shall be - delivered® into

' * The Act creates an Agricaitared Prorate Advisory Com- 7

. mission, and sets up. procedure for the formulation of an

Agricultural prorate marketing program.

‘**Primary channel ef trade’’ is defined by .the Act to.

_ mean “that transaction in which the producer‘or his co-

apérative marketing association loses physical possession

_ Of the commodity through the sale thereof or other ‘disposi-

_ tion commercially.”’ St. 1935; p. 1527, See. 2(j).°

- * “Standard raisins’’ is defined by: the Program to mean

“raisins of a quality or grade which is equal to, or better

_ than, the quality or gradefor standard raisins as deter-

mined by the Committee aw ee

$9886

[fol. 188.7] a surplus neit® the producers to be given an

advance of $27.50 per ton for Muscat and Thompson Seed-

less raisins, and $25.00 per ton for Sultanas, the advance

- to be obtained from.the proceeds of a non-recourse loan

' from the Commodity Credit Corporation, a federal agency.

Fifty percent of all standard raisins are to be delivered

into a stabilization pool, the ptoducers to receive an advance :

_ from the Commodity Credit Corporation funds of $55.00

_ per ton for Muscat and Thompsor. Seedless raisins, and -

$50.00 per tow for Sultanas. ~

The balance of 30% of standard raisins may be dimposed

of: by the producer without restriction as ‘‘free jtonnage’’

provided he has-obtained a secondary certificate, Which cer-

tifieate is issued ta him when he has satisfied the pool te-

' quirements and upon payment of a certificate fee of $2.50

per ton of such. free tonnage.

It is provided that no substandard or inferior * grade of -

[ fol. 188-8] raisins may’ be offered.as free tonnage or de-

- livered into surplus or mepenentee pools, but such raisins

- are delivered ii Oo) Ssepare pools Lor <lisposal Dy the pfro-

oe gram committee at the heat prices obtainable and under the -

fairest. conditions wbtainable for by-product purposes. The

- net proceeds are dis ributed ratably to the producers con-

_ tributing to such pool.

Raisins in the surplud poo] may be sold by the committee Bs

_‘*as soon ag practicable yfter delivery of the same to the

committee ~ * * provided, however, that none of the ‘

standard raisins in such poo) \shall be sold or otherwise dis:

posed of prec.‘ January l\of tHe marketing season in |

* The program provides fora % sterthination sinhiasathy of

the marketing policy for the marketing ‘scason and for the. ~

salable, stabilization and d surplus percentages to be applied.

The stipulation of facts filed herein sbates the percentages.

given herein to be the essential features af the: 1940 seasonal:

marketing program for raisins.

ie: *“Sub-standard raisins” is defined by

the United States of America, 21 U. 8. C. A, sec. 1,)

as now in’ force or as hereafter amended. pe

»%

which such pool is established’’. “The Committee deter- —

mines the priées at which the raisins shall be sold, but it -

is provided in the program that sales of surplus pool rai-"

sins shall be pnly for assured by-product and other diver:

sion purposes, and that they shall not be sold into normal —

marketing charinels.* There is a provision for transfer of

_ raisins from the surplus pool into the stabilization poel in {

_ the event the original estimates were not in. accord with

. later found facts and it later appears that-an excessive

- quantity of raisins has been placed in the surplus pool.

__ As to the raisins in the stabilization pool, the program

-. - provides that they. shall be sold by the committee ‘‘as soon

as practicable after delivery of same to the committee, *.* *

.. markets and to dispose of such raisins’. No sales of rai-

. sins from, the stabilization pool shall be made at less than

* the prevailing market price for raisins of the same variety ;

_ and grade on ‘the date of sale. Stabilization pool raisins |

. shall be sold only into normal marketing channels.—Tiore—

: {fol. 188-9] in guch manner as to maintain. stability i in the .

is a provision for transfer of raisins from the stabilization

pool into the surplus pool in the event of au error. in the

original estimates of carry-over, etc. -In the disposal of

-.. stabilization pool raisins ‘‘effort shall be made*by the com-

_ «mittee to effectuate sales in. such fashion that the quantity

of such. stabilization pool raisins sold from time to time

shall be coordinated as closely as possible with market

demands therefor.”’ (quotation froni Program.). -

‘The producers of the raisins have a limited equitable i in-

terest in the raisins in the surplus and stabilization pools,

calculated upon.a pro-rata basis in accordance with the

tonnage of each such producer, with adequate and proper

differentials for variety and grade, and less deductions for |

advances made by the committee to such producer: _

_ It will be seen that-with the Act and program thereunder

in operation, the plaintiff as packer who contracts for |

delivery of a very. large percentage of the raisins he handles:

directly into interstate commerce, cannot freely purchase

raisins directly from the producer, for, except.as to the

{fol. 188-10] ‘free torinage’’ raisins, he must make his

purchase from the Zone representatives _— restrictions

_*“Normal hiarketing channels’ is defined to mean ‘those

‘merchandising channels through which handlers eustom-

arily dispose . raisins for, human c: nsumption. ais raisins,’

herein ee A eatat wedi as to the 30% ties tonnage he must,

- «make his purchases only when the raisins are aecompanied

: by’ the secondary certificate showing: full compliance we,

~the pr ogram, —. *

'. There is in. evidence a copy of the ° ‘Stabilization ‘Poot.

Sales Policy’’*set up by the Zone Agent, which recites thai

_:_ the Program Committee reserves the. right to determine

~ ‘the eligibility of packers to pirchase stabilization pool rai-

sins, and that ia order to $e eligible to ‘purchase / raisitis -

ie im the coramittee a sv must be completely current ~

Nig in’ respect to payment g {/secondary proration certificate

- fees. Another. item takéh into consideration i in the deter- -

mination ‘of eligibility Mo ‘purchase raisins is whether or

not thére has beer complete proration of all raisins in the - .

_ packer’s possession - or: on his premises. ye pee

It comes to this, that the plaintiff cannot, Without violat- ~

ing thé provisions. of ‘the program, purchase any raisins

for his interstate or intrastate business ‘from -a grower

.who does not have the certiftcate showing his full compli- °

nee with the program, and the evidence is clear thay plain-

tiff took orders for out-of-state delivery wh’ch he could ‘

‘not fill by purchase of so-called. ‘‘free tonnage’’ raisins

and ‘could jot fill at all’ because of the program pool with-.

out complying with the .program.. Nor can he under the...

; regulations prescribed | by the. Program Committeé pur: .

7 Chase aay raisins. deposited in the stabilization pool if -he

7‘ © {iok 188-11] has on his premises ‘or in hie possession any

_ -Taisins that are-not accompanied by the certificate showing

Pree tiee 7 provetion by the grower thereof; aia

* Plaintiff in_support of his po ition that the. prograni 4

Tormplated under the Act is’ ‘pstitutional as a direct...

_' > interfer&uce -with his ‘shippiyg raisins in interstate com-

" ** .. merce, cites: ‘the case of—Matual Orange (Distributors v.~'/

Agrizultural Prorate Comimission—of-the -State of Cali- /°

fornia, D. C.,35-Fed. Supp..108, recently decided by a three’ a

judge eotirt:sitting nm this District, but. with- different’ Dis-

ot Lo telat Jadges sitting with the Circuit Judge, ‘and‘defendants” _-

_ 2’ \ gegk to distingniah. the tase on the facts. ; - Notwithstanding 12

3 ‘jts title this” cited has ‘nothing to do with‘oranges, but -

Sore 7 is concerned solely -with the prorate:program for ria ;

z ing of lemons. 'This case will be referred to reed. e ‘‘lesnon

ms _ praraie case’’, We are of the.opinion tha‘ hstanding’.

ne Faotnal differenses in. the two cases, ‘each of them’ brings rad i

$ | yerr sim: iar. aoe: bases upan the issues; | a pS

noe

: SON, led

. . /

Y- . t y wer -

. : BEM SS ot) EN Jette TO ‘

tom z ; eS on ee Bias

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: | . ° * ’ ipa ce . P : 37

| : : Defendants point of alleged distinction’ seems to be that

he lemon :prorate case the prohibition was on. the pro-

ducers of lemons sellizig their, product in interstate com-

ae prce without the secondary/certificates provided for in |

theAct, The lemon proration progranr prorated among.

all growers in the State the lemons which could be marketed

in primary trade channels. ‘The custom of lemon growers

was fo. sell Direct to the trade out of fhe state. In the

{fol.:188-12] instant case the custom of the trade is for the

producer of raisin™grapes ‘to sell ‘the cured raisins to

packers within the statt and the packers in turn sell to |

‘ jobbers and wholesalers for istribution to the cofisuming -

“public.” The prohibition is on argh AA from selling, and .

- the packer from buying raisins on whitha secondary ¢cer- -

tificate has not been issued. The argument is that this is

an intrastate transaction, arid therefore the ‘program at-..

taches before the raisins have’ entered interstaté ¢ nmsrée, -

and that it cannot be said that the program tofistitutes a

direct interference with interstate commerce.’

Championing the cofstitutionality of the: program the

defendants ‘invoke. the principle that a State may legally .

_ _ use_its police power in the interest of the welfare of its

—_

people, even to the extent of affecting interstate commerce,

This principle, with its limitations, was discussed by the .

Supreme Court.in Simpson v.. Shepard, 230 U.S. $52, 399,

inthe following language: ef ne

_.° « “The power of-Conzress to regulate commerce. among

the-several states is supreme and pletiary. *. °° The

conviction ef its necessity sprang from the disastrous’ ex- 3

periences under the Confederation, When the states vied in

, Oe ge

’

_; -iliseriminatory measures against each other. “In_order to-

end these evils, the grant in the Constitution gonferred upon

/ongress an authority at all times adequate-to secute the

‘rive freedom of itterstate conimercial intercourse from state

ontrol, and: to provide effective regulation of that ‘inter-

-contsé as the natiorial interest nay demand. * * * | |

‘The grant in the Constitution of its own force, that. is,

= s without action ‘by Congress, established the essential im- . “

e munity:of interstate conimercial intercourse frord the direct :

~ (control of the states -with respect to. those adbjects em-_

9 bbaced within the: grant which are-of such a nature as to

- ae penn that, if regulated at all, their 3 pera should

fone cc : e Of. a ae 4

Prescribed by a single authotity. +* * |

38.

[fol. 188-13] “Thus the states *.* * baveno power to

prohibit interstate trade in légitimate articles of commerce e

- (eiting mie eT

In Lemke \ Farmivs Grain Co. of Embden, 258 U.

50, 42 S. Ct. 245, 66.L. ed.458, the Supreme Court had ae

consideration ‘the constitutionality of a state statute whieh

required purchasers of grain to’ obtain a license and pay a

license fee, and to act under a defined sy stem of grading,

inspeetion and weighing. The defendants ‘in that: cise, as

in the instant ease, relied upon the principle that a state

may make local laws under its: police power which may |

- stand until Congress takes possession. of the field under its

‘Superior authority to regulate commerce among the States.

The Supreme Court ‘rejected the defendants’ argument,

stating (258 U.S. page 59, 425. Ct. page 247, 66 L. ed. 458),

“This principle has no application where the State

passes beyond thé exercise of its legitimate authority. and

undertakes to — interstate commerce by. imposing

‘burdens upon it.’”’ , '

The Court reafitmed its decision: in Simpson vy. Shiaintd

supra, and applying the principles laid down in that case,’

held thatthe statute under consideration: was unconsfitu-

tiona! in that it denied the privilege of engaging in inter-

‘state commerce ¢xcept to ‘dealers by state authority. And

in United Leather Workers International Union v. Herkert

Meisel Trunk Co, 265 U.S. 457, ‘(p. 467) 44S. Ct. 623, 68

~L. ed. 1104, 33 A. L. R. 566, the Supreme Court. said ‘the

statute under consideration in the Lemke case was a direct

limitation on interstate commerce. .

In’ Grandin Farmers” Co-op -Elevator Co. v. Langer,

Dist. Co. No. Dak. SW Div,, 1934, 5 Fed. Supp. 425, affirmesd

without opinion, 292 U. 8, 605, 54 S. Ct. 772, 78 L. ed. 1467,

the state-statute under. consideration declared an' embargo

on its wheat when-prices becamé so low as to become confis-

, “ catory. The Court said (5) F. Supp..page 427); -

" Tfol. 138. 14] “The: state lias no power to interfere directly é

with interstate conimerce,. regardless of economic condi.

_tions. The regeiotion of such commerce is a matter of na-

tional concern.: * *°* If.one state or all the states could.

place cmataeds upon the export of the products of their

mines, forests, fields, and oil wells, an, inconceivable con-

dition of national insecurity would: follow.

— 39

‘‘A state statute, which, by its necessary operation, di-

rectly interferes with or burdens interstate commerée-is a

prohibitive regulation and invalid, regardless of the pur-

pose for which it was enacted. ( citing cases.) ”’

We think the case of Champlin Refining Co. v. ee.

poration. Commission of Okla., 286 U. S. 210, 52 S? Ct. 559,

76 L. ed. 1062, 86 A. L. R. 403, "although sometimes asserted

as such, is not authority for the contention that practically

unlimited proration of a state’s preduct is-within the power

of the state.’ In that case the Supreme Court, had under

consideration a state statute which curtailed production of .

: oil to prevent. waste. It was there held that production of

oil is-a mining operation and not a part of interstate com- _

meree even though the product obtained is intended to be

and in fact is immediately shipped in such commerce.

In considering the Champlin Refining Co. case, supra,

‘the case af West v. Kansas Natural Gas Co., 221 U. S. 229,

31S. Ct. 564, 55 L. ed. 716, 35° L.R.A.,.N.S., 1193, should’.

also be taken into consideration. In ‘the W est case the

state act prohibited foreign corporations from laying pipe

‘lines across highways and transporting natural gas therein

{fol. 188-15] to points outside the state. It further provided -

that domestic corporations must transmit gas only between

points in the state>and shali not transport or deliver gas

to corporations or petsons engaged in transporting or fur- .

nishing gas ‘to points outside the state. In holding -this

statute unconstitutional, the Court distinguished ‘between

the police power of the State:to regulate the taking of a

natural product,.such as natural gas, from its natural plact- !

ment, aud prohibiting that product from trarsportation in .

interstate commerce. after removal from its natural_place-..

“ment, saying that the former,is _within, and the latter be-

_ yond, the power of-the State.| It is stated that gas; when

reduced to possession, is a commodity and’ belongs to the -

owner of the land._ 14s his in lividual: property subject to

+ sale by him, and may: be a subject of ‘intrastate commerce

'- dnd’ interstate commerce. “A state statute which attempts

to prohibit its being a subject of. interstate commerce is un-

constitutional.

In the light.of the broad grant of power given C ongress.

over interstate commerce and the principles laid down by

- Supreme Court as herein dutlined, the necessary effect

_ 40

upon interstate commerce of the raisin rorate program

. [fol. 188-16]. must be serutinized, and this with the

principle in mind that one challenging the validity of a state

enactment is not necessarily bound by the legislative declat-

ations of purpose. It is open to him to show that the prac-

_ fieal operation of the statute or of any program devised

under the authority of such statute directly’ burdens or

effectively prevents the free flow of interstate commerce.

Foster-Fountain Packing Co. v. Haydel, 278°U. 8. E , 49

S. Ct. 1, 73 L. ed. 147.

It may here be stated that the inhibition of the program

is not based upon crop limitations or upon the health of the:

consumer or protection of the industry through exclusion

from t the_market of unfit fruit. Such cases as Sligh v.

Kirkwood, 257 U. 8. 52, 32 S. @t. 501, 59 ‘L. ed. 835, are-not --

in point. ‘And it is not baséd ujion false labeling or decep-

tive packaging. Neither is it a statute regulating proper

conditioning of the commodity prior to its being offered to

the consumer. Nor is it a limitation upon submitting ripe

* “grapes to ‘a proper process whereby -the grape becomes a

marketable raisin. -The stipulation itself speaks of thé sun

dried grape as a ‘‘raisin’’ before. it is removed from the

> vineyard and before it is /stemmed, cleaned, or packaged.

No. facts, claims or argument in this ease have been re-

lated to the part of the program designated ‘‘Green Diver-

sion’’. There have been.no steps taken to change the pro-

duction of raisins_in-quantity either above or below the

, growers’ own judgment or desire. We are constrained

(Fol. 188-17] to hold and do hold that the production of rai-

. sins is complete when. the grapes dry and cure into raisins.

: This natural process.of drying and curing takes place on

' the’ premises where .the. grapes are grown, and is accom-

plished without the intervention of anyone either in co-.

operation or otherwise with the producer (farmer, grower).

When the grapes are so dried and cured they are substan.

tially ready for market as raisins.-- The process. of stem-

ming, cleaning, ete. which is not uniform in packing plants,

tends to make the raisins more desirable commercially and

thus create a greater demand for them in the market, but

is. not essential to production. It is our opinion that the -_

prorate prograra as presented in this case does: not ee

to or impinge ppon ‘‘production”’.

Townsend v. Yeomans, 301 U. 8S. 441, 57 S. Ct. 842, 81 L.

_ ed. 1210 is cited as authority for the constitutionality of

the Act and program thereunder. . There a State statute

fixing reasonable maximum charges for the services of -

warehousemen handling tobacco was held constitutional. -

The following quotations from the Yeomans case indicate

how widely different ‘the’ state regulation there concerned —

is from the one before us:

6s* > «

“i

we find no ground for concludin; that the state

requirements lay any actual burden upon interstate or

foreign commerce. The Georgia Act does not attempt to

fix the prices at the auction sales orto regulate the activities”

.. ofthe purchasers. The ‘fixing of reasonable maximum

eae . ° ° bs

charges for the services of the warehousemen in aid of the |

. thosé who buy.” 301 U, S. page 455, 57 S. Ct. page 849, 81

L. ed. 1210. (Italies the Court’s.) 3

bes 188- 18] ‘*(quoting from Cargill Co. v.. Minnesola. 180 .

_U. S. 452, 470, 21 S. Ct. 423, 45 L. ed. 619) ‘The statute

‘puts no obstacle i in the way of the purchase by the defend-

. gant company of grain in the State or the shipment. out of

: the State of such grain as it is purchased.’ ”’

301 U. S. page 457, 57'S. Ct. page 850, 81 L. ed. 121

‘Here, the Georgia Act lay~ no constraint uport cds

in interstate.commerce, does not attempt to fix'the prices

or conditions of purchases, or the profit of the purchasers.

‘It simply seeks to protect the tobacco growers from unrea- ’

-sonable charges of the warehousemen for their services to

the growers.’ ee 3

“301 U.S. page 459, 57 St Ct. page 850, 81 L. ed? 1210.

While it.is true that the program purports merely to

_ prevent and regulate the sale of raisins:to the packer under

the universal custom of his cleaning, stemming and packag-

| _ing them wit ¢;-the“raisins on the producing

— =-—yPeitises and and those stored by the | program committee are at

all tithes kept from market except through the operation —

of the program. It is impassible to avoid the vonclusion

that the purpose and necessary effect of the progr any is to

place ‘a controlied embargo on. the State’s raisin produétioii,

in order to effect and stabilize’ prices. It seems clear to us

that the program is frankly and simply a méans of con-

trolling the supply of raisins into interstate trade channels

tobaceo growers does not militate against any interest of.

42,

- to meet the market demands. As to this purpose it is not

in our province to comment. ‘We think the State has at.

tempted to accomplish this result by a process which

impinges upon a grant of power to thé Federal government.

The following quotation from the Program is illustrative :

‘Secondary Cer tificater shall be issued to control 4 che time

and volume of movement of salable raisins into the primary

‘ channels of trade.’’ (Article XI, Sec. 1 (b))

.The Program gives the C ssiealbla the power to sell the

pooled raisins ‘‘in such manner as’ to maintain-stability ~

[fol. 188-19] in the markets’’, and provides that no sales .

‘*shall be made at less than the prevailing market price for

raisins of the same variety and grade on the date of sale’’,

.and ‘‘effort shall. be made by the committee to effectuate

‘sales in-such fashion that the quantity of such stabilization

pool raisins sold from tine to time shall be coordinated

as closely. as possible with market demands therefor’’

The ‘Stabilization Pool Sales Policy’? set up by: the

Committee provides for opening prices ranging from $55.00

per-ton for Sultanas to $60.00 per ton for. Thompson-Seed-~ ~~

less Raisins. It is stated “* Notw ithstanding anything herein

to the contrary, the above apening prices will not be reduced

by the sales policy committee of the Surplus ‘Marketing

Administration within sixty (60) days from the effective .

_ date hereof (Jan. 1, 1941). ”

In a printed communication sent out’ by ef Proration -

- Program ‘Gommittee to the raisin producers. within the’

zone, it is- stated that ‘the program *** * * was based.

upon the idea. ° *’ *> that a Jarge part of the 1940 crop...

should be placed in pools under Committee supervision to

; prevent a flooding of the few available markets, with the

inevitable pricé decline which goes with flooded markets.”’

. By every authority of our acquaintance the enforcement

of the implementing program under the Act constitutes a

direct and illegal interference .with interstate commerce.

—. { fol. 188-20] It is no answer in principle to say that under —

the terms of the program 30% (free tonnage) ‘of produc

‘raisins are available for the open market. This Arson a

is fixed by the progrant as best calculated to serve its pur-

poses, it might be 15% of the crop or none at all. “The vice

of the situation is.that the program requires.the submission

“

' of any eciperiy marketable part of the crop to its terme,

all of whieh are dirécted to the control of the commodity

Ss into! commerce. It ig the judgment of the program ad-

‘ministrators that such purpose will be advanced with the

freeing of 30% of the crop. at the beginning ef the 1940-

1941 season’s market. After the release of the 30%

- free-tonnage the amount of raisins which may be ee Rohet

‘for absorption by the market .equated from the pool is also

wholly within the judgment of the prorate authorities.

We are reminded of Mr. Justice McKenna’s illustration

U.S. 245, 43 S. Ct. 83,84, 67 L. ed. 237, wherein he sus-.

tains the State’s right to'a tax on-coal “washed or screened,

or otherwise prepared for market’’ and remarks that if the

_ subject matter is under Congressicnal jurisdiction beeause :

_. the coal will enter interstate commerce ‘‘The result would

‘be curious. It would nationalize all industries, it would

nationalize and withdraw from state jnrisdiction and de-

liver to federal commercia] control the fruits of California.

. and the South, the wheat of the West, eteetera.’’ But; on

» the other hand, if the State of California has the power

to execute a’ control plan of its entire fruit crop and permit

it to enter the market for consumption only as and when

-, [{fol. 188-21] its administrators adjudge proper, then every

state can so control all industries and crops within its

certainly no less. repugnant to.our dual system of State:

_ and Federal government than that illustrated by Mr. Jus- —

‘ tiee McKenna, a condition in thé situation confronting

us which the constitutional fathers sought to guard against -

by writing the commerce clause into the Constitution itself.

(see hereinbefore quoted portion of the opinion in the.

case of Grandin Farmers’ Co-op Elevator Co. v. Langer,

supra.). In’ our opinion the State has ventured upon a -

sphere of governmental activity which impinges upon a

constitutional: provision which the framers ‘of the Con-

_ stitution recognized as necessary to the. national status of

the several states in their Union.

_ . Itis our duty to declare the law as we see it. We cainnat

\ however. fail to appreciate the economic effect of our deci-

sion in this case. It may uot be out of place therefore

‘to mention here the highly fortunate circumstance that there

is federal law .and administrative machinery available by

: .

in ‘the case of Heisler v. Thomas Colliery Company,. 260 . ;

- boundaries by the same. token. - This presents a condition pe

which a proper and legal proration of the raisin crops may 2

be accomplished if such is generally held to be desirable.

The petition for a decree permanently énjoining the ;

defendants from enforcement of the raisin prorate program —

hereinbefore referred to is granted: The relief sought by

defendants in their cross complaint is ‘denied. Plaintiffs

may draw findings of fact and conclusions of law i in con-_

formity with the expressions of this opinion.

{ fol. 188-22] In view. of the fact that the case was sub-

mitted solely on the question of the constitutionality of the

program, we do not consider the defenses of estoppel and

the statate, of limitations raised by the defendants in 1 their

pleadings. |

[fol. 188-23], Desnwne Oprxtox 245

' **Yankwich, District Judge (dissenting).

‘*The control of the Congress over interstate commerce, .

- United States Constitution, Art. I, See. », Cl. 3, being ab--

solute, any direct interference with it by any State must

give way. But this Congressional primacy does not stand

in the way of regulations by the States, through the exer-

‘cise of their: taxing or police powers, which, although local

_ in'their nature, affect interstate commerce. See The Min-

_ nesota Rate Cases, 1913, 230 U. S. 352, 399, 33 S. Ct, 729,

57 L. Ed. 1511, 48 L. R. A., N. S., 1151, Ann, Cas., 1916A,

18; Milk Control Board v. Fisenberg Farm Products} 1939,

306 U. S. 346, 351, 59 S. Ct. 528, 83.L. Ed. 752; United

' States v. Rock Royal Co-Op., 1939, 307 U. S. 533, 569, 59

S. Ct. 993, 83 L. Ed. 1446; Mulford. ¥. Smith, 1939, 307

U.S. 38, 48, 59'S. Ct. 648, 83 L. Ed. 1002. —

‘*In a-recent case (California-v. Thompson, 1941, 61 S.

Ct. 930, 932, 85 Li Ed. ——), Mr. Justice Stone has stated

the extent of compatibility of state regulation with national

supremacy in the field of interstate commerce in these

words:

-** As this Court has often had o-casion to seiek out, ‘the toe

Commerce Clause; in conferring on Congress power to -.

‘reguiate commerce, did’ not wholly withdraw fronr the

states the power to regulate matters of local concern with

respect to, which Congress has not exercised its power,”

-even though the: regulation affects interstate commerve.:

Ever since Wilson v. Blackbird Creek Marsh Co., 2 Pet.

. “245, 7 L., Ed. 412, and Cooley v. Board. of. Port. Wardens,

ie 45 -

12 How. 299, 13 L. Ed. 996, it has been recognized that

there are matters of local concern, the regulation of which

unavoidably involves some regulation of interstate com- °

[fol. 188-24] merce, but which because of their local char-

acter and their number and diversity may never. be ade-

quately dealt .with by Congress. Because of their local

character, also, there is‘ wide scope for local regulation -

without i impairing the-uniformity of control of the national

commerce: in matters of national concern and without mate-

_ rially obstructing the free flow of .commeree which were

- the principal objects sought to be secured by the Commerce

Clause. Netwithstanding the Commerce Clause, such regu-

lation in the absence of Congressional action has, for the

most part, been left to the states. by the decisions of this’

Court, subject-only to other decisions of this Court, sub-

ject only to other applicable constitutional restraints. See --

eases collected in Di Santo v. Pennsylvania, supra, 273

. U.S. (34) 40547 S. Ct. 267, 71 L. Ed.-524’.

‘“When. we, consider Congressional regulation of inter-

_ _ state commerce, we must, as students of late juristic trends, _

~eoncede that recent decisions, such as those sustaining the

National Labor Relations *Act, "29 U. S. C. A. See. 151 et

‘seq. (National Labor Relations Board v.: Jones-Laughlin

_ Corp., 1937, 301 U.S. 1, 57 S.Ct. 615, 81 L. Ed. 893, 108

* A. L.’R. 1352) and the Fair Labor Standards Act, 29 U. S.

(*. A. See. 201 et seq. (United States v. Darby, 1941, 312; _

U. S. 100, 61 S. Ct. 451, 85 -L. Ed. 132 A, L. R. 1430), ©

‘extend the power of the Congress to dominate purely local

conditions, through the. exercise of ,its absdlute’control over :

- interstate commerce.’ .

_[fol. 188-25] But this does not mean that boca a prod- :

uct is destined for interstate commerce, or a business aims

at interstate commerce, it is, by this very fact, without

the: ambit of state regulation. Carriers or persons en- -

gaged in transportation in interstate commerce may be sub-

jected many state regulations. lstrah their ‘enumeration

* These décisions overrule all the cases, such as Hammer

v. Ddgenhart, 1918, 247 U.S. 251, 38 S. Ct. 529, 62 L. Ed.

1107, 3 A. L. R. 649, Ann. Cas.. 1918K, 724, and Carter v. a

\ Ca er Ceal Co., 1936, 298 U. S. 238, 56 S. Ct. 855, 80 Li. |

Ed. 1160, which, if followed, wouid have made it impossible

: for the Congress to infltience, by indirect regulation, indus-

trial relations within state confines: :

¢ : ; aes : —

Me a Sh

by Mr. Justice Stone i in California’ v. ‘Nath iiaititie: 1941, 61

S. Ct. 930, 85°L. Ed., ———. So, also, may the taxing power »

- of a state be used to tax products originating in, or intended |

for, interstate commerce, either before leaving the state

or‘after reaching it. ‘See Henneford v. Silas Masan Co., —

1937; 300 U. 8.577; 57 S. Ct. 524, 81-L. Ed. 814; Ford.

.Motbr Company v. Beauchamp, 1939, 308.U. S. 331; 60 S.

Ct. 273, 84 L. Ed. 304; Felt & Tarrant Manufacturing Co.

" v. Gallagher, 1939, 306 U. S. 62, 59S. Ct. 376,.83 L.. Ea.

488; Pacific Tel. & Tel. Co. v. Gallagher, 1939, 306 U.

182, 59'S. Ct. 396, 83 L. Ed..595; McGoldrick v.. Sioied, ;

- White Co., 1940, 309 U.S. 33, 60 8. Ct. 388, 84 L. Ed. 565,

128A. L. R. 876.

While the rigid distinetion, between production and com-

merce no longer holds in.so far as the exercise of congres-

sional -restraint and regulation is concerned (See Unitel -

States v. Darby, 1941, 312 U. 8: 100, 61S. Ct. 451, 8 L.

Ed. :- a A. L. R. 1430), itis still maintained when -

we come: to assay the exercise of. state powers. In a leading

. ease on the subject (Heisler v..Thomas Colliery Co., 1922,

260-U..S. 245, 43 S. Ct. 83, 86, 67 L. Ed. 237), Mr. Justice

McKenna stated the principle in these words: ‘a

‘‘*We may, therefore, disregard the advedtitiois con-

siderations referred. to and their confusion, and by doing

‘so we can estimate the contention made.. It is that the

-{fol. 188-26} products of a state that have, or are destined

_to have, a market in other states are subjects of interstate

commerce, though they have not moved from the place of

their production or preparation.

‘‘<«The reach and consequences of the contention re pels

ats acceptance. _If the possibility, or.indeéd certainty, of

exportation. of a product or articke from a state determines .. -

it to be in interstate commerce before the commencement

of its movement from the state, it would seem to: follow

_that it is in such commerce from the instant of. its growth

or production, and in the case of coals, as they lie in the

‘-- ground. The result would be. curious.. Jt would -nationalize

all industries, it would nationalize and withdraw from state

jurisdiction and deliver to federal commercial control the. .

fruits of California and the South, the wheat of the West

and its meats, the cotton of the ‘South, the shoes of Massa.

chuse tts and the woolen industries of other states at the

very inception of their production of growth, that is, the

fruits unpicked, the cotton and wheat ungathered, hides

and flesh’ of ‘tiie yet” ‘on the hoof”, intel yet unshorn,

and coal -yet unmined because they are in varying ‘per-

centages destined for and surely to be exported to states

‘other than those of their production.’- Heisler v. Thonias

Colliery Co., 1922, 260°U. S. 245, 259, 43 8. “Ct. 83, 67 L.

- Ed. 287. (Italics added.) — a

‘And see Veazie v. Moor, 1852, 14 How. 568, 573, 574,14 L.

. Ed. 545;-Kidd v. Pearson, 1888, 128 U. S. 1, '20, 21,9 S. Ct.

’ 6, 32 L. Ed. 346; Oliver Iron Co. v. Lord, 1923, 362 U. S.

. 172, 178, 179, 43-8. Ct: 526, 67 L. Ed. 929. |

_ {fol. 188-27] The act there before the Court subjected

___every ton of anthracite coal mined ‘washed, screened, or

: ' otherwise prepared for market’ in the state to a one and |

one-half percent tax of its value when prepared for market,

to be assessed after it is prepared as indicated. and ‘is

ready for shipment or market.’ Penn. pam, Se), page

‘479, 72 P. S. Pa. Sec. 2501. ,

. . Here was a product, anthracite coal, on whisk many

‘states depended at the time, for fuel, found only ina small:

~ number cf counties in, the State of Pennsylvania, and, f rom:

its very nature, destined for interstate commerce the mo- *

ment it left the mine. Here was a tax, the effect of which

- made the cost, of. production greater and sale in inter-

state. commerce more burdensome. Yet the Court could

‘see ‘in it no assault upon federal supremacy in the realm

of ‘interstate commerce.”® - -

T can see no escape from this conclusion.

Unless we are ready to say that the recent decisions

extending eongressional power to regulate local conditions,

This ease Avas decided after Lemke v. Farmers’ Grain

Co, Pees bere U. S. 50, 42 S. Ct. 244, 66 L. Ed. 458, upon '

which . my tes’ finding of unconstitutionality of the

_ raisin prog ram is chiefly bottomed. . And the opinion was

"written by the same justice, Mr. Justice McKenna. The

principice. it declares have never been questioned. Some

of the later casés in which it is cited or followed are: Oliver.

ng Co. v. Lord, 1923; 262 U, S. 172, 179, 43 S: Ct..526,

Ed. 929; United Leather Workers’ International

Cites v. Herkert & Meisel Trunk Co., 1924, 265 U. S. 457,

465; 44S. Ct._623, 68 Li Ed. 1104, 33 A.'L. R. 566; Hope

Gas Co. v. Hall, 1927, 274 U. S. 284, 288, 47 S. Ct. 629; 71

L. Ed. 1049; McGoldrick v. Berwind-White Co., 1940, 309

U.S. 38, 47, 60S. Ct. 388, 84 L. Ed. 565, 128 A. L. R. 876.,

through the exercise of control over interstate conimerce,

have destroyed the power of the States to deal with prod-

‘ucts of agriculture-or manufacture which are destined for

interstate commerce before tliey actually enter the flow

of that commerce. Even the most extreme of the newer

. federalists would not go so far. ‘See Walton H. Hamilton

and Douglass. Adair, 1937, The Power to'Govern; Edward

- Corwin, 1926, The Commerce Power versus State Rights;

Edward Corwin, 1941, Constitutional Revolution Limited:

(fol. 188-28] The thoughts just expressed find. support. in ACs

‘Champlin Refining Co. v. Commission, 1932, 286 U/S. 210,

52S. Ct. 559, 76 L. Ed. 1062, 86 A. L.“R. 403, which involved —

the Oklahoma vil prorate law:- It is true that oil, being a .--

natural resource, ¢llows, constitutionally, broader regula-

tion both federal and state, than other products of industry

. or agriculture. And the Court said so. However, the

Court, while. giving its sanction to the State’s ‘regulation

‘upon that seote, also dealt specifically with its relation to

the interstate commerce clause. And, in finding no conflict

with it, the Court did not place its decision upon the char- |

acter of sil as a natural resource. It determined the case

‘upon the ground that the law was a.regulation of production

-before oil entered the flow of interstate commerce. And

it found it unobjectionable, although the oil-was-intended

_ for interstate shipment. The Court said: ferns

‘* «Plaintiff contends thatthe act and proration orders

operate to burden interstate commerce in cride. oil and

‘tis products in violation of the commerce clause. *- * *

’ Tt is clear that the regulations prescribed and authorized

vby the act and the proration established by the commission

: apply only to production and not to sales or transportation *

_.of erude oil or its products. Such production is essentially -

- ninining operation, and therefore is not a part of interstate

conimerge, even though the product obtained is intended to

be and mm fact is immediately shipped in such commerce.

Oliver Iron Co, v. Lord, 262 U. S. 172, 178, 43 S. Ct. 52h,

67 L. Ed. 929; Hope Gas Co..v. Hall, 274 U. S. 284, 288, 47 S.

Ct. 639, 71 L. Ed. 1049 ; "Foster Packing Co. v. Haydel,

278 U. S. 1, 10,49 S. Cte 1, 73 L. Ed. 147; Utah Power & |

Light Co, v. Pfost, supra (286 U. S. 165, 562 S. Ct. 548, 76

L. Ed. 1088). -No violation of the commerce clause is

shown,’ Champlin Refining Co. v. Commission, 1932, 286 _

{fol: 188-29] U. Ss. 210, 235, 52 S. Ct. 559,

86 A.L.R. 403 (Italies added.)?*""

In effect, this means that, the nature of\a. product does

hot determine its availability as an object\of state: icxis- -

lative control outside of ‘the inhibition of the commerce |"

‘clause? Rather must the question’ be determined in the

ht of the facts in each case.: A state embargo upon a.

1922: 958 U. S. 50, 42 Sot. 244, 66 L. Ed. 458; Shafer v.

Farmers’Grain Co., 1925, 268 U. & 189, 45 8. Ct. 481, 69°

__L. Ed. 909; Baldwin v, Seelig, 1935, 294 U. 8. 511, 55”

S.Ct. 497, 79 L. Ed, 1032, 101 A.L.R. 55. But state enact-

.. ents-or programs which affect, indiréctly, either through |

regulation or-taxation, the quantity ofa product av vailable

for use in interstate commerce before it enters it, do not,

» o\ . 4 ‘ . rs

“The California, Agricultural Protate Act was enacted

~~ on June 5, 1933, St.-1933, p. 1969, after’ the decision in

_ Champlin Refining Co. v. Commission, 1932, 286 U. S. 210,

52 8. Ct. 559/76 L. Ed. 1062, 86 A.L.R..403, which was filed

on “May 16, 1932. It was modeled after the Oklahema | Oil

—-prorate statute which the Court had before it in that case.

Its definition of. ‘waste’ is almost identical with that in

the Oklahoma Statute. It reads:

‘The terms ‘‘agricultural waste’’—in aildition to their

ordinary meaning—shall include economic waste, and

_ waste incidént to the harvesting and/or preparation. for

any delivery,to market of agricultural, commodities in ex-

cess of reasonable. market demands.’ (Calif. Stats. 1933,

Ch, 754, Sec. 2, as amended by St. 1935, p.. 1527(b)) ( Italics -

. added.) |

“The definition of waste in ‘the ‘Oklahonia Statute, 52

Okl. St. Ann. See. 273 (as found in a footnote to page 223 . /

of 286 U. S., 52 S. Ct. at page 560 of the o ion)-reads :

«That the term ‘‘waste’’ as used herei in,“in addition to

its: ordinary meaning, sha include economic waste; under-

ground waste, surface waste, and waste incident to the pro-

duction of erade oil or petroleum in excess of transporta-

tion or marketing facilities or reasonable market de mands,” .

(Italies added. ) :

BO, aes

,761L,, Ed. 1062, -

is forbidden. See Lemke v. Farmers’ Grain Co.,.

oO.

: as e ued thee eases, Simpings<apon t e ‘ecommerce elisase:' 2

"Fo hold otherwise is’ to. bring ‘about! the. conditions which ~

4. Mit Tustiee Me Xenya Usenet ok ¥.-Thoinas Col: .

So. Hery.@e., supra, — remove every product, the sale oh:

+ wWhich*is sisiel an \interstate. act, | onsJocal control.’.

att 07 Fee if every: ‘fegulation gto may’ “iffest ‘the quantity of ~

+ "5 thie product syallabie. for intgrstate: shipment: be - cxiolative:

moe commerce ¢ lause,: strife $ tutes. regulative the quan

- Atity and condit ion f if prod i tion i) an article ol commerce; oa

or the wages 2 hours-and condi of lubor, of employees _*

«producing ‘it, must; in@ by | rad the Treason is .

ast “wabvious. Por /snch, legislation, frow’ an“ economic: stand:

s+. [fol. 188-30} point,’ ultimately ‘affects. production.* It *in-

» +» @neases the: “hutedpn, apon proc action and discouréges those.

who: bier beet cat oPEreOnve from engaging in such:

‘5 a enterprises arent Wali sas

erie And thi is true, whether. we cohaider ‘restrictions on

Sean rents, 2 Arking- ae “6f men 4 California - Labor Code; St. Cal.

-e tee ee q

Hf Pas Rae esr p. 205, et séq: Beck. 510-856) oof women ard ¢bildren’

A Gallife bor Code, ‘Bees.’ 1171-1398, p..213. et seq,

“s+ regulations of. the thanner of paymentrof wages (Cattfornia

. .. §* Labor Code; Pees: 200-452, p.-201 et séq.), minimum Sani-.

oir), tation req renients - ‘(California Labor Code, ‘Sees, 2330-

" “+ 2495, p, 253 ‘et seq.), or laws éstablishin wih teenkty lia-

Pty oe Ditty: (California ‘Labor Code, Sees, 3201-6002, p; 265 et’

ante cae Seq. ), or decreeifige sa ety dexices (Califortiia, Labor. Code, Aor

sees Secs. 6300-7601, p.. 306 et seq.).-7

7) (Phoy all i increase, ‘cost: an ahecaleck diminish tha (juan.

_tity of production. -It is’ ‘also ¢xioniatic that free, unregi-.

% * Fated, unarehic enterprises attract: ‘the intrepid dnd. adven- |

A turvus in the economic field more readily: than strictly cori:

| (a I. trolled ventures, Control. thus: diminishes. production : im

‘+ existipg @stabliskments vand -discourages . increase amit a

- 2. number of enterprises. oh

ee | > 188-31]: _It-follows that it the fact tat a producti is dew:

. 2 rr ee interstate coniinéree, automatically plates it Seats:

\y 2 4° out: the scope of” ‘state control, then control ‘of the ty ype

\ ; _enttnerated 5 is immedia ly nullified. $

uy very recent iNustration of jndiciai. sanction: for: ’ he

state. regulation of ‘the handling of what might be ealled ;

-an inherently interstate commodity, tobacco, is. found in

Townsend ¥. Yeontans, 1937, 301 t. Ss. Be 57 S. Ct. wi, p

81 L. Ed, 1310, ee feos “

i eed “* 2” >. + ’ *¢

- ¢ . é fj

, SB Llp t (reg eee dae Fat, !

* . x < .

. %, ‘

Ae ap Bret is j yee

e eve. . ° . ¥ .

‘8 . Ase Fak : a

g = ». Pr " ‘ »

i ice ee Kh aoc : ¢ Pir a Gj . Beds : 51

oak Chee ie aes al ‘

. oF > .

To bring these thoughts to bear upon the problems before

ae A oa Rie Phe Gea ase DE EN soe * F i ae sera

ee Raisins as produced by the groyer; through the drying

and, sweating process, from grapes grown .on his’ land, |

_: | “are notan article of comméree, They are not ready for ship- _

ment or market," Nor aré they. fit for- human consumption. , |

_. + Before they may, be served as human food, the’ packers must

. | * process -theri through’.a complicated. process. ‘This alone -

_ makes them palatable and fit for use. The State of Cali- _

. fornia has undertaken, through ‘this. legislation, and the

>", "program-intended. to carry if into effect, to- impose’ certain

+ Tegulations; to pool a portion of the crop and to restrict

free sai~s as between the. growers afid-the packers. This '

program; which derives its sanction from the assent of the

_ _. Stowers, deals entirely with. raisins before. they ehter the

~~" fi¢w<of-interstaté conititerce. I graut that its effect is ta:

« - -restriet freedom of action i dealitigs between groweys and. .

packers: within the state. If ‘this result in making raisins.

unavailable ‘to recusants like the ‘hi i except upon com-

+ plianee with certain conditions; this is/no’ more: a direct

tite coal: (Heisler v. Thomas Colliery Co., supra), without

‘the payment of which no anthracite coal was available for -

,, Shipment in- interstate commerce, or the curtailment of oil

_ “prodaction tlirough prorafion, (Champlin Refining Co. y. -

“ . of oil available for‘ shipment in interstate commerce. -- be ford

~ Hence: miy disserit ‘from the conclusion reached by my: :

ioe ‘colleagues,?’ NS 3 ees ‘. . _~e, gees.

es | {fol.189} ty. Districts Covar OF THE U strep Srares

Findings of Fact and Conclusions of Law —Filed December.

‘ Oe aS : sees ee > 4.°1941 fe : "a “ } | :

See be eS a ot ‘ ate i

‘

Go Wachee enans on regularly for trial before a statutory,

~ three-judge court convened before the Honorable Campbell

_ ¥. Beaumont, United States District. Judge for the South. . he

. ern District of California, by calling to his assistance the °

eee Honorable Albert Lee Stephens, Judge of the United States

~~ Cireuit Court of Appeals: for the Ninth Cireuit, and the é

Hig

‘\

° 52 o; % a 2

Honorable Devin R. y nate ich, United States District Judge

for the Southern District of € ‘alifornia, pursuant to Section

. 266 of tne Judicial Code, as amended (28 U. S.. C. A.

{fol. 199] Section’ 380), sitting in its courtroom in the

Federal Building,\in the City of Fresno,’ in the State of

California. os

Plaintiff was reiirreented by. hie att vs and solicitors,

~.Messrs. Aten & Aten, and G. re Ay nesworth, _Esq., and the

defendants by Earl Warren, Esquire, Attorney General of ..

the State of California, and Messrs. Walter L., ‘Bowers,

We. R. Augustine and Gilbert F. Nelson, Deputies ‘Attorney

~ General, appearing for W., B. Parker, Tirector of’ haere

ture, Agricuitural Prore te Advi isory Commission, and W..B

Parker, Ira Redfern, Gyman Lantze, James Langford,

_ Mark G. Johnson, C. M. Brown, Wm. F. Darsie, Dr. Dean’

“McHenry, and Preston McKinney, members of said Com-

C mission, and J.C. Harian; and Strother P. Walton, Esq.,

- appearing for Raisin. Proration Zone No. 1, Program Cotn-'

‘ mittee, and H.C. Andergon, A. K. Kelly, Renild Mas-

trofini, Alex Berg, Mesrob Mirigian, Melchior Hansen, A. L.

: Davidson, and W..J. Cecil, mémbers of said Committee.

On. March 7th, 1941, plaintiff’s application for an inter--

lecutory injunction. was heard before thé above-mentioned

three- judge court and said application was denied, and the

cause was directed to be set for trial on its merits at as early

_a date as the court's calendar would permit.

Accordingly, the trial was cofamenced on April 11th, 1941,

and ‘concluded on April 12, 1941, and evidence; both oral

- and documeniary, was introduced. on behalf of the respec- |

tive parties: and at the conclusion thereof the- cause was _

argued and submitted; that thereafter upon the Court’s

- own motion the case was reopened for the purpose of taking

“more evidence, and en the 16th, day of October, 1941,

further evidence was offered and received and the cause.

-then-again submitted.

Whierefore, the court being fully adv ised i in the. pretnises .

- [fol.191] now makes its findings of fact and conclusions <i

of law as follows: — | \

° Finpines or Fact ;

; J !

hanes | ia

That the Stata of € ‘alifor nia, “through its duly nathorted

officers, is atte mpting to enforce the provisions of a prora-:

m : . 03

tion program for raisins (hereinafter sometimes called the

program) prescribed under the authority of the California

Agricultural Prorate Act (Chapter 754, California Statutes _

1933), eas amended (hereinafter sometimes called the Act),

and is claiming penalties in the amount ef $13, 000.00. -

‘against the plaintiff ; that the plaintiff, since the commence-

ment of the raisin crop season of the year 1939, has. been

and is now engaged in the business of producing, buying, .

packing and selling sun- -dried raisins produced i in said zone,

including raisins produced i in the crop year 1940; that the _

plaintiff on September 7 7, 1940,-had orders for. the delivery

of sun-dried raisins produced i in said zone in the year 1940

which he could not fill without complying with the seasonal

program for raisins hereinafter referred to, and that de- .

fendants in enforcing said program have directly interfered

with and \obstructed plaintiff’s said business and thereby

damaged the plaintiff in a sum in excess of $3,000.00, ex-

clusive ‘of interest and Costs,. and that the matter in con-

troversy herein exceeds, exclusiv e of interest a costs, the

, Sum of 3, M0000; °° + ; — meaneray yt

see ND tas fe. Gai CTS we

(oe defendagt Raisin Proration Sate No. 1, is and has

~ been since August 3, 1937, a Proration Zone ‘organiinad and .

existing pursfant .to the provisions of the Agricultural —

__Pror.te Aet of the State of California, (Chapter ‘754,

Statutes of 1933) as amended, for the purpose of applying .

(fol: 192] the provisions of said Agricultural Prorate Act-.

“to an agricultural commodity, to wit, raisins, being un-

bleached, sun-dried, or partially sun-dried, grapes of ‘the

- Thompéon Seedless, Sultana, and. Muscat varieties grown

and produced in the said Zone, consisting of the Counties

‘of San Joaquin, Stanislaus, Merced, Madera, Fresno,

Tulare, Kings, and Kern within the State of California. aa

.That defendant, W. B. Parker is Director of Agriculture

ofthe State of California ; that defendants, W. B. Parker,

+ Tra Redfern,Lyman. Lantze, James Langford, Mark G.

Johnson, C. M. Brown, Win. F. Darsie, Dr. Dean McHenry,

*_and Preston McKinney, are the members of the Agricultural _ oN sy

Prorate Advisory Commission of the State-of California ; "- 4

that defendants, H. C. Anderson, A. K. Kelly, Renald Mas-

trofini, Alex Beye, Mesrob Mirigian, Melchior Hansen, and

"A. L. Davidsof are the inembers of the Program Committee

of Raisi f ration Zone No. 1; that defendant, W. J. Cecil,

: ‘ Pe

at the time “of the commencement of this action was the

duly appointed zone agent of said zone and-that he was ~~

. succeeded as zone agent by defendant, Lyman Lantze, prior, :

‘to the trial of this case. oo | Wee

Ill

That pursuant to the provisions of said Act a proration

program for raisins in said zone was instituted August 4,

1937, and continued in effect until it was amended effectiv e

* July 23, 1940, which program as thus amended ‘ever since’

has been and still is in force und effect; that said program

is correctly set out in the answer to the first amended-com-

plaint on file hérein, as Exhibit A thereof; that pursuant

to the provisions of said program: as amended a seasonal .

marketing program for raisins for 1940-1941 was duly and

regularly adopted and approved and became effective

September 7th, 1940, and which seasonal program is and

(fol. 193] has been ev er since said date in foree ani effect.

IV.

That the ennsitin’ features of said 19401941 ‘seasonal

-marketing program for raisins (hereinafter referred -to as

the Program), together with the fmancing arrangement,

are as.follows:

(an) That 20% by variety. of all ‘¢standard’”: raisins of

the 1940 crop produced within the Zone sha’! be delivered -

by the producers itito 4 surplus pool; and that an advance

- shall be made to producers on such raisins-at the time of ~

delivery by such producers of $27.50 per ton for Muscat

and Thompson Seediéss raisins, and $25.00 per ton for

Sultanas, to be. obtained from the proceeds ofa non- recourse

oan from Commodity. Credit Corporation. |

(b): That 50% by Variet y of all such “standard” raisics

shall be delivered. into a “stabilization pool; and that an

advance shail be made to producers upon such raisins at the —

time ox delivery ‘by such preducers of $55.00 per ton for

. Muscat and Thompson Seedless raisins, and $50.00 per*®

ton for Sultanas, to.be obtained from the proceeds of said

non-recourse loan. from Commodity Credit Corporation. ~

30% of. each producer’s standard raisins, may be. dis-

po.

+ posed of by him without restriction into a primary channel -

of trade as ‘‘free tonnage’’, provided he has obtained

a secondary certificate therefor, which certificate is issued —

to him when he has satisfied the pool requirements and upon

payment of the certificate fee of $2.50 per ton for each

ton of the *‘free tonnage”. (30% of his 1940 ‘production of

' “*standard”? raisins.) : ; o..

(d) That no ‘‘sub-standard”’ or“ inferior”? grade raisins —

- [fol. 194] may be offered as ‘‘free tonnage’’ or delivered to

the surplus or stabilization pools; but that such raisiiis

shall be delivered into separate pools for disposal by the

Program Committee atthe best prices and under the fairest

conditions obtainable for by-product purposes and that the

‘net proceeds thereof shall be distributed ratably to the

, producers. contributing to: such pools.

' That said proration program instituted August 4, 1937,

raisins in the surplus and stabilization pools, the estential

portions of said provisions reading as. follows:

“‘Tsposal of Surplus Pool. Pur suaiit to this Section 4,

‘the Committee shall sell or authorize the sale of-surplus

‘pool raisins as soon as practicable after delivery. of same

to the Committee or to any agency authorized by the Com-

- mittee to receivw such raisins ; provided, however, that

_ none of ‘the standard raisins in such -pool shall be. sold or

otherwise disposed of prior to January 1 of the marketing

. Season in which such pool i is established. The sale -of such

raisins shal! be made in accordance with the methods and

ai the prices which_in the judgment of the C ommittee or its

authorized agency and the Director are the most advan-

tageous to the Poducers: of such raisins. The Committee

shall make provisions whereby a producer who delivers

raisins to a surplus pool may, within the shortest time

_ practicable, buy the sathe or an equivalent grade of raisins,

subject to regulations to be established by said Cominiftee.

*.“Surplus pool raisins shall be sold only for assused by-

product and other. diversion purposes, and shall not be

as (fol. 195] sold into normal marketing channels.”’

“ Disposal of Stabilization Pool. Pursuant to this Section

4 the C ommittee shall se!’ or authorize the sale of stabilizn-

tion pool raisins: ‘as soon as practicable after delivery, of

‘and amended July 23; 1940, provides for’ disposing of the

- , itto normal marketing channels.””

~~ *

same to the Committee, or to any agency authorized by the

Committee-to receive such raisins, in such manner as to

maintain’ stability in the markets and to dispose of such

raisins. The procedure relative. to: the disposition of. such”

raisins and the provisie ons of the contract of sale shall be

_ establislied by the Committee with the prior approval .of

the Director; provided, however, that all packers of record =‘

with th Program Committee shall be given uniform notice

of offers to sell stabilization poo! raisins and, if allocation

_of tonnage among packers becomes necessary, such alloca-

tion shall he made under uniform rules, which are equitable

to-all packers participating in offers:to purchase, as —

_—— formulated by the Coinmittee and approved, by the Director.

The sale of such raisins shall be made in accordance with the

methods and‘ at the prices which in the judgment. of .the .

‘Committee or its authorized agency and the Director are °:

the most advantageous to the producers of such raisins;

provided, however, that no sales of raisins from a stabili-

zation.pool, other thar? such raisins which are subject to

’ . special loaning or .poqling arrangements with the Fedéral

Government, shall be-made at le:s than the prevailing mar-

ket price for raisins-of the same variety. and Stete on the -

date of sale. —

[fol. 196] “Stabilization pool raisins shall be sold only

7 | . sa | ehithe

'. That pursuant to the provisions of said Act afd in ac}

cordance with the terms of the Proration Program for

_ Raising as amended, as set forth in said Exhibit SA) and. |

particularly Article. XX thereof, the said Program Com-

inittee duly established and declared effective the grades-and —

rules and ‘regulations governing the same. for ‘‘standard”’ —

raisins, which same- became effeétive September 10th, 1940,

_ and ever since have been and néw are.in force and effect,

nnd that this in conjunction the definition in Article. T

of said program, as set forth ih- said: Exhibit ‘*A’’, fixes

the quality and grades for ‘*standard”’, “sub-standard”

and “inferior” raisins of the 1940 crop.

That 90% to 95% of the ance dried raisins jcnautned ooh

/ in the iene ge ges are Or in said. mone;-

ae ed

90% i. 95% of such setibick hanmiuk’ in said zone are con-

sumed ournde Oe State of California. GET Sai

VII

= That Commodity Credit Custnitetion is a | corporation: -

organized | pursuant to the laws of the United States of

* America for the purposé of making loans ‘on agricultural

_ commodities that are recommended. by the Secretary of

Agriculture of the United States and approved by the

President of the United States. That prior to September

7th, 1940, the defendants. herein had been negotiating with

: ther officers of said Comthodity Credit Corporation for the

. purpose of: securing financial assistance for producers of

1940 crop raisins in the State of Califorgia, and that sub-

sequent. to September 7th, 1940, Commi ity Credit Cor-

{fol. 197] poration executed a loan agreement with the de-

fendant, Raisin Proration Zone No. 1,-by and-under the .

terms of which said corporation agreed to supply the funds

- for making the advances to producers es set forth in the — |

- 1940-1941 seasonal marketing program for raisins, and that

_ the existence of said loan and the institution and existence

of proration program for raisins and the adoption, ap-

proval and operation of said seasonal marketing program

_ for Taisine for 1940-1941 constituted eoriditions precedent .

" upon which such loan ‘was made. :

vill

—%

That the producer or farmer makes sun-dried raisins ;

by placing the harvested bunches of ripe grapes upon trays

laid upon the ground in the vineyard in such a way that the

grapes are driéd.into raisins by the direct rays of the sun;

that during the drying period the former turns’ the bunches

of the grapes on the trays so that all sides of the grapes.are _

_ exposed to the sun, thus securing a uniformity in| drying;

that when the grapes are properly dried, they are placed in

_ “*sweat’? boxes where the moisture retained in the dried ’

‘grapes automatically equalizes toward. the right propor-

__ tions, completing the curing of the grapes into raisins. Such

| process is ehtirely-accomplished on the premises where the

|: grapes are grown, and when properly done, the grapes have

-_been entirely dried and cured and are a wholesome food and

-,_sound artiele of commerce. They| are then substantially

[a for ey as raisins. The proves of: cleanin anings

stemming, cap-stemming,. seeding (muscats. only), grading,

sorting and packaging in various sized containers, which

is not uniform in packing plants, tends to make the raisins —

more desirable comntercially and thus create a greater de-

’ [ fol: 198] mand. for them in the mar et, but i is not essential

to production. :

7 ae :

That plaintiff is and has beena. iuidlidee 4 of raisins .

-in said zone prior to and ever since the institution of a pro. ~

-ration program for .raisins therein on August 4th, 1937.

That-as such a producer of raisins plaintiff has dealt with

the defendant, ‘Raisin. Proration Zone No. 1, and partici-

pated, in said program during the 1938 crop season year,

and applied for and received and accepted primary and

secundary certificates for his raisins for such crop year.

That during said year 1938 he was.a_ producer only of

raisins bat in the year 1939 he became a packer and since

then has been and now is both a producer and packer of

raisins, and that he produced approximately 200 tons of

raisins in ‘said.Zone in the year 1940. That no seasonal

program for raisins was adopted for the crop year 1939

and no restrictions fof said crop year were made under

said proration program. That-for the crop year 1940 plain-

tiff did not apply for nor receive any primary or secondary

certificates for his raisins and-has refused to apply for the.

same and has not. participated in said 1940 seasonal pro-

gram in ahy manner whatsoever. That the 1938. seasonal

marketing program ‘for - raisins differed from said 1940)

_ seasonal program, in that, said 1938 seasonal | program did

not have any stabilization pool requirement. oo there

are approximately forty raisin packers within ate ol

california, all of. whom have packing plants and ‘aaiee of

business located Within said zone; that said packers made

all their purchases and take all their deliveries of raisins

within the State of Californias that such sales are com-

- [fot. 199] pleted when the délivery,j js miade and practically

ail sales’ are cash transactions; ‘that before packing and

shipping such taisins the packers clear, stem and package

them, using various methods suitable to their rgspective

plants and tending to make the raisins more desirable com- /

mercially; that such ration by the packers i is not-essen- —

tial to pfeduetion That thé raisins‘of the various producers

deliveréd to any packer are coumningled and ho producer has

59.

. any knowledge or means of ow ledge of the ‘subsequent

movement or ultimate use or consumption of the particular

raisins delivered by him and has no legal title therein after

such delivery to the packer and-has no knowledge or means

of knowledge as to whether the same ultimately moved i in

intrastate er interstate commerce, except that at times cer-

‘tain producer packers ship some of their-own production |

directly into interstate commerce. we

ip x

‘That plaintiff. as a packer contracts for delivery of a

very large percentage of the raisins he handles direetly

into interstate and foreign commerce ; that plaintiff. on

September 7, 1940, had substantial orders for out of state

- delivery of raisins. which he ‘could not ‘fill by ‘purchase of

_. “free tonnage”’ and could not 4ll at.all because of said pools.

_-without eomplying with said program; that defendants in

enforcing said program have directly and substantially in-

terfered with. and obstructed plaintiff’s said business and

‘have directly and substantially burdened interstate and

: foreign commerce. ,

I. raatee fe

That defendants has attempted to sabines said act as

impleniented by said prograni against plaintiff and against

those persons who have sold raisins to plaintiff since Sep-—

(fol. 200] tember 7, 1940; that since said date defendants

have maintained watchers at and near ‘plaintiff’s place of

_* business for the pu of ascertaining from whoni plaintiff

~ purchases raisins and for the purpose of preventing sales ~

' of-raisins to plaintiff in vidlation of said program; that de-' -

- fendants threaten to continue to enforce said program -

_against plaintiff and persons selling 1940 crop gaisins to

hini; that defendants have attempted, and-are aNempting .

and threatening, te force plaintiff and all other raisin

growers/ to deliver and dispose of the 1940 crop by and

- through said’ program, ‘ and have attempted, and are at-—

tempting, to prevent disposal of och raisins except through

said program, — fate ihe 3

| <a sida = /

That plaintiff? s said basiness bie great value to plaintiff

and that —e ew, will be done to plaintiff by

See ie

defendants unless the enforcement of said program is-en- |

* . joined. pes: ph ees

Xait.. na :

: That plaintiff j is not eatopped to question the Yonstitu- es

a ‘tionality of said program.

& a. That — has ‘not been guilty of laches..

‘Concnsesoms OF Law. ves

he conclusions of law from the foregoing findings, the

Court holds: -~ mitra D.

B2 ee

That the Court has jurisdiction of this case. |.

eee | as:

* That said seasonal marketing program constitutes and is a

‘a direct, substantial, and illegal interference with inter-

-[fol;, 201] state aud foreign ne in wholesome and

sound | raisins, 3

nt | iT

That plaintiff is entitled to an injunction. permanently

enjoining defendants from erforcing or attempting to pro-

. eure the enforcement in any manner of said program against

plaintiff or anyone dealing with plaintiff in his capacity as_-

a producer, buyer, packer or handler of wholesome | and

sound raisins, and enjoining deferidants from inany Manner * |

_annoving, harrassing or molesting plaintiff or. persons —

doing such business with him. ye

ay *:

That ¢ ross-complainant Raisin Proration Tone No. 1 is*

entitled to nothing by. reason of its Cross-Complaint.

he ~

-¥

“That the outta should he dismissed as to the fictitious

. defendants.

Let judgment be entered spacdinaty,

“4 Done in open Court this 26th day’of Nov ember,, 1941.

~ Albert Lee Stephens, Circuit Judge... —— ——,, Djs-

- trict Judge. pact, E. Hieseeans wes District

| Judge. ap D

‘[fol. 202] In District Covrr oF THE Unrrepv Starrs ror

THE SouTHERN District or Cauirornia, Nortaern Divi- -

SION : : 7.

No. 78 Civil ag ae eee

Porter L. Browy, Plaintiff, |

Vs.

kate, Apvisory ‘Commission, Raisin Proration Zgne No. 1,

Program Committee, W. B. Parker, lra Redfegn, Lyman

. Lantze, James Langford, Mark G, Johnson, oi . Brown,

W.B. Parker, Director of Agriculture, or Pro-

Wm.'F. Darsie, Dr. Dean McHenry, P cKinney,

H. C. Anderson, A. K. -Kelly, Re

Berg, Mesrob Mirigian, Melchior

son, W. J. Ceeil, J. €. Harlan, One :

. Doe, Four Doe, Five Due, Six Doe, Seven Do@and Eight

trofiai, Alex

n, TA. L. Dayid-

*. Rarsrx Proration ZONE No: lla Proration Zone, Cross-Com-

. plainant, .

gk NA Sener

‘ , BS Maat Sie a

_ Porrer L.: Brown, Cross-Defendant.

Frvau J upement—Filed December 4, 1941 |

This case’ came.on regularly for trial before a statutory _

three-judge court convened before the Honorable Canipbell

K. Beaumont, United States District Jdge for the South-

‘ ern District. of California, by calling to his assistance. the

Honorabie Albert Lee Stephens, Judge of the United States

Cireuit' Court of Appeals for the Ninth Circuit, and the

Honorable Leon'R. Yankwich, United States District Judge

Yor the Southern District of California, pursuant to Sec-

tion-266-of the Judicial Code, as amended, (28 U, 8-€-A-

(fol. 203] Section.380), sitting in its courtroom in the Fed-

eral Building, in the City of Fresno, in the Northern Divi-

sion of the Southern District of California: —_- 3

_ _Plaintiff-was-represented by his atterneys and solicitors,

Messrs. Aten & Atenand G. L. Aynesworth, Esq., and the

‘defendants by Earl Warren, Esquire, Attorney General .

ofthe State-of California, ‘and Messrs: Walter L. Bowers,

3 Gbieral,, appearing for W. B. Parker, di

_ ture, ‘Agricyltural. Prorate Advisory Co

B. Parker; Ira Redfern, Lyman Lan

Mark G. Johnson, C..M. Brown, Wm. F. Darsie, Dr. Dean

MeHenry, and Preston. McKinney, members of said Com,

mission, ahd J, C. Harlan; and Strother ‘P. Walton, Esq...

appearing for Raisin Proration Zone No. 1, Program Com-

tee, and H. C, Andersbn, A. K. Kelly, Renald Mastrofini, ~

rg, Mesrob Mirigian, Melchior Hansen, A. L. David- -

. J. Cecil, members of said Committee.: _

he trial “this action was conimenced on April 11, -

1941, and concluded and submitted to the court for ‘its

consideration atid decision on April 12, 1941; that there- ~

- after upon the Court's own motion the.case was reopened

- for the purpose of taking more evidence, and on the 16th.

day of October, 1941, further evidence was offered and

received ‘and the cause then 4gain submitted; and after’

due consideration thereof the court herein made and filed

its Findings of Fact and Conclusions of Law,

- Now, Therefore, pursuant to-the written ‘Padings of.

| Faet and Conclusions of Law herein made and entered,

It Is Hereby Ordered, Adjudged And Decreed:

“1. That the seasonal marketing program for. raisins. for

(fol. 204] 1940-1241 adopted pursuant to the provisions of

the Agricultural Prorate Act of the State of: California

(Chapter 754, Statutes of 1933) as amended, constitutes - |

. and is-a direct, substantial, and unconstitutional - inter-.

. ference with interstate and foreign commerce in Wholesome

_ and sound faisins. . .

2 That the defendants banal: and each. of theme: and.

stiecessors, and all other persons acting under or through

_ their authority be, and each of them is, hereby permanently |

_ restrained and enjoined from enforcing or attempting to

enforce or procure the enforcement of said program, or

‘any portion thereof, against plaintiff, or anyone dealing

or handler of wholesome ard sound raisins, but not as to

unwholesome, urisound or inferior raisins, and from in’any

manner annoying, harrassing, or molesting plaintiff or

persons doing such business wie plaintiff. | Se.

‘ 8. The reason for the issuance of'a permanent injune-

_ 8, of the Constitation of the United States, and that de-

’ “:fendants have enforced said program against plaintiff and

_ persons doing business with | iff a and threaten to cust

tinue such enforcement. -

vate I take nothing by reason of its Cross-Complaint ;

\ 5. That the action is dismissed as to. the fictitious 778 ; ae:

... @nts; and . Pee —

6. That plaintiff have judgment Sor his costs herein ex- -

pended, taxed at $28.75. .

_ [fol. 2061 Done i in open court this 26th day of Novesaber;

. 1941. 2

‘Sit hie Galens: Cre Intn;—— De.

- “4 triet Judge; _ Campbell E: ee, Distriet eH,

- [File endorsement omitted. ]

ome So py - 9

eg "{fol. 206] - In Disraict Cones or THE Unrrep States ‘ y

3 [Title omitted) >:

Permox FOR Avreat—Filed December 26, 1941.

To the Honora dle. Judges of the Above Entitled District ‘

Court of the United States:

. Whe defendants herein, W..B. Parker, Director of Agri- .

cu Agricultural Prorate Advisory Commission, Raisin

_ Proration Zone No. 1, Program Committee, W. B. Parker,

Tra “Lyman ‘Lantze, James Langford, Mark G.

Ai _ Sohnson,.C. M. Brown, Wm F.Darsie, Dr. Dean McHenry, ety Ag

‘Preston McKinney,.H. C. coir A. K. Kelly, Renald + ~

. - Mastrofini, Alex Berg, Mesrob Wirigian- Melchior Hansen,

A. L. Davidson, W. J. J. C. Hartan;am: each of — -

Shem, feeling aggrieved by the final decree and permanent

iow rendered by the Honorable Albert Lee Stephens,

Indge of the United States Circuit Court of Appeals for.

Rca — Cireuit, the ore eo E. Bearimont

ib” / ; Pi

oUt % . >

tne “ 7 or “ey Se icee

; ° ’ s ; “4

3 : < ; a!

- 3 J e .

DE a ag Pawns

° re f : :

sich Cas Vandi bain R. Yankwich, dedees of the Dis. ;

trict. Court of the United States for the Southern District _

of California, organized and sitting as a three-judge court :

under arid by. virtue of the provisions of Seétion 380 of

(fol. 207] the United. States Code - Annotated (Judicial -

+ Code Section 266, as amended) for the hearing and deter- x

- mination of this cause, and entered in the above entitled.

cause on or about December 4th, 1941, do hereby appeal .

‘from said final decree and permanent injunction to the: ,

' Supreme Court of the United States. : —

The particulars whezein they, and -each of them, cons — |

sider such final decree and permanent injunction- errestous

are set forth in the Assignment ‘of Errors filed herewith,

; to which réference is hereby made. —_ ;

.. They’ pray, and ‘each of them prays, that this. aes ia

‘alowed; that a. transcript of the’ record, proceedings: and —

papers upon which said final decree and permanent injuiic-

be transmitted to the. Supreme Court of the United States —

under the rules of” ‘such court in such cases ae and pro-

* CMS ~

- And they further pray, and each of thent dae, that the

proper order relating to the requiréd — to be re-

‘quired. of them be made. son

’ Dated: December he ht Zona S ee

oo Warrerr, ttorney General of: the State ‘of Cali-

_ fertiia, Walter, L. Bowers, W. R.. Augustine, Gil-

bert F. Nelson, Deputies Attorney General.

- Attorneys for defendants. W. B. Parker, Digector of:

[ fol: 208) Agriculture, Agricultural Prorate Advi-

~ sory Commission, and W, B. Parker, Ira Redfern, -

.. Lyman Lantze, James Langford, Mark G. Johnson, —

C. M. Brown, Wm: F. Darsie, Dr. Dean McHenry. |

atid Preston McKinney, members of said Commis- |

sion, and J. C. Harlan. :

| “Strother Pp. Walton, Attorney for datestnata: Raisin

pues Proration Zone No. 1, Program Committee, and

_.-. ° HC, Anderson, A. K. Kelly, Renald Mastrofini,

Alex ‘Berg, -Mesrob Mirivian; Melchior. Hansen,’

A. L. Davidson, and W. J. Cecil, members of said,

‘Committee.

mat orpane Sayer regent PRLS LO TE PS NS NY EARLE RVI

: oe 65

_ .. + Orper Attowmra ApPRAL : |

The leingting petition is. hereby granted and the appeal

of the defendants named, and each of them, is allowed upon

“atueacnse Siete <>

A aris ‘Decembér 26, 1941. - Bree

Albert Lee Stephens, Judge of the United States Cir-: -

- Court of Appeals for the Ninth Circuit, sitting

under ‘ eetgatons’ of. Section 380 i S.C. A.

fol. 209) Ix Disratcr Court OF THE Unrrep Srares :

; _ [Title omitted].

By “Assion xan OF Error—Filed December 26, 1941

4 Now come the defendants in thé above entitled cause, 7

W. B. Parker, Director of Agriculture, Agricultural Prorate

Advisory Commission, Raisin Proration Zone No. 1, Pro-

gram Committee, W. B. Parker, Ira Redfern, Lyman Lantze,

- James Langford, Mark G. Johnson, C. M. Brown, Wm. F. |

Darsie, Dr.. Dean McHenry, Preston McKinney, H. C. —

. Anderson, A. K, Kelly, | ld Mastrofinj, Alex Berg, - -

Mesrob Mirigian, Melchior Hansen, A. L. Davidson, W. J...

Ceejl and J. C. Harlan, and each of them, and in.connection

with their petition foy4ppeal, present and file the following

- Assignments of Error upon which they will rely on their

appeal to the Supreme Court of the United States -from

the final decree and permanent injunction of the above .

entitled District Court of the Uni States, entered on or .

‘about December 4, 1941. pees

That the District Court. of the. United States, i in and for

‘the Southern District. of California, Northern Division,

_ and the — Three. J wee Cems ee _ sitting ~

_ hersin, erred: :

_ 1, In failing and refusing to grant defendanita’ iniotion to

dismiss the above entitled action and in failing aid refusing

-[fol. 210] to dismiss the same, and in issuing a permanent

infjunetion against the: defendants herein. * :

“2. In finding and - holding ‘that plaintiff has not ‘been

- pailty of laches and is si anepers to question the constitu-

- 59886

ae et Fat

2 herein mentioned.

\ . . *. ! .

: eek a erage ee

. : .* . -

- \ * : . :

. ; . -

obi od . . on -

4 . i : ro nS ‘

: ire : . we os 5

. . =

tionality of" the seasonal proration program for raisins

‘ae holding as a conclusion of law “vat the court has |

jurisdiction of this case and in failing to — this action

for lack of jurisdiction.

4. In holding as a conclusion of law that the second

a markating program for raisins mentioned herein and in this —

action constitutes and is a_ direct, substantial and illegal: _

interference with interstate and. ao commerce in whole- :

‘-gome. and sound raisins.

5. In holding as a conclusion of law that plaintif is is en-

‘titled to an injunction permanently enjoining defendants

from enforcing ar attempting to ‘procure the enforcement

in any manner Of said seasonal proration or marketing :

‘program for raisins against. plaintiff or any one dealing .

with plaintiff in his eapacity as a producer, buyer, packer

- .or handler of wholesome and sound raisins, and enjoining —

defendants from in any manner annoying, harassing or .

- molesting Plaintiff, or ‘Persons _— such business with a

him. —

6. In failing to maui a PS the eaters found in

Paragraph-I of the Findings were or occurred in connection -

-with interstate or intrastate transactions, and in failing to

expressly find that all of:such penalties and all of the busi- |. .

ness and all of the damage set forth and mentioned in

Finding I were solely and wholly intrastate... |

- {fol. 211), ‘7. In finding in Paragraph I of the Findings

that defendants ‘‘have directly interfered with and ob-

structed: plaintiff's said business and thereby damaged the

plaintiff in a stim in excess of $3,000.00"’, contrary. to the. -

evidence introduced. and not. in’ response to any issue or

} ‘pleading in the case.

8; In.overruling and dereginding deféodante’. objections

. to the finding set forth in Finding VI, and leaving in said

finding the statement ‘‘that 90% to 95% of the naturally

dried raisins consumed in the United States are produced i a

said zone’’ without any evidence whatsoever. in support

thereof, and in leaving in said finding the statement ‘‘that

(905% to 95% of such raisins produced in said zone are

consumed outside the State of California’’, contrary to

the evidence and the stipulation that ‘such raisins are: sulti-

mately consumed both within and without the State of Cali-

fornia, but 90%- to 95% of the raisins consumed as raisins,

- - and for humah consumption, are: st eonsumed out:

spe side of the State of California.”’

9, In overruling and disregarding ‘defondante’ objections

to the findings. contained_in-_Finding VIII and leaving in

said finding the statement that ‘‘where the moisture. re--

tained in. the dried grapes automatically equalizes toward

the right proportigns, completing the curing of the grapes

into raisins. Such process is entirely accomplished on the

premises where the grapes are grown and. when properly

done the grapes have been entirely dried and cured and are’

a wholesome food and ‘sound article of commerce.’’,-con-

trary to the evidence and the statement. of facts, and also

. Jeaving in said-finding the statement that ‘‘the process of

’ [fol. 212] cleaning, stemming, cap-stemming, seeding, (mus-

. eats only), grading, sorting and packaging i in various sized

containers, which is not uniform in’ packing plants,

tends to make the réisins more desirable commercially and

thus‘treate a greater demand for them in the market, but is

‘not essential to production.”’ _— to the évidence and

the stipulation of facts.” :

: 10. In overruling. ee disregarding defendants” aides: iG

tions to the finding contained in Finding LX, and in leaving .

in ‘said finding the statement ‘that before packing and

shipping such raisins the packers: clean, stem and package

them: using ‘various methods suitable to their respective

' mercially; that such operation by the packers is not essen-

tial to production. ”’, contrary to the evidence and the stipu-:

lation: of facts. ah

“1h. In overruling and tse défendants’ objeo-

_ _, tions to each and all of the findings set forth in Paragraph

.. X thereof, and in leaving in said paragraph X the findings |

therein contrary to the evidence and the stipulation of facts,

: and in leaving in said finding the helding that the defend.

ants ‘in. enforcing said program have directly and sub-

stantially interfered with and obstructed plaintiff’s said -

business and have directly and substantially burdened inter-

- State and: foreign commerce. =

plants and tending to make the raisins. more desirablé com--

68 eat . Big 8s!

"42, In holding aad finding. a « tagt ta Winding XII

“that plaintiff’s said business has gréat value to plaintiff ..

_and that irreparable damage will be done to plaintiff by

defendants. —_. she enforcement of said program is en-.

‘ joine’. ae

(fol. 213] 13. In holding and -ruling that the caianieate

_proration program for raisins directly burdens, and in hold-.”

14. In holding and ee that such program is nal based :

upon the protection of the industry through exclusion from

the market of unfit raisins. -

15. In holding and. ruling that -such program is not a

regulation -of proper conditioning of the - raising prior to

their being offered to the consumer.

16. In holding and ruling that. the production of raisins

and ‘the drying and curing thereof on the premises where

the grapes are grown is complete on said premises.and be-

-: fore said raisins have been cand cured and re. been

cleaned, stemmed and packaged.

17. In holding and ruling that the cleaning, initiates

cap-stemming, seeding, sorting and grading i is ndt-any part

of production of such raisins, and i is. not conential to such.

production. , . be

18..In holding and ruling that tHe purpose nt necessary

effect of the seasonal proration program is to place a con-

_ trolled embargo on the State’s raisin production.

19, in holding and ruling that the seasonal preration

programt is simply a’means of controlling the supply of

raisins in opinterstate trade channels. :

A 20. In holding aid ruling that any saiulaaban of .the

amount of wholesome raisins- which may bc produced, har-

‘vested and prepared for market i in accerdar te-with and in |

“the amount and.at the times that the available market will’. -

absorb the same is a direct burden and obstru ttion of inter-_

state commerce and not an aid and benefit th reto.

[fols. 214-224] Wherefore, defendants and aj;pellants | here- -

in pray that said final decree be reversed ind said_ per-

manent injunction dissolved, and that said’ District Court

. of the United Seana 1 in’ end for the Bouthera District of

California, Northern Division, and the Three Judge Court

“organized and sitting therein, be ordered to enter a decree ~

-"” peversing the decision of the lower court in said cause, and

_ .dissolving: the ‘said ‘permanent injunction, and for. such ae

other and further neniet as to the Court may seem fit and. ae

, sane

Radom cclialtted; Earl ‘1 Warren, Acniiney Sek.

_ eral—__Waiter i. Bowers, W. R. Augustine, Gilbert. -

‘F. Nelson, ‘Deputies At

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