# Transcript of Record — Parker v. Brown > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0066%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1943 - **Citation:** 317 U.S. 341 ## Text ee i: : eR ANS S sory. : a mo | Pe " 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 a ‘ 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. ~~ oe? v . : (_ NO : 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. ——- ——" ientioned onamootk (eee Ko aS Se |..lUCUCmMNR CU C!.UC(iR SE Ee Se. eee oF oe ee 1 OL on r ak lata ay ia i HMA i ete o 1 sifeaneace aaRAG aae BARRE a az 2 cory TTT inehiieiele Statement of point tobe relied upon and designation of parts of record to be printed... Designation of additional parts of record tbe printed... ee ai prelernimenl nik penieeeremetion ll nd . e . . - GON oss Fi poe = | 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. >. a 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; (c) Maintaining watchers or r spies ‘within sight. of plain- ee 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 ‘ : ee Deny each and every averment contained i in paragraph I -* of said firsPamended complaint. o "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 Q 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 , ee _[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- 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 | = Xi ~ 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, — il - 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. . 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.-* * *’? ~s -- [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 So . ae : 2 ‘ . » . *- “ 5 ~ . - 5 5 . . ° ; , . ° aes = ‘ - - " . . ~ ! , ’ . ° . ' ; 4s ; : { . . ; ry . 3 OF. ° > 2 24 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: : . 2 **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 25 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 oT _. 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, — a 28 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 © 7 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. | © rom the time of the delivery of raisins by the producer. - 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 eh [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 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 . f nt : » M « be mee y er et- i \ pri cs 2.” m ma : ‘ 2 : wos a se ; ° ie 3 ; : F ; : ‘ P % .) ae : | . ° * ’ ipa ce . P : 37 ~ | : : Defendants point of alleged distinction’ seems to be that in 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 41 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 ae 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 “ 43 ' 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 44 oe 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. o~ 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. ‘‘ 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 . 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 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 : 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 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-.” ing ‘that it effectively ees free flow of interstate © 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 Attorney$General. Strother — ‘RP. Walton, Attorneys for Defendants and eect at [fol. 225) In District Court OF THE Uxrep Srares 3 or [Title omitted] eee Onper 1 TO Traxssrr Oiiscamas. Exursits—Filed February 13, 7 1942 - it being” proper ‘ie the opinion of the Presiding Judge — .: Jin the egurt from which the appeal herein.is taken and the: . Jiidge-who signed the order allowing such appeal and the . ¢itation herein that the following “described instruments, oe - papers, documents ana exhibits in evidence in the above - cause be inspected by the Supreme Court of the United States-upon the appeal thereto in said-cause :. . It Is Therefore Hereby Ordered that the Clerk of thi court safely transmit to the Clerk of the Supreme Court of the United States at Washington, D:-C.; to be safely kept by said Clerk for -the inspection and -use by said _ Supreme Court in the consideration of the appeal in this cause. the following records, instruments, papers, docu-' - [fols.. 226-230] ments and exhibits in the above entitled _ cause,towit: — . (a) Plaintiff’s Exhibits 1 to 5, both inclusive: _{b) Plaintiff’s Exhibits 7 to 14, both inclusive ; (c) Defendants’ Exhibits’ ‘A, B, C and dD.’ - Itis further ordered that it shall be unnecessary to orint . any of the same as part of the printed record on appeal | herein, and that upon the final determination of said cause - Pia: ‘the — Court of the United States said exhibits wns “TO: on his own behalf, — muy duly = SWo lows: ee er eee — shall be- ani returned to the Clerk of this court to be = es : by him on file herein. — . eas ‘Dated: February 13th, 1942: SOON ee Albert Lee Stephens, Jydge of the United States Cireait Court of Appeals . for the Ninth Circuit, sitting under provisions of Se US.C:A. . undersigned counsel for the respective parties “to the above entitled action, do hereby. stipulate and agree — to the above and foregoing order. ‘Dated: February 11, 1942.° > Aten & Aten & G: L. Aynesworth, Counsel for.Plain- tiff and Appellee. . Earl Warren, Attorney General, ~ Walter L. Bowers, Deputy -Attorney. General, © @ Strother P. ‘Walton, Counsel for ep aera and Appeneete: : oy : [fol. 231) In Unxrrep Srarzs District Court © Statement of the Evidence fromi Reporter's Transcript of | April 11 and 12, 1941. . FP resno, California, Friday, April il, 1941, 10:00 A. M. ‘whe Clerk: Porter L. Brown vs. W. B. bine arid others. - ~ Porter L. Brown, the plaintiff herein, ¢alled as a witness’ weatided as fol- Judge Beaumont : You may be seated, Mr. Brown. Mr. _ Aten, it seems that it would be well at this time, before any __ testimony is taken, if you will make a statement, which I arm . sure will be agreed to, as to the nature of the limitation of . the issues and, also, as to the stipulation that has been - filed. However, I. think the stipulation probably speaks for itself in that respect. Is this the original! . Judge Beaumont: This appears to be .the origins}; “not -- the carbon copy. So it will be filed as a part of the record + in this ease. And that was your intention? =, - Mr. Aten: That was the intention. i eager Mr. Bowers: Will it be designated as an exhibit if it is - part of the record? Judge Beaumont: If you ‘deales. to have it made: “as an : “exhibit, you may do so, bat . it is a -_ ‘of the record, it” ——— Cee hE ORE * Aa ah will be before the Court for ali purposes. “If you think it” _-would be more easily referred to as an exhibit, it may be_— received for that purpose, but it isn’t mecessary, -so-fong as it is part of the record of the case. It has been suggested by Judge Yankwich that it be marked as. parties’ joint © + [fo!. 232] exhibit. Is that agreeable? a “Mr. Bower’: That is agreeable. . . _. Mr. Aten: That is satisfactory. Under the stipulation the parties have reserved the right to introduce evidence - - on any matter that they: deem material, and we atso made the reservation, in the ‘stipulation, that matters contained -in the stipulation, as to the facts, that we reserve the right to argue that they are immaterial: I think the only matters, ws far'as I know at this time, on which the “plaintiff will: introduce evidence is on the jurisdictional issue and on the method of disposal of raisins when they go through the _ packing housés and into interstate commerce.> _ : ' Judge Stephens : Isn't that fully Set-out in the stipula- - tion? - \ Mr. Aten: Iti is quite *».y set ont, ‘but there is a reser- | vation, as to Muscat raisins, as to both parties. . ‘Mr. Bowers: That is correct, may it. please the Court. _ We agreed, as far as we could,.on, that, but there were other matters which \we. claim took 1 ace and we didn % agree " upon, so we resera\ them. | ; Mr.’ Aten: It is agreed, so far-as the plaintift is con- : cerned, that the case be submitted upon the constitutionality of the program, as implementing the Prorate Act; that the’ - _ itself 4 is not here attacked. Is that. as you understood It 2 ‘Mr. Bowers: That is, correct. ‘That is agreeable as to = your defendants, is it not? Mr. Walton: Yes, as far as we are concerned. Judge Beaumont Very well. ‘You may proceed ° with your testimony. : [fol. 233] y irect Examination. By ‘Ar. Aten: Q. Your name? ' A, Porter Brown. Q. You are the plainti— | in this action | A “Yes, sir. Ne * ‘ » Yes/sir. Ee @: You hove boca in the packing business car . yourself during that timet ae “A. Yes, sir. Q. And: have also. Sous interested i in | growing for about * the same time?. | _ A. Yes, sir.. ' Q* Have you, in the last -five ‘years, kept seiiaiili in- .. iformed as to markets and production and other matjers —_ the raisin business, —* rs A.-Yes, sir. ? . Q. And in detail? By Mr: Aten: a Q. Mr: Brown, you allege in your pleadings that. you, im . thade contracts in May 1940 for disposal of raisins in the fall of 1940; that you hed oot, under contract, eqrtnin tons * . of raisins? ‘A. Yes, sir, © | _ Q. Thave here thosé three contracts that were ‘introduced before. I refer you to-Exhibit No. 1, introduced in this ‘ hearing before, and ask you if that is one of the contracts . [fol. 234) that you had‘at t that time? 5 A. Yes, sir. : Mr..Aten: I will offer thin contrent, if thé Court, jliase, as Plaintiff’s Exhibit No. 1. And I, wili offer all of these éxhibits as I come to“them, and they can have the same number that they bore in the prior hearing. “* ; Judge Beaumont: I think.that would be well. Let it be — received in evidence and marked as Plaintiff’s Exhibit: 1. Mees 8 eS . Q. This contract, Exhibit No. 1, was for how many tons, Mr. Brown? 2 A. 125 tons. .- Q.. That was made in May, as it shows, of 1940, and at ‘aa price ; that is, the sales price? is, $60 | that the price at t that ‘tant ay ae j* That was the going price—the isoing sales Price at: a3 the time. ‘ ‘Mr. Aten: We will offer the letter that was introduced . before as ‘Exhibit 2, and ask that it go in now as‘ Exhibit ; r written by the American Trading * Company, the cancellation for non-delivery. And in that letter they stated that the price was now 4 cents a pound _ @nd that the whole damage | to $2,275 on account ._ of that contract.’ Is that: co ? ' Mr. Bowers: No oujection to it. re . Wudge ‘Beaumont: Let it be received in evidencw and | : marked Plaintiff’s Exhibit 2. Saas Mr. Aten: Very well. We now offer Exhibit 3, which . {fol, 235]: was introduced in the prior hearing’ in this _ matter, a contract made with West Coast Growers and Packers in May 1940. Q. For how many tons was that, Mr. Brown? _ Tay ae Beaumont: Well, doesn’t ‘the exhibit speak for - i ? : -* Mr. Aten: Not in tons.. Iii is im cases. 10,000 cases. Judge Beaumont: Very well. \ . By Mr. Aten: Q. What tonnage would that bet” 9 | A. 125 tons. | gene wks Mr. Aten: We offer that. | . Judge Beaumont: Let it be received in evidence and marie Plaintiff’s Exhibit 3. By Mr. Aten: Q Is it customary, ‘Mr. Brown, and has it been customary see. for the packers to sell raisins in advance of the growing season? : ; AL Yes, sir. ~ Q.-And-were others doing it during this same time! \ ° Bo sir. . ere they maki sales on the sam basis Ling viade them v ng e is that you ‘| ‘ | EAN oR A. Yeu, the smaller packers were making sales on the : seme basis, - Referring to the third contract, the one that has been marked Exhibit 4 in the prior oe for how -many tons was that? _ A. 200 tons. Q. And the contract siete it tat the same price? Judge Beaumont: Do you offer that?. Mr. Aten: We offer it'as Exhibit 4. “ Judge Beaumont: Let it be’ received and marked as ‘. fol. 236) Plaintiff's Exhibit 4. “s ; _ By Mr. Aten: @. Did you have other contracts, Mr, ashicon that yeu had made in that month? ; eA. Yes; one. Q. For the sale of raisins: in the fall of 19401 A. Nes, sir. - . With whem? A. We made one contract with the aes Distribu: . tors of California for 10,000 cases. . Q. And for how much enaget : A. 125 tons. . -° Q. At the same price? | ~ A. ¥es, sir. + Q. I will ask you if this i is that contract? _ A, Yes, sir. ’ _ Q. Mr. Brown, you have mentioned that you had one | - other contract with the Dred Fruit Distribators of Cali * . fornia for 125 tons. What other contracts did you have, if any, that vou made in Mav 1940, for fall delivery f. A. I had another conttact: with the Amerivan Trading. © Company: for 15,000 cases. \ ; . And the tonnage of that? A. That is 187% tons. Q. On the same* basis as the other contracts! A. Yes, sir. =~ Q. What did that make the total tonnage that you had - tom contracts on, in May; that is, for the fall of the: year! - A. 762% tons. ; Q. On the basis of a sales: price of 3 cents? [ fol. 237 a A, = sir, } o> > | Me. Aten: £ will new ak te tatrodans ta. svidvonsthe Proration Program Bulletin of Feb inert duced.as Exhibit No.5 in the preliminary bearing here, and — _ ask that it be received again as an exhibit under. the same number. - - Mr. Bowers: I object to that as badenmebene, irrelevant: and immaterial under the present. issues... The only mater-* iglity I see. j that it gives certain statistics teadh am _ eperations, are given in the stipulation. ‘Mr, Aten: It is material, of course, to show the ‘inter. . ference with commeree. Also, there is a statement, con- tained in the. bulletin, that the price of raisins, that is, the ‘sweatbox price, the price to: the grower, if it had not. ’ been forthe prograin, would have been for the 194% raisins: -- not over $40 per ton; a statement made by the defendant | in the action.. . -Judge Beaumont: We-are of the opinion ‘that it should x be received in evidence. It may be received and marked as Plaintiff's Exhibit No. 5. The objection i is overruled. -- By Mr. Aten: ! e Pie. tealted a shaenent ean: Me. hveees, shat a con- tract with the Dried. Fruit Disteeet for 125 tons. Is _ this the contract? — A. Yes, sir. es Rial icieshivsttsanilcen Rinses tba- .* ing Company for 187% tons. Tn this that ¢ contract? A. Yea, dir. Mr Aten: I now offer a communication from. the Pro- | ration Program. Committee, dated January 13, 1941, which was introduced in the prior hearing as Exhibit 7, in which it ie [fol, 238] is stated that now they are offering . raisins for. ~ sale out of the pool. ‘Judge Beaumont: There ‘belie no objection, Ne it be | received i in evidence and marked as, Plaintiff’s Exhibit 7. | Mr. Aten: I offer Exhibit 8, the contract,. about. which the witness has testified, with fhe Dried Fruit Distributors of California, dated May 22, 1940, for the sale of: 125 tons © of raisins at the price of 3 certs per pound, as Plaintiff's - Exhibit & Ben Beaumont : Let it be received i in evidence and so ae ‘Aten: :I offer Plaintiff ’s Exhibit 9, the contrat, about - = / - ery, did you not? "ah eels 6 ‘6. : _which the witness has heretofore testified, with the Ameri. = ean Trading Company, dated May 14, 1940 for 187% tons ~ at the same price. Q. I believe. you -stated, Mr. Brown, the total tonnage » -coveredl by these various sales contracts, did: you? - Judge Beaumont: He did so state. Mr. Aten: Yes. : Q. You had how many tons of your. own? A. 200 tons. Q. 200 fons. So in order. to fill these contracts how many —- tons was it necessary for you to pare? Mr. Aten: Yes, ‘your: Honor. I offered Exhibit ee 9. Judge Beaumont: 1 think the Court should rule on that - before we proceed with. this other matter; Let it be received : ’ in evidence and marked as Plaintiff’s Exhibit 9. | ‘Mr, Bowers: What is the date of that? .. Mr. Aten: It is May 14, 1940, with the American Trad- ; (fol. 239] ing Company for 187% tons at’3 cents per pound. ’ ‘ Judge Beaumont: Let ‘the offered exhibit be received 3 and marked as Pluintiff’s Exhibit 9. By Mr. Aten: ae Q. You did keep in touch with mariste ha other con: ' ditions affecting the markets and conditions that: would [fol. 240} were available. Q. That i is, 70 pereent werr, set ante’ in n these pools? A. Yes; sir. -- Q. Only 30 percent was available’. ° ‘A. Yes, sir. - | : | Q. And ‘the sweatbox price, f rom that time on,. was $55? \ A. $55 or better. ° a By Mr. Aten: Q. Were any | raisins available, M r. Beown, at a less” price, for the filling of those contracts, than ao per ton? JA. No, sir. gies Mr. Bowers; We object to that as indefinite, as to what tinie- he ‘is speaking of. “The contracts were: ‘made in. May. - _ By Mr. Aten? 7 cre SS ¢ Asa matter of fact, could you, atthe time. the centres _¢alled for delivery, have ‘filled the contr acts from the 30 per- © cent free tonnage, so-called, under the program, if you had Se operated under it? Were those raisins available? Mr, Bowers: We object to that. As calling for a conclusion ef. the witness’ and incompetent. Obviously, under the so stipulation as to the amount of tonnage, there were sales, so they must have been available. . Judge. Beaumont: What you are doing, you are ‘asking him to determine the matter without giving the facts, You are asking him if it was available. I don’t believe. the '.. objection was made. on that basis. However, ‘the objection is overruled. You may answer. o .' f |S ee tried te buy raisins at ‘that: time. There was no _._ [fol. 241] money here for raisins under the prorate pro- : —_ and the. growers were > not ‘inclined to ‘sell. . oes akan , By Mr. Aten: Q. That is, the grower had a ies of 70 percent, eunder | the program, before thé 30 poretert was available? A. Yes, sir. : By@fr. Aten: Q. Were there raisins ; available, in the 30 percent free tonnage at that time, sufficient for you to fill ath cont recta! A. No, sir.. | By Mr. Aten: Q. You have testified that you | produced 200 tons—— AC Yes, sir.” . Q: —as a@ grower. Then if you operated under tlie pro- gram, what amount would a have to pay into the prograin : per its operation? A. $150. - Q. If you had operated under, the. - program, what, extra’ cost, if any, did the program impope on in the purchase —_ of raisins? A. $1.50 per ton extra. Q. $1.50 per.ton extra. In addition to these 0 562%, tons that you would have had to purchase to fill these contracts, | what other tonnage had you anticipated hata te dg dur-. - ing the year in fhe conduct of your business? Mr. Bowers: We. object to that as purely incompetent, ~ as to what his anticipations might have been. Mr. Aten: If the Court please, it is alleged that ‘he anti- cipated shipping 2500 tons in additivn to the actua} con- . tracts. This man is in business and ‘has been. in business | [fol. 242] for many years. He should be allowed ‘to, state . . his anticipated busin e Mr. Bowers: It is a well v reopgnined rule that anticipatory profits or losses are not competent in determining the element of dameges, - Ber ies Judge Beaumont: ! think it should be overruled. You. may proceed. By M r. “Aten: Q. Ww hat: tonnage had you anticipated! 7 eae expected to ship, during the. ‘Season, 3,000 tons of raisins, Poh , 79 J nag’ Yankwich: That i is based upon your average fc of a period of years, is itt : A. That i is based on my y tonnage for the prior year, or 2,000 tons, with an anticipated 1 increase. By Mr. Aten: ; Q. Mr. Brown, I will ask. you to summarize, then, what you have already said.” What is the total of the difference between operating under the program and without it, it rom ~ what you have said, , summarizing. the figures? Mr. Bowers: We object to that. He has already given the figures. It has been asked and. answered.. ° 7 Judge Beaumont : You may answer. Objection over- ruled. : o é A; It would figure about $5800. By. Mr. Aten: : Q. Let me uk 7 Wnt it items. ea that amount? - A. The figuré of $$) a ton on 562% tons, phus the $150 penalties, and plus $1.50 per ton extra buying cost. . Q. I don’t believe that the total you seve is the total figure. What i is your | total ‘figure! . “s A. $5800. ~ -Q. I don’t believe you ‘figured your $1.50 a ton on your _ {fol. 243] 3,000 tons. _ + Judge Beaumont: This goes to show that Mr. Bowers’: _ Statement was very proper. It is a matter of computation. Mr. Aten: It is a matter of computation, yes. I have | prepared, if the Court. please, in triplicate, and a copy for counsel, a summary. of it, and also a summary of the prin- ciples governing the proof of ‘the loss and damage, which: vA ‘ ‘ hate I will submit at this time. Judge Yankwich: Wouldn’t it be more properly ane mitted in conjynction with your argument, as a summary of the evidence i in the case? 3 By Mr. Aten: Q: Mr. Drow n, let me "ask you this; {u,the transaction of - your business do you or do you not transport the raisins from the producer to your plant? What is your custom in that ti ; RO . A. We iiave oplienat to ail the raisins from the grower, and in ‘the majority. of cases we haul the raisins from the grower» ranches.’ Q. Do you mean by that you take diltveds of the raisins on the farm ; you get them on the farm aud take the delivery there? A : AL We haul them. Q. In the. majority of cases! “A. Yes, sir. Q. These contracts that have been inirodneed, as counsel - has pointed out, are made mostly with people in the state. - Will you state where those were to go? - For instance, take - - your American Trading Company contract. Where were | those raisins to go? Where were they to be shipped to? ’ Mr. Bowers: We obiect to that as incompetent, irrele- [fol. 244] vant and immaterial. : It is beyond the contract. Mr. Aten: The contract doesn’t state, I believe. Mr. Bowers: The contract states they are to be. delivered to them, f,o.b, its plant’'at Kerman. . Judge Beaumdnt : I think that objection should be ov er- ruled. Mr. Aten: First I will ask the ) generat question. I vill withdraw that for the moment. Q. In your business i in 1939 and in your basiness in 1940. what percentage of your shipments. of raisins went intra- . state, that is, within the state, wa what percentage went without the state? Judge Stephens : Isn't there a _ stipulation that Mr, : - Brown’s raisins took the usual course? Mr. Aten: That is the fact. Judge Stephéns: Will there be any proof that thay didn - We take the usual course that is covered in the stipulation, and that a large percentage of his raisins did go out of the state, or were supposed to ‘have gone out, at the time this. contract was made? "~~ asain bab . Mr. Bowers: No, I don’t think aaa Serres Judge Stephens. Just the same as any other large amount of raisins? Mr. Bowers: I don’t-follow the Court on that, in regard ‘to the _Stipulation. _ The stipulation says that ultimately the bulk of the raisins that are used for human consumption are consumed by the ultimate purchaser or consumer out- * i " en Sr isi) anemia ae ies Uc kaneis Ear RAE ah Rd Cock Spl RRR Ee asa tin aera Gt he BAe ASIST GENE AS ES ONL HEHE PRE I RR ERE Be INS UTTER TE PGI , . side the | state. But there is no siieabattnn that the bulk of - Me. Brown’ s sales, or the ‘bulk of any other sales by packers-——. (fel. 245] Judge Stephens:-I undeeatanl thet - Waik chat is exactly what I am asking. Do you contend that his raisins took a different course than that referred to as raisins in general? es pe Mr..Bowers: No. -. . Judge Stephens: It seems to me ‘to be covered’ by the stipylation.. Mr. Bowers: We consider it is 5 typical that he made his* sales; all were intrastate ; and delivered them all intrastate. Judge Stephens: I understand your point on that, but they would eventually leave the state. Mr. Bowers: I think the bulk of them ordinarily left the ‘state. Iam not saying they did. There is no way of telling. Jude Stephens: Your point is that as far as this contract is concerned, they may not have left the state? . Mr. Bowers: Yes. 2 - Judge Stephens: But you don t contend—— : Mr. Bowers: We .don’t deny that on tlie average 90 ‘percent or so, that were used for human consumption, went : outside of the state. _ Judge Stephens: And that applies to the raisin’ that are immediately being inquired about? . Mr. ‘Bowers: As to their ultimate consumption, . as far as I know) it. does. I haven t any knowledge or any proof * on it at all. eae Judge Stephens: Will we so coimahdes it? ‘Mr. Bowers: I don’t know what else you can consider, ; * edaaies I don’t think there is any, way in God’s world to (fol. 246] tell. oe Mr. Aten: I think your Honor stated the fatter correctly, as far as the law is concerned. _ Judge Beaument: Ae far as the facts are ssead, is there any disagreement here? If there is, I think Mr. Aten : should proceed with his proof. Mr. Aten: We are prepared to show that 90 percent, at _ least, of Mr. Brown’s shipments under his contracts were to go directly out of the state, either into foreign countries _ ev qther states. While we think your Honor’s state-— ment—— Judge Stephens: Don’t you mean to say “eventually,” insteadsof ‘*directly’’? 6—9886 ED SMELL TI — ATT ERE, GA ACCEL PDP SEIS NEOUS Vee en ae es oe Sa e : . ‘o 6 . . . . : Mr. Aten: No; I mean direstiy: Mr. Bowers: We | are not prepared to eas on that. Your statement about ‘‘eventually,’’ that they eventually go there, I agree with Judge Stephens’ statement. that ev entually the stipulated figures would apply to any of the raisins; raisins of this plaintiff, or any other, as far as I know. © Judge Yankwich: Mr: Bowers, do you intend to go be- _ yond the limitation that you have on page 5, lines 1 to 7; . that is, that the individua!. producer never knew ‘whether his particular raisins were going to go into interstate or _intrastate commerce, and that,on the basis of the doctrine ' of averages, probably the same percentage went into inter- . _ state commerce’ for each particular producer, because you © couldn’t segregate those that were. kept in the atate und | those that went out; isn’t that right? Mr. Bowers: ‘That i is correct. Judge Yankwich: Isn't that the extent of your Limitation! : [fol. 247)" Mr. Bowers: That is correct. : - Judge Yankwich: Then, of what materiality is it whether . these particulag raisins would ultimately-—— “Mr. Bowers: I don’t think it is material. = Judge Yankwich: The éffect of interstate commerce isn’t ‘determined by what became of. the raisins that this witness 3 handled, but what the prorate program achieved... _- Judge Stephens: I think it does, as to whether there was adamage. : Judge Yankw ich: Yes, except for damages.’ - Judge Stephens: Nobody is contending hege that the 5 or 10 percent, that is wholly consumed § in the state, went to make up the raisins here? | , Mr.. Bowers: No; there is no eon tention about that. S _ Mr. Aten: While we thought it wasn’t material, there was some contention about it and some suggestion for it. We didn’t want to leave any question about it at all. J udge: ‘Beaumont: Proceed, ate. Aten. By Mr. Aten: Q. What percentage of the raisins handled by you in nthe ' oyear 1939 went into interstate commerce? - Mr. Bowers: We object to that, if the Court plese, as. iminaterial., Mr. Aten: Well, we have. also covered that by the — ma lation. . . 0 ee —— ae 83 Sales Seimmeat. It is sustabiied. I think counsel has | withdrawn the question. . By Mr. Aten: Q. What niercentage of the raisins, provided: by these | contracts in evidence, were shipped by you out of the state?. : {fol. 248] Mr. Bowers: Just amoment. We make thesame objection to that. The contracts speak for themselves. ' Mr. Afen: I am asking him directly. © Judge Stephens: You are asking what,percentage of these 7 | raisins, that are the subject of these contracts, went into — interstate commerce. That cannotes that, by the terms of the agreement Mr. Bowers: Yes... . Judge Stephens: I think w we have ah understanding. You are liable to undo it. . _ , Mr. Aten: I am not afraid of the fact. of undoing it if we can get the facts before the Court. If the Court please, . | ‘there is 1fo provision. in-the contract as to ‘where they shall be delivered or shipped, or anything about them. Judge Beaumont: As I understand the question, the use of the expression, «covered by the contract,’’ was only for “” the purpose of identifying jy tticular raisins? Mr. Aten: That is right, as to’ where these particular “raisins, covered by these contracts, were to be shipped. Judge Beaumont: Reframe your question so there will be © no question about the meaning ef any of ‘the terms that you use, Mr. Aten.. Mr: Aten: I think, since it séems to be a matter oF con: troversy, if I took each jndividual contract it might be bet- | ter. I tried to do it JA one group, so to speak, but if we ' take the individual edntracts it might be better. Judge Beaumont: Are yor in a position to ask him if he knew where certain shipments of raisins were destined? Mr. Aten: Yes, a Judge Beaumont: And if they were » shippedt Did he . [fol. 249] actually ship them? as Mr. Aten: Where they were to go. : —— Beaumont : If he actually shipped thine: ‘that cov. ers it. - Let nce Mr. Aten: What happened afterwards, either to increase or diminish the damage, is immateriab. It is a question as - to where they were to go. +s J a Beaumont: Well, you proceed. enemas verse — By Mr. Aten: » ‘Q. Take the contracts with the Dried Fruit it Distribatore of California: Where were those raisins to be shipped? : . Mr. Bowers: Just a moment, We object to that as indefi- - nite as to the statement, ‘‘wheve they were to be shipped.” ..- As to where they were to be shipped under the contract, or | by Mr. Brown, the contract itself speaks for that. If this. _ is to bea separate shipment by somebody else, then we want ' the question to definitely designate that. - Judge Stephens: Let nie ask a question of the witness. _ Mr. Aten: Yes. Judge Stephons : You did not have any “aelideiesdion with anybody that any of these raisins should be shipped out of the state, did you? A. It was understood that they were%o be shipped out of. _the state, your Honor. For instance—— Judge Stephens: Well, can’t you just’ answer the ques- © ~ tion? We. are trying to. shorten it. . Mr. Bowers: I move to strike that answer as not respon- sive, as to what was understood. ; | J udge Stephens: Yes. . The answer ‘may go out. Did you. -have any understanding with any of these people that ey. [fol. 250] would ship them out of the state? | A. No, sir. ~ Judge Stephens: Did you care e whether they y were shipped out of the state or not? A. Not particularly, no. 7 . Judge Stephens: You just. u.derstand that thes were g0- ont ing to. go out of the state? ; : : A. Yes. - -. Judge Stephens: What was the basis ae your a aecia ing that they were to be shipped out of the state? =~ iA. My basis of understanding was on past performance - of contracts made with these same people, that they: weré “ ... shipped-out of the state. _— - Judge Stephens : Just because they had purchased raisins | - before and shipped -them out, you assumed that they were going to take the same course? = ? ApS AL Yes;sites—- ae Mr. Bowers: We move that his understanding be stricken .f rom thie record, . ate : oe PRI OPER ee TPE Sceantetrienshirta MRT LE Se Fa 8 oy acho RESN PLUS SS 8 Judge Stephens: Yes. Now, if you will go back to the -uaderstanding we had awhile ago—— . Mr. Bowers: Was there a ruling? Judge Beaumont; Judge Stephens was enitiontte the ; witness, and a request was made by Mr. Bowers that the understanding should go oute J udge Stephene stated that it should go out... Mr. Bowers: Does the Court rale that it does go out?. Judge Stephens: My questions were-merely foundational. Judy Beaumont: Then let. the answer go out. e Judge Stephens: Let’s see if we can't shoréen.i _ [fol. 251] we now say that each side admits that the raisins, which were the subject of these contracts that have just been , introduced i in-evidence, would take the same course that is * outlined in the stipulation? . Mr. Aten: We are willing to stipulate to that. Mr. Bowers: Yes, we are willing to. stipulate to that. Q. Mr. Brown, the question of Muscat layers was left out of this stipulation. “Will you state; when layer Muscats are brought into the packing house, how are they handled and ‘what is done in putting them into ‘the containers for ship- | _ ment to commerce? Ss A. The layer Muscats 0 are brought in from the vineyard into the packing house in sweatvoxes, and simply lifted out of the boxes into the packing box. - ' Q. That is the complete opera*ion, isn’t it?” A, Yes, sir. . R Gross-examination : Q. Mr. Brown, when you made thoes contracts in May of | 1940, that you have testified to herve, the various ones that . are introduced as exhibits, did yon at that time have any — raisins on hand to fill the contracts? ‘A. Thad raisins on hand in the spring of 1939. I had _ other orders on hand calling for the wee? of 1939 crop raisins, : +Q. How much raisins did you have on hand at the time these contracts were made, of the 1939 crop? A. I don’t recall the exact amount of raisins T had on hand at that time. : _ ‘Q. Did you have any idea at that.time of the amount of . raisins on hand and i in n the state, of the 1939 _— = . s "7 - 3 gL ROR, SERA TENE ONS TORN ee ia ys TOD RRR Sperone ete NEE TOE PE . ~- ? * - . is > ‘ Me Us °. . . : . o ‘ . ° 86 she ee oe [fol. 252] A. The figure that was given out by" the state, _as of September 1, 1939, was 70;000 tons of raisins in the hands of the packers. ~ ‘Q. So that, as a matter of fact, a the time ‘you made 3 these contracts, and at least up until September 1, 1940; there were on hand in the state available some 70,000 tons, | which could have been u for the purpose ‘of filling the contracts covering 19 i and 1946 raisins, or 1939, or 1940? ee - Ayuvedecth: I object to it as incompetent, teodlovant _ and-immaterial; not bear'ng upon any issue in the case. The only question is whether or not, after the program - went into effect, those were available. Mr. Bowers: I don’t think so.’ He has been questioned | 3 és here about the making of contracts in May, calling for future deliveries, and the fact: thaf he has been damaged - beeause he couldn’t get raisius to fulfill-the contracts. . We propose to show that there were plenty of raisins available at that time. Mr. ‘Aynesworth: I submit that the only wetter in. con- troversy is whether or not, from the time the program went into effect, there. were available raisins. .As to .. whether, they were available prior to that time, or whether ‘he had them available prior to that time, is immaterial. Judge Beaumont: Objection overruled. | . Me. Aynesworth : Will the Reporter read the question? Judge Beaumont : Read the question, Mr. Reporter. (Question read by Reporter. ) ‘A. There were— Judge Beaumont: Just answer that yes or no. Then you (fol. 253] may explain’ _ answer, Mr. Brown.- — A. Yes. There were faisins in the hands of the growers in the early part of the 1939 season. As the season went ~ on those raisjis were bought by the Commodity — ‘Corporation onl larger packers, ea - By Mr. Bowers: . ° : oo e Mr. Brown, do you Reow a eked: time the tend crop of. raisins came on‘from the producers? — .A. The 1940 crop: was exceptionally éarly and some raisins were delivered in the early part ‘of € Sapte. : —————F * | ST. After: the program was announced the growers stiffened in their ideas of price and there was no money here avail- - able for them, and they were not inclined to sell. Q. Do you know approximately. what ‘the’ 1940 crop | of raisins was, in tonnage? A. It was approximately 160,000 tons. -, @Q. Aind those were available, in the hands of the pro: - —_— from the early part of September on? . A. Under the program only 30 percent of those were available. . 3 -Q. Under the program, 30: percent of those coulbe de- | - livered by the growers the packers, or anybody *else | that wanted to? - A. You were permitted to deliver them, but ‘there was no money here for 70 percent, and you didn’t want to deliver them. .Q. Do you know whether any raisins ef the 30 percent were sold by these producers in September 19407 A. I think there were a few sold, yes, sir. Q. Were there any sold in October 19407 A. ¥ think a few were sold, yes, sir. {fol. 254] Q. Any in November 1940? A. Yes, sir.. Q. And in December 1940? A. Yes, sir... . Q. In other words, during all times, from the sie that the raisins were ready in the first part of September 1940, _, Sales were being made by..the producers? .\.. A. The producers were reluctant to sell, because there ‘\\wasn’t any money here. - There was an occasional grower that had to have money, and in a dire. oe to get money - tere were a. few sales made. . Judge Beaumont: Just let the answer go out. ‘Read the - question, Mr. Reporter. Please listen to the question, Mr. Brown, Just answer yes or no, and if it is necessary you _ . May explain your answer. (Questio a by Reporter.) A. No. : | - By Me aiuee = pons Q. You say no‘sales were made by producers? : A. No; referring to “during ‘all times’’; raisins were * not being sold by are FERAL ERT RS " aN ee WA en a cae . : Q. What do you ‘mean‘by that? ps Judge Beaumont: If you will. have the question read, Mr. Bowers, you will find that apparently he has made — the proper answer, insofar as the witness’ viewpoint is: concerned. You said *‘during the time.” ais HOM Mr. Bowers: I said ‘‘during all those times. ak * Judge Beaumont : He said, “No; all ‘the time sales were - not Being made.”’ ‘ Mr. Bewérs: I want to pin ‘that down, now. *[ fol. 255] Nudge Bedumont: Well, — By Mr. Bowers: |. Q..When you say that Aniline all of that’ ‘anid from ~ September on, the sales were not. being made by pro- ducers, do you mean tifat no-sales were made during. | September, or any particular period? : : iA. I mean that at all: fimes the raisins were iat being * sold and were not available for sale.. Q. Can vou tell me.any time jn September when these rainine were not being sold and were not availabl¢ for sale? . Prior to September 7th there was an on-rush of the— growers, who weré not favorable to a prorate plan, to, se!! their raisins, because they could sell them 100 percent. . They rushed those into the. packing houses. “Then there \eame a lapse, from’ ‘September 7th until about October Ist, when very few raisins were being sold by the producers. Q. You say you kept up, during that time, with the raisin conditions, the same as ot yes has _ thereto, did you not! A. Yes, sir. Q. Can you tell us now approkimately how much of that crop was sokl by the producers, prior to September - . 7th, of the 1940 crop?. A. I estimate about 20,000 tons were sold. | Q: And what amount were sold during, the month of September 1940, subsequent to the 7th? A. Well, _ was my answer—subsequent to the. ith! Q. Yes.. A. You retin followitig the 7thr Q. Yes, subsequent to the 7th. : | A. I can’t-give you the amount in exact. figures, but (fol. 256} I tried to buy raisins and. very few of the grow- ers were inclined to — As I stated ae J yee was / ‘ j j no monéy here. available.. The clearness of the program, ’ which they had supposed all the way along, was not clear > td them, and they wanted to wait and see what the pro-- gran was going to be. | - Q. Well; you made no effort to obtain any of the 20,000 tons prior to September 7th, in order to fulfill your two- -or-three-hundred ton requirement, did you? A. Prior to that 4 I was busy harvesting my own crop: | Judge Beaumont : : What is the answer; is it yes or not "Read the question, Mr. Reporter. - | Me (Question read by Reporter.) a I mde some effort; yes, sir: . -’ By Mr. Bowers: Q. What effort did you make, Mr, Browit A. I contacted. prerert, Q. Who had raisins] — - Yd Yes,.sir. | ' Q. Did they-have* ina to: niaet your requirements? | : A. I the growers that I saw had enough raisins, ° in entirety, ‘to meet my requirements ; yes.. | _ Q. Wouldn't they sell to you? A. They didn’t sell to me. Q. Did they refuse to sell to you at any- ‘price, or was it because they refused to sell to you at the price you offered? | A. Announcement had been made. about August 30th that ae would. have a program, and many of the growers pamted _ to wait and see what the program was: . Q. During that period, prior to September 7th, hles was . [fol. 257] the inarket price, the sweatbox pricst : : A. For 100 petcent? = ! Q. For raisins; yes. ~ | } A. For 100 percent of. ¢aisins the agents se was $47 and and $48 per ton, fo: the 100 percent. / ). And oa you offer the growers $47 and $48 a top fer A. GE tap sams telckle ot 618 pos. ‘ton. Q. In other words, the market price at that time was $47 to $48.a ton, and the reason you couldn’t get raisins wag hecause you wouldn’t pay moré than $45 a ton? - . _ A. No, sir; that is not entirely it. E talked to the growers oe said that “~ wanted to wait and see whether we : . Ir ELV REGEN LLLILHGOLG BEL TI . a ove "you state? : aS » . © " k ere ane ‘ thn VAD BS Ra SERA B KR St IED ea MOS OIE: I Ae att — #8 . “ . ~ we ~ Z . 7 ‘By Mr. Bowers: (). How many tofis did you purchase in October? A. 1 purchased About 40 tons during the first half of October. : Q. How many - dena of raisins of the 1940, crop did you 3 _ purehase*’ altogether,.. Mr. Brown? “Mr. Aten: I object. to that as incompetent, irrelevant ‘and immaterial ; not relevant, to the issues, as to any raisins © purchased after the time of the filing of this action, about - the middle of October, for reasons already stated.’ Judge Beaumont: Objection overruled. A. I purchased about 700 tons of raisins, By Mr. Bowers: _Q: Of the 1940 crop? : _ A. Yes, sir. > Q. In addition to the 200 tons which you produced your- self? A. Yes, sir. ' Q. Did you fulfill these Sr a then? Did you dase: _ these raisins under the terms of these. contracts? ~ A. No. . | ' Mr. Bowers: Mr. Brown you stated that you anticipated doing a business of some 3,000 tons during 1940 season? A.. ¥es, sir. | Q. Had you at any time previous done business of that amount, during a current season? | (fol. 262] A. No. I would like to tolaté it in this way : That I just started in the packing. business for myself during the early ‘part of 1939 and sold 2,000 tons, and anticipated that I could sell 3 000 tons during the 1940 crop ‘season. Q. In other words, your basis wes the fact that during © ' thie 1939 season you had done a business of 2,000 tons, and so you were hopeful that you would increase your business by 50 p [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0066%3A1. Public record. Not legal advice.