Opposition Brief — Titusville Dairy Products Co. v. Brannan

Page

Opinions below - - - -- ------------------------------------- 1

Juriediction . . .....------.------------------------------- 2

Question presented ----.-.....----------------------------- 2

Men CNer INVONNOG. .. 8k. ene ~- +s --e 2

ND nic aS rere ncanauaseneende mbewee net ananceeesees 3

Argament....-...-.-..-.-------.-------------------------- 8

Ne ee nna mt wane a ma are cimnin cbeeacnciais 17

CITATIONS

Bethlehem Steel Co. v. New York State Labor Relations Board,

TIN es ec orcad Sl Retiastcdl wih a ww A a none 17

Binderup v. Pathe Exchange, 263 U. 8S. 291__------------ 16

Carter v. Carter Coal Co., 298 U. S. 238__.-------------- 16

Chassaniol v. City of Greenwood, 291 U. S. 584__---_----- 15

Cloverleaf Butter Co. v. Patterson, 315 U.S. 148__-------- 17

eh a I Oh Rs PI a oe cece 17

Milk Control Board v. Eisenberg Farm Products, 306 U. 8.

eat ol a Onn ma rama aye enie oe ewe 16

Minnesota Rate Cases, 230 U. S. 352_____--------------- 17

Napier v. Atlantic Coast Line Railroad Co., 272 U.S. 605- - - 17

Deen V. eee Yors, 30) U.S. Gee... .-........- 9, 10

Rice v. Sante Fe Elevator Corporation, 331 U.S. 218_----_--- 17

pene v.. Wane, Bee ©. GOR... css 16

United States v. Rock Royal Co-operative, Inc., 307 U. 8. 533- 3,

4, 8,9, 10, 11, 15

United States v. Ruzicka, 329 U. S. 287 ____.------------ 6

United States v. Wrightwood Dairy Co., 315 U.S. 110_--_--- 15

Statutes:

Agricultural Marketing Agreement Act of 1937, 50 Stat.

246; 7 U.S. C. 601 ef seg., reenacting, with amendments,

the Agricultural Adjustment Act of 1933 (48 Stat. 31)

aN 52 a i a Sepa haart 2

RN CI ooo coe ate em i ro ae ava eS a ating 11

I a re cas em eees 6,7

cic cies meee ll

Act of April 4, 1940, 54 Stat. 81, 5 U. S. C. 516a, et seg___- 6

Miscellaneous:

Federal Order No. 27, 3 F. R. 1945, 1957, 2100, 2102, 7

Re EE I AO ES ae neat 2,3, 12

Federal Order No. 27, suspended, 4 F. R. 1259, 2377-___- 3

10 F. R. 13769...........___. At eG MOS et 6

864380—49——_1 (1)

Inthe Supreme Gourt of the Wnited States

OcrosBeR TERM, 1949

No. 4438

TITUSVILLE Darry PRODUCTS CoMPANY, PETITIONER

Vv.

CHARLES F, BRANNAN, SECRETARY OF AGRICULTURE

OF THE UNITED STATES

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

—<—<—<—<$—<$<$<$<$<$<$<<—<<——————

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the District Court is reported *

in 77 F. Supp. 232. The opinion of the United

1The opinion of the District Court also appears (R.

17-26) in what the petitioner refers to (Pet. 2) as the

“record of the present proceedings” which accompanied the

petition for a writ of certiorari. This “record” referred to

by the petitioner is merely the appendix to the brief for the

Secretary of Agriculture in this case in the United States

Court of Appeals for the Third Circuit, plus the opinion and

judgment of the Court of Appeals. Although the appendix

to the Secretary’s brief in the Court of Appeals did not

include or constitute the entire record in the case, our refer-

ences herein to the appendix are indicated as being to the

record.

(1)

—

2

States Court of Appeals for the Third Circuit

(R. 482-488), as amended (R. 489), is reported

in 176 F. 2d 332.

JURISDICTION

The judgment of the Court of Appeals was

entered August 4, 1949 (R. 488-489). The peti-

tion for a writ of certiorari was filed on Novem-

ber 1, 1949. The jurisdiction of this Court is

invoked under 28 U. S. C. 1254 (1).

QUESTION PRESENTED

Whether under Department of Agriculture

Order No. 27 (the New York Milk Order), issued

pursuant to the Agricultural Marketing Agree-

ment Act of 1937, the petitioner’s surplus milk

approved by the health authorities for marketing

in New York City is subject to regulation, ir-

respective of actual shipment of such milk in

interstate commerce.

STATUTE AND ORDER INVOLVED

The statute involved is the Agricultural Mar-

keting Agreement Act of 1937 (50 Stat. 246, 7

U. S. C. 601 et seqg.), which reenacted, with

amendments, the marketing provisions of the

Agricultural Adjustment Act of 1933 (48 Stat.

31), as amended.

The order involved is Federal Order No. 27,

regulating the handling of milk in the New York

metropolitan marketing area. It was issued on

August 5, 1938, effective September 1, 1938 (3

F. R. 1945, 1957, 2100, 2102; 7 CFR, 1938 Supp.,

3

927). It was suspended (4 F. R. 1259, 2377)

during the period January 31, 1939, to July 1,

1939.2, The order, as amended and reissued with

amendments from time to time, is now in effect

(7 CFR, 927.1). The order is not printed in the

record but its pertinent parts are quoted or sum-

marized in this brief. The method of determin-

ing the uniform price under the order and the

operatic2 of the producer-settlement fund or

equalization pool are described in United States

y. Rock Royal Co-operative, Inc., 307 U. S. 533,

sustaining the validity of the Act and the order.

STATEMENT

The petitioner, Titusville Dairy Products Co.

(“Titusville’’), operated at all times between

September 1, 1938 and January 16, 1942, a plant

at Titusville, Pennsylvania, where it processed

and distributed milk received from producers in

Pennsylvania. At some time prior to September

1, 1938, Titusville had applied for and received

from the New York City Health Department ap-

proval as a plant from which milk might be

shipped into New York City for consumption and

distribution, and it retained this approval during

the entire period in question. (R. 21.) During

the period between September 1, 1938 and Octo-

ber 5, 1941, the petitioner shipped substantial

2The suspension was in connection with the litigation

which culminated in United States v. Rock Royal Co-opera-

tive, Inc., 307 U.S. 533.

4

quantities of milk or cream into the New York

Milk Marketing Area (the ‘‘Area’’) and sold its

surplus milk to customers in Pennsylvania.’

(R. 21-23.)

On September 1, 1938, Department of Agri-

culture Order No. 27, governing the milk indus-

try in the Area and designed to insure the

payment by handlers of a uniform price to pro-

ducers, became effective. (R. 21-22.) The

Order, the purpose and operation of which are

described in detail in United States v. Rock Royal

Co-operative, Inc., 307 U. S. 533 (which sustained

the validity of the Act and the Order), established

a producer-settlement fund to equalize the cost

of milk to handlers and provided for administra-

tive assessments. It defined a ‘‘handler”’ as ‘‘any

person who engages in the handling of milk, or

cream therefrom, which was received at a plant

approved by any health authority for the receiv-

ing of milk to be sold in the marketing area,

which handling is in the current of interstate

commerce. * * *’ (R. 21-22.)* From Sep-

’ “Surplus” milk, under the scheme of the Order, is that

which is surplus to the requirements of the New York Area

for fluid milk or cream. Such milk might be sold elsewhere

as fluid milk or cream or be made into milk products (butter,

cheese, etc.) for sale in the New York Area or elsewhere.

‘Prior to May 1, 1940, the Order further provided that

“This definition shall not be deemed to include any person

who neither received milk from producers nor handles milk

which is sold as milk or cream in the marketing area.” By

amendment of that date, this sentence was deleted. (R. 22.)

| ———

5

tember 1, 1938, to July 1, 1941, the petitioner

recognized that its handling of milk at the Titus-

ville plant was subject to the Order. During

that period it paid the administrative assessments

to the Market Administrator on milk received

at its plant, submitted detailed reports as a

handler in connection with the classification and

pricing of milk under the Order, and received

$55,213.25 from the producer-settlement or equal-

ization pool.’ (R. 22.)

After October 5, 1941, the petitioner shipped no

milk or cream into the Area, but gave no notice

to this effect to any official body. On Noveraber

22, 1941, the petitioner wrote the Market Admin-

istrator, asking as to the procedure for with-

drawal from the New York milk pool, and the

Administrator on November 25 replied (R. 271)

that the procedure was to relinquish the approval

of its plant by the New York City Board of

Health. More than a month later, on January

13, 1942, the petitioner requested the New York

City Board of Health to cancel the approval of

its plant. The Board did as requested on Jan-

5 Prior to March 1, 1941, the petitioner was subject to the

provisions of the Order only to the extent that it shipped

fluid milk or cream into the area. On that date, however,

the Order was so amended that all milk received at a

“handler’s” plant was priced and poole’ under the Order,

regardless of where sold. See fn. 8, pp. 11-12, infra. Under

this amendment, Titusville, which shipped into the Area less

than half the milk received at its plant, became a contributor

to, rather than a recipient from, the producer-settlement fund.

(R. 23-24, 483-484.)

~

6

uary 16 (R. 281), and the Administrator imme-

diately recognized the cancellation as ending the

petitioner’s status as a “‘handler’’ under Order

No. 27.

The petitioner did not pay any sums into the

producer-settlement fund after July 1, 1941, al-

though it continued to ship substantial quanti-

ties of cream into the New York Area until

October 5 (R. 22-23, 50-51) and filed reports as

a handler under the Order until January 16, 1942,

which reports indicated that it owed money to

the fund (R. 23, 51).

This proceeding was initiated by the filing of a

petition under § 8¢ (15) (A) of the Agricultural

Marketing Agreement Act of 1937, as amended

(7 U.S. C. 608e (15) (A)), requesting the Secre-

tary of Agriculture to hold a hearing on the

claims of petitioner and to reverse the action of

the Market Administrator in deciding that all

of the petitioner’s milk was subject to regulation

during the period in controversy. (R. 33-47.)

This section of the Act provides for a hearing on any

petition filed by a handler with respect to an order or

obligation thereunder which the handler asserts

is ‘‘not in accordance with law.’’ United States

v. Ruzicka, 329 U. S. 287. The ruling of the Ju-

dicial Officer ° on the petition is ‘‘final, if in ac-

° The Judicial Officer acted for the Secretary of Agriculture

of the United States pursuant to the authority delegated (10

F. R. 13769) under the Act of April 4, 1940, 54 Stat. 81,

5 U. S. C. 516a et seg., which provides that whenever a

V7"

7

cordance with law”’ (7 U. S. C. 608¢ (15) (A)).

Jurisdiction is conferred on the district courts to

review a ruling of the Judicial Officer upon the

institution of such action by the handler.

The Judicial Officer, holding that the petitioner

was a handler and that all of its milk was sub-

ject to regulation during the entire period in con-

troversy, dismissed the petition. (R. 60.) The

District Court affirmed the decision of the Judicial

Officer that the petitioner was subject to regulation

as a handler with respect to all of its marketing of

milk during the period July 1, 1941, to October

5, 1941, but, holding that the petitioner was not

a handler with respect to any of its marketing

transactions during the period October 9, 1941, to

January 16, 1942, reversed the ruling with re-

spect to that part of the period in controversy.

(R. 17-28.) The United States Court of Appeals

for the Third Circuit reversed the District Court

and affirmed the decision of the J udicial Officer by

olding that the petitioner was subject to regula-

tion, under the order, with respect to all of its

marketings of milk until the petitioner’s plant

on January 16, 1942, ceased to be an approved

source of supply for New York City. (R. 482-489. )

delegation is made under the statute “all provisions of law

shall be construed as if the regulatory function or the part

thereof delegated had (to the extent of the delegation) been

vested by law in the individual to whom the delegation is

made, instead of in the Secretary of Agriculture.”

864380492

8

ARGUMENT

The court below correctly determined that

Titusville was a ‘‘handler’’ within the scope of

Order No. 27 so long as it retained the approval

which it had secured from the New York health

authorities and so remained an eligible and

potential seller of fluid milk in the Area; and

that the Order as so construed did not exceed the

Seeretary’s authority, even though some of the

petitioner’s milk was surplus to the requirements

of the Area prior to October 5, and all of it was

surplus thereafter. (R. 485-488.)

This Court has heretofore recognized that ade-

quate stabilization of the milk market in the New

York Marketing Area requires regulation not

only of that milk which is actually sold there as

fluid milk or cream, but also of ‘‘surplus’’ milk—

t. e., that milk which is handled by suppliers ap-

proved for distribution in the Area but which,

being surplus to the actual demand of the Area

for fluid milk, must either be sold elsewhere as

fluid milk cz processed into milk products.’

*The Court stated in United States v. Rock Royal (o-

operative, Inc., 307 U. S. 588, 549-550: “The problems con-

cerned with the maintenance and distribution of an ade-

quate supply of milk in metropolitan centers are well un-

derstood by producers and handlers. In the milkshed and

marketing area of metropolitan New York these problems

are peculiarly acute. It is generally recognized that the

chief cause of fluctuating prices and supplies is the exist-

ence of a normal surplus which is necessary to furnish an

adequate amount for peak periods of consumption. This

results in an excess of production during the troughs of

9

United States v. Rock Royal Cooperative, Inc.,

307 U. S. 583; Nebbia v. New York, 291 U. 8. 502.

The chief cause of disorderly marketing is the

cmtietnc

demand. As milk is highly perishable, a fertile field for

the growth of bacteria, and yet an essential item of diet,

it is most desirable to have an adequate production under

close sanitary supervision to meet the constantly varying

needs. The sale of milk in metropolitan New York is

ringed around with requirements of the health departments

to assure the purity of the supply. Only farms with equip-

ment approved. by the health authorities of the marketing

area and operated in accordance with their requirements are

permitted to market their milk. * * * Since all milk

produced cannot find a ready market as fluid milk in flush

periods, the surplus must move into cream, butter, cheese,

milk powder and other more or less nonperishable products.

Since these manufactures are in competition with all similar

_ dairy products, the prices for the milk absorbed into manu-

facturing processes must necessarily meet the competition of

low-cost production areas far removed from the metropolitan

centers. The market for fluid milk for use as a food bever-

age is the most profitable to the producer. Consequently, all

producers strive for the fluid milk market. It is obvious that

the marketing of fluid milk in New York has contacts at

least with the entire national dairy industry. The approval

of dairies by the Department of Health of New York City, as

a condition for the sale of their fluid milk in the metropolitan

area, isolates from this general competition a well recognized

segment of the entire industry. Since these producers are

numerous enough to keep up a volume of fluid milk for New

York distribution beyond ordinary requirements, cut-throat

com petition even among them would threaten the quality and

in the end the quantity of fluid milk deemed suitable for New

York consumption. Students of the problem generally have

apparently recognized a fair division among producers of the

fluid milk market and utilization of the rest of the available

supply in other dairy staples as an appropriate method of at-

tack for its solution. Order No. 27 was an attempt to make

effective such an arrangement uader the authority of the

Agricultural Marketing Agreement Act.”

10

existence of the surplus milk (United States y,

Rock Royal Co-operative, Inc., supra, at 307 U. 8.

549) ; so long as the surplus burden ‘‘is unequally

distributed the pressure to market surplus milk

in fluid form will be a serious disturbing factor.”’

Nebbia v. New York, supra, at 291 U.S. at 518.

The Order in question regulates the handling

of all milk which may, because handled by a plant

having the approval of the health authorities, be

sold in the Area; the definitions of *‘producer”

and ‘‘handler’’ identify the milk and the persons

to be regulated. This Court in United States y.

Rock Royal Co-operative, Inc., supra, deseribed

the ambit of the Order as follows (307 U. 8.

at 554):

By the Order the marketing area is

defined as the City of New York and the

counties of Nassau, Suffolk and West-

chester. A producer is any person pro-

ducing milk delivered to a handler at a

plant approved by a health authority for

the receiving of milk for sale in the mar-

keting area. A handler is a person en-

gaged in the handling of milk or cream

received at an approved plant for similar

ees

The economic necessity for regulating all of the

milk received from producers at plants having

health department approval for receiving milk

for sale in the New York metropolitan marketing

area is apparent from the uncontroverted facts.

Any of the milk at such a plant is in economic

li

competition with all other milk at similar plants.

There is complete homogeneity of the entire sup-

ply of milk approved by the health authorities

for sale in fluid form in the marketing area.

The economic considerations and the health or

sanitary requirements are, in this respect, inex-

tricably interlaced. The approval of the milk

plants by the health authorities ‘‘as a condition

for the sale of * * * fluid milk in the metro-

politan area, isolates from * * * general

competition a well-recognized segment of the

entire industry.’’ United States v. Rock Royal

Co-operative, Inc., supra, at 307 U. S. 550.

If the Order were restricted, as the petitioner

contends (Pet. 4) it should be restricted, to the

milk or eream actually shipped to the marketing

area, the acute problem as to the surplus milk

would remain unresolved. Only by making the

Order apply to all of the approved milk, inelud-

ing the surplus milk, could the Secretary, on the

basis of the evidence, conclude under § 8¢ (4) and

§ 8c (18) of the Act that the Order would achieve

the economic goal set forth in the statute. The

delimitation of the scope of the order is based

on the evidence in the hearing record, evidence

which, insofar as it relates to the issues in this

case, is not only substantial but almost entirely

uncontroverted.*

’ The petition and brief in support thereof do not refer to

any evidence in the record in support of the petitioner’s con-

12

As to the channels of commerce in milk for

the marketing area, the Secretary found (3 F. R.

1946) :

That approximately one-third of the milk

produced for sale in the marketing area

is produced in States other than the State

of New York; that approximately one-

third of the milk produced in the State

of New York for sale in the marketing

area passes through other States on its way

to be sold in the marketing area; and that

milk produced in the State of New York

for sale in the marketing area which does

not pass through other States on its way

to be sold in the marketing area is phys-

ically and inextricably intermingled with

that milk which is produced outside the

State of New York for sale in the market-

ing area or which is produced in the State

of New York for sale in the marketing

area but which passes through other States

on its way to be sold in the marketing

tention that its surplus milk should be free from regulation.

The petitioner fails to assert an absence of substantial evi-

dence to support the Order. Moreover, the immediate and

increasing need for regulating the surplus milk, as well as the

milk disposed of on the fluid milk market, in the marketing

area, became so pronounced that the order was amended (5

F. R. 4970, 6 F. R. 1181) effective March 1, 1941, on the basis

of evidence (e. g., R. 467-472) at the amendment hearing,

so as to provide that all milk received at an approved plant

is priced under the order regardless of whether the milk is

disposed of in the marketing area, or outside the marketing

area, for fluid use or as surplus milk for manufacturing pur-

poses. Prior to that amendment all of the milk was regulated

in some respects, but not in all respects.

13

area; and that all milk which is produced

for sale in the marketing area is handled

in the current of interstate commerce or

30 as directly to burden, obstruct, or aff ect

interstate commerce in milk and its prod-

ucts. [Emphasis supplied. ]

The record shows (R. 365) that approximately

17% of the milk sold in the marketing area

comes from Pennsylvania.

The definition of “‘handler,”’ as set forth in the

Order, includes* any person who engages in the

handling of milk or cream therefrom, ‘‘which

was received at a plant approved by any health

authority for the receiving of milk to be sold in

the marketing area, which handling is in the

current of interstate commerce or directly bur-

dens, obstructs, or affects interstate commerce.”’”

* The petitioner was unequivocal, at the hearing on its peti-

tion, that (R. 193): “There is no question about what the

order purports to regulate. We quite agree that the order, as

written, attempts to regulate all the milk that flows through

the plant that has a New York City or New York State health

permit, regardless of where the milk is purchased or where

the milkissold. * * * Weare not questioning what the

order says.”

1 Plant approval is not thrust on any handler. The han-

dler voluntarily applies for and maintains approval by the

health department and may voluntarily obtain the cancella-

tion of the approval at any time. The petitioner’s status as an

approved plant was promptly cancelled on its request for can-

cellation (R. 281). The reference, in the definition of han-

dler in the order, to health department approval thus merely

specifies that milk which is in the channel of commerce to be

regulated under this marketing order; there is no delegation

of legislative power to the local health authorities.

14

The proposed Order on which the original pro-

mulgation hearing was held contained a defini-

tion of ‘‘handler’’ which set forth two condi-

tions, t. e., a person who receives and disposes

of milk at a plant approved by any health author-

ity for the shipment of milk to the marketing

area, and ‘‘who engages in such handling of milk or

cream as is in the current of interstate commerce”

(R. 412-413). On the basis of the evidence at the

hearing on the proposed program, the definition

of ‘‘handler’’ was revised so as to omit the con-

junction and thereby eliminate the second con-

dition. As revised, the definition of ‘“‘handler”

refers only to plants approved by any health

authority, and then states that the handling of

milk in any such plant is in interstate commerce

or directly affects, burdens, or obstructs inter-

state commerce. The definition of handler con-

taining only one condition is, therefore, in accord

with the finding of fact by the Secretary that all

milk, including the surplus milk, which is eligible

for sale in the marketing area is handled in the

current of interestate commerce or so as directly

to burden, obstruct, or affect interstate commerce

in milk and milk products. As the court below

put it, the proposed Order was rephrased ‘‘so as

to make the second item merely explanatory of

the first; for it was felt that, wherever [health]

departmental approval was had, of necessity the

milk was in the current of interstate commerce or

that in any event interstate commerce was af-

_

15

fected.”’ (R. 487.) Assuming, arguendo, that

the definition of handler states two conditions,

i. ¢., plant approval and handling that is in inter-

state commerce or directly affects such commerce,

there is nothing in the record inconsistent with

the Secretary’s conclusion that the marketing of

surplus milk, approved by the health authorities

for sale in the marketing area, is in interstate

commerce or directly affects such commerce.

The evidence in support of the Secretary’s con-

clusion is abundant (¢. 9., R. 305-319; 357-358 ;

430-431).

The questions presented (Pet. 2-3) by the

petitioner have been settled by this Court. The

statute confers on the Secretary ‘“‘the full reach

of the commerce power’? under the Federal Con-

stitution. United States v. Wrightwood Datry

Co. 315 U. S. 110, 123. The language of the

statute and the provisions of Order No. 27

are to be given the full scope of their constitu-

tional counterpart; and all milk, including sur-

plus milk, approved by the health authorities for

sale in the marketing area is in interstate com-

merce or directly affects, burdens, or obstructs

interstate commerce. United States Vv. Rock

Royal Co-operative, Inc., 307 U. S. 533.

There is no merit in the petitioner’s assertion

(Pet. 8) that the decision below is in conflict with

Chassaniol v. City of Greenwood, 291 U. S. 584,

which held that the commerce clause of the Fed-

eral Constitution did not prevent a state from

16

levying an occupational tax on the brokerage of

cotton which was ultimately shipped in inter.

state commerce. Liability to state taxation is

no indication of immunity from Federal regula-

tion under the commerce clause. Stafford y,

Wallace, 258 U. S. 495, 525-527; Binderup y,

Pathe Exchange, 263 U. 8. 291, 311. The peti-

tioner also contends (Pet. 8) that the decision

below conflicts with Carter v. Carter Coal Co,,

298 U. S. 238, because ‘‘the actual facts’’ concern-

ing transactions in commerce ‘‘determine what

does and what does not affect interstate com-

merce.’’ The instant case certainly presents no

conflict with this undisputed principle. The

actual facts were considered and analyzed at a

protracted public hearing on the proposed pro-

gram to regulate the handling of milk in the

marketing area; the issues have been considered

again at hearings on amendments; and the peti-

tioner does not question the adequacy of evidence

to support the Secretary’s findings of fact that

the regulation of all milk, including surplus milk,

approved for the marketing area is necessary to

effectuate the purpose of the Act.

The petitioner also asserts (Pet. 9) that the

decision below conflicts with the decision in Milk

Control Board v. Eisenberg Farm Products, 306

U. S. 346. That case deals with a different situ-

ation. As explained by the Court (306 U. S. 346,

351), the question there presented was ‘‘whether,

in the absence of federal regulation, the enforce-

—

17

ment of the [State] statute is prohibited by

Article I, §8 of the Constitution’? (emphasis

supplied). Hlere there was no absence of Fed-

eral regulation. Moreover, the petitioner refers

to nothing—and there is nothing—in the record

to show any conflict between the state and fed-

eral regulation of milk marketing. But even if

there were, the Federal regulation would prevail.

Minnesota Rate Cases, 230 U. S. 352, 398-433;

Napier v. Atlantic Coast Line Railroad Co., 272

U. 8. 605; Cloverleaf Butter Co. v. Patterson, 315

U.S. 148; Hill v. Florida, 325 U. 8. 538; Bethle-

hem Steel Co. v. New York State Labor Relations

Board, 330 U. S. 767; Rice v. Sante Fe Elevator

Corporation, 331 U. S. 218.

CONCLUSION

The decision of the court below is correct and

is not in conflict with any decision of this Court

or any other court of appeals. It is, therefore,

respectfully submitted that the petition for a writ

of certiorari should be denied.

/ Puitie B. PERLMAN,

Solicitor General.

J JosePH W. BisHop, JR.,

J J. SrepHEN DoyLF, JR.,

J/ New Brooks,

/ Special Assistants to the Attorney General.

Lewis A. SIGLER,

Assistant Associate Solicitor,

U. S. Department of Agriculture.

DECEMBER 1949.

U.S. GOVERNMENT PRINTING OFFICE: 1949