Lamar Bowers v. United States

226 F.2d 424

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 1, 1955
• Docket: 15275
• Status: Published

Opinions

HUTCHESON, Chief Judge.

The suit was for the collection of penalties assessed against the defendant under Section 1359(a) of the Agricultural Adjustment Act of 1938, as amended,¹ because of his failure to account for the disposition of peanuts raised by him in the years 1950-1951.

The claim was: that appellant in 1950 and 1951 engaged in the production of peanuts on his farm, and harvested in excess of his farm acreage allotments; that he failed and refused to comply with a written request from the State Committee to account for the disposition of the peanuts; and that thereupon and because thereof he became subject to and was assessed the penalties for which plaintiff sues.

Defendant filed a motion to dismiss on several grounds. One was that the complaint was deficient in that it failed to charge that he had marketed, sold, or otherwise disposed of any peanuts harvested by him during either 1950 or 1951 from his farm, in such manner or under such conditions as to make him subject to any lawful penalty imposed by Title 7 U.S.C.A. § 1359.

“(a) The marketing of any peanuts in excess of the marketing quota for the farm on which such peanuts are produced, or the marketing of any peanuts from any farm for which no acreage allotment was determined, shall be subject to a penalty at a rate equal to 50 per centum of the basic rate of the loan (calculated to the nearest tenth of a cent) for farm marketing quota peanuts for the marketing year August 1 — July 31. Such penalty shall be paid by the person who buys or otherwise acquires the peanuts from the producer, or, if the peanuts are marketed by the producer through an agent, the penalty shall be paid by such agent, and such person or agent may deduct an amount equivalent to the penalty from the price paid to the producer. * * * If any producer falsely identifies or fails to account for the disposition of any peanuts, an amount of peanuts equal to the normal yield of the number of acres harvested in excess of the farm acreage allotment shall be deemed to have been marketed in excess of the marketing, quota for the farm, and the penalty in respect thereof shall be paid and remitted by the producer. * * ; and if proof of the disposition of any amount of peaauts is not furnished as required by the Secretary, the acreage allotment next established for the farm on which such peanuts are produced shall be reduced by a percentage similarly-computed. * * * ”

Another was that the provision of Sec. 1359(a), Title 7 U.S.C.A., under which the penalty was allegedly assessed, “If any producer * * * fails to account for the disposition of any peanuts, an amount of peanuts equal to the normal yield of the number of acres harvested in excess of the farm acreage allotment shall be deemed to have been marketed in excess of the marketing quota for the farm, and the penalty in respect thereof shall be paid and remitted by the producer”, either created a rebuttable presumption of fact, that plaintiff had marketed excess peanuts, which defendant’s evidence had rebutted, or it attempted, in violation of the Constitution, to establish an irrebuttable presumption of fact, that defendant had marketed excess peanuts, and was invalid.

In the alternative, defendant moved for a summary judgment on the ground that there was no genuine issue as to any material fact and in support attached the affidavit of himself and his wife to the effect that, while defendant had planted and raised peanuts in 1950 with the idea that if he were allowed to market any of them he would do so, and in 1951 with the knowledge that he would not be allowed to do so, his primary purpose in planting them in each of the years was to use them for feed for his livestock and when in each year he was unable to market any, he did use all of them for feed.

Plaintiff, on its part, filed requests for admissions under Rule 36, Fed.Rules Civ. Proc. 28 U.S.C.A., and the defendant admitting: that he did, as claimed by plaintiff, plant and harvest peanuts from his farm in excess of his acreage allotment; that in each of the years he had received a request from the marketing committee for a written report of his production; that he had not complied with the request; that he was notified that penalties had been assessed against him; and that he had not paid the penalties; plaintiff moved for summary judgment. Thereupon the district judge granted the motion and, filing findings of fact and conclusions of law, 123 F.Supp. 184, 185,² entered a judgment assessing the penal ties as prayed.

Appealing from that judgment appel lant, in his brief, thus states his position

“A. The District Court erred in rendering the Summary Judgment in favor of Appellee. It is based solely on—

“(a) The admission by Appellant that he failed to account for the disposition of his peanut crop, in writing, to the Production and Marketing Committee, and

“(b) The provision of Sec. 1359, Title 7 U.S.C.A. that: ‘If any producer * * * fails to account for the disposition of any peanuts, an amount of peanuts equal to the normal yield of the number of acres harvested in excess of the farm acreage allotment shall be deemed to have been marketed in excess of the marketing quota for the farm, and the penalty in respect thereof shall be paid and remitted by the producer.’

“Without regard for the actual fact that the peanuts were not ‘marketed’ and, that Appellant did not in any manner dispose of the peanuts by voluntary or involuntary sale, barter, exchange, or by gift inter vivos, but in actual fact used them for his own seed and feed for his own livestock. Hence the judgment must rest upon the holding that the quoted provision of Sec. 1359 either created (1) a substantive rule of law, or (2) an absolute, irrebuttable presumption of fact. Appellant respectfully submits that—

“1. The quoted provision of Sec. 1359 did not create a substantive rule of law, and

“2. A conclusive, irrebuttal presumption of fact violates the Fifth Amendment and Art. Ill of the Constitution of the United States of America.

“3. If the Section did attempt to create a substantive rule of law, Congress did not intend the rule to apply to farmers producing peanuts for domestic, or farm consumption, but

“4. If Congress did intend to create a substantive rule of law applicable to farmers producing peanuts for domestic, or farm consumption, such rule would be unconstitutional and void as being beyond the powers of Congress under Art. I, Sec. 8 of and in contravention of the Tenth Amendment to the Constitution of the United States of America.”

Proceeding, then, to argue in turn each of his four points against the judgment, appellant has managed by his earnestness in presenting, his diligence in developing, and his skill in supporting his points to invest the question underlying decision here, a question which on its face seems to us quite simple, the answer to it quite plain and clear, with an appearance of difficulty and complexity and to impart to his argument an impressiveness which has convinced the court as a whole of his complete sincerity and his confidence in the correctness of his views, and has evoked from one member of the court a dissent in support of them.

Impressed, however, as we might be with the contentions of appellant and the arguments and authorities ³ marshaled in their support, if we could agree with his views that the statute under construction means what and operates as appellant claims it does, we are constrained to declare: that in our opinion the language of the statute, note 1, supra, under the authority of which the penalties were assessed and recovered, is simple and clear in its terms and meaning and wholly free from the defects, constitutional or otherwise, with which appellant charges it; and that the penalties provided for in the statute and exacted in this case were based not, as defendant claims, upon his having marketed peanuts but simply and entirely upon his failure to account for their disposition. Without, then, joining issue with appellant on his arguments or discussing the authorities he cites in support of the unfounded assumptions he makes, we reject his propositions, arguments, and authorities as wholly inapplicable here. Rejecting his contention, that the quoted provisions of Sec. 1359(a) did not declare a substantive rule of law but merely created a presumption of fact, we particularly affirm to the contrary: that the language under review “an amount of peanuts * * * shall be deemed to have been marketed in excess of the marketing quota for the farm and the penalty in respect thereof shall be paid and remitted by the producer” was intended to operate not as a presumption of fact rebuttable or otherwise, but as the statement of a substantive rule of law, the meaning, purpose and effect of which was to lay down as a rule of law that the penalty imposed for the failure to account for the disposition of the peanuts to be collected from the producer was the same as that the statute provided for excess marketing. In short, we find ourselves in complete agreement with the findings and conclusions of the district judge and with the contentions of the appellee as to the purpose and effect of the statute as they are thus set out in its brief:

“I. The Act and the regulations require each producer of peanuts to account for the disposition of all peanuts produced by such person. The appellant failed to make such accounting and is liable for civil penalties.

“A. The appellant admits that he failed to make the required accounting.

“B. The statutory and regulatory provisions require each producer of peanuts to account for the disposition of all peanuts produced by such person. * * *

“C. The Act creates an irrebut-table presumption; i. e. a rule of substantive law, that failure to account for the disposition of all peanuts produced subjects the producer to the penalty provisions.” ⁴

“II. The provisions of the Act are constitutional.

“A. The creation of an irrebut-table presumption; i. e. a rule of substantive law that failure to account for the disposition of all peanuts produced subjects the producer to the penalty provisions, is not vio-lative of the Constitution.

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“C. The statutory requirement for producers to account for the disposition of all peanuts produced by them is within the scope of the commerce clause in the Constitution.”⁵

If we are correct in these views, and we are not in any doubt that we are, then the whole argument of appellant falls for it is untenably based upon the view: that the act or omission penalized in this case was not the failure to report on the disposition of the peanuts as the statute provides and as the complaint charged but that failure coupled with proof that the peanuts had been marketed contrary to the quota; that, therefore, the provision in the statute that an amount of peanuts “shall be deemed to have been marketed in excess of the marketing quota for the farm” was intended to create, and does create, a presumption of fact; and that for the court to construe it as conclusively making him liable for the penalty fixed for such a marketing either is an incorrect construction of the meaning and intended effect of the statute, or, if a correct one, renders the statute invalid as creating an irrebuttable presumption of fact.

Thus appellant’s contention that the penalty was wrongfully assessed against him because either the statute fixed an irrebuttable presumption of fact that excess peanuts were marketed by him and his undisputed proof overcame this presumption or if the presumption was irrevocable the statute was invalid, is seen to be without basis. For no matter what might be said of such a statutory effort if appellant’s theory were correct, the theory can have no application here for the penalty was assessed for failure to report and the only function of the objected to clause is to say that because of the failure to report there shall be exacted the penalty providing for excess marketing. It is true that appellee does argue that the language “shall be deemed”, etc., does create an irrebuttable presumption, but it is equally plain that the presumption argued for is not one of fact but of law. It is not, as appellant maintains, a presumption of fact, that appellant did market these peanuts, but of law, that because of his failure to report their disposition he became liable to a penalty for not doing so, and for the purpose of measuring the penalty he is to be treated as he would have been treated if he had been guilty of excess marketing.

The judgment was right. It is affirmed.

1 . 7 U.S.C.A. § 1359(a), as material here, provides as follows:

2 . “This is an action instituted by the United States for the purpose of collecting marketing penalties as provided in Section 1359(a) of the Agricultural Adjustment Act of 1938, as amended (7 U.S. C. 1281 et seq., 1359(a), from the above named defendant.

“Findings of Fact

“1. Defendant, during 1950 and 1951, engaged in the production of peanuts on farm No. C-7 in Coffee County, Alabama, within the jurisdiction of this court.

“2. The Coffee County Production and Marketing Administration Committee, in accordance with provision of the Act and of the Marketing Quota Regulations for the 1950 crop of peanuts, established for that farm a peanut acreage allotment of 14.7 acres. Defendant planted and harvested 26.8 acres, which was 12.1 acres in excess of his allotment, and hauled the peanuts to another farm owned by him in Covington County, Alabama.

“3. The Coffee County Production and Marketing Administration Committee in 1951 reduced defendant’s peanut acreage allotment for farm No. C-7 to zero acres, but defendant planted and harvested 25.2 acres, the production of which he also hauled to his Covington County farm.

“4. By letters dated Sept. 11, 1952 and Jan. 15, 1954, the Alabama State Production and Marketing Administration Committee requested Defendant to submit written reports covering his production of peanuts each year and to account for its disposition, which the defendant did not do.

“5. Under the regulations, the defendant was entitled to a marketing card for 1950 which would have enabled him to sell his allotment peanuts, which represented his marketing quota, free of penalty and his excess peanuts subject to penalty. He was also entitled to an excess card for 1951 which would have entitled him to sell his peanuts subject to penalty, had he applied for them.

“6. Plaintiff, seeking a summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S. C.A., contends that the only fact necessary to support its claim for penalties for each of the years involved, is the admission by defendant that he, the defendant, failed to account for the disposition of his peanut crops, in writing, to the Production and Marketing Committee.

“7. Defendant, in support of his motion to dismiss, contends that Section 1357, Title 7, U.S.C.A., does not govern ‘the production of peanuts,’ but is applicable to and governs only the ‘marketing’ of peanuts; that the allegation in plaintiff’s complaint that ‘peanuts were hauled away from the farm’ does not constitute an allegation that the peanuts were ‘marketed’ within the meaning of the Act; that, as a matter of fact, the peanuts were not ‘marketed’ by the defendant, but were fed to his live stock; that certain provision of Section 1359(a) of the Act are unconstitutional, as if the failure to afford the defendant an opportunity to explain at a hearing, especially to this court, his disposition of his peanut crops.

“Conclusions of Law

“1. The Act, and the decisions interpreting it, empower the Production and Marketing Administration Committee to control the total supply of peanuts available for market, which includes control of individual supply to the extent that a producer who grows peanuts, harvests and threshes them, must make a written accounting to the Committee of the disposition of excess peanuts, or, failing to so account for their disposition, is deemed to have marketed them in excess of his marketing quota for that farm.

“2. Under Section 1373(b) of the Act, the defendant was required to submit a written report of the production of peanuts on Farm No. C-7, and to account for disposition of said crop to the Alabama State Production and Marketing Administration Committee, which Committee requested such report, as provided by the Act, and the burden of proof was on the defendant to show to the Committee, by such written report, what disposition was made of the excess peanuts, or that he was not engaged in the production of such peanuts for market.

“3. The burden is not on the Production and Marketing Committee to show that the peanuts were produced for market, but the burden is on the defendant to show to the Committee that the peanuts were not marketed. Under the Act, the defendant was required to account to the Committee for the disposition of the peanuts, and failure to so account to the Committee created a presumption that the peanuts were produced for market, and made the defendant subject to the penalties under the Act.

“4. The requirement that written reports be made to the Committee was reasonable and in accordance with the Act. The plaintiff may not refuse to present his explanation through Administrative channels that are reasonable and proper, preferring to await a judicial determination to rebut the provisions of the Act which make a failure to account to the Committee for the disposition of peanuts a conclusion that the peanuts were marketed.

“5. The provisions of Section 1359(a) do not violate the 5th and 10th Amendments nor Article III of the Constitution.”

3 . Particularly Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772.

4 . See in support Cunningham v. United States, 5 Cir., 67 F.2d 714; City of New Port Richey v. Fidelity & Deposit Co., 5 Cir., 105 F.2d 348, 123 A.L.R. 1352; Amerada Petroleum Corp. v. 1010.61 Acres of Land, 5 Cir., 146 F.2d 99; United States v. Jones, 9 Cir., 176 F.2d 278; Wigmore on Evidence, 3rd Ed. Vol. 4, Sec. 1352; 11 Words and Phrases, Deem, p. 481, as “considered or taken to be”, and cases there cited, and King v. McElroy, 37 N.M. 238, 21 P.2d 80.

5 . See United States v. Darby, 312 U.S. 100, 118, 61 S.Ct. 451, 85 L.Ed. 609; United States v. Wrightwood Dairy Co., 315 U.S. 110, 119, 62 S.Ct. 523, 86 L.Ed. ; United States v. Rock Royal Co-op., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446; Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092; Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122; Mandville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328; United States v. Walsh, 331 U.S. 432, 67 S. Ct. 1283, 91 L.Ed. 1585. See also the argument of Mr. Justice Stone dissenting in Heiner v. Donnan, 285 U.S. at page 338, 52 S.Ct. at page 365; and eases cited, particularly La Belle Iron Works v. United States, 256 U.S. 377, 41 S.Ct. 528, 65 L.Ed. 998.