*2 HUXMAN, Before MURRAH and PICKETT, Circuit Judges.
HUXMAN,
Judge.
Circuit
in this case is appellant,
Kelley,
Arthur L.
the owner
operator
private
stockyard, not
subject
provisions
to the
of the Packers
Stockyards Act,
7 U.S.C.A.
181 et
§
seq., herein
referred to as the
required
give
bond as re-
quired
provisions
under its
because of his
purchase of livestock
“post-
provisions
ed” under the
of the Act.
The Act
the Secretary
post
stockyards falling
provisions by
within its
posting appropriate
stockyard premises.
notices
Sec
agencies
tion 201 defines two
falling un
provisions
der the
of the Act. These are
“marketing agencies” and “dealers”. A
Oklahoma,
Sale, Hominy,
“any per- Hominy
without
defined as
marketing agency is
having
Secretary
registered with
(1)
engaged in the business
son
*3
furnishing
without
bond
a stock-
and
commerce livestock at
selling in
or
**
required by
as
the Act. A second count
*.’*
basis
yard on a commission
charged four similar violations between
con-
fall
classification
U'nder this
14, 1951,
at
April
November
and
generally
we
persons
or
of whom
cerns
stockyard
posted
a
Pawhuska
known as
commission
speak as commission men or
Auction, Pawhuska, Oklahoma, and a third
They
buy
sell livestock
both
and
houses.
violations
charged four additional
count
which service
for
for customers
19, 1951,
31, 1951, May
between March
and
in-
Congress
a commission. Had
charge
Coffey-
posted stockyard
at a
as
known
application of the
to limit the
tended
Stockyard, Coffeyville,
Trial
ville
Kansas.
of
standing in somewhat
a
such concerns
findings
was
court.
It made
had to the
fiduciary relationship,
further definition
based
of fact and conclusions of law and
a
have been
designation of
dealer would
or.
adjudged
appellant
as
guilty
thereon
the
and
required.
Congress
But
went further
charged.
separate
from
placed
category
in a
dealers
men.
It
marketing agencies or commission
dispute
is no
in the evidence and
There
person,
“any
meaning
them as
defined
only
the
is whether the admitted
engaged in the business
agency,1
market
a
operations
appellant bring
of
him within
buying
in commerce livestock
selling
or
of
Appellant was
the ambit
the statute.
of
account
either on
own
stockyard,
at
private
operator
the sole
owner
employee
agent of the vendor
or
or as
Oklahoma,
stockyard
Muskogee,
in
from
purchaser.”
as defined in
Thus
or
purchased by
he
which
sells all livestock
“marketing agency” and “dealer”
terms
place
him. He had no other
of business.
(cid:127)
plain
synonymous. Under
are not
stockyard
subject
pro-
His
to the
was not
can-
(d) a dealer
language of- Subsection
Act.
visions of the
On
thirteen oc-
buys
he
agency.
a commission
not be
complaint
alleged
pur-
casions
he
‘
basis, he is a
sells on a commission
stockyards
at
chased 922 swine
these three
It
agency and not a dealer.
marketing
paid
$40,471.-
for which he
total sum of
engages
he
in business other
when
purchases
He
also made similar
buys or
on a commission basis and
than'
posted
livestock
other
at
on
for himself
em-
livestock
or as the
sells
other
Each of
dates.
these three stock-
pur-
ployee
agent of the vendor or
yards
qualified stockyard
was a
and was
subject
that he becomes a dealer
chaser
properly
as
the Act.
the Act.
the terms
operators
The
owners
each of these
material,
So far as
Section 203
the stockyards
registered
and bonded
public
any per-
it a
offense for
Act makes
provisions
All
Act.
carry on the business of a dealer
son to
stockyards by
livestock delivered to these
stockyard
he
registered
unless
has
“at such
individual owners are offered for sale at
Secretary under such rules and
with the
marketing
sold
auction and
Secretary may prescribe,
as
regulations
yards
operating the
as
agency
agent
address,
the character
his name
owners,
agency receiving
a com-
* *
engaged
business in
he
Appellant
in-
mission
sales.
either
complaint
under which
The
dividually
agent purchased
an
charged
tried and convicted
that on
was
thirteen
After
the livestock
dates.
separate
five
dates between November
purchases,
making the
the livestock was
8, 1950,
engaged
and December
he
place
Muskogee,
of business in
taken to his
provisions
violating the
of the Act as a
Oklahoma,
transported
and thereafter was
meaning
within the
of the Act in
dealer
Oklahoma,
Muskogee,
resale
buying
the business of
livestock
inter-
points in Oklahoma and outside
other
commerce, by buying
as a
state
posted stockyard
Oklahoma.
known as
dealer'at
Emphasis
supplied.
is not
salient fact that
question in
case
obscure
The sole
the business of
as defined
appellant was a
dealer
commerce,
selling
as found
he
trial court found
in the
Act.
court,
sup
that he carried on these
finding
amply
think the
we
out,
posted stockyards
pointed
a activities
without
ported by
As
the record.
mandatory require-
complying
en
with the
Act as one
defined
dealer is
dealer,
selling ments of the Act as
relates to a
buying or
gaged in
the business
stockyard, ei
such as was.
livestock as
commerce
agent
ther
his own
account
The case of United
v. Roberts
States
*4
comprehensive
“Business” is
another.
Oake,
630,
and
which
7
65
on
F.2d
which
defined as that
term.
It has been
appellant places strong
is neither
reliance
time,
“occupies
labor
attention and
the
point
persuasive. There,
in
nor
the Secre-
of men for the
of a livelihood
tary sought
compel
packer
to'
a meat
to
that
profit.”2
require
The Act does
comply
provisions of
re-
the Act
with
Act be
a dealer in
come under the
order to
quiring a bond from a
The Act
dealer.
,
engaged in the sole business of
require
does not
such a bond from a
These
in commerce.
selling livestock
packer. All
authority
that case is
for is
purchases
hogs, involving
thirteen
of 922
packer
that a
not a dealer under
$40,471.28
period
expenditure
an
over a
is, therefore,
required
Act and
to give
months,
of seven
constituted
consecutive
a bond.
more
than
isolated transactions.
mere
Appellant has filed
a motion
the as
They
defined
busi
chart a well
course of
appellee
sessment of costs to
in the event
reveals,
it
the record
ness. As far as
appealed
the judgment
from is affirmed.
his
he had. He had
business
predicated
This motion is
ground
on
stockyard
live
own
took this
to
designation
of the record as made
and from which he distributed
stock
by appellant and filed in court contains
points both intra and inter
sale to various
all
necessary
present
ques
that
to
all
found that his activities
state. The court
that,
tions
in
appeal
involved
were not limited
these thirteen occasions
therefore,
ap
counter-designation by
frequently purchased
but that he
livestock
3
pellee
unnecessary.
posted
at
yards and that he also
at these
Appellant’s designation consists of
frequent
purchased
at
livestock
intervals
page
one
of evidence in narrative form
posted yards
sold
other
occasion
pages
question
and seven
of evidence in
posted yards.
these
Appellee,
and answer form.
in its counter-
questions designation,
Discussions of incidental
designated
the remaining
all
question
as
not avail himself of
such
that he did
evidence
and answer form. A
any
at the cursory
or furnish
facilities or services
appellant’s desig
examination of
stockyards,
as defined
nation
establishes that
it did not contain
he did
owner
not act for the vendor or
all the
ato
considera
any livestock,
or collect or receive
presented
tion
ap
of the
handling
peal.
commission for the
live
It contained none of the evidence
do
stock for another are immaterial and
establishing that
interstate commerce was
Sargent
Co., 242
2.
Land
appellant,
Von Baumbach v.
as it tbinks material.
after
460;
designa-
U.S.
61 L.Ed.
37 S.Ct.
of such
examination
additional
Tracy Co.,
tion,
any part
Stone
220
See also Flint v.
certifies that
whole
107, 171,
requested
appellee
U.S.
55 L.Ed.
of the material
designation
unnecessary,
the additional
appellee
of the Revised Rules
Amended Rule 16
required
will be
to advance the
court,
material, pro-
far as
this
so
printing
costs for the
of the additional
vides that when
has filed
designation.
upon
Thereafter,
motion of
provided therein,
designation
as
of record
party
upon
either
court shall
final
days
appellee may
after
within 10
service
print-
determination assess costs for the
designate
upon it,
designation
unnecessary portions
writing
record
the clerk such addi-
filed with
according
right
justice.
parts
printed
of the record to
donal
be
Oldahoma, Pawhuska, Oklahoma, and Cof
all
evi-
did it contain
Neither
issue.
Kansas,
feyville,
qualify
upon the char-
bearing
dence
the record
Stockyards
under the
Act of
While the
Packers
appellant’s business.
acter of
seq.
ap- 1921,
amended,
et
showing that
7 U.S.C.A. §
contains evidence
record
owned,
privately
operated
purchased Each was
pellant
separate
occasions
day
$40,471.28, a
auction of livestock one
total value of
922 swine
aof
ap-
stockyard
serv
week. Each
furnished no
is' revéaled
none of this evidence
agency
ices other than an
sale
by mere
pellant’s
other than
designation
day
The defend
livestock the
of the sale.
purchased swine
statement
ant
on different
attended these auctions
in exhibits
at
as itemized
these
purchased
dates and
for himself livestock
was also
complaint. There
attached to
equivalent.
paid
which he
for in cash or its
appellant on
evidence that
considerable
accepted delivery
purchased
He
numerous
occasions
other
purchase
place
and later
resold
sold
and other
livestock at
receive or
evi-
them. The defendant did not
this,
All
other
stockyards.
as well as
*5
way
services,
any
was
no
dence,
furnish
whether
bearing
a material
had
and.
n
operation
stock
of the
connected with the
under
engaged as a dealer
was
‘
yards.
sell-
buying
the Act in the
business of
posted stockyards. These
livestock at
person
The
“en-
Act defines a dealer as a
are sufficient
references to
such
gaged in
buying
selling
or
the business of
warranted,
to
appellee
show that
was
stockyard”.
commerce livestock at a
necessity
making a
fact was under the
of
person
7
201. A
in the business
U.S.C.A. §
to be
of the record
counter-designation
himself,
buying
of
selling
livestock for
appeal.
printed
for consideration
stockyards
having no connections with the
seller,
ap-
buyer
other than as a
may
ap
parts
at least some
of
Since
pear to
be within the letter of
statute
counter-designation
proper,
pellee’s
were
however,
may,
a
defining
thing
A
dealer.
certifying
warranted in
was not
be within the letter of the statute and still
requested
“the
the material
whole of
not
within the statute because
within
by appellee
designation
in his additional
spirit
its
nor within
intention of
unnecessary."
printed is
of record to be
Cabell,
lawmakers. Markham v.
326 U.S.
parts
counter-designation
404,
193,
165;
409,
Sor-
66 S.Ct.
L.Ed.
90
duty
appellant’s
unnecessary, it
States,
435, 446, 53
rells v. United
287 U.S.
parts
point
unnecessary
the rule
out the
to
210,
413;
v.
S.Ct.
L.Ed.
Pickett
United
77
counter-designation. Having failed
of the
265,
States,
461, 30
54
216 U.S.
S.Ct.
this,
position to
to
he is not in
ask this
do
566; Holy
v.
Trinity
L.Ed.
Church United
segre
court to do his work and make
States,
457, 459, 12
36
143 U.S.
S.Ct.
him.
gation for
226; Darby-Lynde
L.Ed.
Co.
Alexan-
appellee
motion to assess costs
The
to
is der,
56,1
51
certiorari
F.2d
denied
appealed
judgment
and the
from
denied
284 U.S.
owners and account to them proceeds. agencies
for the These are the buyers
and are the or sellers agencies
refers to. It is that Con- gress affect, intended to when it defined ” or sell- “dealer one INTERNAL BAVIS v. COMMISSIONER OF stockyards. ing livestock at a Stafford v. REVENUE. Wallace, 258 U.S. 66 L. COMMISSIONER INTERNAL v. OF BELL Ed. 735. REVENUE. Oake, In United States v. Roberts & GIANGUILIO COMMISSIONER OF 65 F.2d considered court INTERNAL REVENUE. applied of whether the Act to a Nos. 10881-10883. packer purchased livestock at a posted stockyards. Although reference was Appeals United States Court of made to the fact that the defendant was Third Circuit. packer regulated also Argued March court that it no use- reasoned would serve require packer 31, 1953. ful which did March Decided purchase no more than livestock for it-
self to as a dealer under the Act. said, pages there
It was F.2d at 631-632: usually man
“The dealer a commission agent acts as the of the seller. He col-
who buyer (the pack- money from
lects the shipper. remits it to To
er) and secure remittance, Secretary may prompt why pur-
exact bond. But should the ? execute bond He does not
chaser collect money, nor is he entrusted with the
handling the livestock after arrival at
stockyard and before its sale. From the
very of the business it is nature