MacE v. BERRY

81 S.E.2d 276 | S.C. | 1954

225 S.C. 160 (1954) 81 S.E.2d 276

MACE
v.
BERRY ET AL.

16854

Supreme Court of South Carolina.

April 1, 1954.

Messrs. P.H. McEachin, of Florence, and Woods & Woods, of Marion, for Appellant.

Messrs. Neil Brooks, Associate Solicitor, U.S. Department of Agriculture, and John C. Bagwell, and Donald A. Campbell, Attorneys, U.S. Department of Agriculture, of Washington, D.C., and Ben Scott Whaley, United States Attorney, and Russell D. Miller, Assistant United States Attorney, of Charleston, for Respondents.

Messrs. P.H. McEachin, of Florence, and Woods & Woods, of Marion, for Appellant, in reply.

The Order of Judge Baker follows:

In 1938, the first tobacco marketing quota program year, J.L. Mace, the appellant, farmed two tracts of land as consisting of 54.2 acres of cropland, on which appellant lives and hereinafter referred to as the home place, and one tract containing 170.2 acres of cropland, which is known as the Rowell place. These two tracts of land were operated as one farm and under one work sheet, and remained under the control of appellant at least through the year of 1949. On December 8, 1949, the appellant contracted to sell the Rowell tract to C.E. Frazer and Ella L. Frazer, the deed to be delivered in February of 1950, but conveyance was not actually delivered until February 21, 1951, and then only after court action and a decree of specific performance. In February of 1950, the appellant requested the County Committee of the Production and Marketing Administration, United States Department of Agriculture, for Marion County, for a subdivision to be made of the two tracts, covering each tract by a separate worksheet, with a flue-cured tobacco acreage allotment for each farm. The Marion County Committee executed papers to bring about the reconstitution and forwarded the proposed subdivision to the State Committee, which committee disapproved the proposed subdivision, and for reasons which are not at issue in this appeal.

During the year of 1950 the appellant was farming a part of the croplands on the Rowell tract and Mr. Frazer farming a portion of the remaining cropland. Beginning with the crop year of 1951, Mr. Mace lost control of the Rowell tract and sub-division had to be effected, which was made by the Marion County Committee on the basis of the 1950 cropland under Section 725.221 of the Burley and Flue-cured Tobacco Marketing Quota Regulations for the years 1951-1952, and the home place was given an allotment of 7.8 acres, with 21.4 acres going to the Rowell tract. The appellant in due time, after notice of this allotment, applied for a review of the decision of the County Committee, the application for review being made to the Review Committee for Marion County.

The Review Committee, on September 28, 1951, established a flue-cured tobacco acreage allotment for appellant's tract of land for the marketing year of 1951, of 5.8 acres, a reduction of two acres from the allotment established by the County Committee. It is admitted the Review Committee was in error in striking two acres from the allotment established by the County Committee, so appellant is at least entitled to an allotment as of the 1951 marketing year of 7.8 acres for his home tract.

In the appeal to the Review Committee, appellant contends he is entitled to an allotment for the marketing year of 1951, of 27.9 acres, or at least an allotment substantially larger than that established by the County Committee. The Review Committee found the total cropland in the year of 1950 for both tracts of land in the sum of 274.3 acres, of which appellant operated 192.9 acres, and Mr. Frazer 81.4 acres. For the year of 1951, the committee established as a fact that the total cropland operated by appellant in 1950, before subdivision, was 192.9 acres, and in 1951, the total cropland operated by appellant constituted 54.2 acres, and after mathematical calculation, the allotment was determined as 5.8 acres. There are other findings of fact by the Review Committee which will be referred to in the discussion of the exceptions by appellant to this court in his appeal from the Review Committee.

As a prelude to a discussion of the issues, it should also be stated the Review Committee concluded that the land operated by appellant as a single farm in 1949, consisting of the Rowell tract and the home tract, was operated in 1950 as two farms, one by appellant and one by Frazer, and the 150 tobacco acreage allotment must be apportioned between the two as of the year 1950 in the same proportion as the acreage of cropland suitable for the production of tobacco in each bore to the total number of acres of cropland suitable for the production of tobacco on the entire farm. Then proceeding to the year 1951, this committee says the land operated by appellant as a single farm in 1950, consisting of a part of the Rowell tract, 138.7 acres of cropland, and all of the home place, to wit, 54.2 acres of cropland, was operated in 1951 as two farms, and therefore the 1951 tobacco acreage allotment to be established for the entire farm must be apportioned among the two farms for 1951 pursuant to the provisions of Section 725.221 of the 1951-52 Tobacco Marketing Quota Regulations. In this connection, the committee also declared all cropland acreage on the Rowell tract and the home tract, and in the year of 1950, are suitable for the production of tobacco. The committee then proceeded to reconstitute the lands for the crop year of 1950 on an operationship basis with the 1950-51 Tobacco Marketing Quota Regulations, and again reconstituted the lands for the crop year of 1951 on an operationship basis in accordance with the 1951-52 regulations, which would have resulted in a 1950 tobacco acreage allotment for the lands operated by appellant in 1951 of 5.8 acres.

The appellant contends the Review Committee was in error in computing the allotment on the basis of the year 1951 instead of on the basis of the year 1950 and the regulations and conditions prevailing in that year, and, further, the committee erred in alloting to C.E. Frazer for the purposes of division, lands not suitable for the production of tobacco, and lands which had never been on the worksheet of appellant or any other tobacco grower.

Cropland for the year of 1950 means farm land which in 1949 was tilled or was in regular crop rotation, excluding certain lands as described in Section 725-112 of the 1950-51 regulations, and croplands for the year of 1951 means farm land which in 1950 was tilled or was in regular crop rotation, with those exclusions as also described in the Regulations for 1951-52. In determining the croplands for 1950, the Review Committee had the benefit of aerial photographs, the testimony taken at the hearing and the inspection of the Rowell tract, at which visit further questions were asked of Mr. Mace and Mr. Frazer. The record supports the finding of the committee that the total 1950 cropland before subdivision was 274.3 acres, of which Mr. Mace operated 129.9 acres. Appellant says, however, that all of this cropland acreage was not on his worksheet or anyone else's, nor did he draw any parity payments on some of the acreage, and therefore that which was not included in the worksheets should not be considered in the computation of the tobacco allotment. The regulations, however, provide that all cropland is to be considered. Consequently, the Review Committee was correct in its consideration of the entire acreage.

During the year of 1950, Mr. Frazer cleared and planted some new crop acreage, but this was not considered in the calculations for the year of 1950, nor does it appear it entered into the calculations for the year of 1951, since the 1951 allotment, in so far as appellant is concerned, is based upon the single farm operated in 1950 by appellant, consisting of 192.9 acres.

Section 725.121 of the Regulations for the 1950-51 marketing year provides if land is operated as a single farm in 1949, and will be operated in 1950 as two or more farms, the 1950 tobacco acreage allotment determined or which otherwise would have been determined for the entire farm shall be apportioned among the tracts in the same proportion as acreage of cropland suitable for the production of tobacco in each such tract and in such year bore to the total number of acres of cropland suitable for the production of tobacco on the entire farm in such year. The 1950 allotment established for the entire farm was 25.5 acres. As already pointed out, the total 1950 cropland, before division, was 274.3 acres, as the total 1950 cropland operated by appellant was 192.9 acres. He then in 1950 was operating 70.3% of the total cropland, which gave him an allotment of 17.9 acres. Mr. Mace was considered as operating a single farm in 1950, although he was renting from Frazer for that year 138.7 acres of cropland on the Rowell tract. This constitutes a farm under the applicable regulations. In 1951 the allotment for the farm operated by J.L. Mace in 1950, that is, 192.9 acres, was set at 20.5 acres, an increase over the 17.9 acres for 1950. Mr. Mace, however, in 1951, was only operating 54.2 acres, or that is, 28.1% of the 192.9 acres. The single farm which he had been operating, and for which there was but one worksheet in 1950, was then reconstituted under Section 725.221 of the 1951-52 regulations, which provides if land operated as a single farm in 1950 will be operated in 1951 as two or more farms, the tobacco acreage allotment shall be determined as already described in the same numbered section. As contained in the 1950-51 regulations, this method of subdivision, constitution and reconstitution was entirely proper, not only under the 1950-51 regulations, but also under the 1951-52 regulations since appellant did not lose control of the 138.7 acres of cropland on the Rowell tract until 1951. Reconstitution then became necessary because the cropland under his control then was substantially reduced.

In the determinations of fact by the Review Committee it is stated that all cropland acreages in the Rowell tract and home place are suitable for the production of tobacco, and all cropland acreages in the farm operated by J.L. Mace in 1950 are suitable for the production of tobacco. There was substantial evidence to support this finding of the Review Committee, and this court is bound thereby, as pointed out in the case of Lee v. DeBerry, 219 S.C. 382, 65 S.E. (2d) 775.

The appellant declares the allotment and marketing quota was not divided in compliance with the provisions of Section 725.121 of the 1950-51 Regulations and Section 725.221 of the 1951-52 Regulations, in that the tobacco acreage to be divided between the two tracts resulted from a combination of several separate and distinct farms prior to a combination in either 1945 or 1946 of any subsequent year, whereby the allotment should have been computed from the several farms entering into the combination in the same proportion that each farm contributed to the acreage allotment. There was no combination of the home tract or Rowell tract in 1945 or 1946 or any subsequent year. The two tracts had been operated as one farm since 1938 and through 1949, that is, farmed as a single unit from the time the first allotment was established in 1938 until 1950, and operated continuously by Mr. Mace. All data sheets and worksheets pertaining to Mr. Mace's farming operations and introduced into evidence by the County Committee considered by the Review Committee, clearly show the lack of merit in this exception. In the verbal testimony taken before the Review Committee there is an absence of competent evidence to support this view of the case taken by appellant.

The appellant further says the tobacco allotment should have been divided on other than a strict cropland basis in 1950 or 1951, since there was an agreement to the contrary by seller and purchaser. The record does not contain a written agreement. The testimony of Mr. Mace is directly to the effect of the existence of such an agreement, but denied by Mr. Frazer. The instructions for determining the allotment for the 1950-51 marketing year, and for the 1951-52 marketing year, state in all cases where division is made on other than a cropland or contribution basis, a written agreement will be signed by all interested persons, but, as already stated, there is the absence of a written agreement. However, an examination of the regulations for the two years 1950-51, does not reveal such a division by way of the written agreement, and the only division referred to other than on a cropland basis is in the case of the settlement of estates. The decision of the Review Committee that there is no justification for dividing the tobacco allotment in 1950 or 1951 on a basis other than a strict cropland basis cannot be disturbed.

All of the appellant's exceptions are dismissed without merit, excepting, however, the error of the Review Committee in reducing the allotment from 7.8 acres to 5.8 acres, which error has been admitted and requires no further discussion. The case is therefore returned to the Review Committee or the County Committee for the purpose of reinstating the two acres of tobacco allotment, but in other respects the action of the Review Committee is affirmed.

April 1, 1954.

MOSS, Acting Associate Justice.

This action was instituted by the appellant to review the 1951 flue-cured tobacco acreage allotment and farm marketing quota for the appellant's farm, under the Agriculture Adjustment Act of 1938, as amended, 52 Stat. 31, 62 Stat. 1250, 7 U.S.C. § 1281 et seq., 7 U.S.C.A. § 1281 et seq. The Act authorizes such review in the United States District Court, for the district in which the farm is located, or by a proceeding "in any court of record of the State having general jurisdiction, sitting in the county * * * in which his [the plaintiff's] farm is located * * *". 52 Stat. 31, 63, 7 U.S.C. § 1365, 7 U.S.C.A. § 1365.

There is no necessity to here recite the factual situation that exists in this proceeding. The facts have been passed upon by the Marion County Committee of the Production and Marketing Administration. The Review Committee has also passed upon the facts pursuant to a petition for review from the County Committee's findings. A full and complete hearing was held by the Review Committee, testimony of all witnesses presented and exhibits offered were received and the entire record reviewed. The Review Committee made its findings of fact and affirmed the action of the County Committee. Upon appeal to the Circuit Court for the Twelfth Circuit the Honorable G. Badger Baker affirmed the findings of fact of the County and Review Committees, except that he did increase the acreage allotment to appellant from 5.8 acres, as found by the Review Committee, to 7.8 acres and directed the return of the case to the Review Committee for the purpose of reinstating the additional two acres of tobacco allotment.

This Court has heretofore in the cases of Lee v. DeBerry, 219 S.C. 382, 65 S.E. (2d) 775, and Lee v. Berry, 219 S.C. 346, 65 S.E. (2d) 257, 259, had occasion to set forth the guiding principles applicable to a judicial review under the Agricultural Adjustment Act of 1938, and this Court is bound by the pronouncements there made.

"This Court is limited in its scope of inquiry to questions of law and is bound by the findings of fact as determined by the fact-finding body (in this case the committee) if there is any competent evidence to support such findings." Lee v. Berry, supra.

"The scope of judicial review in a proceeding of this kind under the Agricultural Adjustment Act of 1938, as amended, is limited by the explicit provisions of the Act to questions of law. The court is directed to affirm the determination of the Review Committee if its findings of fact are supported by substantial evidence. If so supported, such findings are made conclusive. See 366 of the Act, 7 U.S.C.A., § 1366." Lee v. DeBerry, supra [219 S.C. 382, 65 S.E. (2d) 777.]

It is the judgment of this Court that the determination of the Review Committee is supported by the facts recited in the Order of the Trial Judge. We are, therefore bound by such and hence all exceptions raising questions of fact are overruled and the Order of the Circuit Judge with reference thereto affirmed.

It should also be stated that:

"It is explicit that the acreage allotment is made to the farm and not the person who owns or operates the farm and therefore, runs with the land." Lee v. Berry, supra.

The action of the County and Review Committees and as affirmed by the Circuit Judge following this explicit provision is affirmed.

The appellant also alleges that the Committee was in error in visiting the tracts of land involved in this proceeding and, while there, receiving testimony as to the acreage in crop land. It appears from the record that at the conclusion of the taking of oral testimony it was announced that the Review Committee would in company with a representative of the County Committee and a representative of the Appellant go to the farms in question for the purpose of inspecting said farms. The record does not reveal any objection to this procedure on the part of the appellant. In fact the record shows that the Appellant and his counsel were present when the inspection was made.

The Review Committee had the power to recess or adjourn the hearing to another locality. The regulations provide that the

"hearing shall be held at the time and place set forth in the notice of hearing * * * but may, without notice other than an announcement at the hearing by the Chairman of the review committee, be continued from day to day or adjourned to a different place in the county or to a later date or to a date and place to be fixed in a subsequent notice * * *" Section 711.24 of the Marketing Quota Review Regulations, 7 C.F.R. section 711.24, emphasis supplied. Inasmuch as the regulations were issued in pursuance of constitutional statutory authority, the regulations have the same force and effect as if prescribed in terms by the statute, i.e., the regulations have the force and effect of law. Federal Crop Insurance Corporation v. Merrill, 332 U.S. 380, 384-385 [68 S. Ct. 1, 92 L. Ed. 10]; Lilly v. Grand Trunk [Western] R. Co., 317 U.S. 481, 487-488 [63 S. Ct. 347, 87 L. Ed. 411]; Atchison, Topeka & Santa Fe Ry. [Co.] v. Scarlett, 300 U.S. 471, 474 [57 S. Ct. 541, 81 L. Ed. 748]. The appellant presents in this case no questions as to the validity of any of the terms in the Act or in the regulations.

If the appellant conceived that the Review Committee was exceeding its authority or violating any regulation or applicable Federal Law, timely objection should have been made by him to the announcement that the Committee would view and inspect the premises in question. The appellant not having made any objection to such viewing or inspection cannot now be heard to complain of such procedure.

This Court has held in a number of cases that it is within a Court's discretion to permit juries to view premises or lands involved in litigation. Moody v. Dillon Co., 210 S.C. 458, 43 S.E. (2d) 201, 205; McCarley v. Glenn-Lowry Mfg. Co., 75 S.C. 390, 56 S.E. 1; Rodgers v. Hodge, 83 S.C. 569, 65 S.E. 819; Thornton v. Spartan Mills, 98 S.C. 262, 82 S.E. 414. The Review Committee committed no error in viewing and inspecting the premises in question.

In addition to what we have said in this opinion, the Order of the Honorable G. Badger Baker has been carefully considered in the light of the record and exceptions and we find ourselves in accord with the holdings therein. Let his Order be reported.

The Order appealed from is affirmed.

BAKER, C.J., and STUKES, TAYLOR and OXNER, JJ., concur.