136 F.2d 786 | D.C. Cir. | 1943
Under the Agricultural Marketing Agreement Act of 1937,
Appellants, who were plaintiffs in the District Court, are producers of milk who sell to handlers in the Greater Boston area. These handlers, in turn, are subject to Order No. 4. Appellants are not members of a cooperative association; and many of them voted against adoption of Order No. 4, as amended, when it was submitted to a producers’ referendum. In their complaint appellants challenged the action of the Secretary in issuing Order No. 4. They contend that he was without legal authority to incorporate therein Sections 904.9 (a)(d) and 904.7(b) (5); that these sections are unlawful and void; and, particularly, that the Secretary is without legal authority to make any qualifications of any cooperative association, as eligible for the payments specified in the disputed sections of Order No. 4, or to certify any such association for that purpose. They sought an injunction to restrain him from qualifying, or certifying the qualification of, any cooperative association of producers. They sought, also, a judgment declaring the provisions of Section 904.9(a)-(d) and of Section 904.7(b) (5) to be unauthorized, illegal and void. The trial judge, relying upon the decision of this court in Wallace v. Ganley,
The Supreme Court has classified the rights which may be the subject of vindication by an action such as the present: “ * * * a legal right, — one of property, one arising out of contract, one protected against tortious invasion; or one founded on a statute which confers a privilege.”
But, appellants contend, they are not in exactly the same position as the producers in the Wallace case. There the constitutionality of the Act was challenged. Hence, as the producers placed no reliance upon the Act, they could claim none of its benefits. Consequently, the only rights which could have been reflected by their complaint arose, of necessity, from their contracts. In the present case, appellants assume the validity of the Act, and claim rights arising from it, namely, rights to receive the minimum prices therein provided for. Proceeding upon this assumption, they contend, first, that the formula prescribed by the Secretary, in his order for determining minimum prices, was improper; and, second, that they, as beneficiaries under the Act, are empowered to challenge that order by means of the proceeding which they initiated in the present case. Presumably, therefore, appellants are assuming a right “founded on a statute which confers a privilege.”
Coming, then, to an examination of this assumption, and conceding its validity, solely for the purpose of argument, it will be noted that Congress made no provision in the Agricultural Marketing Agreement Act for review, upon the petition of milk producers, even in the capacity of “private .Attorney Generals,”
United States v. Rock Royal Coop. Inc.,
• We conclude that the decision of the District Court was correct.
Affirmed.
50 Stat. 246, § 8e, 7 U.S.C.A. § 608e.
7 CFR 9Q4-904.0-; 6 Fed.Reg. 3762.
§ 904.9 (b) “Payment to Qualified Cooperative Associations. The market administrator shall, upon claim submitted in form as prescribed by him, make payments authorized under paragraph (a), or issue credit therefor out of the cash balance credited pursuant to § 904.7 (b) (5), on or before the 25th day after the end of each delivery period, subject to verification of the receipts and other items on which the amount is based.”
§ 904.9(a) “Eligibility of Cooperative’ Associations. Upon application to the Secretary, any cooperative association duly organized under the laws of any State which he determines, after appropriate inquiry or investigation, to be conforming to the provisions of such laws and of the Capper-Volstead Act, as amended, as to character of organization, voting requirements, dividend payments, dealing in products of non-members; to be operating as a responsible producer-controlled marketing association exercising full authority in the sale of the milk of its members; to be systematically checking the weights and tests of milk delivered by its members to plants other than those which may be operated by itself; to guarantee payments to its producers; to be maintaining, either individually or in collaboration with other qualified cooperative associations, a competent staff for dealing with marketing problems and providing information to its members with whom close working relationships are constantly maintained; to be collaborating with other similar associations in activities incident to the maintenance and strengthening of collective bargaining by producers and the operation of a plan of uniform pricing of milk to handlers; and to be complying with all provisions of this order applicable to such cooperative association, shall be entitled to receive payments in the amount and under the conditions herein specified from the date of qualification, as fixed by the Secretary, until it has been found by the Secretary after notice and opportunity for a hearing, that it has failed to continue to meet any condition or to maintain and exercise the authority or to perform any of the functions required by this section for the receipt or use of such payments.”
68 App.D.C. 235, 95 F.2d 364.
Tennessee Electric Power Co. v. T. V. A., 306 U.S. 118, 137, 138, 59 S.Ct. 366, 83 L.Ed. 543; citing Ex parte Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216; City of Walla Walla v. Walla Walla Wa
Wallace v. Ganley, 68 App.D.C. 235, 237, 95 F.2d 364, 366.
Tennessee Electric Power Co. v. T. V. A., 306 U.S. 118, 137, 138, 59 S.Ct. 366, 369, z3 L.Ed. 543.
Associated Industries of New York State v. Ickes, 2 Cir., 134 F.2d 694.
gee Edgerton, J., concurring in Colorado Radio Corp. v. Federal Communications Commission, 73 App.D.C. 225, 118 F.2d 24, 28.
See, generally, Mr. Justice Douglas, dissenting in Federal Communications Commission v. National Broadcasting Co., 63 S.Ct. 1035, 87 L.Ed. —, decided May 17, 1943; Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 477, 642, 60 S.Ct. 693, 84 Ed. 869, 1037; Scripps-Howard Radio, Inc., v. Federal Communication Comm., 316 U.S. 4, 14, 15, 62 S.Ct. 875, 86 L.Ed. 1229; Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 268, 269, 60 S.Ct. 561, 84 L.Ed. 738 ;Federal Trade Comm. v. Klesner, 280 U.S. 19, 27, 50 S.Ct. 1, 74 L.Ed. 138, 68 A.L.R. 838; Virginian By. v. System Federation, 300 U.S. 515, 552, 57 S.Ct. 592, 81 L.Ed. 789.
Perkins v. Lukens Steel Co., 310 U. S. 313, 125, 60 S.Ct. 869, 84 L.Ed. 1108.
Associated Industries of New York State v. Ickes, 2 Cir., 134 F.2d 694, 700. And see authorities there cited.
307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446.
67 App.D.O. 327, 92 E.2d 478.
See Perkins v. Lukens Steel Co., 310 U.S. 113, 325, 129, 60 S.Ct. 869, 84 L.Ed. 1108; Stearns v. Wood, 236 U.S. 75, 78, 35 S.Ct. 229, 59 L.Ed. 475; Fairchild v. Hughes, 258 U.S. 126, 129, 130, 42 S.Ct. 274, 66 L.Ed. 499.
67 App.D.C. 327, 332, 92 F.2d 478, 483.