AGRICULTURE DECISIONS-Continued Perishable Agricultural Commodities Act, 1930-Cont. LIND, WILLIAM v. GEORGE F. JOSEPH ORCHARD SIDING, INC. PACA Docket No. 9111. Interim order-Burden of proof- Credibility of witnesses-Contract terms-Disposition by LA. STRAWBERRY & VEGETABLE DISTRIBUTING CO. INC. v. DIXIE MAGIC VALLEY PRODUCE, INC. v. NATIONAL PRODUCE DISTRIBU- TORS, INC. AND/OR EASTERN IDAHO PACKING CORP. PACA Docket No. 9598. Contract of purchase and sale-Breach Page 1162 1162 1162 NATIONAL PRODUCE DISTRIBUTORS, INC. v. H. JACOBS POTATO Co. PACA Docket No. 9638. Delivered sale-Date of ship- ment-Breach not established-Acceptance-Liability PACIFIC COAST FRUIT DISTRIBUTORS, INC. v. EDDIE ITULE BROK- 1161 SMITH. WALTER A., LAKE SHIPP FRUIT COMPANY AND LAKE WILMA FRUIT Co. v. JIMMIE SHMON, PRODUCE BROKER. PACA Docket No. 9178. Action by undisclosed principal- Agency not established-Contract of purchase and sale____ SUZY-BEL FARMS v. HECHT PRODUCE Co. PACA Docket No. VIII AGRICULTURE DECISIONS-Continued Perishable Agricultural Commodities Act, 1930-Cont. Page V. B. HOOK & CO. INC. v. BULLARD PRODUCE Co. PACA Docket 1161 VALLEY FRUIT AND VEGETABLE Co. INC. v. DIXIE PRODUCE CO. 1162 WENATCHEE-WENOKA GROWERS ASSOCIATION v. CHOUMAS WEST INDIES FRUIT COMPANY v. NUKOLLS BANANA Co. PACA 1161 WESTSIDE GROWERS & SHIPPERS, INC. v. MID-WEST FRUIT Co. PACA Docket No. 9661. Suitable shipping condition-Not Classification-Delivery to a plant or purchaser-Distinc- 1164 CUMULATIVE MATERIAL A yearly subject-index list of decisions and orders reported, and other IX BEFORE THE SECRETARY OF AGRICULTURE UNITED STATES DEPARTMENT OF AGRICULTURE (No. 10,022) In re FRED LAWRENCE et al. AMA Docket No. 27-132. Decided August 20, 1965. Equalization of milk-Pricing and pooling of custom-bottled milk— Validity of order provisions-Need for regulation-Promulgation record-Substantial evidence-Dismissal Petition dismissed where petitioners failed to sustain burden of proof as to invalidity of order provisions for equalization of milk produced by handlers with the milk of other producers. Petitioners failed to demonstrate how the order illegally affects them or basis on which they claim refund of amounts paid into producer-settlement fund. The provisions of the order and need for regulation in the pricing and pooling of custombottled milk and own-farm milk are supported by the evidence in the promulgation record and constitute valid and reasonable exercise of administrative discretion. Mr. John B. Carroll, Syracuse, N.Y., for petitioners Lawrence Bros. and Golan & Murphy. Mr. Joseph A. Walsh for respondent. Mr. Jack W. Bain, Hearing Examiner. Decision by Thomas J. Flavin, Judicial Officer ORDER OF DISMISSAL This is a proceeding under section 8c (15) (A) of the Agricultural Adjustment Act (1933), as reenacted and amended by the Agricultural Marketing Agreement Act of 1937 and subsequent amendments (7 U.S.C. 601 et seq.), instituted by a petition filed March 16, 1959, by 19 petitioners challenging primarily the validity under Order No. 27, as amended, issued under the act and regulating the handling of milk in the New York-New Jersey milk marketing area,1 of the equalization of milk produced by handlers thereunder with the milk of other producers. Petitioners alleged, in part, that the inclusion in the equalization pool under 1 Effective January 1, 1962, Order No. 27, as amended, was renumbered as Order No. 2 (26 F.R. 12752), and shall be referred to herein by its former designation. Cite as 24 A.D. 1027 the amended order, with specified exceptions, of the milk production of producer-dealers, that is, producers who also distribute milk, is invalid. An answer was filed by the Deputy Administrator, Agricultural Marketing Service (presently the Consumer and Marketing Service), United States Department of Agriculture, upholding the validity of the challenged provisions of Order No. 27, as amended. At the request of counsel for petitioners, the proceeding was held in abeyance pending the outcome of court appeals of proceedings under section 8c (15) (A) dealing with the issues of statutory authority to regulate or equalize the milk of producer-handlers and the record evidence in support therefor, which issues are similarly presented herein.2 An oral hearing was held in this proceeding November 24, 1964, in New Yok, New York, before Jack W. Bain, Hearing Examiner, Office of Hearing Examiners, United States Department of Agriculture. At the hearing John B. Carroll, Attorney at Law, Syracuse, New York, represented two of the petitioners and respondent was represented by Joseph A. Walsh, Office of the General Counsel, United States Department of Agriculture. Mr. Carroll had not seen the petition prior to the oral hearing herein and he, in effect, requested that the hearing be kept open to enable him to determine if any of the 17 additional petitioners desired to participate in the proceeding. Such request was granted. After the hearing, on December 18, 1964, respondent moved to dismiss the proceeding as to those petitioners who did not appear at the hearing pursuant to section 900.60 (b) (3) of the rules of practice (7 CFR 900.60 (b) (3)) and to close the hearing. The hearing examiner, in absence of any objection from Mr. Carroll, granted such motion3 and granted petitioners 40 days to file a brief with provision for the filing of answering and reply briefs. Petitioners failed to file a brief and respondent did not, therefore, file an answering brief, but filed June 3, 1965, a motion to dismiss the petition. Petitioners filed what appears to be an untimely reply 2 See In re Jacob Tanis, et al., 17 A.D. 1091 (1958), affirmed 181 F. Supp. 62 (D.N.J. 1960), 288 F.2d 608 (3d Cir. 1961), cert. denied, 372 U.S. 965 (1963) and In re L. B. Vance, d/b/a Vance Dairy, 18 A.D. 563 (1959), affirmed 319 F.2d 841 (5th Cir. (1963), 325 F.2d 663 (5th Cir. (1963), cert. denied, 377 U.S. 930 (1964). 3 In order to avoid any question as to the validity of such dismissal due to a possible lack of authority on the part of the hearing examiner to dismiss, we hereby dismiss the proceeding as to the 17 petitioners not represented at the hearing. This leaves as petitioners in this proceeding Goland & Murphy, a partnership composed of John Vincent Golan and William P. Murphy, whose address is Binghamton, New York, and Lawrence Bros., a partnership composed of Frederick and Eugene Lawrence, whose address is Binghampton, New York. |