Cite as 24 A.D. 817 in this proceeding as to him terminating this suspension after the 30-day period. This order shall become effective as to each respondent on the 6th day after service thereof upon him and copies hereof shall be served upon the parties. (No. 9903) In re JACK W. REEDER. P&S Docket No. 3486. Decided June 18, 1965. Registration and bonding-Failure to pay when due-Drafts--ChecksCease and desist-Consent Respondent is ordered to cease and desist from engaging in business under the act without the required registration and bond, failing to pay in full when due for livestock purchased and issuing insufficient funds drafts and checks in payment of purchased livestock. Mr. Samuel J. Harris for complainant. Hindman & Krysl, Stockton, Kansas, for respondent. Decision by Thomas J. Flavin, Judicial Officer PRELIMINARY STATEMENT This is a disciplinary proceeding under the Packers and Stockyards Act, 1921, as amended and supplemented (7 U.S.C. 181 et seq.), hereinafter referred to as the Act, instituted by a complaint filed March 19, 1965, by the Director, Packers and Stockyards Division, United States Department of Agriculture, charging that respondent violated certain provisions of the Act and the regulations thereunder (9 CFR 201.1 et seq.). On May 20, 1965, respondent filed an amended answer in which he admits the jurisdictional allegations of the complaint, neither admits nor denies the remaining allegations, waives oral hearing and the report of the Hearing Examiner, and consents to the issuance of a specified order with findings of fact and conclusions based on the allegations of the complaint. Complainant has recommended that the order consented to by respondent be issued. FINDINGS OF FACT 1. Hays Livestock Commission Company stockyard, Hays, Kansas, Colby Livestock Auction, Inc. stockyard, Colby, Kansas, Cite as 24 A.D. 817 McKinley-Winter Livestock Commission Company, Inc. stockyard, Dodge City, Kansas, Union Stockyards, Omaha, Nebraska, Sidney Livestock Sales Pavilion stockyard, Sidney, Nebraska, Farmers Marketing Sales Corporation, Inc. stockyard (Hill City Sales Co.), Hill City, Kansas, and Woodward Livestock Commission Company stockyard, Woodward, Oklahoma, hereinafter referred to as the stockyards, are now, and were at all times material herein, posted stockyards subject to the provisions of the Act. 2. Respondent is an individual whose mailing address is Stockton, Kansas. 3. Respondent, on or about the dates and in the transactions set forth below, engaged in the business of a livestock dealer in commerce, within the meaning of the Act, without being registered with the Secretary of Agriculture and without filing and maintaining a reasonable bond or its equivalent, as required by the Act and the regulations issued thereunder. Date 1964 Purchases and sales of livestock by respondent, Jack W. Reeder Posted Stockyard No. of head No. of Purchased head Sold September 25 Woodward Livestock Commission Co. 235 4. Respondent, on or about the dates and in the transactions set forth below, purchased livestock in commerce and issued checks and bank drafts in purported payment of the purchase thereof which checks and drafts were returned by the bank upon which they were drawn because of insufficient funds in respondent's account. 5. Respondent failed to pay when due the purchase price of the livestock referred to in paragraph 4 above. Cite as 24 A.D. 819 CONCLUSIONS By reason of the facts set forth in Findings of Fact 3, 4, and 5, it is concluded that respondent has wilfully violated sections 303 and 312(a) of the Act (7 U.S.C. 203 and 213 (a)) and sections 201.10, 201.29, 201.30 and 201.43 (b) of the regulations (9 CFR 201.10, 201.29, 201.30 and 201.43 (b)). Complainant has recommended that the order consented to by respondent be issued. The order will be issued. ORDER Respondent shall cease and desist from: 1. Engaging in business in any capacity for which registration and bonding are required under the Act and the regulations without registering, and without filing and maintaining a reasonable bond or its equivalent, as required by the Act and the regulations. 2. Failing to pay when due the full purchase price of livestock purchased in commerce. 3. Issuing bank drafts or checks in payment for livestock purchased in commerce without maintaining sufficient funds on deposit in the bank on which they are drawn to pay such drafts or checks. This order shall become effective on the sixth day after service thereof upon the respondent and copies shall be served upon the parties. (No. 9904) STAFFORD BROS. v. BILL CENTER et al., PRODUCERS LIVESTOCK Certification to Judicial Officer-State court proceedings— Where State court proceedings involve same parties, transactions and causes of action as in the proceedings herein, the presiding officer's ruling to stay the proceedings pending outcome of actions in State court not in error. However, the presiding officer's ruling and also certifying the question not proper under the rules of practice. Decision by Thomas J. Flavin, Judicial Officer Cite as 24 A.D. 819 RULING ON CERTIFICATION In each of these reparation proceedings under the Packers and Stockyards Act, 1921, as amended (7 U.S.C. 181 et seq.), 7 of the respondents therein moved that the proceeding be dismissed or stayed on the basis of the fact that each complainant had filed a suit in a State court in California involving the same parties and subject matter. Each complainant filed an opposition thereto and the presiding officer ruled that each proceeding be stayed pending the outcome of the pertinent State court proceeding and that these proceedings not be dismissed. Thereafter, each complainant requested that the presiding officer certify to the Secretary for consideration respondents' requests to stay or dismiss the proceedings, complainants' answers in opposition thereto and the presiding officer's ruling thereon. On May 25, 1965, the presiding officer filed such a certification in each proceeding. Section 202.46 of the rules of practice provides, in part, as follows: 66 ".. Submission or certification of any question to the Secretary prior to the close of the hearing shall be in the discretion of the examiner." Sections 202.44 (c) and 202.46 of the rules of practice (9 CFR 202.44 (c) and 202.46) authorize the examiner, i.e., the presiding officer, to rule upon motions and requests prior to the submission of the record to the Secretary. Section 202.54 of the rules of practice. (9 CFR 202.54) provides for the transmittal of the record to the Secretary and prescribed that such record shall include ..."... motions and requests filed, and rulings thereon ." The intent of the rules of practice seems to be to authorize the presiding officer to rule upon motions of the kind involved or in the discretion of the presiding officer to certify such motions to the Secretary for decision without a ruling by the presiding officer. Knapp-Sherriff-Koelle v. Mendelson-Zeller Co., 18 A.D. 508 (1959); Katz & Co. v. Giannini Fruit Sales, Inc., 18 A.D. 65 (1959); Stott & Reid v. Community Produce Company, 15 A.D. 403 (1956); In re Cargill, Inc., and Erwin E. Kelm, 12 A.D. 1109, 1111 (1953). There are no provisions for interlocutory appeals from rulings of the presiding officer. All appeals from rulings by the presiding officer upon motions, etc., as illustrated by section 202.54 of the rules of practice, are intended to be taken up in connection with review of the entire proceeding by the Secretary after the presiding officer has filed his report. Cite as 24 A.D. 821 Since the appeal is before us, however, we shall decide it now. The complainant in each proceeding under the act alleges a violation thereof by respondents by reason of respondents' false and fraudulent representations with respect to respondents' credit or financial standing made to each complainant pursuant to a plan or conspiracy to induce each complainant to sell livestock to respondents or some of them, that livestock was so sold by each complainant with drafts given in payment therefor and that such drafts were not honored. Complaints were filed by two of the complainants herein in the Superior Court of the State of California for the County of Kern on the same day that they filed written complaints with the Department and, with respect to the third complainant, 21 days before its written complaint was filed with the Department. The complaints in the State court involve the same transactions, that is, the same purchases of livestock, involved in the proceedings herein and set forth identical causes of action. Such complaints also name a bank as a party defendant in addition to the respondents herein and allege an additional cause of action of conversion in connection with the transactions involved herein. Under these circumstances, we cannot conclude that the presiding officer was in error in staying these proceedings pending the outcome of the actions in the State court. Cf., e.g., Brillhart v. Excess Insurance Company of America, 316 U.S. 491 (1942); Edmonston v. Sisk, 156 F2d 300, 303 (10th Cir. 1946); Utilities Insurance Company v Ledford, 255 F2d 123 (6th Cir. 1958). Cf. also, Lear Siegler, Inc. v. Adkins, 330 F2d 595 (9th Cir. 1964). Copies hereof shall be served upon the parties. (No. 9905) In re OTTO C. BRAUER, JR., d/b/a OTTO C. BRAUER'S SON. P&S Docket No. 3532. Decided June 22, 1965. Packer-Failure to pay when due-Cease and desist-Consent Respondent is ordered to cease and desist from failing to pay when due the purchase price of livestock purchased in commerce. Mr. Donald E. Graham for complainant. Respondent pro se. Decision by Thomas J. Flavin, Judicial Officer |