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May 14, 1963

Leo B. LANDSBERGER et al., Plaintiffs,
Orville F. FREEMAN, Defendant

The opinion of the court was delivered by: SIRICA

In this case the plaintiffs filed a complaint in which they allege, in substance, that 7 U.S.C.A. § 1334(a)(b) and (c)(1), and 7 U.S.C.A. § 1336, as amended by Act of September 27, 1962, 76 Stat. 621, are unconstitutional in that they contravene Article 5 of the Amendments to the Constitution of the United States.

At the same time, the plaintiffs filed a motion requesting the convening of a three-judge court. The defendant filed an opposition to this motion, supported by points and authorities attached thereto; and also made a motion to dismiss or in the alternative for summary judgment.

 Before proceeding any further the Court will direct counsel's attention to some of the cases concerning the duty of a single-judge court in connection with this kind of application.

 Some of these decisions read as follows: A single judge may dismiss a complaint without convening a three-judge court if the complaint fails to raise a substantial constitutional question. White v. Gates, 102 U.S.A.pp.D.C. 346, 253 F.2d 868 (1958), cert. denied, 356 U.S. 973, 78 S. Ct. 1136, 2 L. Ed. 2d 1147 (1958).

 The provision of 28 U.S.C.A. § 2284 precluding a single judge dismissal, along with other procedural requirements of that section, becomes operative only after a three-judge court is convened. Eastern States Petroleum Corp. v. Rogers, 108 U.S.App.D.C. 63, 280 F.2d 611 (1960).

 It is well settled that in order to justify the convening of a three-judge court, the constitutional question raised must be substantial and a mere assertion of unconstitutionality is insufficient. It must appear that the question is a reasonably debatable one, and if the point raised in support of the allegation of repugnance to the Constitution is one that has been determined by binding decisions of the Supreme Court, this circumstance precludes the question from being regarded as substantial. Jasper v. Sawyer, 100 F.Supp. 421 (D.C.D.C.1951), citing California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S. Ct. 865, 82 L. Ed. 1323 (1938).

 As has been stated by the Supreme Court, 'the three judge procedure is an extraordinary one, imposing a heavy burden on federal courts, with attendant expense and delay. That procedure, designed for a specific class of cases, sharply defined, should not be lightly extended.' Oklahoma Gas & Elec. Co. v. Oklahoma Packing Co., 292 U.S. 386, 391, 54 S. Ct. 732, 734, 78 L. Ed. 1318 (1934).

 Therefore it is well settled from a consideration of these cases that a single-judge court has the duty initially of determining whether the complaint raises a substantial constitutional question. If no substantial constitutional question is presented, then there is no basis for convening a three-judge court pursuant to 28 U.S.C.A. §§ 2282 and 2284, and the single judge court may then properly go on to dispose of the litigation in the normal fashion.

 In this connection, the Court will allude to the case that has been discussed here of Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942). The Court has briefed that case and will quote from it because the Court feels that there is some very pertinent language that is applicable to the situation at hand. This opinion was written by Mr. Justice Jackson.

 The plaintiff in that case operated a small farm in Ohio, and he filed a complaint against the Secretary of Agriculture and others to enjoin the enforcement of a marketing penalty levied against him under the Agricultural Adjustment Act.

 Under the Act the plaintiff had been designated as having a wheat acreage allotment of 11.1 acres but instead of abiding by the allotment the plaintiff sowed 23 acres and harvested an excess of 239 bushels. This marketing excess was subjected to a penalty of $ .49 a bushel or a total of $ 117.11. The plaintiff refused to pay the penalty and did not seek to avoid it by storing the excess or delivering the excess to the Department of Agriculture. It is to be noted that this latter procedure by which a farmer can avoid a penalty is in effect today also.

 The District Court enjoined the enforcement of the penalty based on its opinion that the referendum held among the wheat producing farmers was invalidated by a speech which the Secretary of Agriculture had made to the farmers of the country urging approval of a marketing quota. The Court held that the District Court had committed manifest error.

 After disposing of the latter ground the Court considered the allegations of the plaintiff that the Agricultural Act's provisions for marketing quotas were unconstitutional because they were not sustainable under the Commerce Clause or consistent with the due process clause under the Fifth Amendment. In connection with the objection raised under the Commerce Clause, the Court reviewed in detail its prior decisions in this area and the powers of Congress to control those items which affect interstate commerce. The Court also reviewed the economics of the farm program and the effect on prices of an abundance of wheat. The plaintiff had argued that his activity was local in character and was but a ...

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