The opinion of the court was delivered by: BYERS
This is a plaintiffs' motion for a temporary injunction in an action in which the complaint was filed May 8, 1957 for a permanent injunction against the spraying of trees on plaintiffs' lands. The object of the spraying is to eradicate gypsy moths.
The motion is based upon the affidavits of the plaintiffs Murphy, Richards, and Spock; also those of Dr. W. C. Martin, a practicing physician in New York and Dr. Morton S. Biskind, a practicing pharmacologist of Westport, Connecticut. These gentlemen have made special studies in the field of insecticides and their effects upon human beings, and animal and vegetable life. There is also an affidavit of one Darbee, Chairman of the Conservation Committee of a Rod and Gun Club of Roscoe, Sullivan County, New York.
The foregoing present the reasons why a temporary injunction is sought.
The affidavits in opposition are those of
Emory D. Burgess, Director Plant Pest Control Division, Agricultural Research Service, Department of Agriculture;
Dr. M. R. Clarkson, Deputy Administrator for Regulatory Programs, Agricultural Research Service, Department of Agriculture;
W. L. Popham, Assistant Administrator, same;
Thomas F. McGinty, Head of Reporting Activities Section, Information Division, same;
Clarence H. Hoffmann, Assistant Director Entomology, Research Division, same;
Herbert L. Haller, Assistant to the Administrator, Production Research Service, same;
Miles Horst, Staff Assistant Program Appraisal, Office of the Secretary, same;
E. J. Dyce, Professor of Apiculture, New York State College of Agriculture;
Harry L. Smith, Regional Supervisor of Plant Pest Control Division, U.S. Department of Agriculture (Moorestown, N.J.);
James G. Lyons, Assistant Commissioner of Agriculture and Markets of the State of New York.
Also, an affidavit was filed by an Assistant United States Attorney for this District opposing the application for the convening of a three-judge court, later to be referred to; and that the failure to serve the defendant Benson, Secretary of Agriculture, personally, deprives the court of jurisdiction of the case as to him; also that he could not be served in the District of Columbia in this cause. Further that he is an indispensable party and that a decree herein would not be effective by reason of service upon the defendant Lloyd Butler, for reasons said to be pointed out in the above affidavit of Dr. Clarkson. Further that there is no substantial constitutional question involved since the only issue that is important has to do with administrative action, namely, the method by which the statutory power has been carried into effect.
The motion was heard on May 15th, and briefs and all affidavits were submitted on the 21st.
No answer has as yet been filed, and so the case is not at issue.
The allegations of the complaint may be summarized as follows:
The action is said to arise under the Fifth and Fourteenth Amendments of the Constitution, and under Title 7 U.S.C.A. entitled Agriculture. Sections 141 to 149 deal with Insect Pests.
Section 145 refers to the menace to cotton culture in the United States of the pink bollworm, and the Secretary of Agriculture is authorized to take ...