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FREEMAN v. BROWN BROS. HARRIMAN & CO.

February 3, 1966

Orville L. FREEMAN, Secretary of Agriculture of the United States, Petitioner,
v.
BROWN BROTHERS HARRIMAN AND COMPANY, Respondent



The opinion of the court was delivered by: BRYAN

FREDERICK van PELT BRYAN, District Judge:

 The Secretary of Agriculture moves to compel enforcement of a subpoena duces tecum against respondent banking corporation, Brown Brothers Harriman and Company. Respondent opposes enforcement contending that the Secretary lacks authority to subpoena persons not subject to regulation under the Agricultural Marketing Agreement Act (the Act) (7 U.S.C. § 601 et seq.). The respondent also maintains the subpoena is invalid because it was not signed personally by the Secretary. Respondent's customer Zausner, the records of whose account are the subject of the subpoena, was also heard in opposition to enforcement.

 Under the Act, the Secretary has promulgated milk marketing orders which establish minimum prices that handlers of milk must pay to milk producers. See 7 U.S.C. § 608c; 7 C.F.R. §§ 1002, 1004; see generally, Fitchett Bros., Inc. v. Freeman, 241 F. Supp. 181 (S.D.N.Y.1965). Having reason to believe that certain handlers were violating the pricing provisions of milk marketing orders, the Secretary instituted an investigation. The investigation was concerned primarily with payment of unlawful rebate charges by producers to handlers.

 In the course of the investigation it appeared likely that several handlers have been purchasing milk from producers through "brokerage" firms controlled by one Sol Zausner. Some of the producers who delivered their milk to handlers through these "brokerage" firms apparently have paid "commission" fees into "Account 104" maintained at respondent's bank by Zausner.

 Under the guise of such "brokerage commissions," the Secretary has reason to believe handlers are violating milk marketing orders by receiving unlawful rebates through the transfer of funds from this account to handlers. A subpoena duces tecum was served on respondent for records pertaining to "Account 104." Respondent's refusal to comply with the subpoena has resulted in this motion for enforcement pursuant to 7 U.S.C. § 610(h); 15 U.S.C. § 49. It is conceded by the Secretary for purposes of this motion, that neither respondent nor Zausner is subject to regulation under the Act.

 Section 8a(7) of the Act (7 U.S.C. § 608a(7), gives the Secretary the power to "institute an investigation" whenever he "has reason to believe that any handler has violated * * * the provisions of any order * * *."

 Section 10(h) (7 U.S.C. § 610(h)) confers upon the Secretary broad powers to enforce the Act by incorporating into the Act statutory provisions in Title 15 of the United States Code governing the Federal Trade Commission.

 
§ 10(h). "For the efficient administration of the provisions of this chapter, the provisions, including penalties, of sections 48, 49, and 50 of Title 15, are made applicable to the jurisdiction, powers, and duties of the Secretary in administering the provisions of this chapter, and to any person subject to the provisions of this chapter, whether or not a corporation. * * *"

 Section 49 of Title 15 confers upon the Federal Trade Commission the power to subpoena witnesses and documentary evidence relating to any matter under investigation. *fn1" This power extends to third parties who are neither under investigation nor being proceeded against. Federal Trade Commission v. Tuttle, 244 F.2d 605 (2 Cir.), cert. den., 354 U.S. 925, 77 S. Ct. 1379, 1 L. Ed. 2d 1436 (1957); Federal Trade Commission v. Bowman, 248 F.2d 456 (7 Cir. 1957); see Federal Trade Commission v. Harrell, 313 F.2d 854 (7 Cir. 1963); Local 57, International Union of Operating Engineers (AFL-CIO) v. Wirtz, 326 F.2d 467, 469-70 (1 Cir. 1964); cf. Federal Communications Commission v. Cohn, 154 F. Supp. 899, 906 (S.D.N.Y.1957). The powers conferred upon the Federal Trade Commission and carried over into the Agriculture Act, therefore, are more than sufficient to permit the Secretary to subpoena the respondent.

 Nevertheless, the respondent argues that the Secretary's powers are not as broad and inclusive as those of the Federal Trade Commission due to an alleged limitation placed upon the Secretary in Section 10(h), quoted above, incorporating § 49 of Title 15 into the Act. The clause in Section 10(h) "and to any person subject to the provisions of this chapter, whether or not a corporation," the respondent contends, is an express limitation on the Secretary's power of subpoena restricting it to persons subject to regulation under the Act. There is no merit to respondent's contention.

 In construing a statute, a particular expression should not be detached from its context so as to give it a special meaning. See Richards v. United States, 369 U.S. 1, 11, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962); Cummings v. Board of Education, 275 App.Div. 577, 90 N.Y.S.2d 564, 573 (1st Dep't) aff'd, 300 N.Y. 611, 90 N.E.2d 67 (1949). Language should be construed according to its common meaning, without resorting to a forced or artificial construction. See Bracey v. Luray, 138 F.2d 8, 10 (4 Cir. 1943); United States Lines v. Shaughnessy, 101 F. Supp. 61, 64 (S.D.N.Y.), aff'd, 195 F.2d 385 (2 Cir. 1951).

 With these elementary rules in mind, § 10(h), when read as a whole, makes it clear that the disputed clause expands the Secretary's powers rather than restricts them. Beginning the clause with the word "and," preceded by a comma, adds support to this interpretation.

 Moreover, each section of a statute is to be interpreted in conjunction with other sections and in so far as possible, each section is to be harmonized with the others. Merkling v. Ford Motor Co., 251 App.Div. 89, 296 N.Y.S. 393, 399 (4th Dep't 1937); See People v. Dethoff, 283 N.Y. 309, 315, 28 N.E.2d 850, 853 (1940).

 Section 8d(1) of the Act (7 U.S.C. § 608d(1)), requires all persons subject to regulation under the Act to furnish the Secretary with such information, books and records as the Secretary finds necessary. *fn2" Where the requested information has not been furnished, ...


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