Zuber v. Allen,
396 U.S. 168 (1969)

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U.S. Supreme Court

Zuber v. Allen, 396 U.S. 168 (1969)

Zuber v. Allen

No. 25

Argued October 16, 1969

Decided December 9, 1969*

396 U.S. 168


Respondent Vermont dairy farmers ("country" milk producers) brought this action to invalidate the so-called farm location differential provided for by order of the Secretary of Agriculture as contrary to the Agricultural Marketing Agreement Act of 1937. The effect of the order is to require milk distributors to pay milk producers situated close to milk marketing areas ("nearby" farmers) higher prices than are paid to producers located at greater distances from such areas. In the 1920's, prior to federal regulation, nearby farmers received higher prices for their milk in the Boston area than farmers at more distant points. The 1935 amendment to the Agricultural Adjustment Act, carried forward into § 8(c) of the Agricultural Marketing Agreement Act of 1937, provides, in part, for the payment to all producers

"delivering milk to all handlers of uniform prices for all milk . . . subject only to adjustments for (a) volume, market, and production differentials customarily applied by the handlers subject to such order, (b) the grade or quality of the milk delivered, (c) the locations at which delivery of such milk is made."

The Department of Agriculture regulations provide a price differential for "nearby" farmers, and a lesser differential for intermediate nearby zones. The District Court granted an injunction against further payments of the differentials, and the Court of Appeals affirmed.


1. The statutory scheme, which was to provide uniform prices to all producers in the marketing area, subject only to specifically enumerated adjustments, contemplated that "market differentials . . . customarily applied" would be based on cost adjustments. Pp. 396 U. S. 179-187.

Page 396 U. S. 169

(a) The particularity and specificity of the enumerated differentials negate the conclusion that Congress was thinking only in terms of historical considerations. P. 396 U. S. 183.

(b) The other statutory differentials, for "volume," "grade or quality," "location," and "production," all compensate the producer for providing an economic service benefiting the milk handler. Pp. 396 U. S. 183-184.

(c) In a statute whose purpose was to avoid the infirmity of the overbroad delegation of the Agricultural Adjustment Act, it would have been simple to include "nearby" payments in the list of enumerated differentials, or at least to allude to them in the draftsmen's report. P. 396 U. S. 185.

2. The "nearby" differentials do not fall into the category of the permissible adjustments, which are limited to compensation for rendering an economic service, and neither the Secretary of Agriculture nor the "nearby" farmer petitioners have advanced any economic justifications for them that have substantial record support. Pp. 396 U. S. 188-191.

3. This holding does not depart from the Court's precedents. United States v. Rock Royal Co-op., 307 U. S. 533, distinguished. To the extent that Green Valley Creamery v. United States, 108 F.2d 342, contravenes this holding, it is disapproved. Pp. 396 U. S. 191-192.

4. While according great weight to a department's contemporaneous construction of its own enabling legislation, the Court cannot abdicate its ultimate responsibility to construe the statutory language. Pp. 396 U. S. 192-194.

5. Although the Secretary's orders have been specifically approved by the farmers concerned in accordance with § 9(b)(i) of the Act, such approval does not legitimize the regulation, which is not authorized by statute. Pp. 396 U. S. 195-196.

6. A reversal for trial on the merits is not warranted, since the Department of Agriculture acted on a formal record, and a remand to the Secretary is inappropriate in the absence of a request by the Government, which has advanced no new theory for sustaining the regulation. Pp. 396 U. S. 196-197.

7. The Court of Appeals' award to "nearby" farmer petitioners of the escrowed differential payments collected before the District Court entered final judgment will not be disturbed. P. 396 U. S. 197.

131 U.S.App.D.C. 109, 402 F.2d 660, affirmed.

Page 396 U. S. 170

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