Roy L. Fowler, Dean Burroughs and Celestine Schneider, as Members of the Marketing Quota Review Committee of Douglas County, Kansas v. John B. Gage

HUXMAN, Circuit Judge.

John B. Gage, the owner of a farm, made application to the county committee ^ uouglas County, Kansas, for wheat allotment acreage of the year> 1959. No acreage wag granted by the local com. mittee and on petition for revieW; the revjew committee affirmed the decision of the county committee. This action was then instituted in the United States Distriet Court for the District of Kansas, where the decision of the review committee was reversed and the case was remanded with directions to fix an acreage allotment. The review committee has appealed.

Thg proceeding arose under the Agricultural Adjustment Act of 1938, as amended.¹ The Act requires the Secretary of Agriculture, by May 15 of each year, to establish the national acreage allotment for wheat.² It then becomes the Secretary’s duty to apportion this allotment among the states according to a formula established by the Act.³ In like manner, the state apportionment is then assigned to the various counties,⁴ who, in turn, apportion it among individual farms. Subsection (c) of Section 1334, provides that not more than three per centum of such county allotment shall be apportioned to farms on which wheat has not been planted during any of the three marketing years immediately preceding the marketing year in which the allotment is made.⁵

The Secretary adopted certain regulations to implement the provisions of the Act. Authority for them is claimed under 7 U.S.C.A. § 1375(b). Regulation 728.919 lays down the qualifications for new farm allotments as follows: (1) The application must be filed on or before the closing date. (2) The committee determines that the land for which the allotment is requested will ordinarily produce a good crop of wheat without appreciable erosion. (3) The producer establishes to the satisfaction of the county committee that:

“(i) The system of farming has changed or is changing to the extent that wheat rather than other small grains will be included in such system for 1959, the operator will not operate any other farm for which a 1959 wheat acreage allotment will be determined, and the operator expects to derive 50 percent or more of his livelihood from farming operations on the farm covered by the application; or

“(ii) The established rotation system followed on the farm will include wheat for 1959.”

Under regulation 728.919(b) (3) a new farm is eligible for an allotment only if the conditions of either subparagraphs (i) or (ii) are satisfied.

The basis of the application was that the land was best suited for wheat and that a reasonable amount of wheat fits'' in with other farming operations. Gage-admitted that he did not expect to derive fifty percent of his livelihood from: the farm. The county committee found) him ineligible for a new farm allotment for that reason. Upon appeal, the appeal committee concluded that the determination of the county committee denying Gage a new farm wheat acreage allotment was correct. Detailed findings of fact were made. The review committee found there had been no wheat seeded on Gage’s farm for the crop years 1952, to and including the years 1956 and 1957, and that no wheat allotment had been established for the farm for 1958; that the system of farming had not been changed and was not changing insofar as the main objective, livestock production, was concerned; that there was no established rotation system followed on the farm which calls for wheat in 1959, and that less than fifty percent of applicant’s income would come from the farm. Based on these findings, the committee concluded that the farm was not an old farm as defined in the regulations; that the existence of a rotation system calling for wheat in 1959 was not established ; that Gage admitted that he would not receive fifty percent of his livelihood from the farm; and that the farm could not qualify as a new farm for wheat allotment. Based on these conclusions, it affirmed the decision of the county committee. Gage then instituted this action in the District Court. The trial court found there was evidence to sustain the review committee’s findings of fact, but reversed its decision on the ground that the regulation requiring that fifty percent of the applicant’s livelihood be earned from the farm to qualify as a new farm was void for want of authority under the Act for the Secretary to make such a regulation. This appeal challenges the correctness of that conclusion.

The review by the review committee is a de novo proceeding. The trial court correctly concluded that the matters and issues presented upon the filing of an application for review are those issues raised in the application and the answer filed by the local committee. The answer by the local committee stated: “1. The County Committee denies that established rotation system followed on the farm includes wheat for 1959. 2. The County Committee has determined that this farm is ineligible because the owner and operator does not expect to derive 50% or more of his livelihood (sic) from farming operations on the farm covered by the application for new farm allotment.” The court correctly found that the issues before the review committee, as framed by the application and response, were whether applicant expected to derive more than 50% of his income from the farm and whether there was an established rotation system in effect on the farm which included wheat for the year, 1959. These were issues of fact. The review committee answered both questions in the negative and the trial court upheld its findings because both were supported by evidence.

It is not claimed that this farm can qualify under the old farm provision of the law. It must qualify, if at all, as a new farm. The sole question before both the local committee and the review committee was whether the farm was entitled to an allotment as a new farm. The local committee said “no,” and based its decision on the 50% income provision. The review committee also said “no,” but based its decision on the ground that the applicant did not earn at least 50% of his income from the farm and on the further ground that the farm rotation system did not include wheat for the year, 1958.

As pointed out, the trial court held there were two issues before the review committee: First, would Gage earn at least 50% of his income from this farm, and second, will the established rotation system followed on the farm produce wheat for 1959. The committee found under the evidence that both these questions must be answered in the negative. If these regulations are valid, Gage was not entitled to an allotment because he did not comply with either of them. It was necessary for him to bring himself within at least one of these regulations.

The court, in a well reasoned opinion, in effect held that Gage was not required to comply with the 50% income regulation because in its view that regulation was void. Assuming, without deciding, that the court was correct in its conclusion, it leaves undisposed of the second issue before the review committee, namely, did the established rotation system followed on the farm include wheat for 1959? Unless Subsection (ii) is likewise void, Gage must comply with it before he is entitled to an acreage allotment. Whatever may be said with regard to the validity of Subsection (i), in our opinion, Subsection (ii) is a valid exercise of the regulatory power possessed by the Secretary. 7 U.S.C.A. § 1334(c) establishes the standards upon which allotments to individual farms are to be made. So far as applicable, they apply alike to old farms and so-called new farms. Among these standards is “crop rotation practices.” This provision does not define itself. To make it effective, it must be implemented by a proper regulation. That was the purpose of the regulation set out in Subsection (ii). It was promulgated to implement the congressional scheme for national control of wheat production. Such a regulation will not be annulled by a court unless plainly and clearly inconsistent with the law.⁶ Furthermore, we think the regulation is well within the spirit and general purpose of the law. Neither is its validity, even if Subsection (i) should be declared void, affected thereby. The law is well settled that when a part of a statute is declared void, the entire statute falls unless the invalid portion can be separated from the remaining part of the statute. That applies with equal force to a regulation which has the force of law. There is no connection between Subsections (i) and (ii). Compliance is required only with either (i) or (ii). Subsection (ii) is valid even if Subsection (i) should be declared void. Since Gage did not comply with Subsection (ii), he was not entitled to an allotment for the year in question even if Subsection (i) is void.

We think the committee of review predicated its judgment upon both grounds, namely, that Gage did not earn at least 50% of his income from this farm and that he did not comply with regulation Subsection (ii). It made findings of fact against Gage on both grounds. But even if it should be held that it assigned as reason for its judgment only the fact that he did not comply with the 50% income provision, its judgment must nonetheless be upheld because it is a well established principle that a judgment which is right under the facts, as found, will not be reversed even if an erroneous ground be assigned therefor.

Reversed.

1 . 7 U.S.C.A. § 1281 et seq.

2 . 7 U.S.C.A. § 1332.

3 . 7 U.S.C.A. § 1334(a).

4 . 7 U.S.C.A. § 1334(c).

6 . Rigby v. Rasmussen, 10th Cir., 275 F.2d 861.