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MOON v. FREEMAN

September 10, 1965

Shirley MOON, Plaintiff,
v.
Orville FREEMAN, as Secretary of Agriculture, and Commodity Credit Corporation, Defendants



The opinion of the court was delivered by: HAMLEY

Shirley Moon, an Eastern Washington wheat farmer, commenced this action against Orville Freeman, as Secretary of Agriculture, to recover judgment in the sum of $168.52 for funds expended by Moon on the purchase of wheat marketing export certificates. In the alternative, plaintiff asked that the Secretary of Agriculture be enjoined from further enforcement of that portion of the Agricultural Adjustment Act of 1938, as amended, 52 Stat. 31 et seq. (1938), 7 U.S.C. § 1281 et seq. (1964), relating to the requirement for purchase of wheat marketing export certificates. *fn1"

 The indicated monetary and injunctive relief was sought on the ground that the wheat marketing export certificates constitute a tax or duty on exports in contravention of Article I, Section 9, Clause 5 of the Constitution of the United States. Title 28 U.S.C., § 2282 (1964) provides that injunctive relief restraining the enforcement, operation or execution of an Act of Congress for repugnance to the Constitution of the United States shall not be granted by a district court unless the application therefor is heard and determined by a district court of three judges under 28 U.S.C. § 2284 (1964). A district court of three judges was therefore duly constituted, consisting of the judges named above.

 The Secretary of Agriculture answered the complaint raising various defenses. A stipulation of facts was thereafter entered into, followed by cross motions for summary judgment. A pretrial order restating the issues and superseding the pleadings was then entered. At the hearing on the cross motions for summary judgment the court granted the oral motion of the Secretary of Agriculture to amend the pretrial order to add certain additional jurisdictional questions. At the same time the court granted the oral motion of Moon to amend the pretrial order to permit the addition of Commodity Credit Corporation as a party defendant.

 An amended complaint was thereafter filed, naming Commodity Credit Corporation as an additional defendant, and a summons was issued to, and served upon, that corporation. Commodity Credit Corporation duly answered, invoking defenses similar to those previously advanced by the Secretary of Agriculture.

 At the outset we are confronted with defendants' contention that an injunction cannot possibly issue in this case, and that the three-judge court is therefore without jurisdiction and should be dissolved. For the reasons stated below, we are in agreement with this contention.

 It has been held that a duty on imports is a tax within the meaning of section 7421(a). Horton v. Humphrey, D.C.D.C., 146 F. Supp. 819, 821, aff'd per curiam, 352 U.S. 921, 77 S. Ct. 224, 1 L. Ed. 2d 157. Similarly, we think that a duty on exports is a tax within the meaning of that statute. Thus if Moon is correct in asserting that the wheat marketing export certificates in issue constitute a tax or duty, which contention he must sustain in order to obtain any relief, he thereby precludes himself, under section 7421(a), from obtaining injunctive relief. *fn3"

 Since the allegations of the complaint presented on their face every prerequisite to three-judge action under 28 U.S.C. § 2282, such a court was properly constituted. But where, as here, it becomes apparent upon final hearing that there was never any basis for injunctive relief, and at most the only relief which could be granted is monetary, there is no longer any occasion for proceeding under section 2282. See Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 292 U.S. 386, 391, 54 S. Ct. 732, 78 L. Ed. 1318, cited with approval in California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S. Ct. 865, 82 L. Ed. 1323.

 Accordingly, and in keeping with the procedure followed in Horton v. Humphrey, supra, the cause will be remitted to District Judge Powell, sitting as a single judge, for ...


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