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82 63 SUPREME^ COURT^ REPORTER
. 317 v.s.
31'7' v.s. 1:1.
WICKARD, Secretary of Agriculture, et al.
v. FILBURN.
No. 59.
Reargued Oct. 13, 1942.
Decided Nov. 9, 1942,
f. Agriculture €= I njunctlon €= Where Secretary of Agriculture by radio address urged wheat farmers to vote affirmatively in referendum on approval of quota allotment under pending Agricultural Adjustment Act amendment which in- creased penalty for farm marketing ex- cess, but secretary did not indicate that in accepting benefits of increased parity loan farmers were subjecting themselves to increased penalties, the speech did not invalidate the referendum and did not fur- nish basis for injunction against collec- tion of marketing penalty imposed under the amendment. Agricultural Adjustment
Act of 1938, § 1 et seq., as amended and
Amendment of May 26, 1941, 7 U.S.C.A.
§ 1281 et seq. and § 1340.
- Commerce e::::- The commerce power is not confined in its exercise to the regulation of com- merce among the states, but it extends to those activities intrastate which so af- fect interstate commerce or the exertion of the power of Congress over it as to make regulation of them appropriate means to the effective execution of the granted power to regulate "interstate commerce."
U.S.C.A.Const. art. 1, § 8, cl. 3.
See \Vords and Ph~ases, Permanent Edition, for all other definitions of - "Interstate Commerce".
- Agriculture e::::- Where wheat grower forestalls resort to the market by producing wheat to meet his own needs, that his own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where his contribution taken together with that of many others similarly situated is far from trivial. Agricultural Adjustment Act of
1938, § 1 et seq., as amended and Amend-
ment of May 26, 1941, 7 U.S.C.A. § 1281 et seq. and § 1340; U.S.C.A.Const. art. 1,
§ 8, cl. 3.
- Commerce ~0(1) The power of Congress to regulate "interstate commerce" includes the power to regulate the price at which commodities in that commerce are dealt in and prac- tices affecting such prices. U.S.C.A.Const. art. 1, § 8, cl. 3.
- Agriculture e::::- One of the primary purposes of the Agricultural Adjustment Act as amended in May, 1941, was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. Agricultural Adjustment Act of 1938, § 1 et seq., as amended and Amend- ment of May 26, 1941, 7 U.S.C.A. § 1281 et
seq. and § 1340; U.S.C.A.Const. art. 1,
§ 8, cl. 3.
- Commerce €=60(1) Where the effect of the Agricultural Adjustment Act as amended is to restrict the amount which may be produced for market and the extent as well to which wheat grower may forestall resort to the market by producing to meet his own needs, the act constitutes a valid exercise of the power of Congress to regulate "interstate commerce", since Congress could properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating its purpose to stimulate trade therein at increased prices. Agricultural Adjustment Act of 1938, § 1 et seq., as amended and Amend-
ment of May 26, 1941, 7 U.S.C.A. § 1281
et seq. and § 1340; U.S.C.A.Const. art. 1,
§ 8, cl. 3.
- Agriculture e=1· Where the effect of the Agricultural Adjustment Act as amended is to restrict amount which may be produced for market and the extent as well to which a farmer may forestall resort to market by producing to meet his own needs, the act is not in- valid as an unfair promotion of the mar- kets and prices of specializing wheat grow- ers. Agricultural Adjustment Act of 1938,
§ 1 et seq., as amended and Amendment
of May 26, 1941, 7 U.S.C.A. § 1281 et seq. and § 1340.
- Constitutional law e=70(3) The Supreme Court is not concerned with the wisdom, workability, or fairness of plan of regulation provided by the Agri- cultural Adjustment Act as amended.
63 S.Ct. WICKARD v. FILBURN 3U ti.S. 83
Agricultural Adjustment Act of 1938, §
1 et seq., as amended and Amendment of
May 26, 1941, 7 U.S.C.A. § 1281 et seq.,
and§ 1340.
- Constitutional law ¢:::> An act of Congress is not to be re- fused application by court as arbitrary and capricious and forbidden by the "due proc- ess of law" merely because the act is deemed in a particular case to work an inequitable result. U.S.C.A.Const. Amend.
See Words and Phrases, Permanent Edition, for all other definitions of "Due Proeess of Law",
- Agriculture ¢:::> Constltu.t{onal law ¢:::> Where, as a result of the wheat pro- grams under the Agricultural Adjustment Act as amended, a wheat grower is able to market his wheat at a price far above any world price based on natural reaction . of supply and demand, the act is not in- valid as a deprivation of property without "due process of law" on theory that the Fifth Amendment requires that gr~wer be free from penalty for threshing wheat and disposing of his crop as he sees fit.
Agricultural Adjustment Act of 1938, §
1 et seq., as amended and Amendment of May 26,-1941, ,7 U.S.C.A. § 1281 et seq.
and § 1340; U.S.C.A.Const. Amend. 5.
II. Agriculture ¢:::> Constitutional law ¢:::>190, 303 Where, between .seed time and harvest, the Agricultural Adjustment Act was amended so as to change the quota and penalty provisions, but the penalty pro- vided by the amendment for farm market- ing excess is incurred and becomes due only on threshing, and it did not appear that wheat grower was worse off for the aggregate of the legislation, but only that if he could get all that the government gives and do nothing that the government asks he would be better off than the act allowed, such facts did not establish that the amendment was invalidly "retroactive" or that it denied "due process of law".
Agricultural Adjustment Act of 1938, §
1 et seq., as amended and Amendment of
1 55 Stat. 20~, 7 U.S.C. (Supp. No. I) § 1340, 7 U.S.C.A. § 1340.
May 26, 1941, 7 U.S.C.A. § 1281 et seq.
and § 1340; U.S.C.A.Const. Amend. 5.
See Words and Phrases, Pumanent Edition, for all other definitioDB of .. Retroactive".
On Appeal from the District Court of the United States for the Southern District of Ohio.
Action for injunction and for declaratory judgment by Roscoe C. Filburn against Claude R. Wickard, Secretary of Agri- culture of the United States and others. From a judgment, 43 F.Supp. 1017, grant- ing an injunction, the defendants appeal.
Reversed.
113 Messrs. Francis Biddle, Atty. Gen., and Charles Fahy, Sol. Gen., for appellants.
Mr. Webb R. Clark, of Dayton, Ohio, for appellee.
Mr. Justice JACKSON delivered the opinion of the Court.
The appellee filed his complaint against the Secretary of Agriculture of the United States, three members of the County Agri- cultural Conservation Committee for Mont- gomery County, Ohio, and a member of the State Agricultural Conservation Com- mittee for Ohio. He sought to enjoin en- forcement against himself of the market- ing penalty imposed by the amendment of May 26,. 1941,1 to the Agricultural Ad- justment Act of 1938,2 upon that part of his 1941 wheat crop which was available for marketing in excess of the marketing quota established for his farm. He also sought a declaratory judgment that the wheat marketing quota provisions of the Act as amended and applicable to him were unconstitutional because not sustainable 114 un- der the Commerce Clause or consistent with the Due Process Clause of the Fifth Amendment.
The Secretary moved to dismiss the ac- tion against him for improper venue but
2 52 Stat. 31, as amended, 7 U.S.C. § 1281 et seq., 7 U.S.C.A. § 1281. et seq.
63 S.Ct. WICKARD v. FILBURN 317 u.s. 85 On May 19, 1941 the Secretary of Agri- culture made a radio address to the wheat farmers of the United States in which he advocated approval of the quotas and called attention to the pendency of the amend- ment of May 26, 1941, which had at the time been sent by Congress to the White House, and pointed out its provision for vn increase in the loans on wheat to 85 per cent of parity. He made no mention of the fact that it also increased the penalty from 15 cents a bushel to one-half of the parity loan rate of about 98 cents, but stated that "Because of the uncertain world situation, we deliberately planted several milli"On ex- tra acres of wheat. * * * Farmers should not be penalized because they have provided insurance against shortages of food."
Pursuant to the Act, the referendum of wheat growers was held on May 31, 1941. According to the required published state- ment of the Secretary of Agriculture, 81 per cent of those .voting favored the mark- eting qu"Dta, with-1'9 per cent opposed.
The court below held, with one judge dissenting, that the speech of the Secretary invalidated the referendum; and that the amendment of May 26, 1941, "in so far as it increased the penalty for the farm mar- keting excess over the fifteen cents per bushel prevailing at the time of planting and subjected the entire crop to a lien for the payment. thereof," should not be ap- plied to the appellee because 11' as so applied it was retroactive and in violation of the Fifth Amendment; and, alternatively, be- cause the equities of the case so required Filburn v. Helke, D.C., 43 F.Supp. 1017. Its judgment permanently enjoined appel- lants from collecting a marketing penalty of more than 15 cents a bushel on the farm marketing excess of appellee's 1941 wheat crop, from subjecting appellee's entire 1941 crop to a lien for the payment of the pen- alty, and from collecting a 15-cent penalty except in acrordance with the provisions of § 339 of the Act as that section stood prior to the amendment of May 26, 1941,1°
1o 7 U.S.C. I 1339, 7 U.S.C.A. § 1339.
This imposed a penalty of 15¢ per bushel upon wheat marketed in excess of the farm marketing quota while such quota was in effect. See also, amend- ments of July 26, 1939, 53 Stat. 1126, 7
The Secretary and his co-defendants have appealed.ll
I.
[1] The holding of the court below that the Secretary's speech invalidated the ref- erendum is manifest error. Read as a whole and in the context of world events that constituted his principal theme, the penalties of which he Sp"Oke were more likely those in the form of ruinously low prices resulting from the excess supply rather than the penalties prescribed in the Act. But under any interpretation the speech cannot be given the effect of in- validating the referendum. There is no evidence that any voter put upon the Sec- retary's words the interpretation that im- pressed the court below or was in any way misled. There is no showing that the speech influenced the "Outcome of the ref- erendum. The record in fact does not show that any, and does not suggest a basis for even a guess as to how many, of the vot- ing farmers dropped work to listen to "Wheat Farmers and the Battle for 118 De- mocracy" at 11 :30 in· the morning of May 19th, which was a busy hour in "One of the busiest of seasons. If this discourse in- tended reference to this legislation at all, it wati of course a public Act, whose terms were readily available, and the speech did not purport to be an exposition of its pro- visions.
To hold that a speech by a Cabinet offi- cer, which failed t'O meet judicial ideals of clarity, precision, and exhaustiveness, may defeat a policy embodied in an Act of Con- gress, would invest communication between administrators and the people with perils heretofore unsuspected. Moreover, we should have to conclude that such an officer is able to do by accident what he has no power to do by design. Appellee's com- plaint, in so far as it is based on this speech, is frivolous, and the injunction, in so far as it rests on this ground, is unwar· ranted. United States v. Rock Royal Co- operative, 307 U.S. 533, 59 S.Ct. 993, 83 L. Ed. 1446.
U.S.C. § 1335(c), 7 U.S.C.A. § 1335(c) and of July 2, 19'40, 54 Stat. 727, 7 U. S.C. § 1301(b) (6) (A), (B), 7 U.S.C.A. § 1301(b) (6) (A, B).
1150 Stat. 752-753, § 3, 28 U.S.C. I
380a, 28 U.S.C.A. I 380a.
86 63 SUPREME^317 COURT u.s.^ REPORTER
II.
It is urged that under the Commerce Clause of the Constitution, Article I, § 8, clause 3, Congress does not possess the power it has in this instance sought to ex- ercise. The question would merit little con- sideration since our decision in United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430, 12 sustaining the federal power to regulate production of goods for commerce except for the fact that this Act extends federal regulation to production not intended in any part for commerce but wholly for consumption on the farm. The Act includes a definition of "market" and its derivatives so that as re- lated to wheat in addition to its conven- tional meaning it also means to dispose of "by feeding (in any 119 form) to poultry or livestock which, or the products of which, are sold, bartered, or exchanged, or to be so disposed of."13 Hence, marketing quotas not only embrace all that may be sold with- out penalty but also what may be consumed on the premises. Wheat produced on ex- cess acreage is designated as "available for marketing" as so defined and the penalty is imposed thereon. 14 Penalties do not de- pend upon whether any part of the wheat either within or without the quota is sold or intended to be sold. The sum of this is that the Federal Government fixes a quota including all that the farmer may harvest for sale or for his own farm needs, and declares that wheat produced on excess acreage may neither be disposed
IZ Sre. also, Gray v. Powell. 314 U.S. 402, 02 S.Ct. 326, 86 L.Ed. 301 ; United States v. W1·ightwood Dniry Co., 3t U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726; Cloverleaf Co. v. Patterson, 315' U.S. 148, 62 S.Ct. 401, 86 L.Ed. 754; Kirsch· bnnm v. Walling, 3t6 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1038; Overnight Trans- portation, Inc., v. l\lissel, 316 U.S. 572, 62 S.Ct. 1216, 86 I... Ed. 1682. 13 54 Stat. 727, 7 U.S.C. § 1301{b) {6) (A), {B), 7 U.S.C.A. § 1301(b) (6) {A, B). 14 §§ 1, 2, of the amendment of May 26, 1941, 7 U.S.C.A. § 1340{1, 2); Wheat -507, § 728.251, 6 Federal Register 2605, 2701. u Constitution, Article I, § 8, cl. 18. 18 After discussing and affirming the cases stating that ~uch activities were
of nor used except upon payment of the penalty or except it is stored as required by the Act or delivered to the Secretary of Agriculture.
Appellee says that this is a regulation of production and consumption of wheat. Such activities are, he urges, beyond the reach of Congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are· at most "indirect." In an- swer the Government argues that the stat- ute regulates neither production nor con- sumption, but only marketing; and, in the alternative, that if the Act does go beyond the regulation of marketing it is sustaina- ble as a "necessary and proper"11J imple- mentation of the power of Congress over interstate commerce.
The Government's concern lest the Act be held to be a regulation of production or consumption rather than of marketing is attributable to a few dicta and decisions of this Court which might be understood to lay it down that activities such as "pro- duction," "manufacturing," and 120 "mining" are strictly "local" and, except in special circumstances which are not present here, cannot be regulated under the commerce power because their effects upon interstate commerce are, as matter of law, only "in- direct."16 Even today, when this power has been held to have great latitude, there is no decision of this Court that such activi- ties may be regulated where no part of the
"local," and could be regulated under the Commerce Clause only if by virtue of special circumstances their effects upon interstate commerce were "direct," the opinion of the Court in Carter v. Carter Coal Co., 208 U.S. 238, 308, 56 S.Ct. 855, 871, 80 L.Ed. 1100, stated thnt: "The distinction between a direct and an in· direct effect turns, not upon the mag- nitude of either the cause or the effect, but entirely upon the manner in which the effect has been bi-ought about.
- The matter of degree has no bearing upon the question here, since that question is not-What is the e111tent of the local activity or condition, or the e111tent of the effect producl'd upon in- terstate commerce? but-What is the relation between the activity or condi- tion and the effect?" See also, cases cited infra, notes 17 and 21.
88 63 SUPREME^ COURT^ REPORTER 317 u.s. written, however, other cases called forth U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341, the broader interpretations of the Commerce Court held that railroad rates of an admit- Clause destined to supersede the earlier tedly intrastate character and fixed by au- ones, and to bring about a return to the thority of the state might, nevertheless, be principles first enunciated by Chief Justice revised by the Federal Government because Marshall in Gibbons v. Ogden, supra. of the economic effects which they had up- Not long after the decision of United on interstate commerce. The opinion of
St ates v. E . C . K mg·^ h t c^ o., supra, M^ r. J^ us- Mr. Justice^ Hughes^ found federal interven-
tice Holmes, in sustaining the exercise of tion constitutionally authorized because of national power over intrastate activity, "matters having such a close and substantial stated for the Court that "commerce among relation to interstate traffic that the control the states is not a technical legal concep- ·is essential or appropriate to the security tion, but a practical one, drawn from the of that traffic, to the efficiency of the in- course of business." Swift & Co. v. Unit- terstate service, and to the maintenance of the conditions under which interstate ed States, 196 U.S. 375, 398, 25 S.Ct. 276, b d d f · commerce may e con ucte upon a1r 280, 49 L.Ed. 518. It was soon demon- terms and without molestation or hin- stratcd that the effects of many kinds of drance." 234 U.S. at page 351, 34 S.Ct. intrastate activity upon interstate com- at page 836, 58 L.Ed. 1341. merce were such as to make them a prop- er subject of federal regulation.u In some cases sustaining the exercise of federal power over intrastate matters the term "di- rect'' 123 was used for the purpose of stating, rather than of reaching, a result; 23 in oth- ers it was treated as synonymous with "substantial" or "material ;" :e.& and in oth- ers it was not used at all.^26 Of late its use has been abandoned in cases dealing with questions of federal power· under the Com· merce Clause. In the Shreveport Rate Cases (Houston,
E. & W. T. R. Co. v. United States), 234
[2] The Court's recognition of the rele- vance of the economic effects in the appli- cation of the Commerce Clause exempli- fied 124 by this statement has made the me- chanical application of legal formulas no longer feasible. Once an economic meas- ure of the reach of the power granted to Congress in the Commerce Clause is ac- cepted, questions of federal power cannot be decided simply by finding the activity in question to be "production" nor can consideration of its economic effects be foreclosed by calling them "indirect." The
22 Northern Securities Co. v. United States, 103 U.S. 197, 24 S.Ct. 436, 48 L.Ed. 079; Swift & Co. v. United States, supra: Loewe v. LAwlor, 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488, 13 Ann.Cas. 815; Baltimore & 0. R. Co. v. Inter- state Commerce Commission, 221 U.S. 612, 31 S.Ct. 621, 55 L.Ed. 878; South· ern Ry. Co. v. United States, 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.), 223 U. S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L. R.A.,N.S., 44; United States v. Patten, 220 U.S. 525, 33 S.Ct. 141, 57 L.Ed. 338, 44 L.H.A.,N.S., 325. ll3 United Leather Workers v. Herkert & :Meisel Trunk Co., 265 U.S. 457, 471, 44 S.Ct. 623, 627, 68 L.Ed. 1104, 33 A.L. R. 506; cf. Apex Hosiery Co. v. Leader, 310 U.S. 469, 511, 60 S.Ct. 982, 1001, 84 L.Ed. 1311, 128 A.L.R. 1044; Di Santo v. Pennsylvania, 273 U.S. 34, 44, 47 S.Ct. 267, 271, 71 L.Ed. 524 (dissent); Northern. Securities Co. v.
United States, 193 U.S. 197, 39o, 24 S. Ct. 436, 484, 48 L.Ed. 670; Standard Oil Co. v. United States, 221 U.S. 1. 66- 60, 31 S.Ct. 502, 518, 510, 55 L.Ed. 619, 34 L.R.A.,N.S., 834, Ann.Cas.1912D,
24 In Santa Cruz Co. v. Labor Boord, 803 U.S. 453, 400, 467, 58 S.Ct. 656, 660, 82 L.Ed. 954, Chief Justice Hughes said: "'direct' has been contrasted with 'indirect,' and what is 'remote' or 'dis- tant' with what is 'close and substan- tial'. Whatever terminology is used, the criterion is necessarily one of degree and must be so defined. This does not satisfy those who seek for mathematical or rigid formulas. But such formulas are not provided by the great concepts of the Constitution such as 'interstate commerce,' 'due process,' 'equal protec- tion.'" 26 Baltimore & 0. R. Co. v. Interstate Commerce Commission, 221 U.S. 612, 31 S.Ct. 621, 55 L.l<Jd. 878; Second Em- ployers' Liability C.n.seB .(Mondou v.
ft3 S.Ct. WICKARD v. FILBURN (^89) 317 lJ.S. present Chief Justice has said in summary The parties have stipulated a summary of the present state of the law: "The com- of the economics of the wheat industry. merce power is not confined in its exer- Commerce among the states in wheat is cise to the regulation of commerce among large and important. Although wheat is the states. It extends to those activities raised in every state but one, production intrastate which so affect interstate com- in most states is not equal to consumption. merce, or the exertion of the power of Sixteen states on average have had a sur- Congress over it, as to make regulation plus of wheat above their own require- of them appropriate means to the attain- ments for feed, seed, and food. Thirty- ment of a legitimate end, the effective exe- two states and the District of Columbia, cution of the granted power to regulate where production has been below consump- interstate commerce. * * * The power tion, have looked to these surplus-produc- of Congress over interstate commerce is ing states for their supply as well as for plenary and complete in itself, may be ex- wheat for export and carryover. ercised to its utmost extent, and acknowl- edges no limitations other than are pre- scribed in the Constitution. * * * It follows that no form of state activity can constitutionally thwart the regulatory pow- er granted by the commerce clause to Con- gress. Hence the reach of that power ex- tends to those intrastate activities which in a substantial way interfere with or ob- struct the exercise of the granted power." United States v. Wrightwood Dairy Co., 315 U.S. 110, 119, 62 S.Ct. 523, 526, 86 L. Ed. 726.
The wheat industry has been a problem industry for some years. Largely as a re- sult of increased foreign production and import restrictions, annual exports of wheat and flour from the United States during the ten-year period ending in 1940 averaged less than 10 per cent of total production, while during the 1920's they averaged more than 25 per cent. The de- cline in the export trade has left a large surplus in production which in connection with an abnormally large supply of wheat and other grains in recent years caused congestion in a number of markets; tied up railroad cars; and caused elevators in some instances to turn away grains, and railroads to institute embargoes to pre- vent further congestion.
Many countries, both importing and ex- porting, have sought to modify the impact of the world market conditions on their own economy. Importing countries have taken measures to stimulate production and
Whether the subject of the regulati•m in question was "production," "consumption," or "marketing" is, therefore, not material for purposes of deciding the question of federal power before us. That an activi- ty is of local character may help in a doubt- ful case to determine whether Congress intended to reach it.ll& The same consid- eration might help in determining wheth- er in the absence of Congressional action it would be permissible for the state self-sufficiency. The four large exporting to countries of Argentina,
125 0 126 exert 1ts power on the subject matter, even Australia, Canada, tho~gh in so doing it to some degree ~ffect- and the United States have all undertaken ed mterstate commerce. But even tf ap-..
pe^11 ee s ac'^ t"tvtty^ ·^ b^ e 1 oca^1 and th^ ~ug h .tt^ m~y^1 vanousSuch measures have been designed in^ programs^ for^ the^ rehef^ of^ growers. part
not be reg~rded as commerce, It may still, at least to protect the domestic price re- whate~e~ 1ts nature, be r~ached by _Con- ceived by producers. Such plans have gen- gress tf ~t exerts a substantial econo~m~ ef- erally evolved towards control by the cen- fect on mterstate commerce and thts trre- tral government.n spective of whether such effect is what might at some earlier time have been de- fined as "direct" or "indirect."
New York, N. H. & H. R. Co.), 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A.,N.S., 44; Interstate Commerce Commission v. Goodrich Transit Co., 224 U.S. 194, 32 S.Ct. 436, 56 L.Ed. 729. ~8 Cf. Federal Trade Commission Y. 63 S.CT.-6J.Ai
In the absence of regulation the price of wheat in the United States would be much
Bunte Bros., 812 U.S. 349, 61 S.Ct. 580, 80 L.Ed. 881. nIt is interesting to note that all of these have federated systems of govern- ment, not of course without important differences. In all of them wheat rec·
63 S.Ct. WICKARD v. FILBURN (^91)
317 u.s.
increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It ca11 hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise be- cause being in marketable condition such
wheat overhangs the market and if in-
duced by rising prices tends to flow in- to the market and check price increas- es. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be re- flected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress 129 may properly have considered that wheat consumed on the farm where grown if wholly outside the scheme of regulation would have a sub- stantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.
[7, 8] It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for them- selves, is an unfair promotion of the markets and prices. of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self- interest of the regulated and that ad- vantages from the regulation commonly fall to others. The conflicts of economic
Stafford v. Wallace, 258 U.S. 495, 42 S. Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229; Board of Trade of Chicago v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839; Coronado Coal Co. v. United Mine Work· ers, 268 U.S. 295, 45 S.Ct. 551, 69 L. Ed. 963; United States v. Trenton Pot· teries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700, 50 A.L.R. 989; Tagg Bros. & Moorhead v. United States, 280 U.S.- 420, 50 S.Ct. 220, 74 L.Ed. 524; Stand-
ard Oil Co. of Indiana v. United States,
283 U.S. 163, 51 S.Ct. 421, 75 L.Ed. 926; Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441; Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092; United States v. Rock Royal Co-opera- tive, supra; United States v. Socony- Vacuqm Oil Co., 310 U.S. 150, 60 S.Ct.
interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. llll Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fair- ness, of the plan of regulation we have nothing to do.
III.
[9] The statute is also challenged as a deprivation of property without due process of law contrary to the Fifth Amendment, both because of its regulatory effect on the appellee and because of its alleged re- troactive effect. The court below sus- tained the plea on the ground of forbidden retroactivity "or in the alternative, that the equities of the case as shown by the record favor the plaintiff." 43 F.Supp. 1017, 1019. An Act of Congress is not to be refused application by the courts as arbitrary and capricious and forbidden by the Due Proc- ess Clause merely 130 because it is deemed in a particular case to work an inequitable result.
[10] Appellee's claim that the Act works a deprivation of due process even apart from its allegedly retroactive effect is not persuasive. Control of total supply, upon which the whole statutory plan is based, depends upon control of individual supply. Appellee's claim is not that his quota represented less than a fair share of the national quota, but that the· Fifth Amendment requires that he be free from
811, 84 L.Ed. 1129; Sunshine Anthra- cite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263; United States v. Darby, supra; United States v. Wrightwood Dairy Co., supra; Federal Power Commission v. Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037. llll Cf. McCulloch v. Maryland, 4 Wheat. 316, 413-415, 435, 436, 4 L.Ed. 579; Gibbons v. Ogden, supra, 9 Wheat. at page 197, 6 L.Ed. 23; Stafford v. Wal- lace, 258 U.S. 495, 521, 42 S.Ct. 397, 403, 66 L.Ed. 735, 23 A.L.R. 229; Board of Trade of Chicago v. Olsen, 262 U.S. 1, 37, 43 S.Ct. 470, 477, 67 L. Ed. 839; Helvering v. Gerhardt, 304 U. S. 405, 412, 08 S.Ct. 969, 971, 82 L.Ed.
92 63 SUPREME^ COURT^ REPORTER
317 u.s.
penalty for planting wheat and disposing respects: first, in ·that it increased the. of his crop as he see'S fit. penalty -from 15 cents to 49 cents a bushel;
We do not agree. In its effort to con- trol total supply, the Government gave the farmer a choice which was, of course, de- signed to enc,:ourage cooperation and dis- courage non-cooperation. The farmer who planted within his allotment was in effect guaranteed a minimum return much above what his wheat would have brought if sold on a world market basis. Exemption from the applicability of quotas was made in favor of small producers. 30 The farmer who produced in excess of his quota might escape penalty by delivering his wheat to the Secretary or by storing it with the privilege of sale without penalty in a later year to fill out his quota, or irrespective of
quotas if they are no longer in effect, and
he could obtain a loan of 60 per cent of the rate for cooperators, or about 59 cents a bushel, on so much of his wheat as would be subject to penalty if marketed. 31 Final- ly, he might make other disposition of his wheat, subject to the penalty. It is agreed 181 that as the result of the wheat programs he is able to market his wheat at a price "far above any world price based on the natural reaction of supply and demand." We can hardly find ·a denial of due process in these circumstances,. particularly since it is even doubtful that appellee's burdens under the program outweigh his benefits. It is hardly lack of due process for the Government to regulate that which it sub- sidizes.
[11] The amendment of May 26, 1941 is said to be invalidly retroactive in two
30 § 7 of the amendment of May 26, 1941 provided that a farm marketing quota should not be applicable to any farm on which the acreage .planted to wheat is not in excess of fifteen acres. When the appellee planted his wheat the quota was inapplicable to any farm on which the normal production of the acreage planted to wheat was less than 200 bushels. § 335(d) of the Agricul- tural Adjustment Act of 1938, as amended by 54 Stat. 232, 7 U.S.C.A. § 1335(d).
31 §§ 6, 10(c) of the amendment of May 26, 1941. 32 § 335(c) as amended July 26, 1939,
secondly, in that by the new definition of ·"farm marketing excess" it subjected to the penalty wheat which had theretofore been subject.to no penalty at all, i.e., wheat not "marketed" as defined. in the Act.
It is not to be denied that between seed time and harvest important changes were made in the Act which affected the desira- bility and advantage of planting the excess acreage. The law as it stood when the ap- pellee planted his crop made the quota for his farm the normal or the actual produc- tion of the acreage allotment, whichever was greater, plus any carry-over wheat that he could have marketed without penal- ty in the preceding marketing year. 32 The Act also provided that the farmer who~ while quotas were in effect, marketed wheat in excess of the quota for the farm on which it was produced should be subject to a penalty of 15 cents a bushel on the excess so marketed. 31 Marketing of wheat was defined as including disposition "by feeding (in any form) to poultry or· livestock which, or the products of which,. are sold, bartered, or exchanged~
- *." 34 The amendment of May 26,. 13:. 1941, made before the appellee had har- vested the growing crop, changed the quota and penalty provisions. The quota for each farm b~came the actual production of acreage planted to wheat less the normal or the actual production, whichever was smaller, of any excess acreage. s11 Wheat in excess of this quota, known as the ';farm-marketing excess" and declared by the amendment to be "regarded as available
53 Stat. 1126, 7 U.S.C. § 1335(c), 7 U.S. C.A. § 1335(c). 33 § 339, 7 U.S.C. § 1339, 7 U.S.C.A.
I 1339.
34 § 301(b) (8) (A), (B), as amended·
July 2, 1940, 54 Stat. 727, 7 U.S.C. t
1301(b) (6) (A), (B), 7 U.S.C.A. § 130l(b) (6) (A, B). · 311 By an amendment of December 26, 1941, 55 Stat. 872, effective as of May 26, 1941, 7 U.S.C.A. § 1340, it was pro- vided that the farm marketing excess :should not be larger than the amount by which the actual production exceeds the normal production of the farm. wheat- acreage allotment, if the producer estab-
