for its producers the same service that receiving stations beyond thirty-one miles perform for their producers, and lays particular emphasis on evidence as to the difficulties the producers would have in getting their morning milk to the city market before nine o'clock in the morning, as required by health regulations, if they were to ship directly.
In support of the challenged provisions of Order No. 61, the Secretary relies on evidence, inter alia, that improved highways and motor transportation conditions have considerably decreased the service rendered by receiving stations "close-in" to the market; that many of such "close-in" stations have been closed by the handlers; that milk is hauled from farms directly to the market area, a maximum distance of 75 miles and an average distance of 30 to 35 miles; and that it can be brought this distance in a satisfactory condition. The Secretary also refers to evidence that actual hauling costs are less than the amounts allowed handlers in the "transportation differential", and argues that plaintiff is in fact compensated by reason thereof for any slight service which it may render to its producers.
Section 8c (15) (A) of the Act provides that the Secretary's ruling on a petition filed under Section 8c (15) (A) of the Act "shall be final, if in accordance with law." It has been uniformly held that the review provisions of this section do not authorize a trial de novo, but rather require a determination merely of whether there is sufficient evidence to support the Secretary's findings. New York State Guernsey Breeders Co-op., Inc., v. Wallace, D.C., 28 F.Supp. 590, Vogt's Dairies v. Wickard, D.C., 45 F.Supp. 94; M.H. Renken Dairy Co. v. Wickard, D.C., 45 F.Supp. 332; Queensboro Farm Products v. Wickard, D.C., 47 F.Supp. 206, affirmed 2 Cir., 137 F.2d 969; Cosgrove v. Wickard, D.C., 49 F.Supp. 232. And it is a generally recognized principle that a court may not disturb an administrative ruling supported by substantial evidence, even though the court, upon a consideration of all the evidence, might have reached a different conclusion. Swayne & Hoyt v. United States, 300 U.S. 297, 304, 57 S. Ct. 478, 81 L. Ed. 659, 664; Marshall v. Pletz, 317 U.S. 383, 388, 63 S. Ct. 284, 87 L. Ed. 348, 351; Federal Security Administrator v. Quaker Oats Co., 318 U.S. 218, 228, 63 S. Ct. 589, 87 L. Ed. 724, 730. And finally, it is recognized that the burden of showing that legislative or administrative classifications are arbitrary and discriminatory is upon the party challenging them, and that proof of such discrimination may not be remote or fanciful. Borden's Farm Products v. Baldwin, 293 U.S. 194, 209, 55 S. Ct. 187, 79 L. Ed. 281, 288; United States v. Rock Royal Co-operative, Inc., 307 U.S. 533, 567, 59 S. Ct. 993, 83 L. Ed. 1446, 1467.
Applying the above principles, I am unable to say that there is no substantial evidence to support the Secretary's findings or that Order No. 61 is arbitrary, unreasonable and confiscatory as applied to plaintiff. All parties concede that receiving stations at a considerable distance from the city market perform valuable service to the producer for which the handler is entitled to compensation in the form of a minimum price lower than that payable for milk delivered directly to the city market. It is equally obvious that a receiving station extremely close to the city market, as, for example, within a mile thereof, performs negligible service to the producer and should not be permitted a receiving station allowance. At what distance from the city market the service becomes sufficiently valuable to warrant the allowance of a differential is a matter which is peculiarly within the scope of matters properly determinable by administrative agencies and tribunals with technical knowledge and skill in the problems involved. In the determination of the intricacies of such problems, termed by Judge Frank as "exquisitely complicated,"
perfect justice cannot be done to all, and the creation of reasonable categories is bound to work hardship on some. Hardship to some is the necessary concomitant of all social and economic change tending to benefit the many.
Such hardship, however, does not form a basis for the allowance of the plaintiff's alternative contention in the present case that the Secretary of Agriculture should have exempted it from the provisions of Order No. 61.In view of the Secretary's finding, supported by substantial evidence, that plaintiff does not render sufficient service to producers to justify a receiving station allowance, exemption of the plaintiff from the order would be inequitable to the producers, in that they would be required to pay for a service not obtained, and would be discriminatory to competing handlers.
Finally, plaintiff has argued at length that this matter may not be disposed of upon a summary judgment under Rule 56 of the Federal Rules of Civil Procedure, because the pleadings show numerous issues as to material facts. This contention is without merit. As pointed out previously, the determination whether the Secretary's ruling is "in accordance with law" is based upon the record before him rather than upon a trial de novo. If the motion for judgment were denied and the case proceeded to trial, the identical record would then be before the court and nothing else. It is therefore obvious that there are, under the pleadings, no such issues as to any "material" facts which would warrant denial of the motion in favor of disposition of the case by trial.
Defendant's motion for summary judgment is granted.