making payments to the Settlement Fund thereunder during the pendency of administrative procedures before the Secretary of Agriculture. The Court so reads the Act. The defendants, however, in support of their respective motions for stay contend that irreparable harm may come to them if they are in the first instance ordered to make payments into the Settlement Fund and it is thereafter determined that they were not required under law to make such payments and the money is ordered refunded to them inasmuch as payments may be made to participants in the 'pool' who later leave the pool thus affording no opportunity for an offset of the amounts previously paid.
The same argument was advanced to the Court of Appeals for the First Circuit in the case of H. P. Hood & Sons v. United States, 1 Cir., 1938, 97 F.2d 677, and in a per curiam opinion that court held that there was nothing in the act which prevented the court from granting a stay of proceedings.
A review by this Court of the legislative history of the Act also indicates that in approving the legislation, the Congress contemplated that in appropriate cases a stay might be granted in a proceeding brought under the act in a district court. This action is in equity. The Court does not feel that any irreparable harm will be occasioned to either of the defendants if they are required to file the reports provided for in Marketing Order No. 27. On the other hand, it is of the opinion that equity does not require that the payments shown to be due under the Order be made directly into the Settlement Fund but that the interests of both parties can be protected by ordering such payments to be made into the Registry of the Court pending the determination of the administrative proceedings before the Secretary of Agriculture and/or a judicial review of such determinations in this Court. The Court, therefore, on this 4th day of October, 1957, makes the following
1. It is ordered, adjudged and decreed that each of the defendants file with C. J. Blandford, the Market Administrator, within 15 days from the date of this Order, all reports required by the provisions of Order No. 27, as amended, effective August 1, 1957, beginning with the reports for the period August 1957.
2. That the defendants forthwith make available to C. J. Blandford, the Market Administrator, or his representative, all books, memoranda, account records and factors for the verification of their said required reports.
3. That the defendants within 15 days from the date of this Order pay into the Registry of this Court the amounts shown on their said reports to be due and payable under said order and to make regular monthly payments thereafter into the said Registry of the Court of the amounts shown to be due on the reports as filed in any particular month, on or before the dates such payments would ordinarily be made to the Market Administrator under the terms of said order; such payments to be held in the Registry of this Court pending determination of the proceedings before the Secretary of Agriculture and/or a judicial review of such determination as made in said administrative proceedings and until further order of this Court.
4. That the defendants forthwith and any of the following persons acting in their behalf, to wit: agents, attorneys, servants, employees, successors, or assigns, and all persons in active concert with them be and they are hereby temporarily enjoined from doing any act or acts in violation of the requirements of paragraphs 1 and 2 of this Order.
5. That the defendants enter their joint bond in the sum of $ 5,000 within 15 days from the date of this Order conditioned upon their compliance with the terms of this Order.
6. That the Court retain such jurisdiction of this action as may be necessary for the entering of such further orders and judgments as may be necessary to give full and equitable relief to both parties. Leave is granted all parties on 48 hours' notice to move this Court to set aside, vacate, alter or amend any or all of the terms of this Order.
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