427 F2d 261 Davis v. United States M

427 F.2d 261

Curtis DAVIS, Fred Davis, Leon Davis, and Moody Davis, d/b/a
Pelahatchie Poultry Company, Appellants,
v.
UNITED STATES of America, and Clifford M. Hardin, Secretary
of Agriculture, Appellees.

No. 27712.

United States Court of Appeals, Fifth Circuit.

March 18, 1970.

E. Grady Jolly, Jr., C. Arthur Sullivan, Jackson, Miss., Sullivan, Bishop, Jolly & Blount, Jackson, Miss., for appellants.

John N. Mitchell, Atty. Gen. of the United States, U.S. Dept. of Justice, Washington, D.C., Alan S. Rosenthal, Washington, D.C., Neil Brooks, Asst. Gen. Counsel, Raymond W. Fullerton, U.S. Dept. of Agriculture, Washington, D.C., William D. Ruckelshaus, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., Paul M. Donovan, Atty., Dept. of Agriculture, Washington, D.C., for appellees.

Before COLEMAN, GOLDBERG, and MORGAN, Circuit Judges.

PER CURIAM:

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1

The petitioners seek review of a decision of the Judicial Officer of the Department of Agriculture, acting for the Secretary of Agriculture, issued under the Packers and Stockyards Act, 7 U.S.C.A. 181 et seq. The controlling issue is whether the Department of Agriculture is authorized by 203 of the Act, 7 U.S.C.A. 193, to hold a hearing and issue a cease and desist order with respect to a live poultry dealer or handler who violates 202 of the Act, 7 U.S.C.A. 192.

2

In Arkansas Valley Industries, Inc. v. Freeman, 415 F.2d 713 (1969) the Eighth Circuit recently considered and decided this question. It answered in the negative. We agree.

3

The decision and order of the Secretary of Agriculture in the case now under review will therefore be set aside.

4

So ordered.