Puckett v. Sellars

69 S.E.2d 497 (1952)

235 N.C. 264

PUCKETT et al. v. SELLARS.

No. 249.

Supreme Court of North Carolina.

March 19, 1952.

*498 Gavin, Jackson & Gavin, Sandford, for plaintiff appellees.

J. G. Edwards and Hoyle & Hoyle, all of Sandford, for defendant appellant.

BARNHILL, Justice.

The tobacco production program is a comprehensive plan to assure the orderly flow of tobacco into the stream of interstate and foreign commerce, and it has been approved by more than two-thirds of the tobacco producing farmers of the nation. The objective of the legislation putting the plan into operation, 7 U.S.C.A. Ch. 35 B, *499 is to eliminate the disparity between the prices of tobacco in interstate and foreign commerce and the prices of industrial products in such commerce, and to prevent the indiscriminate dumping on the national market of excessive supplies of tobacco at ruinously low prices which spell bankruptcy for the farmers, adversely affect the economy of the whole nation, disrupt the orderly marketing of tobacco, and substantially burden interstate and foreign commerce. 7 U.S.C.A. § 1311; Mulford v. Smith, 307 U.S. 38, 59 S. Ct. 648, 83 L. Ed. 1092. The act is administered by the U. S. Department of Agriculture through the Production and Marketing Administration, commonly known as PMA.

Under the plan each producer of tobacco is allotted annually a tobacco acreage quota. The tobacco produced on the acreage quota thus allotted may be marketed without penalty. However, to discourage overproduction and to assure the success of the program, the marketing of any kind of tobacco in excess of the quota allotted for the farm on which the tobacco is produced is subject to a penalty of forty per centum of the average maket price for such tobacco for the preceding maketing year. 7 U.S.C.A. § 1314.

To the end that the marketing of any excess production may be readily ascertained, every producer is furnished a marketing card which is his authority to place his tobacco on the market for sale and to sell the same. Adams v. Growers' Warehouse, 230 N.C. 704, 55 S.E.2d 331. The card must be produced and a sales memorandum made therein by a PMA representative before the sale may be consummated, without penalty, by the payment of the purchase price.

To facilitate the sale and assure the collection of any penalty due, the producer who has not planted in excess of his acreage quota is issued a white card. The farmer who has overproduced receives a pink card on which the amount per pound penalty is noted. The pink color serves to put the PMA representative and purchaser on notice that a penalty is assessable against the particular sale.

The Act provides that when tobacco is marketed through a warehouseman the "penalty shall be paid by such warehouseman * * * who may deduct an amount equivalent to the penalty from the price paid to the producer". 7 U.S.C.A. § 1314.

The phraseology of this latter provision is the underlying cause of this litigation. The defendant contends that the penalty is assessed against the warehouseman with an option on his part to deduct the assessed penalty from the sales price of the tobacco, and that when the plaintiff failed to exercise his option to make such deduction at the time of the sale he waived his right to claim reimbursement from him.

But when the Act is considered as a whole in the light of the evils sought to be eliminated, the remedies intended to be applied, and the objective to be attained, it becomes apparent that this is not the proper construction of the provision. 50 A.J. 283, sec. 303; Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797; Smith v. Davis, 228 N.C. 172, 45 S.E.2d 51, 174 A.L.R. 643.

Emphasis should be laid upon the necessity for appraisal of the purposes as a whole of Congress in analyzing the meaning of clauses or sections of general acts U. S. v. American Trucking Ass'ns, 310 U.S. 534, 60 S. Ct. 1059, 84 L. Ed. 1345.

The Congressional intent is to prevent the marketing of excessive amounts of tobacco. The penalty is intended as a deterrent against overproduction. It is the producer who is granted the production quota. It is he who overproduces, and the penalty is intended to penalize him for his overproduction. He markets his tobacco and the penalty is upon the marketing of tobacco produced in excess of the quota allotted. 7 U.S.C.A. § 1314.

The intention of the law-making body is the heart of a statute. Mullen v. Town of Louisburg, 225 N.C. 53, 33 S.E.2d 484; Branch Banking & Trust Co. v. Hood, Com'r of Banks, 206 N.C. 268, 173 S.E. 601; Dyer v. Dyer, 212 N.C. 620, 194 S.E. 278.

The provision that the warehouseman must pay the penalty is merely a part of the general scheme for the collection of the penalties assessed. Thus the collection is materially simplified and facilitated and *500 the costs thereof substantially reduced. The "may" in the provision that he may deduct an amount equivalent to the amount paid must be interpreted to mean "shall." It is imperative rather that permissive in import. See Mulford v. Smith, supra, where the court declined to enjoin warehousemen against the deduction of penalties due by producers.

"The words `may' and `shall,' when used in a statute, will sometimes be read interchangeably, as will best express the legislative intent. The word `may' will be construed to mean `shall' when the public or third persons have a claim that the power ought to be exercised * * *." People ex rel. Chiperfield v. Sanitary Dist. of Chicago (Canal Com'r v. Sanitary District), 184 Ill. 597, 56 N.E. 953, 956. "The general rule is that the word `may' will be construed as `shall', or as imposing an imperative duty whenever it is employed in a statute to delegate a power, the exercise of which is important for the protection of public or private interests. Whether merely permissive or imperative depends on the intention as disclosed by the nature of the act in connection with which the word is employed and the context." 2 Lewis' Sutherland, Stat.Const. 1153, sec. 640; Curlee v. National Bank, 187 N.C. 119, 121 S.E. 194; McGuire v. Montvale Lumber Co., 190 N.C. 806, 131 S.E. 274; Battle v. City of Rocky Mount, 156 N.C. 329, 72 S.E. 354.

The "may deduct" provision is important in that it (1) provides a means of collecting revenue due the Government, (2) protects the warehouseman who is merely a collecting agent for the Government, and (3) guarantees the payment of the penalty by the nonconforming producer so as to discourage overproduction and protect the conforming farmers. Therefore, the power to deduct the penalty "ought to be exercised" for the protection of both public and private interests. The provision will be so construed as to impose upon the warehouseman the imperative duty to deduct, in every instance, the penalty imposed.

To hold otherwise and conclude that the Congress intended to penalize the innocent warehouseman for the act of the producer in disregarding the limitation of his acreage quota would attribute to it a purpose and intent so fraught with injustice as to shock the consciences of fair-minded men. It is not the way of the courts to impute to a law-making agency such intent when another reasonable construction of the language used is consonant with the general purpose and intent of the Act under consideration, is in harmony with the other provisions of the statute, and serves to effectuate the objective of the legislation.

The mistake which led to the deduction of a sum less than the amount due was not the mistake of the warehouseman. It was the mistake of the PMA representative who estimated the penalty and advised the warehouseman of the amount to be deducted from the sale price. And the mistake of the agent of the Government to which the penalty was payable cannot serve to discharge the debt due the Government.

When demand was made upon the warehouseman for the uncollected balance of the penalty due he paid the same to the use and for the benefit of the defendant, and he is entitled to recover from the defendant the amount thus paid.

In the trial below we find

No error.