American Can Co. of Massachusetts v. Milk Control Bd.

• Decision Date: 28 January 1943
• Citation: 313 Mass. 156,46 N.E.2d 542
• Parties: AMERICAN CAN CO. OF MASSACHUSETTS v. MILK CONTROL BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 156

46 N.E.2d 542

AMERICAN CAN CO. OF MASSACHUSETTS

v.MILK CONTROL BOARD.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 28, 1943.

Appeal from Superior Court, Suffolk County; Williams and Swift, judges.

Proceeding by the American Can Company of Massachusetts against the Milk Control Board for review of proceedings of the Milk Control Board. A demurrer to the petition was sustained and the petition was dismissed, and the petitioner appeals.

Decrees reversed and demurrer overruled.J. B. Ely and R. Ely, both of Boston, for appellant.

W. F. Hayes, Asst. Atty. Gen., for respondents.

D. Greer, of Boston, amicus curiae.

Before FIELD, C.J., and DONAHUE, QUA, COX, and RONAN, JJ.

QUA, Justice.

This is a petition to the Superior Court under section 21 of G.L.(Ter.Ed) c. 94A, inserted by St.1941, c. 691, § 2, for review of the proceedings of the milk control board on which was based an order of the board providing in part that where milk or cream is sold in single service paper containers by milk dealers or by stores, ‘a non-refundable minimum container charge of one cent per container shall be made over and above the applicable minimum wholesale and retail prices' set forth in the order. The Superior Court sustained a demurrer to the petition and dismissed the petition.

The material allegations of the petition are in substance these: The petitioner owns machinery and equipment used for the sole purpose of packaging milk and milk products in paper containers and is engaged in the business of leasing or selling such machines and containers and has invested large sums of money in said business. The order of the board hereinbefore described deprives the petitioner of a substantial and valuable market for its machinery, equipment, and paper containers and makes it impossible for the petitioner to do business with milk producers and dealers in the Greater Boston market. The petitioner filed its objections ‘in due course’ with the board. It is further alleged that the board's ‘Reservation and Findings of Fact’ show that, without authority, and in order to prevent ‘the lapse’ of previous orders, the board made the order in question before completing its review of the evidence received at the hearings held by it pursuant to section 12; that the transcript of the proceedings before the board, including the evidence, reveals no fact or facts in support of the portion of the order complained of; that its provisions do not affect the public welfare, health, morals or safety and ‘are not fair, just and reasonable and are a totally unwarranted and illegal discrimination against the use of paper containers as a standard package for milk and milk products' and are unconstitutional.

The substantial ground of demurrer is that ‘It does not appear that the petitioner is a person aggrieved within the meaning of’ section 21. Other grounds stated, in so far as they are different from this, have not been argued and we think are without merit. The question now before us is whether a person engaged in the business of supplying paper milk containers and the machines to make them is a person ‘aggrieved by,’ and so entitled to a review of, an order of the board adding one cent to the price of any milk or cream sold by a dealer or a store in a paper container, and thus, as alleged, making it impossible for the petitioner to do business in a valuable market.

In order to reach a true conclusion as to the classes of persons to whom the right of review is granted by section 21 it becomes necessary to look at other sections defining the powers and duties of the board and the manner of their exercise. Under section 2 the board has power and duty to establish marketing areas; ‘to supervise and regulate the milk industry of the commonwealth, including the production, purchase, receipt, sale, payment and distribution of milk,’ and the control of unreasonable and burdensome surpluses; to apportion equitably among producers the total value of milk purchased by dealers; to encourage the production of a regular, continuous and adequate supply of fresh milk; to promote programs designed to increase its consumption; to investigate and regulate for the purposes of the law ‘all matters pertaining to markets, to the production, manufacture, processing, storage, transportation, disposal, distribution and sale of milk * * * and to the establishment and maintenance of reasonable trade practices relative to milk.’ ‘The board may, after examination and investigation, and after hearing held after due notice, adopt all orders, rules and regulations, not inconsistent with law which it deems necessary or desirable to administer or effectuate any of the purposes of this chapter.’ By section 4, 5, and 6, the board is given power to license milk dealers and to refuse, suspend or revoke licenses. By sections 10, 11 and 12 the board is given power, after investigation and hearing, to fix minimum prices. These are extraordinary powers. It is not too much to say that when originally granted by St.1934, c. 376, they were without precedent in this Commonwealth as applied to a kind of business not classed with public utilities. Their exercise was bound to affect profoundly many persons not directly concerned in the production and distribution of milk and many persons not directly commanded by the board to perform or to refrain from any designated acts. Such powers were capable of grave abuse.

Keeping in mind this brief summary of some of the powers of the board, we turn to some of the provisions of the law regulating the manner of their exercise. By section 16 provision is made for ‘general’ orders, rules, and regulations and for ‘special’ orders, rules and regulations ‘applying only to one or more persons named therein.’ ‘Before adopting, altering or rescinding any general order, rule or regulation, the board shall hold a general hearing upon the subject matter thereof, and afford all persons interested an opportunity to offer evidence pertinent thereto.’ Section 16(b). Before adopting a special order, rule or regulation ‘the board shall hold a special hearing’ affording an opportunity to be heard to the person or persons to whom the special order, rule or regulation applies. Section 16(c). There are elaborate provisions for public notice of any ‘general hearing’ and of any ‘general order, rule or regulation’ adopted by the board. Sections 17(a), (b), 19(a). And by section 19(b) it is provided that a general order duly adopted, posted and published ‘shall, upon being filed with the state secretary as required by section thirty-seven of chapter thirty, have the force and effect of law.’ These provisions show a clear recognition by the Legislature that the making of ‘general’ orders by this board may vitally affect many members of the public of different classes, and the provisions for general notice and hearing show the solicitude of the Legislature that ‘all persons interested’ shall have the opportunity to ‘offer evidence pertinent’ to any proposed general order.

After the provisions to which reference has been made comes section 21 granting to ‘Any person aggrieved by any order, rule or regulation adopted by, or other decision of, the board’ a right of ‘review by the superior court of the proceedings of the board on which such order, rule, regulation or decision was based.’ This review relates to matters of law only, since the board's findings of facts are conclusive, ‘if supported by evidence,’ and ‘No objection not urged before...