Arrow Lakes Dairy, Inc. v. Gill

Decision Date27 December 1961
Docket NumberCiv. No. 8918.
CourtU.S. District Court — District of Connecticut
PartiesARROW LAKES DAIRY, INC. v. Joseph N. GILL, Commissioner of Agriculture, Conservation and Natural Resources of the State of Connecticut; and the State Milk Regulation Board of the State of Connecticut.

Corkey & Barrows, by Richard F. Corkey, New London, Conn., for plaintiff.

Albert L. Coles, Atty. Gen., by Michael J. Scanlon, Asst. Atty. Gen., for defendant.

BLUMENFELD, District Judge.

The plaintiff, a Rhode Island corporation, who operates a plant in Cranston for the processing and pasteurization of milk and cream has made Joseph M. Gill, Commissioner of Agriculture, Conservation and Natural Resources Commissioner and the State Milk Regulation Board of Connecticut Board defendants in this action seeking a declaration from the court that a portion of the state law (§ 22-196, Conn.Gen.Stat.Rev.1958)1 regulating the sale of milk within its borders insofar as it relates to a restriction upon the board to approve the issuances of permits for public sale of milk and cream in Connecticut to plants located beyond the geographical limits of the state boundary, augmented by the area within any town, city or borough adjoining that boundary, is unconstitutional as applied to the plaintiff's plant because it is violative of the commerce clause2 and the due process clause.3

Standing of Plaintiff

To show how the plaintiff's interests are touched by the challenged statute, it alleges in paragraph eight of its complaint that it "desires and proposes to sell" milk and cream processed and pasteurized at its plant "to persons, firms and corporations who would purvey the same at retail in the State of Connecticut." Paragraph nine alleges that the Commissioner, acting by his agents, has threatened criminal prosecution of the persons referred to in paragraph eight. Taken together, the allegations set forth an ephemeral contact between the plaintiff and the statute. The hypothetical "persons, firms and corporations" have not been joined. The plaintiff, apparently, could not induce them to bring suit. There is no present relationship between such hypothetical "persons" and the plaintiff which could possibly qualify as a legally protectible interest. An applicable analogy is furnished by Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943) and by Ex-Cell-O Corp. v. City of Chicago (7 Cir. 1940), 115 F.2d 627. See Boeing Airplane Co. v. Board of County Commissioners, etc., 164 Kan. 149, 188 P.2d 429, 11 A.L.R.2d 350 (1940).

Assuming that some one might sometime become somehow subject to criminal prosecution for a sale in Connecticut of milk processed by the plaintiff, neither the Commissioner nor any agents of his could prosecute. The power of enforcement in the Commissioner is that provided in § 22-128. The only prosecutors of criminal violations in Connecticut are those appointed by the established state courts to prosecute all criminal cases within their respective jurisdiction. Cf. Connecticut Importing Co. v. Perkins (D.C.Conn.1940), 35 F.Supp. 414.

If the plaintiff here did have a legally protectible interest, and if the Commissioner did have the power to institute criminal proceedings, an action for a declaratory judgment in this court could not be used to obtain a ready made defense to a threatened prosecution in a state court.4 Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); Public Service Comm. of Utah v. Wycoff, 344 U.S. 237, 241, 73 S.Ct. 236, 97 L.Ed. 291 (1952); See International Longshoremen's, etc., Union Local 37 v. Boyd, 347 U.S. 222, 224, 74 S.Ct. 447, 98 L.Ed. 650 (1954). As stated in a like situation by Mr. Justice Jackson, Public Service Comm. of Utah v. Wycoff (supra) at p. 248, 73 S.Ct. at p. 242:

"In this case, as in many actions for declaratory judgment, the realistic position of the parties is reversed. The plaintiff is seeking to establish a defense against a cause of action which the declaratory defendant may assert in the Utah courts. Respondent here has sought to ward off possible action of the petitioners by seeking a declaratory judgment to the effect that he will have a good defense when and if that cause of action is asserted. Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is federal-question jurisdiction in the District Court. If the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in the nature of a defense to a threatened cause of action. Federal courts will not seize litigations from state courts merely because one, normally a defendant, goes to federal court to begin his federal-law defense before the state court begins the case under state law. State of Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511; The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 33 S.Ct. 410, 57 L.Ed. 716; Taylor v. Anderson, 234 U.S. 74 34 S.Ct. 724, 58 L.Ed. 1218."

The plaintiff also alleges that on July 7, 1961, an application was made "for approval of its said plant in said Town of Cranston, Rhode Island, for the pasteurization of milk and cream for public sale in the State of Connecticut pursuant to the provisions of 1959 Public Act No. 84" (§ 22-195, Conn.Gen.Stat.Rev. of 1958, as amended) and that on July 13, 1961, the defendants refused to issue a permit on the ground that it lies beyond the geographical boundaries described in § 22-196. But § 22-196 also provides that no approval may be granted to anyone "unless the person, firm or corporation applying for such permit complies with all the Connecticut laws, orders and regulations governing similar dairy plants, milk and cream dealers or milk and cream pasteurizing plants5 located in this state." The plaintiff does not allege that it is in compliance or that it offered to prove before the Commissioner or the Board that it does comply with the concededly numerous applicable laws, orders and regulations. It is necessary to show compliance with other conditions for a permit before one can object to a denial on a particular ground. Wilson et al. v. Loew's, Inc., 355 U.S. 597, 78 S.Ct. 526, 2 L.Ed.2d 519 (1958); Cf. Columbia Terminals v. Lambert (D.C.E.D.Mo. 1939), 30 F.Supp. 28, vacated 309 U.S. 620, 60 S.Ct. 471, 84 L.Ed. 983 (1939). Before the time had expired for an appeal from the Board's refusal to approve (if that may be regarded as a "ruling * * or order" under § 22-170 at that stage of the proceedings before the Commissioner rather than an informal declaration of the Board's position about a doubtful question6), the plaintiff filed this action on August 11, 1961. Thus, if it is assumed that the plaintiff's plant is located within Connecticut, there is nothing in the complaint taken on its face to require the issuance of a permit to the plaintiff. The plaintiff does not request an order requiring the Commissioner to issue a permit. Were it to do so, it would run squarely into the defense that it has not exhausted its administrative remedies. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1937). The attempt to circumvent this requirement occurs before any proper final administrative action. Although plaintiff's counsel obtusely compares the geographical requirement to the cart before the horse, the statute now appears to require that both qualifications must be shown to exist before the application may be approved. The plaintiff's allegations do not bring him sufficiently within the statute to feel the bite of that part which it contends is unconstitutional. A determination of the issue in its favor would not be controlling to deter any prosecutions in the future since it would remain subject to penal law for failure to comply with these other provisions. The court can only speculate as to whether the plaintiff would meet these qualifications.7 Withholding judicial inquiry into constitutional issues until the plaintiff is willing to establish that he otherwise qualifies creates no unwarranted hardship for the plaintiff. Neither its previous business conduct nor scope of activities have been circumscribed. Cf. City of Chicago v. Fieldcrest Dairies, 316 U.S. 168, 172, 62 S.Ct. 986, 86 L.Ed. 1355 (1942); United States v. Los Angeles & S. L. R. Co., 273 U.S. 299, 309-310, 47 S.Ct. 413, 71 L.Ed. 651 (1927). As stated by Mr. Justice Black in the leading case of Macauley v. Waterman S. S. Corp., 327 U.S. 540, 544-545, 66 S.Ct. 712, 714, 90 L.Ed. 839 (1946): "Here * * * the administrative process, far from being exhausted, had hardly begun. The District Court * * * was correct in holding that it lacked jurisdiction to act." Cf. Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576 (1952); Leiter Minerals Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1956).

Furthermore, there may be reason to expect that pursuit of the administrative remedy would leave no constitutional question.8 Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947); Allen v. Grand Central Aircraft Co., 347 U.S. 535, 74 S.Ct. 745, 98 L.Ed. 933 (1954). This leads us to consider the applicability of the doctrine of abstention.


The doctrine of abstention is a self-imposed limitation upon the jurisdiction of the federal courts "whereby the federal courts, `exercising a wise discretion', restrain their authority because of `scrupulous regard for the rightful...

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    ...on the merits of the amended complaint should be made only by a three-judge court following the decisions in Arrow Lakes Dairy, Inc. v. Gill, 200 F.Supp. 729 (D.Conn.1961); Smith v. Pearson, 294 F.Supp. 611 (N.D.Miss.1968), and Rosado v. Wyman, 304 F.Supp. 1350 (E.D.N.Y. 1969). Defendants' ......
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    ...intended by the legislature. State ex rel. Higgins v. Civil Service Comm., 139 Conn. 102, 90 A.2d 862 (1952)." Arrow Lakes Dairy, Inc. v. Gill, 200 F. Supp. 729, 736 (D.Conn.1961). 9 See e. g., DeVite v. Connecticut Co., 112 Conn. 670, 151 A. 320 (1930), in which the Connecticut Supreme Cou......
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