Brackman v. Kruse

Decision Date22 November 1948
Docket NumberNo. 8779.,8779.
Citation122 Mont. 91
PartiesBRACKMAN v. KRUSE, Com'r of Agriculture, et al. (WESTLAKE et al., Interveners).
CourtMontana Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, First District, Lewis and Clark County; A. J. Horsky, Judge.

Action by O. L. Brackman against Albert H. Kruse, Commissioner of Agriculture of the State of Montana, and Thomas E. McMasters, Dairy Commissioner, for a declaratory judgment that provisions of Revised Codes imposing license fees of $250 per quarter on wholesale dealers in oleomargarine and $100 per quarter upon retail dealers in oleomargarine are unconstitutional and for other relief, wherein Lowell B. Westlake and others intervened. From a judgment for plaintiff, the defendants and the interveners separately appeal.

Judgment affirmed.R. V. Bottomly, Atty. Gen., and Clarence Hanley, Asst. Atty. Gen., for defendants and appellants.

E. G. Toomey, of Helena, and Claude C. Gray, of Big Timber, for plaintiffs in intervention and appellants.

Stanley R. Foot, and Arthur P. Acher, both of Helena, for plaintiff and respondent.

Ralph J. Anderson, of Helena, amicus curiae.

ADAIR, Chief Justice.

This is an action for a declaratory judgment commenced in the district court to have determined and declared the constitutionalityof sections 2620.45 and 2620.46, Revised Codes of Montana 1935.

The judgment declares unconstitutional and void so much of section 2620.45, Revised Codes, as imposes license fees of $250 per quarter upon wholesale dealers in oleomargarine and $100 per quarter upon retail dealers in oleomargarine. It also enjoins the collection of said license fees as a condition precedent to wholesale and retail dealers engaging in the business of selling oleomargarine in the state of Montana. There are two appeals from the judgment,—one by the defendants and the other by the intervenors in the action.

The plaintiff, O. L. Brackman, an individual, is a citizen, resident and taxpayer of Lewis and Clark county, Montana, owning and operating two retail stores in the city of Helena, and therein selling at retail, groceries, meats and dairy and food products generally. By virtue of store licenses regularly issued to him by the state board of equalization, by the state board of health and by the state board of food distributors, plaintiff is authorized to transact such business. He is desirous of selling oleomargarine in his stores, for which there is now a great demand by the consuming public but by the statutes in question he is required to first obtain separate state licenses for the selling of oleomargarine at an additional expense of $800.00 per annum for his two stores under the penalty of being adjudged guilty of a misdemeanor punishable by a fine of not less than $100.00 and not more than $500.00 or by imprisonment in the county jail for not less than 30 days nor more than six months or by both such fine and imprisonment. Sections 2620.45 and 2620.46, Rev.Codes 1935. Plaintiff alleges said sections are invalid in that they injuriously affect and deny the individual rights guaranteed him by the federal and state constitutions.

The two defendants, i. e., the commissioner of agriculture and the dairy commissioner of the state, are the administrative officers authorized by law to administer and enforce the law, including sections 2620.43 to 2620.46, R.C.M., providing for the regulation of the production and sale of dairy products and oleomargarine.

July 2, 1945, plaintiff filed his complaint alleging, inter alia: That oleomargarine is a nutritious, wholesome, healthful food containing no deleterious or unhealthful ingredients; that the license fees provided for in section 2620.45, R.C.M., were designed to discourage or prohibit the sale of oleomargarine in aid of the dairy industry; that such fees are so excessive and unreasonable in amount as to prohibit plaintiff and more than 92% of the other grocery stores operating in Montana from selling such product in that the fees so required are so high as to be prohibitive of a useful and general occupation; that by reason of the prohibitive and confiscatory license fees required of him, plaintiff as well as the majority of other retail dealers similarly situated are denied the right to sell oleomargarine; that while sections 2620.43 to 2620.46, R.C.M., inclusive, purport to have been enacted in the exercise of the police power of the state, yet the excessive, confiscatory and prohibitory license fees provided for in the statute, in effect, prohibit the carrying on of a legitimate, profitable industry and the sale of a healthful, nutritious food and that such prohibition is not necessary for the protection of public health, morals, safety or welfare all in violation of the 14th Amendment to the Federal Constitution and of sections 3 and 27 of Article III and sections 1 and 11 of Article XII of the state constitution.

On September 27, 1945, the attorney general filed an answer for and on behalf of defendants admitting that oleomargarine is a nutritious, wholesome, healthful food containing no deleterious or harmful ingredients but denying most of the other allegations of the complaint. Issue being joined with the filing of the answer, the cause was set for trial.

Three days before the date set for the trial, to-wit, on January 28, 1946, on leave granted on an ex parte application therefor, various dairymen and buttermakers whose products are sold in this state in competition with oleomargarine, filed a complaint and answer in intervention placing in issue most of the allegations of plaintiff's complaint. On plaintiff's motion the trial court made an order striking intervenors' complaint and answer in intervention and thereafter, on intervenors' petition in an original proceeding, this court set aside and annulled said order of the trial court. See State ex rel. Westlake et al. v. District Court, 118 Mont. 414, 167 P.2d 588, 163 A.L.R. 911.

May 11, 1946, the intervenors filed an amended complaint and answer in intervention to which plaintiff interposed a demurrer. The district court made an order sustaining the demurrer but, on intervenors' petition in a second original proceeding, this court set aside said order of the trial court. See State ex rel. Westlake et al. v. District Court, Mont., 173 P.2d 896, 169 A.L.R. 827.

The amended complaint in intervention inter alia alleges: That for the most part intervenors are farmers and ranchers engaged in producing and selling milk, cream and dairy products in the open market in the state of Montana; that they are also buyers on such open market and consumers of milk, cream, butter and other dairy products; that they have intervened in the action not only on their own behalf but also for and on behalf of all members of the public similarly situated as owners of dairy cows—as producers of butter and dairy products and also as buyers and consumers of dairy products in the markets of ths state for human consumption and use; that the enactment of the statutes in question was in the exercise of the police power and for the protection of the public health, safety and morals of the state and that by such legislation the state assumes to and that it does supervise, regulate, police and tax the activities, functions, business and dairy products of intervenors; that said statutes govern and apply not only to intervenors and their dairy products but also to plaintiff as a distributor of dairy products and in particular if he would sell or assume to sell oleomargarine to the public in Montana; that oleomargarine is a commercial product, synthetic in nature, made of various oils and fats; that ‘oleomargarine as such is not necessarily healthful, nutritious or wholesome as an edible food for human beings, and particularly as compared with butter as defined by the statutes of Montana’; and that ‘the feeding to animals (as distinguished from humans) of cotton-seed oil and of soy bean oil, such as constitute the basis of oleomargarine, must be restricted in order to avoid injurious results.’

By reply filed November 30, 1946, plaintiff placed in issue the new matter contained in the amended complaint in intervention. After a trial lasting four days and the introduction of much evidence the court rendered its judgment incorporating therein specific findings of fact and conclusions of law.

Findings and Conclusions. The findings of fact and conclusions of law are as follows:

‘1. That at all of the times herein mentioned the defendants above named were and now are the administrative officers authorized by law to administer and enforce the laws of the State of Montana providing for the regulation of the production and sale of dairy products as provided for in Chapter 240 of the Political Code, Revised Codes of Montana, 1935, including Secs. 2620.25, 2620.35 and 2620.43 to 2620.46 inclusive relating to the sale of oleomargarine.

‘2. That oleomargarine is a nutritious, wholesome, healthful food; that oleomargarine is not in all respects a substitute for butter; that it contains no deleterious or unhealthful ingredients and is sold upon its own merits, and under such circumstances that every purchaser and every user is fully advised that he is purchasing or using oleomargarine and not butter.

‘3. That the manufacture and sale of oleomargarine in interstate commerce is under the regulation of the Internal Revenue Department of the United States, and its labeling and packaging is subject to the regulation of the Pure Food and Drug Acts [Federal Food, Drug and Cosmetic Acts, 21 U.S.C.A. § 301 et seq.], of the United States; that no oleomargarine is manufactured within the State of Montana, all oleomargarinesold within said State being shipped from other states to the State of Montana, in interstate commerce.

‘4. That the cost price of oleomargarine at wholesale and the selling price at retail in Montana has for many years last past and at the time of the commencement of this action...

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5 cases
  • Garden Spot Market, Inc. v. Byrne
    • United States
    • Montana Supreme Court
    • 24 Enero 1963
    ...the State of Montana. Iverson v. Dilno, 44 Mont. 270, 119 P. 719; Gas Products Co. v. Rankin, 63 Mont. 372, 207 P. 993; Brackman v. Kruse, 122 Mont. 91, 199 P.2d 971; State v. Gleason, 128 Mont. 485, 277 P.2d 530. This is illustrated by State v. Rathbone, 110 Mont. 225, 241, 100 P.2d 86, wh......
  • Board of Overseers of The Bar v. Lee
    • United States
    • Maine Supreme Court
    • 17 Noviembre 1980
    ...S.W.2d 934, 937 (Tex.Cr.App., 1978); Pittsburgh Milk Co. v. City of Pittsburgh, 360 Pa. 360, 62 A.2d 49, 52 (1948); Brackman v. Kruse, 122 Mont. 91, 199 P.2d 971, 977 (1948); City of Coos Bay v. Aerie No. 538 of Fraternal Order of Eagles, 179 Or. 83, 170 P.2d 389, 396 The common distinction......
  • State ex rel. Schultz-Lindsay Const. Co. v. State Bd. of Equalization
    • United States
    • Montana Supreme Court
    • 26 Abril 1965
    ...Pac. R. Co. v. Sanders County, 66 Mont. 608, 214 P. 596." (Emphasis ours.) In 1948, the court had before it the case of Brackman v. Kruse, 122 Mont. 91, 199 P.2d 971, which was an action for a declaratory judgment with respect to a licensing statute providing for a fee of $250 per quarter o......
  • Montana Land Title Ass'n v. First Am. Title
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    • Montana Supreme Court
    • 25 Agosto 1975
    ...classification and we observe no need to quote from such opinions here. As illustrative cases we refer to these: Brackman v. Kruse, 122 Mont. 91, 199 P.2d 971; Garden Spot Market v. State Board of Equalization, 141 Mont. 382, 378 P.2d 220; State ex rel. Bennett v. Stow, 144 Mont. 599, 399 P......
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