Cloutier v. State Milk Control Bd.

• Decision Date: 07 October 1942
• Citation: 28 A.2d 554
• Parties: CLOUTIER v. STATE MILK CONTROL BOARD.
• Court: New Hampshire Supreme Court

28 A.2d 554

CLOUTIER

v. STATE MILK CONTROL BOARD.

Supreme Court of New Hampshire.

Oct. 7, 1942.

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Certiorari proceeding by Germain E. Cloutier and another, doing business as the Green Acres Farm Dairy against the State Milk Control Board to review an order of the defendant forbidding in certain areas deliveries of milk by a distributor to any retail customer at his premises more often than once in any 48 hours period.

Petition for certiorari granted in part and denied in part.

Petition, for a writ of certiorari. The defendant has issued an order forbidding in certain areas and "by any means or device whatever" deliveries of milk by a distributor to any retail customer at his premises oftener than once in any 48 hour period. The plaintiffs, engaged in the business of distribution to such customers, seek to have the order held invalid and a nullity, by direct application to the Supreme Court.

William H. Craig, of Manchester, for plaintiffs.

Frank R. Kenison, Atty. Gen., and Ernest R. D'Amours, Asst. Atty. Gen. (Mr. Kenison orally), for defendant.

Jack Garrett Scott, Gen. Counsel (Federal) Defense Transportation, and Walter L. Baumgartner, Sp. Asst. Gen. Counsel, both of Washington, D. C, for Joseph B. Eastman, Director of (Federal) Defense Transportation, amicus curiae.

ALLEN, Chief Justice.

I. As a procedural issue, the defendant advances the claim that the plaintiffs' only right to attack the order of the board is by appeal as provided by statute (Rev.Laws, c. 414), the last section of the chapter (section 22) barring the maintenance of any proceeding in any court other than the appeal, to "set aside, enjoin the enforcement of, or otherwise review or impeach any order of the commission, except as otherwise specially provided". The milk control act (Rev.Laws, c. 196, § 16) brings appeals from the orders of the board established by it within the scope of the chapter (c. 414) above cited.

It is doubtful whether the defendant, in its desire to have the main issue in the case decided, is insistent upon its position but as the question is one of the court's authority to act upon the main issue except upon an appeal, it is considered regardless of a possible waiver by the defendant.

In reasonable construction of the provisions of the milk control act relating to appeals, the right of appeal is not considered an exclusive method to obtain relief from invalid orders, in respect to questions of jurisdiction or of law on which the orders are based. A general review, with de novo treatment of the orders, may only be had under the procedure provided. "When the legislature intend a court's decision of questions of fact shall be revisable by another tribunal on a new trial of the whole case, whether there is error of law or not, an appeal is ordinarily provided." Boody v. Watson, 64 N.H. 162, 186, 9 A. 794, 812, and cases cited. And it is a corollary that the terms for taking an appeal must be followed.

It is the constitutional mandate that questions of law belong to the judiciary for final determination, as a necessary deduction of the required separation of the legislative, executive and judicial powers of government. Const., Part I, Art. 37. It follows that legislation cannot bar or restrict this power of the judiciary, and the courts have inherent power, through appropriate process, to act upon and decide such questions, if they are not of a strictly political nature. While the legislature may adopt a procedural course for the exercise of the right that questions of law may be finally decided by the courts, the legislation is valid and to be adopted only so far as it may be held reasonable and consonant with due process. The right to apply to the courts for relief from illegality may not be unduly abridged.

It is assumed that the legislature has acted in the light of this limitation of its power. Any intention that the appellate procedure marked out by the milk control act should be exclusive in respect to questions of law is not found. As above appears, the provisions for appeal explicitly permit other courses to obtain relief which are "specially provided" and it is not assumed that the procedure was intended to entrench upon the statute, P.L. c. 315, § 2; Rev.Laws, c. 369, § 2, conferring in broad language jurisdiction upon this court. The act became law while the revision of statute law by Public Laws was in force and prior to the revision by Revised Laws, which readopts Public Laws in this respect with no change or limitation. The readoption of Public Laws by Revised Laws in identical language left undiminished the statutory jurisdiction of this court, by fair implication. While the appellate procedure may be ample to prevent and correct errors and abuses of any nature, the saving clause for other procedure of a special character and the general provision therefor in the investiture of jurisdiction upon this court evince a purpose not to narrow the jurisdiction.

The jurisdiction conferred expressly grants the right to issue writs of certiorari, and as said in Dinsmore v. City of Manchester, 76 N.H. 187, 191, 81 A. 533, 535: "Since the decision in that case [of Boody v. Watson, 64 N.H. 162, 9 A. 794], the doctrine that the extraordinary correctional power of the court for the promotion of justice and the due administration of the law is not hampered or defeated by abstruse technicalities of remedy, but that it is exercised upon simple, ample, convenient, and reasonably expeditious methods of procedure, has not been doubted." The jurisdiction, as is intended by the statute, may be original.

But issues of fact passed upon by an administrative body are not generally reviewable by the courts unless the legislature has provided therefor by expressly giving a right of review by appeal. Boody v. Watson, 64 N.H. 164, 186, 9 A. 794; Attorney General v. Sands, 68 N.H. 54, 55, 44 A. 83; Manchester v. Furnald, 71 N.H. 153, 157, 158, 51 A. 657; Attorney-General v. Littlefield, 78 N.H. 185, 189, 190, 98 A. 38. The judicial quality inherent in a finding or verdict by such a body does not necessarily signify a justiciable inquiry. The constitutional division of governmental powers contemplates some overlapping and duality in the division as a matter of practical and essential expediency.

Certiorari may not be invoked to review issues of fact, except upon the inquiry of law whether the finding or verdict could reasonably be made. 5 R.C.L. 251; 14 C.J.S., Certiorari, § 172, p. 311; 10 Am.Jur. 537. Whether the fact finding tribunal has acted illegally in respect to jurisdiction, authority or observance of the law, is the scope of inquiry which the proceeding may cover. And it is not granted if other remedy is available. Grand Trunk Ry. v. Berlin, 68 N.H. 168, 170, 36 A. 554. While here other remedy, by appeal, was available it is now too late to take advantage of it, and it does not appear nor is it claimed that the plaintiffs waived the right of appeal or are chargeable with laches for not exercising it.

The petition for certiorari is accordingly held to be an available and appropriate method for attack upon any questions of law on which the board's order depends. The questions thus arising are whether the order is one in respect to which the board had authority to act, and if so, whether it can be found to be based upon...