Cumberland Farms Northern, Inc. v. Pierce

Decision Date25 June 1963
Citation104 N.H. 489,190 A.2d 403
PartiesCUMBERLAND FARMS NORTHERN, INC. v. Alfred T. PIERCE et al.
CourtNew Hampshire Supreme Court

Burns, Bryant & Hinchey and E. Paul Kelly, Dover, Robert F. McNeil, Boston, Mass., and Alfred B. Stapleton, Providence, R. I., for plaintiff.

William Maynard, Atty. Gen., and Alexander J. Kalinski, Asst. Atty. Gen., for defendants.

Booth, Wadleigh, Langdell, Starr & Peters, Manchester, for New Hampshire Milk Dealers Association, as amicus curiae.

Tiffany & Osborne, Concord, for The Granite State Dairymen's Association, as amicus curiae.

WHEELER, Justice.

The plaintiff is a New Hampshire corporation leasing and operating a plant at Portsmouth, New Hampshire for purposes of processing and bottling milk in gallon jugs. The Portsmouth plant was recently constructed at a cost of some $300,000. The plaintiff proposes to engage solely in selling milk in gallon and half gallon jugs on a cash and carry over-the-counter basis.

On September 25, 1962 the plaintiff filed with the Milk Control Board nine applications for distributor's licenses. Under date of October 1, 1962 it filed a second set of nine applications in substitution for the original set. The latter set differed from the first in that they did not specify any 'average amount of milk sold daily' but stated that the two-dollar fee was 'as per fee schedule RSA 183(9) for over-the-counter distributors.'

A hearing was held by the Board upon the applications on October 26, 1962 and at the conclusion of the hearing the plaintiff was notified that additional licenses would be required for each of five outlets from which it proposed to conduct its so-called 'jug operations,' and that the Board should first be advised of the location of these outlets. The plaintiff's manager, Mr. Haseotes, was also advised that the Board had approved the pending applications for distributor's licenses and would act upon and approve 'whatever applications for retail milk licenses his two corporations would apply for.'

Under date of October 29, 1962 the Board issued to the plaintiff nine distributor's licenses 'for the purpose of selling more than two quarts and not more than 20 quarts of milk daily' in each of nine different areas within the state. On November 1, 1962 the plaintiff commenced the sale of milk in gallon and half gallon containers at the established prices of 51 cents a half gallon, and $1.02 a gallon, over the counter, at five outlets in four of the nine areas for which it had been issued licenses.

These five locations were specified in four additional applications executed by the plaintiff under date of October 31, 1962 which were received by the Board together with $10 in fees on November 2, 1962. Under date of November 2, 1962 by letter to plaintiff's counsel the Board denied these applications 'because they [Cumberland Farms Inc.] are selling milk without licenses now.' On November 5, 1962 the plaintiff filed in the Rockingham County Superior Court a petition for mandamus seeking to compel the issue of licenses for its five retail stores. This petition was dismissed on motion of the Board on November 7, 1962 upon the ground that the plaintiff had an adequate remedy under RSA ch. 541.

In the meantime from November 1 to November 9, 1962 the plaintiff sold milk, over the counter, at its five outlets at the prices established by the Board. On November 9, 1962 however, the plaintiff reduced its prices to 79 cents per gallon and 49 cents per half gallon. On the same day the Board notified the plaintiff that a hearing would be held on November 15, 1962 to determine why its nine distributor's licenses issued October 29, 1962 should not be revoked. This hearing was postponed to November 26, 1962. Also on November 9, 1962 criminal complaints were instituted by the Board against the plaintiff.

On November 16, 1962 the plaintiff filed with the Board a motion for rehearing with respect to the Board's order of October 31, 1962, which continued in effect its prior general orders and regulations with respect to milk prices. On November 21, 1962 the plaintiff filed with the Board a motion for rehearing with respect to the November 2, 1962 order of the Board denying the plaintiff's applications for five licenses for retail outlets.

On November 23, 1962 the plaintiff filed in the Superior Court the bill in equity now before us (No. 5124) which sought a temporary order to enjoin the Board from holding the proposed hearing of November 26, 1962 for the purpose of revoking the plaintiff's nine distributor's licenses. This relief was denied by the Superior Court and following a hearing on November 26, 1962 the Board ordered the nine distributor's licenses revoked 'because of repeated violations of the law' by the plaintiff. On the same date the Board denied both of the plaintiff's pending motions for rehearing of its previous orders.

In compliance with the order of November 26, 1962, the plaintiff surrendered its nine distributor's licenses, and it has sold no milk in New Hampshire since that date.

On December 1, 1962 the plaintiff filed with the Board an application for a license 'for sale of milk outside of State of New Hampshire pursuant to RSA 183:10 and 183:11.' On December 6, 1962 this application was denied by the Board, and the fee which accompanied it was returned, upon the ground that the statute 'does not set up a separate license classification for distributors who distribute milk outside the State only,' and that prior applications by the plaintiff had been denied 'for violations of the milk control law.' By letter also dated December 6, 1962, the plaintiff's counsel requested the Board to reconsider this order.

On December 14, 1962 the plaintiff filed a motion in Superior Court to amend its pending bill in equity (No. 5124) to seek an order which would vacate the revocation of its nine distributor's licenses by order of the Board on November 26, 1962, and permit the plaintiff to resume over-the-counter sales in jugs. At a conference in the Superior Court on December 17, 1962 an agreed statement of facts was proposed preparatory to transfer of the plaintiff's bill in equity to this court. On December 26, 1962 this appeal, or petition for certiorari (No. 5110) was filed in this court. On January 18, 1963, after hearing in this court, temporary relief sought during the pendency of the appeal was denied. Cumberland Farms Northern, Inc. v. N. H. Milk Control Board, 104 N.H. 364, 187 A.2d 388. However, on February 8, 1963, the plaintiff was authorized by order of this court after hearing, to utilize the Portsmouth plant for the processing of milk procured and to be sold outside of New Hampshire.

Certain procedural questions will first be considered. It is contended by the Board and by amici that the plaintiff, by its failure to file with the Board a motion for rehearing following its order of November 26, 1962 which revoked the plaintiff's nine distributor's licenses and by its further failure to move for a rehearing of the Board's decision of December 6, 1962 denying plaintiff's application for a license to sell milk outside the state, is now precluded from questioning these orders, since the provisions of RSA 541:22 relating to appeals from orders of the Board make the statutory appeal an exclusive remedy. See RSA 183:18.

For reasons which will hereinafter appear we do not consider that these omissions are fatal to proper consideration of the major issues which are presented by this appeal.

While the plaintiff in the cases now before us questions the procedures adopted by the Board and its interpretation of the statute, its attack upon the statute upon constitutional grounds is understood to proceed upon comparatively narrow grounds. Recognizing apparently that the right to exercise the powers granted by section 7 of the act has properly been made to depend upon preliminary findings which must satisfy specified prerequisites, yet the plaintiff contends that once such findings have been made, no suitable standards are provided by the statute to guide and control the Board in its determination of what the maximum or minimum prices to be fixed shall be.

Although the present section 6 is only incidentally involved in these proceedings the plaintiff asserts that it, as well as section 13, was held unconstitutional in Opinion of the Justices, 88 N.H. 497, 190 A. 713. And while the plaintiff recognizes that the present section 7 (then s. 6) was upheld by the same opinion, and the act in general by Cloutier v. State Milk Control Board, 92 N.H. 199, 28 A.2d 554, it urges that both of these opinions should be reconsidered in the light of the facts presented by the pending litigation, and that section 7 should now be held unconstitutional.

Particular emphasis is placed by the plaintiff upon more detailed provisions found in other statutes, as an indication of the short-comings of the New Hampshire act. See State v. Stoddard, 126 Conn. 623, 13 A.2d 586; State v. Auclair, 110 Vt. 147, 4 A.2d 107. We do not consider that this comparison demonstrates any fatal defect in our own statute.

As was pointed out in Opinion of the Justices, 88 N.H. 497, 499, 190 A. 713, 714, 'the power of the board to establish prices is dependent upon the prevalence of an economic condition injurious to public health in a definite marketing area, and the existence of this condition in such area must first be found as a fact * * *.' Having found that the facts warrant regulations, the Board is then subject to the requirement that prices fixed by it must be 'just and reasonable' (s. 7, supra), a comprehensive standard which has long been recognized and applied in this jurisdiction in the field of public utility regulation. RSA 378:7. Grafton County Electric Light & Power Co. v. State, 77 N.H. 539, 94 A. 193; New England Tel. & Tel. Co. v. State, 98 N.H....

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8 cases
  • In the Matter of Martin F. Kurowski And Brenda A. Kurowski.
    • United States
    • New Hampshire Supreme Court
    • 16 Marzo 2011
    ...we will not substitute our judgment for that of the [lower tribunal]” on a matter of judicial discretion); Cumberland Farms v. Pierce, 104 N.H. 489, 497, 190 A.2d 403 (1963) (“The problem therefore is not whether this court or some other tribunal would have reached a different conclusion fr......
  • New Hampshire Milk Dealers' Ass'n v. New Hampshire Milk Control Bd.
    • United States
    • New Hampshire Supreme Court
    • 31 Agosto 1966
    ...the Board could reasonably have found as it did. Grafton etc. Co. v. State, 77 N.H. 490, 493, 93 A. 1028; Cumberland Farms Northern, Inc. v. Pierce, 104 N.H. 489, 497, 190 A.2d 403. See Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456. Cl......
  • Maine Milk Commission v. Cumberland Farms Northern, Inc.
    • United States
    • Maine Supreme Court
    • 3 Diciembre 1964
    ...could be changed when public interest so demanded. In re Opinion of the Justices, 88 N.H. 497, 190 A. 713. In Cumberland Farms Northern, Inc. v. Pierce, N.H., 190 A.2d 403 (1963) after such a finding, the court denied plaintiff's claim that no suitable standards were provided to guide and c......
  • Appeal of Lorden
    • United States
    • New Hampshire Supreme Court
    • 2 Agosto 1991
    ...(1982); Connell's New & Used Cars, Inc. v. State, 117 N.H. 531, 532, 375 A.2d 257, 257-58 (1977); see also Cumberland Farms v. Pierce, 104 N.H. 489, 502, 190 A.2d 403, 413 (1963) (error of law open to correction on writ of certiorari); In re Doe, 126 N.H. 719, 722-23, 495 A.2d 1293, 1296 (1......
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