Dacey v. Milk Control Commission
| Decision Date | 11 April 1960 |
| Citation | 166 N.E.2d 362,340 Mass. 681 |
| Parties | James P. DACEY et al. v. MILK CONTROL COMMISSION. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James C. Gahan, Jr., Boston (Paul A. Kelley, Boston, with him), for petitioners.
Bernard N. Abrams, Special Asst. Atty. Gen., for Milk Control Commission.
Before WILKINS, C. J., and SPALDING, COUNIHAN, WHITTEMORE and CUTTER, JJ.
This is a companion case to Cumberland Farms, Inc. v. Milk Control Comm., 166 N.E.2d 356.
On August 11, 1958, the commission, after notice and hearing, adopted official order G17-450 which required each milk dealer selling milk in marketing area 17 to file reports on prescribed forms setting forth cost data for certain periods. The information so furnished, after analysis by a firm of public accountants, was introduced in evidence at the hearings which led to the promulgation by the commission on November 17 of the price fixing order G17-505 discussed in the Cumberland Farms case.
On November 20, 1958, the Governor under G.L. c. 94A, § 12, ordered the commission by telegram to review order G17-505. The commission, being in doubt as to the nature and scope of such a review, requested an opinion from the Attorney General, who advised them, among other things, that a review was 'a separate proceeding.' Thereafter, on December 1, the commission voted to gather the necessary material for the 'review' of G17-505, and on December 8 promulgated amendment 1 to official order G17-450 (). Amendment 1, like the earlier order, required the milk dealers in marketing area 17 to report certain cost data. It was adopted without notice and hearing.
The petitioner, James P. Dacey, claiming to be aggrieved by amendment 1, brought this petition for review under G.L. c. 94A, § 21. Cumberland Farms, Inc., which also was affected by the amendment, was allowed to intervene. The case was heard on the pleadings together with certain documentary evidence showing the action taken by the commission. There apparently was no oral evidence and the judge made no findings of fact. A decree was entered adjudging that amendment 1 was adopted and promulgated in accordance with law. The petitioner and the intervener appealed. The case comes here on the pleadings, the decree, and the documentary evidence, including the amendment.
The basis of the appeal is that amendment 1 was invalid. Inasmuch as the amendment was adopted in connection with a review of order G17-505 which, as we held in the Cumberland Farms case, supra, is no longer operative, we could very well decline to deal with the amendment on the ground that the questions concerning it are moot. But, as in the Cumberland Farms case, since the questions are of importance and have been fully argued, we shall proceed to indicate our views. See Vautier, petitioner, Mass., 164 N.E.2d 317. Moreover, there is a suggestion in the briefs that sanctions may be imposed against the intervener because of its alleged noncompliance with the amendment. See §§ 6 and 22.
Since the amendment was adopted without notice and hearing (see G.L. c. 94A, §§ 16[b] and 17[a]), the commission seeks to justify its adoption in this manner under G.L. c. 30A, § 2(3) (), which provides in part,
Contrary to the intervener's contention, we are of opinion that amendment 1 is a type of order that falls within § 2(3), for that section prescribes the procedure for the 'amendment of any regulation as to which a hearing is required by any law * * *' 1 (emphasis supplied). See 1954 Annual Survey of Mass.Law, 126, 131. And we are of opinion that the information which the amendment was designed to obtain was not irrelevant to the establishment of minimum wholesale and retail prices of milk. Section 10 gives to the commission very broad powers with respect to what it may consider in establishing minimum prices. It shall ascertain 'by such examination or investigation as the situation may permit or warrant' what prices will be most beneficial to the public interest and will best protect the milk industry. And in every such examination or investigation the commission 'shall take into consideration all the conditions affecting the milk industry, including the amount necessary to yield a reasonable return to the producer and to the milk dealer.'
Thus, the question narrows down to whether ...
To continue reading
Request your trial
-
New England Milk Dealers Ass'n, Inc. v. Department of Food and Agriculture
...as to the path to follow when challenging a regulation promulgated under the milk control law. See, e.g., Dacey v. Milk Control Commn., 340 Mass. 681, 683, 166 N.E.2d 362 (1960). A party in the Dacey case, coincidentally, was Cumberland Farms, Inc. (as intervener), represented by the same l......
-
Commonwealth v. Wash. W
...may reach the issue, one of public importance, where the matter has been fully briefed and argued, as here. Dacey v. Milk Control Comm'n, 340 Mass. 681, 683, 166 N.E.2d 362 (1960). 4. We need not determine now whether sexual orientation is a protected class in Massachusetts. Goodridge v. De......
-
Pioneer Liquor Mart, Inc. v. Alcoholic Beverages Control Commission
...case authority is inconclusive as to the extent of an agency's powers to declare an 'emergency' regulation. In Dacey v. Milk Control Comm'n, 340 Mass. 681, 684-685, 166 N.E.2d 362, we upheld an 'emergency' order or regulation under § 2(3) requiring milk dealers to produce, on an industry-wi......
-
Cumberland Farms, Inc. v. Milk Control Commission
... ... This order set minimum retail and wholesale prices that were substantially higher than the then current prices ... Cumberland Farms, Inc., James P. Dacey and Commonwealth Dairy Stores, Inc., all of whom are engaged in the business of selling and distributing milk and who would be affected by the order, brought this petition for review in the Superior Court under § 21. Whiting Milk Company, which is also engaged in selling milk in area 17, was ... ...