Dukesherer Farms, Inc. v. Ball

• Citation: 273 N.W.2d 877,405 Mich. 1
• Decision Date: 09 January 1979
• Docket Number: Docket No. 59321,No. 14,14
• Parties: DUKESHERER FARMS, INC., a Michigan Corporation, for itself and on behalf of all Cherry Producers in the State of Michigan, Plaintiff-Appellant, v. B. Dale BALL, Director of the Department of Agriculture, and the Michigan Cherry Promotion and Development Committee, Defendants-Appellees, and Michigan Association of Cherry Producers, Intervening Defendant-Appellee. Calendar
• Court: Supreme Court of Michigan

Page 877

273 N.W.2d 877

405 Mich. 1

DUKESHERER FARMS, INC., a Michigan Corporation, for itself and on behalf of all Cherry Producers in the State of Michigan, Plaintiff-Appellant, v. B. Dale BALL, Director of the Department of Agriculture, and the Michigan Cherry Promotion and Development Committee, Defendants-Appellees and Michigan Association of Cherry Producers, Intervening Defendant-Appellee.

Docket No. 59321.

Calendar No. 14.

Supreme Court of Michigan.

Argued Jan. 6, 1978.

Decided Jan. 9, 1979.

Warner, Norcross & Judd by Ernest M. Sharpe, Grand Rapids, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harry G. Iwasko, Jr., Henry J. Boynton, Asst. Attys. Gen., Lansing, for defendants-appellees.

Foster, Swift, Collins & Coey, P. C. by James A. White, Peter F. McNenly, Lansing, for intervening defendant-appellee.

WILLIAMS, Justice.

Plaintiff-Appellant, Dukesherer Farms, Inc., filed a class action on behalf of all cherry producers in the state of Michigan seeking a permanent injunction against further implementation of the Michigan Cherry Promotion and Development Program instituted pursuant to the Agricultural Commodities Marketing Act, M.C.L. § 290.651, Et seq.; M.S.A. § 12.94(21), Et seq. The complaint further sought a declaration that the Michigan Cherry Promotion and Development Program and the Agricultural Commodities Marketing Act are unconstitutional.

We affirm the decisions of the trial court and the Court of Appeals, find both the program and the act constitutional and therefore deny any right to a permanent injunction.

I. FACTS

The Agricultural Commodities Marketing Act, M.C.L. § 290.651 Et seq.; M.S.A. § 12.94(21) Et seq. (hereinafter referred to as the Act) became effective March 31, 1966, with the purpose of providing a procedure whereby marketing programs could be established for a wide variety of Michigan's agricultural products. A "marketing program" is defined by the Act as follows:

" 'Marketing program' means a program established by order of the director pursuant to this act, prescribing rules and regulations governing the marketing for processing, distributing, selling, or handling in any manner of any agricultural commodity produced in this state during any specified period and which he determines would be in the public interest." M.C.L. § 290.652(i); M.S.A. § 12.94(22)(i).

The content of a marketing program is also set forth in the Act:

"Any marketing agreement or program issued pursuant to this act may contain one or more of the following:

"(a) Provisions for establishing advertising and promotional programs.

"(b) Provisions for establishing market development programs.

"(c) Provisions for establishing and supporting supplemental research programs designed to improve the market acceptability of the specific commodity and contribute to the effectiveness of the program.

"(d) Provisions for development and dissemination of market information.

"(e) Provision for contracting with organizations, agencies or individuals for carrying out any of the above activities.

"(f) Provisions for:

"(1) Establishing standards for quality, condition or size for agricultural commodities sold as fresh products for resale or processing and standards for pack and/or container for commodities sold for use as fresh products.

"(2) Inspection and grading of the fresh commodity in accordance with the grading standards so established.

"(g) Provision for determining the existence and extent of any surplus in any marketing period, for any commodity or product, or of any grade, size, or quality thereof, and providing for handling and equitably sharing the cost of such surplus handling among the producers of the commodity. Before provisions under this paragraph are included in any marketing program, particular attention shall be given to determining that Michigan producers affected by the provisions produce a sufficient proportion of the product covered by the provisions for the program to be effective in the particular market toward which the provisions would be applicable.

"(h) Provision for payment for all usable products purchased from producers according to established grade.

"(i) Provision for exemption of nonparticipating producers." M.C.L. § 290.653; M.S.A. § 12.94(23).

The Act provides that marketing programs established under it are to be administered by a "commodity committee, to consist of an odd number of members with no less than 5 nor more than 15 * * * producers and handlers or processors * * * directly affected by the marketing program * * * ". M.C.L. § 290.657(a); M.S.A. § 12.94(27)(a).

The Act further sets forth detailed procedures to be followed in the institution and termination of a marketing program, M.C.L. §§ 290.660-290.663; M.S.A. §§ 12.94(30)-12.94(33). Briefly stated, for the institution of a marketing program the Director of the State Department of Agriculture must receive a petition favoring adoption, signed by 25% Or 200, whichever is less, of the producers of a specific agricultural commodity. ¹ The Director must then give notice of a public hearing and may appoint a temporary committee to develop the proposed program to be considered at the public hearing. The Director is required to issue a decision based upon his or her findings, including a recommendation approving or disapproving the proposed program within 45 days of the public hearing. The recommendation must contain the full text of any proposed program and be supported by evidence taken at the hearing or by documents of which the Director is required to take official notice.

If the Director of Agriculture recommends the adoption of a particular marketing program, a referendum of affected producers and processors is required within 45 days. M.C.L. § 290.661; M.S.A. § 12.94(31). The recommended program goes into effect if either of the following conditions are met:

"(a) If 66 2/3% Or more by number of those voting representing 51% Or more of the volume of the affected commodity produced by those voting assent to the proposal.

"(b) If 51% Or more by number of those voting representing 66 2/3% Or more of the volume of the affected commodity produced by those voting assent to the proposal."

The Act requires that a marketing program include a:

"definition of terms, purpose of the program, the maximum rate of assessment, method of collection, nominating procedure, qualifications, representation and size of the committee, and other necessary provisions." M.C.L. § 290.665; M.S.A. § 12.94(35).

The program for a given commodity is to be funded by an assessment collected from each producer of the commodity who is directly affected by the marketing program. The Act specifies that all assessments are to be used solely to defray all program and administrative costs and further requires that each program specify the maximum assessment to be collected to cover these costs. ² The monies so collected are declared not to be state funds, and are required to be deposited in a bank, allocated to the marketing program under which they are collected, and disbursed for the necessary expenses incurred with respect to each separate marketing program. M.C.L. § 290.658; M.S.A. § 12.94(28). The same section also provides for auditing of all expenditures and publication of an activity and financial report. Refund of surplus money is provided for in M.C.L. § 290.659; M.S.A. § 12.94(29).

The Michigan Cherry Promotion and Development Program, (hereinafter referred to as the Program), which provides for the promotion and advertising of cherries grown in this state, meets all the requirements of the Act.

At the present time this program provides for an assessment of $3.75 per ton for tart cherries, $3.00 per ton for sweet cherries and $1.25 per ton for both tart and sweet cherries when those cherries are sold for juice purposes. The Program further provides that these assessments are to be collected by the processors of the cherries and remitted to the Michigan Cherry Promotion and Development Committee. The provisions of the Program, including the above-mentioned assessments, received the approval of the requisite number of cherry producers in a referendum conducted by the Director of the Michigan Department of Agriculture between March 3, 1972 and March 22, 1972. After approval, the cherry Program was put into operation.

On October 13, 1972, plaintiff-appellant filed a class action on behalf of all cherry producers in the state subject to assessments under the Program. The Michigan Association of Cherry Producers was permitted to intervene as a defendant.

Both the principal and the intervening defendants subsequently filed motions for accelerated judgment based on the theory that plaintiff had failed to comply with the time limits for judicial review found in the Administrative Procedures Act of 1969, M.C.L. § 24.304(1); M.S.A. § 3.560(204)(1) and therefore, the circuit court was precluded from exercising subject matter jurisdiction. In an opinion dated January 30, 1973, the circuit court granted the motions and dismissed plaintiff's complaint. The Court of Appeals affirmed, Dukesherer Farms, Inc. v. Director of the Department of Agriculture, 53 Mich.App. 489, 220 N.W.2d 46 (1974), but this Court reversed and remanded the case to the circuit court for consideration of the constitutional challenges raised by plaintiff. 393 Mich. 758, 223 N.W.2d 294 (1974).

In an opinion dated November 6, 1975, the circuit court granted defendants' motion for a summary judgment on the merits of the case. This disposition was affirmed by the Court of Appeals on January 6, 1977. 73 Mich.App. 212, 251 N.W.2d 278 (1977). We granted leave to appeal June 2, 1977.

II. ISSUES

The issues raised in this appeal are: 1) whether the "assessments" authorized by the Agricultural Commodities Marketing Act constitute "taxes" subject to constitutional limitations and restrictions and therefore represent an unconstitutional...