Dukesherer Farms, Inc. v. Ball, Docket No. 26699

CourtCourt of Appeal of Michigan (US)
Citation251 N.W.2d 278,73 Mich.App. 212
Docket NumberDocket No. 26699
PartiesDUKESHERER 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.
Decision Date06 January 1977

Page 278

251 N.W.2d 278
73 Mich.App. 212
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. 26699.
Court of Appeals of Michigan.
Jan. 6, 1977.
Released for Publication March 18, 1977.

Page 279

[73 Mich.App. 214] 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, Asst. Atty. Gen., Susan A. Harris (Dept. Ag.), Asst. Atty. Gen., for defendants-appellees.

Foster, Swift & Collins by James A. White, Lansing, for intervening defendant-appellee.

Before R. B. BURNS, P. J., and KELLY and HUGHES, * JJ.

KELLY, Judge.

Plaintiff appeals on behalf of itself and all other cherry producers in the State of Michigan. This action originally began in 1972 [73 Mich.App. 215] when plaintiff filed a class action seeking a permanent injunction against actions by the defendants in carrying out the Michigan Cherry Promotion and Development Program (hereinafter referred to as "Program") instituted pursuant to the Agricultural Commodities Marketing Act (hereinafter referred to as the "Act"), M.C.L.A. § 290.651, et seq.; M.S.A. § 12.94(21), et seq. The complaint further sought a declaration that the Act and Program are unconstitutional.

After the Michigan Association of Cherry Producers was permitted to intervene as a defendant, the circuit court granted defendants' and intervening defendant's motions for accelerated judgment on the ground that plaintiff's petition was untimely filed. This Court affirmed in Dukesherer Farms, Inc. v. Director of the Department of Agriculture, 53 Mich.App. 489, 220 N.W.2d 46 (1974). The Supreme Court reversed and remanded the case to the circuit court for consideration of the constitutional challenges. 393 Mich. 758, 223 N.W.2d 294 (1974).

In the circuit court plaintiff moved for summary judgment on the ground that the Act is unconstitutional on its face because it improperly delegates general legislative and taxing powers, and fails to state distinctly the tax it assessed, all in violation of the Michigan Constitution. The circuit court denied plaintiff's motion and granted summary judgment for defendants, holding the Act constitutional.

The Act provides the procedure to establish marketing programs for a variety of agricultural products. A marketing program is defined as:

"a program established by order of the director pursuant to this act, prescribing rules and regulations governing the marketing for processing, distributing, [73 Mich.App. 216] selling, or handling in any manner of any agricultural commodity produced in this state during any specified period and

Page 280

which he determines would be in the public interest." Section 2.

Section 3 of the Act specifies what the contents of the programs may contain:

"(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[73 Mich.App. 217] market toward which the provisions would be applicable.

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

"(i) Provision for exemption of nonparticipating producers."

The funding for any and all such programs established is through special assessments collected "from each producer of any marketable agricultural commodity * * * directly affected by a marketing program", M.C.L.A. § 290.655; M.S.A. § 12.94(25)(a). These assessments, as stated in the Act, are to be used to defray program and administrative costs. Furthermore, each marketing program must specify the maximum assessment needed to cover the program's expenses, M.C.L.A. § 290.655; M.S.A. § 12.94(25)(b).

Section 8(a) of the Act provides:

"Any moneys collected pursuant to this act shall not be state funds and shall be deposited in a bank or other depository in this state, allocated to the marketing program under which they are collected, and disbursed only for the necessary expenses incurred with respect to each such separate marketing program, in accordance with the rules established under the program."

And, Section 9 contains the refund procedure in the case of excess funds at the close of any marketing season.

Sections 10 through 12 of the Act detail the procedure to be followed in the institution of a marketing program. The Director of the Michigan Department of Agriculture (defendant) must receive a petition signed by a certain percentage of producers of the commodity calling for adoption of a particular marketing program. The director [73 Mich.App. 218] must then notice up and hold a public hearing on the proposed program.

Within 45 days of the close of the hearing the director must issue a decision based on his or her findings and recommend approval or disapproval of the proposed findings. This recommendation must contain the text of the proposed program and be supported by evidence obtained at the hearing.

If the director recommends adoption of a program, a referendum of affected producers and processors is required within 45 days. The program becomes effective:

"(a) If 662/3% or more by number of those voting representing 51% or more of

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the volume of the affected commodity produced by those voting assent to the proposal....

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4 cases
  • Dawson v. Secretary of State, Docket No. 264103.
    • United States
    • Court of Appeal of Michigan (US)
    • March 20, 2007
    ...Co. v. Romulus Twp., 365 Mich. 632, 637-638, 114 N.W.2d 166 (1962); see also Dukesherer Farms, Inc. v. Dep't of Agriculture Director, 73 Mich.App. 212, 221, 251 N.W.2d 278 (1977) (holding that even if a statutory assessment were construed to instead be a tax, the statute would not be uncons......
  • Gillette Commercial Operations N. Am. & Subsidiaries v. Dep't of Treasury, Docket Nos. 325258
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    • Court of Appeal of Michigan (US)
    • September 29, 2015
    ...Clause is violated if a statute imposes an obscure or deceitful tax. Dukesherer Farms, Inc. v. Dep't of Agriculture Dir., 73 Mich.App. 212, 221, 251 N.W.2d 278 (1977), aff'd 405 Mich. 1, 273 N.W.2d 877 (1979), such as when a tax is disguised as a regulatory fee, Dawson, 274 Mich.App. at 740......
  • Dukesherer Farms, Inc. v. Ball, Docket No. 59321
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    • Supreme Court of Michigan
    • January 9, 1979
    ...for a summary judgment on the merits of the case. This disposition was affirmed by the Court of Appeals on January 6, 1977. Page 883 73 Mich.App. 212, 251 N.W.2d 278 (1977). We granted leave to appeal June 2, II. ISSUES The issues raised in this appeal are: 1) whether the "assessments" auth......
  • BCS Life Ins. Co. v. Commissioner of Ins., Docket No. 85843
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    • Court of Appeal of Michigan (US)
    • October 8, 1986
    ...Inc. v. Director of Dep't of Agriculture, 53 Mich.App. 489, 220 N.W.2d 46, rev'd 393 Mich. 758, 223 N.W.2d 294 (1974), app. after remand 73 Mich.App. 212, 251 N.W.2d 278 (1977), aff'd 405 Mich. 1, 273 N.W.2d 877 (1979), is misplaced, not because of the constitutional issue, as argued by the......

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