Howle v. Alabama State Milk Control Bd.
Decision Date | 15 November 1956 |
Docket Number | 3 Div. 720 |
Citation | 265 Ala. 189,90 So.2d 752 |
Parties | Henry W. HOWLE et al., d/b/a Deep South Creamery, v. ALABAMA STATE MILK CONTROL BOARD. |
Court | Alabama Supreme Court |
St. John & St. John, Finis E. St. John and Jack Riley, Cullman, for appellants.
Sol E. Brinsfield, Jr., Montgomery, for appellee.
Rushton, Stakely & Johnston, Watkins C. Johnston and Oakley W. Melton, Jr., Montgomery, amici curiae.
Appellants filed a bill of complaint in equity in the Circuit Court of Montgomery County, Alabama, under the provisions of Article 12, § 156 et seq., Title 7, Code of Alabama 1940, seeking a declaratory judgment against appellee, Alabama Milk Control Board. Appellee moved to strike the bill of complaint on the grounds that Section 226, Title 22, Code 1940, provides an exclusive method to challenge or review an order, rule or regulation of the Alabama State Milk Control Board, that appellants did not comply with the provisions of this statute, and that this action was barred by the statute of limitations and laches. Appellants moved to strike the motion to dismiss on the grounds that the motion to dismiss for want of equity has been abolished in this state. The motion to strike and the motion to dismiss were heard by the court at the same time, and a decree was entered denying the motion to strike and dismissing the cause.
Appellants have been engaged in business in Cullman, Alabama, since 1949, as milk distributors. They distribute milk, at wholesale and retail, in the territory composed of Cullman, Winston, Walker, Marshall, Morgan, Blount and Marion Counties. Appellee extended its jurisdiction over said territory, with the exception of Marion County, in September 1951. At the time of the extention of the board's jurisdiction, appellants were purchasing their entire supply of milk from producers located within said area, while other distributors in the same area were purchasing substantially their entire supply of milk from producers outside the State of Alabama. On February 18, 1952, appellee promulgated rules of Fair Trade Practices, which permitted distributors to discontinue receiving milk from producers in accordance with a previous continuing course of business, prior to a base-building period, by giving thirty days' notice to said producers and the board. On December 10, 1953, the board amended Rules 9 and 10 of the Fair Trade Practices, so as to provide that no distributor could discontinue the purchase of producer's milk without obtaining the consent of the board upon a petition filed by said distributor. These amendments allowed the board in its discretion to set the petition down for hearing.
On December 28, 1953, in compliance with the amended rules, appellants sent registered letters to the producers, advising them that they intended to discontinue receiving milk from them, and filed a petition with the board for the purpose of obtaining the consent of the board to discontinue receiving milk from said producers. On January 29, 1954, the board, after holding public hearings throughout the state, promulgated Official Order No. 342, which declared that there was a large amount of unmarketed Alabama produced milk within the state, and prohibited distributors from increasing their supply of out-of-state milk while there remained an ample supply within the state.
On February 3, 1954, the petition filed by appellants was returned to appellants, accompanied by a letter signed by the executive secretary of the board, advising appellants that the petition was refused and referring to Official Order No. 342, as stabilizing the situation.
The bill in the present case was filed in the circuit court on the 26th day of April, 1954, seeking permission to import out-of-state milk, and to have Rules 9 and 10 of the Fair Trade Practices, as amended, Official Order No. 342, and the board's order denying appellants' petition, declared invalid and in violation of Sections 205-231, Title 22, Code 1940, and the Constitution of Alabama and of the United States.
The motion to dismiss for want of equity has been abolished and the general demurrer has been substituted therefor. Equity Rule 14, Title 7, Code 1940, Appendix; Porter v. Porter, 258 Ala. 488, 63 So.2d 804; Edmondson v. Martin, 256 Ala. 73, 53 So.2d 613; Dancy v. Dancy, 253 Ala. 207, 43 So.2d 893. However, if there is no equity in a bill, it will be dismissed at the final hearing ex mero motu. Mitchell v. Hammond, 252 Ala. 81, 39 So.2d 582; Caudle v. Cotton, 234 Ala. 126, 173 So. 847; Elmore County v. Tallapoosa County, 222 Ala. 147, 131 So. 552; Birmingham Interurban Taxicab Service Corp. v. McLendon, 210 Ala. 525, 98 So. 578; Dailey v. Koepple, 164 Ala. 317, 51 So. 348; Jackson v. Knox, 119 Ala. 320, 24 So. 724. In Edmondson v. Martin, supra [256 Ala. 73, 53 So.2d 615], this court stated:
* * *'
Section 226, Title 22, Code of Alabama 1940, provides:
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The question presented by this appeal is whether or not a person who deems himself aggrieved by any action, order or regulation of the Alabama State Milk Control Board is required to have such order, rule, or regulation reviewed as prescribed by Section 226, supra, or whether he may, by declaratory judgment proceedings, obtain a review of such order, rule, or regulation of the board after the time for such review is barred by the provisions of the aforementioned Code section.
Prior to 1947, our cases were in conflict as to whether or not the existence of another remedy precluded an action for a declaratory judgment. See Donoghue v. Bunkley, 247 Ala. 423, 25 So.2d 61. However, on October 9, 1947, the legislature amended Section 167, Title 7, Code of Alabama 1940, which now provides:
(Amendment in italics.)
Since the enactment of the 1947 amendment, this court has held that jurisdiction to grant relief under the Declaratory Judgments Act does not depend on the absence of another adequate remedy. Mooney v. Weaver, 262 Ala. 392, 79 So.2d 3; Dozier v. Troy Drive In Theatres Inc., 258 Ala. 417, 63 So.2d 368; Vinson v. Vinson, 256 Ala. 259, 54 So.2d 509; Brantley v. Flowers, 254 Ala. 448, 48 So.2d 532. However, an action for a declaratory judgment was never intended to be used as a substitute for an appeal. Ex parte State ex rel. Lawson, 241 Ala. 304, 2 So.2d 765; Avery Freight Lines, Inc., v....
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