Milk Control Bd. v. Pursifull
| Decision Date | 30 December 1941 |
| Docket Number | 27562. |
| Parties | MILK CONTROL BOARD v. PURSIFULL. |
| Court | Indiana Supreme Court |
Charles G. Dailey, of Indianapolis, and Browne, Campbell & Gemmill, of Marion, for appellant.
Van Atta, Batton & Harker, of Marion, for appellee.
The facts essential to a decision herein, as specially found by the court are as follows:
The appellee, Ensley A. Pursifull, is a farmer living in Grant County, Indiana, near the City of Marion, where he cultivates his own farm. During the time here in question he owned and milked seven cows. Said cows were milked morning and night in the dairy barn located upon his farm. The milk was milked into three gallon buckets, from which it was poured into two five-gallon milk cans, which were kept in convenient places in the dairy barn while the milking was being done. As the milk was poured into the five-gallon milk cans it was strained through a piece of outingflannel cloth. Approximately five to six gallons of milk was taken from the cows at each milking. The five-gallon cans were then carried to a milk house which was located near the dairy barn. The milk house contained two rooms, one of which contained a table, an icebox and machinery and equipment for washing all vessels used in connection with the milk. The icebox was not used as a refrigerator but only as a cupboard in which to keep the utensils used in connection with the milk. The two five-gallon cans were placed upon the floor in the other room of said milk house after each milking. From May 27, 1940, to July 19, 1940, the appellee sold milk produced by his cows to certain customers or buyers, who were required by him to bring their own containers. At the time of a sale, the milk was poured from one of the five-gallon cans into a one-gallon measuring can, from which it was poured into the customer's container. The appellee owned no unit containers for milk other than the two five-gallon cans. He did not put any milk produced from his cows in bottles or other unit containers in which it was designed to be sold. Prior to July 1, 1940, the appellee cooled said milk with certain equipment which he kept in his milk house for that purpose, but since July 1, 1940, said milk has not been cooled by appellee by the use of any mechanical equipment. The appellee at no time distributed any milk by means of any vehicle or in any other manner, nor did he, at any time expose any milk for sale upon or about his premises in any bottles or any other unit containers in which the milk was designed to be sold. The appellee did not sell nor offer to sell, at wholesale or retail, any milk produced from his herd, which he had put in bottles or other unit containers in which it was designed to be sold nor any milk produced from his dairy herd which he had cooled, pasteurized, standardized or otherwise processed for the purpose of selling, and appellee is not now threatening to do either of said things.
The record discloses that on September 28, 1940, the appellant Milk Control Board of the State of Indiana, filed a second amended complaint against the appellee in which it was alleged that the appellee was putting milk produced from his herd in bottles or other unit containers in which it was designed to be sold; that he was cooling and processing such milk for the purpose of selling and distributing the same, at wholesale and retail, and that he was selling such milk at wholesale and retail on his said farm; that the appellee was doing all this although he had at no time applied to the milk control board for a license to engage in the business as a distributor, producer-distributor, broker or otherwise, as defined in Ch. 281 of the Acts of 1935, p. 1365, as amended, and had at no time paid the license fee imposed by said Act with respect to the business in which he was engaged as aforesaid; that the appellee had at all times, since July 1, 1939, performed the functions of a milk dealer and engaged in business as such, exactly in the same manner as alleged in said complaint and had sold milk from his own dairy herd at wholesale and retail to numerous persons; that the appellee had so engaged in business without a license on each day of the period commencing July 1, 1939, and ending as of the date of the filing of the complaint; and that the appellee was then threatening to and would, unless enjoined, continue in the conduct of business as a distributor of milk for human consumption as alleged without complying with the provisions of said Ch. 281 of the Acts of 1935, as amended.
The complaint concluded with a prayer that the appellee be enjoined from further violation of the licensing provisions of said act and for all other proper injunctive relief in the premises.
To this complaint the appellee filed an answer in general denial and the cause was submitted to the court for trial with a request for special findings of fact and conclusions of law thereon.
On the facts found the court concluded that the law was with the appellee and that the appellant, Milk Control Board of the State of Indiana, was not entitled to an injunction enjoining the appellee from violation of the licensing provisions of said act. Judgment was entered accordingly.
The question involved herein is whether the appellee, producing and handling milk as he did, came within the definition of 'milk dealer' as defined by said milk control act, for it is only such 'milk dealers' who are required by said act to be licensed.
The Legislature of 1935 enacted the first milk control law in this state. Acts of 1935, supra. The title thereof was 'An Act declaring an emergency concerning the production and distribution of milk, creating a milk control board and defining its powers and duties, and declaring an emergency.'
Paragraph 'f' of § 2 of said Act defines the term 'milk dealer' as follows: 'The term 'milk dealer' means and includes all persons defined herein as 'distributor,' 'producer-distributor,' 'distributing broker,' and 'retail store,' excepting producer co-operatives organized under an act entitled 'An Act in relation to agricultural co-operative associations and societies,' approved February 23, 1925, as amended, February 26, 1931, which sell milk co-operatively to milk dealers, but only with respect to such part of their milk as they do sell as aforesaid.'
The appellee does not come within the definition of 'milk dealer' unless he is a 'producer-distributor,' for clearly he does not come within any of the other classifications of 'milk dealer'. Paragraph 'j' of § 2 of said Act defines 'producer-distributor' as follows: 'The term 'producer-distributor' means and includes any person owning, or managing, or controlling a dairy herd or herds, who puts only the milk produced therefrom in bottles or other unit containers in which the same is designed to be sold, or cools, pasteurizes, standardizes, or otherwise processes such milk for the purpose of selling or distributing the same at wholesale or retail, or who sells or distributes such milk at wholesale or retail.'
The appellant insists that under this definition any...
To continue reading
Request your trial