New Hampshire Milk Dealers' Ass'n v. New Hampshire Milk Control Bd.

• Decision Date: 31 August 1966
• Citation: 222 A.2d 194,107 N.H. 335
• Parties: NEW HAMPSHIRE MILK DEALERS' ASSOCIATION v. NEW HAMPSHIRE MILK CONTROL BOARD. GRANITE STATE DAIRYMEN'S ASSOCIATION et al. v. NEW HAMPSHIRE MILK CONTROL BOARD.
• Court: New Hampshire Supreme Court

Page 194

222 A.2d 194

107 N.H. 335

NEW HAMPSHIRE MILK DEALERS' ASSOCIATION v. NEW HAMPSHIRE MILK CONTROL BOARD.

GRANITE STATE DAIRYMEN'S ASSOCIATION et al. v. NEW HAMPSHIRE MILK CONTROL BOARD.

Supreme Court of New Hampshire.

Argued June 8, 1966.

Decided Aug. 31, 1966.

Booth, Wadleigh, Langdell, Starr & Peters, Philip G. Peters, Manchester, for New Hampshire Milk Dealers' Ass'n.

Tiffany & Osborne, Gordon M. Tiffany, Concord, for Granite State Dairymen's Ass'n.

Hardy, Hall, Grimes & Murphy, Reuben Hall, Boston, Mass., for New England Milk Producers' Ass'n.

George S. Pappagianis, Atty. Gen., and R. Peter Shapiro, Asst. Atty. Gen., for New Hampshire Milk Control Bd.

Robert F. McNeil, Canton, Mass., and Daniel E. Donovan, Jr., Concord, for Cumberland Farms Northern, Inc., as amicus curiae.

LAMPRON, Justice.

On September 7, 1965, after a public hearing, the Board found 'that in order to protect the public health from impairment by a shortage of milk of proper quality, it is necessary to increase the cost of milk paid to producers'. It also found 'that it is not necessary to increase the minimum retail price of milk' and made orders accordingly. After denial of their motions for rehearing, the plaintiffs appealed to this court on the grounds that the decisions and orders of the Board were not supported by the evidence, were contrary thereto and to law, and were unfair, arbitrary and discriminatory.

On February 4, 1966, after public hearings on December 28 and 29, 1965, a majority of the Board made many findings among which was the following: '11. Removal of price controls is in the public interest'. It then ruled that effective April 4, 1966 'price controls on both the retail and producer levels are eliminated'. This court suspended that order on certain conditions pending disposition of this appeal. New Hampshire Milk Dealers' Association v. New Hampshire Milk Control Board, 107 N.H. --, 218 A.2d 363.

Because these orders of the Board superseded those of September 7, 1965, the plaintiffs' arguments on their appeals from both of these decisions have been focused on that of February 4, 1966. Their appeals from the latter are based on the grounds, among others, that the Board's refusal to disqualify its chairman, William H. Craig, prior to the hearing, as requested by the plaintiffs, was contrary to law and the evidence; that the Board erred in its admission and consideration of certain evidence; that its findings, rulings and orders are, without support in the evidence and contrary thereto, against the weight of the evidence, contrary to law, unfair, unreasonable, arbitrary and discriminatory.

We consider first the contention that the plaintiffs were denied a fair and impartial hearing as required under the due process clause of the Fourteenth Amendment of the Federal Constitution and Article 35, Part 1 of our State Constitution. They argue that this denial of due process resulted because William H. Craig was biased 'in that he had prejudged the issue for which he called a public hearing on December 28, 1965' and failed to disqualify himself from participation in the hearing, and decision of the matters in controversy.

In an offer of proof on that issue made by counsel for the plaintiff Milk Dealer's Association, the following facts appeared. Craig, a member of the Democratic party, was minority floor leader in the 1965 New Hampshire House of Representatives. At the request of the Governor's office, he co-sponsored a bill to eliminate the authority of the Milk Control Board to fix resale prices of milk. During the session he worked to get this bill, in which he believed honestly and genuinely, out of committee and on the floor of the House to do his utmost for its adoption. Counsel asked 'From the time of the conclusion of the legislature (July 1, 1965) and the time at which Governor King appointed you as Chairman of the Board (August 1965) you had not, had you, changed your opinion on the necessity for resale controls'? Craig answered 'I don't think I ever had any doubts on the wisdom of that bill until after I was appointed chairman of the Milk Control Board, so I guess the answer to your question is 'Yes.".

The record also shows that in answer to a letter asking that he disqualify himself, Craig, a lawyer, wrote 'I thought I could conduct the hearing fairly and impartially, and give a fair and impartial ruling to the best of my ability'. He also testified that since his appointment to the Milk Control Board he had made no public statements with reference to the milk control bill previously mentioned or to the abolition of milk controls; that he sat during the hearings on December 28 and 29, 1965 with an open mind; that he would view the evidence as presented and abide by his oath of office to uphold the laws of the State of New Hampshire.

The record is devoid of any evidence that Craig had any personal pecuniary interest in the outcome of the matters before the Board. See Opinion of the Justices, 104 N.H. 261, 264, 183 A.2d 909. Nor is there any evidence that he labored under a personal ill-will toward any of the parties. See Hawkins v. Common Council of City of Grand Rapids, 192 Mich. 276, 289, 158 N.W. 953; 1 Am.Jur.2d, Administrative Law, s. 64, p. 861.

Since 1784, Article 35, Part 1 of our Constitution has provided that 'It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit'. We subscribe to what was said in that respect by this court as far back as 1851 that it is an obvious principle of justice 'that all persons who act as judges should be impartial, without any interest of their own in the matter of controversy, and without any such connexion with the parties in interest, as would be likely, improperly to influence their judgment.' Sanborn v. Fellows, 22 N.H. 473, 481. There is no doubt that these principles apply to the members of the Milk Control Board acting in a quasi-judicial capacity as they were in this case. Tuftonboro v. Willard, 89 N.H. 253, 261, 197 A. 404. However whether there exists in a case sufficient interest or bias to disqualify such a member depends upon its particular circumstances. Matushefske v. Herlihy, 214 A.2d 883, 886 (Del.1965).

It is a well-established legal principle that a distinction must be made between a preconceived point of view about certain principles of law or a predisposed view about the public or economic policies which should be controlling and a prejudgment concerning issues of fact in a particular case. 2 Davis, Administrative Law Treatise, s. 12.01, p. 131. There is no doubt that the latter would constitute a cause for disqualification. However 'Bias in the sense of crystallized point of view about issues of law or policy is almost universally deemed no ground for disqualification.' Id., Moses v. Julian, 45 N.H. 52, 55; Tuftonboro v. Willard, 89 N.H. 253, 261, 197 A. 404; Federal Trade Com. v. Cement Institute, 333 U.S. 683, 701, 68 S.Ct. 793, 92 L.Ed. 1010; United State v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 85 L.Ed. 1429; 1 Am.Jur.2d, Administrative Law, s. 65, p. 862. If this were not the law, Justices Holmes and Brandeis would have been disqualified as would be others from sitting on cases involving issue of law or policy on which they had previously manifested strong diverging views from the holdings of a majority of the members of their respective courts. 2 Davis, Administrative Law Treatise, s. 12.01, p. 132. Decisions of judges on certain questions of law and policy may reflect the economic and social philosophy of the times. Holmes, The Path of Law, 10 Harv.L.Rev. 466; Cardozo, The Nature of the Judicial Process, 173. This detracts in no way from the requirement that a judge or board member must not have a bias or prejudgment concerning issues of fact in a particular controversy.

The record in this case warranted a finding by the Board that William H. Craig had no pecuniary interest in this case, that he entertained no ill will or prejudice toward any of the parties, and that he had no bias or prejudgment concerning the issues of fact involved nor as to the outcome of the hearings. The record surely does not demand a ruling by this court that he was disqualified as a matter of law and that his participation in these hearings and the decision constituted a violation of the constitutional rights of the plaintiffs. O'Brien v. Curran, 106 N.H. 252, 258, 209 A.2d 723; Opinion of the Justices, 104 N.H. 261, 265, 183 A.2d 909.

The plaintiffs also contend that the Board erred which it received in evidence and considered certain exhibits without giving them the opportunity to cross-examine their authors. They complain particularly about exhibits 1-5 introduced by the Chairman of the Board at the beginning of the hearing and a letter from Governor John W. King also introduced as an exhibit.

Exhibit 1 was an article in the spring issue of the Farm Quarterly (1965) dealing with a study made by Cornell University and information acquired from four New York State dairymen pertaining to per cow production, butterfat, and income over feed costs. Exhibit 2 was a study of 'Market Structure, Competition and Regulation in the Distribution of Fluid Milk' prepared by 'A Committee on Milk Marketing Appointed by Governor Nelson A. Rockefeller' (1964). Exhibit 3 was a reprint of an article in Illinois Agricultural Economics (Vol. 5 No. 2, July 1965) entitled 'Milk Distribution Margins, Prices and Consumption: State Controlled Versus Competitive Markets' . Exhibit 4 was entitled 'A Study of The History, Administration And Operation of RSA 183 Relating To Milk Control' published by the Department of Economics of University of New Hampshire. Exhibit 5 was entitled 'Plan For the Operation Of The Milk Sanitation Code January 1, 1966-December 31, 1966' prepared by the Milk Sanitation Board (RSA 184:80-82).

It is not claimed by the plaintiffs that their introduction in evidence was in violation of the...