Norwood Ice Co. v. Milk Control Commission

• Decision Date: 20 January 1959
• Citation: 155 N.E.2d 758,338 Mass. 435
• Parties: NORWOOD ICE CO. v. MILK CONTROL COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 758

155 N.E.2d 758

338 Mass. 435

NORWOOD ICE CO. v. MILK CONTROL COMMISSION.

Supreme Judicial Court of Massachusetts, suffolk.

Argued Nov. 6, 1958.

Decided Jan. 20, 1959.

No argument or brief for petitioner.

Bernard N. Abrams, Sp. Asst. Atty. Gen., for respondent.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.

WILKINS, Chief Justice.

This is a petition for review of a decision of the respondent Milk Control Commission dated February 14, 1956, denying the petitioner's application of June 14, 1955, for renewal of its license as a milk dealer for the license year ending June 30, 1956. G.L. c. 94A, § 21. A judge in the Superior Court made findings and ruled that there had been a procedural error, and entered an order that the order and decision of the commission are invalid and should be reversed. The respondent excepted.

1. The petitioner was the holder of a license which was due to expire on June 30, 1955. On May 5, 1955, the director of milk control filed a written complaint with the commission charging that the petitioner had violated certain provisions of the milk control law. A notice of hearing was sent by the commission to the petitioner stating, among other things, that 'you have committed or permitted to occur or exist acts, facts or circumstances constituting reason for denial, suspension or revocation of milk dealer license, as set forth in Section 6 of said Chapter 94A, to wit: A. That you have violated provisions of the Act, as follows: 1. Section 14(d), in that you sold milk at a price less than the cost of such milk including all regular direct and indirect elements of cost of service, physical handling and financial investments in the milk in question.'

A hearing then took place before a hearing officer designated by the commission, which consumed 28 hearing days between May 26 and July 25, 1955. In the mean-time on June 14, 1955, the petitioner filed with the commission the application in question for renewal of its license for the ensuing license year ending June 30, 1956. By virtue of G.L. c. 94A, § 5, as amended through St.1953, c. 604, § 3, the petitioner continued in business subsequent to June 30, 1955, pending action by the commission on the application. Material portions of § 5 are: 'Licenses issued hereunder shall expire on June thirtieth in each year, but may be renewed if application is made therefor on or before June fifteenth in such year. Any licensee whose application for renewal is made on or before June fifteenth in any year may continue to engage in the milk business pending the action of the commission on such application.'

On February 14, 1956, the commission entered in its records 'Findings, Decision and Order,' purporting to deny the application for renewal. The commission made no order respecting the license for the year ending June 30, 1955, and no notice of any hearing was given subsequent to May 5, 1955.

The judge ruled that the hearing 'preceded by the notice of May 5, 1955, pertained only to the license, for the license year, ending June 30, 1955, with respect to which the commission has made no order, and was not a hearing on Norwood's application, dated June 14, 1955, for renewal of its license for the license year, ending June 30, 1956; that the order and decision of the commission, of February 14, 1956, was made without notice or hearing, respecting Norwood's application for renewal of its license, in violation of G.L. (Ter. Ed.) c. 94A, § 6, where, as here, the licensee's application for renewal was duly and seasonably filed with the commission, and its license had not been refused or revoked, nor had a conditional license been issued to it within the same or the next preceding license year.'

Pertinent provisions of G.L. c. 94A, § 6, as amended through St.1953, c. 604, § 3, are: 'The commission may decline to grant or renew a license, or may suspend or revoke a license already granted, or may grant a conditional or temporary license, upon due notice and hearing to the applicant or licensee; except that the commission may without hearing to the applicant or licensee, but upon due notice, cancel a conditional license for breach of a condition thereof, or may decline to grant or renew a license, where the license of the applicant or licensee has been refused or revoked or a conditional license has been issued for cause within the same or the next preceding license year. The commission may decline to grant or renew a license or may suspend or revoke a license already granted, or grant a conditional license upon due notice and hearing to the applicant or licensee, when it is satisfied of the existence of any of the following reasons: * * * (12) That he knowingly purchased, received, processed, sold or otherwise handled milk within the commonwealth in violation of any of the applicable laws, or of the rules, regulations and requirements of the commission * * *.'

The commission found that 'during the period from November 22, 1954, to and including January 19, 1955, the Norwood Ice Company sold milk within the Commonwealth at a price less than the cost of such milk, including the original purchase price thereof, and all regular direct and indirect elements of cost of service, physical handling and financial investment in the milk in question; that such sales were made with the knowledge of the Norwood Ice Company.'

The standards for judicial review are set forth in the State administrative procedure act, G.L. c. 30A, § 14(8): 'The court may affirm the decision of the agency, or remand the matter for further proceedings before the agency; or the court may set aside or modify the decision, or compel any action unlawfully withheld or unreasonably delayed, if it determines that the substantial rights of any party may have been prejudiced because the agency decision is * * * (d) Made upon unlawful procedure; or (e) Unsupported by substantial evidence * * *. The court shall make the foregoing determinations upon consideration of the entire record, or such portions of the record as may be cited by the parties. * * *' By c. 30A, § 15, this court has 'jurisdiction to review any proceedings had, determinations made, and orders or decrees issued in the superior court pursuant to section fourteen in the same manner and to the same extent as in equity suits, so far as the provisions governing equity suits are applicable.'

When the hearing commenced, the petitioner's authority to engage in the milk business was a license due to expire in less than two months on June 30, 1955. The proceedings had been properly instituted. The petitioner had due notice and was afforded an opportunity to be heard with counsel. G.L. c. 94A, §§ 7(a), 16(c). When June 30 came, although the license then expired, the uncompleted hearing continued. The petitioner's authority to engage in the milk business then was his application for renewal filed before June 15. The hearing went on until July 25 without objection so far as appears. The only purpose of continuing the proceedings must have been to determine whether to grant the renewal application. On February 14, 1956, when the decision was made, the commission could have denied the application without any hearing provided the license had been revoked in the same or in the next preceding license year. The issues on the renewal application were the same as on revocation of the license. The findings of the commission were within the scope of the notice of...