Opinion of the Justices of the Supreme Judicial Court

• Decision Date: 12 June 1991
• Citation: 601 A.2d 610
• Parties: . Supreme Judicial Court of Maine. Questions Propounded to the Justices in an Order Dated
• Court: Maine Supreme Court

Page 610

601 A.2d 610

OPINION OF THE JUSTICES OF THE SUPREME JUDICIAL COURT Given

Under the Provisions of Section 3 of Article VI of

the Constitution.

Supreme Judicial Court of Maine.

Questions Propounded to the Justices

in an Order Dated June 12, 1991.

Answered June 20, 1991.

SENATE ORDER PROPOUNDING QUESTIONS TO THE JUSTICES OF THE SUPREME JUDICIAL COURT

WHEREAS, it appears to the Senate of the 115th Legislature that the following are important questions of law and that this is a solemn occasion; and

WHEREAS, the Constitution of Maine, Article VI, Section 3 provides for the Justices of the Supreme Judicial Court to render their opinion on these questions; and

WHEREAS, there is now before the Senate for its final enactment Committee Amendment "A" to House Paper 598, Legislative Document 849, "An Act to Stabilize the Maine Dairy Industry" and the constitutionality of that Act has been questioned; and

WHEREAS, the Act establishes an excise tax on the handling in this State of packaged milk for retail sale in this State; and

WHEREAS, that excise tax would be payable by milk dealers at the wholesale level for milk packaged in this State for retail sale in this State and would be payable by milk retailers at the retail level for milk packaged outside this State and imported into this State for retail sale in this State; and

WHEREAS, the overwhelming majority of milk purchased by consumers in this State is produced and packaged in this State; and

WHEREAS, if persons subject to the excise tax established by the Act or persons who package milk outside the State for retail sale in the State challenge or do not pay the excise tax, there is a substantial likelihood of severe disruption in milk markets in this State that could pose a serious threat to the continued viability of the dairy industry in this State; now, therefore, be it

ORDERED, that in accordance with the provisions of the Constitution of Maine, the Senate respectfully requests the Justices of the Supreme Judicial Court to give the Senate their opinions on the following questions of law:

Question No. 1. If the provisions of Legislative Document 849, as amended by Committee Amendment "A," become law, would they violate the Commerce Clause of the United States Constitution, Article I, Section 8, Clause 3?

Question No. 2. If the provisions of Legislative Document 849, as amended by Committee Amendment "A," become law, would they violate the Public Purpose Clause of the Constitution of Maine, Article IV, Part Third, Section 1?

EXHIBIT A

STATE OF MAINE

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IN THE YEAR OF OUR LORD NINETEEN HUNDRED AND NINETY-ONE

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H.P. 598--L.D. 849

An Act to Stabilize the Maine Dairy Industry

Emergency preamble. Whereas, Acts of the Legislature do not become effective until 90 days after adjournment unless enacted as emergencies; and

Whereas, the producer price of milk has dropped approximately 40% as a result of a milk surplusage west of the Mississippi River; and

Whereas, the magnitude of these price fluctuations jeopardizes the economic viability and stability of the Maine dairy industry

and Maine agriculture as a whole; and

Whereas, the Maine dairy industry is essential to the viability of the State's rural communities and contributes to the general welfare of the State by generating business activity and employment and preserving open space and other benefits for the people of Maine; and

Whereas, helping to stabilize the Maine dairy industry during temporary periods of price fluctuations constitutes a public purpose and an appropriate expenditure of tax revenues; and

Whereas, in the judgment of the Legislature, these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety; now, therefore,

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 7 MRSA § 2954, sub-s 1 as repealed and replaced by PL 1987, c. 447, § 1, is amended to read:

1. Commission empowered to establish prices; public hearing. The commission is vested with the power to establish and change, after investigation and public hearing, the minimum wholesale and retail prices to be paid to producers, dealers and stores for milk received, purchased, stored, manufactured, processed, distributed or otherwise handled within the State. The commission shall hold a public hearing prior to the establishing or changing of such minimum prices. The commission may proceed, however, under the emergency rule-making provisions of Title 5, section 8054 without making findings of emergency when the only changes to be made in the minimum prices are to conform with the orders of any federal or other agency duly authorized by law to establish or negotiate producer prices or are to respond to other conditions affecting prevailing Class I , Class II and Class III prices in southern New England, or reflect the Maine Dairy Farm Stabilization Tax as determined by Title 36, chapter 708-A. Title 5, section 8054, subsection 3, the second sentence, does not apply to minimum prices adopted under the previous sentence. Due notice of the public hearing must be given by publishing notice as provided in Title 5, chapter 375. The commission shall hold such a public hearing not less frequently than once every 12 months to determine whether the minimum wholesale and retail prices then established should be changed. In addition to the data received through the implementation of the information gathering procedures of its rules as a basis for its determinations, the commission shall solicit and seek to receive oral and written testimony at hearings to determine whether the minimum wholesale and retail prices then established should be changed and whether the proposed minimum wholesale and retail prices are just and reasonable.

Sec. 2. 7 MRSA § 2954, sub-s 2, p B, as repealed and replaced by PL 1975, c. 517, § 3, is amended to read:

B. The minimum wholesale prices paid to dealers must be established to reflect the lowest prices at which milk purchased from producers in this State at minimum prices in the State can be received, processed, packaged and distributed within the State at a just and reasonable return, and in addition must include the amount of any tax determined by Title 36, chapter 708-A.

Sec. 3. 7 MRSA § 2954, sub-ss 13 and 14 are enacted to read:

13. Report to State Tax Assessor. The Maine Milk Commission shall report before the first of each month to the State Tax Assessor the basic price of milk established for that month as defined in Title 36, chapter 708-A.

14. Effective date of certain prices; repeal. Any new minimum wholesale prices paid to dealers and new minimum retail prices established pursuant to this section are effective on the first Sunday of the calendar month. This subsection is repealed on November 7, 1993.

Sec. 4. 36 MRSA c. 708-A is enacted to read:

CHAPTER 708-A

MAINE DAIRY FARM STABILIZATION ACT

§ 4541. Short title

This chapter may be known and cited as the "Maine Dairy Farm Stabilization Act."

§ 4542. Definitions

As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.

1. Basic price. "Basic price" means the minimum Class I price of milk established pursuant to Title 7, chapter 603 including that part of the Class I price that exceeds the applicable Class I price established pursuant to the New England Milk Marketing Order, except such part of the Class I price established by the Maine Milk Commission to reflect the cost factors provided in Title 7, section 2954, subsection 2 or the increased costs of production pursuant to Title 7, section 2954, subsection 2, paragraph A.

2. Handler. "Handler," with respect to a particular container of packaged milk, means the wholesale handler or, if none, the retail handler.

3. Milk. "Milk" has the same meaning as in Title 7, section 2951, subsection 6.

4. Packaged milk. "Packaged milk" means milk that has been processed and placed in containers for ultimate sale to consumers.

5. Person. "Person" means any individual, partnership, firm, corporation, association or other unit and the State and all political subdivisions or agencies of the State.

6. Retail handler. "Retail handler" means any person who handles packaged milk in this State that is next sold in this State subject to the retail minimum prices established pursuant to Title 7, chapter 603.

7. Tax period. "Tax period" means the period beginning the first Sunday of the calendar month and continuing through the Saturday prior to the first Sunday of the following calendar month.

8. Wholesale handler. "Wholesale handler" means any person who handles packaged milk in this State that is next sold in this State subject to the minimum wholesale prices paid to dealers established pursuant to Title 7, chapter 603.

§ 4543. Maine Dairy Farm Stabilization Tax

1. Tax. An excise tax is levied and imposed at the rate established in subsection 2 on the handling in this State of packaged milk for sale in this State. With respect to the handling in this State of a particular container of packaged milk for sale in this State, the tax must be paid by the wholesale handler or, if there is no wholesale handler with respect to that container of packaged milk, by the retail handler. There is no tax on the handling in this State of packaged milk for sale that never becomes subject to minimum retail prices that have been established pursuant to Title 7, chapter 603.

2. Rate. The rate of the tax levied under this chapter is established for each tax period on the basis of the basic price of milk in effect on the first day of the tax period in accordance with the following chart:

                                                    Rate of Maine
                                                    Dairy Farm
                           Basic Price              Stabilization Tax
                $16.00 per hundredweight and above  0 cents per quart
                $15.50 to

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