Oregon Cry. Mfgs. Ass'n v. White

• Decision Date: 19 April 1938
• Citation: 159 Or. 99,78 P.2d 572
• Parties: OREGON CREAMERY MANUFACTURERS ASSOCIATION ET AL. <I>v.</I> WHITE ET AL.
• Court: Oregon Supreme Court

159 Or. 99

78 P.2d 572

OREGON CREAMERY MANUFACTURERS ASSOCIATION ET AL.

v. WHITE ET AL.

Supreme Court of Oregon.

Argued March 2, 1938.

Reversed April 19, 1938.

Action — Declaratory judgment

1. Relief cannot be had under the declaratory judgment act unless there is an actual bona fide controversy between adverse parties.

Action — Real controversy

2. Deciding hypothetical cases is not a judicial function.

Action — Advisory opinions

3. Courts cannot, in absence of constitutional authority, render advisory opinions.

Judgment — Declaratory judgment

4. A declaratory judgment has the force and effect of an adjudication.

Constitutional law — Construction

5. A court should not declare an act unconstitutional unless it is necessary to do so.

Action — Agricultural marketing act

6. Plaintiffs, who processed and distributed approximately 75 per cent of the butter in Oregon, could not maintain action for declaratory judgment regarding constitutionality of agricultural marketing act purporting to authorize the director of agriculture under certain conditions to promulgate and enforce rules and regulations establishing marketing standards, where the director had promulgated no rules or regulations and had not threatened to do so, since the mere existence of the act did not of itself create a "justiciable controversy".

Agriculture — Marketing acts

7. A mere difference of opinion as to the constitutionality of the agricultural marketing act did not afford adequate ground for invoking a judicial declaration having the effect of an adjudication regarding constitutionality of the act.

Appeal and error — Declaratory judgment

8. Where there was no dispute regarding facts, but only a question of law as to whether case was proper one for declaratory judgment, no legal discretion was involved, as against contention that the lower court's exercise of discretion in assuming jurisdiction under declaratory judgment act should not be disturbed on appeal unless supreme court could say that there had been an abuse of discretion.

RAND and ROSSMAN, JJ., dissenting.

                  See 10 Am. Jur. 938
                

In Banc.

Appeal from Circuit Court, Multnomah County.

JACOB KANZLER, Judge.

Suit by the Oregon Creamery Manufacturers Association and others against Solon T. White, Director of Agriculture of the State of Oregon, and another, for declaratory judgment to have the Oregon Agricultural Marketing Act declared unconstitutional and to enjoin the Director of Agriculture of the state of Oregon from exercising any authority thereunder. From an adverse decree, defendants appeal.

REVERSED.

Willis S. Moore, Assistant Attorney General (I.H. Van Winkle, Attorney General, on the brief), for appellants.

George W. Mead and Robert L. Sabin, Jr., both of Portland (Malarkey, Sabin & Herbring, of Portland, on the brief), for respondents.

BELT, J.

This is a suit brought under the Uniform Declaratory Judgment Act to have the Oregon Agricultural Marketing Act (Ch. 65, Oregon Laws Special Session, 1935) declared unconstitutional and to enjoin the Director of Agriculture of the state of Oregon from exercising any authority thereunder. From a decree declaring the act unconstitutional and enjoining the Director of Agriculture, the defendants appeal.

There are two fundamental questions presented, (1) Have the plaintiffs alleged and proved a cause sufficient to justify the court in assuming jurisdiction under the declaratory judgment act? (2) Is the Oregon Agricultural Marketing Act unconstitutional?

The original Agricultural Marketing Act (Ch. 37, Oregon Laws Second Special Session, 1933, as amended by Ch. 250, Oregon Laws 1935) was held unconstitutional by this court in Van Winkle v. Fred Meyer, 151 Or. 455 (49 P. (2d) 1140). While a petition for rehearing was pending, the legislature enacted the marketing act now under consideration. In section 1 of the act in question, the purpose of the legislation is thus set forth:

"(1) Through the exercise of the administrative powers conferred upon the director of agriculture under this act, to establish and maintain such balance between the marketing and consumption of the agricultural commodities hereinafter specified, and such marketing conditions and practices therefor, as will reestablish prices to producers thereof at a level that will give said commodities a purchasing power (hereinafter referred to as `exchange value') with respect to articles that said producers buy, equivalent to the purchasing power of said agricultural commodities in the base period of August, 1909, to July, 1914, including current interest, payments per acre on farm indebtedness secured by real estate, and tax payments on farm real estate, as contrasted with such interest payments and tax payments during said base period.

"(2) To protect the interest of the consumer by approaching the level of prices which it is declared to be the policy of the legislature to establish, by gradual correction of the current level at as rapid a rate as may be in the public interest and feasible in view of the current consumptive demand in local and other markets, and authorizing no action under this title which has for its purpose the maintenance of prices to producers above the level which it is herein declared to be the policy of the legislature to establish."

Section 2 defines terms as used in the act and provides that an "agricultural commodity" means a dairy product (except milk or cream produced for human consumption in fresh fluid form) "deciduous fruit, berries, melons, tomatoes, and any vegetable, and any product or by-product thereof, intended for human food, and any regional or market classification of any such commodity or product."

Section 3 provides for investigation by the Director as to "all matters pertaining to the production, processing, manufacture, handling, marketing, distribution, and sale, within this state" of all agricultural commodities covered by the act.

Section 4 provides that if the Director at any time finds: (1) That the current average farm price for any of the commodities is less, or is likely to be less, than the fair exchange value thereof for the current or next succeeding year; and (2) that conditions relative to the production, manufacturing, marketing, and consumption of any commodity are such that the exercise of any powers conferred on the Director would effectuate in whole or in part the declared purpose of the act, the Director shall immediately "institute, make effective, administer and enforce" certain marketing standards as provided in the act, "as he shall find administratively practicable and best calculated to effectuate the declared purpose of the act."

Section 5 purports to authorize the Director to promulgate and enforce the following marketing standards:

(1) Limitation of production.

(2) Allotting production among producers.

(3) Allotting distribution among distributors.

(4) Control and distribution of surplus.

(5) Establishing "reserve pools" and providing for the distribution of the net return from the sale thereof.

(6) Fixing prices at which commodities may be sold by the producer, wholesaler, and retailer.

(7) Regulating the price spreads of processors, handlers, and distributors.

(8) Requiring the filing of price schedules by producers, processors, and distributors.

(9) To specify and prohibit unfair trade practices.

(10) Further and incidental powers.

Section 9 purports to authorize the Director "from time to time" after reasonable notice and public hearing, to "terminate or suspend the operation of any or all marketing regulations under this act" as to any commodity "whenever he finds that said regulations obstruct or are unnecessary for accomplishment of the purposes of this act as to that commodity or product or that class of handlers thereof."

Section 10 provides for review and appeal from the decision of the Director as to any regulation or act affecting persons operating under the act.

Plaintiffs process and distribute approximately 75 per cent of the butter in the state of Oregon, or 22,000,000 pounds of butter annually, having a value of $13,000,000. The record discloses that the Director has made a preliminary investigation of "all matters pertaining to the processing and distribution of butter within the state of Oregon, as provided in section 3 of the act, but that:

"* * * it does not appear as a result of said investigation, or otherwise, that the current average farm price for such agricultural commodities as are alleged to be processed and marketed by plaintiffs herein is less than the fair exchange value thereof, or that the average farm price of such commodities is likely to be less than the fair exchange value thereof for the period in which the production of that commodity during the current or next succeeding marketing year is normally or will be marketed, or that the conditions of and factors relating to the production, processing manufacturing, marketing and consumption of butter within the state of Oregon are such that the exercise of any one or more of the administrative powers conferred upon the Director of Agriculture by said act would effectuate in whole or in part the declared purpose thereof."

The record also shows that whether or not further investigations shall be made or whether "any of the terms of marketing standards * * * shall be made effective, is wholly contingent upon conditions

* * * which do not appear as a result of investigations heretofore made by the Director of Agriculture to exist at this time, and whether or not such conditions shall arise at any future time is uncertain and contingent upon facts or circumstances not now known to exist, and which may never arise."

The gravamen of plaintiffs' complaint is specifically set forth as follows:

"That a controversy exists between the plaintiffs and the defendants as to the constitutionality of said statute and as to the extent of the power and authority, if any, of said Director...