State ex rel. Peterson v. Martin

• Decision Date: 15 January 1947
• Citation: 180 Or. 459,176 P.2d 636
• Parties: STATE EX REL. PETERSON <I>v.</I> MARTIN
• Court: Oregon Supreme Court

180 Or. 459

176 P.2d 636

STATE EX REL. PETERSONv.

MARTIN

Supreme Court of Oregon.

Argued November 26, 1946.

Affirmed January 15, 1947.

Rehearing denied February 18, 1947.

Injunction — Equity — Criminal law

1. The injunctive powers of equity are not exercised ordinarily in aid of the enforcement of a criminal statute.

Nuisance — Injunction — Remedy at law

2. Where acts of a defendant constitute either a public or private nuisance, injunctive relief may be had notwithstanding a remedy at law has been provided.

Nuisance — Injunction — Remedy at law

3. Persistent and continuous violation of Oregon Milk Control Act by selling milk for human consumption without a license constitutes a "public nuisance" and would be enjoined notwithstanding a remedy at law by criminal prosecution for each violation was available.

Judgment — Res judicata

4. Finding, not appealed from, of circuit court on review of order denying application for license to sell milk for human consumption in city of Sheridan against applicant's contention that applicant could not be charged with creating a public nuisance, by entering the area was res judicata in suit to enjoin applicant from selling in that area without a license.

Food — Milk control — License

5. Denial by director of Department of Agriculture of a license to enter city of Sheridan market area and sell milk for human consumption was a reasonable exercise of a valid discretionary power vested in director by Milk Control Act where director had determined that the Sheridan market was already adequately served, and that the granting of a license to an additional distributor to sell milk therein would be economically wasteful, not in the public interest, and harmful to a stabilized production and distribution of fluid milk and cream for human consumption.

Food — Milk control — License

6. Supreme Court presumed existence of facts justifying action of director of Department of Agriculture in denying applicant a license to sell milk for human consumption in specified market area after due notice and a hearing where there was no competent evidence in the record to overcome such presumption.

Constitutional law — Food — Milk control

7. Oregon Milk Control Act contains sufficient basic standards for guidance of director of Department of Agriculture in determining

the existence of a state of facts justifying his refusal to issue a license for selling milk for human consumption.

Food — Milk — Market areas

8. Director of Department of Agriculture could, after approving issuance of license to sell milk for human consumption within specified market area, delegate to a subordinate employee the ministerial act of issuance of license certificate, or even delegate the issuance of a renewal certificate where no change in conditions involving exercise of discretion had intervened.

Licenses — Right

9. The term "license" refers to the right or privilege conferred and the "certificate of license" is merely the written document which evidences such a right.

Food — Milk control — License

10. Certificate of license extending area in which applicant could sell milk for human consumption issued inadvertently by a subordinate contrary to explicit instructions of director of Department of Agriculture was void and no disaffirmance was required to avoid it.

States — Authority of agents

11. The state is not bound by the acts of a public agent acting in violation of his specific instructions.

Contracts — Void acts

12. A void act is merely a nullity and has no legal effect whatever.

Licenses — Revocation

13. Although the law requires notice and a hearing before revocation of a license, neither notice nor hearing is an essential preliminary to the cancellation of a void certificate of license.

Mandamus — Milk — Market areas

14. If the director of Department of Agriculture after rejecting application to extend territory in which applicant could sell milk for human consumption had refused to make a formal order, the administrator could be compelled to do so by mandamus.

Nuisance — Milk — License

15. Where applicant's actions showed determination to stand upon asserted validity of purported extended milk license, whether director of Department of Agriculture could be compelled by mandamus to make formal order denying application for extension of territory after rejection of application did not arise in suit to enjoin applicant's selling of milk in the area as extended without a license.

ROSSMAN, C.J., dissenting.

                  See 39 Am. Jur. 428; enjoining conduct of business without a
                license, note, 92 A.L.R. 173; 28 Am. Jur. 338; 36 C.J.S., Food, §
                12
                

Appeal from Circuit Court, Yamhill County.

CHARLES H. COMBS, Judge.

Samuel B. Weinstein, of Portland (with George Neuner, Attorney General of the State of Oregon, on brief), for respondent.

Francis F. Yunker, of Portland (with Otto W. Heider, of Sheridan, on brief), for appellant.

Before BELT, Chief Justice, and ROSSMAN, BAILEY, LUSK, BRAND and HAY, Justices.

AFFIRMED. REHEARING DENIED.

HAY, J.

This suit was instituted by the State of Oregon on the relation of E.L. Peterson, as director of the State Department of Agriculture, to enjoin the defendant, A.L. Martin, from selling fluid milk to the general public within the city of Sheridan, Oregon, without being licensed as a milk dealer under the provisions of the Oregon Milk Control Act (sections 34-1001 to 34-1018, O.C.L.A., as amended by chapter 120, Or. L. 1943). The complaint, by appropriate allegations, charged the defendant with repeated, persistent and intentional violations of the Act in that regard.

The answer of defendant was in the main a general denial, with an affirmative defense to the effect that, on or about December 31, 1945, the relator, pursuant to the provisions of the Act, granted defendant a license to operate as a milk dealer and distributor within the district of Willamina and Sheridan, Oregon. For reply, the relator alleged that, upon application by the defendant for a renewal of a license held by him to sell fluid milk in Willamina, in which application he included Sheridan within the territory to be covered, an employee of the Department of Agriculture, without checking the application with reference to the extent of the territory, by inadvertence and mistake unintentionally issued to the defendant a license purporting to authorize him to distribute fluid milk and cream in the city of Sheridan; that, shortly thereafter, the Chief of the Milk Control Section of the Department of Agriculture discovered such mistake, and immediately, on January 8, 1946, notified the defendant thereof, and on the same date transmitted to him, by registered mail, a corrected license for the year 1946; that the defendant refused to accept such registered mail, and has refused a demand for the return of the license for cancellation. The reply further alleges that the alleged license in question was issued without authority, and that the defendant was at all times aware that the relator was opposed to the granting of such a license to him and knew that it was issued by inadvertence and mistake.

The circuit court, after a hearing, entered a decree enjoining the defendant as prayed for. Defendant appeals.

There is not a great deal of conflict in the evidence. Mr. Martin is the owner of a dairy at Sheridan. In 1945, he held a producer-distributor license to sell fluid milk and cream suitable for human consumption in the city of Willamina and vicinity. He applied for a license to sell and distribute milk within the city of Sheridan. A hearing was held on such application, and, on April 30, 1945, the director of the Department of Agriculture (whom we shall refer to as the administrator) made findings to the effect that the city of Sheridan was amply supplied with milk and cream suitable for human consumption; that the distribution facilities then existing were adequately serving the demands of the consumers that the daily sales of fluid milk and cream in that market aggregated approximately 450 quarts, and that such quantity was not sufficient to justify additional distribution facilities; that the granting of a milk dealer's license to the applicant would "displace" the milk produced for human consumption by existing producers supplying the market, would result in a surplus of fluid milk, and would jeopardize the maintenance of the existing production and distribution facilities; that such duplication of distribution facilities would be economically wasteful, would ultimately result either in decreased prices to existing producers or in increased prices to consumers, or both, and would bring about a condition not in the public interest and harmful to a stabilized production and distribution of fluid milk and cream. Based upon such findings, the administrator made an order denying Mr. Martin's application. Upon a writ of review, the Circuit Court for Yamhill County, after a hearing, sustained the findings and order of the administrator.

Mr. Thomas L. Ohlsen is Chief of the Milk Control Section of the Department of Agriculture. The administrator delegated to Mr. Ohlsen the authority to issue renewal licenses, from year to year, in cases where the applicants for such renewals had complied with the requirements of the Act and the regulations of the Department, and where the territory covered by their licenses remained unchanged. The administrator testified that, when applications for new licenses or for extension of the territory covered by existing licenses were involved, he reserved the authority to rule upon the applications personally, and that the normal procedure had been to hold a hearing thereon.

Mr. Cecil L. Griggs, a statistician in the employ of the department, testified that it was a part of his duty to inspect applications for licenses, and in that connection to check them with respect to whether or not the applicants, if previously licensed, had paid their regular monthly...