State ex rel. Peterson v. Woodruff

• Decision Date: 06 November 1946
• Citation: 173 P.2d 961,179 Or. 640
• Parties: STATE EX REL. PETERSON <I>v.</I> WOODRUFF ET AL.
• Court: Oregon Supreme Court

179 Or. 640

173 P.2d 961

STATE EX REL. PETERSONv.

WOODRUFF ET AL.

Supreme Court of Oregon.

Argued September 25, 1946.

Affirmed November 6, 1946.

Food — Milk dealers — License fee

1. In state's action to recover balance of license fee on butterfat received and handled by defendant milk dealers, burden was on plaintiff to show poundage of butterfat for which fee became due.

Appeal and error — Findings of trial court

2. The trial judge's fact finding on conflicting testimony is conclusive on appeal.

Licenses — Definition of license

3. A "license" is merely permission to do what is unlawful at common law or made so by statute or ordinance, including the one authorizing or requiring the license.

Statutes — Construction — Intent

4. The Supreme Court should look to entire statute in determining Legislature's expressed intent.

Food — Milk control law

5. The state Milk Control Law is intended to correct economic evils chiefly, and its purposes are limited to supervision and regulation of milk industry within state for mutual benefit of such industry and inhabitants of state.

Food — Milk control law

6. A person's receipt or handling of butterfat suitable for sale as fluid milk and cream for human consumption does not bring him within statutory definition of "milk dealer", subject to license fee imposed by state Milk Control Law, as such a dealer is one who purchases or handles fluid milk and sweet cream for human consumption in fluid form for sale in state or sells such milk within state.

Food — Milk control law

7. The state Milk Control Law, imposing license fees on milk dealers, applies only to milk received and handled by persons purchasing or handling milk within state for sale therein, not to persons receiving and handling milk produced in another state, processed in state, and sold in such other state.

                  See 22 Am. Jur. 860; milk regulations-licenses, note 122 A.L.R
                1066; 33 Am. Jur. 325; 36 C.J.S., Food, § 12
                

Appeal from Circuit Court, Klamath County.

DAVID R. VANDENBERG, Judge.

Samuel B. Weinstein, of Portland (George Neuner, Attorney General, of Salem, Samuel B. Weinstein, of Portland, on the brief), for appellant.

William Ganong, of Klamath Falls, for respondents.

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

AFFIRMED.

BRAND, J.

Action by the State of Oregon to recover from the defendants the amount of $820.94 alleged to be due and unpaid under the provisions of the Oregon Milk Control Act as balance of license fee on account of milk received and handled by the defendants as milk dealers and licensees under the act. From a judgment for defendants, the plaintiff appeals.

The plaintiff State of Oregon upon the relation of E.L. Peterson, Director of Agriculture, brings this suit against R.C. Woodruff and Ray C. Smith, co-partners, doing business as the Lost River Dairy. In addition to various recitals concerning the law, the complaint alleges that the defendants were duly licensed under the Milk Control Law as milk dealers authorized to receive, handle and sell fluid milk suitable for human consumption in the Klamath Falls production and sales area, that as such dealers and licensees they received and handled in the City of Klamath Falls, Oregon, a total of 357,962.59 pounds of butterfat suitable for sale as fluid milk and cream for human consumption and by reason thereof there became due and owing as license fee the sum of $1,789.81, and that the defendants have paid the sum of $968.87, leaving a balance of $820.94, for which judgment is prayed.

In their answer the defendants admit that they were duly licensed milk dealers, that as such during the period in question they received and handled a total of 193,775.60 pounds of butterfat as fluid milk and cream for human consumption and no more, and that on account thereof there became due and owing as license fee the sum of $968.87 which the defendants have paid.

By stipulation the cause was tried by the court without a jury. The court made findings of fact and conclusions of law adverse to the contention of the plaintiff to which objections were filed and overruled. Proposed substitute findings as submitted by the plaintiff were rejected and judgment entered dismissing plaintiff's complaint.

The findings, which have the effect of a special verdict by a jury, after the recital of formal matters continue:

"IV. That defendants as such milk dealers and licensees between May, 1942, and November 30, 1944, inclusive, received and handled at Klamath Falls, Oregon, a total of 193,775.60 pounds of butterfat as fluid milk and cream for human consumption and no more, and by reason thereof there became due and owing as license fees the sum of $968.87, which fees defendants have paid to plaintiff and his predecessor, the Milk Control Board.

"V. (a) That during said period defendants purchased in California for sale in California, 164,186.99 pounds of butterfat bringing the same to its plant in Klamath Falls, Oregon, and there pasteurizing the same, and then pursuant to contracts entered into without the State of Oregon, sold and delivered the same in 10 gallon cans to War Relocation Authority at Tulelake, California; that payment for same was made to defendants in California.

"(b) That the contracts for the sale of the milk referred to in this paragraph V provided and specified that said milk should be `Factory Milk' and that the bacterial count of the pasteurized milk should not exceed 50,000 and that the raw milk prior to pasteurization might be produced on farms acceptable to the Oregon State Department of Agriculture for factory milk in order to procure the quantity demanded, raw milk of higher quality being unavailable in the quantity demanded.

"(c) That the milk referred to in this paragraph V was processed separately and after the processing of the milk referred to in Par. IV hereof.

"(d) That the milk referred to in this paragraph V was `Factory Milk.'

"(e) That the milk referred to in this paragraph V could not be sold in the State of Oregon for human consumption in fluid form.

"(f) That defendants were not licensed under the Milk Control Law to so sell any milk in the State of California and that the sales referred to in this paragraph V were not made by defendants as such licensees.

"VI. That plaintiff demanded payment from defendants of the sum of $820.94 as license fees for the butterfat described in paragraph V hereof and that defendants refused to pay the same or any part thereof."

The court concluded as a matter of law that defendants were not liable.

BRAND, J.

The undisputed evidence shows that during the period in issue the defendants have paid the license fee at the statutory rate upon 193,775.60 pounds of butterfat sold in the State of Oregon as fluid milk and cream and for human consumption. The amount for which suit is brought represents a poundage fee calculated at the statutory rate upon the balance of 164,186.99 pounds of butterfat which the defendants received and handled in Oregon but sold in California. Both the contract to sell and the sales were made in California. The product was delivered by the defendants to the War Relocation Authority at Tule Lake, California, and payment was made in that state.

1, 2. The burden of proof is upon plaintiff to show the poundage of butterfat for which the fee became due. There is no evidence that the defendants received and handled within this state, for sale in this state, any milk as defined by statute in excess of the amount on which the fee has been paid. The plaintiff asserts that findings of fact (except No. 6) are not supported by substantial evidence. Some of the findings appear to be mixed statements of fact and law. But in view of the burden of proof and the condition of the evidence to which we have referred, we hold that there is support for the only findings which are essential to the decision. The court specifically found that the milk sold in California was processed separately after the processing of the milk sold in Oregon. While there was some conflict in the testimony on that issue, the finding of the trial judge is conclusive. The parties have expressly agreed upon an exact statement of the issue to be determined by this court. We quote:

"The essential issue involved in this appeal is whether or not the plaintiff, as Director of Agriculture of the State of Oregon, is entitled to poundage fees on 164,186.99 pounds of butterfat received and handled by the defendants at their milk plant in Klamath Falls, Oregon, and sold to the War Relocation Authority at Tule Lake, California, for human consumption in fluid form by the Japanese interned at Tule Lake. If the plaintiff is entitled to such poundage fees, then the judgment entered is erroneous and requires reversal. On the other hand, if the plaintiff is not entitled to the poundage fees on that quantity of butterfat sold to California, then the judgment should be affirmed."

The defendants concede that they were milk dealers and licensees under the provisions of the Oregon Milk Control Law; but in substance they contend that under the statute they became liable only for poundage fees for milk sold by them as such licensees and milk dealers and that the milk received and handled by them at Klamath Falls but contracted, sold and delivered in California was not received or handled by them as licensees or milk dealers within the meaning of the statute.

In quoting from the statute we shall italicize for the purpose of emphasis. The statute provides in part:

"Definitions. * * * `Milk dealer' means any person who purchases or handles milk within the state for sale in this state, or sells milk within the state, except when consumed on the premises where sold; * * *

"`Producer' means a person producing milk within the state of Oregon; * * *

"`Milk' means fluid milk and sweet cream sold for human consumption in fluid form; * * *." O.C.L.A. § 34-1001.

In the section entit...