State ex rel. Thomason v. Roth

• Decision Date: 11 November 1963
• Docket Number: No. 2,No. 49654,49654,2
• Citation: 372 S.W.2d 94
• Parties: The STATE of Missouri, at the Relation of Don THOMASON, Commissioner of Agriculture, Appellant, v. Wilfred E. ROTH, doing business as Wimpy's IGA Foodliner, Respondent
• Court: Missouri Supreme Court

Page 94

372 S.W.2d 94

The STATE of Missouri, at the Relation of Don THOMASON Commissioner of Agriculture, Appellant, v. Wilfred E. ROTH, doing business as Wimpy's IGA Foodliner, Respondent.

No. 49654.

Supreme Court of Missouri, Division No. 2.

Nov. 11, 1963.

Thomas F. Eagleton, Atty. Gen., Wayne W. Waldo, John H. Denman, Asst. Attys. Gen., Jefferson City, for appellant.

Roberts & Roberts, Farmington, for respondent.

STOCKARD, Commissioner.

This is an appeal by the State of Missouri from a judgment dismissing its petition in a suit brought at the relation of Don Thomason, Commissioner of Agriculture, under the Unfair Milk Sales Practices Act (hereafter referred to as the 'Act'), Sections 416.410 to 416.560 (all statutory references are to RSMo 1959, V.A.M.S.), to enjoin certain alleged illegal practices by Wilfred E. Roth, doing business as Wimpy's IGA Foodliner at Ste. Genevieve, Missouri. Before referring to the allegations of the petition we shall set forth the provisions of the Act relevant to this appeal.

Section 416.410 defines certain terms, and subsection (10) thereof defines a 'Nonprocessing retailer' as 'any person, not a processor [defined to be any person who is engaged in the business of processing or packaging bulk milk or other materials into milk products], engaged in the business of transferring title within the state to milk products for a consideration where such product is to be used or consumed by the purchaser and is not to be resold or used for the purpose of manufacture or further processing.' Section 416.425 provides that 'No nonprocessing retailer shall, with the intent or with the effect of unfairly diverting trade from a competitor, or otherwise injuring a competitor, or of destroying competition, or of creating a monopoly, advertise, offer to sell or sell within the state of Missouri, any milk product for less than cost to the retailer.' Section 416.480 of the Act provides that 'The remedies provided for in sections 416.410 to 416.560 are exclusive and no criminal fines or penalties shall be imposed for violation of sections 416.410 to 416.560.'

One such remedy is provided for by Section 416.450 as follows: 'In any case in which a complaint is made in writing to the commissioner by a person claiming to be injured because milk products are being offered for sale or sold in violation of the provisions of sections 416.410 to 416.560, the commissioner shall forthwith cause an investigation to be made of the complaint, and if, in the judgment of the commissioner, the investigation reveals that there is probable cause for the complaint, the commissioner shall call upon the attorney general or the prosecuting attorney of any county in which a violation of the provisions of sections 416.410 to 416.560 occurs to institute an injunction suit in a court of competent jurisdiction of the county in which the alleged violations took place to restrain the violations of sections 416.410 to 416.560 as may be revealed by the investigation; and it is the duty of the attorney general or prosecuting attorney to institute and prosecute the injunction suits.' In connection with this remedy, Section 416.475 provides that upon the filing of the complaint referred to in Section 416.450, 'the commissioner shall require of the complainant, a bond in the sum of one thousand dollars to defray the expenses of the necessary investigation incident to the complaint.'

Another remedy is provided for in Section 416.455. 'Any person who is injured in business or property by reason of another person's violation of any provision of sections 416.410 to 416.560 may intervene in the suit for injunction instituted pursuant to section 416.450, against the other person or he may bring a separate action and recover three times the actual damages sustained as a result of the violation, together with the sosts of the suit, or may sue to enjoin the violation of any provision of sections 416.410 to 416.560.'

Sections 416.490 and 416.505 provide for a third remedy, but it is limited to violations of the Act on the part of 'any person' who operates 'a milk or milk products manufacturing or processing plant' within this state, or without this state and sells, offers for sale or distributes milk or milk products in this state. There is no contention that defendant is included within this classification. Such persons are required to obtain a license from the Commissioner who is 'authorized and empowered to suspend or revoke the license of any person * * * or refuse to issue a license to any applicant therefor if the commissioner, after a public hearing, has found that the applicant has violated any of the provisions of sections 416.410 to 416.560, or the rules and regulations adopted hereunder.' In the event any such person is making sales within this state without first having acquired a license from the Commissioner, 'the attorney general or the prosecuting attorney shall bring suit * * * to enjoin the sales or distribution of milk or milk products.' In addition, the Commissioner, or his authorized agents or representatives, are authorized and empowered to issue and enforce a written 'stop-sale' order to the owner or custodian of the milk products.

We turn now to the allegations of the petition in this case. It alleged that Wilfred E. Roth is a retail merchant in Ste. Genevieve, Missouri, doing business as Wimpy's IGA Foodliner; that he is a nonprocessing retailer as defined in the Act, and that he is engaged in the business of selling milk products; that on April 2, 1962, he violated Section 416.425 in that he offered for sale and sold two one-half gallon cartons of Grade 'A' milk for the price and consideration of fifty-five cents, and the sale of said milk products at said price was a sale for less than cost to the defendant retailer; and that all of this was done with the intent or with the effect of unfairly diverting trade from a competitor, or otherwise injuring a competitor, or of destroying competition or of creating a monopoly. In the reply it was admitted that the Commissioner 'has not received a complaint in writing specifically alleging that the defendant had sold or offered for sale milk products in violation of the various provisions of sections 416.410 to 416.560,' but it was alleged that the Commissioner 'has received many oral complaints against the defendant by persons claiming to be injured' by his sales of milk in violation of the Act, that he had investigated the...