State v. Auclair

• Decision Date: 03 January 1939
• Docket Number: No. 367.,367.
• Parties: STATE v. AUCLAIR.
• Court: Vermont Supreme Court

4 A.2d 107

STATE

v. AUCLAIR.

No. 367.

Supreme Court of Vermont. Chittenden.

Jan. 3, 1939.

[Copyrighted material omitted.]

[Copyrighted material omitted.]

Exceptions from Chittenden Municipal Court; Aaron H. Grout, Judge.

Arthur N. Auclair was charged with selling and delivering milk without a license. His demurrer to the information was overruled pro forma, and he brings exceptions.

Judgment affirmed and cause remanded.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

K. Paul Fennell, State's Atty., of Burlington, for the State.

J. H. Macomber and J. H. Macomber, Jr., both of Burlington, for respondent.

MOULTON, Chief Justice.

The information charges that the respondent "did * * * sell and deliver milk which he then and there produced when he * * * was not licensed as required by Section 7 of No. 99 of the Acts of 1937." The respondent has demurred, the demurrer has been overruled pro forma, and the cause is before us on his exceptions.

The grounds of the demurrer are (1) that the act is in conflict with sections 2, 5, and 6 of chapter 2 of the Constitution of Vermont, in that it attempts to delegate legislative powers to the milk control board, created by the act, (2) that it deprives the respondent of his property and property rights without due process of law, and denies him the equal protection of the law, in violation of section 1 of the 14th Amendment to the Constitution of the United States, U.S.C.A.Const, and (3) that it is void under articles 7 and 9 of chapter 1 of the Constitution of Vermont, for the same reasons as those last above stated.

No. 99, Acts of 1937, is entitled "An Act to Control the Distribution and Sale of Milk, and to Repeal Chapter 197 of the Public Laws." Section 1 is headed "General policy of act," and it is therein declared "that the production and distribution of milk is an industry of the state affected with a paramount public interest, in that the health of the public, and especially of infants and children, imperatively requires an uninterrupted continuance of an abundant supply of pure milk; that due to certain unfair, unjust, destructive and demoralizing trade practices carried on by those engaged in the production, sale and distribution of milk for human food, which are likely to result in the undermining of health regulations and standards, the dairy industry and the constant supply of pure milk to the inhabitants of the state are imperiled, and such conditions are a menace to the health, welfare and reasonable comfort of the inhabitants of the state. The general purpose of this act is to protect and promote the public welfare by insuring at all times an adequate supply of clean and pure milk and cream of proper quality to meet the needs of the inhabitants of this state, and to regulate the milk-marketing industry, and to control in general all milk sold or offered or exposed for sale to the inhabitants of this state, to the end that the public health shall not be menaced or jeopardized."

Section 2 contains definitions of various terms employed in the act, among them the following: "'Market' means any city, town or village, or two or more of the same, designated by the board as a natural marketing area" "'Distributor' means any person who produces and sells * * * milk daily within the state for consumption, disposition or use within the state * * *."

Section 3 creates a milk control board of three members, and provides for their compensation.

Section 4 provides that it shall be the duty of the board to be informed at all times as to the supply, production and quality of milk in the State, "that the public may be assured of an adequate daily production in the state of a proper quantity and quality"; and to be informed at all times as to the transportation, processing, storage and distribution of milk sold, consumed or used in the State. "To the end that no part of the state shall lose or have impaired its reasonable requirements of milk of a proper quality, the board shall have power to supervise, regulate and control the distribution and sale of milk within the state. To the end that the public shall be safeguarded and protected from the harm and economic loss it would sustain if the production of milk were substantially curtailed, the board shall procure the cooperation of those engaged in the industry to maintain fair and lawful trade practices. The authority herein conferred shall supplement and be in addition to but not in lieu of existing laws relating to transportation of milk, its inspection and testing, the powers of the state board of health and local health ordinances and regulations as now provided by law."

Section 5 is as follows: "Whenever the board shall determine, either upon complaint or upon its own initiative, after public notice and hearing, that the public health is menaced, jeopardized or likely to be impaired or deteriorated by the loss or substantial lessening of the supply of milk of proper quality in a specified market, the board shall fix the just reasonable minimum or maximum price, or both, that shall be paid producers or associations of producers by distributors, and the manner of payment, and the prices charged consumers and others for milk by distributors, as long as such condition is found to prevail in such market. In fixing such prices, the board shall investigate and ascertain what are reasonable costs and charges for producing, hauling, handling, processing and any other services performed in respect to milk, and determine what prices for milk in the several localities and markets in the state, and under varying conditions, will best protect the milk industry in the state and insure a sufficient quantity of pure and wholesome milk to adults and minors in the state, and will best promote the public interest. The board shall take into consideration the balance between production and consumption of milk, the costs of production and distribution, and the purchasing power of the public, and the amount necessary to yield a reasonable return to the producer and to the milk dealer. Prices so fixed need not be uniform in all markets and may be changed from time to time after such notice and public hearing as deemed by the board in the public interest. Nothing herein shall be construed to prohibit a producers co-operative, organized under the Public Laws, from blending the proceeds from the sale of its milk in all markets and all classifications, and distributing such to its members in accordance with the contract with its members, or from making deductions from sums due members in such sums as may be authorized by the membership to be so deducted.

Purchases by or sales to authorized officials of any town or city charity or public welfare department or by charitable organizations approved by such city or town officials for charitable uses shall be exempt from the price fixing provisions of this act."

Section 6 gives the board authority to accept established classes and grades of milk, or to establish such classes and grades, and to specify to what classes or grades the prices fixed pursuant to section 5 shall apply.

Section 7 provides that "All distributors in any market designated by said board shall be licensed by said board," prescribes the fee to be paid, and gives the board authority, after hearing and notice, to suspend or revoke a license for certain specified reasons.

Section 8 requires all distributors in any market specified by the board as one in which it is in the public interest to regulate the supply, production and quality of milk to keep such records and make such reports as the board may reasonably require, and gives any member of the board or its representative the right to enter and examine all places where milk is produced, handled, distributed or sold, and examine all books and records.

Section 9 gives the board the power to make orders, hold hearings, subpoena and examine under oath producers and distributors, their books, records, etc., and "any other person it deems necessary to carry out the purposes and intent of this act"; and authorizes the board to adopt, promulgate and enforce reasonable rules and regulations.

By Section 10, the money received from fees and penalties (the latter being the subject of Section 11) is established as a special fund to be paid out by the state treasurer upon warrant of the auditor of accounts for such purposes of the act as may be approved by the chairman of the board.

Certain other sections govern the procedure before the board and an appeal to the Supreme Court and the procedure therein.

The established rule is that every presumption is to be made in favor of the constitutionality of an act of the Legislature and it will not be declared unconstitutional without clear and irrefragable proof that it infringes the paramount law. Village of Waterbury v. Melendy, 109 Vt.——,

199 A. 236, 239, and cases cited. It "must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score." United States v. LaFranca, 282 U.S. 568, 574, 51 S.Ct. 278, 281, 75 L.Ed. 551; Central Vt. Ry. Co. v. Campbell, 108 Vt. 510, 523, 192 A. 1917, 11 A.L. R. 175; State v. Clement Nat. Bank, 84 Vt. 167, 199, 78 A. 944, Ann.Cas.1912D, 22. Our investigation must proceed with these principles clearly in view.

The claim that the act is in contravention of the 14th Amendment to the Federal Constitution, U.S.C.A. and Articles 7 and 9 of chapter 1 of the Constitution of Vermont is based upon the authority to fix prices given to the board by sec. 5 of the statute, which we have already quoted. It is argued that, since "prices * * * need not be uniform in all markets," and that producers' cooperatives and charitable organizations are exempted from its provisions, the act is discriminatory and a denial of due process, and the equal protection of law.

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