Sunny Brook Farms v. Omdahl
Decision Date | 01 July 1953 |
Docket Number | No. 32230,32230 |
Citation | 42 Wn.2d 788,259 P.2d 383 |
Parties | SUNNY BROOK FARMS, v. OMDAHL, Director of Agriculture. |
Court | Washington Supreme Court |
Smith Troy, former Atty. Gen., Don Eastvold, Atty. Gen., William C. Klein, Asst. Atty. Gen., for appellant.
Scott, Langhorne & McGavick, Tacoma, for respondent.
This is an appeal from a decree, entered May 19, 1952, restraining defendant, as director of agriculture of the state of Washington, his servants, agents, and employees
'* * * from suspending the permit of the plaintiff to sell, and to offer for sale, milk and milk products ad defined in Chapter 168 of the Laws of 1949 of the State of Washington, in the State of Washington, upon the basis of the statements contained in defendant's written notice to plaintiff, upon the trial of this cause.'
Defendant (appellant) urges, inter alia, that the trial court should not have enjoined defendant's actions, because plaintiff had neither exhausted nor availed itself of the administrative remedy provided by statute. Plaintiff cross-appeals from the finding of the trial court that it
'* * * makes no finding on the constitutionality of Section 3, Chapter 168 of Laws of 1949,' which plaintiff claims to be unconstitutional.
The evidence discloses that defendant's inspector obtained a quart carton of milk on September 19, 1951, from a retail market. The sealed carton bore plaintiff's label and advertisement. Upon analysis of the contents, by a competent chemist, it appeared that the milk had been adulterated by the addition of water.
October 5, 1951, defendant wrote plaintiff:
This action was commenced in Thurston county, October 9, 1951, the day before the permit suspension became effective. Plaintiff did not request a hearing before the director as provided by statute. A temporary restraining order was issued against defendant. It was extended, pendente lite, on November 13, 1951. The case was tried January 23, 1952. It was presented on appeal to this court May 13, 1953.
The statutes applicable for consideration are these:
Section 1(n) of the Fluid Milk and Fluid Milk Products Act, Laws of 1949, chapter 168, p. 432, Rem.Supp.1949, § 6266-30(n), RCW 15.36.030, provides:
'Any milk to which water has been added, * * * shall be deemed adulterated.'
Section 2 of the act, Laws of 1949, chapter 168, p. 433, Rem.Supp.1949, § 6266-31, RCW 15.36.070 omits the words in brackets, provides in part:
Section 3 of the act, Laws of 1949, chapter 168, p. 434, Rem.Supp.1949, § 6266-32, RCW 15.36.080 omits the words in brackets and refers to 'chapter' instead of 'act', provides in full 'It shall be unlawful for any person to transport, or to sell, or offer for sale, or to have in storage where milk or milk products are sold or served, any milk or milk product defined in this act, who does not possess a permit from the Director [of Agriculture] or an authorized inspection service as defined in this act.
'Such a permit may be temporarily suspended by the Director [of Agriculture] or health officer of a milk inspection unit upon violation by the holder of any of the terms of this act, or for interference with the Director [of Agriculture] or health officer of a milk inspection unit in the performance of his duties, or revoked after an opportunity for a hearing by the Director [of Agriculture] upon serious or repeated violations.'
Section 18(b) of the act, Laws of 1949, chapter 168, p. 458, Rem.Supp. 1949, § 6266-46(b), RCW 15.36.580 omits the words in brackets and refers to 'chapter' instead of 'act', provides:
A 'milk distributor' is defined in the act as
'* * * any person who offers for sale or sells to another any milk or milk products for human consumption as such.' Laws of 1949, chapter 168, § 1(p), p. 432, Rem.Supp.1949, § 6266-30(p), RCW 15.36.040.
Plaintiff alleges in its complaint that it is engaged in the general dairy business, including the purchasing, processing, and wholesale selling of milk and milk products for human consumption, operating under a permit issued by defendant 'to sell milk and milk products as defined in the Washington Uniform Fluid Milk act, Chapter 168, Laws of 1949, in the State of Washington.'
Plaintiff, as a distributor of milk, operating under a permit from the state director of agriculture, is subject to the controls of the Fluid Milk and Fluid Milk Products act. It was charged with offering for sale milk which had been adulterated with water. In protection of the public, the defendant not only has the right but the duty to suspend permits, under authority of section three of the act, when he has reasonable grounds to believe that provisions of the act have been violated.
It would have been more accurate, had defendant designated in his letter of October 5, 1951, that he was temporarily suspending plaintiff's permit, for that is the extent to which he was authorized to act, without notice, under section three. He cannot revoke a permit without a hearing. Plaintiff, however, could not have been misled by this.
'Suspension' is defined in Bouvier's Law Dictionary, (3rd Rev.Rawle's 8th Ed.) 3212, as follows:
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