Sunshine Dairy v. Peterson et al.

• Citation: 183 Or. 305,193 P.2d 543
• Parties: SUNSHINE DAIRY <I>v.</I> PETERSON, DIRECTOR OF DEPARTMENT OF AGRICULTURE OF THE STATE OF OREGON, and MULTNOMAH CREAMERY, A CORPORATION, ET AL.
• Decision Date: 11 May 1948
• Court: Oregon Supreme Court

183 Or. 305

193 P.2d 543

SUNSHINE DAIRY

v. PETERSON, DIRECTOR OF DEPARTMENT OF AGRICULTURE OF THE STATE OF OREGON, and MULTNOMAH CREAMERY, A CORPORATION, ET AL.

Supreme Court of Oregon.

Argued March 30, 1948.

Affirmed May 11, 1948.

Constitutional law — Statutes — Court — Construes statutes

1. The province of court is to ascertain what Legislature intended from language used, with such aid as may be found in rules of interpretation and legitimate extrinsic sources; to construe statutes, not to enact them; and to declare what Legislature has done, not what it should have done.

Statutes — Language — Plain — Unambiguous

2. Where language of a statute is plain and unambiguous, it needs no interpretation.

Statutes — Intent — Entire statute

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

Statutes — Intent — Language — Object — History

4. Legislative intent is deduced from a consideration of language used, object to be accomplished, history behind the act, and numerous other matters, no one of which is absolutely controlling.

Statutes — Remedial statute — Liberal construction

5. A remedial statute must be construed liberally so as to afford all the relief within power of court which language of act indicates that Legislature intended to grant.

Food — Milk Control Act

6. In construing the Milk Control Act, which is a remedial statute, it is proper to consider evils which Legislature declared to exist, although essential question in pending litigation relates to remedies which Legislature authorized in view of the declared evils. O.C.L.A. 34-1001 et seq.

Statutes — Preamble — Construction

7. The preamble of a statute is not an essential part thereof and neither enlarges nor confers powers, but, in a doubtful case, preamble may be considered in process of construction.

Food — Preamble — Milk Control Act — Date of adoption

8. The reference in preamble of Milk Control Act to the "present economic emergency" speaks only as of the date of adoption of act. Laws 1933, 2d Sp.Sess., c. 72. Food — Milk Control Act — Price fixing

9. The provision of the Milk Control Act giving Director of Agriculture power to supervise and regulate the milk industry, including production and sale of milk, standing alone, does not authorize price fixing. O.C.L.A. § 34-1003.

Food — Milk Control Act — Preamble

10. Neither title nor the declaration in preamble of Milk Control Act that distribution and sale of milk should be "supervised and controlled in the manner hereinafter provided" is indicative of general power in Director of Agriculture to fix prices. Laws 1933, 2d Sp.Sess., c. 72.

Food — Milk Control Act — Books and records — Price fixing

11. Section 34-1010 of the Milk Control Act requiring licensees to keep adequate books and records relative to milk received, sold, prices charged, market outlet, size and style of container, expense incurred, profit or loss and the like being appropriate to section 34-1012, which expressly delegates to Director of Agriculture the authority to fix certain prices, cannot be construed as an expression of legislative intent to confer a general price fixing authority upon director. O.C.L.A. §§ 34-1010, 34-1012.

Food — Milk Control Act — Expressio unius est exclusio alterius

12. Under the price fixing provision of Milk Control Act authorizing Director of Agriculture to fix minimum wholesale and retail prices for milk as charged by producers, milk dealers, stores and home distributors and authorizing the fixing of a price differential based upon differences in cost of such services, in light of the maxim, "expressio unius est exclusio alterius," Director may not make a price differential on basis of type of container in which milk is sold. O.C.L.A. 34-1012.

See Words and Phrases, Permanent Edition, for all other definitions of "Expressio Unius Est Exclusio Alterius".

Food — Statute — Including the following classes — Restricted

13. The statutory phrase "including the following classes," immediately following authorization to Director of Agriculture to fix minimum wholesale and retail prices to be charged for milk, was restricted in meaning only to classes listed and did not apply to proviso which specifically granted power to establish differentials in prices enumerated instances. O.C.L.A. § 34-1012.

Statutes — Delegation of power — Language

14. Where words and phrases efficacious to make a delegation of a power to fix prices are well understood and have been frequently used, court will assume, in construing an act of Legislature, that if Legislature had intended to grant a specified power to particular administrative agency, Legislature would have used appropriate language. Administrative law and procedure — Officers — Powers — Delegated — Authority — Affirmatively appear — Commission

15. In order to sustain jurisdiction of boards and officers exercising powers delegated to them by Legislature, their authority must affirmatively appear from commission under which they claim to act.

Administrative law and procedure — Commission — Limited powers

16. A commission created by Legislature to administer a statute is wholly limited in its powers by law of its creation, and such a body is not vested with discretion to ignore or transgress such limitations even to accomplish what body may deem to be laudible ends.

Courts — Statutory construction

17. Where question before court is one of statutory construction rather than constitutionality, sustaining of validity of a legislative classification is not a precedent for sustaining of a substantially similar administrative classification.

Food — Milk Control Act — Price

18. Provision of Milk Control Act that where various grades of milk are specified, a minimum "price" shall be fixed applicable to each grade, by use of the word "price" instead of "prices," indicates that as to various grades of milk there shall be only one price for each grade, subject to other provisions of law authorizing classification. O.C.L.A. § 34-1012.

Food — Standard — Grade

19. The word "standard," as used in section 34-1012, declaring what must be considered in fixing maximum prices and the standards or grades of milk to which they apply, does not mean something distinct from "grade," so that milk sold in paper cartons may be considered of a different "standard," in light of definition in section 34-201 for establishment of grades and standards based upon bacterial test, sediment content, acid content, flavor, odor, cleanliness and wholesomeness. O.C.L.A. §§ 34-201, 34-1012.

See Words and Phrases, Permanent Edition, for all other definitions of "Grade" and "Standard".

Food — Up charge — Statute — Milk

20. Administrative finding that price consumers pay for milk or cream includes cost of containers in which it is sold did not justify up-charge of one cent a quart of milk sold in cartons over price of milk sold in glass bottles, since statute contemplates that price paid shall cover all reasonable costs, including cost of getting milk to consumer in something that will contain it, but not including cost of a paper carton any more than it includes other cost such as the handling, washing and the like, of glass bottles. O.C.L.A. § 34-1012.

Food — Milk Control Act — Intent

21. The intent of Milk Control Act is that Director of Agriculture, in fixing prices in a given locality for each class of handlers of milk and for each grade of milk, shall consider overall condition of industry applicable to locality, class and grade in question, and determine minimum price which should be fixed which will prevent demoralization of industry and promote public welfare, and when reasonable representative costs have been determined, differentials in price between house to house sales by dealers and house to house deliveries by stores, sales on credit and sales by stores for cash are authorized, but such differentials must be based on differences of cost of various services. O.C.L.A. § 34-1012.

Administrative law and procedure — Constitutional law — Courts — Administrative order

22. Courts are not concerned with reasonableness of an administrative order if it is authorized by statute.

Food — Milk Control Act — Differential up-charge

23. The Milk Control Act does not authorize an order of Director of Agriculture fixing a differential up-charge in the price of milk sold in single service containers over that sold in bottles. O.C.L.A. §§ 34-1001 et seq., 34-1012.

Administrative law and procedure — Administrative remedies

24. The rule requiring a plaintiff to exhaust his administrative remedies before resorting to court has no application when attack upon administrative order is based upon contention that administrative body is without statutory power to issue the order.

                  See, 36 C.J.S., Food § 5
                  122 A.L.R. 1062
                  22 Am. Jur. 865
                

Appeal from Circuit Court, Marion County.

GEORGE R. DUNCAN, Judge.

Samuel B. Weinstein, Special Assistant Attorney General, of Portland, argued the cause for defendant-appellant. With him on the brief was George Neuner, Attorney General.

Nicholas Jaureguy, of Portland, argued the cause for respondent. On the brief were Cake, Jaureguy & Tooze, and Jay Bowerman, of Portland.

R.R. Bullivant, of Portland, argued the cause for intervenors-appellants. On the brief were Pendergrass, Spackman & Bullivant, of Portland.

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

Suit by plaintiff, a milk distributor, seeking an injunction restraining the defendant, Director of Agriculture, from enforcing his order which requires a compulsory upcharge of one cent in the minimum price of milk sold in fiber containers over the price required in the case of milk sold in glass bottles, and seeking a declaratory judgment that said order is beyond the statutory authority of the defendant. From a decree for plaintiff, the defendant, Director of Agriculture, and the intervenors appe...