Zeigler v. People

• Decision Date: 30 March 1942
• Docket Number: 14643.
• Citation: 124 P.2d 593,109 Colo. 252
• Parties: ZEIGLER v. PEOPLE.
• Court: Colorado Supreme Court

124 P.2d 593

109 Colo. 252

ZEIGLER v. PEOPLE.

No. 14643.

Supreme Court of Colorado, En Banc.

March 30, 1942

Error to District Court, Logan County; H. E. Munson, Judge.

T. F Zeigler was convicted of engaging in the business of a dealer in farm produce without having procured a license, and he brings error.

Judgment affirmed.

T. E. Munson, of Sterling, for plaintiff in error.

Byron G. Rogers, Atty. Gen., Reid Williams, Asst. Atty. Gen., Gail L. Ireland, Atty. Gen., H. Lawrence Hinkley Deputy Atty. Gen., and Robert L. Gee, Asst. Atty. Gen., for defendant in error.

JACKSON Justice.

This case involves the validity of what is known as the 'Produce Dealers' Act,' being chapter 90 of the Session Laws of 1937, p. 295. This law is the result of a gradual development starting in 1915 when the state legislature, in chapter 54 of the Session Laws of 1915, p 156, enacted a law regulating the business of 'Commission Merchants' and provided for their licensing and bonding and for penalties for violation of the act. Chapter 72 of the Session Laws of 1929, p. 277, set up a new officer, the Colorado director of markets, to whom application should be made for issuance of licenses in place of the secretary of state, who was the officer placed in control under the 1915 act, and the title of the act was also considerably broadened to resemble more nearly the title of the present 1937 act. By chapter 66 of the Session Laws of 1931, p. 213, the term 'Commission Merchant' was defined so as to include the word 'Broker'. Chapter 92 of the Session Laws of 1935, p. 319, goes a step further and uses the word 'Broker' in a separate category from commission merchant. The 1937 act, like the previous ones, has definitions of 'Commission Merchant' and 'Farm Produce.' It also defines new terms, including that of 'Dealer' which reads as follows: 'The term 'Dealer' means any person engaged in the business of buying any farm produce from the owner for resale; provided that the term 'Dealer' as herein defined shall not include bona fide retail grocery merchants or processors of farm products or manufacturers of products therefrom having a fixed or established place of business in this state.' S.L.'37, c. 90, § 1(h).

The definition of 'farm produce' under the 1937 act reads as follows: 'The term 'Farm Produce' or 'Farm Products' shall include all agricultural, horticultural, vitacultural, fruit and vegetable products of the soil, livestock and livestock products, and honey, but shall not include poultry and poultry products, or timber products, milk and milk products.' S.L.'37, c. 90, § 1(c).

The definition of 'farm produce' has varied under the different acts. Thus the 1915, 1929 and 1931 acts included, inter alia, meats, poultry, eggs, dairy products, and honey. The 1935 act specifically excludes livestock, meats, poultry, eggs and dairy products, and this exclusion of poultry and poultry products and milk and milk products still continues in the 1937 act; but honey is again included in the definition of 'farm produce' under the 1937 act and for the first time the 1937 act includes in the definition of 'farm produce' livestock and livestock products. The act of 1937, therefore, which repeals and supersedes all previous acts, expressly enlarged both the type of persons to be brought under the act, namely: dealers as well as commission merchants, brokers and agents, and also added livestock and livestock products in its classification of farm produce coming under the subject matter of the act. It also, as will be seen later, added and defined the term 'cash buyer'.

It is because of the enlarged scope of the 1937 law that plaintiff in error in this case, who was the defendant below and to whom we will refer as defendant, found himself brought within the purview of the act. A criminal information was filed against him by the district attorney in the district court of Logan County for its violation. The first count alleged that the defendant engaged in the business of a dealer in farm produce without having procured a license as required by that law; the second count related to a particular purchase of livestock made by defendant in violation of the law. The district court, after argument, found the defendant guilty as charged in each count and fined him the total sum of $25 and costs. The case now comes here on writ of error.

The facts are set out in a stipulation between the parties hereto. This recites that the defendant was engaged in buying livestock from farmers, owners and producers thereof for resale; that he was so engaged from July 1, 1938 until April 17, 1939, during which period he purchased such livestock for resale on various dates, at various places in Logan County. He never paid for this livestock with money, but always by checks drawn on a bank in Sterling, Colorado.

The particular transaction in the second count is then admitted, in which defendant paid $4,000 by check on the bank with which he did business to the Propst Livestock Company on September 9, 1938, for 108 head of weaning calves, 28 head of cows and one small calf and took possession of these animals. This check and all other checks which he gave in payment of purchases of livestock were duly honored by the bank on which drawn.

Defendant obtained a license as dealer under the Produce Dealers' Act for the period from July 1, 1937 to July 1, 1938, but did not obtain one for the ensuing year from July 1, 1938 to July 1, 1939, claiming to be exempt from the act by reason of the fact that all produce bought by him was paid for at the time of delivery and that he made payment by checks on his bank where he keeps ample funds on deposit to meet checks drawn by him.

It further appears that defendant owns two farms, pasture land and three feed yards; that he buys cattle and feeds them for himself and later sells them, so that as to some stock he buys and sells, while in other cases he buys and feeds and sells.

Defendant's first position is that he does not come within the terms of the act because of the fact that he is not subject to its provisions by reason of section 2 thereof which exempts the following classes of persons:

'(a) Any person buying farm produce for the purpose of reselling the same in artificially dried, processed, canned or other preserved form or processor of farm products or manufacturers of products therefrom.

'(b) Any person or exchange dealing in livestock and operating at a public livestock market and subject to and operating under a bond required by the United States to secure the performance of their obligations.

'(c) Any cash buyer.'

Counsel argues that defendant is exempt under subsection (a) as being a processor, in that the buying of cattle off of grass and putting them on feed and fattening them for the market comes under the definition of processing. We believe that the case of Kennedy v. State Board, 224 Iowa 405, 276 N.W. 205, 206, sufficiently answers that contention when it says: 'As the court understands the matter, processing is some change made in the natural product as the curing of meats, canning of vegetables and it has been held that the glazing of an eggshell to better preserve the egg is a processing. The growing of the article is not in the common use of the term a processing, but some change in the article after it is grown by means of special treatment is a processing.' (Italics ours.)

Defendant does not claim to be exempt under section 2(b), supra. His most seriously argued contention is that he is exempt under section 2(c) as a 'cash buyer.'

The definition of 'cash buyer' as set out in section 1(k) of the act is as follows: 'The term 'cash buyer' means any person other than a commission merchant or dealer who obtains from the producer thereof possession or control of any farm products by paying to the producer at the time of obtaining such possession or control the full agreed price of such commodity in lawful money of the United States or by exchange of farm products.'

This definition clearly does not include a person who pays by check. Defendant argues that a payment by check is in effect cash, and that the legislature did not intend to exclude payments by check. We cannot agree with this position. The definition itself does not include payment by check and the history of the development of the act indicates a definite intent to exclude payment by check. The 1935 act in defining those persons who come under the term 'commission merchant' for the purposes of that act, makes an exception of those who make a 'payment to said owner at the time of obtaining possession or control of the full purchase price of such commodity in lawful money of the United States, or its equivalent, * * *.' The omission of the words 'or its equivalent' after 'lawful money of the United States' in the 1937 act would indicate a definite legislative intent to narrow the term 'cash buyer' to one who actually pays for farm produce solely in lawful money of the United States or by exchange of farm products. The philosophy for thus excluding those who pay by check from the category of 'cash buyers' is set out in more detail in the case of State v. Mason, 94 Utah 501, 78 P.2d 920, 117 A.L.R. 330, where the Utah Supreme Court passes upon an act very similar to the one here under consideration. In that case the court makes clear that the legislative intent is to limit dealers to two classes, those who pay by actual lawful money of the United States and those who have been duly licensed by the state in accordance with the terms of the Act; that the very purpose of that provision is to protect the producers in the sales of their produce from unscrupulous and untrustworthy dealers whose checks prove to be worthless after the produce for...