316 Mass. 337 | Mass. | 1944
This is a petition to the Superior Court under § 21 of G. L. (Ter. Ed.) c. 94A, known as the milk control law, inserted by St. 1941, c. 691, § 2, for a review of proceedings of the milk control board which resulted in an order by the board alleged by the petitioner to be without authority of law.
When the case was here on a previous occasion, we held that, upon the allegations of the petition, the petitioner was a “person aggrieved” by the order within the meaning of the words “person aggrieved” in § 21; that it was entitled to a review under that section; and that a demurrer to the petition should have been overruled. American Can Co. v. Milk Control Board, 313 Mass. 156. The case has since been
The order complained of is paragraph 5 of “Article Y” of a comprehensive general order, entitled “Official Order No. G17-504 Effective May 30,1942,” applicable to “Milk-Marketing Area No. 17,” which comprises Boston and a number of cities and towns in its vicinity. The general order, in “Article II” and “Article III,” contains detailed wholesale and retail price schedules for unit quantities of different grades and kinds of milk, buttermilk, and cream, all of which are within the definition of “milk” in § 1 of the milk control law. Paragraph 5 of “Article V” reads, “A non-refundable minimum container charge of per container shall be made over and above the applicable minimum wholesale and retail prices set forth in Articles II and III above where milk and/or cream is sold in single service paper containers by milk dealers or by stores.”
At the hearing on the merits in the Superior Court the truth was admitted of the facts stated in the first eight paragraphs of the petition. These are in substance that the petitioner owns machinery and equipment used for the sole purpose of packaging milk and milk products in paper containers and is engaged in the business of leasing or selling such machines and containers and has invested large sums of money in the business, and that paragraph 5 of “Article V” deprives the petitioner of a substantial and valuable market for its machinery, equipment, and paper containers and makes it impossible for the petitioner to do business with milk producers and dealers in the Greater Boston market. In other words, the board admitted in substance that the additional charge of one cent for each unit of milk sold in a paper container over and above the price of the same unit of milk sold in a glass bottle or in some other container was prohibitive and prevented the petitioner from doing business in the area.
Although the extra one cent charge is described in the order as a “container charge,” we think it should not be construed as fixing a separate price for the container as such,
Section 11 (b) provides that a minimum price order may classify milk “by such forms, classes, grades or uses as the board may deem advisable,” and § 10 provides that in establishing minimum prices the board “shall cause said prices to be fair, just and reasonable, and, to accomplish that end, shall take into consideration and be guided by costs of production, hauling, handling, processing, storage, distribution and other cost factors involved in the production and marketing of milk . . ..” Under these provisions, and in accordance with a fair construction of the law as a whole, the board in fixing minimum prices can take into account not only the kind or quality of the product sold but the entire service rendered by the seller in making the sale, so that a higher minimum price can be fixed for milk that is delivered at the residence of the buyer than for the same kind and quantity of milk not so delivered, and a higher minimum price can be fixed for milk where the container is furnished than where it is not furnished. But all price classifications and all rules in respect to prices must bear some rational relation to the expressed purpose of the law to provide for the establishing of minimum prices for
The petitioner contends that the very voluminous transcript of the hearings before the board which was filed with the petition in the Superior Court contains no evidence tending to show that the cost of supplying milk in paper
The presently important part of the decree is the latter part, which enjoins the board from issuing or promulgating in the future any oi der or regulation imposing a nonrefundable container charge where milk or cream is sold in single service paper containers by milk dealers or stores. We think this part of the decree goes too far. Whatever may now be the fact, and whatever may be the deficiencies in the present record, we do not see how it is now possible to determine for all time that at no future hearings can it be shown that the use of the single service paper container is a more expensive method of packaging milk than the use of other containers, so that the dealer using it renders a higher cost service which purchasers may for some reason prefer and for which they may fairly be required to pay a proportionately higher price. There can be no doubt that a dealer who delivers in a paper container renders a service different from that of a dealer who delivers in a glass bottle, for example. The fact that the glass bottle must be returned, while the paper container is used but once and is not returned, may be a substantial difference. There may be other differences that affect the quality of
We need not determine whether an injunction against the making of other future orders by the board is ever properly a part of the final decree in a proceeding under § 21 for the review of a particular order previously made.
The decree is to be modified by omitting the part relating to the issuing or promulgating of future orders, and as so modified is affirmed.
Ordered accordingly.