420 P.2d 379 | Or. | 1967
This is a declaratory suit to test the validity of a milk-price-stabilization rule promulgated by the State Department of Agriculture under the authority of ORS 583.405 to 583.545. The Department appeals a decree strildng down the regulation.
Plaintiffs are engaged in the processing and sale of dairy products. They operate processing plants in Oregon and import a substantial portion of their milk requirements from outside the state. The remainder of their requirements are obtained from producers
In order to prevent the destruction of a state-wide milk-priee-stabilization scheme, the Department promulgated Oregon Administrative Eegulation 603-06-052,
It is not disputed that the legitimate exercise of a state’s police power to protect the life, liberty, health or property of its citizens will be upheld against the claim of federal supremacy
The Oregon Milk Stabilization Act was adopted for the declared purpose of assuring a wholesome product for the benefit of the consuming public, providing the necessary assistance and authority to maintain a stable milk market, and sustaining the economy of the dairy industry and the economic welfare of the state of Oregon. ORS 583.410 (1). All of these are legitimate state purposes. Nebbia v. New York, 291 US 502, 54 S Ct 505, 78 L Ed 940, 89 ALR 1469 (1934); Baldwin v. Seelig, supra. See also Savage v. Martin, 161 Or 660, 91 P2d 273 (1939).
The legislative scheme, insofar as pertinent to the questions presented here, contemplates a bookkeeping “pool” of all milk produced by Oregon farmers so that each will receive the same “blend” price regardless of the actual use of his milk by the handler. Milk handlers are required to report to the state administrator their respective Class 1 and Class 2 sales of milk. Each handler is charged by the pool the minimum producer prices for Class 1 and Class 2 milk established by the Department for all milk allocated by the handler respectively to Class 1 and Class 2 use. The amounts
To illustrate the effect of the challenged regulation within the context of the statutory scheme, suppose a handler who processes 100 units of milk is able to import only 40 units of foreign milk per month and must purchase his remaining 60 units from local producers. He operates at a plant-capacity level which makes it most profitable for him to allocate 50 units to Class 1 use and 50 units to Class 2 use. Without the regulation, a handler could buy foreign milk at lower prices than the pool price for domestic milk. He could allocate all 40 units (or 100%) of his foreign milk to Class 1 use. He then could allocate 10 units of his domestic milk to Class 1 use to make his 50 units for Class 1 purposes. Finally, 'he could allocate the remaining 50 domestic units to Class 2 use.
Regardless of the amount of domestic milk which the handler actually allocates to Class 1, he must report to the Department as if he had allocated a percentage of domestic milk for Class 1 use equivalent to the proportionate amount of his total milk supply which he actually allocates to Class 1 use; and he must pay the blend price for his domestic milk regardless of his actual utilization of domestic milk.
Plaintiffs argue that the only course of action remaining open to them under the regulation is to reduce their volume of imported milk.
However, it is an economic fact of life that the volume of foreign milk the handler will buy will de
In the case at bar, for example, the trial exhibits reveal that neither plaintiff has reduced its purchases from foreign producers since the publication of the challenged regulation. On the contrary, with the exception of Arden’s out-of-state purchases in March, 1965, both handlers have increased the amounts of foreign milk bought monthly over corresponding months in 1964. Furthermore, the record shows that Carnation has not varied its practice of allocating 100% of foreign milk to Class 1 use, and Arden Farms, as late as April, 1965, allocated 93.89% of foreign milk to Class 1 use. Other potential variables, such as minimum prices in Oregon and the market-pool ratio of. Class 1 to Class 2 use, have remained constant. The fact that foreign-milk purchases have risen since the publication of the regulation, without any change in the other possible variables, directly contradicts the assertion that the regulation has caused discrimination against, or an unreasonable burden upon, interstate
The case of Polar Co. v. Andrews, 875 US 361, 84 S Ct 378, 11 L Ed2d 389 (1964), is distinguishable from the present case. The statute which was successfully challenged on commerce grounds in the Polar case provided, first, that any milk distributor in the Pensacola (Florida) Milk Marketing Area must pay a minimum price of 61 cents per gallon for all milk purchased from Pensacola producers and sold in Florida as “Class I” milk. Second, it established a method of allocation which resulted in all of Polar’s Class I sales being attributed solely to its Pensacola producers. These statutory provisions had been construed to mean as well that a Florida distributor in a regulated marketing area must accept from his local producers all the milk tendered, including milk in excess of Class I needs. Finally, it prohibited termination (except for cause) of business relationships between a distributor and producer with whom the distributor has had a continuous course of dealings. The court, interpreting the statute, wrote:
“Under the controls challenged here, Polar must buy from its Florida producers, and pay 61 cents per gallon for it, an amount of raw milk equal to its Class I sales if it is available from these producers. If more than this amount is offered, Polar must also take the surplus at the lower established prices. And these obligations continue to bind Polar even though both its Class I needs and the surplus obtainable from Florida producers may steadily increase. Polar obviously will not and cannot use outside milk for those uses for which it is required to use Florida milk. Polar may turn to out-of-state sources only after exhausting the supply offered by its Pensacola producers. Under the challenged*222 regulations, an Alabama dairy farmer could not become one of Polar’s regular producers and sell all of his milk to that company. Since he could not share in the Class I market — Pensacola producers are probably able to supply that market — his milk could command only the lower prices applicable to the less remunerative uses, prices which would not cover his cost of production.” Polar Co. v. Andrews, 375 US at 375-376.
Florida attempted to pre-empt its market for its own producers to the exclusion of production from other areas. The attempt to prohibit the introduction within her territory of milk of wholesome quality acquired in another state was a direct burden on commerce.
In the case at bar the regulation has been aimed only at the reporting of utilization of foreign milk in such a way as to destroy the Oregon price structure.
To come within the holding of the Polar case, Oregon’s challenged regulation would have to require that handlers must purchase a minimum amount of Oregon-produced milk at Class 1 prices before the handlers could look to secondary sources of supply. This the Oregon regulation does not do. We are satisfied that any burden upon interstate commerce incidental to the preservation of the Oregon market pool is so negli
Contending that the Department is without authority to promulgate the challenged regulations, plaintiffs cite many cases for general propositions of statutory interpretation, none of which require this court to adopt their point of view. Simply stated, they argue that the legislature never intended to delegate authority to the Department of Agriculture to enact regulation which would assure a high or stable price structure for local producers of milk. The statute, according to this argument, merely provides a system of equalization and an agency to handle the accounting. If more had been intended, say the plaintiffs, the legislature would have been more specific.
The prime reason for rejecting this argument is that the whole system of equalization and the attempt to assure a sound market for local producers could be undermined if handlers were permitted to take advantage of the legislatively supported Class 1 retail market and at the same time actively depress the blend price to be paid Oregon producers.
It is clear that the Department seeks only to inhibit plaintiffs from using Oregon-produced milk for the purpose of depressing the Oregon blend price by allocating such milk almost entirely to Class 2 sales. The rule does not reduce competition from foreign producers nor does it regulate actual use of foreign milk by Oregon handlers. The rule requires, in the interest of price stability, that Oregon handlers do not report usage of Oregon milk for Class 2 purposes at a percentage rate grossly disproportionate from their actual plant-utilization ratio for all milk.
The legislature, intending primarily to. stabilize the
“* * * [T]he department shall * * *
U# # # # #
“(b) Promulgate rules and regulations * * * after a public hearing relating to milk pooling, classification of use, allocation of classification, producer payments and contracts and such other rules as are reasonable and necessary for the enforcement of OES 583.006 to 583.166
ÍÍ# * * # # V
OES 583.410 (2) provides:
“The provisions of OES 583.002, 583.004, and 583.405 to 583.545 are in pari materia with the provisions of OES 583.006 to 583.166 * *
We hold that the challenged rule is necessary, reasonable, and proper for the enforcement of the Oregon milk-marketing laws. Curly’s Dairy v. Dept. of Agriculture, 244 Or 13, 415 P2d 740 (1966).
The rule bears a reasonable relation to the accomplishment of a valid legislative purpose. It is not arbitrary. There is no discrimination among handlers, since the formula treats all in the same class alike. Handlers who import all of their milk are exempt from the regulation. All handlers who import a portion of their requirements from foreign states and purchase the remainder of their needs from Oregon producers are treated alike. They are forbidden to use their Ore
The decree is reversed.
Oregon Administrative Rules, ch 603, 06-052. “UTILIZATION OF MILK BY OREGON HANDLERS. (1) ‘Class 1 utilization’ for the purpose of this section, means the total utilization of all Class 1 milk (includes but not limited to all such milk purchased, received, processed or sold) by an Oregon handler or first handler located in or doing business in a market area where a market pool has been established, regardless of the source or the location of the producers of the milk.
“(2) Each Oregon handler shall allocate utilization to his Oregon suppliers on the same percentage basis as his actual total plant utilization of Class 1 and Class 2 milk.”
The fact that milk is fungible makes the actual use of any given producer’s milk irrelevant under a blend-price system.
United States Constitution.
Article VI: “* * * This Constitution, and the Laws of the United States which shall be made in Pursuance thereof * * * shall be the supreme Law of the Land * *
Article I, § 8: “* * * The Congress shall have Power To
See Hood & Sons v. Du Mond, 336 US 525, 69 S Ct 657, 93 L Ed 865 (1937), striking down a New York order denying a license to a milk distributor solely to prevent the export of milk to Massachusetts.
See Curly’s Dairy v. Dept. of Agriculture, 244 Or 13, 415 P2d 740 (1966), for a description, of the pool system and its stabilizing effect upon milk prices.
The challenged regulation has no application to an Oregon handler which imports 100% of its milk requirements from other states.