239 A.D. 640 | N.Y. App. Div. | 1934
This is a certiorari proceeding to review a determination of the Milk Control Board dated August 24, 1933. The defendants are the members of such Board.
By chapter 158 of the Laws of 1933 the Legislature enacted article 25 of the Agriculture and Markets Law known as the Milk Control Law which became effective on April 10, 1933. This law created the Milk Control Board and vested it with extensive authority to supervise and regulate the entire milk industry, including the production, transportation, manufacture, storage, distribution, delivery and sale of milk and milk products.
Prior to the enactment of this statute prices paid producers for milk were whatever the producers and their dealer agreed upon. The Board did not establish any price to be paid producers until May 16, 1933. On that date there became effective an order which required all milk dealers buying milk from producers to pay them a fixed price for it, substantially higher than the price which previously had been paid by dealers to producers.
That part of the statute which gives the Board authority to make determinations is found in section 308, subdivision 3, the relevant provisions of which are: “ The Board may decline to grant a license or may suspend or revoke a license already granted upon due notice and opportunity of hearing to the applicant or licensee, when satisfied of the existence of any of the following: * * * (b) That the milk dealer has failed to account and make payment without reasonable cause, for any milk purchased from a producer. * * *
Petitioner, a domestic corporation, is the owner and operator of a creamery at Webster Crossing, Livingston county, N. Y. It buys milk from many farmers in that locality and then ships the same to New York city for sale.
After the Milk Control Board was organized, petitioner, in accordance with the provisions of the statute, applied to it for a license to buy and sell milk. Accompanying the application was the license fee. A temporary permit was issued to petitioner which enabled it to conduct its business.
On July 27, 1933, petitioner received from defendants the following notice: “You will please take notice that on Thursday, August 3rd, 1933, at 3 p. ivl, D. S. T., at the offices of the Milk Control Board, 20th floor of the State Office Building, Albany, New York, you will be given a hearing with respect to your application for a milk dealer’s license pursuant to Chapter 158 of the Laws of 1933.”
In compliance with the contents of such notice and at the time fixed therein petitioner’s president and also its accountant appeared at the office of the defendants. These officers were not represented by counsel. None of the defendants was present. The Board was represented by its assistant counsel and its chief auditor. It is conceded that petitioner was given no notice by the Board or its assistants of any charge or complaint against it. At no time was it advised that it had violated any of the provisions of the statute. No mention was made of any offense it was alleged to have committed. At this hearing petitioner’s representatives were examined and cross-examined by the individuals who appeared for the Board. They propounded the questions and ruled upon the evidence. The auditor of the Board was also sworn as a witness. Petitioner was given no opportunity, however, to controvert his evidence. After this hearing and on August twenty-fourth the Board made an order which is the subject of review in which it decided and determined that petitioner was guilty of violating an official order of the Board and that it owed its producers $5,666.43, which it should pay within twenty days or suffer the revocation of its license.
The merits of this controversy need not be discussed, because we are satisfied that petitioner was denied a fair hearing and deprived of all opportunity to present its defense. A violation of the statute must be proved against a licensee before a license can be revoked.
The Board was also without jurisdiction to determine that petitioner was guilty of violating any provision of law or to direct it to pay over any money. It is given no power to pass judgment upon the guilt of any one under investigation. That can only be done by the courts. In certain instances section 307 of article 25 authorizes it to institute actions to enforce compliance with the statutory provisions or with any rule made pursuant thereto. In all other cases it is simply authorized to make investigations in accordance with law as provided in article 3 of the Agriculture and Markets
Hill, P. J., McNamee and Bliss, JJ., concur; Rhodes, J., concurs in the result.
Determination annulled, with fifty dollars costs and disbursements.