In re Appeal of Judicial Review by Arcadia Dairy Farms, Inc. of Regulation 4 NCAC 7.0505

43 N.C. App. 459 | N.C. Ct. App. | 1979

ERWIN, Judge.

The Commission contends that the trial court erred by failing to make any findings of fact in its order to support its conclusions of law. We do not agree.

G.S. 150A-51 provides in part: “If the court reverses or modifies the decision of the agency, the judge shall set out in writing, which writing shall become a part of the record, the reasons for such reversal or modification.” When the judge of the Superior Court sits as an appellate court to review the decision of an administrative agency pursuant to G.S. 150A-50, the judge is not required to make findings of fact and enter a judgment thereon in the same sense as a trial judge pursuant to G.S. 1A-1, Rule 52(a), of the Rules of Civil Procedure. Markham v. Swails, 29 N.C. App. 205, 223 S.E. 2d 920, dis. rev. denied, 290 N.C. 309, 225 S.E. 2d 829, cert. denied, 290 N.C. 551, 226 S.E. 2d 510, 429 U.S. 940, 50 L.Ed. 2d 310, 97 S.Ct. 356 (1976). The trial court reviewed the “whole record” which is the proper standard of judicial review as required by G.S. 150A-51. Thompson v. Board of Education, 292 N.C. 406, 233 S.E. 2d 538 (1977). The order of Judge God-win was fully adequate to comply with the statute and the case law of our State. We find no merit in this assignment of error.

In the other assignment of error, the Commission contends that the trial court erred in concluding:

“(a) That N.C.G.S. 106-266.8 violates:

(1) Article I —Section 1, 19, 32, 34; Article II —Section I; and Article V — Sections 2(1), 2(2), 5 of the Constitution, of North Carolina, and

(2) Article I —Section 8, Clause 3 of the Constitution of the United States; and

(b) That 4 NCAC 7.0505 violates:

(1) Article I —Sections 1, 8, 19, 32, 34; and Article V —Sections 2(1-2), 5; and

(2) Article I — Section 8, Clause 3 and 14th Amendment of the Constitution of the United States?”

G.S. 106-266.8 and G.S. 106-266.8(3), effective May 1977, provide:

“§ 106-266.8 Powers of Commission. — The Commission is hereby declared to be an instrumentality of the State of North Carolina, vested with power:

(3) To supervise and regulate the transportation, processing, storage, distribution, delivery and sale of milk for consumption; provided that nothing in this Article shall be interpreted as giving the Commission any power to limit the quantity of milk that any producer can produce nor the power to prohibit or restrict the admission of new producers. To classify milk on the basis of use or form; to adopt or approve base plans for allocating classes of milk and to provide for the pooling on a market-wide or statewide plan the total utilization of licensed distributors, or may assign base and/or milk in order to obtain the highest utilization possible for producers and/or associations of producers supplying milk to the market; and the Comission may provide for an equalization payment in order that producer milk will not be paid for in a lower class through the recombining of water and milk constituents.” (Emphasis added.)

Pursuant to the above statute, the Commission adopted its Rule 7.0505.

In In re Dairy Farms, 289 N.C. 456, 223 S.E. 2d 323 (1976), our Supreme Court was presented with the exact question which we have before us today. In In re Dairy Farms, supra, Arcadia was selling the same product as it is selling in the case sub judice. Similarly, the Commission had assessed an amount to be paid as an equalization payment. The only material difference in the two cases is the Legislature’s amendment of the statute so as to grant the power now in question. Justice Lake, speaking for the Supreme Court, stated in In re Dairy Farms, supra at 469-71, 223 S.E. 2d at 331-32:

“Quite clearly, there is, at least, serious doubt that G.S. 106-266.8, if construed to authorize the Commission to require the distributor of milk, ‘reconstituted’ from Wisconsin milk powder, to make compensatory payments to North Carolina milk producers, can be reconciled with the Commerce Clause of the Constitution of the United States.

Arcadia obtains nothing in return for the payment it is required to make by the order of the Commission. It is required to make such payment to its competitor distributors from whom it elected to purchase nothing, for the benefit of producers from whom it purchased nothing. Likewise, the Commission, by this order, has not undertaken to supervise or regulate the processing of ‘reconstituted’ milk or its sale. Its order has nothing whatever to do with the selection of the ingredients which go into Arcadia’s ‘reconstituted’ milk and nothing whatever to do with Arcadia’s method of processing such milk. The order leaves Arcadia free to sell its ‘reconstituted’ milk. There is no contention that such milk is not wholesome, that Arcadia is representing it to its customers as anything other than that which it is, or that Arcadia, in the sale of its ‘reconstituted’ milk is engaged in unlawful price cutting or other unfair trade practices. The sole purpose and effect of the Commission’s order is to require Arcadia to pay to its competitors, for the benefit of producers with whom Arcadia has no dealings, an amount equal to the difference between the price those producers receive for the milk delivered to those distributors and the price they would have received for such milk had Arcadia purchased from those distributors the milk sold to them by those producers.

We note, in passing, that if Arcadia, instead of distributing ‘reconstituted’ milk, made from Wisconsin powder and North Carolina water, had elected to expand its own dairy herd and to distribute the natural milk derived therefrom, the effect on other producers supplying the Asheville area would have been the same. By the express language of G.S. 106-266.8(3) the Commission could not restrict Arcadia’s right to do so. We find in the statute no indication of a legislative intent to empower the Commission to afford to other producers greater protection against competition from wholesome ‘reconstituted’ milk.

To interpret G.S. 106-266.8 as conferring upon the Commission power to require a distributor of ‘reconstituted’ milk to make such payments for the benefit of producers, with whom it has no dealings, would also give rise to serious doubt as to whether such exaction would be a violation of Ar-tide I, § 19, of the Constitution of North Carolina, which provides, ‘No person shall be * * * in any manner deprived of his * * * property, but by the law of the land.’ In Insurance Co. v. Johnson, Commissioner of Revenue, 257 N.C. 367, 126 S.E. 2d 92 (1962), this Court held that a tax levied upon fire and lightning insurance premiums to establish a pension fund for firemen was invalid for the reason that it was a tax imposed exclusively upon a particular group of insurance companies for the special benefit of a particular group of public employees. This Court quoted Mr. Justice Roberts, who said in United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477 (1936), ‘The word [tax] has never been thought to connote the expropriation of money from one group for the benefit of another.’ In this respect, there is no distinction between a tax and the payment required by the order of the Commission.”

We conclude that the foregoing is not only persuasive but controlling. For the reasons stated in In re Dairy Farms, supra, we affirm the order of the trial court.

Affirmed.

Judges Vaughn and Hill concur.