*1 рer- in a written statement. He neither them and embodied preparing participate in the statement nor counsel to mitted copies Instead, of it. he stationed he furnish them did occupied directly seats at the counsel table behind the bailiffs by jury, counsel, and other defense called petitioner story The rest of the began to read the statement. has been told. respondent case are says,
As the facts this unlike those Muniсipal supra, Gallagher v. (1948), Court 31 Cal.2d Appeal District decisions therein discussed, Court petitioner But, Gallagher, upon which relies. we are uphold contempt that to convinced order would tend to public maintaining fundamental interest of the erode “the (P. Cal.2d.) independent an bar.” judgment contempt is annulled. Gibson, J., Traynor, J., Peters, J., White, J., C. Dooling, J., concurred. No. In Bank. Feb. 9, 7024.
[Sac. 1961.] al., Appellants, SILVIO MISASI et v. W. C. JACOBSEN al., Respondents. et *2 Schumann, Paul B. Allan, Millеr, A. Leland Groezinger, Keesling Guernsey & Groezinger, Martin, Carson and Emil Appellants. Steck, Jr., for Vaughan, Baggot, & Brandlin R. Vaughan, Tuttle, J. Tuttle
& Taylor, Taylor, Robert G. R. Hoerchner, E. Charles K. Haekler, Brundage, George & Hackler Flaum and E. Atkin- Jr., Appellants. as Amici Curiae on behalf son, Stanley Attorney Mosk, Joseph, Deputy General, Paul M. Attorney General, Lawrence and Alan Edwards Short Re- spondents.
Minton, Minton & Farrell D. Farrell as Amici Ted Curiae on Respondents. behalf of Depart of thе of the GIBSON, order Director C. J.—An setting Agriculture ment of County marketing provi area contains Joaquin in the San prices for milk directing the minimum retail sold sion per processing plant shall be two cents f.o.b. distributor’s carry-out prices, store quart specified minimum retail below Stockton, operate grocery plaintiffs, who validity judgment upholds which appeal from director, officials provision.* are the two other Defendants (hereaftеr department, and four Stockton “industry defendants”) who own milk referred processing *3 premises plants milk at retail on the at and sell provision question. by in prices set the minimum found in as follows: The trial court substance the milk are distributors under control licensed as defendants sell, milk, to limited number in addition law and principal processing plants. Milk is the item products at their to its is incidental sale. sold, of other and the sale by defend- of milk distribution used method Thе ants grocery stores, retail from that used distinct different, are and their rea- to render consumers services sonably substantially selling milk necessary are less costs in that the indus- The court concluded of such stores. those than try but act as distrib- retail stores operate not do defendants provision that the Agricultural Code, utors as defined prices separate minimum for retail sales setting order valid, that processing plant is and f.o.b. of milk prices question provision “The minimum retail for reads: *Tlie plant eight be shall cents distributor’s f.o.b. fluid milk sold ($0.04) per half-gallon container; ($0.08) gallon con- per cents four container; ($0.01) quart ; ($0.02) per and one cent two tainer cents carry-out prices per pint minimum retail below the store container provided 1.” in Schedule plants are entitled f.o.b. their to sell at those prices. minimum Chapter Agricultural imposes 17 of division of the Code duty prеscribe
on the prices director minimum retail which milk shall be sold consumers distributors as (§§4350, 4353.) well as retail pro- stores. Section 4205 powers chapter vides that the conferred that shall be lib- erally and, further, that construed the terms and conditions permitted under which distributors and stores shall be to sell distribute milk “shall be those which will . . . adequate supply of pure insure an and continuous fresh fluid milk and wholesome fluid cream to consumers thereof prices.” at fair and reasonable provides Section minimum retail and whole- prices be for sale established in a marketing prices area minimum for retail stores therein sufficient, but than sufficient, not more costs, cover according as such costs are described to method distribution, upon necessary capital return reasonable investment; provided, however, that when the director deter- purposes mines that such will effectuаte the prices higher act he shall establish minimum which or lower than those sufficient to cover the costs and reasonable if writing he finds will return his action insure ade- quate supply higher necessary no than and will not competition. induce unfair provides in determining Section among shall take into the director consideration other eco- necessary reasonably handling nomic factors costs of fluid by distributors, including milk all costs of hauling, incurrеd selling delivering processing, and reasonable return on necessary capital investment, each the several methods (subd. marketing used in (e)) distribution area reasonably necessary handling the by cost incurred (subd. (g)). retail stores “any defines a “distributor” person, Section person a producer whether or not such or an association of purchases producers, who or handles fluid milk or fluid cream sale, including brokers, agents, copartnerships, cooperative *4 corporations incorporated unincorporated and and associa- tions. The definition of ‘distributor’ not any include following: (1) Any engaged retail store that is not processing packaging and milk or cream. . . .” fluid fluid (Italics added.) per- “any means provides “retail store” Section store, res- grocery a owning operating retail persons or or son taurant, confectionery, businеss, fluid where or other similar consump- for public general the or cream is sold milk fluid premises.” tion off the setting of require mini- the and which Sections stores, retail show and prices retail both distributors mum industry defendants, sells clearly processor like the who, a distinguished an may from a as milk at retail be distributor that the record operator a contend of retail store. Plaintiffs operated by businesses as a matter of law that the establishes the industry grocery stores within retail the defendants are meaning agree. busi- We do not Whether of section 4218. grocery store” within is “a retail ness “similar” question fact, of and meaning primarily of section of determined, trial the basis substantial court has on industry operated by the evidence, defend- that the businesses grocery from retail Their ants are in character stores. different stores, of selling milk are than those costs less They only milk they sell render а lesser service to consumers. great processing plants, at their whereas there are num- four throughout grocery ber of retail which are located stores of nearer to the homes most marketing area and therefore only its own Each sells brand consumers. of milk defendant grocery generally variety stores whereas sell only a limited brands, sell num- products milk, the sale of which is ber of incidental to grocery only milk principal product, stores whereas one the hundreds of available the customers. contrary findings defendants, if to the Even operators stores, of retail it fact, could be considered would subject necessarily be follow that must same as retail stores that not combined with plants. exclusionary provision milk pertinent here, excepts insofar from the defi section only a engaged “retail store” not nition “distributor” “processing pаckaging cream,” it or fluid recognizes operates one who combination of thus may processing plant as a outlet and a treated dis In connection it should be noted that tributor. this provides of mini that, as to determination section distributors, shall be taken into con mum costs used, each of the several methods distribution sideration for respect pro- does not whereas with *5 of on such a basis. The vide for consideration prоvisions costs cited together legislative taken indicate intent that cover a category, term should broad the the various methods “distributor” of distribution must considered prices distributors, selling determining minimum processor plant his of is one the methods minimum different from appli- warrants the one processing plants. .cable to retail stores not combined with correctness of this conclusion further demonstrated person that, categories fаct can come within where two Legislature by the code require established and the intended to person coming the director to treat the as within one to the other, depending upon type operation, exclusion of the express (§ to that directions effect have been set forth. persons [relating producers are both to who and distrib- utors].) particular importance
Of here is the rule that the charged construсtion of administrative statute those with interpretation great its weight, and enforcement is entitled to generally depart interpreta courts will from an such clearly (Richfield tion Corp. unless it is erroneous. Oil v. Crawford, 600].) 39 Cal.2d P.2d As [249 recognized Creamery Brock, in Knudsen Co. v. 37 Cal.2d 26], marketing P.2d the control of the of milk [234 complex problems Legislature involves intended give the in dealing director wide discretion with prob- those many years lems. The director has for construed the code permitting prices minimum retail sales f.o.b. plant applicable prices from different to retail stores, and comparable there has long-standing been administrative con- dairy struction in the field retail sales f.o.b. ranch. ofAs 1955 orders with accordance this construction were marketing effect in 11 areas far state so as concerns plant sales f.o.b. marketing respect in all with areas (Reрort sales ranch. Legislative f.o.b. Joint Committee Agriculture on (1955), p. and Livestock Problems 138.) In establishing the Joaquin County for the San marketing area set, the director found that the which higher were than sufficient cover the costs described section 4355, distributing would tend to maintain sufficient requiring pay facilities without necessary consumers to more than was they to maintain facilities, would not competition, induce unfair and that would tend to encour- marketing of fluid milk. No substan- orderly and efficient age findings was introduced. contrary to these tial evidence order tends findings that his show The director’s provisions marketing accomplish purpose purchase people be able to that “the namely, code, enough operating price at lowest which milk at the aat reason efficiency able to do business average will be all supply the consumers profit so as to able .demand Cream, v. (Challenge etc. Assn. marketing area.” 737, 149 A.L.R. P.2d 137, 141-142 Parker, 23 Cal.2d [142 question price in would of the minimum 1203].) Invalidation *6 consumers, be com who would purpose because that frustrate a more for two cents pelled pay defendants to the purchase milk “at the not be able to quart milk, would marketing con conditions price” with the consonant lowest the provides that direc templated the code. Section liberally are satisfied construed, and we powers shall be tor’s interpretation of the reject his reason to no sound that there is here. his action or invalidate code Parker, 23 Challenge Assn. Cal.2d 137 etc. v. [142 In Cream upon plaintiffs, was 1203], it relied 149 A.L.R. P.2d held that containers, inmilk fibre distributor, a who delivered charge to one-half cent compelled the director not be could price for milk minimum wholesale per than the more container containеrs, although the use of fibre con- glass in delivered of one-half cent. a in excess in cost increase tainers resulted that the use of different containers in effect The court reasoned in method of distribution a variation the not constitute did in was act, the cost meaning the that difference the within not related in meeting of consumers of different needs to the that, type delivery, and quality, or quantity, terms changed in the event of of cоntainer would the kind since any price promote not the higher would use, from its the loss operation assuring profitable of sufficient statutory purpose higher than at no demands to meet consumer facilities reasoning not (23 p. seq.) 143 et Such necessary. Cal.2d seen, the trial court present As we have ease. applicable the evidence that of substantial on the basis has determined grocery operators of retail from the differ respect only respect but also with to costs with stores type ren- of services used of distribution the method findings of In view of uncontroverted to consumers. dered adequate an maintenance of respect the director his in which proper price, this is case milk at supply of accomplish, statutory purpose action tends to as described Challenge decision, price in Cream and invalidation of the purpose. would set frustrate judgment is affirmed. J., White, Traynor, J., Dooling, J., concurred. COMB, Mc J.—I dissent. majority holding It obvious place will a restric- upon enterprise free liberty
tion which will interfere with the guaranteed by process of contract the due clause in the Con- stitution of the arbitrary United States and constitute an upon unreasonable restraint trade. long The result will average be that run the citizen taxpayer pay higher will price have for milk than parties otherwise he would if were engage left free to competition with each unlimited other. encouraged Private business should be to act average taxpayer may manner citizen and be able commodity purchase permit the lowest which will supply producer profit it at reasonable to himself. plaintiffs present are grocery doing In the ease metropolitan (other business Stockton. Defеndants than Department Agriculture officials) of California State operate processing plants who distributors, within metro- operate politan also food businesses at Stockton their respective plants. These defendants will be referred to herein *7 “industry as the defendants.” industry the Plaintiffs and defendants are located in the trading area, principal same retail and their business is the products of fluid milk carry-out retail sale and оther food to from retail industry consumers fixed sales locations. The carry a range defendants much more limited of other food plaintiffs, they than but the evidence shows that sell orange eggs, juice, poultry, bread, dressed certain other dairy products, pastries in addition to milk. fluid Joaquin County By provision of 2 of the San virtue market- price retail ing [pur- area minimum order for fluid milk1 prices 2 reads: “The minimum retail 1Provision for fluid milk sold processing plant eight ($0.08) per f.o.b. distributor’s gallon container, cents per ($0.04) half-gallon container, four cents two ($0.02) quart per container, ($0.01) per pint cents and one cent con carry-out prices provided tainer the minimum below retail store in the applicable 1 2 of 1 Schedule or Table of this Section.”
311 marketing milk portedly pursuant stabilization promulgated defendant plan (Agr. seq.)] et Code, §4200 industry sell fluid Agriculture, the defendants of Director per price at public at two cents general retail milk to the by such order. plaintiffs permitted to sell quart are less than higher amilk compelled charge for fluid are thus Plaintiffs may charge for the same price than the defendants of quality to the same class quantity of fluid milk sold trading area. retail consumers same they declaratory action, wherein relief filed a Plaintiffs Judgment was provision 2 void. sought to have said declared they сontending them, appeal, that said against rendered provision produces uniformity, in unfairness lack results setting prices milk, and is retail for fluid void in being power promulgate. beyond scope of the director’s to sell entitled Question: Are defendants they products, sell other retail, at stores where also price ? prices specified provision Agriculture order at the required The Director No. Agricultural minimum whole- to establish Code prices area and minimum for sale and retail may prices The set for retail therein. vary according to distribution. method of P.2d retail stores No schedule include the though Statutes, [123 specific provision relating The statute here It is the establishment minimum retail exception P.2d 1047] respect established well-settled § 505] ; latter subject. Code Civ. thereto as therefrom is p. ; Neuwald 628.) standing area, including involved for principle (Rose Proc., §1859; this agаinst v. to a alone would v. has a made. Brock, category State, particular statutory specific provision relating those general Accordingly, 45 Cal.Jur.2d Cal.2d operated by persons be broad Cal.2d subject controlling construction that for retail stores. provision, even 713, will enough [5] 723 for (1958) govern [86 all functioning as otherwise distributors. they contend because main- plants respective tain their store locations and delivery costs, using no overhead are hence have different method of distribution and entitled to estab- separate price permitting schedule them to lishment prices prescribed the minimum charge than less stores. *8 determining used, In method of what we distribution must only
look product the means which the seller distributes the purchaser. Obviously, to the the manner and cost acquisition unimportant determining the seller are product. what method he has used to distribute Chаllenge Parker, 137, Cream etc. Assn. v. 23 Cal.2d In seq. 737, 1203], et P.2d it was A.L.R. held [142 opera- type container costs within the same difference not a to fix a was basis for director different minimum tion price. ease, wholesale Under the rule laid down it is authority that the director has no to establish a clear different price given within a schedule method of distribution on the basis that some the sellers have lower overhead than others. theory defendants, of the by retail home Under delivery sales made producers, distributors who are also delivery process- no hence incur overhead costs ing plant, would constitute a different method of distribution delivery purchase from retail home who sales producers, milk from setting and the director would be warranted in producer-distributor lower minimum for the group. Obviously, purpose the avowed act eliminate unjust, demoralizing practices unfair, destructive and trade (Challenge Parker, supra, p. in this field Cream etc. Assn. v. per- if seq.) et would be defeated such distinctions were mitted. pointed out, plaintiffs As hereinabove all carry-out sell fluid at retail to customers at fixed store locations at which other are also they sold. Accordingly, use the same method of distribution governed by be must the same schedule. appears This conclusion to be in accord legislative with the apрears intent. Such intent in the following Agricultural Code (“That sections: Section (b) subdivision will not tend to induce or authorize the development of unfair trade practices, unfair competition, monopoly .”); conditions of policy . . (“. section 4201 . . it is the this State ... eliminate . . . unfair and destruc- practices tive .”); trade . . (g) (In subdivision determining costs of retail stores the director shall take sur- veys sufficiently representative stores); and section (Minimum pricеs “according established to method distribution.”) defendants contend that operating are not
313 although court, the trial it certain con- stores; but made retail they engage that effect, that found as retailers clusions products milk and of fluid other food to customers the sale dealing Accordingly, are not store locations.2 we from fixed selling nothing at retail a situation where distributor milk. but “ Agricultural of the ‘Retail Code reads: Section any рersons owning person operating or or means store’ store, restaurant, confectionery, or sim- grocery other retail milk the or fluid cream is sold to business, ilar where fluid ’’ consumption premises. general public for off the all 4218 classifies as retail stores businesses Since it is grocery store, confectionery, restaurant or similar to Legislature all or loca- the intended store fixed that obvious products milk other food type sellers fluid and tion Size, type retail carry-out to be classed as stores. consumers shop, It is evident that a coffee shape are immaterial. and juice bar, delicatessen, general hamburger stand, fountain, Legislature etc., are the to be store, supermarket, intended “retail stores.” industry operated milk that the defendants fluid
The fact plants upon respective properties their processing would not operating thereon, retail as the prevent their also court (Cf. Willing, In did. re Cal.2d fact found 663].) P.2d [3] [86 knowledge frequently whole- is matter common It manufacturing plants stores, or retail and
sale and operated at the same location. are same owners stores, up industry are set customer drive-in defendants by serving of their are made some sales operation, and directly in the customer’s car. The rendition of this customer clearly does nоt warrant a the customer service to additional change fact that charge him the sales and does lesser did, part: ding defendants and now “[T]he 13 reads 2Tin premises respective plant a limited do, number at their at retail sell was, products to fluid mille but fluid milk in addition food of other and now primary is, principal, and dominant food item sold plant premises respective at their said defendants was and now incidental other food items of such the sale fluid milk.” sales Finding “That it is true reads: did, do, respectively complaint now mentioned all times carry-out from fluid milk to consumers fixed retail retail sales of make locations, plants.” respective to-wit, their said being carry-out are made to customers at fixed store other locations where also sold. foregoing judgment. For the reasons I would reverse the Schauer, J., J., concurred. Peters, Appellants’ petition rehearing was March denied Schauer, J., McComb, Peters, J., J., 1961. were granted. opinion petition should In No. 7191. Bank. Feb. 9, [Sac. 1961.] al., Appellants, MILDRED et S. POBOR v. THE WESTERN *10 (a RAILROAD PACIFIC COMPANY Corporation), Respondent.