Safeway Stores, Inc. v. State Board of Agriculture

25, 24, Argued September 1952, March reversed remanded April rehearing petition denied OF v. BOARD SAFEWAY INC. STATE STORES, AGRICULTURE 2d 564

255 P.

4á Hardy, argued Portland, Herbert C. of cause appellant. With him on the brief Cake, were Jaure- guy & of Portland. Tooze, Special Weinstein, Portland, B. Assist-

Samuel Attorney argued respondent. the cause for General, ant George him the brief Neuner, Salem, With on was Attorney presented. at time this case General was Before Chief Justice, Brand,* Rossman, Lusk, and Warner, Justices. Latourette** * argued. this case was Chief Justice when opinion was rendered. **Chief Justice when

ROSSMAN, J. appeal by plaintiff

This is an judgment from a quashed the circuit court which a writ of review purpose issued subjecting court for the (Administrative its review order 2881) Order No. entered Milk L. defendant, Thomas Ohlsen, Marketing proceeding Administrator. The was insti- pursuant § tuted part to 34-1008, OCLA, which is a legislation which was known as the Milk Control (§§ including Act 34-1001 to and 34-1018, OCLA, as amended) Oregon Chapter until Laws, 1949, 547, Sec- changed Marketing tion 4, its name to Milk Act. Safeway Incorporated, Stores, operates a chain of food stores, five of which are located in pro- Salem. The defendant, when this ceeding was instituted, was the aforementioned Thomas Milk L. Ohlsen, incumbent of the office Marketing (Oregon Administrator Laws, 1949, Ch. 1).§ performed by Marketing The duties the Milk by Oregon Administrator were transferred Laws, 1951, Chapter Agricul- 637, Section 1, to the State Board of party ture. The latter has been substituted de- (respondent). fendant Hereafter, when we use the term “the defendant” we shall mean the Milk Market- ing scrutiny if Administrator, the incident under oc- prior curred time the 1951 enactment became effective; otherwise we shall mean the State Board of Agriculture. corporations engaged Two which are processing distribution of in Salem, and to which the record refers as interveners, entered the proceeding pending while it was before the defendant. Curly’s They Dairy, Dairy Cooperative are Inc., Dairy Cooperative Association. The Association has name the trade known by a in Salem which is plant refer hereafter shall We Mayflower. of its products, as other and to the intervener Mayflower .to that Curly. by entered No. 2881 was

Administrative Order denied plaintiff, It 18, defendant 1950. January recitals, to the order’s according milk in a fluid processing “a license to process of City Portland, it, located by owned plant ** * mill?: to said for processed distribution Salem, County, Marion located its stores ** *. considered and hereby Area It Sales ordered Milk that of the Lucerne application Stores, Incorpo- a Division of Safeway Company, a to dis- rated, license processor-distributor in the Salem, fluid milk and cream tribute Marion sell be and same is County, Area, Sales denied.” hereby

The resulted from the that denial defendant’s view milk adequately proeessors-dis- Salem is served and that re- grant tributors of its license would to the economic quested prejudicial the milk it is seen stability industry. Thus, he believes economic possesses latter control over milk The processors. pasteurize, obtain from bottle, etc., they raw which pro- ducers (dairymen). the order validity (No. 2881) from which

The attack object we was just quoted pro- object and is the for writ of review attack ceeding of the order was appeal. entry preceded the defendant conducted December by hearing he find- At close of the entered hearing 1949. still made the we fact, later order. As ings indicated, quashed the circuit court writ which have sustained thereby validity. the order its challenged 48 judgment quashed

The which the writ is contested appeal under consideration. principles govern The fundamental appeal Marketing stem from our Milk Act which be part Chapter came a of our laws the enactment of Oregon Special 27, Laws, Second 1933, with Session, subsequent legis its amendments. The features of that analyzed Savage lation are forth set Martin, v. 161Or 91 P2d 660, 273; State ex rel. Peterson Martin, v. Dairy 180 Or P2d 459, 176 v. Peter 636; Sunshine son, 183 Or P2d 543. plaintiff operates milk

The owns and Portland processing plant Company. known as Milk the Lucerne merely appellation That name is which has become plant separate attached does not denote a any corporation entity. product nor form other The plant plant called Lucerne milk. The Lucerne processes plaintiff milk which the sells its Port- question any The land stores. defendant does not plant detail or feature of the such cleanliness or suitability. product plaintiff’s milk, Lucerne plant, per contains 3.8 cent butterfat and is sold in price paper at the same cartons as others demand for per plaintiff milk contained in 3.5 cent bottles. The delivery operate system and, hence, does not its carry away purchased, the items customers such as Curly Mayflower milk milk. contains not less per per than 3.2 cent and not more than 3.5 cent butter- paper is sold in fat. When it containers, extra quart charge per half of one cent is exacted. Both of operate delivery systems. concerns those processing plant has no in Salem and rulings, prohibited, sup- under the defendant’s from is plying processed with milk its Salem stores in its regu- promulgated plant. The defendant Portland reading: lation, milk distributor is licensed who “No dealer may lawfully specific area and sales

for a market qualified producers purchase milk dealer or distributor the said market in which or milk dealer licensed, nor distributor such person, lawfully any distributor or milk other sell any portion of in said market licensed dealer not cream suitable for the bottle fluid milk said and can and/or obtaining resale, trade for without first Department Agricul- consent of the written ture, Milk Control Section.” employing defendant deems that the rule, In that plant any delivery the Lucerne to of milk from pre- plaintiff’s a sale. That construction has stores is purchased having plaintiff milk in from vented processed production in the Lucerne area Salem plain- plant in to Salem sale and then returned its stores can sell Salem Thus, tiff’s Salem stores. bearing milk Lucerne. the trade name prohibited plaintiff the defendant Since bringing processed in milk its Portland from to Salem purchased plant, or not in raw whether it was its production has area, been Salem condition purchased supply with milk its Salem stores forced to Curly supplies processors. it with about from Salem per in its Salem stores of the milk it resells 40 cent Mayflower remainder. Since no milk with the containing per than more 3.5 cent in Salem is available its trade milk con- butterfat, cannot offer present taining in its that milk, Lucerne the butterfat per is not said that milk available 3.8 cent. We is, per containing than cent butterfat. more 3.5 Salem during hearing, declared himself The defendant being Salem.” than milk sold in More 3.8 “There no milk one milk dealer offers to the trade in Portland containing per 3.8 cent and the record shows bntterfat, “quite per a little” that cent is sold that city. plaintiff requested

November 28, 1949, the defendant that

“permission granted Safeway be Stores sell Lucerne milk and cream in its Salem stores which has been processed Safeway and bottled plant Lucerne in Portland. clearly mailing request, “In this we wish it be by you understood that amount of milk acquired will be sold in the will Salem stores producers already holding quota upon Salem market.” ruling upon request,

In the defendant declared: request “I consider to be extension your sales area to include Salem sales area your present processor-distributor

under license. “In view of the fact such a move would presently some extent affect distributors licensed area, sales I Salem deem it advisable to hold # * *” hearing upon your application. a ruling, hearing As a result that the was held which we have mentioned. It 8, occurred December 1949.

To make plain- matters we add clear, that what the (1) purchase tiff to was pro- wished do from Salem quota daily requirements; (2) ducer holders its milk transport Salem-purchased the milk to its Portland plant; (3) process plant; Lucerne milk in the and (4) processed return the milk to Salem and deliver it plaintiff’s protest to its Salem stores. The that no hearing necessary proposal was was overruled. Its to purchase production the needed milk in raw the Salem satisfy area was made in order to the re- situation placed suiting has that the defendant from the fact production separate milk areas. in Portland and Salem possess plaintiff’s stores Salem All five by them the defendant which authorize licenses issued processing plant plaintiff’s Portland to milk. The sell which [Lucerne] issued the defendant a license has process in the Portland for sale milk authorizes only. all of Portland The latter includes market area territory. contiguous The Salem the five-mile and city, in the five- market area addition includes, immediately adjacent to it. mile zone assignment of shall now consider the first error. We It reads: quashing dismissing “The erred Court sustaining the administrator’s writ Order 2881,

No. had the reason that the administrator for power jurisdiction under Milk no Con- prevent appellant, trol dealer milk Act to licensed processing on Salem from milk market, plant purchased Portland had which it its producers holding quota on the Salem market appellant would sell its which licensed stores in Salem.” argued, however, has been not,

It defendant: challenged right plaintiff has not “The de- granting inquire fendant to whether the license adversely affect the market.” The issues would genesis proceeding had their November underlie plaintiff ap- indicated, have 28, when, we permission plied sell in its defendant purchased processed in that area Salem stores plant. 29,1949, November Lucerne Portland application announcing replied hearing upon plain- it. The he conduct would application objected. protested that It its tiff at once hearing required called no the defendant to powers except licensing power. exercise no his common protest objections upon opening It renewed its hearing. At that time its counsel declared: ®“* * we wish the Therefore, record show clearly, requested hearing that first, this was not by Safeway Incorporated, Stores, that and, second, hearing participating we are this under full rights challenge validity reservation of this hearing particulars, challenge in all the Ad- necessity ministration’s determination of the there- for.” plaintiff’s petition speci-

The for a writ of review, fying charges against its defendant, of error in- cluded this: specifies 34-1006, “Section C. L. all the A., O. grounds upon which a be denied, license deny any defendant did not said license on

grounds specified.” therein just charge quoted, appear The as will later, ushered case. entire It is crucial. We are satisfied that calls for a record determination as to whether or may deny not a license to a would-be solely processor ground [defendant] he that community believes which the newcomer wishes adequate to serve has service. In fact, have we except very no choice determine that issue; for if Marketing Milk Act does authorize the defend- processors present afford ant to benefit re- competition, findings then the stricted fact entered solely upon prem- are based defendant, processing ise that Salem has sufficient number of challenged plants, demand order must be va- quoted findings part will be later cated. The opinion. fact that the defendant denied the than find plaintiff’s application other a for no reason application grant ing of its would a the requires existing the us construe disturb conditions challenged Marketing order, the Milk Act and reverse economic if Act does not confer the the findings Surely, fact processors. of if the control over challenged support a an is writ order which do not reviewing the must vacate order: the court review, Hoskins, al., et 194 Or No. 68 et v. District al. School upon the court A of review calls 301, 240 P2d 949. writ agency and findings order of fact with to match the justify the order must latter, do if the former illegal. to construe this ease calls us Thus, be held determining purpose or not the Act for the whether findings proper basis for the order afford denial. pre- evidence which was shall now review the

We the review, defendant. We make not for sented altering supplanting findings purpose only purpose entered, fact he but for the facilitating understanding of them. an surplus applying § 34-1013, milk formula of

In thereby determining in net amount OCLA, and producers payable the defendant area, the Salem pools, sales market as has created Salem two employed § 34-1013; is as that term is one known Mayflower Curly pool pool. the other recognized pool the defendant and those Each though separate it as it were market. concerned with accounting surplus, been for its each has had After pool the net amount receivable those determines supply Upon hand, it. the other there milk to who govern pool results Portland, its one producers in the area all receive. amount which net single Unlike the situation there is Portland, no pool for Salem. To make matters clear, the defendant employed pooling power has not in Salem his in such way producers equally that all share the ill effects surplus. production of total The Salem area, as fixed by the defendant, embraces the counties of Lincoln, although Benton, Linn, Marion Polk, Yamhill, shares the three last named counties with the Portland production Curly Mayflower area. The milk which production process from the In comes Salem area. recurring accounting periods, surplus milk in Mayflower Curly’s pool pool that in and the is dealt plaintiff, requested separately. per- The if its with granted, production mission will enter is the Salem enough purchase producers area and milk from in that supply area to the needs of its five Salem stores. Its independent operations Curly will be and the pools Mayflower readjust- unless the defendant makes producers ments. The who will sell it milk will be free readjustments pro- in return from to the which the subject Curly supply Mayflower. who and ducers are seeldng plaintiff not to out of The take Salem or any already bring produced milk into that is process All it wishes to market. that do is to in produced return Salem milk and then to Portland in processed plants in of but now Salem the inter- being plant, If its instead of in veners. Portland, was plaintiff’s contemplated of the effect Salem, in production operations milk would be no different. proposes, plaintiff we said, as have The haul purchase in which it will Portland Salem plant process Lucerne it in the and then area, deliver processed stores. milk to its Salem The .the paper per milk in 3.8 cent its containers sell at the will place per price in as cent milk which others same 3.5 bottles. findings

Although at “there are state that pro- present processor-distributors and time seven duly market licensed Salem ducer-distributors adequate equipment facilities have modern who capacity market,” the same serve all the needs of them, names of two evidence reveals the nothing Curly Mayflower. divulges It about is, remaining those five five. It not indicate whether does delivery plants It clear that or facilities. seems have only Curly Mayflower have sizeable volume of busi- corporation Curly’s Dairy, Inc., is ness. president. manager The is the

Mr. Hans Hoffstetter Henry. Dairy Mayflower Mr. Co- is Will W. referring operative we have been to which Association, cooperative enterprise Mayflower, a form of gain supply producers it with milk or who which the process- profits occur losses lose the event delivery phases administering ing, of the enter- Curly supply prise. do not share Producers who arising gains the conduct of that busi- or losses prices They paid established are de- ness. readjustment subject, if course, fendant; surplus period’s operations a result in must be price. at a low sold purchases plaintiff’s total of milk for its Salem per of milk was 2.37 cent of entire amount

stores plants. distributing processed in five Salem We have findings that the state there are fact that mentioned producer-distribu- processor-distributors and “seven ’’ duly market. we licensed the Salem When said tors purchases aggregated per plaintiff’s 2.37 cent that distributing plants, we of the five Salem total limited ourselves to the five because the informa- tion released the defendant concerned them. The record warrants belief that the volume of the two among licensees who are not included the seven is negligible. developed

An item of evidence which was hearing previous application, aof and which made was part record follows: is case, “There any very great oper- difference between cost of ating on the Portland market and on the Salem market processing delivery, selling far so as the and ad- expenses ministrative are concerned.” Other evidence negligible. indicated that the difference One witness subject upon testimony that couched his un- such certain terms we are unable to determine whether just quoted supplements it the statement or is adverse to it. Henry

Mr. and Mr. Hoffstetter stated that if the plaintiff purchases plants withdrew its from their per paper-contained offered in its stores Salem 3.8 cent price per the same milk at as 3.5 cent Salem-bottled upon their milk, effect volume net income would plain- Both be adverse. dwelled the fact that if the purchases plants, tiff withdrew its from their processed by of milk volume them would be less, result claimed that as a of their smaller volume their quart] per [such unit as a costs would increase. Mr. Henry, predicted especially, diminishing returns compelling producers the ultimate effect of Avouldhave price accept their milk. lesser Neither was cer- per if the authorized to tain that sell 3.8 cent price in Salem at the per mill?: same Lucerne as 3.5 they necessary Avill find cent local to meet the Mayflower, competition. plaintiff’s plant which has a competition in plaintiff’s in not met the has Portland, paper except charge city, milk in containers for the price Producers for in bottles. as milk the same price a reduction not suffered Portland area have plaintiff’s activities. on account our of the evidence to shall confine review We foregoing. transcript facts, The contains additional they no mention defendant’s but, since received liberty findings, consider them. We not at we are findings quote presently are of fact. We shall sup they are latter the extent that bound ported evidence. substantial plaintiff, wishes to deal observed, The it will be Curly in a manner different from with the trade Salem Mayflower. example, milk For its will contain per 3.8 cent butterfat and will the name “Lu- bear The mill? available in Salem aims to con- cerne”. now per tain 3.5 cent but at times has 3.2 butterfat paper per present, purchased in cent. At milk cartons buyer half than one cent more Salem costs plaintiff will eliminate that differen- bottles. buyer milk. The un- chooses Lucerne latter, tial if Mayflower’s, Curly’s will not be available like delivery, delivery through In lieu of milk service. give plaintiff In its customers more butterfat. will producers, buying will not sub- pools, ject alters unless effects of supply whereby producers regulations some his Mayflower. Curly pool and others findings Following fact entered are the defendant: regularly on before me on matter came “This Company, a Milk divi- application Lucerne Incorporated, Safeway license Stores, sion mill?; process processing plant

to fluid in a owned by City Oregon, it, located in tbe and Portland, processed milk distribution of said to its stores Sales Area. County, located in tbe Salem, Marion 9? it* ‘‘ power 1. That Section 34-1009, vests O.C.L.A., authority Marketing and in the Milk Administrator classify power licenses, with to issue licenses stores dealers, to or to sell milk manufacturers, city particular village, partic- limited to a or or to a ular market and state, markets within the marketing define what shall constitute natural area. “2. That Official G. No. 127, Order O. amend-

ing pre- General Order G. No. 116, O. defines and scribes the Portland Sales and that the Area, Lu- Mill?;Company, Safeway cerne a Division Stores, Incorporated, the prior for sometime and at the time of hearing processor-distributor held a em- license, powering process, it to sell and distribute milk fluid and cream in the Portland Area Sales as defined said order. “3. That Official Order O. No. 62 defines G. County Marketing

Marion Area No. 1 as that area corporate City Salem, within the limits of the Oregon, paralleling and the area within lines boundary City line five Salem, drawn miles distance therefrom, outside and the extension of necessary said area. lines to enclose the operated “4. That retail stores owned and Safeway Incorporated, Stores, located supplied Salem Area have at all times Sales been by duly Salem, located in said licensed distributors daily County, require- Area, Marion Sales with the Safeway milk cream ments of fluid and sold said Stores. “5. said licensed That distributors for the County, Marion Sales Area Salem, have at all times supplied Safeway

adequately Stores in Salem requirements, bottled milk and cream with its quality, in accordance accepted and standards and regulations in effect price other schedules and with market. in said present time seven at the That there are “6. producer-distributors

processor-distributor modern duly equipment have Market who licensed the Salem adequate capacity to facilities of market. the said all of the needs of serve applicant proposal of the re- That the “7. qualified producers located in and ceive for the processing in Area, for their Sales Salem transport plant, and then distribute Portland entail stores, its Salem would additional such milk to and increasing handling costs, in the best market, nor in the of a stabilized interests interests public. granting the of an additional distrib- That “8. jeopardize [sic] the maintainance license will utor adequately present distributive facilities now of the supplying the in needs of consumers said Salem the displacement of sales Area, and that Sales processing licensed now of the distributors Salem requirements bottling of milk and cream and Safeway in to some extent Salem, would Stores distributing processing costs increase their through thereby volume, a decrease in their through a decrease their an increase tend towards thereby an increase in the tend towards volume, and price pro- price or a less to the consumers, judgment of the under- both, which in the ducer, public signed interest. applicant proposal to take “9. That producers requirements same Salem, from its plant, process tribute and then Portland dis- its through its stores, the consumers same to undersigned judgment throw the

will in required surplus so market, said the the burden public, upon varying of the demands as meet Safeway supplying producers those other than all Stores, creating favoritism, discrimination pro- will tend towards a both of the demoralization, duction and distribution of fluid milk in said market. ‘‘ paper 10. That the introduction of containers mill?; undoubtedly shipment has facilitated of fluid places processing and cream to far removed from plants, that the judgment undersigned and it is the granting application of this to- would tend monopolization wards of the distribution of fluid by large metropolitan processor- milk and cream ultimately forcing distributors, small distributors opinion undersigned out of business. It tendency public that such is not in the interest.” pause analyze We shall a moment to some of the findings. We think that it is evident that statements public such as “not in findings interest” are not Findings of fact. If 4 and 5 mean no more that than plaintiff’s regularly five Salem stores have been supplied quantity the interveners with a sufficient prices of milk and at which do not violate the de- regulations, they fendant’s are in accord with the evi- findings, dence. The however, do not reflect the fact prevents plaintiff procur- that ing containing per mill?: its Salem stores 3.8 cent they Likewise, butterfat. do not mention sell to wishes to its Salem customers under its trade name of established Lucerne and offer paper price it in containers at the same as others charge for bottle-contained milk. The seventh find- ing says plaintiff’s plan “would entail addi- increasing handling tional and costs”. itBut does not increasing the “additional and disclose whether han- plaintiff, dling the be incurred costs” will the inter- milk other dealer. We think that veners some transportation finding because the was written plant Salem-produced milk to Portland and re- its processed subject form would turn to Salem increasing handling plaintiff “additional and expense. transportation How- is, to the that costs”; thereby plant secure ever, since the Portland would per [such larger processing as unit volume, cost of opera- quart] be that reduced. It would be entirety plaintiff econ- for the tion in its would be omy the scant one can determine measure. No con- result which the record the net evidence in the yield. as- templated unable to are would We venture finding plaintiff’s eighth how certain from operations, could result defendant, if authorized producer”. price defendant, The in “a less by quotation presently Milk from the shall show we price prescribe power Marketing has the Act, producers. pay Un- to milk dealers must which milk pay milk milk dealers to defendant orders less the present, can producers there than at amount a less receipts. producer’s time change At the be no § hearing 34-1012said: * * “* order fix the mini shall, board charged prices to be and retail mum wholesale milk ing consumption dealers; classes: handled * V’ ^[*] (a) and fluid By sold within form and producers including * * state # the follow for home finding, says eighth now under consideration, purchases its from “the if the withdraws that processing bottling distributors now Salem licensed Safeway requirements of milk cream Stores [Curly May processors those two Salem,” processing flower] an increase in “their suffer would through distributing a decrease in their vol costs the conclu the defendant drew From that fact ume.” already taken notice; is, have we sion of which by the returns suffered effect the adverse 62

processor-distributors may eventually passed on to producer prices the in the form of lower for raw milk. finding But the plaintiff does not indicate that the is purchase requirements Curly forever bound to its from Mayflower. presently appear, and As will we deem finding that irrelevant, but, since the defendant’s order upon processors is based a claim that he can afford competition, pause benefit restricted we shall for finding. plaintiff If moment transfers purchases Curly Mayflower any its from and other processor, application Salem whether or not its granted, consequence findings the evil of which the speak plain would that the transfer occur; is, Curly Mayflower tiff’s business from and to some other processor “jeopardize would the maintenance of the present adequately supply distributive facilities now ing the of the consumers in needs said Salem Sales Mayflower Curly Area.” Thus, and would suffer as badly plaintiff purchases if the transfers its to some processor processing it other Salem as if its does plant. plaintiff Lucerne ifOr, its Portland dis processed only continued sale milk and sold non- processed Savage [see Martini, v. 26 666, 667 Or processor any 707], no secure Salem would business it. Prom whatever from is evident above, eighth finding pro [that conclusion drawn price smaller their ducers receive a for milk if granted] plaintiff’s application can be sustained (1) if is no other source Salem to which there processed findings [the plaintiff can resort processors (2) Salem], state there are seven plaintiff purchases to make its is bound forever Curly Mayflower. more observation: If from One bought purchases plaintiff all shifted of its its Curly nothing Mayflower, requirements from economy ma of both of those concerns -wouldbe terially that shift in affected. If the made aug purchases, Curly gain would the benefit its possibly pool contain no mented volume and its would Upon Mayflower’s surplus hand, whatever. the other a under suffer severe such conditions would volume pool surplus and the would be increased decline its supply very producers an hurtful who to extent to analysis proceed an no further with it. We shall eighth finding. economy The the foregoing analysis which underlies the yields preview a of the results that would if this court held that the defendant has follow processors prevent control over and can dis economic they operate. in the conditions under which locations holding prescribe would him Such enable to Salem that, condition and would be tanta course, static banning enterprise. will now mount to an order We finding. plight ninth it mentions re consider the The notwithstanding from the fact that the demands sults provide § has to the defendant failed 34-1013 from to Salem all the sales of fluid milk producers “for the' of a pooling uniform * # * pool price averaging and the * ^[*] all payment returns His requirements comply has created to with those failure purchase opportunity plaintiff raw for the being subject producers after effect without pro surpluses. pools fault that has their The plaintiff opportunity for the is this favorable duced cannot be shifted to the and it defendant, that of the application by pointing if plaintiff that- its out opportunity. plaintiff The granted seize will by any unsupported finding, evi believe, is we tenth seemingly respondent so record, and dence “Finding says: No. 10 in a brief his concedes, for largely based large conclusion measure 64= **

knowledge of the Administrator *. If, however, finding supported, findings amply is not other are supported by competent and sustain evidence, judgment of trial court.” foregoing question

The are the facts. oc- The now Marketing authority curs: Does our Milk confer Act upon the defendant which rendered it lawful for him deny right ship in its sell purchased stores milk Salem Salem area and processed plant. in its Portland Marketing lengthy

The Milk Act is not and most provisions readily its are shall understandable. We now Act. review the preamble of the Act pre- received mention in opinions speaks

vious of this court. It of the im- portance industry of the milk and declares that “the present emergency large part economic is in a the disparity prices result of a between the of milk and cream and other commodities.” It notes that destruc- practices developed industry tive trade had they and that constituted a menace to health the and people. protect well-being welfare In order to people, industry of the it declared the milk “a business ’’ affecting public Having health and interest. made pronouncements, preamble those closed with industry super- declaration that the milk “should be pro- and in vised controlled the manner hereinafter just quoted. vided.” direct We attention words They emphasized Dairy Peterson, were v. Sunshine supra. just pointed The decision cited also out that preamble part of a is “not statute an essential enlarges powers.” confers thereof, and neither nor We proceed of the now into enactments act. amended, as OCLA, section, 34-1001, The first amended, as 34-1002, definitions. Section made np act. Sec administers the authority creates which as following as 34-1003, amended, specifies tion to confer authority has: the agency (a) which powers federal agencies with similar cooperate Oregon with investigate to governments; (b) state in the milk to all matters pertaining College State milk indus regulate supervise “to dustry; (c) as defined state, including production, try * * act as arbiter to #”; (d) hereof section 34-1013 engaged that arise between those of controversies rec business, examine into the “to industry; (e) the use and, by milk dealer” accounts of any ords and rec their dealers to produce to compel of subpoenas, and enforce to take (g) adopt ords; depositions; (f) “to exercise (h) rules and such regulations; needed as hereinafter are specified.” Sections other powers 34-1007 and 34-1008 34-1005, 34-1006, concern 34-1004, of those sections renders it The first unlaw licensing. business without a engage for milk dealers ful the information which the prescribes The next license. for license require applicant can the refusal, third or governs suspension furnish. fourth licenses. The prescribes revocation The fifth, fees. the one to being of license amount when it instituted resorted the plaintiff judicial review of provision makes proceeding, Be licenses. refuse, suspend revoke orders which on 34-1009, we will summary go of § making fore 34-1010, amended, Section sections. remaining maintain records containing to licensees requires that section. Section 34-1011 by demanded information the defendant shall be by licenses issued declares and other laws munic- required others to in addition ipal author- ordinances. Section as 34-1012, amended, regulate prices prescribes and izes the defendant to employed fixing. price procedure which must be prescribes pro- concluding part of the section pursue denying must cedure which the defendant revoking application one. for a license or Section 34- surplus milk. is concerned with Sec- amended, subpoenas issue enables the defendant to tion 34-1014 enforcing compliance provides witnesses n subpoenas. 34-1015 authorizes the Section with the governs promulgate the dis- rules and defendant money position the defendant. of license received provision the act shall states that no Section 34-1016 blending cooperative organization prevent “from proceeds various classes sales into net paying of all its ** price producers such blended its a mis- the act a violation of 34-1017 renders Section employment authorizes 34-1018 demeanor. Section procedure hearing which examiners outlines hearings. governs such summary, omitted 34-1009, of which we

Section declares that the may “may classify issue licenses licenses and * * * manufacture or sell limited dealers * * * particular market or markets within what shall constitute a define state, * * *. A market area shall area

natural market city together town, than one or with no more include territory contiguous reasonable dis- within a immediately where market- same, around tance ing two or more same, unless are conditions closely adjacent another to one are so or cities towns they comprise market area and one natural but marketing subject conditions, in same are adjacent towns or more such two event, contiguous together around the área with cities may included one defined, heretofore same as * * * marketing include volved tion of shall area, area. Each market territory in- conditions that which production, processing and distribu- * * *” milk are similar. statutory provisions synopsis The above is govern The defendant- the issues before us. rely says: respondent not respondent’s does “The brief any implied powers of the Milk Control inherent on judgment court.” the lower statute sustain implied and case is free claims Hence, powers. inherent § 34-1003, defendant contends that amended deny § (c) authorized him to

subd. and 34-1009 application plaintiff’s license. In addition to con- for a sidering laws, those of our we shall also take sections (g) § § subd. and 34-1015. 34-1003, note of amended § 34-1003, It will be recalled amended subd. supervise (c) regulate “to authorizes the defendant and industry”; (g) § milk that amended 34-1003, subd. empowers adopt defendant to and enforce needed regulations; § 34-1009 enables the de rules classify (2) prescribe (1) licenses, the terri fendant marketing produc milk milk areas and torial limits of territory (3) limit the within which a areas, tion may operate; § § 34-1015,like 34-1003, licensee and that necessary (g), empowers the defendant to make subd. Availing powers regulations. himself of the rules (g) § by § 34-1015, 34-1003, conferred subd. quoted, promulgated we have rule which reading follows: milk who licensed or distributor dealer “No may lawfully specific sales area market and

for a purchase qualified producers for the milk from dealer or distributor said milk market which nor licensed, such milk distributor or dealer sell other lawfully any distributor or person, dealer not licensed in said market any portion said fluid mill?: cream for suitable the bottle and/or and can trade resale without first obtaining written consent of the Department of Agriculture, Milk Control Section.” just

The rule quoted has its roots in 34- possibly § 1009, but the defendant’s of rulings delivery a bottle mill?:from of the Lucerne to one of the plant stores a plaintiff’s is, constitutes sale obviously, erroneous.

Before to returning 34-1009 we shall § pause a moment upon subd. Its §34-1003, (c). language is and sweeping authorizes the defendant “to supervise the milk regulate If industry.” the seven words must quoted their given literal import throughout all of of act, the rest the latter, with the exception of 34-1002, 34-1008, 34-1014 §§ could 34-1017, have left In unpenned. been contrast the general and in discriminate provision just quoted, the act contains sections many which are and which specific clearly the course of action identify which the authorized to pursue instances which are they is our It to construe and germane. duty effect to give the act in its entirety. act, After whole we reading of must seek all its terms the purpose of the en intention actment, for the whole controls the Peterson, Sunshine v. Dairy of the meaning parts. supra. unlike a statute,

The draftsman of or a painter of materials, has no choice such as canvas, sculptor, marble, with which to work depicting bronze Bronze, marble, ideas which he wishes to portray. paint artist’s touch and them- clay respond subject

69 Ms control. to a drafts- selves to But there available yet man of a statute words—inflexible forge They their treacherous in connotation. do images. of all same minds readers pack In an effort find the ideas are which aged words, have the rules courts fashioned statutory always give pref construction. Those rules specific provisions are erence to over which others general or abstract. definite One rules holds that provisions relating subject in a under statute general provisions, control consideration in the absence requires contrary language holding. Leet v. 202 P P 548. In the construc Barr, 32, 414, Or authority legislation tion of offi which confers cials, rules ever sensible to render the courts government and not of axiom that ours is laws generally, men. Another 12 Tulane Law Bev. 179. See, Statutory expressed by Sutherland, Con the rules is §Ed, 3d as follows: struction, tendency more recent cases “The is to licensing power delegations even when sustain delegated. tendency TMs broad discretions are activity licensing justifiable is when seems legislative regulation appropriate field for impractic- is determination of conditions where the legislature legislative and the resolution able practical provided as a standard for administra- has particular appropriate guidance as for the is tive ’’ regulation. construing very court, now before this us, Act In Dairy P2d 183 193 Peterson, 305, v. Or in Sunshine para- statutory construction the rules of 543, stated awaiting importance Those decision. to the issue mount are: decision, in that as stated rules, special recognized certain court has “This guides the statutory apply construction which when question power to be determined is the extent delegated body. which has been anto administrative * * * In Board of Railroad Commissioners of the Oregon Oregon Railway Navigation State of v. Company, 17 65, Or. 19 P. 702, court said: “ long ‘It has for a time been considered determining questions safer and better rule, in jurisdiction powers delegated that their exercising of boards and officers legislature, to them the to hold authority affirmatively appear must they the commission under which act. claim to “ strong ‘There is too a desire in the human authority, heart to exercise and too much of a dis- position upon part of those intrusted -withit to beyond design extend it scope for which, and the within to leave the it was which, intended should be exercised, question of its extent to inference. might which Should it be so left, serious disturbances involving jurisdiction arise, a conflict of highly community. would be detrimental to the “ requiring is not, ‘It it seems to me, too much legislative government branch of the exact, when it creates a commission and clothes it with important the specify functions, that it shall define and authority given clearly it so that no doubt can reasonably public arise in the mind its extent.’ Layman

“In the more recent case of v. State Un employment Compensation Commission, 167 Or. 379, (2d) A. L. R. 974, 136 P. court said: “ elementary prin- ‘It is an and fundamental ciple, created dispute, which no one will that a commission, legislature to administer a statute, wholly powers authority by limited in its the law its creation. No more unwholesome doc- suggested body trine could be than that such a ignore transgress vested with discretion to these accomplish limitations even to what it deem to be laudable ends. That would be to leave room for

71 “play purely personal ar and action Hopkins, bitrary power” v. condemned Yick Wo If 6 L. Ed. 226. 220, S. Ct. 356, 1064, U.S. workable, then the statutes remedy written is not ** legislature. V is with the the lative “If, legislative delegation sfc intent, in a ^[*] doubtful % ^[*] would, to that extent case, the court should power beyond usurp the expand legis- permit department function of a coordinate powers immediate not for exercise of are which * * courts to bestow. *.” any decision renders it clear that That such official, authority defendant, as the who claims that was dele- gated challenge him to enter the order under must place finger upon legislation express his couched in nonambiguous language. In it must be fact, worded reasonably so clear “that no doubt can terms arise public.” in the mind of the just sug-

The rules of which have taken notice we gest Marketing now that we Milk determine whether the specific provisions opposite appli- Act contains cation for a license which the submitted to the general language § or whether of 34- (c), supervise regulate [“to milk subd. only legislative industry”] is the direction which determining guides market areas the defendant assigned to a licensee. should which Marketing Milk Act have contains seen, As we language specific many provisions couched which licensing. every apply them demands that ofOne procure the defendant a license; dealer application the license prescribes form of another concerning equipment himself, his information and the applicant must enter personnel and his 73 categorically grounds form;

the the next lists seven require.the reject appli- defendant to a license which suspend already or or revoke a license cation to granted; requires main- and still another the licensee to daily tain records which reflect his transactions very provisions expenses. fact that of those each anoma- cast in exact terms would render situation phases legislature intended that other lous if the governed by grant power licensing should provision supervise lacking “to in definiteness as the industry.” regulate authorizing in addition to 34-1009, the de- Section pro- the state into market areas and to divide fendant empowers him to “issue areas, licenses to duction * * * or manufacture sell milk limited to dealers * * * particular market or markets.” The to agree parties word “manufacture” as used that the process. quoted just means to the section just quoted, that the de- we see From words authority a milk possesses restrict dealer to fendant process him single to to authorize or market to a to the same See, effect, than one. in more sell milk 640, 647, Or Woodruff, v. Peterson rel. ex State expresses rules act which 173 P2d 961. Unless determining whether a milk guide more than one market, awarded dealer should be entrusted to him without important function is highly legislature from the as what any whatever direction applications such as one sub- do should with he plaintiff. mitted appeal party to this claims the de

Neither authority reject possesses, blanche, carte fendant grant applications as the one which such findings which he is seen As submitted. that if a market area entered, the defendant believes processor into which a newcomer as a wishes to enter presently receiving adequate required he is service, reject application. infer that the defendant We surmises that the contains a akin act clause somewhat provision shop requires to a for a closed or one which applicant public con- new obtain a certificate necessity. venience and We have read the Act with anything care, but have been find in unable to requires existing the newcomer mill?:serv- to indict hope application ice before he can to succeed his with for a license.

We think that sections of the act which we have presently and reviewed, to which we shall advert, reasonably render clear the circumstances under which the defendant restrict a licensee to one or him market, enable to conduct his business in more than one. The sections which we have in mind are, part, contemplate (1) those which mill? dealers capable responsible; (2) should be and should have adequate personnel equipment for the conduct they (3) business which seek license; given “inability unwilling- have not indications of or properly handling ness to conduct the business of selling milk.” We also have mind the sections which speak of “natural “territory market areas” and production, which conditions involved in processing and distribution of milk pro- are similar.” Still other pertinent present visions which we deem inquiry require adequate mill? dealers maintain records daily which their reflect transactions and record in de- operation. tail their costs of The Act affords the de- fendant constant access to those records. The evidence in this case indicates that the defendant consults with

regularity the milk records of dealers, and also that compiles gleaned he from the information from their books data which is useful himto in his administration just of the Act. In the manner he has indicated, become apprised practical of such information as the volume conducted milk business dealers, extent equipment expenses they and the their which incur in phases operations, processing all of their such as which, Testimony distributing. indicates that the data compiled practical has such the defendant includes in- per quart processing as the cost and dis- formation tributing. margin data shows the between retail price and the dealer’s total costs. From the fore- going, is manifest that the defendant has intimate- knowledge equipment, required, of the amount employees appli- capital number of which an and the when he seeks to enter one or more- should have cant familiar Likewise, the defendant is with markets. them, areas and of the conditions market various cope. milk dealer must with Obviously, Marketing requires Milk Act take into consideration, when he deter application granted should be mines whether rejected, information of all of the which we have taken demanding § purpose of 34-1005 that an notice. divulge pertinent applicant should for a license infor §§ and of 34-1003 himself, and 34-1010 mation about practical affording defendant access to knowl operations, edge milk dealers’ is to him enable advisedly upon applications for licenses. But rule equal clarity requires the Act with think that we employ the same information and knowl defendant applicant whether an edge he determines should when only granted. or one should be market restricted be

'75 doing privilege one. The business in more than according deems that it, to our construction Act, only determining appli- licensing which consists, rejected, granted and but also should be cations assigned number of markets which should parts of the same functions are licensee. The two governs phase process. the one The data which large part applicable licensing is in to the other. contemplates that the Act 10. It is our belief determining applicant whether an defendant, single to a be restricted market or should should be required to do business in more than authorized one, is all of the to consider facts circumstances of which taken notice. He should call we have to his avail the industry knowledge gathered the milk which he has experience official and from from his the records of example, he should for Thus, consider, licensees. responsibility, applicant’s his financial worth, the ex- personnel the number of equipment, tent of his his milk record dealer. his Other sections of the act that the defendant should also take show into considera- produc- tion or not “conditions involved in whether processing and milk distribution of are tion, similar” in applicant for or more market areas which the the two a license. It seems clear that the seeks Act does not intend that a dealer should be licensed for two processing plant personnel adequate markets if his granted If such an individual one. a license authorizing him to do business two he markets, will poor neglect service or will render one of the either In event, markets. the latter defendant’s records larger outstanding number of licenses than will show actually employed. In are when the short, those applicant determines whether should be authorized to do business in more than one he market, required is judgment to exercise sound and informed upon based the entire record which lies before him. question The which he must answer after he has ana- lyzed applicant equipped the record this: is Is this responsible render efficient and service in the entire area which he seeks to serve? The defendant is not deny merely authorized, however, to a license because applicant already cannot indict the service is which being rendered. just interpretation we above, believe, provisions Marketing govern Milk Act which

the issues before us. It we conforms, believe, with says: § 2-216, OCLA, demands of ‘1In the of a instrument, construction statute or judge simply the office of the declare what to ascertain and

is, in terms or in substance, contained therein, not to insert what has been omitted, or inserted; omit what has been and where there are provisions particulars, several such construction possible, adopted give is, if to be as will effect to all.”

The above construction does not detract from the power producers of the see it that ample prices; authority receive nor does it affect his adjustments through to secure, areas, market ample supply for all communities.

It is our that belief the defendant misconstrued findings. the Act he when entered his understanding, He was not, according deny to our authorized to application merely because he found that receiving adequate Salem market area was service grant plaintiff’s application and that would upon present have an adverse effect licensees, is, the interveners. rel. Peterson ex relies State

The defendant supra, support for his contentions Martin, v. applicant- deny an a license to can the defendant community question processor in he believes that the if receiving adequate con milk service. That decision language support to the defendant’s tains which lends take not be amiss to but we believe that it will claim, that case note of issues which were submitted when the every judicial appealed, for utterance was it is complaint stare decisis. The in which becomes Marketing by Milk case was filed the director of the sought prayer of suit. The Act and averred two causes injunction restraining an defendant, Martin, city rendering milk Martin service Sheridan. producer-distributor. was a The first cause of suit al selling city leged in that Martin was milli of Sheri having dan a license to offer or sell said “without consumption fluid milk suitable for human within City alleged said of Sheridan.” It that his course long public a conduct was continued constituted alleged (1) nuisance. The second cause of suit authorizing at a time when Martin had a license him city applied mill?: for a Willamina, sell he authorizing him Sheridan; license to sell milk also in hearing upon (2) mill?: held a later, director Mar application; (3) hearing, at tin’s the close denying an order a license for director entered Sheri notwithstanding denying (4) a the order license dan; to sell milk Sheridan, continued in that Martin city; application, (5) the denial of the after Martin proceeding challenged, for a writ review, (6) upon hearing validity order; the director’s quashed court the writ was direc in the circuit (7) and Martin’s affirmed; was continued tor’s order selling milk in without a of conduct Sheridan course license maintenance of nuisance! The constituted answer, after some admissions and denials, averred that on December the milk 31, 1945, administrator granted operate Martin “a license as a mill?:dealer and distributor within the district of Willamina and Oregon, comprises Sheridan, same district * * plaintiff’s complaint referred to *; that said reply license is still full force and effect.” in. alleged that the license mentioned in the answer was through employee to Martin mistake mailed authority office who had no the director’s to issue reply alleged a license. The further such that within days mailing after the had two or occurred, three mistake was discovered and the director advised Mar- long telephone tin distance of the mistake. It alleged day the same that the further on director sent registered by a license for Martin, mail, Willamina only. Upon the the circuit court trial, sustained the concerning averments mistake and a entered decree injunction. granted requested ap- which pealed. Martin assignments appeal His submitted two of er- ror. The first was: holding

“The court erred that the defendant a Martin did not valid license A. L. have to dis- City mill?:in the of Sheridan.” tribute assignment Accompanying the first of error were the following propositions of law: granted

“After a distributor’s license has been by Agriculture, Department of method provided by 34-1006, is that Section for cancellation O.C.L.A.” “Upon application an for a license, distributor’s Agriculture Department of has no discretion and must allow

to refuse such license that the same appears applicant distributor unless has guilty any in Section set forth of of acts been 34-1006, O.C.L.A.” to A. L. Martin to distribute license issued

“The can- milk has never been district in the Sheridan ’’ Department Agriculture. by of order of the celled assignment error was: second The ‘‘ granting injunction pro- erred court appellant distributing hibiting within fluid from City Oregon.” Sheridan, assign- the nature of Martin’s It will be seen from propositions of law that he ments error was he conduetéd his forced concede business pro- license, unless without a revocation Sheridan ceedings essential to termination of the were er- roneously proposition issued license. His second right deny had lawful law that the defendant no nothing (1) him could him a license avail because (2) license; fact remained he had no upon by review of the license court, circuit denial proceeding of review, instituted Martin writ quashed affirmed the the writ and order license had appealed Martin had not the court’s denial. Accordingly, issues order. submitted the Martin purported appeal, apart issue from the of license revo- these: Did the circuit court err when cation, were license it held that the Sheridan was issued to Martin rightfully and could administrator mistake; After this court had correct his mistake. affirmed holding favor of the director the circuit court’s go no there was occasion mistake, the issue further. Jurisprudence, 14,

American Vol. Courts, following language, p. § a states well- 82, 295, in principle of known law: contemplates only stare decisis

“The doctrine of 80 points actually such as are involved and determined judge in a case, and not what is said the court or points necessarily outside the record or on in- not expressions, being

volved dicta, Such therein. obiter precedents.” not do become example application A recent of that rule a decision this court is v. McCredie Commercial Casualty Co., Insurance 229, Or 20 P2d 232. We think that the utterances in the Martin decision which lend countenance to the defendant’s contention were not within of stare doctrine decisis. But even hold- ings that are within the doctrine of stare decisis are beyond subsequent they re-examination. If were, growth that the common law has made in the last years, kept six hundred and which has it abreast with Anglo-Saxon progress, would not have been made. The following quoted p. § 21 CJS, Courts, 193, 322: imperative

“The rule of stare decisis is not so preclude departure or inflexible as to therefrom any application but its must case, be determined ease in each the discretion of the court, previous decisions should not be followed to the may perpetuated grievous extent that error wrong Accordingly, be the result. unless a doctrine principle or has so well become established that may fairly it be considered to have become a rule * * * property, the courts will not adhere to it, by previous although they decisions, established if though erroneous, are convinced that it is even acquiesced have been reasserted and in for a years, especially if number the former decisions injurious unjust operation.” in their are Mellenberger, v. 163 Or 95 P2d 233, State 709, ALR, departing pre case, criminal from a following quoted from Dr. cedent, Roseoe Pound: epigrammatic phrase “In the of Mr. Justice continuity duty, Holmes, historical is not it is ought necessity. we to hew It not that a is past as a in the our have done to what forbears starting duty. ourselves But we find matter of where they building they upon -what did left off, they using In to us. law materials left why legal perceive institutions to we have arose, perceived institutions and materials which how and better to and with newer ends, and what adapt ends, and better understood have come down us of in the time and to the tasks social control place. testing experience materials are reason and Our ‘Every by experience. generation,’ reason says up from Pollock, ‘takes its Sir Frederick worthy starting point a new fathers, them, if of aptitude, strange imagination of and the con- imaginative faculty is of a sure war- servatism the ” continuity.’ rant of Mellenberger quotation, the decision took After that essay by following H. Chamberlain: from an Daniel or decision of a court or “A deliberate solemn question judge, argument on a of made after law fairly arising termination, in necessary its de- case, authority, binding precedent, or equal of or court or in other courts lower the same subsequent very point’ cases, where ‘the rank, is again controversy; degree authority but the belonging precedent depends, necessity, to such agreement spirit with the the times or on its judgment subsequent upon tribunals its cor- existing or rectness as statement actual compulsion exigency of law, and the the doctrine analysis, intellectual, last moral and is, rather arbitrary than or inflexible.” belief that Martin adhere to our decision is We Clearly, of stare decisis. not doctrine it is within subject re-examination. opinion concurring specially

A written Mr. analyzes part of the Martin de- Justice Warner Marketing Milk Act. In cision which construed analysis, view that which this decision reference incorporates nothing itself, into more need said. part deem We of Martin decision protection the defendant relies as within expressed by and, stare decisis for the reasons Mr. Justice unsound. Statements State ex rel. Warner, supra, contrary holding v. Martin, Peterson to our in this case must be deemed withdrawn. analysis Marketing by

A of the Milk careful Act nothing supports us found has which the defendant’s processors. claim economic control over plain- Since the defendant has issued licenses to the operate which authorize it to both as a tiff dealer and processor, evidently aas he is satisfied with its re- sponsibility equipment.

The cause is the remanded to circuit court so that necessary it instruct the defendant to issue the license. concurring. specially

WARNER, J., minority’s position gist brought is into by sharp following question propounded by focus dissenting opinion, his Mr. Justice Brand in concurred ‘‘ by Mr. and where it is Justice asked: Can Lusk, [director] that the defendant can be said insure a powerless return to the milk dealer if it reasonable is operate process- of dealers to control the number who * * *” given ing'plants area? market query the matter, As I view so advanced minority presents prime problem we are called appeal. to resolve the instant

Having operating appli- status mind of presented plaintiff, question cant assumes that mill?;produced applicant dealer will utilize production area from whence the same marke't area milk of fluid for pro- its quota secures customarily if short, In distribution. cessing in the pre-exist- will no there be disturbance licensed, or distributed processed ing produced, quotas area in in the market licensee applicant offers to its merely Plaintiff sell to operate. he seeks hereinafter employed. as the word is “services”, I question center minority’s It is upon I answer, submit, will In its correct we my attention. conclusion of the majority. for the find justification that the apparent question immediately It should be director powers challenge distribution milk in production to stabilize the area the exercise of economic controls which a given stifling have for their purpose competition that area, concept between dealers in which is tanta- creation of when monopoly applied. mount to the who must also evident to those scan critically It of the majority minority the opinions centers their point separation fundamental around of one our respective interpretations relatively- The recent decisions. which serves to divide precedent way for is pointing us instead of united thought Martin, rel. Peterson v. ex 459, 180 Or State 176 P2d in with one I 1947, judge dissenting. decided shall . refer as hereinafter to it the Martin case The the Martin is clarity holding unfortunately certain irrelevant obscured citations that account for much of the confusion which contributes attendant court’s division. The present thought of the Martin case majority concerning epitomized in statement: the following

“It is our belief that the defendant misconstrued his He findings. not, the act when he entered was to our authorized according understanding, deny application merely he because found receiving adequate Salem area market was service grant plaintiff’s application and that a would present have an adverse effect licensees— * * * is, the interveners. in Statements State supra, contrary ex rel. v. Martin, Peterson our holding in this case be must deemed withdrawn.” myself complete I find this statement With accord. minority thinking The nub of the with reference expression case finds to the Martin the dissent in “* * * majority] [of these words: decision directly opposed to the decision in v. Mar- Peterson ** *” Although supra. specifically not addressed tin, minority case, Martin summarize their objections in these words:

“* * * deprives If this court the defendant of power to consider the economic effect of its action granting withholding processors’ licenses, opened competition be for door will at sult unrestricted very industry, heart of the re- with the powers this court will that the exercise the other vested and confirmed in the defendant accomplishment legis- for the ineffective purpose.” lative minority To these conclusions of the I cannot subscribe. Further evidence of confusion and misunder- standing the rule laid down in the Martin case is divergent given construction found to it parties appeal. to this The defendant claims em- question” “precise presented bodies the in the instant my opinion, plaintiff applicant In matter. more nearly correctly captured the distinctions between instant Martin case and the case which the leaving result unimpaired authority Martin case matter there ruled and of no the value as deter- by appeal. the raised the minative of issues facts in this distinguishing I later features will make To these reference. again particularly referring and more

Before appropriate some to make I feel it is case, the Martin sharp general is a difference There observations. power the dis- to control and stabilize between the producer supply and con- mill?: between tribution of the power adequate As I service. sumer and the to insure foregoing statement and use “distribution” the supply employ mill?:in a hereafter I refer to the it, sufficiency given production area and the thereof given market meet the consumer demand in area. ’ I mind mechani- refer to service I have in the ’, When ‘ ‘ agencies by plants employed i. the middlemen, e., cal pro- and facilities the dealers or manufacturers who producers and the cess milk when received from the by plants physical employed devices the distribu- delivery processed further tors thereafter mill?:to ultimate All must be licensed consumers. director. These definitions “distribution” clearly reading and “service” so warranted are necessary. of the mill?: act no control that citation is they kept clearly must be in mind if one Moreover, is to cleavage understand better the basic construction respective opinions minority accorded majority in this matter. meaning my if that we extend the true It is thesis give Martin case to character intent proposition authority deny grounds power on licenses

vested with already adequate facilities for are service that there presence given area market one ain processors or dealers in that area additional or more monetary already endanger might return for those thereby give to an adherence economic will there, we 86 contemplated by legislature

doctrine not as either necessary accomplish sought or efficacious the ends milk to be achieved control act. That doctrine inevitably could lead to the creation of monopoly, species practice a of economic abhorrent to organic (Or 20). § law of this state Art Const, I, Savage v. true, Martin,

It said 161 Or 660, P2d “The 676, 681, that evils which the Ore- gon Milk Control Law are intended correct are chiefly pri- ones” economic and that it was “enacted marily promote public by relieving interest those industry exposed in milk hazards to which it is general- in an market.” However, uncontrolled these legislative purpose izations of with cannot, the exercise judicial propriety, be construed to confer carte authority upon employ any blanche the director to every might device which economic the defendant arbitrarily purpose choose to attain the and circum- Savage supra, vent the evils referred to v. Martin, doing might safely if in he even so terminate all haz- ards incident to uncontrolled market. At least, he power should not invested with the to do so unless clearly periphery it is found within the of the milk nothing I control act. find in the act which either expressly or inference warrants conclusion competition among any legitimate number of dealers suppressed discouraged, was to be or intended nor is purpose an end to obtain the such essential over-all designed. By legitimate competition act was which the part I mean on the conduct the dealers which would in and itself work not revocation of a license for any § of the reasons set out in 34-1006,OCLA. anything also

It should be observed said in Savage supra, appropriately Martin, v. cannot be effectively support minority’s opin- invoked as for the page at appeal, said, for therein ion in the instant are that we be remembered should also 679: “It licensing pro involving the with case concerned engage right person to of a visions of the law and the *” # * industry. Here are confronted we question precise declined to which the court with pass upon Savage case. broadly,

Speaking the over-all formula laid down legislature act, in the milk control as its chosen combatting then-prevailing of the evils for vehicle price milk and demolition of of struc- maldistribution equalization provided of distribution for the of ture, production supply milk of fixed the creation the marketing with boundaries natural to the areas, rightly These boundaries become bar- areas served. against of milk into them from the flow other dis- riers provided legislature for also the establish- The tricts. paid processor prices minimum to be the ment processor producer, dealer to and the to the provision dealer. Thus was made to consumer dairyman for the and a insure a constant market con- public, coupled supply with a for reason- stant to all, immutable as the hazards of mal- return able prices supply fluctuating which distribution prevailed. previously these That two over-all con- had accomplish legis- to were sufficient intended trols generally-recognized is attested lative result mill?; stability prevailed industry has in since years ago. first enactment destructive the law’s disruptive practices have, which then existed in and all been mastered done to date without main, necessity reposing any specifically in official, express power deny York, as an to was done in New processor a to a license if the issuance dealer a license will not to issuance of the tend destruc- “the competition already adequately tive in a market served.” my opinion,

In there is no occasion to overrule clarify holding Martin case but rather terms authority the facts there existent and limit meaning, its true and what I think was its intended authority deny that is, that the director has deal- given er’s license to business conduct market area doing, supply when, so the dealer will increase the of milk limited to that area for all distribution, and, in probability, doing pro in so cause a tanto diminution necessary supply in the amount some other market area. What the director in fact did in that case was prevent supply. maldistribution of the mill? It was predicated upon might not what be said to have been impact any economic adverse to other dealers already serving doing, the Sheridan market. In so enforcing objectives prime he was one by § act and was authorized 34-1009,OCLA. is, ease therefore,

The Martin with conflict majority holding nothing in this matter. It adds anything nor does it subtract therefrom. As thereto quote I conclusions, warrant for these from the Mar- (180 473): tin case Or

* # As had the administrator determined already adequately that the market was Sheridan granting and that of served, a license to additional distributor to sell milk therein would economically public wasteful, interest, production and harmful to stabilized tion of and distribu consump milk and cream for human fluid opinion tion, of we are that the refusal of the permit Mr. administrator Martin to enter the Sheridan market area a reasonable was exercise discretionary power of a valid in vested the admin * # *” by istrator the Act.

89 appropriately Martin observed that It also be milk in the licensed to distribute had theretofore been assump- a fair market; is, therefore, Willamina and it by produced milk tion that maldistribution of the supply increasing him have been the Sheridan would by depletion correspondingly in the amount reflected necessary adequately of milk of to meet the needs Willamina market. its in the Martin case could have rested

The court provisions § holding upon OCLA, but, 34-1009, of unfortunately, opinion irrele- encumbered with powers bespeaking broader economic vant citations clarity director. The of there claimed than holding references further clouded other which was holding obscuring the true had effect have authority. impairing it as clear-cut that case and * “* * majority very appropriately opinion notes: language support lends decision contains which That * * I now refer claim will to the defendant’s examples productive of the confusion to some thought have followed in the wake of case. apparently case leaned

The court the Martin unnecessarily, upon heavily, York de- but two New construing act of that state. cisions control Noyes, They NY v. 284 Matter Dusinberre are (decided 1940) 3, NE2d December 34 304, App Dairy Application Co., 923, Div Dellwood (decided January 1942). The latter 32 NYS2d 411 citing authority, although no court, case of the lower the Dusin- of and is accord with the tenor follows by way nothing therefore, adds It, berre decision. highest analysis holding court of made to the appeal the same reason adds in that and for state, holding nothing in the Martin case. our force merely repetitive expressed It is of the rule earlier the Dusinberre case. quoted portion From the of Matter Dusinberre Noyes, supra, page

v. in the Martin found case at 470, also be it will observed the New York decision (in Oregon, director) holds that the commissioner expressly by § invested 258c of milk law of that (ch 1934) statutory state York, Laws New with “ power, among things, other to issue the if license license will issuance not tend to a destructive competition already adequately in a market served”. (Italics mine.) milk Section 258c of the York New suspension relates the refusal, law or revocation of corresponds § and in function licenses 34-1006 of Oregon expressly milk control act; but, as the court § case, said in the no violations of 34-1006 Martin were involved that case. approval apparently which we and so need-

lessly gave to the New York cases above referred to comes back to now confound us. Witness the defendant resting now on this ostensible sanction in the Martin by case his citation New York cases here as au- thority premise powers for his for the economic of evidently defendant contended for in this matter support proposition of his that the Martin case in- “precise question” presented by appeal. volved the leading A stemming further matter to the confusion apparent from the Martin case is found in its inappropriate language reliance certain preamble Oregon control act, which is there interpreted the court to “include the establishment producers and maintenance of reasonable returns to fixing distributors, as well as the of a reasonable price paid (180 468) to be the consumers”. Or This is the deduction made the court in that case legislative concerning as drawn from intent saying preamble. that tantamount to essence, In it is power prices, no one fix and that to the director has gainsay, returns received for the to will venture by money producers are returns or distributors either previously prices established with made accordance preamble by is recourse to the However, the director. necessary when truth, discover that self-evident not to great particularity in the mill*:code reflected with it is § therefore, follows It, 34-1012, OCLA. concerning power opinion in the observation re- maintain “reasonable to establish and the director producers an in- and distributors” becomes turns to support as a valueless observation nocuous and is em- conclusion that the director court’s over-all powered if so license, to refuse to issue dealer’s doing in a the milk distribution it will tend to disturb already supplied, given adequately we unless market sugges- without the director, further assume any within the four tion of restraint or standard found also in the maintenance of statute, can, of the corners arbitrarily any adopt economic reasonable returns, including theory choosing, stifling of com- of his accomplish petition that result. quarrel legislative

No one can with the declaration purpose important of the milk control act found Oregon (ch preamble Laws, SS, 2d 72, thereto 1933). However, there is a vast between difference problem, aspects” as set forth “broad achieving a solution to and the mechanics for therein, pre- problems in a the recitals found reflected § 131, 152, Am Jur, Statutes, amble an act. In 50 it is said: introductory preamble or “A a statute an is preceding

prefatory following the title clause, 92 clause, of the reasons enacting explanatory

its enactment and the plished. accom- objects sought to be is word usually

It introduced by ‘whereas,’ meaning ‘considering being that’ or ‘that the case.’ It of an is not an or part essential effective of which consists all

act, purview parts thereof after preamble. preamble enlarge cannot or confer inherent cure powers, defects in the statute. There has been a gradual abandonment of statutes, the use of a preamble but where it in- inserted, regarded the law.” validating

“ * * * it is not essential of the act part and neither * * enlarges nor confers powers Portland &Van Hoss, v. 139 Storage 434, Co. 122, Or P2d ALR 1136. In doubtful cases, however, it con may be in sidered of construction. process Sunshine Dairy al., v. Peterson 317, et 183 Or 193 P2d Re 305, 543. course to in the Martin in preamble case, even case, instant do they to of relating questions the extent of the director’s of economic powers control, is not unnecessary but becomes a self-defeating The last enterprise. “whereas” reads (ch 72, Oregon Laws, 1933): 2d SS, in

“Whereas order the well-being protect and Oregon state of people promote welfare, public production, transportation, manufacture, storage, distribution and sale of business, and cream in the state is declared a hereby health public and interest which affecting he should and in controlled the manner here- supervised * * provided (Italics mine.) inafter italicized words render tantamount say- : Look here of ing body itself, not but to the the act if far he can or in one is to discover how cannot go the several sought ends be attained accomplishing the preamble. Indeed, this by part recitals Dairy supra, page al., v. Peterson at Sunshine et very following we referred to these words with the 320, preamble “The declaration observation: ‘supervised the distribution and sale of milk should be provided’ controlled in the hereinafter manner power price fixing indicative of the than no more * * *” provision of section 34-1003. can So, also, concerning § said in its relation 34-1009, OCLA, it be involving powers of the director the issuance production and the creation market licenses in Martin Had the court case observed areas. cogently applied the rules construction so Dairy applied pertinently v. Peterson Sunshine supra, I if would now be confronted al., et we doubt opinion appeal. reflected with the division of from the Martin When we thus excise case relating therein to the irrelevant references found pertaining York eases which it cites and those New holding preamble, of that the true character readily apparent and renders it value- more becomes support for in the instant matter. as a less concerning my the Martin case Inasmuch as view require interpretation over- does is one of necessity holding, ruling for me to is no there dissenting separate the matters raised discuss opinion Mr. Justice Lusk. ch amended OCLA, as 34-1012,

Section authority Oregon board’s is the basis of the 1951, Laws pertinent, prices directs as insofar and, minimum to fix prices ascertain what shall “The board locality area of the state and market milk in each industry a protect and insure milk the will best quantity pure milk and wholesome sufficient into take public shall The board interest. affecting consideration all conditions dustry, milk in- including price necessary produce producer a return reasonable and to the determining prices In milk dealer. for take of each class of the minimum any each class market board shall area, the consideration the into reasonable unit cost handling by milk incurred each * * such class mentioned minority opinion statute, Predicated ‘‘ question quoted: poses the earlier Can it be said that the defendant can insure reasonable return to the powerless milk dealer if it is to control the number operate processing plants given in a of dealers who * * *” foregoing question clearly market area?- The minority thinking, and its reveals trend of weak- exposed immediately phrase from the use of the ness is milk dealer”. “insure a reasonable return precise conveying (Italics mine.) Those are words meaning; employed positive significant and when by scholarly dissenting opinion, those author of the carelessly accepted as are used be words not theory intending give an exact definition of his powers scope conferred of the administrative nothing § there in 34- However, control act. the milk obligates in the act, elsewhere nor, indeed, any person return to to insure reasonable the director industry. engaging That persons class or protection around throw its cloak not section does implied might individual dealer therein question propounded. return” The “reasonable producers for all milk return to a reasonable referred operating affected the areas within of a class dealers prices minimum the determination established price scale is one minimum of the board. profit- even guarantee -or reasonable, insurance or or licensed individuals able, return various persons operating groups is rather of the area but against part price cutting of one of assurance any on the predi- competitors. A return, of their reasonable price average representative or cated a minimum necessarily fiscal does in a class, within a mean every insured sense member of that class will be dealing prices profit minimum so estab- of a at lished. profit cannot make a “rea-

Those who from such necessarily give way must return” to those who sonable designed guarantee can. act was not to The insure or continuing profitable every operation pro- of a for processor capital ducer who elects to or invest industry. legislative The concern in- dustry particularly comprehends as a whole and public. is, consumer This end welfare hazards the indus- main, achieved the economic try major powers minimized two which the act power the board, i.e., confers on the director and to power prices fix and the to determine market areas production power fortified distribution, with the price penalize who deviate from the those license beyond so fixed traffic in districts areas or who established. authority right enforced with the “control”, competition given area, in a connotes such

to limit potentialities power, endowed as it is with vast necessarily must its exercise destruction, standards found within and constrained limited sufficiently guide person employ- adequate act pro- ing power and in his determination such certainly exercising if is this true priety More it. guarantee in- or objective to be construed its monetary any person group sure a return for persons. The fact that we found standards for the guidance (180 of the administrator in the Martin case 473), in Or the action which he took is therein, authority concluding for that such standards obtain for far-greater power his direction in the exercise of the competition to stifle in order to insure returns for operating given dealers in a area. market See the re- cent case of v. Peterson, Demers 56 Or Adv Sh 307, pointedly decided 4, March 1953, where we and em- phatically spoke subject on this as follows: legislature “It is well established that the can to grant agency power

not regulate administrative yardstick pro unless some standard guide vided in the act as a to the administrative agency; authority regulate in other words, the wholly caprice not be left to the whim and agency. County such 180 Or Multnomah Luihn al., v. et City 542, 178 P2d of Portland v. 528, 159; Welch, 154 286, 303, 1188; Or 59 P2d 106 ALR 228, Meyer, 466, Van v. Fred Inc., Winkle 151 Or ’’ 49 P2d 1140. any I search milk control in vain law stand- whereby ards the director can measure the limits of power minority the exercise of such as the would invest him. minority’s If argu- we concede the soundness of the opinions, ment as reflected their then we become parties conferring monopolistic advantage a already-licensed

each If dealer. the defendant is em- powered to “insure a return” reasonable to each dealer by excluding competition which would from flow presence newly-licensed dealers the same area, logic previously-licensed then dictates each dealer subjected in the area should be to a further control any establishing quo lest them, status in for all of might, by enlargement one of them or moderniza- thereby previously-licensed operation, tion of his attain deny- competitive advantage result which would ing his reasonable fellow dealers the same area minority says, control act return the milk which, the designed of reason- to insure to them. Such a course ing monopoly but could stifle is not creative of given point competition area to within a market producers from where suffer consumers could processing adequate want of modern or facilities for area. and distribution reserved to flowing The evils the doctrine insured rea- readily return sonable are so infinite and so discernible by way that no further statement of illustration is necessary support condemnation aof rule which give them would countenance. economy,

The doctrine of a controlled which is the minority essence of what the here contend for, to be complete. effective must be To be successful it must comprehend and be addressed a numerical control every group every engaged of class thereof in some mill?; phase industry producer to consumer. theory Applying patent question the economic in the minority, overplus pro- of that an the is evident given in a ducers area can work the same hazard to production the of milk stabilization distribution in a minority which, the contend, area result from an given overplus processors in a market area. It would hope director vain, indeed, for the to stabilize pro- or a insure reasonable distribution return the by addressing dealer, as well as the himself ducer, engaged solely to a numerical control of those producers’ processing supply. the mill? business of Cer- minority tainly, the would not venture to subscribe to revolutionary doctrine of control such extreme and far-reaching consequence. they If of such I sub- do, they anything cannot find in the act mit that which inferentially gives expressly support or to such reason- statutory ing. very language conferring absence of eloquently bespeaks power upon such the director mill?; legislative of a intent to stabilize distribu- want engaged by parties tion a numerical control solely upon premise presence that their therein, impair quo previously-licensed might deal- the status previously engaged production ers or of those by way insuring return to or, indeed, reasonable any all of them.

“Surely,” say dissenting, majority “the those does by judicial intend strike down the Act not now entire ** *” (Italics mine.) doubt, fiat. No this bit of exaggerated emphasis is inadvertent, but the concern thereby suggests give unless manifested we can negative minority’s emphatic answer to the eco- quoted question hereinbefore all discussed, nomic by act will be lost. It an un- conferred values conveying thought not war- conclusion reasonable by long history in this case nor facts ranted administration act’s without successful any minority powers add, would nor reasonable administration be as future will of what forecast majority opinion. However, if “en- a result of the “judicial fiat” character of Act” is stricken tire majority pretend minority to find than opinion, such result much better then how mi- open Pandora box tendered the economic containing evils will nority, does new which it to a rule which insures spring if we subscribe thence every by restricting a reasonable return to dealer tbe competitors any given number of Ms area. policy

It is not for this court the economic to write legislative for this state. That is a It is not function. personal for us to suffer our on views the relative value divergent policies economic tincture theories to judicial expression. equally our axio- However, tenaciously obligation matic that we are under to cleave legislative apparent intent and it to not allow by judicially countenancing expansion be subverted powers point of the administrative officials to guise such can, where officials under discretion adequate and without of control, standards substitute of, their their lieu will, theories or their standards in contrary possibly legislative design. to, evident assigned, For the I concur in reasons hereinabove opinion majority. concurring. specially LATOURETTE, C. J., majority opinion I concur in the written Mr. specially concurring as well Justice as in Bossman, opirnon of Mr. Justice Warner. preamble Oregon to the milk bill, 72, control ch. Special

Laws, Second follows: Session, production “Whereas distribution of paramount industry upon milk is a and cream which degree prosperity a substantial and health Oregon people depend; of the state of large present emergency part is in a economic disparity prices of milk the result of between disparity other commodities, and cream and pur- power producers has diminished products, has broken chase industrial down the orderly marketing production milk and seriously impaired agricultural cream and has supporting the assets and the credit structure of the state political

local thereof; subdivision unjust, “Whereas destruc- unhealthful, unfair, demoralizing practices economic tive and have trade grown up pro- and are on in now carried sale and distribution of milk and cream and duction, products impair milk cream in the state industry dairy in the state and the constant pure supply milk inhabitants wholesome to the welfare thereof, and constitute menance to the inhabitants a state ^[*] * health and act evident from the that the directed It is above was pro- of milk alleviation of the economic distress by depression then and to insure ducers occasioned pure supply wholesome milk to consum- a constant processors, such ers and was not for the benefit appears present of the Director in the case order (In passing I the fact call attention to to be directed. passed.) long depression since that of the ’30s has plaintiff that in discloses The record this case processors already operat- purchases milk from the its producers, buy ing area from the in the Salem who requests The it consumers. then sells to directly purchase permission milk the Director producers of from instead in the area from the Salem process plant Portland, processors, it in its to consumers. for distribution return it to Salem producer procedure a such It is obvious way since or another be affected one not would be diminished. him milk sold would volume processors Salem area are now dis- per tributing 3.5 cent butterfat milk. consumer given area, license such Plaintiff, if distributor’s per manufacture 3.8 cent butterfat and sell will price at its at cartons stores the consumer paid by of one cent less than that now consumers to process again It clear distributors. adversely pro- will consumers not be affected such but will be benefitted cedure, two-fold increased price. plaintiff’s butter and at proposal lower In other words, producer not detrimental to either the granted plaintiff, the consumer. If the license were this be one of rare the would instances in which forgotten given consumer, often the a man, would be any break; however, Director, without substantial plaintiff reason disclosed has denied a record, thereby creating monopoly present a in license, processors, Salem two of which control the bullí of my opinion, the trade. in This, at the humble strikes very enterprise system root of the free which the people enjoyed founding American have of since government. our interesting “Independent

It is to note that the Pro- group plaintiff purchase ducers”, from which would permitted, appeared hearing in area, if at the joined plaintiff controversy, sides with and, good I reason. believe, It is well known that the supply greatly butterfat of exceeds con- demand; sequently, government, support in order to purchased pounds butterfat market, has millions of reposing government of butter now warehouses, creating problem disposal. as to its If back turned public, into the or to trade this, indeed, would affect producers injuriously, tending to beat down price destroyed, If butterfat. it would create glut an waste. economic This butterfat on the market part by is processors occasioned the fact that the per who manufacture 3.5 cent butterfat content for per milk, instead 3.8 cent, sell the excess butterfat govern- to the creameries, which, turn, sell to the general promote the ment. not, therefore, Would it relieve the overstocked inhabitants and welfare inuring benefit of the farmers to the market, butter pass permitted producing on were ifmilk, public of milk. butter content the increased apparent of the Director me that the order It is spirit arbitrary, within the is neither unreasonable, on facts founded nor is it act, the terms of tlm nor such order. to sustain sufficient dissenting. BRAND, J., judgment appeal the circuit from the is an

This appeal taken quashing a writ review. court like effect and with “in like to this court manner judgment court in action.” of such circuit from a exceptions § There is no bill 11-210. OCLA, present required the limited order to none was by the writ of review. raised were issues which question the de- course, whether is, The first jurisdiction statute with vested fendant has been grant plaintiff’s application, or upon either to to act assump- majority opinion the deny based on is it. The by jurisdiction statute was vested tion that such no occasion there would be the defendant. Otherwise findings any administra- discussion body neces- Nor would it be evidence. or of the tive concerning any sary consideration enter into to may inquiry scope be made permissible determining be not a license should or whether as the afore- granted. some doubt I have had While majority accept question, view jurisdictional I said may question jurisdictional point. The on that jurisdiction to have phrased did the thus; purchase application for leave to plaintiff’s entertain

103 producers holding quota upon milk from the Salem process market, that milk in its licensed Portland plant and sell it in its The licensed Salem stores? answer, while affirma- not free doubt, from tive. inquiry scope

The further is limited procedure writ of The writ not lie review. does jurisdiction correct mere errors in the exercise of inquire rulings toor whether the of the defendant application and the law evidence and in the of the law to the are correct. evidence School District 68 v. et al., No. Hoskins 240 301, 314, Or P2d 949; al., Bechtold et al. v. Wilson et 360, 182 Or 186 P2d being 525, 187 P2d 675. to act Jurisdiction assumed, only question remaining before the circuit court judicial whether the defendant exercised its was func erroneously, illegally contrary tions “that is, procedure applicable course of matter before it.” v. Carson, Lechleidner 636, 644, Or 68 P2d 482; Asher v. Pitchford, 167 Or 115 P2d 337. In we connection examine the record to deter any mine whether or not there was substantial evidence support findings the administrator. Bechtold al., et v. Carson, al. Wilson et and Lechleidner v. both supra. may also whether We determine conclusions findings drawn the administrator his were clearly wrong, arbitrary. unreasonable Richardson Neuner, v. 989. 183 Or P2d 558, 194 majority opinion length recites at considerable presented the evidence which was to the defendant hearing. The recital of this leaves evidence being reader in doubt to whether considered bearing upon for its the narrow issues which scope are before in view of the us the writ review, being or whether, hand, on other the evidence is as if considered this court we were vested with appellate powers of an administrative The tribunal. government principle a of time-honored that this is only requires adminis- and not of that men, not laws, proper trative their field, bodies be restrained within judges but that not convert the courts into also, should nonjudi- agencies by usurpation of administrative pass cial on to a con- functions. this comment I With question sideration of the case. the fundamental juris- assignment challenges of error first prevent power of the defendant diction entering plaintiff market in the man- from the Salem peti- raised in the ner The real contention indicated. plaintiff of was that had tion for writ review production purchase right mill?in the Salem area, process sell it in Salem without it in Portland and any securing all, new license at doing. power prevent plaintiff so That had no assignment plaintiff’s first basis is the contention jurisdictional issue of which the It error. is this point appeal says, “The most vital assignment upon of error.” first rests majority in with the the view I am accord except no choice to determine whether court has upon power deny the defendant the the Act confers processor-distributor application for a license to granting which the adverse effect because industry. upon If have the milk the license would question may, as to field is al- whether the then the though adequately ready relevant, served becomes adequacy solely If it then not, determinative. questions existing all as to service and market best interests a stabilized effect industry of the likelihood of demoralization the immaterial. become among many petition other review,

The for a writ of attacking specified grounds order, defendant’s the specifies following: adds “Section 34-1006 OCLA the grounds upon all a license be denied the any deny on and defendant did not said license grounds specified.” the I shall that therein show require provisions the section that identical give aspects the consideration to defendant economic considering applications for a license. my point throughout But at the moment is that argument plaintiff, propo- the oral the brief and two only seriously argued; question sitions are first, the jurisdiction, the contention that the second, denying findings “order the license was based on un- supported by substantial evidence and on conclusions properly which could not be drawn from said find- ings.” only These issues form the basis for the as- signments Throughout two in number. error, briefs argument plaintiff challenged and oral has not right inquire whether the granting adversely of the license would affect argue market. It does not the defendant must disregard public interest or that increases in costs industry are irrelevant and stabilization of the imma- contrary, argument terial. On its is that there support findings is no evidence on those issues. majority opinion goes, beyond outside of and argument very of and cuts into the vitals system. merely of the milk control It does not consider support whether there was evidence to substantial findings. goes further and, It in substance, holds that findings upon immaterial were made issues, and consequence, proper no. conclusions that, as could be opinion, based them. As I read the the result findings reached would have been the if same those supported by great weight had been of the evi- proper quote excerpts dence. I deem it from the majority opinion which tend to indicate the real basis proposed my analysis opinion decision. If far-reaching scope then correct, thereof should brought sharp any into focus to the end that judicial change existing construction of the law shall be made after full consideration. If I have meaning my misconstrued the of the decision, error, no pointed will be doubt, out. may by

What circumstances be considered the exercising acknowledged power defendant in the grant deny hearing? or a license after due Was the probable defendant entitled to consider upon the effect industry the milk in application the Salem area if the plaintiff granted? opinion were The majority accurately position states the taken denying quote: in its defendant order the license. I “The denial resulted from the defendant’s be- adequately lief pro- that Salem is served milk grant cessors-distributors and that a to the requested prejudicial of its license would be stability industry.” economic of the milk Obviously, findings, as indicated eco- aspects nomic of the case important, were deemed to be actually controlling. if not passing upon If, application, authority defendant was without consider the economic factors, on the basis which decision its was made, then, course, the decision convincing stand, cannot no matter how the evidence may aspects be on those of the case. It is said that reasonably makes the statute clear the circumstances upon may grant deny which or licenses. opinion be the relevant lists it deems to The what should follows: considered, circumstances which responsible; capable Milk should dealers should be and personnel equipment; adequate and should have inability unwillingness given indications of have properly conduct the should maintain business; concerning production adequate records costs of distributing. expenses processing and court speak in mind adds: also have the sections which “We ‘territory con- areas’ which ‘natural market production, processing involved in ditions Again court distribution of says: are similar’ familiar the defendant with “Likewise, market in them various areas and the conditions cope.” seen with a milk dealer must It will be which statutory although mind” the court has “in that, provisions concerning and ter- natural market areas production, pro- ritory in which conditions involved although cessing are similar, and distribution is familiar various that the defendant with the said in them areas and of the conditions with market cope, say that does not a milk dealer must court to the defendant be con- conditions known those application passing license, for a sidered say mean to so, does not I fear that the court and, up summed follows: matter is entire * * “* question he which must answer The analyzed the record is this: Is this has after he applicant responsible equipped render service de- which he seeks serve. The in the entire area fendant deny however, to a li- authorized, is not merely applicant cannot indict cense because ’’ being already which is rendered. service reading opinion of the entire indicates A competing pro- a new that when hold intends court cessor-distributor seeks to be admitted to the Salem presently being area, the fact that the area is ade- quately served is not relevant to the issue. In the entire opinion, recognition any right I find no licensing defendant to consider whether or not the processor-distributor operate competi- of a new in presently jeopardize tion with those in the field would presently the maintenance of the distributive facilities adequately supplying the needs of the area, disrupt whether it would the fair distribution disposal surplus, burden, incident to the or whether production it would demoralize the and distribution of milk in the Salem market. majority opinion concerning

The the limited func- considering applications tion of the presents question importance a license of immense compari- to the administrative state, bodies of this question son with as to there is whether support findings substantial evidence to case one of instant becomes local interest. necessary It is not to search the record for some tending grant substantial evidence to indicate that the ing processor-distributor of a license would affect and existing tend to disturb conditions the Salem market. already majority The search has been made. The opinion plaintiff states as fact that will deal with in manner trade different from the Salem that em principal proeessors-distributors. ployed by the other higher precentage Its milk will contain of butterfat. present, name. sold under a trade At will be It buyer paper purchased in cartons costs the a half cent will more than milk bottles. eliminate buyer if chooses Lucerne milk. The difference major milk processed dealers is made available delivery service; so the milk consumer buy by plaintiff. plaintiff from Tbe would be sold dairyman, reducing thus of tbe milk tbe tbe total produced quotas processed under which will be Salem by present processors-distributors, which there of pro selling principal are five. Producers now imposed subject are cessors are to the burdens which say, regulations. pooling That is the authorized surplus they get price such for milk when lower buys pro surpluses direct arise. If subject pools, of “it will be to the effects ducers, * s regulations his unless defendant alters majority of in the In addition to the statements fact concerning opinion, there are recitals evidence upon offered to show that the effect net incomes of present processors adverse. The fact that would be question opinion for evidence was received raises no proceeding. The witnesses our determination any experts, we do not sit to review event, were and in rulings the admis administrative bodies on of weigh sibility evidence. If evidence, of any authority to consider the has effect granting plaintiff’s application would which the industry public; if it and the could con have familiarity “with the various sider its market areas * * # in them with which the conditions a milk cope”; bearing if it could consider the must dealer increasing necessity probable costs or stabiliza danger or the demoralization of market tion production or the and distribution evils discrimina pending case is one in which such effects then, the tion, by us, considered, not but defendant. should expressed opinion as to the merits of the need be No value, It be of doubtful but the law. control this court has law, held, is the entire basis competition limiting controls establishment production prices public interest, means we have held to be constitutional. majority opinion beyond Let us see if goes the the plaintiff. brings contentions of the This us to the case of ex rel. State Peterson v. Martin, 180 Or 176 plaintiff, P2d In 636. that case as Director of the Department Agriculture, brought enjoin of suit to selling public city defendant from milk to the of Sheridan without a license. Defendant claimed that replied, he had a license. in The substance, manifesting that certificate a license was issued authority without and inadvertence. The trial court enjoined selling city from milk in the judge dissenting. and decree, we affirmed the one We held the certificate issued that was void therefore that defendant was without license to sell dis- portion tribute in Sheridan. This of our decision has bearing portion pending on case. no The importance part decision does have is that which enjoin considers and determines whether to Martin distributing being milk in Sheridan, he without a license. April application by

In 1945 an defendant Martin for a as a dealer license Sheridan was denied Agriculture and a the Director writ review sued by Martin dismissed in out was the circuit court on again December Martin 5 November 1945. On 31 producer-distributor, applied for a license as and it application pursuant to this second the one was —not proceedings on writ of review—that involved questions were arose which decided in Peterson appeal to court case. his Martin —Martin On application “Upon argued for a distributor’s Agriculture Department of has no discre- license, and must allow the such a’license same refuse tion applicant has appears that the distributor unless it guilty any set forth Section the acts been Again assigned as error he 34-1006 O.C.L.A.” presented injunction. granting issue appeal similar to was in the Martin Peterson quote: I pending Prom brief case. his Legislature provided “Specifically a method limiting classifying licenses as means controlling, extent the distribu- some reasonable industry. existing system in the fluid tion

# “* * # ^[*] * # Obviously ^[*] method of control- present ling the evils distribution so as to remove distribution facilities was avoid excessive therein inevitably overlapping led to- routes which with wards increased ultimately increased costs dealer prices to the consumer.” cost urged upon administrative brief then court the The of Act and said: construction the * * “* interpretation This of the Milk Control affording challenged by power now Act as appellant should be of the instant con- decisive troversy, particularly light of the fact that the repeatedly Legis- has amended and statute been deny seen fit to or the at- lature has never revoke power respect tempted exercise of with classifi- licenses(Italics ours.) and limitation cation of year said in the 1946. This was In case this court the Peterson-Martin refers to the had reeéived fact evidence been “under the rule” adequacy concerning delivery of house-to-house concerning superior alleged quality of the by Martin. court said: milk sold The * * “* suggests that, Defendant under such charged having he cannot circumstances, with Upon question, public nuisance. created a how- US (even pertinent,

ever, if it were in view of which, comparative quality the fact that the of the not) findings in issue, was not it was County against Circuit Court for Yamhill him. were appeal taken No was from that court’s decision, and judicata.” isit now res given by

This is effect this court to the decision impossible on writ of”review case. And it is opinion to determine what was the basis .of Certainly decision on the writ review. it decided no issue which after arose the date of the order which thing grounds it reviewed. sure; One whatever the might decision the Peterson-Martin case have clearly power court been, the based the decision on processor- of the defendant refuse license to a grounds nothing distributor on which had to do with responsibility equipment applicant. or I quote:

“It is contended that the Act does not vest the administrator discretion whether to issue with to refuse to issue a milk-distributor’s license to a properly qualified applicant. argument The is that if administrator has no discretion to refuse to parity reasoning, a license, then, issue follows except that, for violation the licensee specific provisions 34-1006, the section O.C.L.A., (none present case) are involved ’’ authority he without revoke license. “argument” appears inescapable. to be If the administrator had no discretion to issue or to re- enjoin issue a then license, fuse to the court could not selling regardless ques- defendant from milk, concerning tion the unauthorized of issuance the cer- expressly It will be noted court tificate. that the stated provisions § OCLA, 34-1006 were not in- concerning That case. is the section volved

113. granting cancelling requiring keep- licenses, ing directly of accounts and etc. The issue was records, presented by directly the administrator, and decided by the court. The court said: “The administrator, hand, on the other insists designed regulate range that the Act is to the whole activity production, involved in the distribution, storage manufacture, human of fluid milk for sale consumption. legisla- The evils which the sought remedy ture to included those cut-throat competition among duplicate dealers, excessive and spasmodic irregular supply routes, depression

wholesome milk to the and a consumers, prices producers. sug- to the The administrator gests the adopt remedy that it is to that, obvious those evils, legislature power intended to invest him with to regulations such reasonable as would tend * * *” general to purposes further the of the Act. quoted preamble The court then of the Act, unjust, which recites the demoralizing destructive and practices trade production, are carried on in the sale and impair distribution of milk, and which dairy industry and constitute a menace to the welfare of inhabitants. court considered whether the Act guid- contained sufficient basic standards for the ance of the administrator and in that connection con- Savage sidered the effect of v. Martin, 161 Or P2d 273. The court said: cc* * * empowers Section 34-1009, O.C.L.A., classify

administrator licenses, limit them particular city village, particular or to a mar- ket or markets, and to define what shall constitute a natural market area. A market is defined in- (cid:127) no, ordinarily city clude together When more than one or town reasonably contiguous territory. with closely two or more towns or cities are so adjacent they comprise to one another that but subject one natural market area and are adjacent marketing towns conditions, such same or cities and territory may contiguous be included area include area. A market one market only territory involved in conditions processing was It milk are similar. and distribution necessary, to the determi- course, leave question nation administrator required facts which the status existence of the * * depends. a natural market of an area as reviewing the court continued: authorities, After by up set the Act “We hold that the standards sufficiently adequate guide the administrator are issuing propriety of in his determination ’’ refusing a to issue license. Applying facts of the case, that conclusion to the as follows: court stated its conclusion “* * * determined As the administrator had already adequately market was the Sheridan granting served, of a license to and that distributor sell milk therein would additional economically public interest, wasteful, not production and distribu- and harmful to a stabilized consump- for human tion of fluid milk and cream opinion refusal of the tion, we are of the that the permit Mr. administrator to enter the Martin area a reasonable Sheridan market was exercise discretionary power a valid in the adminis- vested by justifying trator of facts Act. The existence action, due notice and administrator’s after hearing, presumed, competent is and there was no presump- evidence in the record to overcome such ’’ tion. reading my opinion, last-mentioned In conclusively demonstrate that what was said case will adopted was dictum, the court after was notwithstanding dissent deliberation majority opinion pending case. author of the law means of adherence to The stabilization precedent important sound at least as as the stabili- industry. zation of The decision ex State rel. v. Peterson Martin should not be overruled. majority opinion, as we have lists con- shown,

ditions which must be met before the defendant They equip- authorized to issue a license. to relate the applicant responsible ment “to render service in the entire area which he seeks to serve.” These imposed conditions are not out of solicitude applicant, keep by or to him from financial loss reason entry adequately his into a field which he cannot supply. imposed The conditions are for the benefit of particular prevent no disruption individual, but to by industry entry competitive milk into the ill-equipped irresponsible field of or dealers. findings

The and conclusions of the defendant were merely not made because the Salem market was ade- quately upon served, or because of an adverse effect findings the interveners. The themselves demonstrate that the prospective license was denied because of the industry adverse effect the milk in the Salem testimony area, which is illustrated of the two principal processor-distributors therein. The state- majority opinion buying pro- ment that in from plaintiff subject ducers the would “not be to the effects pools” particular importance. is of supports It granting contention of the defendant that the of a plaintiff license to would tend to demoralize respect production market, both in to and distribution. subject If pools, would not be to the effects of resulting surplus pools then the losses mill?: would wholly by pooling system borne others unless the changed. were legislature empowered

The has the defendant regulate industry, including the milk manufacture, dis- § as amended 34-1003 OCLA, and sale.

tribution chapter author- But this is not the 639. 1951, Laws ity to ascertain It is directed in the defendant. vested prices locality area best market will in each what industry public protect OCLA, interest. milk chapter The § 397. amended Laws 34-1012 requires into the Board shall take statute same industry, affecting all conditions consideration including necessary produce prices a reasonable producer milk dealer. and to the both to the return, specifically authorizes the de- 1951 amendment unit costs reasonable into consideration to take fendant delivering. hauling, processing, selling After investigation, to fix minimum is directed the defendant prices.

‘‘ may classify issue licenses and The board manufacture or sell store or licenses dealers city village particular milk particular or to a to a limited state, markets within market or may area and define and a natural market constitute what shall define limits of the fix the milkshed produced milk shall be area which territorial to within * * marketing any *.” supply area . OCLA, such § 34-1009. can insure rea- said that the it be

Can powerless if to milk dealer return sonable operate processing of dealers who number control the given The defendant market area? plants geographical and limit the to authorized define further produced for milk shall be the fluid area from may under uniform any given determine market. It “produced by proportion each of the what rules as fluid milk producer as marketed considered shall be pro- proportion consumption so and what human for may provide surplus.” It be considered shall duced § OCLA, 34-1013. license pooling of both. Company plaintiff Milk Lucerne for the issued to may, plaintiff provides expressly under that the operate processor-distributor in the Port- aas license, light statutory provisions, of the sales area. In the land plain- to mean that the the license should be construed may process through plant, milk and its tiff, Lucerne area. Em- same in the Portland sales distribute the may ploying manu- of the statute, the words particular (process) milk limited to facture sell namely, market. The the Portland markets, market or be hold construction would to other conceivable processor-distributor was, effect, license separate process one to dis- licenses, two one processing would tribute. The dismembered license merely then mean that the defendant limit city particular processing plant location of the to a any leave or market. This would licensee construction processing plant anywhere who has a in the state free buy any production state, area in the milk from enter producers corresponding it in the sales area. and sell theory majority opinion, the de- Under powerless except fendant would be to interfere to see seeking competitor, having license, one, that a no responsible equipped should be to render service. On theory, invading competitor powerful the more processing the more destructive would field, competition power his and the less would be through agency control market state its conditions. Any emasculate Act such construction would power withdraw from the defendant the consider of licenses the relevant to the chief the issuance facts purpose namely, the elimination economic Act, through competition. evils uncontrolled separate provisions require of the statute a Three power interpretation of the of the defendant. liberal 118 may adopt necessary

The defendant rules and orders carry provisions § to out the Act. 34-1003. This undoubtedly provision applies authority fix Again, power prices. in connection with to define marketing production pools, and areas to establish any may the defendant make other order or exercise necessary power further be such for the full objects. accomplishment § of the aforesaid 34- OCLA, Again provided is 1013. it Board shall have necessary carry power to make all rules and orders to purpose of out true intent and the Act. OCLA, expressly powers § All of the enumerated 34-1015. by upheld been the court. The defendant have has given not been unfettered discretion the three general provisions to which reference has been made. imple- that the exercise of these This court sits see menting powers employed is limited and can purpose carry out the intent and of the Act, true purpose already has been defined this court. quote pertinent passages: I

From recent treatise ample provision is for notice, “Where there thought hearing, these argument, where sufficiently guarantee intelligent a fair and impartial disposition informed and case likely action, broad standards are administrative upheld. to be judicial provisions permit review

“Where large superin- measure court to exercise the tending agency, reasoning over the this control persuading more effective courts even ’’ very setting up vague standard. statutes sustain Agencies Cooper, Courts, and the Administrative pp 44. 43, Light v. Securities and In American Power Co. Exchange L 90, ed Commission, US scholarly light problem attention received

119 industry practical limita- and the realities of modern regulation upon legislative of measures for the tions complex activities. The industrial and commercial guidance pro- statute for of administrative action general vided the broadest standards. United Supreme States Court said: “* * # They meaningful content derive much background purpose factual Act, its statutory they appear. in which and the context * # # judicial approval

“The accorded these ‘broad? is a reflection standards for administrative action legislation dealing of the with necessities modern complex problems. economic and social See Sun Adkins, 381, shine Anthracite Coal Co. v. 310 US legislative L 398, 84 ed 60 S 907. The 1263, 1273, Ct process were hand the bog frequently Congress if would down constitutionally required appraise before myriad situations to it wishes a which particular policy applied to be and to formulate specific Necessity rules for each situation. there point beyond fore fixes is unreasonable impracticable compel Congress prescribe constitutionally rules; detailed ficient if policy, it then becomes suf Congress clearly general delineates the agency public apply which is to it, and delegated authority. the boundaries of this Private rights protected by are access to the courts to test application policy light of these ’’ legislative declarations. Such is the situation here. Opp And see Mills, Cotton v. Inc. Administrator Wage Department and Hour Division Labor, 312 L 126, Landon, US 85 ed v. 624; Carlson 342 524, US 96 L ed Yakus v. 547; States, United 321 L 414, US 88 ed 834. repeatedly

We have said that “The evils which the Oregon Milk Control Law are intended to correct are chiefly Savage economic ones.” v. Martin, 161 660, Or

120

91 P2d 273. also ex rel. Peterson v. See State Wood Considering 179 P2d 961. ruff, Or Act apparent through as a whole, it is control exer licensing power integral part cise of the is an program, purpose entire avowed which is the industry. stabilization and control of the Surely, majority does not now intend to strike judicial down the entire Act fiat. Its constitution- ality notwithstanding was established a dis- by including sent three members of the court, majority opinion pending in author I case. high regard judicial have for once firmness, considered conviction has been reached, but cases this kind, opinion the time should come when must individual give way precedent. Savage supra, In v. Martin, (1939) upheld validity provisions this court authorizing price-fixing, quotas the establishment of pools provisions vesting and the in the defendant power geographical to define limit area from produced any given which fluid milk be shall for page market or sales area. It was held in that case, at “primarily pro- that the statute 681, was enacted public by relieving mote the interest those in the milk industry exposed from hazards to in an uncontrolled market.” It was further held that: “* * * up, opinion, The standards set in our are

legally legislature and the sufficient has dele- not gated power its law, to make but has conferred upon rules authority the board to make administrative (United States v. 220 Grimaud, 506, U.S. 31 563) carrying legis- L.Ed. S.Ct. out the * * *” policy. lative Eelying upon subsequent this arid decisions, the legislature seen fit to continue and has from time to modify set-up time the administrative which now multi-million over a and control exercises supervision establishing acts legislative dollar Other industry. have been agencies passed administrative haying this court by established the legislative principles view and the delegation realtive to administrative powers The has not set legislature up separate thereof. administra- limiting standard specific yardstick concerning another concerning quota, tive action prices, mar- for on, another and so pools, production are clearly areas the like. All of those powers ket of the entire Act which limited by expressed policy elimi- industry stabilization of the looks toward exercise nation uncontrolled competition. by statutory phases, alone powers limited, arbi-

but also of this court to strike down duty If wherever found. administrative action trary court to consider power the defendant deprives granting withholding economic effect its action for unre- opened the door will processors’ licenses, milk indus- stricted at the heart of the very competition of the other try, powers with the result the exercise this court vested in defendant and confirmed of the legis- will be ineffective for the accomplishment lative purpose. at- merits

One additional statute provision tention. 34-1006 authorizes OCLA, expressly § a to or to revoke license grant defendant decline to milk has it “that a dealer committed when appears or to health, act to welfare any injurious public such an extent as to trade or commerce in to * * V’ The text obstruct this act purposes of is not but fortunate, of the quoted provision perhaps If a licensed milk dealer lose may its is clear. purpose to or of acts trade com- injurious his license because milk such as to obstruct purposes merce in legislative apparent act, then, intent is that grant granting defendant decline to a license if the of it in a authorize would result condition which would its revocation. majority let

Now us see what basis processor- decision. The defendant that the contends plaintiff proc- distributor license issued to limits it to essing distributing milk in and for the Portland process market and if desires to mill? production Salem area in Portland and sell processor-distributor it in a Salem it must have license (as present one) particu- which is a not limited is its city village particular lar or markets, or market or city to wit, the of Portland and the market Portland area but which the Salem area. far, covers Thus appears majority opinion agrees. quote: that the I

“* * * pkg plaintiff’s processing Portland plant [Lucerne] has a license issued the de- process mill? fendant which authorizes it to for sale * * *” only. market area Portland quote Again I therefrom: * “* * possesses we see that authority single a milk dealer to restrict market process him to for and milk in authorize sell more * * *”

than one. quote: Again I

“* ^{[*] [*]} The act * * * deems that licensing con- determining applications which sists, rejected, granted be but also should assigned markets which should number of * * *” licensee. majority opinion agree. Thus, the basis I plaintiff challenged juris- hand the the one clear. On argued defense and as second-ditch there diction, support findings evidence no substantial was hand, On other and decisions of defendant. juris-

majority opinion had assumes that the defendant grant deny license but that to or new diction upon considerations which based denial of license was permit Let to entertain. the defendant law does goes beyond majority opinion the conten- us see if the directly opposed plaintiff. The tions of the decision The defendant decision in Peterson v. Martin. to the pending upon in case relied Peterson v. Martin as ’ ‘‘ ’ plaintiff precise question. The made decision on authority that but in case, fact, no attack unsuccessfully distinguish it. tried to yet I have to be told how this court could have injunction restraining granted Martin the defendant selling milk held, from in Sheridan unless first, power grant deny had or licenses, granted that a be second, license should not opinion set forth in the none court, reasons responsibility equipment related to the any the defendant. If there be innovation in this ease, it is not to be found in the dissent. respect provi pooling

A further word with statute is 34-1013, sions of the order. Section OCLA provides, substance, the defendant shall have power, regulations uniform under rules and to deter proportion produced by milk mine “what each producer milk be as marketed shall considered as fluid proportion consumption pro and what for human so surplus; (c) be as duced shall considered pooling averaging provide all for the returns * * * subject regulations may such rules * i:= surplus production imposed for the control of permitted purchase If the should be producers process area, the Salem it in Port producers stores, and sell it its Salem who land plaintiff subject sold mill? to the would not be their, having part product burden of of classified as surplus price at-a lower and this, as found the de- surplus upon fendant, would throw the burden producers supplying all Safeway other than those majority opinion plaintiff stores. The states that “the subject pools, will not to be the effects of unless regulations whereby pro- defendant alters his some supply Curly pool May- ducers and others the flower.” suggested complications

I the economic which would production pools arise in field if there were two buying in Salem and if, addition, the was producers subject pool who were to no at all. If two-pool system it be intimated that the in Salem is illegal § compelled under I OCLA, 34-1013, should be to § differ. We must not overlook 34-1016 OCLA, exempts cooperative which pro- associations from the § visions of OCLA, 34-1013 which would otherwise

govern right cooperatives and which asserts the pool Mayflower cooperative of their own. is a asso- pro- ciation. What would be the economic effects on system whereby groups of a ducers two received their proceeds pools from different at different rates and group wholly a third was free from the burden pools surpluses, is not for this court to determine. presents question experts, It and the decision affecting producers proc- would be one more than essors-distributors. concurring opinions supported by are elo-

quently expressed personally economic views, held, concerning of controlled evils economics and the blessings enterprise. free If those views sound, are they may they legis- be, should be addressed to the lature, voters, or rather than to the courts. For agree de- I that the I reason withhold comment. long pression passed, I but has since of the thirties’ question relevancy in view of that comment again upheld 1947. the Act was in 1939 and fact that at this late date Was it intended intimate legislature power con- to establish economic is without depression exists trols because no now departure propose from established law I no preceded from an administrative construction our a total and was them over decisions confirmed period years. twenty protest I deem I do what overruling decision, of a the doctrine which legal challenge until was without clear and which was challenged by the which rendered the decision. court join, The Mr. sets which I dissent Justice Lusk, why compelling not, forth this court should reasons change at cannot, the law this time without fact, legislative power. usurping If the administration of injurious by the this court has law as construed been dairyman public, to or to the has not been the the fact may brought our in this case, attention but legislature brought ses- of the now in attention sion. power

I do not contend that the defendant has merely processor deny a a license to the de- because is “believes” that sufficient milk service fendant already being community. the de- rendered to deny merely right no a license because has fendant - - hearing, -. he He a receives evi- believes holds supported findings makes which dence and must be by arbitrary. not and must not be He is evidence single issue, i.e., whether sufficient controlled already being em- He is mill? service is rendered. granting powered effect of the to consider what the industry stability of milk would be license producer and the economic welfare of and dealer and public. Among other he matters, consider the adequacy inadequacy existing or service. processor

No contention is here made that the or object distributor should be substituted as the producer public Act’s solicitude. The interest paramount, extraordinary is no doubt but the limita- majority places upon licensing tion now power processor-distributor not affects but producer public his relations to the and to the and to industry. extent, it strikes at the heart of the mill?: quo I do not advocate defense of the status protection monopoly. I do contend that is function limited statute to wielding stamp “approved” aof rubber marked on every application financially for a license one who is responsible equipped, statute, and well but light years considered as and viewed in the whole, judicial empowers of administrative and construction, aspects the defendant to consider broader economic regard pro- of the case with due for the interests public. If ducer, distributor, the defendant has judicial remedy power, its abused correct power. not to abolish the The latter abuse, function legislative. I reasons, For these dissent. (dissenting). LUSK, J. dissenting opinion,

Mr. Justice in which Brand’s why join, sufficiently I I states the reasons cannot opinion. I in the court’s have little to add concur to express my other than to con- he has written what majority’s cavalier treatment of a con- cern over the trolling precedent court. I refer to ex of this State rel. (herein- Martin, 459, 176 P2d 636 Peterson v. Or case). Martin as the That case de- after referred to agriculture, as administrator director of cided (now Mar- as the Milk known of the Milk Control Act Oregon 1949), keting § author- Laws was Act, 4, 449, ch deny application for to a dealer’s ized under statute because of the distribute milk in a town a license to already adequately particular market was that the fact is that economic The basis of the decision served. brought passage of the about considerations which policy, may guide the dis- underlie its Act, administering passing inAct of the official cretion application The case dealer’s license. con- court, the full decision was was heard judges, judge dissenting. Without six one curred judges argument upon point three now overrule majority insists that member of the this decision. One “clarify,” necessary only but to overrule, it is not to by refusing clarify a decision But, the Martin case. persuaded, accept I am decidendi, still, its ratio it. to overrule argument the brief nor on the oral have

Neither questioned Martin for the here counsel suggestion no from that source case. There has been attempt was an overruled. There dis- that it be They parties tinguish it treated law. but both it, applicability the facts of this as to its differed January 1947, rendered 15, case. The decision was convening regular days 44th session after two Assembly. intervening Legislative Oregon In the third sessions, such and now a been two there have time January progress Dur- 12,1953. since has been is ing years Milk Act has not been Control these repeal forgotten the 1949 and Efforts to law. and House Bill Senate failed: Senate 1951 sessions 4, p. p. 98, idem., 705; House Bill 795; 1949, Journal p. 1951, House Journal Bill Senate Senate 128 House Bill 676. amend-

637; 6, idem., p. Attempted Bill ments were Senate Senate and House Journal 340, House Bill and House 735; Senate Journal 1949, 564, p. and House Bill 716. House 1951, 758; idem., p. 269, p. Bill have amended the con- 34-1009, OCLA, 564 would § in the Martin struction of involved directly which was Bill 269 calls for more case, as it is this case. House Act has been amended Further, extended reference. Laws 547, not now relevant: Oregon Ch particulars eh Laws 1951. 1947; 369, Oregon rejected House Bill introduced and in the has session, important bearing upon present its One of was to eliminate apparent purposes question. of minimum for prices fixing except Another mani producers producer-distributors. the law as established in change fest was purpose This would have been Martin case. accomplished OCLA, insertion 34-1006, by amending § in the clause of that section opening so “only” word read as follows: “The board decline make it as to or license, may suspend or revoke license to grant due notice and opportunity any applicant, upon when it heard, only to be etc. appears”, the applicant for refusing, grounds suspending Then follow in the found8 present 34-1006, a license § revoking have course, would been the These, OCLA. action had the bill been enacted into for such grounds have been what the court’s then would The law law. be, it to notwithstanding case declares in this decision House Bill 296. pass legislature failure Martin case was producer- distributor. the law at the time of 269 had been Bill

If House not have approved court could that decision Martin’s appli- in denying action administrator’s cation to sell distribute milk license -within on city Sheridan the granting ground of such milk, license would result in a fluid surplus thereby about a condition bring public interest and harmful to a stabilized and dis- production tribution of did fluid milk. however, The legislature, not see fit to the existing law in change regard. The on majority of the committee food and report dairying the bill recommending pass that do was and the bill the adopted indefinitely postponed House. 456, Senate and House 716, Journal 1951, pp. 457.

In the failure of my opinion, the legislature since the Martin decision case to give further expres- sion to its will with respect to the interpretation statute amounts, which we then adopted, the cir- I cumstances which have outlined, to legislative ap- of that In 50 Am proval interpretation. 318, Jur Stat- utes, is said: § * * In this it has respect, been declared a

that construction has been judicial where placed of a statute for upon language long period time, of so that there has been abundant opportunity for to further lawmaking power give expression to its the failure do so will, amounts to legisla- tive and ratification approval the construction courts, statute placed that such construction should be adhered generally to, leav- it to to amend the law ing legislature should be deemed change necessary. These rules are par- an where amendment ticularly applicable is pre- sented to the fails of in legislature enactment, is where the statute amended other particulars.” citations foregoing suggested, in argued, either plaintiff has or even argument, printed construction brief or oral erro- case is in the Martin of the statute announced urged, that we intimated, even neous, and has not decision. should overrule my opin- in which, is further consideration There a question. In should be held to be conclusive of ion, assembly January, legislative now session 1953, January signed, governor passed, on 26 House enacting thereby law the statutes of this into 2, Bill appointed for that commission revised a as state Oregon purpose. code is Revised name of new The provides “The 1 statute of the Act Section Statutes. hereby are of this Act after section 8 forth laws set Oregon.” The Act State as law of the enacted 31,1953. December effective is to become its terms 131 provisions §§ OCLA, 34-1001to with 34-1018, their present amendments, which constitute the Milk Control any change Act, are re-enacted without substance including present §§ whatever House 2, Bill 34- 1005, 34-1006 and li 34-1009,OCLA, which deal with except necessary changes, censes. In fact, formal language appears of the re-enactment identical with that used in 34-1005, OCLA, OCLA. Section is 583.320, ORS; §34-1006, is OCLA, 583.340, ORS; § 34-1009, OCLA, found three sections of 583.100, as follmvs: 583:110, ORS 583.330. It a well recognized statutory rule of construction that “when provision a statute or clause or thereof has been by a construed court last and the resort, same is substantially legislature re-enacted, the be re garded adopting such construction.” 40 Am Jur applied § 442. 461, Statutes, This court rule has in a number of cases. v. State Acc. Lindeman Indus. Raper, Comm., 245, 183 Or 192 P2d v. 254, 732; State 174 Or 255, 149 Jackson, P2d Overland v. 165; L 455, 463, Or 275 P 21. also, annotation, ed See, seq., 106 et where are cited decisions of the United Supreme States lower Court, courts, federal appellate supporting rule. courts of 27 states Particularly apposite is Lindeman v. State Indus. Acc. supra, urged Comm., over which this court was construing provision rule decision Work opinion by Compensation court, in an men’s Act. The said: Mr. Justice Bailey, why no we should see reason overrule “We thorough after a case. It was decided con- Gerber question presented. of the identical here

sideration case in the decision in that 1940, Since there have legislature four sessions of the been (c) change enlarge, §in 102-1771 was to made in 132 application

1945, in the time which to file an for compensation aggravation increased to two one years. presumed legis It that the be Tmowledge with lature re-enacted this section ruling case, and that when it embodied Gerber precise the 1945 enactment the words of had case which been construed in statute Gerber adopt it intended the construction which had placed thereon the court that case. been Over Jur., P. Am. Jackson, 455, 21; land 128 Or 275 50 v. (Italics added.) §442.” 254. Statutes, 461, 183 Or revised the courts In the case of statutes codes presumption. apply in Am the same stated Jur As pre- “where a statute has 469, Statutes, §455, which judicial viously is included in received a construction presumed was to that the intention code, will given adopt court, statute the construction provision no so where construed, the code will be change ap- purpose in the law to make substantial pears.” annotation, cited in authorities See, also, Act, Milk Control L 108. An examination of the ed change has that no substantial OES, revised in shows the direction with and this is accordance been made, Council legislature Eevision the Statute without codify in this state laws revise the should § Oregon 3. altering 317, ch Laws the sense. exceptional which, under cir- cases are There present have refused here, courts not cumstances legis- apply In view of the rule of construction. I history have called which matters to and other lative be now should course that is attention, minority regretable highly that a pursued. It is so. to do undertake should court say con- Mr. Justice authorized I am Brand opinion. in this curs is notes supported Court the Hnited decisions many Supreme courts. States and of the state legislative As have I in the sessions of the shown, assembly case, which have been held Martin since adopted, amendments the Milk Act have Control been many attempts to amend it have been made with- always object out The Act has been the success. Among proposed solicitude the lawmakers. Bill failed House amendments which have changed the law so the 1951 which would have session, change, nullify Martin This as to decision. by today’s legislature effected make, refused to according to done even decision. And this is without charged duty responsible with the official, state presumably administering has relied law, and who oppor- acts, in his official on this decision court’s question. tunity For notwithstand- be heard on the ing grounds any been stated relief have for repeat, I by plaintiff petition review, writ challenged, in this court I not be and think it will

Case Details

Case Name: Safeway Stores, Inc. v. State Board of Agriculture

Court Name: Oregon Supreme Court

Date Published: Mar 25, 1953

Citation: 255 P.2d 564

Court Abbreviation: Or.