McCaffrey's Food Mkt., Inc. v. Mississippi Milk Com'n

227 So. 2d 459, 1969 Miss. LEXIS 1356
CourtMississippi Supreme Court
DecidedOctober 27, 1969
Docket45447
StatusPublished
Cited by31 cases

This text of 227 So. 2d 459 (McCaffrey's Food Mkt., Inc. v. Mississippi Milk Com'n) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCaffrey's Food Mkt., Inc. v. Mississippi Milk Com'n, 227 So. 2d 459, 1969 Miss. LEXIS 1356 (Mich. 1969).

Opinion

227 So.2d 459 (1969)

McCAFFREY'S FOOD MARKET, INC.
v.
MISSISSIPPI MILK COMMISSION.

No. 45447.

Supreme Court of Mississippi.

October 27, 1969.

*460 Rex K. Jones, Hattiesburg, for appellant.

John L. Hatcher, Cleveland, for appellee.

RODGERS, Justice.

This is an appeal from a decree of the Chancery Court of Forrest County, Mississippi, sustaining an order of the Mississippi Milk Commission in which the Milk Commission suspended the license of appellant, McCaffrey's Food Market, Inc., to sell milk for a period of 120 days or, in lieu thereof, to pay a penalty of $5,000.

The circumstances leading up to the order of the Milk Commission dated November 9, 1967, suspending the license of the appellant have considerable factual background. The history of the organization of the Mississippi Milk Commission is fully related in the case of Mississippi Milk Commission v. Vance, 240 Miss. 814, 129 So.2d 642 (1961). It is sufficient here to point out the original pricing orders of the Commission, adopted in 1960, in which the price difference between regular and premium milk was one cent per quart and two cents per half gallon. The difference between the two products was the butterfat content in the milk. It was fixed at 4.2 per cent. Mr. J.L. McCaffrey, President of the appellant corporation, testified before the hearing at the time of the original hearing. The appellant was among those who appealed from the original order of the Mississippi Milk Commission (hereafter called Commission) as shown by the Commission v. Vance, supra. Thereafter, the butterfat requirement was changed to 4.2 per cent, May 1962. The butterfat content was again changed May 9, 1967, so as to reduce the required butterfat from 4.2 per cent to 4.0 per cent. The effective date of this order was delayed until September 1, 1967, so that the milk dealers would have an opportunity to dispose of the cartons on which the previous butterfat content was printed. The order was again delayed to September 15, 1967, and did not become effective until October 1, 1967. The foregoing order of the Commission of May 9, 1967, is the order on which the appellant bases his complaint.

At this point it will be pointed out that Section 4560-155(d), Mississippi Code 1942 Annotated (Supp. 1968), requires that the Commission establish minimum producer prices at an amount equal to or above the federal-ordered prices promulgated by the U.S. Department of Agriculture. The Commission had, therefore, entered an order as to wholesalers (7.243), and retail milk prices (Order No. VII) in which the Commission provided an automatic escalation of milk prices based upon the changes from time to time set up by the U.S. Department of Agriculture. This relationship *461 is mandatory between the producer and wholesaler prices (Section 4560-155[g], Mississippi Code 1942 Annotated [Supp. 1968]). It is apparent, therefore, that increases or reductions in either category increase or reduce in the other (Section 4560-155[g]).

The basic wholesale and retail prices are based upon a price for producer of $6.25 per hundred weight. This price carries with it a corresponding retail price of $.59 per half gallon for premium milk and $.57 per half gallon for regular milk.

A written notice showing the change in the price of graded milk of one cent per hundred weight was mailed to all licensees ten days prior to the effective date (October 1, 1967).

The appellant complied with the raise in the price of milk of one cent per half gallon, but refused to comply with the order reducing the butterfat content between regular and premium milk which would require an increase of two cents per half gallon.

The record shows that the appellant refused to comply with the order of the Commission changing the price of its milk and sold milk in defiance of the order of the Commission. Whereupon, the Commission, through its executive secretary, acting as chief enforcement officer, instituted proceedings to require observance of the Commission's order. The Commission, upon the hearing, found as a matter of fact that the appellant had violated the rules of the Commission. Appellant's license was suspended for a term of 120 days or payment of $5,000 in lieu of the order suspending appellant's license.

The appellant perfected his appeal to the Chancery Court of Forrest County under the authority found in Section 4560-159, Mississippi Code 1942 Annotated (Supp. 1968). He appealed from the Chancery Court to this Court from an adverse decree in the Chancery Court.

Appellant contends on appeal to this Court that: (1) the fixing of prices of milk by the Mississippi Milk Commission is unconstitutional; (2) the order suspending appellant's license is void because it is based upon a prior void order dated May 3, 1967, which attempted to amend a prior order; (3) the evidence is not sufficient to justify the suspension of the appellant's license; (4) the 1966 act of the legislature re-enacting the continuation of the Mississippi Milk Commission is unconstitutional.

I.

The appellant contends that from a factual standpoint the Mississippi Milk Commission has not benefitted the general welfare of the milk retailer nor the consuming public, and that this fact was not considered by the Commission in changing or amending the price of 4.0 per cent butterfat milk. It contends that the provisions of the act violated the right of private property ownership and unduly restrains the appellant's business. Appellant cited two cases: Town of McCool v. Blaine, 194 Miss. 221, 11 So.2d 801 (1943); Moore v. Grillis, 205 Miss. 865, 39 So.2d 505, 10 A.L.R.2d 1425 (1949). We do not consider these cases applicable on the issue here involved because this Court has passed upon the constitutionality of the Mississippi Milk Commission Act and has, by that opinion, joined the vast majority of the decisions from other jurisdictions in holding that the statutes with reference to the Milk Commission do not violate the State and Federal Constitutions. Mississippi Milk Commission v. Vance et al., 240 Miss. 814, 129 So.2d 642 (1961).

The appellant recognizes that this Court has passed on this issue, but insists that we re-examine our decision in Vance under the light of the after-developed facts. It is argued that the Milk Commission Act is unconstitutional because it protects only one segment of the dairy industry. It is said that "it may protect the producer, but it did so at the expense of the retailer and the consuming public." It is also said that *462 testimony before the legislative committee indicated that the Milk Commission Act is not a proper exercise of the police power of the State since it takes the property of the appellant without due process of law. We are asked to study the legislative report, but we are not inclined to refer to it since the legislature to which this report was made re-enacted the statute with reference to the Commission, in which it says: "All provisions of all price-fixing orders of the Commission shall be presumed to be valid and the burden of proving any invalidity of any provision thereof shall be upon the person asserting the same. * * *" Section 4560-155(i), Mississippi Code 1942 Annotated (Supp. 1968).

The textwriter in 1 Am.Jur.2d Administrative Law § 31, page 834 (1962), has this to say on this subject:

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Bluebook (online)
227 So. 2d 459, 1969 Miss. LEXIS 1356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccaffreys-food-mkt-inc-v-mississippi-milk-comn-miss-1969.