MISSISSIPPI MILK COM'N v. Winn-Dixie Louisiana, Inc.

235 So. 2d 684, 1970 Miss. LEXIS 1456
CourtMississippi Supreme Court
DecidedMay 18, 1970
Docket45825
StatusPublished
Cited by23 cases

This text of 235 So. 2d 684 (MISSISSIPPI MILK COM'N v. Winn-Dixie Louisiana, Inc.) 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
MISSISSIPPI MILK COM'N v. Winn-Dixie Louisiana, Inc., 235 So. 2d 684, 1970 Miss. LEXIS 1456 (Mich. 1970).

Opinion

235 So.2d 684 (1970)

MISSISSIPPI MILK COMMISSION
v.
WINN-DIXIE LOUISIANA, INC.

No. 45825.

Supreme Court of Mississippi.

May 18, 1970.

*685 A.F. Summer, Atty. Gen., Jackson, by John L. Hatcher, Sp. Asst. Atty. Gen., Cleveland, for appellant.

Butler, Snow, O'Mara, Stevens & Cannada, Jackson, for appellee.

BRADY, Justice.

This is an appeal from the Chancery Court of the First Judicial District of Hinds County, Mississippi, wherein the chancellor held that the appellant did not have the authority or power under Mississippi Code 1942 Annotated section 4560-151 (Supp. 1968) or otherwise to impose the condition required under paragraph 2(b) of its finding of fact and order. From that decision this appeal is taken.

Appellant in this case is the Mississippi Milk Commission, an agency of the State of Mississippi, created and existing under the provisions of Mississippi Code 1942 Annotated sections 4560-141 through 4560-170, inclusive (Supp. 1968), which agency shall be hereinafter referred to as the Commission. The appellee is Winn-Dixie Louisiana, Inc., the owner of six stores located in the southern portion of the State of Mississippi, all of which are licensed as stores under the provisions of Mississippi Code 1942 Annotated section 4560-148 (Supp. 1968), which shall be hereinafter collectively referred to as the appellee.

On November 21, 1968, the executive secretary of the Commission filed a petition before the Commission charging the appellee with 6,768 separate violations of Mississippi Code 1942 Annotated section 4560-156 (Supp. 1968) and requesting the Commission to revoke or suspend the license of the appellee, all in accordance with the provision of Mississippi Code 1942 Annotated section 4560-151 (Supp. 1968). The charge was that appellee purchased milk from a supplier at a price less than the minimum fixed by order of the Commission.

On January 9, 1969, the appellee filed a demurrer and a consolidated plea of nolo contendere to the factual allegation in said petition, and on February 19, 1969, the Commission rendered its finding of fact and order holding that appellee was in violation of the pricing order of the Commission. The Commission therefore ordered and decreed as follows:

(1) The license of the appellee No. 69-071 issued to expire on March 31, 1969, and any renewal thereof is hereby revoked, effective ten days from the date a certified copy of this order is served on the appellee.

(2) The Commission does hereby assess a penalty against the appellee in the sum of $35,131 in lieu of the revocation of said license as aforesaid, and in the event said licensee shall pay said penalty to the Commission on or before the effective date of said revocation then the said revocation of said license shall be vacated and the license reinstated.

(3) The Commission further provided that a penalty payment of $31,618 of said penalty was to be suspended and the appellee was to be required to pay only $3,513 thereof provided the appellee shall for a period of twenty-four months from the date of the order comply with the following conditions:

(a) The appellee shall not violate the Commission act, order or rule of the Commission.
(b) All obligations incurred by the appellee shall be paid by check from the appellee to the obligee and not to any other division, subsidiary, affiliated organization, or any other third party (including employees), and shall not be paid through the use of a cashier's check, money order, merchandise, cash (except normal petty cash operations), *686 or any other device other than by company check.
(c) All records pertaining to the sale or purchase of milk in Mississippi shall be available to employees of the Commission for audit or inspection during regular business hours, regardless of their location, and appellee shall advise said employees of the exact location of said records. It is provided further that should the appellee fail to comply with any of the aforesaid conditions during said period of twenty-four months the Commission may, in its sole discretion, revoke the suspension of said penalty and reinstate the license revocation and penalty in full.

Furthermore, the Commission entered this additional order:

The Commission does hereby suspend the payment of $32,496 of said penalty, the licensee [appellee] being required to pay only $2,635 thereof providing that the licensees [appellee] shall for a period of twenty-four months from the date hereof, comply with the following conditions:
(a) The licensee shall not violate the Milk Commission Act or any rule or order of the Commission.
(b) The licensees shall offer for sale to consumers in each store location a minimum of four brands of milk with space provided each brand on an equiable basis according to demand.
(c) A separate account shall be maintained which shall contain only discounts, rebates, and allowances received, and in which all discounts, rebates and allowances shall be entered, and said separate accounts shall be supported by the following information for each receipt: (1) Remitter's name; (2) check number and date; (3) amount of check; and (4) the amount designated for each store location.
(d) All records pertaining to the purchase and sale of milk in Mississippi shall be available to employees of the Commission for audit and inspection during regular business hours, regardless of their location, and licensees shall advise said employees of the exact location of said records.

The order further stipulated that if the appellee shall fail to comply with any of the aforesaid conditions during said period of twenty-four months, the Commission may, in its sole discretion, revoke the suspension of said penalty and reinstate the license revocation and the penalty in full.

It is conceded in the briefs of counsel representing appellant and appellee that this cause is concerned only with that portion of the order dealing with the penalty and the suspension thereof as it relates to paragraph 2(b) of the order hereinabove set out. The appellee appealed to the Chancery Court of the First Chancery Court District of Hinds County, Mississippi, seeking to have the conditions outlined in paragraph 2(b) deleted and declared invalid.

No oral testimony was given and the case was reviewed by the chancellor on the pleadings and arguments of counsel. On September 23, 1969, the chancery court entered its final decree in favor of the appellee adjudicating that paragraph 2(b) of said order was invalid and remanded the cause to the Commission to delete said paragraph from the order. From that decision this appeal is prosecuted. Excellent briefs are filed in this cause.

The appellant concedes in his brief that: "The only question presented here is whether or not the action taken by the Commission, based upon said facts, is a lawful exercise of power or authority by the Commission." The appellee urges in its brief that "the only question involved for decision by the court is the validity *687

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Bluebook (online)
235 So. 2d 684, 1970 Miss. LEXIS 1456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mississippi-milk-comn-v-winn-dixie-louisiana-inc-miss-1970.