Shoenberg Farms, Inc. v. People ex rel. Swisher

444 P.2d 277, 166 Colo. 199
CourtSupreme Court of Colorado
DecidedJuly 1, 1968
DocketNo. 22351
StatusPublished
Cited by15 cases

This text of 444 P.2d 277 (Shoenberg Farms, Inc. v. People ex rel. Swisher) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shoenberg Farms, Inc. v. People ex rel. Swisher, 444 P.2d 277, 166 Colo. 199 (Colo. 1968).

Opinions

Mr. Justice Day

delivered the opinion of the Court.

Plaintiffs in error, Shoenberg Farms, Inc., and Rocky Mountain Dairies, Inc. were the defendants below and will be referred to as such. This writ of error is to a district court judgment and mandatory injunction ordering them to comply with certain provisions of a milk marketing order issued by the Colorado Commissioner of Agriculture hereafter referred to as Commissioner. Defendants, in challenging the legality of the court injunction, attack the validity of the marketing order on a number of grounds which will be discussed in the light of the following background.

The Colorado Agricultural Marketing Act of 1939, C.R.S. 1963, 7-3-1 et seq., grants authority to the Commissioner to issue marketing orders to regulate the marketing of agricultural products. By the provisions of C.R.S. 1963, 7-3-8 (10 and 18), the Commissioner is specifically empowered to issue marketing orders “* * * for price posting * * *” and “* * * for the limitation and prevention of unfair methods of competition concerning milk and milk products * *

This court held in Swisher v. Brown, 157 Colo. 378, 402 P.2d 621 that the Agricultural Marketing Act of 1939 is constitutional stating that “* * * [wjhether any particular marketing order is reasonable and adapted to the scope and objects sought to be accomplished” — required a hearing as to the essential facts. (This had not been done in Swisher.)

With the Commissioner’s authority now established by the Swisher decision, the question presented in this writ of error is the validity of the specific marketing order involved in this litigation, to wit: Docket No. A 20 issued and made effective October 3, 1963.

The marketing order provided that each handler and distributor of milk and milk products must file with the [206]*206Commissioner a complete schedule of its prices, discounts and rebates. Each schedule was required to be uniform and without discrimination to all customers in the marketing area until changed by the filing of a new schedule. By Regulation No. 5, issued December 3, 1963, Colorado was divided into five marketing areas. A deadline of December 13th was set within which to file a complete schedule of prices, discounts, and rebates on milk and milk products with the Commissioner, to become effective on December 16th. Neither defendant, however, filed a schedule.

The manager of the Colorado Milk Administrative Committee, created by the marketing order, filed complaints with the Commissioner of Agriculture charging each of the defendants with violations of the marketing order. At the hearing scheduled on each of the complaints, neither of the defendants participated. Nevertheless the Commissioner proceeded to hear evidence in support of the charges and found that the defendants had violated the milk marketing order in failing to file a schedule of prices, discounts, and rebates and by engaging in the sale of milk and milk products without having filed the required schedules. The Commissioner ordered each of the defendants to comply with the marketing order not later than January 28, 1964. The defendants also failed to obey that order.

The Attorney General brought an action against each defendant in the district court to obtain judicial enforcement of the Commissioner’s orders. The defendants countered with a separate suit seeking relief in the nature of prohibition to prevent enforcement of the Commissioner’s orders insofar as they related to the defendants. All three cases were consolidated for trial.

The trial court found that each defendant had failed to comply with a valid milk marketing order. Both defendants were ordered to file with the Commissioner a schedule of prices, discounts, and rebates, and were enjoined from selling or offering for sale milk or milk [207]*207products produced in Colorado until such a schedule had been filed with the Commissioner.

Defendants have minutely and painstakingly challenged every procedural step taken by the Commissioner from the time the first rumblings for the need of regulation were heard in the Spring of 1963. At that time a request for an order to regulate the marketing of milk and milk products was presented to the Commissioner from a substantial segment of the milk handlers. After a meeting between the representatives of the milk industry and the Agriculture Department, a tentative marketing order was drafted. Public hearings were held in Denver and Grand Junction on the proposed marketing order and a referendum was conducted in which the industry was invited to vote. With a majority recorded as favoring the order, it was made permanent and issued by the Commission on October 3, 1963.

I.

The results of the referendum are challenged and defendants urge that the marketing order must be declared void because the referendum did not result in a favorable vote by those who handled 50% of the total volume of milk processed or distributed within the State. Of a total of 55 handlers, 51 voted in the referendum with 39 in favor of the marketing order and 12 against it. Those voting favorably had purchased 146,497,122 pounds from producers during the period from January 1 through June 30, 1963. Those voting unfavorably had purchased 39,544,855 pounds of milk during the same period. The four handlers who did not vote had purchased 118,409,058 pounds of milk during the representative period. Therefore, the handlers of a total of 157,953,193 pounds of milk or more than 50% of the volume, did not vote for the order.

First of all we answer that a referendum is not required before issuance of a marketing order for handlers. The referendum in this case was a gratuitous effort on the part of the Commission to sound out the [208]*208sentiments of the industry. In holding it, the Commissioner was not bound by the result and the subsequent order is not thereby made invalid.

The only provision for referral of an order to a vote is contained in C.R.S. 1963, 7-3-9 (2) (a) which provides that marketing orders directly affecting producers shall not become effective until a referendum in which two-thirds of the producers who participate and who during a representative period have produced two-thirds of the commodity subject to the order, approve such an order. Had the legislature desired similarly to limit the action of the Commissioner in the issuance of handler marketing orders, requirements for a referendum with respect to such orders could have been included, but they were not. The doctrine of expressio unius est ex-clusio alterius applies.

Defendants also argue that a handler order may not be issued by the Commissioner unless a marketing agreement be first rejected by handlers of 50% of the product attempted to be regulated. We find no merit in this argument. C.R.S. 1963, 7-3-9 (1), provides that no marketing agreement directly affecting handlers shall become effective unless at least 50% of the volume of the commodity covered by the agreement and at least 50% of the total number of handlers who are engaged in the operation covered assent to such agreement. This requirement, however, clearly applies only to marketing agreements and not to marketing orders.

C.R.S.

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Bluebook (online)
444 P.2d 277, 166 Colo. 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shoenberg-farms-inc-v-people-ex-rel-swisher-colo-1968.