Summary
In Carbaugh, the state statute at issue eliminated the inadequate remedy at law requirement for the injunctive relief therein authorized, but that distinction was not mentioned in either Va. Beach S.P.C.A. or Levisa Coal.
Summary of this case from E.I. Dupont De Nemours & Co. v. Kolon Indus., Inc.Opinion
44474 Record No. 802031.
April 29, 1983
Present: Carrico, C.J., Cochran, Poff, Compton, Stephenson, and Russell, JJ., and Harrison, Retired Justice.
Delivery of milk from leased goat is "sale" under Commercial Code Sec. 8.2-106(1) and violates Regulation X of Department of Agriculture and Community Services prohibiting sale of unpasteurized milk; no requirement that Commission show irreparable injury or lack of adequate remedy of law for injunction under Code Sec. 3.1-530.8; other issues.
(1) Statutory Construction — Agriculture, Horticulture and Food — Milk, Milk Products and Dairies — Department of Agriculture and Consumer Services — Regulations of — Under Code Sec. 3.1-530.1 Have Force and Effect of Law.
(2) Statutory Construction — Agriculture, Horticulture and Food — Milk, Milk Products and Dairies — Department of Agriculture and Consumer Services — Regulation X of Department Promulgated Under Code Sec. 3.1-530.1 Proscribes Sale of Unpasteurized Milk.
(3) Statutory Construction — Agriculture, Horticulture and Food — Milk, Milk Products and Dairies — Department of Agriculture and Consumer Services — Sales Under Regulation X are Commerce and All Such Commerce No Matter How Limited or Restricted is Unlawful (Code Sec. 3.1-530.9).
(4) Statutory Construction — Agriculture, Horticulture and Food — Milk, Milk Products and Dairies — Department of Agriculture and Consumer Services — Commercial Code — Passing of Title [Code Sec. 8.2-401(1) and (2)] — Title to Goods Passes at Time and Place Seller Contemplates Performance With Reference to Physical Delivery of Etc.
(5) Statutory Construction — Agriculture, Horticulture and Food — Milk, Milk Products and Dairies — Department of Agriculture and Community Services — Commercial Code — Passing of Title [Code Sec. 8.2-401(1) and (2)] — Title to Goat's Milk Passed When Seller Completed Act of Delivery, It Being Immaterial that Title to Goat Never Passed.
(6) Statutory Construction — Agriculture, Horticulture and Food — Milk, Milk Products and Dairies — Department of Agriculture and Consumer Services — Commercial Code — Definitions: Sale [Code Sec. 8.2-106(1)] — Regulation X At least Portion of Price Paid Ascribable to Value of Milk, Title Passing from Seller to Buyer for a Price, This Being a Sale and the Seller Thus Violating Regulation X.
(7) Statutory Construction — Agriculture, Horticulture and Food — Milk, Milk Products and Dairies — Department of Agriculture and Consumer Services — Injunctions (Code Sec. 3.1-530.8) — Commissioner Need Not Show Irreparable Injury or Lack of Adequate Remedy at Law to Obtain Injunction.
From 1975 to 1979, defendant sold goats' milk marked "not for human consumption" in the Blue Mountain Health Food Store. Then defendant leased goats for $3.00 per day ("Rent-a-Goat"). The lessee was entitled to receive all the "by-products" of the rented goat for the rental period. The defendant milked the goats for the lessees. The goats were not to leave defendant's premises under the terms of the lease. In June 1980, the Trial Court issued a temporary injunction pursuant to Code Sec. 3.1-530.8 restraining defendant from the further selling of unpasteurized goat's milk in violation of Regulation X of Regulations Governing the Production, Processing and Sale of Grade "A" Pasteurized Market Milk and Grade "A" Pasteurized Market Milk Products and Certain Milk Products. Defendant continued to lease the goats after the injunction was issued but marked the milk "for animal use."
At Trial, the Judge denied the petition for injunction and dismissed the complaint for failure to prove that defendant's restricted actions caused irreparable harm to public health and safety. The Commissioner of the Department of Agriculture and Consumer Services appeals.
1. Under Code Sec. 3.1-530.1, regulations promulgated by the Department of Agriculture and Consumer Services have the force and effect of law.
2. Regulation X of the Department proscribes the sale of unpasteurized milk.
3. A sale under Regulation X is commerce and all such commerce no matter how limited or restricted is unlawful, a single sale being both a civil violation and a criminal offense (Code Sec. 3.1-530.9).
4. Title to goods passes in any manner and on any conditions explicitly agreed on by the parties and at the time and place at which the seller contemplates his performance with reference to the physical delivery of the goods [Code Sec. 8.2-401(1) and (2)].
5. Since the violation with which respondent was charged was the sale of raw milk of the goat, it is immaterial that title to the goat never passed, title to the milk passing under Code Sec. 8.2.401(1) and (2) when respondent completed the act of delivery.
6. At least a portion of the price paid (the rental fee) was ascribable to the value of the milk acquired. The transaction thus was a sale under Code Sec. 8.2-106 since title passed from the seller to the buyer for a price. Respondent thus violated Regulation X.
7. Under Code Sec. 3.1-530.8 relief may be had by injunction upon proof of the respondent's violations of the regulations. There is no requirement that the petition allege an irreparable injury or negate the existence of an adequate remedy of law.
Appeal from a judgment of the Circuit Court of Albemarle County. Hon. David F. Berry, judge presiding.
Reversed and remanded.
John Purcell, Jr., Assistant Attorney General (Marshall Coleman, Attorney General; R. Leonard Vance, Assistant Attorney General, on brief), for appellants.
Francis Chester for appellee.
In this appeal, we must decide whether Christine Solem (respondent) violated a state regulation prohibiting the sale of unpasteurized milk and, if so, whether the trial court erred in denying a prohibitory injunction sought by S. Mason Carbaugh, Commissioner of the Department of Agriculture and Consumer Services, and James B. Kenley, M.D., State Health Commissioner (collectively, complainants). Other issues complainants argue on appeal are beyond the purview of the questions formally presented in their brief.
Constitutional issues respondent argues on brief were never raised by assignments of cross-error and, hence, will not be noticed by this Court. Rule 5:27.
In 1970, the Department exercised its authority under Code Sec. 3.1-530.1, et seq., to promulgate "Rules and Regulations Governing the Production, Processing and Sale of Grade 'A' Pasteurized Market Milk and Grade 'A' Pasteurized Market Milk Products and Certain Milk Products." In June 1980, complainants filed a bill charging respondent with violation of three of those regulations, including Regulation X, which prohibits the sale of raw milk and raw milk products. Pursuant to Code Sec. 3.1-530.8, complainants prayed for an injunction restraining further violations. The trial court issued a temporary injunction, and the cause was set for trial.
The transcript reveals no material conflict in the evidence. In 1974, respondent began raising goats on Satyrfield, a 10-acre farm in Albemarle County. She testified that, for four years, she "had been selling milk in the Blue Mountain Health Food Store, marking it not for human consumption, because [she] believed that that was legal." "I was stopped from doing that in November of 1979," she said, "and I wanted to try and figure out a legal way to provide people with unpasteurized milk when they wanted it . . . ."
Upon her own initiative, respondent devised a "lease-a-goat program". To promote the endeavor, she "had business cards drawn up" and displayed them in several health food stores. She also placed advertisements in a bimonthly publication and "on the radio." Under the program as she explained it at trial, her "customers" were required "to phone ahead and reserve the goat, at least two days in advance". The next day, respondent and a "helper" milked the rented goats and stored the milk under refrigeration. When the "lessee" arrived, he was asked to sign a written "lease", respondent poured the milk into the lessee's container, and the lessee paid a rental fee of $3.00 per day for each goat. For this fee, the lessee was entitled to receive all the "by-products" produced by the designated goat in a 24-hour period and to use the goat as a family pet. Under the terms of the lease, however, the "rental goat is not to leave the premises of Satyrfield". Respondent acknowledged that she had continued to conduct the leasing program "[a]fter the temporary injunction" was entered but that she "did mark [the containers] for animal use."
Respondent introduced several witnesses who testified that the milk they acquired under their leases was essential as a substitute for cow's milk to which their children were allergic. Some fed the goat's milk to animals. Other lessees used the goat's manure as fertilizer. Complainants were prepared to submit affidavits executed by medical experts attesting to a causal connection between consumption of raw milk and a variety of contagious infections.
The trial judge expressed an opinion from the bench that "in seeking an injunction it seems to me the Court has to deal with it in the light of whether or not it amounts to such a problem that irreparable harm will come about, that it constitutes a threat of some kind to the public health and safety." The court had "grave difficulty in perceiving such a threat" in what he characterized as a "very limited, very restricted arrangement," and found no "need for the state to take this action". Ruling that respondent "has not placed her goods or products in commerce" and being "unwilling to say that the customer is to be protected from himself when he knows what he is getting", the trial court denied the injunction and entered a final order dismissing the complaint.
[1-3] We consider first whether respondent's transactions constituted violations of departmental regulations. Those regulations, promulgated as they were pursuant to definitive statutory authority, have the force and effect of law. Regulation X proscribes the sale of unpasteurized milk. Such sales are commerce, and all such commerce, no matter how "limited" or "restricted", is unlawful. A single sale is both a civil violation and a criminal offense. "Any violation of. . . the regulations . . . shall be a misdemeanor and . . . [e]ach day of such. . . violation shall be a separate offense". Code Sec. 3.1-530.9.
Respondent contends that her "lease-a-goat program" does not violate the regulation because it does not involve a sale. Citing Code Sec. 8.2-106, which provides that "[a] 'sale' consists in the passing of title from the seller to the buyer for a price (Sec. 8.2-401)", respondent argues that she "retains title to the goat but gives up her right to use any by-product that the goat produces on a day the goat is leased."
[4-5] Respondent's argument, which focuses upon the goat, skews the issue. The regulation does not proscribe sale of the animal. The violation with which respondent was charged was a sale of the raw milk produced by the animal. It is immaterial that title to the goat never passed; title to the milk passed when respondent completed the act of delivery. "[T]itle to goods passes . . . in any manner and on any conditions explicitly agreed on by the parties [and] . . . at the time and place at which the seller completes his performance with reference to the physical delivery of the goods". Code Sec. 8.2-401(1) and (2).
Since at least a portion of the price paid, i.e., the "rental fee," was ascribable to the value of the milk acquired, the transaction satisfied the statutory definition of a sale. We hold, therefore, that respondent violated the proscription of Regulation X.
We now consider whether the trial judge erred in denying an injunction restraining further violations. As complainants point out, the judge "interposed common law equitable principles" as the basis of his ruling. In traditional chancery practice, lack of proof of irreparable harm is generally fatal. A court of equity will not issue an injunction, an extraordinary remedy, if the petitioner has an adequate remedy at law for the redress of his injury.
But complainants did not seek an injunction on traditional equitable grounds. Rather, they invoked the provisions of Code Sec. 3.1-530.8:
In the event of violation of any provision of this article or the regulations adopted thereunder, either commissioner may petition any appropriate court of record for relief by injunction, without being compelled to allege or prove that an adequate remedy at law does not exist.
When the General Assembly determines that certain conduct is inimical to the public interest, a petition for an injunction "need not contain an allegation of 'irreparable injury'." WTAR Radio-TV v. Virginia Beach, 216 Va. 892, 894, 223 S.E.2d 895, 897 (1976). Here, the General Assembly has expressly mooted the irreparable-injury inquiry. Complainants were not required to negate the existence of an adequate remedy at law. The only proof mandated by the statute was proof of respondent's violation of the regulations.
We hold, therefore, that the trial court erred in dismissing the bill of complaint, and we will reverse the judgment and remand the cause with instructions to issue an injunction against respondent in accord with the views expressed in this opinion.
Reversed and remanded.