Opinion
No. 5110.
Argued January 4, 1963.
Decided January 18, 1963.
1. The Supreme Court is authorized (RSA 541:18) to suspend orders of the Milk Control Board pending final determination of an appeal when justice so requires.
2. A person aggrieved by an order of the Milk Control Board who fails to either move for a rehearing (RSA 541:3) or to take an appeal from such order (RSA 541:6) within the time provided is ordinarily not titled to a suspension of the Board's order by the Supreme Court (RSA 541:18).
3. In an appeal from orders of the Milk Control Board revoking plaintiff's licenses to sell milk justice did not require the granting of a suspension of the Board's order pending determination of its appeal from such order under RSA 541:18 where any irreparable harm resulting to the plaintiff was occasioned by its own deliberate course of conduct selling milk in disregard of the statute (RSA ch. 183) and the Board's orders thereunder.
Prayer for temporary relief on an appeal or, in the alternative, a petition for a writ of certiorari by the plaintiff against Alfred T. Pierce, Arthur J. Chaput and Evelyn Brooks, individually and as members of the New Hampshire Milk Control Board, from certain orders and decisions of the Board.
The plaintiff asks that, pending the final determination of various issues raised herein and in other related proceedings, this court order forthwith that:
1. The order of the Milk Control Board of November 26, 1962, revoking the distributor's licenses issued to the plaintiff be suspended and that such licenses be restored forthwith to the plaintiff.
2. The order of the Board of November 2, 1962, denying the plaintiff's application for distributor's licenses for each of its five outlets be suspended and such licenses be issued forthwith to the plaintiff.
3. Upon the suspension of these orders, that the plaintiff be permitted to engage as a milk distributor in this state, including, but not limited to, the operation of its processing plant in Portsmouth and the sale of milk in gallon and half gallon jugs on a cash and carry basis to the public over the counter, at outlets owned and operated by the plaintiff in New Hampshire.
4. As a condition to. the suspension of the orders and the restoration of the right of the plaintiff to engage as a distributor of milk, the plaintiff be required to comply with and conform to the minimum prices of milk as fixed and determined by the Board under RSA 183:7.
The essential facts appear in the opinion.
Burns, Bryant Hinchey and Alfred B. Stapleton (of Rhode Island) (Mr. Robert E. Hinchey orally), for the plaintiff.
William Maynard, Attorney General and Alexander J. Kalinski, Assistant Attorney General (Mr. Kalinski orally), for the defendants.
Booth, Wadleigh, Langdell, Starr Peters (Mr. Philip G. Peters orally), for Milk Dealers Association of the State of New Hampshire as amicus curiae.
Gordon M. Tiffany (by brief and orally), for Granite State Dairymen's Association as amicus curiae.
The plaintiff asks that certain orders of the Milk Control Board be suspended and for other relief, pending final determination of its appeal from these orders. We are authorized to grant the plaintiff's petition if, in our opinion, justice so requires. RSA 541:18; New England Tel. Tel. Co. v. State, 97 N.H. 555.
At the threshold of our inquiry, the defense raises the objection that the plaintiff has failed either to move for rehearing within the twenty-day limit under RSA 541:3 or to take appeals within the thirty-day period under RSA 541:6, from certain findings and orders of the Board. The findings in question, which need not be detailed here, were made on July 27, 1962, and the orders on November 26, 1962, and December 6 of the same year. The orders of November 26 revoked nine distributor's licenses previously issued to the plaintiff on October 29, 1962, and the second order denied the plaintiff's request for a license for out-of-state distribution. If it should be determined that no satisfactory excuse exists for the plaintiff's failure to move for rehearing or to appeal within the time limit provided by RSA 541:3, 6 respectively, it would ordinarily be barred from any relief under the present petition, whether it be considered as an appeal or a petition for a writ of certiorari. RSA 541:3, 6, 22; Nashua v. Public Utilities Commission, 101 N.H. 503.
However, timely motions for rehearing were filed under RSA 541:3 from two other orders made by the Board in the same proceedings. The first of these orders, which was dated November 2, 1962, denied the plaintiff's application for distributor's licenses for five retail outlets in New Hampshire. The second order of October 29, 1962, effective as of October 31, made pursuant to a hearing held on September 25, 1962, under RSA 183:7, was that all price controls and other regulations should continue in effect. Upon the denial of the motions for rehearing on these orders, an appeal in the form of the present petition was taken within the limit set by RSA 541:6.
While the determination of what justice requires with respect to temporary relief demands an examination of the controlling circumstances, in this case it need not entail a detailed recital of the voluminous facts. In behalf of the plaintiff, it is said that if it be allowed to continue to sell milk, the satisfactory quality of which is not disputed, while charging the price fixed by the Board, no harm will be done to the public. The plaintiff has also asserted that it will incur irreparable harm in the form of expenses and losses of business, pending a final determination of the case, if relief is not granted. It has further raised, in apparent good faith, substantial questions of the constitutionality of certain aspects of the Milk Control Law (RSA ch. 183) and of the proceedings conducted thereunder by the Board.
However it also appears that the plaintiff chose to test the validity of the statute and the Board's orders thereunder by disregarding them. The public health might not suffer from the sale of milk by the plaintiff under the conditions which it now suggests. Yet permission to make such sales after revocation of the plaintiff's licenses for apparent violation of the law would discourage law enforcement. The irreparable harm claimed by the plaintiff results in the course of conduct which it has chosen to follow.
We conclude the plaintiff has not established that justice requires that its apparent violation of the law be ignored and temporary relief be granted it from the expectable consequences of its own course of conduct.
In arriving at this result it should be distinctly understood that we are expressing no opinion upon the merits of the substantial questions raised by the plaintiff's appeal. These will be fully considered as soon as they are argued before this court.
Petition dismissed.
All concurred.