Opinion
No. 5489. No. 5491.
Argued March 25, 1966.
Decided April 1, 1966.
1. Under the provisions of the statute relating to appeals from administrative agencies (RSA 541:18) the Supreme Court is authorized to suspend the order of the agency or to grant a suspension subject to conditions or to deny a request for suspension.
2. In an appeal from orders of the Milk Control Board eliminating milk price controls on both the retail and producer level a motion for suspension of the Board's orders pending determination of the merits of the appeal was granted on conditions designed to expedite hearing on the merits where an indefinite stay was not warranted and the public would not be materially harmed by a stay of short duration trader the conditions imposed.
Motion filed in the Supreme Court by the plaintiff associations to suspend and stay (RSA 541:18) the order and ruling of the defendant, New Hampshire Milk Control Board, that on April 4, 1966 "price controls on both the retail and producer levels are eliminated." The plaintiffs have appealed the decision and order of the defendant (RSA 541:1, 6) following the denial of their motions for rehearing. RSA 541:3-5. Although the appeal is pending in this court, the transcript of the evidence and exhibits before the administrative agency have not been filed and, we are informed by counsel, the transcript has been only partially completed. RSA 541:9, 11.
Booth, Wadleigh, Langdell, Starr Peters (Mr. Philip G. Peters orally), for plaintiff New Hampshire Milk Dealers' Association.
Gordon M. Tiffany (by brief) for plaintiff Granite State Dairymen's Association.
Hardy, Hall, Grimes Murphy (of Massachusetts) (Mr. Reuben Hall orally), for plaintiff New England Milk Producers' Association.
George S. Pappagianis, Attorney General and R. Peter Shapiro, Assistant Attorney General (Mr. Shapiro orally), for defendant, in opposition to the motion.
Robert F. McNeil (of Massachusetts) for Cumberland Farms Northern, Inc. (Mr. McNeil orally), in opposition to the motion.
RSA 541:18 provides that an appeal from a decision of the Milk Control Board does not suspend its order but also provides "that the supreme court may order a suspension of such order pending the determination of such appeal . . . whenever, in the opinion of the court, justice may require such suspension." Pursuant to this statutory authority this court may grant a suspension of the administrative agency's order (Cumberland Farms v. Pierce, 104 N.H. 489, 503) or may grant a suspension subject to conditions (Chicopee Mfg. Co. v. Company, 97 N.H. 553, 554; 2 Cooper, State Administrative Law 630 (1965)), or may deny the request for suspension. Cumberland Farms v. N.H. Milk Control Board, 104 N.H. 364. See 3 Davis, Administrative Law Treatise, s. 23. 19, p. 386 (1958).
The plaintiffs contend that unless the order of the administrative agency is suspended and stayed they will suffer irreparable damage and serious financial loss resulting from price wars which will place the entire milk industry "in a state of chaos." The defendant and those opposing the motion for suspension contend that these dire predictions are unfounded and that there is no occasion for this court to take affirmative action. It is evident that at the present time this court is unable to properly assess the merits or the deficiencies of the various contentions of the parties to this proceeding and that this can be done properly only when the transcript is available and the case is argued on its merits on the appeal. Cumberland Farms v. N.H. Milk Control Board, 104 N.H. 364, 367.
Our consideration of the briefs and oral arguments convinces us that we should steer a middle course which will be the least damaging to the public and protect the rights of the litigants in this proceeding. Tilton v. Railroad, 99 N.H. 503. We conclude that the plaintiffs are not entitled to a blanket and indefinite stay and that the public will not be materially harmed if a stay is granted for a short duration under certain express conditions. 2 Cooper, State Administrative Law 630 (1965). We do not regard this as a quart by quart review of the decision and order of the Milk Control Board. The administrative process has a tendency to slump forward slowly and unregulated appeals therefrom aggravate the resulting delay. To minimize this factor, we grant a stay and suspension of the order of the Milk Control Board effective April 4, 1966, subject however to the express conditions hereafter mentioned.
(1) The plaintiffs will be required to file their briefs in this court not later than May 10, 1966; (2) the plaintiffs will be required to submit oral argument at a hearing on the appeal at 10 A.M. on June 8, 1966; (3) the defendant will be required to file its brief not later than June 3, 1966; (4) if these conditions are not complied with, the court reserves jurisdiction to annul the suspension of the order.
Plaintiffs' motion for stay and suspension granted subject conditions stated in the opinion.
LAMPRON, J., did not sit; the others concurred.