State Ex Rel. Peterson v. Woodruff

AFFIRMED. Action by the State of Oregon to recover from the defendants the amount of $820.94 alleged to be due and unpaid under the provisions of the Oregon Milk Control Act as balance of license fee on account of milk received and handled by the defendants as milk dealers and licensees under the act. From a judgment for defendants, the plaintiff appeals. The plaintiff State of Oregon upon the relation of E.L. Peterson, Director of Agriculture, brings this suit against R.C. Woodruff and Ray C. Smith, co-partners, doing business as the Lost River Dairy. In addition to various recitals concerning the law, the complaint alleges that the defendants were duly licensed under the Milk Control Law as milk dealers authorized to receive, handle and sell fluid milk suitable for human consumption in the Klamath Falls production and sales area, that as such dealers and licensees they received and handled in the City of Klamath Falls, Oregon, a total of 357,962.59 pounds of butterfat suitable for sale as fluid milk and cream for human consumption and by reason thereof there became due and owing as license fee the sum of $1,789.81, and that the defendants have *Page 642 paid the sum of $968.87, leaving a balance of $820.94, for which judgment is prayed. In their answer the defendants admit that they were duly licensed milk dealers, that as such during the period in question they received and handled a total of 193,775.60 pounds of butterfat as fluid milk and cream for human consumption and no more, and that on account thereof there became due and owing as license fee the sum of $968.87 which the defendants have paid. By stipulation the cause was tried by the court without a jury. The court made findings of fact and conclusions of law adverse to the contention of the plaintiff to which objections were filed and overruled. Proposed substitute findings as submitted by the plaintiff were rejected and judgment entered dismissing plaintiff's complaint. The findings, which have the effect of a special verdict by a jury, after the recital of formal matters continue: "IV. That defendants as such milk dealers and licensees between May, 1942, and November 30, 1944, inclusive, received and handled at Klamath Falls, Oregon, a total of 193,775.60 pounds of butterfat as fluid milk and cream for human consumption and no more, and by reason thereof there became due and owing as license fees the sum of $968.87, which fees defendants have paid to plaintiff and his predecessor, the Milk Control Board. "V. (a) That during said period defendants purchased in California for sale in California, 164,186.99 pounds of butterfat bringing the same to its plant in Klamath Falls, Oregon, and there pasteurizing the same, and then pursuant to contracts entered into without the State of Oregon, sold and delivered the same in 10 gallon cans to War Relocation Authority at Tulelake, California; that payment for same was made to defendants in California. *Page 643 "(b) That the contracts for the sale of the milk referred to in this paragraph V provided and specified that said milk should be `Factory Milk' and that the bacterial count of the pasteurized milk should not exceed 50,000 and that the raw milk prior to pasteurization might be produced on farms acceptable to the Oregon State Department of Agriculture for factory milk in order to procure the quantity demanded, raw milk of higher quality being unavailable in the quantity demanded. "(c) That the milk referred to in this paragraph V was processed separately and after the processing of the milk referred to in Par. IV hereof. "(d) That the milk referred to in this paragraph V was `Factory Milk.' "(e) That the milk referred to in this paragraph V could not be sold in the State of Oregon for human consumption in fluid form. "(f) That defendants were not licensed under the Milk Control Law to so sell any milk in the State of California and that the sales referred to in this paragraph V were not made by defendants as such licensees. "VI. That plaintiff demanded payment from defendants of the sum of $820.94 as license fees for the butterfat described in paragraph V hereof and that defendants refused to pay the same or any part thereof." The court concluded as a matter of law that defendants were not liable.