Safeway Stores, Inc. v. State Board of Agriculture

LUSK, J.

(dissenting).

Mr. Justice Brand’s dissenting opinion, in which I join, sufficiently states the reasons why I cannot concur in the court’s opinion. I have little to add to what he has written other than to express my concern over the majority’s cavalier treatment of a controlling precedent of this court. I refer to State ex rel. Peterson v. Martin, 180 Or 459 , 176 P2d 636 (hereinafter referred to as the Martin case). That case decided that the director of agriculture, as administrator *127 of the Milk Control Act (now known as the Milk Marketing Act, § 4, ch 449, Oregon Laws 1949), was authorized under the statute to deny a dealer’s application for a license to distribute milk in a town because of the fact that the particular market was already adequately served. The basis of the decision is that the economic considerations which brought about the passage of the Act, and which underlie its policy, may guide the discretion of the official administering the Act in passing upon an application for a dealer’s license. The case was heard by the full court, and the decision was concurred in by six judges, one judge dissenting. Without argument upon the point three judges now overrule this decision. One member of the majority insists that it is not necessary to overrule, but only to “clarify,” the Martin case. But, to clarify a decision by refusing to accept its ratio decidendi, is still, I am persuaded, to overrule it.

Neither in the brief nor on the oral argument have counsel for the plaintiff here questioned the Martin case. There has been no suggestion from that source that it be overruled. There was an attempt to distinguish it, but both parties treated it as the law. They differed only as to its applicability to the facts of this case. The decision was rendered January 15, 1947, two days after the convening of the 44th regular session of the Oregon Legislative Assembly. In the intervening time there have been two such sessions, and now a third is in progress and has been since January 12,1953. During these years the Milk Control Act has not been a forgotten law. Efforts to repeal it in the 1949 and 1951 sessions failed: Senate Bill 4, Senate and House Journal 1949, p. 795; House Bill 98, idem., p. 705; Senate Bill 219, Senate and House Journal 1951, p. *128 637; House Bill 6, idem., p. 676. Attempted amendments were Senate Bill 340, Senate and House Journal 1949, p. 735; House Bill 564, Senate and House Journal 1951, p. 758; and House Bill 269, idem., p. 716. House Bill 564 would have amended § 34-1009, OCLA, the construction of which was directly involved in the Martin case, as it is in this case. House Bill 269 calls for more extended reference. Further, the Act has been amended in particulars not now relevant: Ch 547, Oregon Laws 1947; eh 369, Oregon Laws 1951.

House Bill 269, introduced and rejected in the 1951 session, has an important bearing upon the present question. One of its apparent purposes was to eliminate the fixing of minimum prices for milk except as to producers and producer-distributors. Another manifest purpose was to change the law as established in the Martin case. This would have been accomplished by amending § 34-1006, OCLA, by insertion of the word “only” in the opening clause of that section so as to make it read as follows: “The board may decline to grant the license, or may suspend or revoke a license of any applicant, upon due notice and opportunity to the applicant to be heard, only when it appears”, etc. Then follow the grounds for refusing, suspending or revoking a license found8 in the present § 34-1006, OCLA. These, of course, would have been the only grounds for such action had the bill been enacted into law. The law then would have been what the court’s decision in this case declares it to be, notwithstanding the failure of the legislature to pass House Bill 296. The defendant in the Martin case was a producer-distributor.

If House Bill 269 had been the law at the time of that decision this court could not have approved the administrator’s action in denying Martin’s appli *129 cation for a license to sell and distribute milk -within the city of Sheridan on the ground that the granting of such license would result in a surplus of fluid milk, and thereby bring about a condition not in the public interest and harmful to a stabilized production and distribution of fluid milk. The legislature, however, did not see fit to change the existing law in this regard. The majority report of the committee on food and dairying recommending that the bill do not pass was adopted and the bill indefinitely postponed by the House. Senate and House Journal 1951, pp. 716, 456, 457.

In my opinion, the failure of the legislature since the decision in the Martin case to give further expression to its will with respect to the interpretation of the statute which we then adopted, amounts, in the circumstances which I have outlined, to legislative approval of that interpretation. In 50 Am Jur 318, Statutes, § 36, it is said:

* * In this respect, it has been declared that where a judicial construction has been placed upon the language of a statute for a long period of time, so that there has been abundant opportunity for the lawmaking power to give further expression to its will, the failure to do so amounts to legislative approval and ratification of the construction placed upon the statute by the courts, and that such construction should generally be adhered to, leaving it to the legislature to amend the law should a change be deemed necessary. These rules are particularly applicable where an amendment is presented to the legislature and fails of enactment, or where the statute is amended in other particulars.”

The foregoing is supported by citations in the notes to many decisions of the Supreme Court of the Hnited States and of the state courts.

*130 As I have shown, in the sessions of the legislative assembly which have been held since the Martin case, amendments to the Milk Control Act have been adopted, and many attempts to amend it have been made without success. The Act has always been the object of the solicitude of the lawmakers. Among the proposed amendments which have failed is House Bill 269 in the 1951 session, which would have changed the law so as to nullify the Martin decision. This change, which the legislature refused to make, is effected by today’s decision. And this is done without even according to a responsible state official, charged with the duty of administering the law, and who presumably has relied on this court’s decision in his official acts, an opportunity to be heard on the question. For notwithstanding any grounds for relief that may have been stated by plaintiff in the petition for writ of review, I repeat, and I think it will not be challenged, that in this court plaintiff has not argued, or even suggested, either in printed brief or oral argument, that the construction of the statute announced in the Martin case is erroneous, and has not urged, or even intimated, that we should overrule that decision.

There is a further consideration which, in my opinion, should be held to be conclusive of the question. In January, 1953, the legislative assembly now in session passed, and the governor on January 26 signed, House Bill 2, thereby enacting into law the statutes of this state as revised by a commission appointed for that purpose. The name of the new code is Oregon Revised Statutes. Section 1 of the Act provides “The statute laws set forth after section 8 of this Act hereby are enacted as law of the State of Oregon.” The Act by its terms is to become effective December 31,1953. The *131 provisions of §§ 34-1001 to 34-1018, OCLA, with their amendments, which constitute the present Milk Control Act, are re-enacted without any change in substance whatever by House Bill 2, including the present §§ 34-1005, 34-1006 and 34-1009, OCLA, which deal with licenses. In fact, except for necessary formal changes, the language of the re-enactment appears to be identical with that used in OCLA. Section 34-1005, OCLA, is 583.320, ORS; §34-1006, OCLA, is 583.340, ORS; and § 34-1009, OCLA, is found in three sections of ORS as follmvs: 583.100, 583:110, 583.330. It is a well recognized rule of statutory construction that “when a statute or a clause or provision thereof has been construed by a court of last resort, and the same is substantially re-enacted, the legislature may be regarded as adopting such construction.” 40 Am Jur 461, Statutes, § 442. This court has applied the rule in a number of cases. Lindeman v. State Indus. Acc. Comm., 183 Or 245, 254 , 192 P2d 732 ; State v. Raper, 174 Or 252, 255 , 149 P2d 165 ; Overland v. Jackson, 128 Or 455, 463 , 275 P 21 . See, also, annotation, 65 L ed 106 et seq., where are cited decisions of the United States Supreme Court, the lower federal courts, and the appellate courts of 27 states supporting this rule. Particularly apposite is Lindeman v. State Indus. Acc. Comm., supra, in which this court was urged to overrule a decision construing a provision of the Workmen’s Compensation Act. The court, in an opinion by Mr. Justice Bailey, said:

“We see no reason why we should overrule the Gerber case. It was decided after a thorough consideration of the identical question here presented. Since the decision in that case in 1940, there have been four sessions of the legislature and the only change made in § 102-1771 (c) was to enlarge, in *132 1945, the time in which to file an application for increased compensation for aggravation from one to two years. It may be presumed that the legislature re-enacted this section with Tmowledge of the ruling in the Gerber case, and that when it embodied in the 1945 enactment the precise words of the statute which had been construed in the Gerber case it intended to adopt the construction which had been placed thereon by the court in that case. Overland v. Jackson, 128 Or 455 , 275 P. 21 ; 50 Am. Jur., Statutes, 461, §442.” (Italics added.) 183 Or 254 .

In the case of revised statutes and codes the courts apply the same presumption. As stated in 50 Am Jur 469, Statutes, §455, “where a statute which has previously received a judicial construction is included in a code, it will be presumed that the intention was to adopt the construction given the statute by the court, and the code provision will be so construed, where no purpose to make a substantial change in the law appears.” See, also, authorities cited in annotation, 65 L ed 108. An examination of the Milk Control Act, as revised in OES, shows that no substantial change has been made, and this is in accordance with the direction of the legislature that the Statute Eevision Council should codify and revise the laws in this state without altering the sense. Oregon Laws 1949, ch 317, § 3.

There are exceptional cases in which, under circumstances not present here, courts have refused to apply this rule of construction. In view of the legislative history and other matters to which I have called attention, that is not the course which should be now pursued. It is highly regretable that a minority of the court should undertake to do so.

I am authorized to say that Mr. Justice Brand concurs in this opinion.