Petition for Writ of Certiorari — Hausfeld v. Ziegler
Supreme Court brief1963
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PREM ECON OR THES ~ | JOHN. |
LIBRARY rae ae aioe 9a,
wT
SUPREME COURT.OF THE UNITED: STATES
OCTOBER ‘TERM, 7
No. 37 sa
OMARLES PAUL. Director of hal vulture |
i of the State of California and STANLEY
MOSK, Attorney General, : ‘State. oft
fornia, .< PER
Rae Seay ea gene
vs.
UNITED STATES OF AMERICA,
, Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, BEFORE JUDGMENT
° STANLEY MOSK
: Attorney General of the
es State of California
@R LAWRENCE E. DOXSEF .
\ Deputy Attorney General °
7 JOHN FOURT .-.
. Deputy Attorney General
os } 538 Library and Courts Building
: _ Sacramento 14, California
Attorneys for Petitioner .
ROGER KENT
155 Montgomery - Street
San Francisco 4, Calif.
Of Counsel
printed sm CALIFORNIA STATE PRINTING OFFICE
\
| INDEX |
CITATIONS TO_OPINIONS BELOW F
JURISDICTION =. 2 =. :3
QUESTIONS PRESENTED ____
STATUTES INVOLVED _-- 2.
) SPATEMENT
REASONS EOR GRANTING THE WRIT }
Comentario e
A aN ae.
1
L Memorandum Opinion of the District Court Dated No-:
vember 29, 1960 oe #
II Order re Kindings 2-- -_-~..-
“TIL Judgments —.._._ { artes |
IV Notice es of Appeal to tte U ittied States Court of LES: 52
-V Portinent Genatitational_and-Esdesil-Statutory ve .
a
~ sions’ —_ _-
VI Pertinent California Statutory Provisions
%
° tine =
4 . .
ee eo
Ce era ae P ‘
4% : .
_\ CITATIONS
_ . CASES”
‘Air Terminal Services, Inc, v. Rentzel, D.CLED. Va.. 81 F.
Supp. 611 (1949) ‘ yy
Allegheny County v. Frank Mashuda at 360 1S. 185 (1959)
Calif. Comm’ n. v.U nited States, wage S. 534 (1958) 4, Te, 20,
Collins v. Yosemite Park Co., 304 U.S. 518 (1936) _...
‘Commonwealth v. Rohrer, 37. Pa. D.C. adh te ed er
Florida Lime Growers v. Jacobsen, 362 ent oi 8 ab apocrstl .*
Fort Leavenworth R.R. Co. v. Lowe, 114 U. 5 (1885) |
In re Willing 12 C, 2d 591 (1939) ..—.\ a.
Johnsen v, Yellow Cab Co., 321 U.S. 383 (1944), ay “41, 42,
Nash v. Air Terminal Services Ine., D.C.E.D. Va., 85 F. . Sapp.
O45 (1959) - A SES — aa
Nebbia v. New York, 291 S. 502 (1% 34). <a aoe
_Pacifie Coast Dairy v. Dept., 19 C: 2d 818,123 P. “2d 442,
rev'd. on another ground, 318 TS. Qh (1943)
Paul v.’ United States, Supreme> Court of the Wnited States,
‘October Term, 1962, No. 19 —~____-_-_-. Aare |
Paul vy. United ‘States, United States Court of ~Anpeale for. -
.the Ninth Cireuit,-No. 17428 .___..—
~ Penn Dairies, Ine. v. Milk Control Comm: n., 148 Pa. Bup. 261,
247A. 2d 717; 344 Pa. 635, 26 A. 2 431; affirmed 318 U.S,
Wo61 (1943) ay ae
People of Puerto Rico v. Shell Cx, 302 rf S..253 (1937)
Philips v. United States, 312 U. 8. 246 (1941) ate tae
Query y. United States, 316 U.S. 486 Se li :
_ Silas Mason Co. v. Tax Commission, 302 U.S. 186 (1937)
‘Stainback v.. Mo Hock ‘Ke Lok Po, 336 U JS. 368° (1949)
Stewart & Co, v. Sadrakula; 309 U.8.94 (1940)
Turner v. Memphis, 369 U.S, 350° (1962) 3, ‘
46 M1,
United States v. Railroad Bridge Company, c C N. D. Hl, 27 ..
Fed. Cas.:686 (1855), - he ee
U nited ‘States v. Sharpnack, 3530 Ss. ORG (1958):
Vnited: States v. Warne, D.C.N.D. Calif,s S.D.. 190 F. Supp.
- O49 (1960) = Be au
ee ee ae ae ee we ee -_— Go mt
Warne «vy. Milk Producers : Association, Alameda County
Superior Court of California, No. 304730 - nineties
[Warne v. Milk Producers Association, District Court. of Ap.
peal of California, Third Appellate District, No. 10185
%
ay
ch
Vail
e
. c
\ |. ;
_ CITATIONS—Continued .
3 FEDERAL CONSTITUTION AND STATUTES | ”
Constitution of the U nited States : a
Art. 1, See. 8, el. iV (Power of Exe lusive Legislation)"
4,7, 10, me 25, 26, 27,28, 29,33, 54
Art. VI, Gl. 2 (Supremacy Clause) ...°__-__.. _- 18, 20, - 33.
Fifth Amendment 5 Gee oe kate chaaean aaa eekigwara nde tae
‘Act of October 9, 1940, 54 Stat. 1083. SP. eh 7, 66
Armed Services Proc “urement: Net of 1947, 62 Stat. ee
Joint Resolution’ of Congress, Sent. 11, 1841, 5 Stat. 468 _ ae
Judicial Code, See. 266, 36 Stat.aW62
Lanham Act. 54 Stat. 1125 - 4: Soapieeek men ene A
Bin ee eine / toap Litarenaneie a an
3.2103 -____ i LAREN eee iaaee oe ce _. 96
-156.1-156.2 __. : Pease tue S- Paes ae
5... Ea i ele bean eet pane Sahat
608.3 se epee ap MOMania
10 U.S.C. 2307-2314 atic 1 a fe eS
WO A ee eee ee is
. 13. eer Rene aa ip ME Oe, NY
SP EBE. 18 8 i oe ek ae
1254(1) nied ta Sree ne an ye 4f
et ene Pass eens STL waxes aoe
1331 *... sais her iats acoso oat eee 2, /18
s, a xe: xara pA aia eee Ra et o/ 18
oon aa Pe aap ace, eae 16
40 UAC. 5 ~AQe ee e ,
Ty en Peck ae
eh | inint een ee Si a 32
sf S. Revised Statutes, Sexy 55, wae Lge, 27, 28, 30, 66 a
. as \ : i
3 CALIFORNIA Sravures ANB Coves .
Constitution of ( ‘alifornia : lad ol Ae : Ae te SPAS
| Art. I, See. 21. tt See? i a ee
Stats. 1891, ch. 14, p. 262 002 mee ee
Stats. 1897, ch. 56, p. 51°. =) Z:-.. ss NB, 26, 28, . 29- .
Stats. 1935, eh. 24117 p. 922-70 + Soo ee
‘Stats. 1939, ch? 710, p. 22817 2... aes Pe
" Stats. 1943," 27, 98, 104, 105°
Stats. 1946,:¢ ? oe
Stats: 1947, e 7, 24,26, 27 © .
_ Stats, 1955, ¢ : es a
- ?
O-
5 eo
ns.
~
Appellants’ Jurisdictional Statement, Paul v. United States, °
Supreme, Court’ of the United States, October 7 1961,
PE TE ietcnrncermamnee pate * AY aL Sat BP een ---3,\1, 8, 12.
pe Services Procurement Regulations, para. 1-301, Y 302.2,
we gE a oi eae ee eee
Army Procurement Procedure,:para. 3-101 °_--_.--¥_________
Brief for Appellants, Paul v. United States, Supreme: ‘Ceert:
of the United States, October Term,°1961, No. 239 4, 5, 8, 10,
. House Report-No. 109, 80th Cong., Ist Sess.op.6 ... __
Inventoty Report on Jurisdictional vices Ad of Federal Areas
.Within the States, Gerferal Services Administration, 1949,
-p, Bae ee ae Ps F Re
a a ee me ee a ee ee ee ey me we we ie oe a ee
Jurisdiction Over Federal Enelaves it ifornia. California
Department of Justice, 1958, pp>3, 42, 72-73__- : 26,
roo fa nt ie en gk oh >
Pennsylvania Milk Control Law of April 28, 1937,. Pz L. “ats,
Purdom’s Pa Stat: Ann., Title 31, See, 700j-101 -
23 Ops. Cal. Atty. Gen: 14 (1954)
13
i
* . 2) : ;
P 2 ;
> ee , ¢s
/ CITATIONS—Continued Pie ee
CALIFORNIA STATUTES AND CODES—Conttinued “a as
. : es —
-Agricultural Code ; rt airs Reni OS
Sees. 4200-4420° ee 975 10, TS, 16, 25. 38,-42, 43 -
See, Si 3 een xe eee epee cere A A AD) Se Bs
Civil Code: «~~ peat Se ar :
_ See, 1106 ROSS er A : or 31.
__ Government Code: : ,
es ea aatak a higge here gegcknenonnemmcuenh Ce”
SRI arta ak ac A sie yp eet oathcs biciar'o as ea "26
SEE AGES ee See eee 2; Se Ye
SED Scccd2 Daw nGe sn Oot oe, ee ee OO.
RPE PE ee SRL ere cay oie ean age SCARE oe RRR:
Political Code: Bs Pte hoa peg
5 Bee. MR o0 jn. docs. nlf, OM, 3B, WO, 3B, OF
Public U Itilities Code: ;
* See. 530 /-_- (Skee Soar : 34
wane <..: Mada cctasgahdiion «am 3G.
; MISCELLANEOUS »*
. Air Force ison ‘urement Instruetions 2-102(¢) (1) ——__- 2 30. 4
IN THE
st SUPREME COURT OF THE UNITED STATES
OCTOBE “ TERM, 1962 .
No. “Cae
“oe
or,
CHARLES, P; AUL, Diree tor of Agric ulture “y
' _of the State of California and STANLEY |...
' MOSK, Attorney Gener “al, State ‘of Cali-
"fornia,
eS | Petitioners:
a | woe," < 7 |
UNITED STATES OF AMERICA, =. |
; Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
| _NINTH CIRCUIT, BEFORE JUDGMENT
Petitioners: spray that a writ of salu he issited —.
to the United: States Court of Appeals for the Ninth
Circuit before the rendition of judgment in said court, |
for the review of.a cause docketed in the said Court of |
Appeals, No. 17428, there pending on appeal from the
final judgments of a specially convened ‘three- judge
_ district court’ for the Northern District of ¢ ‘alifornia,
Southern Division.
{
oc a
a)
©
#
CITATIONS TO OPINIONS BELOW.
The opinion of the District ‘Court for the Northern :
District of California, Southern Division, is reported +
in 190 F, ‘Supp. 645, Copies of the’ opinion, order re-.
garding findings, judgments, and: the notices of appeal |
to. the Court of —, set. forth in the ap:
. JURISDICTION
These actions -were bronght under 28; U Se. “4331 |
* pendix. es eines ‘ a2 % oN
and 1345 to enjoin the enfore ‘ement of tl e California
milk stabilization act (Calif. Agr. Code, ‘h. 17, Div.
6) as an unconstitutional interference e with a feder al
procurement function exercised under the: f federal
procurement statutes (10 U.S.C. 2301 et seq.) and
“as unconstitutional ‘as applied to contractors making —
delivery ‘of. milk to areas subject to. claimed exelu-
sive federal: jurisdiction. R. 7 7-13, 178-183, 191-196, |
Printed Record; Paul _v. United States, Oct. ‘Term,
1962, No. 19. The’ trial court granted the relief res
questéd and permanent. injunctions of .the spécially
convened three-judge district court were entered on
April 19, 1961. R. 6, 166. Notices” ‘of appeal. to. the
- Enited States Court of. Appeals: for the Ninth Judi-gg
: cial Circuit were. timely filed in the District Court
on May 11, 1961 and docketed in the Court of Ap-
peals as No. 17428 on J une. 20, 1961. 28.U.8.¢ 1291,
. 2107. R. 7,167. enc .
Petitioners have also filed direct: appeals. to this
Court from the district court under 28 U. S.C. 1953.
“Paul vy. U nited. States, Supréme: Court of the United
States, Oct. Term. 1962, No: 19; R. 6, 166. By order
entered. January 15, 1962,. the Court’ postponed con-
sideration of the. question: of appellate jurisdietio
ui
until the hearing of the cause ‘on the merits. 368 U.S.
SGa. |... .
: .
j s .
Appellate jurisdiction of ‘the ( ‘ourt in No. 19 under
28: U.S.C, 1253" hinges oy whether the appellees* gom-, :
plaints required ti > convening of a three-judge dis:
trict court under: 28 U.S... 2281. Florida Lime
Growers Vv. Jacobsén, 362 re h 3, 75 (1960). A dis--
trict court of three judges is to be*eonvened under
28 U.S.C, 2281 only if an /injunction is sought re-
straining the enforcement of, a state statute ‘upon the
ground, of the jnconstitutionality of sueh statute.” If .
this Court Jacks direct. appellate jurisdiction of. these
eases under 28 U.S.C. 1253, then the appeals neces-
‘sarily lie oe Court of Appeals under. 28° U.S.C. ‘
_ 1291, and a
~ Court of Appeals before judgment in that court, under
28 U.S.C. 1254(1). Stainback v. Mo Hock. Ke Lok Po,
336. U.S. 368, 381 -(1949). Turner ¥. Memphis; 369
‘U.S. 350-(1962). .® nas Wy
Respondents’ ‘complaints in the district’ court. al-
leged that the state milk stabilization act as applied
to contractors delivering milk to three military instal- . *.”
- lations ' was: unconstitutional as imposing an wnrea-
sonable birden on’ and impediment to the United
States in the discharge of its ‘procurement: functions.
_ — -—— :
1 Castle Air Force Base, Merced, California (Castle, Travis ‘Air
Force Base, Fairfield,-California (Travis), and Oakland Army"
Terminal, Oakland, California (Oakland). ._
etition for Writ of Certiorari lies to the ~
cig ang NATE ae =o ih
* pe
eXere ined under the proce ur ement Statutes. 10 U.S.C. |
~ \: 2301 et seq. R. 8, 178, 191. Petitioners as appellants z
Min No. 19 contend that ‘these’ allegations tendered: a.
- constitutional issue under 28 U.S.C. 2281, and that
this Court has: appellate jurisdiction under 28 U.S.C...
". 1253, Query v. U nited States; 316 U.S. 486, 487
(1942) ; iat Comm’ n. Vv. United States, 355 U.S. 534
(1958).
‘These complaints. of respondents i in the court below
also alleged that ¢ ‘alifornia could not constitutionally .
regulate prices to the United States where the sales
and deliveries are made on an area alleged hy re-
spondents to be subject to the exclusive jurisdiction of
the United States. R.'8, 178, 191. Petitioners as ap-
pellants in No, 19 assert that these allegatiotis. pose |
‘the issue of the unconstitutionality of the state statuite
as applied to a‘. ... transaction carried. on. under
sovereignty conferred by Article I, Section®?8»Clause ,
17 of the Constitution... .” Pacific Coast Dairy v.
Dept., 318-U.S, 285, 295 (1943): zal |
However, ‘the Court may disagree with these con-
tentions and may: find that only the court of, appeals
has jurisdiction of the’ appeals under 28 U.S.C. 1253. ;,
Petitiofiers in such case respectfully inv ‘oke the juris-
diction of the Court. to review these judgments by
Writ of. Certiorari to the court of appeals under 28
U.S.C. 1254( 1). Stainback. v. Mo Hock Ke “Lok Po, -
336° U.S. 368, 370-371 ( 1949) ; Turner v.. Memphis,
— 369 Us . 300 4. 1962). oO
Seo
ae QUESTIONS: PRESENTED
The questions presented ate the same as i forth .
by these -petitioners as appellants in their Brief for
Appellants filed-in this Court if Pauly. United Stites,
ener Term, 1962, No, 19. These questions are;
1, Pieliv ery of fresh milk is nade to three military
installations’ in California principally: for, resale
through commissaries, post exchanges, Micers' and
Ne)
noncommissioned officers’ clubs (70-percent) and par-
tially for troop ration (30 percent). Does the enforce-
“ament of the ¢ ‘alifornia milk stabilization act agabist .
producers and distributors, with respect to anilk pur-
chased by distributors from milk producers and ‘then
- delivered %y such distributors to the three military
installations, constitute an unconstitutional interfer-
ence with the performane e ofa governmental proe ure-
ment funétion exercised. under the fe den ‘al proc re-
ment statutes, 10 U. S.C; 2301 et seq?’
2. California by statute in, 1872. consented te the
purchase or condemnation’ of land by the United
States for. military purposes and in 1897 tendered “to:
the United States exchffive jurisdic tion over all lands
. now held, ocetpied, or r ¥eserved by the Govern-
ment of the United States for military? purposes or
defense,or which may thereafter be ceded or conveyed
© to‘said United States for such purposes; provided,
that a sufficient description by metes and, bounds and-
a map or plat of such lands be filed in the proper office
of record in the county in which the lands are. sit-”
uated.”’ See. 34, Pol. ‘éile : Stats. 1897, Ch. 56, p. 51
[Calif. Gov. Code, Sees. 111, 114]. Did the. United
States obtain exclusive jurisdiction over the parcels at
Travis Air Force Base and over a civilian housing
tract at Castle Air Force Base -awhere the United
States failed to file metes and bounds descriptions and
plats for the parcels at Travis and Castle in the ‘up
propriate county recording offic e? "
3. The United States Secretary of sag Army gave
written notice that the Department of the Army
‘thereby assents to the acceptance of federal jurisdic-
tion’? over certain parcels at the Oakland Army
Terminal ‘‘upon and subject to each and all of the
conditions and reservations Mampigenes in — Cali-
fornia Government Code section 126... 4? At the
time of such notice, Section 126 Ciovernment Code,
- reserved various state powers ‘in addition to any other
conditions or reservations preseribed by law.’’ At the
time of such notice, Section 113, Government Code, re-
served ‘*the administration’ of the criminal kaw of the
‘State w ith respect. to any land over which any jurisdic-
tion ... may be ceded or ‘conveyed to the United °
States .:..’’ Did California make a cession of ex-~
clusive jurisdiction over these parcels at, Oakland to
the United States?
4. Did the district court err in permanently. -enjoin-
ing enforcement: of the California milk. stabilization
act as linconstitutional without trial and on motions
for preliminary injunction (Action No. 39030) and
for summary judgment (Action No. 39073), where |
the pleadings arid’ affidavits raised issues of materi ial
facts?
», Did the district court err in failing to abstain
froméfinal decision pending construction by the Cali-.
fornia Supreme Court of the California milk stabili-
zation act and the California’ statutes relating to the
acquisition of land and jurisdiction by the United © %
Statesy’and in’ enjoining appellants. from proceeding
in Bet eh state court’ actions ?
STATUTES; INVO VED
Coristitution ‘ot Federal Statutes: :
Constitution, Article I, Section 8, Clause 17: 10
U.S.C, 2301-2314; Lanham Act, 54 Stat. 112;
“tral Section 355 Revised Statutes, as amended, Act of
a Ov ‘tober 9, 1940, of Stat.’ 1083.
California Statutes: , i eee
California milk stabilization act, ¢ ‘hapter 17, Divi-
sion 6, Agricultural Code: ‘Section 34,- 1872 a
Political Code, as ameided by Statutes of 1939, 0 ~
Chapter ‘710, page 2231 (See. 111, Gov. ©):
Statutes of 1897, Chapter 56, page 51 (See. 114,
‘Gov. ©); Section 113.: Government Code, as
amended Statutes 1947, ( ‘hapter 1532, page 164;
: Section 126, Government Code, as amended,
; Gaditien 1947, Chapter Ass2 - page. 3163.
Copies of these» statutes “are Set: forth in the.’
appendix hereto.
STATEMENT
To guard against frustration of appellate review in
the event that this Court lacked appellate jurisdiction
of theiy appeal, appellants in cause No. 19 this term.
likewise -perfected their appeals: to the ry nited States
Court of Appeals for the Ninth Cireuit. Philips vy. .
ks
United States, 312 U.S. 246, 251 (1941). Phis petition —
_ is filed to request that, should this Court not have
appellate jurisdiction on the direet appeal in eayse
No. 19 this te?m, the cause be brought before this.
Court by the issnance 6f a Writ of Certiorani to the
United Sti ites C ourt of «Appeals for the Ninth’ Circuit,
hefore rendition of judgment in the Court of Appeals,
The appeals necessarily lie in he Court of Appe ‘als
‘under 28 U.S. 5 C, 1291, if ‘they do not lie in this Court’
under 28 U.S.C Q)253. Stainback v. Wo oe Ke Tak —— =
Po, 3386 US 30 dat (1949). ;
The transe ript of the record of the cause docketed:
in the United States Court of Appeals for the Ninth
Circuit as No, 17428, dul certitied “and filed in Sup
port ef this petition, is identical (save for the notices,
d ‘ ; ae ips o*
of appeal to the Court of Appeals) with the recor ey
tiled in connection with the direct appeal to this Court,
‘in Said cause No. 19. ,
The opinion below, questions presented and statutes
involved, are the same in both this petition and in the
Brief for Appellants filed concurrently herewith in
said cause No. 19 in this court. Petitioners respect
- fully. adopt as their brief in the event the Writ of Cer-
tiorari prayed for should be granted, the Brief for
Appellants filed in siid causé No. 19, and request this -
Court to consider this petition in conjunction with the
. direct.appeal to this Court. :
REASONS FOR GRANTING THE WRIT
‘The United States government purchases approxi-
mately 29 million gallons of fresh milk each year for
resale and: for consumption on the 625 federal in-—
stallations i in California: R. 348, 392. Of this number,
242are military installations. R. 392. In early 1960 the
California Director of Agriculttire filed several actions
vz
eee
in the state courts against ‘Califorpia milk distribu-
tors, charging some with purchasing milk, from milk
producers at prices below the state established mini-.
mum prices, and some with selling milk at below the
established) minimum wholesale prices. The ultimate
delivery of the processed milk in most instances Was to
federal military. installations. R. 745-794.
The government then brought the present actions in
the United States District Court for the Northern Dis-
trict of California, Southern Division, to restrain the
— Director’ of Agrigulture and the: Attorney General
from proceeding AN the. state lawsuits where the ulti-
mate delivery. of: fhe processed milk was made to the
Castle Air Force Base and to the Oakland Army Ter-
minal,” and to restrain enforcement of the state law -
where deliveries of milk were made to the Travis Air
Force Base, R. 8178-191. A specially convened three
judge district court issued the: requested injunetion on
two grounds: (1) That the California milk stabilization
act, as applied to producers and their distributors
delivering milk to the three deseribed military. bases ———_—_\—
uncoustitutionally interfered with a federal procure-
ment function exercised under the procurement: stat-
ute, 10 U.S.C, 2301 et seq., and (2) that the state
enactment as applied was uncenstitutional under Con-
‘stitution Article I, Section’ 8 clause 17, because de-
livery. of: the fluid milk- oceurred on areas held by the
district vourt ‘to be within exclusive federal -rather
than state jurisdiction. R. 558-58”. Se
* The California milk stabilization’ aet, Calif. Agr.
., Div. 6, Ch. 17, was first enacted in 1935: to. protect
> Warne v. Milk Produecrs Association, District Court of Appeal
of California, Thifl “Appellate District. No. TOSS. Ro 656 -
Warne ve Wik Produce rs Association, Alameda County Su
perior Court of California, No. 304780. Re 150. 7
oe
~~
ees,
the consumer from monopolistic milk’ pricing, to.
lower the’ wholesale and retail prices for milk by:
eliminating destructive and unfair econoinie distribu-
tion practices, and to insure milk producers the neces-
sary costs of production. Calif. Agr C: Sec. 4201-4205 ;
In re Willing, 12 ©. 2d 591, O94 (1939) ¢ see Nebbia v.
New York, 291 U.S, 502, 515-518 (1934). Twe ty -three
states have enae ‘ted milk stabilization statutes similar
_ fo ( ‘alifornia’s.’ "Phe authority of those states to pro--
tect the consuming plblice, the milk producer, and the
distributor’ from destructive effects of price wars
carried on between: distributors competing. for con-
tracts with federal military Installations’ hinges upon
“a determination of the validity of the ¢ ‘alifornia en-
actment. It i noted that the appellant state officers
‘in this ease have been enjoined from enforeing the
milk stabilization: act for over two years since the
granting of the ¢ r F genes restraining order by the tri: u
court-on March : 30,1960, en ae.
This ease also’ ore the applicability, and con-
struction of Arti¢le., J, Section 8, clause 17, of the
‘Federal Constitution, and: of the California -consent
and cession statutes. Construction of this clause in the
Constitution, and of these -statutes will also largely
‘determine the jurisdictional status of the 242 milifary
installations on four million.aecrés of land in ¢ ‘alifor-
nia. R. 392. The construction given by the ‘court to
Article I, Section 8, clause 17, of the ‘Constitution will
| directly effect the 48 statés within whose borders: lie
2¢ ifations to these state-milk sfabilization statutes are set out in
the Brief for Noelia No, 19; this term, at pp. 232-233.
“! This injunction was partial rStaxed én July 3,.1962, by a Sistice
of this Court? with respeet™ to. thé enforcement of. minizanm
milk producer price regulations The district court injiinction
restraining enforcemertt of the state minimam wholesale milk
price regulations continued in force. —
.
ere
Vo —
9,050 federal Mstallations claimed chy the United
' States to be Within exclusive federal » jurisdiction.
These issues, because of their importance, require im.
mediate and plenary determination, — :
The > posture Of the case is sufficiently similar to.
~ Stainback v. Mo Hock Ke Lok Po, 336 US. 368 (1949)
to warrant this Court. in exercising its Jurisdiction to
grant certiorari, In the: Stuinback ease a three-judge
federal district court in’ Hawaii, convened under
Judicial Code Section 266, 36 Stat. TEG2 [predecessor
to 28 CLS, 2281], granted a. permanent -injunetion .
against enforcerient of ca Hawaiian statute regulating
. the teaching of foreign languages to Children on the
» round that the statute Violated thie due
¢
provess his
of the Fifth Amendment, Pursuant te Judleial Code
Section 266, the Hawaiian state officers took a direct
appeal-to this Court. To gnard. against fyast ration of
review in the event that the-cause didMot lie within
the appellate ‘Jurisdiction of this Court, an appeal
had alse heen perfected to the United States Conpt of
. .
_ ‘Appeals for the Ninth Cirenit. ‘
Having doubts’as to Whether Judigial Code Section
266 applied to the Territory of Hawaii, this Court
postponed consideration of the question of jurisdic.
. tion to the hearing of the case on the merits. 336 ULS,
868, 371. Because of the public interest in the effect
of the case on the thousands. of school children in
Hawaii, and because the ease Was hefore the Court
on the merits, the Hawaiian state officers filed a peti-
‘tion ‘for writ of certiorari to the court of appeals
before’ judgment. Both the appeal and the peti ion
for certiorari were considered fit the same time. The
* Inventory Report on Jurisdictional Status of Federal Areas
Within: the States. General Services Adnuiinistration. 149,
page 3.
og por ; AY
( ‘ourt held that jurisdiction of the appeal was lacking |
but granted-the petition for the writ of certiorari ‘to
_ avoid further futile proce — * 336 ULS. 368, 371.
~. In Turner v. Me mplis, 369 US. 350 (1962), the ap- -
pellants had. filed appeals “le a three-judge district
court. both to this Court and .to the court of appeals,
Consideration of the question of the Court's appellate
jurisdiction. mag ‘postponed tou: the hearing on the
~ merits. 368 U.S, 808. Having determined the merits of
—— the appeal by ‘ruling that the trial court erred in ab-
staining from exerc ising its jurisdictionsthe Court ou
its ‘own motion. granted a writ. of certiorari to the’
court of appeals-in order that: ‘the litigation should
he disposed of as expeditiously as is consistent with.
proper judicial administratien.”*-369- U.S. 350, 353.
The instant case is strikingly sigilar. Here,* be-
cause appe llayts strongly believe that the three-judge —
district edurt was properly convened, petitioners, as”
appellants in Lge 19, filed their direct appeals pur-
suant to 28 Us . 1253. The Court has indicated that
~ the questions see in cause No. 19 have sufficient
solidity to order argument thereon, just as ite ordered
argument in the Stainback and Turner appeals, 368
U.S. 965; 369 US. 350, And as it granted writs-of ——
_certiorari in the Stainback and Turner cases, it. should
_dosso here if jurisdiction of the direct appeal is found.
lac ‘king where the questions have comparable import-
ance which require expeditious. deci ‘ision on the merits.
. The briefs amici, filed in support of petitioner's
Jurisdic tional - Statement in cause No. 19 by the
States of Montana, Maine, Nevada. Virginia and Mis-
sissippi, and -by the Dairy Institute of California,
Consolidated Milk Producers of San Francisco, Ine.
ee
and Petaluma Cooperative Creamery, attest ‘to> the.
“‘concernof Nueny in the i issues of this CASE,
oe CONCLUSION
For the foregoi: ge reasons, this petition for writ of
certiorari shotthl be er anted and the Judgnrents ‘belaw
reversed should tho eourt tind that it has fo Jurisdie-
‘tion of the direct appeal in’ No, 19,- Petitioners
pray that the Court ‘defer acting: Upon this petition
until after.oral argument is heard in Paul wv. United.
States, October Term, 1962, No. 19, when jurisdiction |
On appeal and on certiorari ean be eonside red at the
Sane time, i “<
/
Respect fully submitted, .
ba . ‘ ° ;
STANLEY MOSK. Attorney General
cof the State of € alifornia
e
LAW aad) ‘EE. DONSEE, Peputy
Attorney Gene} al oe
iA |
~
a ,
* JOHN FOU = gouty. Attorney Gener tal. * ce
_ Attorney s for Petitione ‘Ts
Rocker KENT:
Of Counsel -
~
w
.
.
*
.
.
-
.
e
.
.
~
.
— lb—
: APPENDIX |
I. MEMORANDUM OPINION OF ‘THE DISTRICT COURT
_ DATED NOVEMBER 29, 1960.
[Tite ¢fCoert Outed)
“ Nos.
UN (TED STATES. OF AMERICA, ; ,
re | . Plaintiff, | 2°73
-* aor ; “ e Mem-
VS. .#
WILLIAM E. WARNE, Director of Agriculture ‘of \ ofan:
‘the State of California, and STANLEY MOSK, | . dum
' Attorney General, State of Captereis, aN Opin-
. Defendants, . ion
: Before: JERTRERO, Cireuit Judge, and THlarris and) Sweicert,
District Judges :
SWEIGERT, District Judge
ol BACKGROUND OF THE CASE
‘The daaies two. actions -have been. brought by. the
United States to determine the applicability of the
.
.
California Milk Stabilization Law (Cal. Agricultural °°’
Code, Div. 6, Ch. 17, Sees, 4200 to 4420) to purchases .
made ¥ the United States,: ‘through U.S. Army and
“Air--Force— procurement- officers, of milk -and milk
products from jocal producers and. distributors ‘for
on-base mess hall consumption and on-base commis-
‘sary sales at three federal. military installations: lo- ’
cated within the territorial limits of California.
Civil Action No. 39030, involving the Oakland Army
Terminal, is before this Court on plaintiff's ‘motion:
for a preliminary injunction. Civil Action No, 39073,
involving Travis Air Foree Base (Count I), and .
Castle Air Force Base (Count [1), is, before the Court
on plaintiff's motion for summary judgment. Because
these actions test the constitutionality of. the State
milk law as applied to the federal government, the
\
eet a Saw
~ @i.
ae |
a
- present three judge court Was aneieinibihed: ‘pursuant
to 88 U.S.C, Sections 2282 and 284. ee
Two additional actions: Civil: Netion, No. 89052, in-
volving Camp Pendleton, and Civil Action No. 39059.
involving Mather Air Force Base, are eon tile awaiting
le ‘términation of these ac ‘tions.
Hl. CALIFORNIA: MILK STABILIZATION-ACT i.
!
Brietly, “the Califor nia Milk Stabilization Act was
‘passed in 1935 to regulate:the marketing apd distri-
bution of fluid milk and fluid. cream, Cal Agricultural”
Code Section 4201 ‘declares that. sich proditcts are
necessary articles of food, that the produttion and -
maintenance of an-ddequate ‘supply of healthful milk’
is vital to the public health and we Ifare, and that, the
policy of the State is to promote, foster and encourage
the intelligent production and orderly niarketing of
nuilk, and to eliminate. unfair and destructive trade |
practices,
To achieve tifese wiki. fed NET areas. throughout
the State were established (Section 4204), to be ad-
4270), whose duty it is te é@stablish minimum milk
" prives: (Section -4246, 4247, 4281, 4852, 4353). and to
license milk distributors within each marketing ares
(Sections 4244, 4375 )..
Under provisions of the Act, the ~—— ‘tor is: also
empowered. to revoke and suspend licenses. for -viola-
‘tion of any stabilization and marketing plan (Section,
4415) to bring actions to enjoin such violations (Sec-
tionf 4256),.and+to prosecute actions to recover civil
penalties. of $500 for each violation (Section 4410).
Phe California Attorney General is: also empowered |
to enforce the Aet, under Article V, See ‘tion 21 of the:
—ministered—by—the—Director_of Agriculture (Section _
hia Governnient Code, and Section 4410, supra, te
bring prosec utions for criminal violations, of the
i
PR eS A On a
California C a Lee Section 12511 of the Cal itor.
milk |
code. ‘ &
Whe PRELIMINARY MATTERS
The defendants, the California’ Director of Nericul-:
ture and the California Attorney Gcheral, have tiled
actions in, Various State courts, seeking injunctive
relief and civil penalties against milk suppliers and
distribyfors who have entered into procurement con-
tract ‘With federal officials at. the several military
bases, calling for the sale of milk at: neggtiated prives
- less than those: established. under the State Act. CE eae
~ hibits 8:11). Defendants have. also instituted declara-
tory judgment actions in. this Court against federal
procurement officers at Trav?: Air Force Base, Civil
Action, No. 39080, secking & deternrination | of” their
right to. enforce the State law as to milk sales | Con
summated at that base.
Lhe United States contends: that. ‘te Se “St: ite ate
ts tempts to enforce the milk act- have interfered With ,
__ the purchase of milk and uhilk produe ts. by the United | -
States at its. ‘military “installations, - over which. it
vlaims. exclusive legislative jurisdiction, and are in
conflict: with. federal competitive. bidding policy and
procedures, expressed in- Armed Services Procure-
ment Regulations,’ para: 1-301, 1- 302.2. “3-101 “and 3
3-108.1, and Army Procurement. Prove eduiré, para.
3-101. if,
The United States “Josten that, being unable to ob-
tain milk and milk products ‘at less than the State
ntinimum price, it has. incurred additional operating
~ eosts of $15,000 per month ‘on milk purchases at
Travis: Air Force Base (Rainey’s Affidavit of March’
y*
ty
8! 1960), $112,457 per vear at Castle Air Force Base
( Mann’s Affidavit, Attachment H), and $10, 000: per
month at. Oakland Army Terntinal. ( Complaint, para.
fe). .” ;
It is. the position of the United States th: it the
State milk code may not constitutionally be applied ’
to lands overs which the United States has exclusive
Vegislative jurisdiction; further that ‘its enforcement
violates’ the right of> the plaintitt to be free ftrota:
State interference in the exereise ‘of a see ‘al fune-
tion, under the. Supremacy Clause, Arte VI, Clause
2 of the United States Constitution. On these facts,
we believe’that a justice win rp ta exists. Florida’
Lime & Avocado Growers, lie. Jacobse, 362 CLS.
73 (1960), ‘California Pulte (7 fin ties ‘Commission .
United States, 355 @.S. 534 (1958). Ae
Preliininarily, the holes ilants urge that’ this Court
should abstain from consideration of these eases son
the merits, because’ of the existence of State questions
which, if determined by the California State’ Courts,
-would render assistance to this Court in the formula-
tien of its decision. ‘3
Although a- determination of! ins cae upon: the
merits depends in, part upon the legal effect of cer-
tain proceedings: taken, pursuant to State consent-to-
__ purchase ‘Statutes and State cession statutes, the ques-
tion whether the United States acyuired « exclusive
degislative jurisdiction over the lands comprising the
various military reservations under discussion is “a
federal question arising under Title 28 U.S.C. See-.
tions. 1331, 1845. Silas Mason Co. v, Tar Commission,
302 U.S. 186, 197 (1937). ad
In Allegheny County v. Frank Mashuda €0. 360
US . 185 A 1959), it was held that a federal district
/
court may not abstain from exercising its jurisdic-*
tion where there is no hazard of uinevessarily decid-
ing a federal constitutional question, or of unsettling
some delicate balance in the area of fede ‘ral-state rela- .
“tionships, or of ronorying difficult and uncertain issues
of State law. :
Such factors being sini; we are of the opinion
that wé should ainiegs to a consideration of the issues.
IV. THE ISSUES
In Penn Dairies v. Milk Control Commission, 318
U.S. 261 (19 3). the Supreme Court he ld that “the
Pennsylvania Milk Control Commission should not: be
réstrained fr6m enforcing ”@ similar milk -aetlor from:
refusing to license a- milk distributor who had. sold
milk to the United States at a militar Vv installation at
prices less than the minimum tixed by the Pennsyl-
vania act. In that case, however, the Court noted that
the military installation was’ situated, not on land over
which the United States had exclusive jurisdiction,
but on land ever whieh the State of | ennsylvania re-
tained its jurfsdiction. :
In Pacific Coast Dairy, Ine. v. De partment of Agri-
culture, 318 U.S. 285 (1943), dee ‘ided the same. day,
.the Court reached a different conclusion, .oldifig that
the California: Department of Agriculture could not
enforce the California milk code iy. revoking the
license of a milk distributor for selling milk to the ~
United States at a military reservation, Moffett Field,
over which the United States exercised exclusive juris-
diction, at "prices less than the minimum set by State
law. é -
. Recognizing that ie weit reached . ‘in the two
cases might seem contradictory, the court noted,
te
i
318 U.S. at p. 295, that: ‘tin preserving the balance.
* between, national and state power, seemingly incon. .
— sequential, differences often: require .diverse results.”
‘In the instant cases, defendants seek to avoid appli-
cation of the Pacific Coast Dairy case to the three
military installations here involved upon the ground
that these installations are not in fact within’ the ex-
elusive jurisdiction of the United States, and that,
therefore, these cases are to be deter mined, not unde 1
Pacific Coast Dairy, but under -the rule- of Pe nn
Dairies. |
. Defendants contend further, that even-if these in-
stallations are within the exclusive jurisdiction of the
United States, the penal provisions of the California
Milk Act were assimilated as law wifhin these: fed-
eral enclaves under the so-called aren e Crimes :
Act, as amended in 1948, Title 18 U S.C. Section 13.
Plaintiff contends: First, that the three installa-
‘tions here involved are in fact within the exclusive
jurisdiction of the United States. ;
Secondly, that even if they are. not, these cases
‘should not be determined under the rule of the Peni:
Duiries ease, supra, because the California Milk Act
is in conflict ith federal procurement regulations and
‘policy within the rule of Public Utilities Commission
of California v. United States, 355 U.S. 534 (1958),
-to which’ we shall refer in due course; and, therefore,
that so far as the United States is concernéd, the
California Act violates the Supremac: v Clause of the
United States ¢ ‘onstitution, Art. VI, Glause 2.
Further, and for.this reason, plaintiff contends that’ .
the penal provisions of the California Act could not
have been assimilated. in these enclaves under the
Assimilative Crimes Act.
V. THE ISSUE OF. RAGLUSIVE JURISDICTION
A. Oakland. Army Terminal
The U hited States alleges, and the record shows —
Without contradiction, that: the lands comprising the
Oakland Army Terminal were acquired hy the United
‘States in 1950-through condenmation proceedings for
the purposes set forth in Art. I, See. 8 Cl. 17 of the
Constitution. (Plaintiff's Memorandum, -tiled Mareh
30, 1960; and Exhibit 1.) Nan |
That Constitutional provision reads in pertinent
part as follows:
“The Congress shall ‘have power .. . to exercise
exclusive Legislation... over all: Places parchased
by the Consent of. the Legislature of the State...
for the Erection of Forts ... and other needful -
Buildings. 7 dee -
At. the time of the acquisition of Oakland Army
‘Terminal in 1950, California Government Code See.
126 provided: ‘Notwithstanding any other provision
_ of law, general or special, the Legislature of California
consents to the ae quisition by the U nitéd States of
land within this State upon and subject to each and all
of the following express. conditions and reservations,
in addition to any other conditions or reserwations
prescribed: by Taw.”
Then follow the various express conditioris and res-
ervations of the Statute: “(a ) The acquisition must
be for the erection of forts .j. . and other needful:
buildings, or other public parphe within the. purview.
of Clause 17 of Section 8 of Article lof the Constitu-
tion of the United States; | :
(b) The gequisition must Be pursuant to and .
- compliance Gin the laws of the United States:
“te |
We
: ee OD
(¢) The United States must. in writing have as-
sented to acceptance of jurisdiction over the land.
upon and subject to cach and aH of the conditions and
reservations in this section preseribed; 2. >
_ (1) The conditions prescribed in subdivisions: (ay,
(b) and (¢) of this section must have been found and
declared to have occurred and to exist, by the State
Lands Commission, dnd the: Commission must have
found and declared that such acquisition is in. the
interest of the State, certified copies of its orders or.
resolutions making ‘such findings and declarations te
he: filed ih the offite of the Secretary of State. ane
recorded in the office of the County Ree order of each
county in which wny part-of the land is situate;
(e), dn eranting this consent, the Legislature and
the St: ite reserve jurisdiction on and over the land for
the execution of civil process*and criminal process in
all cases, and the State's e1itire power of taxation .
and reserve to all persons residing on suely land all
civil and political rights, ineluding the right of.suf-
frage, which they might have were this cansent not
Piven 120s : ae
‘The records of the California State Lands Commis-
- sion, on file herein as gttac hmnents to Exhibit 1, show
that by letter of acceptance fram the Secretary of.
the Army to the California State Lands € sp aasinsen
dated July 5, 1950, the Department of the Army ac-
cepted: federal jurisdiction over the subject land in
hehalf of the United States.
Such acceptance of jurisdiction was made pursu-
ant to the requirements of R.-S. §355, 40 U.S.C,A.
Section 255, which provides **. . . until’ the United
States has accepted jurisdiction over lands ... it shall
he conclusively presumed that no such jurisdiction -
‘has been accepted.” ;
fa
ty
==-23
“By henchabion: dated iar & 1950, the S State Lands
Commission found ‘‘that the conditions preseribed in
subdivisions (a), (b) and (e) of section 126 of the
Goyernment Code ofthe State of California had been
found to have, oceurred and to exist¢ and that such
Np is in the interests-;of the State’ (Resolu-
tion, Cahfornia State Lands Commission, October 5,
1950, Exhilhit 1.)
Certified copies. of the Order and Resolution of
~fhe State Lands Commission were filed in the’ office
of the See ‘retary of State an recorded in_the—effice”
of the. County “Reeorder of «Aluneda County, where
all the land is situated: By letter 6f October 31, 1950
the State Lands Commission notified the Seeretary
of the Army that full complianee had been made with
Govermment Code Section 126. (Exhibit 1). .
The State of California contends that “aliforiiia
Government Code. Section 126 operates only as a con-
-sent to the acquisition of land- by the United States,
but not as a transfer of jurisdiction to the United
States over the lands.
- We are af the opinion, however, that although See.
126 contains no-express words to that effect. if mani-.
fests clearly the intent of, the California legislature
that it operates to transfer legislative: jurisitiction
over such Jands. <7
Phe, section makes express reference to land acqui-
sitions for the purposes set forth in the U.S. Consti-
tution, Art. I, See. 8, Cl. 17, a provision whieh deals
specific ‘ally with: the aeqitisition hy the United States
of “exelusive legislative jurisdiction’ *, over” lands
purchased by the United States for sueh purposes
with the consent of. the legislature of the State.
- Further, Section 126 expressly requires an assent
‘in writing by the: United States to “tae ceptance of jur-
om ?4 i
isdiction over the land upon and subject to each and
-all of the conditions and reservations ‘inp this section
_. preseribed.’
Further, Sec. 126 makes express reservations” of.
“State jurisdiction over the land for specific, limited.
purposes—serv iee of civil and, criminal process and
the power of taxation. These express: reservations of ~*
certain limited areas of jurisdiction are consistent.
only with an intent that jurisdiction would otherwise.
pass to the United States.
‘Further, as we shall mention in our diseussion of |
Travis «Air Force Base, the Attorney. General of Cali-
fornia has ruled that the precursor section of. the
above: Government Code see. 126 (Cal. Pol. Code See.
34), which is substantially similar to Government
Code See. 126, is operative, not only as a mere con-
—sent to purchases, but fo vest acigioschbaies in the
United States. :
The State of California next contends that, assumi-
ing Section 126 is held to operate to transfer legis-
‘lative jurisdiction, the ‘section’s reference to, ‘other
conditions or reservations prescribed by law?’ is in
'. effect a_ reference to Government Code Section 115,
as amendéd by Stats. 1947, ch. 1532, p. 3164, repealed -
co by Stats. 1955, ch. 1447,-p.2636,-yykich at the time
of the aequisition of the lands? comprising Oakland
Army Terminal provided: Ate :
*“The State reserves the administration of the erim-.~
inal law of the State with respect to any‘land over
* which any jurisdiction has been or may be ceded
-or conveyed to the United States, during the time
the United States is the owner thereof.” -
This provision, the’ State of California argues,
.. reserved the penal provisions of the California Milk
5
. >
52g — oh)
Stabilization Law, e.g. Seetions 4561, 4410, from: gmy
transfer of jurisdiction. ,
We are of the opition, howevers that Seetion” To.
Lis applicable qniy to lands “teeded’? to the United
"2 " ** States, as distinguished from lands aequired. through
purchase or condemnation by the United States with. +
wee tes this. State's. eonsent. as in the case of these Oak
, laanael Army “Pernitiattamds—
Po eee alistinetion hetween these two y nethods “of ae
quisition of jurisdiction hy the United States aver
lands becomes clear in the light of the history of thre
judicial interpretation of ‘Art. [See 8. Ob 7 of the
( constitution, Par Soames
At an earls date it was sugge sted that the only
nieaus hw whie h the bedi al government could acquire
jurisdiction, from the States over laiids was the eo
ca}led on Weconsent method: provided Iw Art.
1. See. SCL 17. See, United States v.. Railroad Bride
Company, G&, ND. TL 1855, 27> Fed. Cas. pp. b86.,
Jao, No. 16, 114, UM ers Rowe
However, in Fort Leavenworth ve howe, WAGES
525 (1885). the Supreme Court susts ained the validits
of Kansas legislation * ‘eoding te the United States.
legislative. jurisdiction over Fort) Leavenworth, sit sie
uated on lands which -the United States had Lo entise
to “purchase”, within the meaning of Art. B See. 8.
C1. 17 of the ¢ ‘onstitution, because the lands. had been
possessed by the United. States before the admission
of Kansas into the Union. ne
The «Court thus reeognized a new method, ie.
“cession. by which the United States might equine
jurisdiction over lands where. ue ‘purchase’ for
constitutionally specified purposes wits involved, eg.’
when the lands. had been part of the public domain |
&
——. .
and had been reserved frota sale, F ort Leavenworth v.
Lowe, supra, or when, although a purchase was in-
volved, the purpose was not one enumerated by Art.
I, See. 8, Cl. .17 of the Constitution, Collins v. Yose-
mite Park Co., 304 U.S. 518 (1938). ~
Following the Fort Leavenworth decision, a num- —
ber .of States adopted so-called ‘‘cession statutes’ to |
supplement their consent-to-purchase statutes, One of
these States was California, which in 1891 adopted.
its cession statutes, Stats. 1891, ch. 181, p. 262, codi-
fied into Government Code Section 113, effective ~
August 4, 1943, referred to above; also, Stats. 1897,
. ch. 56, p. 51, codified into Government Code Section |
114, effective August 4, 1943, until repealed by Stats.
1947, ci:. 1532, p. 3164, te which we will later refer in
—. our discussion of Travis and Castle Air Force Bases..
The California Attorney General has himself recog-
nized that acquisition by the federal government of
exclusive jurisdiction over land by the corisent-to-pur-
chase ,method, provided in Art. I, See. 8, Cl. 17; is
distinct from the acquisition of exclusive jurisdiction
‘pursuant to these State ‘‘cession’’ statutes, (See,. Re-
port of the California Attorney General, Jurisdiction — .
Over Federal Enclaves in California, 1958, pp. 3, 42, —
72-73; also, 23 Op. Cal. Attorney General 14 (1954).
We are of: the opinion, .therefore, that Government
Code See. 113 did not reserve administration of the
_ eriminal provisions of* the California Milk Stabiliza-
tion Act over the lands competing Oakland ‘ Army
~ Terminal.
Defendants next contend that. even n though exclusive
jurisdiction was effectually tendered to the United
States, only ‘partial’? jurisdiction was in fact ae-
cepted by the United States in the letter of accept-
\ — 277 —
a ;
ance sent by the Seeretary of the Army to the Cali- -
fornia State Lands Commission, dated July 5, 1950, :
referred to above, wherein it. was stated: “The De-
partment of the Army, in behalf of the United States
of America, hereby assents to the acceptance of fed-
eral jurisdiction over the subject land.””. ~ |
‘Defendants make -the point that the use of the
phrase ‘federal jurisdiction’’ hy the Secretary of the
Army and his omission of the phrase ‘‘exclusive juris-.
diction,”’ a phrase which appeared in previous letters
of this kind from the Secretary of War, signifies an -
intent-te. accept only ‘partial’ jurisdiction.
We do not agree with this contention. The letter of
aceeptance from the Secretary of. the Army, forwarded
pursuant to R.S. $355, 40 U.S.C.A. Section 255,. re- -
ferred to above, accepts federal jurisdiction without:
qualification. This letter effectively accepted the ex-—
elusive jurisdiction contemplated by Art. I, See. 8, Cl.
17 of the Constitution. | | ao
B. Travis: hir Force Base
_- The United States ‘alleges and the record shows
without eéntradiction that the lands on which Travis
Air Force Base is located were acquired by the United: . .
- States between December, 1942, and March, 1943,
through various purchases and condemnations, for
military purposes under the provisions of Art. I, Sec.
8, Cl. 17 of the Constitution. (Attachments A and B
to LaBuda’s Affidavit; and deeds and condemnation
awards attached to Exhibits 1,2 and 3).
California Political Code Section 34, ‘codified into
Government Code Section .111, Stats. 1943, ch. 134, *°
p. 1009, repealed by Stats. 1947, ch. 1532, p. 3164, at
the time of these acquisitions provided: “The Legisla-
~ 2
»
ture consents to the’ purchase or condemnation-by the
United States of any tract of land within this State
for the purpose ‘of erecting forts... and other need-
ful buildings . .. npon the express“condition fhat all
- civil and criminal process thay: be. served thereon.
\On April 16, 1948, the Secretary of War conmmnii-
-. with the ie of California, pursuant te
R. S. 9355, 40 U.S.C \. Aeetion : 255, aecepting “ex-
elusive juriediction over aI lands: acquired by (the
United*States) for military purposes within the State
of ‘California, title to which has -heretofore ‘vesged i
the United States and. over which exe Tusive jur ‘athe
tion has’ aot heretofore been obtained.” * (Exhibit 4).
The State of California contends + that California
‘Political Code Section. 34 operates only asa consent
to the acquisition of-land by the United’ States,. but.
hot as a transfer of jurisdic tion to the UC yited. States «
dver linds so acqtired. -
The ¢ ‘atifornia Attorney Gieneral has, Tn) held.
that, under Art. I, See. 8, Cl.217 of the United States
~ Constitution, and. under California Political Code
Section, 34, “jurisdiction™ vests in the federal gov-
ernment upon compliance by the latter with its own .
~ statutes. See, .also,. Report of the California. Attorney
General, Jurisdiction over Federal. Enclaves in Cali-
fornia, 3, 72-3 (1958). We concur in this view. .
The State of California next contends that the
United States did not effectiv ely accept any tendered
transfer of jurisdiction by the State, because it failed
to comply with Cal. Stats. 1897, ch. 56, p. 51, codified,
‘into Government Code Section 114, which at the time
of the acquisition of. Travis Air Force Base: provided :
“The State of California hereby cedes to the United
States of Amertea exclusive jurisdiction over all lands
ag,
within this State now held, occupied or reserved bi
@ the.Government of the United States for military *
purposes or defense, or which may hereafter be ceded
or conveyed to said United States for such purposes, -
* provided that a sufficient destription by metes and
‘bounds anda map or plat of such lands be tiled in the.
"proper office of record in the county ino which the
same are situated... °° The act further reserves the
‘Hight to serve civil and eriminal process,
Specifically, the State of California ,contends. that
no such map or description by metes and bounds was:
_ éver filed. ss , :
As we have already noted in our diséussion of Ouk-
land Army Air. Base,” Stats. 1897, ch. OG, and its
—Yelafed Stats. 1891, eho TSI. pp. 262, are secession”
statutes, and are. inapplicable to transfers of juris-
diction to the United States pursuant te the ae
~to-purchase method provided in Art. I, See. 8) 4 Cle
of the Constitution, sre Pr eee
“Fn the report ofthe California Attorney, General
previously cited it is speeitioally’ stated Cp. 72-3) that,
the may plat tiling requirements (of Stats. 1897,
ch. 56 cana Code seer 114) ate not applicable
to such transfers. os
oe *
.
.
C. Castle Air Force Base. :
The complaint alleges and. the record shows without
contradiction hate portion of Castle Air Force
Base on whiclhales and deliveries of milk and milk,
i produgy ‘take place is a. so-called Tract A, some
eighteepacres of land, more or less, which the United
Stateg claims to have acquired for military purposes, .
thin the! meaning of Art. I, See. 8 Cl. 17 of the:
Constitution, under a deed, dated April 6, 1943, from” >
— 39 —
one Sheldon M. Phillips to the United States. (Mann’ a
Affidavit, p. 5; Attachment A- to Dame’s Affidavit).
At the time of the acquisition, the California con-
sent- to-fiurchase statute was Political’ Code Section
34, referred to in our lise ‘Ussion of Travis Air Force "
» Base, supra, 7. : ¢ cr
On April 16, 1943, ten at after ‘the daté ‘of the
deed under which the United States claims to have
acquired Tract A for military purposes, the S Seeretary
‘of War commupicated with the peng of ¢ ‘alifor-_
nia, pursuant to R. 8S. 6355, 40 U.S.CLA. Seetion. 255,
- accepting “exclusive jurisdiction over all lands ac-
quired by. (the United States) for military: purposes.
" within the State.of California, title to which has here-
tofore vested ‘in the United States and over which
exe ‘lusive. jurisdiction has not heretofore been ob-
‘tained.". (Exhibit 4). et ,
The contentions of.the defendants as to Castle /Air
Force’ Base are, for thes most part similar to those
raised in connection with Travis Air. Ferce Base,
which we have ‘already discussed: ees *
In one respect, however, Castle Air Force Base
"presents a special. problent. The State of California
contends that the United States did not acquire title -
to Tract A, Castle Air Foree Base, for military. pur-
poses on April 6, 1943, nor.even by April 16, 1943, the»
date of the Secretary of War's letter to the Giovernar
of California, accepting exclusive jurisdiction of all
land ‘title to which -has heretefore vested in the
United States.’ Therefore, argues the State, Tract A
was not included within the térms of that letter, and
the, United States has not in fact ace epted exclusive
; jurisdiction over Tract A. ae
fe | sails 31 Say
The record shows that. Tract A was or iginally “ae-
_ quired by the National Housing Age ney for the con-
struction of war: housing .( Attachments B and, C to
Dame's Affidavit), under the provisions of the Lan-
ham: Act, 54 Stat. 1125, 42 US.c AY Seetion 1521, et
SOQ. See ‘tion 10ebf whie h. precludes the United, States
from’ accepting. exclusive dnpialjiction over .land so
‘nequired,. ~' 2
Thereafter by letter, dated October 21, 1942, effec-
tive September J, 1942, Tract A was transferred from
. the National Housing Agency to the War Depart-_
ment. (Attachment D to. Dame’s Affidavit), On April.
6. 1945, .pursni mnt tea lawful condenmation iction, a‘
deed from one Sheldon M. Phillips to the United
States was delivered to the War Department, (Attach-
ment A to Dame's Affidavit), and the certifieateof title
was declared satisfactory by the United States: Attor-
ney General: by letter dated September 29, 1943, ad-
dressed to the Secretary of War, (Attachment EB. te
-Dame’s Affidavit.)
e* The-State of Califorma conte nds, however, that title
to Pract A did hot? pass to the U nited States under
this deed ‘of “April 6,°1943, for the reason that) the
grantor, Sheldon M. Phillips, did not‘limself recéive
title to. Tract A until July 17, 194 3: when he received —
a deed from the Fe dleral Farm Mortgage Corporation.
(Affidavit of Paul Andrew; Attachment A. thereto). ”
Therefore, argues the State, Phillips’ prior’ deed of:
April;6, 1943 did not pass title’ to the United States
until at least July 17, 1943, under the rule. of after-
acquired title, set forth | in ¢ ‘alifornia Civil ¢ ‘ode Sec-.
tion 1106, ee
Defendants contend that there is thus presented:
ao material issue of fact relatiye to the time of the
Ww
sy -.
Sm
transfer of title to the United States, and that for
this reason the Court cannot grant: summary judg- .
ment ihe « case of Castle Air Force Base.
\ssuming, without deciding, that the. Phillips deed
“¢ April 6, 1943 did not effectively convey titlé in
‘Tract A to the United States, and that, thergfore,
Tract. A was not within the terms of the: Secfetary.
of War's letter of acceptance of exe ‘lusive jurisdic ‘tion,
- we note that there is contained in the reeord nnotlie 1
and subsequent letter, dated January 3rd of the follow-
ing vear, 1944, which accepts exe lusiv e jurisdiction in
terms similar to the prior ‘letter of April 16, 1943.,°
(Part of Exhibi¢. 12). : ’ oe ke
It is clear, even upon, the State's doer. that the
United States had aequired title to Tract A by July
17, 1943°%( Andrew Affidavit, supra). In that case, the
" Jetter of the Secretary of Wary dated January 3, 1944,
-uecepting exclusive jurisdiction over all lands title to .
which’ had previously ‘ested in the United States,
was applicable by its terms to Tract A and effectively
accepted jurisdiction over it, even if the previous ac-
ceptance letter of April 16, 1943 did riot. (exhibit
12;- supra). & . ‘i
The State of California. makes the further point
that Section 10 of the Lanham Aet, under w hich Tract
A was or iginally acquired, provides that the United
States shall not accept extlusive. jurisdiction: over’
lands so aequired.’. |
We are of the opinion, however, that -after the
transfer of Tract A from the National Housing Ad- .-
ministrator to the War Department, pursuant to 42
~ULS-CLA. Section 1524,'for military purposes, statutory »
provisions of the Lanham Act, including Section 10,
hecame inapplicable to the land. “The War Department
eo
its own powers and purposes.
- 33-—
would not be abies to statutory provisions pertinent
only to lands held by the National Housing Ageney
for Lanham Act» purposes. Upon its: acquisition of
Tract. A for its own military purposes the War [e-
partment held it subject only to statutes pertinent; to
&
In the possession of the War De ‘partment, Tract A
came withii. the’ provisions of Article 1, Section 8,
‘Clause 17 of the Constitution and, with the consent of
“the State of California provided) in) Political Code
Section 34, the United States, through the War De-
partment, could accept, exclusive jurisdiction over it.
There is, therefore, no material issue of fact in
volved-in our conclusion that Castle Air Force Base
ix within the exclusive jurisdiction of the United.
States, . .
VI. THE ISSUE OF 1HE SUPREMACY CLAUSE ~
We tir now to the confention of the plainti ff that,
even if these installations “are not within the @xclusive
jurisdiction of the U nited States, there is a’ confliet.
hetween the Californian Milk Stabilization et) and
federal procurement regulations and poliey, and that,
therefore, the milk act, se far as the United States ix
concerned, Violates the xp v ‘Tause. of the € on
stitutiom, Art. VI, CL.
Ih considering Sa a the California Milk Act is
inconsistent with federal procurement regulations and
policy, we anust bear in mind that the Supreme. Court -
in the Pfu. Dauirics decision, referred to‘at the outset
of this opinion, held. mater alia, that the Pennsvivania
“Milk Control Law of April 2s, 1937; P. 1. 417, Pyr-
don "Pa; Stat. Ann; Title 34 Seetion TOOj—101 et
seq., Which ts sitpilar te the California Aet, was not in
’
is Te ene
contliet- with any poderal proce urement statute, regu-,
lation.or pohey, | ,
The Court there took the view that tederal lowis-
lation did not disclose a purpose to ‘immunize govern. .
-ment contractors from local price-fixing regulations
which would otherwise be appticable,” (318 U.S. at p.
278). even though such régulations ‘imposed increased
economic burdens on the federal, government.
The Court particularly noted, however, that the
Pennsylvania Milk: Cotitrol Act was. not directed at
the federal government or its officers, citing the Penn-
sylvania State court below, 148 Pa. Super, 261, 270-—
271, 24 A 2d 717 (1942).
Ina more.recent expression of the Supreme € ‘ourt
upon the subject of conflict between State regulation
and federal procurement policy, Public Utilities Com-
mission of California v. United States, 355 U.S: 534.
(1958), which notes, but distinguishes the above. Penn’
Dairies case, it has been held that California. Public
Utilities Code Section 530. is in clear conflict with fed-
eral procurement regulations sanctioning the policy of
negotiated rates by federal procurement officers’ in
shipments.of federal property.
Section 530 provided in part that the California
“Public Utilities Commission **may permit common
carriers to transport property at reduced rates for
the United States, state, county or municipal govern-:
ments, to such extent and subject to such conditions
“as it may vonsider. just and reasonable .:. .”’
In considering the question ‘whether: the United
States ¢an be subjected to the discretionary authority
of a state agency for the terms on which, by grace,
it can make arrangements for services. to. be rendered
it.” (355 U.S. at p. 379) the Court discussed federal |
-
8
o
procurement policy, stating at p. 40 of 359 U.S.:
“Congress has provided a comprehensive policy gov-
erning procurement.”” Then, at p. of2 at 935 UB. “it
seems Clear that these regulations—which have the
force of-law, Leslic Miller, Ine. v. Arkansas, 352. U.S.
187; Standard Oil Co. v. Johnsan, 316 US. 481—
sanction the poliéy of negotiating rates for shipment
‘of federal property and. entrust the procurement
officers with the discretion to determine when existing
rates Will be accepted and when negotiation for lower
rates will be undertaken.” | | 3
Federal) procurement policy, dealing wi federal
contracts and purchases, whether. in relation to the
‘procurement of transportation or milk or other prop-
erty or services, is set forth in the provisions of the
Armed Services Procurement Act ef 1947, 62 Stat. 22, ©
10 U.S.C. Section 2301, et seq., described in-the House
ef Representatives report as ‘a: comprehensive revi-
sion and restatement of the laws governing the pro-
eurement of supplies and services.’ (House. Rept. 109,
80th Cong., Ist Sess., p. 6). |
That competitive hidding is the cornerstone of this
poliey is exemplified by 10 U.S.C, Section 2304(a),
which provides that purchases of property or services,
or- contracts therefor, shall be made by competitive
bidding through formal advertising. 3 fae
That section allows heads’ of agencies in certain
special situations to negotiate purchases or contracts,
rather than observe the basie competitive bidding .
policy, as, for example, purchases of perishable or non-
perishable subsistence supplies, such as milk. Section
2304(a) (9). eee
Notwithstanding this last mentioned statutory ex-
.
‘ ception, fluid. milk is purchased at Travis and Castle
_ Air Force Bases by the Air.Force through competitive,
ete, A cet
.
advertised contracts, pursuant to Air Foree Procure-
‘ment Instructions 2-102(¢) (1).
Another exception, which should be noted, is-Section
_-2304(a) (10), which authorizés negotiation where the
purchase or contract is for property or services for
which it is ‘timpracticable to obtain competition.’
Defendants have sought to rely upon this exception, -
“contending that it is ‘timpracticable to obtain ‘compe-
tition’ where the State has established minimum milk
prices. However, 32 C.F.R. Section 3.210-3- provides
that this exception’ is inapplicable where negotiation
is authorized for the purchase of perishable or non-
perishable subsistence supplies, such as milk.
In any event, the procurement regulations aré clear
as to the paramount objective of defense. procurement
policy: 2 Such procurement shall be made on a cofe-
petitive “basis whether by formal. advertising or by
negotiation, to the marimuni practicable eatent.” 32
~CLELRY Seetion 4.301. (emphasis supplied).
We note further that milk and milk products are
included within a general. preeurement scheme so com-
prehensive that -it is designed, not only. for economy
and efficiency,.but also for health and quality control.
For example, 32 C.F.LR. Section 608.1, specifically. re-
quires the award of contracts for procurement of milk
or milk products to be, limited to dairies which have
passed défense inspections or which have been certified
by federal authorities as approved sourees of supply.
See, also 32. C.F.R. Sections 156.1, 1562, regarding in-
* -spection generally, and 32> C.F.LR. Section 608.3, re-
garding the inspec tion of milk plants and dairy farms.
It is evident, therefore, as stated in the Public Utili-
tics case, that Congress has provided a campréhensive
policy. governing procurement. This is just as true in
1 37-—
%
the ease of milk purchases as it isin the case of trans- |
portation-rate contracts. . :
In the Public Utilities case the Court. noted that
California Public Utilities Code. Section 2112 provided:
penalties applicable, not only to the carrier, Put to
shippers as well, and that the prohibition of the statute:
was so broad as to dény the United States the right
to ship at reduced rates Without State Commission
approval. | ) te
we The Supreme Court in the Public Utilities Case, did
not point to any: provision of the Public Utilities
Code; or any other California law or decision, whieh
would expressly or impliedly indieate a legislative —
0
intent to aim the penal provisions of the Public til
ties Code directly at the federal government and sits
officers, if they should be shippers in violation of the
code. The Court nevertheless, teok the view that the
Code was so. directed, sighting the District Court
oOnINON (355 US. at p. WS) : “eTfia United States
officer were to negotiate with a earrier for treduced
rates’ without permitting the deferidant to determine
whether it ‘consideréd” the conditions of the contract
‘just, and reasonable,’ he cold. be thrown into the
county: jail.’ 141 F.Supp. at [168] at jp. 186.7
The Court listinguished the Renu Dairies decision
for the stated reason that there, the-Court (318 U.S.
at p. 270) had coneluded that the State regulation |
‘imposes’ no” prohibition on the national g6vernment
or its officers.”” Inthe Public Utilities cases the Court
continued, “the State places a prohibition on the
Federal Government.” 355 US.cat p. Hd.
The United States\contends that, even if jthe Peni
Dairies decision has not been overruled in-effect by’
» . vy, °*P sn? ss ry . ..
‘the’ Public Utilities case,. supra, the~ Penn Dairtes
ie
‘not.’
ee
i °
decivion is inapplicable here for th€ {Same reason on
Which it was distinguished in the Public Utilities case,
i.e, thiat the California Milk Stabilization Act, unlike —
the Pennsylvania Milk Control Act. does: impase a
prohibition on the feder ‘al government ad its officers,
iv our conside ‘ration of the-merit of this contention
We note certain prov ixions of the California Milk wet
Which are. apttite analogous to the provisions sat the
_—Pablic “Utilities Code considered | in the Public UYile-
_ttes Gase. 7 -
Under. Section 4361 of ioe: California’ Milk Law,
the duty to observe established minimuni milk prices
and penailtits for failtre to do se, are imposed, net
only upon milk producers and distributors with be
spect to their sales of milk, but also upon all retail
stores, restaurants, confectioneries, or ofher places
for consumption on or off the premises, ened
supplied) which **purehase’™ milk from distrilyttiors,
or Which sell to any consumer.
Section 4361 contains: further broad provisions: de-
signed to make such **purehases*’? of milk unlawful
regardless of the method-or device utilized, and: re-
gardless of whether they are effected directly or
through agents, employees, or subsidiaries.
Section 4280(f)- makes it unlawful to handle milk
within the marketing areas of the State whielr is to
‘be sold at less than established minimum prices ‘tat ~
any plac e, Whether part of. the marketing area or
_ Section 4410 thin. the violation of any provision
of the act, or of any stabilization and inarketing plan,
or of ‘any order of the director, or-of.any of the unfair
practices thereof, a misdemeanor.
The language of these sections is: broad enough to
- include the federal government and its procurement
?
oo
ee : : °
officers, as ptirehiasers of “milk: frome adistributers at
the various federal military ‘reservations. fof cou
sumption either on base in the iilitarys mess halls.
or off hase through redial = made in otnviditeary
conmnissaries, 5 |
We are tnable te liseover: UY sudestaunrtis bo ditfer
enee between the situation considered: in the Li} ifn
Utilitios case ned the situation here presented, ;
» The federal proenrement statutes, regilations anil
policy there were substantially: similar te those bien
involved, .
The P uublic A tilitie ss Code there conside fed, aye pjitied |
hot only te carriers, but te shippers, ineluding ships.
ments hy the United’ States. Se. alse here. the milk
aet applies not ondy to milk* producers and distribu
tors, but alse to purenasers Of alk, inehading pur,
- chases of milk by the United States, Indeed, the barste.
contention of the State of Californiasim its brief, and
the. ruling of its Supreme Court in’ Pacific gerd
Dairy, Tac. ve Dh partineut of Agriculture, Wy . wn
818, 123. P. 0 $42. (1942), has been and ‘is, that inn
milk act applies to sales of milk in whie h the United
States is the purchaser.
In the Pablic Ctilities case the United States was
ov subjected to the discretionary author ity of a state
agency. for the terms on whieh, by gre ee, it ean pro
arrangements for services te be rendered it.” 39) C8;
at yage 539 So, also, here the United States is ae
jected to the diseretionary authority: of the Director —
of the Cy lifornia Department of Ngrieulture (whe
establishes minimum milk prices for marketing areas).
for the terms on whieh by g1 ‘ace, it cancmake arrange-
ments for purchases of milk at its various military
installations. ” fs :
F ee
©
.
a pian? — .
In the briefs in the pending case, the State of
California disclaims any intent to enforce the penal -
provisions of its milk act. against the United States
sor its procurement officers. A similar, diselaimer
proved of no avail inthe Public Utilities case, (See
reference to record 3599 CLS. at p. 551). :
We eonelude,. therefore, that even if -the Penn
Dairic S ease has not heen in-effeet overruled by the
Pablie Utiltties case. it is inapplicable here because -
the California Milk Stabilization Aet ‘splices a pro:
hibition og the Federal Government” Within the
inedining Of the Public U tilitics vase, and, therefore,
so. contlicts with federal preéurement statutes and
jolie vals to be invalid nuider the S: premier: Clause,
Arts VI. See.
Vil. THE ISSUE OF .ASSIMILATION
Defendants: contend that. even if the State be
deemed toe have transterted exetssive jurisdiction *
over the three bases here ‘involved te-the federal gov
ernment, the existing eriminal laws of California re-
rastitved operative therein or beeanie operative iceke
hv virtue of the provisious of Tithe TS ES.C.Seéetion
1. the so-called Assimilative Crimes Aet, as amended:
-in WHS) whieh, provides: 9° to o
“Whoever withitr or upen any of the places now
eNisting or hereatter reserved Prelate ass i)
“vided in Section 7 of this tithe. is guilty of Bay aet
Corlomission whieh although net niade punishable
by any enactment of Cougress, would be paimish-
able if committed or omitted, within the jurisdic. ¢
tien of the So te, Territory, Possession, or Dis-
Striet in which such place is situated, by the laws
thereof at.the, time of such act-or omission, shall
\ sem 41 —
| |
"Me guilty of ‘a ike offense and subject to a Tike
~ punishment.”
Title 18 U.S.C. Section 7. referred to’ in the fore-
going section, prov ides; subsection (3), that the term |
special maritime ‘or territorial jurisdiction of the
United States * Gnelifdes: ;
Any lands: reserved or aequired tor the #se of
“the United States, and vnder the exclusive or eou-
. eurrent jurisdiction, thereof, or aly place. pur-
chased. gr otherwise acquired by the United States’
hy consent of the legislature of the State in which
the SUING, shall Ing for the erection of a fort, maga-
zine, arseial. doe ‘Ayana, or other heedful building.” .
it Ihies been held that Title 1s, t. . Seetion 13 is
hot an tnconstitutional delegation. a power to the
State: legislatures, even though it in effect makes diye
plicable to a federal enclave subsequently | enacted
criminal, laws of the: State within whic ‘h the ene si
is located. United States ¥. Shar pnack, 355 U.S. 286
(1998). : :
The -statute constitutes ant adoption ro Congress
for: federal enclaves of State ¢ rinain: tl late, when. fed-
eral eriminal law has not-de fined n certain offense or
age idedl for its punishment. People of Puerto Rico
Shell -Co., "209 US, Bon. (1950). The State pita
aaitaiel under this section, heer omes in effect: fe der
law. Johison y. Yellow Cab Coao21 4 S. 3833 sing
Tn Pacifie Coast Dairy, Tue. De papeeeueat of Agri
culture, 1943, BI8 US. 285, at ae 294, the possibility
of the assimilation of loeal law was noted by the Su-
—preme Court, with this statement : “When the federal
; _government acquired the tract (Moffet Field), local -
‘law not. ince sistent with fetleral policy remained in
>
—
Pe . yee
42
force until altered by national legislation,’ se iting.
Stewart & Co. v. Sadrak ula, 309. U.S, 94 (1940).
The Court further noted, Baveevier’ that’ Moffet
Field,. there involved, had .been acdquired by the
United States in 1931, long before the enactment of
the milk stabilization law in 1935, and concluded. that®
no. assimilation had occurred in r the case of Moffet :
Field.
Defendants point out that Travis and .Casfle Air ’
Force Bases, aequired by the United States in 1948,
and Oakland Arniy Terminal, acquired in 1950, were
all acquired subseuuent to the enactment of the Cali-
‘fornia Milk Stabilization Act of 1935. They argue that.
by operation of. the Assimilative Crimes Ac ‘t, enac ‘ted
in its present form in 1948, the: penal provisions of
‘the milk aect,: notably Sections 4361 and 4410, were
adopted as federal law’ on these enclaves. tam it
The Courts have held, however, that the Assimilative ©
-Crimes Act does not operate to adopt any State penal
- statutes which are th conflict with federal policy, as
expressed by acts of Congress or by valid administra-
tive regulations haying the force of law. Air Terminal
Services Inc. ¥. Rentzel- DA ‘.E.D. Va. 1949, 81. F.
Supp. 611; Nash ev.. Air Terminal. Services Ine.,
D.CLE.D. Ya. 1949, 85 F. Supp. 545; Johnson v. Yel-
low Cab. Co., supra. , -
If, therefore, We are correct in our ‘eulifg that the
California milk act is hn-contliet with federal proc ure-.
ament regulations-and: polieyv within the meaning of the
Public Utilittes case, olpn provisions of ‘the act —
were not assimilated into the installations here ‘in-
volved. |
Even, if we assume that there is no » conflict hetween
the-California milk art and federal proc urement policy
,
*
oo
yee
land further, that -its penal provisions could hive hoo
¥ assimilated in these installations notwithstanding 4s
~
a
‘usive federal jurisdietion ever them, any stich assim
"-apated provisions would have heeatne federal vot state’, .
~ Jaw and ag’sueh, their enfoyeement wouldehe the pre
erie ee of the United States Attornes Cierieral and
the vatious United States Attorney i. : .
-” The State of California, conceding ahat such woul
be the CHS takes the posit lan that, although violations
of assimilatkd provisions of the milk laws within fed
vould be subject te praseention onby by
eral enclaves \
federal afithartties in’ the federal courts, Vighitions of
the milk act wopld alse be subject te proseention: by
State authorities: in State ‘ourts When such violations,
invelved condnet. of distributors occurring ou state
territory and copstititing a violation of state law.
> Commonwealth NV. Roh rey VST 84 Pa. Dist. & Co, 410.
In this respect. we notesthat Séetion Aso Cty of the
milks aet, already “referred \to, tuakes i unlawful to
handle anilk within the marketing areas of the State
whieh is to be sold at less than _establisned TVET RELLL
Q.. : ‘
/ “prtees at any plage, whether part of the marketing
area or not, es XX *
We understand the position of the-defendants to be
‘that, assuming assimilation of the, penal provisions .of
the milk act in exelitsive jurisdiction Qnekaves, such
ciremtmstanee would be an. equitable tadtor for this:
CBurt to consider before granting iajiunetive relief to
the federal government, which in effect world preclude
the State from enforcing ‘te milk law against distribu.
-tors selling to the ‘fodvral government even though
their conduct may oecur on State territory and cousti-
tute uniavful conduct under State law. ee Xe
Sueia contention would, in any event, he pertinent,
to the pending. cases only indirectly, and collaterally -——
*\
7 \
eee? ae
Absent a prosecution by the federal government under
> the provisions of the Agsimilative Crimes Act, this
Court would abstain from a ruling upon the question
Whether the mikk aét, if not in confliet with federal
~ “regulation and policy, would have been” pantenitabed
a’ within these enclaves,
In Johnson v. Vellow Cab ('o., ol Lai ceek Okla-
homa State’ enforeement officials, enjoined on petition:
_ofa common carrier fom attempting to enforce State
. liquor laws with respect to purchases of liquor at Fort
Sill military reservation, contgnded that the State’,
liquor law had been assimilated at the base. The
Supreme Court refrained from ruling ow this point,
saving: (321 U.S. at pp. 292.293)—
“Lf the carrier's delivery of these liquors on the
Kort Sill Reservation’ would violate any federal -
law, federal agencies exist which are charged with |
responsibilities to institute appropriate procéed-
‘ings against, the carrier ins federal tribunals. In
such proceedings the parties would be the United
‘States and the carrier, and the issue of violation
.. of federal lyas: would be directly, and not collater-
‘ally, presented. The complicated federaf ques-
tions involved, concerning various federal statutes
as Well as’ Army rules and. regulations, could he-
answered upon an adequate presentation of all
facts essential -to a right and just termination.’ >
~-s GONCLUSION |
For the reasons herein stated, the: Court concludes,
subject to the preparation by the plaintiff in these
cases, as prevailing party, of findings of faet and con-
clusions of laW, decree and writ, and settlement and
va .
~
—
signing thereof by the ‘Court, pursnant te Rule Y Lot
‘this Cotrt: ce ay Re ae |
That. ih Civil Action No. 39030, defendants” motion
to.stay proceedings, to quash the’ temporary restrun
ing ofder and te, deny the petition for preliminags
injunction, be denied; that x decree be entered de-
—elaring the aforesaid sectionsiof the California Agri.
* onltural Code, insecireas. they prohibit: or, duthorize
te prohibiting. of distributors and producers ot milk
Within the State of California from selling and de
livering milk to the United States at the Oakland
Army Terininak ato rates lower thi those established |
) by *defendants, as Wheoustitutional and void; and, that
Abe defendants, their: offieers, agents, servants, em
plovees, attorneys, and those persons i aetive concert
or participation with, them, he, purtmanently enjoined
‘from making any effort to prohibit sue producers
and distributors or the United States and its purchas-
ing agerits from negotiating and making arrangements .
and contracts: for the sale and delivery of thuid milk
to the United States at. the Oakland Arniv Terminal
at rates lower than those established dy: defendaaits ; :
Further, that in Civil Action No. 39073; dgfendants’
motion to stay proteedings, to quash the temporary
_ restraining order and to deny the petition ‘or pre-
liminary injunction, be denied, and that plat tiff’s
"8 motion for summary judgment be granted, and that
wv. decree be entered ‘declaring the aforesaid sections
of the: California Agricultural Code, insofar as they
prohibit: or authorize the prohibiting of distributors
and. producers, of milk within the State of California
~ from selling and delivering’ milk to the Uhited States
at Travis Air Force Base and Castle Air Foree Base
at rates lower than “those established © by defendants,
‘ e
poy eee
as unconstitutional and void; and, that.the defendants,
their officers, agents, servants, employees, attorneys,
and those persons in active concert or participation
With then:, be permanently enjoined from making any
effort to prohibit such producers, distributors, or the —
United States and its purchasing agents from nego- —
tiating and making arrangements and contracts for
the sale and delivery of fluid milk to the United States
at Travis Air Force and Castle Air Force Bases at
rates lower than. those established by defendants.
? \ :
| : La
Dated: November 29th, 1960.
\ .
og | Guaear H. JerTBERG
er _- United § States Cireuit Judge
~ Grorce B, >
United States.District Judge —
WituiaM T. SwEIGERT
. United States District Judge
\
\
ye sa
Il, ORDER RE, FINDINGS
[Title of Court Omitted] ? ’
$$$
UNITED STATES OF AMERICA, eer
. 3 . 3 "Plaintiff, No.
. WILLIAM E. WARNE. Director of Agriculture of - and |
‘the State of California, and STANLEY MOSK, 39073
., Attorney General, State of California, , : Order
Da fe ndants,
» &
This Court, in its Memorandum Opinion herein,
directed plaintiff, as prevailing: party, to prepare
findings of fact- and conclusions of law, and appro-
priate deeree and writ, subject to the, settlement and
signing thereof, pursuant to Rule 21 of this Court.
_ Now, upon the: written request of both - parties
herein, the Court withdraws its direction to’-prepare
findings of. fact and conclusions of law, and adopts
its Memorandum Opinion herein as sufficient, under
Rule 52, Federal Rules of Civil Procedure, to con-
stitute. the Court's’ findings of faet. and conclusions
of law herein. - | |
Therefore, the language of that Memorandum
Opinion, page 33, lines 8-11 thereof, directing the
plaintiff as prevailing party, to prepare findings of
fact and conclusions of law,’ is hereby ‘stricken, and
the plaintiff will prepare an appropriate order and
‘decree’ herein. Dated: Mareh 27, 1961.
\ Ginprre He JerrBerc
\; United States Cirenit Judge
Grorck B. Harris
United States District Judge
WitiiaM T. SWEIGERT
: fae, United States District Judge
yoo
I. JUDGMENTS
" [Title of Court Omitted |
OUNITED STAPES: OF VMERIOA
. Vs ; ° ams Civil
CHARLAS PAUL. Director of Agriculture, State of. s _-No.
California, and STANLEY MOSK, ‘Attorney Gen °(/ 39030
erak ot tate of California,
” ‘ -
I) fy wedants |
= ;
ORDER AND INJUNCTION “
This cause having come on for hearing on auappli-
eution ‘by the United States of Amerien tor ano in
junetion restraining defendants. from enforcing the
Ininimia price previsioys of Chapter 17. Div. 6.
California ¢ Agricultural/ Code and of + regulations
_issued thereunder, with respect to sales and deliveries —
of milk and milk produets to the: United States at. .
Qakland Army Terminal, upon the ground that sueh
enforcement is unconstitutional, and upon defendants”
‘motion to stay proceedings, to quich the temporary
restraining order and deny the petition for injunetion,
amd the Court having heretofore, on November 29,
1960 filed its Memorandum Opinion, and*by Order filed
~Mareh 27, 196) adopted stid “Memorandum, Opinion
as sutticient under “Riile 52, Federal Rules of Civil’
Procediire, to constitute the ¢ ‘ourt’s + findings of. fact
and conclusions of law.
NOW, THEREFORE, it is this 17th dav of April,
1961, ORDERED:
1. Defendants’ motion te stay proceedings is denied :
GS
SE a
| Defendants * motion to quash the temporary re-
ettataing ordel ond to deny the petition for injunction
is denied; ~
3. Defendants and each of them and their agents,
servants, employees, and: attorneys, suecessors . and
assigns, and all persons.in active concert or partielpa-
tio with them be and they hereby are permanently
efijoined and restrained from enforcing or attempting
to enforce against producers or distributors of milk
or milk products or against the U nited States or its
purchasing agents, with respect to sales, purchases,
or deliveries of milk or milk products at the Oakland’
Army Terminal, either the state minimum producer
price, Avholesale’ price, or retail price regulations
promulgated by the Director of Agriculture pursuant
to the California, Milk Stabilization. Act.
‘ =
a (S) GILBERT i. J ERTBERG
tara? ~. United States Circuit Judge
-
Gsouak B. HLannis .
United States District Jndge
W. T. SWEIGERD:
United States District Judge
— 0 —
[ Title of Court han Sled
UNITED STATES OF AMERICA, b
. y Plaintoy, io
vs. 7. Civil
CHARLES PAUL, Director of Agriculture. State of) No.
California, and STANLEY MOSK, Attorney Gen- 39073
eral, State of California: ba :
De fo ndaats.
ORDER AND INJUNCTION
T his cause hav ing come on for hes ring on an appli-
cation by the U nited States of. America for an injune-
‘tion restraining defendants from enforcing the mini-
mun price provisions of Chapter 17, Div. 6, California
Agricultural Code and of regulations issied there-
under, with respect to Sales and deliveries of milk and
milk products to the United States at Travis. Air.
Force Base and Castle Air Force Base, upon the
ground that such enforcement is unconstitutional, and
upon- defendants’ motion to-stay proceedings, and the
Court having heretofore on Noyember 29, 1960 filed its
Memorandum Opinion, and by Order’ filed Mareh .
27, 1961 adopted said Memorandum Opinion as suffi-
cient under Rule 52, Federal Rules of Civil Procedure,
to constitute the € ‘ourt’ s findings of fact. and conclu-
sions of law, | .
NOW, , THEREFORE, it is this 17th'day of April,
1961, ,
ORDERED:
1. Defendants’ motion to stay proceedings is denied ;
2. Defendants’ and each of ‘them and their agents,
servants, emplovees, and attorneys, Successors and as-
signs, and all persons in active concert of participation
.
With them ‘be and they hereby are permanently en-
joyned and restrained fron: enforcing or attempting
to enforce against -produceys or distributors of milk
-or milk products’ or against-the United States or. its. -
pure hasing agents, With respect to sales, pure ‘hases, or
deliveries of milk or milk products at Travis or ¢ ‘astle
Air Force Bases, either the state minimum producer
_price, Wholesale price, or retail price regulations pro-
mulgated by the Director of Agriculture Jursuanut to
the ¢ alifornia Milk Stabilization Act.
(S) Ginperr TH. Jerrsera
United States Cireuit Juilge &
Grorce B. Harris
United States District Judge
‘
OW. T. Sweicerr
~ United States District Sosiin:
=. ~
—— e
W. NOTICES OF APPEAL TO THE UNITED STATES
COURT OF’ APPEALS —*
[ Title of Court Omitted |
“UNITED STATES OF AMERICA, ae
hd ce Plaintiff,
va... . ” Civil
" CHARLES PAUL, Director of Agriculture, State of ) -No. ”
California, and STANLEY MOSK, Attorney Gey- 39030
eral, State of California,
De fendants.
NOTICE OF APPEAL TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT.
_ Notice is hereby given that CHARLES PAUL.
pee STANLEY MOSK, det ‘ondants above-named,
hereby appeal to the United States Court of Ap-
peals for the Ninth Circuit from the final Order
re findings, entered March 27, 1961, and from the
final Order and Injunction entered inthis action
on April 18, 1961.
The Clerk will please prepare a transcript of the
complete record in this cause, including the docket,
for transmission to the Clerk of the Court of Ap-_
peals for the Ninth Cireuit pursuant to: Rule 10,
Rules of the Court of Appeals for. the Ninth
Cirenit: Dated: May 11, 1961»
"STANLEY Mesk, Attorney General .
fof the State of California
JOHN Fourr
Deputy Attorney Gend ‘al
/LAWRENCE E, Doxsee
Deputy Attorney General.
By s Foun Fourr
=f So . ;
{Title of Court Omitted] . Ba Say, teh
UNITED STATES OF AMERICA, 9/0 >,
€ . . Plaintiff,
‘ y VS, = Civil
C ‘ ARLES PAUL, Director of Agric abtibne: State of ~ _No.
California, and STANLEY MOSK, Attorney Gon 39073 ,
eral, State of California,
De fe ndants. °
NOTICE OF APPEAL TO THE UNITED STATES COURT —
OF APPEALS FOR THE. NINTH CIRCUIT | 3
I. Notice is hereby given that CHARLES PAUL
and STANLEY MOSK, defendants above-named
hereby appeal to the United Statés Court of Ap- >
peals for the Ninth Circuit from the final Order
re findings, entered March 27, 1961, and from ei
Order and ieaimaiiian entered on April 18, 1961, in
this action. ae.
II. The Clerk will please prepare a transeript of the
- complete record in this cause, including the docket
and the transcript. of record and docket entries in.
Action 39080 ii. the’ above-entitled Court, for
transmission té the Clerk of the Court of Appeals
for the Ninth Cirevit pursuant to Rule 10, Rules of
_ the Court of’Appeals for the: Ninth Cirenit. Dated :
~ May 11, 1961.
S$ STaNteY Mosk - = +
Attorney General of the
-* State of California
‘Joon EF. Fourr :
~ Deputy Attorney General
LAWRENCE E. Doxsrer
Deputy Attorney General
By s Jonn Fourr
Attorneys for, Defendants.
~ V. PERTINENT CONSTITUTIONAL AND FEDERAL
STATUTORY PROVISIONS.
A. Constitution of the United States, Article 1, Section 8, pro-
‘vides in part, as follows: .
*
he Congress shall have power ... :
‘To exercise exe lusive legislation in ail cases what-
soever, over such district (not exceeding ten miles
square) as may, by cession of particular States, and
the acceptance of Congress, ‘heeome the seat of the
government of the United States, and to exercise like
authority over all places purehased by the consent of.
‘the Législature of the State in which th® same shall
be, for the erection of forts, magazines, arsenals, dock-
yards, and other, needful buildings :””
B. Federal procuremert . statutes: The statutes governing
procurement by the federal defense agencies are found in 10
U.S.C. sections 2301-2314 which provide: +
2301. Dee laration of Policy.
It is the polie v of © ongress that a “fair proportion
of the purchases’and contracts made ilinder this chap-
ter be placed with small business “oneerns.”*
2302. Definitions.
Tn this chapter— , ‘ :
(1) ‘Head of an agency’ ‘means the Secretary,
the Under Secretary, or any Assistant Secretary
of the Army, Navy, or Air Force ; the Secretary
of the Treasury; or the Administrator of the Na-
tional Aeronauties and Space Administration,
(2) ** Negotiate” means make without formal:
advertising, |
~(3) ‘Formal adv ertising” nieans advertising as
* -preseribed by section 2305 of @his title.”
| eee °
|
.
a
.
eee
a a) —
“= 303. Applieability of cliapter.
(a) This chapter applies to the pure ‘hase, and con-
tract to purchase, by any of the following agene ies,
- for its use or otherwise, of all property manied in sub
section (b)./and all services, for which payment is
— tobe made from appropriated funds, o
(1) The Department of the Army.
(2) The Departinent of the Navy.
(3) The Department of the Air Foree.
(4) The Coast Guard. ae
(5) The ‘National Aeronaities and Space Ad
ministration, | :
(hb) This chapter aloes et cover Tana. It vovers all
other property, lhe luding—:
(1) public works ; . .
(2) buildings; . | - .
(3) facilities; . - ‘
(4) vessels; oo”. _ °
-(5) floating equipment; !
(6) aircraft;
(7) parts;
(8) aceessorless
(9) equipment ; and
(10) machine tools.
(¢) The provisions of this chapter that apply to
the procurement of property apply also to contraéts
for its dnstithition or alteration.’
“9304. Purchases and contrac ts: formal advertising: |
OXC ceptions. .
(a) Purchases of and contracts for property or
_ servie es, covered: | hy. this chapter shall be made by
~wite
_ ey) ou »
formal advertising. However, the head of an agency
may negotiate such a purchase or contrat if—
(1) it is determined that such action is necessary
in-the public interest during a national emergency
declared by Congress or the Pre: ident ;
(2) the publie exigeney will not permit ee
incident to advertising ; |
(3) the aggregate amount involved is not more
than $2,500; om : °
(+) ‘the purchase « ‘or contract is for personal or
professional services °
(5) the purchase ¢ or contract is for any service
by a university, college, or other educational insti-
tution;
(6) the purchase or contract is for property o or
services to be procured and used outside the U nited
“States and the Territories, Commonwealths, and
“possessions; ”
(7) the purchase or contract is for medicine or
~medical supplies;
(8) the purchase or. contract is for property “for
authorized resale ;
(9) the purchase or contract is s for perishable or
nonperishable subsistence supplies ; :
(10) the purchase or contract is for property or
services for which it is impracticable to obtain
competition ; :
(11) the purchase or contracts is for property or
-services that he determines to be for expérimental,
developmental, or research work, or for making or |
furnishing property for experiment, test, develop-
ment, or research ;
(12), the purchase or contract, is for property or —
services Whose procurement he determines should
.
Ka: & Ps
@ mies a Ie
not be publicly disclosed becausejof their character,
ingredients, or components ; \
(13) the purchase or contract) is for equipment -
that he determines to be technical equipment whose
_ standardization and the interchangeabilityof whose
parts are necessary in the public interest and
Whose procurement by negotiation, is necessary. te
assure that standardization and intérchangeability ;
(14) the purchase or contrac’ is for techni@al or
special preperty that, he determines to require, a
substantial initial investment or an extended period
of preparation for mrinufaeture, and for which he,
determines that formal advertising and competitive
bidding might require duplication of investment or
‘spreparation already. made or would unduly delay
thexprocurement of that property ; or.
(15) the purchase or contract is ‘for property or
services for which he determines that the bid prices:
received after. formal advertising are unreasonable
_as to all or part.of the requirements, er were not
‘independently reached in open competition, and for _
* which (A) he has notified ‘each responsible bidder
of intention to-negotiate and given him reasonable
opportunity te negotiate > (B) ine negotiated price
is lower than the lowest rejected bid of any respon-
- sible. bidder, ag determined by the head of the .
agency; and (C) the negotiated price is the lowest
negotiated price offered by .any responsible sup-
plier;) - | ,
(16) he. détermines that ( A) it is in the interest
of national defense to have a plant, mine, or other.
facility, or a ‘producer, manufacturer, or .other -
supplier, available for furnishing property. or serv-
ices in case of a nationad emergency ;-or (B) the
e
; <i Fs
interest of distrial shobilization in case of such
‘an emergency, or the interest of. national defense °
in maintaining active engineering, research, and
development, would otherwise be subserved; or /
(17) negotiation of the purchase or tontra¢t is
otherwise authorized by law. >
(b) The data respecting the ers of each
i &
‘purchase or contract ‘under clauses. (1)..and (7)—.
(17) of subsection (a) shall be kept hy the contracting
agency or six years after the date of final pay ment
- onthe contract.
. (e) ‘This section does not auliotee—
ed) ‘the negotiation of a contract to construct
or repair any building, road, oe? sew er main,
or similar item, unless—
(A) it is made under ¢l clauses (1)—(3). (10)
—(120r *(15) of subsection (a); or \.
(B). it is to be performed outside, the United :
-States;or:.. , %
(2) the erection, repair, or Peden of any
_ public building ‘or public improvement. 7 |
(d) Whehever:the head of the. agency determines it
to be practica@igs euch advance publicity as he con-
siders suitable. 1 regard to the property. involved
and other relevant considerations shall be given for
‘a period of at least 15 days before making a purchase
of or contract for property,’or a service, under clause.
(7) or (8), of subsection (a) involving more than:
. $10,000.
(e) A report shall be made to C ongress on May 19
and November 19. of ‘each year, of the Surchases and
contracts made under clauses (11) and (16) of sub-
oe
Se
wf
.
t
t
at: pak
section (a) during the period since: the date’ of the
_last report. The report shall— |
*'}-
(1) name each contractor ;
(2) state the amount of each contrac t; and’
(3). describe, with consideration of the national
security, the property — services cov ered by each
‘contract. ne
-(f) For the. purposes of the following laws; pur-
chases or contracts negotiated under this section shall
be treated as if they were made with formal adver-
tising :
oer f Sections 3! I—t5 of title 41.
{2) Sections 276a—276ay 5, of title 40.
(3) Sections 324 and 325a “of title 40.””
| +2305. Fornial advertisements for bids; time ; eeihoae
ing ;. award ; rejection.
“(a) Whenever formal advertising is requir ed, under
‘section 2304 of this ,title, the advertisement shall be
made a sufficient time before the purchase or contract.
The specifications and invitations for. bids shall permit
such free and full ,competition-as is consistent with
the procurement of the. property and § services needed
_ by the agency concerned. |
(b) The sfiecification in invitations for bids. must
contain the necessary language and: attachments, and
“must. be sufficiently descriptive in language and at-
tachments, to permit full and free competition. . If
- the specifications in an invitation for bids do not
_earry the necessary descriptive language and attach-
ments, or if those attachments are not accessible to
all cqnpetent and reliable bidders, the invitation Ix
invalid and no award | may be made. |
ee
« f ‘ 3 ‘
w i
) er - | ;
Seer s
/
(e) Bids shall be opened publicly at’ the time and
‘plece stated in. the advertisement. Awards shall lx
tiade with reasonable promptness by giving written
. notice to the responsible bidder whose: bid conforms te
the invitation and will be the most adyantageous to
‘the United States, price and-ether factors’ conside red.-
However, all bids may. be. rejected Gf the-head of the
ageney determines that rejection -is. in’ the publi
_-interest. | ae 3 Cee
(d) If the head of the ageney siamibiboiee that any
. \bid received aftér formal ndvevtising evidences av ia-
lation of the antitrust laws, he shall refer the hid to
the Attorney Gener ‘al for appropiate action.’
'C. The (cinham Act, 54 Stat. 1125, authorizing the peels
and improvement of land fox civilian defense ‘housing provides:
Section 1. In order to provide housing for per-
“sons engaged in national- defense activities, and, their
families, -in those areas. or: localities in which’ tlie
President shall find that ani acute shortage of housing
exists: or impends whieh wotld impede national-
‘defense activities and that such housingéwotld not he
provided by private capital when needed, the Federal -
Works Administrator (hereinafter referred to as the
‘Administrator’) is authorized: aie
(a) To aequire- prior to the approval of title by
-the Attorney General (without regard to sections 1136, .
‘as amended, and 3709 of ‘the Retised © ‘Statutes) im-
proved or unimproved lands or interests in Jands by
purchase, donation’ exchange; lease (without tegard
to section 322 of the Act of: June. 30, 1932 (47 Stat:
412), as amended, the Act of March 3, 1877 (19 Stat.
370). or any time limit on the availability of fyinds for
the payment of. rent), or condemnation (including
.
. -
. . 2 ° =
° : . 7 = ss é -
7 P :
‘ : Pa - 5 * .
° . .
“ .
a . . :
bpp *
ww
Eee oe <—— §1-- <i a
; proceedings, under the Acts: of August 1, 1888: (25
Stat. 357), Mareh 1, 1929 (45. Stat. 1415), and Febru-
ary 26, 1931 (46 Stat. 1421)). -
“(b) By contract or otherwise (without ieoned to
sections 1136, as amet nded, and43709 ‘of the Revised.
Statutes, section 322 of the Act of June 30). 1932. (47°
Stat. 412).‘or any Federal, State, or®municipal laws,
ordinane OS, rules, or regulations re lating to plans and
specifications or forms of ‘contract, the approval.
thereof_or the submission of. estimates there for)’ prior
to the approval of title by the Attorney General. to,
make surveys and investigations, | plan, design, .con-
struct, remodel, extend, repair, or demolish structures,
buildings, improveme nts, and community facilities, on
‘lands or interests in lands acquired under, the provi- |
‘sions of subsection (a) hereof: or on other lands of
. the United States whiclr) nuty be available (transfers
of which for'this purpose by the Federal agency hav-
ing jurisdiction thereef are hereby authorized not-
withstanding any other provisions of law), provide
proper approaches ‘thereto,- utilities, and transporta-
_ tion. facilities, and procure necessary ‘materials, sup-
plies, articles, equipment, mac thinery, and do all thingss
necessary in connection therewith ,to carry out the
purposes of this Act: Provided, That the cost-plus-a-
~. percentage-of-cost: system of cohtracting shall not be
used, but this: proviso shall not be construed to pre-
vent the use of ‘the cost-plus-a-fixed-fee form of edn-
tract: Provided, That the cost per family dwelling.
unit shall not. exceed an average of $3,000 for those ,
units located within fhe continental U nifed States nor
“an average of -$4,000° for those. located elsewhe re, and
the cost of no family dwelling unit shall-exceed $8, 950
within the continental United States or $4,750; else-
ES
. >
-
where; exe elusive of expenses | a administration; land. .
acquisition, public utilities, and edmmunity facilities,
and the aggregate cost of community facilities shall.
not exceed-3 per eentim of ‘the total cost of all’ proj-
ects.
— engi iged in national-defense activities’ shiall include
C1} -enlisted -meti in the iave al or anilitary services pf
the United States; (2) employees of: the United States
‘in the Navy and War Departments assigned to duty
at+enaval or -military’ reserve tions, posts, or bases;
(3) -workers engaged or to be engaged in industries
connected with-.and essential to the national defense ;-
_(b) the term ‘Federal agency’ means any executive
department or office (including the President), ‘inde- _
pendent establishment, commission, .board, bureau,
“Ske. 2. As used in this Act (a) the iiakc“iteicaiie
division, or office in ‘thes executive branch of the:
United States Government, or, other _agency of the
United States, includime « Corpor itions in Which the
United States owt all or-a majority of the stock,
directly or indirectly. * 7 [foes
* , % 4 r % . e
Src. 4.0 When the President shall have dette’
that the emergency declared by him on September 8
1939, to exist, has-eéased to, exist (a) the authority
contained in section 1 hereof shall terminate, except
with respect: to contracts on projects previously en-
tered into or. undertaken and court proceedings then--
pending, and (b) property’ acquired or déonstructed
~under this Act shall be disposed of as promptly as
may be adv antageous under the circumstances and -in
the public, interest. :
* ; -* * eas *
B . ee . ,
= 3 — f ' ° t
***Sec: 7, Notwithst, ing any other previsions of |
‘law, whether relating f ¥ the acquisition, handling, or
disposal of real or other property by the United States
or to other matters, the Administrator, with respect’ to
any property acquired or construc ted under the previ-
sions of this Act, is authorized by: Aneans of ‘Govern-
ment personnel, selected. qualified: private agencies, or
publie: ; agencies: (a) to deal with/ maintain, operate,
administer, and insure; (b) to pursue to final. collee-
tion ‘by way of compromise or otherwise; all. claims -
arising ‘there from; (¢) to rent, lease, 9 hange, sel] for
‘ash°or credit, and- convey the whole or’ atiy part of
such property and to convey wiflfout’ cost portions . «
thereof tq local niunicipalities for street or other pub-
‘lie use: hes ided,. That any such. transaction shall be’
upon. sacl terms, ine luding the. period of any lease, as
_may be déemed, by the Administrator to be in the. pub-
he interfét : Provided further, That the Administrator
shall fix fair rentals, on projects developed pursuant —
‘to this ¢t, which shall be within the financial reach of ~
‘persons engaged in national de ‘fense:—Pravided. fur. -
ther, That anv lease authorized hereunder shall not be
subject) to the rovisions of section 321.0f the Act of
June 30), | 1932 (47, Stat. 412). :, te ae
“Seq. 8. In ciyahi ing out the provisions of this hee
the Administrator is authorize ed to utilize and act
through the Feder ‘al Works Agene y‘and other Federal
agene ies and any loeal publie ageney, with the consent |
of this A agency, and any funds appropriated pursuant
to this) Act:shall he available for transfer to any. such. o
agency in reimbursement therefor. Nothing in this Act
shall he construed to prevent the Administrator from +
employing or utilizing.the professional services of pk i--
vate persons, firms, or corporations.
\
“a _ , ee? ee is ° “
“Sec. 9. The Administrator may enter into: any
agreements to pay annual sums im lieu of taxes to any
State or political subdivision thereof, with respect ‘to
any real property acquired and held by him under this
Act, including improvements thereon. The amoung’ so
paid for any year upon atiy such property shall not |:
exceed the taxes that would be paid to the State or,sub- -s.-
division, as the ease may be, upon such property if it
WwW ere not exempt from taxation. ©. . 1°
Src. 10. Notwithstanding any other’ provision of .
law, the aeqitisition by the Administrator of: any rez il
property pursuant to this ‘Act shall. not deprive any
State or political subdivision thereof of ‘its civil and
criminal jurisdiction in and over such property, or’
impair the civil rights under the State or local law of
the inhabitants on such property. ;
“Sec. 11. ‘The Administrator is authorized to make
such rules and régulations as may be necessary to
é¢arry out the. provisions of this Act, and shall estab-
——Hish- reasonable standards of Safety, convenience, and ~~
‘health.
ee
7: 7... eS m2 s.
: D. The Joint Rasslotion of sate of September 1 11, 1841,,
5 Stat. 468, provided:
“Resolved by the Senate and House of Re prese nta-°
tives of the United States of America in Congress
assembled, That it shall be the duty.of the Attorney eae.
General of the United States to-examine. into the titles
of all the lands or sites which have been purchased by —°
‘the United States, for the purpose of erect* ig the wy
-atrmories, arsenals, forts, fortifications, navy yvayls
custom-houses, light- houses, ‘or other public: buildings |
of any kind, whatever, aud report his opinion as to the
validity of the title in each case, to the President of
the United States. i F
2 a a
oe |
ier Re: solved, Thatat shall Lie the eres of all the of- )
ticers of the United “States having any of the title -
_ papers to the prope rty aforesaid in their possession, to.
furnish them forthwith to the Attorney Gene ral, to uid
him in the investigation aforesaid.
3. Be solved, ‘That ne public moneys shall he €X-
pehded upon any.site or land hereafter to-be puréhased
@ by the United States for the purposes aforesaid, until
the written opinion of the Attorney: Cigneral shall he
had in favor of the validity of the title. and alsosthe
cousent of the Le wisliture of the ‘State in which the
land or site may be shall be given fo said purchaser: © -
“4. Resolved, T hat it shall he the duty of the Dis-
_ trict Attorneys.of the © trited States, upon the apyliea-
tion of the Attorney General, té furnish any: assistance
or information in their power in relation to the titles —
of the public property, atoreeate, ving within their re-
———
spec ‘tive distriets.—- ‘eiilhen tecepeansctnenO Sent
*
la . Resolved, That it shall be the duty of the Seere-
tk of the Executive Departinents, upon the apy plica-
tion of the Attorney General, to procure any additional
evidene oof tithe whigh he may deem Necessary, snl
whieh may not be in the possession of the officers: of
‘ ‘Governmelt- the exp@nse of preenring Which to be -
paid out of the ap appropriations | rohit aeniahane saree
* efe of the Departing Mts respe: tively. —
. Resolved: Phat ityshn Ih be the duit’ of tive. Scere:
taries of the. Executive Departments, respectively,
under ‘wilioge direetion iy Taenids for the. sarart watts
aforesaid may have been purchased, and over whieh
the United States do vet possess jurisdiction. to apply,
to the Legislatures of the States in whieh the lanes are
aithated, pe i eessiok af Juriadietion, anid in ease of
9
°
— .b6 -—
refusal, to report the’ same to Congress at the com-
mencement of the ne xT session thereafter.”
Revised Statutes, Section 355, as enacted. 187 5: .
“No public money shall be expe nded upon any site
or land purchased by the U nited States for the pur- °
‘poses of erecting thereon any armory, arsenal, fort.
fortification, navy-vard, custom-house, light-house, er”
‘other publie building, of. any .kind whatever), until
the written opiiion of the Attorney General shall be >
had in faver of the validity of the title, jer until
* the consent of tte legislature of the State in which
the land-or. site may be, to such purchase, has beep.
given.. The district attorneys of the United States,
upon. the application of ‘the. Attornéy-General, shall
furnish any. assistance or}information in their power.
vif relation “% the titles ef the publie preperty lving
within their respective districts: And the Secretaries
of the Departments, upon the application of the At- -
" torney-General, shall procure any additional év idence .
of title-whieh he’ may deem necesary, and which may. _
-- hot be in the possession of. the officers of the _G: Govern=
ment, and the expense of procuring it shall be paid
out of the appropriations made for the: contingenei ies
..of the De ‘partments: respectively.” S
Revised Statutes, Section 355, as amended: by the Act of Octo- ;
ber 9, 1940, 54 Stat. 1083, provides: Mey
“See, 355. No. public money .shall be sail
upon any site or land purchased by the United ‘States —
for the purposes of ereectnig thereon any armory,
arsenal, fort, fortific ation, navy yard,. custom-house,
lighthouse goy other public, building of any kind what-
ever, aatil fhe written opinion of the Attorney General
shall be had in- favor of the \ valfllity af the title.
a?
«
e.
_ provements) on any site, tract, or parcel of land the
sideration paid or to he;
a* — eam
* Notwithstanding” the provisions of this or any
other law, whenever the average value of any lands or
“interests in land to @e acquired by. or on behalf of ‘the
United Statesamder a single option or contract of sitle
does not exceed S19 er acre’ (heremafter referred ‘to
as.**low- -value lands’’), the title may be accepted sub-
ject to sue ‘h infirmities as, in the opinion of the Attor-
ney Genet ral, may, without jeopardizing: the Inferests*.
of the United States, be left for removal hy_condem-
nation or other appropriate proceedings, if and when.
“NeECeSSALY | Pr gvided,That the total value of any 1 lands ~ ’
or-interésts to> be acquired inder a single option or
contract of sale Subject to an infirmity doés not exceed
- £3,500. No publie*money shall hereafter be expended
for the acquisition of such low-ve ulue lands or interests /
in land_-by or on behalf of the U nited States for an)
purpose until. the\writteu opinion of the’ Attorney’ .
“General has been had approving the title subject, -if
expedient, to infirmities ‘as. herein provided. Hlowevery
no money in excess of £2,500 shall be expended for the)
construction of buildings) works, ér othér improve-
ments” (except. roads, trails and ..fire- protection | -Im-
title to whieh.is subject to’ infirmities? until the w ritte ni
opinion of the Attorney General in favor of the valid-_
ityof the title has: been had. ax-in the case of-other
Jands. ‘For the purpose of this Act, values ‘of. lands
and interests in land shall Ae dete rmined by the con-
paid. .
“<The Attorney General is hereby sigh to
approve: the title to Gasements or, rights-of-way to ‘be
acquired by or on behalf of:the United States, subject
to such infirmities as, in his opinicn, Will not jeopat-
dize. the interests - cof the Wnited States,-’
o
ye
=
_
68 rare
‘** Nothing in this-Net. shall he ocmutiesd to limit
the. authority-tiow or héreafter delegated. to any officer
_ in exercising the power of. eminent. domain for or on
“hehalf of the United States, to take title“ to er posses-
sion of br to expend money for er upon ‘any land or
interest in land, or to.expend money, as seeurity for
ain ultimate award in advance of final judgment in
ay proce eedings to. determine just compensation ; nor
shall this. Act be construed to preclude any acquiring
_ ageney from expending money for the erection of any
preliminary and temporary structure.upon any. land.
“4*The head or other authorized officer of any de-
partment, independent: establishment, or agency, shall
procure any , evidence of title which the Attorney
General -may ee ih necessary,- and the expenses -of—
_ procurement, extept where otherwise, authorized by
law or provided by contract, may be paid out of the
appropriations for the acquisition. of land or out of
‘the appropriations made for-the contingencies of the
‘acquiring: department, indepenment. eb rkoneinr oor
agency. : : :
. ** Phe Attorney General may, in his pret
base. any opinion as to title required either by this
Act or any other law. upon either or both of the
“following: Certificates, of title ‘of title companies or
such evidence of title as. he may’ déem: satisfactory.
“~The foregoing provisions of this section shall rot.
be construed to affeet in any manner any existing pro-
Visions of law which are applicable to the aequisition
of lands or interests in land by the Tennessee Valley
Authority; and nothing in. this. section shall be eon-
strued to affect in any manner any ‘authority which the
Secretary of War, the Chief of Engineers, or the See-
retary of the Interior have under the provisions of law
in force on the date this section as amended takes ef- -
oe 6
— 69. —
feet with respect: to the approval by them .of title, to.
Jand or‘interests in-land acquired by the War Depart-
- ment or the Department of the Interior, a as ‘the case
‘may be. Nor shall the foregoing provisions of this see-
tion, or the provisions of any other law, be construed. _
to require*any: opinipn of the . Attorney General’ in’
~
connection with: the acquisition or improvement of «
easements and rights-of-way. for-military or naval pure
. poses ; or for the acquisition or improvement of ease-
ments and rights- of-way by the Department of Agri-
eulture for. forest and other conservation purposes
where the cost of any such easement of right-of- -way
acquired under.a single instrument of eonvevance ‘amd
the cost of any improvement thereon doés not exceed |
$2,500; and the: Attorney General may, in his :-discre-
-tion, waive the requirement for his opinion in connec-
tion with the acquisition or improvement of easements
and rights-of-way for other purposes when, in his
‘opinion, such waiv er will not jooparcline. the Heong
of the United States. |
ee ‘Notwithstanding any ether provision of law, the
obtaining of exclusivecfurisdic tion in the United States
over lands. or interests therein which have been or.shall
hereafter be aequired by it shall not be required ; but
the head oreother authorized officer of any deprrtment.
or-independent ‘establishment or agency: of the Govern-
ment may, in such cases and at-such times as le may -
deem desirable,accept or seciire front the State in. *
which any lands or interests therein under his immesi-
ate jurisdict ion, custody, or control are situated, eon-'
sent to‘or cession of such jurisdiction, exélusive or
partial, not theretofore obtained, over any such lands
or interests as he may deem desirable and ‘indicate -
acéeptance of such jurisdiction on behalf of the United.
States by filing a, notice. of such acceptance with the _
ie ee ee | nae >
‘ = . ~ : ° ‘ f.
Governor: of sue ch State of in sue h other manner as
may be prescribed by:the Jaws of the State where suth:
lands are situated. Unless and until thé United States
“has accepted , jurisdiction’ over lands hereafter to be.
acquired as aforesaid, it shall “be conclusively pre-
sumed that no such jurisdiction has been-accepted.’ ’
VI. PERTINENT CALIFORNIA STATUTORY PROVISIONS.’
A. The California milk stabilization act derived from Cali- .
fornia Statutes of 1935, Chapter 2411, page 922, as amended,
is ‘now, set forth -in California Agricultural Code, Division. 6,
Chapter 17. Relevant provisions state:
“4900, The ‘production: and distribution of fluidly
“| milk. and of fluid ereani.and the ilissemination of ae-
curate, seientific information as to the importance e of
milk and other daity products inthe mainte maneet of
a high level of public. health, is hereby declared to be
a ‘business affected with a publie interest. “The provi-
‘sions of this chapter are enacted in the exercise of
police powers of this State for the purpose of pro- ~~
tecting. the. health and welfare of, the people of this
State. ‘s
4201. It is hereby declared that fluid milk and fhuid
cream are necessary articles of food for human con- —
sumption; that the production and- maintenance of an
adequate supply of healthful milk of proper chemical .
and physical content, free. from contamination, is vital
to tke-publie health and welfare, and that the produe-
tion, transportation, processing, storage, distribution
or sale of fluid milk-and fluid cream in. the State of
California is an industry affecting the publie health:
‘and welfare: that. unfair, unjust, destructive and ile-
moralizing trade practices have been’ camied on and
are Now berng | carried on in the production, marketing,
Cand . |
es . ; . . : ¥ \ )
w
” s
»
sale, processing or distribution of fluid) milk and
fluid Cres am, whic h constitute a Cgnstant menace to the
health and welfare of the inhabitants of this State and —
tend to undermine sanitary: regulations and standards
of conteht, and purity, howpver effectiially: such sani
> atary regulations may be enforcid; that health, regula-
tios alone’: are insufficient to pre vent disturbance ‘eS Tn.
the milk industry: which threaten to) idestroy and.seri- |
% » ously. impair ‘the future supply of fthuid: railk ; nd to
, safeguard the: consuming public from. future inade-
quacy vy ofa supply’ of this necessary commodity ; that at
isthe poliey of this State to promote, foster and en-
courage the intelligent production and orderly. market-
ing of Commodities n cessary to its citizens, including. .
milk, and-to eliminate spec uation, waste, improper
marketing, unfair’and destructive trade prac tices, and’
improper: accounting for milk. purchased | from: prsi-
ducets. ' :
4202. -It-is recognized by “the Legislature that eon-
ditions within ‘the milk industry of, this’ State are.
such that it is necessary to establish marketing areas
wherein different prices and regulations are tiecessary,
and for that purpose the Director of Agric ‘ulture of
- this State.shall have the adiministr ative authority, with
-such additional duties as are herein prescribed, after
~ Investigation and public, hearing, to preseribe sach
marketing, areas and modify the sme when advisable
or necessary. ss ‘ :
4203. The foregoing staiteme nts. im this -article of
facts, policy and applic ition of this chapter are hereby
~ declared’a matter of legislative dete rmination,
4204. The purposes of this chapter are:
®-° x » a o%
>.)
a
. (b). To autharize and enable the dire etor to pre-
—se¢ribe marketing areas: sand to. determine prices to pre:
y s* ~ ¥'* < as . “a r R ‘
76)
a
ducers for fluid milk or thaid cream, or both, which are
necessary’ due ‘to varying factors of costs of produe-
tion, health regulations, transportation and: other fac-.
tors in’ said marketing areas of this State; provided,
that the eost to distributors within any. marketing
area, for fluid milk or fluid: eream shall be uniforin
with all other distributors purchasing fluid milk and
- fluid eream of. similar _— or, quality under like
“terms and conditions, ve
‘e.-e ee eee x > a
(d) Toe nable the dair v" indust fy: with the aid-of the’
State to corre ect existing evils, develop and ‘maintain |
satisfactory marketing conditions, and bring about
and mainfain a reasonable amount of. stability and
prosperity. in the production and marketing of fluid
-milk and tinid cream and provide means for searrying
“Lon essential educational activities.
“4205. It is che intent of the Legisjature that the
powe rs conferred inthis chapter shall he libe ‘rally con-
strncd, Nothing. in this chapter shall be construed as
pe rmitting or antherizing the develoyment | of eondiz
tions of monopoly in the production or distribution a
flaidainilk or fluid eream. In-the est: tblishment of the.
terms and conditious under which fluid milk and fluid
“eream shall be purchased from producers, and under
whic h distrifmitors and retail stores ‘shall sell an® dis-
tribute the same, such terms. and conditions shall he
those which will, in the sev ‘eral localities and markets
‘of the State and under the varying conditions of proe-
duction and distribution insure an adequate and con-
. tinnous supply of pure fresh wholesome fluid milk and
“fluid cream to consumer rs thereet at fair and ‘reason-
en able pric eS,
Article 2. | Definitions
4210. : Unless the context otherwise requires, the:
' definitions in this article’ govern, the coustruction of
~— chapte r.
*, * _ ae 7 * : ee
” A272. “Fluid milk™ means any and “all whole’ or
concentrated milk that is produced in conkoriiity with
applic ‘able health regulations for market milk of ‘the
«place where such milk is consumed,
$273, -°¢ Fluid cream?” means cream ais defined 2
this aka and any combination of cream and milk, on
any fluid product ef milk or cream sold under any
trade name whatsoever, whic i is not packaged in her-
metically. sealed containers and which contains more
thin 11.6 pere © milk. fat and conforms to the she ve
and sanitary regulations of the place where sold «
disposed of for human consumption. a ee 7
4214. ' Dairy products’ ineludes any - product
qanutac dure from milk er any der ivative: or product
of ‘milk. ere .,
4205, *t Producer”? means any person who prodnec es
fuid milk from five or more cows of goat ein conform:
ity with the applicablehealth’ regulations of the place ,
in Which it is sold, andgyhosé thiid milk or fluid cream
is received or handled Dy any distributor. Producer’
inclides any assoviation of producers.
4216. ‘Distributor’? means any persoth, whether or
not-such person is a producer or an assoc iation of pro-
ducers, who purchases or ‘handles fluid milk, or fluid
_. eream for sale, including brokers, agents, copartner- |
ships, cooperative corporations and ineorporated and
unineorporated associations. The definition of ‘dis-
tributor’’ shall not inélude any of the following: (1) a
Any retail store that is actively and directly not en-
©
«ae Pu
+ 14
gaged i in processing and. ae iging fluid milk. or fluid
cream, (2) any establishment where fluid milk or fluid
eream is sold only for constmption on the. premises,
_that is not actively andlirectly engaged in processing
‘and packaging fluid milk or fluid cream, (3) any per-——— .
‘son owned or controlled by one or more retail stores,
or owned or controlled by. ‘one or more establishments.
where fluid milk or fluid cream.is sold’ for consump-
- tion on the premises which person is not actively and
directly engaged in the processing and packaging of
fluid milk or fluid eréam, (4) any producer who de-
livers fluid milk or fluid cream only to va distributor,
(5) any person as to any transaction where such per--
son purchases processed and ‘packaged fluid milk or
fluid cream, but does: not thereafter phvsically handle.
such fluid milk or fluid cream for’ sale.. The. term
“physically handle’? as used in this subdivision shall
‘mean: (a). to refrigerate or.store or assemble indi-
vidual order allotments at a fixed, established business
location prior to transportation on regularly operated.
routes for sales of fluid milk or fluid éream on suelr
‘routes to wholesale customers or directly to consumers
at their honies 6¥ places of work; or (b) to-transport
in a mobile vehicle or unit regularly operated on routes’
predominately for sales of fluid milk or fluid cre un on:
such routes to wholesale customers or, direc tly to cou-* |
sumers at their homes or places of w ork. |
4218. ** Retail store’? ‘means any person or persons
owning or operating a retail grocery store, restaurant,
confectionery, or other similar busin« ss, where fluid
mitk-or fluid cream is sold to the — al public for
consumption off the penenet.
4219. ‘‘Marketing area’’-is any area: within this
State declared to be such in-the manner, prescribed in
this chapter. -* ny whe eae
G
oem SH
a
4220. ‘Stabilization’ and marketing plan’? means
any plan Sreamrpst and made effective by the direc-
tor within ,the legislative standards provided. by this
chapter and shal include, among other things, | the
-estab\ghing of prices to be-paid by distributors for
any or Ih of the various classes of fluid milk or Huid
= ream.
4221, “siaStsassingte micans any person Who pur-
chases fluid milk, fluid cream or. dairy products for
consumption, : em
4222. * Person”? ni¢ans aay individual, firm, Corpo:
ration, assoc lation or any other business unit.
$223. - ** Fluid: skim milk’ means, skim: milk as det
fined in this code ‘that is *dertved. from market milk
and cenforms to the health and sanitary regulations
‘of the place where sold or disposed of for human con-
sumption.
4225. Fluid ails may he classified for the purposes
of this’ chapter as- provided in this article.
4226, Class 1 comprises ‘any fluid milk, flujd skim
milk, or fluid cream that is supplied to consumers «
market milk, market skim milk, or market cream oF
concentrated milk or any combination ef market nulk,
market: ‘skim milk, and market cream, or any market
milk Which is not sterilized and packaged in hermeti-
eally \s sealed containers, or any other dairy product in
which the use of market milk or any’ components or
der ‘ivatives of market milk4s required by or pursuant
to the provisions of this code, or any fluid milk, fluid
skim milk, fluid cream, milk-fat? or milk solids not
fat: used in the standardizing or fortifying of market
milk or any dairy product defined ‘herein as Class. 1.
42927 Class 2 comprises any fluid mitk, fluid skim
milk or fluid eream which is used in the manufacture
of any pr oduet for white ‘h a definition and sti and: wd is)
-_ > aie :
preseribed in Division 4 of this code,.except any such ~ |
product which is included in Classes 1 and 3.
4228. CYass 3 comprises’ all fluid) milk, fluid skim
"milk, or fluid cream, which is used in the manufacture |
of butter, cheese other than cottage cheese, dried milk. 7
dried skim milk, nofifat dry milk solids, defatted milk
solids, dried buttermilk, or any product for which no
‘detimition and standards are -preseribed. in Division 4
of t s code; ... "err
4230. In. designating and prescribing or prov iding
methods for designating and préscribing Minimum
prices. to be paid by distributors to producers for
Classes 2 or 3 fluid milk, fluid skim milk or tui ereain,
the. director may take into consideration Aa, rel evant
economic factors, including but not limited to.the rela-
tive market values of the various products involved.
and the market price of other milk which may be used’
for the same purposes set forth in such respective
classes. In no event shall any distributor pay producers
or any-association of producers less than the applicable
price established for the usage to which the fluid milk,
fluid skim milk or fluid cream purchased from them is
, applied: and no payment shall be made by distributors
to. producers or any associ ation of producers of prices
lower than those*established in the applicable stabi-
lization.and marketing plan for Class 3 usage. ' ;
Articles 4. General Powets. of the Director
4240, The director shall enforce the provisiofis *s
this ‘chapter and any stabilization and marketing plan
initiated pursuant to the provisions of this chapter. -
The director-is- authorized and directed to adopt and
promulgate rules and regulations for the proper
- administration and enfor eement of the provisions of
to geg o : :
this chapter. Any such rules or regulations or ameni-
ment thereof shall be adopted and ‘promulgated hy
the director. in conformity with. the provisions of
Chapter 4, (commencing with Section 11370) of Part
T of Division 3 of ‘Title 2 of the Government Code.
4242.0 The dircetor is hereby declared te’ be the
_jastrumentality 0! this State for the purpose of
administering and cuforeing the provisions. of this’
. chapter and to execute the legislative intent ‘herein -
expressed, and°is hereby ‘vested with the administre i
tive authority described in this chapter.
* ‘ * ° * 4 -* ‘ *
$244. The digector may issué licenses to distribir
tors and require the registration of producers
4245... The director may formulate any st: hilizsition
and marketing plan as preseribed-in. this chapter and
declare the same effective after public he aring aan
reasonable notice by mail or otherwisetoall producers
and distrilutors of record with the director, affected
by such plan. . ee
4246. The director may prescribe minimum prices
to be paid by distributors in accordance with-a stabili-
zation and marketing plan for fluid milk and Classify
said milk according to usage by distributors, pursuant
to. the -provisions of this, chapter. as
4247. In the everit that -the director . cetablishes
under this chapter a stabilization and marketing plan
for fluid nfilk, the diréctor shall pr escribe minimum —
prices to be paid by distributors for fluid creain, fluid —
skim milk, or milkofat, or fluid skim milk components:
of sue ‘h flitid milk, under suchga ‘stabilization and
marketing plan, -pursuant to the provisions of this
- chapter.
x ‘ "* > ~ ° * . =
°
\/ o 28 een
| 4254, A full and ace stnhe amend of Diniuane or
acts performed or of testimony taken by the director.
in pursuance of the provisions of this chapter shall
he kept ahd placed on file in the office. of the director. —
4255. Any order of the direetor hereunder substan-
tially affecting the rights of any interested party may
be réviewed by -any—court of. competent jurigdiction.
_ Any such action must be commenced: within ‘30 days
after the effective Hate of the.order complained of or
- within 30 days after the injurious effect complained
of becomes reasonably apparént:
4256. The director may. bring an action to enjoin
the violation or the threatened violation of: any pro- |
vision of this. chapter or of any order made pursuant
to this chapter in the ‘superior eourt in. the county
_in_whieh-such violation occurs or is about ‘to oceur.
There may be enjoined in one proceeding any number
- of defendants alleged to be violating the same provi-
sions or orders, although their properties, interests,
residence, or place of business, may be in several
counties and the violations separate and distinct. Any
proceeding brought hereunder shall be governed’ in’
-all other respects by. the provisions, of Chapter 3 of -
Title 7 of Part 2 of the Code of. Civil Procedure.
4257. The director may confer, enter into agree-
ments, or otherwise arrange with the constituted au- -
thorities of this State, other states, or agencies of the
. United States with respect to plans relating to the
. + Stabilization and distribution of fluid milk and fluid —
cream within this State or as between this State and
_ other states or the United States, and may. exercise —
his powers hereunder to effectuate and enforce such
plans.
a Tree * a ae * ma
ne es
- . Artiele 5, - Formation and Adoption of Stabilization
|
and Marketing Plans
4270. The director shall designat> marketing-areas
_ Which he deems necessary ‘or advisable to effectuate
the purposes of this chapter, and wherein he finds
the conditions affecting the production, distribution
and sale of fluid milk, fluid cream and fluid skim milk *
are reasonably uniform. The director shall mee the
power to establish-additional areas<or to modify areas
theretofore established when he. deems\ the establish. *
ment or modification Of such areas negessary or ad-
visable to* effectuate the purposes of this chapter.
When the: director finds, after a ‘public liearing- im: . ,
and for each particular marketirig area under con-
sideration for censolidation, that conditions of pro-_-
duction and -<distribution are pci uniform in
two Gr more, such marketing areas wherein stabiliza-
tion and marketing plans and minimum wholesale
and minimum retail -prices are in effeet, he may con-
sélidate the areas; provided, that at- said hearings
more than thirty-five (35) percent of the prodiucers—
present who supply the areas proposed te be consoli-
‘dated do not object to such consolidation. 2
— 4271. The director shall, prior to the formulation of
a stabilization and marketing plan for fluid miik for
any marketing area, conduct'a public hearing in said
area for the purpose of determining whethe® or ‘not
producers whose major interest in the fluid-milk busi-
hess is iir the production of fluid milk for the market-
ing area and who represent not less fhian 65 ‘percent
‘of the total number of producers Whose major inter-.
‘est in the fluid milk business is in the production of
Huid milk for the marketing area, and who produce — , -
not less than 65 percent of the total volume of the
“
-
a Rb: _
Hid, mill produced for said on area - by all
she h producers, desire that a: stabilization and) mar-
keting plan for -fluid: milk Ie. formulated for said
area; but if a-petition is prese ated to the direetar, by
=the producers Whose major interest: in the thd milk
business is im the production of ‘fluid gmilk for. the
marketing area, and who-represent not less than 65:
percent of-the total member of producers whose major |
interest in the fluid milk business is in the produe-.
‘tion of tuid milk for ‘the marketing area, and whe
produc e hot less. than 65 pe rent ote total ‘vokmme °
of the thud milk produced for said marketing area
he all sueh .rodadeers, it shall not. be HECESSATK: that °
sue ‘h he aring, he held,
“Aitiode 6. .Mandatory Provisions
4280). : Hach stabilization and marketing ptane shall
contain provisions for prohibiting distributors and re-
tail stores from engaging in the ee | practices here-
_jnafter set forth:
fa) The payment, rallawaneaar aece anew ots So
rebates, Seeret refunds, or udéarned discounts. by any
per Son, whether in the form of: money or otherwise, _
. (b) The giving of; any milk, cream, dairy: products, |
services or.articles of any kind, except to bona fide
charities, for the purpose of sécuring or retaining the
fluid milk or fluid cream or fluid skim’ milk: business
of any customer.
(vc) The extension to certain. customers of spec ‘ial
prices or services not tnade available to all customers |
who purchase fluid milk or fluid cream or fluid skim
milk of like quantity under like terms and conditions.
(ad) The false or misleading advertising of fluid
milk or fluid cream or fluid skim milk as Wefine?: in|
_ 81 a :
Bee ‘tions 17 500, 17501, “and 17502 of the Business and:
Professions ¢ ‘ode. jae San Nae,
(¢) The purchase of any fluid milk-in excess of 200
gallons monthly from any producer or association of
producers: unless a written contract has been entered
inte with such producer or association of producers,
Such contract shall inchide the following: (1) the
| amount of fluid milk to be purchased for any. period;
(2) the quanfity of |such milk tobe paid ‘for as Class -
1. Such quantity shall be stated in pounds of milk or:
pounds of milk. fat or gallons of milk; provided, that
if the price to be. paid: for sue h Class 1 milk is é&ab-
‘lighed separately for the milk fat and skim milk con--
tained in such milk, such quantity to be paid for as
| Class 1 shall he Atated -in pounds of milk or* pounds
of milk fat or gallons of milk or both in pounds of
milk fat and: ‘pounds of skim milk separately, but in
any gnarketing area wherevan equalization pool is it,
part of a stabilization and marketing plan, such con-
tract need net specify the quantity. of milk in any one.
class; (3) the price to he paid for all milk. ‘received; ——¢
neataee Cy thetate-andmethod-of-payment-tor-sict thrid ey, Te
~ milk,-which shall. be that payment shall be made for ~ |
approximately one-half ‘of the milk delivered in any
calendar month not later than the first day of the next
following month and the remainder not later ‘than the
‘fifteenth day 6f said month: (5) the. charges for trans-
portation if hauled by the distributor; and: (6)-a pro-
viso to the effect, that the producer shall not be obli:
gated to deliyer in“any calendar month fluid milk to
be paid for.at er less than the -minimom: price for
~ fluid milk that is used: for Class"3,-as said. class is ‘de-
fined in Section 4228 The contract may contain such .
other provisions as are hot in conflict with this ehap-
ter. A signed copy of such contract shall be filed by
°
%
Pf
| ‘ ed 82 BOTs ke ; re
_ the distributor with the digee ‘tor within five days from ;
the date of its execution. The ‘provisions of this sub-
division relating to dates of payment shall not apply.
to contrac ts forthe purchase of-fluid-milk from non-. ,
profit, COO erative assoc iationsy of producers. The pro-
visions of this subdivision do not apply to. the pur-
‘chiase of fluid milk whic h is necessary to meet an im-
antieypated increase in demand or an unanticipated
shoytage in the supply of a dietvibutor: provided, that
‘tas of: fluid’ milk: so purchase “ld from any one
- producer or association of producers shall not exceed:
/1,000 gallons in any one month g and, provided further.
that a complete record of such pure ‘hases shall be
- kept by the distributor and the price paid for such
milk by the distributor shall not be less than the price
‘established ‘in the applicable stabilization and market-
ing pla for the 1 usage to which such milk is applied.
(f) The purchasing, processing, bottling, transport- -
in} r, deliv rering or otherwise handling in any market-
arei( of any fluid milk or fluid cream or. tluid’ skim
ore er Be
‘by such distributor at any place in the géographieal -
eatin the outer, outside and external boundaries
or linits of such marketing | area, Whether such place
isa ‘part of the marketing area oF hot, at tess than thé
miniuium wholésale and mindman: retail pr ices effes- |
tive in. such marketing area ae .
.(g) The payment by a distributor to any producer,
jieluding'a any assoeiation ‘of producers, or the receipt
by a produkter, including any association of producers,
from a distriutor, of a lesser nrice for any fluid milk
or fluid ere: amor fluid skim. mith which is distributed
to any person, including agencies of the federal, state
or local government, located upon property within
the geographic al limits of any marketing area for
< which is to be or is sold or. -otherwise disposed of 2
a
~ reetor to be paid by distributors-te producers for thiid
milk, or the milk fat and skim milk contained therein, .
or fluid cream or fluid’ skim milk for said marketing
area. The provisions of this section With respect to.
fluid milk shall apply whether or ‘not ’such fluid niilk -
is Feeeived by the distributor. as’ whole milk, or as
*
derivatives of sueh fluid milk which are reconstituted
into such fluid milk, or fluid cream or thud. skim milk
for market usage, and whether or not a fluid crear
~ plan has been ‘established for the marketing area.
4280-1, © Each sueh plan sh: Ut contain provisions for
prohibiting produce rs and distributors from engaging .
in the unfair prattices hereinafter set forth:
(a) ‘The payment or gift or the: pier or promise of
‘> any payment or gift of mioney or other thing of value,
directly. or indirectly or through anv agent or other
‘intermediary, to any -person With the purpose or de-
‘sign of tnducing such person to become a wholesale
~ customer of any dlistributor,
* * meena er . *
. 4283. .Each such plan sliall contain provisions
whereby the director shall proyide methods for the
\. establishment of minimum prives for fluid milk, fluid
ereain, or the milk fat or fluid skim milk components
of such fluid milk or fluid skim milk, received within
‘ ¢ . ‘ . .
a marketing, area regardless of whether such fluid’
} milk, fluid eream, or the milk fat or fluid skim milk
components of such fluid milk. or ‘fluid skim milk, is
- subsequently sold, or distributed, within or without
such marketing area within: the jurisdiction ‘of the
* State of California, and may contain such provisions
whethér or not such fluid milk, fluid cream, or the milk
& « 6
less than the minimum prices: established by the di-
skim milk and fluid cream, or either, or as any eather
—-
. v4 ?
ff.
| fat or fluid skim’ milk compenints of walk fluid milk ~.
or fluid skim milk is subsequently sold or- distributed
without the jurisdiction of the State Of- California.-
Such stabilization and marketing plans shall provide:
for the establishment of prices for flnid milk, fluid
cream,.or the.wfilk fat or fluid skim milk’ components .
of such fluid milk or fluid skim milk, whether _or not
such fluid ‘milk, fluid cream, or the milk fat or fluid
skim: milk components of such fluid milk or fluid skim ~
milk, is subsequently sold jor distributed. in another
_ marketing. area within the’ State of California where’
a. stabilization and marketing plan is.in effect. The
stabilization and marketing plan shall provide that
A producers sliall be paid nottess-than the minimum ~
prices established for the marketing area wherein.such .
fluid milk, fluid eream, or the milk fat or fluid skim _
milk components of such fluid milk or fluid skim milk, -
is ultimately sold or distributed, and shall further
provide that in the event such fluid milk, fluid cream, :
of the mille fat or fluid skim milk components of such
~~fluid-mitk;thiid-skim-mitk; is subsequently-sotd-or dis=~
tributed’ in any place within the jurisdiction ,of the
State of California where no stabilization and market-
ing plan-is.in effect, then such fluid milk, fluid cream,
or the milk fat or fluid skim ‘milk components of such
flyid milk or fluid skim milk, shall be paid by the dis-
tributor to the producer‘thereof at jnot less than the
average of prices paid. by distributors, whose plants -
are located within such area, to producers for fluid
‘milk, fluid cream, or the milk fat or fluid skim milk fh
components of such fluid‘ milk, but in the event°no~ *
plants are located. within said area, then the ; price
_' whieh shall be paid by the distributor to the-producer.
. thereof shall not be less than the average of prices
paid by distributors to producers for fluid milk, flujd °
> . ‘ H ‘ pea . Bes
3 85 Teese ph
enter” eats |
cream, or fluid skim milk, or the milk fat or fluid skim
. milk components of such fluid milk, at the plants in
the nearest marketing areas adjacent to the area where ©
such fluid milk, fluid cream, or the milk fat or fluid
ski res: components of such fluid milk or fluid skim .
mk, is sald: or distributed as established by the Sta-
bilization and marketing plans m n effect in siteh adja-—
cent marketing areas.
Article 10. Minimum Wholesale and Retail Prices
4350. Pursuant :to- the declaration and statemtents
_ of facts, policy and purposes set forth in this chapter,
_ the. director is hereby vested with the additional ad-
| ninistrative duty and authority .te préSeribe and .en-
« force minimum wholesale and minimum ‘retail prices
for. fluid milk, or fluid,e ‘eam, or both, as hereinafter
~ set forth, and to enforce the provisions of this article.
4351.. In all marketing: areas Wherein aw stabitiza-.
tion and marketing plan for fluid milk is in effect or
ds hereafter esta sr the provisions of this
chapter, the” ahyeetor™ “Shatt desi and prescribe,
‘or provide methods. for: = designating amie preserib-
ing, minimiuny, wholesale and/ininimum retail, prices
‘for fliid milk, including “pasteurized concentrated.
milk, and low fat milk pursuant tothe provisions of.
this article. In all mapketing areas wherein. the direc-
tor has, under a efp¥iization and marketing plan for
fluid milk, preserfbed minimum prices fo he paid. wy
_the distributors for fluid ¢ream, or fluid skim milk, 6
either or. both, the director, may designate .and a
* scribe, or provide methods for designating and pre-
seribing.. minimum wholesale - sand minimum = retail
prices for fluid cream, or fluid skim milk, or either or
both, pursuant to the-provisions of this article. The.
‘term.“fluid milk’’ ‘as used in thf chapter shall, unless
-prices.”’ A subdistributor
— 8 —
the context otherwise ‘requires or indies ites, mean and
include (1) the term “fluid skim milk’? in the appli-
‘ation of this chapter to any marketing area in which
the director has exercised his diseretion to designate
and ‘prescribe, or provide methods for‘designating the *
pres¢ribmg, minimum wholesale and minimum retail
prices for fluid. skine milk, and (2) the te rm **low fat
milk.” *. ts
4352! “Minimum wholesale prices, as used herein,
soa mean prices at whieh fluid milk or fluid cream,
r both, shall: He sold hy distributors to: retail stores
‘imeluding the prices aj which fluid milk er fluid cream
shall be soled by distributors to’ retail stdles s, Testaue .
rants, confectioneries and. @ther places. for consuriip-
tion on the premises but excluding, however, the: prices
at which fluid milk or fluid eream, or both, shall be >
sold’ by distributors to retail Stores owned or operated
by such. distributor. Minimum wholesale prices, as
used herein, includes prices at which fluid milk or
fluid cream, or beth, shall he sold by distributors to
eother distributors, other than in bulk, which prices
niay vary from the minim prices: established for
* shles by distributors to other wholesale ciistomers and
which’ prices shall be known as “‘subdistributor
i shall be established for
rach marketing area and when fluid milk. or fluid
eream, or both, is purchased, other than in bulk, by
ane distributor from another distributor for sale’ in a
inarketing- area other than the marketing area where
purchased the price’ paid shal] not be less than the
thihimum subdistributor. price for the nrarketing ared
in witich the fluid milk or fluid eam, or both, is: ulti-
mate ly sold. ; .
4353. Mintmunr retail prices , as used herein, shall
mean aninimum prices at which fluid milk or finid
%
a + 97 =. 4
cream, or both, shall be sold py distributors and retail
stores to consumers,
4355. In determining minimum wholesale and min-
imum retail prices for fluid milk or fluid: cream, or.
both, for any marketing - area, the director shall take
into consideration the following economic factors. op-
erative im such marketing area in addition: to other
matters required by this chapter to “be taken int»
consideration by him: | es
(a) The quantities. of fluid anilk « or fluid: cream, ‘or
both, distributed in-such marketing area. | coy
(b) The quaptities of thiid’ milk or fluid cream, er
both, normally required hy CONSUME rs in such mierket-
ing area. ° |
(¢) The estimated purchasing power of consumers .
in such marketing area. . ' .
(d) “The cost of fluid milk or fluid eream, or beth.
in such marketing area to distributors and retail
stores, which in all eases shall be. respeetively, the
prices paid by distributors to producers and the mini-
nium wholesale pric Os, as established pursuant to this,
chapter.
—(e) The reasonably ne cessary cost of handling fluid
milk or fluid creamy or beth, ine 'rred by distributors,
including all costs of hauling, processing, selling dnd
delivering and reasonable return on necessary capital
investment, for each of the several methods of dis:
tributign used in such marketing area, im peconiplish-
ing sucli hauling, processing, selling afid delivery, ex-
clidive costs Which are not? reasonably necessary. to
efficient operation, as such costs are determined by im-
partial cost epee ‘cor examination of the books and
records, or both, of all, or such portion: of the? dis-
tributors ‘in such. marketing area, as pre reasonably:
we
~
-
s
detefmined by the director to be sufficiently repre-
_ sentative to.indicate the reasonably necessary costs of
sufficient efficient distribution for such marketing
area. 5
_ (f) The estimated amount of the available capacity
for processing and distributing fluid milk or fluid
cream, or both, of distributors in such marketing area
and the estimated extent to which such available ea-
"pacity i is being used by such distributors.
(g) The reasonably necessary: cost of handling fluid
milk or fluid eream, or both, incurred by retail stores,
‘as such costs are determined by: impartial cost surveys,
er examination of. the books and yecords, or both, of
such portion. of the retail stores in such marketing’
areas as.are reasonably determined by the director
to be sufficiently representative .to‘indicate such costs
of all retail stores in such marketing area. In deter--
“mining such costs incurred by retail stores handling
commodities in addition to fluid milk or fluid cream,
or both, the director shall determine the cost of doing
business ‘for each such representative retail store and-
for such gprpose shall consider all costs and expenses
of doing _ ae including. depreciation on inventory
and equipment. In the absence of satisfactory evidence
to the contrary, the cost of -handling such fluid milk
or fluid cream, or both, shall be presumed to be the
same percentage. as the cost of doing business of such
retail store in conducting its entire business. :
— 4355.5. In determining minimum wholesale and
minimum retail prices fér any marketing area, the
prices paid: by-distributors to producers as established
pursuant t6 this chapter shall also -be considered as
the cost of fluid milk, fluid skim milk, or fluid’ cream
_ to any association: of producers, or other cooperative
‘
P . >
f .
<
‘a
Lee
association, Incorporated or unincorporated, ensamed
in the distributions of fluid sean fluid) skim milk, or
fluid cream.
* ek es nays + @
~ 4360. Following such hearings, investigation, ‘sur-
vevs or examinations authorized above, the director
shal) establish minimum wholesale and “minimum re-
tail prices for sue +h marketing area for distributors
therein,: and minimum retail pric es. for retail stores
therein, which minimum wholesale and ‘minimum re-
tail pr ees shall be sufficient, but not more than reason-
ably sufficient, to cover costs. as such. costs are de-
“seribed in Section 4855, of this code, ac cording to
methed of distribution, and reasonable return pon
necessary capital investment, and shown to the diree-
tor. by the facts available to the director from the
-hearings, investigatfoh, surveys or examinations for
such marketing area: required-in this chapter, and the
director shall declare such prices effec ‘tive in the same
manner as that preseribed in this chapter for declar-
_ing ules prices effective; providec, however, that
whenever the director shall determine from credible
evidence thatSany prices established as he reinalove set
forth will not‘or would not e@nform to and effectuate
the legislative declarations, purposes and intent set.
forth in this chapter, then hé@ shall instead establish
minimum wholesale or mininjum retail prices which
are higher or lower than thos@ sufficient to cover said
costs and reasonable return jon capital investment,
upon the condition that he shall determine in his judg-
ment and oe find in writitig with respect. to such
higher or lOWer minimum prices: e
(a) That such minimum prices will tend to, main-
tain in.the business of distributing fluid milk and fluid
— 9 —
cream, or both; such renannnabity ctebont retail stores :
- and distributors of fluid milk and fluid ere: um, or both,
in such marketing area as the director finds necessary
to insure to consumers in such marketing area suffi-
cient distribution facilities to supply the .quantity of
fluid milk or fluid cream, or both, required: by such
consumers without requiring such consumers to’ pay
more for their supplies of such fluid milk, or fluid
cream, or both, than is nécessary to maintain adequate
and: efficient distribution facilities in such marketing
area. 3
(b) That such minimum prices will not tend. to in-
duce’ or authorize the development of unfair trade
practices, unfair competition, conditions of monopoly
or combinations in restraint of trade, and that such
minimum prices will tend to encourage the orderly
and efficient marketing of fluid milk or fuid cream, or
both.
436]. No distributor shall sell to any retail store,
restaurant, confectionery or other place for consump-
tion on ‘or off the prémises, or to- any consumer, and —
“ no retail. store, restaurant, - confectionery or other:
place for consumption on-or off the prethises, shall
purchase from any distributor or sell to any con-
sumer, any ‘fluid milk or fluid cream, or either of
them, at less than the prices as established by the
director nnder the provisions of this articie. The use
or attempted use of any method, device. or transac-
tion whereby any distributor sells or offers or agrees
to sell to any retail store, restaurant, confectionery
or other place for consumption on or off the premises,
or to any consumer, or any retail store, restaurant,
- confectionery or other place for consumption on or
off the premises, buys or offers or agrees to buy from
a
— 41 —
any distributor, or sells or offers or agrees to sell to
any consumer, fliid milk or fluid eréam, or either,
at a price less than that established by the director
under the provisions of this article, is prohibited
whether such method, device or transaction applies
directly to fluid milk, fluid cream or either or applies
td or is used in connection with the sale or handling
of any eommodity, product or article. _ Prohibited
methods,’ devices or transactions~ shall include, but
not be limited to, any one or more of the following
discounts, rebates, free services, advertising ea
ances,. leases of refrigeration or other equipment,
gifts, or payments, allowances or credits made or
given for, or.in connection with, the return of con-
tainers or other property, unless such payment, allow-
ance or credit is a repayment of a deposit or charge,
in excess of the price established by the director under _
the provisions of, this article, paid by a wholesale
customer, or by a consumer, for the return of such
containers or other property.
A distributor; or retail store, restaurant, confee-
tionery or other place. for consumption on or off the-
premises shall. be considered to have violated the.
provisions of this section if it engages in such viola-
tion directly or through an agent, employee, or ‘sub-
_ sidiary or affiliated company or corporation. For pur-
poses of this section subsidiary or affiliated company
or’ corporation includes, but is not limited to, com-
panies or corporations controlled by the distributor,
or retail store, restaurant, confectionery or other
place for consumption on or off the premises, directly
or indirectly through ownership of.-issued capital -
stock or otherwise.
* _— ee *: ? +
Article 11. Distributors’ Licenses, Fees and Bonds
“4375. No distributor shall ‘deal in a milk or
fluid cream without. first having obtaiiied a “Ticense
“from the director. The special licenses prov inte in this aes
section are in addition to any aind all licenses required
bt any section of Division 4, Agricultural Code, or
any law or ordinance of an’ county or municipality
‘ of this State. Applications for the Jicenses herein
provided shail be made ‘on forms preserifhed ls the
«director, shall be accompanied by an application fee of
three dollars (#3), and shall state. the name and: ad
dress of the applicant and such details as to the ative
of the applicant's business as-the director may require,
‘Such ajiplicant shall further satisfy the director ‘of
his or its Character, responsibility and good, faith in |
secking to. carry on the business stated in the applica
tion. Licenses’ shall be issued for a, period
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