# Petition for Writ of Certiorari — Hausfeld v. Ziegler > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0664%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 372 U.S. 907 ## Text of. * Office-Suprem: ¢ 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, . 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 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 “ 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. 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 ; (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 - 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. . “ ‘ = . ~ : ° ‘ 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* ~ ¥'* 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 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: establi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0664%3A2. Public record. Not legal advice.