No. 13074 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

CU)VERDALE FOODS COMPANY, a North Dakota Corporation, 

Plaint iff and Appellant, 

THE STATE OF MONTANA, and the DEPARTMENT OF BUSINESS 

REGULATION, an administrative agency of the State of 

Montana, 

Defendants and Respondents. 

Appeal from: District Court of the First Judicial District 

Honorable Peter G. Meloy, Judge presiding. 

Counsel of Record: 

For Plaintiff: 

Small, Cummins and Hatch, Helena, Montana 

Gregory Jackson argued, Helena, Montana 

For Respondents: 

James H McFarland argued, Helena, Montana 

James Wood, Helena, Montana 

Submitted: September 30, 1975 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal by Cloverdale Foods Company from an 

adverse decision in a declaratory judgment action tried to the 

district court, Lewis and Clark County. In the fall 1974, Cloverdale 

Foods Company (hereinafter called Cloverdale), a North Dakota 

corporation licensed to do business in the state of Montana, began 

selling and offering for sale in this state milk in three quart 

containers. On November 14, 1974, the State of Montana, acting 

through the Department of Business Regulation, Division of Weights 

and Measures, hereinafter called State, notified Cloverdale that 

in so selling and offering for sale its milk in three quart containers it was in violation of section 90-180, R.C.M. 1947, which 

provides : 

"Fluid dairy products. All fluid dairy products, 

including but not limited to whole milk, skimmed milk, 

cultured milk, sweet cream, sour cream, and buttermilk, 

shall be packaged for retail sale only in units of one 

(1) gill, one-half (112) liquid pint, ten (10) fluid 

ounces, one (1) liquid pint, one (1) liquid quart, onehalf (112) gallon, one (1) gallon, one and one-half 

(1-112) gallons, two (2) gallons, two and one-half (2-112) 

gallons, or multiples of one (1) gallon; provided, that 

packages in units of less than one (1) gill shall be 

permitted." (Emphasis supplied). 

It thus ordered Cloverdale to cease the sale of milk so packaged. 

Cloverdale brought a declaratory judgment action against 

the State. At the time the complaint was filed, an order to show 

cause and a temporary restraining order issued from the district 

court. The State filed a motion to quash the temporary restraining 

order and a brief in support. Subsequent thereto, the matter was 

tried to the district court. The court filed findings of fact 

and conclusions of law in favor of the State. Those findings of 

fact and conclusions of law, in pertinent part, provided: 

"FINDINGS OF FACT 

"7 * ik * 

"a. That all milk which plaintiff sells in 

Montana complies with all state and federal health 

or sanitation requirements; 

"b. That the size of container used in packaging 

does not affect the quality or standard of the milk 

contained therein; 
"c. That in the manufacture of three (3) quart 

containers as compared to smaller containers less oil 

and wood products would be used; 

"d. That Section 90-180, R.C.M. 1947, provides 

reasonable sizes or classifications (and numbers) for 

the containers of milk as follows: 

one (1) gill 

one-half (1/2) liquid pint 

ten (10) fluid ounces 

one (1) liquid pint 

one (1) liquid quart 

one-half (1/2) gallon 

one (1) gallon 

one and one-half (1-1/2) gallons 

two '(2) gallons 

two and one-half (2-1/2) gallons 

multiples of one (1) gallon 

1 I e. The three (3) quart container is not a size 

generally recognized by the public and is of such size 

and appearance that it will be mistaken for the wellknown one (1) gallon container by the public and 

accordingly creates the potential of deception; 

"f. That the presently existing sizes (and number 

of sizes) of milk containers adequately and reasonably 

meet the need and demands of the public; 

"g. That the addition of yet another container size 

will require substantial investment by milk processors 

and those investment costs will be ultimately borne by the 

public, to its detriment; 

"h. That the entire system of weights and measures 

will apparently soon be switched to the metric system 

which will require substantial investment of capital 

by milk processors to comply therewith; 

"i. That it is in the public interest because of 

the potential for fraud, deception and misunderstanding 

that the number (and size) of milk containers be 

reasonably limited under the police power. 11 

"CONCLUSIONS OF LAW 

"3. That Section 90-180, R.C.M. 1947, provides 

reasonable sizes and numbers of sizes for milk containers and they bear a real and substantial relationship to the exercise of the police power and for the 

purpose of preserving public health, safety, morals or 

general welfare and preventing fraud; that, therefore, 

it is constitutional. 

"4. That Section 90-180, R.C.M. 1947 does not discriminate against plaintiff nor deprive plaintiff of 

the equal protection of the laws, as provided under the 

Constitution of Montana or the Constitution of the 

United States. 
"5. That the language of Section 90-180, R.C.M. 1947, 

clearly and reasonably prohibits the packaging of dairy 

products in three (3) quart containers. 

"6. That the use of the three (3) quart containers is 

prohibited for the retail packaging, sale, marketing 

and distribution of dairy products in Montana. 

"7. That the temporary restraining order heretofore 

issued is dissolved. 

1 I Let Judgment be entered accordingly. 

Cloverdale objected to the findings and moved the court 

for a new trial. Thereafter the court denied the motion for a new 

trial, overruled c lover dale's objections and dissolved the restraining order. Judgment was then entered in favor of the State. 

Cloverdale then petitioned this Court to stay execution of the judgment pending appeal. The stay pending appeal was granted and the 

appeal perfected. 

On appeal, Cloverdale presents these issues: 

1) Whether section 90-180, R.C.M. 1947, is unconstitutional in light of the United States and Montana Constitutions. 

2) Whether a proper reading of section 90-180, R.C.M. 

1947, permits the marketing of milk in three quart packages. 

3) Whether section 90-180, R.C.M. 1947, can be amended 

by adding "three (3) quart" language. 

4) Whether the district court erred in: 

(a) concluding that the three (3) quart container 

has the potential of deceiving the public and 

(b) denying Cloverdale a new trial. 

Inasmuch as the remaining issues for review are dependent 

on Issue No. 2, we will examine the statute and the finding related 

thereto. 

In Cherry Lane Farms v. Gilbert Carter, as Treasurer of 

Gallatin County, 153 Mont. 240, 249, 456 P.2d 296, this Court said: 

"The case law of this state long ago established 

that in construing statutes the intention of the 

legislature is to be followed, if possible, and 
they must be construed in reference to the subject 

matter and objects which prompted and induced the 

legislature to act." (Emphasis supplied) 

First,it should be understood that code sections 27- 

401 through 27-429, R.C.M. 1947, regulate and control the milk 

industry as it relates to production, transport, processing, 

storage, distribution and price control, - etc., under the 

authority of the Montana Milk Control Board. The quality of 

manufactured dairy products, including milk, in the area of 

sanitary production, transportation, storage, standards of quality, 

purity, licensing, -. etc., are controlled by the Commission of 

Agriculture in sections 3-2404 through 3-24-139, R.C.M. 1947. 

Although the above areas of control are frequently 

alluded to in the case before us, they are of no concern here and 

have no bearing on our considerations. In other words we are not 

here concerned with price control or related matters. This case 

involves the interpretation of a statute, section 90-180, R.C.M. 

1947, contained in Title 90-Weights-Measures and Grades - Time - 

Money. 

Section 90-180, R.C.M. 1947, has in one form or another 

been Montana law since its original enactment in Chapter 34, 

Sections 19 and 20, Sessions Laws of 1911. In 1911 the Act was 

entitled: 

"An Act to create the Office of State Sealer of 

Weights and Measures and Providing the Duties and 

Powers relative to the Inspection and Sealing of 

Weights and Measures, and Providing Penalties for 

the Violation thereof." 

The subject matter and object of this legislation which 

induced the legislature to act was to establish a state sealer of 

weights and measures and to provide for his deputies throughout 

the state; to establish standards of weights, liquid measures, etc., 

and to enable the field to be policed to prevent fraud upon the 

consumer by mislabeling, short weight or measure. 
Section 19 provides the standard of liquid measure for 

milk products to be "sold only by standard wine measure." Wine 

measure being a measure formerly used for wine and spirits in 

which the gallon was equal to the present United States gallon. 

A reading of the Act as a whole clearly permits the sale of 

milk products in multiples of a gallon, as long as the container 

is clearly marked as to the capacity. 

The amendment to the original Act of 1911 that offers 

clarification of legislative intent is contained in Chapter 146, 

Session Laws of 1939, Section 21. This amendment establishes 

the standard measure as the gallon, the 112 gallon which contains 

112 as much as a gallon etc, down to the pint. The statute further 

provided : 

"Any purchaser of milk, cream or skimmed milk, having 

reason to believe that any measure, can, jar, bottle 

or other vessel or receptacle, in which milk, cream, 

or skimmed milk is sold and delivered to him. is not 

of sufficient size or capacity to contain, b$ standard 

wine measure, the amount thereof purchased, may apply 

to the sealer of weights +: :k +:." (Emphasis supplied.) 

With each amendment it became clearer that the legislature 

intended to establish a "control unitff to which multiples could be 

compared in the enforcement process to prevent fraud. Fraud has 

been discussed in terms of mislabeling as to capacity of the 

container and short measure. 

Thereafter the term "unit" was introduced into the 

descriptive language of the law as found in Title 90, R.C.M. 1947, 

sections 90-101 through 90-129 [since repealed]. For example, 

section 90-102-Unit of extension- "The standard yard is the unit or 

standard measure of length Ji Ji. " ; 90-106- Unit of weights -"The 

standard avoirdupois and troy weights are the units of standard of 

weights from which all other weights are derived and ascertained."; 

90-108 - Unit of liquid measure - he standard gallon and its 

parts are the units or standards of measure of capacity for liquids, 

from which all other measures of liquids are derived and ascertained. I I 
The ?egisiacuue i-n tne Laws ar 1969, Chapter 99, erlacceil 

 he presenr law: 

"An Act Relating to Weights and Pleasures, 

Providing for a State Sealer of Weights and 

Measures, Providing for a System of Weights 

and Measures, Regulating the Sale of Commodities by Weight and Measure, Providing for 

Enforcement [and repealer clause]. 11 

This icc effectively revamped and modernized the entire Act. 

Ihe term "unit" is used but not redefined. Section 2 of the Act 

provided : 

"Systems of Weights and Measures. The system of 

weights and measures in customary use in the 

United States and the metric system of weights and 

measures are jointly recognized, and either one or 

both of these systems shall be used for all commercial 

purposes in the State of Montana. The definitions of 

basic units of weight and measure, the tables of 

weight and measure, and weights and measures equivalents 

as published by the National Bureau of Standards are 

recognized and shall govern weighing and measuring 

equipment and transactions in the state." (Emphasis 

supplied. ) 

The federal standards adopted recognize the gill, pint, 

quart, gallon, barrel and hogshead. Another section redefines as 

!'special Units of ~easure" the barrel as 31 gallons, as opposed to the 

federal standard of 31 1/2 gallons and several other units not 

relevant to our consideration here. 

It is the opinion of this Court that the term "unit" or 

"units" as used in this Act is intended by the legislature to mean 

an absolute standard of measure of capacity from which other measures 

I l I I 

are derived and ascertained. Therefore, the term unit" or units" 

could not, as used in the section under consideration, be construed 

to be restrictive to the absolute unit itself but only to divisible parts or multiples thereof. 

The fraud the legislature intended to control or the 

inducement that prompted the legislature to act was principally 

so control actual fraud as it related to false or misleading packages or containers so as to mislead the consumer as to quantity of 

contents or the contents of the container falling below the adver- 

~:ised fill i.e., short weight or fill. A close examination of the 
record discloses no evidence to support an allegation or proof 

of this kind of fraud. 

We reverse the trial court's sub-paragraphs of its 

finding of fact No. 7 and its conclusions of law No. 5 and No.6 

relating to the construction of section 90-180, R.C.M. 1947, as 

it relates to containers containing units of three quarts. 

We find, as our discussion points out, the language of 

section 90-180, R.C.M. 1947, does not prohibit the use of a single 

container of the capacity of three (3) one (1) quart units for 

retail packaging, sale, marketing and distribution of fluid dairy 

products in Montana . The cause is remanded to the trial court to enter the 

proper judgment not inconsistent with this opinion. 

Justices.