### No. 13053 IN

### THE SUPREME COURT OF THE 

### STATE OF MONTANA 1975

MONTANA 

### DEPARTMENT OF BUSINESS REGUTATION, MILK CONTROL DIVISION, on behalf of the STATE OF MONTANA, 

### etal., Plaintiffs and Appellants, -vs

# - HARTFORD ACCIDENT AND INDEMNITYCOMPANY, a corporation, etal., Defendant and Respondent.

--------------I-------------------------------- 

### MONTANA DEPARTMENT OF BUSINESS REGULATION, MILK CONTROL DIVISION, Relator and Plaintiff, 'VS

# - BEST DAIRY 

### FARMS, a Montana Corporation, Respondent and Defendant.
Appeal from: District Court of theEighteenth Judicial District, Honorable ~ack D. 

### Shanstrom, Judge presiding. Counsel of Record: ForAppellants

### : James H. 

### ElcFarland argued, Helena, Montana Geoffrey Brazier argued, Helena, Montana For Respondents: Drysdale, McTJean6 

### Scully, Bozeman, Montana James J. 

### Screnarargued, Bozeman, Montana

Filed: 

### Submitted: December 10, 1975Mr. JusticeWesley Castles delivered the Opinion of the Court.
This is an appeal from a summaryjudgment enteredby the district court in Gallatin County, the Honorable Jack D. Shanstrom presiding. The summary judgment was for defendants in two consolidated cases. Plaintiff isthe Montana Department of Business Regulation, Milk Control Division. Defendants areBest Dairy Farms,


### a corporation, licensed and bonded as a distributor under the Montana Milk Control Act, and its suretiesunder the statutory milk distributor's bond. Plaintiff and certain named milk producers filed suit against Hartford Accident and Indemnity Company and 

### ire man's Fund under section 27-426,, R.C.M. 1947, to enforce payment to milk producers supplying Best Dairy Farms for their product. Subsequently plaintiff filed suit against Best DairyFarms and the
cases were consolidated for trial. Trialwas had without a jury and summary judgment was granted to defendants and the case dismissed on itsmerits. During a period between September 1969 and April 1970,
an audit of the monthly reports and supporting plant records of Best Dairy Farms was made by auditors of theEoard of Milk Control. The results of this audit indicated that the sum of $14,686.40 had been systematically deducted from the payments to 24 producers of Best Dairy Farms, and shown as "miscellaneous dairy charges". The deductions were based on $0.03 per hundredweight (from $3.00 per hundredweight) on 

### all milk soldby the producers toBest Dairy Farms. The "miscellaneous dairy charges" were in fact an amount agreed toby the producers torent a machine for packaging milk in one gallon containers in order tomeet competition and so that the producers would continue toreceive

II a better price for package milk rather than cheese milk" whichhad 

### a lower price. The packaging machine was leased for $245 per month and the producers orally agreed topay the lease price by a deduction of the 

### $0.03 per hundredweight. This maneuver, a sort of cooperative venture by the distributor and itsproducers by oral agreement, was reported as "miscellaneous dairy charges". It isthis deduction that the Board determined was a dilution of minimum price paid to the producers and thus a violation. Those deductionwere made from May 1965 tothe completion of the audit. Following administrative determinations, the distributor
was ordered torepay the totalamount of $14,686.40 to the 24 producers. Best Dairy Farms met with the producers and subsequently issued checks to each. Only one producer out of the 24 accepted his refund. The others eithercashed the check and wrote out their personal check back toBest Dairy Farms or simply did not pick up their checks. They each feltmorally obligated to abide by their original agreement torent the packaging machine and did not orarenot now claiming-aything 

### --

### - against Rest Dairy Farms
or itsbonding companies. With thisremarkable stateof affairs, the Board has pursued the matter alltheway tothis Court claiming that the "miscellaneous dairy charges" "JC JC ;? was nothing more than an artfullycontrived subterfuge whereby the primary means of achieving the purpose of theAct were effectively circumvented. If To add more to the puzzle of why the case 

### ishere, Best Dairy Farms sold out and isno longer inbusiness. The ~oard's brief on appeal states that "The end resultwas that funds to which some producers were entitledunder the Act repose among the assets and resources of the distributor and have inured to itsbenefit, a resultwhich none of itscompetitors isknown to enjoy. 11 The Board urges two issues on +peal, one of which 

### is controlling. That issue iswhether the district court erred in

### granting summary judgment and dismissing thecase on its

### merits. The district court ineffect found that there is

### no justiciable issuepresented, No producer, alleged tohave been shorted, has filed any claim---although requested todo so as section 27-426, R.C.M. 

### 1947, provides. The sureties areclearly exonerated as provided in section 30-406, R.C.M. 

### 1947, by performance by Best Dairy Farms in complying with the refund order. To find anyjusticiable issue islikegrasping spaghetti. The end result isthe same--the distributor paid---the producers, except one---paid baclc. No one owes anyone anything. The Board urges "public policy" asrequiring it 

### topursue the matter. The law does not require idleacts, section 49-124, R.C.M. 

### 1947. Nor does it 

### require impossibilities, section 49-123, R.C.M. 

### 1947. It 

### does disregard trifles, section 49-125, R.C.M. 

### 1947. The purpose of the Milk Control Act of providing a continuous source of pure, wholesome milk in the public interest (Title 27, Chapter 4, Revised Codes of Montana, 1947) and to eliminateunfair and demoralizing trade practices in the milk industryhas been accomplished. Nothing remains. Finding no error, thejudgment 

### is affirmed.



# 'add Justices.