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, et al., 

Plaintiffs and Appellants, 

-vs - 

HARTFORD ACCIDENT AND INDEMNITY COMPANY, 

a corporation, et al., 

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 the Eighteenth Judicial District, 

Honorable ~ack D.Shanstrom, Judge presiding. 

Counsel of Record: 

For Appellants : 

James H. ElcFarland argued, Helena, Montana 

Geoffrey Brazier argued, Helena, Montana 

For Respondents: 

Drysdale, McTJean 6 Scully, Bozeman, Montana 

James J. Screnar argued, Bozeman, Montana 

Filed : 

Submitted: December 10, 1975 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a summary judgment entered by 

the district court in Gallatin County, the Honorable Jack D. 

Shanstrom presiding. The summary judgment was for defendants 

in two consolidated cases. 

Plaintiff is the Montana Department of Business Regulation, Milk Control Division. Defendants are Best Dairy Farms, 

a corporation, licensed and bonded as a distributor under the 

Montana Milk Control Act, and its sureties under 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 Dairy Farms and the 

cases were consolidated for trial. Trial was had without a jury 

and summary judgment was granted to defendants and the case dismissed on its merits. 

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 the Eoard 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 sold by the producers 

to Best Dairy Farms. The "miscellaneous dairy charges" were 

in fact an amount agreed to by the producers to rent a machine 

for packaging milk in one gallon containers in order to meet 

competition and so that the producers would continue to receive 

I I a better price for package milk rather than cheese milk" which 
had a lower price. The packaging machine was leased for $245 

per month and the producers orally agreed to pay the lease price 

by a deduction of the $0.03 per hundredweight. This maneuver, a 

sort of cooperative venture by the distributor and its producers 

by oral agreement, was reported as "miscellaneous dairy charges". 

It is this deduction that the Board determined was a dilution of 

minimum price paid to the producers and thus a violation. Those 

deduction were made from May 1965 to the completion of the audit. 

Following administrative determinations, the distributor 

was ordered to repay the total amount 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 either cashed the check and wrote out 

their personal check back to Best Dairy Farms or simply did not 

pick up their checks. They each felt morally obligated to abide 

by their original agreement to rent the packaging machine and 

did not or are not now claiming-aything -- - against Rest Dairy Farms 

or its bonding companies. 

With this remarkable state of affairs, the Board has 

pursued the matter all the way to this Court claiming that the 

"miscellaneous dairy charges" "JC JC ;? was nothing more than an 

artfully contrived subterfuge whereby the primary means of 

achieving the purpose of the Act were effectively circumvented. If 

To add more to the puzzle of why the case is here, Best 

Dairy Farms sold out and is no longer in business. The ~oard's 

brief on appeal states that "The end result was that funds to 

which some producers were entitled under the Act repose among 

the assets and resources of the distributor and have inured to 

its benefit, a result which none of its competitors is known to 

enjoy. 11 

The Board urges two issues on +peal, one of which is 

controlling. That issue is whether the district court erred in 
granting summary judgment and dismissing the case on its merits. 

The district court in effect found that there is no 

justiciable issue presented, No producer, alleged to have been 

shorted, has filed any claim---although requested to do so as 

section 27-426, R.C.M. 1947, provides. The sureties are clearly 

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 any justiciable issue is like grasping spaghetti. 

The end result is the same--the distributor paid---the producers, 

except one---paid baclc. No one owes anyone anything. 

The Board urges "public policy" as requiring it to pursue 

the matter. The law does not require idle acts, 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 

eliminate unfair and demoralizing trade practices in the milk 

industry has been accomplished. Nothing remains. 

Finding no error, the judgment is affirmed. 

'add Justices.