Montana Attorney General Opinion 16-187

Opinion No. 187. Milk Control-Dairies, One-Cow- Rules and Regulations- "Sub- stantial Portion," What Is. HELD: 1. A one-cow dairy, wheth- er a producer or a producer-distribu- tor, is a dealer within the meaning of the Milk Control Act and is sub- ject to the regulations of the Milk Control Board. 2. In determining what is "a sub- stantial portion of the milk in that community" the Board should not per- mit the same milk to be counted twice. October 15, 1935. Mr. J. E. Norris Commissioner, Montana Milk Control Board The Capitol You have asked (1) whether one- cow dairies come under the jurisdic- tion of the board; and (2) my in- terpretation of Section 6, Chapter 189, Laws of 1935, and particu- larly whether in determining what is a "substantial portion of the milk in that community" the same milk, if it pass from producer to distributor, may be counted twice in determining what is a "substantial portion." The answer to your first question lies in the definitions which thc Act itself supplies in Section 3: " 'Producer' means any person who produces milk for fluid consumption within the state, selling same at wholesale to a distributor. "'Distributor' means any person purchasing milk and distributing same for fluid consumption within the state. Said term, however, ex- cludes all persons purchasing milk 196 OPINIONS OF THE ATTORNEY GENERAL from a dealer licensed under this Act, for resale over the counter at retail, or for. consumption on the premises. " 'Producer-distributor' means any person both producing and distribu- ting milk for fluid consumption within the state. " 'Dealer' means any producer, dis- tributor or producer - distributor." Section 7 (1) authorizes the board (a) to fix minimum prices to be paid by dealers to producers; and (b) the minimum wholesale and retail prices of milk when sold by dealers to con- sumers, by stores to consumers and by dealers to other dealers. Sections 8 and 9 require the dealers to be li- censed and that distributors and/or producer-distributors shall pay a tax on all fluid milk sold. If a one-cow dairy sells milk at wholesale to a distributor, it is a pro- ducer as defined by Section 3 above quoted. If a one-cow dairy retails milk, it is a producer-distributor U11- der the definition above quoted, since selling at wholesale to a distributor is not included in the latter defini- tion. By definition, "dealer" means any producer, distributor or producer- distributor. It is my opinion, therefore, that a one-cow dairy, whether a producer or a producer-distributor, is a dealer as above defined and subje~t to the reg- ulations of the board providf>':l for in Sections 7 and 8. S~ction 6 of the Act provides. "Thc board shall not exerci:;e its power in allY market except upon written ap- plication of an assocl!ttioll, organized under regulations satisfactory to the board, and supplying a substantial portion of the milk in that commu- nity." Section 3 defines "association" as follows: "'Association' means any or- ganized group of dealers, in a com- munity or marketing area which has been constituted under regulations satisfactory to the board." Since the term "dealer," as defined by the Act, is broad enough to in- clude (1) producers, (2) distributors, (3) producer-distributors, the "asso- ciation" mentioned in Section 6 may include any person belonging to either of the three classificatigns, In deter- mining what is a "substantial portion of the milk in that community," the board, in my opinion, should not per- mit the same milk to be counted twice. The board should determine whether a given quantity of milk is a "substantial portion," regardless of such milk being produced and dis- tributed by different persons. The ex- istence of the substance, milk, and the determination of its bulk or quan- tity is independent of its relation to producers or distributors or producer- distributors. In other words, the quan- tity remains fixed, regardless of the number of persons handling it.