State v. Lanesboro Produce Hatchery Co. , 221 Minn. 246 ( 1946 )

I am of the opinion that the decision of this court in State v. Northwest Poultry Egg Co. 203 Minn. 438, 281 N.W. 753, answers the question here to be determined directly in favor of defendant, and that the language of the statute, to wit, "after making due allowance for the difference, if any, in the actual cost of transportation from the locality of purchase to the locality of manufacture or sale," is invalid for the same reason that this court, in that case, held invalid the clause "or who shall fail to deduct the actual costs of hauling when such products are gathered by wagon or truck." In discussing the latter clause, which became part of the act by virtue of L. 1937, c. 420, this court stated (203 Minn. 443, 444,281 N.W. 755, 756):

" 'Actual cost' has no common-law significance, and it is without any well understood trade or technical meaning. * * * Whether actual cost in this case is limited to gasolene or whether it extends to depreciation, license fees, insurance, repairs, the wages of the driver, or the actual worth of the services of an operator if driven by the owner is not stated. The statute neither provides which items comprise the actual cost of transportation nor how they are to be computed as to one trip, nor yet how the total is to be apportioned if several purchases are collected from a number of producers located varying distances from the point of manufacture or sale in the course of one trip. * * * we are compelled to hold that the terms used to define this class of acts constituting unlawful discrimination are so vague, indefinite, and uncertain as to deny due process of law."

It is to be noted that the statute applies irrespective of motive and without reference to fraud, intent to create a monopoly, or intent to destroy competition. Nor does the statute limit its application to purchases which have theeffect of limiting or eliminating competition. The information contained no assertion that defend. ant was acting in restraint of trade or endeavoring to limit competition. Nor is good faith a defense under the statute.

Defendant buys poultry at many places in southern Minnesota and northern Iowa for processing at its Wells, Minnesota, plant. There is no way in which defendant can ascertain with reasonable certainty whether the prices at which it buys in various localities are in violation of the statute. If defendant pays a certain price for poultry at Wells on a given day and the same price for like poultry at each of its other Minnesota buying points, it clearly violates the statute, as the actual cost of transporting the poultry to Wells from the various other points at which it is purchased cannot be the same.

The statute uses the term "actual cost," which means theexact cost and not the average cost, nor a reasonableproportion of the cost, nor a reasonable advance estimate of the cost. Actual cost changes from day to day. It cannot be accurately known before the poultry is purchased. It can be computed only after the transportation has been completed. Thus, on a certain outbound trip, defendant may carry a substantial tonnage of poultry food (in which it also deals), for delivery along the route, while on a subsequent trip it may have no call for such merchandise. Obviously, its cost will vary on the two trips. Again, on one trip, trucks may meet with mechanical difficulties or experience tire trouble, which unquestionably will affect the cost of transportation to the locality involved. Factors such as these and numerous others constantly affect and vary the actual cost of transportation.

The statute gives no suggestion as to which factors shall be included in calculating actual cost, or whether such cost shall include requirements for liability insurance, depreciation, service calls, overtime wages for drivers, and many other factors which may or may not have been contemplated by the legislature. The statute provides no formula or suggestion as to how actual cost shall be computed.

It has been suggested that the term "actual cost" has been used in other statutes and therefore should be upheld here. It is true that the term has been used in statutes prohibiting discrimination in other industries. See, Minn. St. 1941, § 623.08 (Mason St. 1927, § 10474), originally enacted in 1907. Obviously, the term there, however, relates to cost of transportation by rail. Railroad transportation is not involved here, and the term "actual cost of transportation" when applied thereto does not involve the uncertainty and difficulties apparent here. A common carrier by rail is required to have a known schedule of rates as to different types of merchandise and as to different points of transportation, and actual cost of rail transportation is thus readily capable of ascertainment.

Here, while at the end of the year it may be possible for expert accountants to ascertain the dealer's actual cost as between various localities, under the statute in question it is obvious that such cost cannot be ascertained in advance, and that it must vary from year to year, depending upon the conditions met with, including such factors as weather, supply and demand, mechanical difficulties, and numerous other factors which go into a dealer's transportation costs.

As stated in Anderson v. Burnquist, 216 Minn. 49, 53,11 N.W.2d 776, 778:

"* * * The law does not permit speculation or conjecture in construing an act. It is not the function of the judicial branch of the government to remedy or supply defects in matters committed to the legislature."

The United States Supreme Court in Screws v. United States,325 U.S. 91, 103, 65 S.Ct. 1031, 1036, has expressed this principle as follows:

"* * * The constitutional requirement that a criminal statute be definite serves a high function. It gives a person acting with reference to the statute fair warning that his conduct is within its prohibition. This requirement is met when a statute prohibits only 'willful' acts in the sense we have explained. One who does act with such specific intent is aware that what he does is precisely that which the statute forbids. He is under no necessity of guessing whether the statute applies to him * * * for he either knows or acts in reckless disregard of its prohibition of the deprivation of a defined constitutional or other federal right."

In accordance with these authorities, it is my opinion that the term "actual cost of transportation" as used in the statute is so vague, indefinite, and uncertain that men of common intelligence must guess at its meaning and may differ as to its application, and, accordingly, that the statute should be held invalid under the due process clauses of the state and federal constitutions.