McCOMB, J. — I dissent.
It is obvious that the majority holding will place a restriction upon free enterprise which will interfere with the liberty of contract guaranteed by the due process clause in the Constitution of the United States and constitute an arbitrary and unreasonable restraint upon trade.
The result will be that in the long run the average citizen and taxpayer will have to pay a higher price for milk than he otherwise would if the parties were left free to engage in unlimited competition with each other.
Private business should be encouraged to act in such a manner that the average citizen and taxpayer may be able to purchase a commodity at the lowest price which will permit the producer to supply it at a reasonable profit to himself.
In the present ease plaintiffs are retail grocery stores doing business in metropolitan Stockton. Defendants (other than State of California Department of Agriculture officials) are distributors, who operate milk processing plants within metropolitan Stockton and also operate retail food businesses at their respective plants. These defendants will be referred to herein as the “industry defendants.”
Plaintiffs and the industry defendants are located in the same retail trading area, and their principal business is the retail sale of fluid milk and other food products to carry-out consumers from fixed retail sales locations. The industry defendants carry a much more limited range of other food products than plaintiffs, but the evidence shows that they sell eggs, orange juice, dressed poultry, bread, certain other pastries and dairy products, in addition to fluid milk.
By virtue of provision 2 of the San Joaquin County marketing area minimum retail price order for fluid milk1 [pur[311]portedly pursuant to the milk stabilization and marketing plan (Agr. Code, §4200 et seq.)] promulgated by defendant Director of Agriculture, the industry defendants sell fluid milk to the general public at retail at a price two cents per quart less than plaintiffs are permitted to sell by such order. Plaintiffs are thus compelled to charge for fluid milk a higher price than the industry defendants may charge for the same quantity and quality of fluid milk sold to the same class of consumers in the same retail trading area.
Plaintiffs filed a declaratory relief action, wherein they sought to have said provision 2 declared void. Judgment was rendered against them, and they appeal, contending that said provision produces lack of uniformity, results in unfairness in setting minimum retail prices for fluid milk, and is void as being beyond the scope of the director’s power to promulgate.
Question: Are the industry defendants entitled to sell fluid milk at retail, at stores where they also sell other food products, at the prices specified in provision 2 of the price order ?
No. The Director of Agriculture is required by section 4360 of the Agricultural Code to establish minimum wholesale and retail prices for distributors in the area and minimum retail prices for retail stores therein. The prices set may vary according to method of distribution.
It is a well-settled principle of statutory construction that a specific provision relating to a particular subject will govern with respect thereto as against a general provision, even though the latter standing alone would be broad enough to include the subject. (Rose v. State, 19 Cal.2d 713, 723 [5] [123 P.2d 505]; Neuwald v. Brock, 12 Cal.2d 662, 669 [86 P.2d 1047]; Code Civ. Proc., §1859; 45 Cal.Jur.2d (1958) Statutes, § 119, p. 628.)
The statute here involved has a specific provision relating to the establishment of minimum retail prices for retail stores. No exception therefrom is made. Accordingly, the price schedule established for this category is controlling for all retail stores in the area, including those operated by persons otherwise functioning as distributors.
The industry defendants contend that because they maintain processing plants at their respective store locations and hence have no overhead for delivery costs, they are using a different method of distribution and are entitled to the establishment of a separate price schedule permitting them to charge less than the minimum prices prescribed for retail stores.
[312]In determining what method of distribution is used, we must look only to the means by which the seller distributes the product to the purchaser. Obviously, the manner and cost of acquisition by the seller are unimportant in determining what method he has used to distribute the product.
In Challenge Cream etc. Assn. v. Parker, 23 Cal.2d 137, 143 et seq. [142 P.2d 737, 149 A.L.R. 1203], it was held that a difference in container costs within the same type of operation was not a basis for the director to fix a different minimum wholesale price. Under the rule laid down in that ease, it is clear that the director has no authority to establish a different price schedule within a given method of distribution on the basis that some of the sellers have a lower overhead than others.
Under the theory of the industry defendants, retail home delivery sales made by distributors who are also producers, and hence incur no overhead costs for delivery to the processing plant, would constitute a different method of distribution from retail home delivery sales by distributors who purchase milk from producers, and the director would be warranted in setting lower minimum prices for the producer-distributor group. Obviously, the avowed purpose of the act to eliminate unfair, unjust, destructive and demoralizing trade practices in this field (Challenge Cream etc. Assn. v. Parker, supra, p. 140 et seq.) would be defeated if such distinctions were permitted.
As hereinabove pointed out, plaintiffs and the industry defendants all sell fluid milk at retail to carry-out customers at fixed store locations at which other food products are also sold. Accordingly, they use the same method of distribution and must be governed by the same price schedule.
This conclusion appears to be in accord with the legislative intent. Such intent appears in the following Agricultural Code sections: Section 4360, subdivision (b) (“That such minimum prices will not tend to induce or authorize the development of unfair trade practices, unfair competition, conditions of monopoly . . .”); section 4201 (“. . . it is the policy of this State ... to eliminate . . . unfair and destructive trade practices . . .”); section 4355, subdivision (g) (In determining costs of retail stores the director shall take surveys of sufficiently representative stores); and section 4360 (Minimum prices shall be established “according to method of distribution.”)
The industry defendants contend that they are not operating [313]retail stores; but the trial court, although it made certain conclusions to that effect, found that they engage as retailers in the sale of fluid milk and other food products to customers from fixed store locations.2 Accordingly, we are not dealing with a situation where a distributor is selling at retail nothing but milk.
Section 4218 of the Agricultural Code reads: “ ‘Retail store’ means any person or persons owning or operating a retail grocery store, restaurant, confectionery, or other similar business, where fluid milk or fluid cream is sold to the general public for consumption off the premises. ’ ’
Since section 4218 classifies as retail stores all businesses similar to a grocery store, restaurant or confectionery, it is obvious that the Legislature intended all store or fixed location type sellers of fluid milk and other food products to carry-out consumers to be classed as retail stores. Size, type and shape are immaterial. It is evident that a coffee shop, hamburger stand, fountain, juice bar, delicatessen, general store, supermarket, etc., are intended by the Legislature to be “retail stores.”
The fact that the industry defendants operated fluid milk processing plants upon their respective properties would not prevent their also operating retail stores thereon, as the court in fact found they did. (Cf. In re Willing, 12 Cal.2d 591, 595 [3] [86 P.2d 663].)
It is a matter of common knowledge that frequently wholesale and retail stores, or manufacturing plants and retail stores, are operated by the same owners at the same location.
The industry defendants are set up for a customer drive-in operation, and some of their sales are made by serving the customer directly in the customer’s car. The rendition of this additional service to the customer clearly does not warrant a lesser charge to him and does not change the fact that the sales [314]are being made to carry-out customers at retail at fixed store locations where other food products are also sold.
For the foregoing reasons I would reverse the judgment.
Schauer, J., and Peters, J., concurred.
Appellants’ petition for a rehearing was denied March 8, 1961. Schauer, J., McComb, J., and Peters, J., were of the opinion that the petition should be granted.
Provision 2 reads: “The minimum retail prices for fluid milk sold f.o.b. distributor’s processing plant shall be eight cents ($0.08) per gallon container, four cents ($0.04) per half-gallon container, two cents ($0.02) per quart container, and one cent ($0.01) per pint container below the minimum retail store carry-out prices provided in the applicable Schedule 1 or 2 of Table 1 of this Section.”
Tin ding 13 reads in part: “[T]he industry defendants did, and now do, sell at retail at their respective plant premises a limited number of other food products in addition to fluid mille but fluid milk was, and now is, the principal, primary and dominant food item sold by the industry defendants at their said respective plant premises and the sale of such other food items was and now is incidental to the sales of fluid milk.”
Finding 15 reads: “That it is true that the industry defendants at all times in the complaint mentioned did, and now do, respectively make retail sales of fluid milk to carry-out consumers from fixed retail locations, to-wit, their said respective fluid milk processing plants.”