fat in what was sold, including the price.20 State inspection of creameries began in 1910.21
The commissioner of agricul-
ture was ordered to inspect each cream- ery twice a year, and make recommenda- tions for the correction of unsanitary condi- tions.22
Creameries had to file a bond, the amount depending on the amount of business. Accounts due patrons were treat- ed as first liens on the real estate of the creamery, and given priority over any sub- sequent mortgage or attachment.24 In 1917, legislation first prohibited un- fair discrimination by anyone buying “milk, cream or butter fat for the purpose of man- ufacture or sale, who, with the intention of creating a monopoly or destroying the busi- ness of a competitor ….” Purchasing these commodities at a higher rate than is paid in a community or town “after due allow- ance for the difference, if any, in the grade or quality,” or transportation costs, was also proscribed.25
thorized to require testing of any milk deliv- ery, with the experiment station conducting the tests.23
That year standard milk
for use in creameries and cheese factories was redefined as containing three and sev- en-tenths percent of butter fat, on a pay- ing basis.26 Butter, like milk and cheese, was there-
after regulated for quality and price, on grounds of public health, safety, and wel- fare.
The 1937 act establishing a milk control
board was challenged in an appeal decided in 1939 by the Vermont Supreme Court. Ar- thur N. Auclair had sold and delivered milk without a license, and challenged the leg- islation as a violation of his right to equal protection under the First and Fourteenth Amendments of the U.S. Constitution, as well as Articles 7 and 9 of the Vermont Con- stitution. He questioned how a law or a board of state officials could fix the price of milk without taking away his rights. Chief Justice Sherman Moulton explained why the appeal was affirmed.
The legislative finding, as expressed in the same section, that certain unfair, unjust, destructive and demoralizing trade practices carried on by produc- ers and distributors of milk and cream are likely to result in the undermining of health regulations and standards, the dairy industry and the constant supply of these commodities, thus en- dangering the public health, welfare and comfort, is conclusive upon us in disposing of this cause upon the de- murrer, since there is nothing on the face of the statute, or from facts from which we must take judicial notice, that it is an infringement of constitutional rights.27
www.vtbar.org In 1915, the commissioner was au-
As long as there is nothing arbitrary or dis- criminatory about price-fixing milk, the leg- islation was valid.
Creameries in Court
Farmers, merchants, and creamery op- erators—just as others have done in their businesses—regularly turned to the courts for relief, when they suffered offenses or losses and wanted to be made whole. But- ter maker Edgar J. Smith sued Hiram J. Moore in 1901 for slander, after Moore call Smith a thief. Moore was one of the larg- est producers of milk and cream in the com- munity. The “thief” claim was based on the idea that by undervaluing the butter, Smith “could sell a portion of the butter made at the creamery, and keep the proceeds” and had been “giving part of the proceeds of his stealings to his friends, and putting part into his own pocket” and was “dishonestly weighing butter.”28
The case describes how the cooperative worked. Smith’s duty was
to test the milk of the patrons, ascer- tain the amount of butter fat, weigh each patron’s milk, weigh the butter, keep a correct record of the quality of the milk, its weight, and the weight of the butter produced from it, and keep correct accounts with each patron … These tests were made monthly, and the average was thus obtained, and the division of proceeds among the pa- trons was made on the monthly aver- age of butter fat shown by the test.29
The Court turned down Smith’s claims. Based on the evidence, Moore was telling the truth, and Smith’s tests were a lie. Sometimes the tests for butter fat by a
creamery were wrong. When a test done at the Turner Center System showed 2.6% butterfat, J.B.C. Tyler proved that the scales were inaccurate, that a true test showed 3.3%, and demanded damages. His plead- ings reflected his passion for justice, per- haps too much, claiming that Turner was acting fraudulently and deceitfully. The trouble was, he couldn’t show more than a bad test. Consequently, on appeal, the high court refused to enforce a judgment from the trial court awarding relief. This de- cision, from 1929, is interesting in showing how the farmer had turned to the state’s weights and measures officials for confir- mation as to the true percentage of butter- fat in his milk.30 There was fraud in the creamery busi- ness. Ralph H. Field was convicted of sell- ing and furnishing milk diluted with water to the Soules & White creamery in 1921, in violation of state statute.31
His conviction
was reversed on appeal. Field had hired a man named Murray to carry the milk to the creamery each morning, and claimed his
THE VERMONT BAR JOURNAL • WINTER 2013 9
Ruminations: The Legal History of Vermont Butter
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