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MOBERLY MILK PRODS. CO. v. FLEMING

January 21, 1947

MOBERLY MILK PRODUCTS CO.
v.
FLEMING, Adm'r, Office of Temporary Controls, et al.



The opinion of the court was delivered by: LETTS

Obviously and I think admittedly the quota base provisions set up in the Third Revised Ration Order No. 3, Amendment 24, are made dependent upon historical use in administering the sugar rationing program. Such restrictions so placed in the quota formula set up in the amended ration order are expressly prohibited by the War Mobilization and Reconversion Act of 1944, 50 U.S.C.A. Appendix, § 1651 et seq., and are invalid.

It is contended by the defendants that the historical use base has not resulted in harm to plaintiff since under the ration order plaintiff is allowed some sugar. This defense begs the question for plaintiff is entitled to an allotment which is fair, just and reasonable to a small plant, capable and desirous of participating in expansion or initiation of production for non-war use. The Congress saw fit to encourage small enterprises and new plants and to protect same in the expansion and initiation of production for non-war use. To further such Congressional purpose statutory safeguards were set up to protect small plants and new concerns from discriminatory use of historical use bases for any purpose in ration orders.

 The several other defenses are found to be without merit. Plaintiff is entitled to relief. Let counsel for plaintiff present for settlement findings of fact, conclusions of law and a judgment form consistent herewith.

 Findings of Fact and Conclusions of Law

 This cause came on for trial and the Court, having heard the evidence and considered the stipulation of the parties, finds the facts and states the conclusions of law as follows:

 Findings of Fact.

 1. That the Plaintiff Corporation is in the business of producing bulk sweetened condensed milk, which business was commenced on the 28th day of May, 1946.

 2. That the Plaintiff Corporation, on and after May 28, 1946, was allocated sugar by the Office of Price Administration (now the Office of Temporary Controls), said allocation up to November 1, 1946 not being based upon the functioning of the concern in a given field of activity at a given time.

 3. That on October 8, 1946, the Office of Price Administration issued Amendment 24 to Third Revised Ration Order No. 3, said Order becoming effective on October 14, 1946 with respect to allocations made after November 1, 1946.

 4. That Plaintiff's first monthly allotment of sugar under Amendment 24, aforesaid, was reduced from its allotment in the month immediately preceding the effective date of Amendment 24 by more than 90 percent. Plaintiff's milk receipts for the same comparable period dropped only approximately twenty-one (21) percent. Plaintiff's sugar allocation for the month of December as compared to milk receipts was in similar proportion.

 5. That Plaintiff has no means of processing or otherwise using its excess skimmed milk without loss unless sugar is available to it.

 6. Between November 1, 1946 and January 14, 1947, Plaintiff has been required to dispose of, by dumping into the sewer, between 250,000 and 300,000 pounds of skimmed milk which had turned sour because of lack of sugar.

 7. That as a result of the restricted allocation under Amendment 24, aforesaid, Plaintiff Corporation has been losing approximately $ 120.00 per day in the operation of its business since November 1, 1946.

 8. That Plaintiff's milk processing plant and equipment represents an investment of approximately $ 50,000.00 since the month of December, 1945; it has twelve men on its ...


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