Ostrander v. Linn

The record in this case was abbreviated, pursuant to stipulation of the parties, because of the fact that only a portion of the controversy which was before the trial court is involved in the appeal.

Plaintiff's petition in equity asserted: Plaintiff is engaged in the business of buying cream in Batavia, Iowa; defendant is the Secretary of Agriculture of the State of Iowa; plaintiff has a license to operate a cream station; on June 11, 1943, an inspector for the State Department of Agriculture filed an information before a justice of the peace in Jefferson County, Iowa, charging plaintiff herein with operating his cream station without posting the price differential for various grades of cream as provided by sections 3100.23, 3100.24, and 3100.25, Code, 1939¹; plaintiff's purchases of cream were not for butter-making purposes but were exclusively for sale in the state of Illinois in the regular course of interstate commerce; accordingly, plaintiff does not maintain a price differential, pays only the first-grade price for cream, and does not post any differential in price paid; plaintiff expects to continue to purchase cream for resale on the same basis in interstate commerce; plaintiff's operations do not come within the contemplation of sections 3100.23, 3100.24, 3100.25, Code, 1939, and do not violate said statutes; defendant and his predecessor in office have, at divers times, filed separate informations against plaintiff, similar to the one now pending, and defendant threatens to continue to file others, knowing that plaintiff's operations do not violate said statutes, and will subject plaintiff to unfair, wrongful, harassing, oppressive, arbitrary acts; it is necessary and proper that there be a determination of the construction of said statutes, the proper application thereof to plaintiff's business, a declaration by the court of plaintiff's rights, status, and legal relation thereunder. The prayer was for an injunction against defendant, his agents, representatives, or inspectors, from interfering with plaintiff's business and requiring the posting of price differentials, etc.; that the court decree plaintiff's rights, status, and legal relations with defendant as affected by said sections 3100.23, 3100.24, and 3100.25, and for general equitable relief.

The answer admitted the identity of the parties, that plaintiff operated a cream station, and the pendency of the criminal proceedings before the justice of the peace, but denied all other allegations of the petition and prayed that the petition be dismissed.

The cause came on for trial May 9, 1944, and resulted in the entry of a decree on November 29, 1944. The record indicates that considerable evidence was introduced but none of it is before us. Aside from the petition and the answer, the only other parts of the record presented to us are the trial court's opinion, findings of fact, conclusions of law, decree, and the proceedings incident to perfecting the appeal and settling the record. This situation is accounted for by the fact that in this court the only assignment of error relates to the power of the court to enter a declaratory judgment. In this respect, certain matters appear to have been presented to the trial court which we must here assume without specific record to sustain our position.

While the record indicates that a temporary injunction was issued June 24, 1943 (prior to the effective date of our Rules of Civil Procedure), trial was had in accordance with said Rules. The trial court was warranted in applying the Rules of Civil Procedure to this action under the provisions of Rule 1 (b) even if it was pending before July 4, 1943. We assume that if any steps were necessary below in that regard they were taken. Hence we consider the case as though it were commenced after July 4, 1943. The trial court's opinion recites that defendant contended that, under the evidence and the allegations of the petition, the case was not one wherein a declaratory judgment should be entered, and further that, if it was one in which it would be proper, such decree is not proper herein because of the pendency of the case in justice-of-the-peace court, which was instituted prior to the commencement of this case. This contention is not predicated on the fact that this action was pending July 4, 1943, but under the theory that even though the Rules of Civil Procedure applied herein the entry of such a decree was not proper.

The trial court found the following facts: The institution of criminal prosecutions against plaintiff was not an unlawful abuse of authority; a license was issued to plaintiff to operate a cream station and has not been revoked; plaintiff has bought no cream for any purpose except to resell as cream, and all but eight lots were resold outside of Iowa; plaintiff bought cream on only one grade basis and paid current first-grade price for it. Pursuant to such facts, the court made the following conclusions of law: Plaintiff is not entitled to an injunction, but such ruling shall not prejudice the effect of the court's declaratory judgment upon the criminal proceedings and shall be without prejudice to a future application for an injunction based upon such declaratory judgment; plaintiff is the holder of a cream-station license and a "Babcock Test license"; sections 3100.23, 3100.24, and 3100.25 are not applicable to cream purchased by plaintiff for resale as cream wherever said resale is made. Pursuant to the foregoing, decree was entered denying an injunction without prejudice as aforesaid and determining plaintiff's rights, status, and legal relations to defendant under sections 3100.23, 3100.24, 3100.25, Code, 1939.

Defendant has appealed to this court but he does not here challenge the trial court's findings of fact or conclusions of law or the provisions of the declaratory judgment except as they pertain to the narrow contention that the court abused its discretion in entertaining jurisdiction to enter a declaratory judgment during the pendency of the criminal action before the justice of the peace, which was commenced before this action. Before considering the decisive question presented by this appeal, certain preliminary questions should be disposed of.

[1] I. Although not a controverted proposition in this case, it may well be noted that generally the courts have held that declaratory-judgment procedure may be employed to challenge police-power statutes of the nature of those here involved which forbid or require certain practices and provide penalties for noncompliance. See annotation in 129 A.L.R. 751; 52 Yale L.J. 445; 16 Am. Jur. (Cumulative Supp.), Declaratory Judgments, section 28.1. Pursuant to such decisions we hold that declaratory-judgment procedure was proper herein to determine plaintiff's rights, status, and legal relations with defendant under sections 3100.23, 3100.24, 3100.25, Code, 1939.

[2] II. Plaintiff contends that there was a lack of identity between the parties in the criminal action and this action. We disagree. The petition herein alleges that the criminal action was instituted by defendant, as head of the Department of Agriculture, through one of his inspectors. Defendant concedes that this is correct. The action is here brought against defendant as a representative of the state. Realistically, the controversy in each instance is between the plaintiff herein and the Department of Agriculture.

[3] III. The trial court stated in its opinion that the issues in the criminal case were not the same as those presented herein, stating as follows:

"In the criminal action in the Justice of the Peace Court the only charge is the failure to post the price differential. Under the statute it is not required to post a price differential unless such a price differential is maintained on the various grades of cream, and a price differential on various grades of cream is not required to be maintained unless the cream buyer is buying on the basis of two or more grades. Therefore, it would appear that the identical issues are not involved in both of the cases."

We cannot agree. The basis for declaratory-judgment relief herein would be the basis for the defense in the criminal action.

IV. Plaintiff contends that the proposition here asserted was not raised by defendant in the trial court. Again we do not agree. The trial court's opinion shows otherwise, the court stating as follows:

"The defendant argues that this case under the evidence and allegations of plaintiff's petition is not one wherein a declaratory judgment should be rendered, and further claims that if it is one in which originally it would be proper to render a declaratory judgment, that such judgment is not proper now because of the pendency of the case in the Justice of the Peace Court which was instituted prior to the commencement of this case." [4] V. This brings us to the decisive issue of the case, which the attorney general states thus:

"There is really only one question remaining to be decided in this action and that is, Did the court abuse its discretion in entertaining jurisdiction for the purpose of rendering a declaratory judgment when it appeared by plaintiff's own petition that there was pending before the Justice of the Peace in the same county an action between the same parties involving the same subject-matter and in which all of the issues could have been determined?"

We hold that there was no such abuse of discretion as would warrant or require a reversal at our hands.

Rule 261, Rules of Civil Procedure, provides, in part, as follows:

"The existence of another remedy does not preclude a judgment for declaratory relief in cases where it is appropriate."

The provisions for declaratory judgments, Rules 261 to 269, Rules of Civil Procedure, are patterned upon the Uniform Declaratory Judgments Act and the federal act, with certain changes, omissions, and additions, so that our Rules thereon are not identical with either the uniform act or the federal act. The sentence above quoted from our Rule 261 does not appear in section 1 of the Uniform Act (see 9 Uniform Laws Annotated 215), but is taken from the federal act. (See Rule 57, 28 U.S.C.A., following section 723c.) Counsel for plaintiff emphasize that many of the cases upon which defendant relies construe statutes or rules which do not contain that sentence. However, that is not the decisive factor in the division of authority on this question.

The attorney general relies upon many cases wherein declaratory-judgment relief has been denied because of the pendency of another action. One such case is that of Updegraff v. Attorney General, 298 Mich. 48, 298 N.W. 400, 135 A.L.R. 931. Following the publication of this opinion in 135 A.L.R., at pages 934 to 949, is an extensive annotation which includes most of the later cases on this question. While, as above indicated, some of the cases might be explained by the presence or absence of the sentence above quoted from our Rule 261 in the statute or rule construed by the particular case, we are convinced that the answer to the question we have to decide is found in the basic reasoning urged to support the decisions reached in some of the leading federal cases on this question.

In the case of Western Supplies Co. v. Freeman, 6 Cir., Ohio, 109 F.2d 693, 695, wherein a bill for a declaratory judgment was dismissed and the judgment was affirmed, Judge Arant states the rule concisely, thus:

"We are of the opinion that a suit may not be maintained under the Declaratory Judgment Act when another suit between the same parties, involving the same subject matter, is pending in another court of competent jurisdiction and the parties are therebyenabled to procure a full and immediate adjudication of theirrights." (Italics supplied.)

In the case of Aetna Cas. Sur. Co. v. Quarles, 4 Cir., S.C., 92 F.2d 321, 324, wherein declaratory-judgment relief was similarly denied, Judge Parker stated the rule thus:

"We think that this discretion should be liberally exercised to effectuate the purposes of the statute and thereby afford relief from uncertainty and insecurity with respect to rights, status and other legal relations (see Borchard, Declaratory Judgments, 101); but it should not be exercised for the purpose of tryingissues involved in cases already pending, especially where theycan be tried with equal facility in such cases, or for the purpose of anticipating the trial of an issue in a court of co-ordinate jurisdiction." (Italics supplied.)

In the case of Carbide Carbon C. Corp. v. United States Industrial Chemicals, Inc., 4 Cir., Md., 140 F.2d 47, 49, in denying declaratory-judgment relief, Judge Parker stated:

"As we have pointed out a number of times, the pendency of a prior suit involving the same issues does not require the dismissal of a suit for declaratory judgment. Aetna Casualty Surety Co. v. Yeatts, 4 Cir., 99 F.2d 665; Piedmont Fire Ins. Co. v. Aaron, 4 Cir., 138 F.2d 732. The granting of declaratory relief, however, is a matter resting in the sound discretion of the court; and the discretion is properly exercised when itappears that because of the pendency of another suit the suit fordeclaratory relief will serve no useful purpose. Aetna Casualty Surety Co. v. Quarles, supra; Maryland Casualty Co. v. Boyle Const. Co., 4 Cir., 123 F.2d 558; Brillhart v. Excess Ins. Co.,316 U.S. 491, 62 S. Ct. 1173, 86 L. Ed. 1620." (Italics supplied.)

In the case of Maryland Cas. Co. v. Faulkner, 6 Cir., Ky., 126 F.2d 175, 178, the dismissal of an action for a declaratory judgment was reversed, the court stating:

"The remedy of a declaratory judgment will be refused, granting the court has discretion to decline it, only if it will not finally settle the rights of the parties. Aetna Casualty Surety Co. v. Quarles, 4 Cir., 92 F.2d 321. It will not be refusedmerely on the ground that another remedy is available or becauseof the pendency of another suit if the controversy between theparties will not necessarily be determined in that suit. Columbian Nat. Life Ins. Co. v. Foulke, 8 Cir., 89 F.2d 261." (Italics supplied.)

In the case of Maryland Cas. Co. v. Consumers Finance Service, Inc., 3 Cir., Pa., 101 F.2d 514, 515, in reversing a dismissal of an action for a declaratory judgment, the court states:

"The granting of the remedy of a declaratory judgment is nevertheless discretionary with the court and it may be refused if it will not finally settle the rights of the parties or if it is being sought merely to determine issues involved in cases already pending. Aetna Casualty Surety Co. v. Quarles, 4 Cir.,92 F.2d 321. It may not be refused, however, merely on the ground that another remedy is available (Columbian Nat. Life Ins. Co. v. Foulke, supra) or because of the pendency of another suit,if the controversy between the parties will not necessarily bedetermined in that suit. The latter is the case here." (Italics supplied.)

From the foregoing, it will be observed that declaratory-judgment relief may be denied if there is another action then pending between the parties and, in such action, the parties will be able "to procure a full and immediate adjudication of their rights," or the issues involved in the case already pending "can be tried with equal facility," or the suit for declaratory relief "will serve no useful purpose." By the same token, if these factors are not present, the pending action should be no bar to securing relief by a declaratory judgment and, certainly, the pending action should be no bar to such relief "if the controversy between the parties will not necessarily be determined in that suit." Applying these principles to the record before us, we are convinced that there was no such abuse of discretion by the trial court as would warrant or require a reversal herein.

The opinion rendered by the trial court herein is able and revealing. In the quotation therefrom, above set out, wherein the court determined that the issues in the criminal proceedings were not identical with those presented herein, we feel that the court sensed the reason for entertaining this action but failed to accurately state such reason. If the issue before the justice of the peace were the simple fact question whether the price differentials had been posted by plaintiff herein the court could have found that that issue could have been determined "with equal facility" in the criminal proceedings under the host of cases denying declaratory-judgment relief because of the pendency of criminal proceedings. But the question was much more complicated than that and was such that it could not be determined "with equal facility" before the justice of the peace.

The questions presented by the criminal proceedings and by the record herein were not simple fact questions but rather complicated legal questions. Plaintiff herein had been issued a license to operate a cream station and also a "Babcock Test license." In the absence of plaintiff, one of defendant's agents had wrongfully removed plaintiff's licenses from his place of business. The facts were not in dispute. They presented the legal question whether plaintiff herein has in law a license to operate a cream station and a "Babcock Test license." The declaratory judgment determined that in law plaintiff possesses both such licenses. That proposition of law is not challenged in this court.

As to the posting of price differentials, it is undisputed that such notices were not in fact posted. The issue arising from this fact is whether such notices were in law required to be posted. It was necessary to show the manner in which plaintiff conducts his business and to secure a legal interpretation of the statutes which require posting of price differentials. The declaratory judgment determined, as a matter of law, that such price differentials were not required of plaintiff because: (1) Section 3100.23 by its express terms limits its application to purchases of cream "for butter-making purposes" and plaintiff purchased no cream for that purpose but only for resale as cream, so that posting of price differentials was not required of plaintiff (2) plaintiff paid but one price for all cream purchased, bought cream solely on the basis of one grade only, and uniformly paid the current first-grade cream price, so that posting of differentials was not required of him. As above stated, these propositions of law are not challenged in this court and the facts thereon were not in dispute.

If the parties herein had been limited to the criminal proceedings before the justice of the peace, with what facility would these complicated legal questions have been determined? Suppose that plaintiff herein demanded a jury trial. In the trial of a criminal case before a jury in the district court, questions of law are determined by the court in its instructions to the jury or through the direction of a verdict. But a justice of the peace has no such power. Section 10555, Code, 1939, provides, "nor can the justice give instructions to the jury." In St. Joseph Mfg. Co. v. Harrington, 53 Iowa 380, 381, 5 N.W. 568, we held that a justice of the peace has no power to instruct a jury, and, on like reasoning, we held, in Hunt v. Farmers' Ins. Co.,74 Iowa 231, 232, 37 N.W. 173, that a justice of the peace has no power to direct a verdict. How, then, could it be said that the complicated legal questions presented herein could be determined in the criminal proceedings before the justice of the peace "with equal facility"? There the parties would have such legal questions determined by a lay jury without instructions on the law. Certainly, a declaratory judgment of the district court on such legal questions stands far above such a jury verdict.

Suppose that a jury was not demanded and therefore the criminal case was tried to the justice of the peace. Ordinarily, he would be a layman. Can it be seriously contended that he could settle such complicated legal questions "with equal facility" to the judge of the district court?

Suppose that the justice or the jury decided against plaintiff herein. In Atkinson v. Chicago N.W. Ry. Co., 70 Iowa 68,29 N.W. 808, we held that a justice of the peace has no power to set aside a verdict or grant a new trial. As the question presented by the record would be whether the evidence would warrant the judgment, the only remedy would be by appeal. Anthes v. Booser,112 Iowa 511, 84 N.W. 516. The case would be for trial on its merits, de novo, in the district court. Section 10598, Code, 1939; Yost v. Gadd, 227 Iowa 621, 288 N.W. 667. In such event, the controversy would not be determined in the pending proceedings before the justice of the peace but in subsequent proceedings tried de novo on the merits before the very court that has entered the declaratory judgment herein.

By reason of the foregoing we hold: The parties herein would not be able to procure a full and immediate adjudication of the complicated legal questions that determine their rights and duties inter sese in the pending criminal proceedings before the justice of the peace; the issues in the pending criminal proceedings could not be tried and determined with equal facility; the trial before the justice of the peace would not necessarily determine the controversy between the parties; the entry of the declaratory judgment herein, determining plaintiff's rights, status, and legal relations with defendant under sections 3100.23, 3100.24, 3100.25, Code, 1939, served a definite, useful purpose; the court did not abuse its discretion in assuming jurisdiction to enter such declaratory judgment.

[5] VI. We feel that it is vitally important to again emphasize that the question here presented to us and determined by Division V of this opinion, supra, is a very narrow one. To illustrate how narrow it is we wish to stress certain important questions which are excluded from our present inquiry and decision.

The criminal offense that was presented to the justice of the peace, of course, was not a felony. Such an offense would be triable in the district court. Section 10761, Code, 1939. The considerations which support our decision in Division V, supra, would be entirely absent in the trial of such a criminal case. It is held uniformly that the pendency of such a criminal proceeding would eliminate any discretion in the trial court to entertain an action for a declaratory judgment involving the issues of law presented by such a criminal case. See annotation 135 A.L.R. 934, supra. Our holding herein is not intended to be considered in conflict with such cases. We recognize that proceedings for declaratory-judgment relief should not interfere with or interrupt such criminal cases. But that question is not before us.

Neither was the offense charged herein an indictable misdemeanor. A justice of the peace has no jurisdiction of such an offense and such a case would be triable as in the district court. Section 10669, Code, 1939. Hence, the matters relied upon in Division V, supra, would not be involved if a criminal case charging an offense that constituted an indictable misdemeanor was pending. Our holding herein has no application to such a situation and the questions presented thereby are not before us for decision.

A justice of the peace has jurisdiction of an offense involving a fine of not more than $100 or not more than thirty days' imprisonment. Section 13557, Code, 1939. Such offenses are referred to as nonindictable misdemeanors or petty offenses. These offenses, and these alone, are within the contemplation of Division V, supra. Such trials are summary and, as heretofore pointed out, are not tried in such a manner as to decide complicated legal questions with equal facility to a declaratory-judgment action in the district court. Our decision herein is, and must be, limited to this narrow question: whether the pendency of criminal proceedings for a petty offense deprives the district court of any discretion whatever to entertain a declaratory-judgment action involving questions of law that are also presented by such petty criminal proceedings. That is all that is before us.

We are not here called upon to decide whether the action for a declaratory judgment should be permitted to interrupt the trial of such a criminal case. That question is not before us. Neither are we called upon to determine what effect should be given to the declaratory judgment as applied to the criminal case. That question is not before us. All we are called on to determine herein is whether the court had any discretion and, if so, whether it was abused. All we decide is that, in such a particular situation, the court had discretion and that it did not abuse it.

[6] VII. There is another limitation on our holding in Division V, supra, which should be emphasized. It is that, in this case, the action for a declaratory judgment is directly concerned with the operation of a legitimate business enterprise, concerning which the state, in the exercise of its police power, has imposed valid restrictions the legal effect of which is debatable, and, in good faith, the plaintiff asks to be advised what such restrictions mean in the eyes of the law. That such a problem is one to be solved by a declaratory-judgment action is ably demonstrated by Professor Borchard, in 52 Yale L.J., 445, 446, supra, wherein he states:

"One of the principal purposes of the declaratory action is the removal of clouds from legal relations. By dissipating peril and insecurity and thus stabilizing legal relations, it avoids the destruction of the status quo, and assures a construction or interpretation of the law before rather than after breach or violence. * * *

"Possibly in no branch of litigation is the declaration more useful than in the relations between the citizen and the administration. With the growing complexity of government and the constantly increasing invasions of private liberty, with ever widening powers vested in administrative boards and officials, the occasions for conflict and dispute are rapidly augmenting in frequency and importance. Yet the very fact that such disputes turn mainly upon questions of law, involving the line marking the boundary between private liberty and public restraint, between private privilege and immunity, on the one hand, and public right and power, on the other, makes this field of controversy peculiarly susceptible to the expeditious and pacifying ministrations of the declaratory judgment. * * *

"The imposition of governmental requirements as a condition of the exercise of private rights, such as engaging in business, erecting buildings, or using public facilities, is an inherent element of modern government. Such requirements are frequently accompanied by the sanction of a criminal penalty for violation. But in a constitutional government only legal demands need to be obeyed, and the question arises whether the legality of the particular requirement can be put to the test in advance of enforcement or only after it has been imposed and observed, or, in event of refusal to obey, only on the suit for a criminal penalty. Speed is here a factor, and it is a sound view that the administration should not be unduly hampered by the courts in the enforcement of its demands.

"By the construction placed upon declaratory actions in many jurisdictions the individual, threatened by the imposition of governmental demands and requirements, such as license, fee, tax, or police-power restriction, may put to the test the legality of the restriction without risking the penalties of disobedience or the hazards and expense of injunction. Thus businessmen, notified to change their methods of doing business and threatened with a criminal penalty for violation, have claimed a declaration of their privilege to conduct their business free from the requirement and penalty and have obtained a conclusive construction of the administrative order before changing the status quo, without chancing the risks and precarious outcome of a bill of injunction."

A careful review of the decided cases has failed to produce a single case where a court has construed a rule or statute on declaratory judgments containing a provision such as we have in Rule 261 (the existence of another remedy does not preclude a judgment for declaratory relief in cases where it is appropriate) and the court has carefully analyzed the situation of a proceeding in a justice court involving a petty offense and compared the facility of such a proceeding with a declaratory-judgment action in the district court. One of the cases upon which appellant relies herein is that of Updegraff v. Attorney General, supra, 298 Mich. 48, 298 N.W. 400, 135 A.L.R. 931. In that case the Michigan statute did not contain the sentence above quoted from our Rule 261, and the court did not carefully analyze the facility of summary proceedings in a justice court as contrasted with the far more adequate machinery afforded by a declaratory-judgment action in the district court. We do not regard such decision as persuasive here.

Language in some other cases is somewhat regrettable and has prompted Professor Borchard to conclude, 52 Yale L.J. 493, as follows:

"(7) That the broad conception of `crimes' and `criminal' law should be analyzed and broken down, and police power measures carrying a penalty should no longer be classified as `crimes' or exposed to the same methods of adjudication as crimes;

"(8) That on the contrary, the victim, target or subject of these police power measures should be enabled to challenge their constitutionality, applicability and construction by the simple method of declaratory adjudication, and thus dissipate the mass of judicial detritus which has accumulated around the adjudication of legislative prescriptions and so largely frustrated an efficient administration of justice."

[7] Confining our decision herein to the narrow question that is before us, we are in accord with Professor Borchard's suggestions as applied to prosecutions of petty offenses before a justice of the peace. They are not to be classified with indictable offenses tried in the district court, or, if tried elsewhere, tried in accord with the procedure prescribed for the district court, when the petty offenses are, as here, police-power measures. When complicated legal questions are presented by such police-power measures, the pendency of a petty criminal proceeding in the justice court should not deprive the district court of any discretion whether or not to entertain a declaratory-judgment action if, in the sound exercise thereof, the court concludes that such legal questions cannot be settled with equal facility by the justice of the peace.

If the beleaguered businessman stands trial before the justice and is acquitted, the law has not been adequately clarified as to his business and, of course, he has nothing from which to appeal to the district court. His remedy still is by declaratory-judgment proceedings. If the action before the justice is an absolute bar to such relief, to gain a decision by the district court he should plead guilty and appeal. He is then confined to the limited pleadings of a summary proceedings and might have difficulty in broadening the issues to adequately solve his problem. Why not give the district court some discretion in such a situation? Fortunately, the question is an open one in this jurisdiction. The position we now take may perhaps seem to be an advanced one. But, as heretofore demonstrated, our decision is supported by sound principles of law and logic. No court has made the careful analysis which we have here undertaken. No court has passed upon the exact question we here decide. There is a first time for everything. The law must keep pace with the times. With the vast development of administrative law, legal business is being rapidly transferred from the courts to various boards and bureaus because the courts are accused of being too legalistic and not sufficiently realistic. We take this opportunity to demonstrate that courts can be realistic as well as boards and bureaus.

The cause is — Affirmed.

HALE, SMITH, MULRONEY, MANTZ, and WENNERSTRUM, JJ., concur.

OLIVER, J., and BLISS, C.J., and GARFIELD, J., dissent.

¹ Such statutes are as follows:

3100.23 Basis of purchase. All purchases of cream for butter-making purposes shall be made on the basis of sweet cream, first grade cream and second grade cream.

3100.24 Price differential. Every person owning or operating a creamery, or cream station, or cream vehicle route and engaged in the business of buying two or more grades of cream shall maintain a price differential between and grades of not less than one cent per pound of butterfat.

3100.25 Posting. Said differential and the price paid for the various grades of cream purchased, shall be continuously posted in a conspicuous place in each creamery, cream station and vehicle used in transporting purchased cream, controlled or managed by the party so purchasing.