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SECTION 17. Complaints, orders, and other processes of the Council under this section may be served by anyone duly authorized by the Council either:
(a) by delivering a copy thereof to the person to be served or to a member of his partnership to be served or the president, secretary, or other executive officer or a director of the corporation to be served.
(b) by leaving a copy thereof at the residence of the principal office or place of business of such person.
(c) by mailing a copy thereof by registered or certified mail addressed to such person at his or its residence or principal office, or place of business. The verified return of the person so serving said complaint, order or other processes setting forth the manner of said service shall be proof of the same, and the return post office receipt for said complaint, order, or other process mailed by registered mail or by certified mail as aforesaid shall be proof
of service of the same. SECTION 18. An order of the Council to cease and desist or for such other relief it deems appropriate in the circumstances shall become final
(1) upon the expiration of the time allowed for filing a complaint seeking review, if no such complaint has been duly filed within such time, but the Council may thereafter modify or set aside its order to the extent provided in the last sentence of Section 13 above; or
(2) upon the expiration of the time allowed for seeking review to the Supreme Judicial Court, if the order of the Council has been affirmed or the complaint seeking review dismissed by the Appeals Court of Massachusetts, and no petition seeking review by the Supreme Judicial Court has been duly filed; or
(3) upon the denial of a petition seeking review by the Supreme Judicial Court, if the order of the Council has been affirmed or the petition seeking review dismissed by the Appeals Court; or
(4) upon the expiration of 30 days from the date of issuance of the mandate of the Supreme Judicial Court, if such court directs that the order of the Council be affirmed or the petition seeking review dismissed.
(5) If the Supreme Judicial Court directs that the order of the Council be modified or set aside, the order of the Council rendered in accordance with the mandate of the Supreme Judicial Court shall be final upon the expiration of 30 days from the time it was rendered, unless within 30 days either party has instituted proceedings to have such order corrected to accord with the mandate, in which event the order of the Council shall become final when
so corrected. SECTION 19. If the order of the Council is modified or set aside by the Appeals Court, and if (1) the time allowed to file a petition seeking review by the Supreme Judicial Court has expired and no such petition has been duly filed, or (2) the petition seeking review by the Supreme Judicial Court has been denied, or (3) the decision of the court has been affirmed by the Supreme Judicial Court, then the order of the Council rendered in accordance with the mandate of the Appeals Court shall become final on the expiration of 30 days from the time such order of the Council was rendered, unless within such 30 days either party has instituted proceedings to have such order corrected so that it will accord with the mandate, in which event the order of the Council shall become final when so corrected.
SECTION 20. If the Supreme Judicial Court orders a rehearing; or if the case has been remanded by the Appeals Court to the Council for a rehearing and if:
(1) the time allowed for filing a petition seeking review to the Supreme Judicial Court has expired, and no such petition has been duly filed, or
(2) thể petition seeking review with the Supreme Judicial Court has been denied, or
(3) the decision of the Court has been affirmed by the Supreme Judicial Court then the order of the Council rendered upon such hearings shall become final in the same manner as through no
prior order of the Council had been rendered. SECTION 21. As used in this section "mandate" in case a mandate has been recalled prior to the expiration of 30 days from the issuance thereof, means the final mandate.
SECTION 22. Any person who violates an order of the Council after it has become final and while such order is in effect, shall forfeit and pay to the Commonwealth of Massachusetts a civil penalty of not more than $25,000.00 for each violation, which shall be accrued to the Commonwealth of Massachusetts and may be recovered in a civil action brought by the Commonwealth of Massachusetts. Each separate violation of such order shall be a separate offense, except that in case of a violation through continuing failure or neglect to obey a final order of the Council each day of continuance of such failure and neglect shall be deemed a separate offense.
SECTION 23. The Council shall also have power, in addition to the powers granted concurrently with the Attorney General:
(a) to require by general or special orders persons or corporations engaged in the distribution of food products to file with the Council in such form as the Council may prescribe annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the Council such information as it may require as to the organization, business, conduct, practices, management, and relation to other corporations,
, partnerships, individuals, of the respective persons filing such reports or answers in writing. Such reports and answers shall be made under oath or otherwise, as the Council may prescribe, and shall be filed with the Council within such reasonable period as the Council may prescribe, unless additional time be granted in any case by the Council. It shall not be an objection to a request for specific information that the person required to file such information has to compile data and information from sources within its control not otherwise previously compiled by said person,
(b) Upon the direction of the Governor or either the Senate or the House of Representatives to investigate and report the facts relating to any alleged violations of the provisions of Chapter 93A by any person engaged in the distribution of food products.
(c) To make public from time to time such portions of the information obtained by it thereunder, except trade secrets and names of customers, as it shall deem expedient in the public interest, and to make annual and special reports to the Legislature and to submit therewith recommendations for additional legislation; and to provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information.
(d) to make rules and regulations, both procedural and substantive, for the purpose of carrying out the provisions of this Act. Whenever the Council establishes rules which are prospective they shall have the force and effect of law and their promulgation shall comply with the provisions of the Massachusetts General
Laws Chapter 30A. SECTION 24. The several Departments and Bureaus of the government of the Commonwealth of Massachusetts shall when directed by the Attorney General furnish the Council, upon its request, all records, papers, and information in their possession relating to any corporation subject to any of the provisions of this Act, and shall detail from time to time such" officials and employees to the Council as the Attorney General may direct.
SECTION 25. In addition to the powers provided to the Council by Section 6 of the General Laws, Chapter 93A, the Council may order testimony to be taken by deposition in any proceedings or investigations pending under this Act at any time and any stage at such proceedings or investigations and such deposition shall be taken in a manner consistent with the Massachusetts Rule of Civil Procedure. Witnesses summoned before the Council shall be paid the same fees and mileage that are paid witnesses whose depositions are taken and the person taken same shall severally be entitled to the same fees as are paid for like services in the courts of the Commonwealth of Massachusetts. No person shall be excused from attending and testifying or from producing documentary evidence before the Council or in obedience to the request to produce documents either pursuant to Section 6 or Section 23 hereof of the ground or for the reason that the testimony or evidence, documentary or otherwise, required of it may tend to criminate him or subject him to penalty or forfeiture. But that no natural person shall be prosecuted or subjected to any penalty or forfeiture in any subsequent proceedings where the testimony or evidence he has given is used against him, provided that no natural person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying.
SECTION 26. Nothing contained in this Act shall be construed to prevent or interfere with the enforcement of the provisions of Chapter 93 or this Chapter 93A, nor shall anything contained in this Act be construed to alter, modify, or repeal Chapter 93 or other Acts to regulate commerce within the Commonwealth of Massachusetts.
F. THE MILK LEGISLATION
The Minority takes issue with only a portion of the legislation proposed by the Commission. We applaud those portions of the proposals which eliminate the artificial trade barriers created by the requirements that milk coming into Massachusetts from out of
State dairy farms be inspected and certified by a Massachusetts inspector. Uniform Federal standards some of which are higher than local standards are available to us now and we ought to take advantage of them. The Commission proposals accomplish this through a program of mandatory recipocity, requiring the Department of Agriculture to certify farms meeting the Federal standards. If it is determined for health and not trade reasons that the milk is unfit then the certificate may be withdrawn. This is as it should be.
The Commission recommends the abolition of the Milk Control Commission, a move long overdue.
One of the functions of the Milk Control Commission is to establish marketing areas for dairy farmers within the Commonwealth within which it establishes minimum producer prices. Under the majority's proposal the Department of Agriculture would retain the authority to establish marketing regions and minimum producer prices. This price setting function should, with the rest of the statute, be discarded. The Federal Government establishes minimum producer prices for most of the mid and eastern portions of the State and while in our judgment that program is of dubious merit, if the farmers in the remaining parts of the State want to join that program they should
Massachusetts should not be in the business of setting minimum prices unless it is absolutely essential to do so. The liquor industry and all other industries benefitting at the consumer's expense from our fair trade laws provide concrete examples of the pitfalls of such governmental intervention. Competition is stifled by minimum price fixing schemes however they are managed. Because the Federal Government wants to devote its resources to a program of price fixing for farmers is no reason why the Commonwealth should itself engage in that behavior.
Persons interested in seeing less government interference in private enterprise will quite probably react vigorously to the amendments suggested in Chapter 93 A. How many of those same persons benefitted by governmental minimum price regulation such as occurs through the establishment of milk marketing areas in Massachusetts or by the governmental fair trade statute will speak up against those "benigno intrusions?
The simple fact is that government, wherever possible, should avoid interfering with the competitive forces when they are actually functioning. If dairy farmers cannot succeed in the competitive struggle, the government should not prop them up through complex and protective regulatory devices. The entire system of registration and certification was in large measure conceived as a health device designed to protect Massachusetts consumers. The system and the Commission empowered to enforce it have converted the regulation into anti-competitive trade protectionism, which should be completely dismantled. The public interest is not served by a partial preservation of the system of marketing areas.
It is not suggested that because of the complex regulations governing the prices paid to producers, local marketing areas are needed so that Massachusetts dairy farmers can secure the benefits of increased utilization ratios. The system, in its simplest terms, provides that the price a farmer receives increases more than just arithmetically if the fluid milk sold increases and that separate marketing areas are essential to this scheme. Evidence of the precise nature of this increased price to the farmer was not available to the Commission. What is clear, however, is that farmers will receive more money for their products if the government sets up market areas. This iš antithical to the point of view of this Minority. We will readily accept and sponsor government involvement in the private sector for limited purposes, one of which is the promotion and protection of competition. We reject the notion of government involvement to protect competitors, be they food manufacturers, wholesalers, retailers or farmers. Respectfully submitted.