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District Court of Appeal, First District, Division 3, California.

Charles PAUL, Director of the Department of Agriculture of the State of California, Plaintiff and Appellant, v. CREAMCREST DAIRY PRODUCTS COMPANY, a corporation, dba Jersey Queen Farms, 4875 Stevens Creek Road, Santa Clara, California, Defendant and Respondent.

Civ. 21399.

Decided: June 01, 1964

Stanley Mosk, Atty. Gen. of California, John Fourt, Deputy Atty. Gen., Sacramento, for appellant. Lawrence Edwards, Stockton, for respondent.

Appellant, as Director of the Department of Agriculture of the State of California, acting under statutory authority, established the minimum retail price for milk to be sold in the Santa Clara County Marketing area. Appellant brought suit against respondent, a milk distributor and retailer, for alleged violations of the marketing order. Appellant asked for an injunction to prevent further violations and also claimed civil penalties under Agricultural Code, section 4410. After trial, the court concluded that appellant's marketing order established an invalid classification and hence was unconstitutional. (Calif.Const. Art. 1, § 11.) The court denied an injunction and refused civil penalties.

After entry of the judgment herein, and prior to hearing of the appeal, appellant revoked respondent's fluid milk distributor's license, and the revocation has become final. It is undisputed also that respondent is bankrupt, and that it has ceased to do business pursuant to a decree of the United States District Court entered in the bankruptcy proceedings. On these facts, we find the case to be moot. Respondent has neither the right nor the power to continue its business or to operate as a milk distributor, and thus even if appellant should be adjudged correct in all his contentions, there is no need for any injunction. Moreover, pursuit of claimed civil penalties against the bankrupt corporation would be but a fruitless act.

We are urged, however, to decide the appeal on its merits, in order that the validity of similar price regulations issued in other marketing areas of the state may be determined. It is not the function of an appellate court to render opinions which are purely advisory in nature. Our duty is to decide actual controversies between interested parties, by a judgment which can be carried into effect by the parties to the appeal and not to give opinions upon moot questions which cannot affect the matters in issue in the case before us. (Consol. Vultee Aircraft Corp. v. United A. etc. Workers, 27 Cal.2d 859, 862–863, 865, 167 P.2d 725.) Thus we do not reach the merits of this appeal.

Where a case has become moot while the appeal is pending the proper procedure is to reverse the judgment below and direct dismissal of the action. This procedure effectively prevents any implication of res judicata which might arise where dismissal is ordered at the appellate level. (See United States v. Munsingwear, 340 U.S. 36, 39, 40, 71 S.Ct. 104, 95 L.Ed. 36.)

The judgment is reversed, with directions to dismiss the action. The parties to bear their own costs on appeal.

SALSMAN, Justice.

DRAPER, P. J., and DEVINE, J., concur.

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Docket No: Civ. 21399.

Decided: June 01, 1964

Court: District Court of Appeal, First District, Division 3, California.

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