adopting the Superior Court dissent as this Court's opinionSummary of this case from W. Phila. Achievement Charter Elementary Sch. v. Sch. Dist. of Phila.
May 25, 1936.
June 26, 1936.
Constitutional law — Due process — Bill of Rights — Regulation of businesses — Public interest — Milk business — Price fixing — Delegation of legislative power — Act of January 2, 1934, P. L. 174 — Title — Article I, section 9, of Constitution — Article II, section 1 — Article III, section 3 — Construction of statutes.
1. The Milk Control Law of January 2, 1934, P. L. 174, which regulates the milk industry by requiring dealers to be licensed by a board created under its provisions, prohibiting those not so licensed from dealing in milk and milk products, and giving said board the right to fix the minimum prices to be paid the producer and the minimum and maximum prices to be charged the consumer, does not violate article I, section 9, of the state Constitution, which provides that no one can be deprived of his liberty or property unless by the law of the land, nor section 1, of the Bill of Rights, which provides that the people have the inherent and indefeasible right of enjoying and defending life and liberty and of acquiring, possessing and protecting property. [260-76]
2. The milk industry, under conditions existing to-day, is of public concern and may be regulated in the public interest, in the exercise of the police power of the State. [264-6]
3. The power of the State to regulate industry may be enlarged, as conditions change, so as to embrace new industries, or narrowed so as to take away the right of regulation previously exercised. [263-4]
4. The fact that a statute enacted primarily for the benefit of the general public may also produce special benefit or advantage to a particular class does not in itself operate to render the act unconstitutional. [272-3]
5. The Act of 1934 is not unconstitutional on the ground that it contains an unlawful delegation of the legislative power in violation of article II, section 1, of the Constitution. [277-9]
6. Party who stipulated that the procedure of the board before the date of the revocation of his license as a milk dealer was regular, that the facts found by the board were correct, and that the only question before the appellate court was the constitutionality of the Act of 1934, held precluded on appeal from asserting the alleged failure of the board to make complete and definite findings of fact. [279-80]
7. The Act of 1934 is not in violation of article III, section 3, of the Constitution in that its title contains no reference to the right of the Milk Control Board to revoke for cause a license issued by it. [280-81]
8. In determining the constitutionality of a state statute, the inquiry is as to whether the state legislature is forbidden, either by the federal Constitution or by its own state Constitution, to legislate on the subject and pass the act under review. [259-60]
9. In order to declare an Act of the General Assembly unconstitutional, its want of authority to pass the act must clearly appear, — to doubt is to decide in favor of its constitutionality. 
Mr. Justice SCHAFFER and Mr. Justice DREW dissented.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 259, Jan. T., 1936, by defendant, from certification by Superior Court, Oct. T., 1935, No. 239, reversing decree of C. P. Lancaster Co., Dec. T., 1934, No. 34, in case of Wayne L. Rohrer, trading as Rohrer's Med-O Farms Dairy, v. Milk Control Board. Judgment reversed.
Appeal to court of common pleas from revocation of license by Milk Control Board.
Decree entered dismissing appeal, opinion by ATLEE, P. J. Plaintiff appealed to Superior Court. Decree of court of common pleas reversed by Superior Court.
The facts are stated in the dissenting opinion of President Judge KELLER of the Superior Court, as follows:
I feel obliged to record my dissent.
The Milk Control Act under review in this case is, admittedly, identical in essential respects with the New York Milk Control Act, which was passed upon by the Supreme Court of the United States in Nebbia v. New York, 291 U.S. 502. The decision in that case, therefore, settles, beyond question, that our Milk Control Act does not violate the "Due Process" clause of the Fourteenth Amendment to the federal Constitution. Dicta to the contrary in prior cases, which are cited in the opinion of the court in this case, must be regarded as disavowed or overruled. The question before us is, Does it violate the corresponding "Due Process" clause in our state Constitution (article I, section 9), or the first section of the Bill of Rights (article I), of our state Constitution, to wit, "NATURAL RIGHTS OF MANKIND. All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness"? This declaration was copied verbatim from the Constitutions of 1838 (article IX, section 1) and 1790 (article IX, section 1) and is the practical equivalent of clause 1, of the Declaration of Rights in the Constitution of 1776; so that it reaches back to the very beginnings of our existence as a Commonwealth.
Laws of 1933 (N.Y.), chapter 158.
". . . nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land." See Constitution of 1776, Declaration of Rights, clause 9, Constitution of 1790, article IX, section 9, verbatim, Constitution of 1838, article IX, section 9, verbatim.
"First. That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."
In passing upon this question we must bear in mind that the constitutionality of a state statute is on a different footing from that of an act of congress. As our federal government, while possessing plenary authority within its allotted sphere or province, is one of delegated powers, the inquiry respecting a federal statute is, Has congress, by express provision or necessary implication, been given authority to legislate on the subject under consideration and pass the act under review? But as respects a state statute, the inquiry is the converse — Has the state legislature been forbidden, either by the federal Constitution or by its own state Constitution, to legislate on the subject and pass the act under review? For by the Tenth Amendment to the federal Constitution it is declared: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." And, as respects state legislation, in order to declare an Act of the General Assembly unconstitutional, its want of authority to pass the act must clearly appear, — to doubt is to decide in favor of its constitutionality: Com. v. Lukens, 312 Pa. 220, 223, 167 A. 167; Keator v. Lackawanna Co., 292 Pa. 269, 273, 141 A. 37; Kitty Roup's Case, 81* Pa. 211.
We have already seen that the passage of the act in question is not prohibited to the states by the federal Constitution. A careful examination of article III of our present state Constitution, which deals with "Legislation" discloses no express prohibition of, or limitation on the power of the General Assembly to pass, the act under consideration. The case therefore narrows down to the inquiry whether it is impliedly forbidden by the declarations (1) that the people have the inherent and indefeasible right of enjoying and defending life and liberty and of acquiring, possessing and protecting property, and (2) that no one can be deprived of his liberty or property unless by the law of the land. Does this general language forbid, as a deprivation of private property or an unwarrantable interference with it, the General Assembly, in the emergent conditions now existing, from passing a statute regulating the milk industry by requiring dealers to be licensed by a board created under its provisions, prohibiting those not so licensed from dealing in milk and milk products, and giving said board the right to fix the minimum prices to be paid the producer and the minimum and maximum prices to be charged the consumer, with the declared aim and purpose in view of acting for the protection of the health, welfare and comfort of the people of the State? I do not think that a reasonable interpretation of the general language of sections 1 and 9 of the Bill of Rights warrants the courts in holding that it amounts to a clear and explicit prohibition of the General Assembly from so legislating when such action is deemed necessary for the public welfare in a unique and basic industry such as the production, distribution and supply of milk.
Section 1 of our Bill of Rights was first promulgated in 1776 and the construction given to it by our law-makers shortly after its adoption is of some help in its present interpretation. We find that on April 1, 1778, (Ch. 795, 9 Stat. at Large 236) an act was passed regulating the price of flax, flour, wheat, rye, corn, barley, oats, whiskey, cider, beer, pork, beef, butter, tallow, cheese, wool, hemp and bar iron. It is true that on May 251, 1778, (Ch. 799) the act was suspended until September 8, 1778, and on September 9, 1778, (Ch. 812) it was repealed; but it shows that the fixing by the legislature of the prices of staple commodities, generally used by the inhabitants, was not deemed a violation of the Bill of Rights. So, too, on April 5, 1779, (Ch. 845, 9 Stat. at Large 387-390) an act was passed, inter alia, "For the regulation of the markets in the City of Philadelphia," which provided (section 5) "That it shall and may be lawful to and for any three justices of the peace, in and for the City of Philadelphia, or any of the counties within this State, and they are hereby empowered and required, as often as there shall be occasion, to set, ascertain and appoint the assize and weight of all sorts of bread which shall be made for sale, sold or exposed to sale within the said city and liberties, or any county of the State, and the price to be paid for the same, as fully to all intents and purposes, as the mayor or recorder, and any two of the aldermen of the said city ought or could have done by the laws of the Province of Pennsylvania in force on the fourteenth day of May, one thousand seven hundred and seventy-six." These statutes, and many others which might be dug up from the past, were among those referred to by Chief Justice WAITE in Munn v. Illinois, 94 U.S. 113, 125, 132: "Under these powers [that is, the police powers] the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, etc., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. To this day, statutes are to be found in many of the states upon some or all these subjects; and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property. . . . From this it is apparent that, down to the adoption of the Fourteenth Amendment, it was not supposed, that statutes regulating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. . . . Under such circumstances, it is difficult to see why, if the common carrier, or the miller, or the ferryman, or the innkeeper, or the wharfinger, or the baker, or the cart man or the hackney-coachman, pursues a public employment and exercises 'a sort of public office,' these plaintiffs in error [public warehousemen] do not. . . . Certainly, if any business can be clothed 'with a public interest, and cease to be juris privati only,' this has been. It may not be made so by the operation of the Constitution of Illinois or this statute, but it is by the facts" (italics supplied).
Repealed February 26, 1801, chapter 2207.
See "Business Regulation in Early Pennsylvania," Temple Law Quarterly, February, 1936 (volume X, No. 2), pages 155-178.
It seems clear to me that if statutes regulating, at one time or another, ferries, common carriers, hackmen, bakers, millers, wharfingers and innkeepers were not interferences with private property, contrary to the Bill of Rights, a statute regulating the modern milk industry is not violative of that constitutional provision; in view of the fact that it is a unique and basic industry absolutely necessary for the health and well-being of the whole people and there is just ground for the enactment of the statute in the depressed condition of the productive end of the industry, with the reasonable expectation that if it continues it will result in widespread harm and injury to the general public. Certainly there is nothing fixed and static about the industries or businesses which may be regulated in the public interest, in the exercise of the police power of the State. As conditions change the right of regulation may be enlarged, so as to embrace other industries, or narrowed so as to take away the right of regulation previously exercised. Thus it has been extended so as to embrace public warehousemen ( Munn v. Illinois, supra; Budd v. N Y, 143 U.S. 517; Brass v. Stoeser, 153 U.S. 391); private carriers competing with common carriers ( Stephenson v. Binford, 287 U.S. 251, 274); the business of fire insurance ( German Alliance Ins. Co. v. Kansas, 233 U.S. 389); stockyards ( Cotting v. Kansas City Stockyards Co., 183 U.S. 79, 85); banks and banking ( Noble State Bank v. Haskell, 219 U.S. 104). Mr. Justice HOLMES, in Block v. Hirsh, 256 U.S. 1357, 155, said: "Circumstances may so change in time or so differ in space as to clothe with such an interest [that is, with a public interest] what at other times or in other places would be a matter of purely private concern." And in German Alliance Ins. Co. v. Kansas, supra, Mr. Justice McKENNA said: "They [the cases cited] demonstrate that a business, by circumstances and its nature, may rise from private to be of public concern, and be subject, in consequence, to governmental regulation" (page 411). Mr. Justice SUTHERLAND in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, said (pages 386-7): "Building zone laws are of modern origin. They began in this country about twenty-five years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect to use and occupation of private lands in urban communities. Regulation, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they tire now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise."
The same thing can be said of some of our modern industries, particularly, the milk industry. In the early days of our existence as a State, even in town and urban communities, it was not uncommon for householders to keep their own cow, and the distribution and supply of milk was a comparatively simple matter, largely local in scope and operation. To-day it is expanded so as to be state-wide and even interstate in character. Exacting regulations looking to the public health have already been enacted, which greatly increase the cost of production. Practically no milk is produced for private consumption in town and city, and dairy farming has become a widespread industry, subject already to much regulation and inspection, on which the health and well-being of the people is largely dependent. The milk industry is not only absolutely vital to the health and well-being of the whole people, and especially growing children, but it is also unique and in a class by itself because (1) milk cannot be kept by the producer, but must be delivered to the dealer within twenty-four hours of production; (2) the supply must exceed the demand by a reasonable margin in order to provide for emergencies, and this excess over the normal demand be put to less profitable uses and consequently paid for at a smaller price; (3) the method of payment is based on how it is utilized by the dealer, who reports to the producer the uses made of it; (4) it must be handled with the utmost care from start to finish and is hedged about by a host of sanitary regulations, for the protection of the public, because it is a most fertile field for the growth of bacteria. These facts make the dairy farmer or producer dependent for his return on the use to which the dealer to whom he delivers it puts it. His commodity and the price he receives for it are so far out of his control that, as a matter of fact, his supposed freedom of contract is largely illusory and at the mercy of the dealer unless the legislature intervenes for his protection; not primarily for his benefit, but only secondarily or incidental to the main purpose of promoting the public welfare by seeing to it that an adequate supply of pure milk is available at a price reasonable to the public, the dealer and the producer. The collection, transportation, distribution, and supply of dairy products has gravitated into the hands of a comparatively few dealers, as compared with former conditions. One of the results of the process has been to lower the return to the producer so that in many cases it is less than the cost of production, and commonly does not afford him reasonable compensation for his labor nor a fair return on his invested capital. A prolonged continuance of this condition would necessarily result in cutting down the herds of dairy cows, with a consequent shortage of product and corresponding high or exorbitant prices in a commodity absolutely essential for the health and well-being of our people, especially young children. To say that the "Due Process" clause in our Bill of Rights, or the declaration that all men have certain inherent and indefeasible rights among them those of acquiring, possessing and protecting property, prevents the State from dealing with a situation of this nature, with consequences so fraught with harm and danger to the general public, is carrying its meaning far beyond what anyone contemplated when it was first promulgated, or even when last adopted as part of our present Constitution. Since then we have regulated and licensed so many businesses and professions that it is difficult for the average lawyer — let alone a layman — to keep up with them, and none of them surpasses, — if it equals — in importance to public health and well-being, the business of producing and supplying milk and dairy products to the public. Accountants, architects, beauty culturists, dentists, engineers, midwives, nurses, pharmacists, physicians and surgeons, plumbers, real estate brokers, undertakers, veterinarians, are all required to be licensed, or registered, after examination, before they can lawfully practice their professions, or pursue their business, respectively, and their liberty of contract, as respects the employment of their services, is correspondingly limited and circumscribed.
The point in mind cannot be better expressed than in the opinion of Mr. Justice ROBERTS in the Nebbia case, from which I quote as follows — (omitting the notes, which refer to the cases supporting the text): "Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest. . . . These correlative rights, that of the citizen to exercise exclusive dominion over property and freely to contract about his affairs, and that of the State to regulate the use of property and the conduct of business, are always in collision. No exercise of the private right can be imagined which will not in some respect, however slight, affect the public; no exercise of the legislative prerogative to regulate the conduct of the citizen which will not to some extent abridge his liberty or affect his property. But subject only to constitutional restraint the private right must yield to the public need. The Fifth Amendment, in the field of federal activity, and the Fourteenth, as respects state action, do not prohibit government regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. It results that a regulation valid for one sort of business, or in given circumstances, may be invalid for another sort, or for the same business under other circumstances, because the reasonableness of each regulation depends upon the relevant facts. . . . The court has repeatedly sustained curtailment of enjoyment of private property, in the public interest. The owner's rights may be subordinated to the needs of other private owners whose pursuits are vital to the paramount interests of the community. The State may control the use of property in various ways; may prohibit advertising billboards except of a prescribed size and location, or their use for certain kinds of advertising; may in certain circumstances authorize encroachments by party walls in cities; may fix the height of buildings, the character of materials, and methods of construction, the adjoining area which must be left open, and may exclude from residential sections offensive trades, industries and structures likely injuriously to affect the public health or safety; or may establish zones within which certain types of buildings or businesses are permitted and others excluded. And although the Fourteenth Amendment extends protection to aliens as well as citizens, a state may for adequate reasons of policy exclude aliens altogether from the use and occupancy of land. Laws passed for the suppression of immorality, in the interest of health, to secure fair trade practices, and to safeguard the interests of depositors in banks, have been found consistent with due process. These measures not only affected the use of private property, but also interfered with the right of private contract. Other instances are numerous where valid regulation has restricted the right of contract, while less directly affecting property rights. The Constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases. Certain kinds of business may be prohibited; and the right to conduct a business, or to pursue a calling, may be conditioned. Regulation of a business to prevent waste of the state's resources may be justified. And statutes prescribing the terms upon which those conducting certain businesses may contract, or imposing terms if they do enter into agreements, are within the state's competency. Legislation concerning sales of goods, and incidentally affecting prices, has repeatedly been held valid. In this class fall laws forbidding unfair competition by the charging of lower prices in one locality than those exacted in another, by giving trade inducements to purchasers, and by other forms of price discrimination. The public policy with respect to free competition has engendered state and federal statutes prohibiting monopolies, which have been upheld. On the other hand, where the policy of the state dictated that a monopoly should be granted, statutes having that effect have been held inoffensive to the constitutional guarantees. Moreover, the state or a municipality may itself enter into business in competition with private proprietors, and thus effectively although indirectly control the prices charged by them. . . . The touchstone of public interest in any business, its practices and charges, clearly is not the enjoyment of any franchise from the state: Munn v. Illinois, supra. Nor is it the enjoyment of a monopoly; for in Brass v. North Dakota, 153 U.S. 391, a similar control of prices of grain elevators was upheld in spite of overwhelming and uncontradicted proof that about six hundred grain elevators existed along the line of the Great Northern Railroad, in North Dakota; that at the very station where the defendant's elevator was located two others operated; and that the business was keenly competitive throughout the state. In German Alliance Insurance Co. v. Lewis, 233 U.S. 389, a statute fixing the amount of premiums for fire insurance was held not to deny due process. Though the business of the insurers depended on no franchise or grant from the state, and there was no threat of monopoly, two factors rendered the regulation reasonable. These were the almost universal need of insurance protection and the fact that while the insurers competed for the business, they all fixed their premiums for similar risks according to an agreed schedule of rates. The court was at pains to point out that it was impossible to lay down any sweeping and general classification of businesses as to which price regulation could be adjudged arbitrary or the reverse. Many other decisions show that the private character of a business does not necessarily remove it from the realm of regulation of charges or prices. The usury laws fix the price which may be exacted for the use of money, although no business more essentially private in character can be imagined than that of loaning one's personal funds: Griffith v. Connecticut, 218 U.S. 563. Insurance agents' compensation may be regulated, though their contracts are private, because the business of insurance is considered one properly subject to public control: O'Gorman Young v. Hartford Fire Ins. Co., 282 U.S. 251. Statutes prescribing in the public interest the amounts to be charged by attorneys for prosecuting certain claims, a matter ordinarily one of personal and private nature, are not a deprivation of due process: Frisbie v. United States, 157 U.S. 160; Capital Trust Co. v. Calhoun, 250 U.S. 208; Calhoun v. Massie, 253 U.S. 170; Newman v. Moyers, 253 U.S. 182; Yeiser v. Dysart, 267 U.S. 540; Margolin v. United States, 269 U.S. 93. A stockyards corporation, 'while not a common carrier, nor engaged in any distinctively public employment, is doing a work in which the public has an interest,' and its charges may be controlled: Cotting v. Kansas City Stockyards Co., 183 U.S. 79, 85. Private contract carriers, who do not operate under a franchise, and have no monopoly of the carriage of goods or passengers, may, since they use the highways to compete with railroads, be compelled to charge rates not lower than those of public carriers for corresponding services, if the state, in pursuance of a public policy to protect the latter, so determines: Stephenson v. Binford, 287 U.S. 251, 274. It is clear that there is no closed class or category of businesses affected with a public interest, and the function of courts in the application of the Fifth and Fourteenth Amendments is to determine in each case whether circumstances vindicate the challenged regulation as a reasonable exertion of governmental authority or condemn it as arbitrary or discriminatory: Wolff Packing Co. v. Industrial Court, 262 U.S. 522, 535. The phrase 'affected with a public interest' can, in the nature of things, mean no more than that an industry, for adequate reason, is subject to control for the public good. In several of the decisions of this court wherein the expressions 'affected with a public interest,' and 'clothed with a public use,' have been brought forward as the criteria of the validity of price control, it has been admitted that they are not susceptible of definition and form an unsatisfactory test of the constitutionality of legislation directed at business practices or prices. These decisions must rest, finally, upon the basis that the requirements of due process were not met because the laws were found arbitrary in their operation and effect. But there can be no doubt that upon proper occasion and by appropriate measures the state may regulate a business in any of its aspects, including the prices to be charged for the products or commodities it sells. . . . The lawmaking bodies have in the past endeavored to promote free competition by laws aimed at trusts and monopolies. The consequent interference with private property and freedom of contract has not availed with the courts to set these enactments aside as denying due process. Where the public interest was deemed to require the fixing of minimum prices, that expedient has been sustained. If the lawmaking body within its sphere of government concludes that the conditions or practices in an industry make unrestricted competition an inadequate safeguard of the consumer's interests, produce waste harmful to the public, threaten ultimately to cut off the supply of a commodity needed by the public, or portend the destruction of the industry itself, appropriate statutes passed in an honest effort to correct the threatened consequences may not be set aside because the regulation adopted fixes prices reasonably deemed by the legislature to be fair to those engaged in the industry and to the consuming public. And this is especially so where, as here, the economic maladjustment is one of price, which threatens harm to the producer at one end of the series and the consumer at the other. The Constitution does not secure to anyone liberty to conduct his business in such fashion as to inflict injury upon the public at large, or upon any substantial group of the people. Price control, like any other form of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary, and unwarranted interference with individual liberty."
In the early part of his opinion (pages 515 to 522) Mr. Justice ROBERTS set forth in detail the circumstances which led the Legislature of New York, after a full investigation by a joint committee, appointed to examine into the subject, the results of which were embodied in a full and comprehensive report, to enact the legislation under review in the Nebbia case, and they establish beyond question the necessity for some action looking to the relief of the dairy industry, if widespread calamity to the general public was to be avoided, and demonstrate that the means chosen to remedy the mischief was not unreasonable, arbitrary or capricious but had a real and substantial relation to the object sought to be attained. That like or similar conditions prevailed in this State cannot successfully be gainsaid. The subject was sufficiently important and threatening to cause the appointment of a joint legislative committee — See Joint Resolution continuing its appointment, Pamphlet Laws, 1933, page 1034 — and the preamble to the statute under consideration (Act of January 2, 1934, P. L. 174 — Special Session, 1933-34) specifically recognizes the existence in this State of conditions present in New York. It is wholly immaterial that the Joint Legislative Committee of this State may not have presented its completed report. Conditions are so similar in the two states — they adjoin, and both have metropolitan districts, and many urban communities as well as rural districts — that our General Assembly may have accepted the results of the 473-page report of the Joint Legislative Committee of New York and acted upon it. It would not be an unwarrantable action to do so.
Nor does the fact that the statute, while enacted primarily for the benefit of the general public, may also produce special benefit or advantage to the dairy farmers or milk producers of the Commonwealth, operate to render the act unconstitutional. It was held in Peterson Baking Co. v. Bryan, 290 U.S. 570, 575, (opinion by Mr. Justice BUTLER) that where a statute regulating the weight of loaves of bread has the double purpose of protecting customers from short weight and of protecting the bakers from unfair competition, it will not be held unconstitutional as to bakers unless shown to be so in both respects. So, in this case, in the opinion of the legislature, no permanent removal of the conditions which threaten the general public can be secured until a more equitable division is made of the money paid by the consumer, and a larger and more stable proportion is secured to the farmer and producer. If this is correct, — and there is no valid basis for the courts to refuse to accept it, — the interests of the general public are, to some degree, bound up with those of the producer and the fact that the general good flowing to the public will carry along with it a particular good to the milk producer, does not render the statute unconstitutional.
It may be that the results to be obtained will not measure up to those anticipated by the lawmaking branch, but that is not the lookout of courts. Its effects, certainly, cannot be measured until it is given a fair trial. If it proves not to be efficacious, the lawmaking body will, no doubt, repeal it. The wisdom of legislation, if constitutional, is not a matter for inquiry by the courts.
The cases chiefly relied upon in the majority opinion for holding the Milk Control Act to be in conflict with our constitutional guaranties against depriving the people of liberty or property unless by the law of the land, and protecting them in their enjoyment of liberty and in their right to acquire, possess and protect property fall into two classes: (1) Decisions of the Supreme Court of the United States dealing with the Fourteenth Amendment to the federal Constitution and (2) cases of our own appellate courts. As to the former in so far as they express dicta referable to the milk industry they are definitely departed from and overruled by the Nebbia case, and the later cases of the United States Supreme Court which reaffirm that decision. The Pennsylvania cases are Godcharles v. Wigeman, 113 Pa. 431, 6 A. 354, and Com. v. Brown, 8 Pa. Super. 339. The Act reviewed in the former sought to compel corporations engaged in mining and manufacturing to pay their employees in cash or in orders payable in cash instead of by orders on company stores, which was the mischief intended to be remedied. Following the above decision of our Supreme Court, in 1886, that the remedy for the mischief in question — which, by the way, was a very real one and is now generally so recognized — could not be applied in that form, the legislature in 1891 passed an act (June 9, 1891, P. L. 256) which has not been declared unconstitutional, forbidding mining and manufacturing companies to operate company stores selling products other than their own manufacture. In Com. v. Brown, 8 Pa. Super. 339, the act under consideration was one which required bituminous coal to be weighed before it was screened so that the miner might be paid for all that he had mined. It requires little reflection to see that both of these statutes which were held to be in conflict with our Bill of Rights affected nobody but the employees (1) of mining and manufacturing companies and (2) of bituminous coal companies. They had no relation to the general public or the health and well-being of the people of the whole State. Beneficial as those statutes may have been in purpose the public at large were not affected by them. They were enacted with the purpose of benefiting the employees of certain classes of corporations and no one else. The people at large were not affected by them. The distinction between those acts and the one now under consideration is apparent. On the other hand in Mahon v. Penna. Coal Co., 274 Pa. 489 (1922), 118 A. 491, the Supreme Court of Pennsylvania, having regard to the public welfare of a large and important section of the Commonwealth, upheld as constitutional and not in conflict with the same sections of our Bill of Rights as are now under consideration an act of assembly which in effect nullified and set aside contracts relieving anthracite coal operators of supporting the surface above their mines. The court said: "The anthracite coal field of Pennsylvania comprises a large area, on the surface of which have grown up, and now exist, many cities, boroughs and villages, containing a population of approximately a million persons. When this district was sparsely peopled, the caving-in of the surface was not of public moment; but, within the past fifteen or twenty years, it has become a matter of widespread notoriety that these disturbances menace the safety and material welfare of the inhabitants of communities in that part of the State. During the period mentioned, the facts have been put before the public, not only by news of the collapse of streets and the fall of buildings, but also through the reports of commissions created by joint resolutions of the legislature and by means of numerous proposed statutes, antedating the present law, introduced into that body, some of which passed and others did not; likewise, by messages from the governor of the Commonwealth addressed to the General Assembly. The conditions that gave rise to the act are summarized in a preamble thus: 'Whereas the anthracite coal industry in this Commonwealth has been and is being carried on in populous communities in such a manner as to remove the entire support of the surface of the soil to such an extent as to result in wrecked and dangerous streets and highways, collapsed public buildings, churches, schools, factories, streets, and private dwellings, broken gas, water and sewer systems, the loss of human life, and in general so as to threaten and seriously endanger the lives and safety of large numbers of the people of the Commonwealth; therefore be it enacted,' etc. . . . That the conditions portrayed in the legislative declaration are such as to create an emergency, properly warranting the exercise of the police power, is sufficiently obvious not to call for extended discussion. It is primarily for the legislature to consider and decide on the fact of a danger, then meet it by a proper remedy: Stafford v. Wallace, 42 U.S. Supreme Ct. Rep. (issue of June 9, 1922), 397, 401. Of course, the cure must always bear a substantial relation to the existing evil, and must not constitute a mere attack on property rights, disguised as an exercise of the police power. In judging of this, however, it is to be remembered that 'in order to serve the public welfare, the State, under its police power, may lawfully impose such restrictions upon private rights as, in the wisdom of the legislature, may be deemed expedient; for all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community . . . and a statute enacted for the protection of public health, safety or morals can be set aside by the courts only when it plainly has no real or substantial relation to these subjects or is a palpable invasion of rights secured by the fundamental law; if it does not appear upon the face of the statute, or from any facts of which the court must take judicial cognizance, that it infringes rights secured by the fundamental law, the legislative determination is conclusive': . . ."
The latest is Borden's Farm Products Co. v. Ten Eyck, 297 U.S. 251.
That language can, in principle, fitly be applied here. It is true that the Supreme Court of the United States reversed that decision of the Supreme Court of this State, and held that the statute violated the federal Constitution, but that decision does not affect the fact that as respects the provisions of our own state Constitution now being considered it was held not to be unconstitutional. This is very pertinent here, for as before pointed out practically the same statute as that now under review has been held by the Supreme Court of the United States in the Nebbia case not to be in conflict with the federal Constitution.
Penna. Coal Co. v. Mahon, 260 U.S. 393.
As to the objection that the statute delegates legislative power to the Milk Control Board, that gives me little concern or anxiety. Courts which have accepted as constitutional the Public Service Company Law and the Anthracite and Bituminous Mine Codes, and the acts giving authority to the department of labor and industry and the department of health to adopt rules and regulations, etc., etc., (See Gima v. Hudson Coal Co., 106 Pa. Super. 288, 299, 161 A. 903), should not strain at the powers given the legislature's agent, the Milk Control Board, under this act. A moment's consideration must convince an open mind of the impracticability of the General Assembly itself conducting the hearings and arriving at the conclusions necessary for fixing fair rates for producer, distributor, dealer and consumer in widely scattered and wholly dissimilar sections of the State. It has set forth in plain and unmistakable language the basic purposes and primary standards which it has in mind in an attempt to remedy the mischievous conditions which are present in the milk industry, a continuance of which threatens the welfare and well-being of the whole people; and having done so it may lawfully appoint the board its agent upon whom devolves the duty to carry out the legislative policy. It has not delegated its power to make law, but has delegated the power to determine facts and apply the intention of the legislature to conditions thus determined. To make use of an agency adapted to put into effect the details which it would be impracticable for the legislature to look after is not making the agent a legislative body, nor acting in violation of the constitutional provision: "The legislative power of this Commonwealth shall be vested in a General Assembly which shall consist of a Senate and House of Representatives" (article II, section 1).
I can see no real distinction in this respect between the Public Service Company Law (Act of July 26, 1913, P. L. 1374) and the Milk Control Act now under review. It was wholly impracticable for the General Assembly itself to regulate public service corporations in the interest of the public welfare and fix schedules of rates applicable to all sorts of utilities in widely divergent communities, which were fair, just and reasonable to both the public and the utility. It was necessary to appoint a board to act as its agent in the securing of the information necessary to be obtained before specific rules and regulations could be promulgated and rates which were just, fair and reasonable to both the public and the utility could be determined. It laid down the basic principles and primary standards which were to govern the price regulating activities of its agent — the public service company was entitled, if able to earn it, to a reasonable return on the present value of its property used and useful in the public service, and no more; and the public was entitled to be protected against being required to pay more than was fair, just and reasonable in the circumstances. The Milk Control Act requires the board to ascertain by examination and investigation what prices for milk in the several localities and markets of the Commonwealth, and under varying conditions, will be most beneficial to the public interest and will best protect the milk industry in the Commonwealth and insure a sufficient quantity of pure and wholesome milk to adults and minors, having special regard to the health and welfare of children in the Commonwealth. They shall take into consideration all conditions affecting the industry, including the amount necessary to yield a reasonable return to the producer and to the milk dealer; and after by such examination and investigation they shall have arrived at the information necessary to enable them to perform the duties imposed on them in accordance with the primary standards thus announced by the legislature, they are required to fix the minimum wholesale and retail prices and may fix the maximum wholesale and retail prices to be charged for milk sold in the various districts of the Commonwealth; it being the declared legislative intent that the public emergency requires that the benefits of any increase of prices received by milk dealers by virtue of the minimum price provision aforesaid shall be given to producers, except where the board deems a deviation from this policy necessary in the public interest in order to maintain proper milk markets and outlets for producers. That public service companies are required to file schedules of rates does not make a real or vital distinction, for the Public Service Commission finally determines whether the rates thus filed are just, fair and reasonable. And the commission is not obliged to have a complaint from some consumers before it can act. It may initiate the proceeding itself, and make it applicable to an entire industry. The filing of proposed rates by the public utility corporation is only a procedural matter intended to insure equality of treatment and guard against discrimination. It applies to many kinds of public service companies. This act applies to only one, and the duty is imposed on the board to find out and fix prices which are just, fair and reasonable to producer, dealer and the public. No advantage would be obtained by filing rates or prices before the board had ascertained what were fair, just and reasonable; and it would be fruitless and of no benefit to do so after the board had acted. The rights of producers and dealers are expressly guarded against confiscation by an appeal to the courts in this act just as they are in the Public Service Company Law. With all due respect to the majority opinion, I see no real, vital or substantial difference between the two acts as respects delegation of legislative powers.
The opinion refers at some length to the apparent failure of the board to make complete and definite findings of fact. This question was not raised by the appellant. On the contrary it was stipulated that the record should contain only the proceedings from the time when appellant took an appeal from the order of the board revoking his license as of December 4, 1934. Consequently the hearings of the board held pursuant to the directions of the statute in the ascertainment of facts necessary to fix prices, etc., and the findings made by them in connection therewith are not before us. The appellant expressly admitted "that all questions relative to the procedure of the Milk Control Board prior to the date of the revocation of appellant's milk dealers license were regular, the facts found by the Milk Control Board were correct and that the only question before the Superior Court in the instant appeal is the question of the constitutionality of the Milk Control Law of the Commonwealth of Pennsylvania passed at the 1933-34 Special Session of the Legislature of Pennsylvania, known as Act No. 37, approved January 2, 1934, P. L. 174, and entitled an act relating to milk and to products thereof; declaring an emergency with respect to their production and market; creating a Milk Control Board, etc."
The appellant could have appeared and been heard at the hearings of the board, and could have appealed to the courts from their findings and order fixing prices, but he did not. Having failed to do so at the proper time he is precluded from raising those questions now: Hegeman Farms Corp. v. Baldwin, 293 U.S. 163.
There is no merit at all in the suggestion that the act under review violates section 3, of article III, of our Constitution because the title contains no reference to the right of the board to revoke for cause a license issued by it. The Public Service Company Law says nothing in its title about the right of the Public Service Commission to revoke a certificate of public convenience authorizing a common carrier to act as such. Yet the right of such revocation was upheld in Day v. Pub. Ser. Com., 107 Pa. Super. 461, 164 A. 65, affirmed 312 Pa. 381, 167 A. 565. The Act of May 13, 1887, P. L. 108, regulating the sale of intoxicating liquors, — commonly known as the Brooks High License Law — said nothing in its title about revoking liquor licenses, yet the right to do so was recognized. The same right of revocation for cause, unless expressly withheld, applies to all our statutes regulating intoxicating liquors since. The title need not be an index to the contents. Whatever is reasonably germane to the subject-matter in the title may be included in the statute.
The other points raised on appeal, but not discussed in the majority opinion, do not merit serious consideration.
I would affirm the judgment of the lower court and hold the act constitutional.
The case was unanimously certified by the Superior Court to the Supreme Court for final decision under section 10 of the Act of 1895.
Errors assigned were sustaining of assignments of error to the decree of the court of common pleas.
Charles J. Margiotti, Attorney General, with him Harry Polikoff, Deputy Attorney General, and W. F. Daniels, Deputy Attorney General, for Commonwealth.
Thomas Raeburn White, with him W. Hensel Brown and Richard C. Bull, for appellee.
Francis Biddle, of Barnes, Biddle Myers, for interested parties, under Rule 61.
Thomas W. Spofford, with him Charles Edwin Fox, for interested parties, under Rule 61.
Geo. Ross Hull, for interested parties, under Rule 61.
Argued May 25, 1936.
The majority of the members of this court, Mr. Justice SCHAFFER and Mr. Justice DREW dissenting, agree that the decision certified to us by the Superior Court should be reversed on the dissenting opinion written by President Judge KELLER of that court, reported in 121 Pa. Super. 281. Mr. Justice SCHAFFER and Mr. Justice DREW are of opinion that the decision of the Superior Court should be affirmed on the opinion of Judge PARKER of that court.