502 Argument for Appellant. The Housing cases, Block v. Hirsh, 256 U.S. 135; Brown Holding Co. v. Feldman, 256 U.S. 170, undoubtedly went to the very limit of the police power. They were based upon a shortage of houses and a multitude of persons anxious for housing, which allowed a grasping landlord to victimize the tenant for his own profit. The statutes which penalize forestalling, engrossing, usury, and combining to restrain trade express the same policy. At the opposite extreme is the statute now before this Court. With the State of New York flooded with wholesome milk, the Legislature and Milk Control Board purport to fine and jail anyone who sells it to the public below the price set by order. There is a certain grammatical symmetry in the statement that if a Legislature can provide for fixing a maximum price for houses it can provide for fixing a minimum price for milk; but the resemblance between the two is purely verbal. In Wolff Packing Co. v. Industrial Court, 262 U.S. 522, the Kansas Legislature had declared the meat business to be affected with a public interest. It was argued that the packing business was so affected, the existence of an emergency was urged upon this Court, and the cases said to uphold the "emergency doctrine," Wilson v. New, 243 U.S. 332; Block v. Hirsh, 256 U.S. 135; and Brown Holding Co. v. Feldman, 256 U.S. 170, were all cited as authorities for upholding the Kansas legislation. But the Court held the statute unconstitutional. The opinion by Chief Justice Taft includes these words, which might well have been written of the case at bar: "It has never been supposed, since the adoption of the Constitution, that the business of the butcher, or the baker, the tailor, the woodchopper, the mining operator, or the miner was clothed with such a public interest that the price of his product or his wages could be fixed by state regulation." The Chief Justice then referred to certain businesses which he had previously discussed, which "have come to Argument for Appellee. 291 U.S. hold such a peculiar relation to the public that" some government regulation is superimposed upon them, and significantly he lists the Housing case, Block v. Hirsh, 256 U.S. 135, as an example of such a business. Of such businesses he says: "In nearly all the businesses included under the third head above, the thing which gave the public interest was the indispensable nature of the service and the exorbitant charges and arbitrary control to which the public might be subjected without regulation. In the preparation of food, the changed conditions have greatly increased the capacity for treating the raw product, and transferred the work from the shop with few employees to the great plant with many. . . . But never has regulation of food preparation been extended to fixing wages or the prices to the public, as in the cases cited above, where fear of monopoly prompted, and was held to justify, regulation of rates. There is no monopoly in the preparation of foods." ... The milk situation in New York is at the pole opposite to monopoly. A great abundance of wholesome milk is for sale by a multitude of dealers and storekeepers, of whom appellant is one. The statute and order seek arbitrarily to fix prices for this milk at a level higher than the natural abundance would indicate. Such regulation is unconstitutional, and can not stand. Mr. Henry S. Manley, with whom Mr. John J. Bennett, Jr., Attorney General of New York, and Mr. Henry Epstein, Solicitor General, were on the brief, for appellee. The necessity for any particular exercise of the police power is a matter to be determined in the first instance by the legislature. In the present case such a legislative determination has been made and no reason appears why it should be disturbed. That the period 1930-1933 has brought this Nation and every part of it some unprecedented problems is of course 502 Argument for Appellee. known to the Supreme Court of the United States. Atchison, T. & S. F. Ry. Co. v. United States, 284 U.S. 248, 260; dissent, New State Ice Co. v. Liebmann, 285 U.S. 262, 306. The Milk Control Law was designed and enacted for the purpose of regulating the price of milk in the State of New York temporarily and during a serious emergency. After a long and exhaustive investigation of conditions in the milk industry in the State, the Legislature found and determined that such an emergency existed. It is within the power of the Legislature to make this finding of fact, which is at least highly persuasive. It being accepted as a fact that a public emergency exists, and that the legislation is of a temporary nature, greater latitude than usual is permissible. Wilson v. New, 243 U.S. 332; Block v. Hirsh, 256 U.S. 135, 157; Levy Leasing Co. v. Siegel, 258 U.S. 242, 245; People ex rel. Durham R. Corp. v. La Fetra, 230 N.Y. 429, 445. The temporary and emergent character of the legislation being accepted, it is well within the scope of the police power. People ex rel. Durham R. Corp. v. La Fetra, supra; People v. Perretta, 253 N.Y. 305, 309. See also Barbier v. Connolly, 113 U.S. 27; Manigault v. Springs, 199 U.S. 473, 480; Chicago, B. & Q. R. Co. v. Illinois, 200 U.S. 561, 592; Noble State Bank v. Haskell, 219 U.S. 104; Eubank v. Richmond, 226 U.S. 137, 142, 143; Atlantic Coast Line R. Co. v. Goldsboro, 232 U.S. 548, 558; Sligh v. Kirkwood, 237 U.S. 52, 59; Hall v. Geiger-Jones Co., 242 U.S. 539, 548; Miller v. Schoene, 276 U.S. 272, 279–280; Highland v. Russel Car & S. P. Co., 279 U.S. 254, 260-262; United States v. Macintosh, 283 U.S. 605, 622. Undoubtedly self-regulation of business through free competition is a good worthy of considerable sacrifice, but it is not always the preponderant value. Stephenson v. Argument for Appellee. 291 U.S. Binford, 287 U.S. 251, 274. It has been said that the Constitution is not "the partisan of a particular set of ethical or economical opinions." Mr. Justice Holmes in Otis v. Parker, 187 U.S. 606, 609. "We have few scientifically certain criteria of legislation, and as it often is difficult to mark the line where what is called the police power of the States is limited by the Constitution of the United States, judges should be slow to read into the latter a nolumus mutare as against the law-making power." Noble State Bank v. Haskell, 219 U.S. 104, 110. And no matter how great a value is set on free competition, some care must be taken not to strive for "a mere delusive liberty." Appalachian Coals, Inc. v. United States, 288 U.S. 344, 360-361. Distinguishing: Fairmont Creamery Co. v. Minnesota, 274 U.S. 1; Williams v. Standard Oil Co., 278 U.S. 235; New State Ice Co. v. Liebmann, 285 U.S. 262. The Legislature of New York has found the facts relative to the milk industry. The enactment itself expresses the legislative judgment as to the appropriate remedy. The considerations which were decisive as to the ice business of Oklahoma are none of them applicable to the business of milk distribution in New York State; the legislative finding that the latter is "a business affecting the public health and interest" has abundant support; it is a business of such nature as to justify the application to it of some of the forms of regulation ordinarily applied to a public utility. Fixing minimum prices to consumers is a common form of utility regulation. Munn v. Illinois, 94 U.S. 113; Mobile v. Yuille, 2 Ala. 140; Guillotte v. New Orleans, 12 La. Ann. 432; Slaughter House Cases, 16 Wall. 36; Great Northern Util. Co. v. Pub. Serv. Comm'n, 88 Mont. 180; Public Service Comm'n v. Utilities Co., 289 U.S. 130; South Glens Falls v. Pub. Serv. Comm'n, 225 N.Y. 216, 222-223. 502 Argument for Appellee. Perhaps the fixing of maximum prices to be charged by those engaged in a business carries with it some obligation to fix minimum prices; if the profits to be had in a business are limited by law, the Government should protect from destructive competition those whose property is risked in the business. As seen by the Legislature through the report of its committee, New York had more milk than the available fluid markets could take (in the Spring and early Summer a double supply), nearly all produced under conditions that made it available for the fluid markets and competing for the premium to be obtained there. The distributors, down to the smallest store, carried on a brisk competition, but at the farmers' expense. Falling prices in the cities and villages, secret discounts and free milk and other price concessions, promptly were reflected in lower prices to farmers. In the four years from March 1929 to March 1933, the retail price of milk fell 37%, but the price paid to the farmers fell 61%. The dealers' margin was decreased only 17%. All agriculture is notoriously difficult to control through the law of supply and demand. This is true for a number of reasons, not the least important being that a farm is also a home, and a farmer and his family will cling to the soil regardless of profit. Dairying is a branch of agriculture, and it is a biological industry, the "cow cycle " ordinarily being fifteen years from peak to peak. The dairy industry will destroy itself, producing below the cost of production with no more manifestation of logical control than a herd of buffalo plunging over a cliff. Milk is an ideal disease carrier and has need to be produced for the fluid market under safeguards which cost money and which can not be maintained when the milk check is all absorbed in the feed bill. Milk is a perishable food and the presence of excess milk in a city market 46305°-34-33 |