*1 appel corporation, Dairy, a Nebraska Inc., Gillette Dairy al., et Board Products v. The Nebraska lant, doing Kimball Sorenson, business appellees, Carl al., Interveners- et Nebraska, Creamery, Kimball, appellees. 2d 214 219 N. W. 39275. 1974. No.
Filed June Garden, & for appellant. Hutton Ginsburg, A. H. Noren,
Tews & Clarence Herman Meyer, ap- Attorney Ralph Gillan, General, H. pellees. *2 Heard before Boslaugh, McCown, Newton, Spencer, Judge. JJ., and and District
Clinton, Brodkey, Ronin, J.
Spencer, This seeks to 81- action to have sections 81-263.37 and 263.49 81-263.81 declared 81-263.86,R. R. S. enjoin permanently unconstitutional the Nebraska and Dairy anywise enforcing Products Board from in said questioned The trial court the con- .statute. found acts injunction. stitutional and refused the Ne- Plaintiff, a corporation, appealed. braska We reverse. capsulize plaintiff’s
We the act contentions the (1) grants is unconstitutional as follows: the act authority defendants which exceeds the constitutional police power provided for the state the Constitution; (2) public interest so affected is that the use police power by of (3) the state warranted; is the act monopolistic practices; (4) fosters the act is arbi- trary, capricious, discriminatory regulating and price dairy products; (5), illegally delegates the act legislative powers Dairy to the Nebraska Products Board Department Agriculture and the braska; State of Ne- (6) illegally deprives plaintiff
and the act constitutionally guaranteed certain property rights. Dairy, only Plaintiff, Gillette dairy Inc.,.is located in the part northeastern presently of Nebraska that operating manufacturing processing a plant. Plain- alleges tiff industry that the milk closely has been .con- many years protection for trolled for public plaintiff health. proper This, concedes, is a use police power argues, of the state. however, that the handling plaintiff’s' product control for entirely health’s separate saké is different and attempted control the state of the eco- business
91 selling, pack- buying, plaintiff’s nomics of business distributing dairy products. aging, Basically, products dairies are all all milk argues, therefore, same. Plaintiff dairy products of wholesome that an abundance
interest (ap- population in various forms reach the entire state 50), proximately least at the desires which possible supplies products, 2 but cost. Plaintiff percent business.- of its them account over 80 competition Competition requires products, degree large attracts based to customers some items.
(cid:127) operations very technical. are Plaintiff states its processes They into multitude divided best handle serve services so requires plaintiff to need of its This customers. needs, to meet but efficient, its customers’ maintaining high competitive price do so at a while *3 products. for standard its association
Plaintiff is of a a member nationwide Quality under of To maintain known the name Check. membership plaintiff not' in this association must meet meet state and federal all standards but also must stringent additional association standards which the public. consuming This feels membership for the benefit thousands, plaintiff many of dollars costs per year, expense justified plaintiff but an is feels keeps federal state because above standard membership legal minimums. Plaintiff maintains this give advantage competitive to an a market. 1943,
Section declaration 81-263.38, R. R. S. a purpose adoption Dairy Industry Trades ' hereby “It It declared Practices Act. reads: affecting dairy products the sale of is a business public public health and affected with a welfare and practices being carried interest. Certain trade are now products dairy -and sale of which are unfair unjust, already out numerous firms driven jeopardize the and which if continued will business, properly securing supply a interest in sufficient products dairy preserving prepared dairy and in monopolistic industry of free from anti- this state competitive purpose influences. It is the of sections to use 81-263.37 81-263.49 81-263.81 81-263.86 police power promote state in order outlawing interest so declared the continuance practices.” of such trade Supp.,
Section R. is a definition 81-263.39, 1972, S. of the dairy product terms used in act. defines cost of
to a distributor as the minimum basic provisions cost determined under section 81- Supp., Supp., 263.84,R. S. 1972. 81-263.40, Section R. S. up dairy industry practices 1972, sets trade fund, prescribes provides duties the director. quarterly the director shall set fee not to pound exceed 4 mills each of butterfat contained consumption sold for the state, within permit adequate such fee be an amount that an will provisions administration of the of the act. The fees quarterly processor are collectible from the first dairy products, liability but therefor shall extend any distributor thereof.
Section 81-263.41, 1943, R. R. S. defines what shall practices. be considered unlawful Included within these provision is a that it shall be unlawful sell or offer sell dairy product within the state for less than minimum basic cost established board. Sec- prescribes tion 81-263.42,R. R. prac- S. unlawful tices for retailers.
Section 81-263.81, R. R. S. 1943, establishes the Ne- *4 Dairy braska Products Board and section 81-263.84, R. Supp., prescribes S. 1972, of duties the board. Sec- Supp., tion 81-263.84, R. S. so 1972, far as material provides: “(1) herein, duty shall be the dairy thorough study of the to make current board * * * rele- based on all industry and, state this within to deter- board, available vant information made which distributor, basic cost mine the minimum weighted average distributors costs such be a shall of of processing engaged in state within this others and the minimum basic state, this and sold within average weighted jobber, shall be cost dairy products jobbers, the various such costs of of of * * making there be determinations, shall In such *. jobber which, cost cost and the the distributor considered accounting system cost which is accord- of under reasonably accounting principles and sound ance with jobber, adapted to such or the business distributor dairy product fairly or the sale there- to each allocable particular to a class thereof. Such its customers expenses limited include, to, but costs shall depreciation, power, rent, administration, interest, labor, supplies, process ingredients, main- materials, and raw selling, equipment, national local and ad- tenance stamps vertising, trading not in excess the number transportation, delivery, given trade, credit in normal other than income fees, other taxes licenses and losses, The board shall also determine insurance. taxes, marketing the different natural costs for areas different (Emphasis sup- find state.” within which plied.) R. R. S. Nebraska Man- 81-263.88, Section public policy. ufacturing Milk declaration of Act, recognized hereby provides: “It is and declared as legislative determination that the field a matter nutrition, safe, wholesome milk for clean, human indispensable purposes manufacturing the health Nebraska; of the citizens State of and welfare perishable commodity susceptible to that milk is a con- production adulteration; tamination adequate supply clean, safe, of an distribution *5 94 signif- manufacturing purposes are milk
wholesome minimum standards health and that icant to sound necessary production dis- for the declared be manufacturing purposes.” Plain- of milk for tribution policy. quarrel this statement tiff no with has Supreme in Nebbia v. New Court The United States A. 940, L. Ed. 89 505, Ct. York, 502, 291 U. S. 54 S. any other form 1469, control, held: “Price like L. R. regulation, arbitrary, if dis- is unconstitutional criminatory, demonstrably policy irrelevant adopt, legislature is free to and hence an unneces- the sary interference and unwarranted with individual liberty.” undisputed (1), section
It 81-263.41 R. R. S. prohibits below “minimum basic cost” as sales pursuant Supp., established to section 81-263.84, R. S. weighted Minimum is to 1972. basic cost be a aver- age perform- cost of the others distributors and ing profit margin various functions. There no con- sidered in determination of the minimum basic cost. (cid:127) producers obvious that actual cost of some and distributors will be less than the minimum basic greater. cost, while cost of actual others will In vary. both instances amounts will All, however, prohibited selling will be from below minimum basic cost set appears board. who Plaintiff, be a concerned and efficient- distributor, contends against this act discriminates it in favor less efficient distributors. This discrimination though exists even plaintiff engage does not practices. unfair trade obviously This discrimination plaintiff increases as the becomes more efficient. n right Plaintiff does not contest the prevent practices unfair trade selling such as below actual cost. contend, does long however, that' so all sales are above actual cost it should be allowed to increase its selling sales profit volume at a margin- competitors. Normally, greater its no than of its compet- greater efficiency to sell its below will allow maintaining still itors increase its sales while thus prevents competitive margin. clearly profit act consequently plaintiff doing this claims so, degree discriminatory, be- of discrimination is ing efficiency directly versus more or less related competitors. inefficiency of its forcing plaintiff to at Inherent in the vice of sell *6 average of in- the basic cost the of its most minimum competitors efficient is the discrimination it suffers comparison some of the national milk chains. with product displayed along Plaintiff’s is Gold with Meadow extensively of and Fairmont, both which are advertised nationally. products priced same, If all three are the buyer plain- previously will the which who has not tried products tiff’s select? The is answer obvious. price,
Efficiency, compet- major and service are the advantages against itive small distributors can utilize recognizable distributors Plaintiff, brand names. discriminatory therefore, contends the act is be- abrogates destroys major marketing it cause ad- vantage producers (price) of lesser-known leav- while ing major advantage producers large (brand of name labeling) intact. conclusively
The record establishes that the in- dustry thoroughly regulated is one of the most now food processing Legis- industries State Nebraska. past has safe, lation achieved clean, wholesome indispensable milk which to the health Regulations welfare of citizens of the state. clearly police this end are within the undisputed The evidence processors state. is that all dairy products pay fluid milk and prices identical milk under for fluid federal orders. It is obvious production this record that the cost is similar ex- efficiency cept -for differentials and the difference in supplies than purchasing other of essential volume fluid milk. securing expressed interest dairy products prepared supply properly
sufficient preserving dairy industry free of this state and in anticompetitive monopolistic influences. Plain- freeing that rather than evidence indicate tiff’s would monopolistic create the state from influences would monopoly large processors by permitting become regardless larger. obvious, used, even terms purpose primary that the the act is establish a price regardless production. control cost of If against prohibition the intent were operator selling each otherwise production his cost of below would permit producers compete equal all on an basis. In supposedly protecting pub- interest is the caught price squeeze promoted lic raising average to that of the of the inefficient producers.
Plaintiff be will able sell for a while at an excess profit ap- under this standard. seem to would parent, prices however, if its must be the same as those of national great distributors, its volume will be a *7 deal less than would otherwise be because of the prestige nationally of the known brand names. The logical extension of such rationale is that industry eventually will monopoly. become a It is an anomaly Legislature created an antitrust di- vision office Attorney of the fight General to monopoly promoted this act opposite has course. charged
Whether a business is public with such a regulation interest as to warrant its legislative is a question in which the ordinarily courts will not inter- Legislature may fere. The guise not, however, under the regulation, impose conditions which are un- arbitrary, reasonable, discriminatory, confiscatory. or considering the regulations be reasonable must Such prevent not as would such of the business nature (1943), Boomer v. Olsen carrying on of the business. 2d 10 N. W. 507. 579, 143 Neb. Finigan (1960), Neb. Dairy Co.
In Lincoln v. clearly “A citizen said: 227, N. 2d we 777, 104 W. occupation detri- right engage has the safety, Meas- public and welfare. health, mental adopted protect ures public safety must and welfare health and secure proposed ends. relation to -those reasonable some acquire, right to own, constitutional A citizen has a apparent property, that the if it becomes and sell regulation, police guise of does statute, under preserve safety, welfare, health, tend to creating legitimate more stifle but tends business monopoly barrier, or trade unconstitutional as rights property an invasion of individual. consistently regula- also held that The court has legitimate tion of business not be so unreasonable property to result the confiscation of rights ownership. incidental court its This cannot approval legislation give judicial these violates principles any theory they per- fundamental under Article I, missible section Constitution commonly process referred to state, this as the due clause.” essentially too case is not
This different from Boomer supra, regulation Olsen, involved private v. employment agencies. While this case deals with a food regulations product, presently in effect are suf- production ficient assure the and distribution of a product. police food wholesome The extension price fixing in the instant case is not needed product general to insure wholesome public. for the promote effect is to Rather, the welfare of dairy processors. inefficient
98 fixing price at least two-
The test this state for in public cir- second, use; and, to a First, fold: devotion requires mono- interest cumstances where prevent costly duplication poly to exist in order to expense ultimate consumer. As facilities at suggested general the interests of the before, appear adequately protected by present exer- police power. Clearly, test for cise second fixing price this has not been met the evidence opposite conclusively appears. Actually, the case. effect Carpenter, Terry Liquor In Inc. v. Nebraska Control (1963), Commission 26, Neb. 2d 374, 175 120 N. W. we Tilley, “In said: Nelsen 327, v. 289 W. Neb. N. legislature, 388, 126 L. A. R. this court held: ‘The guise regulation, may indulge under in arbi- trary price fixing, competi- the destruction of lawful tending tion, or creation of trade restraints to estab- ” monopoly.’ lish a reading It is evident from a of the act and the record primary purpose price fixing. of the act is police power While the exercise of the industry is product, essential assure a wholesome fixing price is not essential to attain that end. This question suggested Terry raises Carpenter, Inc. v. Liquor Nebraska supra: Control May Commission, Legislature constitutionally upon right confer others a possess? which it Ignoring does not itself for the mo- suggested ment the question standards, law price intended to control the sold plaintiff. To the extent that administrative fiat prevented a business is efficiently competing price basis, then to extent can be restricted to as what products, wishes to sell its that ad- plaintiff’s ministrative fiat could result entire in- being away vestment profit eroded pro- inefficient expense general ducers at the public. producer plaintiff A such as the grow must if it is *9 (plant, insurance, and to because its static costs survive, greater volume, costs), equipment remain same with If helps price customers. obtain more its lesser and increasing grow, compete plaintiff is not to and allowed high price it so will consume it or force costs will go away enough erode or lose customers to under investment. necessarily
By legislation upholding this we would require every power Legislature to hold that has product, bread, food distributor an essential whether price fruit, deter- milk, or at a meat, otherwise, sell by averaging mined less his costs those his competitors. efficient do not this is in the We believe public public through price interest. It is obvious the subsidizing control is inefficient distributors. arbitrary, We conclude the act unreasonable, is and capricious purports in that to fix a minimum basic by, justified cost that no bears not to, relation and any requirements public interest. also hold We purports the act, insofar as it fix a minimum against cost, producers basic discriminates efficient producers. favor of inefficient Further, the act would monopolistic tend anticompetitive to foster in- industry, contrary purposes fluences stated Legislature. We therefore conclude act unnecessary an and unwarranted interference with inr liberty. dividual
To practices, forbid unlawful require trade each distributor to sell above his actual cost, would be in public protect interest and would the distributor. duty The act makes it the of the board to determine group minimum basic cost for the and not for the indi- provide viduals. Nowhere -does act is in the public required by best interests or interest duty that the board’s be such as set forth the act. Legislature power has the to act behalf welfare, health production, to control the TOO guise of
handling, purity under but fixing. indulge regulation may arbitrary price duty establish sole end result of the board’s noncompetitive price distributors level between strictly law, It is a milk Nebraska. duty price. to fix that with the ultimate board’s dele- is fundamental gate legislative authority to or administrative execu- an authority. au- however, does, tive department an or executive thorize administrative express legis- regulations carry make rules and out an complete purpose operation en- lative forcement of a law within fundamental, however,
designated It is limitations. *10 legislative grant of power agency, must administrative such an express legislative purpose ad- and limited to be described with standards ministered in accordance Finigan legislative Dairy act. Lincoln v. See Co. (1960), 227. In that Neb. 104 N. W. 2d case power granted and held: “The limitations we granted powers are to be which the the standards definitely clearly however, and must, be administered They may or indefinite, obscure, rest on not stated. readily upon generalities, vague or extrinsic evidence not available.” expressed legislative regard board, to the
With purpose to establish the minimum The board is is clear. jobber minimum to the distributor which cost and basic weighted average cost,” of “such shall be a cost basic jobbers. composed board is and distributors seven distributors, shall shall Two be two' members: producers. A milk shall be Grade retailers, and two be general represent member shall other production, processing, with connection no any selling products in manner. or distribution, protect purpose is of the act the interests If the adequate board public, one seven members purpose? n basic Plaintiff the term “minimum cost” asserts vague an unconstitutional uncertain, and constitutes authority delegation legislative administrative to an having argues: no statu- Board board. Plaintiff tory guideline “The administratively at the is unable arrive Act provides Act because the cost decision ordered whereby prudent vague generalities honest few up opinion men honest could come differences honestly multiplicity not with a of answers which would picture or for relate to the true be would general public for the best interests of nor best individually.” dairy industry interests of or dairies provide included, The act does costs shall be what specified. The but does limit to the items the board weighted average of minimum basic costs are making deter- distributors, the cost etc. In system of cost account- mination ing do so under accounting in accordance which is with sound respective' principles reasonably adapted to the definitely Are sufficient standards businesses. these applied? easily uniformly can be measured and the term Defendants’ evidence indicate that would accounting prac- “weighted average” regularly used meaning. not, however, defined tice, and is clear in isIt averages means the to indicate what how Dictionary weighted. International to be Webster’s New (2d Ed.), p. the term as follows: “Sta-'- 2899, defines average of a set of items tistics. An of the values *11 weight of its accorded a indicativé each which is importance; forming frequency aver- or the relative weight multiplied age, its of each item is the value divided the sum and the total of these of necessary weights.” Weighted averages may be costs, that does not minimum basic to -determine but neces- themselves are minimum basic costs mean that sary, adequate, or fair. by plaintiff questioned ac- term is “sound
The other suggests counting principles.” be it would It impossible pick any group of individuals who would accounting uniformly interpret what constitutes sound dairy industry. principles for standards While the something desired, do used in the act be we leave they vague to hold and uncertain need are so knowledgeable understand individuals will not what is terms. meant For stated, the reasons find the minimum basic we arbitrary, provisions questioned costs act discriminatory, icy demonstrably pol- irrelevant Legislature adopt, unnec- is free to and hence an essary and unwarranted interference individual liberty. judgment of the trial court is reversed and proceedings
cause is for further consistent remanded opinion. with this and remanded. Reversed part J.,C. took no deci- the consideration
White, sion of this case. J., dissenting.
Clinton, respectfully opinion my I dissent from col- leagues. appears majority opinion to me that It judges legislation, constitutionality but appears wisdom. to declare the statute unconsti- subjective tutional the basis of of economic views as competition among proces- the wisdom unfettered opinion assumptions sors distributors. makes contrary which are either to the evidence or which support exceptions. pays lip no find service bill appropriate principle, “Price to wit: regulation, control, like other form of is unconsti- arbitrary, discriminatory, if tutional or demon- strably policy irrelevant is free adopt, unnecessary hence an and unwarranted liberty,” disregards interference with individual but presumption constitutionality both the evi- Legislature’s purpose. as well as the dence declaration of judiciary It would attribute to to estab- *12 by declaring lish classifications the court itself two processors classes: “Efficient” and and “inefficient” gratuitously distributors and inatory is discrim- asserts legislation between This does them. any establish such nor evidence to classes is there establish the existence of classes nor in which such hypothetical category plaintiff proces- falls. Some sors have costs are less others. It does than not follow that some class. are therefore an “inefficient” processors That some of their volume of sales because ability purchasing make “volume essential supplies,” opinion, as is in the does not make mentioned competitors just their them “inefficient.” makes compete. accepted argument less able to All is mere this majority opinion support in the but without arbitrary an record. Such court characterization will it to enable declare almost classification arbi- trary and unreasonable. plaintiff1 evidence introduced
shown in affidavits which are 15. The 13,14, exhibits expressed following essence exhibit 13 is plaintiff competitors conclusion: Therefore and his can only compete following produce Types on the items: packaging, advertising, quality service, and the shelf ,15 product. of the finished Exhibits 14 and seem support to price stayed gasoline the conclusion 1962 to 1972 dairy up.
the same where went great per The defendants introduced a deal evidence taining necessity legislation. to of additional None supports opinion. of which the conclusions presumed trial found: “D. The court Act presented to be constitutional and the evidence herein presumption constitutionality.” fails to overcome this I submit that the statute is not unconstitutional on opinion separate its face and that the recital six key certain times that conclusions are either “obvious” “apparent” apparent, are' neither obvious nor evidentiary support, depend priori no type
acceptance of certain economic views as what processing competition desirable in the distributing industry of the act effects and what *13 will be. legislative purpose part in the
The is set forth in practices statute as being trade are now follows: “Certain products dairy carried on in the of which sale unjust, already are unfair driven nu- and which merous of and if continued business, firms out which jeopardize securing will supply interest in a sufficient properly dairy pre- prepared
of and in serving industry dairy mo- of state this free nopolistic anticompetitive § 81-263.38, and influences.” opinion R. R. S. 1943. in the recites: “Inherent forcing plaintiff vice of sell at minimum basic average competitors cost of of its most inefficient comparison is discrimination it some suffers in with supports of the national milk chains.” No evidence plaintiff statement “at the that will be forced to sell average minimum cost of most basic its inefficient competitors(Emphasis supplied.) pro- The act itself vides: “. . . to determine the minimum basic cost weighted average distributor, which shall be a of such costs distributors and others within this state engaged processing dairy products in within this sold jobber, state, and the minimum cost basic which weighted average jobbers, shall be a of such costs of dairy products.” weighted various is the average costs all distributors is opinion and recites, determined not as the “the cost average competitors.” its most inefficient nothing Indeed in there the evidence to us enable plaintiff to tell where the stands of effi- in the scale ciency except might for whatever conclusions one draw plaintiff appears that from the fact have been growing, rapidly and is successful ing and is one of a decreas- processors and class of distributors. establishes in
The record 1950 Nebraska had 151 processors manufacturers; and ice cream dropped number 1972 the 55; that number had appar- challenged. figures It is was 17. These are not monopoly growing existing system ent under the being competition eliminated. proposition supports the concluded and the evidence particu- “milk this resulted from wars” that larly situation Expert populous witnesses eastern Nebraska. through “milk are allowed affidavit testified that if wars” they destroy many full service to continue “could the consumers dairies with the result processors full farmers hurt as well as service would be “completely A un- Also: in the markets.” war apparently regulated torily not worked satisfac- market has changes industry Nebraska due impact mer- chainstore economics, created cooperative processing.” chandizing producer And “cope” producers have been unable also that opinion competitive situation, and affiant is this *14 regulation form of Government “that some guarantee supply necessary of fluid milk a Nebraska, the for but that the consumer necessary.” absolutely laws interest such aré majority opinion evidence states: “Plaintiff’s The freeing from rather than state the indicate that would monopolistic [the statute] create influences would it large permitting processors monopoly by to become anything larger.” record to the There even says: opinion support The “It the above conclusion. primary purpose the the act is . . . that is obvious regardless price cost a control the to establish playing seem the court is production.” Here would it at it seems there could have been First, words. including: “primary” act, for this reasons least two establish, had unable to (1) that state been fact the The processors previous a statute, “actual” cost the under and prove way to an easier violations creates this act illegal price a making to sell below fixed rather 106 (2) purpose protect
than actual cost; industry majority processors. loss of more The opinion prohibi- states: “If the intent were otherwise against operator selling tion each his cost of below production permit compete producers would all on equal (1) an pertinent: basis.” Two comments are Apparently making producer’s own cost the basis previous legislation determining the violation under Legislature’s purpose. had not achieved the Thus pressure legislation. (2) appears new also system existing legislative under the the desired result being was not achieved. Legislature may right. may wrong.
The be The majority opinion say Legislature, effect of the tois “This court knows best.”
Regulations and statutes similar to those involved long upheld being here been constitutional. York, 502, Nebbia v. New U. 505, S. S. 78 L. Ct. (1933), leading Ed. 89 A. L. R. 1469 is the case on point many has been followed times. The Legislature, hearings, York New found that producers after extensive had paid being of milk New York production, was below the cost and that might jeopardize such if conditions allowed continue product, (2) (1) nature of the wholesome industry ending supply product itself, thus of a determined essential health. appellant violating case convicted was portion making selling act of milk a at
price below levels established the administrative appellant challenged a crime. The first board the act grounds equal protection violated said: “It laws. requires court is shown that the order purchases supply if his
him,
he
from a dealer,
*15
eight
per quart
pay
per pint,
cents
and five cents
at
resell
not less than nine
and six, whereas the
buy
may
supply
his
from
same dealer
a farmer at lower
prices and
deliver
consumers
ten
at
cents the
quart
pint.
and six cents the
think the
We
contention
deprives
appellant
equal
that the
discrimination
protection
aught
appears,
is not well founded. For
that
appellant purchased
supply
of milk
a
his
from
procured
farmer as do distributors,
or could have
from a farmer if he so desired. There is therefore no
showing
placed
disadvantage,
that the order
him at a
adversely,
or in fact affected him
and this alone is
equal protection.
fatal to the claim of
But
denial of
compelled
if it
buy
appellant
were shown that
from distributor,
the retail
difference
required
charge
pre-
he is
customers,
his
that
scribed
sales
distributors,
arbi-
on its
for
face
trary or unreasonable,
are obvious distinctions
there
may
between the two sorts
merchants which
well
justify
legislature pos-
treatment,
difference of
if
prices
charged
sesses the
to control the
to be
Compare
Sugar Refining
milk.
American
Co.
for fluid
v.
tucky,
Louisiana,
activity, Fourteenth, and the respects prohibit governmental regu- action, state do not They merely welfare. lation for condition power, by securing exertion of the admitted accomplished by end shall be methods consistent process. guaranty process, And the with due as has of due held, been often demands that the law shall capricious, arbitrary unreasonable, not be means selected shall have a real and substantial object sought relation to be attained. It results regulation valid for one sort business, or in given circumstances, invalid for another sort, under or for same business circumstances, other regulation depends each the reasonableness because (Emphasis upon supplied.) relevant facts” *16 .108 ques- there court noted that under the milk
The order recognized differences tioned New York the price underlying in charged. reflected the cost should be complaint made “In the order which price per the quart ten Milk Control fixed a cents Board consumer, for a and nine sales a distributor to recognizing a consumer, cents a thus store to endeavoring to store, establish costs of the lower just light a to differential would be both. In which appears to of the facts not be unreasonable the order arbitrary, purpose pre- to without relation to the or or competition destroying ruthless the whole- vent depends for the farmer sale structure which community supply for an assured livelihood, his of milk.” interject legislative determination here
We requires producers welfare of the that preservation processors of milk number substantial arbitrary. patently unreasonable or is not process, Regarding question court, in of due supra, York, v. New continued: “So far Nebbia requirement process concerned, and in the of due restriction, a state is of other constitutional absence may reasonably policy adopt economic free to whatever promote welfare, and to enforce be deemed that adapted by legislation purpose. policy authority pol- to declare such are either courts without legislature, icy, it is declared to over- or, when passed are seen to have reasonable the laws ride it. If legislative purpose, proper and are neither a relation discriminatory, requirements arbitrary nor due judicial process determination to that satisfied, are ‘Whether the renders a court functus officio. effect competition operation normal laws is' free commerce rule trade and wholesome wise question this court need consider not an economic States, Co. Northern Securities v. United or determine.’ equally it is if And clear that 337-8. S. 193 U. legislative policy be to and harmful curb unrestrained competition by arbitrary or measures which discriminatory it does lie deter- courts mine that the rule is wisdom the unwise. With the policy adopted, adequacy practicability with the the law enacted in- it, courts are both forward competent and unauthorized deal. course decision in this court adherence these exhibits firm principles. Times without *17 have said that number we Legislature necessity primarily judge every presumption possible enactment, such an validity, though may is in favor of its and that the court hold views law, inconsistent with the wisdom the palpably legis- annulled not be unless excess power.” (Emphasis supplied.) lative clearly legis- The matters involved come within purview. legislation processors lative all treats regulation and distributors the same. The is not “demon- strably policy irrelevant is free supra. adopt.” Nebbia v. York, New Gateway ap Bank, corporation, al., a Nebraska et Department pellees, Banking, v. appellee, Bank et al., Lincoln appellants, Lincoln Bank East,
appellee.