297 N.Y. 209 | NY | 1948
We granted leave to appeal here, to review a unanimous confirmation by the Appellate Division of a determination of the State Commissioner of Agriculture and Markets. The commissioner had denied the application of petitioner for an extension of its milk dealer's license issued pursuant to section
Petitioner's business is wholly interstate in character. It purchases, at its several locations, milk delivered there by farmer-producers, weighs, tests and cools it (if not already cooled), then ships it, the same day, without any processing, to the Boston, Massachusetts, marketing area. Petitioner's procedures at the proposed Greenwich plant would be exactly the same. It appeared — and the commissioner found — that the new Greenwich plant would to some extent serve the convenience of petitioner and its suppliers. The Eagle Bridge and Salem depots have experienced some difficulty in the past in handling, before the 9:00 A.M. daily deadline for shipment out, the large quantities of milk brought there during the flush season. If the Greenwich facilities were added, petitioner would divert thither, and away from Salem and Eagle Bridge, some 300 cans of milk now arriving daily at Salem and Eagle Bridge, and would allow, but not require, any individual dairy farmer to use the depot nearest his farm. In addition, petitioner hoped, when and if it should go into operation at Greenwich, to take on some twenty to thirty new producers at the new place. Several other milk dealers have plants near Greenwich and some of them have facilities for handling more milk than they are now getting. The commissioner found all these things as facts, and found also that some Troy, New York, retail milk distributors now obtain milk in the area where applicant purchases and that "the supply of milk for the Troy market during the last short season of October through January was inadequate." It was the commissioner's "conclusion" that the opening of another milk plant by petitioner and the taking on by it of producers now delivering to other *214 dealers, would tend to reduce the volume at those other dealers' plants, thus tending to increase milk handling costs there, that there would be a tendency to deprive Troy and other local markets of their milk supply in flush seasons, that all producers now had outlets for their milk, that the licensing of the new Greenwich establishment would tend to destructive competition in an already adequately served market, and would not be in the public interest.
Petitioner's whole business, present and proposed, is interstate commerce (United States v. Rock Royal Co-op.,Inc.,
Petitioner argues, further, that the commissioner's order here under attack, conflicts with Federal milk order No. 4 issued pursuant to the Agricultural Marketing Agreement Act of 1937 (U.S. Code, tit. 7, § 671 et seq.) which order regulates the handling, price, etc., of milk sold in interstate commerce in the Boston area and which Federal order is valid as to this petitioner and its business (see Hood Sons v. UnitedStates,
Petitioner's final attack on the commissioner's determination assails it as unreasonable and unsupported by any evidence. The Agriculture and Markets Law (§ 258-c) forbids the issuance of such a license "unless the commissioner is satisfied * * * that the issuance of the license will not tend to a destructive competition in a market already adequately served, and that the issuance of the license is in the public interest." The commissioner, as hereinabove noted, found, in petitioner's proposal, a tendency to destructive competition in an adequately served market, and that the public interest would not be served thereby. There was a basis for those findings, and we could not oppose any contrary views of ours, if we had any, to that of the State officer commissioned to make such decisions.
The order should be affirmed, with costs.
LOUGHRAN, Ch. J., LEWIS, CONWAY, THACHER, DYE and FULD, JJ., concur.
Order affirmed. *217