On the decision of Franklin v. State ex rel. Alabama State Milk Control Board, 232 Ala. 637, 646, 169 So. 295, I expressed the view that the Act in question was violative of the Constitution.
A re-examination of said Hamner Act No. 163, Acts 1935, pp. 204-220, convinces me that said law enacted as an emergency measure is in fact vicious class legislation, without a single provision for the benefit of the public. Its dominant purpose is to restrict production, fix prices for the benefit of a closed monopoly, and to prevent others from engaging in the business. The monopoly is limited to those already in business. These dominant purposes are inconsistent with the preamble which declares for greater production and supply.
To illustrate, Section 13 of the Act provides: "No license shall be granted to a person not engaged in business as a milk dealer, distributor or producer at the time of taking effect ofthis Act except for the continuation of a now existingbusiness, and no license shall be granted to authorize the extension of an existing business by the operation of an additional plant or other new or additional facility, unless the Board is satisfied that the applicant is qualified by character, general fitness, experience, financial responsibility and equipment to properly conduct the proposed business." [Italics supplied.]
The Board is constituted, with one exception, of persons interested in existing business. Section 3.
The bond required of dealers and others is, not for the protection of the public, but for the protection of producers. The condition of the bond is "and shall be conditioned for the prompt payment of all amounts as and when due producers for milk sold by them to such licensee, during the license year." Section 12.
Said Section 13 confers on the Board arbitrary powers "in granting or revoking licenses" and in refusing to renew the same.
I therefore concur in that part of Justice Foster's opinion that holds appellant is not within the influence of the Act, but I am still of opinion that the Act impinges the bill of rights, securing to the citizen the liberty to contract. City of Mobile v. Rouse, 233 Ala. 622, 173 So. 266, 111 A.L.R. 349. *Page 183