Milk Marketing Board v. Johnson

I am of the opinion that the decree of the circuit court should be affirmed. The proceedings of the board, which are before us for review, are legislative in their nature. The powers conferred upon the board are of a general character, affecting the production and distribution of milk as an industry, and in the exercise of such powers the board acts in the capacity of a rate-making body. See City of Madison v.Madison Gas Electric Co., 129 Wis. 249 (108 N.W. 65, 8 L.R.A. [N. S.] 529, 116 Am. St. Rep. 944, 9 Ann. Cas. 819). "The establishment of a rate is the making of a rule for the future, and therefore is an act legislative, not judicial, in kind."Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226 (29 Sup. Ct. 67).

Any interest of the members of the board in the result of the rules, regulations, and orders promulgated by them does not render the act unconstitutional. In matters affecting legislative or administrative acts, the law only requires that the officers engaged in such administration act from disinterested motives. Where the State regulates businesses or professions, the administrative bodies generally are composed of members of the businesses or professions to be so regulated, in keeping with a legislative policy of entrusting such regulation to those best equipped, through knowledge and experience, for the task. Practically all of the States in which the production of milk is a major industry have enacted statutes similar to that of Michigan, providing that the members of the board be appointed from those engaged as producers and distributors and from consumers. In HighlandFarms Dairy, Inc., v. Agnew, 300 U.S. 608 (57 Sup. Ct. 549), a statute of Virginia, creating a milk commission, was held to be valid, and the power of *Page 662 regulation was held to be lawful although it was provided by the act that the commission consist of three members, two of whom were required to be producers of milk. Apparently no question was raised with regard to the membership of the commission. In Franklin v. State. ex rel. Alabama State MilkControl Board, 232 Ala. 637 (169 So. 295), the court upheld the validity of a milk control board which had power to fix prices. In that case, the board was required to be composed of one wholesale producer, one producer-distributor, one distributor, one consumer, and one member not engaged in the milk industry. No question was raised with regard to the requirements of the personnel of the board. I cannot subscribe to the proposition that, because certain members of the board, in the instant case, are required to be milk producers, a nonproducer or distributor is thereby deprived of the right to a fair hearing in proceedings to regulate the milk industry, on the ground that the interest of such a distributor is outnumbered by the interest of producers upon the board. The interest of a farmer member of the board in such proceedings must be considered as the interest of agriculture in general. It cannot be whittled down to a controversy between a farmer and a distributor. And I cannot agree that the representation of the interest of agriculture on a milk marketing board must be held to result in an unfair and prejudiced composition of such an administrative body.

Courts are not concerned with the wisdom of legislation. It is not every injudicious, unwise, or unfair law that is unconstitutional. To be so held, a law must contravene the provisions of the Constitution. It is said in the accompanying opinion that no one should act as a judge in his own cause, *Page 663 and thereby it is sought to bring the act in question under the prohibition of the due-process clause of the Constitution. But the proceedings here reviewed are not judicial proceedings; they are only general orders of the board, with which the defendant has refused to comply. Even the question of granting of a license is not here involved, inasmuch as the defendant never applied for such a license. The attack is upon the provisions of the act, which applied to all producers and distributors alike. In view of the fact that the only complaint with which we are concerned is with regard to the legislative proceedings of the board, it cannot be maintained that defendant has been denied due process.

I see no difficulty in distinguishing the instant case fromCarter v. Carter Coal Co., 298 U.S. 238 (56 Sup. Ct. 855). In that case, a statute provided for the delegation of the power to fix maximum hours of labor and production to a certain percentage of producers and workers. In the case before us, the power to make regulations and orders is not delegated to a percentage of producers and distributors, but to a board.

The members of the milk marketing board are public officials appointed by the governor pursuant to an act of the legislature.

"There is always a presumption that official acts or duties have been properly performed, and in general it is to be presumed that everything done by an officer in connection with the performance of an official act in the line of his duty was legally done, whether prior to the act, such as giving notice,or determining the existence of conditions prescribed as aprerequisite to legal action, or subsequent to such act. * * * *Page 664

"As the proper performance of official duties requires that the official shall act in good faith, such good faith is presumed. * * *

"And unless the presumption of regularity is rebutted, it is conclusive." 22 C. J. pp. 130, 135, 136.

Doubtlessly, it was with this rule in mind that Mr. Justice Sutherland, in Carter v. Carter Coal Co., supra (p. 311), drew the distinction between delegation to public officials composing a commission and delegation to private interests, when he said, with reference to the statute providing that a certain proportion of those engaged in the coal industry be empowered to fix minimum wages and maximum hours of labor: "This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body,presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business."

It is presumed that members of an official public commission act in good faith.

Appellant cites, in support of his argument, the rule laid down in Cooley's Constitutional Limitations (3d Ed.), p. 410, wherein it is said: "No one ought to be a judge in his own cause," and in the accompanying opinion this rule is cited as the basis upon which the act is held unconstitutional. But, in the work cited, the above quotation from the eminent authority on constitutional law is preceded by the following sentence which limits its application:

"There is also a maxim of law regarding judicial action which may have an important bearing upon the constitutional validity of judgments in some cases."

When, as said in the opinion of the Chief Justice, "the milk marketing board performs a function *Page 665 legislative in nature," I am unable to see why the decision, based on constitutional grounds, with regard to the action of the board, should be governed by the rule applicable tojudicial action and the validity of judgments. The purpose of the board, and its action now before us for review, was the promulgation of regulations for the milk industry. This was a legislative function. The action of the board was not the trial of an individual citizen. It did not partake of the nature of a judicial function. Its orders were not judgments. It is said that the board is "of such a nature that Johnson was not, and could not have been, accorded that impartial hearing which satisfies the requirements of due process." It seems to me that this is to confuse the meaning of the word "hearing," and to imply that it is in the nature of a trial. The hearing was for the purpose of securing facts and information for the guidance of the board in promulgating regulations. It was for the benefit of the board, and not for the benefit of Johnson, who was not entitled to be accorded an impartial hearing in the sense of being given an impartial trial; for the proceeding was not a trial, and defendant's individual rights were not before the board for determination.

To adopt the opinion of the Chief Justice in this case clearly commits this court to applying the same qualifications to members of an administrative commission in making regulations as is required of judges in trying cases; and, further, to apply the same rules to proceedings in making administrative orders as govern proceedings in the trial of a cause before a judge and the entering of decrees and judgments. No authority can be found to sustain such an extreme view in matters of administrative law, and it would seem to result in a confusion between the rules governing the exercise of judicial power *Page 666 and those governing the exercise of legislative power. The fact that the statute provides that the board appointed by the governor is to consist of two milk producers, one distributor, one consumer and the commissioner of agriculture does not result in unconstitutional delegation of legislative power.

In Miami Laundry Co. v. Florida Dry Cleaning and LaundryBoard, 134 Fla. 1, 46, 52 (183 So. 759, 780, 119 A.L.R. 956), the only case in point that has come to our attention, a statute provided for the regulation of the cleaning and laundry industry and delegated such regulation and control to a board of seven members to be appointed by the governor and to consist of three members from the laundry industry, three members from the cleaning industry, and one member from the general public. In holding that such delegation of legislative power was not unconstitutional, and that the statutory requirements as to the qualifications of the members of the board were not in violation of the due process clause, the court (on rehearing) said:

"Unless the Constitution is violated, statutory regulations control as to the classes and qualifications of those from whom members of a board shall be appointed to administer a law regulating the performance of 'services of a public nature.' It is not shown that the statutory provision as to the classes or qualifications of those from whom the board in this case must be chosen violates any express specific provision of the Constitution or that such statutory provision so operates as to deprive any person of a property right without due process of law, or denies to any person the equal protection of the laws, in violation of sections 1 and 12 of the Declaration of Rights of the State Constitution or of the Fourteenth Amendment to the Federal Constitution. See opinion on rehearing in State, exrel. *Page 667 Lichtenstein, v. Coleman, 134 Fla. 129 (183 So. 730), filed at this term.

"There is no unlawful delegation of legislative power in authorizing an administrative board to make rules and regulations for the execution of statutory provisions.Railroad Com'rs v. Railroad Co., 24 Fla. 417 (5 So. 129, 2 L.R.A. 504, 12 Am. St. Rep. 220); State v. Railroad Co.,56 Fla. 617 (47 So. 969, 32 L.R.A. [N. S.) 639).

"The reasonableness of the charges fixed for service is not involved here.

"While it does seem to be incongruous that six of the seven members of the board to administer the law are to be appointed from among those who are engaged in performing the 'services of a public nature' that are regulated, it is not shown that the board so constituted does or will in fact operate to deny to any person due process or equal protection of the laws in excessive charges or unjust discrimination or their abuses of governmental authority."

We are here concerned with the question of the regulation of the milk industry. Since the case of Nebbia v. New York,291 U.S. 502 (54 Sup. Ct. 505, 89 A.L.R. 1469), no doubt exists that it is subject to such regulation. Who knows more about the problems attendant upon the production of milk than dairy farmers? They represent a large and important element of agriculture in this State. Upon the amount of money received by them for their production depends the well-being, prosperity, and even solvency of the dairy farmer — and, in many cases, the prosperity and solvency of a large proportion of those engaged generally in agriculture, as, often, dairy farming is carried on as a part of general agriculture. This, in turn, affects the general welfare in many particulars.

Would it be more conducive to the proper regulation of the dairy business of farmers to exclude such *Page 668 producers from appointment by the governor to a State milk marketing board? Or may the board be composed entirely of producers, just so long as the statute does not specify such a designation of membership? Such a condition would seem to ignore a realistic disposition of the problem, under the compulsion of a ritual, not justified by constitutional inhibitions; and while the point is not pressed by appellant, it must be considered in passing upon the question before us. Or is such a commission only to be constituted of farmers who do not carry on the dairy business, or who have retired from business; or of agricultural college professors who are not engaged in the business; or of those who have no knowledge whatever of its problems? Such a view is contrary to the legislative policy manifested in laws under which members of commissions regulating businesses and professions are made up of persons engaged in such businesses or professions. Because two members of the board are appointed from among producers, and only one member from among distributors, does such circumstance deprive distributors of due process of law? Where producers of milk in the State outnumber distributors by perhaps 500 to 1, is the legislature to be held to give equal representation to the two groups in the membership of the board? To me, it would seem that all of these questions are matters of policy and judgment, encompassed by the legislative power, and with which courts have no concern.

The power of regulation delegated to the board is constitutional. The power exercised by the board in the promulgation of regulations was legislative in nature. The constitution of the membership of the board did not deny defendant due process of law. *Page 669

In the disposition of the other issues raised on appeal, I concur in the opinion of the Chief Justice.

The orders of the milk marketing board should be sustained, and the decree of the circuit court should be affirmed, with costs to plaintiff.

NORTH, J., concurred with McALLISTER, J. The late Justice POTTER took no part in this decision.