We submit that the time limitation created by the words "since June 1, 1939," contained in the regulation has no relation to the public health and denies to the appellants the equal protection of the law guaranteed by the State and Federal Constitutions. Petitioners apply for a license permitting them to buy sealed bottled milk from approved milk dealers and resell the same to consumers. This application is denied upon the sole ground that under the regulation in question they have not been in the business prior to June 1, 1939. (Sanitary Code of City of New York, §§ 155, 156; Board of Health Regulation 3-a, subd. 3-b, par. 3.) Previous to July, 1939, the Sanitary Code of the city prohibited the sale of milk by one who did not possess a pasteurizing plant or depot. Despite this, many subdealers bought milk in sealed bottles from those having pasteurizing plants or depots and resold it in the same sealed bottles to customers. There were from six to eight hundred of these single individuals and a regulation was adopted permitting these illegal dealers to obtain a so-called Class C license if they had thus been doing business illegally prior to June 1, 1939.
Both the approved milk dealers engaged in the business of selling to these individual distributors and individuals situated as are petitioners, object that the regulation containing as it does a time limitation of June 1, 1939, unlawfully discriminates against them in favor of other milk dealers and individuals of the same class and that no valid reason exists for the inclusion of this arbitrary time limitation. *Page 102
To sustain the regulation the city urges that if the time limitation is removed there will exist so many individual distributors that it will be impossible to make the proper inspections. This very objection but illustrates and emphasizes the arbitrariness and the unlawfulness of the discrimination which the time limitation creates. Without passing upon the validity of the contention that the mere difficulty of adopting a suitable and effective method of inspection is sufficient to curtail the liberties of those involved, no such issue has been here determined by the Board. Instead an arbitrary date has been selected.
Nothing has been shown in the case at bar which supports the contention that there is a reasonable relationship between the distribution of sealed milk and the public health or welfare which would afford a reasonable basis upon which the local authority could determine that during the life of this law no individual or corporation shall enter the milk business as a distributor in New York city. (Mayflower Farms, Inc., v. TenEyck, 297 U.S. 266; People v. Ringe, 197 N.Y. 143; Hauser v. North British and Mercantile Ins. Co., 206 N.Y. 455;People v. Kuc, 272 N.Y. 72; People v. Cohen, 272 N.Y. 319. ) If the same principle is applied to other callings the liberty of the individual will cease to exist. We have here the same two elements which entered into the decision in theMayflower case (supra), namely: (1) An absolute and arbitrary date set by the Commission, and (2) a discrimination in favor of those who had entered into the industry before that date. What is more, here we have an absolute denial of the right of any one else to enter into an industry which a chosen few are allowed to monopolize.
The case at bar does not fall within the category of cases where a regulatory law may be prospective in operation and may except from its sweep those presently engaged in the calling or activity to which it is directed. The absolute denial to petitioner of the right to engage in the distribution of milk which has been bottled, sealed and pasteurized at a Class A plant pursuant to Department of Health inspection *Page 103 would seem to have no reasonable connection with public health and welfare. Nor does the power of the Board to consider the declared public policy of the State, including the burden resulting from the Workmen's Compensation Law (Cons. Laws, ch. 67) and social security laws, give to the Board power to deny petitioner his constitutional right to engage in a legitimate occupation upon the arbitrary ground that petitioner was not engaged in that business before an arbitrary date. To prescribe qualifications for entrance into a business or to prescribe regulations covering the different classes, is entirely different from proscribing the right to engage in such business altogether.
Other States have held invalid similar attempts to curtail individual liberty (Alexander v. City of Elizabeth, 56 N.J.L. 71; Sheffield Farms Co. v. Seaman, 114 N.J.L. 455; PabstCorp. v. City of Milwaukee, 190 Wis. 349; Whitney v.Watson, 85 N.H. 238; Northwestern National Ins. Co. v.Fishback, 130 Wn. 490). The denial to petitioner of a right to a license merely because he had not been engaged in the milk business as an independent distributor before June 1, 1939, was arbitrary and discriminatory and fails to afford petitioner the equal protection of the laws guaranteed by the State and Federal Constitutions.
LEHMAN, Ch. J., LOUGHRAN and DESMOND, JJ., concur with LEWIS, J.; FINCH, J., dissents in opinion in which RIPPEY and CONWAY, JJ., concur.
Order affirmed. *Page 104